Allahabad High Court
Param Singh And 4 Others vs State Of U.P. And 5 Others on 19 November, 2018
Bench: Pradeep Kumar Singh Baghel, Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 5 Case :- SPECIAL APPEAL No. - 1163 of 2018 Appellant :- Param Singh And 4 Others Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Vijay Gautam,Vinod Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Salil Kumar Rai,J.
The present special appeal emanates from a judgment of the learned Single Judge dated 25.10.2018 whereby he has dismissed the writ petition filed by the appellants-petitioners challenging their transfer order dated 10.5.2018.
The relevant facts may briefly be stated:
The appellants are five in number. They had filed a writ petition being Writ-A No. 22839 of 2018 along with ten other petitioners. All the appellants are Constables in Traffic Police . They are Group-C State Government employees. Although the writ petition was filed by fifteen petitioners but only five petitioners have filed this appeal. In paragraph-4 of the writ petition it is stated that the petitioner no. 1 was appointed in the year 2006 in Police Department. There are no details regarding other petitioners. In fact, the pleadings of the writ petition are incomprehensible. The reliefs sought by the appellants-petitioners in the writ petition read as under:
"I. Issue a writ, order or direction in the nature of Certiorari quashing the impugned transfer order dated 11.05.2018 and relieved order dated 21.08.2018 (12.09.2018) and consequential order dated 18.09.2018 (19.09.2018) and date fixed order dated 18.10.2018 (16.10.2018) and 02.10.2018 passed by respondent nos. 4, 5, 6 and 9 by which the petitioners have been transferred from District-Agra and other Districts to Traffic Police Lucknow, enclosed as Annexure No.1 to this writ petition.
II. Issue a writ, order or direction in the nature of Mandamus directing the respondent no. 3 and 4 to cancel the transfer of the petitioners in absence of own request and not transfer from District-Agra and other Districts to Traffic Police Lucknow."
The learned Single Judge on 25.10.2018 dismissed the writ petition by the following order:
"Heard learned counsel for the petitioners and the learned Standing Counsel for the State-respondents.
This petition calls in question an order of transfer dated 10 May 2018, in terms of which the fifteen petitioners have been transferred pursuant to the recommendations made by the Police Establishment Board. This order of transfer is not shown to fall foul of any statutory provision. The petitioners also do not dispute that they hold a transferable post.
On an overall conspectus of the aforesaid facts, this Court finds no merit in the prayer made by the petitioner.
The petition is consequently dismissed."
The appellant nos. 1, 2 & 3 are working as Constables at Rampur, whereas the appellant nos. 4 and 5 are posted at Agra and Moradabad respectively.
We have heard Sri Vijay Gautam, learned counsel for the appellants and the learned Standing Counsel.
Learned counsel for the appellants submits that the State Government has issued a Government Order dated 11.7.1986 laying down the policy regarding transfer of police personnel and also the period of posting in one District. The appellants have been transferred against the transfer policy. The transfer of the appellants has been made during the mid-academic session. Lastly, he urged that learned Single Judge has not given any reason and by a cryptic order the writ petition has been dismissed.
From the material on record it appears that respondent no. 3 vide an order dated 11.5.2018 had transferred 193 constables from various districts to District Lucknow on their own requests. Petitioners' names also figured in the said transfer list. The said order was amended on 19.5.2018, wherein it was mentioned that in the previous order dated 11.5.2018 inadvertently it was mentioned that the transfer of the constables was made on their own requests. The said sentence was deleted and it was substituted that the transfer orders have been passed in public interest.
The aforesaid order dated 11.5.2018 was challenged by a large number of constables including the petitioners by means of Civil Misc. Writ Petition No. 12602 of 2018 (Rajneesh Kumar and others v. State of U.P. and others). The said writ petition was allowed on 6.7.2018. In the said writ petition the Court had summoned the original record and found that a note was put up before the Police Establishment Board for transfer of the constables on the ground of their own request. The Board on 10.5.2018 approved the proposal with the following order:
"Anukampa Ke Adhar Par Sthanantaran Chahne Wale Janpad Ka Naam."
The case of the petitioners therein was that they had never moved any application for their transfer. It was evident that the Board approved the transfer of the Constables on 10.5.2018 on the basis of incorrect noting. The Court found that the Board was misled on facts by an incorrect information furnished by the Department. In view of the said facts, the Court has set aside the order of transfer and subsequent order dated 19.5.2018 was also set aside in which the inadvertent mistake was corrected by the respondents.
