Allahabad High Court
Purushottam Kumar Pandey vs State Of U.P. Thru. Prin. Secy. Medical ... on 17 April, 2025
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:21865
Court No. - 18
Case :- WRIT - A No. - 3830 of 2025
Petitioner :- Purushottam Kumar Pandey
Respondent :- State Of U.P. Thru. Prin. Secy. Medical Health And Family Welfare Deptt. Lko. And 2 Others
Counsel for Petitioner :- Anurag Narain Srivastava,Vartika Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Karunesh Singh Pawar,J.
1. Heard Shri Anurag Narain Srivastava, learned counsel for the petitioner and Shri Ashwini Kumar Singh Rathore, learned Standing counsel for the respondents.
2. Under challenge is the impugned order dated 25.03.2025 contained in Annexure No. 1 to the writ petition, by which the petitioner who was earlier posted as Senior Assistant under Chief Medical Officer, Lucknow has been transferred within Lucknow to the office of the Additional Director, Malaria and BBD, Jawahar Bhawan, Lucknow, under the administrative exigencies.
3. Learned counsel for the petitioner submits that the impugned order is malicious whereby the petitioner has been transferred in lieu of punishment, without any formal inquiry, which is impermissible under the law. The transfer is stated to be based on a D.O. letter dated 02.01.2025, which contains serious allegations against the petitioner. The counsel further submits that this order may tarnish the petitioner?s clean service record. No inquiry was conducted, nor was any show-cause notice issued prior to passing the impugned order.
4. Per contra, learned Standing Counsel vehemently opposes the petition. He submits that the petitioner has not been transferred in terms of the Government Order dated 11.06.2024 (Para-4(VIII)), but has merely been reshifted from one office to another within the same district on account of administrative exigency. Therefore, the impugned order does not fall under the category of transfer.
5. Learned Standing Counsel further submits that several serious complaints have been made against the petitioner by the other officers. Thus, administrative exigencies demanded that the petitioner should be shifted from CMO office.
6. It is also submitted that the petitioner has been working in the CMO office, Lucknow, since 06.06.2018. He has drawn attention of the Court towards Annexure No. 21 which shows that the petitioner is working under CMO, Lucknow since 06.06.2018.
7. Perused the record.
8. Perusal of clause 4 (viii) of of the G.O. dated 11.06.2024, which is a transfer policy for the State Government Officers and employees, indicates that if there is another office of a department in a District, then, after the prescribed period, a Class-III employee can be posted in another office in the same District by the competent authority and it shall not be considered as transfer.
9. In the present matter, as per the written instructions, the petitioner was serving under the Chief Medical Officer, Lucknow, since 06.06.2018 (Annexure No. 20 of the instructions provided by the State), and thus had completed over six years under Chief Medical Officer, Lucknow. Therefore, under administrative requirements, he appears to have been transferred by the impugned order on the basis of the recommendation made by the CMO, Lucknow.
10. The said recommendations appear to have been made on the basis of various inputs received against the petitioner. Hence, the impugned order, contained in Annexure No. 1, does not amount to a 'transfer' as per the aforesaid Government Order dated 11.06.2024. The petitioner has not challenged the said Government Order.
11. From perusal of the instructions received by the learned Standing Counsel, it is evident that apart from the Chief Medical Officer, Lucknow, other authorities/persons also provided inputs, including expressions of dissatisfaction by officers regarding manner of working of the petitioner. The petitioner has only been shifted from one office to another due to administrative exigency, in accordance with the recommendation made by the Chief Medical Officer. The CMO, Lucknow, in making the recommendation, recommended that he be shifted to another office within District Lucknow.
12. Merely because the CMO, Lucknow, received certain inputs and, based on those, recommended the transfer/shifting of the petitioner within District Lucknow, does not render the impugned order punitive.
