Anjali Pal vs State Of U.P. And 2 Others
2018 Latest Caselaw 2045 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- SPECIAL APPEAL No. - 758 of 2018
 

 
Appellant :- Anjali Pal
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Kamta Prasad,Murali Manohar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Om Prakash-VII,J.

1. Heard learned counsel for the appellant, learned Standing counsel for respondents and perused the record.

2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment and order dated 07.08.2018 passed by learned Single Judge dismissing appellant's writ petition no.16915 of 2018 challenging order of transfer dated 31.05.2018.

3. It is not in dispute that order of transfer has been passed by Competent Authority. Appellant is working on a transferable post and is liable to be transferred and transfer is not contrary to any statutory rules. However, complaint is that transfer is in violation of transfer policy.

4. The employer once possess right to transfer an employee from one place to another, in our view, there is no legal or otherwise corresponding obligation upon him to inform his employee why and in what circumstance an employee is being transferred from one place to another. Shifting and transferring of employee from one place to another involves more than thousand reasons and it is difficult to identify all of them in black and white. The commonest reason may be a periodical shifting of person from one place to another, which does not require any special purpose; the other reasons include necessity of a particular officer at a particular place; avoidance of disturbance or inconvenience in working of the officer on account of a person at a particular place; unconfirmed complaints and to avoid any multiplication thereof; transfer may be resorted to and so on. These are all illustrations. The question whether in any of the circumstances when a person is transferred from one place to another without casting any stigma on him, does it infringes, in any manner, any right of such employee which may cause corresponding obligation or duty upon employer to do something in such a reasonable manner which may spell out either from its action or from record and when challenged in a Court of law, he is supposed to explain the same. In our view, the answer is emphatic no. It is for this reason that in B. Varadha Rao Vs. State of Karnataka, 1986 (4) SCC 131, Court in para 4 of the judgment observed that transfer of Government servant holding transferable post is ordinarily an incident of service and does not result in any alteration of condition of service to his disadvantage. The Government servant is liable to be transferred to similar post in the same cadre, in normal feature an incident of government service and no government servant can claim to remain at a particular place or at particular post unless of course his appointment itself is to a specified non transferable post.

5. Even more earlier, in E. P. Royappa Vs. State of Tamilnadu, AIR 1974 SC 555, Court said:

"It is an accepted principle that in a public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in this matter. The Government is the best judge to decide how to distribute and utilize the services of its employees."

(emphasis added)

6. In Mrs. Shilpi Bose and others Vs. State of Bihar and others, AIR 1991 SC 532, Court said that transfer order does not violate any of the legal rights of Government servant since he has no vested right to remain posted at one place or the other and observed as under:

"Transfer orders issued by the competent authority do not violate any of his legal rights."

7. In view of the aforesaid well settled principles governing the matter of transfer, the consistent opinion of Courts in the matter of judicial review of transfer order has been that the order of transfer is open for judicial review on very limited grounds; namely if it is in violation of any statutory provisions or vitiated by mala-fides or passed by an authority holding no jurisdiction.

8. Since power of transfer in hierarchical system of the Government can be exercised at different level, sometimes for guidance of authorities for exercise of power of transfer, certain executive instructions containing guidelines are issued by Government so that they may be taken into account while exercising power of transfer. At times orders of transfer have been assailed before Courts on the ground that they have been issued in breach of conditions of such guidelines or in transgression of administrative guidelines. Looking to the very nature of power of transfer, Courts have not allowed interference in the order of transfer on the ground of violation of administrative guidelines and judicial review on such ground is impermissible unless it falls within the realm of malice in law. The reason behind appears to be that the order of transfer does not violate any right of employee and employer has no corresponding obligation to explain his employee as to why he is being transferred from one place to another.

9. In Mrs. Shilpi Bose (supra), dealing with similar issue, Court said that even if transfer order is passed in violation of executive instructions or orders, Courts ordinarily should not interfere with the order and instead affected party should approach higher authorities in the Department.

