Krishan Kumar vs State and Ors.

The petitioner is a Senior Assistant in Power Development Department. By order dated 9.7.2002 he was posted from M&RE Div, Kathua to

P&D Circle Jammu as Head Assistant on temporary basis reversible at any point of time without notice, alongwith 23 other Senior Assistants. He

represented to the Chief Engineer against his adjustment on health grounds. The Chief Engineer EM&RE by his order dated 30.7.2002 ordered

that the petitioner will continue to stay at his original place of posting on health grounds. The petitioner, therefore, continued to serve at Electric

M&RE Division Kathua. By order dated 28.2.2004 the Development Commissioner Power in the interest of administration transferred the

petitioner as Head Assistant alongwith post to M&RE Division Kathua, the place where he was continuing from Electric Division Poonch for a

period of six months. Before expiry of the period of six months the Development Commissioner Power issued another order being order

No.DC/PD/Adm/11/181 of 2005 dated 4.4.2005 and thereby adjusted the petitioner as Incharge Head Assistant awaiting adjustment in Electric

M&RE Wing Jammu in Electric Division Kathua in place of Romal Singh Incharge Head Assistant. The petitioner thus was allowed to continue at

the same place for more than about three years. The Government however by its order No. 123PDD of 2005 dated 12.4.2005 has rescinded the

order of the Development Commissioner Power. Since the order has been rescinded therefore the petitioner has to go to his place of posting to

which he has been posted by order dated 9.7.2002. Being aggrieved of the order the petitioner has filed this petition seeking quashing the

aforesaid Government order dated 12.4.2005,

I have heard the learned counsel for the petitioner.

Mr. Sethi has made twofold submissions; firstly he submits that the petitioner is at the verge of retirement and has to reach the age of

superannuation on 17.9.2006 and therefore, has a service period of one and half year. He submits that it is settled principle of law that a person

who is at the verge of retirement should be allowed to continue on his place of posting and should not be transferred within a period of two years

or so, so as to enable him to plan peacefully his postretirement life and it is only in exceptional cases if his transfer is felt necessary in the public

interest, it can be ordered. In support of his contentions he relies upon a Division Bench authority of Rajasthan High Court reported in 2001(1

SCT 476 titled Dr (Mrs) Pushpa Mekta v. Rajasthan Appellate Tribunal. In the aforesaid case the Rajasthan High Court, after noticing the law laid

down by the Supreme Court in its various judgments, including AIR 1993 SC 2444 held that it is well settled that ordinarily the Tribunals and the

Courts should not interfere with the order of transfer unless it is challenged on the ground of malafide or transfer is effected for extraneous

considerations. In the circumstances of that case the Court observed as follows:

In the instant case the second respondent is due to retire in January 2001 and the appellant has long to go in service. The Tribunal was of the view

that policy of the Government has been that ordinarily an employee at the verge of retirement should not be disturbed. It appears that the State

Government was also satisfied with the reasoning given by the Tribunal and therefore it did not prefer to challenge the said order. It is only the

appellant who is interested in posting at Udaipur, has preferred to challenge the order of the Tribunal. It may be noticed that in the opinion of the

Tribunal, the order the transfer was malafide for the reasons that it has been passed in order to only accommodate the appellant. This finding gets

confirmation from the fact that the State Government has chosen not to challenge the order of the Tribunal. Thus there appears to be no

administrative reasons to transfer Dr(Mrs) Pushpa Mehta to Udaipur and to disturb Dr(Mrs) Shanta Dubey who is at the verge of retirement. We

are of the view that unless there are compelling reasons, ordinarily an employee should not be disturbed from the place of his/her posting when

he/she is at the verge of retirement. An employee should be given sufficient time which may be of two years or so to plan peacefully his/her

postretirement life. This can be the legitimate expectation of an employee who has served the department for major part of his/her life. In

exceptional case, if the transfer in such case is felt necessary in the public interest it must be kept in mind while giving the fresh posting that minimum

inconvenience is caused to the concerned employee. Any transfer contrary to aforesaid principle will lead to interference that the order is mala

fide.

The observations made in the aforesaid authority has no application in the present case for the reason that in the case before the Rajasthan High

Court there was a government policy but in the present case the petitioner has not shown any such policy being followed by the Government of

J&K. Even if it is assumed that the Government has issued certain administrative guidelines for regulating transfers or contain transfer policy even

then it does not afford a ground to an employee for challenging his transfer made in public interest, the transfer of an employee is not only an

incident of service but is also essential condition of service. It is the prerogative of the employer to decide as to at what place and for what time the

services of an employee should be utilized. In State of U.P and others v. Govardhan lal, 2004(AIR) SCW 2082 it was held by the Supreme Court:

It is too late in the day for any Govt. 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 desire. 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 if 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. The order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any

legal enforceable rights, useless as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.

Thus an employee is not entitled to insist that he should be allowed to continue on a particular post on the ground that he is nearing his date of

superannuation. Therefore, there is no merit in this contention of Mr. Sethi.

Mr. Sethi has next contended that order of the Government whereby order of adjustment of the petitioner issued by the Development

Commissioner Power for his adjustment has been rescinded is illegal for the reason that under the provisions of C.S.R Art.339 entry 98 the power

to order transfer of the employee, like the petitioner, possessed by the Government has been delegated to the Development Commissioner Power.

Once the power was so delegated by the Government the Government possessed no jurisdiction in the first place to rescind an order passed by

the delegate i.e. Development Commissioner Power and even otherwise assuming that such power is possessed by the Government then same is

coextensive with that of the delegate i.e. Development Commissioner Power and therefore once the delegate has exercised the power the

Government having coextensive power is not possessed of that jurisdiction to rescind the same.

I am not in agreement with Mr. Sethi on this count too. The basic power of transfer lies with the Government being the employer of its

employees. The Government by delegating its power to some of its officer cannot in law be said to have abrogated its plenary power in favour of

such officer. A delegate exercises power delegated at the behest of the principal and the principal under law possesses all the power to ratify or

rescind the action of its delegate. Merely because power to transfer stood delegated to the Development Commissioner Power by the Government

it does not mean that the Government has no power to ratify or rescind action of its delegate officer. The Government, therefore, was fully

competent to rescind the order issued by its subordinate officer to whom it has delegated the power. Therefore, there is no merit in this contention

of Mr. Sethi also.

For the aforesaid reasons, there is no merit in the writ petition, which is accordingly dismissed, alongwith connected CMPs.