- Overview:
In principle, a transfer is an essential incidence of public service and the right of an appropriate authority to transfer an employee from one post to another is well-recognised under the service jurisprudence in India. The key document governing the service conditions of government servants in Jammu and Kashmir is the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, as amended over time, alongside other relevant departmental regulations or National Rules or Legislation such as Central Civil Services (Joining Time) Rules, 1979
.
- Relevant Legal Provisions:
There is no specific section or rule that directly deals with the circumstances stated, the J&K Civil Services Rules 1956 does set out broad guiding principles that could shed light on this matter, along with directions given in Central Civil Services (Joining Time) Rules, 1979 which can also serve as a benchmark.
It is worth nothing that it is trite law that a transfer should be seen as a tool for the smooth functioning of the administration rather than as a punitive measure.
- Interpretation and Application of the Rules:
The general legal principle governing transfer orders in public service is that they must be explicit and unambiguous, and should allow the employee reasonable time to join the new assignment. Typically, a transfer order would include a ‘relieving date’, allowing the officer in question to hand over responsibilities at the old post and to assume responsibilities at the new one.
An order of transfer with a condition stating that the official ‘shall be deemed to have been relieved’ seems to circumvent this process. It suggests that the officer’s transfer is automatic and does not require any formal ‘relieving’ process, and in the lex loci, in several cases, there is explicit mention of different transfer and relieving orders, and as such it is customary for transfer order to be separate from relieving order, as logic and propriety demand.
- Legality of the Stated Condition:
Given the overall principles of administrative justice, there might be questions about the fairness and propriety of such a condition. A transfer order should, as a rule, ensure the smooth continuity of administrative responsibilities. A clause suggesting automatic relieving may not facilitate this, particularly if the officer has significant ongoing responsibilities that need to be handed over to a successor. It is advisable to scrutinise such conditions with reference to the specific duties and responsibilities of the officer in question.
However, it’s important to note that the legality of such a condition would ultimately depend on a close reading of all relevant rules and guidelines, the specific circumstances, and any applicable precedents or departmental traditions.
- Case Laws:
“Allahabad High Court
Dr. Krishna Chandra Dubey Son Of … vs Union Of India (Uoi) Through The … on 5 September, 2005
43. Once a transfer order is passed, the Competent Authority has a right to cancel it or modify it, even after it stood executed. The transfer order must be passed by the Competent authority and employee should be relieved for joining at the transferred place, if it is necessary to relieve him formally.”
“Murarilal And Kishorilal v. State Of Rajasthan And Others
The Judgment of the Court was delivered by
Arun Madan, J.
12. I must hasten to say that in litigations challenging the transfers, it is open that the State Government or its instrumentality used to complex the matter by acting without any authority of law, as has happened in the present case, obviously because of the aggrieved transferred employee having approached the court of law. Once the civil court has issue orders to maintain the status quo and till then no relieving orders on transfer are issued, the transferred employee must be allowed to continue at works as if he were not transferred and should not be deprived of his salary and remuneration under one pretext or the other without any justification, and the officers of the State Government should not indulge in frustrating the cause of the justice rendered by the Courts of law in issuing orders to maintaining status quo or staying the operation of transfer orders. Such a practice deserves to be deprecated by the instrumentality of the Welfare State in strongest terms. The instrumentality of the State is expected to act fairly and within the authority of law. It is also often seen that as soon as the employee used to challenge the transfer, the instrumentality of the State used to issue relieving order to the back of the employee notwithstanding they proceeded on leave or that they are not served with such relieving order and they used to treat them absent from duty, whereas mearly because transfer orders are issued and relieving orders are issued on such transfer, contemporaneously service of the transfer as well as relieving orders upon the incumbent employee must also be proved during the pendency of litigation by way of proper pleadings and evidence on record. Having failed to do so, the respondents cannot be allowed to take somersault or to raise one pretext or the other that too without any justification on record. Bearing in mind to circumstances proved on record I am of the considered opinion that the action on the part of the respondents in having withheld salary of the period from 16.8.91 to 28.7.93 without any justification on record, is violative of Article 21 and 300A of the Constitution of India and the respondents have acted in case of the present petitioners without authority of law and in any arbitrary manner, which warrants invocation of writ jurisdiction of this Court. Withholding of salary for the intervening period in question has further resulted in delaying the retiral and pensionary benefits Without any justification, for which the respondents had no authority, and consequently, in my considered opinion, the petitioners are also entitled to consequently, in my considered opinion, the petitioners are also entitled to interest @ 12% per annum not only on the withheld salary and allowances but also on the withheld retiral and pensionary payments in arrears from the date of their accrual, if any.”
