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2018 DIGILAW 1052 (JK)

Javed Ahmed Kitchloo v. State

2018-12-31

SINDHU SHARMA

body2018
JUDGMENT : 1. Petitioner, who is working in the Education Department and was posted as Incharge Deputy Chief Education Officer, Kishtwar, has assailed his transfer order No.870-Edu of 2018 dated 14.09.2018, by virtue of which he has been posted as Incharge Principal, HSS Dachan, Kishtwar. The transfer order is challenged primarily on the ground, that he has been transferred prematurely in violation of Government Order No.861-GAD of 2010 dated 28.07.2010 and SRO 307 dated 11.07.2018. 2. Learned counsel for the petitioner further states that the order impugned arbitrary mala fide since the order passed by respondent No.1, who had already been transferred vide Government Order No.1362-GAD of 2018 dated 10.09.2018 and as such, also was not competent to pass the transfer order, thus, the order not in public interest. 3. To support his contention, the petitioner has placed reliance upon the judgment of this Court passed in SWP No.130/2018 in case titled Babu Ram vs. State of J&K dated 16.08.2018 in which this Court was of the opinion that Govt. Order No.861-GAD of 2010 has been given statutory colour, as such, transfer could not be made in contravention to the said policy. 4. Mr. Gupta, learned Additional Advocate General appearing for the official respondents, has strongly objected the contention raised by learned counsel for the petitioner and submitted that the Transfer Policy promulgated vide Government Order No.861-GAD of 2010 has already been considered by the Full Bench of this Hon’ble Court in case titled “Syed Hilal Ahmad and ors. v. State of J&K and ors,’ reported as ‘ 2015 (3) JKJ 398 ’ and the Full Bench of this Court has already held that the said Transfer Policy is in the nature of executive instructions and as such, is not binding and cannot be made justiciable in the eye of law. It is further submitted by Mr. Gupta, learned Additional Advocate General, relied upon judgment of this Court in Shafqat Ali vs State of J&K & ors. in SWP No.1598/2018 dated 14.08.2018, that SRO 307 dated 11.07.2018 by which it has been provided that every transfer proposal would be processed in accordance with the provisions of the Jammu and Kashmir Government Business Rules and Transfer Policy notified vide Government Order No.861-GAD of 2010 dated 28.07.2010. in SWP No.1598/2018 dated 14.08.2018, that SRO 307 dated 11.07.2018 by which it has been provided that every transfer proposal would be processed in accordance with the provisions of the Jammu and Kashmir Government Business Rules and Transfer Policy notified vide Government Order No.861-GAD of 2010 dated 28.07.2010. This SRO, was in fact, enacted to make provision for delegation of powers to the officers with regard to the transfers of the officers working in the hierarchy of the Government and as such are only executive guidelines, thus, cannot be said to have given statutory colour to the Transfer Policy. 5. Petitioner’s transfer order was issued by the competent authority. Lastly rebutting the contention raised by the petitioner?s counsel was that the authority transferring the petitioner was incompetent to do so because he was himself transferred vide Government Order No.1362-GAD of 2018 dated 10.09.2018. Mr. Gupta, learned AAG submitted that the authority was well within the powers to transfer the petitioner. Since respondent No.3 was still holding the said post as the new incumbent on the said post has not joined, as such, the transfer by respondents-authority was neither arbitrarily nor illegal and not against the provisions of the Transfer Policy. 6. Mr. Sethi, learned senior counsel appearing on behalf of respondent No.3, submitted that the transfer being an incidence of service and it is for the administrative authority to decide where the person is posted. Reliance is placed on case titled “Kendriya Vidyalaya Sangthan v. Damodar Prasad Pandey and others’, reported as “ 2004 (12) SCC 299 ’, ‘Shilpi Bose and others v. State of Bihar’, reported as ‘1991 Supp (2) SCC 659’. 7. 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 one place to 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. 