Swarn Singh vs State Of Jammu & Kashmir And Others

Impugned in this petition, is order bearing No.BMO/BLR/5487-91 dated 23.02.2019 issued by the Block Medical Officer, Billawar, respondent No.4, whereby the petitioner, a Senior Assistant working in Primary Health Centre, Goduflal has been transferred and posted in Primary Health Centre, Hutt Block, Basholi and has been relieved simultaneously. The order impugned has been assailed, inter alia, on the ground that the order impugned has not been issued by the competent authority. The petitioner has also levelled general allegations of malafide and favouritism to assail the impugned order.

Elaborating petitioner's grievance against the impugned order, learned counsel for the petitioner submits that the petitioner who was earlier working as Senior Assistant in PHC, Lohai was transferred and posted in Primary Health Centre, Gudu Flal Block Billawar against available vacancy on 21st June 2018 and barely the petitioner has completed eight months, he has once again been transferred and now to a far off place i.e. PHC, Hutt Block Basholi. He, therefore, submits that the order impugned is premature and has been issued as a punitive measure. It is contended that the petitioner along with one Shanti Parkash had approached the worthy Advisor(S) to his Excellency, the Governor of Jammu & Kashmir with their grievance against the respondents. It was not taken by them in good stride and they issued the order of their transfer and posting in Primary Health Centres situated far off from their residences. This, claims learned counsel for the petitioner, has been done by the respondents to put the petitioners to inconvenience and hardship. Learned counsel for the petitioner relies upon certain documents which are appended with the writ petition to substantiate the aforesaid allegations.

Having heard learned counsel for the parties and perused the record, I am of the considered view that the order impugned passed by respondent No.4in compliance to the directions of the Director Health Services, Jammu conveyed vide DHSJ/Gen-Comp/17014 dated 22.02.2019 is apparently to sub-serve the interest of administration. It is not in dispute that the Director Health Services is competent authority to transfer of a Senior Assistant working under his Directorate. The plea of the petitioner that the impugned order being an order of premature transfer is in violation of the transfer policy of the Government is equally devoid of any merit and, therefore, cannot be accepted. It is well established principle of law that transfer policy is nothing but a bundle of executive instructions/guidelines having no statutory flavour. Such executive instructions/guidelines do not confer upon the employees any legally enforceable right. The scope of judicial review of the transfer under Article 226 of the Constitution of India is now fairly settled (see Rajendra Roy v. Union of India, (1993) 1 SCC 148, Bank of India v. Anjan Sanyal, (2001) 8 SCC 574. It is now beyond the pale of any discussion that transfer is a part of service condition of an employee and the same cannot be interfered with ordinarily by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution unless the Court finds that either the order is mala fide or that the service Rules prohibit such transfer or that the authority which has issued the order is not competent to do so.

In the case of Gujrat Electricity Board v. Atmaram Sungomal Poshani; (1989) 2 SCC 602, the Supreme Court has held that Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place and the employee has no choice in the matter. The Supreme Court has also emphasized the need to comply with the order of transfer unless it is stayed by the Court or competent authority. The Supreme Court went on to hold that, if the order of transfer was not stayed or cancelled, the concerned public servant must carry out the order of transfer and he cannot be permitted to avoid or evade the transfer order merely on the ground of having made representation or having moved the Court for the purpose.

In the instant case, it is noticed that the order impugned was issued on 23rd February, 2019 but the same has not been complied by the petitioner even as on date. On being specifically asked, learned counsel for the petitioner has fairly stated that the petitioner has not so far joined at his new place of posting i.e. PHC, Hutt Block Basholi. Such conduct of an employee to take the orders passed by his superiors for granted, cannot be countenanced. Such a disobedient employee is not entitled to invoke the equitable jurisdiction of this Court.

I have carefully scanned through the documents appended with the petition to find out as to whether the allegations of mala fide levelled by the petitioner are substantiated. I could not find any iota of material to indicate that the order of transfer of the petitioner is actuated by malice or even passed for extraneous reasons.

Before I close, it would be appropriate to notice what was held by the Supreme Court in para 10 of the judgment rendered in the case of Airports Authority of India versus Rajeev Ratan Pandey & Others, (2009) 8 SCC 337. Para 10 of the judgment is reproduced hereunder:-

"10. In the writ petition, the transfer order has been assailed by the present Repondent 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not even find any contravention of transfer policy in transferring Respondent 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it an interim stage or final hearing. This is so because the courts do not substantiate their own decision in the matter of transfer."

Similarly, in the case of State of U.P and other v. Gobardhan lal; (2004) 11 SCC 402, the Supreme Court while dealing with a transfer matter was pleased to observe in paragraph-7 as under:-

"7. It is too late in the day for any Government 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. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."

In view of the foregoing legal position, I do not find any illegality or infirmity in the order of transfer of the petitioner, impugned in this petition. The writ petition is, thus, found to be without any merit and is, accordingly, dismissed. However, it is made clear that dismissal of this petition shall not come in the way of the Advisor (S) to his Excellency, the Governor of Jammu and Kashmir in considering the representation of the petitioner on its merits. The petitioner shall also be entitled to payment of salary for the period he has legitimately performed his duties.