Rajinder Singh vs State Of Jammu & Kashmir & Ors

The petitioner challenges the order impugned dated 24.09.2018, by virtue of which, he has been transferred from the post of Chief Executive Officer, Tourism Development Authority, Patnitop to the post of Deputy Commissioner, Commercial Taxes (Recoveries), Jammu on the ground that it was premature and in violation of the transfer policy as notified vide Govt. Order No. 861-GAD of 2010 dated 28.7.2010.

It needs to be noticed that a Full Bench of this Court in Syed Hilal Ahamd & ors vs State of J&K & ors, 2015 (3) JKJ 398 has held that the transfer policy notified vide Govt. Order No. 861-GAD of 2010 has no statutory force or flavour. What was held by the Full Bench in the said judgment is thus:

"18. In the decision of the Hon'ble Supreme Court reported in AIR 2014 SC 263 (supra) it is held that the State Governments are effecting transfers and postings at the whims and fancies of the executive head for political and other considerations and not in public interest. Hence minimum tenure of service is good for the administration and efficiency. Insofar as the State of J&K is concerned, as stated supra, a minimum tenure of two years and maximum tenure of three years is already fixed in Government order dated 28.07.2010 and the said order is a guideline and not having any statutory force. In the said order itself it is stated that premature transfers, wherever unavoidable in the interest of administration, may be ordered on certain contingencies. Hence strict implementation of minimum 2 years and maximum 3 years tenure is not intended in the Government order. In such circumstances, the said Government order will not confer any right of enforcement through Court of law in the light of Rule 27 stated supra.

In fine the reference is answered by holding that the Government servant has no enforceable right to insist that he/ she shall be permitted to serve for a minimum of two years in a station or post."

Learned counsel for the petitioner urged that even when the Full Bench was right in holding that the transfer policy notified vide Govt. Order No. 861-GAD of 2010 had no statutory force, but on account of subsequent events, the same had assumed statutory colour and flavour.

It was stated that after the imposition of the Governor‟s Rule in the State of Jammu and Kashmir by proclamation P-1/2018 of 2018 dated 20.6.2018, the Governor promulgated the Jammu and Kashmir Delegation of Powers Act, 2018, which envisaged that the powers exercisable by a Minister under any law, rule or order would, notwithstanding anything to the contrary contained in any such law,

rule or order, be exercised by such person or authority, as the Governor may by order, from time to time, direct.

What is stated in Section 2 of the Act(supra) is thus:

"(i) The Officers shown in Schedule-I to this Notification shall exercise the powers of the Minister in respect of the matters thereunder;

(ii) the Administrative Secretaries mentioned in Schedule-II to this notification shall also exercise the powers of the Minister in respect of the matters indicated thereunder; and

(iii) any case not specifically mentioned in Schedule-I & Schedule-II to this notification shall be submitted to the Governor through the Chief Secretary."

It appears that subsequently notification dated 23.6.2018 was issued, promulgating SRO 281, which was issued pursuant to Section 2 of the Jammu and Kashmir Delegation of Powers Act, 2018. The said SRO reads as under:

"SRO 281- In pursuance of Section 2 of the Jammu and kashmir Delegation of Powers Act, 2018 (Governor's Act No. 1 of 2018), the Governor is pleased to direct that:

(i) The Officers shown in Schedule-I to this Notification shall exercise the powers of the Minister in respect of the matters thereunder;

(ii) the Administrative Secretaries mentioned in Schedule-II to this notification shall also exercise the powers of the Minister in respect of the matters indicated thereunder; and

(iii) any case not specifically mentioned in Schedule-I & Schedule-II to this notification shall be submitted to the Governor through the Chief

Secretary......"

According to Schedule-(i) of the SRO 281, the Chief Secretary was the authority designated to exercise powers of the Minister in regard to

matters indicated in Schedule-I. The Chief Secretary would, thus, be entitled to deal with the matters of transfers and

postings/adjustments of officers upto the level of Time Scale of KAS and equivalent in terms of Clause 1 (B) of Schedule-I. This is in addition to the powers exerciseable by the Chief Secretary in regard to other matters mentioned in detail therein.

Schedule-II (E) also pertains to transfer and postings which envisages thus:

"Every transfer proposal be sent to the Chief Secretary who will determine whether the proposed transfer needs to go through at this stage."

Subsequently SRO 307 was issued vide notification dated 11.7.2018 wherein certain amendments were made to SRO 281, which is to the following effect:

"SRO 307: In pursuance of Section 2 of the Jammu and Kashmir Delegation of Powers Act, 2018 (Governor's Act No. 1 of 2018) and in partial modification of notification SRO 281 dated 23.6.2018, the Governor is pleased to make the following amendments in the said notification; namely:-

In Schedule-I:-

(i) ...............................................................................................

