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Judgment
ORDER
Hon’ble Mr. D.S. Mahra, Member (J)
Mr. Waseem Ramzan Lone, Learned Counsel for the Applicant and Mr. Hakim Aman Ali, Learned Counsel for the Respondents are present.
The brief facts of the matter, are that the applicant was posted at Enforcement Wing (Central) Kashmir and deployed at Airport, Srinagar during 2019. On the basis of an anonymous Complaint, he Was transferred and attached to office of Additional Commissioner, State Taxes (Adm & Enf) Kashmir vide order No. 158/Adm of 2021 Dated 07.06.2021. On inquiry on the said anonymous Complaint, the complainant could not be traced out, yet the IO recommended the official be warned to mend their attitude/behavior and to strictly adhere to the rules and regulations as required under Service Rules while performing their legitimate Duties, IO further recommended that official in question may be Posted in wings based on suitability meant and previous years of Postings with close vigil on the working of the officials hence forth. The applicant filed a complaint titled Ghulam Ahmad Mir Vs. Manzoor Ahmad Bhat and others U/s 34, 500 and 506 of IPS which is pending Adjudication before the appropriate forum. In the meantime, the Applicant was transferred and attached to State Taxes Circle, Ganderbal, Kashmir within 10 Months which is against Government Policy vides order No. 861-GAD of 2010 dated 28th July 2010. Being Aggrieved, the applicant had preferred this to file a case before this to declare the order No. 17 Adm of 2022 dated 11.04.2022(Annexure-A/1) as null and void and with direction to Restore the applicant to his previous place of posting. After Hearing both the parties, this Tribunal has passed a final order on 02.09.2022 as under:-
"Therefore, the order of Transfer dated 11-04-2022 is hereby set aside and declared as null and void with a further direction upon the respondents to deploy the applicant at his original place of posting prior to the anonymous compliant filed against him and as recommended by the enquiry officer in his report dated 06.08.2021, with immediate effect. "
Ld. Counsel for the applicant submits that after the order passed by this Tribunal the department has sent the applicant at his original place of posting but within two months and few days again the department has transferred the applicant on 21.11.2022 by order no. 295-ADM of 2022. Ld. Counsel for the applicant submitted that the impugned order has been passed by the respondents with malice and bad faith and with ulterior motive and also in violation of law and in violation of correct factual position. The applicant has been transferred by the Department three times in a year. He submitted that earlier also a false and frivolous complaint was filed against the applicant and later on the said complaint became infructuous and yielded no results. He submitted that the applicant is a dedicated and honest employee of respondents department and has imposed huge amount of penalties upon the violators for that purposes has documentary proof to substantiate his claim.He further submitted that the applicant only in two months from 15.09.2022 to 18.11.2022 has generated huge amounts of revenue of Rs.22,64,972/- and he should have been appreciated by the respondents for doing this commendable work but instead of appreciation, the respondents have again transferred him only after 80 days of the order of this Hon. Tribunal.He submitted that the persons in the department are being personal to that applicant only and misguiding the higher authorities of the department and the same persons has supplied misinformation to worthy commissioner of the State Taxes Department who is man of respect. The same persons of the department are misguiding the commissioner and forcing her to act against the applicant on the basis of anonymous complaint.He submitted that the later was written by the Drug Controller Budgam to Divisional Commissioner Kashmir that the employees of the State Taxes Department posted at Srinagar International Airport are not doing their duties and the Divisional Commissioner Kashmir wrote to the commissioner State Taxes Department, however the name of the applicant was not mentioned in the complaint and the commissioner intern wrote to the Deputy Commissioner Enforcement Wing.
The Ld. Counsel for the respondents opposes and denied the contention of the applicant and submitted that transfer is an exigency of service and an employee is legally entitled to challenge his transfer order if the same is issued in the interest of the administration. In the case the Commissioner State Taxes J&K Government has not only transferred the applicant but also as many as 8 more officials and none of the official felt aggrieved except the applicant. He submitted that the applicant has already joined at the new place of posting. He submitted that his relying on the judgements. That the law regarding interference by Courts in transfer/posting of an employee is well settled by the Hon'ble Supreme Court in catena of judgements including:-
U.O.I and Ors. vs. S.L. Abbas (1993) 4 SCC 357.
Mrs. Shilpi Bose and Ors vs. State of Bihar and Ors., AIR 1991 SC 532.
State of Uttar Pradesh & Ors. vs. Gobardhan Lal, (2004) 11 SCC 402.
State of Madhya Pradesh & Anr. vs S.S. Kourav & Ors., AIR 1995 SC 1056,
M. Sankaranarayanan, IAS vs. State of Karnataka & Ors., AIR 1993 SC 763,
N.K. Singh v. Union of India and Ors., AIR 1995 SC 423 and
Airports Authority of India v. Rajeev Ratan Pandey 2009 (8) SCC 337.
The crux of the conclusion drawn in these judgements is summarized as under:-
Transfer is a condition of service.
It does not adversely affect the status or emoluments or seniority of the employee.
The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.
It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required.
Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure.
There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
The person against whom allegations of malafide is made should be impleaded as a party by name.
Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel.
That the three employee officials including the applicants who were deployed at Srinagar Airport have been transferred in furtherance to the recommendation of the Divisional Commissioner on the ground that on 14.08.2022 in a surprised rate carried out at Airport Cargo Logistic Space of Airport Authority by the Drug Controller Officers of Srinagar and Budgam where 7500 capsules of Spasmo-Proxyvon were seized and supply of such a huge quantity of intoxicating drugs by anti-social elements through Air Traffic was viewed seriously by the Divisional Commissioner Kashmir. The Divisional Commissioner accordingly recommended transfer of the officials of the State Taxes Department who were on duty on aforesaid date.
