HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP no.167/2016 Date of decision: 04.03.2016
And SWP no.199/2016
with MP no.01/2016 in each
petition
Abdul
Qayoom Wani v. State of J&K & ors.
Coram:
Hon’ble Mr. Justice Ali Mohammad Magrey,
Judge
Appearing Counsel:
For
petitioner(s): Mr. M. M. Dar,
Advocate;
For
respondents: Mr. M. I. Dar,
Advocate, for 1 to 3; and
Mr. Mehfooz Nazki, Advocate, for 4.
Whether approved for reporting:
Yes / No
1. These
two writ petitions have been filed by one and the same petitioner. In the first
one, the petitioner has challenged Government order no.26-Edu of 2016 dated
02.02.2016 whereby the Government in the School Education Department, on a review
of attachments/deployment of staff in the School Education Department, inter alia, ordered repatriation of the
officers/officials working in the Project Directorate of SSA over and above its
sanctioned strength. The petitioner has prayed that respondents, more
particularly respondent no.3 (Project Director, SSA, J&K at Jammu), be
prohibited from acting on the aforesaid Government order and be directed to
allow the petitioner to continue in his department as per order dated
21.07.2014. In the second writ petition, the petitioner has challenged order
no.123/DSEK of 2016 dated 03.02.2016 issued by respondent no.2, the Director,
School Education, so far as it pertains to him, with further prayers almost
identical to the ones made in the first writ petition.
2. The
petitioner, a Master in the Education Department and holding the designation of
Incharge Headmaster, is stated to be the Union President of Employees Joint
Action Committee, President of School Education Employees Co-ordination
Committee and Chairman, J&K Teachers Forum. By Government order no.
Edu-Gaz/05/2014 dated 15.07.2014, the petitioner was transferred alongwith the
post from State Institute of Education, Srinagar, and posted as Consultant,
SSA.
3. It
appears that the Government in the School Education Department had a review of
the attachments and deployments of staff made in the School Education
Department which culminated into issuance of Government order no. 26-Edu of
2016 dated 02.02.2016 enjoining certain steps in the interest of administration.
It, inter alia, ordered repatriation
of the officers/officials working in the Project Directorate of SSA over and
above its sanctioned strength. It was mentioned in the order that “...these
officials are deemed to have been relieved from SSA and shall report to the
authorities, as indicated in Annexure ‘A’ to this Government order, who shall
issue their orders of posting within three days”. Name of the petitioner
figured at serial no.3 of Annexure ‘A’ to the aforesaid Government order,
showing him as I/C Headmaster. He was required to report to respondent no.2
herein, i.e., the Director, School Education, Kashmir.
4. The
petitioner, feeling aggrieved of the aforesaid Government order no. 26-Edu of
2016 dated 02.02.2016, challenged the same in writ petition, SWP no.167/2016,
on the ground of it being based on mala
fides of respondent no.3, and being
violative of the transfer policy framed by the Government in terms of order
no.622-Edu of 2015 dated 22.12.2015.
5. In
order to elucidate and buttress the ground of mala fides, it is stated that respondent no.2 had been victimising
the members of the Union, and in pursuit of his mala fide intentions, he transferred two of the union members,
namely Mohammad Amin and Mohammad Afzal Bhat from their respective places. They
filed writ petitions and obtained orders of stay in their favour. The
petitioner in his capacity as Chairman of J&K Teachers Forum etc. made a
representation to respondent no.1, Commissioner/Secretary to Government,
Education Department, seeking his intervention in the transfers made by
respondent no.2. When respondent no.2 came to know about such representation,
he got annoyed and issued a press report which came in press, including ‘the
Kashmir Monitor’ in its issue dated 30.01.2016, saying that he will not
tolerate unionism in his department. It is alleged that it was pursuant to the
aforesaid extraneous considerations of respondent no.2 that respondent no.1,
with an object to shelter respondent no.2, issued the said Government order no.
