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2019 DIGILAW 440 (JK)

Abdul Majeed Sheikh v. State of J&K

2019-10-11

ALI MOHAMMAD MAGREY

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JUDGMENT : Ali Mohammad Magrey, J. By this petition, the petitioner has assailed the validity of order dated 20th of August, 2019, in terms whereof, the respondent No.2, while relieving the petitioner from the additional charge of Sale Centre Nichhama, Mr Tawseef Ahmad Wani, Incharge Store Keeper FCI, has been directed to take over the additional charge of Sale Centre Nichhama. 2. Mr Shuja, the learned counsel for the petitioner, submits that in terms of order dated 20th of August, 2019, the petitioner was sought to be relieved from the additional charge of Sale Centre, Nichhama, but, subsequently, when the actual fact attendant to the case of the petitioner vis-à-vis the posting of Mr Tawseef Ahmad Wani at Food Corporation of India was brought to the notice of respondent No.2, he, immediately, directed the respondent No.3 not to give effect to the transfer/ readjustment of the petitioner. The learned counsel further submits that even though the respondent No.2, in the capacity of Head of the Department, has already directed to allow the petitioner to continue at Sale Centre, Nichhama, and has also directed the respondent No.3 not to give effect to the adjustment made by him in respect of Store Keepers, but, for ulterior motives and extraneous considerations, the respondent No.3 has been making all preparations to give effect to order dated 20th of August, 2019, irrespective of the standing directions issued by respondent No.2 in the matter. It is pleaded that in a short span of ten days, four orders came to be issued by the respondents with regard to the relieving or otherwise of the petitioner from the additional charge of Sale Centre, Nichhama, as the initial order dated 20th of August, 2019 was for relieving the petitioner from the additional charge of Sale Centre, Nichhama; the order dated 26th of August, 2019 issued by the respondent No.3 directed Mr Tawseef Ahmad Wani to take over the additional charge of Sale Centre, Nichhama in place of the petitioner; the order dated 28th of August, 2019 of the respondent No.2 directed for retention of the petitioner and for not giving effect to adjustment of petitioner and that of Mr Tawseef Ahmad Wani; and finally, the order dated 30th of August, 2019 issued by the respondent No.3, keeping in abeyance the order dated 26th of August, 2019 relieving the petitioner from the additional charge of Sale Centre, Nichhama. It is pleaded that even though, in the order dated 30th of August, 2019, the respondent No.3 has himself stated that the order dated 26th of August, 2019 has been kept in abeyance pursuant to directions issued by respondent No.2, yet the respondent No.3 is still pressing into service order dated 20th of August, 2019 which, as per the learned counsel, is non-est and void ab-initio. 3. Heard the learned counsel for the petitioner, perused the documents placed on record and considered the matter. 4. It has, time and again, been held by various Courts, including the Hon’ble Supreme Court of the country, that transfer is an exigency of service and it is the prerogative of the employer to see as to at what place the services of an employee can be best utilized in the larger public interest. An employee, holding a transferable post, has no right to insist that he/she should be allowed to serve at a particular place, of his/ her liking, for a particular period. 5. Furthermore, a full Bench of this Court, while deciding a reference made in a bunch of writ petitions, the lead case being ‘SWP No. 1476/14’ titled ‘Syed Hilal Ahmad vs. State & Ors.’, decided on 31st of August, 2015, has settled the issue with respect to enforcement of the Executive instructions/Government orders. It is well settled legal position that Government instructions are not having statutory force. It is also settled in law that Executive instructions/Government orders are subject to statutory rules. Executive instructions cannot supplement the rules. The issue is no more res integra and has been settled by the Supreme Court in a catena of judgments. The Full Bench of this Court, while reiterating the observations of the Supreme Court, has also held that the Executive instructions/Government orders are subject to statutory rules. The relevant paras (11, 12 and 18) of the judgment are reproduced below, word for word and letter for letter: “11.It is well settled legal position that Government orders are only administrative instructions, having no statutory force. The 1956 Rules having been issued in exercise of powers conferred under Sub-Section (1) of Section 3 of the Jammu and Kashmir Civil Servants (Removal of Doubts and Declaration of Rights) Ordinance, 1956, the same is the statutory rule governing the field. The 1956 Rules having been issued in exercise of powers conferred under Sub-Section (1) of Section 3 of the Jammu and Kashmir Civil Servants (Removal of Doubts and Declaration of Rights) Ordinance, 1956, the same is the statutory rule governing the field. Thus, the contention of the learned counsel appearing for the petitioners that, minimum two years’ service is mentioned in the transfer policy through Government Order No. 861-GAD of 2010 dated 28.07.2010, is bound to be adhered to, has no force. As already stated, Rule 27 being statutory rule, empowering the government to post a government servant at any time in any place or in any post borne on the cadre, the said transfer policy, particularly the term mentioned therein, can be adhered to as far as possible and the same is only an executive instruction based on which no right could be claimed and no right having been vested, the government servant has no right to seek enforcement. Even for the sake of argument, the policy cannot have any binding force because the policy, if construed as binding, goes contrary to Rule 27. 