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Judgment
D. S. Mahra Member (J)
The applicant is working as a Junior Assistant with the respondent department and was posted at District Jail Baramulla. The applicant was transferred from District Jail Baramulla to District Jail Bhadarwah vide order dated 17.08.2023. The said transfer order has been impugned by the applicant through the present OA before this Tribunal.
Learned counsel for the applicant submitted that the applicant was transferred based on a complaint regarding irregularities in his functioning, received by the Superintendent, District Jail Baramulla, who subsequently forwarded it to the Director General of Prisons. It is contended that the impugned order has been passed on the basis of the said complaint, and thus, it amounts to a punitive transfer. He further submits that the order has been issued without conducting any inquiry to ascertain the veracity of the complaint, thereby violating the principles of natural justice. Accordingly, he prays for setting aside the said transfer order.
On the other hand, learned counsel for the respondents, Mr. Waseem Gul, submitted that the transfer order dated 17.08.2023 was issued purely on administrative grounds, as clearly mentioned in the order itself. He submitted that the transfer was recommended by the Superintendent, District Jail Baramulla, due to certain irregularities in the functioning of the applicant. Based on this, the transfer order was issued. He further submitted that transfer is an incident of service and cannot be construed as a punishment. It is also submitted that the applicant has already joined the new place of posting, i.e., District Jail Bhadarwah, and hence, the OA has become infructuous and deserves to be dismissed.
I have heard learned counsel for both parties.
The applicant has impugned the transfer order dated 17.08.2023 by which he was transferred from District Jail Baramulla to District Jail Bhadarwah and has joined the new place of posting. Learned counsel for the applicant vehemently argued that the transfer order was passed on the ground of alleged irregularities in the procurement of medicines, and hence, it amounts to a punishment imposed without any inquiry.
I have perused the impugned transfer order, which does not mention any allegation or irregularity attributed to the applicant. It merely records that the transfer was made in the interest of administration. It is a well-settled principle of law that transfer is a condition of service. An employee holding a transferable post is liable to be transferred as per the service rules unless the transfer is shown to be vitiated by malafides or is in violation of statutory rules. It is also a settled position of law that an employee cannot insist on being posted at a place of his choice.
The Hon’ble Supreme Court in the matter of Union of India vs. Janardhan Debnath, (2004) 4 SCC 245, held that if a transfer order is challenged on the ground that it is punitive, the Court/Tribunal must consider:
(i) Whether the transfer order casts any stigma or constitutes a punishment, which would depend on the consequences flowing from the transfer; and
(ii) Whether the transfer adversely affects the service conditions, status, or prospects of the employee.
It was further held that unless the transfer order results in such adverse consequences or is punitive in nature, it cannot be interfered with merely on the ground that it was issued following some complaint.
A plain reading of the impugned transfer order dated 17.08.2023 reveals that it was issued purely on administrative grounds. There is no mention of any misconduct, complaint, or irregularity in the order itself. Even assuming that there were certain irregularities, the respondents have not initiated any departmental inquiry to substantiate those allegations. The object of an administrative transfer is to ensure smooth functioning of the department, and such transfers cannot be interfered unless they are shown to be punitive or in violation of rules.
Since the respondents have not chosen to hold any inquiry and have issued the transfer order in administrative interest, it cannot be said that the transfer is punitive in nature. The order merely effects a change in the place of posting, which is an incident of service, and does not affect the applicant’s service conditions or status. Therefore, the impugned transfer order cannot be said to be stigmatic or vitiated by malafides.
In view of the above, it is concluded that the impugned transfer order has been passed on administrative grounds without attributing any misconduct or stigma to the applicant. Hence, there is no ground for interference by this Tribunal.
With these directions, the OA is disposed of. No order as to costs.