Himachal Pradesh High Court
Anand Swaroop Sharma vs State Of H.P. And Ors on 8 June, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 4460/2019
Decided on : 8.6.2020
.
Anand Swaroop Sharma .....Petitioner
Versus
State of H.P. and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes
For the Petitioner: Mr. Saurav Rattan, Advocate, through
video conferencing.
For the Respondents: Mr. Ashok Sharma, A.G. with Mr.
Ranjan Sharma and Mr. Vinod
Thakur, Addl. A.Gs. for respondents
State, through video conferencing.
Mr. Bhuvnesh Sharma, Advocate, for
respondent No.5, through video
conferencing.
Mr. Ajay Chandel, Advocate, for
respondent No.6, through video
conferencing.
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
The instant petition has been preferred by the petitioner against the transfer order, dated 26.12.2019 (Annexure P1), whereby he has been transferred from Tube Well Division, Gagret to EE (Store Purchase) IPH HQ, Shimla5.
2 It is not in dispute that the petitioner has been working at Tube Well Division, Gagret for the last more than 3 ½ years and was, 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
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thus, could have been transferred. However, it is vehemently argued .
by the learned counsel for the petitioner that the transfer is not on account of any administrative exigency, but is a colourable exercise of power to accommodate respondents No.5 and 6. It is further urged that the petitioner is due to retire in December 2020 and could not have been transferred. Lastly, it is urged that the wife of the petitioner is having arthritis problem, which would make it extremely difficult for him to join at Shimla.
3. It is trite that transfer is an incidence of service and as long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect transfer subject of course to certain disciplines. Once it is admitted that the petitioner is State government employee and holds a transferable post then he is liable to be transferred from one place to the other within the District in case it is a District cadre post and throughout the State in case he holds a State cadre post. A government servant holding a transferable post has no vested right to remain posted at one place or the other and courts should not ordinarily interfere with the orders of transfer instead affected party should approach the higher authorities in the department. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...3...
transferring the officers to "proper place". It is for the administration to .
take appropriate decision.
4. Even the 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 redressal 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. Even if the order of transfer is made in transgression of administrative guidelines, the same cannot be interfered with as it does not confer any legally enforceable rights unless the same is shown to have been vitiated by mala fides or made in violation of any statutory provision. The government is the best judge to decide how to distribute and utilize the services of its employees.
5. However, this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations without any factual background foundation or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power.
A transfer is mala fide when it is made not for professed purpose, such ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...4...
as in normal course or in public or administrative interest or in the .
exigencies of service but for other purpose, such as on the basis of complaints. It is the basic principle of rule of law and good administration, that even administrative action should be just and fair.
An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary.
6. Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration. Even when the order of transfer which otherwise appears to be innocuous on its face is passed on extraneous consideration then the court is competent to go into the matter to find out the real foundation of transfer. The court is competent to ascertain whether the order of transfer passed is bonafide or as a measure of punishment.
7. It is settled law that transfer is an incidence of service and the authority, as long as it acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, has unfettered powers to effect transfer subject, of course to certain disciplines. In this regard, the reference can conveniently made to the judgment of the Hon'ble Supreme Court in E.P. Royappa vs. State of Tamil Nadu (1974) 4 SCC 3 wherein the Hon'ble Supreme Court held as under:
"It is accepted principle that in public service transfer is an incident of service. It is also an implied ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...5...
condition of service and appointing authority has a wide discretion in the matter. The government is the .
best judge to decide how to distribute and utilize the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."
Though in the aforesaid judgment the expression "transfer is an implied condition of service" have been used. However, latter in the case of B. Varadha Rao vs. State of Karnataka (1986) 4 SCC 131 it was clarified that the reference to "condition of service" was in fact passing reference while the proposition of law as laid down in Royappa's case (supra) was reiterated as under:
"4..The learned Judges observe that these penalties can be imposed on a Government servant where disciplinary proceedings are initiated against ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...6...
him under the Rules by the competent authority. They further observe that Rule. 18 of the Rules therefore .
provides for appeals against orders imposing penalties referred to and specified in Rule. 8, and add :
"If an order of transfer does not amount to an order of penalty or 'any other order' falling within Rule. 19, such an order does not attract and is not appealable either under Rule. 18 or Rule 19."
. We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension' in R. 19(1)(a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension,. seniority, promotion, leave, etc. It is well understood that transfer of a Government servant who is appointed to it particular cadre of transferable posts from one, place to another it 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 ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...7...
post unless, of course, his appointment itself is to a specified, nontransferable post. As the learned .
Judges rightly observe :
"The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants."