13. Law in this regard is settled. In the case of Registrar General High Court vs. R. Perathi, (2011) 12 SCC 137, the Hon?ble Supreme Court held, even after considering a transfer on the basis of the report of a Registrar (Vigilance) and an opinion by the District Judge that the continued posting of the employee in the district was administratively undesirable, that transfer is an exigency of service and one cannot make a grievance if the transfer is made on an administrative ground and without stigma. The relevant portion of the judgment is reproduced for convenience:-
"21. We have considered the submissions of both the counsel. As far as the action of transfer against the first Respondent was concerned, the same was on the basis of the report of the Registrar (Vigilance). Besides, the District Judge had also opined that retention of the Appellant in his district was undesirable from the point of view of administration. Thus, it involved inter-district transfer. The Respondent No. 1 had not disputed the power of the High Court to transfer him outside the district, nor did the division bench interfere therein on that ground. This is apart from the fact that transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative grounds, and without attaching any stigma which was so done in the present case.
22. In the context of transfer of a govt. servant we may refer to the dicta of this Court in N.K. Singh v. Union of India reported in AIR 1995 SC 423 where this Court observed in para 22 as follows:-
22. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.
23. In State of Madhya Pradesh v. S.S. Kourav reported in AIR 1995 SC 1056, the Administrative Tribunal had interfered with the transfer order of the Respondent and directed him to be posted at a particular place. It is relevant to note that while setting aside the order of the tribunal this Court observed in para 4 of its judgment as follows:
4....The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
24. We may mention that this Court has reiterated the legal position recently in Airports Authority of India v. Rajeev Ratan Pandey reported in 2009 (8) SCC 337 that:
"10...... In a matter of transfer of a govt. employee, the scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer."
31. As seen above, the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances the decision of the then Chief Justice to transfer him outside that district could not be faulted."
14. Likewise, the Hon'ble Supreme Court in the case of Rajendra Singh Vs. State of U.P reported in (2009) 15 SCC 178 held as under:-
3.The transfer order dated July 31, 2007 came to be challenged by the Writ Petitioner before the High Court of Allahabad, Bench Lucknow. While challenging the legality of the transfer order, Writ Petitioner set up the grounds that he joined as Sub-Registrar, Ghaziabad, Sadar-IV only a month back; that the transfer order has been issued on the complaint of one Radhey Lal, Sanyojak Dalit Morcha Sangharsh Samiti, Lucknow and that the order of transfer was arbitrary, stigmatic and suffers from non-application of mind.
8. 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 one 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.
9. 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 the case of Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. AIR 1991 SC 532, this Court held:
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.
10. In N.K. Singh v. Union of India and Ors. (1994) 6 SCC 1998, this Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision.
12. As regards Respondent No. 5, the High Court considered the matter thus:
...in our view, it is evident that the respondent No. 5 also can not be said to be an Officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad and in this regard, it appears that I.G. (Stamps) did not give correct information to the Principal Secretary. However, it can not be held that the respondent No. 1 in passing order dated 31st July, 2007 has acted maliciously or for extraneous reasons amounting to malafide. Once the basic ground of challenge to the impugned order of transfer that the same is malicious in law falls, we do not find any reason to interfere with the impugned order of transfer, transferring the petitioner from Ghaziabad to Hapur. It is not the case of petitioner that his transfer is contrary to rules or has been issued by an authority who is not competent. It is well settled that an order of transfer is amenable for judicial review on limited grounds namely it is contrary to rules or has been passed an incompetent authority or is a result of malafide. In view of admission on the part of the respondent No. 1 in his Counter Affidavit that the respondent No. 5 has been found guilty of serious misconduct for causing loss to the Government revenue by acting without jurisdiction and colluding evasion of stamp duty, in our view transfer of the respondent No. 5 to Ghaziabad can not be sustained in view of further admission on the part of the respondent No. 1 that the interest of department requires posting of an honest and efficient person at Ghaziabad.
