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2009 DIGILAW 3302 (ALL)

SATISH PAL v. STATE OF U. P.

2009-10-15

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri H.R. Misra, learned Senior Advocate, assisted by Sri K.M. Misra, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner is aggrieved by the order dated 30.9.2009 (Annexure 8 to the writ petition) whereby the State Government has transferred him from district Gautambudh Nagar to Bulandshahar. 3. The facts in brief giving rise to the present dispute are that the petitioner was appointed as Registration Clerk in the Registration Department of the State of U.P. on 24.11.1981. district Gautambudh Nagar was created vide notification dated 6.5.1997 issued under Section 11 of U.P. Land Revenue Act, 1901 bifurcating district Ghaziabad and district Bulandshahar. Thereafter, the petitioner was transferred and posted in district Gautambudh Nagar on 28.6.1997. On 13.7.2004, he was posted as Sub-Registrar III, Noida (district Gautambudh Nagar) and since then, is working as such till date. 4. It is not disputed that home district of the petitioner is Ghaziabad. The recruitment and conditions of service of Registration Clerk are governed by U.P. Registration Department (District Establishment) Ministerial Service Rules, 1978 (hereinafter referred to as ‘1978 Rules’) framed under proviso to Article 309 of the Constitution of India. Vide 1978 Rules, the appointing authority of Registration Clerk is Inspector General, Registration, U.P., Allahabad. It appears that Minister, Institutional Finance, Stamp, Court Fees and Registration, U.P. Government during the course of review of work at Bareilly, Meerut and Aligarh divisions found that there existed surplus Registration Clerks in some districts while in others they are deficit. Therefore, he sought information from the concerned Assistant Inspector General, Registration, U.P. to give the details of the sanctions strength of Registration Clerks in the concerned district, the persons actually working as also the requirement of the staff in the said district along with the detail of the home district etc. In compliance thereof, the Assistant Inspector General, Registration, Gautambudh Nagar vide his letter dated 25.6.2009 informed the Inspector General, Registration, U.P., Allahabad that the sanctioned strength of Registration Clerks at Gautambudh Nagar was 14 while actual number of Registration Clerks working in the said District was 22. He gave details of the 22 Registration clerks working in the District Gautambudh Nagar which included the name of the petitioner also. He also submitted that considering increase in the work etc., staff in District Gautambudh Nagar cannot be said to be in excess. He gave details of the 22 Registration clerks working in the District Gautambudh Nagar which included the name of the petitioner also. He also submitted that considering increase in the work etc., staff in District Gautambudh Nagar cannot be said to be in excess. However, for some Registration Clerks, he suggested rearrangement in different offices of District Gautambudh Nagar, which included the name of the petitioner also. He recommended that instead of office of Sub-Registrar III, Noida, he may be posted in the office of Sub-Registrar I, Noida. 5. Besides, the State Government, took a policy decision communicated by order dated 6.6.2009 (Government transfer policy for session 2009-10) stating therein that the session 2009-10 has been declared a ‘zero transfer session’, hence, no person of any category should be transferred in the said session. However, if any transfer is necessary, prior approval of the Chief Minister shall be obtained for the same. It is averred that neither there was any complaint against the petitioner nor any enquiry was ever initiated against him, yet all of a sudden the impugned order has been issued by the State Government transferring the petitioner from District Gautambudh Nagar to District Bulandshahar. 6. Sri H.R. Misra, learned Senior Counsel appearing for the petitioner contended that the impugned order of transfer is illegal, arbitrary and without jurisdiction for the following reasons : (1) Impugned order of transfer has been passed by the State Government though under 1978 Rules, the appointing authority of the petitioner is Inspector General, Registration and, therefore, the State Government cannot pass the order of transfer. (2) It has been passed in utter violation and transgression of Government transfer policy for the session 2009-10 as contained in the Government Order dated 6.6.1009. (3) He submitted that a decision was taken by the Government to transfer those employees who have completed more than 15 years in a District and the petitioner has completed only 12 years, yet he has been transferred by means of the impugned order and, hence, it is wholly arbitrary and illegal. (4) There is neither any complaint nor enquiry, disciplinary or otherwise, initiated against the petitioner, yet he has been transferred from one place to another. (5) The impugned order of transfer has been passed on the dictates of the Minister concerned. 7. (4) There is neither any complaint nor enquiry, disciplinary or otherwise, initiated against the petitioner, yet he has been transferred from one place to another. (5) The impugned order of transfer has been passed on the dictates of the Minister concerned. 