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2013 DIGILAW 584 (JK)

Satish Kumar Langer v. State Of J&K

2013-09-24

ALI MOHAMMAD MAGREY

body2013
1. The petitioner has questioned Government order no. 319-PW (R&B) of 2013 dated 13.09.2013 whereby he stands transferred as Incharge Assistant Executive Engineer, Sub Division Kishtwar against an available vacancy. 2. Facts giving rise to the petition are quite short. Petitioner claims to be holding the post of Assistant Executive Engineer on stop gap basis. He was posted as Incharge Assistant Executive Engineer, Medical College Jammu, in terms of Government Order no. 475-PW (R&B) of 2011 dated 16.12.2011.Vide Government order no. 319-PW (R&B) of 2013 dated 13.09.2013 the petitioner has been transferred from the above position and posted as Technical Officer to Executive Engineer R&B Division Kishtwar against an available vacancy. In his place, vide the same Government order, respondent no. 4 has been posted. Feeling aggrieved of his transfer and aforesaid posting, the petitioner has filed this petition challenging the Government order. 3. Petitioner has challenged the order impugned on the grounds that (i) the impugned order has been issued in violative and derogation of Government policy on transfers adopted vide Government order no 86-GAD of 2012 dated 28.07.2010 which is based on Cabinet Decision no. 156/12/2010 dated 27.07.2010; (ii) the petitioner has been transferred before completion of his tenure, which is violative of the transfer policy enunciated by the Government; (iii) the same is bad in the eyes of law the same having been issued by the respondent No. 1 without the prior approval of the Minister Incharge; (iv) the order is non-speaking. 4. This matter was posted on 19.09.2013 and was directed to be listed on 20.09.2013 with direction to the learned State counsel, Mr. Ravinder Sharma, AAG. to seek response from the Secretary to Government, PWD (R&B) as to under what circumstances the impugned transfer order had been issued in violation of the transfer policy. The matter, accordingly, came up on 20.09.2013. The response sought for from the official respondents on the previous day was not filed. However, oral submissions in that regard were made by the learned State counsel. 5. Heard learned counsel for parties, perused the record and considered the matter. 6. Learned counsel for the petitioner has challenged the impugned order precisely on the ground that petitioner has been transferred prematurely in clear defiance of the transfer policy formulated by the government in the General Administration Department vide Government Order no. 5. Heard learned counsel for parties, perused the record and considered the matter. 6. Learned counsel for the petitioner has challenged the impugned order precisely on the ground that petitioner has been transferred prematurely in clear defiance of the transfer policy formulated by the government in the General Administration Department vide Government Order no. 861-D GAD of 2010 dated 28.07.2010 [Refer 2011 (13) JKS JK-48 : JKS Soft JKS/6896]. Admittedly the petitioner has been transferred after approximately a period of one year and nine months, and has been posted as Technical Officer to Executive Engineer, R&B Division, Kishtwar. On the strength of the aforesaid transfer policy, the petitioner seeks a direction for allowing him to complete two years' minimum tenure as Incharge Assistant Executive Engineer, Medical College, Jammu. 7. Let the ground taken by the petitioner be tested on the touchstone of the policy of the government pressed into service. The policy laid down by the Government in terms of Government order no. 861-GAD of 2010 dated 28.07.2010 [Refer 2011 (13) JKS JK-48 : JKS Soft JKS/6896], based on Cabinet decision no. 156/12/2010 dated 27.07.2010, deals with (A) General principles, (B) Calendar tor transfers (C) Tenure of postings for making transfers/posting etc. 8. In terms of clause (C) (i) of the policy (supra), while fixing tenure on postings, it has been provided that the minimum tenure of Government employee on a post shall be two years and a maximum of three years. 9. Clause (C) sub clause (4) (ii) provides that a Government employee holding any post may be transferred even before the completion of maximum tenure if it is not in public interest or in the interest of administration to allow the employee to continue on a post for a full tenure, but such transfer has to be made with the prior approval of the Minister Incharge after recording the reasons for the same. 10. Learned State counsel, Mr. Sharma, in response to the query raised on the previous day, made a statement at the Bar that he has ascertained the requisite information from respondent No. l. He informed the Court that the transfer of petitioner has been made in the interest of administration after approval of the minister and reasons therefor have duly been recorded. He submitted that, therefore, there is no violation of the policy pressed into service by the petitioner. His statement was taken on record. He submitted that, therefore, there is no violation of the policy pressed into service by the petitioner. His statement was taken on record. 11. This court has no reason to disbelieve Mr. Ravinder Sharma, learned AAG while making such statement after having consulted respondent No. l. Therefore, the claim of the petitioner that the transfer order has been issued in violation of the Government's transfer policy as promulgated vide Government order dated 28.07.2010 is belied and cannot be sustained. 12. Transfer of a government employee can be ordered in the interest of administration at any time; provided it is not actuated by mala fide considerations. It is settled law that while ordering the transfer, the authority must keep in mind the guidelines issued by the Government on the subject. However, the guidelines do not confer upon a Government employee a legally enforceable right. There is catena of judgments on the subject. Reference in this connection may be made to the judgment of the Supreme Court in U.O.I v. S.L. Abbas. AIR 1993 SC 2444 wherein it has been laid down that guidelines do not confer upon the government employee a legally enforceable right. Paragraph 7 of the judgment is reproduced hereunder: "Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration....." 