Bashir Ahmed Shah vs Union of India

the petitioner, programme Executive in Radio Kashmir Srinagar, is sought to be transferred to All India Radio Nagpur in the same capacity vide

order bearing No.4(215)91SI(B) 29.01.1999 which reads as under:

ORDER NO:17/99SI(B) Shri Bashir Ahmad Shah, programme Executiver Radio Kashmir, Srinagar is transferred to All India Radio, Nagaur in

the same capacity with immediate effect in public interest.

Sd/

(TB.Negi)

Dy. Director of Adm. (P) for Director General

This order is impugned through this writ petition which came to be admitted to hearing on 23 02.1999 on the consensus of the parties and was

finally heard. The respondent No.3 has filed reply which is sought to be read for other respondents as well.

The petitioner has questioned the competence of the Deputy Director {Adm}, Respondent No.4 herein, to pass the impugned order alleged to

have been engineered by the respondent No. 3 by way of punishment to wreck vengeance and is punitive in nature emanating from malafides.

At the very outset I would like to deal with the challenge thrown to the impugned order on the ground of the lack of jurisdiction. In this behalf it

is urged that the impugned order has been passed by the Deputy Director Admn. (P) who is neither the appropriate not the competent authority to

pass such orders and the foundation of the averment calls for an appreciation in the light of the pleadings of the parties. Thus it is imperative to go

through the same so as to arrive at a just conclusion.

A bare perusal of the text of the impugned order reveals that it has been passed by the respondent No. 4 'FOR DIRECTOR GENERAL'. In so

far as the competence of the Director General is concerned, the parties are not at issue and it is admitted that he has the power to pass the order

but it is the exercise of the power by the Deputy Director which is questioned. It is appropriate to notice that there are recognised modes for

authenticating the orders passed by the Union of India, the State Government and other functionaries and the question of the legality of the mode

would only arise if the order is issued in pursuance to an order passed by a competent/ appropriate authority. The contention of the parties to this

writ petition is that it is the respondent No.2 who is competent to paw an order of transfer. The respondent No.3 who has filed the counter has not

set up a case that the Deputy Director could pass the impugned order but what is canvassed is that the impugned order has been passed by the

Director General. This stand is belied by the very contents of the impugned order which depict that it has been passed by the Deputy Director on

behalf of the Director General which impression is evident from the words 'FOR DIRECTOR GENERAL' and exfacie, such an exercise of power

is not available to the Deputy Director. Moreover, from the stand taken by the respondents it is clear that the Deputy Director has passed the

order on his own and not in pursuance to the orders of the General and the contents of the order also suggest so. Had the Deputy Director passed

the order consequent upon the order of respondent No.2, it would have been altogether a different case and the only proposition manifest from the

impugned order is that the Deputy Director has assumed the power of the Director General unto himself by using the words 'FOR DIRECTOR

GENRERAL ' dehorns the rules and such omission and commission tantamounts to transgression of powers. I may hasten to add here that, may

be such course is available to the Deputy Director as a mode to implement the order passed by the Director General but in such an eventuality the

condition precedent is that the basic order must be by the Director General which is not true of the case in hand. I say so because the respondents

have not produced even the record which would indicate so, nor have they filed an affidavit of the Director General and examining the contents of

the impugned order coupled with the stand taken by the parties it can be reasonably gathered and presumed that the respondent No. 2 has not

ordered the transfer of the petitioner but the order has been passed by the respondent No.4, despite the fact that he has no competence to pass

the impugned order, hence without the sanction of law and without jurisdiction.

Now coming to the challenge of malafides which has been based on several instances and in this direction it is contended that during a meeting

of the programme officers held in the conference room of Radio Kashmir, Sirnagar, in the morning hours of 29.01.1999, the respondent No. 3

who presided over the meeting, lost his cool while the petitioner expressed his perception contrary to that of the respondent No. 3 in respect of a

programme 'SabRang' and forced the exit of the petitioner, uttering the words conveying to the petitioner that his services were not required any

more in Radio kashmir Srinagar. The same day respondent No. 3 is said to have maneuvered an order of transfer at Delhi at the hands of the

respondent no. 4, consequently the former has issued a memorandum at Srinagar on the very day viz 29.01.1999 requiring the petitioner interalia

to handover the charge infull, treating himself to have been relieved. The episode which occurred in the meeting is said to have evoked the

response of print media as well, evidenced by an extract from ""Kashmir Monitor"", a daily news paper.

The respondent No. 3 in his counter has dealt with the occurrence of 29 01.1999 in the following words

...It is further submitted that in the routine programme review and preview meeting regarding review of programmes the discussion took place

which is a usual occurrence during such meeting. Nothing abnormal happened,.

Besides implied admission of occurrence, it is relevant to notice that the respondent No. 3 has not disputed the fact that the impugned order was

issued from Delhi on 29.01.1999 and the same day the petitioner was asked to treat himself to have been relieved at Srinagar though requiring him

to handover the charge in full as is evident from the last para of the memorandum issued by the respondent No.3. What the compelling

circumstances were which prompted the respondent No. 3 to relieve the petitioner before the order could have reached him from Delhi and what

the reasons were which constrained him to relieve the petitioner before he could handover the charge, no explanation has been tendered by the

respondent No.3 in the counter.

