JKLR-Part(I)                                                  SWP 691/2000                                        Back To Index

(2001) 1 J & K LAW REPORTER 72
High Court of Jammu and Kashmir
at Srinagar
Before
Hon’ble Mr. Justice G.D. Sharma, Judge

MOHAMMAD AKBAR TEELI & OTHERS                                                                          Petitioners
                                                                                versus
STATE OF J&K                                                                                                                      Respondent

SWP No. 691 / 2000, decided on 15.9.2000.

J&K Civil Service Regulations - Transfer to odd stations / Ladakh region - Transfer order challenged - Instruction No. 6.1, Government order No. 20-LA of 1999 dated 16.6.1999 - Held : In case the order is based on mala-fides or passed in violation of any rule of service and guidelines without any proper justification, the court has power to interfere - In the facts of the case respondents directed to reconsider the case of the petitioners.

Advocates who appeared in this case :
Mr. R. A. Jan, Advocate for petitioners
Mr. A. M. Watali, Advocate for respondent
Cases referred : Chronological
1. Dr. Amarjit Singh v. State of Punjab AIR 1975 SC 984
2. Shilpi Bose v. State of Bihar AIR 1991 SC 532

JUDGMENT AND ORDER

Through the medium of this writ petition the petitioners have claimed the relief in the nature of writ of certiorari to quash order No. 301-DES of 2000 dated 10.5.2000 in so far as it relates to them. Writ in the nature of mandamus is also prayed prohibiting respondents 2 to 4 from relieving the petitioners from present postings.

The factual matrix of the case in brief is that in terms of the impugned order, the petitioners have been transferred second time in the District of Leh and Kargil against the respective posts shown therin. Their grouse is that in terms of earlier orders bearing no. 167-DES of 1987 dated 8.6.1987 (annexute-B) order No. 256-DES of 1988 dated 18.6.1988 (Annexure-C) order No. 92-DES of 1990 dated 14.6.90 (Annmexure-D) and order No. 189-DES of 1993 dated 4.6.93 (Annexure-E) they gave the duties for full terms at their respective places of postings. That in terms of Govt. order No. 20 LA of 1999 dated 16.6.1999 they cannot be transfered on second time to Ladakh region (District Leh and Kargil). The impugned order is stated as discriminatory because officers from the cadre of the petitioners who are juniors to them in age and service have not been sent to Ladakh region even for the first time.

In the objections filed by the respondents it is pleaded that petitioners have been transferred to Ladakh region after promoting them and their transfers are within the four corners of Govt. order No. 20-LA of1999 dated 16.6.99.

Heard the arguments.

The counsel for the petitioner at the out set has contended that the impugned order is arbitrary because it discriminates the petitioners adversely as they go to Ladakh region second time and that too not on their first promotions. Petitioners are working as statistical officers and have been transferred in the same cadre. The spirit of Govt. order No. 20-LA of 1999 dated 16.6.99 is to avoid maximum inconvenience to the employees while making postings to Ladakh region. Instruction No. 601 contained in this order lays down that the junior most employees having minimum three years service in the department shall be posted to Ladakh / Kargil. No such experience shall be required for direct recruits posted for the first time.The explanation added to this instruction is that fresh promotees may be transferred to Ladakh / Kargil on first posting after promotion to the higher scale or in their own pay and grade. In rare cases, other employees who volunteer for such transferes may also be considered for such postings.

