JUDGMENT : Tashi Rabstan, J. Petitioner, working as Assistant Accounts Officer in Finance Department of J&K State, is aggrieved of Order No. 108-Acctts. of 2016, dated 7th April 2016, issued by Director General, Accounts and Treasuries, Finance Department-respondent no. 2 herein, whereby he has been transferred from PW (R&B) Division Chadoora to the office of Additional Director, Sericulture, Srinagar, Kashmir. He is also aggrieved of Order No. 01-CHD of 2016-17, dated 11th April 2016, whereby petitioner has been relieved and directed to report his new place of posting. 2. The aforementioned orders have been thrown to challenge on the ground that petitioner has been singled out in terms of impugned transfer order, which is based on favouritism and nepotism and based on mala fide and that the impugned order has been passed in violation transfer policy notified in Government Order No. 195-F of 2010, dated 24th June 2010. 3. Heard and considered. 4. Learned counsel for petitioner during course of argument refers to Rajendra Roy v. Union of India and another [AIR (SC) 1236 (1993)] and Sarvesh Kumar Awasthi v. U.P. Jal Nigam and others [(2003) 11 SCC 740], to contend that impugned transfer order is based on mala fide and in violation transfer policy contained in Govt. Order No. 195-F of 2010, dated 24th June 2010. 5. Shorn off details and discussions relating to case set up by petitioner in writ petition on hand, it would be appropriate to say that trite law on subject is that transfer is an incidence of service and 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. 6. According to learned counsel for petitioner impugned transfer order is violative of transfer policy and guidelines. So far as plea of petitioner with regard to transfer policy is concerned, the same is not sustainable for the reason that the transfer policy promulgated by Government is an executive order, having no statutory flavour, as such, cannot be enforced by way of writ of mandamus.
So far as plea of petitioner with regard to transfer policy is concerned, the same is not sustainable for the reason that the transfer policy promulgated by Government is an executive order, having no statutory flavour, as such, cannot be enforced by way of writ of mandamus. Policy decisions of the Government are in the shape of executive instructions and Government, in peculiar facts and circumstances, is well within its competence to modify or debate in the interest of 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 normally cannot interfere with such orders as a matter of routine. 7. The order impugned, as is discernible from its bare perusal, is general order effecting transfers of other officials as well, as such, cannot be called to be either mala fide or arbitrary and 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. 8. A Division Bench of this Court in Anil Kumar Prabhakar v. State, 2014 (3) JKJ 346 [HC] has observed that the transfer policy is in the nature of non-statutory administrative instructions and does not create any enforceable right. 9. In State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 , it has been held that transfer is prerogative of authorities concerned and the Courts should not normally interfere therewith. It would be advantageous to reproduce paragraphs 7 and 8 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.
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. 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer." 10.
In Union of India v. S.L. Abbas, AIR 1993 SC 2444 , it has been held: "7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides 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 a legally enforceable right." 11. 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 of the Constitution of India, is very limited. What is held by the Supreme Court in State of Haryana v. 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." 12. In the case in hand, neither there is any challenge to the competence of authority to issue the transfer order nor is there any allegation of violation of Statutory Rule. Precisely impugned transfer order has been assailed on the ground of non-adherence to the transfer policy.
In the case in hand, neither there is any challenge to the competence of authority to issue the transfer order nor is there any allegation of violation of Statutory Rule. Precisely impugned transfer order has been assailed on the ground of non-adherence to the transfer policy. In support of the case set up by petitioner the citations referred by learned counsel for petitioner are contra distinguished from the facts and circumstances of the present case. Besides, the Full Bench of this Court in Syed Hilal Ahmad and Ors. v. State of J&K and Ors. reported in 2015 (3) JKJ 398 [HC]: 2015 SLJ 1, has set at rest the matters relating to transfer of government servants, while holding that the Government servant has no enforceable right to insist that he/she be permitted to serve for definite/specific period in a particular station or a post and that the Government policy, if any, as regards transfers is an executive order, having no statutory force, as such, cannot be enforced through court of law. 13. Apart from the above, it is very sad state of affairs that petitioner like persons are trying to 'Jude the responsibilities that is cast upon them the moment they join the government service. It cannot be said that it is unknown to everyone that today's youth, particularly in J&K State, which has limited resources, are facing alarming unemployment and they are ready to serve and work not only in any part of the Country but outside the Country as well. Such unemployed youth leave their families here and work 1000 kilometres, in some cases overseas, away from their families, whether their families are in distress or ease. Then how can petitioner, like persons/employees, be permitted to make lame excuses of not working or serving the State and its people even at a distance of, say, 1.0 or 20 kilometres, within or outside their native District. In the present case, petitioner is not ready and willing to work at easy-approach of place of posting, which is less than 20 kilometres from his present place of posting, muchless outside the Kashmir Division. Such practise should be deprecated with iron hand. 14. That being the situation and in view of the above discussion, I do not find any merit in the petition and the same is accordingly, dismissed, with connected MP.