12.It is well settled in law that executive instructions/Government orders are subject to statutory rules and the legislature, who framed the Rule, cannot delegate its power to the authorized officer or executive and the executive can issue Government orders only within the bounds of the Rules. The legislature has not amended Rule 27 fixing any minimum or maximum tenure to a Government servant to serve in a particular station. In the decision reported in AIR 1961 SC 4 , (Vasanlal Magan Bhai Sanjanwala v. State of Bombay), Hon’ble the Supreme Court has held that the legislature cannot delegate its essential functions which have been entrusted to it by the Constitution. In the decision reported in AIR 1962 SC 97 (Mohammed Hussain Gulam Mohammed v. State of Bombay) it was held that the authorized officer cannot issue order which is contrary to the statute. If the intention of the executive is to fix minimum or maximum tenure to a government servant to serve in a particular station, it can only recommend the legislature to amend the Rule. In the decision reported in AIR 1986 SC 1323 (Trivedi and sons, D.K v. State of Gujarat), the Hon’ble Supreme Court held that “the rule making authority cannot change the policy of the Act/Regulation”. In the decision reported in AIR 1986 SC 1323 (Trivedi and sons, D.K v. State of Gujarat), the Hon’ble Supreme Court held that “the rule making authority cannot change the policy of the Act/Regulation”. In this case, as on today, Rule 27 is not amended. Moreover, no policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes as held by Hon’ble the Supreme Court in (2007) 5 SCC 317 (Post Master General, Kolkata v. Tutu Das Dutta) and (2007) 2 SCC 491 (Punjab Water Supply & Sewerage Board v. Ranjodh Singh and Ors). 18.In the decision of the Hon’ble Supreme Court reported in AIR 2014 SC 263 (supra) it is held that the State Governments are affecting transfers and postings at the whims and fancies of the executive head for political and other considerations and not in public interest. Hence minimum tenure of service is good for the administration and efficiency. Insofar as the State of J&K is concerned, as stated supra, a minimum tenure of two years and maximum tenure of three years is already fixed in Government order dated 28.07.2010 and the said order is a guideline and not having any statutory force. In the said order itself it is stated that premature transfers, wherever unavoidable in the interest of administration, may be ordered on certain contingencies. Hence strict implementation of minimum 2 years and maximum 3 years tenure is not intended in the Government order. In such circumstances, the said Government order will not confer any right of enforcement through Court of law in the light of Rule 27 stated supra”. Viewed in the above context, the petitioner, in the capacity of an Incharge Storekeeper, has to serve as per the requirement of his employer in view of the mandate of the Classification, Control and Appeal Rules, however, having regard to the fact that there have been a series of orders issued by the respondents regarding the assignment of charge of Sale Centre, Nichhama, this writ petition, with the consent of the learned counsel for the petitioner, is disposed of by directing the respondent No.1 to look into the matter as to how the respondent Nos. 2 and 3 are making adhoc/ interim/ stop gap arrangements with reference to the charge of Sale Centre, Nichhama and, thereafter, withdrawing the same without any reason leading to unnecessary litigation. The respondent No.1 shall, besides ensuring that all the arrangements are made by the respondents with respect to transfer/ adjustment on any post strictly in accordance with the law and the rules governing the field, also make sure that the petitioner is posted commensurate to his status. 6. Before parting with the instant case, I may hasten to add here that while considering this matter it has come to the notice of this Court that the Directorate of Food, Civil Supplies and Consumer Affairs is not discharging its functions in tune with the mandate of rules/ law governing the subject insofar as the transfers/ adjustments of the officers/ officials of the Department are concerned. It has been noticed that sometimes the arrangements are made purportedly in the interest of administration and smooth functioning of the Department, but, only after within a short span of few days, same are again changed. This Court fails to understand as to how the respondent Department is regulating its administration in the larger public interest. The other aspect of the matter, which keeps cropping up before this Court, is that the Department is adhering to interim/ adhoc/ stop gap arrangements for filing up the posts borne on the establishment of the Department, which, too, is not permissible in terms of the relevant laws and the rules. Hon’ble the Supreme Court, in a catena of judgments, has also deprecated the practice of continuing the interim/ adhoc/ stop gap arrangements for indefinite periods of time, therefore, the Department could give a serious thought on the mechanism adopted by it as regards the transfer/ adjustment of its officers/ officials. Hon’ble the Supreme Court, in a catena of judgments, has also deprecated the practice of continuing the interim/ adhoc/ stop gap arrangements for indefinite periods of time, therefore, the Department could give a serious thought on the mechanism adopted by it as regards the transfer/ adjustment of its officers/ officials. In this backdrop, this Court, while disposing of the instant petition, has, keeping in view the interests of the Department as well as of the general public, thought it just and proper to issue certain general directions to the competent authorities in the respondent Department, which read thus: i.All the gazetted/ non-gazetted posts borne on the establishment of the Department, be those under promotional quota or under direct recruitment, shall be filled up on regular basis in tune with the mandate of relevant recruitment rules and the law governing the subject; ii.Interim/ ad hoc/ stop gap arrangements shall not be resorted to, however, such arrangements, on exigency, shall be filled up from amongst the eligible Officers on the basis of seniority and shall not be, at any stage, continued for indefinite periods of time. 7. Writ petition disposed of as above, along with the connected CM. 8. Registry to send a copy of this order to respondent No.1 for information and action.