The main legal point established in the judgment is that the transfer policy specified in an executive order does not have statutory force and cannot override the statutory rules governing the transfer of government employees.

N. Paul Vasantha Kumar, J.

1. These matters were placed before the Full Bench on the basis of reference dated 16.07.2014 made in SWP Nos. 1476/2014 and 1481/2014 and reference dated 03.08.2014 made in SWP No. 1630/2014, noticing the two conflicting judgments rendered by this Court regarding the transfer of government employees, particularly, "as to whether the Jammu and Kashmir Civil Service Regulations providing for a minimum tenure of two years for purposes of transfer or the policy of transfer as framed by the Government vide Government Order No. 861-GAD of 2010, dated 28.07.2010 has any statutory force or flavour which could make it enforceable in law". Mr. M.Y. Bhat, learned counsel appearing for the petitioners argued the case and made legal submissions without referring to the facts of the cases by relying on the judgment of Hon'ble the Supreme Court reported in AIR 2014 SC 263 (T.S.R. Subramanian and Ors. v. Union of India and Ors.). The learned Advocate General argued on behalf of the respondents and contended that no government servant can insist that he be posted in a place for particular period and the Government Order dated 28.07.2010 is only an administrative instructions.

2. Brief facts necessary for answering the reference, as narrated in the writ petitions, are that the petitioners in SWP No. 1476/2014 have challenged the order of transfer dated 08.07.2014, transferring them to Leh and Kargil Districts while modifying the transfer order dated 04.03.2014. In SWP No. 1481/2014 the petitioner has challenged the order of transfer dated 12.07.2014 transferring him from the office of Chief Agriculture Officer, Budgam to the office of Chief Agriculture Officer, Pulwama. Similarly, in SWP No. 1630/2014 the petitioner has challenged the transfer order dated 22.07.2014 transferring him from District Hospital Baramulla to PHC Sultan Daki, Uri.

3. The contention of the petitioners in these writ petitions are mainly that they have been transferred from their original places of posting to the new places within two years from the date of their earlier transfers and the same is in violation of the transfer policy notified in Government Order No. 861-GAD of 2010 dated 28.07.2010, particularly the tenure of posting which is stated to be minimum two years and maximum of three years. The said Government order/transfer policy was held enforceable by a learned Single Judge in the decision of this Court reported in 2011 (4) JKJ 232 [HC] (Sudarshan Kumar Mishra and Ors. v. State and Ors.). This Court held that the said guidelines would form part of Rule 27 of the J & K Civil Services (Classification, Control and Appeal) Rules, 1956 and as far as possible the said guidelines are to be adhered to. In SWP No. 1336/2013, decided on 06.09.2013 reported in 2013 (4) JKJ 297 [HC] (Ghulam Nabi Shah v. State of J & K and Ors.), another learned Single Judge has taken a view that the Government Order/guidelines are only in the nature of executive instructions and therefore not enforceable.

4. In the light of the conflicting decisions, the matter is referred to the larger Bench which we are called upon to answer.

5. The relevant statutory provision regarding the transfer of a government servant, as mentioned in Rule 27 of the J & K Civil Services (Classification, Control and Appeal) Rules, 1956 (For short "the 1956 Rules") reads thus:-

"27. Posting and transfers: (1) A member of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post borne on the cadre of such service or class. (a) All transfers and postings shall be made by the authority prescribed by Government in this behalf."

6. The guidelines issued pursuant to the Cabinet decision No. 156/12/2010, dated 27.07.2010, which are published through Government Order No. 861-GAD of 2010, dated 28.07.2010, are dealing with the transfer policy to be borne in mind while effecting transfers of government employees. The policy on transfer and po