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2018 DIGILAW 820 (JK)

Rajesh Gupta v. State of J&K

2018-10-22

SANJEEV KUMAR

body2018
JUDGMENT : In this writ petition, the petitioner challenges his transfer from In-charge ARTO Board of Inspection (Passenger) Jammu to In-charge ARTO Doda effected by respondent No.1 vide Government Order No.64-TR of 2018 dated 20.08.2018. 2. Briefly stated, the facts as narrated by the petitioner in this writ petition are that vide Government Order No. 68-TR of 2017 dated 24.08.2017, the petitioner, who was posted as In-charge ARTO Udhampur, came to be transferred and posted as In-charge ARTO, Board of Inspection (Passenger) Jammu. It is submitted that respondent No.3, who was working as ARTO, Board of Inspection (Passenger) Jammu, came to be transferred and posted as ARTO Doda vide Government Order No.58-TR of 2018 dated 10.08.2018, but was transferred back to Jammu vide order impugned within ten days. It is, thus, submitted that the petitioner has been transferred to Doda only with a view to facilitate the posting of respondent No.3 in Jammu. 3. In the aforesaid background facts, the petitioner assails the order impugned, primarily, on the following grounds: i. That the petitioner is a qualified Automobile Engineer having done Diploma in Automobile Engineering in the year 1993 and, therefore, technically qualified to hold the post of ARTO, Board of Inspection (Passenger) I in terms of SRO 108 dated 27.02.2008 and respondent No.3, who is a Jr. KAS officer not holding the technical qualification could not be posted as ARTO Board of Inspection (Passenger). ii. That respondent No.3 was selected and appointed as Jr. KAS Officer in the category of resident of backward area (RBA) and, therefore, in view of provisions of Section 3(2) of J&K Reservation Act, 2004 read with Circular Instructions issued by GAD under endorsement No. GAD/MTG/RBIV/29/2012 dated 21st September 2012, he is liable to be posted in his backward area only. iii. That the order of transfer and posting of the petitioner as ARTO Doda is mala fide, in that, the same has been issued only to accommodate respondent No.3 and to bring him back to Jammu which was done by the respondents within a span of ten days from the date of posting of respondent No.3 and; iv. That the petitioner has not completed his minimum tenure of two years at Jammu as ARTO, Board of Inspection (Passenger), Jammu and, therefore, in view of the statutory provisions of SRO 307 dated 11.07.2018, the impugned order is not sustainable being against the statute. 4. That the petitioner has not completed his minimum tenure of two years at Jammu as ARTO, Board of Inspection (Passenger), Jammu and, therefore, in view of the statutory provisions of SRO 307 dated 11.07.2018, the impugned order is not sustainable being against the statute. 4. In response to the notice issued to the respondents, respondent No.3 alone has filed objections. The official respondents, however, have chosen to remain absent. 5. I have heard learned counsel for the parties and have perused the record. 6. The only statutory provision pertaining to the transfer of a Government employee is Rule 27 of the J&K Civil Services (Classification, Control and Appeals) Rules, 1956 (hereinafter referred to as “the Rules of 1956”) which unequivocally provides that an employee born on a particular service or class of service may be required to serve in any part of J&K State in any post borne on the cadre of such service or class. In the matter of transfer and posting, the employer has unfettered discretion and no employee can claim his transfer and posting at a particular place. So long as the order of transfer is not vitiated by mala fides and is otherwise not in violation of any statute or suffers for want of jurisdiction of the Authority issuing it, the same cannot be interfered with by the Courts. 7. Hon’ble Supreme Court, while examining the scope of interference in transfer matters, in the case of Major General J.K. Bansal v. UOI and ors., AIR 2005 SC 3341 in paragraph No.9, held as under: “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. 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. 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) 8. Similarly, in the case of National Hydro Electric Power Corporation vs. Bhagwan, 2001 (8) SCC 574 , the Hon’ble 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. 9. The position of law on the subject is clearly settled and needs no reiteration. However, the observation of the Hon’ble Supreme Court in the case of State of U.P and ors vs. Govardhan Lal, 2004 (11) SCC 402 , in paragraph No.7 & 8, is noteworthy and therefore, the same is reproduced 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.” 10. In the backdrop of afore-stated legal positron, the grounds of challenge urged by the petitioner needs to be considered. 11. The contention of learned counsel for the petitioner is that the post of ARTO Board of Inspection (Passenger) can only be manned by a technical person possessing a qualification in Automobile Engineering. Reliance in this regard is placed on SRO 108 dated 27.04.2018. SRO 108, relied upon by the learned counsel for the petitioner, has been issued by the Government of Jammu and Kashmir in exercise of power conferred by Section 213 of the Motor Vehicles Act, 1988. The said SRO, inter alia, provides that the Board of Inspection which would issue and renew the certificate of fitness of motor vehicles shall consist of (i). The Assistant Regional Transport Officer concerned and; (ii) One Motor Vehicle Inspector who shall be technically qualified. 12. The provisions of Rule 44(1) of the Motor Vehicles Rules 1991 as amended vide SRO 108 dated 27.02.2018 only mandate that only one Motor Vehicle Inspector in the Board of Inspection should be necessarily technically qualified and the ARTO concerned whosoever having the jurisdiction in the particular District would be the other member of the Board of Inspection. 