The High Court · 2023

WP (C) no. 1183/2022 Page 2 of 11 against his transfer order has been rejected, on the grounds taken in the memo of writ petition. 03/- For brevity, the above said orders shall be referred to as the impugned orders hereinafter. BRIEF FACTS 04/- The case set up by the petitioner in brief is that he is holding the post of Executive Engineer in the Border Roads Organization Engineering Service and is governed by a Posting Policy of GREF officers framed by the respondents in the year 1999 which provides for an executive tenure to be of 02 to 03 years for the officer of a rank of Executive Engineer or equivalent. However, the respondents, in violation of such posting policy, have transferred the petitioner to HQ CE (P) SPK in terms of impugned order only within a period of one year and one month. The representation filed by the petitioner against such transfer has also been rejected. 05/- The plea raised by the petitioner is that the post of Executive Engineer (Civil) in the Border Roads Organization is having two types of postings, i.e., Command Posting and Staff Posting. An Executive Engineer in the Headquarter of the Road Construction Company, (HQ RCC), is considered to be a Staff Posting whereas an Executive Engineer in the field of the Road Construction Company is considered to be a Command Posting. 06/- It is stated in the writ petition that the Command Posting is essentially a posting to gain requisite experience so that the incumbent becomes eligible for promotion to the selection posts and in such background the said posting has a tenure of 02-03 years, and since the petitioner, pursuant to Order dated 07.10.2021 was posted at 69 RCC/13 TF/SPK, therefore, he had to be given the tenure of 02-03 years, but he was transferred only after a period of one year and one month by virtue of the impugned order which deprived the petitioner to gain the requisite WP (C) no. 1183/2022 Page 3 of 11 experience. In this background, the impugned order is stated to be bad in law, therefore, deserves to be quashed. 07/- Upon notice, the respondents appeared and filed their reply resisting the claim of the petitioner inter alia on the grounds that the petitioner has been placed under Low Medical Category GREF-II (Permanent) by the competent medical authorities on account of his medical ailments like Bronchial Asthma, Allergic Rhinitis and Type 2 Diabetes Mellitus with employability restrictions “Unfit for posting in High Altitude Areas/ Hard Area/ Extreme Cold Climate/ Extreme Hostile Area from 01 March 2013 and December 2016; As per Border Roads Engineering Service Group ‘A’ (Amendment Rules) 1988, the petitioner would be eligible for next promotion of Superintending Engineer (Civil) after rendering 05 regular years of service in the grade of Executive Engineer (Civil) and possession of a requisite qualification degree and the petitioner has already completed more than eleven years of service in the rank of Executive Engineer (Civil), therefore, the transfer of the petitioner is not going to hamper the promotional avenues of the petitioner; given the medical ailments of the petitioner, he has been posted at a most attractive area by the competent authority; the posting/ transfer is entirely an organizational requirement depending upon the workload of the department and a comprehensive speaking order issued in compliance to Order dated 05.05.2022 passed by this Court in WP (C) No. 971/2022; the post where the petitioner was working has since been physically occupied by the new incumbent, respondent No. 3 on 4th June, 2022 and the petitioner has also assumed the office at the new place of posting. 08/- Heard learned counsel for the parties. 09/- The submissions made by the learned senior counsel for the petitioner are summarized as under: WP (C) no. 1183/2022 Page 4 of 11  The petitioner has been prematurely transferred as his earlier transfer was made on 03.11.2021 and now he stands transferred again on 29.4.2022.  The petitioner has served at high altitude stations and his performance has always been adjudged as satisfactory.  The order impugned is issued in violation of the transfer policy, in particular clause 6 (e) of the guidelines laid down therein.  The representation filed by the petitioner in compliance to the orders of this court as were passed in WP (C) No. 971/2022 has not been appreciated in its right perspective resulting in its rejection.  The executive instructions cannot supplant the rules but they always supplement the rules and are binding upon the framers of the policy.  The respondents have undertaken a malicious exercise of power and there is malice on the part of respondent no. 2 in issuing the impugned order.  The petitioner was suffering from the medical ailments at the time of his posting at an Extreme Hostile Area; therefore, the respondents cannot take this plea now for transferring him prematurely. 