Allahabad High Court
Mohd. Raees Qureshi vs State Of U.P. Thru. Prin. Secy. ... on 13 February, 2019
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 17 Case :- SERVICE SINGLE No. - 20384 of 2018 Petitioner :- Mohd. Raees Qureshi Respondent :- State Of U.P. Thru. Prin. Secy. Transport And Ors. Counsel for Petitioner :- Ram Raj Ojha,Sarvada Tiwari Counsel for Respondent :- C.S.C. Hon'ble Saurabh Lavania,J.
1- Heard Ms. Bulbul Godiyal, learned Senior Advocate assisted by Sri Ram Raj Ojha,learned Counsel for the petitioner and Sri Pradeep Kumar Singh, learned Additional Chief Standing Counsel for the respondents-State.
2- By means of the present writ petition the petitioner has challenged the order dated 28.6.2018, whereby the representation of the petitioner has been rejected by the opposite party no.-3 and the order of transfer dated 25.5.2018. Petitioner has also sought the relief for issuing the writ of mandamus directing the opposite parties to allow the petitioner to work on the post of Junior Clerk, Regional Transport Office, at Lucknow and pay regular salary.
3- Prior to this writ petition, the petitioner has approached this Court against the order of transfer dated 25.5.2018 by means of Writ Petition No.-17597(SS) of 2018.
4- The writ petition was disposed of on 18.6.2018 with liberty to the petitioner to move a representation before the competent authority against the order of transfer and the competent authority was directed to pass a reasoned and speaking order on the representation of the petitioner.
5- In compliance of the judgment and order dated 8.6.2018, the competent authority considered the representation of the petitioner and after due consideration rejected the representation of the petitioner vide order dated 28.6.2018.
6- In the present writ petition, the petitioner has challenged the order of transfer dated 25.5.2018 and the order passed by the opposite party no.-3 dated 28.6.2018 on the representation of the petitioner on the grounds, as appears from the record, to the effect that: (i) the order of transfer is in violation of transfer policy dated 29.3.2018, which specifically provides that transfer would be made on administrative exigencies and in case of Group-C employee on every three years only counter will be changed (Patal Parivartan),(ii) within six months of posting as Junior Assistant, on being promoted on the said post vide order dated 5.12.2017, the petitioner has been transferred from Lucknow to Kanpur,(iii) the persons who are posted since long have not been transferred and petitioner has been transferred only after completing since six months at promoted place and (iv) the opposite party no.-3 while considering and rejecting the representation of the petitioner, ignored the transfer policy dated 29.3.2018 as well as the fact pertaining to other employees who have not been transferred though they were working on the post since long.
7- Submission of learned Senior Advocate Ms. Bulbul Godiyal, that there is no provision in the transfer policy of 29.3.2018 which says that a person holding a Class III post has to be transferred after completing a particular period of service at one place and in support of this contention the learned Counsel for the petitioner brought to the notice of this Court, Clause-2 of the transfer policy and further submitted that the Clause 11 Sub Clause 6 of the policy provides that on every 3 years counter will be changed (iVy ifjorZu) and accordingly transfer of the petitioner from Lucknow to Kanpur region is against the transfer policy. It has also been submitted by learned Counsel for the petitioner that petitioner was promoted on Class III post on 5.12.2017 and after completing only 6 months on the promoted post he had been transferred from Lucknow to Kanpur and this act of the opposite parties is in violation of transfer policy dated 29.3.2018.
8- Per contra Sri Pradeep Kumar Singh, learned Additional Chief Standing Counsel submits that the petitioner has been transferred on account of the fact he has completed more than 16 years of his service at the Office of Regional Transport Officer at Lucknow and under the transfer policy any employee/Government Servant on administrative grounds as well as in the public interest can be transferred. It has further been submitted that the transfer order had been passed after taking due approval from the Transport Commissioner, dated 25.5.2018. The transfer order is absolutely with the transfer policy and accordingly no interference is required by this Court. In support of impugned order dated 28.6.2018, the submission of learned Counsel for the State is that the opposite party no.-3 rejected the representation of the petitioner dated 14.6.2018 after due consideration and all the pleas raised in the representation by the petitioner.
9- Admittedly, the petitioner was appointed on Class IV post on 28.12.2002 in the office of Regional Transport Officer at Lucknow and thereafter vide order dated 5.12.2017 he was promoted on the post of Junior Assistant (dfu"B lgk;d) Class III post in the Office of Regional Transport Office at Lucknow and vide order dated 25.5.2018, the petitioner was transferred from Lucknow to Kanpur.
