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2013 DIGILAW 681 (JK)

Des Raj v. State

2013-11-25

Virender Singh

body2013
1. Petitioner is working as Patwari in the Revenue department. Earlier also, vide order dated 17.12.2011 of Deputy Commissioner Reasi, he was transferred from PH Bhabber (Reasi) and posted at PH Katra (Reasi). He vide Government Order No. Rev/NG/228 of 2013 dated 04.09.2013 now stands transferred from PH Katra and directed to report to Regional Director Survey and Land Records (Settlement Officer) Jammu (respondent No. 3 herein) for further posting. He has thrown challenge to the said order through the medium of instant petition on several grounds, but the main ground is that it is passed before completion of two years of stay at a particular place which is against the Cabinet Decision No. 156/12/2010 dated 27.07.2010 notified vide Government Order No. 861-GAD of 2010 dated 28.07.2010 [Refer 2011 (13) JKS JK-48 : JKS Soft JKS/6896] with regard to the policy of transfer/posting of Government Employees. He takes other pleas also which are reproduced hereunder. 2. Pursuant to notice, Mr. Siddiqui learned AAG has put in appearance on behalf of respondents 1 to 4 and Mr. Bhardwaj learned Sr. Advocate appearing for respondent No. 5. Objections have also been filed by all the respondents. 3. By way of an interim relief, impugned transfer order is put on hold provided he was not relieved. According to Mr. Bhasin, the petitioner is still working as Patwari at PH Katra only on the strength of interim order. 4. Heard learned counsel for both the sides and gone through the records. 5. Mr. Bhasin reiterates that the impugned order of transfer has been issued in malafide exercise of power, in as much as respondent No. 5 has been adjusted by displacing the petitioner which is against the Government Order No. 861-GAD of 2010 dated 28.07.2010. He further submits that the post of a Patwari is otherwise a District Cadre Post, as such, the transfer/posting of the petitioner could be made within the District only, whereas in terms of the impugned order, he has been directed to report to respondent No. 3 at Jammu and this turns out to be out of District posting. 6. He further submits that the post of a Patwari is otherwise a District Cadre Post, as such, the transfer/posting of the petitioner could be made within the District only, whereas in terms of the impugned order, he has been directed to report to respondent No. 3 at Jammu and this turns out to be out of District posting. 6. Learned counsel then submits that the petitioner is totally occupied in preparing the girdwaries of this season, therefore, adjusting him with respondent No. 3, which is otherwise against the policy is in violation of the order issued by Financial Commissioner, wherein it is specifically mentioned that when the patwaries are in the process of preparing the Girdwaries at a particular time for a particular season, they should not be ordinarily transferred. He then submits that the impugned order is not in the interest of administration rather against the interest of administration as it is not passed bonafidely but on certain extraneous considerations, as such not a fair order. 7. In support of his submissions with regard to out of District transfer, Mr. Bhasin relies upon a paper clipping of a newspaper (Daily Excelsior) dated 06.09.2013 wherein it is mentioned that Settlement Officer Jammu will be Regional Director of Survey and Land Reforms for Doda, Kishtwar and Ramban while as Agrarian Reforms Commissioner Jammu will be the Regional Director for twin border districts of Rajouri and Poonch. Similarly Joint Settlement Commissioner will be Regional Director for Udhampur and Reasi Districts and Director Land Records Jammu will act as Regional Director for Jammu, Samba and Kathua districts. This decision has been taken by the Establishment Committee headed by Chief Secretary clearing the proposal to reorganize Settlement Organization with new set of guidelines and duties looking at a snail's pace in preserving the revenue records. 8. Mr. Bhasin also banks upon the judgment rendered by this Court in case titled Sudhershan Kumar Mishra and ors v. State and Ors., reported in 2011 (4) JKJ [HC] 232 wherein while referring to Government Order No. 861-GAD of 2010 dated 28.07.2010 [2010 [Refer 2011 (13) JKS JK-48 : JKS Soft JKS/6896] , the order of transfer impugned therein ultimately came to be quashed. 