The petitioner has reproduced the transfer policy in writ petition, submitting that the transfers of employees of Prasar Bharti are made in

accordance, with the said guidelines and the impugned order is said to be violative of the said policy. The fact that the policy is in vogue and is

being adhered to by the respondents is not in question and the violation of guidelines is urged on the ground that the petitioner has been subjected

to frequent transfers. It is contended that the petitioner's lone daughter is a student of Government Medical College Srinagar and has no male

member in the family who can lookafter her, It is also contended that his wife is a teacher in the State Education department. Her services are not

transferable outside the State, thus the order impugned is alleged to have been passed at the behest of the respondent No.3, aiming at causing

inconvenience to the petitioner. It is also contended that the sanctioned strength of Programme Executives in Radio Kashmir Srinager is 14

whereas only eleven posts are occupied. Reckoned as such three posts are vacant. Moreso, the petitioner's stay at a stretch is only one year and

ten months. Conversely, some of the Programme Executives have a stay of a decade but are untouched. These averments are also unrebutted and

are urged to show that the order is unreasonable, unfair, vindictive and punitive in nature.

Before dwelling upon the challenge based on malafide, I would like a deal, in the first instance, with the ground of the violation of guidelines.

There may be guidelines requiring the authority competent to post the two spouses at one place but such guidelines cannot create a right in either

spouse to claim such a posting as a matter of feasibility of posting, notwithstanding the guidelines and in certain cases posting of two spouses at two

different places may be unaviodable and one of such circumstances is that they belong to two different services, i.e. State Services and Central

Services as is the case with the petitioner and his wife. The former is on the establishment of Prasar Bharti, whereas his spouse is an employee of

the State and in which cases it is not easy to avoid transfer to different places but there must be an endeavour on the part of the competent

authority to consider such spouses for posting them at the same station and the purpose is to explore the possibility of allowing the two spouses to

be with each other with their children but if such posting is detrimental to the administrative needs, nothing can prevent the employer from posting

them at different places even if harship results to them and guidelines cannot help them is such circumstances for, these do not have statutory force,

Nonetheless, the authorities competent/ appropriate are required to address themselves to these aspects.

The impugned order is also alleged to have been passed in utter disregard to the exigencies of services. In this behalf it is averred that the

petitioner is M.A. in Urdu and the library works to his credit are almost in the same language excepting a few which are in Kashmiri whereas in

Naguar Rajasthan he is required to work in Hindi where he can be of no service because he is not Hindi knowing. This averment also goes

unrebuted. In this background it is useful to refer to the mandate of a judgment of the Apex court passed in case S.D.Sasrei Vs. Union of India and

others on 25.08.1989:

Upon hearing counsel for the court made the following order. After hearing the petitioner who appeared in person and the learned counsel

appearing on behalf of he respondents we direct that the petitioner shall not be transferred to place where there is no Hindi programme and that the

petitioner should also be placed in Hindi Station. The respondent will also consider the case of the petitioner that the should be given coordination

work according to the seniority. The writ petition is disposed of above. There will be no order as to costs.

One of the coordinate benches of this court had also an occasion to deal with a petition involving almost identical questions of fact and law in

case Ghulam Nabi Ratanpuri Vs. Union of India and others, SWP No: 2483/93 in which the court observed as under:

...this petitioner is being disposed of with the direction to the respondents not to transfer the petitioner to a place where Kashmiri programme is

not being broadcasted and in light of the Supreme court direction, the order impugned in this petition bearing No. 140/93SIB Dated: 7.09.1993 is

quashed by issuance of a writ of certiorari and the petitioner is relegated back to his position where from he was transferred and be paid his pay

dues which have accrued to him under rules.

From the pleadings of the parties it emerge that the petitioner is sought to be transferred to a station where he is to be idle because he is not

acquainted with Hindi language, obviously he shall have to enjoy emoluments and perks for no work in return. Therefore, the order is prejudicial to

public interest. No doubt an employee of respondent No.1 is liable to be transferred anywhere in India but when a mischief is attributed on the

basis of unrebutted facts, an inference on substantial foundation of malice and malafides can be drawn from the pleadings of the parties. In the case

in hand, tangible and congest facts have been pleaded and significantly these facts have gone unrebutted. In this view of the matter, there appears

no justification for passing the impugned order and the conclusion available is that the order passed by the Deputy Director is both violative of

provisions of the statue and emanates from malice and malafides.

The settled position in law being that when an order of transfer is passed malafide or is made in violation of the provisions of the statute, judicial

review of such order is permissible and incidentally the impugned order calls for indulgence on both the grounds, therefore, liable to be quashed,

yet a question arises as to whether this Judgment can have the effect of placing a restraint on the respondent No.2 from passing an order of

transfer, the administrative exigencies or public interest may demand. The answer to this question is found to be in negative because the power to

make the transfer flows to him from the statute and it is not his action which is questioned before the court but an action of an incompetent

authority, therefore, the respondent No. I shall be tree to pass an order afresh if he so chooses and if the circumstances call for it.

Keeping in view of the aforementioned facts and observations, the writ petition is allowed. The order bearing No.4(215)91SI{B) dated

2901999 passed by respondent No. 4 is quashed.

In view of the peculiar circumstances of the case no under as to costs.