10- From the record, it is evident that petitioner's tenure at Lucknow is of about 16 years and 3 months. From the order of transfer dated 25.5.2018 it is evident that the same has been passed in the public interest. It is also evident from the impugned order dated 28.6.2018 that the opposite party no.-3 while passing the order dated 28.6.2018, rejecting the representation of the petitioner, considering the tenure of petitioner at Lucknow and also considered the case of Sri Anuj Kumar Yadav as well as the Service Rules of 1980 applicable in the case of the petitioner and thereafter rejected the representation of the petitioner. Moreover, under the transfer policy there is no bar that petitioner employee holding Class III post like petitioner, cannot be transferred from one district to another district. Ground of violation of service Rules/ malafide exercise of power has neither pleaded nor argued. Thus the impugned order dated 25.05.2018 and 28.06.2018, in the view of this Court, are just and proper and requires no interference.
11- The issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner. The employee does not have any vested right to be posted at a particular place. (Vide B. Varadha Rao v. State of Karnataka and Ors. AIR 1986 SC 1955, Shilpi Bose v. State of Bihar AIR 19991 SC 532, ; Union of India v. N.P. Thomas AIR 1993 SC 1605,Union of India v. S.L. Abbas,AIR 1993 SC 2444,Rajender Roy v. Union of India,AIR 1993 SC 1236; Ramadhar Pandey v. State of U.P. and Ors., 1993 Supp. (3) SCC 35; N.K. Singh v. Union of India and Ors., AIR 1995 SC 425; Chief General Manager (Tel.) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee, AIR 1995 SC 813 ; State of U.P. v. Dr. R.N. Prasad, 1995 (Supp) 2 SCC 151; Union of India and Ors. v. Ganesh Dass Singh,1995 Supp.(3) SCC 214; Abani Kante Ray v. State of Orissa, 1995 (Supp) 4 SCC 169; Laxmi Narain Mehar v. Union of India,AIR 1997 SC 1347; State of U.P. v. Ashok Kumar Saxena,AIR 1998 SC 925; National Hydroelectric Power Corporation Ltd. v. Shir Bhagwan,(2001)8 SCC 574; Public Services Tribunal Bar Association v. State of U.P. and Ors.,AIR 2003 SC 1115; State of U.P. v. Siya Ram,AIR 2004 SC 4121; and Union of India v. Janardhan Debanath, (2004) 4 SCC 245.
12- An employee holding a transferable post cannot claim any vested right to work at a particular place as the transfer order does not affect any of his legal rights and the Court cannot interfere with a transfer/posting which is made in public interest or on administrative exigency. In Gujarat Electricity Board v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, the Hon'ble Supreme Court has observed as under:-
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration."
13- In Union of India v. H.N. Kirtania,AIR 1989 SC 1774, the Hon'ble Apex Court observed as under:-
"Transfer of a public servant made on administrative grounds or in public interest should not 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 malafide."
14- In Union of India v. S.L. Abbas (supra), the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions.
15- Similar view has been reiterated by the Supreme Court, in Bank of India v. Jagjit Singh Mehta,AIR 1992 SC 519, observing that the terms incorporated in the transfer policy for posting of both the spouses, if in service, at the same place, require to be considered by the authorities "along with exigencies of administration" and " without any detriment to the administrative need and claim of other employees".
16- In State Bank of India v. Anjan Sanyal, AIR 2001 SC 1748, the Apex Court held as under:-
"4. An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.
(Emphasis supplied).
17- In Rhone-Poulence (India) Ltd. v. State of U.P.,(2000) 7 SCC 675, the Hon'ble Supreme Court held as under.-
"the mere fact that after the order of transfer had been issued and when Respondent 3 had failed to report for duty, he was also asked by the Corporate Manager, who was competent to order his transfer, to join the duties at Kanpur will not validate ' the order of transfer issued by an authority not competent to do so."
18- In Government of Andhra Pradesh Vs. G. Venkata Ratnam, (2008) 9 SCC 345, the Supreme Court deprecated the view taken by the High Court interfering in transfer matter merely on the basis of some extraordinary achievements highlighted by the respondent-employee. The Apex Court held that it is not for the Court to consider where respondent would be more suited. Such an approach is rather unusual and strange as no employee can be permitted to choose his own place of posting.
