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2018 DIGILAW 816 (JK)

Saleem Mohammad v. State of J&K

2018-10-17

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioner assails the validity and sustainability of order of the respondent No.2 whereby the respondent No.4 stated to be under orders of transfer as GQ, Pangdour is posted as Girdawar Circle Vijaypur in place of the petitioner and the petitioner is asked to report to SDM, Vijaypur. For ready reference, the impugned order dated 14.03.2018 (Annexure-D) is reproduced hereunder:- “In the interest of administration, Sh. Anwar Sadotra, Girdawar under orders of transfer as GQ Pangdour is hereby posted as Girdawar Circle, Vijaypur with immediate effect. Further Sh. Saleem Mohd. Girdawar after availing the leave shall report to SDM. Vijaypur and one post of Girdawar from overall cadre strength is transferred in the office of SDM, Vijaypur for drawal his salary. By order of the Divisional Commissioner, Jammu.” 2. The petitioner challenges the impugned order broadly on the following grounds:- (i) That the impugned order suffers from non-application of mind and, is therefore, arbitrary; (ii) That the impugned order has been issued to accommodate respondent No.4, who is stated to have been managing his transfers and postings at the places of his choices with the blessing of the people in power; and (iii) That the impugned order has the effect of transferring the petitioner prematurely without any discernable reasons except that respondent No.2 wanted to accommodate respondent No.4. 3. The official respondents have filed their objections. It is stated that the impugned order has been issued purely in the interest of administration. The reasons for prematurely transferring the petitioner and adjusting the respondent No.4 in his place have also been explained. It is contended that during the meeting in the office of the respondent No.2 on 09.03.2018 where revenue officials of the District Samba were asked to remain present, it was informed that the petitioner had met with an accident and was undergoing treatment in a Hospital at Amritsar (Punjab). Upon verification, it was confirmed that the petitioner was not in a position to perform the field duties of the Girdawar and therefore, a decision was taken to attach him in the office of SDM, Vijaypur and to post some other Girdawar who could take up the field duties. The official respondents have also sought to explain as to how in the impugned order, the respondent No.4 was stated to be “under orders of transfer” though he had already joined as GQ Pangdour. The official respondents have also sought to explain as to how in the impugned order, the respondent No.4 was stated to be “under orders of transfer” though he had already joined as GQ Pangdour. It is stated that the respondent No.2 vide his communication dated 03.01.2018 had requested all the concerned Deputy Commissioners to implement the orders issued on 30.12.2017 only after budget session was over. Since the respondent No.2 had not received any compliance, as such, it was assumed that the order of transfer of respondent No.4 as GQ Pangdour had not been implemented. It is in these circumstances, unintentionally the expression “under orders of transfer” finds place in the impugned order, explain the official respondents. 4. The respondent No.4 has also filed the objections and has virtually toed the line of the official respondents. 5. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned order which is issued apparently in the interest of administration does not call for any interference. 6. Law with regard to the scope of interference in the transfer of a Government employee from one place to another is now firmly settled. The transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. Unless it is shown that the order of transfer has been issued by the authority having no competence to do so or it suffers from malice whether it is malice in law or malice in fact. It could also be interfered with if the same is in violation of any statutory provision. Both sides have cited number of judgments in support of their rival contentions but I do not think that reference to all these judgments is at all necessary in view of the settled legal position. 7. It is in the backdrop of the settled legal position, summed up hereinabove; the impugned order needs to be examined. It is no doubt true that if the power vested in the authority to transfer its subordinates is abused, the exercise of power is vitiated. 7. It is in the backdrop of the settled legal position, summed up hereinabove; the impugned order needs to be examined. It is no doubt true that if the power vested in the authority to transfer its subordinates is abused, the exercise of power is vitiated. It is equally true that if an order of transfer is purportedly not in public interest but for achieving some collateral purpose, the same too is vitiated by abuse of powers. 