Leela Devi vs State of H.P. and Others

Rajiv Sharma, Judge

The petitioner was transferred to Government Primary School, Nagri. She joined her duties there on 17th February, 2009. However, vide office order dated 15th November, 2010, she was transferred from Government Primary School, Nagri to Government Primary School, Tangri (Nankhari). She assailed the transfer order dated 15th November, 2010 by filing C.W.P. No. 7714 of 2010. It was decided on 26.08.2011. The transfer order dated 15th November, 2010 was quashed and set aside and the respondents were directed to permit the petitioner to discharge her duties at Government Primary School, Nagri till she completes her normal tenure of 3 to 5 years. The petitioner joined her duties at Government Primary School, Nagri pursuant to the judgment dated 26.08.2011 on 14.09.2011. Now, the petitioner has been transferred vide Annexure P-3, dated 15.05.2012 from Government Primary School, Nagri (K-II) to Government Primary School, Dubloo (K-II) vice respondent No. 5. Replies have been filed by all the respondents. According to the reply filed by respondents No. 1 to 4, the petitioner has remained posted in Government Primary School, Paindly, Mashobra Block w.e.f. 06.04.2004 to 18.10.2008. Thereafter, she remained posted at Government Primary School, Tikker Kohan, Mashobra Block w.e.f. 19.10.2008 to 16.02.2009. Thereafter, the petitioner was transferred to Government Primary School, Nagri, Mashobra Block on 14.02.2009, where she joined her duties on 17.02.2009. The distance between Government Primary School, Tikker Kohan, Mashobra Block and Government Primary School, Nagri, Mashobra Block is two Kms. It is, thus, evident that the petitioner has remained posted within a radius of less than 20 Kms. w.e.f. 06.04.2004 till 18.05.2012. Now, she has almost completed 3 1/2 years at Government Primary School, Nagri. The Court has directed the respondents to permit the petitioner to complete her normal tenure. The respondents, in the present case, while transferring the petitioner, has taken into consideration the posting of the petitioner within a radius of 20 kms. for the last eight years w.e.f. 06.04.2004. The petitioner has no indefeasible right to remain posted at a particular place. The scope of judicial review in these cases is limited. The transfer is an incidence of service. The transfer can be challenged if there is infraction of statutory rules or the order of transfer is actuated with legal malafides.

Their Lordships of the Hon''ble Supreme Court in Airports Authority of India Vs. Rajeev Ratan Pandey and Others, have held that in a matter of transfer of government employee, scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. Their Lordships have held as under:

In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.

Their Lordships of the Hon''ble Supreme Court in Rajendra Singh Vs. State of U.P. and Others, have held that a Government servant has no vested right to remain posted at a place of his choice, nor can he insist that he must be posted at one place or the other because no Government can function in such manner. Their Lordships have further held that Government servant is liable to be transferred in the administrative exigencies from one place to the other. Their Lordships have further held that 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 contrary. Their Lordships have further held that courts are always reluctant to interfere with transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. Their Lordships have held as under:

A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. and Others Vs. Gobardhan Lal,

The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose (Mrs.) & Ors. v. State of Bihar & Ors.1, this Court held :

In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. 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. If the courts continue to interfere with day-today transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.

In N.K. Singh v. Union of India & Ors.2, this Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provisions.....

Their Lordships of the Hon''ble Supreme Court in Registrar General, High Court of Judicture of The Registrar General High Court of Judicature at Madras Vs. R. Perachi and Others, have held that transfer is an incident of service and one cannot make a grievance if transfer is made on administrative grounds and without attaching any stigma. Their Lordships have further held that scope of judicial review is limited and High Court cannot interfere with order of transfer lightly since courts cannot substitute their own decisions in the matter. Their Lordships have held as under:

We have considered the submissions of both the counsel. As far as the action of transfer against the first respondent was concerned, the same was on the basis of the report of the Registrar (Vigilance). Besides, the District Judge had also opined that retention of the appellant in his district was undesirable from the point of view of administration. Thus, it involved inter- district transfer. The respondent no.1 had not disputed the power of the High Court to transfer him outside the district, nor did the division bench interfere therein on that ground. This is apart from the fact that transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative grounds, and without attaching any stigma which was so done in the present case.

In the context of transfer of a govt. servant we may refer to the dicta of this Court in N.K. Singh Vs. Union of India and others, where this Court observed in para 22 as follows:-

Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.

In State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others, , the Administrative Tribunal had interfered with the transfer order of the respondent and directed him to be posted at a particular place. It is relevant to note that while setting aside the order of the tribunal this Court observed in para 4 of its judgment as follows:-

The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.

We may mention that this Court has reiterated the legal position recently in Airports Authority of India Vs. Rajeev Ratan Pandey and Others, that Rs. in a matter of transfer of a govt. employee, the scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.

In view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs.