Allahabad High Court
Anil Kumar Srivastava vs State Of U.P. Thru. Prin. Secy., ... on 11 September, 2013
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Case :- SERVICE SINGLE No. - 647 of 2013
Petitioner :- Anil Kumar Srivastava
Respondent :- State Of U.P. Thru. Prin. Secy., Panchayati Raj & Others
Counsel for Petitioner :- V.K. Srivastava
Counsel for Respondent :- C.S.C.
Hon'ble Anil Kumar,J.
Heard Sri V.K. Srivastava, learned counsel for the petitioner, Sri Pankaj Patel, learned Additional Chief Standing Counsel and perused the record.
By means of present writ petition, petitioner has challenged the impugned order of transfer dated 11.1.2013 ( Annexure no.1) passed by opposite party no. 3/ District Magistrate, Raebareilly by which he has been transferred.
Learned counsel for the petitioner while challenging the impugned order of transfer submits that the same is illegal , arbitrary in nature as the petitioner is at the verge of retirement and he has to retire from service after attaining the age of superannuation in February, 2014.
In addition to above said facts, he also summits that the petitioner is disabled person so keeping in view the said fact, the impugned order is arbitrary in nature being contrary to the provisions as provided under para 10(5) of the transfer policy dated 22.3.2012.
After hearing learned counsel for the parties and going through the record and the averments as made in the counter affidavit filed on behalf of opposite parties , it is not in dispute that the petitioner has to retire from service after attaining the age of superannuation in February ,2014 and he is a disabled person.
Further, no Government employee has any right to be posted at any particular place forever, because transfer is not only an incidence of service, but also a condition of service, and as such it is necessary in public interest and in the interest of efficiency in public administration. There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The transfer in posts, which are in the same grade or cadre or considered equivalent can be affected on administrative exigencies.
The general principles in respect to the transfer an employees that can be deducted from various judicial pronouncements and the statutory provisions are as follows:
(i)that an employee cannot be transferred out of his cadre or establishment against his wish;
(ii) that no transfer can be justified merely because the pay is not affected, when the appointment is made to a specified post or a specified group of posts;
(iii) that the Government employee cannot be asked to perform duties which were never expected of him at the time of recruitment; and
(iv) that the expectation of future promotion cannot be wiped off by moving a Government employee around.
The attributes of transfer are :-
(i)A transfer order is an incident of Government Service.
(ii)Who should be transferred and where is a matter for a appropriate authority to decide.
(iii)Unless the transfer order is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it.
(iv)While ordering transfer, the authority must keep in mind the guidelines issued by the Government on the subject.
(v)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.
(vi)The guidelines providing that as far as possible, husband and wife be posted at the same place do not confer upon the Government servant a legally enforceable right.
(vii)Executive instructions are in the nature of guidelines. They do not have statutory force."
Further, the judicial review of order of transfer can be done, if the order of transfer suffers from the vice of mala fide exercise of power when the transfer is made not in public interest or administrative exigency, but simply to accommodate another employee without any justifiable reason. Unless the order of transfer is shown to be an outcome of mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with by the courts as a matter of routine for every type of grievance sought to be made.
Keeping in view of the above said facts as in the instant case petitioner has to retire from service after attaining the age of superannuation in the month of February,2014 and he is disabled person so at the verge of retirement to transfer him by order dated 11.1.2013 ( Annexure no.1) is neither an administrative exigency of service nor in public interest, liable to be set aside.
For the foregoing reasons , the writ petition is allowed and the impugned order of transfer dated 11.1.2013 ( Annexure no.1) passed by opposite party no.3/ District Magistrate, Raebareilly is set aside.
Order Date :11.9.2013
dk/
