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2018 DIGILAW 631 (JK)

Shafqet Ali v. State of J&K

2018-08-14

SANJEEV KUMAR

body2018
JUDGMENT : 1. Vide Govt. order No.929-GAD of 2012 dated 04.09.2012, the petitioners, amongst others, were appointed to the Junior Scale of Jammu & Kashmir Administrative Service. As per the petitioners, petitioner No.1 was appointed as Block Development Officer, Marmat (Doda) in the month of Jan., 2014 and thereafter shifted as Head Quarter, BDO, Jammu in May, 2015. He was posted as Tehsildar, Nazool in August, 2016 and then Deputy PRO in the office of Custodian General, as is evident from Govt. Order No.39-Rev(GAZ) of 2018 dated 16.02.2018. Vide Govt. Order No.89-Rev(GAZ) of 2018 dated 06.04.2018 he was posted as Tehsildar, Mandal. So far as petitioner No.2 is concerned, she was Commercial Taxes Officer from the year 2014-2016 and thereafter her services were placed at the disposal of the Revenue Department where, in August, 2016 she was posted as Tehsildar, Relief Organization (Migrant). However, in the month of February, 2018 vide Govt. Order No.39-Rev(GAZ) of 2018 dated 16.02.2018, she was transferred from the Relief Organization (Migrant) and posted as Tehsildar, JDA. This is how the petitioners have given the account of their postings of last couple of years in the writ petition. 2. In this petition, filed by both the petitioners jointly, the petitioners have assailed the validity of Govt. Order No.1237-GAD of 2018 dated 04.08.2018 (impugned order) on the ground that the government order impugned whereby both the petitioners have been transferred and their services have been placed at the disposal of Secretariat is illegal, arbitrary and contrary to the professed policy of the respondents that the Junior KAS Officers shall be posted in different departments of the government on rotation and ordinarily shall be allowed to continue for the minimum tenure of two years in a particular department before being shifted to other department. 3. Mr. B.S.Salathia, learned senior Advocate appearing along with Ms. Meenakshi Salathia, Advocate, vehemently submits that the respondents in the absence of a rationalized policy/guidelines/criteria based on merit-suitability have been indulging in pick and choose for the purposes of posting of Junior KAS officers in different departments. 3. Mr. B.S.Salathia, learned senior Advocate appearing along with Ms. Meenakshi Salathia, Advocate, vehemently submits that the respondents in the absence of a rationalized policy/guidelines/criteria based on merit-suitability have been indulging in pick and choose for the purposes of posting of Junior KAS officers in different departments. The main thrust of the argument of the learned senior counsel is that as per the professed policy of respondent No.1, the officers who have been appointed to the Junior KAS are required to be transferred from one department to another on rotation and shall ordinarily be allowed to complete a tenure of two years in a department but the same is being flouted by the respondents with immunity. It is alleged that the respondents are accommodating their blue eyed persons by giving them prize posting by adjusting them in the personal sections of the Advisors to the Hon’ble Governor. A special attention in this regard was invited by the learned senior counsel to paragraph (ii) of the impugned order. There is also a reference made by the learned counsel for the petitioner to Govt, Order No.1218-GAD of 2018 dated 02.08.2018, whereby two junior KAS Officers, namely, Malik Suhail Ahmad and Ashwani Hansa have been posted as Under Secretary in the J&K Services Selection Board, who as per the petitioners, though belong to the officers of 2012 batch have not been rotated in the matter of their postings. Lastly, the learned senior counsel for the petitioners placed strong reliance upon interim orders passed by Co-ordinate Benches of this Court in SWP Nos.335/2018, 452/2018 & 529/2018 to contend that the aforesaid interim orders have been passed by the different Benches of this Court under similar set of circumstances and that this Court on the ground of parity and with a view to assure consistency, uniformity and predictability must also pass the same directions. 4. While reminding this Court of its onerous duty to maintain the judicial discipline, the learned senior counsel invited attention of this Court to a judgment rendered by the Supreme Court in the case of Vishnu Traders v. State of Haryana and others, 1995 (Sup1) SCC 461. 4. While reminding this Court of its onerous duty to maintain the judicial discipline, the learned senior counsel invited attention of this Court to a judgment rendered by the Supreme Court in the case of Vishnu Traders v. State of Haryana and others, 1995 (Sup1) SCC 461. It was, thus, emphasized that whatever be the merits of the controversy involved in the petition, it would be the duty of the Court to follow the interim directions passed by this Court in similar matters for the sake of consistency, uniformity, predictability and certainty of judicial approach. Learned senior counsel was at pains to emphasize the aforesaid aspect more than justifying merits of the controversy involved in this petition. 5. I have heard learned counsel for the petitioner and perused the record. I, also, had the advantage of hearing Mrs. Seema Shekhar, Sr. AAG who was incidentally present in the Court and represents the General Administration Department. 