Roop Chand vs State of Uttarakhand and Others

J.C.S. Rawat, J.—This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the impugned transfer order dated 18.08.2009 (Annexure-3 to the writ petition) passed by the Chief Medical Officer, Pauri Garhwal, District Pauri Garhwal/respondent No. 2, by which the petitioner has been transferred from Additional Primary Health Centre, Jhandichaur to Primary Health Centre, Rikhanikhal.

The said transfer order has been challenged on the grounds that (i) the petitioner is at the verge of his retirement as he will be superannuated on 10.01.2010 after about four months and the State Govt. has framed a transfer policy that an employee who is at the verge of retirement he should not be transferred; and (ii) the petitioner has been transferred in order to accommodate one Chanderpal.

I have heard learned Counsel for the parties and perused the record.

It is a well settled position of law that 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 should not interfere with the order instead affected party should approach the higher authorities in the department. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. Transfer of an employee is only an incident of the service and it is not a punishment.

The Hon�ble Apex Court in the case of Major General J.K. Bansal Vs. Union of India (UOI) and Others, held that the scope of interference by the court with regard to the transfer is very limited and narrow. It is for the higher authorities to decide when and where an official should be posted. The courts should be extremely slow in interfering with an order of transfer and unless an exceptionally strong case is made out, no interference should be made. In the case in hand, there is no violation of any mandatory statutory rule and there was no malice. Even if the government has issued certain executive directions/guidelines, that does not create any legal enforceable right to the petitioner. The petitioner has been working at the present place of posting for the last nine years and generally an employee remains posted at one place for about 3 to 5 years. Thus, the transfer of the petitioner was due. The Hon�ble Supreme Court has further held in Major General J.K. Bansal (supra) which reads as under:

In Mrs. Shilpi Bose and others Vs. State of Bihar and others, , the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under: (SSC p/661, para 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 malafide. 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 Union of India and Others Vs. S.L. Abbas, , the respondent was working at Shillong in the office of the Botanical Survey of India and hiw was was also working there in a Central Government Office. He was transferred from Shillong to Pauri, Uttaranchal. He challenged the transfer order before the Central Administrative Tribunal on the medical ground and also on the ground of violation of the guidelines contained in the Government of India. The Central Administrative Tribunal allowed the petition and quashed the transfer order. However, the Apex Court allowed the appeal and set aside the order of the Central Administrative Tribunal and observed as under (SSC p/359, para 7):

Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.

Similar view has been taken in National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, , wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another 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 malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management.

It is apparent from perusal of aforesaid judgments that unless the order of transfer is vitiated by malafide or is made in violation of any statutory provisions, the Court order is vitiated by malafide or is made in violation of the statutory provisions. No malice has been stated against any officer or officials. So far as the ground that the petitioner has been transferred only to accommodate one Chandrapal is concerned, the said person has not been made party in this petition. Who should be transferred where, is a matter for the employer to decide.

In view of the above, I do not find any ground for interference in the impugned transfer order. The writ petition is liable to be dismissed and is hereby dismissed summarily. No order as to costs.