Jammu & Kashmir High Court
Hamiet Ullah Wani And Ors. vs State Th.Education Deptt.And Ors. on 2 July, 2016
Author: B. S. Walia
Bench: B. S. Walia
1
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SWP No.1353/2016 & MP No.01/2016
Date of Order :02.07.2016
___________________________________________________________
Hamiet Ullah Wani & ors. Vs. State & ors.
Coram:
Hon'ble Mr. Justice B. S. Walia, Judge.
Appearing counsel :
For Petitioner( s) : Mr. Dharamvir, Advocate.
For Respondent(s) : Mr. Ravinder Gupta, AAG.
i) Whether to be reported in : Yes/No. Press / Media
ii) Whether to be reported in : Yes/No. Digest / Journal Judgment.
1. Instant writ petition has been filed praying for the issuance of a writ of certiorari to quash Order No.194- Edu of 2016 dated 30.05.2016, inasmuch as, the same pertains to the petitioners ; to issue a writ of mandamus to allow the petitioners to continue at their place of posting and to issue a writ of prohibition to restrain the respondents from relieving the petitioners.
2. Brief facts of the case leading to the filing of the instant writ petition are that petitioner Nos.1, 2, 3 & 4 were engaged as Teachers on 23.07.2003, 16.02.2004, 19.06.2000 & 06.05.2003 respectively. On completion of five years of service, the petitioners were made General 2 Line Teachers. Thereafter, vide orders passed in August and September, 2014, the petitioners were deployed as CRP in different clusters till further orders etc. Orders of deployment only in respect of six petitioners have been placed on record as Annexure-A collectively. Subsequently, vide order Annexure-B dated 15.01.2015 issued by the Under Secretary to Government, School Education Department, all attachments /deployments of teaching staff viz. Lecturers / Masters / Teachers, at any level, were revoked with immediate effect. Director, School Education and concerned Chief Education Officers were directed to ensure that staff contemplated in aforesaid order was immediately relieved and reported at their original place of posting.
3. Order Annexure-B was challenged by way of SWP No.499/2015 and vide order dated 02.03.2015, the aforesaid writ petition was disposed of by directing the Commissioner / Secretary to Government, School Education Department to give a fresh look to order No.08-Edu of 2015 dated 15.01.2015 while taking into account Government instructions contained in the Transfer Policy. Needful was required to be done within a period of two weeks and till then, the orders impugned 3 in the said writ petition were not to be acted upon and the petitioners were to be allowed to serve at their then place of posting.
4. It is the stand of the petitioners that with effect from said date, the petitioners were deployed at CRP and they were rendering service as Cluster Resource Persons. Pursuant to the directions in SWP No.499/2015 / number of connected writ petitions, impugned order Annexure D was passed. The said order while noticing that an employee holding a transferable post had no right to insist that he/she be allowed to serve at a particular place for a particular period, that transfer was generally a condition of service and an employee had no choice in the matter, transfer from one place to another place was necessary in public interest / efficiency in public administration and that whenever a public servant was transferred, he was required to comply with the said order, that in terms of Rule-27 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal Rules), 1956, a member of a service or class of a service could be required to serve in any part of the State on any post borne on the cadre of such service or class and that the Full Bench of this Court in 4 SWP No.1476/2014 had held that a government servant had no enforceable right to insist that he/she be permitted to serve for a minimum of two years in a station or post and that transfer of a government servant from one place to another place was an incidence of service and did not effect or alter the terms and conditions of service, issue of transfer and posting had been considered by the Hon'ble Supreme Court in a number of decisions, transfer of a government servant appointed to a particular cadre of transferable post from one place to other was an incident of service and no government servant had any legal right for being posted at any particular place, that Government vide order No.26-Edu of 2016 dated 02.02.2016, upon review of attachment/deployment of staff in the School Education Department had taken a series of measures to make the schools functional, that upon examination of the matter it had been found that Government order No.08-Edu of 2015 dated 15.01.2015 had been issued purely in larger public interest and not on malafide considerations nor was the same in violation of rules of service and that vide Government order No.26-Edu of 2016 dated 02.02.2016 general directions had been issued to the 5 Director and other field Functionaries for detachment of attached officials to rationalize human resources and to provide teaching faculty in the schools, that in the light of directions of the High Court, the cases of the petitioners had been examined with reference to the Transfer Policy issued vide Government order No.622- Edu of 2015 dated 22.12.2015 and Government order No.26-Edu of 2016 dated 02.02.2016 and decision had been indicated in Annexure-A to Order Annexure-D. Relevant extract of the decision pursuant to the orders in SWP No.499/2015 is reproduced as under:-
52 SWP Tr/Master/RRET's Doda Order No.08-Edu of 2015 Continues Rejected No.499/2013 dt.15.1.2015 attachment Tilak Raj & Brief is legally not ors. vs. State 1/The petitioners are maintainable & ors. aggrieved of the above and same is mentioned. Govt. order by devoid of virtue of which they were merit.
detached from their present place of posting.
