Yog Raj Mengi vs State of J & K

Arun Kumar Goel, J.—Petitioner had challenged Annexure ""PA"" attached with the writ petition. By means of this Government Order No.

476Works of 2000 dated 11th Dec. `2k, transfers and postings of Head Draftsmen have been ordered in the interest of administration with

immediate effect. Petitioner figures at Serial No. 3. His present place of posting is R&B(J). He has been posted to JDA against available vacancy.

Precise ground urged by Sh. Koushal, learned counsel appearing for the petitioner in this case is that as per Rule 27 of J&K Civil Services

(Classification, Control and Appeal) Rules, 1956, posting of the petitioner to Jammu Development Authority tantamounts to sending him out of his

parent department; unless his consent is obtained, petitioner cannot be transferred and posted in J.D.A. as has been done by the impugned order.

What is envisaged under this Rule is that a member of service or class of a service may be required to serve in any part of Jammu and Kashmir

State on any post borne on the cadre of such service or class; and all transfers and postings are to be made by the authority prescribed by the

Government in that behalf. Since no consent has been obtained, petitioner is being posted out of his cadre of service, as such Annexure ""PA"" prima

facie deserves to be struck down. Reference was also made by him to Article 52C(i) of the J&K Civil Services Regulations, 1956.

In the aforesaid background impugned order, Annexure ""PA"" being an order of transfer to foreign service on deputation during the last spell of his

service before retirement, therefore, it was pleaded to be persearbitrary, unreasonable and is proof of malafides.

With a view to advance the case of petitioner further, Sh. Koushal placed reliance on two decisions of the Supreme Court namely ""Umapati

Choudhary v. State of Bihar and another"", 1999(3) SCT 60 (SC) : 1999(2) Judicial Reports (Labour and Service) 238 and ""State of Punjab and

others v. Inder Singh and others"", 1998(2) SCT 765 (SC) : 1998(1) Judicial Reports (Labour and Service) 239 , as such he urged for admitting

the writ petition or atleast issuing notice to the opposite side and in the meantime to stay the operation of impugned transfer and posting order,

Annexure ""PA"" so far petitioner was concerned. When the matter was taken up Smt. Seema Shekhar, learned Government Advocate intervened

and vehemently opposed the maintainability of the writ petition. According to her matter is no more res integra in view of the Full Bench decision of

this court in the case of ""J.L. Bamzi v. State of J and K and others"", 1990 KLJ 592. She further submitted that in no case Annexure ""PA"" can be

termed to be an order of deputation as alleged on behalf of the petitioner and government is well within its right to have transferred and ordered his

posting to Jammu Development Authority. According to her it is for her clients to decide whom to post and where to post. A public servant like

petitioner cannot question his positing and transfer. Only exception according to her is when there is violation of any statutory rule and or condition

of service while such an order is passed, and the other exception is when such an order is actuated by illwill and malafides. Mere apprehension and

or ipsi dixit of a litigant like petitioner cannot be accepted. While pleading malafides/bias, sufficient material is required to be placed before the

court to examine the case.

After considering the respective submissions urged on behalf of the learned counsel for the parties and after going through the decisions relied

upon by both the learned counsel appearing in this case, and for the reasons set out hereinafter this writ petition deserved to be dismissed and is

ordered accordingly.

So far two decisions relied upon by Sh. Koushal coupled with Rule 27 (supra) and Article 52(c)(i) are concerned, they do not advance the case

of petitioner in any manner whatsoever. In fact the decisions of the Supreme Court do not cover the case of petitioner.

In the case of Umapati Choudhary (supra) appellant was firstly sent on deputation and thereafter was sought to be absolved. In what

background this judgment came to be passed may be extracted from it, which is as under :

From the contents of the documents discussed in the preceding paragraphs the position that emerges is that since 1981 the appellant was

holding the post of Controller of Examinations of the Board. Initially he was brought on deputation from the University and thereafter taking into

account his efficiency and sincerity in the job the Board sought permission of the University for regularising his service on that post and sent its

recommendation to the State Government. The University also had communicated its consent (no objection) for permanent absorption of the

appellant on the post of Controller of Examinations of the Board. Thereafter, the appointment to the post was to be made by the Board and the

Board had decided to regularise the service of the appellant in the said post. However, the Board sought permission of the State Government

which was also accorded.

