(Virtual Mode) vs J&K Horticulture Produce ...
2021 Latest Caselaw 448 j&K/2

                                                                         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 31st 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 bei ng 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 claimed and no right having been vested, the government servant has no right to seek enforcement. Even for the sake of argument, the policy cannot have any binding force because the policy, if construed as binding, goes contrary toRule 27.

12.It is well settled in law that executive instructions/Government orders are subject to statutory rules and the legislature, who framed the Rule, cannot delegate its power to the authorized officer or executive and the executive can issue Government orders only within the bounds of the Rules. The legislature has not amended Rule 27 fixing any minimum or maximum tenure to a Government servant to serve in a particular station. In the decision reported in AIR 1961 SC 4, (Vasanlal Magan Bhai Sanjanwala v. State of Bombay), Hon'ble the Supreme Court has held that the legislature cannot delegate its essential functions which have been entrusted to it by the Constitution. In the decision reported in AIR 1962 SC 97 (Mohammed Hussain Gulam Mohammed v. State of Bombay) it was held that the authorized officer cannot issue order which is contrary to the statute. If the intention of the executive is to fix minimum or maximum tenure to a government servant to serve in a particular station, it can only recommend the legislature to amend the Rule. In the decision reported in AIR 1986 SC 1323 (Trivedi and sons, D.K v. State of Gujarat), the Hon'ble Supreme Court held that "the rule making authority cannot change the policy of the Act/Regulation". In this case, as on today, Rule 27 is not amended. Moreover no policy decision can be taken in terms of Article 77 or Article 162 of the Constitution of India which would run contrary to the constitutional or statutory schemes as held by Hon'ble the Supreme Court in (2007) 5 SCC 317 ( Post Master General, Kolkata v. Tutu Das Dutta) and (2007) 2 SCC 491 ( Punjab Water Supply & Sewerage Board v. Ranjodh Singh and ors).

18. In the decision of the Hon'ble Supreme Court reported in AIR 2014 SC 263 (supra) it is held that the State Governments are affecting transfers and postings at the whims and fancies of the executive head for political and other considerations and not in public interest. Hence minimum tenure of service is good for the administration and efficiency. Insofar as the State of J&K is concerned, as stated supra, a minimum tenure of two years and maximum tenure of three years is already fixed in Government order dated 28.07.2010 and the said order is a guideline and not having any statutory force. In the said order itself it is stated that premature transfers, wherever unavoidable in the interest of administration, may be ordered on certain contingencies. Hence strict implementation of minimum 2 years and maximum 3 years tenure is not intended in the Government order. In such circumstances, the said Government order will not confer any right of enforcement through Court of law in the light of Rule 27 stated supra".

In view of above, this petition is found to be meritless and, as such, shall stand dismissed alongwith connected CM(s). However, while dismissing the writ petition, it is provided that the representation, stated to have been made by the petitioner against the impugned order, be considered and decided in terms of the applicable rules.

(Ali Mohammad Magrey) Judge Srinagar 19.04.2021 Amjad Lone PS

AMJAD AHMAD LONE 2021.04.20 14:36 I attest to the accuracy and integrity of this document