26-Edu of 2016 dated 02.02.2016, repatriating the petitioner from SSA. It is
also averred that respondent no.1 formulated transfer policy / guidelines to
govern transfers in terms of Government order no.622-Edu of 2015 dated
22.12.2015 whereunder transfer carnivals “transfer melas” in each and every
district were to be held and teachers, who had two or more years of stay at a
place, were to be transferred. It is stated that the petitioner had not yet
completed two years’ tenure in SSA.
6. The
aforesaid writ petition, presented before the Registry of the Court on
04.02.2016, came up for consideration before a Coordinate Bench of this Court
on the very same day. The Court, while issuing notice, directed that operation
of the impugned order to the extent of the petitioner shall not be acted upon.
7. It
appears that prior to presentation of the aforesaid writ petition, SWP
no.167/2016, before the Court by the petitioner and, consequently, prior to
passing of the Court order dated 04.02.2016 referred to hereinabove, respondent
no.2, Director, School Education, Kashmir, issued order no.123-DSEK of 2016
dated 03.02.2016 according sanction to the transfer and posting of numerous I/C
Headmasters and equivalents mentioned therein. The petitioner’s name figures at
serial no.81 therein and he stands posted at HS Ogmuna, Baramnulla.
8. The
petitioner, therefore, on 08.02.2016, came up with another writ petition, SWP
no.199/2016, before the Court challenging the aforesaid order dated 03.02.2016
issued by respondent no.2 on the very same grounds as were taken in the first
writ petition. Additionally, it is pleaded that since the Court by order dated
04.02.2016 passed in the petitioner’s earlier writ petition, SWP no.167/2016,
had directed that operation of the order dated 02.02.2016, repatriating the
petitioner from SSA, shall not be acted upon, the petitioner would be deemed to
have continued at SSA and respondent no.2 could not have ordered his
transfer/posting.
9. The
aforesaid writ petition came up before the Court on 12.02.2016. However, the
Court issued only notices. No order of stay was passed.
10. Before
proceeding further, it may be mentioned here that the petitioner has arraigned
the fourth respondent in both the writ petitions with the following
particulars:
“Faisal Rasool Shah alias Dr. Shah Faisal S/o Ghulam
Rasool Shah R/o Sogam, Kupwara at present Hyderpora, Srinagar”.
No designation or official
particulars, or anything like that, has been indicated against the 4th
respondent to show as to in what capacity he has been arraigned as such
respondent in the writ petition. However, though not indicated so in the array
of respondents, this respondent seems to be the incumbent Director, School
Education, Kashmir. The form his particulars have been mentioned in the array
of respondents, smacks of the over awing mannerism and degradation of socially
accepted norms of respect and discipline. If a governmental functionary is to
be impleaded as a respondent in his personal capacity, he is to be so arraigned
by giving his official address, unless it is shown that the actions alleged
against him exclusively fall outside his official domain or governmental
functions. That is not the case here.
The object of the style in which the particulars of respondent no.4 have
been given, inferentially, is nothing but deliberate expression and
demonstration of scanty regard and rebellion behaviour which does not behove a
government servant, particularly so when he claims to be spearheading the
employees. It is unfortunate that the learned counsel appearing for the
petitioner has allowed himself to be driven by the emotions and sentiments of
his client while drafting the writ petition.
11. Be
that as it may, the Director, School Education, has filed his separate
objections to the writ petition, while the Government has filed its own
objections in both the writ petitions, vehemently denying the assertions and
allegations made by the petitioner in the two writ petitions. I will mention and
refer to the relevant replies so submitted by the respondents at appropriate
place of this judgment.
12. Since
the matter involved urgency, the learned counsel for the parties stated at the
Bar that the two writ petitions could be heard for final decision/disposal at
the admission stage. Accordingly, the learned counsels were heard on 23.02.2016
and 25.02.2016.
13. I
perused the record brought on the case files and considered the matter.
14. The
pivot of the two writ petitions is the ground of mala fides alleged by the petitioner. In fact, all the grounds
raised by the petitioner in the two writ petitions taper to, or spiral from,
the very same allegation. As mentioned above, the allegation is sought to be
not only made out but supported by the news report carried by a local daily,
‘The Kashmir Monitor’ in its issue dated 30.01.2016 under the caption “Will not
tolerate unionism in my deptt: Dir Education”. I think it appropriate to quote
hereunder in its entirety the news report so carried by the newspaper. It reads
thus:
“Srinagar: Unfazed by the Jammu and
Kashmir Teachers Forum (JKTF) proposed gherao to Directorate of School
Education, Kashmir today (January 30), Director School Education, Dr. Shah Faisal
said he has pledged to uproot the menace of unionism from the education
department.