13. There are numerous prepositions of law laid down by the Courts from time to time on the subject of transfers. Some of the judgments have been precisely reproduced in Service Law, Revised Edition 2011 by Imtiyaz Hussain at pages 696 and 704. Some of the excerpts therefrom are mentioned herein. There are numerous prepositions of law laid down by the Courts from time to time on the subject of transfers. Some of the judgments have been precisely reproduced in Service Law, Revised Edition 2011 by Imtiyaz Hussain at pages 696 and 704. Some of the excerpts therefrom are mentioned herein. It is settled that even if there is a guideline that normal tenure of a person at a post shall be of two years, such guideline, firstly, is not binding upon the Government; and secondly, the guideline would not legally vest an enforceable right in favour of an employee that he cannot, in any circumstance, or even in the interest of administration, be transferred before completion of his normal tenure. An employee who has to perform his duty, he has to go to the place where he is transferred in view of the service conditions and if he has any reservation for going to that place he can seek his pre-mature retirement, if he so chooses. (Refer to Anjum Shaheen Mirza (Dr.) v. State of J&K, 2005 (1) JKJ (HC) 307.) 14. Transfer of a Government servant appointed to a particular transferable post from one place to another place is an incidence of service and does not affect or alter his terms and conditions of service. The Government has power to transfer its employees from one post to another carrying equivalent pay scale and grade. But the government has to exercise this power in a bona fide manner to meet the exigencies of the administration, (Refer to E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ). 15. Identical principles of law have been laid down by the Courts from time to time. Some of these principles may be stated in extensio hereunder: (i) Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency m the public administration Whenever, a public servant is transferred he must comply with the order, [Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989) 2 SC 602]. Transfer from one place to other is necessary in public interest and efficiency m the public administration Whenever, a public servant is transferred he must comply with the order, [Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989) 2 SC 602]. (ii) The transfer is a routine incidence of service. So long an employee is posted on an transferable post, he cannot grouse his transfer order by the competent authority provided the transfer is not mala fide or in excess or lack of jurisdiction or passed by incompetent authority, (Zahoor Ahmad Khan v. Chairman, Kamraz Rural Bank, 2002 KLJ 546 : JKJ Soft JKJ/ 12505). (iii) Transfer is an exigency of service and it is the prerogative of the employer to see at what place the service of an employee can be utilized properly in the larger public interest. An employee holding transferable post has no right to insist that he should be allowed to serve at a particular place for a particular period, A.D. Manhas (Dr.) v. State & ors., [2005 (1) JKJ (HC) 314]. It may also be mentioned here that the petitioner has raised a specific plea that the petitioner has been transferred prematurely, inasmuch as he has spent less than 2 years at his present place of posting. This, according to the learned counsel for the petitioner, is violative of the policy of the Government order promulgated in the Government order in question. Such a ground, to, is no more res Integra. A similar condition was laid down in Government order no.912-GD of 1988 dated 16.06.1988 which came up for consideration before a learned Single Bench of this Court in Dr. Mohd. Afzul v. State of J&K, 1994 SLJ 138 : JKJ Soft JKJ/ 12759. The learned Single Judge in that case repelled the argument relying upon the decision of the Division Bench of this Court in LPA no. 371/1994, which arose from SWP no. 40/1994. It would be advantageous to quote hereunder the relevant paragraph of the Division Bench judgment, as reproduced by the learned Single Judge in the aforesaid Judgment: "It is not claimed by Dr. Dar that these Government orders have been issued in exercise of any statutory power. They are mere executive instructions. F Dr. Dar's case is that these executive instructions have been violated, his remedy lies in approaching the Government which has issued the instructions. Dar that these Government orders have been issued in exercise of any statutory power. They are mere executive instructions. F Dr. Dar's case is that these executive instructions have been violated, his remedy lies in approaching the Government which has issued the instructions. Since they do not have any statutory force no actionable right has been created by these Government orders." The point on this count raised by the learned counsel, thus, stands concluded by a judicial pronouncement. 16. It was contended by learned counsel for petitioner that petitioner has been transferred under pressure yielded by respondent 4 as his previous posting was not to his liking and respondent No. l by succumbing to the said pressure has passed the impugned order to the complete detriment of the petitioner and prejudicial to his rights. This is a mere allegation, un-supported by any material, muchless cogent material. Allegations of such nature would not constitute mala fides and, in any case, cannot be relied upon for any purpose whatsoever. 17. It is also submitted that the petitioner has made representations against his transfer, but the same have not been considered. Even if so, that fact by itself would not entitle the petitioner to challenge the impugned order, nor would the pendency of the representation before the respondents entitle the petitioner to any relief from this Court in exercise of its extra ordinary jurisdiction under Article 26 of the Constitution of India. It is for the respondents to decide the representation one way or the other. The law being settled, this petition does not deserve to be kept on board. 18. For the foregoing reasons, this petition is dismissed in limine together with the connected CMA, however, without any order as to costs.