Manmohan Lal & Ors vs State of Jammu and Kashmir through Chief Secretary & Ors.

The petitioners have challenged by means of this petition order No. Eng/648595 dated 7.12.1996, whereby the petitioners have been

transferred from their places of posting by the Chief Education Officer, Poonch, Respondent No.4 as desired by the Deputy Minister for

Education. The Order No. ENG/649899 dated 10.12.1996 has been issued in partial modification of the Order dated 7.12.1996, whereby

Mohd. Latif Supervisor A.E. Mandi Cluster has been adjusted as Supervisor Part Time Centre vice Mohd. Khursheed Kirmani Supervisor Part

Time Centers Mandi/Sathra Cluster, who will report to Zonal Education Officers, Sathra for suitable adjustment.

These impugned orders have been challenged on the ground that the orders passed by Respondent No.4 as desired by the Deputy Minister for

Education on, which is nothing but a political transfer. The Deputy Minister for Education has no authority to direct the Respondent No.4 to

transfer the petitioners from Adult Education to School Education. The impugned order has been passed for political considerations and is not in

the interest of administration. The services of the petitioners are protected under the Service Rules framed by the Respondent No.1 and the

Deputy Minister for Education has no authority or power under any rule to ask for such transfers of the petitioners.

The respondents have filed the objections supported by an affidavit opposing the maintainability of the petition, stating therein that no

fundamental or statutory rights of the petitioners have been violated. The petitioners have been transferred in the interest of administration and the

impugned order cannot be called in question in writ jurisdiction.

I have heard the learned counsel for the parties and perused the record. The learned counsel for the parties have submitted that though the

matter is listed for consideration of admission and since it has been argued at length, the same be finally disposed of.

It is admitted position of law that the Chief Education Officer, Poonch, Respondent No.4 has statutory power and jurisdiction to transfer the

petitioners, whereas the Deputy Minister for Education neither can transfer the petitioner nor can direct the Respondent No.4 for ordering such

transfers under any provision of the rules or the law. The transfer is an exigency of service and the Competent Authority is vested with the power

to transfer the public servant, whenever necessary, in the interest of administration but at the same time the Competent Authority has to keep in

mind, the policy of transfer, if any, and the order must reflect the application of mind of the authroity exercising such power. The impugned order

has been passed on the dictates and to oblige the desire of the Deputy Minister for Education and not in the interest of public or administration.

The Competent Authority having the power to transfer the employee is the best Judge of the exigencies of public servants and the interests of

administration. The authority should apply its mind and act on its own satisfaction that the circumstances in the interest of administration warranted

transfer of the employee but where the power is exercised for the collateral purposes or with oblique motive, such as in the present case, the

impugned order of transfer is issued as desired by the Deputy Minister for Education, amounts to colourable exercise of power. The petitioners are

within their sight to assail such orders and canvass in the court of law in the public interest so that the political influence in the matter of transfers is

not entertained by the authorities.

The impugned order on the face of it has been passed by the Respondent No.4 without application of mind and is against public interest when it

has been issued to oblige the desire of the Deputy Minister for Education. The desire of the Deputy Minister is no substitute of application of mind

by the authority having power to transfer the petitioners in the interest of public or administration. The impugned order need to be set aside. For the

foregoing reasons, the writ petition is allowed and the impugned Order NO. ENG/648595 dated 7.12.1996 and Order NO. ENG/649899 dated

10.12.1996 are set aside. However the transferring authority is at liberty to transfer the petitioners in accordance with law. It also disposes of I.A.

No. 1/96