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2018 DIGILAW 640 (JK)

Babu Ram v. State of J&K

2018-08-16

TASHI RABSTAN

body2018
JUDGMENT : 1. Quashment of Government Order No. 158-GAD of 2018 dated 25.01.2018, transferring petitioner from the post of Additional Deputy Commissioner, Reasi, and posting him as Deputy Labour Commissioner (Central), is sought for. A direction is also implored for to allow and permit petitioner to discharge his duties as Additional Deputy Commissioner, Reasi. 2. Petitioner, posted as Additional Deputy Commissioner, Ramban, vide Government Order No.1359-GAD of 2016 dated 14.12.2016, came to be transferred and posted as Additional Deputy Commissioner, Reasi. Respondent No.3, who is stated to be not the Minister Incharge of Department of petitioner, addressed a DO letter bearing No.PS/HMOS/F&P/299 dated 23.11.2017 to Deputy Chief Minister, J&K, requesting him to post one Shri Nagendra Singh Jamwal, Additional Secretary to Government, Industries and Commerce Department, as Additional Deputy Commissioner, Reasi, in place of petitioner as according to respondent No.3, his services were required in his Constituency. Further contention of petitioner is that on respondent No.3’s request, the Deputy Chief Minister directed the Chief Secretary of the J&K State, i.e., respondent No.1 herein, to do the needful. Respondent no.1 is said to have, in turn, asked respondent No.2 to do the needful as per the directions of the Deputy Chief Minister and on the aforesaid directions, the case was processed for posting of Shri Nagendra Singh Jamwal as Additional Deputy Commissioner, Reasi, in place of petitioner. It is claimed by petitioner that it was only on the request of respondent No.3, who is alleged to have been averse to the posting of petitioner as Additional Deputy Commissioner, Reasi, as petitioner could not please him by doing certain acts which were not permissible under law. Petitioner avers that aforesaid Shri Nagendra Singh Jamwal did not agree for his posting as Additional Deputy Commissioner, Reasi and, therefore, respondent No.2 passed order impugned bearing Government Order No.158-GAD of 2018 dated 25.01.2018 whereby and whereunder respondent No.4 has been posted as Additional Deputy Commissioner, Reasi, instead of Shri Nagendra Singh Jamwal, just to dislodge petitioner from the aforesaid post. Petitioner maintains that there was no interest of administration in passing order impugned transferring petitioner from the post of Additional Deputy Commissioner, Reasi, but the only interest was that of respondent No.3 alone. Petitioner maintains that there was no interest of administration in passing order impugned transferring petitioner from the post of Additional Deputy Commissioner, Reasi, but the only interest was that of respondent No.3 alone. Hence, this petition on the ground that impugned order is result of sheer mala fide exercise of powers by respondent No.2 at the instance of respondent No.3 and that petitioner has been transferred prematurely. 3. Objections on behalf of all the respondents have been filed. Official respondents in their objections have refuted the allegations of mala fide intention or political interference. It is insisted that the communication dated 23.11.2017, i.e., D.O letter dated 23.11.2017 addressed to the then Deputy Chief Minister by respondent No. 3, the then Minister of State, requesting for posting of Shri Nagendra Singh Jamwal, KAS, as Additional Deputy Commissioner, Reasi, vice petitioner, is not a part of record. They further insist that transfer or posting of Government servant at a particular place cannot be claimed by petitioner as a matter of legal right and Articles 14 and 16 of the Constitution guarantee equality before law. Learned counsel for official respondents has placed reliance on a judgment passed in Union of India and others v. N.P.Thomas reported in AIR 1993 SC 1605 contending that the Supreme Court ruled that an employee holding a transferable post has no vested right to remain posted at a particular place as a matter of right. 4. Respondent No. 3, the then Minister of State, has in his objections strongly resisted the allegations of mala fide. It is contended that D.O. letter dated 23.11.2017 was in view of request and representation which he was receiving from his constituency. He further contends that there was not even whisper against petitioner and that being duly elected representative of the people of his constituency, he was justified in law and in the interest of administration to suggest name of some officer in his constituency and any such recommendation cannot and should not be viewed with doubt and suspicion in absence of proven mala fide. He also states that D.O. letter dated 23.11.2017 was aimed at only in the larger interests of administration keeping in view the relevant factors. It is stated that the person, who was recommended in the aforesaid DO letter, did not join. 5. He also states that D.O. letter dated 23.11.2017 was aimed at only in the larger