9. In order to project that the impugned order of transfer is not passed in the interest of administration, Mr. 9. In order to project that the impugned order of transfer is not passed in the interest of administration, Mr. Bhasin relies upon another judgment of this Court rendered in case titled Board of School Education v. Mohd. Altaf Dar and Anr., reported in (2008) 1 JKJ [HC] 530 wherein reference is also made to Apex Court judgment, reported in AIR 1986 SC 1955 wherein it has been held: "It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair". 10. Per contra, in order to dislodge the claim of the petitioner, Mr. Siddiqui learned, AAG relies upon following two judgments rendered in case titled: 1. Satish Kumar Langer v. State and ors in SWP No. 2004/2013, decided on 24.09.2013 and 2. Dr. Karamvir Singh v. State and ors in SWP No. 1700/2013, decided on 30.10.2013". 11. Mr. Siddiqui, however, submits that the petitioner can be adjusted with Joint Settlement Commissioner instead of respondent No. 3 keeping in view the decision taken by the Government. 12. I am not in agreement with any of the submissions made by Mr. Bhasin at the Bar. 13. No doubt, when the petitioner came to be transferred and adjusted with respondent No. 3, he had not completed his two years tenure after he was transferred from PH Bhabbar to PH Katra. 12. I am not in agreement with any of the submissions made by Mr. Bhasin at the Bar. 13. No doubt, when the petitioner came to be transferred and adjusted with respondent No. 3, he had not completed his two years tenure after he was transferred from PH Bhabbar to PH Katra. However, by now he has already stayed at a particular place (PH Katra) for one year and more than eleven months. He is still working at PH Katra, may be on the strength of interim relief granted to him. His term of two years is, thus, almost complete. Being that the fact position in the case on hand, perhaps the Government Order No 861-GAD of 2010 dated 28.07.2010 will not come at the rescue of the petitioner, consequently, he cannot derive any benefit from Sudarshan Kumar Mishra's case (Supra) 14. Even otherwise, the guidelines upon which Mr. Bhasin relies, they do not confer upon the Government employee a legally enforceable right. 15. Transfer of a government employee is an exigency of service and one should gladly accept it if it is not dipped in malafides. However, it depends upon each individual case. 16. Much has been said by Mr. Bhasin with regard to malafide exercise of power in issuing the transfer order impugned herein. It is easy to allege but difficult to prove as I do not find any malafide exercise in transferring the petitioner as the impugned order is not concerning him only, rather it speaks of whole hog transfers of as many as 25 persons from one place to other place. It is quite possible that the petitioner may be once again transferred to any Patwar Halqa after the required job is done with regard to revenue records. He is simply attached with a particular officer. No one can claim his right for staying at a particular place for all times to come, otherwise it would speak volumes of his vested interests which is certainly not in the interest of administration. Viewed thus, the allegation of malafide exercise of power in transferring the petitioner falls on the ground, being baseless. 17. If one looks at the impugned order adjusting the petitioner with respondent No. 3, it appears to be out of District transfer which fact Mr. Siddiqui has also conceded. Viewed thus, the allegation of malafide exercise of power in transferring the petitioner falls on the ground, being baseless. 17. If one looks at the impugned order adjusting the petitioner with respondent No. 3, it appears to be out of District transfer which fact Mr. Siddiqui has also conceded. He states that in terms of the decision taken by the Establishment Committee headed by Chief Secretary upon which the petitioner himself has relied, Joint Settlement Commissioner is functioning as Regional Director for Udhampur and Reasi districts and the petitioner who is from District cadre Reasi can be very well adjusted with Joint Settlement Commissioner by modifying the impugned order to that extent and this will meet his objection. He assures the Court that instructions in this regard will be passed to the concerned authority for adjusting the petitioner with Joint Settlement Commissioner without any waste of time instead of attaching him with respondent No. 3, (Regional Director Survey and Land Records) Jammu. This, in my considered view, should redress the grievance of the petitioner on this Count. 18. As a sequel to the aforesaid discussion, what surfaces is that the petitioner has no case for warranting indulgence of this Court, resultantly the petition on hand merits dismissal. Ordered accordingly. 19. Interim direction dated 06.09.2013 stands vacated. However, there shall be no order as to costs. 20. CMA No. 2760/2013 also stands disposed of.