Himachal Pradesh High Court
Satish Chandra Mishra vs Union Of India & Others on 17 August, 2016
Author: Sandeep Sharma
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.2013 of 2016
.
Judgment Reserved on: 10.08.2016
Date of decision: 17.08.2016
Satish Chandra Mishra ....Petitioner
Versus
Union of India & Others. ..Respondents
of
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
rt
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Petitioner: Mr.Ajay Vaidya, Advocate.
For Respondent No.1: Mr.Angrej Kapoor proxy
counsel.
For Respondent Nos.2 to 5: Mr.Ramakant Sharma, Senior
Advocate with Ms.Devyani
Sharma, Advocate.
Sandeep Sharma,J.
Being aggrieved with the Office Order-839/16, dated 22.07.2016 (Annexure P-2), (for short `impugned transfer order'), whereby petitioner has been ordered to be transferred and posted in Regional Office, Dehradun, Uttarakhand, has approached this Court by way of present writ petition seeking therein following reliefs:-
1Whether the reporters of Local Papers may be allowed to see the judgement? .::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 2
"(i). That a writ in the nature of Certiorari for quashing and setting aside the impugned transfer order (Annexure P-2) may very kindly be issued against the respondents.
.
(ii) That a writ in the nature of Mandamus may kindly be issued against the respondents directing them to allow the petitioner to complete his normal tenure of three years at the present place of posting in terms of Annexure P-3.
(iii) That the respondents may further be directed to produce the entire record of the case for the kind perusal of this Hon'ble Court.
of
(iv) Any other or further relief as this Hon'ble Court deem just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner and against the rt respondents."
2. Briefly stated facts necessary for adjudication are that the petitioner was appointed as Deputy Manager in the respondent-Corporation in the year 1996 and thereafter he served at different places of posting and vide impugned order he has been transferred and posted in Regional Office, Dehradun, Uttarakhand. Perusal of impugned order suggests that the present petitioner, who was serving as Additional General Manager (P&A) vide Employment No.10084 (for short `AGM') was serving in ERP Cell, Corporate Office, Shimla, before his transfer/posting at Regional Office, Dehradun. Perusal of impugned order also suggests ::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 3 that the petitioner stands relieved from ERP Cell on the date of issuance of letter dated 22.7.2016 with the .
direction to report to Executive Director(RO), Dehradun for further duties.
3. As per petitioner, action of respondents in transferring him from present place of posting to of Dehradun is in violation of Transfer Policy (Annexure P-
3), wherein vide clause-5.0 `Specific Tenure' has been provided, relevant portion thereof is reproduced herein rt below:
HRM Manual SJVN Transfer Policy 1.0 Objectives:
1.1 ..................
2.0 Scope and Application 2.1 ..................
2.2 ..................
3.0 Definition:
In these rules, unless the context otherwise requires:-
(a) "Transfer" means Change of Head Quarter/Station but does not include rotation from one Deptt. To another Deptt. At the same Head Quarter/Station.
(b) "Non-Family Station" means a non-family station declared under Para 2.7 of HRA Rules.
(c) "Power Plant" means a power-generating unit including Dam areas under construction as well as running.
(d) "Competent Authority"
i) D(P) for all Transfers.::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 4
ii) HOP for transfers within the Project for employees upto E3 level.
(e) "Field Posting" means posting at .
Project/Power Plant where work involves Construction, Operation & Maintenance and excludes personnel posted in Design, Planning, Monitoring, Contracts etc.
(f) "Corporate Office" means offices at Shimla, Parwanoo & Delhi or any offices other than offices at project/plant site.
(g) "Project" means area/place where of construction, execution, erection & commissioning including Survey/DPR works with respect to Power Project is carried out.
4.0
rt Mode of Transfer
4.1 Transfer will be effected in the following
heads:
a) From Corporate Office to
Project/plants and Vice-Versa
b) Within the same Project/plant
c) One Project/plant to another Project/plant.
d) From Non-family Station to Family Station.
