Vinod Kumar Dixit vs The State of M.P. and Another

Shri Gangele, J.—The appellant has filed this Writ Appeal against the order dated 24-11-2011, passed by the learned Single Judge in W.P.No.6153/2011.

The respondent No.2 was initially appointed as Nakedar (Moharrir). Thereafter he was promoted to the post of Revenue Sub Inspector vide order dated 12-8-1994. He was made in-charge Chief Municipal Officer and posted as Chief Municipal Officer, Municipal Council, Pichhore, District Gwalior vide order dated 20-11-2007. Thereafter he was transferred from Municipal Council Akoda, District Bhind as In-charge Chief Municipal Officer to Municipal Council, Indargarh, District Datia vide order dated 30-7-2011.

The appellant vide order dated 7-9-2011 (Annexure-P/1 filed along with Writ Petition) was transferred from Municipal Council, Kumbhraj, District Guna as Incharge Chief Municipal Officer to Municipal Council Indargarh, District Datia and the respondent No.2, who had been working as In-charge Chief Municipal Officer, was transferred to Municipal Council Kumbhraj, District Guna in place of the appellant.

The respondent No.2 challenged the order of transfer before the writ court on the ground that the order of transfer was issued to accommodate the appellant and he was subjected to frequent transfers.

Learned Single Judge vide impugned order quashed the transfer order on the ground that the respondent No.2 was subjected to frequent transfers and there was no administrative exigency to transfer him.

The learned counsel for the appellant contended that the order of transfer of the respondent No.2 was passed on administrative exigency and it was not malafide or in violation of any statutory rule, hence, the learned Single Judge has committed an error of law in quashing the order of transfer. In support of his contentions, learned counsel for the appellant has relied on the following judgments :

i) State of U.P. and Others Vs. Gobardhan Lal, ;

ii) Rajendra Singh Vs. State of U.P. and Others, ; and

iii) State of Haryana and Others Vs. Kashmir Singh and Another etc. etc., .

Contrary to this, learned counsel for the respondent No.2 has contended that within a short period the respondent No.2 was transferred and the order of transfer was passed to accommodate the appellant, hence, learned Single Judge has rightly quashed the order of transfer. In support of his contentions, learned counsel for the respondent No.2 has relied on the following judgment :

i) Rajesh Kumar Shakya Vs. State of M. P. and Another, .

Learned Single Judge quashed the order of transfer on the ground that the respondent No.2 was subjected to frequent transfers because he was transferred vide order dated 20-11-2007 from Municipal Council Mehgaon, District Bhind to Municipal Council Pichhore, District Gwalior; from Municipal Council Pichhore, District Gwalior to Municipal Council Akoda District Bhind and again vide order dated 30-7-2011 from Municipal Council Akoda, District Bhind to Municipal Council, Indargarh, District Datia. The respondent No.2 was posted as In-charge Chief Municipal Officer, Municipal Council Indargarh, District Datia. Thereafter vide order dated 7-9-2011, he was transferred from Municipal Council Indargarh, District Datia to Municipal Council Kumbhraj, District Guna within a period of two months.

We have perused the transfer file of the respondent No.2 produced by the respondent No.1-State Government. From the perusal of the aforesaid file, it is clear that the respondent No.2 made a request for his transfer as Chief Municipal Officer, Municipal Council Akoda, District Bhind to any other place and thereafter he was transferred as Chief Municipal Officer, Indargarh, District Datia. The transfer order was issued on the basis of a letter written by the M.L.A. to the Chief Minister and thereafter the respondent No.2 was transferred to Municipal Council Kumbhraj, District Guna on the ground that the In-charge Minister of Datia requested his transfer from Municipal Council, Indargarh, District Datia.

Learned counsel for the appellant has also produced a copy of the resolution dated 13-2-2012, passed by the Municipal Council, Indargarh, District Datia. By the aforesaid resolution, the Nagar Panchayat Indargarh made a request by majority for transfer of the respondent No.2 from Indargarh. It is mentioned in the resolution that the respondent No.2 was not interested in the development of the Nagar Panchayat and there are allegations of corruption against the respondent No.2. It has further been mentioned that the respondent No.2 was indulged in politics. The President of Nagar Panchayat, Indargarh, District Datia sent a letter to the Principal Secretary, Urban Administration and Development Department in regard to transfer of respondent No.2.

The Hon''ble Supreme Court in the case of Rajendra Singh Vs. State of U.P. and Others, , has held has under in regard to interference by the Court in the matter of transfer :

A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from on place to the other. 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 contrary. No government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. and Others Vs. Gobardhan Lal, ).

The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Mrs. Shilpi Bose and others Vs. State of Bihar and others, , this Court held :(SCC 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 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 overlooked these aspects in interfering with the transfer orders.

In N.K. Singh Vs. Union of India and others, , this Court reiterated that : (SCC p. 103, para 6)

6........ the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision

The Hon''ble Supreme Court in the case of State of U.P. and Others Vs. Gobardhan Lal, , has also held as under :-

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 Hon''ble Supreme Court further in the case of State of Haryana and Others Vs. Kashmir Singh and Another etc. etc., , has held as under :

In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer / deploy its police force from one place where there may be relative peace to another district or region / range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.

This Court also held in Divisional Manager, Aravali Golf Club and Another Vs. Chander Hass and Another, and Common Cause (A Regd. Society) Vs. Union of India (UOI) and Others, that Judges must observe judicial restraint and must not ordinarily encroach into the domain of the legislature or the executive.

Looking to the transfer file of the respondent No.2, produced by the respondent No.1-State Government and to the fact that on request of the respondent No.2, he was transferred from Municipal Council Akoda District Bhind to Municipal Council Indargarh, District Datia and also to the fact that the Nagar Panchayat Datia passed a resolution in regard to the transfer of the respondent No.2 from Municipal Council Indargarh, District Datia and the President of Nagar Panchayat Indargarh wrote a letter in regard to transfer of the respondent No.2 from Indargarh, in our opinion, the transfer of the respondent No.2 vide order dated 7-9-2011 (Annexure-P/1 filed along with the Writ Petition) cannot be said to be mala fide or arbitrary and the transfer order is also not in contravention of any statutory rule.

Hence, the writ appeal filed by the appellant is allowed. The impugned order dated dated 24-11-2011, passed in W.P.6153/2011 is hereby quashed. No order as to costs.