Mohammad Ashraf Wani vs State of J&K and others

Application (MP no.02/2017), seeking vacation of order dated 24th November 2017, passed by a Bench of this Court in SWP no.2399/2017,

has been filed by respondents 1 to 4.

Given the case set up, it is appropriate to take up the main writ petition for final disposal.

Petitioner is working as Junior Pharmacist in respondent Department. He is aggrieved of and assails Transfer Order no.CMOK/Est-II/5372-73

dated 18th November 2017 and Reliving Order no.BMOK/514-17 dated 20th November 2017. Petitioner, on the edifice of case set up, seeks

quashment of both, transfer and relieving orders, with further direction to respondents to allow him to continue at his present place of posting i.e.

Sub Centre Marhama, Kupwara.

One of the main contentions of petitioner, when the matter was taken up at its threshold, was that Chief Medical officer had never issued any

order, transferring petitioner from SC Marhama to SC Kuchan Jumgand, yet Block Medical Officer, Kupwara, ordered his transfer to Jumgand

which was without any authority. Considering this submission of learned counsel for petitioner, a Bench of this Court vide order dated 24th

November 2017 stayed impugned order dated 20th November 2017. However, it was made clear that in case it is ultimately found that transfer of

petitioner was made under direction of Chief Medical officer, writ petition would be dismissed.

Learned counsel for respondent department has filed application (MP no.02/2017), enclosing therewith impugned order no.

CMOK/Est/II/5372-73 dated 18th November 2017, issued by Chief Medical Officer, Kupwara. Perusal whereof reveals that petitioner, namely,

Mohd Ashraf Wani, Jr. Pharmacist, has been transferred and adjusted at SC Kuchiban Jumgand. In such circumstances, it becomes unequivocally

evident that transfer order of petitioner has been issued by Chief Medical Officer, Kupwara and there was no occasion for Block Medical Officer,

Kupwara, to relieve petitioner without any authority. Be that as it may, writ petition is not maintainable inasmuch as the scope of judicial review of

transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC

148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd v. Shri Bhagwan (2001) 8 SCC 574; State Bank of India v. Anjan

Sanyal (2001) 5 SCC 508. The principle of law laid down in the aforesaid decisions is that an order of transfer is a part of service condition of an

employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 of the

Constitution.

It is too late in the day for any government/public 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 desires. 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 is 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 Supreme Court has categorically made it clear and held in State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402, that transfer is the

prerogative of the authorities concerned and Courts should not normally interfere therewith. After saying this, the Supreme Court held that order of

transfer made even in transgression of administrative guidelines cannot also be interfered with, as Transfer Policies do not confer any legally

enforceable rights. The Supreme Court further says that a challenge to an order of transfer should normally be eschewed and should not be

countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the

administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own

decisions in the matter of transfer for that of competent authorities and even allegations of mala fide when made must be such as to inspire

confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out

of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.

In Union of India vs S. L. Abbas, AIR 1993 SC 2444, the Supreme Court has held:

Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is

made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must

keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer,

the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, the

husband and the wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally

enforceable right.

Above and beyond, in a series of judicial pronouncements it has been held that transfer is an incident of service and the scope of judicial

review of transfer order under Article 226 is very limited. What is held by the Supreme Court in State of Haryana vs Kashmir Singh, (2010) 13

SCC 306 is profitable to be reproduced infra:

In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties

will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative

peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police.

Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any

fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As

Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.

That being the situation and in view of the above discussion, I do not find any merit in writ petition on hand and the same is accordingly,

dismissed with connected MP(s). Interim direction(s) shall stand vacated.