While talking to the Kashmir Monitor,
the first IAS topper from J&K who presently heads the vital education
sector said this unionism has to end as it has not only created indiscipline in
the department but has marred its functions.
‘I will continue to clean the system and
bring reforms in it come what may. Without succumbing to any pressures and
threats, I will continue to bring much needed changes in the education sector.
These union leaders will also go to the schools to teach students for which
they are being paid’, he said.
Shah Faisal said unionism also existed
in the police department, but it was later abolished in 1980’s, that brought
discipline in the police department. ‘So in the same (sic) this unionism has to end in a sensitive department like
education. My fight against it will continue,’ he said.
He said other departments that have been
marred by the unionism are Urban Local Bodies, Transport department, Consumer
affairs and Public Distribution (CAPD).
‘But I won’t tolerate this in Education
department. Nothing can harm or stop me from this. I am ready to face whatever
the consequences. The transfers of people in education department will continue
so that better results are yielded’, he said.
When contacted KLTF President Abdul
Qayoom Wani said he is a government employee and is ready to serve wherever he
is being posted. ‘Even if I am posted in a far flung area, I am ready to serve.
I am a government employee,’ he said, adding his fight is against the pick and
choose policy.
‘Only selected persons are being
transferred. We won’t let that happen,’ he said.
Wani said as far as the question of
unions are concerned, nobody can stop him from fighting for their rights under
the banner of any union. This is our constitutional right. Shah Faisal is no
entity to stop us. Unions exist in every part of the world,’ he said.
‘Director sahib doesn’t have Allah din
Ka chirag that tells him who is working and who is not. Everyone is giving
their best’.”
15. Mala fide, as we know, means bad faith.
An action which may be founded on dishonest belief or purpose would be mala fide. The Supreme Court in Municipality
of Bhiwandi & Nizampur v. Kailash Sizing Works, AIR 1975 SC 529,
observed that reckless disregard of consequences and mala fides stand equal, where the actual state of mind of the actor
is relevant. This is so in the eye of law, even if there might be variations in
the degree of moral reproach deserved by recklessness and mala fides. The definition of the expression ‘good faith’ or ‘done
in good faith’ as given in Section 3(14) of the General Clauses Act, Svt. 1977
(1920 AD) is that a thing shall be deemed to be done in good faith where it is
in fact done honestly, whether it is done negligently or not. Thus, an action
taken in good faith – with an honest belief or for an honest purpose – would
not be mala fide; it would be an
action taken bona fide. Exercise of a
power vested in an authority ‘in good faith’ has also been interpreted to mean
‘for legitimate reasons, not for extraneous, irrelevant considerations or
reasons.
16. Before
analyzing the statement attributed to respondent no.2 as carried by the Kashmir
Monitor, it would be proper to find out what he has to say in this regard.
17. It
is not that respondent no.2 has totally denied to have expressed or said
anything. He has categorically denied the allegations of mala fides. His assertion is that the reporting published in the
newspaper ‘The Kashmir Monitor’ on 30.01.2016 is ex facie false and grossly erroneous. In paragraph 5 of the
objections filed by him, the Director has stated that he had, in fact,
expressly stated that he was in favour of a healthy union and that he
personally appreciated good unions and believed that a good union can
contribute towards growth of any department. It is averred that the statement
made by him also came to be reported in ‘Kashmir Observer’ on the very same day.
Respondent no.2 has appended a downloaded copy of the said reporting with his
objections. It bears the caption “DSEK seeks Teachers Cooperation for
‘Reforming’ Education System”. I think it would be appropriate to quote
hereunder the said report as well. It reads thus:
“SRINAGAR: Seeking cooperation from the
teachers and Teachers Forum for the reform of the education sector for building
future of the state, Director School Education Kashmir Shah Faesal said that
the issues of protesting teachers can be discussed within the walls of the
department not in public.