13. It is difficult to fathom why the High Court went into the comparative conduct and integrity of the petitioner and Respondent No. 5 while dealing with a transfer matter. The High Court should have appreciated the true extent of scrutiny into a matter of transfer and the limited scope of judicial review. Respondent No. 5 being a Sub-Registrar, it is for the State Government or for that matter Inspector General of Registration to decide about his place of posting. As to at what place Respondent No. 5 should be posted is an exclusive prerogative of the State Government and in exercise of that prerogative, Respondent No. 5 was transferred from Hapur-II to Ghaziabad- IV keeping in view administrative exigencies.
14. We are pained to observe that the High Court seriously erred in deciding as to whether Respondent No. 5 was a competent person to be posted at Ghaziabad-IV as Sub- Registrar. The exercise undertaken by the High Court did not fall within its domain and was rather uncalled for. We are unable to approve the direction issued to the State Government and Inspector General of Registration to transfer a competent officer at Ghaziabad-IV as Sub-Registrar after holding that Respondent No. 5 cannot be said to be an officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad-IV. The High Court entered into an arena which did not belong to it and thereby committed serious error of law.
15. Hon'ble Supreme Court in the case of Union of India Vs. Janardhan Debnath and Anr reported in (2004) 4 SCC 245 has held as under:-
"3. Background facts sans unnecessary details are as follows:
The respondents were working in the Postal Services Department. They were transferred from Agartala Division to Meghalya Division by order of transfer dated 10.9.2002. Feeling aggrieved by the order, the respondents (writ petitioners) along with two others moved the Central Administrative Tribunal at Guwahati (in short the 'Tribunal'). The Tribunal after hearing the parties directed the authorities to consider the representations made by the two lady applicants who were co-applicants along with the respondents within one month. So far as the present respondents are concerned, no interference was made by the Tribunal with the order. Challenging the decision of the Tribunal, the writ petitions were filed. The grounds on which the writ petitions were filed were (a) the transfer orders of the two respondents were in violation of the provisions of Rule 37 of the Posts and Telegraphs Manual. Volume IV (in short 'the Manual') read with D.G. Posts Letter No. 20-12/90-SPBI dated 23.8.1990; (b) the transfer is in violation of Rule 15 of the Fundamental Rules (in short 'FR 15') and (c) the inter Divisional transfer would effect the seniority and promotional prospects of the writ petitioners and (d) the transfer order was passed as a measure of penalty.
4. The Union of India took the stand that the transfer was done in public interest and on account of exigencies of administration. It was pointed out that the respondents not only misbehaved with the Director (Postal Services), a senior lady officer, she was confined and dragged from one room to another and this was done with a view to force her to withdraw the charge sheet against the Deputy Post Master. She was abused in filthy language and was physically manhandled. This conduct was certainly unbecoming of an employee and with a view to enforce discipline and to avoid recurrence of such unfortunate incident, they were transferred. There was no violation of either Rule 37 of the Manual or FR 15. The High Court accepted the prayers made in the writ petitions and held that transfer was impermissible in terms of Rule 37 and was in violation of FR 15. It was as a measure of penalty and the seniority and the promotional prospects were likely to be affected.
9. A bare reading of Rule 37 shows that officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers were not to be ordered except when advisable in the interests of public service. The transfers can be made subject to conditions laid down in FR 15 and 22. The appellant has indicated as to why and under what circumstances the transfers were thought proper in the interests of public service. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice 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 or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr.,
12. That brings us to the other question as to whether the use of the expression 'undesirable' warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. The Union of India (1964)ILLJ418SC to contend that whenever there is a use of the word 'undesirable' it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression 'undesirable' in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature an extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
13. Additionally, it was pointed out by learned counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion. It was also submitted that transfer was within the same circle i.e. the North Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise.
14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehavior is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehavior or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirements, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as costs."