From the record it appears that in compliance of the order of this Court, the third respondent-the Deputy Superintendent of Police (Establishment) vide order dated 21.8.2018 cancelled the transfer order of 48 constables who were transferred from different districts to Lucknow Traffic Police. Later, on 18.9.2018 a fresh transfer order has been passed transferring the petitioners to District Lucknow. The said order has been passed in public interest with the approval of the Police Establishment Board.
The appellants are aggrieved by the order of their transfer dated 19.9.2018.
It is a trite law that transfer is a condition of service. A Government servant has no vested right to remain posted at the place of his/ her choice. The transfer order does not violate legal right of a person holding transferable post, if he is transferred from one place to another in public interest. The order of transfer is an administrative order. The Supreme Court in unbroken line of decisions has held that the scope of judicial review in the matter of transfer is very limited. The Courts should not interfere with transfer order which is made in the public interest and for administrative reasons, unless an order of transfer is shown to be outcome of malafide exercise or stated to be in violation of statutory provision prohibiting any such transfer.
In the case of Gujarat Electricity Board and another v. Atmaram Sungomal Poshani, (1989) 2 SCC 602, the Supreme Court has observed as under:
"4. Transfer of a government servant appointed to a particular cadre of transferable posts from one place to other 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. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other. "
In the case of Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna and others, (1981) 2 SCC 72, the Supreme Court has held thus:
"2. Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reason. The courts cannot interfere in such matters. Shri Grover, learned Counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant."
The Supreme Court in the case of Union of India and others v. S.L. Abbas, (1993) 4 SCC 357, has held that the guideline in respect of transfer does not confer upon the Government employee a legally enforceable right. The relevant part of the judgment reads as under:
"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."
In the case of N.K. Singh v. Union of India and others, (1994) 6 SCC 98, the Supreme Court after referring a large number of previous judgments has held as under:
"6. Shri Ram Jethmalani, learned counsel for the appellant did not dispute that the scope of judicial review in matters of transfer of a Government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. In reply, the learned Additional Solicitor General and the learned counsel for Respondent 2 did not dispute the above principle, but they urged that no such ground is made out; and there is no foundation to indicate any prejudice to public interest."
The Supreme Court in Rajendra Singh and others v. State of Uttar Pradesh and others, (2009) 15 SCC 178, has held that a Government servant has no right to remain posted at the place of his choice. Relevant part of the judgment reads thus:
"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: 2005 SCC (L&S) 55, SCC p. 406, para 7)."
In the case of S.C. Saxena v. Union of India and others, (2006) 9 SCC 583, the Supreme Court has observed that a Government servant cannot disobey the transfer by not reporting at the place of posting. It is his duty to first report for work and if he has some difficulty / personal problem, he can make a representation after joining at his new place of posting. The Supreme Court has deprecated the practice of not reporting at the place of posting and indulging in litigation. The Court held as under:
"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Monohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly remaining absent from duty."
Guided by the settled principles of law, referred above, we find that the appellants are members of a disciplined force, therefore, they are not expected to disobey the order of their transfer and if they have some personal problem or the transfer has been passed against the transfer policy, it is open to them to move a representation to the appropriate authority for redressal of their grievance. In case it is found that they have some personal problem, the authorities ought to consider their grievance and pass appropriate order and shall make an endeavour to address the same. In the cases of genuine problems the representations of the Government employees should not be rejected mechanically.
It is true that if a transfer order is passed in violation of administrative order/ transfer policy, it does not confer a vested right to the Government employee to challenge it but at the same time, as observed by the Supreme Court in the abovementioned cases, while transferring the Government employee the authority concerned should keep in mind the transfer policy and the executive orders.
At this juncture, it is apposite to refer to a judgment of this Court in the case of Dharmendra Kumar Saxena v. State of U.P. and others, 2013(7) ADJ 53 wherein this Court has referred the judgments of the Supreme Court in respect of the effect of infraction of transfer policy and the executive instructions. The following passage is, in that regard, apposite:
"24. From the aforementioned cases, it is evident that the Government is bound by executive orders/policies. The guidelines are made to follow it and not to breach it without any justifiable reasons. Whenever the Government deviates from its policies/guidelines/ executive instructions, there must be cogent and strong reasons to justify the order; when transfer order is challenged by way of representation, there must be material on record to establish that the decision was in public interest and it does not violate any statutory provision, otherwise the order may be struck down as being arbitrary and violative of Article 14 of the Constitution. The authorities cannot justify their orders that breach of executive orders do not give legally enforceable right to aggrieved person. As observed by Justice Frankfurter "An executive agency must be rigorously held to the standards by which it professes its action to be judged".
