Santosh Yadav vs State of Rajasthan and Others

M.N. Bhandari, J.—1. By this petition, a challenge is made to the orders dated 20th October, 2015, 18th December, 2015, 21st December, 2015 and lastly the order dated 22nd December, 2015, by which the petitioner was transferred from one place to another.

Learned counsel submits that petitioner was given promotion and posting at Pratapsinghpura, Neemrana, Alwar vide order dated 17th December, 2014. She was relieved but thereupon on her request, she was transferred to Jaguwaas, Behror, Alwar by the order dated 22nd June, 2015. The petitioner was relieved and joined the post on 26th June, 2015. The respondents thereupon issued another order on 20th October, 2015 to make amendment in the earlier order of posting of those employees who were found surplus. The petitioner was made to suffer. She was transferred from Jaguwaas, Behror, Alwar to Karoda, Behror, Alwar. The order aforesaid was passed in ignorance of circular issued by the Government on 18th December, 2015. As per the circular, as and when two employees are working against one post, the senior-most has to be relieved. The circular further provides that if interim order has been passed in a judicial proceeding, the order be carried by relieving other person. The petitioner herein preferred an appeal before the Rajasthan Civil Services Appellate Tribunal and interim order was passed in her favour. In ignorance of the aforesaid circular, the order of transfer was passed. Thus impugned orders being in violation of circular, it deserve to be quashed.

The petitioner initially approached the Tribunal. However, appeal preferred before the Tribunal was disposed of without causing interference in the impugned order but with the direction for payment of TA and DA. The order passed by the Tribunal is in ignorance of the circular issued by the Government and violation thereof thus this court may interfere in the impugned orders.

I have considered the submission made by learned counsel for petitioner and perused the record.

A challenge is made to the orders of transfer as well as order passed by the Tribunal where interference in the transfer order dated 20th October, 2015 was not made but a direction was given for payment of TA and DA. The challenge to the orders of transfer is precisely on the ground of violation of circular dated 18th December, 2015. The petitioner claims availability of person having longer stay at Jaguwaas, Behror, Alwar but instead of transferring the persons having longer stay, petitioner has been relieved.

The question is as to whether claim can be made in reference to the order, guidelines or Policy for the transfer. The issue aforesaid has already been decided by the Supreme Court holding that violation of the order, scheme or the guidelines cannot be a ground to interfere in the order of transfer. It is in the case of Mrs. Shilpi Bose & Ors. Vs. State of Bihar & Ors., reported in , AIR 1991 SC 532. The relevant Para 4 of the aforesaid judgment is quoted hereunder for ready reference:

"4. In our opinion, the Courts should not interfere with a transfer Order which are 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 over looked these aspects in interfering with the transfer Orders."

The relevant Paras 7 and 8 of the judgment of Apex Court in the case of State of U.P. & Ors. Vs. Gobardhan Lal, reported in , (2004) 11 SCC 402 are quoted thus:

"7. 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. This 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.

A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."

The relevant Para 7 of the judgment of Apex Court in the case of Rajendra Roy Vs. Union of India (UOI) & Anr., reported in , (1993) 1 SCC 148 is quoted hereunder for ready reference:

"7. After considering the respective contentions of the parties, it appears to us that the appellant has not been able to substantiate that the impugned order of transfer was passed mala fide against him for an oblique purpose and/or for wrecking vengeance against him because the respondent No. 2 was anxious to get rid of him and he seized the opportunity of transferring him from Delhi to Calcutta by transferring Shri Patra back to Orissa from Calcutta. It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents is passing the impugned order of transfer. It does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed mala fide by seizing an opportunity to transfer Shri Patra to Orissa from Calcutta. It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. In this case, we are unable to draw any inference of mala fide action in transferring the appellant from the facts pleaded before the Tribunal. It appears that Shri Patra was transferred to Calcutta and after joining the post he had made representation on account of personal hardship. Such representation was considered and a decision was taken to transfer him back to Orissa region. As a result, a necessity arose to transfer an employee to Calcutta to replace Shri Patra. It cannot be reasonably contended by the appellant that he should have been spared and some one else would have been transferred. The appellant has not made any representation about the personal hardship to the department. As such there was no occasion for the department to consider such representation. This appeal, therefore, fails and is dismissed but we make no order as to costs. It is, however, made clear that the appellant will be free to make representation to the concerned department about personal hardship, if any, being suffered by the appellant in view of the impugned order. It is reasonably expected that if such representation is made, the same should be considered by the department as expeditiously as practicable."

The Apex Court has allowed interference in the order of transfer when it suffers from mala fide or violation of the statutory provisions. The case in hand does not raise any of the aforesaid ground for challenge to the order of transfer. The transfer of petitioner is not to a far away place as it is within Tehsil Behror, Alwar and is from one village to another. The transfer of the petitioner to Karoda, Tehsil Behror, District Alwar is not only on the administration ground but not to a far of place. Finding availability of person on the post possessed by the petitioner, the impugned order was passed transferring the petitioner to Karoda, Tehsil Behror, Alwar.

In view of the discussion made above, I do not find any reason to cause interference in the impugned orders. The writ petition is accordingly dismissed. The stay application is also dismissed.