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2019 DIGILAW 478 (JK)

Mohammad Maqbool Shah v. State of J&K

2019-11-01

ALI MOHAMMAD MAGREY, RASHID ALI DAR

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ORDER : Ali Mohammad Magrey, J. 1. By medium of the instant appeal, the appellant/writ petitioner has thrown challenge to order dated 25.10.2019 passed by the learned Single Judge in writ petition bearing WP(C) No. 3119/2019, in terms whereof, the petition of the appellant/writ petitioner was dismissed. 2. The appellant/writ petitioner has questioned the order impugned, amongst other grounds, on the ground that the order of the learned writ court is bad in law because the writ court has not appreciated that the order of transfer of the appellant/writ petitioner, impugned before the writ court, has neither been issued for public interest nor in the interest of the department. It is stated that the appellant/writ petitioner was earlier transferred at his present place of posting in terms of order dated 21.01.2019 and only after 8 months, in terms of the impugned order before the writ court, was again transferred, on the ground of smooth functioning and public interest, thereby rendering the order of transfer of the appellant/writ petitioner as premature. The appellant has also challenged the order impugned in the instant appeal on the ground that he going to retire after 6 months on attaining the age of superannuation, as such, the interest of justice demands that he may be allowed to retire from his present place, so that he would not suffer because he had already submitted the necessary documents for preparation of his pension book. This fact, as per the appellant/writ petitioner, was not appreciated by the learned writ court, therefore, the order of the writ court deserves to be quashed and set-aside. 3. Heard the learned counsel for the appellant/writ petitioner, perused the pleadings 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 should be allowed to serve at a particular place for a particular period. 5. An employee, holding a transferable post, has no right to insist that he should be allowed to serve at a particular place for a particular period. 5. 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. 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. 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 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. 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.” 6. In view of above, this appeal is found to be meritless and, as such, same shall stand dismissed alongwith connected CM(s). There shall, however, be no order as to costs.