interests of administration keeping in view the relevant factors. It is stated that the person, who was recommended in the aforesaid DO letter, did not join. 5. Respondent No.4 in his objections has insisted that one Shri Nagendra Singh Jamwal, in whose favour the recommendation had been made, did not accept to join at the recommended place instead he (respondent No. 4, Des Raj Bhagat) has been transferred and appointed as Additional Deputy Commissioner Reasi, in place of petitioner pursuant to impugned order and has nothing to do with said D.O. Letter. It is further averred that answering respondent has been placed against the post in a routine manner and not at the instance of respondent No.3, after following all the formalities as required under law. It is also contended that impugned order has been passed as per the provisions of law and seeking appropriate sanction from the competent authority, therefore, no fault can be found with the same. 6. Heard learned counsel for the parties and perused the record. 7. Petitioner has questioned order impugned on two counts. First that order is not in the interest of administration as the same has been issued at the behest of respondent No.4, the then Minister of the State. Second that the transfer of petitioner is in violation of transfer policy promulgated vide Govt. Order No. 861-GAD of 2010 dated 28.07.2010 as he has been transferred prematurely. Learned counsel for petitioner has also placed reliance on a recent SRO bearing SRO 307 dated 11.07.2018 by virtue of which policy of transfer promulgated by aforesaid Govt. Order No. 861-GAD of 2010 dated 28.07.2010 has been given statutory colour. At request, copy of SRO 307 dated 11.07.2018 is taken on record. 8. It is a specific case of the petitioner that the impugned transfer order has not been issued in the interest of administration, but in pursuance of a D.O. Letter dated 23.11.2017 of respondent No.3 – the then Minister of State of J&K, addressed to the then Deputy Chief Minister of J&K State, requesting transfer of petitioner from the post of Additional Deputy Commissioner, Reasi. In the said D.O. Letter, the said Minister also requested posting of one Nagendra Singh Jamwal as Additional Deputy Commissioner, Reasi in place of petitioner, but later said Shri Nagendra Singh Jamwal, in whose favour the recommendation was made did not accept to join at the recommended place instead respondent No. 4, Des Raj Bhagat has been transferred and appointed as Additional Deputy Commissioner Reasi, in place of petitioner pursuant to impugned order. 9. I have carefully bestowed my attention to the writ record so as to ascertain whether the petitioner has been transferred prematurely or that the transfer order is founded on mala fide action on the part of respondent No.1. 10. During the course of hearing, a necessity was felt to summon the original record in order to ascertain and scrutinize the mala fide as alleged in the writ petition. Accordingly, pursuant to Court orders, learned counsel for the official respondents has produced the original record and the same was made available to learned counsel for the petitioner also in the open Court. While scrutinizing the original record, it has come to fore that proposal for transfer of petitioner was started much before the addressing of alleged D.O. Letter dated 23.11.2017 of the then Minister but transfer of the petitioner could not be effected due to pendency of clearance from the office of Chief Election Commission. More so, there is no mention of any DO letter in the original record. 11. It cannot be overlooked that the burden of establishing mala fide is very heavily on the person who alleges it. A Five Judges’ Bench of the Supreme Court in E. P. Royappa vs State of Tamil Nadu, AIR 1974 SC 555 , has held that the allegations of mala fide are often more easily made than proved and the very seriousness of such allegations demand proof of a high order of credibility. What is held by the Supreme Court is reproduced hereunder: “92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up – these considerations are wholly irrelevant in judicial approach – but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand-point that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.” 12. In the present case, contention of petitioner that he was transferred with mala fide intention due to political interference, is not correct as the communication dated 23.11.2017, referred to by him in his petition, to have been addressed to the then Deputy Chief Minister of the State by respondent No.3 is not a part of record and further in view of the fact that the proposal for transfer of petitioner was initiated much before issuance of DO letter dated 23.11.2017. 13. 