‘We should discuss departmental matters
within the walls of the department. The issues and grievances can be addressed
in the department not on streets, ‘Shah Faesal told KNS.
Faesal said that the government has
taken decisions for the reform of the education and in favour of the teachers.
Saying that the doors of the teachers
are open in the directorate for the genuine demands, he said that he is meeting
teachers every day for listening to and addressing their issues.
Faesal said that almost all the teachers
are supporting the recent decisions taken by the department. ‘The decisions
taken by the higher authorities are fully justified and are in favour of the
teachers,’ he said.
He said that government is ready to
fulfil the genuine demands of the teachers. ‘I am not against the unionism and
I personally appreciate the good unions as I believe a good union can
contribute a lot to any department,’ Faisal said.
The director said that teachers taking
to streets do not create a good impression about them among students as
teachers are known as builders of any society.
He said government is ready to fulfil
all the genuine demands of government (sic).”
18. Apart
from the fact that the Director has explicitly denied the allegations, a bare
reading of the two news items – one reported by the Kashmir Monitor in its
issue dated 30.01.2016 and the other carried by the Kashmir Observer on the
same day, both quoted above – portray an absolute contrast about what had
professedly been said and expressed by respondent no.2. The two reports are
wholly different and give two different impressions about what had been said.
The fact or the content of the report as it appears in the news item carried by
the Kashmir Observer is not denied by any person, muchless the petitioner. In
that view of the matter, the content of the news item appearing in the daily
the Kashmir Monitor is not only denied but, on the contrary, it is shown that
instead something different was said. In such a situation, there being two
types of news reports available before the Court, this becomes a case of
disputed questions of facts. It is not within the competence of this Court in
its writ jurisdiction to embark upon an enquiry into the questions of disputed
facts to determine which of the two news items reports the correct version of
the statement made by respondent no.2. On that count alone, these writ
petitions are not maintainable.
19. Coming
to another aspect of the matter, even if it be assumed that whatever is
reported in the news item appearing in the Kashmir Monitor had been actually
said by respondent no.2, does it smack of any recklessness or dishonesty on his
behalf, and whether the power, if any vested in respondent no.2 in this regard,
has been exercised for any extraneous, irrelevant or non-germain
considerations, are the questions that fall for determination. It is to be
borne in mind that order dated 02.02.2016, whereunder the petitioner was
repatriated from SSA and directed to report to respondent no.2, was issued by
the Government in the School Education Department, not by respondent no.2.
Respondent no.2 did not have the power to repatriate the petitioner from SSA or
to post him there or to continue him there. Therefore, nothing on that count
can be attributed to respondent no.2. It is preposterous on the part of the
petitioner to say that the Government passed the order in question to shelter
respondent no.2. There is nothing brought on the record to even remotely
suggest that respondent no.2 had any say in the matter or that he, in fact, did
influence the Government to pass such orders. On the contrary, the reason that
effectuated the order is disclosed in para 2 of the preliminary objections
filed on behalf of the Government. It is averred therein that as on 31.01.2015,
there were about 3000 officials who were posted in various departments in
non-teaching capacities. As a result of this, the Education Institutes /
Schools in far flung areas were suffering. Faced with the situation, the
authorities concerned took a policy decision that all the attachments /
transfers of teaching staff to non-teaching positions shall be revoked
forthwith. Accordingly, a Government order, being Government order no.08-Edu of
2015 dated 15.01.2015 was issued whereby all attachments/deployments were
revoked with immediate effect. Thereby, majority of such officials stood
repatriated. However, there were complaints regarding rampant attachments in
the School Education Department. Accordingly, details were sought by the
Government in terms of letter dated 19./01.2016. On receipt of such
information, it was brought to fore that 340 officials in Jammu Division, 251
in Kashmir Division and 7 in the Project Directorate, SSA had still been attached.
