STATE OF J&K Vs. BINDO RAM
HIGH COURT OF JAMMU AND KASHMIR
STATE OF JANDK
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(1.) THIS order shall dispose of Service Writ Petition (SWP No: 882/99) also out of which this appeal has arisen.
As a matter of fact this appeal was taken upon on 13 -09 -1999. Parties were agreeable that the writ petition itself be heard so that the controversy is settled.
(2.) THE Addl. Director General of Prisons/Fire Services in the interest of administration transferred and posted the appellant in
District Jail, Kathua alongwith the post. This order was passed on
12 -03 -1999. The operation of this order was stayed by this court on 10 -05 -1999. This was subject to filing of the objections. The objections have been preferred. The interim order continues to operate. The State
has filed an appeal. As indicated above the parties were agreeable to the
hearing of the writ petition itself. In these circumstances, the writ
petition has also been taken up for disposal.
So far as the legal position is concerned the view expressed by the Supreme Court of India in the case R. Veradh Rao Vs State of Karnataka and others (1986) 4 SCC 133) is that providing immunity against transfers would amount to gagging the right of the administration to administer and right of the employer to get work at the time and place of his choice and according to the administrative exigencies of the employer which he wants to meet. Similar opinion has been expressed in Bank of India Vs. Jagjit Singh Mehta (1992 (1) SCC 161). In the above case some guidelines were pressed into service to scuttle the right of employer to transfer an employee. In the said case it has been held as under;
''No -doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect alongwith the exigencies of administration and enable the two spouses to live together at one station if it is possible without detriment to the administrative needs and the claim of other employees.
(3.) THIS view was again followed in Union of India Vs. S.L. Abbas (1993) 4 SCC 357 and it was observed that courts are not to interfere
unless and until the order of transfer is vitiated by malafide
consideration. See also Rajinder Rao Vs. Union of India JT (1992) 6 SCC
A transfer which is an incidence of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary
or vitiated by malafide or infraction or any professed norm or principle
governing the transfer. Shri Abani Kanta Ray Vs. State of Orissa (1995) 7
JT 167: 1996 (1) SCT 22. In this regard reference may also be made to
another decision reported as N.K. Singh Vs. Union of India 1994 (6) SCC
98 wherein similar observations were made.
The question of hardship is something to which administrative authorities are to address themselves. It is for them to mitigate hardships in interest of good and efficient administration. The Courts are, however, not expected to interdict the working of administrative system by transfer of officers to proper places.
In view of the proposition of law noticed above the writ petitioner cannot claim immunity from transfer. The learned counsel for the writ petitioner contended that the order has been passed malafide. It be seen that the allegations of malafide cannot be looked into unless and until the person against whom the allegations have been made is made a party by name. This is not the position in the present case. Therefore, the plea that the order has been passed by malafide cannot be looked into
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