*** *** ***
39. 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. "
(emphasis supplied) We are in agreement with the said view. The object of framing the transfer policy/ guidelines is to ensure that the power of transfer should be exercised in public interest and for the efficiency in the service. It cannot be done for unauthorized purpose. We find that law laid down in Dharmendra Kumar Saxena (supra) is based on the principle laid down by the Supreme Court in a Constitution Bench judgment in the case of Ramana Daya Ram Shetty v. International Airport Authority of India and others, (1979) 3 SCC 489 and the other cases referred in the judgment.
In the case of Dr. Amarjit Singh Ahluwalia v. The State of Punjab and others, (1975) 3 SCC 503 the Supreme Court applied the principle enunciated by Mr. Justice Frankfurter in William Vincent Vitarelli v. Fred A. Seaton, Secretary of Interior, et al., 359 U.S. 535 (1959): Manu/USSC/0176/1959 where the learned Judge said:
"An executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 318 U.S. 87-88. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. See Service v. Dulles, 354 U. S. 363. This judicially evolved rule of administrative law is now firmly established, and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. "
In Dr. Amarjit Singh Ahluwalia (supra) the Supreme Court preferred the view taken by U.S. Supreme Court while interpretating the administrative instructions. The British Courts take rather conservative view on the administrative orders. The following discussion and conclusion are apt and relevant for our purposes:
"8. ...Now, it is true that clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the, 'State' Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under articles 14 and 16. It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Seaton, 359 US 535, 546-547 : 3 L Ed. 2nd 1012. This view is of course not based on the equality clause of the United State Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action."
It is trite that non-statutory direction is not enforceable in Court. The transfer policy framed by the Government is non-statutory guideline, therefore, it cannot be enforced. The legal position in this regard is too well settled to require any reiteration. But the Supreme Court in Dr. Amarjit Singh Ahluwalia (supra) has taken a middle path that administrative orders are binding on State and it cannot completely ignore the instructions issued by it.
In the case of Home Secretary, U.T. of Chandigarh and another v. Darshjit Singh Grewal and others, (1993) 4 SCC 25 one of the questions before the Supreme Court that fell for consideration was whether policy/ guideline issued by the Chandigarh Administration was binding on the Chandigarh Engineering College which is a constituent college of the Punjab University. Justice B.P. Jeevan Reddy (as His Lordship then was) speaking for the Bench made the following observation:
"14. It may be relevant to emphasise at this juncture that while the rules and regulations referred to above are statutory, the policy guidelines are relatable to the executive power of the Chandigarh Administration. It is axiomatic that having enunciated a policy of general application and having communicated to it all concerned including the Chandigarh Engineering College, the Administration is bound by it. It can, of course, change the policy but until that is done, it is bound to adhere to it."
A policy/ policy decision/ policy matter is made by Government after considering all the points from different angles, while framing the policy the Government also takes into consideration the administrative efficiency and other incidental matters. Once the Government takes a policy decision, it is obligatory on its officials to execute its policy in the right earnest and to achieve the objects of the policy. The rule of the law casts a duty on the administrative functionaries to act within the framework of the law, be it law made by the legislature, subordinate legislation or executive orders issued under Article 73 and 162 of the Constitution. They are also obliged to follow the circulars/ memos and instructions issued by the Govenment. In the matter of policy decision of the Government, it is trite that Courts, in exercise of their jurisdiction, will not transgress into the field of policy decision. Court's interference is called for only on limited grounds, when it suffers from unreasonableness, arbitrariness or it is beyond legislative power or is beyond constitutional limits or public policy or against statutory provision. If the Courts have treated the policy/ policy decision / policy matter on such a high pedestal then Government's own employees/ officials cannot be allowed to breach and ignore its order with impunity.
We are not anomalous of the fact that transfer policy does not have a statutory force but, as discussed above, the officials cannot ignore it. The State Government has framed transfer policy for 2018-19 to 2021-22, it has been issued vide Government order dated 29.3.2018. A perusal of the Government order clearly shows that it is applicable on all the departments except staff of Secretariat. In compliance of the Government order, the Police Department has issued consequential circulars in respect of transfer policy.
In our view, the Government is bound by its policy. However, if for some reasons due to administrative exigency or public interest it becomes necessary to deviate from it then proper course is to record brief reasons at best on the file to justify the deviation from the policy. Earlier, the traditional view in England was that executive is not answerable where its action was attributed to administrative functions. Lord Denning MR in Breen V Amalgamated Engineering Union (now Amalgamated Engineering and Foundry Workers Union) and others; (1971) 1 All ER 1148, observed thus:
"The giving of reasons is one of the fundamentals of good administration."
