Mohd.Afzal vs State of J&K and Ors.

In this petition under section 103 of J&K Constitution, the petitioner has challenged Government order No. 973 HMF of 1993 dated

28121993 (Annexure P2 to the petition) where he has been transferred from the post of Chief Medical Officer, Baramuila to that of Deputy

Medical Superintendent, Children Hospital, Srinagar.

The grounds taken in the petition firstly are that due to his retirement within one year, he could not have been transferred from the present place

of posting against the guidelines/orders issued by the Government, being resident of Khoor, District Baramulla, that he has been lowered in status

and authority under the order impugned; thirdly his transfer is premature having a stay of only seven months, therefore, the transfer impugned is

against the policy and guidelines issued by the Government from time to time. Therefore, the order impugned be quashed and mandamus issued

against the respondents to allow the petitioner to continue at his present place of posting.

On coming up of the petition before a single bench of this court, notice was issued vide order dated 1711994 and operation of order impugned

as it referred to the petitioner kept in abeyance,

The respondents appeared and filed their objections regarding the maintainability of the petition. One Doctor Ghulam RasooS, Block Medical

Officer, Tral who got promoted and posted in place of the petitioner filed a CMP for being impleaded as party respondent, the interim direction

operating against him without he being a party to the petition. Vide court order dated 2511994 the said Doctor Ghulam RasooS has been

substituted as respondent No. 3 in place of Dr. Qayoom. The petitioner after obtaining the interim direction has also applied for substituting Dr.

Qayoom respondent No. 3 by Dr. Ghulam Rasool, being a necessary party. The matter came up before this bench on 2411994 when the

petitioner sought extension to interim direction which was opposed by respondents on the ground that the petitioner has already filed a civil suit on

the same facts before District Judge, Baramulla and obtained an injunction from that court against the implementation of the order impugned in this

petition, not being entitled to maintain the present petition due to parallel proceedings pending then before District Judge, Baramulla Thus interim

direction was not extended, but the petitioner given liberty to withdraw the Civil proceedings from the court of District Judge, Baramulla.

The petitioner has withdrawn the civil suit and the matter has come up for consideration on admission.

I have heard learned counsel for the parties.

The respondents in their objections have objected to the maintainability, of the petition on the ground that the petitioner cannot maintain two

parallel proceedings before two courts on the same point and that the petitioner has not been lowered in status as the post of Chief Medical Officer

and Dy: Medical Superintendent are equivalent that the transfer of the petitioner by the respondent is in the interests of administration; that the

petitioner is no more resident of District Baramulla having constructed a house in Amdakadal, Srinagar and having obtained a ration card also

which fact is also borne out by the record of communication by the petitioner to the address of Government indicating his residence as Amdakadal,

not Khoor District Baramulla.

The petitioner, during the pendency of this petition, has suomoto filed a CMP supported by a supplementary affidavit indicating that his wife is

not a Government employee, nor posted in Srinagar as alleged by the respondents, that respondent No. 2 managed the joining of respondent No.

3 on 30ih December, 1993 at Baramulla through the good offices of her husband who is Superintending Engineer at Baramulla.

Mr. M. Eijaz did not dispute the fact that petitioner is holding the post of Chief Medical Officer at Baramulla despite joining of his client

respondent No. 3.

I have considered the averments made in the petition together with supplementary affidavit and objections filed by respondents 1 to 3.

The first objection raised by the respondents is regarding maintainability of this petition on account of two parallel proceedings at the instance

of the petitioner one civil suit before District Judge, Baramulla and subsequently this petition. It was argued by learned counsel for respondents that

the petitioner has not due to oversight or negligence omitted to indicate the civil suit before District Judge, Baramulla, but has deliberately mislead

the court to entertain the petition in order to obtain one more interim direction granted by this court. LC for the respondent draw my attention

specifically to para No. 6 of the petition where in it has been averred that the petitioner has not on same facts filed any petition before High Court,

Supreme Court or any Tribunal, concealing the fact of pendency of the suit on the same subject before District Judge, Baramulla in which he had

obtained injunction. Had the petitioner come with clean hands before the court indicating the pendency of the civil suit. Which has now been,

withdrawn under the direction of the court, this petition may not have been entertained as the maintainable due to parallel proceedings in two

courts, then the question of interim direction obtained from this court would have never arisen. Notice in the petition and interim direction has been

issued due to deliberate concealment of the fact regarding the pendency of the civil suit on the same facts. Thus, the attempt of the petitioner to file

this petition cannot be said to be bonafide. Learned counsel for the petitioner could not reconcile the objection of the respondent on this point

except that when this petition was filed on 31121994, the court was preparing to close for winter break. But this excuse cannot be held sufficient

to ignore the objection of the respondents. The fact that the pleadings indicate other courts as referred, but not District Judge, Baramulla amounts

to concealment of a material fact that too short of bonafide. Had the petitioner failed to make declaration as in para No. 6 of the petition specifying

different forums, the situation was one, but on making the declaration of courts omitting to indicate the court of District Judge, Baramulla where

parallel proceedings were pending, the petitioner is guilty of suppression of material fact. Had he indicated the court of District Judge, Baramulla

where the parallel proceedings were pending, the petitioner would have never succeeded in obtaining the interim direction.

