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2015 DIGILAW 449 (JK)

Syed Hilal Ahamd v. State of J & K

2015-08-31

BANSI LAL BHAT, HASNAIN MASSODI, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. These matters were placed before the Full Bench on the basis of reference dated 16.07.2014 made in SWP Nos. 1476/2014 and 1481/2014 and reference dated 03.08.2014 made in SWP No. 1630/2014, noticing the two conflicting judgments rendered by this Court regarding the transfer of government employees, particularly, "as to whether the Jammu and Kashmir Civil Service Regulations providing for a minimum tenure of two years for purposes of transfer or the policy of transfer as framed by the Government vide Government Order No. 861-GAD of 2010, dated 28.07.2010 has any statutory force or flavour which could make it enforceable in law". Mr. M.Y. Bhat, learned counsel appearing for the petitioners argued the case and made legal submissions without referring to the facts of the cases by relying on the judgment of Hon'ble the Supreme Court reported in AIR 2014 SC 263 (T.S.R. Subramanian and Ors. v. Union of India and Ors.). The learned Advocate General argued on behalf of the respondents and contended that no government servant can insist that he be posted in a place for particular period and the Government Order dated 28.07.2010 is only an administrative instructions. 2. Brief facts necessary for answering the reference, as narrated in the writ petitions, are that the petitioners in SWP No. 1476/2014 have challenged the order of transfer dated 08.07.2014, transferring them to Leh and Kargil Districts while modifying the transfer order dated 04.03.2014. In SWP No. 1481/2014 the petitioner has challenged the order of transfer dated 12.07.2014 transferring him from the office of Chief Agriculture Officer, Budgam to the office of Chief Agriculture Officer, Pulwama. Similarly, in SWP No. 1630/2014 the petitioner has challenged the transfer order dated 22.07.2014 transferring him from District Hospital Baramulla to PHC Sultan Daki, Uri. 3. The contention of the petitioners in these writ petitions are mainly that they have been transferred from their original places of posting to the new places within two years from the date of their earlier transfers and the same is in violation of the transfer policy notified in Government Order No. 861-GAD of 2010 dated 28.07.2010, particularly the tenure of posting which is stated to be minimum two years and maximum of three years. The said Government order/transfer policy was held enforceable by a learned Single Judge in the decision of this Court reported in 2011 (4) JKJ 232 [HC] (Sudarshan Kumar Mishra and Ors. v. State and Ors.). This Court held that the said guidelines would form part of Rule 27 of the J & K Civil Services (Classification, Control and Appeal) Rules, 1956 and as far as possible the said guidelines are to be adhered to. In SWP No. 1336/2013, decided on 06.09.2013 reported in 2013 (4) JKJ 297 [HC] (Ghulam Nabi Shah v. State of J & K and Ors.), another learned Single Judge has taken a view that the Government Order/guidelines are only in the nature of executive instructions and therefore not enforceable. 4. In the light of the conflicting decisions, the matter is referred to the larger Bench which we are called upon to answer. 5. The relevant statutory provision regarding the transfer of a government servant, as mentioned in Rule 27 of the J & K Civil Services (Classification, Control and Appeal) Rules, 1956 (For short "the 1956 Rules") reads thus:- "27. Posting and transfers: (1) A member of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. (a) All transfers and postings shall be made by the authority prescribed by Government in this behalf." 6. The guidelines issued pursuant to the Cabinet decision No. 156/12/2010, dated 27.07.2010, which are published through Government Order No. 861-GAD of 2010, dated 28.07.2010, are dealing with the transfer policy to be borne in mind while effecting transfers of government employees. The policy on transfer and postings of the government employees, as notified in the above said Government order, reads as follows:- A. General Principles: 1. It shall be imperative for all the Government departments to maintain a complete database on transfers/postings of their employees for effective implementation of the transfer policy. 2. While effecting the transfers, the eligibility and suitability of the concerned employees and the interest of government work shall be given the utmost priority. The convenience of the employees may also be considered provided it does not affect the interests of the government work. 3. Postings shall be made on a rotational basis to sensitive and non-sensitive (non-field) posts. 2. While effecting the transfers, the eligibility and suitability of the concerned employees and the interest of government work shall be given the utmost priority. The convenience of the employees may also be considered provided it does not affect the interests of the government work. 3. Postings shall be made on a rotational basis to sensitive and non-sensitive (non-field) posts. Every department particularly the Engineering and Finance Departments shall identify sensitive and non-sensitive posts and evolve a roster for posting of officers with the approval of the Minister Incharge. 