Nazir Ahamd Wani vs Union of India

Syed BashirudDin, J.—Petitioners 1 to 3, LDC, and Petitioners 4 and 5 UDCS in DoorDarshan Kendra Srinagar have been transferred

outside the State in north zone vide order dated 15.3.2000 (AnnexureA). These clerks have challenged the transfer and are seeking quashment of

the impugned order with prayer for their continuance at Srinagar. The grounds taken to challenge the transfer are that the order is malafide for the

reason that 14 employees of Door Darshan Kendar Srinagar who were transferred outside the State. However, petitioners alone have been given

marching orders pursuant to the impugned transfer order, whereas the other nine colleagues of petitioner have been retained at Srinagar after their

ordered transfers were cancelled on 28.3.2000 (AnnexureC). Petitioners are stated to be above 50 years of age and cannot serve outside the

Valley in hot climate. Petitioner No. 1 Nazir Ahmad Wani is at the verge of retirement and is not suitable to be shifted from Srinagar. Petitioners

residents of the Valley, cannot leave their children behind in the prevailing situation as it is not safe for them to stay back. As some of the

employees of Door Darshan Kendra Srinagar, under transfer have been shown favour by cancelling their transfer, the impugned order suffers from

malafidies. Petitioners have been singled out for discriminatory treatment.

Respondents in their counter through Director Door Darshan Kendra, Srinagar have filed reply. It is contended that the transfer of the

petitioners, employees of Parsar Bharti, holding transferable posts, have been ordered in the exigency of service and in public interest to

operationalise the new installations with the help of the existing staff strength drawn from the different Kendras. Such staff members of the Parsar

Bharti which have been drawn and posted to different installations are numbering three hundred. The impugned transfer is for administrative

reasons and in public interest. The transfer order is as per the Government decision with approval of the C.E.O. of Parsar Bharti. The criteria of

longest continuous stay at a Kendra, as laid down in the transfer policy for staff of the Parsar Bharti, has been adhered to and adopted. As

petitioner did come within the criteria laid, therefore, they have been transferred as per the transfer policy. Though the guideline for transfer of a

person of 45 years of age, not ordinarily to be posted to a high altitude station, is in place, but all the same such a guideline does not confer any

enforceable right under law to the transferee. The guide lines have been followed to the extent possible after keeping in view the abnormal situation

in the State and to make the new installations operational with the help of the existing staff strength within different zones of the country. Petitioner

No. 1 has on his own showing yet six years to retire, therefore, is not on the verge of retirement, as contended. It is only those staffers who come

within three years of reaching age of superannuation are required to be posted at home town. The petitioners have been transferred from Door

Darshan Kendra Srinagar to DMC Jammu and DMC Shimla, the nearest stations to Srinagar within the North zone. The impugned transfers are in

the public interest as exigencies of service. Only those who are having longest continuous stay in the Door Darshan Kendra Srinagar, have been

transferred. The orders of some of the staffers were cancelled after discrepancies in respect of their continuous stay at Srinagar was brought to the

notice of the Competent authority. It is only in case of two persons from North zone transfer has been cancelled. The allegations of favouritism,

malafide treatment and discrimination are denied.

Heard.

The impugned order speaks of transfer of petitionersclerks in public interest. In terms of the reply affidavit filed, the administrative exigencies in

public interest pleaded is to operationalize the new install action with availability of required hands out of the existing staff strength of Parsar Bharti,

the Broadcasting corporation of India, New Delhi and the criteria given for the transfer is longest continuous stay at the existing place of posting.

The transfer policy is averred to have been adhered to. Even, if a transfer order is in violation of executive instructions/orders or the transfer does

not conform to a guideline for transfer which are in the nature of executive instructions, there is no justification for interference of the High Court in

writ jurisdiction. Transfer of an employee appointed to a transferable post on administrative exigency or in public interest cannot be interfered with,

notwithstanding, that the transfer order may operate harshly in respect of a particular employee so for the problems personal to him are concerned.

The proper course for such employee is to approach the authorities in the orgnisation or the department, rather than to rush to the court for

intervention. No foundation with the necessary facts and circumstances facts and circumstances is laid in the petition to the show that the transfer in

question is in violation of any statutory rules or on grounds of malafide or the order is discriminatory or based on favouritism. Mere use of such

platives like `malafidy', `discriminatory', `favouritism', `violation of rules', etc. etc. in absence of pleadings and supporting material would not suffice.

(See Ms Shilpi Bose and others v. State of Bihar and others, 1993(3) SCT 564 (SC) : AIR 1991 SC : 532. )

(ii) Union of India and others v. S.L. Abbas, 1995(4) SCT 455 (SC) : 1993 : 25 ATC 844 and (iii) Union of India and others v. H.N. Kirtania,

1989 Vol. III Section 445.)

In State of Punjab and others v. Joginder Singh Dhatt, 1995(4) SCT 225 (SC) : AIR 1993 SC : 2486 , it is observed :

....This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of Public servant from one

place to another. It is entirely for the employer to decide when where and at what point of time a public servant is transferred from his present

posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of

transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the

Constitution of India in a matter where, on the face of it, no injustice was caused.

The order is not passed beyond jurisdiction or by incompetent authority. The impugned transfer, ex facie does not appear to cause any injustice

to concerned.

In result, the writ petition is dismissed in limine. The interim direction shall also go with the main petition.