8. Regarding the timing of issuance of an order of transfer of an employee, it may be pointed out that it is entirely in the discretion of the competent authority to decide when, where and at what point of time a public servant is to be transferred. It is repeatedly settled by this Court that an employee holding a transferrable post does not have any vested right to work on a particular place. Unless, the transfer affects any of his legal rights, he has no cause to come to the Court. The employee working on a transferable post has no right to dictate his term with regard to his posting to the employer. Under Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 which is the only statutory rule governing transfer of an employee, it is unequivocally provided that a member 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. So the statute requires an employee to serve any part of the State on the post borne on the cadre to which he is appointed. The State has been coming up with transfer policies promulgated by it through the medium of Government orders issued from time to time. These transfer policies are in the nature of the guidelines to be invariably followed in the matter of transfer of the Government servant. The State has been coming up with transfer policies promulgated by it through the medium of Government orders issued from time to time. These transfer policies are in the nature of the guidelines to be invariably followed in the matter of transfer of the Government servant. This Court had occasion to examine these transfer policies on couple of occasions, the Full Bench of this Court in the case of Syed Hilal Ahmed and others v. State of J&K and others decided on 31.08.2015 reported in 2015(3) JKJ 398 (HC), finally set the controversy at rest by holding that the transfer policy issued by the Government in the shape of guidelines to be followed invariably in the matter of transfer of Government servant is non-statutory and therefore not justiciable. 9. No doubt, the petitioner had not yet completed his tenure as Girdawar, Vijaypur and therefore, should have been ordinarily allowed to complete his tenure but in view of the reasons indicated by the respondent No.2 in the reply affidavit which is supported by the contemporaneous official records maintained in his office, the necessity to disturb the petitioner was felt owing to the medical condition of the petitioner. It cannot be disputed that the Girdawar of a particular circle is supposed to perform the field job and has to go from one place to another in connection with his duties. A person who has fractured his leg and has remained hospitalised may not be expected to perform the duties of Girdawar in effective manner. It is only when this fact was brought to the notice of respondent No.2, the decision to post someone who is medically fit to work as Girdawar Vijaypur, was taken. The respondent No.2, in the official file has noted this fact and there is no material to doubt what is contained in the official file maintained in the ordinary course of things. I also do not find sufficient material on record to believe that the order impugned has been issued by the respondent No.2 to accommodate the respondent No.4. The respondent No.2, in the official file has noted this fact and there is no material to doubt what is contained in the official file maintained in the ordinary course of things. I also do not find sufficient material on record to believe that the order impugned has been issued by the respondent No.2 to accommodate the respondent No.4. I am also not impressed with the arguments of learned counsel for the petitioner that mentioning of the words “under the orders of transfer” in the impugned order depicts non-application of mind on the part of the respondent No.2, in that, the respondent No.4 was not under orders of transfer to Pangdour but had actually joined there and had been performing his duties. At the first blush it appeared so but on close scrutiny of the records, it is found that the respondent No.2 was perhaps under the impression that the order of transfer of respondent No.4 to Pangdour had not been implemented in view of the communication issued by him on 03.01.2018. It is also not a case of malice in fact as there is no specific allegation of malafide alleged against any person nor any such person is arrayed as party respondents. Since this Court does not find it a case of accommodating respondent No.4 for ulterior consideration nor on the basis of the facts on record, can it be said that the impugned order has been issued for any collateral purpose. The purpose has been clearly spelled out in the note which proceeded issuance of impugned order. This Court can appreciate that the petitioner was accommodated in the office of SDM, Vijapur and was permitted to draw his salary against a post from overall cadre strength keeping in view his medical condition. The petitioner has, however, contested this position and asserted that he was discharged way back in January, 2018 and therefore, was quite fit to perform the duties of Girdawar. 10. Be that as it may, posting of the petitioner in the office of SDM, Vijaypur where there is no post of Girdawar available, is not only making the petitioner to sit idle but taxing the public exchequer for nothing. This situation could have been avoided by the respondent No.2. 11. 10. Be that as it may, posting of the petitioner in the office of SDM, Vijaypur where there is no post of Girdawar available, is not only making the petitioner to sit idle but taxing the public exchequer for nothing. This situation could have been avoided by the respondent No.2. 11. Be that as it is, no case of interference in the impugned transfer order is made out except that the petitioner deserves to be appointed against substantive post so that he is paid the salary not for sitting idle but for performing the duties of his office. Accordingly, this petition in so far as it pertains to the transfer and posting of respondent No.4 as Girdawar Circle Vijaypur is concerned is dismissed. The second part of order in so far as it pertains to the posting of the petitioner in the office of SDM, Vijaypur without there being any post of Girdawar available is set aside. The respondent No.2 shall post the petitioner against the post of Girdawar wherever it is available on substantive basis by issuing fresh order. This Court would appreciate if while considering the posting of the petitioner as Girdawar/GQ against a substantive post/vacancy, his health condition and convenience is duly taken note of. 12. Disposed of as above along with connected IA(s).