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2019 DIGILAW 498 (JK)

Ashok Kumar Raina v. State of J&K

2019-11-25

TASHI RABSTAN

body2019
Judgment 1. The petitioner in this writ petition seeking to quash and set aside order impugned No.23-FST of 2019 dated 17.01.2019 passed by respondent No.1 qua him. The contention of the petitioner is that he was sent on deputation as Range Officer, Jasrota Range Kathua and was selected for undergoing Assembly Level Master Training Course for conducting Lok Sabha Election of 2019 vide Order No.DYDEO/K/ 2019/11568 dated 16th January, 2019, but, respondent No.1 has transferred and repatriated him to his parent department, i.e., Social Forestry Department, and respondent No.6 has been transferred and posted as Range Officer, Jasrota Range vice petitioner. The petitioner has contended that in view of his selection to undergo Assembly Level Master Training Course, he will not be able to undergo the training course, as has been ordered by Deputy District Election Officer, Kathua and instructed by the Chief Electoral Officer, Jammu and Kashmir and thus, the entire exercise conducted on the instructions of Chief Electoral Officer, J&K, will be rendered useless and the petitioner will not be able to undergo the training for conducting of the Elections of 2019. 2. Notice was issued by this Court in this case on 24.01.2019 and order impugned bearing No.23-FST of 2019 dated 17th January, 2019 stayed. 3. The State respondent has filed objections to the main petition as also an application for vacation of stay order dated 24.01.2019 by contending that the order impugned dated 17.01.2019 was issued by the competent authority for professed purpose of administrative interest and the same does not violate any right of the petitioner nor does it inflict any evil or civil consequences upon the petitioner. Learned counsel appearing on behalf of respondents contends that it is settled position of law that no Government servant or employee has any legal right to be posted for ever at any particular place. He further contends that in view of the Full Court judgment of this Court passed in SWP No. 1476/29014 and other connected petitions titled Syed Hilal Ahmad and others v. State as reported in 2015(3) JKJ 398 an interference in the matters of transfers would warrant only in the case of (i) Transfer order passed in violation of statutory Rule, (ii) Transfer order passed for mala fide reasons and (iii) Transfer order passed by an incompetent authority. He further contends that insofar as the facts of the present case are concerned, none of the aforesaid grounds exist. Neither it is a case of the petitioner that the transfer order is in violation of any statutory rule nor malafide are alleged nor is the case of the petitioner that the impugned order has been issued by an incompetent authority. It is further contended that the petitioner is borne on the establishment of Social Forestry Department, and is figuring at S.No.2 in the final seniority list of Deputy Foresters, and the petitioner was neither placed/promoted against the post of Forester nor is holding the post of Forester on substantive basis, and as such, he is not figuring in the seniority list of Foresters issued by the Department on 07.01.2017. Learned counsel further contends that vide Govt. Order No.23-FST of 2019 dated 17.01.2019, Sh. Suresh Kumar, Forester (Territorial) has been transferred and posted as Incharge Range Officer, Jasrota Range, in place of the petitioner, who has been repatriated back to his parent Department, i.e., Social Forestry Department. 4. The respondent No.6 has also filed objections contending therein that the order impugned dated 17.01.2019 has been issued by the Commissioner/Secretary, Department of Forest, Ecology and Environment, Government of Jammu and Kashmir, who is the administrative head of both the Forest (Territorial) as well as Social Forestry Department. It is further contended that the aforesaid Government order has been issued taking into account the smooth functioning of the Department and in the interest of administration, and order impugned dated 17.01.2019 has been issued as per the guidelines and instructions issued by the Government through Circular No.22-GAD of 2018 dated 06.07.2018 and the Govt. Order No.1285-GAD of 2018 dated 09.08.2018 whereby the attachments, deputation of the Officers/officials outside their parent Department/cadre were cancelled and the said officials were repatriated to their parent departments. The respondent No.6 has also contended that it is not only the petitioner who has been repatriated to his parent department, but, there are many others in different departments, who have been repatriated to their parent departments and their attachments have been cancelled pursuant to the directions issued by the State Government through aforesaid orders. 5. The respondent No.6 has also contended that it is not only the petitioner who has been repatriated to his parent department, but, there are many others in different departments, who have been repatriated to their parent departments and their attachments have been cancelled pursuant to the directions issued by the State Government through aforesaid orders. 