Mukhtar Ahmad Khuroo vs Union Territory Of Jammu And Kashmir & Ors.

JUSTICE RITU TAGORE, MEMBER [JUDL.]

The present Original Application has been filed by the applicant calling in question the order No.16-DCS of 2022 dated 26.05.2022, issued by respondent No.3, whereby the applicant, who was serving as Patwari, was transferred and posted as Patwari Halqa Anchar, Tehsil Eidgah, Srinagar. The principal question which arises for consideration is whether the impugned order of transfer calls for interference in exercise of the limited power of judicial review available in matters relating to transfer.

At the outset, it is appropriate to notice the procedural history of the matter. When the Original Application came up for consideration on 02.06.2022, learned counsel for the applicant submitted that the impugned transfer was contrary to the applicable transfer policy on three counts, namely, that the minimum tenure of two years had not been followed, that the prescribed transfer calendar had been violated and that the applicant had been subjected to five transfers within a span of about one year. It was further submitted that, in terms of the applicable instructions, any deviation from the prescribed tenure required approval of the Lieutenant Governor, which, according to the applicant, had not been obtained. Learned counsel appearing for the respondents sought time to file a counter, submitting that the orders had been issued in the interest of administration. On consideration of the rival submissions at that stage, this Tribunal stayed the operation of the impugned order dated 26.05.2022, to the Central Administrative Tribunal^{extent of the applicant, till the next date of hearing. The} Original Application was admitted and four weeks’ time was granted to the respondents to file their counter, with two weeks’ time thereafter for rejoinder.

The record thereafter reflects that the interim order led to further proceedings in connection with the applicant’s joining and posting. The applicant thereafter submitted a representation dated 10.06.2022 before the Tehsildar, Eidgah, seeking charge of Patwari Halqa Zoonimar or any other posting except Patwari Halqa Anchar. In the said representation, the applicant referred to the stay order passed by this Tribunal and also placed reliance upon his personal circumstances, stating that his wife had recently died, that he had a small child and aged parents and that he was the only earning member of the family.

Thereafter, a show-cause notice bearing No. 282/NAZ/TEG/22 was issued by the Tehsildar, Eidgah, requiring the applicant to explain his alleged unauthorized absence from duty and as to why his case should not be Central Administrative Tribunal^{recommended for strict action under Article 128 of the} Civil Service Regulations, 1964. The notice referred to an earlier notice dated 31.05.2022, stated that the applicant had remained absent for more than fifty days and that such absence was hampering Government and public service in the concerned Halqa. The applicant thereafter questioned the said show-cause notice in connected proceedings, contending that it had been issued in violation of the interim order dated 02.06.2022.

The connected contempt proceedings are also relevant to the subsequent course of the matter. In C.P. No.131/2022, arising out of O.A. No.497/2022, the order sheet dated 26.08.2022 records the presence of the Deputy Commissioner, Srinagar, through Video Conferencing and the Tehsildar, Eidgah, in person. The contemnors stated that, after the stay order dated 02.06.2022, the applicant had reported to the Tehsildar and joined back his duty, though charge had not initially been given to him on account of the respondents’ allegation that he had Central Administrative Tribunal^{remained absent from office. The respondents also} referred to the show-cause notice issued to him. Importantly, the Tehsildar, through learned counsel, stated before the Tribunal that he had no objection to the applicant reaching his office and that he would be allowed to join his duties at Zoonimar. The applicant, who was also present before the Tribunal, stated that he would go to the Tehsildar’s office and join his services. The Tribunal accordingly directed that the applicant be permitted to join at Zoonimar, leaving it to the Head of Office to allocate work to him in accordance with the rules and convenience of the office.

The connected contempt proceedings thereafter culminated in the order dated 07.02.2023. On 07.02.2023, learned counsel for the respondents submitted that, pursuant to the directions of the Tribunal, the applicant had been deputed to the office at Juni Marg and had joined there. Recording that the requisite action had been taken by the respondents, the Tribunal closed C.P. Central Administrative Tribunal^{Nos.131/2022 and 87/2022 and discharged the notices.} The applicant’s counsel, however, pointed out that O.A. No.497/2022 was still pending and sought early hearing of the same.

