Government instructions are not having statutory force: CAT

Srinagar, Nov 30: The Central Administrative Tribunal (CAT) Srinagar Thursday held that “government instructions are not having Statutory force and cannot supplement the rules”.
Dismissing an official’s plea who was aggrieved by his transfer with the contention that the transfer calendar had been violated, the tribunal held that the Government orders were subject to statutory rules.

“The legal position is well settled that the Government instructions are not having statutory force and it is also settled in law that executive instructions or Government orders are subject to statutory rules and the executive instructions cannot supplement the rules,” a bench of M S Latif Member (J) said. The tribunal said this while relying on a full bench judgment of the High Court of J&K delivered in SWP 1476/2014 titled Syed Hilal Ahmad versus State and others (clubbed matter) decided on 31-08-2015.

The petitioner, a senior assistant, working in the Directorate of Prosecution, Kashmir was aggrieved of an order dated 06-11-2023, whereby he was transferred to the office of Deputy Director Prosecution, Kupwara with immediate effect.

In his plea through his counsel, he contended that the normal calendar of transfer had been violated in his case, saying the minimum period of stay at one place of posting was two years and maximum period three years.” As such, the order impugned is bad in law,” he said.

The petitioner contended that the Govt. order No. 861–GAD of 2010 dated 28-07-2010 related to the policy of the Government to the posting of its employees, was violated besides SRO 307 of 2018. He further submitted that it was only one year he was posted in the Directorate of Prosecution, Kashmir and he had not yet completed the tenure of minimum of two years.

“It has been, time and again, held by various courts including the apex court of the country that transfer is an exigency of service and it is the prerogative of an employer to see as at what place the services of an employee can be best utilized in the larger public interest,” the tribunal said.

One of the grounds raised by the petitioner was that he was suffering from various ailments and his brother too had suffered a brain hemorrhage and had been operated upon in the P.G.I Chandigarh. He prayed that his mother too was having deteriorated health condition, as such, both his brother and mother were solely dependent upon him.

His transfer to district Kupwara, he said, was a major punishment.

“It is true that in many cases, the employees, who are transferred may
have genuine problems and may have hardships at their home ….. The Hon’ble Supreme Court, dealing with such situations, has held that an aggrieved employee, instead of approaching the courts, should approach
the competent authority, who are free to deal with the genuine grievance/hardship, if any faced by the employee…….,” the tribunal said.
While the court dismissed the application, it said: However, before parting with, it is provided that the respondents will sympathetically consider the representation filed by the applicant dated 07-11-2023 on its merits within a period of two weeks in view of the observation made by the apex court of the country in the case titled S K Nausad Rehman and others versus U.O.I and others, reported in 2022
Live Law SC 266, holding, inter alia, that “Preservation of family life is an incident of article 21 of the Constitution of India”.