13. It is a settled position of law that an order of transfer of a Government Officer is no doubt justifiable, but such transfer order can be interfered with in writ jurisdiction in rare and exceptional cases. Broadly a transfer order can be interfered with, if such order is issued by an authority not competent to do so, or if there is violation of any statutory rule, or there is gross discrimination between petitioner vis-à-vis similarly situated officers/employees or if transfer is actuated by mala fide. 14. In the case in hand, neither there is any challenge to the competence of authority to issue transfer order nor is there any allegation of violation of statutory rule. Precisely, impugned transfer order has been assailed on the ground of non-adherence to transfer policy issued by the Government vide Government Order No.861-GAD of 2010 dated 28.07.2010 and that impugned transfer order has been issued at the behest of the then Minister/MLA of the Constituency. Transfer or posting of Government servant at a particular place cannot be claimed by him as a matter of legal right. Articles 14 and 16 of the Constitution guarantee equality before law. In UOI and others v. N.P.Thomas ( AIR 1993 SC 1605 ), the Supreme Court ruled that an employee holding a transferable post, has no vested right to remain posted at a particular place as a matter of right. A Division Bench of this Court in Anil Kumar Prabhakar v. State, 2014 (3) JKJ 346 (HC) has in unequivocal terms held that transfer policy is in the nature of non-statutory administrative instruction and does not create any enforceable right. 15. In State of U.P. vs Gobardhan Lal, (2004) 11 SCC 402 , it has been held that transfer is prerogative of the authorities concerned and Courts should not normally interfere therewith. It would be relevant to reproduce paragraphs 7 and 8 hereunder: “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. 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.” 16. In Union of India vs S. L. Abbas, AIR 1993 SC 2444 , it has been held as under: “7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, the husband and the wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally enforceable right.” 17. Further, in a series of judicial pronouncements it has been held that transfer is an incidence of service and the scope of judicial review of transfer order under Article 226 of the Constitution is very limited. What is held by the Supreme Court in State of Haryana vs Kashmir Singh, (2010) 13 SCC 306 is advantageous to be reproduced hereunder: “14. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.” 18. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.” 18. The alleged influence by the MLA/Minister concerned cannot be said to be the reason for transferring petitioner when official respondents have specifically stated in the objections that impugned transfer order was not based on recommendations of any MLA/Minister concerned and there is no such DO letter in the record of official respondents. Furthermore, nothing has come on record to prove mala fide of respondents, apart from mere averments made by petitioner that the transfer is a mala fide transfer. It is well settled that the plea of mala fide should be proved by bringing on record definite material and cogent evidence in this regard. 19. As regards contention of petitioner that he has been transferred prematurely, it is seen that petitioner was posted as Additional Deputy Commissioner, Reasi, vide Government Order No.1359-GAD of 2016 dated 14.12.2016 and minimum tenure of post as provided under the policy of transfer promulgated vide Govt. Order No.861-GAD of 2010 dated 28.07.2010, is two years which petitioner is due to complete on 14.12.2018. The policy matter of the Government as has been held by various pronouncements of the Apex Court as also by the Full Bench of this Court are that transfers are not to be interfered by the Courts. However, recently vide SRO No.307 dated 11.07.2018, policy of transfer promulgated by the aforesaid Govt. Order No. 861-GAD of 2010 dated 28.07.2010 has been given statutory colour and same is to be given full effect not only by the administration even but by the Courts of law as well. In view of the aforesaid developments, petitioner is justified in contending that his transfer was ordered prematurely. 20. In the aforesaid backdrop, challenge to order of transfer on the ground of mala fide and influence of Minister fails and is rejected. However, challenge to order of transfer on the ground it being premature succeeds in light of SRO 307 of 2018 dated 11.07.2018. Consequently, respondents are directed to allow the petitioner to complete his tenure and posting as Additional Deputy Commissioner, Reasi. However, challenge to order of transfer on the ground it being premature succeeds in light of SRO 307 of 2018 dated 11.07.2018. Consequently, respondents are directed to allow the petitioner to complete his tenure and posting as Additional Deputy Commissioner, Reasi. However, it is made clear that continuation of petitioner beyond the tenure is a matter to be considered by the official respondents at their own end. Having said so, writ petition is partly allowed in the terms indicated above. 21. Record produced by Mrs. Seema Shekhar, Sr. AAG is returned to her in the open Court.