In India also the thin line between quasi-judicial and administrative order has almost obliterated. The Supreme Court in an unbroken line of decisions has held that reasons are heart and soul of a decision. The Constitution Bench of the Supreme Court in the case of S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 has elaborately considered the importance of recording reasons by a quasi-judicial and administrative body/ authority. The necessity of recording reasons is too well settled to need any futher reiteration.
In this context reference may be made to the following decisions: S.N. Mukherjee v. Union of India, (1990) 4 SCC 594; Union of India v. Mohan Lal Capoor and others, (1973) 2 SCC 836; Institute of Chartered Accountants of India v. L.K. Ratna and others, (1986) 4 SCC 537; Ravi Yashwant Bhoir v. District Collector, Raigard and others, (2012) 4 SCC 407; Sant Lal Gupta and others v. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336; Kranti Associates Private Limited Vs. Masood Ahmed Khan, (2010) 9 SCC 496; J. Ashoka v. University of Agricultural Science and others, (2017) 2 SCC 609.
In the light of above discussion, it is demonstrably clear that even if a transfer order is found to be in violation of executive instructions or orders, Courts ordinarily should not interfere instead the affected party may approach higher authorities in the department. But if a transfer order is passed in administrative exigency or public interest and is in violation of transfer policy of the Government, then the competent authority must record brief reasons in the file for deviation from transfer policy. It is not necessary to mention said reason in transfer order. The recording of reason shall check arbitrary exercise of power and will help the judicial process and by superior administrtive heads if the order is challenged by affected person.
As regards the submission of learned counsel for the appellants that in the mid academic session the transfer cannot be made, this issue was considered by the Supreme Court in the case of Director of School Education, Madras and others v. O. Karuppa Thevan and another, 1994 Supp (2) SCC 666 and held as under:
"2. The tribunal has erred in law in holding that the respondent employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration. However, the learned counsel for the respondent, contended that in view of the fact that respondent's children are studying in school, the transfer should not have been effected during mid-academic term. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal, direct that the appellant should not effect the transfer till the end of the current academic year. The appeal is allowed accordingly with no order as to costs."
In the abovenoted case the Supreme Court has made it clear that there is no rule if the respondent's children are studying in the school, he should not have been transferred during mid-academic term. While transferring an employee the fact that his children are studying may be one of the considerations but in those cases where the exigency of the service is not urgent. It has been rightly pointed out by learned Standing Counsel that the appellants are members of disciplined force, where the considerations for transfer are different from other Class-III & Class-IV Government employees.
The judgment of the Supreme Court has been considered by a Coordinate Bench of this Court at Lucknow Bench in the case of Dr. S.P. Jindal v. State of U.P. and others, (2002) 1 AWC 306 (2), wherein this Court has observed that the Supreme Court in the case of Director of School Education, Madras v. O. Karuppa Thevan, 1994 Supp (2) SCC 666 does not lay down any principle of law. The relevant part of the judgment reads as under:
"2. The petitioner has been transferred from Meerut to Ghaziabad. Learned counsel for the petitioner has relied on the decision of the Supreme Court in Director of School Education, Madras v. O. Karuppa Thevan, 1994 Supp (2) SCC 666, and has urged that in view of this decision, the petitioner could not be transferred in the mid-term of his children studying in school. In our opinion, the aforesaid decision of the Supreme Court does not lay down any principle of law that a Government employee, whose children are studying in school, cannot be transferred during the mid-term of his children studying in school. The aforesaid decision is mere a direction of the Supreme Court without laying any principle of law. Such direction without laying down any principle of law is not a precedent.
3. A writ lies where there is any error of law apparent on the face of the record and not merely because there is some hardship to the petitioner. Most of the Government employees have children and if it is held that they cannot be transferred in mid-term of their children studying in school, there could hardly be any transfer. The aforesaid decison of the Supreme Court does not lay down any principle of law. Transfer is an exisgency of service. Hence, we cannot interfere with the impugned transfer order dated 31.10.2001. However, the petitioner may make a representation to the higher authority who will decide the same preferably within a month thereafter in accordance with law. The petition is disposed of."
For all the reasons mentioned above and having considered the submissions advanced by learned counsel for the appellants, we are satisfied that the learned Single Judge has rightly declined to interfere in the matter. However, having due regard to the facts of the case we leave it open to the appellants to make a representation to the appropriate authority after joining at their new place of posting. In the event any such representation is made, the authority concerned shall pass appropriate order in accordance with law expeditiously, preferably within six weeks from the date of communication of this order.
The special appeal is, accordingly, disposed of.
No order as to costs.
Order Date :- 19.11.2018 IB/Digamber