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2001 DIGILAW 313 (AP)

P. Shaikshavali v. Superintendent of Police, Ananthapur

2001-03-23

S.B.SINHA, S.R.NAYAK

body2001
S. R. NAYAK, J. ( 1 ) THIS writ petition filed by the applicant no. 1 before the Andhra Pradesh administrative Tribunal at Hyderabad is directed against the order dated 16-02-2001 made in O. A. Nos. 8707 of 2000 and 694 of 2001 dismissing the original applications filed by the petitioner and another in which the validity and legality of the proceedings of the 1st respondent herein dated 23-12-2000 transferring the petitioner from the Roddam Police Station to Puttaparthy was assailed. ( 2 ) BEFORE the learned Tribunal while assailing the validity of the impugned transfer order dated 23-12-2000, it was contended by the applicants that they did not complete five years period at Roddam police Station and in ordinary course, they could be transferred only after completion of five years; the transfer was effected during the middle of the academic year and that caused lot of hardship to them and their family members; the transfer was effected to accommodate the police constables attached to security wing at puttaparthy who went on mass sick leave to protest against the alleged harassment by the concerned Deputy Superintendent of police. ( 3 ) THE respondents filed counter-affidavit in which they contended that the applicants are accustomed to heavy drinking and therefore they are creating problems now and then and that the concerned Sub-Inspector, Circle Inspector and Sub-Divisional Police Officer have recommended for the transfer of the applicants and the transfer was effected only on administrative grounds. As regards the petitioner herein, it is stated in the counter-affidavit thus:"it is the case of the respondents that the applicant in OA No. 694 of 2001, shri P. Shaikshavali was imposed a punishment of reduction in time-scale of pay by four stages for two years with effect on future increments and pension, and, further the suspension period from 22-6-1996 to 23-12-1996 was treated as not on duty vide proceedings dated 29-1-2000. It is said that this applicant exhibited grave misconduct and misbehaved with head Constable 747 on the intervening night of 20/21-2-1996 at Police Check post in intoxication state". ( 4 ) IT was argued before the learned tribunal, that if there were complaints against the applicants, the respondents should not have resorted to the act of transferring the applicants and they should have framed charges against the applicants on the allegations and therefore the transfer of the applicants was punitive in nature. ( 4 ) IT was argued before the learned tribunal, that if there were complaints against the applicants, the respondents should not have resorted to the act of transferring the applicants and they should have framed charges against the applicants on the allegations and therefore the transfer of the applicants was punitive in nature. Rejecting the above contention of the applicants, the learned Tribunal observed thus:"7. It is a fact that the respondents have not initiated disciplinary enquiry against the applicants even though they received certain complaints against them. This may be due to lack of evidence, or direct complaints against them or for any other administrative reasons. However, it is also the case of the respondents that the concerned S. I. , C. I. and D. S. P. also recommended for their transfer from their places on administrative grounds. In such circumstances, and to keep up the image of the department in the eyes of public, there is every reason for the authorities for recommending transfer of the applicants on administrative grounds. Hence, I find no illegality or irregularity in issuing the impugned transfer orders. Further, it is also contended that the Inspector General of Police gave instructions in Circular memo No. 130/e2/2000, dated 14-12-2000 delegating powers to Unit officers to transfer Constables who have completed three years of tenure. Thus, in view of such circular the Unit officers are having every authority to transfer the Constables after they complete three years of service. In view of the facts and circumstances of the case, I am unable to accept the contention of the learned Counsel for the applicants that the transfers are punitive in nature". ( 5 ) BEFORE us Sri K. Muralidhar Reddy, learned Counsel appearing for the petitioner would urge the same grounds taken in the Original Application and the contentions put forth before the learned tribunal. ( 6 ) ESSENTIALLY the impugned transfer order was assailed mainly on two grounds: (i) on the ground of personal hardship on account of the transfer; (ii) on the ground that the transfer was punitive because it was effected on account of certain allegations levelled against the applicants. ( 6 ) ESSENTIALLY the impugned transfer order was assailed mainly on two grounds: (i) on the ground of personal hardship on account of the transfer; (ii) on the ground that the transfer was punitive because it was effected on account of certain allegations levelled against the applicants. It is well settled by a catena of decisions of the apex Court and this Court that transfer of a government servant who is appointed to a cadre of transferable post from one place to another, is an ordinary incident of service and therefore, does not result in any alteration of conditions of service to his disadvantage and therefore, transfer cannot be said to be punitive in nature. Transfer is an incident of service and an employee has no right to be posted at a particular place. An employee holding a transferable post has no legal right to insist for his posting at a place of his choice. Transfer of public