It is averred that it was noticed that while some officials were being used for
ministerial work, some were being used for verification of degrees. It was also
revealed that some officials were deployed in the centrally sponsored SSA
beyond sanctioned posts even though there was no functional requirement for
their deployment in the office while at the same time various schools continued
to face acute shortage of teachers. Faced with such situation, the Government,
respondent no.1, issued order no.260-Edu of 2016 dated 02.02.2016 whereby
general directions were issued to the Directors and other field functionaries
for detachment of attached officials. Since the Administrative Department alone
is empowered to transfer officials from one Directorate to another and from SSA
to the Directorates, therefore, the officials deployed in SSA were repatriated
by the Government and their further posting was left to be done by the
concerned cadre controlling authority.
20. Going by the above factual details, there remains no scope to doubt the object behind the whole exercise. It is not that only the petitioner, because of him being the President of the Union was repatriated and transferred, or that the other members of the Union alone, mentioned in the petition to support the ground of mala fides, were transferred; the annexures placed on record by the petitioner himself demonstrate that large number of teachers/Masters/I/C-Headmasters were so transferred. It is not a case where the petitioner has been singled out muchless for any extraneous consideration or that there has been any pick and choose resorted to by respondent no.2. It otherwise sounds strange and illogical that a Master is designated as Incharge Headmaster, but does not actually hold such a charge. The relevant Recruitment Rules do not envisage any such designation. Such a designation is a misnomer. Incharge designations connote a situation where a person is actually put in the charge of a higher post to factually discharge its functions. It speaks of exigency of a service demanding immediate and effective arrangements, which cannot be used as a garb for conferment of fortuitous benefit. Be that as it may, coming back to the news item as carried by the Kashmir Monitor, the portions within quotes therein, even if attributable to respondent no.2, though he has specifically denied the same and produced the contradicting material on record, speak of cleaning the system and bringing reforms in the Education Department. Saying that the union leaders will also have to go to the schools to teach students would not in any way come within the definition of mala fides. They are really being paid their salaries from public money only for that purpose. In fact, in the very same news item, it is reported that the petitioner himself had said that he, being a government employee, is ready to serve anywhere he is posted, be it a far flung area. This is not any concession on his part, transfers and postings are exigencies of service. If a government servant feels aggrieved of his transfer on legally recognised grounds, the law has provided a remedy; he has a right to approach the Court of law. It is true that right to form associations is constitutionally guaranteed, but this right carries with it certain limitations as well. Right to form an association or union does not reserve or create a right in any union office bearer to seek posting of his choice or to refuse to obey a transfer and posting ordered in the interests of administration. The right to form an association or a union does not mean right to achieve every object, nor does it confer a privilege or grant a license on any leader of an association or union to obliterate the hedges of discipline and abandon or shirk his official duty for which he is being paid his salary.
21. Looking
at it cumulatively, wholesomely and from broader perspective, it cannot be said
that transfer of the petitioner is not based on the honest intention or good
faith or that the power has been exercised for extraneous, irrelevant and/or for
any non-germane consideration.
22. It
may be observed here that during the course of hearing, the learned counsel for
the petitioner sought to buttress his submissions by the judgments of the
Supreme Court in Asom Rastrabhasa Prachar Samiti v. State of Assam, AIR 1989 SC
2126; Suresh Chandra Sharma v. Chairman, UPSEB, 2005 AIR SCW 1133;
and Gambhirsinh
R. Dekare v Falgunbhai Chimanbhai Patel, (2013) 3 SCC 697. I have
minutely gone through these judgments. There is nothing in these judgments
relevant to the point at issue in the present writ petitions. On the contrary,
law is settled that transfer of an employee is not only an incident inherent in
the terms of appointment but also implicit as an essential condition of
service. Reference in this connection may be made to the decision of the
Supreme Court in State of U. P. v Gobardhan Lal, AIR 2004 SC 2165, cited and
relied at the Bar by Mr. Mahfooz Nazki, learned counsel appearing for
respondent no.4. The relevant paragraphs of the judgment are quoted hereunder:
“7. It is too late in the date for any
Government servant to contend that once appointed or posted in a particular
place or position, he should continue in such place or position as long as he desires.
