KRISHAN KUMAR Vs. STATE AND ORS.

JUDGEMENT

(1.) The petitioner is a Senior Assistant in Power Development Department. By order dated 9.7.2002 he was posted from M&RE Div, Kathua to P&D Circle Jammu as Head Assistant on temporary basis reversible at any point of time without notice, alongwith 23 other Senior Assistants. He represented to the Chief Engineer against his adjustment on health grounds. The Chief Engineer EM&RE by his order dated 30.7.2002 ordered that the petitioner will continue to stay at his original place of posting on health grounds. The petitioner, therefore, continued to serve at Electric M&RE Division Kathua. By order dated 28.2.2004 the Development Commissioner Power in the interest of administration transferred the petitioner as Head Assistant alongwith post to M&RE Division Kathua, the place where he was continuing from Electric Division Poonch for a period of six months. Before expiry of the period of six months the Development Commissioner Power issued another order being order No.DC/PD/Adm/11/181 of 2005 dated 4.4.2005 and thereby adjusted the petitioner as Incharge Head Assistant awaiting adjustment in Electric M&RE Wing Jammu in Electric Division Kathua in place of Romal Singh Incharge Head Assistant. The petitioner thus was allowed to continue at the same place for more than about three years. The Government however by its order No. 123-PDD of 2005 dated 12.4.2005 has rescinded the order of the Development Commissioner Power. Since the order has been rescinded therefore the petitioner has to go to his place of posting to which he has been posted by order dated 9.7.2002. Being aggrieved of the order the petitioner has filed this petition seeking quashing the aforesaid Government order dated 12.4.2005,

(2.) Mr. Sethi has made two-fold submissions; firstly he submits that the petitioner is at the verge of retirement and has to reach the age of superannuation on 17.9.2006 and therefore, has a service period of one and half year. He submits that it is settled principle of law that a person who is at the verge of retirement should be allowed to continue on his place of posting and should not be transferred within a period of two years or so, so as to enable him to plan peacefully his post-retirement life and it is only in exceptional cases if his transfer is felt necessary in the public interest, it can be ordered. In support of his contentions he relies upon a Division Bench authority of Rajasthan High Court titled Dr (Mrs) Pushpa Mekta v. Rajasthan Appellate Tribunal, 2001 1 SCT 476. In the aforesaid case the Rajasthan High Court, after noticing the law laid down by the Supreme Court in its various judgments, including AIR 1993 SC 2444 held that it is well settled that ordinarily the Tribunals and the Courts should not interfere with the order of transfer unless it is challenged on the ground of malafide or transfer is effected for extraneous considerations. In the circumstances of that case the Court observed as follows:-

(3.) The observations made in the aforesaid authority has no application in the present case for the reason that in the case before the Rajasthan High Court there was a government policy but in the present case the petitioner has not shown any such policy being followed by the Government of J&K. Even if it is assumed that the Government has issued certain administrative guidelines for regulating transfers or contain transfer policy even then it does not afford a ground to an employee for challenging his transfer made in public interest, the transfer of an employee is not only an incident of service but is also essential condition of service. It is the prerogative of the employer to decide as to at what place and for what time the services of an employee should be utilized. In State of U.P and others v. Govardhan lal, 2004 AIR(SCW) 2082 it was held by the Supreme Court:-