MOHD SHAFI LONE Vs. STATE OF J&K

JUDGEMENT

(1.) THIS writ petition calls in question Government order No. Rev. (A) 195 of dated 29th of November 1996, issued by Commissioner Secretary to Government Revenue Department. This is an order of transfer which besides 34 others, transfers the writ petitioner, who was working as Tehsildar Tral and has been transferred as Tehsildar A.R. Tangmarg. The grievance of the petitioner is that he was posted as Tehsildar Tral only on 17 -7 -1996 and this order transfers him prematurely. Besides, this according to the petitioner, the impugned transfer has been made to accommodate respondent No.5, who was previously working as Head Quarter Assistant to D.C. Rajouri. According to the petitioner respondent No.5, also was posted as Head Quarter Assistant to Deputy Commissioner Rajouri on 17 -7 -1996. Respondent No.5 has worked at Tral previously also as Agrarian Reforms Tehsildar. Therefore, the object of the transfer was just to accommodate respondent No. 5 for extraneous considerations. Another ground taken for impugning the order was that the same has visited the petitioner with penal consequences. The stand taken by the official respondents in their objections is that infact no malafides has been pleaded. Therefore, that cannot be a ground for quashing the order impugned. The Government, instructions regarding fulfillment of two years tenure does not have a binding force and does not debar the Government from making transfer orders in the interest of administration prior to expiry of two years. And that the order impugned does not violate any of the rights of the petitioner.

(2.) I have heard L/c for the parties and gone through the file. The persistent stand of the Supreme Court as also of this court has been not to interfere in matters of transfer. This general rule has two exceptions: - i) When the order of transfer is vitiated on the ground of lack of jurisdiction. ii) When the other is passed on malafides.

(3.) THUS , I will have to confine myself within the compass of these two exceptions only. Before doing so, however, the position of law with regard to the Government circular in the form of instructions issued at different times is to be made clear. Rule -27 of classification, control and appeal rules leaves all the powers of transfer of Government Servants with the Government itself. It read as: - 27. Posting and transfers. - (1) A member of a service or class of a service may be required to serve in any part of the Jammu and Kashmir State in any post home on the cadre of such service or class. a) All transfers and postings shall be made by the authority prescribed by Government in this behalf.