7. Having heard learned Senior Counsel at length and given my serious thoughts to the issues raised by him, I, however, do not find myself in agreement with any of the above submissions and, in my view, the writ petition deserves to be dismissed. 8. The first question is whether the order of transfer has been passed by the competent authority, i.e., whether the petitioner could have been transferred only by the Inspector General, Registration, U.P., Allahabad, the appointing authority under 1978 Rules or even by the State Government, who is a higher authority to the Inspector General, Registration and under the rules applicable for disciplinary proceedings etc. is the appellate authority. 9. 1978 Rules defines appointing authority vide Rule 3 (b) as under : “(b) “Appointing Authority” in respect of the post of the Chief Registration Clerk means the Inspector-General of Registration, Uttar Pradesh, and in respect of the post of Registration Clerk the District Registrar of the district where the post exists;” 10. The District Registrar and Inspector General have also been defined under Rule 3 (f) and (i) as under : “(f) “District Registrar” means the officer appointed as Registrar under Section 6 of the Act;” “(i) “Inspector General” means the Inspector General of Registration, Uttar Pradesh, appointed under sub-section (1) of 3 of the Act;” 11. A perusal of the Rule 5 read with Rule 4(2) and Appendix-A shows that the said Rules apply to the following categories of service : (1) Registration Clerk; (2) Chief Registration Clerk. 12. It is no doubt true that 1978 Rules by itself do not provide for transfer of the Registration Clerk or Chief Registration Clerk from one district to another but Rule 28 provides for such matter as are not governed by the 1978 Rules and reads as under : “28. Regulation of other matters.—In regard to the matters not specifically covered by these rules or special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State.” 13. Regulation of other matters.—In regard to the matters not specifically covered by these rules or special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State.” 13. Learned counsel for the petitioner could not dispute that the general power of transfer of a Government servant is contained in Fundamental Rule 15, which reads as under : “15. (a) A Government servant may be transferred from one post to another; provided that, except— (1) on account of inefficiency of misbehaviour; or (2) on his written request, a Government servant shall not be transferred substantively to, or except in a case covered by Rule 49, appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under Rule 14. (b) Notwithstanding anything to the contrary contained in these rules, the Governor may in the public interest transfer a Government servant to a post in another cadre or to an ex-cadre post. (c) Nothing contained in Clause (a) of this rule or in Clause (13) of Rule 9 shall operate to prevent the retransfer of a Government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of Clause (a) of Rule 14.” 14. He also could not dispute that in view of Rule 28 of 1978 Rules, the petitioner’s service is transferable under Fundamental Rule 15 since the petitioner is also a Government servant. 15. Fundamental Rule 15 does not confer power of transfer only on the appointing authority. A perusal of Fundamental Rule 15 shows that an order of transfer can be passed by an authority, who is competent to transfer a Government servant. Clause (b) empowers specifically the Governor to transfer a Government servant in public interest even outside the cadre. The provision under Clause (b) confers power upon the Governor which is not to be exercised by the Governor himself, but has to be exercised in accordance with provision of the Constitution meaning thereby on the advice of the Council of the Ministers. Thus the above provision confer power upon the Government to transfer an employee from his cadre even to another cadre. Thus the above provision confer power upon the Government to transfer an employee from his cadre even to another cadre. This provision shows that not only the appointing authority but even the higher authorities, i.e., the authorities who have appellate or revisional power against the order passed by the appointing authority can also exercise power of transfer. Such power can be exercised even by an authority subordinate to the appointing authority, if such power has been delegated to such subordinate authority. 16. In the case in hand, learned counsel for the petitioner could not dispute that in the disciplinary matters etc., the orders of the Inspector General, Registration are appealable before the State Government. He also could not dispute that the State Government is an authority higher to the Inspector General, Registration. Further, since the approval of the Chief Minister has also been obtained, in the case in hand, it appears that the order accordingly has been issued by the Government. In respect to all such matters of transfer of Registration Clerks in the State of U.P., where approval has been given by the Chief Minister, it appears that the order of transfer has been issued by the State Government itself. In the absence of any provision authorizing only the appointing authority to transfer the petitioner from one place to another, in my view, it cannot be said that the order passed by the higher authority, i.e., State Government is vitiated in law. 17. Now coming to the next question, i.e. transgression and violation of transfer policy for the session 2009-10 as contained in the Government Order dated 6.6.2009, whether an order of transfer can be interfered by the Court on the Ground that it violates guidelines issued by the Government in the matter of transfer, i.e., the transfer policy. 