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2021 DIGILAW 283 (JK)

Anil Gupta v. UT of J&K

2021-06-04

JAVED IQBAL WANI, TASHI RABSTAN

body2021
Judgment 1. The challenge in this petition is to the Order dated 31.05.2021 passed in OA/807/2021 by the Central Administrative Tribunal, Jammu Bench, at Jammu (hereafter for short “Tribunal”) in case titled Dr. Anil Gupta Vs. UT of J&K and others whereby the prayer of the petitioner for grant of interim relief seeking stay of Govt. Order No. 80-ASH of 2021 dated 11.05.2021 passed by respondent No.2 rejecting his representation as also the implementation of Govt. Order No. 72-ASH of 2021 dated 29.04.2021 passed by respondent No.2, transferring the petitioner from the post of Incharge Poultry Geneticist, Jammu and shifting him to look after the work of Joint Director, IAH & BP Zakura and Chief Executive Officer, Livestock Development Board, Kashmir. 2. Learned counsel for the petitioner contends that being aggrieved of Govt. Order No.80-ASH of 2021 dated 11.05.2021 and Govt. Order No.72-ASH of 2021 dated 29.04.2021, the petitioner approached the Central Administrative Tribunal, Jammu for staying the operation of both the orders, inter alia, on the grounds that in terms of the Transfer Policy notified vide Government Order No.861-GAD of 2010 dated 28.07.2010 the petitioner has not completed his tenure of two years and has been transferred prematurely. It is averred that Transfer Policy notified vide Government Order No.861-GAD of 2010 dated 28.07.2010, which, among others, provides for minimum tenure of two years of Government servant at one place of posting, but, in the present case the petitioner has been transferred just after 11 months; and, moreover, there are no special circumstances, which warrant premature transfer of the petitioner. It is also contended that the impugned order qua the petitioner, on the face of it, is contrary to the transfer policy formulated by the Government and is also bad on the ground that no proper procedure, provided under Transfer Policy for premature transfer, has been followed by the respondents. 3. After hearing learned counsel for the parties, the Tribunal has rejected the prayer of the petitioner for grant of interim relief as the Tribunal has found that petitioner has already been relieved from his place of posting and another officer has already taken the charge of the post, held by the petitioner at Jammu, therefore, the Tribunal was of the view that no prima facie case was made out for staying the operation of the impugned orders. However, it was observed that looking to the grounds taken by the petitioner in the OA against his transfer the case was directed to be listed again on 07.07.2021 as the same required early disposal. 4. By virtue of instant petition, the petitioner has questioned the orders impugned, amongst other, on the grounds that the Tribunal has failed to appreciate the office record as well as pleadings besides specific ground taken by the petitioner of violation of Transfer Policy while passing the order impugned; that the orders impugned are liable to be set aside as the same are against the mandate of transfer policy, which contains a stipulation that the minimum tenure of government employee on a particular post shall be of two years and maximum of three years; that the premature transfers, wherever unavoidable in the interest of administration, shall be ordered with the prior approval of the Minister Incharge that too for the reasons to be recorded and the said Transfer Policy has attained statutory flavour after the issuance of SRO 307 which specifically prescribes that every transfer shall be ordered in accordance with the provisions of Jammu and Kashmir Government Business Rules and Transfer Policy notified vide Govt. Order No.861-GAD of 2010 dated 28.07.2010. 5. On the other hand, learned counsel for the respondents, Mr. K.D.S. Kotwal, Dy. AG submits that another officer has joined the post held by the petitioner and is performing duties on the said post from the date of his joining and the petitioner has been relieved. He further submits that the Tribunal has exercised the jurisdiction correctly and present writ petition against the interim order is not maintainable. He further submits that so far as the contention of petitioner, that his transfer is bad, being premature, is concerned, the same is untenable because even under the transfer policy the Government is empowered to pass a premature transfer order depending upon the exigency of service. The Government, being employer, is the master in transferring its employees as per the administrative exigency depending upon the requirement of services of an employee at a particular place and such a discretion of the Government cannot be interfered with, without any proper and substantial reasons. 6. The Government, being employer, is the master in transferring its employees as per the administrative exigency depending upon the requirement of services of an employee at a particular place and such a discretion of the Government cannot be interfered with, without any proper and substantial reasons. 6. We have carefully bestowed our attention to the writ record as also to the orders impugned so as to ascertain whether the order impugned, passed by the learned Tribunal rejecting the interim relief, warrants interference at this stage. 7. It is not in dispute that the new incumbent has joined the post, previously held by the petitioner and the Tribunal has correctly appreciated this fact while rejecting the interim relief and directed listing of the OA on 07.07.2021 for final disposal. Even otherwise, this Court is not inclined to interfere with the order passed by the learned Tribunal since it is an order passed on an interim application and main matter is yet to be decided by the learned Tribunal. So it will be appropriate for the petitioner to agitate the grounds taken in the instant petition which are otherwise available to him before the learned Tribunal and the same can be considered by the learned Tribunal at the time of hearing the petition finally. 8. That being the situation and in view of the facts and circumstances discussed above, we do not find any merit in the petition and the same is, accordingly, dismissed along with connected CM(s).