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2016 DIGILAW 247 (JK)

Gulzar Aziz Wani v. State

2016-05-03

ALI MOHAMMAD MAGREY

body2016
JUDGMENT : Ali Mohd. Magrey, J. 1. Petitioner is substantively holding the post of Forest Guard in the respondent department, has questioned the order of transfer and posting made in terms of Order No. DFO/SPN/74/A-78/A/Estt., dated 19.04.2016 on the grounds detailed out in the petition with particular reference of having been transferred frequently. Brief facts: 2. Petitioner, initially has been transferred from Chawan Block to Numblen Block, vide Order No. 3212-13, dated 03.03.2014, having continued only five months has again been transferred from Numblen Block to CP Ghusoo, vide Order No.1445-47/Fgd, dated 05.08.2014. Petitioner has again been transferred from CP Ghusoo to I/C Beat Guard, Sangarwani vide Order No.2401-04/Estt., dated 21.10.2014 and thereafter from Beat Guard, Kehroot to I/C Beat Guard Numblen, having continued there for some time, petitioner has again been transferred from Numblen to Sangerwani vide order dated 07.12.2015 and now in terms of impugned Order No. DFO/SPN/74/A-78/A/Estt., dated 19.04.2016 from Sangerwani Block to I/C Beat Guard Nagwan Thairna Block. 3. Learned counsel for the petitioner submits that though transfer is incidence of service and the Government/competent authority has the power to decide how to distribute and utilize the services of its employees. It is submitted that this power must be exercised honestly, bona-fide and reasonably. It is further submitted that this power should be exercised in public interest and 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. It is averred that frequent transfers without sufficient reasons to justify such transfers cannot but be held as mala-fide. Learned counsel for the petitioner has referred to and relied upon the Judgments of Supreme Court and the High Court of J&K reported in AIR 1986 SC 1955 , AIR 2014 SC 263 and Board of School Education, J&K v. Mohd. Altaf Dar & Anr. 2008 (1) JKJ 530 [HC] : JKJ Soft JKJ/21441. 4. Since the 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. 5. 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. 5. Full Bench of this Court while deciding reference made in a bunch of writ petitions in the lead case SWP No. 1476/14, titled 2015 (3) JKJ 398 [HC] Syed Hilal Ahmad v. State & Ors. decided on 31.08.2015, has settled the issue with respect to enforcement of executive instructions/Government orders. It is well settled legal position that Government instructions are not having statutory force. It is also settled in law that executive instructions/government orders are subject to statutory rules. Executive instructions cannot supplement the rules. The issue is no more res integra and has been settled by the Supreme Court in catena of judgments. The Full Bench of this court while reiterating the observations of Supreme Court has also held that the executive instructions/government orders are subject to statutory rules. The relevant paras 11, 12 and 18 of the judgment are reproduced as follows : 11. "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 and 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 Govt. 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. 12. 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. 12. 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. Moreover 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 & Ors.). 18. 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. 18. 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". In view of above, the writ petition being meritless, is dismissed alongwith connected MPs.