The first point argued by the learned counsel for the petitioner is that petitioner is retiring within one year and on that account is entitled to

continue on the post from which he has been transferred under the order impugned till his retirement as per the Government policy and

Government orders. The petitioner being resident of Khoor, District BaramuHa could not have been transferred to Srinagar, outside his home

District. The order of transfer on that court deserve to be quashed. Learned counsel in this connection referred to a photo copy of minutes of the

meeting held under the Chairmanship of special Secretary to Government, Health and Medical Education, Government of J&K dated 2971991

wherein the following minutes have been recorded and issued by under Secretary to Government. Health and Medical Education Department on

581991.

Such of the Officials as are due to retire on superannuation pension within next year or so should not be normally dislocated, steps need to be

taken to allow these officials to function within home Districts as per the standing instructions of the Government.

This is the sole reference made to these minutes under which the petitioner seeks to forestall his transfer under the order impugned. The

respondents have in their objections supported by a communication addressed by the petitioner that he is a resident of District Baramulia, he

having constructed a house at Amdakadai, Srinagar where he is holding a ration card also which fact the petitioner has admitted as a temporary

measure, not permanent residence. The petitioner has not refuted the objection that he has not communicated to the Government for sanction of his

leave indicating his residence at Amdakadai, Srinagar not Khoor, District Baramulia. Therefore the petitioner by his admission maintaining

residence al Srinagar and having a ration card also defeats his plea on facts, and otherwise suffice to say regarding the interpretation of the minutes

referred to by learned counsel for the petitioner, it is not even circular, Government order or guidelines by the Government, but only minutes issued

under the signature of Under Secretary to Government, short of backing, and the minutes cannot bind the boss, the Government. If at ail these

have to be given credit that is by the subordinate agencies had it been the creation of legislature which it is not and these minutes cannot be

enforced by the petitioner in writ jurisdiction unless having force of Statute or a rule. For the reasons, it is observed that the minutes referred to and

quoted are not justiciable before the court particularly against the Government which is a Superior authority having power to ignore directions of its

functionaries. Thus the argument on this point to forestall the transfer of the petitioner under the order impugned appears to be misconceived.

The second point raised by the learned counsel for the petitioner is that petitioner has been lowered in status and authority by transferring him

from superior post, Chief Medical Officer, Baramulla to Deputy Medical Superintendent, Children Hospital, Srinagar, therefore, quashment of the

order impugned in reference to the petitioner.

The respondents in their objections have refuted the allegation and argued that the posts of Chief Medical Officer (District Medical Officer),

Superintendent of Hospitals and Deputy Superintendent of Hospitals are at par carrying the same grade, short of any difference in rank, status or

authority. In this connection, Mr. Sadiq, AAG referred to the Jammu and Kashmir Medical (Gazetted) Service Recruitment Rules, 1970,

ScheduleI, Designation of the Post and Grade in part 2nd (A) of the same where District Medical Officers, Superintendents of Hospitals and

Deputy Superintendent of Hospitals are shown at par carrying the same grade and having common feeder to the post. The petitioner except

pleading the point has not explained in what manner and under what conditions his authority or rank or status has been reduced. The point, as

observed, has neither been explained nor elaborated for the relief sought. Looking to the Rules referred, the plea of the petitioner and argument of

learned counsel for the petitioner is unfounded.

The third crucial point raised by the learned counsel for the petitioner is that the petitioner has been prematurely transferred having held the

post only for a period of seven months till the order of transfer. On that account the order of transfer against the petitioner cannot stand in

accordance with the orders issued by the Government. Learned counsel for the petitioner to support his argument referred to the Government

order No. 912GD of 1988 dated 1661988, the relevant portion of which is quoted hereunder:

(1) Every employees (Gazetted or nongazetted) should be allowed to complete his tenure of 2 years at a place and no transfer should be affected

earlier than that. Similarly, no employee should be retained at a place for more than 3 years except in extraordinary circumstances which shall be

specifically brought to the notice of the Government (in the General Department for information of the Chief Secretary).