Despite repeated opportunities, the respondents did not file their written reply and, accordingly, their right to file reply was closed vide order dated 20.07.2026. However, by the same order, they were expressly permitted to oppose the Original Application through oral arguments. The respondents have accordingly been heard through learned counsel at the stage of final arguments, and those submissions have been considered.

The applicant’s grievance essentially is that he was subjected to successive transfers within a short span of time, without completion of the minimum tenure contemplated under the applicable transfer policy. The applicant has relied upon the chronology of his successive postings to contend that he was subjected to five transfers within a short span of about one year. This grievance was Central Administrative Tribunal^{specifically noticed at the interim stage on 02.06.2022,} when the Tribunal recorded the applicant’s contention in that regard. The material presently available on record shows that, after his transfer on 24.12.2021 from the office of the Regional Director, Survey and Land Records, the applicant was posted as Patwari Halqa Barthana; thereafter, vide order dated 27.04.2022, he was posted as Patwari Halqa Zoonimar and, within about a month, the impugned order dated 26.05.2022 altered his posting to Patwari Halqa Anchar.

The material available on record, including the stand earlier placed by the respondents in the connected contempt proceedings, explains the circumstances in which the successive orders came to be issued. According to the respondents, after the applicant was posted as Patwari Halqa Barthana vide order dated 24.12.2021, a report was received from the Tehsildar, Central Srinagar, that the applicant was absent from duty. He was consequently placed under suspension on 03.02.2022 and Central Administrative Tribunal^{attached with the office of the Deputy Commissioner. The} Sub-Divisional Magistrate (West), Srinagar, was appointed as Inquiry Officer and submitted his report dated 29.03.2022. The finding recorded in the enquiry was that the applicant was guilty of unauthorized absence, which he had himself accepted; at the same time, the Inquiry Officer noticed the hardship and emotional stress arising from the illness and loss of the applicant’s wife and observed that these circumstances had left him emotionally disturbed and agonized, leading to dereliction of duty.

On the recommendations of the Inquiry Officer, the applicant was reinstated with a warning to remain careful in future. The period of unauthorized absence from 24.12.2021 to 03.02.2022 was treated as earned leave and the period of suspension/attachment thereafter was treated as duty. The applicant was thereafter posted as Patwari Halqa Zoonimar vide order dated 27.04.2022.

The respondents further state that, after the applicant Central Administrative Tribunal^{joined at Zoonimar, the Tehsildar, Eidgah, made a} recommendation dated 07.05.2022. According to the said recommendation, the applicant had an immature stay at Zoonimar and the Halqa was sensitive in view of the anti-encroachment work being undertaken there, particularly concerning Khushal Sar, described as a flagship project of the anti-encroachment drive. The respondents further stated that the applicant had participated in multiple encroachment drives and that his continuance at Zoonimar was considered detrimental from the administrative perspective. It was further alleged by the respondents that the applicant was in league with certain land brokers. In these circumstances, according to the respondents, the applicant’s posting was subsequently modified and he was posted as Patwari Halqa Anchar in the same Tehsil, Eidgah vide order dated 26.05.2022. The respondents also referred to what they described as the applicant’s chequered past conduct, previous enquiries and verification of his assets by the Anti-Corruption Bureau.

Central Administrative Tribunal^{12.These allegations made by the respondents need to be} viewed in their proper context. The material placed before me shows that the applicant had in fact been subjected to an inquiry in relation to his alleged unauthorized absence, and the enquiry resulted in a finding of unauthorized absence, albeit with an observation regarding the personal and emotional circumstances in which such absence had occurred. He was thereafter reinstated with a warning. I do not consider it necessary in the present proceedings to express any opinion on the correctness of those disciplinary findings, nor on the subsequent allegations concerning the applicant’s conduct or the verification of his assets. Those matters are not the issue for determination in the present Original Application.

