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JAMMU & KASHMIR HIGH COURT
Muzaffar Hussain Attar, J.
Sudarshan Kumar Mishra and Suresh Sethi -Appellant
Versus
State and Ors. -Resopndent
SWP No. 1526 of 2011 and SWP No. 1583 of 2011
Decided On : 22-09-2011
Transfer - Government Order - Rule 27 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956 - Government Order No. 861-GAD of 2010 - The court discussed the impugned transfer order in relation to the petitioners' tenure, excess working strength, and the guidelines for transfers. It highlighted the need for compliance with the guidelines to avoid arbitrariness in exercising the power of transfer. The court quashed the transfer order for one petitioner and directed others to file representations before the competent authority.
Fact of the Case:
The petitioners, Junior Engineers, challenged their transfer orders on grounds of not being in the interest of administration, premature transfers, and malafide exercise of power.
Finding of the Court:
The court found that the transfer orders needed to be re-considered for those who had not completed the minimum tenure and directed them to file representations. It also quashed the transfer order for one petitioner and directed the competent authority to take decisions on representations within specified periods.
Issues: The issues revolved around the legality and fairness of the transfer orders, compliance with guidelines, and the authority's power to transfer employees.
Ratio Decidendi: The court emphasized the need for compliance with guidelines to avoid arbitrariness in exercising the power of transfer. It also highlighted the requirement for re-consideration of transfer orders for those who had not completed the minimum tenure.
Final Decision: The court quashed the transfer order for one petitioner, directed others to file representations, and specified periods for the competent authority to take decisions on the representations.
Hon'ble Mr. Justice Muzaffar Hussain Attar, Judge
1. SWP No. 1526/2011 CMP No. 2218/2011
Petitioners are substantively holding the posts of Junior Engineers (civil). In terms of Government Order No. 273- PW (Hyd) of 2011 dated 28.07.2011, they have been ordered to be transferred. Petitioners are aggrieved of this order and have challenged the same in this writ petition inter alia on the ground that impugned transfer order, so far as it relates to the petitioners, is not made in the interest of administration; some of the petitioners have not completed minimum tenure of two years at the place of posting wherefrom they have been ordered to be transferred; some persons having more tenure than the petitioners have been retained whereas petitioners have been ordered to be transferred. It is also stated that petitioners have been ordered to be transferred in malafide exercise of power, inasmuch as, in terms of impugned order they have been deemed to have been relieved from their present place of posting with immediate effect.
2. Reply affidavit/objections have been filed. Paragraph 2 and 3 thereof is taken note of:
2-3 For reference of the Hon'ble Court the sanctioned and working strength of Junior Engineer in the four divisions is given as under:
1. By aforesaid examination 94 Junior Engineers were found excess in said Divisions. The stay of petitioners was
S. No.Name of Division SanctionedStrengthWorking Strength
1.PHE City Division-I, Jammu20 50
2.PHE City Division-II, Jammu2945
3.PHE Rural Division, Jammu20 54
4.PHE Division, Samba1529
Total84178
found more than seven years in Jammu/Samba Divisions.
2. The Departmental analysis further revealed that other Hydraulic Wings, Divisions/Departments are functioning with insufficient strength in the Cadre of Junior Engineers. Such situation existed prior to the passing of the impugned order. In order to streamline the working, by impugned order petitioners and other Junior Engineers have been posted to Wings/Divisions suffering from shortage, where the Services shall be best utilized in public interest. In their places the substitution is not required.
3. The order impugned does not change the Cadre, the petitioners shall continue as Junior Engineers belonging to the Hydraulic Wing. It does not violate the spirit of Rule 17 J&K Subordinate (Engineering) Recruitment Rules, 1992. The respondents submit that some of the petitioners claim their postings on medical ground or nearing retirement such petitioners may file appropriate representations, the same shall be examined and considered.
3. SWP no. 1583/2011 CMP No. 2312/2011
Petitioner has been ordered to be transferred in terms of impugned order and this petition is filed on the ground that petitioner has been subjected to frequent transfers and State has formulated policy to govern and regulate the power of transfer and posting which is notified vide Government order No. 861-GAD of 2010 dated 28.07.2010. It is submitted that in a period of less than two years petitioner has been subjected to transfer more than four times.
4. Heard learned counsel for the parties. Considered the matter.
5. Mr. S. C. Gupta, learned Sr. AAG appearing for respondents in his fairness submitted that petitioner in SWP No. 1583/2011 in view of the pleadings made by him in the writ petition supported by material annexed therewith, may be directed to file a representation before the competent authority and competent authority will consider the same and take a decision thereon and until such time the decision is taken, impugned order will not be given effect to, to the extent of said petitioner.
6. Learned counsel for petitioners reiterated the stand taken by the petitioners in their pleadings. Learned counsel submitted that most of the petitioners have been transferred prematurely and it is not known as to how the petitioners could be said to be in excess as in terms of the earlier transfer and posting order, they were posted against the posts which were manned by other Ju
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