5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public Interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the concerned Government servant. The petitioner who appeared in person placed reliance, as he did in the High. Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap v. State of Maharashtra, (1985) 2 Lab LJ 73 (Bom). We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with a petition under Art. 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...8...
he was being transferred contrary to the Government policy with a view to accommodate one Dr. R.P. Patil .
because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the Government has power to transfer its employees employed in a transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348 : (AIR 1974 SC 555) for the positivistic view that 'equality is antithetic to arbitrariness' and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed :
"It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However this power must be exercised honestly, bona. fide and reasonably. It should be exercised in public, interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...9...
justify such transfers, cannot but be held as mala fide. A transfer is mala fide when it is made not for .
professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration that even administrative actions should be just and fair."
The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government servant, any of his conditions of service making the impugned order appealable under Rule. 19(1)(a) of the Rules."
8. In Union of India and others vs. H.N.Kirtania (1989) 3 SCC 445 the Hon'ble Supreme Court held as under:
"The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...10...
be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the .
ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer."
9. The above dictum was reiterated in Shilpi Bose (Mrs.) and others vs. State of Bihar and others 1991 Supp (2) SCC 659 wherein the Hon'ble Apex Court has held:
"3. ......If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the court merely because the transfer orders were passed on the request of the employees concerned. The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are liable to be transferred from one place to the other.
The transfer orders had been issued by the competent authority which did not violate any mandatory rule, therefore, the High Court had no jurisdiction to interfere with the transfer orders.
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 ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...11...
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 daytoday 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. The Hon'ble Supreme Court in Union of India and others vs. S.L. Abbas (1993) 4 SCC 357 held 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. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, though the Tribunal does say so ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...12...
merely because certain guidelines issued by the Central Government are not followed, with which .
finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject.
Similarly 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. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.
8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...13...
under Art. 226 of the Constitution of India in service matters. This is evident from a perusal of Art. 323A of .
the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art. 323A. (We find it all the more surprising that the learned single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority)."
11. In Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH. Bhattacharjee and others (1995) 2 SCC 532 wherein it was held by the Hon'ble Supreme Court as under:
"7. It is needless to emphasis that a Government employee or any servant of a Public Undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that the ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...14...
respondent holds a transferable post and unless specifically provided in his service conditions, he has .
no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala and, therefore, there was no justification for the Tribunal to set aside the respondent's transfer to Dimapur.
8. Apart from the above facts the appellants have stated in the memo of appeal which is supported by an affidavit filed by Shri. P. C. Chaturvedi, Vigilance Officer of the Office of Chief General Manager, N. E. Telecom Circle, Shillong that during the last posting of respondent No. 1 at Agartala from 151987 to 171 1990 a number of complaints were received from the staff unions against him. There are also several complaints of various irregularities committed by the respondent No. 1 which are being separately investigated by the vigilance department and a copy of a complaint signed by 270 employees has been filed as Annexure 'B' along with the memo of appeal.
In these facts and circumstances the posting of respondent No. 1 at Agartala would not be justifiable from the administrative point of view also. The transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and compelling grounds rendering the transfer order improper and unjustifiable. In the present case we find no such grounds. On the contrary, as discussed above, the respondent remained at Agartala for most of the ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...15...
period. In the facts and circumstances stated above the claim of the respondent No. 1 for choice posting .
cannot be accepted and for that reason the impugned order of the tribunal could not be sustained. In the result the appeal succeeds and is hereby allowed. The impugned order of the tribunal dated 2511994 is set aside and the application filed by the respondent No. 1 before the tribunal is dismissed but without any order as to costs."
12. In State of M.P. and another vs. S.S.Kourav and others (1995) 3 SCC 270 the Hon'ble Supreme Court has observed as under:
"4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no justification to transfer him again to Jagdalpur. We cannot appreciate these grounds. The Courts or Tribunals are not appellate forums to decide on transfer 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 diecisions 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 ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...16...
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."
13. In Union of India and others vs. Ganesh Dass Singh 1995 Supp. (3) SCC 214 the Hon'ble Supreme Court has observed as under:
made "In our opinion, in the present case there is no material to justify interference with the mere order of transfer r by the competent authority for administrative reasons particularly when the Tribunal had rejected the respondent's assertion that the transfer had been made on account of certain complaints he had made regarding the functioning of the Depot. We have no doubt that the view taken by the Tribunal is not justified on the facts found by it. It is also not within the scope of permissible judicial review in such matters relating to mere transfer made by the competent authority for administrative reasons."
14. In Abani Kanta Ray vs. State of Orissa and others 1995 Supp. (4) SCC 169 the Hon'ble Supreme Court held as under:
"It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...17...
principle governing the transfer. (See N.K.Singh v. Union of India). The transfer of D.N.Mishra in this .
background being clearly in public interest, there was no permissible ground available to the Tribunal for quashing it. We are constrained to observe that the Division Bench of the Tribunal which made the impugned order dated 26.8.1993 quashing the transfer of D.N.Mishra on the ground of malice of the appellant as the Chairman of the Tribunal did so against the material on record and the facts beyond controversy which borders on judicial impropriety. It may also be noted that such comments were made against the Chairman without even a notice to him and as stated in the order itself after treating the application for impleading the Chairman to be deemed rejected."
