HC dismisses Wani’s plea on transfer

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Srinagar: The High Court on Friday dismissed Employees Joint Action Committee (EJAC) president Abdul Qayoom Wani’s petition, challenging his transfer ordered by the Director School Education Kashmir.

Wani had challenged his detachment as Consultant SSA and his subsequent posting by Director School Education Kashmir.

Dismissing the petition, a single bench of the court comprising Justice Ali Mohammad Magrey upheld government order No: 26-Edu of 2016 dated: 02-02-2016, whereby Wani, along with other teachers were repatriated to Directorate of School Education Kashmir, as valid. 

The court also upheld the validity of order (no: 123/DSEK of 2016 dated: 03-02-2016), Wani was posted in a school.

The Court observed that Wani was not singled out for detachment and transfer as a large number of teachers, masters and I/C headmasters were detached and transferred by virtue of government order No: 26-Edu of 2016. The court observed that no mala fides were made out against any respondents including Director School Education Kashmir while issuing these orders.

“It is not a case where the petitioner has been singled out muchless for any extraneous consideration or that there has been any pick and choose resorted to by respondent no.2. 

It otherwise sounds strange and illogical that a Master is designated as Incharge Headmaster, but does not actually hold such a charge. The relevant Recruitment Rules do not envisage any such designation. Such a designation is a misnomer. Incharge designations connote a situation where a person is actually put in the charge of a higher post to factually discharge its functions. It speaks of exigency of a service demanding immediate and effective arrangements, which cannot be used as a garb for conferment of fortuitous benefit,” the order further read, “saying that the union leaders will also have to go to the schools to teach students would not in any way come within the definition of mala fides.

They are really being paid their salaries from public money only for that purpose. In fact, in the very same news item, it is reported that the petitioner himself had said that he, being a government employee, is ready to serve anywhere he is posted, be it a far flung area. This is not any concession on his part, transfers and postings are exigencies of service. If a government servant feels aggrieved of his transfer on legally recognised grounds, the law has provided a remedy; he has a right to approach the Court of law.

It is true that right to form associations is constitutionally guaranteed, but this right carries with it certain limitations as well. Right to form an association or union does not reserve or create a right in any union office bearer to seek posting of his choice or to refuse to obey a transfer and posting ordered in the interests of administration.

The right to form an association or a union does not mean right to achieve every object, nor does it confer a privilege or grant a license on any leader of an association or union to obliterate the hedges of discipline and abandon or shirk his official duty for which he is being paid his salary.”

“It is too late in the date for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires,” the court observed, “transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary in the law governing or conditions of service.

Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made.

Even administrative guidelines for regulating transfer or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments.

This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.”

 

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