4. Where both the husband and wife are in government service, they may be posted conveniently as far as possible subject to availability of the post and keeping in view the interest of administration as well. 5. Physically challenged persons may be given convenient posting subject to availability of a post. 6. Orders once issued must be strictly complied with and if it is considered that any order requires modification for some compelling reason, it shall be done only after obtaining approval of the next higher authority. Reversal of transfer orders once made must be a very rare event and to be resorted to only in exceptional cases for which reasons shall be recorded in writing. B. Calendar for Transfers: 1. Transfers shall ordinarily be ordered in the first month of the financial year i.e. in April every year excluding the transfer of the teaching staff and transfers to Ladakh region. 2. Transfers of teaching staff shall be considered at the close of the academic session and must be avoided during the academic session. 3. Transfers for Ladakh region shall be made as per the policy laid down for such transfers by the Ladakh Affairs Department. 4. Persons returning from leave, training or on revocation of suspension or on promotion shall be adjusted against vacant posts during the non-transfer period as far as possible. 5. Where the officer/officers who are to move first are indicated, they shall handover the charge of their offices within seven days of issue of the order. In case, the charge is not handed over on the expiry of seven working days, it shall be deemed to have been handed over automatically. This provision will not, however, apply to such cases where there are specific instructions for giving immediate effect to the transfers. C. Tenure of Postings 1. In case, the charge is not handed over on the expiry of seven working days, it shall be deemed to have been handed over automatically. This provision will not, however, apply to such cases where there are specific instructions for giving immediate effect to the transfers. C. Tenure of Postings 1. The minimum tenure of a Government employee on a post shall be two years and a maximum of three years. 2. The maximum tenure of posting in respect of important projects which are required to be completed in a time bound manner, may be extended upto five years if continuation of any officer is considered necessary. Specific orders for retention of the officer in such cases beyond a period of three years shall be issued with the approval of the Minister Incharge and the reasons for the same shall be recorded. 3. Premature transfers wherever unavoidable in the interest of administration shall be ordered with the prior approval of the Minister Incharge for reasons to be recorded. 4. A government employee holding any post may be transferred even before the completion of minimum tenure if:- (i) the performance of the employee is found to be below job requirement, if there are grounds for initiating enquiry or disciplinary proceedings against him/her; or (ii) 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; or (iii) the transfer is sought on health grounds supported by medical certificates issued by the duly constituted Medical Boards. Such transfers shall be made with the prior approval of the Minister incharge after recording reasons for the same." 7. On perusal of the above norms/policy on transfers, it is evident that while effecting transfers the eligibility and suitability of the concerned employee and interest of the government work shall be given utmost priority. The Convenience of the employee may also be considered provided it does not affect the interest of the government work. The Government shall identify the sensitive and non-sensitive posts and evolve a roster for posting of the employee with the approval of the Minister incharge, particularly in departments of Engineering and Finance. The husband and wife, if both in government service, they have to be posted conveniently as far as possible subject to availability of the post and keeping in view the interest of administration as well. The husband and wife, if both in government service, they have to be posted conveniently as far as possible subject to availability of the post and keeping in view the interest of administration as well. The physically challenged persons are to be given convenient posting subject to availability of the post. The transfer orders once issued, requiring modification for some compelling reasons shall be done after obtaining approval of the higher authority and modification should be effected very rarely by recording reasons. The transfers shall ordinarily be ordered in the first month of the financial year i.e. April excluding the transfer of the teaching staff and transfers to Ladakh region. Transfers of the teaching staff shall be considered at the close of the academic session and the transfers for Ladakh region shall be made as per the policy laid down for such transfers by the Ladakh Affairs Department. The officers who had to move first shall handover the charge of their offices within seven days of the issue of transfer order and if not handed over within seven days, they shall be deemed to be handed over automatically except if there is no direction to handover the charge immediately. The minimum tenure of a government employee on a post shall be two years and the maximum as three years. The maximum can be extended up to 5 years in a given circumstances provided the order retaining the officer is issued with the approval of the Minister in-charge by recording reasons. Premature transfers in the interest of administration can also be ordered with the prior approval of the Minister in-charge. It is also stated therein that a government employee holding any post may be transferred even before completion of minimum tenure if the performance of the employee is found to be below job requirement or if there are grounds for initiating enquiry or disciplinary proceedings against him/her, or it is in the public interest or in the interest of administration to allow the employee to continue on a post for a full tenure; or the transfer is sought on health grounds supported by medical certificates issued by the duly constituted Medical Board. However, such transfers shall be made with the prior approval of the Minister in-charge after recording reasons for the same. 8. However, such transfers shall be made with the prior approval of the Minister in-charge after recording reasons for the same. 8. It is evident from the said guidelines/policy regarding transfers, lot of latitude is given to the administration to effect transfers even within two years on administrative exigencies. 