15. In National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Shiv Prakash (2001) 8 SCC 574 it was held by the Hon'ble Supreme Court as under:
"5. On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now wellsettled 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 ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...18...
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. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4. 1.1 of the Seniority Rules interdicts any transfer of the employees from one Office or Project or Unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance."::: Downloaded on - 10/06/2020 20:21:07 :::HCHP
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.
16. In Public Services Tribunal Bar Association vs. State of U.P. and another (2003) 4 SCC 104 it was held by the Hon'ble Supreme Court as under:
"37.Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the Courts. This Court consistently has been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner."
17. In Union of India and others vs. Janardhan Debanath and another (2004) 4 SCC 245 the Hon'ble Supreme Court held as under:
"9.........The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India 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 another is not only an incident, but a condition of service, necessary ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...20...
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. (2001(8) SCC 574)."
18. In State of U.P. vs. Siya Ram (2004) 7 SCC 405 the proposition of law as settled in Janardhan Debanath's case was reiterated.
19. In State of U.P. and others vs. Gobardhan Lal (2004) 11 SCC 402 the Hon'ble Supreme Court held as under:
"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 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 condi ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...21...
tions 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 or der 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.
8. 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 ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...22...
Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of compe .
tent 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 to be entertained on the mere making of it or on consideration borne out of conjec tures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
In Kendriya Vidyalaya Sangathan vs. Damodar Prasad
20. Pandey and others (2004) 12 SCC 299 it was held by the Hon'ble Supreme Court as under:
"4. Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (see Ambani Kanta Ray v. State of Orissa, 1995 (Suppl) 4 SCC 169). Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the Court cannot interfere with it. (see Union of India v. S.L. Abbas, AIR 1993 SC 2444. Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of operative any guidelines ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...23...
or rules the Courts should not ordinarily interfere with it. In Union of India and Ors. v. Janardan Debanath .
and Anr. (2004) 4 SCC 245 it was observed as follows:
"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 another 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 Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574".::: Downloaded on - 10/06/2020 20:21:07 :::HCHP
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21. The Hon'ble Supreme Court in Somesh Tiwari vs. Union .
of India and others (2009) 2 SCC 592 held as under:
"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 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 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."
22. In Union of India and others vs. Muralidhara Menon and another (2009) 9 SCC 304 the Hon'ble Supreme Court held as under:
"17. It is not a case where the service conditions of the first respondent is governed by any statute or statutory rules. Transfer as is well known is an ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...25...
incident of service. An employee has no right to be posted at a particular place. He, in law, cannot .
exercise his option to be posted in his home State unless there exists any statute or statutory rule governing the field."
23. The Hon'ble Supreme Court in Rajendra Singh and others vs. State of Uttar Pradesh and others (2009) 15 SCC 178 held as under:
"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 [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402]."
24. In State of Haryana and others vs. Kashmir Singh and another (2010) 13 SCC 306 the Hon'ble Supreme Court held as under:
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"12. Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in .
transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well settled that courts must not ordinarily interfere in administrative matters and should maintain judicial restraint, vide Tata Cellular v. Union of India (1994) 6 SCC 651."
25. From the catena of authorities referred to above, it can be summed up that the judicial review of administrative order of transfer can only be interfered with when the same is actuated with malafide or based on extraneous consideration or is against professed norms or the same could be termed as punitive and is in lieu of any punishment.
26. Now, adverting to the first ground regarding transfer being colourable exercise of power and not on account of administrative exigency, suffice it to say that the petitioner apart from levelling general ::: Downloaded on - 10/06/2020 20:21:07 :::HCHP ...27...
allegations has failed to substantiate the same. Even during the course .
of hearing, the petitioner could not elaborate allegations of mala fides.
27. As regards second ground regarding transfer being illegal on the premise that the petitioner is to retire on 31.12.2020, as noticed above, the petitioner has been working at Tube Well Division, Gagret for the last more than 3 ½ years and was, thus, liable to be transferred even in a normal course.
28. The petitioner is holding a responsible post of Executive Engineer and it is for his employer to take a decision how best to utilize his services and extract work from him.
29. Lastly, mere fact that the wife of the petitioner is alleged to be suffering from arthritis problem is itself no ground to question much less quash transfer. These problems could have been brought to the notice of the employer, who alone could have taken the final call.
30. The case of the petitioner, when considered in light of the aforesaid exposition of law laid down by the Hon'ble Supreme Court for the last scores of years, does not fall in any one of the exceptions, which may call for any interference by this Court as the transfer in the present case has been ordered in the administrative exigency and in public interest and the so called mala fides have not been established and proved on record. The transfer otherwise is not in violation of any statutory provision nor the same can be termed to be punitive.
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31. Therefore, we find no merit in the writ petition and the .
same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan)
Judge
8.6.2020
(pankaj)
r to (Jyotsna Rewal Dua)
Judge
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