Jammu & Kashmir High Court - Srinagar Bench
Mtr. Ateeqa Bano vs State Of Jk & Ors. on 25 July, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP No.1632/2018
IA No.01/2018
Date of Order: 25th of July, 2018.
Mtr. Ateeqa Bano
Vs.
State of JK & Ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the Petitioner(s): Mr Sheikh Manzoor, Advocate.
For the Respondent(s):
i) Whether approved for reporting in YES
Law Journals etc.:
ii) Whether approved for publication
in Press: YES
{Oral};
01. By medium of this petition, the petitioner, on the basis of being married to one Mohammad Gulzar Wani R/o Mehboob Colony, Natipora, Srinagar in the year 2005, seeks a direction upon the respondents to continue her to perform duties in Government Primary School, Bemina, in tune with the orders of her deployment issued by the Director, School Education, Kashmir, vide order bearing No. DSEK/Estt/6021 dated 4 th of July, 2017. The petitioner also seeks a 'Writ of Certiorari' for quashing the SWP No.1632/2018 Page 1 of 7 Government circular No. 22 GAD of 2018 dated 6th of July, 2018, in so far as the same relates to her case.
02. A bare perusal of the order of deployment of the petitioner dated 4th of July, 2017, issued by the Director, School Education, Kashmir, reveals that the petitioner has been temporarily deployed from District Kupwara to District Budgam, only till the end of the current session (2017-18), which session has since expired. Consequent to the aforesaid directions issued by the Director, School Education, Kashmir, the petitioner has been adjusted in Government Primary School, Bemina, by the Chief Education Officer, Budgam, vide order No. CEOB/ESTT/14357-61 dated 21st of July, 2017.
03. The relief prayed for in the writ petition qua the issuance of a 'Writ of Mandamus' directing the respondents to allow the petitioner to continue performing her duties in Government Primary School, Bemina, till her case is concerned for regular transfer on marriage grounds, is beyond the scope of the powers/ jurisdiction of this Court as the same amounts to extension in the period of deployment of the petitioner, which is the sole discretion/ prerogative of the Government and its authorities. Therefore, the claim of the petitioner is liable to be rejected.
04. The next issue, as raised by the petitioner herein this petition, with regard to the challenge thrown to the circular No. 22-GAD of 2018 dated 6th of July, 2018, issued by the General Administration Department, is also misconceived and misdirected in view of the fact that the instructions issued in the circular aforesaid are aimed at ensuring smooth functioning SWP No.1632/2018 Page 2 of 7 of the Government Departments/ organizations. Clause (iii) of the impugned Circular lays down the scope for a Government employee, on attachment, to approach the concerned authorities for seeking redressal of his/ her grievance as regards continuation at a particular place, which can be processed by the Department concerned for approval of the concerned Advisor for extension in his/ her period of attachment.
05. The law on the issue, as involved herein this petition, is well settled by a catena of cases decided by the various High Courts of the country as also by the Hon'ble Apex Court. A Division Bench of this High Court, in its decision rendered in the case of 'Tahira & Ors. v. State of J&K', reported as '2003(3) JKJ 345', while dealing with a similar issue, has held as under:
"44. ........We have already observed that transfers of public servants squarely fall within the domain of the Government and it is the Government alone who can gauge the exigencies of a public service. Secondly, a public servant holding a transferable post, can neither claim placement against a particular post, nor retention against a post. Once a public servant is transferred, whether on request or otherwise, from one post to another, or is attached at another place, on whatever ground- be it the ground of living together with husband, medical ground, personal hardship- he does not get any right to continue at that place. As a necessary corollary, if the competent authority accedes to the request of a public servant for the desired posting on consideration of the reasons that may be supplied by the public servant in support of the request, or may even be certified by the agency of the competent authority, such consideration of the reasons and accession of the request on the part of the competent authority would not confer any enforceable right on such employee. In so far as the public servants, who seek transfers and postings in order to be able to live with their spouses, we are of the view that before choosing career, they should make a choice between the career and married life. And once the choice is made for career, hardship becomes a reality and an incident of career pursuit. In order to entitle a petitioner to a writ of mandamus, SWP No.1632/2018 Page 3 of 7 he or she has to show infraction of some statutory right or arbitrariness on the part of the concerned authority. Government policies pale into insignificance in the wake of public exigencies. Therefore, this