8. The short question is whether the petitioner has any legal right to challenge his transfer, which otherwise, respondent No.1 is competent to do so. This question was considered by the Full Bench of this Court in Syed Hilal Ahmad and ors. 8. The short question is whether the petitioner has any legal right to challenge his transfer, which otherwise, respondent No.1 is competent to do so. This question was considered by the Full Bench of this Court in Syed Hilal Ahmad and ors. v. State of J&K and ors, reported as 2015 (3) JKJ 398 holding that the transfer is an incidence of service and the Transfer Policy issued vide Govt. order No.861-GAD of 2010 dated 28.07.2010 as not justiciable, as held by the Apex Court in the number of cases. Relevant extract of the same is reproduced hereunder:- “It is also settled proposition of law that transfer is an incidence of service and a government servant is subject to orders of transfer on administrative exigencies. A government servant cannot insist that he is entitled to continue in a particular station/post for a definite period. Interference in the orders of transfer by the Courts are very limited i.e. only on three grounds orders of transfer can be interfered, namely, if the order of transfer is passed in violation of any statutory Rule, or on mala fide reasons or by an incompetent authority.” “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….” 9. After having heard learned counsel for the parties and considering the matter with reference to the Full Bench judgment of this Court in Syed Hilal Ahmed’s case (Supra), Government Order No.861-GAD of 2010 dated 28.07.2010 is a mere executive instructions as has already been held by this Court in Shafqat Ali vs. State of J&K & ors. having no statutory force. having no statutory force. Thus, in view of the law that the Government servant has no enforceable right to insist that he/she shall be permitted to serve for a minimum period of two years on a station/posting. Thus, the grievance of the petitioner being exactly to allow him to serve for minimum tenure is without any merit. 10. Petitioner’s plea that his transfer is in violation of the Transfer Policy and as such, arbitrarily, illegal and for mala fide reason is not sustainable. The contention of the petitioner that the order has been passed by an authority not competent to pass such an order, is also without any merit in view of the fact that the order has been passed by the Competent authority. 11. Further contention of the counsel for the petitioner that in view o the judgment of this Court in Shafqat Ali vs State of J&K in SWP No.1598/2018 and Babu Ram vs. State of J&K in SWP No.130/2018, the matter is required to be referred to a larger Bench. 12. Since matter has already been considered by Full Bench of this Court in Syed Hilal Ahmed & ors. Vs. State of J&K & ors, ‘ 2015 (3) JKJ 398 (HC)’, I am of the opinion that no case is made out for reference to the larger Bench and thus, the Full Bench Court has already dealt with this issue elaborately and held that the transfer is an incident of service. Government Order No.861-GAD of 2010 dated 28.07.2010 are also of the nature of executive instructions only as has been held in SWP No.1598/2018. Paragraph-17 of the judgment. Paragraph 17 is reproduced as under:- ‘17. It may be noted that in pursuance of Section 2 of the Jammu and Kashmir Delegation of Powers Act, 2018, the Governor vide SRO 281 dated 23.06.2018 was pleased to delegate the powers of ministers in respect of different matters to the officers shown in Schedule-I of the notification. The powers of the Government were also delegated in favour of administrative secretaries with respect to certain matters. This SRO was purely for the purposes of delegating the powers of government to different officers and nothing more. The powers of the Government were also delegated in favour of administrative secretaries with respect to certain matters. This SRO was purely for the purposes of delegating the powers of government to different officers and nothing more. In partial modification of the aforesaid SRO, respondent No.1 promulgated SRO 307 dated11.07.2018, whereby it was provided that every transfer proposal would be processed in accordance with the provisions of the Jammu and Kashmir Government Business Rules and the Transfer Policy notified vide Government Order No.861-GAD of 2010 dated 28.07.2010. This SRO, has, in essence, made a provision for delegation of powers to the officers with regard to the transfer of officers working in the hierarchy of the government. By no stretch of imagination or reasoning, the aforesaid SRO can be said to have clothed the transfer policy of the government with statutory flavour. The transfer policy continues to be in the realm of executive instructions issued by the government to give SWP No.1598/2018 Page 11 of 14 effect to Rule 27 of the Rules of 1956 as also Rule 21 of the Rules of 2008 in the case of members of the J&K Administrative Service.’ 13. Thus, for the reasons stated above, this writ petition against the transfer policy is without any merit and is, accordingly, dismissed.