Rajesh Parihan vs State & Ors

Petitioner, who was working in Industries and Commerce Department, was posted as Incharge DIC Kathua in the year 2017 and was transferred to DIC Poonch vide transfer order No.31-IND of 2019 dated 08.02.2019.

This transfer order has been assailed by the petitioner in this petition on the ground that he had been transferred prematurely against the transfer policy, the order of transfer is against the instructions issued by the Election Commission of India, as such, is arbitrary, illegal and required to be set aside. The other ground of challenge is that transfer order passed by respondent No.3, who was not competent to pass the same since he stood also transferred on 08.02.2019 i.e., same day, when the order of transfer was issued. Lastly, it has been alleged that the order of transfer has been issued only to give benefit to the blue eyed persons of the respondents.

Transfer of an employee of the State Government is covered under Rule-27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, which reads as under:-

"27. Posting and transfers: (1) A member of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. (a) All transfers and postings shall be made by the authority prescribed by Government in this behalf."

Thus, an employee of the State may be posted in any part of the State. It is settled proposition of law that a Government servant appointed to a particular cadre of transferable post does not have any vested right to remain posted at one particular post and transfer of a government servant from one place to another is an incidence of service and an order of transfer can only be interfered both by the Courts provided they are questioned on being in violation of the statutory provisions, or on lack of jurisdiction or on ground of mala fide.

Petitioner has challenged the order of transfer firstly on the ground that it is premature and against the transfer policy of the Government. The Full Bench of this Court in Syed Hilal Ahmad & ors. vs. State of J & K and Ors. reported as 2015 (3) JKJ 398 has already held that transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service. It has further been held that government servant cannot insist that he is entitled to continue in a particular station/post for a definite period. Relevant extract of the same is reproduced herein below:-

" It is also settled proposition of law that transfer is an incidence of service and a government servant is subject to orders of transfer on administrative exigencies. A government servant cannot insist that he is entitled to continue in a particular station/post for a definite period. Interference in the orders of transfer by the Courts are very limited i.e. only on three grounds orders of transfer can be interfered, namely, if

the order of transfer is passed in violation of any statutory Rule, or on mala fide reasons or by an incompetent authority."

"No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders, as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned...."

Therefore, the argument of the petitioner that he was prematurely transferred in violation of transfer policy does not have any merit specially when this Court has held that transfer policy is only in the nature of executive instructions and not justiciable.

Another contention of the petitioner is that the order of transfer is violative of the guidelines issued by the Election Commission of India and as such, the order of transfer is required to be set aside.

Government order No.31-IND of 2019 dated 08.02.2019 vide which as many as 35 officers were transferred makes a reference to O.M. No.GAD(Adm)/21/2019-II dated 19.01.2019 issued by the General Administration Department, in the opening lines, it is stated that in the interest of administration, in supersession of all previous orders issued on the subject and in terms of the guidelines/instructions issued by the Election Commission of India regarding transfer/posting of the officers viz-a-viz tenure/continuation in the present district of posting/Home district, the following transfers and postings of Functional Managers in Industries and Commerce Department are hereby ordered, with immediate effect.

Petitioner submits that in terms of O.M. No.GAD(Adm)/21/2019-II is with regard to General Election to House of the People (Lok SAbha), 2019-transfer/posting of officers-regarding and enclosed the communication of Election Commission of India for strict compliance. As per the submissions, only those officers who fall in Clause-3 of the communication dated 16th January, 2019 were to be transferred i.e., that no officer connected directly with elections shall be allowed to continue in the present district of posting provided if he is posted in his home district, he has completed three years in that district during last four years would be completing 3 years on or before 31st May, 2019. It is submitted that since the petitioner does not fall in either of the category, as such, his transfer, is illegal and violative of instructions issued by the Election Commission of India.

Perusal of the impugned order of transfer dated 08.02.2019 clearly reflects that it has been issued in the interest of administration and also in terms of the guidelines and instructions issued by the Election Commission of India, thus, 35 officers alongwith petitioner were transferred. Thus, the order was keeping in view both the eventualities is in the interest of administration as well as communication of Election Commission, thus, it was the discretion of the respondents to transfer and post its employees, therefore, this argument of the petitioner is also without any merit.

Another contention raised by the petitioner is that his transfer order is not issued by an competent authority since respondent No.3, who issued the transfer order, stood transferred on the same date when the order of transfer was issued. This argument also does not help the petitioner since both the orders issued on 08.02.2019, thus, on the date of issuance of the orders, respondent No.3 was still holding the office.

Petitioner has also stated that transfer order has been passed with mala fide intention/oblique motive just of adjust his blue eyed person. This bald allegation of the mala fide without any material to show that action of the authority was a result of mala fide exercise of powers especially when the order is of general transfer, by which as many as 35 persons have been transferred is without any basis.

The Hon'ble Apex Court in Shilpi Bose and others v. State of Bihar, reported as 1991 Supp (2) SCC 659 in which it has been held that an employee have any vested right to remain posted to one place. Relevant extract of the same is reproduced hereunder:-

"The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are liable to be transferred from one place to the other. The transfer Orders had been issued by the competent authority which did not violate any mandatory Rule, therefore the High Court had no jurisdiction to interfere with the transfer Orders.

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 malafide. 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 the other."

The Hon'ble Apex Court in Union of India & ors. vs. S. L. Abbas, reported as AIR 1993 SC 2444 has held in para 7 as under:-

"Who should be transferred where, is a matter for appropriate authority to decide. Unless the order of transfer is vitiated of by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it."

Thus, the impugned order of transfer having been passed in the interest of administration by a competent authority does not merit any interference.

In view of the above discussion, I find no merit in this petition which is accordingly, dismissed alongwith connected IA.