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2014 DIGILAW 408 (JK)

Romal Singh v. State of J&K and Ors.

2014-10-17

TASHI RABSTAN

body2014
JUDGMENT Tashi Rabstan, J.-- 1. The petitioner has questioned Government Order No. DSE J/Gaz/Lect/20642-46 dated 25.10.2013 by which the petitioner has been transferred from Government Boys Higher Secondary School, Gandhi Nagar, Jammu to Higher Secondary School, Rajouri and in his place one Pritam Singh, Lecturer in Physics has been adjusted. It is contended by the petitioner that the impugned order is not in the interest of administration but the same has been passed just to accommodate official respondents' blue eyed person, namely, Sh. Pritam Singh, who had declined to join at Higher Secondary School, Rajouri, therefore, the impugned order itself clearly manifest that the same has been passed with mala fide intentions, at the behest of the Minister concerned. 2. The official respondents have filed objections to the writ petition wherein the respondents have denied the allegations leveled against them. 3. Heard learned counsel for the parties and perused the writ record and the objections filed thereto by the official respondents. 4. The precise case projected by the petitioner in the writ petition is that in pursuance to Government Order dated 25.10.2013, one Pritam Singh was adjusted as Lecturer in Physics in Government Boys Higher Secondary School, Gandhi Nagar, Jammu vice the petitioner, who was transferred and adjusted as Lecturer in Physics in Government Higher Secondary School, Rajouri. Said Pritam Singh has submitted his joining report on 26th October, 2013, as Lecturer in Government Higher Secondary School (Boys), Gandhi Nagar, Jammu but in the present writ petition, the petitioner has not arrayed said Pritam Singh, as party respondent. Thus, in absence of the affected person, i.e., Pritam Singh, as party respondent, this writ petition itself is not maintainable. 5. 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. But in the present case, the petitioner has not even alleged any mala fide against the transferring authority. There is catena of judgments on the subject. However, the guidelines do not confer upon a Government employee a legally enforceable right. But in the present case, the petitioner has not even alleged any mala fide against the transferring authority. There is catena of judgments on the subject. Reference in this connection may be made to the judgment of the Hon'ble Supreme Court of India in Union of India and others v. S.L. Abbas, reported as (1993) 4 SCC 357 , wherein it has been laid down that guidelines do not confer upon the Government Employee a legally enforceable right. Relevant part of Para 7 is reproduced hereunder: "7 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...." 6. 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. 7. Identical principles of law have been laid down by the Courts from time to time Some of the principles may be stated in extension 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 Under-taking 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 in the public administration. Whenever, a public servant is transferred he must comply with the order (Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1998) SC 602). 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 in the public administration. Whenever, a public servant is transferred he must comply with the order (Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1998) 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 314 [HC]." 8. A similar issue has also been dealt with by a Co-ordinate Bench of this Court in case titled Devinder Singh v. State of J&K, reported as 1998 KLJ 355 : JKJ Soft JKJ/11257. Para 12 of the said judgment is reproduced hereunder-- "12. So far as the allegations of malafide are concerned, it be seen that the petitioners have not chosen to impale the concerned Minister as a respondent to the petition. As such, these allegations cannot be looked into. See the decision of the Supreme Court in the case reported as "Partap Singh v. State of Punjab", AIR 1964 SC 72 ". 9. It was also contended by learned counsel for the petitioner that one Pritam Singh has been posted in place of petitioner at the behest of Minister with mala fide intentions just to adjust him in Jammu, which is prejudicial to his right. The allegation of mala fide required a high degree of proof and burden is heavy on the person alleging such bias. This is a mere allegation, unsupported by any material muchless cogent material. Allegation of such nature would not constitute mala fides and, in any case, cannot be relied upon for any purpose whatsoever. 10. The allegation of mala fide required a high degree of proof and burden is heavy on the person alleging such bias. This is a mere allegation, unsupported by any material muchless cogent material. Allegation of such nature would not constitute mala fides and, in any case, cannot be relied upon for any purpose whatsoever. 10. Having heard learned counsel for the parties and on perusal of the writ record, it is clear that challenge to the transfer order is not made out on the ground of violation of any statutory rules, regulations or transfer policy nor is any malafide made out. 11. In view of the above discussion and in totality of the circumstances, I am of the considered view that there is no merit in the writ petition. Accordingly, the same is dismissed along with connected CMA. Interim direction shall stand vacated.