Transfer of an employee is not only an incident inherent in the terms of
appointment but also implicit as an essential condition of service in the
absence of any specific indication to the contrary in the law governing or
conditions of service. Unless the order of transfer is shown to be an outcome
of a mala fide exercise of power or violative of any statutory provision (an
Act or Rule) or passed by an authority not competent to do so, an order of
transfer cannot lightly be interfered with as a matter of course or routine for
any or every type of grievance sought to be made. Even administrative
guidelines for regulating transfer or containing transfer policies at best may
afford an opportunity to the officer or servant concerned to approach their higher
authorities for redress but cannot have the consequence of depriving or denying
the competent authority to transfer a particular officer/servant to any place
in public interest and as is found necessitated by exigencies of service as
long as the official status is not affected adversely and there is no
infraction of any career prospects such as seniority, scale of pay and secured
emoluments. This Court has often reiterated that the order of transfer made
even in transgression of administrative guidelines cannot also be interfered
with, as they do not confer any legally enforceable rights, unless, as noticed
supra, shown to be vitiated by mala fides or is made in violation of any
statutory provision.
8. A challenge to an order of transfer
should normally be eschewed and should not be countenanced by the Courts or
Tribunals as though they are Appellate Authorities over such orders, which
could assess the niceties of the administrative needs and requirements of the
situation concerned. This is for the reason that Courts or Tribunals cannot
substitute their own decisions in the matter of transfer for that of competent
authorities of the State and even allegations of mala fides when made must be
such as to inspire confidence in the Court or are based on concrete materials
and ought not to be entertained on the mere making of it or on consideration
borne out of conjectures or surmises and except for strong and convincing
reasons, no interference could ordinarily be made with an order of transfer.
9. The very questions involved, as found
noticed by the High Court in these cases, being disputed questions of facts,
there was hardly any scope for the High Court to generalise the situations
based on its own appreciation and understanding of the prevailing circumstances
as disclosed from some write ups in journals or newspaper reports. Conditions
of service or rights, which are personal to the parties concerned, are to be
governed by rules as also the inbuilt powers of supervision and control in the
hierarchy of the administration of State or any Authority as well as the basic
concepts and well-recognised powers and jurisdiction inherent in the various
authorities in the hierarchy. All that cannot be obliterated by sweeping
observations and directions unmindful of the anarchy which it may create in
ensuring an effective supervision and control and running of administration
merely on certain assumed notions of orderliness expected from the authorities
effecting transfers...”
The aforesaid judgment squarely
covers the points raised in the instant writ petitions, including the one that
certain guidelines framed pursuant to Government order no. 622-Edu of 2015
dated 22.1`2.2015 were violated. Above being the position of law enunciated by
the Apex Court, the ground of mala fides,
as discussed above, is not made out. It is worthy of notice here that the
petitioner alleges that respondent no.2 was annoyed because of the
representation against certain transfers made by him to the Government which
prompted respondent no.2 to issue the press report in question. The news item,
relied upon by none other than the petitioner to support the allegation of mala fides, instead speaks of the gherao
by the Kashmir Teachers Form of the Directorate of School Education which,
according to the newspaper report, was the occasion for the Director to make
the statement in question. The very genesis of the statement is thus also
contradicted.
23. Contesting
the claims and allegations of the petitioner, Mr. M. I. Dar, learned counsel
appearing for respondent no.1, cited and relied upon some decisions of the
Supreme Court. I will briefly refer to few of these decisions hereunder.
24. In
Quamarul
Islam v. S. K. Kanta, AIR 1994 SC 1733, at p 39, the Supreme Court held, “newspaper reports by themselves are
not evidence of the contents thereof. Those reports are only hearsay evidence.
These have to be proved and the manner of proving a newspaper report is well
settled. Since, in this case, neither the reporter who heard the speech and
sent the report was examined nor even his reports produced, the production of
the newspaper by the Editor and publisher, PW4 by itself cannot amount to
proving the contents of the newspaper reports. Newspaper is at the best
secondary evidence of its contents and is not admissible in evidence without
proper proof of the contents under the Indian Evidence Act”.
25. In
E.