5.0 Tenure:
5.1 The normal tenure of posting will be as under for all stations:
Executives and Supervisors - 3 years Workmen - 5 years 5.2 On completion of tenure employee will be considered for transfer. However, employees may be transferred before expiry of tenure on medical grounds and in exigency of work. While considering transfer on medical ground. Competent Authority may refer the case to Company Medical ::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 5 Doctor/Specialist/Medical Board, for opinion.
6.0 Transfer from Corporate Office to Project/Plant and Vice-Versa .
6.1 On completion of tenure employee working as Project/plant/Corporate Office will be considered for transfer against vacancy and administrative requirement. In Design & Contracts disciplines employees above E3 level may be allowed longer tenure in view of specialization/exigency. An employee would generally be rotated from field of posting to Corporate Office and vice-versa after each complete tenure depending upon availability of post and administrative requirement. Employees desirous of moving from Corporate Office to field and vice-versa rt may apply Six months prior to completion of their tenure. If sufficient posts are not available for rotation preference for movement from field to Clorporate Office would be given to those who have never worked in the Corporate Office. Similarly efforts would be made to ensure that all employees particularly Supervisors and Executives do atleast one tenure in the field.
Further efforts would be made to ensure field tenure before an executive reaches E4 after which he/she may specialize in certain area which may restrict his/her rotation.
6.2 Technical Staff engaged in O&M will be considered for posting in the respective areas as far as feasible in order to ensure specialization."
4. Clause 5.1 of above referred Transfer Policy suggests that normal tenure of posting of Executives and Supervisors would be 3 years and as per clause 5.2 employees would be considered for transfer on completion of tenure. However, it also suggests that ::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 6 employees may be transferred before expiry of tenure on medical grounds or in exigency of work. Petitioner has .
further stated that his transfer is result of colourable exercise of powers on the part of the respondents because his transfer is neither in public interest nor in administrative exigency, rather same has been passed in of arbitrary, whimsically and discriminatory manner, solely with a view to harass him. Petitioner specifically averred that his transfer is not in public interest but is a rt case of victimization of honest officer at the behest of respondent No.5 against whom he had filed number of complaints before different authorities pointing therein the arbitrary acts having been committed by respondent No.5. Petitioner also placed on record copy of CWP No.1059/2016 filed by him in this Court praying therein issuance of writ of mandamus or any other writ, order or direction against the appointment of respondent No.4 (respondent No.5 herein) to the post of Executive Director which was arbitrary and illegal with the direction to the respondents to remove respondent No.5 from the post of Director(Personnel).
5. It has also been contended on behalf of the petitioner that his transfer is not in public interest, ::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 7 rather the same is malafide exercise of powers to demoralize an honest officer, who has been efficiently .
discharging his duties in respondent-Corporation since his appointment. Petitioner has also contended that other similarly situated persons, who are having much longer stay than the petitioner, have been allowed to of continue despite completion of their normal tenure but the petitioner has been solely picked up for transfer without any rhyme and reason and without any public rt interest or any administrative exigency. Hence, the aforesaid action of the respondents is violative of Articles 14 & 16 of the Constitution of India.
6. This Court taking cognizance of the averments contained in the writ petition called for reply from the respondent-Corporation. Respondents No.2 and 4 filed reply refuting therein the averments contained in the writ petition in toto. Respondents specifically prayed for dismissal of the petition on the ground that no legal right much less fundamental right of the petitioner has been violated by way of transferring him and as such present petition, being not maintainable, deserves to be dismissed.