6. Admittedly, the petitioners are the Junior Scale KAS Officers (cadre officers borne on J&K Administrative Service) and are governed by the Jammu & Kashmir Administrative Service Rules, 2008 (hereinafter referred to as “the Rules of 2008). The posting of cadre officers are regulated by Rule 21 of the Rules of 2008. The relevant extract of the Rules of 2008, for facility of reference, is reproduced hereunder:- “21. Posting of Cadre Officers (1) The posting of the cadre officers shall be made against the cadre posts or such posts as are reckoned against the deputation reserve shown in Schedules III-A, IV-A, V-A and VI-A, annexed to this notification.” 7. A plain reading of Rule 21 as a whole and in particular the extracted portion makes it abundantly clear that a cadre officer i.e. a member of J&K Administrative Service is liable to be posted against the cadre post in any Govt. department wherever it is existing and such officer has no right to claim to remain posted against a particular post in a particular department that too, for a particular period. Apart from the provisions of Rule 21, Rule 23 of the Rules of 2008 deals with residuary maters and unequivocally provides that in regard to the matters not specifically covered by the Rules, the members of the Service shall be governed by the Rules, Regulations and orders applicable to the State Civil Services in general. Apart from the provisions of Rule 21, Rule 23 of the Rules of 2008 deals with residuary maters and unequivocally provides that in regard to the matters not specifically covered by the Rules, the members of the Service shall be governed by the Rules, Regulations and orders applicable to the State Civil Services in general. A fortiori, the members of the J&K Administrative Service would be regulated, besides the J&K Civil Service Regulations by the J&K Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as “the Rules of 1956”). Rule 27 of the Rules of 1956 which is only statutory Rules which deal with transfer of government employees reads thus:- “27. Postings and transfer (1) A matter of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. (a) All transfer and postings shall be made by the authority prescribed by Government in this behalf.” 8. A conjoint reading of Rules 21 of the Rules of 2008 and Rule 27 of the Rules of 1956 makes it crystal clear that a member of service or class of service may be required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. The employer, the government, has unfettered discretion in the matter of transfer and posting of its employees from one post in the cadre to another post of the cadre of service, on which employee sought to be transferred is borne on. The authority which can effect such transfer and posting would be the one prescribed by the government. The government, thus, has plenary power and competence to transfer all its employees and may also delegate its powers to different authorities as it may be prescribed from time to time. 9. It is not the case of the petitioners that their transfer is by an authority no competent to pass their transfer order nor is their case that the impugned order, in any manner, violates any statutory provision. Though, a feeble attempt was made by the learned counsel for the petitioners that by virtue of SRO 307 dated 11.07.2018 which is in partial modification of SRO 281 dated 23.06.2018, the transfer policy notified by the Government vide Govt. Though, a feeble attempt was made by the learned counsel for the petitioners that by virtue of SRO 307 dated 11.07.2018 which is in partial modification of SRO 281 dated 23.06.2018, the transfer policy notified by the Government vide Govt. Order No.861-GAD of 2010 dated 28.07.2010 has been given the statutory flavour and, therefore, any order passed in violation of the aforesaid policy is to be construed as violation of the statute. 10. Before I deal with the submissions made by the learned counsel for the petitioners, it would be appropriate to take note of the law regarding the scope of interference by the Court in the matter of transfer of government employee. The Supreme Court in the case of Maj. General J.K.Bansal v. Union of India and others; AIR 2005 SC 3341 while explaining the scope of interference in a writ petition assailing the order of transfer in paragraph No.9 held thus:- “9. In Mrs. Shilpi Bose and others v. State of Bihar AIR 1991 SC 532 , the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under:-- “In our opinion, the courts should not interfere with a transfer orders which are 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 one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. 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 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............” (underlining by me) In the case of National Hydro Electric Power Corporation v. Bhagwan; 2001 (8) SCC 574 the Supreme Court while dealing with a transfer matter observed that no government servant has any legal right to be posted forever at any one particular place as the transfer of an employee from one place to another in his cadre or service is not only an incident, but a condition of service, necessary too in public interest and efficiency of public administration. 11. The position of law on the subject is fairly settled and needs no reiteration. However, before I close the discussion on the point, it would be profitable to note the observation of the Supreme Court in the case of State of U.P. and others v. Gobardhan Lal; 2004(11) SCC 402 . Paragraph Nos. 7 and 8 of the judgment sum up the position of law:- “7. It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.” 12. In the backdrop of the legal position adumbrated herein above, the contentions raised by the learned senior counsel to assail the impugned order need to be appreciated. 