13. From the careful reading of SRO 108, dated 27.02.2018, I could not find anything which would suggest that ARTO presiding Board of Inspection must necessarily be a technically qualified person. J&K Transport (Gazetted) Service Recruitment Rules, 2017 provide that the post of ARTO can be can be filled up 50% by promotion and 50% by direct recruitment. The direct recruitment is to be conducted by the JKPSC. The said Rules do not provide any technical qualification for holding the post of ARTO. The first ground of challenge urged by the learned counsel for the petitioner is, therefore, devoid of merit and, therefore, not tenable. 14. The other ground urged to sustain the challenge to the order impugned is that the petitioner came to be appointed as Jr. KAS Officer under RBA category and, therefore, is under legal obligation to serve in the backward areas of the State for at least five years. Reliance in this regard has been placed by the petitioner on the provisions of Section 3(2) of the J&K Reservation Act, 2004 and Circular instructions issued by the GAD dated 21.09.2012. KAS Officer under RBA category and, therefore, is under legal obligation to serve in the backward areas of the State for at least five years. Reliance in this regard has been placed by the petitioner on the provisions of Section 3(2) of the J&K Reservation Act, 2004 and Circular instructions issued by the GAD dated 21.09.2012. The aforesaid contention of the petitioner, when examined in the light of the provisions of Section 3(2) of the J&K Reservation Act, 2004, lacks substance and, therefore, cannot be accepted. For facility of reference, provisions of Section 3(2) of J&K Reservation Act, 2004 are reproduced hereunder: “3. Reservation in appointment (2) Notwithstanding anything to the contrary contained in any law for the time being in force, any person appointed against any available vacancy on the basis of his being a resident of backward area or an area adjoining Line of Actual Control shall serve in such areas for a period of not less than seven years: Provided that in case the post against which he has been appointed is not available in such area, he shall be posted in the nearest adjacent backward area, or the nearest adjacent Line of Actual Line of Control, as the case may be”. 15. It may be noted that respondent No.3, who has filed the objections, is contesting this factual position as well and submits that though he was a candidate belonging to RBA category, but was selected and appointed under open merit category. Without going into this factual dispute, it may be noted that in terms of Section 3(2) of the Reservation Act, 2004, any person appointed against any available vacancy on the basis of his being a resident of backward area or an area adjoining Line of Actual Control is under an obligation to serve in such areas for a period of not less than seven years: provided that in case the post against which he has been appointed is not available in such area, he could be posted in the nearest adjacent backward area or the nearest adjacent Line of Actual Control line as the case may be. 16. 16. Section 3(3) of Reservation Act, 2004 is also relevant in the context and provides that if a person, who has been appointed on the basis of reservation, declines to serve in the reserved area as provided under sub-section (2), he shall be liable to be terminated from service. 17. A conjoint reading of sub-sections 2 and 3 of Section 3 of Reservation Act, 2004 makes it abundantly clear that an obligation is cast on an employee who is appointed on the basis of being a candidate belonging to RBA or ALC category to serve in such areas for a period of not less than seven years and in case, he declines, his services are liable to be terminated. This, however, by no stretch of reasoning, means that the employer can transfer him outside such area in the interest of administration. 18. The provisions of sub-sections 2 and 3 of Section 3 cannot be interpreted to mean that State is bound to make person appointed under reserved category of RBA and ALC to serve in such areas. The State is, thus, under no obligation to necessarily keep such person in such areas, though the employee, who has taken the benefit of reservation, may not be in a position to seek his transfer outside such area till he completes seven years of service in such areas. 19. The next contention raised by learned counsel for the petitioner is that the order impugned suffers from mala fide as the same has been issued to accommodate respondent No.3, who has been transferred back from Doda to Jammu within a span of ten days. This contention, too, cannot be accepted for the reason that respondent No.3, who was posted as ARTO, Board of Inspectors Jammu vice one Sh. P.C. Samotra on 18.04.2018, came to be transferred and posted as ARTO Doda on 10.08.2018 i.e. within a period of less than four months. However, vide order impugned which is a general order of transfer of as many as 11 ARTOs, respondent No.3 has been brought back to his position i.e. ARTO Board of Inspections (Passengers) Jammu. Ordinarily, such orders, which are passed in quick succession, should be avoided by the Government, however, the same cannot be declared illegal only for such reason. The petitioner is In-charge ARTO and has been transferred from Jammu to Doda against equivalent post. Ordinarily, such orders, which are passed in quick succession, should be avoided by the Government, however, the same cannot be declared illegal only for such reason. The petitioner is In-charge ARTO and has been transferred from Jammu to Doda against equivalent post. Neither his status has been lowered nor has he been affected in any manner. The posting at Doda may not be very convenient to the petitioner but that would not furnish him a cause to challenge the same. 20. Regarding the contention of the petitioner that premature transfer violates the statute, the same is not tenable and the reliance placed on SRO 307 dated 11.07.2018 is mis-placed. The issue has been discussed threadbare by this Court in the case of Shafqet Ali and anr vs. State and ors in SWP No. 1598/2018, decided on 14.08.2018. What was held by this Court in paragraph No.17 of the aforesaid judgment is reproduced hereunder: “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”. 21. 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”. 21. In view of the foregoing, I do not find any ground for interference in the order impugned. The writ petition is found to be without merit and the same is dismissed along with connected IA.