Writ petition of the petitioner in the said case was dismissed and it was thereafter that the appeal filed by him was allowed.

In the case of State of Punjab v. Inder Singh (supra), matter was examined by the Supreme Court on the basis of specific rules i.e. Punjab

Police Rules. A reference to Rule 27 (supra) no where prohibits nor is it couched in a language so as to require obtaining consent. Power has to be

exercised keeping in view the interest of administration as well as that of the public. Who has to decide it ? Atleast not this court unless the case

falls within one of the exceptions referred to hereinabove. As such no benefit can be derived by Sh. Koushal while advancing the case of petitioner

on the basis of aforesaid two decisions.

In case of J.L. Bamzai (supra), question involved directly and substantially was in relation to Article 52(B) of J&K Civil Service Regulations and

Rule 27 (supra). In this case appellant was transferred vide government order issued by the State and was sent on deputation to National Hydro

Electric Project Corporation Limited. Writ petition filed by him was dismissed. Letters Patent Appeal was filed. When the matter came up before a

Division Bench of this Court, both the learned Judges dissented. Thus reference was made to the 3rd learned Judge under Rule 23 of J&K High

Court Rules formulating points of dissent. For the purposes of present writ petition point No. 1, which is relevant and material is extracted

hereinbelow :

Whether transfer is synonymous with deputation or the two terms i.e., transfer and deputation are distinct from each other ? This question shall

have to be answered in the light of Art. 52 of the Civil Services Regulations and Rule 27 of the Jammu and Kashmir Civil Services (Classification,

Control and Appeal) Rules, 1956.

After having examined the matter in depth by the 3rd learned Judge, this question was answered in the following terms :

A perusal of the Rules and Regulations would clearly show that in so far as transfer and deputation is concerned, they are not inconsistent and

rather are complementary and supplementary to each other. Regulation 52 envisages exigency of transfers not contemplated by Rule 27 of the

Rules. It is, therefore, held that the term transfer as used in Rule 27 of the Rules is synonymous with the term deputation as used in Regulation

52(b) of the Regulations.

Thus order of dismissal of the writ petition against appellant being sent on deputation to National Hydro Electric Power Corporation Limited was

upheld while interpreting the two provisions relied upon by Sh. Koushal by majority view.

An attempt was made by Sh. Koushal to argue that the impugned order of transfer and posting to J.D.A. is per se arbitrary, unreasonable and

is proof of malafide. What is pleaded in the writ petition in this behalf is verbatim extracted, which is as under :

That present order of transfer to foreign service on deputation during the last spell of service before retirement is per se arbitrary, unreasonable

and is proof of malafide.

In a situation like the present one if a litigant like petitioner is able to prima facie make out a case of bias/malafide, this court would certainly

examine the case and then record a finding. It may further be pointed out that if such a plea is accepted there is no way out but for allowing the

relief prayed for by a litigant like petitioner. Merely saying without prima facie establishing how the order is biased and or is actuated by something

other than public interest has to be prima facie established by placing adequate material on record. Unless this is done, this is a case of mere

apprehension on the part of petitioner. Even otherwise when writ petition is examined, what is made out is its brevity without raising any foundation

and or pleading/facts. Mere apprehension is not enough to accept that the order impugned is either arbitrary or unjust muchless malafide. Strong

foundation needs to be laid which is totally lacking in the instant case. For taking this view I am supported by a decision of the Supreme Court in

the case of ""State of Punjab v. V.K. Khanna"", 2001(1) SCT 933 (SC) : 2000 AIR SCW 4472.

No other point is urged.

In view of the aforesaid discussion there is no merit in this writ petition which is accordingly dismissed.

Writ petition dismissed.