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2016 DIGILAW 385 (JK)

Krishan Chand and others v. State and Others

2016-07-21

RAMALINGAM SUDHAKAR

body2016
JUDGMENT 1. None appears in this matter for several hearings beginning from 20.02.2015 and the matter was adjourned from time to time but in the meanwhile, it appears from a Certificate produced by respondent-counsel that petitioner No. 1 – Krishan Chand died on 12.10.2015, so the proceedings insofar as petitioner No. 1 is concerned abates. 2. Insofar as petitioner Nos. 2 to 4 are concerned, the grievance is that the order of transfer is actuated by mala fides and to harass the petitioners. The further grievance is that the transfer is mala fide and it is contrary to the transfer policy of the Government. 3. Respondents’ counsel relies upon Full Bench Judgment passed by this Court in SWP No. 1476/2014 titled “Syed Hilal Ahamd and ors. v. State and ors.” decided on 31.08.2015. Relevant portion of the judgment reads as follows: “15. 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, bonafide 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. 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. 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. 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 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 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 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. 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..” 17. 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) 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. 19. 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. 19. 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.” 4. In view of the said decision which is binding on this Court, the petitioners cannot continue the same post by virtue of interim order of this Court. Since the transfer in the present case is of the year 2013 and more than three years have already gone, the petitioners 2 to 4 can at best continue if they make a request to the Department concerned for retention in a particular place subject to relevant rules in this regard. They are entitled to make a representation, if they choose to. The relief of quashing the transfer order at this point of time has no relevance as it is pointed out by respondents’ counsel that petitioner Nos. 2 to 4 have joined the transferred place of posting and she has instructions to say so and the same is recorded. 5. Appeal is disposed of as above. 6. Interim direction dated 04.06.2013 shall stand vacated.