J&K Central Non-Gazetted Electrical Employees Union, Rajouri v. State of J&K
2017-09-13
DHIRAJ SINGH THAKUR
body2017
DigiLaw.ai
JUDGMENT : Dhiraj Singh Thakur, J. 1. The instant application has been filed by the petitioner claiming itself to be the President of J & K Central Non-Gazetted Electrical Employees Union, Rajouri and authorized to represent the Electrical Employees like Meter Readers and Technicians-III/TV, working in the EM & RE Circle, District Rajouri. They are aggrieved of the order dated 04.08.2017, passed by the Chief Planning Officer, Rajouri, whereby the said officer conveyed approval to the Executive Engineer, EM & RE, Rajouri, for issuance of transfer orders in respect of Meter Readers and Technicians-III/TV working in District Rajouri. 2. Based upon the aforesaid communication, another order dated 12.08.2017 was passed by the Executive Engineer. Elect. M & RE Division, Rajouri, whereby the Meter Readers and Technicians-III/TV have been transferred. This order also is impugned in the present writ petition. 3. The orders impugned are challenged on the grounds firstly that the same was issued for mala fide reasons, inasmuch as, 20 Meter Readers/Technicians-III/IV had been retained as they were closely related or known to respondent No. 2 i.e. District Development Commissioner, Rajouri. 4. The orders impugned are also challenged on the ground that the same were not issued in the interest of administration but in the interest of their own favorites and that the power exercised by respondent No. 2 had been misused and was contrary to the spirit of powers exercisable in the Single Line Administration. 5. With a view to establish and succeed in a case, based upon mala fides, the person, issuing the order impugned, should have been made a party respondent in person also. Specific instances should have also been reflected in the petition to establish that the order impugned had been passed for mala fides considerations. However, in the present case, all this is conspicuously absent. The allegations of favouritism in order to accommodate the blue eyed persons by the official respondents are vague and bereft of specific instances, which could lead this court into firmly believing that the orders, in fact, had been passed for mala fide reasons. It appears that the said ground has been taken with a view to somehow carve out a ground of mala fides with a view to successfully challenge the order of transfer impugned in the present petition. 6.
It appears that the said ground has been taken with a view to somehow carve out a ground of mala fides with a view to successfully challenge the order of transfer impugned in the present petition. 6. From the above, it can be seen that the petitioner has failed to make out a case for interference by the court on the grounds of mala fides. 7. The second point urged by the learned counsel for the petitioner was that the power to transfer the Meter Readers and Technicians-III/TV lay exclusively with the Executive Engineer, who is the Head of the Department at the District Level and therefore, he should have acted independently without signing on the dotted line at the behest of the District Development Commissioner. 8. This argument however, is not legally tenable, inasmuch as, once it is accepted that the District Development Commissioner exercises administrative control overall Departments in the District under the Single Line Administration system, as reflected in various government orders and circulars, which find a mention in the communication dated 04.08.2017, then the orders impugned cannot be questioned on the ground that the power even then vested with the Development Commissioner, ought to have been exercised exclusively by the Executive Engineer. 9. It is well settled that transfer is an exigency of service. An employee does not have any indefeasible right to remain posted at a particular place ad-infinitum or seek a posting of his choice. It is also no longer res integra that orders of transfer can only 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. 10. In State of U.P. & Anr. v. Siya Ram & Anr., (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 Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574 ." 11. 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. 12. 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 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-today 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-today 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." 13. In Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna & Ors., (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." In my opinion, there is no illegality in the orders impugned. The petition is found to be without any merit and is accordingly dismissed along with connected MP.