Ld. Counsel for the applicant filed rejoinder and submitted before Court that objections filed by the respondents are totally misconceived and are based on surmises and conjectures and respondents are relied on distorted facts which are totally false and baseless. He submitted that the transfer policy of the Government of J&K vide order No.861-GAD of 2010 dated 27.07.2010 clearly envisage that an employee shall not be transferred in mid-session of the year and the transfer shall only be affected in the first of the financial year and minimum tenure of Government employee on post shall be two years has also been prescribed. As per Policy of Government in case of transfer of any employee beyond the transfer policy, the approval of the Lieutenant Governor is necessary in case of the transfer of the applicant no any such approval was taken. He further submits that the respondents have misguide the Hon. Tribunal about the fact that the Divisional Commissioner Kashmir had written letter to the applicant's departments for his transfer where the truth is that the applicant was never absent from his duties and on that day the applicant was present on his duty and there was no dereliction or negligence on his part and the applicant did his part of the duties in diligent manner and he has always shown high performance in his duties. He further submits that the respondents are totally biased against the applicant and despite showing such higher performance in the department the respondents have not reflected so in the newsletter issued by them in which the applicant has generated the revenue of 9 lakhs in one day where the other candidate who had generated the revenue of 4 lakhs in one day has been appreciated and has been reflected in the newsletter of the department. He further submits that some of employee in the department does not want the applicant to continue at Srinagar International Airport. In the same regard the applicant has registered his request regarding not highlighting the performance at International Airport Srinagar by enforcement milestone performance under heading some progress milestone. Ld. Counsel for the applicant submitted that after the earlier order passed by this Tribunal in favour of the applicant where this Hon. Tribunal has directed the respondents to send the applicant at International Airport Srinagar. The same employees of the departments have started against to transfer the applicant from the Airport. The transfer of the applicant within 80 days after directions of this Hon. Tribunal is not only the violation of the transfer policy but also indirectly the departmentally has tried to do the contempt of this Hon. Tribunal order indirectly.
Heard the Ld. Counsel for both the parties and have considered the rival submission and perused the records.
On the basis of an anonymous Complaint, Applicant was transferred and attached to office of Additional Commissioner, State Taxes (Adm & Enf) Kashmir vide order No. 158/Adm of 2021 dated 07.06.2021. And again after 10 months he was transferred again in April 2022. Against the transfer order he has filed a case in this Tribunal and as per order dated 02.09.2022, this Tribunal has quashed the transfer order and directed the respondents to post the applicant at Airport. But again just after 80 days, on a anonymous complaint, the respondent has transferred the applicant from his post. Where the fact is that the applicant himself updated about the supply of drug to superiors. Also as per record we have seen that the applicant has generated the revenue of more than 22 lakh in very short period and revenue of 9 lakh in one day. Instead of giving appreciation the department has appreciated other employee who has generated of 4 lakh in one day. Transfer on applicant more than 3 times in year shows the conspiracy by any official / officer of department against applicant.
The Hon’ble High Court of Jammu and Kashmir and Ladakh at Jammu in the case of Baburam v/s State of J&K and others (SWP No. 130/18 dated 16th August 2018) passed by Hon’ble Mr. Justice Tashi Rabistan has observed as under:-
“In the aforesaid backdrop, challenge to order of Transfer on the ground of mala fide and influence of Minister fails and is rejected. However, challenge to order of transfer on the ground it being premature succeeds in light of SRO 307 of 2018 dated 11th July 2018. Consequently, respondents are directed to allow the petitioner to complete his tenure and posting as Additional Deputy Commissioner, Reasi. However, it is made clear that continuation of petitioner beyond the Tenure is a matter to be considered by the official Respondents at their own end. Having said so, Writ petition is partly allowed in the terms indicated above.”
The Hon’ble Apex Court in the case of Somesh Tiwari V. UOI[ (2009) 2 SCC 592]has held as under:-
“20.The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order for transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal....”
In view of the above mentioned submissions and while perusal of the records we are in view that :-
This transfer order has violated itself the transfer policy of the Government dated 27.07.2010.
When the applicant himself called authorities and updated about the Drugs, the department should not take action against the applicant without proper investigation.
Earlier also the respondents have transferred the applicant on anonymous complaint which could not be proved by the department and again the same thing has happened against the applicant.
The respondents have in-fact committed the Contempt of Court by transferring him within two months from the date of deputing him to the Airport by complying the order of this Tribunal dated 2.9.2022.
The applicant is being targeted by some of the officers of the respondent department.
In view of this O.A./1226/2022 is allowed and the order of transfer dated 21.11.2022 is hereby set aside and declared as null and void only to the extent of Applicant with the further directions upon the respondents to deploy the applicant at the same place of posting at Srinagar international airport where he was posted before the issuance of this transfer order immediately within a week from today. We also hereby direct the Commissioner Sales and Taxes to look into the matter of the applicant. The applicant is being targeted and who is the concern officer/ officials in the department who is doing again and again the anonymous complaints against the applicant where the applicant has shown his higher performance by preventing huge state exchequer and generated the revenue of more than 22 lakhs in two months and in few days specially more than 9 lakhs in one day.
With this O.A./1226/2022 is allowed.
No order as to costs