Shri Rajendra Singh Bisht vs Khadi and Village Industries Commission 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 order dated 12.10.2000/03.11.2000 (annexure-1 to the writ petition) whereby the petitioner has been given promotion to the post Supervisor-II (B.K.) and transferred to Z.B.E.C., Bassi Pathana, Punjab.

The learned Counsel for the petitioner has challenged the said transfer order on the ground that this transfer order is illegal, violative to the guidelines of the transfer policy & against the rules; the transfer has been made by the respondent on the ground of malafide and colourable exercise to harass the petitioner; the transfer order is violative to the provisions of the Constitution of India enshrined under Article 14 and 16 of the Constitution of India; and the petitioner''s wife is ill and if the petitioner is stayed at the place of posting, he is ready to forgo his promotion on the ground of illness of his wife.

Learned Counsel for the respondent refuted the contention and contended that the petitioner has alleged that the transfer has been made in violation of the transfer policy issued by the Commission in the year 1993 (Annexure-13 to the counter affidavit); it is provided in the said policy in clause-16 that the staff of the commission either by promotion or by selection should normally be transferred from one place to other; the petitioner was appointed as Supervisor Grade-III at Rani Pokhari and there was no work for the petitioner as Field Observation Station Rani Pokhari has been shifted since long back about 7-8 years back; there is no statutory rules for regulating the transfer of the petitioner or the employee of the Commission; the details of the malafide has not been given in the petition by the petitioner; mere vague averments of malafide is not sufficient unless the details of it had not been given in the writ petition; the party against whom malafide has been alleged must have been arrayed as party by the petitioner; the fact that the petitioner has been promoted vide annexure-1 to the writ petition and he had been transferred vide annexure-12 to Bassi Pathana, Punjab.

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

It is well settled position of law that the transfer is merely incidence of service and it is not a punishment. If an employee has joined the services, he will have to move from one place to other in the public interest. The transfer policy or the guidelines is not enforceable in the court of law. The transfer policy which is not supported by any rules, the said transfer policy has no statutory force and as such, it does not confer any right to the petitioner to execute the same. The illness of the children, wife and education of the children cannot be considered by the court to stay the transfer at one place to another. It can only be seen by the authorities concerned of the department. It is for the department to post a person from one place to another according to the exigencies of the services. The transfer order can only be interfered by the court when it is against the statutory provisions of law or it has been actuated by the malice. The petitioner could not demonstrate that the transfer has been made in violation of any statutory rule. The petitioner is merely stating that the transfer order has been made on malice but malice has been vaguely alleged by the petitioner and no particular facts has been alleged against the respondents. It is also not mentioned who got illwill against the petitioner. It has neither been disclosed in the affidavit nor in the pleadings who were the officers who were trying to malign the petitioner. The petitioner could not demonstrate me any illwill or malafide, as such, the ground taken by the petitioner is not maintainable.

The Hon''ble Apex Court in the case of Major General J.K. Bansal Vs. Union of India (UOI) and Others, has held in paras 9, 10 and 11 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:

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.

In Union of India and Others Vs. S.L. Abbas, , the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in a Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under:

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.

I am fortified by the view taken by the Hon''ble Apex Court in the cases cited above. Annexure-2 and 3 to the writ petition were also referred by the learned Counsel for the petitioner. It is contended that the petitioner is even to forgo his promotion if he is posted at Rani Pokhari where he belonged. It was pointed out that the Commission has recommended his case for being posted at Dehradun. It is also pertinent to mention here that the petitioner is holding a charge at Rani Pokhari for a long time since before 07/09/2001 by the interim order passed by this Court. Nine years has elapsed so far and he is enjoying the fruits of the interim order of this Court. It would be just and proper to direct the authorities concerned that if the petitioner moves any representation within seven days from today for forgoing his promotion, that would be considered within ten days thereafter so that the transfer order may be made effective. If the authorities concerned feel so, they may consider it. But this is not a case where the court should interfere in the matter.

The respondents are directed that if the petitioner moves any representation within seven days from today to forgo his promotion, the department may consider his request and pass the necessary order within ten days. It is further clarified that the respondents would be at liberty to decide the representation of the petitioner according to his own discretion.

In view of the above, I do not find any ground to interfere with the transfer order passed by the respondents. The writ petition is disposed of accordingly. No order as to costs. Interim order dated 07/09/2001 is hereby vacated.