10/- In support of his submissions, the learned senior counsel referred to and relied upon the judgments of the Hon’ble Supreme Court delivered in case titled Ms. X v. Registrar General, High Court of Madhya Pradesh and another reported as 2022 Live Law (SC) 150. Paragraph No. 50, 55-58 of the said judgment referred in particular by the learned senior counsel, is taken note of herein-below, thus: “50. The petitioner had a legitimate expectation in view of Clause 10 of the Transfer Policy to have her case considered for posting at any of the 4 places in the event her request for retention at the then present posting was not considered and WP (C) no. 1183/2022 Page 5 of 11 as such, she made the second representation. We are at pains to say that the rejection of the second representation depicts total non-application of mind by the then RG as well as the then Judge of the Transfer Committee of the MP High Court. The proposal of the then RG was made in a casual manner and accepted by the then Judge on the Transfer Committee in a mechanical manner. 55. It could thus be seen that this Court has held that there is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 of the Constitution of India to prove the assertion. It has been further held that where no plausible reason or principle is indicated nor is it discernible and the impugned State action appears to be arbitrary, the initial burden to prove the arbitrariness is discharged, thereby shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The limited scope of judicial review is only to satisfy that the State action is not vitiated by the vice of arbitrariness and no more. It is equally settled that it is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate. It has been held that the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. 56. We have no hesitation in holding that the petitioner has established that her transfer order was in contravention of the Transfer Policy and that the rejection of her two representations, in addition of being contrary to the Transfer Policy, were also arbitrary. As such, the petitioner has discharged her burden and the onus is shifted on the respondent No.1 to show that the petitioner’s transfer order was fair and reasonable in the facts and circumstances of the case. We find that the respondent No.1 has utterly failed to WP (C) no. 1183/2022 Page 6 of 11 discharge its burden. On the contrary, the admissions made before the JIC by the then Judge on the Transfer Committee clearly show that the transfer was made solely on the basis of the complaint made by the then D & SJ, Gwalior without verifying the veracity thereof. Not only this, but it is evident that the then Judge had not looked into the annexures attached with the representation, which included the fee receipts etc. of the petitioner’s daughter. 57. We may gainfully refer to the following observations made by this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and Others, (2010) 9 SCC 437: “25. The State is under obligation to act fairly without ill will or malice — in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521 : AIR 1976 SC 1207] , S.R. Venkataraman v. Union of India [(1979) 2 SCC 491 : 1979 SCC (L&S) 216 : AIR 1979 SC 49] , State of A.P. v. Goverdhanlal Pitti [(2003) 4 SCC 739 : AIR 2003 SC 1941] , BPL Ltd. v. S.P. Gururaja [(2003) 8 SCC 567] and W.B. SEB v. Dilip Kumar Ray [(2007) 14 SCC 568 : (2009) 1 SCC (L&S) 860] .) 26. Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. v. Zora Singh [(2005) 6 WP (C) no. 1183/2022 Page 7 of 11 SCC 776] and Union of India v. V. Ramakrishnan [(2005) 8 SCC 394 : 2005 SCC (L&S) 1150].)” 58. It is trite that the State is under the obligation to act fairly without ill will or malice — in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others.” 11/- On the other hand, Mr Vishal Sharma, DySGI, submits that the petitioner has been given a very attractive posting in the interests of the Institution as also in his own interests owing to his medical conditions. He submits that the order impugned is not stigmatic; it is issued after considerable deliberation, for placing the right person in the right place, at the right time. Due consideration is also given to an individual’s sector/ area profile, employment restrictions, posting policy and availability of personnel, specially for posting to HAA. 12/- The learned DySGI further submits that the petitioner has not been able to show as to how the impugned order is prejudicing his interests. He submits that the representation made by the petitioner in compliance to the orders of this Court as were passed in WP (C) No. 971/2022 on 05.05.2022 has been duly considered from all possible aspects and found lacking merit, therefore, rejected. He further submits that the decision so taken on the said representation is supported by the rules in vogue and no illegality of whatsoever nature is attached therewith. WP (C) no. 1183/2022 Page 8 of 11 13/- The learned DySGI further submits that the law on the point is no more res-integra and the courts of law including the Hon’ble Apex Court have held in numerous cases that transfer is an exigency of service and the employee has no right to seek his continuation at a particular place. 14/- In support of his submissions, the learned DySGI, referred to and relied upon the judgments of the Hon’ble Apex Court in case titled Rajendra Singh v. State of UP and others reported as 2009 (15) SCC 178; of the Division Bench of Delhi High Court delivered in case titled Kamlesh Kumar Jha v. Director General Border Roads and others; judgment of the Division Bench of this Court delivered in case titled Syed Hilal Ahmad and others v. State of J&K and others reported as 2015 (3) JKJ 398; and the Single Bench judgment of this court delivered in case titled Dr Mohinder Kumar v. State of J&K and others decided on 12.03.2018. 