Respondents have also stated that transfer of the ::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 8 petitioner has been effected in public interest as well as administrative exigency of service and as such it cannot .
be said that the same has been made in violation of Transfer Policy framed by the petitioner. Respondents have specifically stated that respondent No.2- Corporation has been constructing three Projects in of Uttrakhand; namely; Devsari HEP (252 MW), Naitwar Mori HEP (60 MW) and Jakhol Sankri HEP (44 MW) and the liaison office, Dehradun has been upgraded as rt Regional Office for Uttrakhand Region vide communication dated 4.4.2016 (Annexure-RA) and vide this communication Executive Director(Civil), being Head of all the three Projects in Uttrakhand, as referred above, requested that a Senior Executive (P&A) preferably of the level of Additional General Manager may be posted at Dehradun for smooth functioning of Regional Office so that his services can be utilized in the Projects at Uttrakhand as and when need so arise and consequent thereupon, the aforesaid request made by the Executive Director (Civil), being Director Incharge of all the Projects, was considered and recommendations were made for posting of Director(P&A) at Regional Office at Dehradun vide communication dated 20.7.2016 ::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 9 (Annexure-RB). Respondent has further stated that respondent No.5, being competent authority under the .
Transfer Policy, found petitioner suitable to be posted as Senior Executive of P&A Discipline in Regional Office, Dehradun, where he would be Head of Department of P&A of all the three prestigious Projects. Respondents of also stated in the reply that the petitioner has already served for more than 8 years at Shimla and as such he cannot claim as a matter of right to remain posted at rt Shimla, more particularly when his services are most needed and required at Regional Office, Dehradun.
Respondents have also stated that bare perusal of Transfer Policy suggests that transfer can be ordered before completion of normal tenure in case the same is required to be ordered, keeping in view the requirement as well as exigency of work and in no manner it can be said that action of respondent No.5 in transferring the petitioner is malafide and arbitrary. Respondents also stated that since petitioner is covered under Satluj Jal Vidyut Nigam Limited Medical Attendants Rules (Annexure-RC), he has numerous options for getting his ailing wife treated at best Hospitals situated anywhere in India at different locations and replying respondent ::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 10 has also empanelled as many as 10 best Hospitals at Dehradun itself. In the aforesaid background respondents .
have prayed for dismissal of the writ petition.
7. Mr.Ajay Vaidya, learned counsel representing the petitioner, vehemently argued that the impugned transfer order (Annexure P-2) is not sustainable since same is the result of colourable exercise of powers by of respondent No.5 and as such same deserves to be quashed and set aside. Mr.Vaidya also argued that bare rt perusal of Annexure P-2 nowhere suggests that transfer of the petitioner has been effected in public interest or in administrative exigency, rather the averments contained in the writ petition clearly suggests that respondent No.5 with malafide intentions has transferred the petitioner in most arbitrary, whimsical and discriminatory manner. With a view to substantiate his arguments that his transfer has been effected solely at the instance of respondent No.5, Mr.Vaidya invited the attention of this Court to copy of Civil Writ Petition bearing CWP No.1059/2016 (Annexure P-4) filed by the petitioner, praying therein for removal of respondent No.5 from the post of Director(P). As per Mr.Vaidya impugned transfer order has been effected at the behest ::: Downloaded on - 15/04/2017 21:02:23 :::HCHP 11 of respondent No.5, who got agitated on filing of the aforesaid writ petition and initiated disciplinary .
proceedings against him. Mr.Vaidya strenuously argued that bare perusal of the documents annexed with the writ petition suggests that petitioner has not been transferred in public interest or in administrative of exigency, rather he is being punished by respondent No.5 for filing writ petition in this Court praying therein for his removal from the post of Director(P). Mr.Vaidya rt also invited the attention of this Court to the Transfer Policy to demonstrate that the petitioner could not be transferred before expiry of normal tenure of 3 years, save and except, in public interest or in administrative exigency. While concluding his arguments, Mr.Vaidya also stated that wife of the petitioner is not well and is being treated at Shimla and on the request having been made by him, he was transferred from Jhakri to Shimla solely on the medical grounds and as such lot of inconvenience would be caused to him in case his transfer order is allowed to sustain. He also placed reliance upon the judgment passed by Hon'ble Apex Court in Somesh Tiwari vs. Union of India and Others, (2009)2 SCC 592 to substantiate his ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 12 arguments that no transfer can be effected by way or in lieu of punishment.
.
