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Jammu & Kashmir High Court

Amit Upadhyaya vs State Of Jk & Ors. on 7 September, 2018

Equivalent citations: AIRONLINE 2018 J AND K 190

Author: M. K. Hanjura

Bench: M. K. Hanjura

                   HIGH COURT OF JAMMU AND KASHMIR
                               AT JAMMU

SWP No.719/2018
IA No.01/2018
IA No.02/2018
                                                     Date of Order: 7th of September, 2018

                                         Amit Upadhyaya
                                                Vs
                                        State of JK & Ors.

Coram:
               Hon'ble Mr. Justice M. K. Hanjura, Judge.

Appearance:

       For the Petitioner(s):             Mr M. K. Bhardwaj, Senior Advocate with
                                          Mr Vasu Dubey, Advocate.
       For the Respondent(s):             None for R-1&2.

Mr Rahul Pant, Advocate for R-3.

       i) Whether approved for reporting in                            Yes/No
                Law Journals etc.:
       ii) Whether approved for publication
                in Press:                                     Yes/No

01. The facts, as these emerge from the study of the file under consideration, are that the petitioner, an employee in the Revenue Department of the Jammu & Kashmir Government, was, vide Government Order No. 89-Rev (Gaz) of 2018 dated 6th of April, 2018, transferred from Beri Pattan to Nagrota, with a further direction that he shall lookafter the work of Tehsildar, Nagrota. Subsequent to his transfer, the petitioner joined at his new place of posting on 7 th of April, 2018. He submitted his joining report to the Deputy Commissioner, Jammu, and assumed the charge of Tehsildar Nagrota, vide No. Teh-Nag/OQ/2018-19/24-30 SWP No. 719/2018 Page 1 of 6 dated 7th of April, 2018. Thereafter, the Respondent No. 1 issued the order impugned bearing No. 92-Rev(Gaz) of 2018 dated 17th of April, 2018, whereby it has been directed that the petitioner shall await further orders of posting in the office of the Divisional Commissioner, Jammu and the Respondent No. 3 shall continue to hold the charge Tehsildar, Nagrota.

02. The contention of the petitioner, here in this petition, is that the Vice- Chairman, Jammu Development Authority, addressed a communication to the Respondent No. 1, which spelt out the attestation of illegal mutations in Tehsil Nagrota during the last one and a half years, but, instead of taking any action on the said communication, the Respondent No.1 passed the impugned order, which is unwarranted, unjustified and unconstitutional in the eyes of law.

03. In his objections, filed in opposition to the petition of the petitioner, the respondent No. 3, has resisted and controverted the petition of the petitioner, inter alia, on the grounds that in pursuance of Government Order No:89- Rev(Gaz) of 2018 dated 6th April, 2018, he, working as I/C Tehsildar, Nagrota, came to be prematurely transferred as I/C Tehsildar, Thakrakote. It is stated that the transfer of the respondent was premature as he had rendered only one and a half years' service as I/C Tehsildar, Nagrota and before that, he had already rendered more than 2 and a half years' service in District Doda as I/C Tehsildar and, as such, he, instead of joining at Thakrakote, made a representation to the Government and the Government, having realized the fact that the respondent No.3 had been prematurely transferred in contravention of the transfer policy framed by it, passed the Government Order No:92-Rev(Gaz) of 2018 dated 17th April, 2018, whereby the respondent No.3 was asked to continue as I/C Tehsildar, Nagrota. The aforesaid order does not violate any legal or SWP No. 719/2018 Page 2 of 6 fundamental right of the petitioner, which is sine-qua-non for invoking the jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu and Kashmir. It is further stated that otherwise also, the respondent No.3, who, substantively holds the post of Naib Tehsildar, was promoted as I/C Tehsildar in the year 2014, subject to confirmation by the DPC/PSC and that the respondent is also senior to the petitioner. The respondent No.3 has proceeded to state that the petitioner has not been promoted as Tehsildar either on substantive basis or on incharge basis. He has no right to continue against the post of Tehsildar, Nagrota, as the perusal of the Government Order No:89-Rev(Gaz) of 2018 dated 6th April, 2018, brings it to the fruition that the petitioner was simply asked to look after the work of the post of Tehsildar Nagrota, which does not amount to promotion against the post of Tehsildar on incharge basis, stop-gap basis or ad hoc basis. It is also the case of the respondent No.3 that it is the prerogative of the Government to decide the posting of the Tehsildars, who have been promoted subject to confirmation by the DPC/PSC and, in so far as the petitioner is concerned, he is only a Naib Tehsildar and is, therefore, not entitled to hold the post of Tehsildar. It is further pleaded by the respondent No.3 that simply because the petitioner was asked to look after the work of the post of Tehsildar, Nagrota, does not mean that he has a right to continue as Tehsildar, Nagrota, but, as has already been stated hereinabove, the petitioner has not been promoted even on incharge basis as Tehsildar. In the end, the respondent No.3 has prayed that the petition of the petitioner, being highly misconceived, be dismissed.

