Excelsior Correspondent
SRINAGAR, July 25: : The State High Court in a significant decision today held that an employee cannot seek posting on her choicest place on marriage grounds as it is sole choice and privilege of the Government for smooth functioning of departments.
Justice Magrey while dealing with a petition filed by one Rafiqa seeking direction that the authorities be commanded by the Court to allow her to continue on present place of posting on marriage ground, dismissed the plea of the petitioner and recorded that the circular of Government passed on July this year is aimed at ensuring smooth functioning of the Government Departments and Organizations.
The Court said to direct the authorities to allow the petitioner to continue her duties at present place of posting, is beyond the scope of the powers/ jurisdiction of this Court as the same amounts to extension in the period of deployment of the petitioner, which is the sole discretion/ prerogative of the Government and its authorities. “Therefore, the claim of the petitioner is liable to be rejected”, read the judgment.
Testing the case of the petitioner on the touchstone of the law, Justice Magrey said that the deployment of the petitioner Rafiqa from district Kupwara to district Budgam was on the ground of her marriage. However, court added, same does not, in any manner, confer upon her a legally enforceable right to claim continuation at the place of her deployment.
While choosing the career and a particular service, the Court said, an employee has to bear in mind this factor (transfer and posting etc) and be prepared to face such a hardship if the administration needs.
Court said the transfer policy do not permit the posting of both (husband and wife) at one place without sacrifice of the requirements of the administration and needs of other employees.
In such a case, court said, the concerned employee, at the threshold, has to make his/her choice between career prospects and family life. After giving preference to the career prospects by accepting such an appointment in any Government service with the incident of transfer to any place, subordinating the need of the couple living together at one station, the said employee, court said, cannot as a matter of right, claim to be relieved of the ordinary incidents of Government service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places.
The next issue, as raised by the petitioner herein this petition, with regard to the challenge thrown to the circular No. 22-GAD of 2018 dated 6th of July, 2018, issued by the General Administration Department, is also misconceived and misdirected in view of the fact that the instructions issued in the circular aforesaid are aimed at ensuring smooth functioning of the Government Departments/ organizations.
Clause (iii) of the impugned Circular lays down the scope for a Government employee, on attachment, to approach the concerned authorities for seeking redressal of his/ her grievance as regards continuation at a particular place, which can be processed by the Department concerned for approval of the concerned Advisor for extension in his/ her period of attachment.
Court while declining to quash the circular, said the object of the transfer policy declared by the State, vide the impugned circular, is ensuring smooth functioning of the administration, therefore, any policy enumerated in the said Government Circular has to be read in the context of and in conjunction with the object of the declaration.
“As a necessary corollary, whatever the nature and extent of expectations a Government servant may perceive, have to be subordinate and subservient to the object of the policy” Court said adding with “such expectations cannot be derived from the policy in isolation of the object of the State enumerated in the policy itself. Therefore, the achievement of the object by the State will always have primacy over the expectations perceived by a Government servant”.
Having a cursory look on preamble of the Circular, Court has held that it is clear that the object of the policy, so formulated by the Government, is none other than administrative exigency and smooth functioning of the Government Departments/ Offices.
Court on the genuine apprehensions of the employee about transfer said, the concerned employee should, as has been held by the Apex Court to the competent authority instead of approaching the Courts, for seeking the redressal of his/ her grievance.
“In such view of the matter, instead of challenging the Government circular, the proper and advisable course for the petitioner was to approach the Government through the concerned Department for seeking extension in the period of her deployment. This Court does not have the jurisdiction to compel the Government to make the transfer of an employee or extend the deployment of an employee in a particular way or at a particular place”, Justice Magrey concluded and dismissed the petitioner with a view as it lacks merit.
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