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2015 DIGILAW 388 (JK)

Kulwant Singh v. State of J&K

2015-08-05

TASHI RABSTAN

body2015
JUDGMENT : TASHI RABSTAN, J. 1. The challenge in this petition is to Order No. DULBJ/2015/7328-32 dated 04.06.2015 issued by Director, Urban Local Bodies, Jammu, respondent No. 2 herein, to the extent the petitioner has been transferred from Lakhanpur to Kathua. 2. The facts which have given rise to the present petition are that vide Order No. DULBJ/2012/10167-73 dated 30.07.2012, the petitioner was transferred as Sanitary Inspector from Municipal Committee, Lakhanpur to Municipal Committee, Samba. Again vide Order No. DULBJ/2012/10559-62 dated 21.08.2012, Order dated 30.07.2012 was modified and petitioner was transferred to Municipal Committee, Parole and was also asked to look after the work of sanitation of Municipal Committee, Lakhanpur. Thereafter, within a short span of about six months, the petitioner was again transferred vide Order No. DULBJ/2013/1219-21 dated 05.02.2013 directing him to report to Municipal Council, Kathua for further duties. In compliance thereof, petitioner relieved and joined as Sanitary Inspector, Municipal Committee, Kathua. It is further contended that while the petitioner was performing his duties at M.C. Kathua, respondent No. 2 issued yet another order of his transfer vide his No. DULBJ/2015/765-66 dated 27.01.2015, whereby the petitioner was swapped with one P.R. Sangra, Sanitary Inspector, M.C. Lakhanpur and in compliance to aforesaid Order, the petitioner was relieved and joined his new place of posting, i.e., Municipal Committee, Lakhanpur. It is also contended that petitioner had just completed four and a half months at M.C. Lakhanpur when respondent issued order impugned vide his No. DULBJ/2015/7328-32 dated 04.06.2015, whereby transferring him as Sanitary Inspector from M.C. Lakhanpur to M.C. Kathua and ordered posting of private respondent as Sanitary Inspector, Lakhanpur with additional charge of M.C. Vijaypur in place of petitioner. 3. The precise argument of learned counsel for petitioner is that the impugned order has been passed against the mandate of Govt. Order No. 861-GAD of 2010 dated 28.07.2010 as he has been transferred prematurely besides the same has been passed with mala-fide intention to accommodate private respondent. The very basis of mala-fide, as alleged in the writ petition, is that private respondent has been assigned the job of two Municipal Committees, i.e. Lakhanpur and Vijaypur. It is alleged that there are other persons in the Department having more than two years of stay, but they have not been touched, whereas the petitioner is being transferred frequently. 4. Objections have been filed by the respondents. It is alleged that there are other persons in the Department having more than two years of stay, but they have not been touched, whereas the petitioner is being transferred frequently. 4. Objections have been filed by the respondents. Respondents 1 to 3 in their objections while controverting the stand taken by the petitioner contended that the order impugned has been passed strictly as per the transfer policy. It is further contended that in the year 2002 vide Order No. 61-DLBJ of 2002 dated 22.02.2002, the petitioner was transferred from Town Area Committee, Kathua and posted in Notified Area Committee, Lakhanpur along with the post. The Petitioner remained posted in Notified Area Committee, Lakhanpur for about twelve years. He was transferred to Municipal Committee, Samba vide Order No. DULBJ/2012/10167-73 dated 30.07.2012. However, before he could join at Samba, the order was modified and the petitioner was transferred to Municipal Committee, Parole and was also allowed to look after the work of sanitation of Municipal Committee, Lakhanpur vide Order No. DULBJ/2012/10559-62 dated 21.08.2012. The petitioner remained posted in Lakhanpur till 02.03.2013. Again, he came back to Lakhanpur vide Order No. DULBJ/2015/765-66 dated 27.01.2015. The order impugned was passed in the interest of administration the transfer policy is in the nature of non-statutory administrative instructions and does not create any enforceable right in favour of an employee to remain posted at a particular place. 5. I have heard learned counsel for the parties and perused the record. 6. The precise case of petitioner is that he has been transferred prematurely with mala-fides intentions and in clear defiance of the transfer policy formulated by the Government vide No. 861-GAD of 2010 dated 28.07.2010. 7. This Court vide order dated 10.06.2015 directed for staying the operation of order impugned so far as it pertained to the petitioner and petitioner was permitted to continue at Municipal Committee, Lakhanpur. Feeling aggrieved, respondents have filed application for vacation of said order on the ground that petitioner has already served for a period of more than 12 years at Lakhanpur, i.e., with effect from February 2002 to March 2013 and then January 2015 to till date. 8. In terms of Clause (c) (i) of the policy, while fixing tenure on postings, it has been provided that the minimum tenure of a Government employee on a post shall be two years and a maximum of three years. 8. In terms of Clause (c) (i) of the policy, while fixing tenure on postings, it has been provided that the minimum tenure of a Government employee on a post shall be two years and a maximum of three years. 