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Judgment
01/ By medium of this O.A, the applicant has challenged the order bearing No. 1089-JK (HME) of 2023 dated 22-12-2023 (Annexure-I), by virtue of which the applicant – Medical Officer, the then Incharge Medical Superintendent, Shopian, who was attached with the office of the Deputy Chief Medical Officer, Shopian, is rescinded ab-initio. As a consequence, the applicant is posted as BMO, Batote, with immediate effect. The order impugned is, primarily, assailed on the ground that the same is punitive in nature, as otherwise, the conduct of the applicant has been found to be upto the mark and has also been appreciated by the Medical Superintendent, District Hospital, Shopian. Learned counsel for the applicant has also challenged the order on the ground that the applicant is nearing his superannuation. It is submitted that the order impugned speaks volumes about the colorable exercise of power on the part of respondent No.1. He further submits that the order impugned is mala fide as it has neither been issued in the interest of public nor in the interest of administration, as such, the same is bad in law.
02/ The courts have a limited power while exercising jurisdiction in the matters of transfer. Courts can exercise jurisdiction in a transfer matter only when same is issued by an incompetent authority or is alleged to be mala fide. The allegations as leveled in this O.A that the order impugned is the outcome of colorable exercise of power is vague and not specific as an allegation of mala fide against an authority has to be spelt out and such authority is to be made party in person so that he/she is given a chance to rebut the allegations of mala fide and use of colorable exercise of power.
03/ The scope of judicial review in transfer matters is no more res integra as has been laid down by the apex court in case titled State of U.P and another versus Siya Ram and another, reported in 2004 vol. 7 SCC, 405, wherein Their Lordships have held that no government servant or an employee of a Public Undertaking has any legal right to be posted for ever at any particular place of his choice. Transfer of an employee, appointed to the class or category of transferable post from one place to another, is not only an incident but a condition of service, necessary to any public interest and efficiency in the public interest. In this view, I am fortified by the view of the Hon’ble Supreme Court taken in the case titled National Hydro Power Corp. Ltd., versus Shri Baghwan, reported in 2001 vol. 8, SCC, 574. The apex court, in yet another case, reported in Rajinder Singh versus State of U.P, 2009 Vol. 15,SCC 178, that the Courts should be reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provision or same suffers from mala fides.
04/ As regards the argument of learned counsel for the applicant that the order impugned is mala fide, same is rejected as It is not the case of the applicant that the order impugned has been passed by an incompetent authority. It is always the prerogative of the employer to see as to what place the service of an employee can be utilized in the larger public interest as the transfer of a government servant in a transferable service is necessary incident in his/her service career. In this regard I am fortified again by a celebrated judgement of the apex court, reported as N.K.Singh versus Union of India, 1994 vol. 6, SCC 1304. True it may be that the government servant may face hardships on being transferred from one place to another, which otherwise is an exigency in the tenure of his service and has accepted the rules and norms of his service. However, certain exceptions have been carved. Learned counsel for the applicant submits that the order impugned does not specify as to whether the competent authority has taken the public interest or the administrative interest into consideration, particularly when the applicant has already crossed 58 years of his age and is nearing superannuation. Learned counsel further submitted that it is always advisable to keep a government servant, who is nearing his superannuation, at a place nearer to his home as it will be convenient for him to prepare his pension and other allied documents. He submits that it was for the competent authority to have assessed this situation as, according to him, the applicant has been posted almost 250 Kms. away from his home town, that too, at the fag end of his service career. Learned counsel further submits that in the given facts and circumstances of the case, the competent authority is not powerless to withdraw, alter or modify the order impugned. To this effect, I am fortified by the judgement of the apex court reported as State of U.P versus Ashok Kumar Saxena, 1998 Vol. 3 SCC 303.
05/ After arguing at length, learned counsel for the applicant submitted that the applicant has moved various representations before the competent authority for consideration of the same in view of the fact that he is about to reach the age of superannuation.
06/ Per contra, learned counsel for the respondents submitted that the order impugned has been rightly passed by the competent authority and the same has been passed by way of incident of service.
07/ Admittedly, the age reflected by the applicant in this O.A is around 58 years and it is apparent that he is about to superannuate within a period of two years and, according to him, the competent authority should have considered this angle of his case. To substantiate the argument, the applicant has referred to a judgements reported as Sudhir Chander Ray versus Union of India, 1998 Vol.3 SLR 347 SC as also Smt. Devi Versus Union of India, 1992 Suppl. 2 SCC 433, whereunder, as submitted by learned counsel for the applicant, suitable directions have been given by the apex court while considering the hardships of an employee.
08/ Heard learned counsel for the parties.
09/ In the backdrop of what has been discussed above, this O.A is disposed of with the direction to the respondents to consider representation of the applicant, reportedly filed by him before them, strictly in accordance with the rules and while doing so, the competent authority shall take into consideration the age factor of the applicant as well. It is further provided that the impugned order of transfer shall not be given effect to for the period of seven days to be reckoned from the date certified copy of this order is served on them and it is expected that the respondents will dispose of the representation of the applicant within the above mentioned period. It is further clarified that the order of stay shall not be effective after the period stipulated above.
10/ O.A is disposed of accordingly along with M.As.