10. In Union of India & others Vs. S.L. Abbas, AIR 1993 SC 2444, in para 7 of the judgment, the Court said:

"The said guidelines, however, does not confer upon the Government employee a legally enforceable right."

(emphasis added)

11. In S.L. Abbas (supra) the employee placed reliance on an earlier judgment in Bank of India Vs. Jagjit Singh Mehta, 1992 (1) SCC 306, in support of his contention where certain guidelines were issued, as far as practicable, they much be adhered to. Based on the said decision, it was contended, where transfer order has been issued in breach of administrative guidelines, when challenged, it is incumbent upon the authorities to give reasons, which justify breach of such guidelines and in absence thereof, order has to be set aside being arbitrary and illegal. Negativing this contention and after referring the judgment in Jagjit Singh Mehta (supra), Court in S.L.Abbas (supra) said:

"The said observations in fact tend to negative the respondents contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or Tribunal can quash the order of transfer, if any of the administrative instructions/ guidelines are not followed, much less can it be characterized as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions." (emphasis added)

12. The judgment in S.L.Abbas (supra) has clearly set at rest the question that order of transfer, when challenged on the ground of violation of administrative instructions/guidelines, neither it is obligatory on the authorities to explain as to why they have passed the order of transfer, which is not consistent with the conditions of the administrative guidelines nor failure to provide such explanation would result in to draw an inference that exercise of power is malicious in law. Since the order of transfer has to be assailed by pleading mala fide as such and not to infer on the basis that the order of transfer is in breach of conditions of administrative exigency, breach of administrative exigency would not justify quashing of order of transfer and therefore, in no manner the argument can be allowed to be stretched so as to invite interference with the order of transfer except where order of transfer is found to be in violation of statutory provision or is vitiated by mala fide.

13. Law laid down herein above has consistently been followed subsequently also, inasmuch as, in National Hydro-Electric Power Corporation Ltd. Vs. Sri Bhagwan and another, AIR 2001 SC 3309, Court held:

"It is by now well-settled and often reiterated by this Court that no Government servant or employee of 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 other 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 mala fide 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 a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned."

(emphasis added)

14. Then in State of U.P. Vs. Gobardhan Lal, AIR 2004 SC 2165, it was held:

"It is too late in the day for any Govt. 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. 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." (emphasis added)

15. All these judgements have been quoted and followed in Major General J.K. Bansal Vs. Union of India and others, AIR 2005 SC 3341.

16. A Division Bench of this Court also in Special Appeal No. 1293 of 2005, Gulzar Singh Vs. State of U.P. and others, decided on 07.11.2005 and Civil Misc. Writ Petition No. 68143 of 2005, R.K. Pandey Vs. New India Insurance Company Ltd. and others, decided on 26.10.2005, has also taken the same view.

17. It would be appropriate at this stage to reproduce caution in the words of Apex court as expressed in Gobardhan Lal (supra) as under:

"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 fide 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."

18. The above authorities leave no manner of doubt that an order of transfer is not assailable in a Court of law on the ground that guidelines laying down transfer policy have been violated. This is what has also been said by a Division Bench of this Court in Writ Petition No.243 (SB) of 2007 (Uma Shanker Rai Vs. State of U.P. & Others) decided on 31st July, 2007.

19. The above view has also been followed in Writ Petition No.73922 of 2011 (Om Pal Singh Vs. State of U.P. & Others) decided on 10th January, 2012, Writ Petition No.72310 of 2011 (Ahibaran Singh & Anr. Vs. State of U.P. & Ors.) decided on 14th December, 2011, Writ Petition No.34694 of 2011 (Om Tiwari Vs. State of U.P. & Others) decided on 22nd June, 2011 and Writ Petition No.6453 of 2012 (Vijay Prakash Trivedi Vs. State of U.P. & Ors) decided on 9th February, 2012.

20. We, therefore, find no fault in the judgment of learned Single Judge, assailed in this appeal.

21. Dismissed.

Order Date :- 21.8.2018

KA