This provision quoted above was much exploited by learned counsel for the petitioner to invoke the extra ordinary jurisdiction of this court to

quash the order impugned that the petitioner stands admittedly transferred only after a period of seven months, therefore, the Government order

violated and observed in breach only. It was argued by learned counsel that the fact that the petitioner stands transferred only after seven months is

not disputed but it was argued by Additional Advocate General that the transfer is by the author of the Government order itself and the

Government cannot bind itself under its own orders, but has discretion to comply the order or not to comply, particularly when such direction is

issued for guidance of the subordinate authorities not for consumption of the superior authority i.e. the Government. From the bare perusal of the

order itself, it is clear that if there is premature transfer before two years or retention beyond three years, such a situation has to be brought to the

notice of the Government in the General Department for information of the Chief Secretary. That means the direction is for the functionaries of the

Government rather the competent authorities, not the Government itself who can overlook such order, direction or circular under the caption of

public interest or in the interests of administration. The order in question has been passed in the interests of administration and this observation

ignores the persons but prefers this public service by its functionaries as the functionaries are for administration, not viceversa, because

administration is for public. Moreover the petitioner has been holding a transferable post and he cannot have grudge having been transferred except

transfer can be challenged on grounds first lack of competence and on mala fides as held by their lordships of the Division Bench in LPA No.

37/94 connected with SWP No. 40/94, excluding any other plea or argument to forestall the transfer. In the case in hand the petitioner has not

attached any mala fides or raised question of competence in his petition. All that the petitioner has succeed in the supplementary affidavit indicated

rather alleged against respondent No. 2, Director Health Services that she managed the joining of respondent No. 3 at Baramulla through the good

offices of her husband who is a Superintending Engineer at Baramulla. This fact has not been raised in the first instance in the writ petition, but

suomoto supplementary affidavit brought on record without naming respondent allegation. The order is issued by respondent No.1, Government of

J&K, not respondent No.2, Director, Health Services. Therefore, the allegation in the supplementary affidavit against respondent No.2 cannot be

given credit, nor can malafides attached to the affair. The petitioner has made an attempt in vain to throw mud on respondent No.2 without any

material. In the judgment referred to above, the Division Bench has clarified worth and value of Government orders identical relied by the petitioner

in these words:

It is not claimed by Dr. Dar that these Government orders have been issued in exercise of any statutory power. They are mere executive

instructions. If Dr. Dar's case is that these executive instructions have been violated his remedy lies in approaching the Government which has

issued the instructions. Since they do not have any statutory force no actionable right has been created by these Government orders.

What the Division Bench has ruled is that these Government orders have no statutory force and no actionable claim will lie on the basis of these

Government orders which are only guidelines to the subordinate authorities and cannot bind the Government. Therefore, it can be safely observed

that Government orders indicated regarding transfer of employees from a transferable post are not justiciable before the court having no status of

rule or backing of any Statute.

My observations are supported by a judgment delivered by his lordship Shri V. Khalid, Chief Justice reported in SLJ.1984 J&K Page 167

where his lordship has observed:

The grounds urged in the petition are the order are [SIC] that it contravene the standing Govt. order under which no Government servant can be

transferred from a post before the completion of two years at that post, that it is in violation of Rule 27 of the Jammu and Kashmir Civil Services

(classification, control and Appeal) Rules, 1956, that it has been passed arbitrarily and with malafides for collateral purposes and that it offends the

principles of natural justice.

I am not satisfied with the grounds urged in the petition to quash the order of transfer. Mala fides have not been clearly set out in the petition.

Though Rule 27 of the Rules and other Government orders required that an officer should not .be transferred before the completion of two years

service at a post, they are not rigid rules which cannot be relaxed. Transfer orders are passed in the exigencies of service and transfers area part of

the service of every employee. In the absence of any valid ground in the petition. I do not feel persuaded to issue notice in this writ petition to hear

the other side. The writ petition has therefore to fail and is, accordingly, dismissed.

In AIR 1991,SC 532, their lordships of the Supreme Court have observed:

In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the

transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable

post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by

the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the

Courts ordinarily should not interfere with the order instead affected party should approach the higher authority in the Department. If the courts

continue to interfere with daytoday transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in, the

Administration which would not be conductive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.

In another judgment delivered by his lordship Mr. Justice M.L. Bhat, reported in SLJ,1984J&K page 436, his lordship has observed:

Constitution of India Art. 14 and 16: By transfer from one place to another no violation of any right conferred by these articles is made more so

when the transfer is not arbitrary or unfair.

To conclude the points raised, lam of the opinion that order impugned (annexure P2 to the petition transferring the petitioner from the post of

Chief Medical Officer, Baramulla to Deputy Medical Superintendent, Children Hospital, Srinagar, does not lack competence of the authority,

being admittedly short of malafides also. Further the plea of the petitioner that the transfer order is against the Government orders

guidelines/circulars is not justifiable before the court of law in its writ jurisdiction. Further the petitioner has no right to continue on the post till

retirement, short of any rule of statutory mandate. Thus, the petitioner's plea that he has been prematurely transferred, lowered in status and

authority and transferred outside his home District cannot be accepted, the petitioner having been working on a transferable post having no legal

claim to continue on the same till his retirement.

The result is that the pleas of the petitioner to forestall his transfer miserably fail and the petition is dismissed at this very stage, however,

without any order as to costs.

The interim direction passed earlier is vacated disposing of the connected CMP.

File be consigned to records.