The counsel has contended that there are junior employees to the petitioners available in the cadre who could be considered for such postings but the petitioners have been discriminated by posting them on second occasion to the districts of Ladakh / Kargil. Such an order could have been passed in rare cases in respect of those employees only who would have volunteered for such postings and not otherwise. He has also contended that the impugned order also goes against the spirit of instruction 1.1 contained in the revised transfer policy (Govt. order No. 20 LA of 1999) as under head (3) of this instruction it is provided that an employee serving / having served for his normal tenure of two years in Niabat Nowpachi (Madwa, Wadwan), Niabat Atholi and Paddar area of District Doda and Niabat Gurez of District Baramulla shall not be transferred to Ladakh / Kargil unless he has spent two years in another area. That in earlier order Govt. order No. 21 - GR of 1986 dated 15.4.86 it was provided that an employee can be sent second time to Ladakh region but that order was dependent on age limit, prescribed therein. That order stands now superceded along with other orders. Vide Govt. order No. 20-LA of 1999 which is now in vogue the age limit or any other similar considerations are not required to be given extra-ordinary weightage while drawing the list of the employees for postings in Ladakh. It is specifically provided that there will be no upper age limit for claiming exemption from posting in Ladakh / Kargil as was done earlier. This has been done because of the availbility of basic infrastructure in the fields of health, Education, Transport and Telecommunication etc. However, this order is silent about second time posting but an employee who has served in odd stations specified in instruction No. 1.1.(3) as stated earlier is required not to be transferred to Ladakh / Kargil Districts unless he has spent two years in another area.

Ld. Counsel in order to buttress his contention of discremination has cited the case of Dr. Amarjit Singh v. State of Punjab (AIR 1975 SC 984). This case dealt with integration of provincial Civil Medical Services and Public Health Service. Promotion of class II officer to class I and their inter-se seniority as well as Government memorandum dated 25.10.1965 have been discussed in the case. The counsel has contended that it has been held in this case that in case there is departure from Govt. policy that leads arbitrary exercise of power and the State Govt. could not at its sweat will ignore the administrative instruction without rational justifiation. The State Government had fixed the seniority incontravention of a clause contained in the administrative instruction and it was held that there was violation of article 14 and 16 of the Constitution. In the instant case respondent No.3 who is the subordinate functionary of the employer State has passed the impugned order in violation of instruction No. 6.1 by not considering the junior most employees having minimum three years service in the department but posted the petitioners who already had served in that region as statistical officers thus the impugned order suffers from irrationality and arbitrariness.

In rebuttal it has been contended by Mr. Watali that transfer is one of exigency of the administration and the Govt. has the power to transfer its employees from one post to another carrying equivalent pay scale and grade. The Govt. has done this exercise bonafidely and petitioners cannot claim any right for the posting of their juniors against these posts. Courts should not interfere in transfer matters where order have been passed in violation of executive instructions the affected party /employees can approach the higher authorities. In support of this contention the counsel has cited the case of Shilpi Bose v. State of Bihar (AIR 1991 SC 532). In this case the following observations made by the court are pertinent :

"The courts should not interfere with transfer orders which are made in public interest and for administrative reason unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A Govt. servant holding a transferable post has not vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instruction or orders, the courts ordinerily should not interfere with the order instead affected party should approach the higher authorities in the Department."

The submissions made at the bar have been considered. It is admittedthat the order of transfer causes a lot of difficulties and dislocation in the family set up of the concerned employee. On that score alone the order of transfer is not liable to be struct-down. In case the order is based on malafides or passed in violation of any rule of service and guidelines without any proper justification the court has the power to interefere. The facts of the case show that the impugned order has been passed ex-facie inviolation to instruction No. 6.1 contained in Govt. order No. 20-LA of 1999 dated 16.6.99. In instruction No. 1.1 (3) care has been taken for the posting of an employee to Ladakh / Kargil Districts who has already served in odd stations mentioned therein unless he has spent two years in another area. Any other employee can be transferred in a rare case and that too in case he volunteers, Govt. order no. 20-LA of 1999 is admittedly silent about second time transfer of any employee to Ladakh region but such a transfer can be justified when it becomes unavoidable after considering the import of instruction 6.1 and instruction 1.1. Respondents have not shown any record to justify the impugned transfer order.

On the above facts and legal position as spelled out writ petition is disposed of with the direction to respondents to re-consider the case of the petitioners within the para-meters of instructions 6.1 and 1.1 (3) and pass fresh orders within three weeks from today. In case this is not done, the impugned order shall stand quashed. The present status of the petitioners as on today is protected for three weeks. Registry is directed to provide copy of the judgment to Mr. Watali, GA today.