8. Mr.Ramakant Sharma, learned Senior Counsel, supported the impugned transfer order passed by the respondent-Corporation. Mr.Sharma vehemently argued that petitioner has no legal right, much less of fundamental right to remain posted at Shimla throughout his service career. Mr.Sharma contended that petitioner has already served more than 8 years at rt Shimla and bare perusal of Transfer Policy nowhere suggests that employee cannot be transferred before completion of normal tenure of 3 years. He specifically invited the attention of this Court to clause 5.2 of the Transfer Policy (Annexure P-3) to demonstrate that employees can be transferred before expiry of tenure on medical grounds or in exigency of work. As per Mr.Sharma, perusal of impugned transfer order itself suggests that the petitioner has been transferred in exigency of service and as such there is no illegality, whatsoever, in the impugned transfer order passed by the respondent-Corporation. He also invited the attention of this Court to the Annexure-RB i.e. a note put up by Executive Director; namely; Shri N.C. Bansal, ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 13 who specifically stated that Dehradun Office has been declared as Regional Office for all the Projects of SJVNL .
in the State of Uttrakhand and in these Projects there is no Senior Executive of P&A Discipline posted as on date.
Accordingly, he requested that a Senior Executive (P&A) may be appointed especially in the Regional Office so of that his services can be utilized at Projects sites in Uttrakhand. Mr.Sharma, while refuting the allegations of malafide alleged against respondent No.5, forcefully rt contended that there is nothing on record suggestive of the fact that transfer of the petitioner has been effected at the behest of respondent No.5, rather bare perusal of Annexure-RB suggests that he has been transferred in exigency of service. Mr.Sharma also stated that respondent No.5, being competent authority under the Transfer Policy, found the petitioner to be most suitable to be posted as Senior Executive (P&A) Discipline in Regional Office, Dehradun, where he would be heading the Discipline of P&A of all the three prestigious Projects and as such it cannot be termed in any manner that he is being punished by respondent No.5 for filing writ petition against him in this Court. While concluding his arguments, Mr.Sharma forcefully contended that the ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 14 transfer is an incidence of service and no employee can claim as a matter of right to be posted/transferred at a .
particular place of his choice and it is for the employer to adjudge the suitability of an employee for being posted at a particular place, keeping in view the organizational requirement and prayed that present of petition may be dismissed being devoid of any merit.
9. We have heard learned counsel for the parties and have gone through the record of the case.
rt
10. By now, it is well settled principle that transfer is an incidence of service and no individual has any right to remain posted/transferred at a particular place of his choice. Employer is entitled to pass an order of transfer in administrative exigency as well as in public interest. Order of transfer, admittedly, being the administrative order, needs not to be interfered with, save and except, where any malafide on the part of the authorities is proved. In the present case it stands proved on record that the present petitioner remained posted in Shimla for more than 8 years. It would be appropriate to reproduce here para-3 of the reply:-
"3. That the present petition is liable to be dismissed keeping in view the fact that the petitioner has already served for more ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 15 than 8 years at Shimla. It is submitted on behalf of replying respondent that petitioner remained at Shimla for a period of 4 years and 5 months i.e. w.e.f. June, 1997 to February, 2002 and thereafter he .
remained at Shimla for a period of 2 year and 7 months i.e. w.e.f. September, 2009 to April, 2012 and thereafter w.e.f. May, 2015 to 22nd July, 2016. Therefore, the petitioner cannot claim as a matter of right to remain posted at Shimla more particularly when his services are most needed/required at regional Office, Dehradun. Therefore, petition deserves dismissal"
of
11. Perusal of aforesaid reply filed on behalf of the rt respondents clearly suggests that petitioner remained posted in and around Shimla for 8 years and as such he cannot claim as a matter of right to remain posted at Shimla, especially when he has been transferred to Regional Office, Dehradun in exigency of service. Perusal of Annexures-RA and RB clearly suggests that Liaison Office, Dehradun has been declared as Regional Office for all the three Project of SJVNL in the State of Uttarakhand, wherein at present respondent-Company constructing three Projects as has been mentioned above. Executive Director (P&A), heading the office of SJVNL at Uttarakhand specifically informed the concerned authorities that there is no Senior Executive (P&A) posted as on date and as such ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 16 requested that a Senior Executive (P&A) preferably of the level of AGM may be posted at Dehradun for smooth .
