Govt has power to transfer employee during probation: DB

25/11/2021

JAMMU, Nov 24: A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Justice Ali Mohammad Magrey and Justice Sanjay Dhar holds that govern-ment's power to transfer any employee anytime even during probation.
While dismissing LPA filed by the appeallants Rajesh Kumar & ors who had agitated their transfer to Kashmir from Jammu during period of probation, DB upheld the decision of writ Court.
The constables had pleaded that were appointed under the J&K Special Recruitment Rules of 2015 and could not be transferred during a period of five years probation under SRO 202.
They had contended through their lawyer that an appointee shall have to necessarily work for a period of five years on the post against which he/ she has been appointed, and that such an appointee shall not be eligible for transfer for whatsoever reason during the temporary service of five years.
However, the Writ court in its verdict in 2020 did not agree with contention.
It had said "the government is not barred in any manner whatsoever to pass the order of transfer in relation to an appointee appointed under the Rules of 2015 even before the completion of five years of initial service/probation period of the appointee". It was of the opinion that Rule 8(2) of the Rules of 2015 placed restriction on the appointee for not seeking transfer within the first five years of service.
The rule does not take away any power of the employer/government to transfer such an employee even before the completion of five years of probation period, the Court said.
DB while hearing the appeal against the single bench judgment viewed "the opinion passed by the single Judge is not only lucid and luminous, but also in consonance with the rules/law governing the subject.""Rule of 2015 clearly does not, in any manner whatsoever, put a bar on the government to pass the order of transfer in relation to an appointee even before the completion of five years of initial service/probation period of the said appointee," it said.
Besides, the court said that any provision of rule provided in the Rules of 2015 cannot be interpreted in isolation or in conflict with the mandate of the Jammu and Kashmir Civil Services Rules of 1956. "Rule 27 of the Rules of 1956 also clearly empowers the government to transfer an employee from one place to other in the now Union Territory of Jammu and Kashmir on the post born on his/her cadre," DB said.

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