Devinder Kumar vs State and Others

Hon'ble Mr Justice Muzaffar Hussain Attar, Judge

Petitioner, a Junior Engineer, was transferred vide Order No. 13808-11 dt. 28th of Jan'10, from PWD, R&B Jammu Kathua Circle, and

posted at PWD (R&B) Construction Division No. 1, Jammu. He was relieved on 2nd of Feb'10, and directed to join at the new place of posting

vide order No. 3-08 dt. 6th of April'10. Petitioner has again been ordered to be transferred vide order No. 284-PW(R&B) of 2011 dt. 18th of

Aug'11, and posted to PMGSY, Jammu. It is this order, which is called in question in the present petition on the sole ground that it has been issued

in breach of Policy formulated by the Government notified vide Government Order No. 861-GAD of 2010 dt. 28th of July'10.

Counsel for the petitioner referred to Clause ""C of the aforementioned Policy and stated that the petitioner having not been permitted to

complete minimum period of two years, could not be transferred without complying the said Transfer Policy, issued by the Government.

Government or the competent authority is conferred with the power of transferring an employee from one post to another post in service or

class of service in terms of Rule 27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (for short Rules of

1956). The said Rule do not provide for the procedure or guidelines for ordering transfer of an employee from one place to another place. Many

authorities are clothed with power in law to transfer an employee from one place to another place in a service or class of service. Every authority,

in view of Rule 27 of the Rules of 1956, can pass a transfer order according to his own predilections and personal disposition, thus, providing

scope for arbitrary exercise of power. The power of transfer in terms of Rule 27 of the Rules of 1956, if it is not controlled and guided, would fall

foul of Article 14 of the Constitution of India. The Government has been issuing transfer policies from time to time. Order No. 861-GAD of 2010,

dated 28th of July'10, notifies the latest transfer policy of the Government. The Government and its authorities are, thus, bound to follow the said

transfer policy. All the eventualities are covered by the said transfer policy leaving a little scope for the authorities to abuse or manipulate the power

of transfer.

The transfer policy is, thus, to be read as part of Rule 27 of Rules of 1956 and is capable of being enforced in a court of law.

Petitioner, admittedly, has been prematurely transferred. Whether such a premature transfer has been issued after complying with the guidelines

notified by order dt. 28th of July'10, is required to be seen.

It would be, thus, appropriate at this stage, to dispose of the petition in the following manner:-

The petitioner is directed to file a representation before the competent authority within a period of one week from today and the respondents are

directed to take a decision thereon in accordance with the rules and in light of observations made in this order within a period of one week

thereafter. For two weeks from today, the impugned transfer order dt. 18th of Aug'11 and corrigendum issued thereto dt. 24th of Aug'11, so far

as it pertains to the petitioner shall not be acted upon.

Connected CMP is also disposed of.