The applicant’s learned counsel has, however, placed considerable emphasis upon the fact that the impugned order followed within a very short period after the applicant’s posting to Zoonimar and that the immediate background to the impugned order was the Central Administrative Tribunal^{recommendation of the Tehsildar, Eidgah, dated} 07.05.2022. The contention of learned counsel for the applicant is that the transfer was not a routine administrative exercise and that the alteration of the applicant’s posting was made to accommodate respondent No.5 and that the repeated transfers, viewed cumulatively, demonstrate harassment and an extraneous exercise of power. The applicant has also relied upon the applicable transfer instructions and the requirement of a minimum tenure and has contended that departure from the prescribed tenure could not have been made without following the procedure contemplated under the instructions.

Learned counsel for the respondents, despite the respondents’ right to file written reply having been closed by order dated 20.07.2026, was heard in terms of the said order, whereby the respondents had specifically been permitted to oppose the Original Application through oral arguments. Learned counsel submitted that the impugned Central Administrative Tribunal^{order had been issued in the interest of administration and} public service and that the applicant had no vested right to remain posted at a particular place. It was further submitted that the competent authority was entitled to regulate the applicant’s posting having regard to administrative requirements and exigencies of service. Learned counsel also placed reliance upon the judgment of the Full Bench of the Hon’ble High Court of Jammu and Kashmir in Syed Hilal Ahmad & Ors. v. State of J&K & Ors., SWP No.1476/2014, decided on 31.08.2015, reported as 2015 (3) JKJ [HC] 398; 2015 SLJ 1; 2015 KLJ 387, in support of the submission that the instructions prescribing minimum tenure for transfer are administrative in character and do not confer an absolute or indefeasible right upon an employee to continue at a particular place of posting. Learned counsel further referred to the circumstances surrounding the applicant’s posting, including the recommendation made by the Tehsildar, Eidgah, and the administrative Central Administrative Tribunal^{requirements stated to have necessitated the change in his} posting.

I have considered the rival submissions and examined the material available on record.

The law relating to judicial review of transfer orders is well settled. Transfer is an incident of service and may also be necessitated by exigencies of service. The question as to where an employee should be posted is ordinarily a matter for the competent administrative authority to determine having regard to the requirements of administration. The Hon’ble Supreme Court has repeatedly emphasized that the scope of judicial review in such matters is limited. In Shilpi Bose (Mrs.)& Ors. v. State of Bihar & Ors, 1991 Supp (2) SCC 659 the Hon’ble Supreme Court recognized the limited scope of interference with transfer orders. The same principle was reiterated in Union of India v. S.L. Abbas, (1993) 4 SCC 357, and State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402. An employee holding a transferable post has no Central Administrative Tribunal^{vested right to remain posted at a particular place, and the} administrative authority is ordinarily best placed to assess the requirements of service. Interference is warranted where the order is shown to have been passed by an incompetent authority, in violation of a statutory provision, or to be vitiated by mala fides or other legally impermissible considerations. Mere non-adherence to an administrative guideline, by itself, does not ordinarily furnish sufficient ground for judicial interference.

In the present case, the competence of respondent No.3 to issue the impugned order has not been specifically challenged. The impugned order has emanated from the Deputy Commissioner, Srinagar. Equally significant is the fact that no specific allegation of mala fides or personal bias has been leveled against respondent No.3, who passed the impugned order. The applicant’s allegation is essentially that the transfer was made to accommodate the private respondent and that the recommendation of the Tehsildar was actuated by an extraneous consideration.

Central Administrative Tribunal^{18.A mere allegation of accommodation, however, cannot by} itself establish mala fides. There must be some material from which the alleged improper purpose can reasonably be inferred. The fact that an employee is transferred before completion of the normal tenure does not, by itself, render the order illegal, particularly where the competent authority seeks to justify the transfer on administrative grounds or exigency of service. The Tribunal, while exercising judicial review, is not concerned with the wisdom or correctness of the administrative decision as such, but with the legality of the decision-making process and whether the power has been exercised for a permissible purpose. The record before me does show that the applicant was first posted at Zoonimar on 27.04.2022 and that the Tehsildar made his recommendation on 07.05.2022, followed by the impugned order dated 26.05.2022. The sequence certainly gives rise to a circumstance requiring examination. But the proximity of the events, without more, cannot establish that the Central Administrative Tribunal^{competent authority acted for the purpose of} accommodating the private respondent.