Court cannot even direct the respondents to reconsider the matter and, in fact, there is no need of passing any such direction, this power is otherwise vested with the Government. We need not remind them of their powers." [Emphasis supplied] Testing the case on hand on the touchstone of the law as laid down above, what can be stated is that the deployment of the petitioner from District Kupwara to District Budgam was on the ground of her marriage, however, same does not, in any manner whatsoever, confer upon the petitioner a legally enforceable right to claim continuation at the place of her deployment. A hardship resulting from the husband and the wife being posted at different stations may be unavoidable at times, particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, an employee has to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case, the concerned employee, at the threshold, has to make his/ her choice between career prospects and family life. After giving preference to the career prospects by accepting such an appointment in any Government service with the incident of transfer to any place, subordinating the need of the couple living together at one station, the said employee cannot, as a matter of right, claim to be relieved of the ordinary incidents of Government service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places.SWP No.1632/2018 Page 4 of 7
06. In the case of 'Union of India v. S. L. Abbas', reported in '(1993) 4 SCC 3568', the Hon'ble Supreme Court, has laid down as under:
"The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force."
07. Again, in case titled 'Rajendra Roy v. Union of India', reported in 'AIR 1993 SC 1236', the Apex Court, while reiterating the same view, has been pleased to held as under:
"It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department."
08. Law is also no more res integra as regards the fact that expectations cannot be assumed in abstract. They must have some basis, some rule or policy of the Government and that rules, or policy has to be read and interpreted in the context of the object sought to be achieved by such a rule or policy. The object of the transfer policy declared by the State, vide the impugned circular, is ensuring smooth functioning of the administration, therefore, any policy enumerated in the said Government Circular has to be read in the context of and in conjunction with the object of the declaration. As a necessary corollary, whatever the nature and extent of SWP No.1632/2018 Page 5 of 7 expectations a Government servant may perceive, have to be subordinate and subservient to the object of the policy. Such expectations cannot be derived from the policy in isolation of the object of the State enumerated in the policy itself. Therefore, the achievement of the object by the State will always have primacy over the expectations perceived by a Government servant. Risking repetition, the object of the transfer policy declared by the State is quoted hereinbelow, verbatim:
"With a view to ensuring smooth function of various department/ offices, the following instructions are hereby issued for compliance by all concerned."
From a cursory reading of the preamble of the Circular, it is, thus, clear that the object of the policy, so formulated by the Government, is none other than administrative exigency and smooth functioning of the Government Departments/ Offices. Therefore, the various clauses of the policy relied upon by the petitioner have to be read and interpreted in the context of the aforesaid objective. Since this policy has been made to secure administrative exigencies and smooth functioning of the Government Department/ Offices, the object of the declared policy will have overriding effect.
09. There may be cases where some of the employees have genuine apprehensions. It has, time and again, been held by the Hon'ble Apex Court of the country that, whatever be the nature of hardship, the concerned employee should, instead of approaching the Courts, go to the competent authority for seeking the redressal of his/ her grievance. In such view of the matter, instead of challenging the Government circular, the proper and SWP No.1632/2018 Page 6 of 7 advisable course for the petitioner was to approach the Government through the concerned Department for seeking extension in the period of her deployment. This Court does not have the jurisdiction to compel the Government to make the transfer of an employee or extend the deployment of an employee in a particular way or at a particular place.
10. For all that has been said and done above, I am of the view that the petition of the petitioner lacks in merit. It being so, same entails dismissal and is, accordingly, dismissed alongwith connected MP(s). However, the petitioner shall be at liberty to approach the competent authority in her concerned Department for seeking extension in her deployment on marriage grounds, which shall be considered on merits and in tune with the scheme and the policy of the Government governing the field.
(Ali Mohammad Magrey) Judge SRINAGAR July 25th, 2018 "TAHIR"
SWP No.1632/2018 Page 7 of 7