Rajendra Pal vs State of Uttar Pradesh

Anil Kumar, J.—Shri Surendra Pratap Singh, learned counsel for the petitioner, learned Standing Counsel for the opposite party Nos. 1 to 3, Shri Ajay Kumar, learned counsel for the opposite party No. 4 and perused the record.

By means of the present writ petitioner, the petitioner has challenged the impugned order of transfer dated 19.06.2015 passed by opposite party No. 3.

Shri Surendra Pratap Singh, learned counsel for the petitioner while challenging the impugned orders submits that the same is in violation of the transfer policy as contained in Annexure No. 3 to the writ petition because the petitioner is a 40% physically handicapped and he is unable to go on long journey and doctor has also issued a certificate for disability. So, transfer order is against the transfer policy dated 09.04.2015, liable to be set aside.

Learned Standing Counsel while supporting the impugned order submits that the same is in accordance with the transfer policy. If the petitioner is any grievance that the impugned order of transfer is in contravention to the transfer policy, then in that circumstances, the same will be considered by the competent authority as per law laid down by Hon''ble the Apex Court in the case of S.C. Saxena v. Union of India (2006) 9 SCC 583 .

After hearing learned counsel for the parties and going through the record, the sole question for determination is as to whether the transfer policy/guideline confers any right upon the petitioner to continue at a particular place of posting.

As regards the law, in the matter of transfer of Government Servants/servants of the statutory body is well settled to require any reiteration as held by Hon''ble the Supreme Court in the case of Shanti Kumari Vs. Regional Deputy Director, Health Services, Patna Division, Patna and Others, AIR 1981 SC 1577 : (1981) 43 FLR 263 : (1981) 2 LLJ 312 : (1981) 2 SCC 72 : (1981) 2 SLJ 435 , relevant portion quoted as under :

"2........ Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The Courts cannot interfere in such matters...... "

In Mrs. Shilpi Bose and others Vs. State of Bihar and others, AIR 1991 SC 532 : (1991) LabIC 360 : (1991) 2 LLJ 591 : (1991) 2 SCC 659 Supp , the Supreme Court set aside the judgment of Patna High Court and held as follows:

"4. 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-to-day 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 the case of N.K. Singh Vs. Union of India and others, AIR 1995 SC 423 : (1994) 5 JT 298 : (1995) 1 LLJ 854 : (1994) 3 SCALE 845 : (1994) 6 SCC 98 : (1994) 2 SCR 772 Supp : (1994) 3 SLJ 37 the Supreme Court held as follows:--

"24....Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised."

In State of U.P. and Others Vs. Gobardhan Lal, AIR 2004 SC 2165 : (2004) 101 FLR 586 : (2004) 5 JT 454 : (2004) 3 LLJ 749 : (2004) 3 SCALE 574 : (2004) 11 SCC 402 : (2005) SCC(L&S) 55 : (2004) 1 SCR 337 : (2004) 3 SLJ 244 : (2004) AIRSCW 4571 : (2004) AIRSCW 2082 : (2004) 3 Supreme 92 : (2004) 6 Supreme 161 , the Supreme Court held as under:--

"It is too late in the day for any Government 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 Court has often reiterated that 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."

Thus, the executive/administrative instructions have got no force of law, but the State Government could not at its own sweet will depart from it without rational justification, thus the Government is bound by executive orders/policies, the guidelines are made to be followed and not to breach it without any justifiable reasons and the transfer matter breach of guidelines/policies did not confer upon the employees any legally enforceable right to challenge the same, as such, the argument raised by learned counsel for the petitioner that the impugned order of transfer is against the guide lines/policy laid down by the competent authority, has got no force.

So faras the argument raised by learned counsel for the petitioner in respect of his personal grievance while challenging the impugned order of transfer in this regard, Hon''ble the Apex Court in the case of Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, AIR 1989 SC 1433 : (1989) 59 FLR 474 : (1989) 3 JT 20 : (1989) 2 LLJ 470 : (1989) 1 SCALE 907 : (1989) 1 SCALE 1483 : (1989) 2 SCC 602 : (1989) 2 SCR 357 : (1989) 3 SLJ 68 : (1989) 2 UJ 222 held as under:--

"whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order.......... "

And in the case of S.C. Saxena (supra), Hon''ble the Supreme Court observed as under:--

"In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems."

Thus, the Court will not interfere with the impugned order of transfer on the personal grounds of the petitioner as the remedy of him is to approach the competent authority by making representation after joining the place of posting because the transfer policy cannot be enforced as a statute nor does it confer any right/disability upon the employee transferred, it is merely guideline to be followed by the State authorities and the employer is the best judge regarding posting of its employees, Court cannot substitute the decision of the employer.

In view of the law and reasons stated herein above, it is directed that the petitioner to join at his transfer place and after joining the same, he shall make a fresh representation to opposite party No. 2/Director of Basic Education, U.P., Allahabad within a period of two weeks from the date of receiving certified copy of this order for redressal of his grievances which he has raised in the present writ petition annexing all the relevant documents and materials in support of his case and after receiving the same opposite party No. 2 shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of four weeks thereafter.

With the above observations, writ petition is dismissed.