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2016 DIGILAW 348 (JK)

Sanjeev Mangotra v. State

2016-07-11

B.S.WALIA, RAMALINGAM SUDHAKAR

body2016
JUDGMENT : B.S. WALIA, J 1. Instant Letters Patent Appeal has been filed against judgment dated 11.05.2016 rendered by the learned Writ Court dismissing SWP No. 930/2016 titled ‘Sanjeev Mangotra vs. State of J&K and ors’ whereby challenge was made to Government Order No. 836-DSEJ of 2016 dated 16.02.2016 transferring the appellant to Girls Higher Secondary School Billawar. 2. Brief facts of the case leading to the filing of the instant Letters Patent Appeal are that the appellant, who was working as Lecturer, Political Science, Girls Higher Secondary School R.S.Pura was transferred to the Higher Secondary School Bani vide Government Order No. 368-Edu of 2015 dated 28.07.2015 against available vacancy. In the meantime, respondent No.4 who was awaiting orders of posting in the office of respondent No.2., on representation by his wife for posting of her husband to Jammu city on ground of their two minor children being medically handicapped (hearing impaired) was transferred and posted at HSS Bani. Consequentially, appellant, who had been transferred to HSS Bani from R.S.Pura vide order 28.07.2015 was not allowed to join on account of the post against which he had been transferred had already been filled up. In the circumstances, the appellant was attached in the office of respondent No.2 awaiting adjustment. 3. While appellant was awaiting orders of adjustment in the office of respondent No.2, order dated 14.08.2015 was passed by respondent No.2 directing that all Lecturers, who were awaiting adjustment etc would be deemed to have been relieved and were to report to the office of concerned Chief Education Officer. Consequent thereto, the appellant reported in the office of respondent No.3, but was not given any posting on account of non availability of vacant post as evident from statement Annexure D dated 18.09.2015 issued by respondent No. 3. Thus, the appellant was rendered surplus due to non-availability of vacancy of Lecturer. 4. When the appellant was attached in the office of respondent No.3 and had been rendered surplus due to non availability of vacancy of lecturer, impugned order No. 836-DSEJ of 2016 dated 16.02.2016 i.e. Annexure E came to be passed by respondent No.2 transferring the appellant to Government Higher Secondary School Billawar(K). Pursuant thereto, the appellant was relieved by respondent No.3 and was directed to report to the Principal Government Higher Secondary School Billawar (K) for further duties. 5. Pursuant thereto, the appellant was relieved by respondent No.3 and was directed to report to the Principal Government Higher Secondary School Billawar (K) for further duties. 5. Grievance of the appellant is that he is suffering from Poly-Arthritis of small and large joints and on being referred to the Standing Medical Board GMC Jammu was issued a certificate of his requiring regular check-up as also to avoid prolonged travel and severe exertion in view of his health condition. In the circumstances, the appellant filed SWP No.930 of 2016 which was dismissed by the learned Writ Court inter alia on the ground that an order of transfer could not be interfered with by the Courts except where the same was questioned on the ground of mala-fides or lack of jurisdiction or on account of same being contrary to statutory rules governing such transfers. However, liberty was granted to the appellant to move representation, if so advised before the concerned authorities expressing his difficulty. 6. The judgment of the learned Writ Court has been challenged inter alia on the ground that the case of the appellant was distinguishable, inasmuch as the appellant was having medical problem and it had been duly opined by the Standing Medical Board that in view of his medical condition, the appellant was required to undergo regular check-up besides was advised to avoid prolonged travel and severe exertion. 7. Notice. Mr. Ravinder Gupta, learned AAG accepts notice and states that transfer is a condition of service made in exigency of service and no relief could be sought to enforce guidelines/administrative instructions issued by way of transfer policy as the same did not create any enforceable right. Besides, the learned Writ Court had granted liberty to the appellant to move representation before the concerned authority expressing his difficulty. In the circumstances, learned AAG submits that at this stage, it would be appropriate if the appeal was disposed of by directing the competent authority to decide the representation if not already moved by the appellant to be submitted by the appellant before the competent authority within a stipulated period of time. 8. In the circumstances, learned AAG submits that at this stage, it would be appropriate if the appeal was disposed of by directing the competent authority to decide the representation if not already moved by the appellant to be submitted by the appellant before the competent authority within a stipulated period of time. 8. We have heard learned counsel for the parties and find that in view of settled law as laid down in State of U.P and anr vs. Siya Ram and anr, reported in (2004) 7 SCC 405 , no government servant has any legal right to be posted forever at any one particular place or place of his choice since transfer of an employee appointed to the class or category of transferable posts from one place to other is not only an incident, but also a condition of service, necessary too in public interest and efficiency in public administration and that unless an order of transfer was shown to be an outcome of mala-fide exercise of power or was in violation of statutory provisions prohibiting any such transfer, the Courts normally could not interfere with such orders as a matter of routine. Besides, a transfer policy was in the nature of guidelines which as per decision of Hon’ble Supreme Court in Union of India and ors vs. S.L.Abbas, (1993) 4 SCC 357 did not create any enforceable rights in the employees as the same were in the nature of instructions and did not have any statutory force. 9. After hearing learned counsel for the parties, we find that in the light of the position as noted above, there is no legal infirmity with the order of the learned Writ Court, more so, in view of liberty having been granted to the appellant to move representation, if so advised before the concerned authorities expressing his difficulty for consideration. 9. After hearing learned counsel for the parties, we find that in the light of the position as noted above, there is no legal infirmity with the order of the learned Writ Court, more so, in view of liberty having been granted to the appellant to move representation, if so advised before the concerned authorities expressing his difficulty for consideration. Accordingly, the instant Letters Patent Appeal is disposed of with a direction to respondent No.2 to consider and decide the representation / fresh comprehensive representation to be submitted by the petitioner in addition to the representation already filed along with the certified copy of this order which shall be by respondent No. 2 by passing a speaking order and by taking into account the medical condition of the appellant as also recommendation of the Standing Medical Board within a period of two weeks from the date certified copy of this order along with fresh representation if any is submitted to respondent No.2. Letters Patent Appeal stands disposed off in aforementioned terms. No order as to costs.