1(H):-................................................................................................

II (E):-

"Every transfer proposal shall be processed in accordace with the provisions of the Jammu and kashmir Government Business Rules and Transfer Policy notified vide Government Order No. 861-GAD of 2010 dated 28.7.2010.

Further all proposals relating to powers of transfer, which are presently delegated in the Tranfer Policy at item No. I, II , III, IV and V, shall be submitted to Administrative Department for decision."

(ii) ........................................................."

Learned counsel for the petitioner, thus, contended that it was on account of SRO 307 that now after 11th of July, 2018 that the transfer policy must be deemed to have acquired statutory colour.

Since Schedule-II (E) also mentions item bearing Nos. I, II, III, IV and V, the same, therefore, are necessarily required to be referred.

S. No.

Class of employees

Authority to whom delegated

I.

District Cadre non-gazetted employees within the district.

District Level officer of the Department.

II.

Divisional Cadre non-gazetted employees within the Division

Divisional Head of the Department.

III.

State Cadre non-gazetted employees

State Level Head of the Department.

In case, there is no State Level HoD, powers shall be exercised by Administrative Department concerned.

IV.

First gazetted level officers in all the Departments

Head of the Department within the Division,.

In Power Development Department, the inter-wing transfers upto Assistant Engineers level shall be made by the Development Commissioner, Power

The Power of transfer of AEs within the wing shall be excercised by the Chief Engineer concerned.

In the case of PWD, the inter-wing transfer upt Assistant Engineers level be made by Administrative.

V.

Inter-Divisional transfers of first gazetted level

State Level Head of the Department. Where there is no Stat Level HOD, the transfers shall be made by the Administrative Department concerned.

Reference is also relevant to Clause-„C‟ dealing with Tenure of Postings of the transfer policy as reflected in the Govt. Order No. 861-GAD of 2010, which envisaged thus:

"C. Tenure of Postings:

The minimum tenure of a Government employee on a post shall be two years and a maximum of three years.

the maximum tenure of posting in respect of important projects which are required to be completed in a time bound manner, may be extended upto five years if continuation of any officer is considered necessary. Specific orders for retention of the officer in such cases beyond a period of three years shall be issued with the approval of the Minister Incharge and the reasons for the zsame shall be recorded.

Pre-mature transfers whereever unavoidable in the interest of administration shall be ordered with the prior approval of the Minister Incharge for reasons to be recorded.

A government employee holding any post may be transferred even before the completion of minimum tenure if:

(I) the performance of the employee is found to be below job requirement if there are grounds for initiating enquiry or disciplinary proceedings against him/her; or

(ii) it is not in public interest or in the interest of administration to allow the employee to continue on a post for a full tenure; or

(iii) the transfer is sought on helath grounds supported by medical certificates issued by the duly constituted Medical Boards

Such transfers shall be made with the prior approval of the Minister incharge after recording reasons for the same."

It was in reference to clauses 1 and 3, that Mr. P.N. Raina, learned senior counsel, contended that since the transfer policy had now obtained statutory colour by virtue of SRO 307, and since the petitioner was not permitted to complete his minimum tenure and was transferred after a period of six months only, as Chief Executive Officer, Tourism Development Authority, Patnitop, the same was violative of the mandatory provisions of Clause-C (1) of the Govt. Order No. 861-GAD of 2010. Not only this, it was contended that assuming a pre-mature transfer was unavoidable, in the interest of administration, the same could have been ordered only with the prior approval of the Minister Incharge after recording reasons for the same. It was contended that reasons were missing in the present case.

Two issues arise in the present case, which are as follows:

(a) Whether the transfer policy can be said to have obtained statutory status in view of the promulgation of SRO 307 and must be read to be a part of the said SRO.

(b) Whether there has been a violation of the transfer policy assuming the same has such a statutory colour or flavour.

The first issue as to whether the transfer policy has now assumed the statutory status or not came up for consideration before two different benches of this court, each of which has taken a divergent view.

In Babu Ram vs. State of J&K & ors, the Bench (Rabstan-J) in paragrpah 19 held as under:

"19. As regards contention of petitioner that he has been transferred prematurely, it is seen that petitioner was posted as Additional Deputy Commissioner, Reasi, vide Government Order No. 1359-GAD of 2016 dated 14.12.2016 and minimum tenure of post as provided under the policy of transfer promulgated vide Govt. Order No. 861-GAD of 2010 dated 28.07.2010, is two years which petitioner is due to complete on 14.12.2018. The policy matter of the Government as has been held by various pronouncements of the Apex Court as also by the Full Bench of this Court are that transfers are not to be interfered by the Courts. However, recently vide SRO No. 307 dated 11.07.2018, policy of transfer promulgated by the aforesaid Govt. Order No. 861-GAD of 2010 dated 28.07.2010 has been given statutory colour and same is to be given full effect not only by the administration even but by the Courts of law as well. In view of the aforesaid development, petitioner is justified in contending that his transfer was ordered prematurely.

