Ravi Singh Chouhan urf Babusingh vs Smt. Leela Bai

This petition filed under Article 226 of the Constitution takes exception to the order dated 09.09.2016 (Annexure P/1), 21.09.2016 (Annexure P/2) and the basic transfer order dated 27.5.2016 (Annexure P/5).

The core issue canvassed by learned counsel for the petitioner is that the petitioner is transferred from Rewa to Shivpuri. The sole reason for transfer of petitioner is based on certain complaints. It is submitted that such transfer amounts to taking coercive action against the petitioner. It is submitted that in W.A.No.253/15, the Division Bench directed that till next date of hearing, no coercive action shall be taken against the petitioner pursuant to order dated 5.4.2008. Thus, it is submitted that the transfer was totally impermissible.

Prayer is opposed by learned counsel for the respondents. He supported the rejection order dated 9.9.2016.

No other point is pressed by learned counsel for the parties.

I have heard learned counsel for the parties at length and perused the record.

It is seen that Avdesh Pratap Singh University, Rewa, by notification dated 5.4.2008, cancelled the candidature of the petitioner for certain years of graduation and post graduation. Petitioner is further deprived to participate in further examination. In that respect, after dismissal of writ petition, writ appeal was filed by petitioner in which it was directed that no coercive action be taken against the petitioner.

In view of serious complaints received against the petitioner, he was transferred to Shivpuri. The question needs to be decided is whether petitioner has got any protection in relation to transfer pursuant to the said order passed in WA No.253/15. The ancillary question is whether petitioner can be transferred on the basis of complaints.

In the considered opinion of this court, the transfer order can be interfered with if it is passed by an incompetent authority, proved to be malafide, changes the service conditions of an employee to his detriment or violates any statutory provision.

In Union of India and others Vs. Janardhan Debanath and another- (2004) 4 SCC 245, the Apex Court held as under :- The manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration....

(Emphasis supplied)

The impugned order does not have any adverse impact on the petitioner in terms of change of his status or in terms of his pay and service conditions.

In State of U.P and another Vs.Siya Ram and another-(2004) 7 SCC 405, the Apex Court opined as under :- 5. The High Court.......No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice 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 or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr. (2001 (8) SCC 574.

In Registrar General, High Court of Judicature of Madras-(2011) 12 SCC 137, the Apex Court followed the principles laid down in aforesaid two cases.

Merely because the petitioner is transferred on the basis of some complaints, it cannot be said that he is subjected to any ???coercive action???. It cannot be forgotten that transfer is an incidence of service. An employee holding transferable post, can always be transferred by the competent authority in administrative exigency/ public interest. Such incidence of service, by no stretch of imagination can amount to ???coercive action???. The word ???coercive??? arises from the word ???coerce???. As per Words And Phrases, Permanent Edition-7A, Clemency-Commodore (West Publishing Co.), the word ???coerce??? means to restrain by force, to repress. The word ???coerce??? had at first only the negative sense of checking or restraining by force, as to coerce a bad man by punishment or a prisoner with fetters. The transfer of an employee cannot be said to be a ???coercive??? step by the employer.

For the purpose of analogy, the reference can be made to an order of Rajasthan High Court in the case of Harkesh Meena Vs. State of Rajasthan (Cr.Misc.Appeal No.452/11 decided on 22.12.2011. In the said case, in another round of litigation, the court directed that ???No coercive step shall be taken against the petitioner???. The petitioner allegedly committed a cognizable offence. The earlier order is cited to contend that he cannot be arrested because it amounts to taking ???coercive step???. The court clarified that ???No coercive step shall be taken against the petitioner does not mean that effecting arrest of an accused in any cognizable offence does not amount to coercive step???. In the light of aforesaid, I am unable to hold that transfer order is bad in law. Hence order passed in writ appeal does not deprive the department to transfer the petitioner in administrative exigency/ public interest. The impugned transfer order, by no stretch of imagination, can be said to be punitive in nature. There is no reason on the strength of which transfer order can be interfered with. 13. Petition fails and is hereby dismissed.