9. Rule 27 of the 1956 Rules clearly states that a member of service or class of service is required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. The said Rules are applicable to all the government servants of the State of Jammu and Kashmir. Hence it is not open to a government servant to say that he/she should be allowed to serve at a particular station for a definite period. Power is vested with the government or the authority concerned to post a government servant on a cadre by way of transfer to any place. The said Rule nowhere mentions that a person transferred or posted must be allowed to serve at the particular station for a minimum period of two years. The guidelines/policy issued through Government order, should be in consonance with the Rule and if we construe that the minimum term of the government servant on a post shall be two years and maximum three years, as mandatory it would conflict with Rule 27 of the 1956 Rules, which, in categorized terms, mandates that a member of a service is required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre and all transfers and postings be made by the authority prescribed by the government. 10. It is well settled legal position that Government orders are only administrative instructions, having no statutory force. The 1956 Rules having been issued in exercise of powers conferred under Sub-Section (1) of Section 3 of the Jammu and Kashmir Civil Servants (Removal of Doubts ad Declaration of Rights) Ordinance, 1956, the same is the statutory rule governing the field. Thus the contention of the learned counsel appearing for the petitioners that minimum two years service is mentioned in the transfer policy through Government Order No. 861-GAD of 2010, dated 28.07.2010, is bound to be adhered to, has no force. Thus the contention of the learned counsel appearing for the petitioners that minimum two years service is mentioned in the transfer policy through Government Order No. 861-GAD of 2010, dated 28.07.2010, is bound to be adhered to, has no force. As already stated, Rule 27 being statutory rule, empowering the government to post a government servant at any time in any place or in any post borne on the cadre, the said transfer policy, particularly the term mentioned therein, can be adhered to as far as possible and the same is only an executive instruction based on which no right could be claimed and no right having been vested, the government servant has no right to seek enforcement. Even for the sake of argument, the policy cannot have any binding force because the policy, if construed as binding, goes contrary to Rule 27. 11. It is well settled in law that executive instructions/Government orders are subject to statutory rules and the legislature, who framed the Rule, cannot delegate its power to the authorized officer or executive and the executive can issue Government orders only within the bounds of the Rules. The legislature has not amended Rule 27 fixing any minimum or maximum tenure to a Government servant to serve in a particular station. In the decision reported in AIR 1961 SC 4 , (Vasanlal Magan Bhai Sanjanwala v. State of Bombay), Hon'ble the Supreme Court has held that the legislature cannot delegate its essential functions which have been entrusted to it by the Constitution. In the decision reported in AIR 1962 SC 97 (Mohammed Hussain Gulam Mohammed v. State of Bombay) it was held that the authorized officer cannot issue order which is contrary to the statute. If the intention of the executive is to fix minimum or maximum tenure to a government servant to serve in a particular station, it can only recommend the legislature to amend the Rule. In the decision reported in AIR 1986 SC 1323 (Trivedi and sons, D.K. v. State of Gujarat), the Hon'ble Supreme Court held that "the rule making authority cannot change the policy of the Act/Regulation". In this case, as on today, Rule 27 is not amended. In the decision reported in AIR 1986 SC 1323 (Trivedi and sons, D.K. v. State of Gujarat), the Hon'ble Supreme Court held that "the rule making authority cannot change the policy of the Act/Regulation". In this case, as on today, Rule 27 is not amended. More over no policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes as held by Hon'ble the Supreme Court in (2007) 5 SCC 317 (Post Master General, Kolkata v. Tutu Das Dutta) and (2007) 2 SCC 491 (Punjab Water Supply & Sewerage Board v. Ranjodh Singh and Ors.). 12. It is also settled proposition of law that transfer is an incidence of service and a government servant is subject to orders of transfer on administrative exigencies. A government servant cannot insist that he is entitled to continue in a particular station/post for a definite period. Interference in the orders of transfer by the Courts are very limited i.e. only on three grounds orders of transfer can be interfered, namely, if the order of transfer is passed in violation of any statutory Rule, or on mala fide reasons or by an incompetent authority. 