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2013 DIGILAW 519 (JK)

Gh. Nabi Shah v. State Of J&K

2013-09-06

DHIRAJ SINGH THAKUR

body2013
1. The petitioner in the present writ petition questions his order of transfer from the office of Chief Medical Officer, Pulwama to the office of Director, TB. Demonstration Centre, Srinagar. 2. The order is questioned on two grounds. Firstly, that the transfer order is premature as it has been passed only after a period of one year from the date of his earlier order of transfer and is, thus, in violation of Govt. Policy circulated by the Govt. vide order No. 861-GAD of 2010 dated 28-7-2010 [Refer 2011 (13) JKS JK-48 : JKS Soft JKS/6896] which envisages that premature transfers shall be ordered only with the prior approval of the Minister Incharge for the reasons to be recorded. 3. The other ground on which the order of transfer has been challenged is that the same suffered from the vice of malafides. Reference in this regard was made by learned counsel to the order impugned itself, a portion whereof is reproduced here-in-below: "Whereas it has also been verified by enquiry team that Mr. Gh. Nabi Shah, Head Assistant, who is working in District Hospital Pulwama on attachment basis is not bearing attitude like a subordinate to his officers and is always behaving like unbecoming of Govt. employee and is running a parallel office against his superiors which is against service conduct rules." 4. The learned counsel urged that the order of transfer clearly appears to be an order, which is punitive in character passed without holding any enquiry or affording to the petitioner an opportunity of being heard. 5. Heard learned counsel for the petitioner. 6. The scope of judicial review in transfer matters is no longer res-integra. It is settled law that a transfer order, unless shown to be a mala fide exercise of power, in violation of a statutory provision or passed by an incompetent authority, is not open to interference by the court. 7. In State of U.P. and another v. Siya Ram and another, (2004) 7 SCC 405 , the Apex Court has held as under:- "................... 7. In State of U.P. and another v. Siya Ram and another, (2004) 7 SCC 405 , the Apex Court has held as under:- "................... No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this court in National Hydroelectric Power Corpn. Ltd v. Shri Bhagwan, (2001) 8 SCC 574 ." 8. In the case of Union of India and others v. S.L. Abbas, (1993) 4 SCC 357 , the Apex Court while dealing with the guidelines framed by the Government of India regarding couple transfers held that the guidelines /administrative instructions do not create any enforceable right in the employees. The said guidelines are in the nature of instructions and do not have any statutory force. 9. In Rajendra Singh & ors v. State of U.P. & Ors, (2009) 15 SCC 178 , the Apex Court, yet again, reiterated the aforementioned principles and in paragraph 9 of the judgment, held as under:- "9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar, this court held: "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. In Shilpi Bose v. State of Bihar, this court held: "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders." 10. In the case on hand, the learned counsel for the petitioner has made reference to a Government Order No. 861-GAD of 2010 dt. 28.7.2010 [Refer 2011 (13) JKS JK-48 : JKS Soft JKS/6896], which prescribes the policy of transfers/postings of Government employees. It was urged that since the order impugned is in violation of the policy as laid down in the aforementioned Government order, the same cannot be sustained in law. 11. However, a reference to the aforementioned order would clearly show that the said order is, in fact, an executive order having no statutory force or flavour. The said order does not, by itself create any enforceable right in favour of the petitioner, which could give him a right to enforce the same in the extraordinary jurisdiction of this court. Even otherwise, if there is a violation of the policy, the petitioner may approach the higher authorities, who have framed the policy to ensure that the same is followed as far as possible, in the interest of administration. However, breach of conditions of the transfer policy by itself creates no vested or enforceable right in favour of the petitioner. 12. In Shanti Kumari v. Regional Deputy Directors Health Services, Patna Division, Patna & Ors, (1981) 2 SCC 72 , the Apex Court has held as under:- "2. However, breach of conditions of the transfer policy by itself creates no vested or enforceable right in favour of the petitioner. 12. In Shanti Kumari v. Regional Deputy Directors Health Services, Patna Division, Patna & Ors, (1981) 2 SCC 72 , the Apex Court has held as under:- "2. Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The courts cannot interfere in such matters. Shri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant." 12-A. The Government order No. 861-GAD of 2010 dt. 28.7.2010 [Refer 2011 (13) JKS JK-48 : JKS Soft JKS/6896], therefore, is not enforceable and cannot be relied upon for invoking the jurisdiction of this court under Article 226, for quashing the impugned order. 13. The next ground of challenge as urged by learned counsel for the petitioner was that the order of transfer was punitive in character, passed without holding any enquiry and affording an opportunity of being heard to the petitioner and since it was punitive in character, also suffered from the vice of arbitrariness and malafides. 14. Reference at this stage is necessary to Union of India and others v. Janardhan Debanath & anr, (2004) 4 SCC 245 , where one of the issues' before the Apex Court was whether the use of expression `undesirable' warranted an enquiry before the transfer. Reliance was placed before the Apex Court by citing the case of Jagdish Mitter v. Union of India ( AIR 1964 SC 449 ), to suggest that use of the word `undesirable' casts a stigma and that the transfer order could not have been passed without holding a regular enquiry. While rejecting that argument, the Apex Court in the judgment (supra) held as under in paragraphs 12, 13 and 14:- "12. That brings us to the other question as to whether the use of the expression "undesirable" warranted an enquiry before the transfer. While rejecting that argument, the Apex Court in the judgment (supra) held as under in paragraphs 12, 13 and 14:- "12. That brings us to the other question as to whether the use of the expression "undesirable" warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. Union of India (AIR 456, para 21) to contend that whenever there is a use of the word "undesirable" it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression "undesirable" in an order affecting the continuance in service by way of discharge. The decision has, therefore, no application to the facts of the present case. The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions-status, service prospects financially - and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency, and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. "13. Additionally, it was pointed out by learned counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion. It was also submitted that transfer was within the same circle i.e. the North-Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise. "14. It was also submitted that transfer was within the same circle i.e. the North-Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise. "14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petition filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs." 15. Applying the principles of law as settled in the aforementioned case, it is seen that it would be unnecessary for the authority to conduct an enquiry against the petitioner with a view to prove the allegation that the petitioner was running a parallel office against his superiors or that his conduct was one unbecoming of Govt. employees and against Service Conduct Rules before taking a decision to transfer the petitioner. 16. One of the primary responsibilities of an officer competent to transfer an employee is to ensure that the functioning of an institution runs smoothly to the best benefit of the public at large. employees and against Service Conduct Rules before taking a decision to transfer the petitioner. 16. One of the primary responsibilities of an officer competent to transfer an employee is to ensure that the functioning of an institution runs smoothly to the best benefit of the public at large. If, however, before passing every order of transfer in regard to such an indisciplined officer, one were to conduct an enquiry, affording an opportunity of being heard to that particular employee, the very purpose of ensuring good administration would be defeated and would indirectly prejudice the public interest. 17. In the present case, there was some material in the shape of an enquiry report before the Director, Health Services, giving enough reasons to him to pass the order impugned. The order could not be said to be malafide. The order of transfer does not, in any manner, prejudice the petitioner or his conditions of service. 18. For the reasons mentioned hereinabove, the petition is found to be without merit and is, accordingly, dismissed along with interim application No. 2139/2013.