Mahabir Singh vs Conservator of Forests and Another

B.S. Chauhan, J.—This special appeal has been filed against the impugned order dated 1.10.1996 passed by the learned single Judge in Writ Petition No. 31242 of 1996 by which the petition has been dismissed, wherein the Petitioner had challenged the transfer order dated 2.7.96. The transfer order dated 2.7.96 was challenged on the ground that the same had been passed in contravention of the transfer policy framed by the Government and had created personal problems to the Appellant.

Learned single Judge has dismissed the petition on the ground that violation of the executive orders or transfer policy framed by the Government does not render the transfer order invalid. It has further been observed that the personal problems of the Petitioner cannot be looked into by the writ court.

Heard Shri C. D. Bahuguna, learned Counsel for the Appellant and Shri Pradeep Gupta, learned standing counsel on behalf of the Respondents.

Learned Counsel for the Appellant has argued that the Appellant should not have been transferred in mid academic session as it would adversely affect the education of his children. Learned Counsel has placed reliance upon the judgment of the Supreme Court in Director of School Education, Madras and Ors. v. O. Karuppa Thevan and Anr. 1994 Suppl. (2) SCC 666, wherein the Supreme Court has held that "due weight" should be given to the fact that children of the employee are getting education and employee should not be transferred during mid academic session unless the exigencies of the service are very urgent.

In the said judgment the Apex Court has merely observed that while making the transfer of the employee the employer may consider or give due weight to the fact that the education of his children may not be affected adversely, but it does not put any embargo to make such transfer. The children of the Appellant, according to the averments made in the memo of appeal, are studying in class IV and VI. The academic session starts from 1st July of every year and the transfer order made on 2.7.96 cannot be said to be mid-academic session transfer. Moreover, the Court can take judicial notice of the fact that due to some unavoidable administrative problems, the transfer in general had been made in the entire State of U.P. in the first week of July, 1996. Thus, the aforesaid contention of the learned Counsel for the Appellant has no merit.

It has further been argued on behalf of the Appellant that the transfer order dated 2.7.96 ought to have been quashed by the learned single Judge, being contrary to the terms of the transfer policy issued by the State Government. Learned Counsel for the Appellant has placed reliance upon the judgment of the Division Bench of this Court in Smt. Deepa Vashistha v. State of U.P. and Anr. 1996 (1) UPLBEC 54, wherein it has been held that the guidelines, communications and instructions issued in respect of the transfer should be followed. It has further been held that if any transfer order is made against such guidelines and instructions, etc. reasons must be given for non-compliance of such guidelines.

This Court has examined the scope of interference with the transfer order in detail in Rajdeo Singh v. Chief Engineer, U.P. Jai Nigam 1966 (2) UPLBEC 797 and held that it was entirely upto the employer to decide when, where and at what point of time a public servant is to be transferred from his present posting. It has also been held that the Court cannot interfere with the transfer order unless it is passed in violation of statutory rules or on the ground of mala fide. This has been the consistent view of the Apex Court and reliance can safely be placed on various judgments of the Supreme Court, i.e., in Union of India and Others Vs. S.L. Abbas, ; Mrs. Shilpi Bose and others Vs. State of Bihar and others, ; State of Orissa and another Vs. Radheshyam Nanda, ; Chief General Manager (Telecom), N.E. Telecom Circle and another Vs. Rajendra Ch. Bhattacharjee and others, ; State of U.P. v. Dr. V.N. Prasad 1995 Suppl. (2) SCC 151; Union of India and Ors. v. Ganesh Das Singh 1995 Suppl (3) SCC 214 ; N.K. Singh Vs. Union of India and others, and Abani Kanta Ray v. State of Orissa 1995 SuppL (4) SCC 169.

In Union of India v. S.L. Abbas (supra) the Apex Court had observed that the Government instructions in transfer are mere guidelines without statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the transfer order is passed mala fide or where it is made in violation of the statutory provisions.

Similarly the Supreme Court in Bank of India Vs. Jagjit Singh Mehta, , has observed as under:

There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other''s posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incident of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places...No doubt the guidelines requires the two spouses to be posted at one place as far as practicable but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.

