S. No. 179

Admission (Supp)

HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

CM no. 2131/2021 in

WP (C) no. 726/2021

CM no. 2132/2021

(Virtual mode)

Basharat Saleem Paloo

…. Petitioner(s)

Through: Mr M. Y.Bhat, Sr. Advocate with

Mr Hamza Prince, Advocate

V/s

J&K Horticulture Produce Marketing & Processing Corporation Ltd.

… Respondent(s)

Through:

CORAM:

Hon’ble Mr Justice Ali Mohammad Magrey, Judge

ORDER

19.04.2021

In the instant petition, challenge is laid to the order No. 15 Per of 2021 dated

30.03.2021, for short impugned order, in terms whereof the petitioner, Auctioneer, has

been transferred from Head Office, Srinagar to the Marketing Division, Delhi, on the

grounds detailed out in the writ petition with particular reference to the grounds; i)

that the petitioner is working as liaison officer which is a higher post, therefore, by

impugned order he has been demoted; that he has been placed under the control of a

junior officer who is only the Assistant Auctioneer; that the impugned transfer order is

harshly affecting the interests of the petitioner as the petitioner’s father is suffering

from Cancer and he is the only male member to look-after him and extend him the

medical treatment in Srinagar.

Heard. Considered.

The grounds taken in the writ petition have no merit that warrants indulgence

as it has consistently been held by this Court that transfer is an exigency of service.

The grounds pressed in service by the petitioner to seek interference with the

impugned are not available to the petitioner.

Since transfer is an exigency of service and it is the prerogative of the

employer to see at what place the service of an employee can be utilized properly

in the larger public interest, therefore, the employee holding transferable post has

no right to insist that he should be allowed to serve at a particular place for a

particular period.

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 31^st of August, 2015, has settled the issue with respect to

enforcement of 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, verbatim et literatim:

“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, empowering the government to post a government servant at

any time in any place or in any post borne on the cadre, the said transfer

policy, particularly the term mentioned therein, can be adhered to as far as

possible and the same is only an executive instruction based on which no

right could be claime