JAMMU, Mar 16: High Court has said that transfer is an incident of service and the Government is the best judge how to and where to utilize the services of its employees.
These observations were made by Justice Tashi Rabstan while dismissing petition of Dr Mohinder Kumar challenging his transfer and posting as I/C Block Medical Officer (BMO) Nowshera from Incharge BMO, Sohanjana.
After hearing counsel for the petitioner and Deputy AG Sanjeev Padha for the State, Justice Rabstan observed, “so far as plea of petitioner with regard to transfer policy is concerned, the same is not sustainable for the reason that the transfer policy promulgated by the Government is an executive order having no statutory flavour as such cannot be enforced by way of writ of mandamus”.
“Policy decisions of the Government are in the shape of executive instructions and the Government, in peculiar facts and circumstances of a case, is well within its competence to modify or change, in the interest of administration, an order unless an order of transfer is shown to be an outcome of malafide exercise or in violation of statutory provisions prohibiting any such transfer”, Justice Rabstan said, adding “the courts normally cannot interfere with such orders as a matter of routine”.
“It is a settled position of law that an order of transfer of a Government servant is no doubt justifiable, but such transfer order can be interfered with in writ jurisdiction in rarest and exceptional cases. Broadly a transfer order can be interfered with, if such order is issued by an authority, not competent to do so, or if there is violation of any statutory rule, or there is gross discrimination between the petitioner vis-a-vis similarly situated officers/employees, or if the transfer is actuated by mala fide”, High Court further said.