19- In Atmaram Sungomal Poshani (supra), the Apex Court in crystal clear words observed that an employee fails to join at the transferred place, he exposes himself to the disciplinary proceedings for disobedience of the order.
The employee cannot avoid the compliance of the transfer order. In Addisons Paints & Chemicals Ltd. v. Workman, AIR 2001 SC 436, a similar view has been reiterated and it has been held therein that refusal to report for duty upon transfer amounts to misconduct. Even if the transfer order is bad for some reason, the employee must ensure compliance of the order first and then raise the issue with the employer for redressal of his grievance.
In S.C. Saxena Vs. Union of India & Ors., (2006)9 SCC 583, the Apex Court deprecated the practice of approaching the Court by the Government employees against transfer order rather joining at the transferred place.
20- In State of U.P. Gobardhan Lal,AIR 2004 SC 2165, the Hon'ble Supreme Court held as under:-
"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 conditions of service. Unless the order if 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."
21- Similar view has been reiterated in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey,(2004) 12 SCC 299.
22- The transfer order may cause great hardship as an employee would be forced to have a second establishment at a far distant place, education of his children may be adversely affected, may not be able to manage his affairs and to look after his family. This aspect was also considered by the Apex Court in State of M.P. v. S.S. Kaurav,(1995) 3 SCC 270, wherein it has been held that it is not permissible for the Court to go into the relative hardship of the employee. It is for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration.
23- Thus, it is clear that the transfer policy does not create any legal right in favour of the employee. It is settled law that a writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by an employee that there is a breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he/ she has a legal right to insist on such performance. The existence of the said right is a condition precedent for invoking the writ jurisdiction. (Vide Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal and Ors.,AIR 1962 SC 1044; Mani Subrat Jain and Ors. v. State of Haryana,AIR 1977 SC 276; State of Kerala v. Smt. A. Lakshmi Kutty,AIR 1987 SC 331; State of Kerala v. K.G. Madhavan Pillai and Ors.,AIR 1989 SC 49; Krishan Lal v. State of J & K,(1994) 4 SCC 422; State Bank of Patiala and Ors. v. S.K. Sharma,AIR 1996 SC 1669; Rajendra Singh v. State of M.P.,AIR 1996 SC 2736; Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors., AIR 1998 SC 3104; Utkal University v. Dr. Nrusingha Charan Sarangi and Ors.,AIR 1999 SC 943; State of Punjab v. Raghbir Chand Sharma and Anr.,AIR 2001 SC 2900 ; and Sadhana Lodh v. National Insurance Co. Ltd. and Anr (AIR 2003 SC 1561).
24- In the case of B. Vardha Rao Versus State of Karnataka and Others reported in (1986) 4 SCC 131 the Hon'ble Apex Court observed that frequent, unscheduled and unreasonable transfers must be deprecated.
25. In the case of Dharmendra Kumar Saxena Versus State of U.P. And Others reported in 2013 LawSuit (All)1796 this Court has held as under:
"After careful consideration of the law laid down by the Supreme Court, I am of the view that this Court cannot interfere with the transfer matter as the Government servant has no vested right to continue at a place of his choice. The Government can transfer the officer/employee in the administrative exigency and in public interest. However, if a transfer is made against the executive instructions or transfer policy, the competent authority must record brief reason in the file for deviating from the transfer policy or executive instructions and the transfer must be necessary in the public interest or administrative exigency. If an officer/employee, who is aggrieved by his/her transfer, makes a representation to the competent authority, his/her representation must be decided objectively by a reasoned order."
26- In view of the above, the legal position on the issue of transfer can be summarized as under:
(1) Transfer is an incident/condition of service.
(2) It does not adversely affected the status or emoluments or seniority of the employee.
(3) The employee has no vested right to get a posting at a particular place or can choose to serve at a particular place for a particular tenure.
(4) It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employees are required.
(5) Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure.
(6) An employee should not be subjected to frequent transfer.
(7) There is a very little scope of judicial review by the Court/Tribunal against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or mala fides is established.
27- Looking into the facts of the case particularly the impugned order dated 28.06.2018 affirming the order of transfer dated 25.05.2018, wherein the concerned authority considered all the aspects of the case and settled legal position on the issue of interference in the matter of transfer of an employee from one place to another this Court is of the view that order impugned dated 28.06.2018 is not liable to be interfered by this Court.
Accordingly, this writ petition is dismissed.
No order as to costs.
Order Date :- 13.2.2019 Jyoti/-