Anoop Kumar Dubey vs State Of U.P. And 3 Others
2022 Latest Caselaw 151 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 33
 

 
Case :- WRIT - A No. - 18664 of 2021
 

 
Petitioner :- Anoop Kumar Dubey
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Savita Dubey,R S Dubey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. R S Dubey, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.

2. This writ petition has been filed interalia for the following relief:-

"a. Issue a writ, order or direction in the nature of certiorari quashing the order dated 30.10.2021 passed by respondent no.2 (Annexure no.8) as well as order dated 25.11.2021 (Annexure no.9), passed by respondent no.4 and further directed to respondents to not transfer the petitioner from district Deoria to District Banda."

3. Learned counsel for the petitioner submits that initially, the petitioner, who was posted as Junior Assistant at C.H.C. Mahen, District-Deoria, was transferred to C.M.O. Banda and on the same date by another order dated 15.07.2021, the petitioner was transferred from C.M.O., Mahen, Deoria to the office of C.M.O., Deoria. However, vide order dated 05.08.2021, the Chief Medical Officer, Deoria has required the petitioner to join as Senior Assistant at his office at District-Deoria, pursuant to which the petitioner has joined at the office of respondent no.4-Additioanl Chief Medical Officer, Transport Protocol, Deoria, District-Deoria on 10.08.2021. Subsequently, due to some confusion, two orders have been passed wherein the petitioner has shown absconding as one of the orders dated 15.07.2021 required the petitioner to join at Banda. He further submits that by impugned order dated 30.10.2021, the petitioner, who is working as Senior Assistant has been transferred from District-Deoria to Banda on the ground that he remained there nearly since 20 years, which is against the Government Policy. The petitioner vide order dated 25.11.2021 has been relieved from the office of respondent no.4, however, he could not join at the place of posting as he had met with an accident and is on medical leave. He further submits that transfer of the petitioner is in violation of the transfer policy of the State Government as the petitioner has been transferred second time within three months, therefore, the aforesaid impugned orders are not sustainable in the eye of law.

4. Per contra, learned Standing Counsel for the State-respondents submits that there is no illegality in the transfer order as the petitioner has been transferred on the ground that he has remained at Deoria since last 20 years. Even otherwise, he was transferred from Deoria where he was working as Junior Assistant and has now been posted as Senior Assistant at Banda.

5. The law on the transfer is too settled to reiterate that if the transfer is made contrary to transfer policy or executive order, it does not confer any vested right upon an employee to challenge it.

6. The reference may be made to the judgement of the Apex Court in the Case of B. Varadha Rao v. State of Karnataka and others, reported in (1986) 4 SCC 131, wherein it has been held that the occasion to consider a short point whether an order of transfer is appealable under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, and the Supreme Court held in paragraphs- 4 and 6 as under: -

"4. ........ It is well understood that transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. ....."

"6. .......But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of class III and class IV employees stand on a different footing. We trust that the government will keep these considerations in view while making an order of transfer"

7. The Supreme Court in the case of Shilpi Bose (Mrs) and others v. State of Bihar and others, reported in 1991 Supp (2) SCC 659, was dealing with the case of transfer of some lady teachers in Primary Schools in the State of Bihar. They were transferred, on their own request, to places where their husbands were posted. The transfer orders were made by the District Education Establishment Committee. The teachers, who were displaced, challenged the transfer order before the Patna High Court on the ground that District Education Establishment Committee had no jurisdiction. Patna High Court allowed the petition, set aside the transfer order and directed for re-posting of the respondents. Ultimately, the matter was carried to the Supreme Court and the Supreme Court set aside the judgment of the Patna High Court and held as under:

"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."

8. The law laid down in Shilpi Bose (supra) was again reiterated by the Supreme Court in the case of Union of India and others v. S.L. Abbas, reported in (1993) 4 SCC 357, and observed as under:

"6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. .."

9. In the case of N.K. Singh v. Union of India and others, reported in (1994) 6 SCC 98, the appellant Sri N.K.Singh was an I.P.S. Officer. He was allocated to State cadre of Orissa. He was I.G., C.I.D. in Orissa. His services were placed on deputation to Ministry of Home Affairs and was posted as Joint Director in Central Bureau of Investigation (C.B.I.). He was In-charge of a Special Investigation Group conducting some sensitive investigation. He was abruptly transferred to Border Security Force (B.S.F.) in an equivalent post of I.G.P.. He challenged his transfer order on the ground of malafide against the then Prime Minister Shri Chandrashekhar and the then Union Law Minister Dr. Subramanyam Swami. The grievance of the appellant therein was that he was In-charge of a Special Investigation Group investigating into St. Kitts affair. Therefore, he was eased out from the C.B.I. to scuttle the fair investigation. Against this background, the Supreme Court ruled as under: -

"6. .................., learned counsel for the appellant did not dispute that 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 or guideline regulating such transfers amounting to arbitrariness. In reply, the learned Additional Solicitor General and the learned counsel for Respondent 2 did not dispute the above principle, but they urged that no such ground is made out; and there is no foundation to indicate any prejudice to public interest."

"24. ...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised."

10. This Court in the case of Dharmendra Kumar Saxena v. State of U.P. and others reported in 2013 (7) ADJ 53 has held that it is true that violation of transfer policy or executive order does not confer any vested right on an employee to challenge it, but the Government is bound by executive orders/ policies, and the guidelines are made to follow it and not to breach it without any justifiable reason. The Court also held that in case a transfer is made contrary to transfer policy or executive order, the officer concerned should record reasons for defying the transfer policy or executive order. Recording of reasons are necessary in view of the fact that in case any representation is made to the higher authority, he may be apprised of the reasons for violation of the transfer policy or the Government order. The Court also followed the view consistently taken by the Supreme Court. Relevant paragraph of the order read as under: -

"24...the Government is bound by executive orders/policies. The guidelines are made to follow it and not to breach it without any justifiable reasons. Whenever the Government deviates from its policies/guidelines/ executive instructions, there must be cogent and strong reasons to justify the order; when transfer order is challenged by way of representation, there must be material on record to establish that the decision was in public interest and it does not violate any statutory provision, otherwise the order may be struck down as being arbitrary and violative of Article 14 of the Constitution. The authorities cannot justify their orders that breach of executive orders do not give legally enforceable right to aggrieved person. As observed by Justice Frankfurter "An executive agency must be rigorously held to the standards by which it professes its action to be judged".

11. The petitioner in the present case has been transferred on the ground that he has stayed at the said place for more than twenty years and hence, the same is not in violation of any transfer policy or Government Order.

12. After considering the submission made by the parties as well as careful consideration of the law laid down by the Supreme Court, I am of the view that this Court cannot interfere with the transfer matter as the Government servant has no vested right to continue at a place of his choice. The Government can transfer the officer/employee in the administrative exigency and in public interest. However, if a transfer is made against the executive instructions or transfer policy, the competent authority must record brief reason in the file for deviating from the transfer policy or executive instructions and the transfer must be necessary in the public interest or administrative exigency.

13. This writ petition is, accordingly, dismissed. There shall be no order as to costs.

Order Date :- 3.3.2022

Jitendra/-