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2020 Supreme(J&K) 302
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohammad Magrey & Sanjay Dhar, JJ.
Dr. Gulshan Younis.
versus
Union Territory of JK & Ors.
CM Nos. 2990/2020, 2991/2020 in WP (C) No. 1194/2020 CM No. 2992/2020
Decided on 21.8.2020
For the Petitioners:Mr Mohammad Iqbal Dar, Advocate. (Through Virtual Mode)
Headnote:
Constitution of India,1950 - Article 226 - Services of an employment – Quash - Petitioner has questioned order impugned amongst or grounds on ground that order impugned is against facts and circumstances case and is also contrary to law and rules governing subject - It is fur submitted that CAT has not considered matter in its right perspective inasmuch as action of Chief Medical Officer was based on maladies as also was misuse of official position but this point has not at all been taken into consideration by CAT while refusing grant of interim relief - It is pleaded that order impugned has also caused miscarriage of justice on ground that shifting of petitioner from her original place of posting where she was still fresher was not ordered in interest of administration – Held, Settled in law that executive instructions Government orders are subject to statutory rules and legislature who framed Rule cannot delegate its power to authorized officer or executive and executive can issue Government orders only within bounds of Rules - Legislature has not amended Rule fixing any minimum or maximum tenure to Government servant serve particular station - In decision reported in State Bombay Humble Supreme Court has held that legislature cannot delegate its essential functions which have been entrusted to it by Constitution - In decision reported in Mohammed State of Bombay it was held that authorized officer cannot issue order which is contrary to statute - If intention of executive is to fix minimum or maximum tenure to government servant to serve in particular station it can only recommend legislature to amend Rule In decision reported in Thrived and sons State of Gujarat Humble Supreme Court held that rule making authority cannot change policy of Act Regulation- In this case as on today Rule is not amended - Moreover no policy decision can be taken in terms of Article Constitution of India which would run contrary to constitutional or statutory schemes as held by Humble Supreme Court in Post Master General Kolkata Tutu Das Punjab Water Supply & Sewerage - In decision of Humble Supreme Court reported in supra it is held that State Governments are affecting transfers and postings at whims and fancies of executive head for political and or considerations and not in public interest - Hence minimum tenure of service is good for administration and efficiency - Insofar as State J&K is concerned as stated supra minimum tenure of two years and maximum tenure of three years is already fixed in Government order and said order is guideline and not having any statutory force - In said order itself it is stated that premature transfers wherever unavoidable in interest of administration may be ordered on certain contingencies - Hence strict implementation of minimum years and maximum years tenure is not intended in Government order - In such circumstances said Government order will not confer any right of enforcement through Court law in light of Rule stated supra -However at this stage Dar counsel for petitioner submits that petitioner shall feel satisfied if writ petition is disposed with liberty to petitioner to make representation before Director Health Services Kashmir as regards her transfer to some nearest place of posting in view of difficulty faced by her who shall consider same in accordance with rules governing field – Petition disposed
JUDGMENT (ORAL)
Ali Mohammad Magrey, J.—CM Nos. 2990/2020, 2991/2020;
These application have been filed by the applicant, seeking extension of time for affixing the stamp papers and the requisite court fee as well as placing on record the certified copy impugned judgment with the main petition.
2. On the set of facts and the grounds urged, coupled with submission made, the applications are allowed and the applicant is permitted to make good the deficiency as and when Registry starts working in the regular form. Both the CMs are accordingly disposed of.
WP (C) No. 1194/2020; CM No. 2992/2020;
3. In this petition, filed under Article 226 of the Constitution of India, the petitioner has craved the indulgence of this Court in quashing the order impugned dated 6th of July, 2020, passed by the Central Administrative Tribunal, Jammu (hereinafter referred to as the ‘CAT’) in OA No. 61/127/2020, titled Dr Gulshan Younis vs Union Territory of J&K & Ors, whereby the request of the petitioner for interim relief has been rejected.
4. The petitioner has questioned the order impugned, amongst other grounds, on the ground that the order impugned is against the facts and circumstances of the case and is also contrary to law and rules governing the subject. It is further submitted that the CAT has not considered the matter in its right perspective inasmuch as the action of the Chief Medical Officer was based on malafides as also was misuse of official position, but this point has not at all been taken into consideration by the CAT while refusing grant of interim relief. It is pleaded that the order impugned has also caused miscarriage of justice on the ground that the shifting of the petitioner from her original place of posting where she was still a fresher was not ordered in the interest of administration.
5. Heard the learned counsel for the petitioner, perused the documents on record and considered the matter.
6. It has, time and again, been held by various Courts, including the Hon’ble Supreme Court of the country that transfer is an exigency of service and it is the prerogative of the employer to see as to at what place the services of an employee can be best utilized in the larger public interest. An employee, holding a transferable post, has no right to insist that he should be allowed to serve at a particular place for a particular period.
7. A full Bench of this Court, while deciding a reference made in a bunch of writ petitions, the lead case being ‘SWP No. 1476/14’ titled Syed Hilal Ahmad vs. State & Ors., decided on 31st of August, 2015, has settled the issue with respect to enforcement of the Executive instructions/Government orders. It is well settled legal position that Government instructions are not having statutory force. It is also settled in law that Executive instructions/ Government orders are subject to statutory rules. Executive instructions cannot supplement the rules. The issue is no more res integra and has been settled by the Supreme Court in a catena of judgments. The Full Bench of this Court, while reiterating the observations of the Supreme Court, has also held that the Executive instructions/Government orders are subject to statutory rules. The relevant paras (11, 12 and 18) of the judgment are reproduced below, word for word and letter for letter:
“11. It is well settled legal position that Government orders are only administrative instructions, having no statutory force. The 1956 Rules having been issued in exercise of powers conferred under Sub- Section (1) of Section 3 of the Jammu and Kashmir Civil Servants (Removal of Doubts and Declaration of Rights) Ordinance, 1956, the same is the statutory rule governing the field. Thus, the contention of the learned counsel appearing for the petitioners that, minimum two years’ service is mentioned in the transfer policy through Government Order No. 861-GAD of 2010 dated 28.07.2010, is bound to be adhered to, has no force. As already stated, Rule 27 being statutory rule, empo