servant made on administrative grounds of public interest should not be interfered with by the Courts unless there is strong and pressing grounds rendering the transfer order illegal on the ground of violation of some mandatory statutory rules or on the ground of mala fide or on the ground of lack of authority. The Court or the Tribunals cannot sit as appellate Court over the orders of the transfers made on administrative grounds. The reason for this self-imposed restraint is that the wheels of administration should be allowed to run smoothly and the courts or the Tribunals are not expected to interdict the administrative system. ( 7 ) THE Supreme Court in Gujarat electricity Board vs. Atmaram Sungomal poshani held that transfer is an incidence of service and an employee has no right to be posted at a particular place and that transfer cannot be evaded merely on ground of pendency of representation or difficulties. In Mrs. Shilpi Base vs. State of Bihar, the supreme Court held that the Courts should not interfere with transfer orders which are made in public interest and on administrative grounds unless they are made in violation of mandatory statutory rules or on the ground of mala fide and that even where executive instructions are violated, the Court ordinarily shall not interfere and the concerned transferee employee should approach the higher-ups in the department for the relief. In the same decision, it is also held that even where the transfer is effected on request of employees to avoid hardship, the same should not be interfered with by the Courts. In Union of india vs. S. L. Abbas, it was held that no employee has any vested right to seek transfer to a place of his choice. Furthermore, in State ofmadhya Pradesh vs. S. S. Kourav, the Apex Court held that the court cannot decide relative hardship; it is - for the administration to appreciate on a representation that may be made by the concerned employee and that hardship caused to an employee from transfer is not and cannot be a ground for judicial review of the transfer order. To the same effect is the decision of the Apex Court in Union of india vs. H. N. Kirtania. In Abani Kanta Ray vs. State of Orissa, the Supreme Court opined 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 principle governing the transfer. In Chief general Manager (Telecom) vs. Rajendra7, the apex Court handed down the opinion that in the absence of strong and compelling grounds rendering the transfer order improper or unjustified, such an order should not be subjected to judicial review particularly when at the other place to which the transferee wanted to be retained or posted, there were complaints against him. ( 8 ) WHO should work where is the prerogative of any employer and that discretion cannot be curtailed lightly by the court keeping in mind the efficacy of the governance of the State unless-there are weighty and substantive grounds. In deciding the question who should work where, it cannot be said that the employer should always eschew the complaints and allegations made by the public. Any public administration exists for the people. If that is so, the grievances, complaints and allegations received by the transferring authorities from the public against their employees cannot be treated as wholly irrelevant material in deciding who should work where. Any public administration exists for the people. If that is so, the grievances, complaints and allegations received by the transferring authorities from the public against their employees cannot be treated as wholly irrelevant material in deciding who should work where. It is true that the transferring authority without its own application of mind cannot transfer an employee solely on the ground of allegations made by persons outside the department, but undoubtedly the employer may take into account allegations and complaints levelled against an employee in deciding his transfer if such allegations are found to be justified and correct on an independent application of mind. V. S. Malimath, J, as he then was, speaking for the Karnataka High Court in the case of Harischandra Ullal vs. Excise commissioner has opined that if the transferring authority in transferring an employee considers and takes into account complaints made by citizens, legislators against such employee, the transfer order does not vitiate on that ground. ( 9 ) THE Supreme Court in T. D. Subrananian vs. Union of India and others held that when transfer of an officer was effected on the ground that the officer was lacking in tact with his subordinates and large number of employees were not handled tactfully when he tried to put the things right, the validity of transferring in such a situation was held proper and that no stigma attached to the officer. ( 10 ) IN the light of the principles and case law stated above, it should be held that the personal hardship stated by the writ petitioner on account of his transfer to puttaparthy cannot be a valid ground to interfere with the transfer order. Similarly, simply because the respondent authorities have not initiated disciplinary action against the petitioner on the allegations received against him, it cannot be said that the impugned transfer order becomes punitive in nature. Having regard to the facts and circumstances of this case, we are not persuaded to subscribe to the view that the impugned transfer suffers from vice of mala fide. The reasons given by the learned tribunal in para (7) of the impugned order in our considered opinion are valid and justified to reject the Original Application. No ground is made out for interference of the impugned order of the learned Tribunal and accordingly the writ petition is dismissed, however, with no order as to costs.