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2015 Supreme(J&K) 585
Jammu & Kashmir High Court
Dhiraj Singh Thakur, J.
Ab. Rashid (Dr.) - Appellant
Versus
State & Ors. - Respondent
SWP No. 3049/2014 & CMA No, 4092/2014
Decided On : 01-06-2015
For the Appellant(s)/Petitioner(s):Mr. Z.A. Shah, Sr. Advocate With Mr. K.M. Bhatti, Advocate.
For the Respondent(s):Mr. Gagan Basotra, Sr. AAG for Respondents 1 & 2, Mr. F.S. Butt, Advocate for Respondent 3, Mr. K.S. Johal, Sr. Advocate With Mr. Ashray Choudhary, Advocate for Respondent 4 & Mr. Vishal Goel, Advocate for Respondent 5.
The court emphasized that transfer of a government employee is an administrative decision and interference by the court is limited to cases of mala fide or violation of statutory provisions.
Headnote:
Malafides - Transfer of Government Employee - Govt. Order No. 1091-GAD of 2014 - Govt. Order No. 861-GAD of 2010 - Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956
Fact of the Case:
The petitioner challenges the transfer order on the grounds of malafides and premature transfer, citing violation of Govt. Order No. 861-GAD of 2010.
Finding of the Court:
The court found that the allegations of malafides were baseless and rejected the argument that the premature transfer was in violation of Govt. Order No. 861-GAD of 2010.
Issues: Malafides, Premature Transfer, Violation of Govt. Order No. 861-GAD of 2010
Ratio Decidendi: The court held that the transfer order did not exhibit malafides and the Govt. Order No. 861-GAD of 2010 was not enforceable, thus dismissing the petition.
Final Decision: The petition was found to be without merit and dismissed.
1. The petitioner in the present petition challenges .the Govt. Order No. 1091-GAD of 2014, dated 21.10.2014 whereby the petitioner, who was working as Director, Industries and Commerce, Jammu has been transferred and posted as Project Director, Sarva Shiksha Abhiyan.
2. The order impugned is questioned on the ground of malafides as also on the ground that the same was premature and without jurisdiction in terms of Govt. Order No. 861-GAD of 2010, dated 28.7.2010.
On malafides
3. It was urged that the petitioner has been posted as Director, Industries and Commerce vide Govt. Order dated 16.7.2014 pursuant to a decision taken by a Cabinet bearing No. 131/11/2014. However, immediately after assuming the charge, respondent No. 3, who was the minister of State for Industries and Commerce, started pressurizing the petitioner for immediately calling the Divisional Level Single Window Clearance Committee meeting for clearing the cases of M/s Shivam Metal Shaper Industries Works and M/s Adhishree Cold Storage in whose favour the Managing Director, J&K Small Industries Development Corporation (SIDCO) had earmarked a plot of land measuring 17 kanals each at Bari Brahmana, Jammu.
4. It was further stated that another case was that of M/s Chenab Engineering and Fabrication, Industrial Estate, Birpur SICOP in which the Public Relation Officer of respondent No. 3 had a personal interest and in whose favour the Managing Director SICOP had earmarked the land subject to cancellation of plot, which was without proper location, plot number, sketch, and site plan and was not otherwise covered under the rules.
5. It was stated that in order to pressurize the petitioner, veiled threats were advanced at the behest of respondent No. 3 that he would be transferred from his assignments.
6. Reference was also made to a complaint filed by one Kamal Kumar of M/s S.K. Industrial Technical Consultancy addressed to the Chief Minister, highlighting the factum of illegal allotment of premium land at Bari Brahmana in favour of certain industrialists against the Industrial policy.
7. It was stated that the petitioner on examination of the cases aforementioned came to know that the recommendations made in favour of M/s Shivam Metal Shaper Industries Works and M/s Adhishree Cold Storage was against the State Government's Industrial Policy of 2004 as there were as many as 34 cases, which were pending since 2009 prior to those of the above. It is also stated that land had to be allotted only on first come first serve basis.
8. Finally, it was urged that in a Divisional Level Committee meeting, the cases of the aforementioned industrialists were rejected, which infuriated respondent No. 3, who in fact, prevailed upon the Chief Minister by having him pre-maturely transferred as Director, Sarva Shiksha Abhiyan. Response of respondent No. 3 to allegations of Malafides.
9. Reply affidavit has been filed on behalf of respondent No. 3 wherein it is stated that the Minister of State for Industries and Commerce had no role to play in the allotment of land to the prospective entrepreneurs and that the cases for allotment of land were disposed of by the designated Single Window Clearance Committee at the Divisional level under the chairmanship of Director, Industries and Commerce and by the Apex Project Clearance Committee under the chairmanship of Chief Secretary at the State level depending upon the category of the projects,
10. Allegations of threat, pressure or coercion on the petitioner to favour the industrialists, named in the petition, have specifically been denied. In regard to the complaint filed by Kamal Kumar of M/s S. K. Industrial Technical Consultancy, Jammu, it is stated that the said complaint was a forged one inasmuch M/s S.K. Industrial Technical Consultant vide their letter dated 16th of Sept., 2013 had denied having lodged any such complaint and had also denied the existence of any individual by the name of Kamal Kumar in their organization.
11. It was stated
