Transfer as punitive measure is ‘mala fide exercise of power’: CAT

Srinagar, Aug 24: The Central Administrative Tribunal (CAT) in Srinagar has held that transfer of an employee as a punitive measure is “mala fide exercise of power” and in such situations the courts have the power to interfere in keeping with the law laid down by the Supreme Court.

A bench of M S Latif (Judicial Member) held that transfer is an exigency of the service and courts have limited power to exercise judicial review as regards the matters of transfers.

However, the bench noted that courts can interfere in the matters of transfer where the order is without jurisdiction, issued by an incompetent authority or goes against the statute or is passed as a measure of punishment.

Relying on related Supreme Court decisions, the bench observed that “mala fide exercise of power is not considered to be the legal exercise of the power given by law.”

The Court said this while deciding a plea by a patwari, who was aggrieved by his transfer order communicated by the Assistant Commissioner Central with Divisional Commissioner Kashmir.

In terms of the order, the official had been transferred from Patwari Halqa Lasjan and posted in the office of Regional Director Survey & Land Records, Bemina Srinagar.

According to the plea the order of transfer had been passed on the basis of the communication dated 05.08.2025 addressed by the Sub- Divisional Magistrate, East.  As such, the petitioner said, the order of transfer was punitive and as a measure of punishment.

“Perusal of the order under challenge reveals that the order has been issued in the interest of administration and dissent shown by the Sub-Divisional Magistrate, East, vide his office letter no.DM/SGR/E/PS/25/2052 dated 05.08.2025,” the tribunal observed.

The tribunal noted that the competent authority was within his powers to have initiated an enquiry against the applicant (Patwari) if he had committed any dereliction of duties or any disobedience of the orders of seniors. However, it said, the same could have only been done in accordance with the rules and the regulations governing such an issue.

“Prima facie what appears from the order impugned is that the order has been passed on the recommendations of the SDM vide his communication dated 05.08.2025 and it is the communication of the SDM which has prevailed upon the Divisional Commissioner Kashmir to have issued the order impugned”, the tribunal said. “Had the order been issued in the administrative or public interest, things would have been different.”

The tribunal set aside the transfer order after it observed that the order in view of the law laid down by the supreme court, prima facie, on the face of it “being bad in law” and having been passed as a “measure of punishment could not withstand the test of law”

It, accordingly, directed the respondents to pass a fresh order in accordance with the law and in the exigency of interest of administration and public within a period of 10 days.

“Further, for ten days, the present position of the applicant shall not be disturbed. It is made clear that this order shall have no effect or bearing upon any pending enquiry initiated or to be initiated against the applicant,” the tribunal said.

The tribunal made clear that its order shall have no effect or bearing upon any pending enquiry initiated or to be initiated against the applicant.