13. The contention of the learned counsel for the petitioner that the order impugned is illegal, arbitrary and discriminatory is without any substance. In the backdrop of the legal position adumbrated herein above, the contentions raised by the learned senior counsel to assail the impugned order need to be appreciated. 13. The contention of the learned counsel for the petitioner that the order impugned is illegal, arbitrary and discriminatory is without any substance. As stated above, the order impugned has been issued by the government which is the authority competent both under the Rules of 2008 and Rules of 1956 and the same is, on the face of it, in the interest of administration, not only because the recital of the order says so but also because it is in the interest of administration as it effects the transfer of in as many as 115 officers from one department of the Government to another. The allegation of mala fide has been made only to carve out a ground to challenge the impugned order, whereas the fact remains that there are no mala fides pleaded against anybody except making a bald assertion that the respondents are accommodating the blue eyed persons. Reference to posting of some of the officers in the personal sections of the Advisors is also misconceived. 14. Similarly, the contention of the petitioners that the order impugned is in violation of the professed policy of the respondents providing for transfer and posting of Junior KAS Officers from one department to another on rotation and that an officer posted in a department would be ordinarily allowed to complete a tenure of two years before he/she is shifted to another department, is also not tenable. The law is well settled that the transfer policies or the executive instructions issued by the government to give effect to its transfer policies are not justiciable. This has been held by the Supreme Court in number of cases and a Full Bench of this Court has also held so in the case of Syed Hilal Ahmad and others v. State of J&K and others; 2015(3) JKJ 398 [HC] wherein the transfer policy notified by the government vide Govt. order No.861-Gad of 2010 dated 28.07.2010 and its justiciability was under consideration. 15. Otherwise also, on merits I do not agree with the learned counsel for the petitioners that there has been violation of the professed policy of the government with regard to the posting of Junior KAS Officers from one department to another. order No.861-Gad of 2010 dated 28.07.2010 and its justiciability was under consideration. 15. Otherwise also, on merits I do not agree with the learned counsel for the petitioners that there has been violation of the professed policy of the government with regard to the posting of Junior KAS Officers from one department to another. This is so because the services of petitioner No.1 came to be placed at the disposal of revenue department in August, 2016 and he served the revenue department till he was transferred and placed at the disposal of Secretariat by virtue of the impugned order issued on 04.08.2018. The petitioner No.1, thus, completed a full tenure of two years in the revenue department. This is different matter that during his posting in the revenue department he came to be transferred from one post to another borne on the revenue service. Similarly, petitioner No.2 joined the revenue department in April, 2016 and remained posted as Tehsildar Relief Organization (Migrant) and Tehsildar, JDA till she was transferred and her services placed at the disposal of Secretariat in terms of the order impugned. She too, completed the minimum tenure two years in the revenue department. Thus, the professed policy of the Government to transfer the Junior KAS officers from one department to another on rotation and after allowing them ordinarily to complete a minimum tenure of two years in a particular department has been observed in letter and spirit, atleast in the cases of petitioners. On this score, no fault can be found with the order impugned. 16. The other contention of the learned counsel for the petitioner that by virtue of Govt. Order dated 11.07.2018, the government has conferred a statutory status on the transfer policy notified by the government vide Government Order No.861-GAD of 2010 dated 28.07.2010 is quite fallacious and cannot be accepted. The transfer policy promulgated by respondent No.1 vide Govt. Order NO.861-GAD of 2010 dated 28.07.2010 is in the nature of executive instructions, as has been authoritatively held by the Full Bench of this Court in the case of Syed Hilal Ahmad (supra), issuance of SRO 307 notwithstanding. 17. The transfer policy promulgated by respondent No.1 vide Govt. Order NO.861-GAD of 2010 dated 28.07.2010 is in the nature of executive instructions, as has been authoritatively held by the Full Bench of this Court in the case of Syed Hilal Ahmad (supra), issuance of SRO 307 notwithstanding. 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. In partial modification of the aforesaid SRO, respondent No.1 promulgated SRO 307 dated 11.07.2018, 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 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. 