The impugned order also has an identifiable administrative background in the material placed on record. The respondents have referred to the nature of the Zoonimar Halqa, the anti-encroachment work being undertaken there and the recommendation made by the Tehsildar. The requirement of administration and the exigencies of service are matters which fall primarily within the domain of the competent authority. This Tribunal, while exercising limited judicial review, is not concerned with the wisdom or correctness of the administrative decision as to the particular place of posting, unless the decision is shown to suffer from a legally cognizable infirmity. Whether the assessment made by the competent authority was the most appropriate assessment is not a question which this Tribunal can ordinarily determine in judicial review.

The most substantial aspect of the applicant’s case, Central Administrative Tribunal^{nevertheless, concerns the frequency of his transfers. The} chronology shows that the applicant was indeed subjected to successive changes of posting within relatively short intervals. This was specifically noticed even at the interim stage on 02.06.2022, when the Tribunal recorded the applicant’s contention that he had suffered five transfers within a short span of one year and that the minimum tenure and transfer calendar had been violated.

The fact that the applicant has been transferred frequently cannot, therefore, be brushed aside. Administrative instructions prescribing minimum tenure and a transfer calendar serve an important purpose. They seek to ensure stability in administration and protect employees from unnecessary or arbitrary movement. However, where such instructions are administrative in character and do not have statutory force, they ordinarily do not confer upon an employee an absolute or indefeasible right to remain posted at one place for the entire normal tenure. The Full Bench judgment in Syed Hilal Ahmad (supra) also Central Administrative Tribunal^{recognizes the administrative nature of such transfer} instructions and clarifies that they do not, by themselves, confer any absolute or indefeasible right upon an employee. A premature transfer may nevertheless be justified where the competent authority considers such a course necessary in the exigencies of administration or public service. The existence of such administrative exigency, however, must be considered from the material available on record and cannot be used as a mere expression to immunize an otherwise mala fide or legally impermissible exercise of power.

The question, therefore, is not merely whether the applicant completed the normal tenure, but whether the departure from the normal arrangement, in the facts of the present case, is shown to have been for an impermissible purpose or in violation of a statutory requirement.

The mere fact that the Tehsildar made a recommendation on 07.05.2022, followed by the impugned order on 26.05.2022, does not establish that respondent No.3 Central Administrative Tribunal^{mechanically acted upon the recommendation or that the} decision was taken at the instance of respondent No.5. The existence of an administrative recommendation preceding a transfer order cannot, by itself, be equated with an extraneous exercise of power, particularly when the recommendation relates to the administrative functioning of the concerned Halqa. No independent material has been brought on record from which such an improper purpose can reasonably be inferred. The allegation of accommodation, therefore, remains at the level of assertion and suspicion and cannot, in the absence of supporting material, furnish a ground for judicial interference.

The subsequent proceedings arising out of the interim order dated 02.06.2022 are relevant only to the implementation of the interim protection and do not, by themselves, determine the legality of the original transfer order. The order dated 26.08.2022 records that the respondents had issued a show-cause notice alleging Central Administrative Tribunal^{unauthorized absence, but, when the matter was} considered by the Tribunal, the Tehsildar stated through counsel that he had no objection to the applicant joining at Zoonimar and that he would be permitted to join there, with allocation of work left to the Head of Office. Thereafter, on 07.02.2023, the respondents reported that the applicant had been deputed to Juni Marg and had joined there, whereupon the connected contempt petitions were closed. These proceedings demonstrate that the interim order of this Tribunal was ultimately acted upon in the manner recorded therein. They do not, however, furnish a sufficient basis to hold that the original transfer order dated 26.05.2022 was itself vitiated by mala fides.