In Shilpt Bose (supra) the Apex Court has categorically held that writ court or tribunal cannot interfere with the transfer order even if it has been made in violation of the executive instructions/orders as "transfer orders issued by the competent authority do not violate any of his legal rights" and the Government servant holding the transferable post cannot claim any vested right to remain posted at a particular place. (Emphasis added).

A Division Bench of this Court in Smt. Rampati Jaiswal v. State of U.P. and Ors. 1996 (2) JCLR 96 (All) has held as under:

It is well-settled law that writ under Article 226 of the Constitution is maintainable for enforcing the statutory right or when there is a complaint by the Petitioner that there is a breach of statutory duty on the part of the Respondent. Therefore, there must be Judicially enforceable right for the enforcement of which the writ Jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ Jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ Jurisdiction. State of Kerala and Others Vs. K.G. Madhavan Pillai and Others, ; State of Kerala Vs. Smt. A. Lakshmikutty and others, ; Mani Subrat Jain and Others Vs. State of Haryana and Others, and The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, .

The judgments of the Apex Court particularly, in the cases of Shilpi Bose, Bank of India and S. J. Abbas (supra) had not been brought to the notice of the Division Bench of this Court while deciding the case of Deepa Vashisth (supra) and thus, the said judgment of this Court remains per incuriam. In State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, , the Apex Court has explained the consent of per incuriam as under:

Incuria ''literally means'' carelessness''. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decists. The ''quotable in law'' is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority''. Young v. Bristol Aeroplane Co. Ltd. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, this Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury''s Laws of England incorporating one of the exceptions when the decision of an appellate court is not binding.

Similar view had earlier been taken by the Constitution Bench of the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, . Thus, Article 141, undoubtedly, embodies as a rule of law, doctrine of precedents.

Moreover, the judgment of the Apex Court in Home Secretary, U.T., Chandigarh v. Darshijit Singh Grewal and Ors. JT 1993 (3) SC 387, which had been relied upon by the Division Bench of this Court in Deepa Vashisth (supra) had been delivered in a case of migration of a student from one institution to another and was not a case of transfer of a Government servant holding transferable post. Moreover, in that case the policy of migration was read with statutory provisions of the Punjab University Act, 1947 and the rules and regulations framed thereunder. Thus, the context in which the judgment of the Supreme Court was delivered in Home Secretary, U. T. Chandigarh (supra) was entirely different and could not have been a basis by this Court for interfering with the transfer order of the Government servant.

In Nand Kishore Vs. State of Punjab, , the Supreme Court has explained the scope of Article 141 of the Constitution of India and has issued directions to all courts, tribunals and authorities to follow the law laid down by the Supreme Court as being the statutory provisions enacted by the competent Legislature.

However, in the case of State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others, , it has been held by the Apex Court that it is not permissible for the writ court or tribunal to go into the relative hardship of an employee which may be caused by his transfer. It is for the administration/employer to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration.

A Division Bench of this Court in S.C. Duggal v. Departmental of Personnel 1996 (1) HVD 84, has held that against transfer order an employee has a right to make a representation to the employer and being in mind that the administrative exigencies are supreme, the employer has to decide the representation. However, it is not open to the employer to brush aside the grievances of the employee being personal in nature.

Thus, in view of the above, the Appellant could have moved a representation against the said transfer order to his employer expeditiously. If the representation is made at a belated stage, it may cause problem to the employer as transfer order may have a chain reaction as it may also affect other person. If the other person Joins the place of posting then it becomes difficult for the employer to mitigate the grievances of the employee who makes the representation at a belated stage.

A Full Bench of this Court in Director, R.K.U.M.P., Lucknow v. Natthi Lal 1995 UPLBEC 1128, has held that a transfer order once passed and "acted upon" can be modified, revoked and cancelled as there is no bar or restriction to pass such a modified order, but it would definitely create inconvenience to the incumbent as well as for the State to adjust the employee whose transfer order is cancelled after considering his representation after the same had been acted upon and implemented.

In the instant case the transfer order was passed on 2.7.96 and the Appellant made the representation on 6.9.96, a copy of which is Annexure 6 to the special appeal. This Court is not inclined to direct the Respondents to decide the said representation after the lapse of more than three and a half months from the date of transfer.

Thus, in view of the above, we find no force in the submission of the learned Counsel for the Appellant. This special appeal is devoid of any merit and is accordingly dismissed. However, there shall be no order as to costs.