Allahabad High Court
Sarvesh Tiwari vs State Of U.P. & Others on 17 August, 2012
Bench: Krishna Murari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - A No. - 39184 of 2012
Petitioner :- Sarvesh Tiwari
Respondent :- State Of U.P. & Others
Petitioner Counsel :- S.M. Haider Zaidi
Respondent Counsel :- C.S.C
Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner and learned Standing Counsel representing the respondents.
The petitioner, who is a Senior Clerk in the office of the District Inspector of Schools, Ramabai Nagar, has approached this Court challenging the order dated 31.07.2012 transfering him from Ramabai Nagar to Government Inter College, Bhatasa, Farrukhabad.
It is contended that the alleged transfer is in violation of transfer policy dated 22.05.2012. Learned counsel for the petitioner does not dispute that the petitioner has been posted in district Ramabai Nagar for the last six years.
It is well settled legal position that transfer is an incident of service and normally the same is not interfered with unless found to be malafide or in violation of any statutory provision.
In the instant case, there is no such allegation nor any such ground has been raised in the writ petition. The only point raised is that the impugned order of transfer is in violation of transfer policy dated 22.05.2012. It is well settled legal position that such Government Orders providing instruction for transfer of an employee are in the nature of guidelines or policy without having any statutory force and, therefore, violation thereof does not confer any legally enforceable right. It is merely an executive instruction. In the matter of transfer judicial review is permissible only where it is found to be arbitrary or in violation of any statutory rules or where it amounts to punishment. Reference may be made to the judgment of Apex Court in the case of Mrs. Shilpi Bose and others Vs. State of Bihar and others, AIR 1991 SC 532 wherein in para 4 of the judgment, it has been observed as under :
"Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affect party should approach the higher authorities in the Department." (Para 4).
Their Lordships in para 4 of the aforesaid judgment further observed as under :-
"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 do not violate any of his legal rights................................ 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." (Para 4).
Similar view was reiterated in the case of Union of India and others Vs. S. L. Abbas, AIR 1993 SC 2444 wherein their Lordships have held that such guidelines of Government Orders have no statutory force and who should be transferred and posted where is the matter to be considered by the appropriate authority, 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."
In the present case, the petitioner has failed to demonstrate that the impugned order of transfer is either against the statutory provisions or on account of mala fides or is by way of punishment and is not on account of administrative exigencies/public interest and thus does not require any interference.
The writ petition accordingly fails and stands dismissed.
Order Date :- 17.8.2012
Dcs
