Srinagar: The transfer of a government servant is an exigency of the service and the court cannot ordinarily interfere, the J&K High Court has ruled.
At the same time, a division bench of Justices Muzaffar Hussain Attar and Ali Muhammad Magrey held that a transfer order warrants interference if it is passed without jurisdiction, or as measure of punishment, or on mala fide grounds or adversely affects the service conditions of a government servant.
The division bench made the observation on an appeal filed by the government against a single bench order, staying transfer of Iftikhar Hakeem as Chief Town Planner Srinagar Development Authority from Incharge Chief Town Planner Kashmir.
The government in its order had made it clear that Post of the Senior Town planner SDA was upgraded to the level of Chief Town Planner.
Hakeem, however, had challenged the order before the single bench stating in terms of Rule 27 of Jammu and Kashmir Civil services Rules 1957 he could be transferred only within the cadre of Town planning (Gazetted service) and not against a post not part of the cadre in SDA. The court’s single bench had stayed the order.
In its appeal against it, the government stated that transfer order of the officer was necessitated under the exigencies of the public service to accomplish the revision of Master plans of Srinagar, Jammu and Katra.
“Regulation 52-B of Jammu Kashmir Civil Service Regulations (CSRs)— which provides for appointments by transfer on deputation—also governs the government servants,” the division bench said
Citing a Supreme Court Judgment, it said though Regulation 52-B of the CSRs uses the word deputation, however the two terms—transfer and deputation – are synonymously used.
“The term deputation means service outside the parent department,” the bench said, observing the law is that transfer and posting of government servant outside his parent cadre service or department is deputation.
“In other words, if a person is transferred and posted on ex-cadre post it would tantamount to his deputation under 52-B of CSRs and not a transfer under Rule 27 of the CCA Rules.”