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2016 DIGILAW 435 (JK)

Pritam Chand v. State of J&K

2016-08-22

DHIRAJ SINGH THAKUR

body2016
JUDGMENT : Dhiraj Singh Thakur, J. 1. The petitioner is aggrieved of his transfer and posting as Head Master, High School, Mallah and thus, questions the order impugned dated 20.7.2016. The ground of challenge is that he is to retire in the month of March, 2017 and further that he is handicapped inasmuch as his right arm is amputated. By virtue of order dated 16th of August, 2016, this Court had stayed the operation of the impugned transfer order dated 20.7.2016 qua the petitioner while at the same time had granted liberty to the competent authority to issue an appropriate modification so that the chain in the transfer order is not disturbed. 2. Objections have been filed by the private Respondent No. 4 wherein it is stated that the petitioner had concealed material facts at the time of filing of petition and obtained the interim order in his favour. Reference in this regard was made to the averments made in the petition to highlight the fact that the petitioner had concealed the fact that he stood relieved from his place of posting and that the private Respondent No. 4 had joined the office on 22.7.2016 as ZEPO Sunderbani. Not only this, the certificate dated 17th of August, 2016 issued by the Zonal Education Officer, Sunderbani (Rajouri), it is reflected that the private Respondent No. 4 had not only joined as ZEPO, Sunderbani but had also been paid the salary for the month of July, 2016. Another document placed on record by the private respondent is the relieving order dated 22.7.2016, which reflects that the petitioner stood relieved and the fact that the private respondent had joined his duties as ZEPO, Sunderbani on 22.7.2016. The order of transfer had, thus, already been executed and implemented. 3. In reference to the documents aforementioned, it can be seen that the petitioner had projected in the petition that he was still serving as ZEPO, Sunderbani when the fact of the matter was that the petitioner stood relieved and the private Respondent No. 4 had since joined as ZEPO, Sunderbani. 4. On facts, it does appear that the petitioner did not project the facts as it existed on the date of the filing of the petition. 4. On facts, it does appear that the petitioner did not project the facts as it existed on the date of the filing of the petition. The mere fact the petitioner is on the verge of retirement is not by itself a ground on which the courts can interfere in the orders of transfer, which are ordered in the interest of administration. 5. While it is true that the petitioner is a person, who suffers from some disability, yet it appears that his present place of posting is not more than 10 KMs away from Sunderbani. Moreover, learned counsel for the private respondent did highlight the fact that the place where the petitioner has now been transferred i.e., High School, Mallah is a native place of the petitioner. 6. The scope of judicial review in transfer matters is no longer res-integra. It is settled law that a transfer order, unless shown to be a mala fide exercise of power, in violation of a statutory provision or passed by an incompetent authority, is not open to interference by the court. 7. In State of U.P. & Anr. v. Siya Ram & Anr., (2004) 7 SCC 405 , the Apex Court in para 5 has held as under:- "5.......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. This position was highlighted by this court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574 ." 8. In the case of Union of India & Ors. This position was highlighted by this court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574 ." 8. In the case of Union of India & Ors. v. S.L. Abbas, (1993) 4 SCC 357 , the Apex Court while dealing with the guidelines framed by the Government of India regarding couple transfers held that the guidelines/administrative instructions do not create any enforceable right in the employees. The said guidelines are in the nature of instructions and do not have any statutory force. 9. In Rajendra Singh & Ors. v. State of U.P. & Ors., (2009) 15 SCC 178 , the Apex Court, yet again, reiterated the aforementioned principles and in paragraph 9 of the judgment, held as under:- "9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar, this court held: "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders." Considering the limited scope of interference in law by the courts in the matters of transfer, I do not find any merit in the petition, which is accordingly dismissed along with connected applications. Interim direction dated 16.8.2016 shall stand vacated.