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1978 Supreme(J&K) 5
IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
A.S. Anand, J.
Kewal Krishan Gandotra - Appellant
Versus
State & Anr. - Respondent
Writ Petition No. 157/1977
Decided On : 14 January, 1978
Advocate For Respondent: O.N. Tikku
Advocate For Appellant: R.P. Sethi
The government has the authority to transfer employees to Ladakh irrespective of other provisions contained in the service rules, and such transfers are not malafide or by way of punishment if made in the interest of administration.
Headnote:
TRANSFER - ORDER - JUDICIAL REVIEW - MALAFIDE - ADMINISTRATIVE EXIGENCIES - SERVICE RULES - VIOLATION - PUBLIC INTEREST - GOVERNMENT SERVANT - TRANSFER - MALAFIDE - BURDEN OF PROOF - PUBLIC INTEREST - ADMINISTRATIVE EXIGENCIES - SERVICE RULES - VIOLATION - PUBLIC INTEREST - GOVERNMENT SERVANT - TRANSFER - MALAFIDE - BURDEN OF PROOF.
Fact of the Case:
Petitioner, a junior assistant in the Department of Food and Supplies, challenged his transfer from Jammu to Leh, alleging violation of service rules, malafide intent, and punitive nature of the transfer.
Finding of the Court:
The court held that the transfer was not in violation of service rules, as the government had the authority to transfer employees to Ladakh irrespective of other provisions. The court also found no evidence of malafide intent or that the transfer was intended as punishment.
Issues: 1. Whether the transfer order violated the Jammu and Kashmir Civil Services (Decentralization of and Recruitment to Non-gazetted Cadres) Rules, 1969? 2. Whether the transfer order was malafide? 3. Whether the transfer order was by way of punishment?
Ratio Decidendi: 1. The court held that the transfer order did not violate the 1969 Rules, as the transfer was made by the government and not by the Head of the Department, and the last proviso to Rule 10 of the 1969 Rules gave blanket powers to the government to transfer a government servant to Ladakh District irrespective of any other provision contained in the rules. 2. The court held that the petitioner failed to establish malafide intent on the part of the respondents, as the transfer was proposed in the interest of administration and there was no evidence that the transfer was made at the asking of the respondent or for extraneous reasons. 3. The court held that the transfer order was not by way of punishment, as the petitioner was transferred for administrative reasons and was entitled to additional allowance and other benefits available to employees posted at Leh.
Final Decision: The court dismissed the writ petition, holding that the transfer order was not violative of any legal provisions, was not malafide, and was not by way of punishment.
2. It is averred by the petitioner that on 28-6-1977 there was some altercation between the petitioner and respondent No. 2 as a result of which disciplinary proceedings were initiated against the petitioner. A show cause notice was issued to him on 9-8-1977 asking him to explain as to why disciplinary action, as warranted by the rules, be not taken against him for having acted in a manner unbecoming of a Government Servant. The copy of the show cause notice has been attached with the petition as Annexure "B". The petitioner submitted his explanation. On receipt of the explanation, the authorities considered the same and found that the explanation was unsatisfactory and contained false and malicious allegations which prima facie showed that the petitioner was guilty of acting in a manner un becoming of a Government employee, in violation of Rule 3 (i) (iii) of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971. A charge sheet was accordingly issued to the petitioner on 7-10-1977, copy whereof has been attached as Annexure "D" to the petition. The Departmental enquiry against the petitioner has not been concluded.
3. It is also averred by the petitioner that because of the personal annoyance of respondent No. 2 and because of his malafide intention, the petitioner has been transferred along with his post to Leh by virtue of the Government Order dated 6-10-1977, copy whereof has been attached as Annexure "A" to the petition. In a nutshell the petitioner has impugned the order of transfer, Annexure "A", on the following grounds: -
(i) that the order of transfer amounts to a punishment ;
(ii) that the petitioner could not have been transferred outside the Jammu Division by the Secretary to Government, Feed, Supplies and Transport Department and that his transfer from Jammu Division to Ladakh Division was violative of the Jammu and Kashmir Civil Services (Decentralization of and Recruitment to No-gazetted Cadres) Rules, 1969 ;
(iii) that the order of transfer does not show the reasons for the transfer ;
(iv) that since the order of transfer does not show that the lien and promotions prospects of the petitioner in the parent department have been protected, the same was violative of Rule 10 sub-rule 2 of the aforesaid Rules of 1969 ; and
(v) that the order of transfer was malafide and was intended to deprive the petitioner of reasonable opportunity to defend himself against the charges framed against him.
4. Reply affidavit was filed by both the respondents. On behalf Of respondent No. 1, reply was filed on the affidavit of S. Kuibir Singh, Secretary to Government, Food, Supplies and Transport Department. Preliminary objection was taken in the reply affidavit to the, effect that an order of transfer was not open to judicial review and the same was not
justifiable being of an administrative nature and that no writ was maintainable against an order of transfer. Another preliminary objection taken was that no legal or fundamental right of the petitioner had been violated and as such the writ petition was also not maintainable on that account.
5. On merits it-has been averred in the reply affidavit that the petitioner had been transferred to Leh on administrative grounds and that the transfer was ordered by the Government in the best interests of administration and for administrative reasons and exigencies of service.
6. In the reply affidavit filed by respondent No. 2 it has been averred that the allegations of the petitioner that respondent No. 2 entertained any personal annoyance against the petitioner are incorrect and