However, another Bench (Shukla-J) in paragrpah 17 of the judgment Shafqet Ali & anr vs. State of Jammu and Kahsmir & ors has observed as under:

"17. It may be noted that in pursuance of Section 2of the Jammu and Kashmir Delegation of Power Act, 2018, the Governor vide SRO 281 dated 23.06.2018 was pleased to delegate the powers of ministers in respect of different matters to the officers shown in Schedule-I of the notification. The powers of the Government were also delegated in favour of administrative secretaries with respect to certain matters. The SRO was purely for the purpose of delegating the powers of government to different officers and nothing more. On partial modification of the aforesaid SRO, respondent No. 1 promulgated SRO 307 dated 11.07.2018, whereby it was provided that every transfer proposal would be processed in accordance with the provisions of the Jammu and Kashmir Government Business Rules and the Transfer Policy notified vide Government Order No. 861-GAD of 2010 dated 28.07.2010. This SRO, has, in essence, made a provision for delegation of powers to the officers with regard to the transfer of officers working in the hierarchy of the government. By no stretch of imagination or reasoning, the aforesaid SRO can be said to have clothed the transfer policy of the government with statutory flavour. The transfer policy continues to be in the realm of executive instructions issued by the government to give effect to Rule of 1956 as also Rule 21 of the Rules of 2008 in the case of members of the J&K Administrative Service."

On a reading of the two judgments, it thus, become clear that divergent views have been expressed by different benches of this court.

With a view to bring certainty on the issue, I, therefore, in terms of Rule 33 of the Jammu and Kashmir High Court Rules, 1999, propose the following question of law for reference to be adjudicated by an appropriate bench to be constituted in this regard by Hon‟ble the Chief Justice:

"Whether the transfer policy as notified by the Govt. vide Govt. Order No. 861-GAD of 2010 dated 28.7.2010 has assumed a statutory character in terms of SRO 307 dated 11th of July, 2018 notwithstanding the fact that a Full bench of this Court has already held the transfer policy to be bereft of any statutory force or flavour.

The Registrar Judicial shall place the matter before the Hon‟ble Chief Justice for appropriate orders in this case.

Notwithstanding the reference made in regard to the question of law hereinabove, the other issue, which has been crystalized in paragraph 13 (b) hereinabove, also requires to be dealt with for purposes of deciding as to whether the interim order dated 28.9.2018 requires to be extended or not. The second issue crystalized is "Whether there has been a violation of the transfer policy assuming the same has a statutory colour or flavor."

The main argument of the learned counsel for the petitioner is that the transfer of the petitioner was pre-mature, effected within six months of his earlier posting and, thus, was in violation of Sub-Clause (1) of Clause (C) pertaining to „tenure of postings‟ in the Govt. Order No. 861-GAD of 2010. However, a perusal of sub-clause-(3) of Clause (C) of the said Chapter pertaining to „tenure of postings‟, would show that even a pre-mature transfer, if unavoidable in the interest of administration, could be ordered with the prior approval of the Minister Incharge for reasons to be recorded.

Sub-clause (3), thus, involves two stages, one, which requires the authority making the transfer to give reasons why a premature transfer is required in the interest of administration and secondly, the said reason must have the prior approval of the Minister incharge.

In the present case, the powers of Minister were vested initially in the Chief Secretary by virtue of SRO 281 and then subsequently by virtue of the amendment incorporated in SRO 307 in the Administrative Department for decision.

On a perusal of the provisions of the transfer policy, it is, thus, incorrect to suggest that in no case can a pre-mature transfer be made. The only requirement is that it must contain reasons and must have the prior approval of the Minister incharge but since the entire decision making process was vested in the Chief Secretary and then in the Administrative Department concerned, the need to give reasons for the transfer after prior approval from the Minister Incharge appears to have been dispensed with. This can be seen on a reading of Schedule II-E of SRO 281, which casts a duty on the Chief Secretary to determine whether the proposed transfer was required to go through at that stage or not. Subsequently, the powers exercisable by the Chief Secretary are now to be discharged by the Administrative Department concerned. To that extent, the sub-clauses (1) and (3) of Clause (C) of transfer policy, to my mind, appear to have been re-modeled.

Having considered the matter, in my opinion, even if one were to assume that the transfer policy had any enforceability in law, there appears to be no violation of the said policy. Order dated 28.9.2018 is accordingly vacated. The petitioner shall join at the place of his posting in terms of the order dated 24.9.2018.