5. The petitioner seeks quashment of transfer order primarily on the ground that he was sent on deputation as Range Officer, Jasrota Range, Kathua, from where he was selected for undergoing Assembly Level Master Training Course for conducting Lok Sabha Election of 2019, vide Order No. DYDEO/K/2019/11568 dated 16th January, 2019, but, respondent No.1 has transferred and repatriated him to his parent department, i.e., Social Forestry Department and the respondent No.6 has been transferred and posted as Range Officer, Jasrota Range, in place of petitioner. The petitioner has also stated that in view of the selection for Assembly Level Master Training Course, the petitioner will not be able to undergo the training course, as has been ordered by the Deputy District Election Officer, Kathua and instructed by the Chief Electoral Officer, J&K and thus, the entire exercise conducted on the instructions of Chief Electoral Officer, J&K will be rendered useless and petitioner will not be able to undergo training for conduct of the Elections of 2019. 6. This Court vide order dated 24.01.2019 stayed the impugned order. It is now about eleven months past, when interim order was passed by this Court and the circumstances as contended in writ petition as well have changed. The relief sought for and granted by this Court has already outlived, and as a corollary thereof the grievance, projected by the petitioner against the transfer order, stands redressed, so much so, that there is no representation on behalf of the petitioner for the last four occasions, which suggest that the petitioner has no interest to prosecute this petition. 7. In State of U.P. vs Gobardhan Lal, (2004) 11 SCC 402 , it has been held by the Hon’ble Supreme Court that transfer is the prerogative of the authorities concerned and Courts should not normally interfere therewith. It would be relevant to reproduce paragraphs 7 and 8 hereunder:- “7. 7. In State of U.P. vs Gobardhan Lal, (2004) 11 SCC 402 , it has been held by the Hon’ble Supreme Court that transfer is the prerogative of the authorities concerned and Courts should not normally interfere therewith. It would be relevant to reproduce paragraphs 7 and 8 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. 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. 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.” 8. In Union of India vs S. L. Abbas, AIR 1993 SC 2444 , it has been held by the Hon’ble Supreme Court as under: “7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, the husband and the wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally enforceable right.” 9. Further, in a series of judicial pronouncements, it has been held that transfer is an incident of service and the scope of judicial review of transfer order under Article 226 is very limited. What is held by the Supreme Court in State of Haryana Vs Kashmir Singh, (2010) 13 SCC 306 is reproduced hereunder: “14. In our opinion, the High Court has taken a totally impractical view of the matter. What is held by the Supreme Court in State of Haryana Vs Kashmir Singh, (2010) 13 SCC 306 is reproduced hereunder: “14. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.” 10. It is well settled in law that executive instructions and government orders are subject to Statutory Rules and the Legislature, who framed the Rules, cannot delegate its power to the authorized officer or executive. The executive can issue Government orders only within the bounds of the Rules. The Full Bench of this Court in Syed Hilal Ahmad & others vs. State of J&K & others reported in SLJ 2015 (I) 01, has held that Government servant has no enforceable right to insist that he/she shall be permitted to serve for definite/ specific period at a particular station or a post. 11. Apart from the above, it is very sad state of affairs that petitioner, like persons are trying to elude the responsibilities that is cast upon them the moment they join the government service. It cannot be said that it is not known to everyone that today’s youth, particularly, in Jammu and Kashmir which has limited resources, are facing alarming unemployment and they are ready to serve and work not only in any part of the Country, but outside the Country as well. Such unemployed youth leave their families here and work hundreds of kilometer away from their families, whether their families are in distress or ease. Then how can petitioner, like persons/employees, be permitted to make lame excuses of not working or serving the State either on transfer or repatriation. Such unemployed youth leave their families here and work hundreds of kilometer away from their families, whether their families are in distress or ease. Then how can petitioner, like persons/employees, be permitted to make lame excuses of not working or serving the State either on transfer or repatriation. In the present case, petitioner has been just repatriated to his parent department, i.e. Social Forestry Department, to serve there and discharge his duties there. The Social Forestry Department is the place/organization, where petitioner has been appointed and where he has lien and promotional avenue. He cannot be permitted to get away from his duties that are cast upon him and that are attached to the post that he holds. 12. That being the situation and in view of the above discussion, I do not find any merit in the petition and the same is, accordingly, dismissed along with connected CM(s). Interim direction(s), if any, shall stand vacated.