Arun Kumar Singh vs State of U.P. and Others

Sudhir Agarwal, J.—This writ petition is directed against the transfer order dated dated 24.3.2011 passed by Respondent No. 4 transferring the Petitioner from District Moradabad to District Saharanpur.

Petitioner was posted at Moradaba for the last more than 20 years. It is contended that in the year 1991 he met with some accident as a result whereof one hand of the Petitioner suffered. It is, therefore, contended that Petitioner cannot be transferred in view of the G.O. dated 15.9.2003 and the impugned order of transfer is illegal.

A perusal of the aforesaid G.O. makes it clear that generally a person who is handicapped and dependent on others be exempted from routine transfer but where it is necessary there is no complete bar. It is not the case of the Petitioner that for performing his job he is totally dependent on family members. It is also not disputed that Petitioner is performing his regular duties of Constable Civil Police at Moradabad for the last more than 20 years. In the circumstances, reliance placed on the aforesaid G.O. is misplaced. The fact that the Petitioner suffers some handicappedess is nothing but a groundless pretext to avoid his transfer. No government servant can claim that he should be allowed to continue at a particular place for all through his career and he cannot be transferred though he holds a transferable service.

learned Counsel for the Petitioner could not show that his services are not transferable from one place to another. He also could not show that the impugned order of transfer is contrary to any statutory rules or is bad or mala fide. In fact none has been impleaded eo-nomine in the writ petition. Therefore, the plea of mala fide cannot be entertained at all. The Apex Court has consistently held that the order of transfer can be reviewed in a Court of Law only if it is contrary to rules or is bad on account of mala fide or the authority concerned has no jurisdiction to transfer.

In Mrs. Shilpi Bose and others Vs. State of Bihar and others, dealing with a similar issue, the Apex Court said that even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department.

In Union of India and Others Vs. S.L. Abbas, in para 7 of the judgment, their Lordships in the Apex Court held as under:

The said guideline however does not confer upon the Government employee a legally enforceable right.

In S.L. Abbas (supra) the employee placed reliance on an earlier judgment of the Apex Court in Bank of India Vs. Jagjit Singh Mehta, in support of his contention where certain guidelines have been issued, as far as practicable, they must be adhered to and based on the said decision, it was contended where transfer order has been issued in breach of administrative guidelines, when challenged, it is incumbent upon the authorities to give reasons, which justify breach of such guidelines and in absence thereof, the order has to be set aside being arbitrary and illegal. Negativing this contention and after referring the judgement in Jagjit Singh Mehta (supra), the Apex Court is S.L. Abbas (supra) said:

The said observations in fact tend to negative the Respondent�s contentions instead of supporting them. The judgement also does not support the Respondent''s contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.

The judgement in S.L. Abbas (supra) has clearly set at rest the question that the order of transfer when challenged on the ground of violation of administrative instructions/guidelines, neither it is obligatory on the authorities to explain as to why they have passed the order of transfer, which is not consistent with the conditions of the administrative guidelines nor failure to provide such explanation would result in to draw an inference that the exercise of power is malicious in law. Since the order of transfer has to be assailed by pleading mala fide as such and not to infer on the basis that the order of transfer is in breach of the conditions of administrative exigency, the breach of administrative exigency would not justify quashing of the order of transfer and therefore, in no manner the argument can be allowed to be stretched so as to invite interference with the order of transfer except where order of transfer is found to be in violation of statutory provision or is vitiated by mala fide.

Law laid down herein above has consistently been followed subsequently also, inasmuch as, in National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, Apex court held as under:

It is by now well-settled and often reiterated by this Court that no Government servant or employee of Public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned.

(emphasis added)

Then in State of U.P. and Others Vs. Gobardhan Lal, it was held:

It is too late in the day for any Govt. servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. The order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.

(emphasis added)

All the judgements have been quoted and followed in the case of Major General J.K. Bansal Vs. Union of India (UOI) and Others,

A Division Bench of this Court also (in which I was a member) in Special Appeal No. 1293 of 2005, Gulzar Singh v. State of U.P. and Ors. decided on 07.11.2005 and Civil Misc. Writ Petition No. 68143 of 2005, R.K. Pandey v. New India Insurance Company Ltd. and Ors. decided on 26.10.2005, have also taken the same view.

It would be appropriate at this stage to reproduce caution in the words of the Apex court as expressed in Gobardhan Lal (supra) as under:

A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fide when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.

The judgement of the Apex Court in N.K. Singh (supra) which has been relied by the Petitioner, has been considered by a Division Bench of this Court (in which I was also a member) in Writ Petition No. 243(S/B)/2007, Uma Shanker Rai v. State of U.P. and Ors. decided on 31.07.2007 and this Court held as under:

The case of N.K. Singh (supra) of which learned Counsel for the Petitioner has placed reliance on para 23 of the judgement, where the Apex Court has observed as under:

.... Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments.

In view of the above exposition of law, I find no ground to interfere with the impugned order.

The writ petition is devoid of merit. Dismissed.