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IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
A.K. Goel, J.
Gh. Rasool - Appellant
Versus
State Of J&K - Respondent
SWP No. 643/1998, CMP Nos. 748 And 959/1998
Decided On : 18 September, 1998
TRANSFER OF GOVERNMENT SERVANT - ARBITRARY AND MALAFIDE TRANSFER - JUDICIAL INTERFERENCE - CONDITIONS PRECEDENT - PUBLIC INTEREST - ADMINISTRATIVE DEPARTMENT APPROVAL - CLOSE RELATIONSHIP BETWEEN TRANSFERRING AUTHORITY AND BENEFICIARY - RELEVANCE - CASE FACTS AND CIRCUMSTANCES.
Fact of the Case:
Petitioner, a Junior Assistant Storekeeper, challenged his transfer order from Kotranka to Thannamandi, alleging it was arbitrary, malafide, and aimed at harassing him. He claimed he had not completed his normal tenure at Kotranka and the transfer was ordered without prior approval from the Administrative Department. The petitioner also alleged close relations between the transferring authority and the beneficiary of the transfer.
Finding of the Court:
The court held that the transfer order was arbitrary and malafide, and quashed it. It found that the allegations of close relationship between the transferring authority and the beneficiary were not specifically denied, and that the transfer was ordered without administrative interest of the Government.
Issues: 1. Whether the transfer order was arbitrary and malafide? 2. Whether the transfer order was passed by a competent authority? 3. Whether the transfer order was actuated by ill-will and malice?
Ratio Decidendi: 1. The court held that the transfer order was arbitrary and malafide, as it was ordered without administrative interest of the Government and without prior approval from the Administrative Department. 2. The court held that the transfer order was passed by a competent authority, as the transferring authority had the power to order transfers. 3. The court held that the transfer order was actuated by ill-will and malice, as the allegations of close relationship between the transferring authority and the beneficiary were not specifically denied.
Final Decision: The court allowed the writ petition, quashed the impugned transfer order, and ordered the petitioner to continue working at Kotranka.
1. The petitioner has questioned the impugned transfer order, Annexure-B to the writ petition dated 08.05.1998. In terms of the impugned order, petitioner who was working as Junior Assistant Storekeeper, Food Store, Kotranka has been ordered to be transferred and posted as Storekeeper, Food Store, Thanamandi, relieving Mohd. llyas Weighman and, he will also work as Salesman Thannamandi. As per the averments made in the petition, petitioner had completed one and a half year at Kotranka, when the petition in question was filed and has thus been transferred before permitting him to complete his tenure of two years. In case it was considered necessary to transfer the petitioner before completion of his normal tenure, In the public interest, then, the Competent Authority could order so with the prior approval of the Administrative Department. This having not been done, the so-called Ex-post-facto sanction that tools of no consequence to uphold the impugned order of transfer.
2. The case of the petitioner is that the impugned order is highly arbitrary and having been passed in a mechanical manner, without application of mind and is aimed at causing harassment with a view to dislocate the petitioner from Kotranka on one hand and giving undue benefit to respondent No. 4, namely, Ghar Singh, who has been ordered to be posted in place of the petitioner.
3. Respondent No. 2, Shri S.S. Jamwal, District, Food and Supplies, Jammu has been arrayed as a party by name, against him allegations have been made in Ground (C) in the writ petition in the following words:-
"(C) that the order impugned is bad in the eyes of law and from this fact also because it is not in the interest of admistration and in respect to the transfer of the petitioner from Kotr-anka to Thannamandi whereas respondent No. 4, who stands at Item No. I could be directly transferred from Food Store Kotranka to Thannamandi, where the post was required to be adjusted as in Thannamandi Store one salesman was made an incharge of the store by holding additional charge of Saleman. The Respondent No. 2 with ulterior motives, because he and the respondent No. 4 having close relations with each other with a wreck vengeance to the petitioner only to dislocate and harass the petitioner and to give the benefit of adjustment of the choice of the Respondent No. 4. The Respondent No. 2 has passed the order without getting the approval from the Administrative Deptt. be cause the transfer of the petitioner is quite premature and which is evident from the earlier transfer order dated 30.10.1996, where the petitioner at item No. 11 was transferred from Rajouri to Kotranka Food Store as Storekeeper-cum-Salemen Kotranka. The copy of the order dated 30.10. 1996 and the copy of the order impugned dated 8.5.1998 are enclosed herewith and marked as Annexures A&B respectively to this writ petition for the perusal of the Honble Court." (Underlining Supplied)
4. Objections in this case have been filed, which are supported with the affidavit of said Respondent No. 2. Reply to the aforesaid plea is urged in para/ground iii) in these objections is in the following terms:-
"iii) That the averments made in ground (c) are misconceived. It is not for the petitioner to decide what is the interest of the administration. Furthermore, the averments made in the para, regarding the petitioner and respondent No. 4 being close relations do not appeared to have any connection with the contents of the present writ petition. The knowledge of the relations is also denied."
5. Paras 1 and 2 of the affidavit in support of these objections are also reproduced herein below:-
"1. That being concersant with the facts of the aforementioned case on the basis of record to which I have access, I have to state that so far as the factual aspects of averments made in the accompanying objection are concerned these are true and correct to my knowledge.
2. That the legal aspects of the averments made in the acc
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