18. For all these reasons, I could not find a single ground taken by the petitioners which vitiates the order impugned. The Junior KAS officers, as the petitioners are, must note and understand that they are the members of premier service of the State which virtually constitutes backbone of bureaucracy of the State enjoined the task of running the administration at different level. The Junior KAS officers, as the petitioners are, must note and understand that they are the members of premier service of the State which virtually constitutes backbone of bureaucracy of the State enjoined the task of running the administration at different level. They must note that they are cadre officer and they can be transferred and posted to any post borne on the cadre of the service and unless their transfer and posting affects their status or is in violation of the statutory provision or is mala fide, they have no cause to approach the Court. Any attempt by the such officers to assail their transfer and posting to the place which they may feel inconvenient for them would only be seen as an endeavour to continue at a particular place of posting indefinitely or till such time they are offered an equally convenient posting. My sincere advice to these officers is to desist from making such attempts lest an impression would be gathered that they are not interested in the smooth running of the administration but are only keen in a particular type of postings. Least said, the better. 19. It would be unfair on my part, if I conclude without dealing with the submission made by the learned counsel for the petitioner vehemently urging that this Court must, for the sake of consistency, uniformity, predictability and certainty of judicial approach follow the interim directions issued by the Co-ordinate Benches of this Court in identical matters. This Court is well aware that it is the need of judicial discipline that there is consistency, uniformity, predictability and certainty of judicial approach even in matter of interlocutory orders. It is equally true that interlocutory order passed in a pending case does not serve as a binding precedence to be followed by other Benches of the Court, but at the same time it has been time and again emphasized that with a view to assure consistency of approach and desirability to eliminate occasion for discriminatory treatment that in all similar matters, there should be similar treatment. What was observed by the Supreme Court in paragraph No.3 of Vishnu Traders (supra) may be taken note of, which reads thus:- “3. In the matters of interlocutory orders, principle of binding precedents cannot be said to apply. What was observed by the Supreme Court in paragraph No.3 of Vishnu Traders (supra) may be taken note of, which reads thus:- “3. In the matters of interlocutory orders, principle of binding precedents cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment requires that all similar matters should receive similar treatment except where factual difference require a different treatment so that there is assurance of consistency, uniformity, predictability and certainty of judicial approach. (underline by me) 20. Taking cue from the observation of the Supreme Court, I have carefully gone through the interlocutory orders passed by Co-ordinate Benches of this Court which are appended with the writ petition by the petitioners. At the cost of increasing the volume of this order, one such interim order passed in SWP No.452/2018 is reproduced hereunder:- “Notice for filing reply by or before next date. List again on 25.04.2018. MP No.01/2018 Vide Government Order No.279-GAD of 2018 dated 20.02.2018, petitioners have been transferred and posted against their status. Learned counsel for the petitioners submits that the posting of the petitioners has to be in the manner which may not substantially affect their status. Supporting his contention has placed reliance on the judgment rendered by the Hon’ble Apex Court in the case reported in 2007(6) SCC 220 . Considered. Notice for objections. Meanwhile, posting of the petitioners ordered vide order impugned shall remain in abeyance till next date. Modification/alteration on motion.” The other two orders passed in SWP Nos.335/2018 and 529/2018 are on similar lines and in fact passed relying upon one another. 21. A bare reading of the interim orders would indicate that the Co-ordinate Benches of this Court stayed the impugned orders of transfer on being prima facie persuaded to believe that the aforesaid orders of transfer of the writ petitioners had substantially affected their status. It is in this context, the Co-ordinate Benches of this Court while passing the interlocutory orders observed as under:- “The posting of the petitioner has to be in the manner which may not substantially affect his status.” 22. It is in this context, the Co-ordinate Benches of this Court while passing the interlocutory orders observed as under:- “The posting of the petitioner has to be in the manner which may not substantially affect his status.” 22. In the case in hand, it is not the case of the petitioners that by transferring them from the revenue department and placing their services at the disposal of Secretariat service to be posted there, has, in any manner, effected their status. They are the Junior KAS officers (cadre officers of the J&K Administrative Service) and would continue to be so when posted in the Secretariat. On being pointedly asked, learned counsel for the petitioners could not point out as to how the transfer order impugned has affected their status, rather the learned counsel fairly conceded that it has not affected their status but is bad for other reasons. 23. Since there is discernible factual difference in the instant case and the cases where interim directions have been issued by the Co-ordinate Benches of this Court and, therefore, ratio of the judgment of Vishnu Traders (supra) would not be applicable. 24. For the foregoing reasons, I find no merit in this petition. Same is, accordingly, dismissed. Although, it was a fit case for imposition of exemplary costs, yet I refrain from passing any such order, keeping in view the young age of the petitioners and their long service career ahead.