Excelsior Correspondent
Srinagar, Aug 31: The full bench of Jammu and Kashmir High Court today held that Government can transfer its employee at any time notwithstanding the fact that employee has not served for minimum of two years at a particular Station or post.
The full bench of Jammu and Kashmir High Court comprising Chief Justice N P Vasanthakumar, Justice Hasnain Masoodi and Justice B L Bhat while disposing of a bunch of petition held that the Government employee can be transferred by the Government and for that there will not be any excuse that the employee should be allowed to work on the post or station for minimum of two years.
“…Government servant has no enforceable right to insist that he or she shall be permitted to serve for minimum of two years in a station or post”, court said.
These petitions were placed before full bench noticing that two conflicting judgments were rendered by this court regarding the transfer of Government employees, as to whether two years minimum tenure is provided in civil service regulations or policy of transfer as framed in Government order No. 861-GAD of 2010 dated 28.7.2010 has any statutory force or flavor which could make it enforceable in law.
After making deliberation on regulation and transfer policy in pursuant to Government order dated 28.7.2015 said that strict implementation of minimum 2 years or 3 years tenure is not intended in the said order. “In such circumstances, the said Government order will not confer any right of enforcement through court of law in the light of Rule 27 of Civil service rules”, court held.
Referring the citation of Supreme Court, wherein it is held that the State Governments are affecting transfers and postings at the ‘whims and fancies’ of the executive head for political and other considerations and not in public interest, hence minimum tenure of service is good for the administration and efficiency.
Full bench in this regard observed that minimum and maximum tenure is already fixed in the Government order and it is also indicated in the said order that premature transfers may be ordered in the interest of administration.
“It is itself stated in the Government order of 2010 that premature transfers, wherever unavoidable in the interest of administration, may be ordered on certain contingencies” adding: ” Insofar as the State of J&K is concerned, as stated above, a minimum tenure of two years and maximum tenure of three years is already fixed in the Government of 2010″, court said.
As such strict implementation of minimum or maximum tenure is not mentioned in the said order. “Hence strict implementation of minimum 2 years and maximum 3 years tenure is not intended in the Government order”, Full bench said.
Court after delivering the decision held that after going through the Civil Service Regulation and transfer policy ( order of 2010) it is evident that while affecting transfers, the eligibility and suitability of the concerned employee and interest of the ‘Government work shall be given utmost priority’.
Court while referring the transfer policy order wherein it is held that any kind of transfer of an employee, his/her convenience may also be considered but not at the cost of Government work. “The husband and wife, if both in Government service they have to be posted conveniently as far as possible subject to availability of the post. The physically challenged persons are to be given convenient posting subject to availability of the post”, reads the Government order of 2010
It is also held in the Government order to identify the sensitive and non-sensitive posts and evolve a roaster for posting of the employee with the approval of the Minister incharge, particularly in the department of Engineering and Finance.
It is itself mentioned in the said transfer policy that premature transfers in the interest of the administration can also be ordered with the prior approval of the Minister incharge. “It is evident from the said guidelines and policy regarding transfers lot of latitude is given to the administration to affect transfers even within two years on administrative exigencies” adding: “As such a Government servant cannot compel the Government to retain him or her in a particular post for a period of minimum two years as a matter of right”, court said .
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