04. Heard and considered.

05. The dictum of law is that the transfer is not only an incidence of service, but a condition of service as well and it does not lie in the mouth of an employee to lay his/her claim on a particular post. It is within the domain, power and authority of the employer to decide and judge as to where the services of an employee can be best utilized in the interest of the Organization, where he/she works and, to crown it all, the petitioner has not been holding the post of Tehsildar on substantive basis so as to lay his claim on the post.

06. In "State of UP & Anr. Vs. Siya & Anr.; reported in "(2004) 7 SCC 405"

the Apex Court has held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any particular place or place of his choice, since transfer of a particular employee, appointed to the class or category of transferable posts from one place to other, is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals, normally, cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in "National Hydroelectric Power Corpn Ltd. v. Shri Bhagwa:, (2001) 8 SCC 574."

07. In "Rajendra Singh Vs. State of U.P., reported in "(2009) 15 SCC 178", the Apex Court, again, reiterated the principles of law evolved above. Paragraph No.9 of the judgement, assumes significance and it provides that the Courts are SWP No. 719/2018 Page 4 of 6 always reluctant in interfering with the transfer of any employee unless such transfer is vitiated by violation of some statutory provisions or suffers from malafides.

08. In the case of "Kanshi Ram Verma Vs. Municipal Committee, Mansa"

reported in "(1981) 2 SCC 72", the Apex Court, yet again, highlighted this aspect by holding that we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The Courts cannot interfere in such matters.

09. Looking at the petition of the petitioner from the above perspective, the petitioner cannot challenge the impugned order of transfer on the grounds as urged in this writ petition. This Court has no authority or power to sit in an appeal against the judgment of the official respondents, who found the respondent No.3 to be a fit person to man the post against which he has been transferred. The Courts have no jurisdiction to interfere in such matters. This Court cannot allow the petitioner to choose his own place of posting on the flimsy and fanciful pleas advanced by him, particularly when the transfer of the petitioner neither suffers from any violation of any statutory rule nor can it be stated, by any stretch of imagination, that the action of the State falls under the shade and cover of malafides and, in any case, where malafides are pleaded against a person, he/she has to be impleaded as a party in the petition which is not the case here. It being so, the petition of the petitioner is devoid of any merit. It entails dismissal, as a consequence of which, the same is dismissed alongwith all connected MP(s).

10. Before parting, it needs to be added that one gets pained and dismayed to see the Government employees litigating before the Courts on the grounds involving their transfers. It is not known whether they fend for greener pastures or that they are motivated by any other reasons, particularly when their cases do not fall within the parameters of the guidelines laid down by the Apex Court of the Country and other Courts, which portray as to under what circumstances, the transfer of an employee can be stayed by the Court.

(M. K. Hanjura) Judge JAMMU September 7th, 2018 "TAHIR"