JIYA RAM Vs. STATE OF H.P.

JUDGEMENT

(1.) This petition is filed against an order passed by the Himachal Pradesh Administrative Tribunal dismissing Original Application No. 1448 of 2001 filed by the petitioner by which an action of transfer was challenged by the petitioner. While dismissing the petition, the Tribunal observed that the transfer policy of the Government is in the nature of Executive instructions which would not confer enforceable right on the applicant.

(2.) In our opinion, by making the above observations, the Tribunal has not committed any error of law and /or has exceeded jurisdiction. No doubt, our attention was invited by the learned Counsel for the petitioner to some of the decisions of the Honble Supreme Court including a recent decision in MM. Dolichan and others v. State of Kerala and others, (2001) 1 SCC 151, wherein it has been held by the Court that the Government has power to issue administrative instructions and in absence of statutory rules governing the field, such instructions will continue to operate and are enforceable. On the basis of those observations, the counsel contended that since there are no statutory rules framed in exercise of powers under the Proviso to Article 309 of the Constitution, administrative instructions will have binding effect.

(3.) We are afraid, we can uphold the above contention. In our opinion, the nature of administrative instructions will have to be borne in mind. So far as the transfer is concerned, it has been consistently held by the Apex Court as well as by this Court that transfer is an incident of service and administrative instructions/guidelines pertaining to transfer issued by the Government do not confer enforceable right and the person transferred cannot invoke extra -ordinary jurisdiction of this Court under Article 226 of the Constitution. Who is to be posted where is ordinarily for the employer to decide and this Court will not interfere (vide : Rajendra Roy v. Union of India and another, AIR 1993 SC 1236; Union of India and others v. S.L Abbas, AIR 1993 SC 2444; State of Punjab and others v. Joginder Singh Dhatt, AIR 1993 SC 2486 and Bank of India v. Jagjit Singh Mehta, (1992) 1 SCC 306).