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J&K High Court · body

2019 DIGILAW 153 (JK)

Mohammad Ashraf Shah v. State of J&K

2019-03-26

DHIRAJ SINGH THAKUR

body2019
Judgment 1. By the medium of the present writ petition, the petitioner challenges his order of transfer dated 8th February, 2019 primarily on the ground of his personal difficulties. It is stated that the mother of the petitioner suffers from serious ailments including Bronchial Asthama and further that his wife is in a family way. 2. Heard counsel for the petitioner. 3. It is a well settled principle of law that transfer is an exigency of service. An employee does not have any indefeasible right to remain posted at a particular place ad-infinitum or seek a posting of his choice. It is also no longer res integra that orders of transfer can only be interfered with by courts if the same are questioned on the ground of malafides or lack of jurisdiction or if the same is otherwise contrary to statutory rule governing such transfers. 4. In State of U.P. and Another v. Siya Ram and Another, (2004) 7 SCC 405 , the Apex Court has held as under:— “……………….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 other 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 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. This position was highlighted by this court in National Hydroelectric Power Corpn. Ltd v. Shri Bhagwan, (2001) 8 SCC 574 .” 5. In the case of Union of India and others v. S.L. Abbas, (1993) 4 SCC 357 , the Apex Court while dealing with the guidelines framed by the Government of India regarding couple transfers held that the guidelines/administrative instructions do not create any enforceable right in the employees. The said guidelines are in the nature of instructions and do not have any statutory force. 6. The said guidelines are in the nature of instructions and do not have any statutory force. 6. In Rajendra Singh & ors v. State of U.P. & ors, (2009) 15 SCC 178 , the Apex Court, yet again, reiterated the aforementioned principles and in paragraph 9 of the judgment, held as under:— “9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar, this court held:— “4. In our opinion, the courts should not interfere with a transfer order which is 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 malafide. 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 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. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.” 7. In Shanti Kumari vs. Regional Deputy Director, Health Services, Patna Division, Patna & Ors., (1981) 2 SCC 72 , the Apex Court has held as under:— “2. Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The courts cannot interfere in such matters. Shri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant.” 8. The courts cannot interfere in such matters. Shri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant.” 8. The sole ground on which the order impugned was challenged is on the basis of the medical condition of the mother of the petitioner who is stated to be suffering from serious ailments including Bronchial Asthama and that wife of the petitioner is in a family way. Even this plea is untenable in law. 9. This court in a number of similar cases where medical problems were made a ground of challenge to the order of transfer has declined relief. No exception can be made in this case as the case of the petitioner does not stand at any better pedestal from the ones’ earlier decided. 10. A reference in this regard can be made to various judgments of this court, which have been dismissed on medical grounds viz. Tariq Hussain vs. State & Ors, SWP No. 610/2016, decided on 29.3.2016, Abdul Rashid Vs. State & Ors, SWP No. 2259/2015, decided on 18.8.2015, Nighat Parveen vs. State & Ors, SWP No. 926/2015, decided on 10.4.2015 and Farooq Ahmed Vs. State & Ors, SWP No. 2126/2013, decided on 3.10.2013. 11. Considering the facts of the present case in the backdrop of the ratio of the judgments above, it is not possible for this court to interfere in the order impugned. However, it shall be open to the petitioner to approach the official respondents, who may consider the representation, if any, filed. This, however, shall not be taken as a direction to the respondents. 12. Disposed of accordingly along with connected MP.