J&K HC Reiterates that Government Orders Are Subject to Statutory Rules

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On 10th August 2020, Hon’ble Mr Justice Ali Mohammad Magrey heard the case of Shafat Ahmad Shah vs Union Territory of JK & Ors, via video-conferencing. The Court directed the respondents to consider the petitioner’s representation and pass appropriate orders.

Facts of the Case

The petitioner worked as an Assistant Sales Manager. The respondents transferred him from Irwin Road Branch, New Delhi to Jarihaat Branch, Kolkata. The petitioner did not agree with this. He filed the Writ Petition under Article 226 of the Constitution of India, seeking this Court to quash his transfer order.

Arguments of the Petitioner

The learned counsel for the petitioner argues that the impugned order is not in the interest of administration. Moreover, it does not add to the smooth functioning of the Corporation. Therefore, the respondents have issued the order without any application of mind. The petitioner seeks the Court to quash the order passed by the respondents.

Court’s Analysis

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The Court heard the counsel of the petitioner and perused the documents before considering the matter. The Supreme Court and other Courts have earlier dealt with matters relating to the transfer of service. It is the prerogative of the employer to decide the place of service of an employee. This is because the employers know how the services can be best utilized in the larger public interest. The employee doesn’t have the right to insist on the place of his service if he holds a transferable post.

The Court referred to a case settled by a Full Bench of this Court. The said case was ‘Syed Hilal Ahmad vs. State & Ors.‘ which was decided on the 31st of August, 2015. The Full Bench held that it is a well-settled legal position that Government instructions do not have statutory force. The settled law is that the Executive Instructions / Government orders are subject to Statutory Rules. 

Further, the Legislature, who framed the Rule, cannot delegate its power to the Authorized Officer or the Executive. The executive can issue Government orders only within the bounds of the Rules. The legislature has not amended Rule 27 fixing any minimum or maximum tenure to a Government servant to serve in a particular station. Hence, strict implementation of a minimum of 2 years and maximum 3 years tenure is not intended in the Government order.

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Furthermore, the petitioner’s counsel requests the Court to direct the respondents to consider the petitioner’s representation. The petitioner’s representation is to allow him to work at his present place of posting due to the COVID-19 situation.

Court’s Decision

The Court directed the respondents to consider the representation filed by the petitioner according to the rules governing the subject and pass appropriate orders thereon. Thus, the Court disposed of the Writ Petition.

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