Munshi Ram Dogra vs State of J&K and others

With the consent of learned counsel for the parties, this petition is taken up for final disposal.

The order of transfer annexure ""A"" contains the name of the petitioner and other persons, who have been transferred to different places. This

order pertains to about 70 persons. The petitioner challenges this order on the ground that in winter season, he cannot be transferred. According to

him, he can be transferred only in terms of the criteria indicated in Annexure ""C"". This criteria is as under:

District Development Commissioners, Leh and Kargil will furnish lists of employees due for transfer from Ladakh by 31st December to Ladakh

Affairs Department. These lists will be forwarded by Ladakh Affairs Department to the Administrative Departments concerned upto 15th February

and notices to their substitutes shall be issued by Administrative Deptts in February every year. Their lists will be sent to Ladakh Affairs

Department shall constitute two Central Medical Boards separately for Kashmir and Jammu Divisions and in such case any eligible employees

pleads illness, such employee or his/her Spouse/ children be got examined through Ladakh Affairs Department by the concerned Medical Board

upto 15th April so that lists of transfer to Ladakh and finalised by or before 30th April by the concerned Deotts and posting orders are issued

latest by end of April every year.

The date wherefrom the tenure of posting in Ladakh will reckon shall continue to remain as 30th of June by or before which Govt. employees

transferred to Ladakh must report over there"".

It has been consistently observed that the transfer in a Government service is an ordinary concomitant and incident of service, an employee who

is appointed in a particular cadre of transferable posts his transfer form one place to another is an ordinary incident of service and it does not result

in alteration of any conditions of service to his disadvantage. The transfer is a normal feature in service and no one has a right to remain at a

particular post or for a particular period. The norms or the policy is for the guidance of the officers authorised to effect and regulate the transfer.

Immunity against transfers would amount to gagging the right of the administration to administer and right of the employers to get work at the time

and place of his choice and according to the administrative exigencies of the employer which he wants to meet. The above observation find support

from a decision of Supreme Court of India reported as R.Varadha Rao Vs. State of Karnataka and others (1986) 4 SCC 131.

Again in Bank of India Vs. Jagjit Singh Mehta 1992(1) SCT161 (SQ: (1992) 1 SCC 306, it was observed:

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 the preference may be taken into account while making the decision in accordance with the

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 service 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 requirement 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 an 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 incidents of all India

service and avoid transfer to a different place on the ground that the spouses thereby4vould be posted at different places. No doubt the guidelines

require the two spouses to be posted at one pace 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 detriment to the

administrative needs and the claim of other employees.

This view was again followed in Union of India Vs. S.L.Abhas (1993) 4 SCC 357 and it was observed that Courts are not to interfere unless

and until the order of transfer is vitiated by malafide consideration.

It is true that transfer causes lot of difficulties and dislocation in the family set up of the concerned employees, but this cannot be made a ground

to interfere with an order of transfer. Interference can be made only if it shown that the order of transfer has been made for an oblique purposes or

for wrecking vengeance against employee. Rajinder Roa Vs. Union of India JT (1992) 6 sc732.

A transfer which is an incidence of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by

malafide or in fraction or any professed norm or principle governing the transfer Shri Abani Kanta Ray Vs. State of Orissa (1995) 7 JT 167. In this

regard reference may also be made to another decision of reported as N.K.Singh Vs. Union of India (1994) 6 SCC 98, wherein similar

observations were made.

The question of hardship is something to which administrative authorities are to address themselves. It is for them o mitigate hardship in interest

of good and efficient administration. The Courts are, however, not expected to interdict the working of administrative system by transfer of officers

to proper places. State of M.P.V.S.S.Kourav JT (1995) 2 SC 198.

However, where an order of transfer is passed by an authority not competent to pass the same then it may be possible for the court to interfere.

Thus in the case of Dr. Ramesh Chander Tyagi Vs. Union of India JT (1994) 1 SC 530 where the order of transfer was made by an authority who

was not competent to do so then that order was treated as nonest. As a matter of fact even the second order of transfer which was founded on an

earlier order was held to be bad by observing, since the order was invalid it obviously did not exist in the eye of law and the second1 order of

transfer founded on it could not stand.

Another exception can be, where the order is vitiated by malafide consideration. As a matter of fact any administrative act which is actuated by

malafide consideration cannot be permitted to stand. However, any body who seeks to invalidate or nullify any act or order must establish the

charge of bad faith, an abuse or misuse of powers while the indirect motive or purpose or bad faith or personal ill will is not to be held established

except on clear proof thereof. It is obviously difficult to establish that a person in position or power apparently acting in the legitimate exercise of

power has infact acted malafide in the sense of perusing an illegitimate aim. However, a person against whom allegations of malafide are made is to

be a party to the proceeding. Partap Singh Vs. State of Punjab AIR 1964 Pb. 72.

Reference be made to another decision of the Supreme Court of India in case reported as Director of School Education, Madras versus

O.Karuppa Thevan (SC) 1996 402. In the above case, it was observed:

Although there is no such rule, we are of the view that effecting transfer the fact that the children of an employee are studying should be given due

weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such

urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while

setting aside the impugned order of the tribunal, direct that the appellant should not effect the transfer till the end of the current academic year.

From the decisions noticed above, it becomes apparent:

(i) Transfer is a normal feature of service and no one has right to remain at a particular post or for a particular period.

(ii) Immunity against the transfer would amount to gagging the right of employee.

(iii) If there is some policy decision then the attention of the authorities can be drawn to the policy decisions, but no writ can be issued with a view

to compel the employer to keep a particular place.

(iv) That the order of the transfer would be bad if it is made by an authority who is not competent to pass the order.

(v) The order of the transfer would again be bad, if it is actuated by malafide consideration.

In the decisions referred to above, even where there was policy decision to accommodate husband and wife at one place and even though there

were other guidelines indicated in other cases, yet the Supreme Court of India left the matter to be dealt with on the administrative side by the State

authorities. Observations made in the above case are to the effect that in transfer matters there has to be least interference by the courts on the

Judicial side.

As such, this petition is disposed of with a direction that the respondentState would take notice of its policy decision, copy whereof is

Annexure ""C"" to this writ petition. If it is possible to adjust the petitioner, steps may be taken by the respondents. If it is not possible to do so, it

may take such action as is permissible under the law. Let 'appropriate decision be taken as early as possible. The operation of the order of transfer

shall remain in abeyance, till the respondents take a decision. This is, however, subject to the condition that the order passed by this Court today

alongwith a copy of the writ petition and annexures thereof are made available by the petitioner to the respondents/Administrative Department of

the petitioner within a period of ten days. In case this is not done then the interim directions contained in this order shall stand vacated

automatically.