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2017 DIGILAW 559 (JK)

Mohd. Ayaz Khan v. State

2017-08-04

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : 1. Petitioner challenges his order of transfer dated 27.07.2017 whereby he has been transferred as Forest Guard from Nar Beat to Kallar Morha Beat and private respondent no. 5, Mushtaq Ahmed, brought in his place. 2. It is stated that the private respondent No. 5 could not have been transferred in the place of the petitioner, who was working at Nar Beat inasmuch as, the Forest Range Officer, Surankote had, vide his communication dated 08.05.2017, highlighted the illegal acts perpetuated by the said respondent whereby he had permitted illegal construction in the forest land in Nar Block. 3. It is further stated that it was, on that basis, that the private respondent No. 5 stood transferred from Nar Beat and that the petitioner was brought to work there as such. 4. Learned counsel for the petitioner urged that bringing back such a tainted person to the same place from where he had originally been transferred was not in the interest of administration and, therefore, the petitioner ought not to have been displaced. 5. The scope of powers exercisable by the court under Article 226 of the Constitution of India in matters of transfer is no longer res-integra. It is a well settled principle of law that an orders of transfer can be interfered with by courts if the same are questioned on the ground of mala-fides or lack of jurisdiction or if the same is otherwise contrary to statutory rule governing such transfers. 6. In State of U.P. and Another vs. Siya Ram and Another, (2004) 7 SCC 405 , the Apex Court has held as under:- “...........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 Corporation Ltd. vs. Shri Bhagwan, (2001) 8 SCC 574 .” 7. In the case of Union of India and Others vs. 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. 8. In Rajendra Singh and Others vs. State of U.P. and Others, (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 vs. 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 mala-fide. 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. 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. 9. In Shanti Kumari vs. Regional Deputy Director, Health Services, Patna, (1981) 2 SCC 72 , the Apex Court has held as under:- “2. Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The courts cannot interfere in such matters. Shri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant.” 10. In the present case, none of aforementioned grounds exist, which would warrant exercise of extraordinary jurisdiction of this court. In the absence of there being any mala-fides against the officers at the helm of affairs, who have issued the order dated 27.7.2017, it cannot be said that the order impugned is, in any manner, not in the interest of administration. 11. For the reasons mentioned above, the petition is found to be without any merit and is, accordingly, dismissed along with connected MP.