functioning of Regional Office. Hence, it can be safely inferred that the petitioner has been transferred by the respondents in exigency of service and no fault can be found with this action of the respondent-Corporation.
of Moreover, as emerged from the reply filed by the respondents, petitioner, who has been found suitable to be posted as Senior Executive of P&A Discipline in rt Regional Office at Dehradun would be heading the Department of P&A of all the three Projects and as such, in no manner it can be termed as punishment, as has been alleged by the petitioner. Though the petitioner has stated in writ petition that his transfer has been effected at the behest of respondent No.5 against whom he had filed writ petition in this Court praying therein for his removal from the post of Director(P), but interestingly this Court could not lay its hand to any document available on record suggestive of the fact that the impugned transfer has been effected at the behest of respondent No.5. Rather, Executive Director(Civil), as has been observed above, mooted the proposal of posting of Senior Executive of P&A Discipline ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 17 in Regional Office, Dehradun, accordingly respondent No.5, being competent authority under the Transfer .
Policy, found the petitioner to be suitable for the said post issued transfer order. Apart from stating that he filed CWP No.1059 of 2016 in this Court, petitioner has not placed on record any documents, which could of compel this Court to form an opinion that his transfer has been effected at the behest of respondent No.5.
Petitioner has also not placed on record any document rt suggestive of the fact that his transfer is the result of colourable exercise of powers. During arguments, having been made by learned counsel representing the parties, this Court had an occasion to peruse office notings with regard to the transfer of the present petitioner and after seeing the same, this Court is fully convinced that the transfer has been effected in administrative exigency and keeping in view his expertise and requirement he has been transferred/posted as Senior Executive (P&A) in Regional Office, Dehradun as Head of the Department of P&A for all the three Projects, as mentioned above. But for bald allegations, having been made in the writ petition, this Court was unable to find any document ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 18 made available on record by the petitioner to substantiate his plea with regard to malafide exercise of .
power on behalf of respondent No.5, while effecting his transfer, rather this Court is fully convinced that respondent No.5, being Head of Department, is competent authority, as envisaged in Transfer Policy, to of issue impugned transfer orders of the petitioner on the request of Executive Director(P) and as such this Court sees no reason whatsoever to interfere in the action of rt respondent No.5.
12. Now, this Court would be reverting to the judgment relied upon by the learned counsel for the petitioner in Somesh Tiwari's case supra, wherein it has been stated that "An order of transfer is an administrative order. Transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fides on the part of the authority is proved."
13. Mr.Vaidya argued with full vehemence that transfer of the petitioner is result of malafide exercise of powers by respondent No.5 and petitioner has been transferred by way of punishment and same cannot be ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 19 allowed to sustain. In this regard he placed reliance upon following para of Somesh Tiwari's case supra:
.
"16 Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question of would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the rt allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
(pp.597-598)
14. True it is that no employee can be transferred by way of or in lieu of punishment and when an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
15. In the present case, perusal of the record pertaining to the transfer of the petitioner, nowhere suggests that he has been transferred by way of ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 20 punishment, rather careful perusal of documents available on record suggests that he, being the most .
competent person, has been transferred as Senior Executive of P&A Discipline at Regional Office, Dehradun, where in that capacity, he will have to head the Department of P&A of all the prestigious Projects of situated at Uttarakhand. Hence, aforesaid authority relied upon by the petitioner may not be of any help in the present case.
rt
16. At the cost of repetition, it may be again reiterated that transfer is an incidence of service and no employee can claim as a matter of right to be posted/transferred at a particular place of choice and it is the complete domain of the employer to adjudge the suitability of the employee for posting him/her in a particular place. In this regard, Hon'ble Apex Court, while analyzing the scope of judicial review in transfer matters, has repeatedly held that interference of Courts only justified in case of malafide or interference to any norms or principle.