3/The petitioners are
seeking quashment of the
above mentioned Govt.
order.
4/ In terms of Hon'ble High
Court order dated 2/3/2015
the petitioner is continuing
at his present place of
posting.
53 SWP Lect. Jammu Order No.08-Edu of 2015 Continues Rejected
No.166/2015 dt.15.1.2015 attachment
Harbans Brief is legally not
Kour vs. 1/Vide maintainable
State & ors. DSEJ/Gaz/Lect./14661-83 and same is
dated 09.09.2014 the devoid of
petitioner was transferred merit.
and adjusted in DIET,
Jammu.
2/The petitioner is aggrieved
of the above mentioned.
Govt. order by virtue of
which the petitioner was
relieved from the DIET
Jammu and directed to
report to DSE Jammu.
6
3/The petitioner is seeking
quashment of the above
mentioned orders.
4/ In terms of Hon'ble High
Court order dated
23/1/2015 the petitioner is
continuing at his present
place of posting i.e. DIET
Jammu.
54 SWP Master Jammu Order No.08-Edu of 2015 Continues Rejected
No.193/2015 dt.15.1.2015 attachment
Sarishta Brief is legally not
Devi vs. 1/ The petitioner was maintainable
State & ors. transferred and adjusted in and same is
DIET, Jammu. devoid of
2/The petitioner is aggrieved merit.
of the above mentioned.
Govt. order by virtue of which the petitioner was relieved from the DIET Jammu.
3/The petitioner is seeking quashment of the above mentioned orders.
4/ In terms of Hon'ble High Court order dated 28/1/2015 the petitioner is continuing at his present place of posting i.e. DIET Jammu.
5. The petitioners have tried to make out a case of having been sent on deputation. The said stand is absolutely misconceived in view of orders at Annexure-A to the impugned order Annexure D which reveal that the petitioners were merely deployed in the interest of administration and were not sent on deputation. The petitioners have on the basis of orders Annexure-A and order of this Court in SWP No.499/2015 dated 02.03.2015 continued as CRP in different clusters till the passing of order Annexure-D dated 30.05.2016, whereby their claim for being allowed to continue at their place of deployment in terms of order Annexure-A 7 passed in the year 2014 was held to be legally not maintainable and was accordingly rejected.
6. Having heard learned counsel, I am of the considered view that in view of well settled law, the petitioners who hold transferable posts have no right to insist that they should be allowed to continue to serve at the place of deployment as was made vide orders Annexure-A in the year 2014. The deployment was till further orders and in the interest of administration. No government servant has a right to insist that he should be allowed to continue to serve at a particular place for an indefinite period of time since transfer is a condition of service and in the circumstances, an employee has no choice in the matter. Transfer from one station to another is in public interest with a view to toning up efficiency in administration. In terms of Rule 27 of the Classification Control and Appeal Rules, 1956, a member of service or class of service can be required to serve in any part of the State in any post borne on the cadre of such service or class. Even otherwise, it is well settled law that transfer of a government servant from one place to another is merely an incident of service, and does not, in any manner, alter the terms and conditions of service. 8 Thus, no government servant can insist for being continued to serve at a particular place irrespective of requirement of posting of said employee at a different station in the interest of administration / public interest.
7. That apart, Full Bench of this Court vide its decision dated 31.08.2015 in case titled Syed Hilal Ahmed vs. State & ors- 2015(3) JKJ 398 (HC) has held that no government servant has a right to insist that he/she should be permitted to serve for a minimum period of two years at a particular station or post, transfer Policy is merely in the nature of guidelines and is not enforceable in a Court of law, transfer of an employee is amenable to challenge only on the ground of its being vitiated by malafide, having been ordered by an authority not competent to do so or being contrary to the provisions of law. Such is not the case here.
8. In the circumstances, the impugned order is legally valid, therefore, immune from challenge. Writ petition being bereft of merit is, accordingly, dismissed in limine. No order as to costs.
(B. S. Walia) Judge Jammu 02.07.2016 9 Ram Murti