The applicant’s representation dated 10.06.2022 stands on a somewhat different footing. The applicant had specifically placed before the Tehsildar his personal circumstances, including the recent death of his wife, his minor child and aged parents, and requested that he be permitted to continue at Zoonimar or be given some other Central Administrative Tribunal^{posting except Anchar. Such circumstances certainly} deserve sympathetic and objective consideration by the competent authority. However, the pendency or submission of a representation does not, by itself, render a transfer order illegal.

The show-cause notice dated 20.06.2022, issued in relation to the alleged unauthorized absence, also does not materially advance either side’s case regarding the legality of the impugned transfer. The allegation of unauthorized absence had already been the subject matter of an inquiry, following which the applicant was reinstated with a warning. Nothing on record establishes that the impugned transfer was imposed by way of punishment.

I am also mindful that the impugned order followed within a short period of the applicant’s posting at Zoonimar. That circumstance, coupled with the applicant’s previous transfers, makes the grievance understandable. Nevertheless, transfer being an incident of service and a matter which may be necessitated by Central Administrative Tribunal^{exigencies of service, the mere frequency or timing of a} transfer cannot, in the absence of mala fides, statutory violation or other legally cognizable infirmity, furnish by itself a ground for judicial interference. The limited jurisdiction available in a transfer matter does not permit interference merely because the Tribunal may have reservations regarding the frequency or timing of the transfer.

The allegation of mala fides also has to be considered in the light of the settled principle that such an allegation cannot rest upon mere assertion or suspicion and must be supported by appropriate pleadings and material. The principles noticed in Union of India & Anr. v. N.P. Thomas, 1993 Supp (1) SCC 704 decided on 22 September 1992, and N.K. Singh v. Union of India & Ors., (1994) 6 SCC 98 decided on 25 August 1994 also emphasize the necessity of relevant pleadings and supporting material where mala fides or an extraneous exercise of power is alleged. In the present case, except Central Administrative Tribunal^{for the assertion that the impugned order was intended to} accommodate the private respondent, no material has been placed before me which establishes personal bias, victimization or any extraneous consideration on the part of the authority which passed the impugned order.

On an overall consideration of the material, I am unable to hold that the impugned order dated 26.05.2022 was actuated by mala fides, extraneous considerations or violation of any statutory provision. The fact that the applicant was transferred within a short period of his earlier posting, even when viewed in the backdrop of the applicable administrative instructions, does not by itself justify interference in judicial review. The administrative exigency stated to have occasioned the transfer cannot be substituted by the opinion of this Tribunal merely because another course may appear more appropriate. In the absence of any legally cognizable infirmity in the decision-making process, the impugned transfer order cannot be quashed.

Central Administrative Tribunal^{30.At the same time, the grievance of the applicant regarding} the frequency of his transfers and the personal circumstances placed by him on record cannot be said to be wholly without substance. The representation dated 10.06.2022, if still pending, therefore deserves consideration by the competent authority in accordance with the applicable rules, instructions and law, keeping in view the circumstances stated therein as well as the administrative requirements of the department. The submission of such representation, however, does not confer upon the applicant any vested right to retention at a particular place of posting.

Accordingly, while I find no ground to quash the impugned transfer order dated 26.05.2022, the competent authority is directed, if the applicant’s representation is still pending, to consider and dispose of the same by a reasoned and speaking order, preferably within two weeks from the date of receipt of a copy of this order, and communicate the decision to the applicant forthwith. The Central Administrative Tribunal^{competent authority shall remain free to take an} appropriate decision in accordance with law, the applicable rules and instructions and administrative exigencies. No opinion is expressed on the merits of the grounds raised in the representation.

Consequently, O.A. No. 497/2022 is dismissed. However, if the applicant’s representation dated 10.06.2022 is still pending, the competent authority shall consider and dispose of the same in terms of the directions contained herein. There shall be no order as to costs.

The Registry shall consign the record to the Record Room after due compliance.