17. In this regard, reliance is placed upon the judgment of Hon'ble Apex Court in N.K. Singh vs. ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 21 Union of India and Others, (1994)6 SCC 98, wherein the Hon'ble Court has held:
.
"9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be of first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry rt into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset.
20. It is not necessary to refer to the several decisions cited by Shri Jethmalani since the grounds for judicial review of a transfer and the limits thereof are settled and not in dispute. One decision on which particular emphasis was laid by Shri Jethmalani may however be referred. That decision is R. v. Commissioner of Police of the Metropolis, ex p Blackburn, (1968)2 QB 118 which is clearly distinguishable. That relates to the performance of a duty and holds that a police officer owed a duty to the public to enforce the law which he could be compelled to perform and that his discretion in the matter was not absolute. In the facts of this case and the reasons for which we have reached the conclusion that the appellant's transfer from the CBI to the BSF is not vitiated, we do not find this decision of any assistance.
(pp.104, 107) ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 22
18. Reliance is also placed upon the judgment of Hon'ble Apex Court in State of U.P. and Others vs. .
Gobardhan Lasl, (2004)11 SCC 402, wherein the Hon'ble Court has held:
7. It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such of 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 rt 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. This Court has often reiterated that 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.
::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 238. 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 fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not of 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 rt an order of transfer.
9. The very questions involved, as found noticed by the High Court in these cases, being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write ups in journals or newspaper reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any Authority as well as the basic concepts and well-recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring an effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities effecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the authorities concerned, the Courts and Tribunals, as the case may be, to seek relief even in relation to an order of ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 24 transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognized grounds or reasons, when properly approached and sought to be .
vindicated in the manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or of areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and rt zealously courts endeavour to safeguard the rights of parties.
(pp.406-407)
19. In Rajendra Singh and Others vs. State of Uttar Pradesh and Others, (2009)15 SCC 178, the Hon'ble Apex Court held as under:-
"8. A government servant has no vested right to remain posted at a place of his choice nor can be 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 (see State of U.P. v. Gobardhan Lal, (2004)11 SCC 402, SCC p.406, para 7).::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 25
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 Shilpi Bose .
v. State of Bihar, 1991 Supp (2) SCC 659 this Court held: (SCC p.661, para 4) "4. In our opinion, the Courts should not interfere with a transfer Order which are 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 of malafide. 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 rt 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 over looked these aspects in interfering with the transfer Orders."
10. In N.K. Singh v. Union of India, (1994)6 SCC 98, this Court reiterated that:
(SCC p.103, para 6) "6 ... 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...."::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 26
11. Insofar as the transfer of the writ petitioner from Ghaziabad IV to Hapur II is concerned, the High Court found that the transfer orders has not affected his .
service conditions and pay and other benefits attached to the post which was held by him. As a matter of fact, the High Court did not find any flaw in the transfer of the writ petitioner from Ghaziabad IV to Hapur II."
(pp.180-181) of
20. In Mohd.Mohsin vs. State of Uttar Pradesh and Others, (2012)13 SCC 758, the Hon'ble rt Apex Court held as under:-
"2. After hearing the learned counsel for the parties, we are of the considered opinion that transfer and postings are within the discretion of the Government. In case any party affected by the transfer order moves the High Court under Article 226 of the Constitution for relief, the High Court may consider the same on the ground of mala fides or any other relevant ground but would normally not pass orders directing the State Government to post the parties to a writ petition at a distance of 500 km from each other to avoid bickering between them."
(p.759)
21. Consequently, in view of the detailed discussions made as well as law referred hereinabove, we do not see any merit in the present case and as such are not inclined to invoke extra ordinary jurisdiction under Article 226 of the Constitution of India to set ::: Downloaded on - 15/04/2017 21:02:24 :::HCHP 27 aside the impugned office order. Accordingly, the writ petition is dismissed being devoid of any merit.
.
22. Interim direction, if any, stands vacated. All miscellaneous applications are disposed of.
(Mansoor Ahmad Mir)
Chief Justice
of
August 17, 2016 (Sandeep Sharma)
(aks) Judge
rt
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