Smt. Vandana Saxena vs State of M.P.

Sujoy Paul, Judge

Petitioner is aggrieved by the transfer order dated 10/07/2012, whereby she is transferred from Karera to Pichhore and in lieu thereof, Smt. Saroj Verma has been brought from Pichhore to her place on her own request. It is challenged on the following grounds:

1) It is to accommodate the private respondent herein and not in administrative exigency.

2) The transfer is malafide because it is passed at the instance of respondent No.4.

3) Petitioner''s son had undergone operation at Lucknow, yet another operation is to be done shortly and while remained posted at Pichhore, Lucknow is difficult to be approached.

4) Petitioner''s mother-in-law is also suffering from chronic disease of heart and undergoing medical treatment by heart specialists.

So far the ground of malice is concerned, although petitioner has impleaded respondent No. 4 as party respondent, there is no documentary evidence to connect the transfer order with the alleged act of respondent No. 4. In absence of even prima-facie material to connect the transfer order with the alleged malafide of respondent No. 4, I find that no case of malice is made out.

2 The Apex Court in Shilpi Bose (Mrs) and others Vs. State of Bihar and others [1991 Supp (2) SCC 659] held as under:

3... We fail to appreciate the reasoning recorded by the High Court. If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because the transfer orders were passed on the request of the employees concerned...

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 holing 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.

(Emphasis Supplied)

A bare perusal of the judgment shows that merely because one employee is brought on her own request and in lieu thereof another is shifted will not mean that it is the act of accommodation or it is capricious exercise of power. Petitioner is already posted at Karera for more than five years.

So far personal inconvenience etc. is concerned, the petitioner is not getting treatment at Karera, but was getting treatment at Jhansi. This facility can be availed while remained posted at Pichhore also. The distance may be little more or less, but personal inconvenience is not a ground to interfere with the transfer order.

This is settled in law that transfer order can be interfered with only if it runs contrary to the statutory provision, proved to be a malafide one, changes service conditions of an employee to his detriment or issued by an incompetent authority. Mere violation of transfer policy, will not render transfer order as illegal. The Division Bench of this Court reported in ILR (2007) M.P 1329 [R.S. Choudhary Vs. State of M.P] held as under:-

In view of the aforesaid pronunciation of law by the Apex Court in several cases, which we have referred hereinabove, we are of the considered opinion that the transfer policy formulated by the State is not enforceable as the employee does have a right and the Courts have limited jurisdiction to interfere in the order of transfer. The Court can interfere if there is violation of mandatory statutory rule or if the action of the Government is capricious, malicious, cavalier and fanciful. What would constitute these components that would depend on facts of each case as the same can be neither illustratively or exhaustively stated. In fact, that is not warrantable to be stated. We proceed to hold that in case an order of transfer is assailed on the ground that there has been violation of the policy, the proper remedy is to approach the authorities by pointing out the violation and it is expected of the authorities to deal with the same keeping in mind the policy guidelines with utmost objectivity.

(Emphasis supplied)

In the totality of the aforesaid circumstances and reasons mentioned above, I find no reason to interfere in the matter. Petition is not entertained. However, liberty is reserved to the petitioner to pursue her departmental representation. Petition stands disposed of.