16. A Division Bench of this Court in a judgment reported in 2010 SCC Online ALL 1152 Inre: Dr. Anil Kumar Pradhan Vs. State of U.P has held as under:-
"3. Mr. Manish Kumar, learned Counsel for the petitioner submits that after being selected through U.P. Public Service Commission, the petitioner was appointed on the post of Medical Officer on 14.2.1988 and while working as such, he was promoted on the post of Senior Consultant at S.S.P.G. District Hospital, Varanasi in the month of September, 2009. He submits that pursuant to the oral complaint being moved by unknown person, opposite party No. 6-Hon'ble Minister, Medical and Health, U.P. Civil Secretariate, Lucknow, summoned the petitioner, to which the petitioner tendered his explanation, wherein it has been stated that the patient was not operated prior to one month as his hemoglobin was below 5% and as soon as his hemoglobin was above 10%, he had operated the patient. He submits that there is no complaint ever made against the petitioner in his 22 years of service. Further, the impugned transfer order has not been passed either in public interest or in administrative exigency and as such, the petitioner has been transferred merely on the dictate of the Hon'ble Minister. He also submits that it is the policy decision of the Government that no one will be transferred during financial year 2010-11.
16. One more important aspect of the matter is that the government servant does not have right not to comply with the transfer order without there being any interference or otherwise protection given by the Court or by the superior authority and to keep on filing petition after petition challenging the order in the High Court. Government servant can not claim that he should be posted at a particular place for a particular period. The transfer is an incidence of service. The posting of government servant by issuing transfer order is a natural requirement in service law. The transfer is effected keeping in mind the exigency of service, and in public interest or for administrative reasons. It is the sole discretion of the appointing authority to post the government servant at any place where he/she is more required. Of course, if transfer order has been passed in violation of any statutory Provision or Rule or is a result of mala fide or bias of the authorities, then that can be subjected to scrutiny by the Court but unless the order so suffers, the High Court will, normally, not interfere in the transfer order.
17. In the instant case, there is admittedly a complaint against the petitioner. The petitioner fully knows about that complaint as is evident from the stand taken in the writ petition itself. The plea of the petitioner that he cannot be transferred on such a complaint deserves to be rejected outright. It may be mentioned that instead of initiating disciplinary proceedings against the petitioner on the ground of a charge of negligence in performing his duties, he has only been required to be transferred."
17. Accordingly, from a perusal of the above judgments in R. Perathi (supra), Rajendra Singh (supra) and Janardhan Debnath (supra), it is evident that it is the prerogative of the employer to transfer his employee at any place. If the conduct of the employee is brought to the notice of employer which causes disruptions in administration of office where he is posted, then it is in the competence of the competent authority to transfer such an employee.
18. In the instant case, the petitioner's office has been changed; he has not even been formally transferred under the said Government Order. He remains posted within the same District. Therefore, it cannot be said that any prejudice has been caused to the petitioner. There is no stigma associated with the petitioner due to the impugned order. The order appears to have been issued solely on grounds of administrative necessity, which is lawful under the aforementioned Supreme Court judgments.
19. So far as the reliance placed by the learned counsel for the petitioner upon the judgment of Somesh Tewari (supra) is concerned, in that case, the Court questioned the conduct of the authorities, as they had transferred the petitioner second time while the first transfer order was still under consideration before the Central Administrative Tribunal, and that too without seeking leave of the Court. The Supreme Court was adjudicating the issue of whether the appellant, Somesh Tiwari, was entitled to salary for the period he did not join at the place of transfer.
20. The facts of the present case are quit distinct and peculiar. Here, the petitioner has not been transferred with any stigma. He has only been shifted within the same District, after serving over six years at the office of the Chief Medical Officer. Hence, the jugment in Somesh Tiwari (supra) is not applicable to the present facts.
21. It is definitely not a case of punitive transfer. Therefore, it cannot be argued that the impugned order implies any allegation, insinuation, or complaint against the petitioner to render it punitive. Given the overall circumstances of the case, the Court is not inclined to intervene.
22. The writ petition is accordingly dismissed.
Order Date :- 17.4.2025/R.C.
