Srinagar: Does Jammu and Kashmir Civil Service Regulations provide for a minimum tenure of two years for an employee on a particular post or is the government’s 2010 transfer policy enforceable in law?
A full bench of J&K high court comprising Chief Justice N Paul Vasanthakumar, Justice Hasnain Massodi and Justice BL Bhat on Monday answered the reference in negative.
“A government servant has no enforceable right to insist that he/ she shall be permitted to serve for a minimum of two years in a station or post,” ruled the bench, constituted after conflicting views by court’s single judges on the transfer issue.
While one of the judges held the government transfer policy enforceable, another had said that the government order or guidelines were only in the nature of executive instructions and therefore not enforceable by law.
“It is settled proposition of law that transfer is an incidence of service and a government servant is subject to orders of transfer on administrative exigencies. A government servant cannot insist that he is entitled to continue in a particular station/post for a definite period,” the bench said.
Interference by the courts in the orders of transfer are very limited, the full bench said, recalling that court can step in only on three counts: “When the order of transfer is passed in violation of any statutory rule, mala fide reasons or by an incompetent authority.”
As per the government’s 28 July 2010 order, the employee cannot compel the government to retain him on a particular post for a period of minimum two years as a matter of right.
“In the transfer policy itself it is clearly stated that even before the completion of the minimum term, if the performance of the employee is found below the job requirement or if there are grounds for initiating enquiry or disciplinary proceedings against transfer him/he, or it is in the public interest or in the interest of administration to allow the employee to continue on a post for a full tenure, he can be transferred before the minimum period,” the bench said, observing that the administrative exigency was inbuilt in the transfer policy.
“The policy issued can be treated as guidelines to be followed as far as possible by the authority who is vested with the power to transfer,” the bench said.
The policy order among others states that convenience of the employee may be considered but it should not at the cost of government work.
“The husband and wife, if both in government service, 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 2010 order.
The transfer policy also provides that premature transfers can also be ordered with the prior approval of the minister in charge if it’s in the interest of the administration.
The bench said that it was evident from the guidelines that a lot of latitude is given to the administration to affect transfers even within two years on administrative exigencies.
“Hence strict implementation of minimum 2 years and maximum 3 years tenure is not intended in the government order. In such circumstances, the government order will not confer any right of enforcement through Court of law in the light of Rule 27,” the bench added.