P. Royappa v State of Tamil Nadu, (1974) 4 SCC 3, at p 92, it was held, “secondly, we must
not also overlook that the burden of establishing mala fides is very heavy on
the person who alleges it. The allegations of mala fides are often more easily
made than proved, and the very seriousness of such allegations demands proof of
a high order of credibility”.
26. In
Kedar
Nath v State of Punjab, AIR 1979 SC 220, it was observed that although
the appellant therein had based his case almost entirely on mala fides, he did not succeed in
proving the allegation. What he had to prove was not malice in its legal sense,
as that was not his case; he had to prove malus
animus, indicating that the respondent State was actuated either by spite
or ill will against him, but no such particulars were furnished by him. The
appellant could also not establish lack of bona fides.
27. In
S.
C. Saxena v Union of India, (2006) 9 SCC 583, the Supreme Court
observed that a government servant cannot disobey a transfer order by not
reporting at the place of posting and then go to a court to ventilate his
grievances. It is his duty to first report for work where he is transferred and
make a representation as to what may be his personal problems. This tendency of
not reporting at the place of posting and indulging in litigation needs to be
curbed.
28. In
National
Hydroelectric Power Corpn. Ltd. v Shri Bhagwan, (2001) 8 SCC 574, the
Supreme Court laid down that unless an order of transfer is shown to be an
outcome of mala fide exercise of
power or stated to be in violation of statutory provisions prohibiting any such
transfer, the courts or the tribunals cannot interfere with such orders as a
matter of routine, as though they are the appellate authorities substituting
their own decision for that of the management, as against such orders passed in
the interest of administrative exigencies of the service concerned.
29. In
Chief
G. M., N. E. Telecom Circle v. Rajendra Ch. Bhattacharjee, AIR 1995 SC
813, it was laid down that a government employee or any servant of a Public
Undertaking has no legal right to insist for being posted at any particular
place. The transfer of a public servant made on administrative grounds or in
public interest should not be interfered with unless there are strong and
compelling grounds rendering the transfer order improper and unjustifiable
30. In
Rajendra
Roy v. Union of India, (1993) 1 SCC 148, the Apex Court observed that
it may not be always possible to establish malice in fact in a straight-cut
manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and
antecedent facts and circumstances. But for such inference there must be firm
foundation of facts pleaded and established. Such inference cannot be drawn on
the basis of insinuation and vague suggestions.
31. Applying
the law so enunciated by the Supreme Court from time to time to the facts attendant
to the instant writ petitions, neither any mala
fides against the respondents, more so against respondent no.2, are made
out, nor is infraction of any statutory rule governing the transfers in
Education Department brought to the notice of the Court. These writ petitions,
consequently, deserve to be dismissed, being without any merit and unnecessary.
32. Further,
it may also be mentioned here that Government order no.26-Edu of 2016 dated
02.02.2016, while ordering repatriation of the officers/officials working in
the Project Directorate of SSA, in express terms stipulated that these
officials are deemed to have been relieved from SSA and shall report to the
authorities as indicated in Annexure ‘A’ thereto, who shall issue their orders
of posting within three days. Thus the petitioner stood relieved from SSA with
the issuance of the aforesaid Government order on 02.02.2016 itself. Further,
respondent no.2, to whom the petitioner was enjoined to report, in turn issued
order dated 03.02.2016 ordering the posting the petitioner. Strictly speaking,
thus the Government order dated 02.02.2016 stood implemented and its follow up
action also stood completed as on the date this Court passed order dated
04.02.2016. Once the action that a government order contemplates is completed,
the operation of the order comes to an end and it is reduced to nothing more
than a record of reference. Had the Government order not contained the words
“are deemed to have been relieved”, the position may have been different.
33. For
all what has been discussed, observed and held hereinabove, these writ
petitions are dismissed together with the connected miscellaneous petitions.
34. It
is reiterated here that though the action that the government order dated
02.02.2016 contemplated was completed the moment it was issued, yet for
maintenance of sanctity of the Court order dated 04.02.2016, it is ordered that
interim directions, if any, subsisting shall stand vacated.
35. No
order as to costs.
(Ali Mohammad Magrey)
Judge
Srinagar,
04.03.2016
Syed
Ayaz Hussain, Secretary
