(2001) 1 J & K LAW
REPORTER
High Court of Jammu and Kashmir
at Srinagar
Before
Hon’ble Mr. Justice R.C. Gandhi, Judge
MTR. TABASUM RASHID
Petitioner
versus
STATE OF J&K AND OTHERS
Respondents
SWP No. 1408 / 2000, decided on
11.10.2000.
Constitution of India, Art. 226 -
Writ - Petitioner challenged order of transfer - Held : Order of transfer not voilative of
service conditions of the petitioner - Petition dismissed.
The grounds taken by the petitioner in the writ petition challenging the impugned order
are not sustainable. The petitioner has not been transferred prematurely. The transfer of
the petitioner by the District Budgam has been cancelled by the respondent No. 2 who is
competent to pass such an order. The impugned order has not violated any fundamental right
or service conditions of the petitioner. The transfer order does not suffer for want of
jurisdiction or malafides.
[Para
4]
Constitution of India, Art. 16 - Policy of Government in posting husband and wife at
same place - Held cannot be said to be enforceable right vested in the Government servant.
Advocates who appeared in this case :
Mr. I.A. Parray, Advocate for the petitioner
Sr. Additional Advocate General Mr. M.I. Qadiri for respondent No. 4 and Mr. Mohammad
Shafi, Advocate for respondent No.5
Cases referred : Chronological
1. Gujrat Electricity Board and another v. Atmaram Sungomali Poshani AIR 1989 SC 1433
2. Mrs. Shilpi Bose’s case AIR 1991 SC 532
3. Union of India and others v. S.L. Abbas AIR 1993 SC 2444
4. State of Madhya Pradesh and anr. v. S.S. Kourav and others AIR 1995 SC 1056
JUDGMENT AND ORDER
Petitioner seeks to quash the
impugned order No. 2336 DSEK of 1999 dated 17/12/1999 whereby the transfer order of Mst.
Gullfer Akhter, teacher has been cancelled and petitioner has been transferred to District
Budgam, in place of Mehra Jabeen, Teacher, who was earlier transferred on reciprocal
basis, under order No. 799 DSEK of 1999 dated 10/05/1999, form Middle School Drubgam,
District Pulwama to District Budgam.
The impugned order has been
challenged on the grounds that the petitioner has been transferred from Middle School
Chandhra to District Budgam only when Mst. Gulfer Akhter refused to abide by the order of
her transfer despite it was issued on reciprocal basis. The husband of the petitioner is a
Government employee posted in District Budgam, therefore, the respondents are under
obligation to post the petitioner also at the place of posting of her husband as per the
policy of the Government. The transfer of the petitioner is premature and further that the
petitioner has been transferred to safeguard the interests of the respondent No. 5.
Mr. M.I. Qadri, Learned Sr. A.A.G
and Mr. Syed Mohammad Shafi, Learned counsel has appeared on behalf of the respondents.
Mr. Shafi submitted that the petitioner has not come to the court with clean hands and
does not deserve the relief prayed for. Petitioner has already filed a suit before the
District Judge, Budgam and Munsiff Magistrate, Magam, which fact has been concealed by the
petitioner. The petitioner cannot simultaneously seek remedy before two forums for the
same relief. The respondent No. 5 is suffering since last more than one year and has not
been paid salary. Under such circumstances, respondent No.5 requested the authorities to
sent her back to her parent cadre i.e. District Budgam.
Heard learned counsel for the
parties and perused the pleadings.
The grounds taken by the
petitioner in the writ petition challenging the impugned order are not sustainable. The
petitioner has not been transferred prematurely. The transfer of the petitioner by the
District Budgam has been cancelled by the respondent No. 2 who is competent to pass such
an order. The impugned order has not violated any fundamental right or service conditions
of the petitioner. The transfer order does not suffer for want of jurisdiction or
malafides. The court has limited jurisdiction to interfere in transfer matters as held by
the Supreme Court in Mrs. Shilpi Bose’s case (AIR 1991 SC 532), viz:
"In our opinion, the court
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 of the other. He is liable to be
transferred from one place to the 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 instructions or orders, the courts ordinarily should not interfere with the
order instead affected party should approach the higher authorities in the Department. If
the courts continue to interfere with day-to-day transfers orders issued by the Government
and its subordinate authorities, there will be complete chaos in the administration which
not be conducive to Public interest. The High Courts overlooked these aspects in
interfering with the transfer orders."
In Gujrat Electricity Board
and another v. Atmaram Sungomall Poshani (AIR189 SC 1433), the Supreme Court observed
:
"Transfer of a Government
servant appointed to a particular cadre of transferable posts to the other is an incident
of service. No Government servant or employee of Public undertaking has legal right for
being posted at any particular place. Transfer from one place to another is generally a
condition of service and the employee has no choice in the matter. Transfer from one place
to other is necessary in public interest and efficiency in the public administration.
Whenever, a public servant is transferred he must comply with the order but if there be
any genuine difficulty in proceeding on transfer it is open to him to make representation
to the competent authority for stay, modification or cancellation of the transfer order.
If the order of transfer is not stayed, modified or cancelled the concerned public servant
must carry out the order of transfer. In the absence of any stay of the transfer order
public servant has no justification to avoid or evade the transfer order merely on the
ground of having made a representation, or on the ground of his difficulty in moving from
one place to the other. If he fails to proceed on transfer in compliance to the transfer
order, he would expose himself to disciplinary action under the relevant rules, as has
happened in the instant case. The respondent lost his service as he refused to comply with
the order of his transfer from one place to the other."
The Supreme Court in State of
Madhya Pradesh and another v. S. S. Kourav and others reported in AIR 1995 SC 1056 has
pronounced as under :
"The courts or Tribunals are
not appellate forums to decide on transfers of officers on administrative grounds. The
wheels of administration should be allowed to run smoothly and the courts or Tribunals are
not expected to interdict the working of the administrative system by transferring the
officers to proper places. It is for the administration to take appropriate decision and
such decisions shall stand unless they are vitiated either by malafides or by extraneous
consideration without any factual background foundation. When, as in this case, the
transfer order is issued on administrative grounds the Court cannot go into the expediency
of posting an officer at a particular place."
So far as the arguments of
learned counsel for the petitioner, that the petitioner should be posted at the place of
the posting of her husband in terms of the policy of the Government is concerned, such
policy does not vest any enforceable right upon the Government Servant. This controversy
has been set at rest by the Supreme Court in case Union of India and others v. S.L.
Abbas (AIR 1993 SC 2444) holding that :
"Who should be transferred
where, is a matter for the appropriate authority to decide. Unless the order of transfer
is vitiated by malafidesor is made in violation of any statutory provisions, the Court
cannot interfere with it. While ordering the transfer, there is no doubt, the authority
must keep in mind the guidelines issued by the Government on the Subject. Similarly if a
person makes any representation with respect to his transfer, the appropriate authority
must consider the same having regard to the exigencies of administration. The guidelines
say that as far as possible, husband and wife must be posted at the same place. The said
guideline however does not confer upon the Government employee a legally enforceable
right."
For what has been said above, no
case for admission is made out. The writ petition is accordingly dismissed. |
