HC vacates stay on Wani’s transfer

March 5:  The State High Court while vacating the stay on the transfer order of president of Teachers Forum, Qayoom Wani, today said that Union leaders of Government employees cannot seek posting of their choice or refuse to obey a transfer and posting order.
Court passed these observations while dismissing the writ petition of President Teachers Forum, Abdul Qayoom Wani, who had challenged the Government (order no. 26-Edu of 2016 dated 02.02.2016) in which repatriation of officers working in the Project of Directorate of SSA was ordered.
Justice Ali Mohammad Magrey in his order said that transfer and posting is an exigency of service and the order of transfer of the petitioner does not show any kind of malafides on part of the respondent-Government.
“Transfers and postings are exigencies of service. If a Government servant feels aggrieved of his transfer on legally recognised grounds, the law has provided a remedy, he has a right to approach the Court of law,” court said.
The court said that to form a ‘Union or Association’ is a Constitutional right but with certain limitations and on this assumption an employee ‘cannot seek posting of his choice or to refuse’ to obey a transfer and posting order.
“The right to form an association or a union does not mean right to achieve every object, nor does it confer a privilege or grant a license on any leader of an association or union to obliterate the hedges of discipline and abandon or shirk his official duty for which he is being paid his salary”, reads the order.
Wani, feeling aggrieved of Government order no. 26-Edu of 2016 dated 02.02.2016, challenged it before the court on the ground of it being based on malafides of Director School Education, and being violative of the transfer policy framed by the Government in terms of order no.622-Edu of 2015 dated 22.12.2015.
Court while referring the various judgments of Supreme Court from time to time said “neither any malafides against the respondents, more so against respondent no.2, are made out, nor is infraction of any statutory rule governing the transfers in Education Department brought to the notice of the Court. These writ petitions, consequently, deserve to be dismissed, being without any merit and unnecessary”.
Court rejected the grounds of malafides made by Wani against the Director Education as he stated that DSEK had been victimising the members of the Union, and in pursuit of his malafide intentions, he transferred two of the union members, Mohammad Amin and Mohammad Afzal Bhat from their respective places.
Wani states that in his capacity as Chairman of J&K Teachers Forum he made a representation to Commissioner/Secretary to Government, Education Department, seeking his intervention in the transfers made by DSEK. “When DSEK came to know about such representation, he (Director) got annoyed and issued a press report which came in one of the ‘Dailies’ on 30.01.2016, saying that he will not tolerate ‘unionism’ in his department and other press report of the same date in another ‘Dailies’, court said both press reports about statements issued by DSEK are contradictory and he has vehemently denied these statements in his reply to the pettion.
Court also expressed serious concern with regard to forming an official as party respondent without giving the details of his official status. “If a Governmental functionary is to be impleaded as a respondent in his personal capacity, he is to be so arrayed by giving his official address, unless it is shown that the actions alleged against him exclusively fall outside his official domain or Governmental functions”, court order reads.
Court said the object of the style in which the particulars of DSEK have been given is nothing but deliberate expression and demonstration of ‘scanty regard and rebellion behaviour’ which does not behove a government servant, particularly when he claims to be spearheading the employees.
Court while elaborating the term Malafide said it means bad faith as “An action which may be founded on dishonest belief or purpose would be malafide” in this connection referring the Supreme Court judgement, court said that ‘reckless disregard of consequences and malafides stand equal’ where the actual State of mind of the actor is relevant. “This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and malafides”, court said. Thus an action taken in good faith with an honest belief or for an honest purpose, court said would not be malafide but it would be an action taken bonafide.
Court further added that the Wani was relieved from SSA with the issuance of Government order which strictly speaking that the Government order dated 02.02.2016 (transfer of petitioner) implemented and its follow up action also stood completed as on the date this Court passed order of stay dated 2.2.16.
“Once the action that a Government order contemplates is completed, the operation of the order comes to an end and it is reduced to nothing more than a record of reference. Had the Government order not contained the words ‘are deemed to have been relieved’ the position may have been different”, court said and vacated the stay order also.

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