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2016 DIGILAW 570 (JK)

Umakant Upadhaya v. Union of India

2016-10-27

ALOK ARADHE, B.S.WALIA

body2016
JUDGMENT : 1. With the consent of learned counsel for the parties, the matter is taken on board. In this appeal, the appellant inter alia has assailed the validity of order dated 02.09.2016 passed by learned Single Judge by which writ petition was dismissed. 2. Facts giving rise to filing of this appeal briefly stated are that the petitioner is serving as constable in Border Security Force, Jammu and posted at Station Headquarter, BSF Jammu which is comprised in Western Command of BSF. The appellant was transferred to Eastern Command by an order dated 30.04.2014 and was posted at HQ North Bengal Frontier. Being aggrieved the petitioner assailed the aforesaid order of transfer in SWP No. 1018/2016 before the learned Single Judge and respondents were directed to accord consideration to the representation of the appellant before relieving him and take appropriate decision having regard to his health condition and applicable service rules. Representation of the appellant was considered sympathetically and he was posted in Jammu in the year 2011. Thereafter by an order dated 25.02.2016, the petitioner was transferred from Jammu to 66 Battalion, BSF at Kadamtala. The appellant challenged the aforesaid order in the writ petition before the Single Judge which was dismissed vide impugned order dated 02.09.2016. 3. Learned counsel for the appellant submitted that the impugned order of transfer has been passed in violation of order dated 25.02.2014 in as much as the petitioner has not completed 12 years of tenure under the Western Command. In this connection, learned counsel for the petitioner has invited attention to clause (a)(f) of the order dated 25.02.2014. It is further submitted that the order of transfer has been passed with non-application of mind in as much as the appellant has not completed 12 years of tenure in the Western Command. 4. On the other hand, Mrs. Sindhu Sharma, learned ASGI submitted that the order dated 25.02.2014 has no statutory force and the representation submitted was considered sympathetically and he is being posted at the place where he can avail medical facilities and appellant has no right to remain posted in Jammu. 5. We have considered the submissions made by learned counsel for the parties and perused the record. 6. It is well settled in law that transfer is an incidence of service. Which employee should be posted where, is a matter for the appropriate authority to decide. 5. We have considered the submissions made by learned counsel for the parties and perused the record. 6. It is well settled in law that transfer is an incidence of service. Which employee should be posted where, is a matter for the appropriate authority to decide. Until and unless the transfer is vitiated by mala fide or is made in violation of any statutory provision, the Court cannot interfere with the order of transfer. The Hon'ble Supreme Court while dealing with the scope of judicial review in the matter of transfer, held that transfer is an incidence of service and normally should not be interfered with by the Court. If any administrative guideline recalling transfer of an employee is violated, at the best the same confers the right on an employee to approach the higher authorities for redressal of his grievances. [See:- Union of India & Ors. v. S.L. Abbas, (1993) 4 SCC 357 , State Bank of India v. Anjan Sanyal & Ors., (2001) 5 SCC 508 , Public Services Tribunal Bar Association v. State of U.P. & Anr., (2003) 4 SCC 104 , State of U.P. & Ors. v. Gobardhan Lal, (2004) 1 SCC 402, Government of Andhra Pradesh v. G. Venkata Ratnam, (2008) 9 SCC 345 and State of Haryana & Ors. v. Kashmir & Anr., (2010) 13 SCC 306 ]. 7. In the background of the aforesaid legal position, it is evident that this Court in exercise of Article 226 of Constitution of India for transfer only the same is not in violation of any statutory provision and admittedly the order of transfer has neither been passed in violation nor same suffers from the vice of mala fide. So far as contention of learned counsel for the petitioner's transfer order that petitioner order has been passed with non application of mind, suffice it to say that aforesaid order is administrative in nature. 8. In view of the preceding analysis, we are not inclined to interfere with the order passed by learned Single Judge. So far as contention of learned counsel for the petitioner's transfer order that petitioner order has been passed with non application of mind, suffice it to say that aforesaid order is administrative in nature. 8. In view of the preceding analysis, we are not inclined to interfere with the order passed by learned Single Judge. However, the appeal is disposed of with liberty to the appellant to submit a fresh representation before the Competent authority with regard to his grievance and if such a representation is filed, the Competent Authority shall consider and decide the same by passing a speaking order within a period of one month from the date of receipt of certified copy of the order passed today. Taking into consideration that learned Single Judge during the pendency of the writ petition had passed an ad interim order, we are inclined to direct that till the decision is taken on the representation of the appellant, no coercive action shall be taken against him. In the aforesaid terms the order of learned Single Judge is modified. Accordingly, the appeal is disposed of.