13. The Government Order dated 28.07.2010 having no statutory force, a government servant cannot compel the government to retain him in a particular post for a period of minimum two years as a matter of right. In the transfer policy itself it is clearly stated that even before the completion of the minimum term, if the performance of the employee is found below the job requirement or if there are grounds for initiating enquiry or disciplinary proceedings against him/her, or it is in the public interest or in the interest of administration to allow the employee to-continue on a post for a full tenure, he can be transferred before the minimum period. Thus administrative exigency is inbuilt in the transfer policy itself and the policy issued can be treated as guidelines to be followed as far as possible by the authority who is vested with the power to transfer. 14. In the decision reported in AIR 1974 SC 555 (E.P. Royappa v. State of Tamil Nadu and Anr.) it is held that in public service transfer is an incident of service. 14. In the decision reported in AIR 1974 SC 555 (E.P. Royappa v. State of Tamil Nadu and Anr.) it is held that in public service transfer is an incident of service. It is an implied condition of service and the appointing authority has wide discretion in the matter. The Government is the best Judge to decide how to distribute and utilize the services of its employees and the power should be exercised honestly, bona fide and reasonably on public interest. In the decision reported in AIR 1986 SC 1955 (B. Vradha Rao v. State of Karnataka and Ors.) it is held that in so far as superior or more responsible posts are concerned, continued posting at one place is not conducive to good administration. In the decision reported in AIR 1993 SC 2444 (Union of India v. S.L. Abbas) it is held in paragraph 7 as follows:- "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 not 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, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right." In AIR 1993 SC 2486 (State of Punjab v. Joginder Singh Dhatt), in paragraph 3, the Hon'ble Supreme Court held thus:- "3. We have heard learned Counsel for the parties. This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused." In (2001) 8 SCC 574 (National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan), at para 5, the Hon'ble Supreme Court held as follows:- "5......it is by now well settled and often reiterated by this Court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place 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 of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned". The power of the Court while dealing with the transfer order is explained by the Hon'ble Supreme Court in the following decisions. (i) In (2004) 7 SCC 405 (State of U.P. And another v. Siya Ram and another), at paragraph 5 the Hon'ble Supreme Court held thus:- "5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. 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 choices 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 inviolation 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......" 15. In the decision reported in (2004) 4 SCC 245 (Union of India v. Janardhan Debanath), in paragraph 9 it was held thus:- "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 another 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 the 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....." 16. The said position is reiterated in the following other decisions:- (i) AIR 2004 SC 4121 (State of U.P. v. Siya Ram). (ii) (2006) 9 SCC 583 (S.C. Saxena v. Union of India). (iii) (2007) 8 SCC 150 (Mohd. The said position is reiterated in the following other decisions:- (i) AIR 2004 SC 4121 (State of U.P. v. Siya Ram). (ii) (2006) 9 SCC 583 (S.C. Saxena v. Union of India). (iii) (2007) 8 SCC 150 (Mohd. Masood Ahmad v. State of U.P.). (iv) (2007) 8 SCC 212 (Chief Commercial Manager, South Central Railway v. G. Ratnam). (v) (2008) 9 SCC 345 (Government of A.P. v. G. Venkata Ratnam). (vi) (2009) 3 SCC 124 (Novartis India Ltd. v. State of W.B). (vii) (2009) 11 SCC 678 (Tushar D. Bhatt v. State of Gujarat). (viii) (2010) 13 SCC 306 (State of Haryana v. Kashmir Singh). (ix) (2011) 12 SCC 137 (Registrar General High Court of Judicature at Madras v. R. Perachi). 17. In the decision of the Hon'ble Supreme Court reported in AIR 2014 SC 263 (supra) it is held that the State Governments are effecting transfers and postings at the whims and fancies of the executive head for political and other considerations and not in public interest. Hence minimum tenure of service is good for the administration and efficiency. Insofar as the State of J & K is concerned, as stated supra, a minimum tenure of two years and maximum tenure of three years is already fixed in Government order dated 28.07.2010 and the said order is a guideline and not having any statutory force. In the said order itself it is stated that premature transfers, wherever unavoidable in the interest of administration, may be ordered on certain contingencies. Hence strict implementation of minimum 2 years and maximum 3 years tenure is not intended in the Government order. In such circumstances, the said Government order will not confer any right of enforcement through Court of law in the light of Rule 27 stated supra. 18. In fine the reference is answered by holding that the Government servant has no enforceable right to insist that he/she shall be permitted to serve for a minimum of two years in a station or post. The reference being answered, the registry is directed to post the writ petitions before the appropriate court for disposal.