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. 9. As stated above, order impugned is primarily challenged on two counts; first the same is in violation of transfer policy issued by the Government; and second the transfer has been made with mala-fides intentions to accommodate respondent No. 4 in place of petitioner. 10. So far as the plea of petitioner with regard to transfer policy is concerned, the same is not sustainable for the reason that the transfer policy promulgated by the Government is an executive order having no statutory flavour, as such, cannot be enforced by way of writ of mandamus, unless the order of transfer is shown to be the outcome of mala-fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer. 11. So far as the plea of petitioner with regard to mala-fide is concerned, the same is also not sustainable for the reason that the order impugned, as is apparent from its bare perus is general order of transfer as along with the petitioner three more persons have also been transferred, as such, cannot be called to be either mala-fide or arbitrary. It is for the employer to decide as to whether services of a particular employee can be better utilized and the Courts cannot substitute their opinion in this regard. The plea of frequent transfer would also not be available to the petitioner for the simple reason that with effect from February, 2002 to till date, the petitioner almost remained posted at Lakhanpur itself. 12. Further, no allegation of mala-fide is contended in the writ petition nor the petitioner has arrayed the persons, against whom the mala-fide is alleged, as party respondents. The same, therefore, cannot be accepted in absence of any material or evidence constituting the mala-fide. Mere making an allegation does not serve the purpose. 13. 12. Further, no allegation of mala-fide is contended in the writ petition nor the petitioner has arrayed the persons, against whom the mala-fide is alleged, as party respondents. The same, therefore, cannot be accepted in absence of any material or evidence constituting the mala-fide. Mere making an allegation does not serve the purpose. 13. A Division Bench of this Court in Anil Kumar Prabhakar vs. State, 2014 (3) JKJ 346 , has observed that the transfer policy is in the nature of non-statutory administrative instructions and does not create any enforceable right. 14. In State of U.P. vs. Gobardhan Lal, (2004) 11 SCC 402 , it has been held that transfer is the prerogative of the authorities concerned and Courts should not normally interfere therewith. It would be relevant to reproduce paragraph 7 hereunder: "7. It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision." 15. In Union of India vs. S.L. Abbas, AIR 1993 SC 2444 , it has been held as under: "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. The guidelines say that as far as possible, the husband and the wife must be posted at the same place. The said guideline however, does not confer upon the government employee legally enforceable right." 16. Further, in a series of judicial pronouncements it has been held that transfer is an incident of service and the scope of judicial review of transfer order under Article 226 is very limited. What is held by the Supreme Court in State of Haryana vs. Kashmir Singh, (2010) 13 SCC 306 is reproduced hereunder: "14. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities." 17. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities." 17. Moreover, a perusal of the petition reveals that the petitioner is resident of Ward No. 4, Kathua. Vide the order impugned he has been transferred from Lakhanpur to Kathua, i.e. in his home town itself. It is very strange that instead of serving quite near to his home and living with his family, the petitioner is pressing to remain posted at Lakhanpur itself, away from his home town. One can easily understand that how the petitioner has managed to serve at Lakhanpur, that too for such a long period of about twelve years with effect from February, 2002 to till date. How the petitioner is being transferred frequently from one place to another, the petitioner has failed to project in the petition. Further, no employee can legally assert that he has a right to remain posted at a particular place for all his service tenure or only at a place of his choice. In other words, only because an employee is asked to go to a place, which may or may not be of his liking, is no ground to seek judicial intervention against such transfer. The petitioner, therefore, does not deserve any concession in view of the facts mentioned above. Consequently, I do not find any reason to interfere with the impugned order, as the same has been issued by the competent authority after taking into account all the attending circumstances. 18. In view of the above discussion, I do not find any merit in the writ petition. Accordingly, the same is dismissed along with connected MP. Interim direction shall stand vacated. However, petitioner is burdened with costs of rupees ten thousand, to be deposited with Advocates Welfare Fund within a period of two months from today. In case, petitioner fails to deposit the costs within the aforesaid period, Registrar (Judicial) is directed to frame a separate Robkar against him and, after issuing notice to him, list the same before the Court.