15/- Considered the submissions made and perused the record in the shape of communications addressed by the respondents in the matter. 16/- The petitioner is in 2nd round of litigation over the issue of transfer. The impugned transfer order issued by the respondents had been challenged by him in the first round of litigation in a writ petition, WP (C) no. 971/2022, which, upon consideration, has been disposed of by this Court in terms of order dated 5th May, 2022, with a direction to the petitioner to file a representation with the respondent No. 2 within a period of seven days from the date of order and in the event, any such representation is filed, the same shall be considered and decided by the respondent No. 2 in accordance with law as expeditiously as possible and the respondent No. 2 shall pass a speaking order. It was further provided in the order that respondent No. 2 shall also consider the posting policy as applicable to GREF officers and till the time the representation is considered and decided by WP (C) no. 1183/2022 Page 9 of 11 respondent no. 2, status of the petitioner was directed to be maintained. The order, however, was enforceable only if the timeline prescribed for filing the representation was adhered to. 17/- In compliance to the order dated 05.05.2022 passed by this Court, the petitioner filed the representation before the respondent no. 2 who considered and rejected the same being without merit. 18/- Feeling aggrieved, the petitioner challenged both the orders; the transfer order as also the order of rejection passed by the respondents on the representation of the petitioner, on the grounds as taken note of in the preceding paragraphs. 19/- The “Posting Policy: GREF Officers” attached with the file does reveal that the impugned order of transfer is issued in strict adherence to the policy and is in no way violating any of its provision. Clause 8 of the Policy deals with the individual posting orders and the sub clause (e) of clause 8 provides for a transfer of an individual any time during the year in the Organizational interest. 20/- The perusal of the Posting Policy further reveals that the eligibility, suitability of the officer concerned as also the interests of the organization are borne in mind by the respondents while ordering transfers of its employees/ officers. The impugned transfer order does not appear, in any way, prejudicial to the interests of the petitioner. It rather appears more to be in his interest, having been issued while considering his medical ailments. The contentions that the petitioner has been prejudiced by the order impugned and that it is issued in violation of the posting policy do not have any substance, therefore, rejected. 21/- The impugned rejection order issued by the respondents on the representation of the petitioner filed by him in compliance to the orders of this Court passed in WP (C) no. 971/2022 also contains sound reasoning for not WP (C) no. 1183/2022 Page 10 of 11 accepting the request of the petitioner, therefore, cannot be said to be irrational or unreasonable as putforth by the learned senior counsel. 22/- Furthermore, the law on the point is settled that a government servant cannot insist that he is entitled to continue at a particular place. The Hon’ble Full Bench of this Court in case titled Syed Hilal Ahmad & others v. State of J&K and others decided on 31.08.2015 reported as 2015 (3) JKJ 398 has explained when and how the courts of law should interfere with the transfer of a government employee. It would be profitable to reproduce paragraph no. 13 of the said judgment herein, thus: “13. It is also 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. Interference in the orders of transfer by the Courts are very limited i.e. only on three grounds orders of transfer can be interfered, namely, if the order of transfer is passed in violation of any statutory Rule, or on mala-fide reasons or by an incompetent authority.” 23/- The case set up by the petitioner does not fall in any of the three categories taken note of by the Hon’ble Full Bench in the case supra. The judgments cited by the learned senior counsel for the petitioner are also distinguishable to the facts and circumstances of the instant case. 24/- The case of the petitioner further loses significance for the reason that the order questioned in the writ petition has since been implemented, rendering the challenge infructuous. WP (C) no. 1183/2022 Page 11 of 11 25/- For all what has been said hereinbefore, the impugned order of transfer and the order of rejection are held to be reasoned and need no interference. The respondents shall be at liberty to proceed ahead in the matter. 26. The writ petition is dismissed on the above lines along with all CMs. Interim direction, if any subsisting as on date, shall stand vacated. Record produced by Mr Vishal Sharma, Dy.SGI, shall be returned to him against receipt. (MOKSHA KHAJURIA KAZMI) JUDGE JAMMU 24.02.2023 Amjad lone, Secretary Wheter the judgment is reportable: Yes/No Whether the judgment is speaking: Yes