18. In order to appreciate the above submission, it would be necessary to consider the nature of the order of transfer in relation to a Government servant. Whether an order of transfer affects any right of the Government servant, whether it causes disadvantage to him etc. At the pain of repetition, it may be reminded that the petitioner’s service is transferable and he is holding a transferable post, hence, can be transferred from one place to another. 19. Whether an order of transfer affects any right of the Government servant, whether it causes disadvantage to him etc. At the pain of repetition, it may be reminded that the petitioner’s service is transferable and he is holding a transferable post, hence, can be transferred from one place to another. 19. Consistently, transfer of an employee and in particular a Government employee has been held to be an incident of service, which does not affect any of his legal rights whatsoever. 20. Initially, in E.P. Royappa v. State of Tamilnadu, AIR 1974 SC 555 the Apex Court said that it is an accepted principle that in a public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in this matter. The Government is the best judge to decide how to distribute and utilize the services of its employees. 21. Thereafter, dealing with the transfer of the Hon’ble Judges of High Court, in Union of India v. Sankalchand Himatlal Sheth, 1977 (4) SCC 193 the Apex Court observed that transfer is an incident of service. It was further held that once a person has entered service he is bound by the conditions imposed either by the Service Rules or the Constitutional provisions. No person after having joined the service can be heard to say that he shall not be transferred from one place to another in the same service without his consent. Having accepted the service, the functionary has no choice left in the administrative action that can be taken by empowered authorities namely, transfer from one place to another, assignment of work and likewise. 22. In B. Varadha Rao v. State of Karnataka, JT 1986 (1) SC 249 the Court said that it is now well settled that a Government servant is liable to be transferred to a similar post in the same cadre. It is a normal feature and incident of Government service. No Government servant can claim to remain at a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. 23. It is a normal feature and incident of Government service. No Government servant can claim to remain at a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. 23. In B. Varadha Rao (supra) an attempt was made to argue that since in E.P. Royappa (supra) it was held that the transfer is an implied condition of service, therefore, the transfer affecting the petitioner must be treated to have altered the service conditions to his disadvantage and such an order would be deemed to be an adverse order appealable under the provisions applicable in the rules pertaining to disciplinary action, but was rejected by the Court observing that transfer is always understood and construed as an incident of service. It does not result in alteration of any of the conditions of service to the disadvantage of the employee concerned. In the reference of E.P. Royappa (supra) with respect to observation “an implied condition of service” the Apex Court in B. Varadha Rao (supra) held as “just an observation in passing” and it was held that it 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. 24. In Gujarat Electricity Board v. Atmaram Sungomal Poshani, AIR 1989 SC 1433 , the Apex Court further said that transfer from one place to another 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 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. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules. 25. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules. 25. In Shilpi Bose v. State of Bihar, AIR 1991 SC 532 , it was held “A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the 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.” 26. In the said judgment of Shilpi Bose the Hon’ble Apex Court also held that a transfer order, even if, is issued to accommodate a public servant to avoid hardship, the same can not and should not be interfered by the Court merely because transfer orders were passed on the request of the concerned employees. No person has a vested right to remain posted to a particular place, and unless the transfer order is passed in violation of any mandatory rule, the High Court had no jurisdiction to interfere with the transfer orders. Relevant extract is quoted as under : “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 order 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. “ (Para 3) 27. In Rajendra Roy v. Union of India and another, JT 1992 (6) SC 732, it was said “in a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department.” 28. “ (Para 3) 27. In Rajendra Roy v. Union of India and another, JT 1992 (6) SC 732, it was said “in a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department.” 28. In Rajendra Rai v. Union of India, 1993 (1) SCC 148 and Union of India v. N.P. Thomas, 1993 Suppl. (1) SCC 704, it was said that the Court should not interfere with the transfer orders unless there is a violation of some statutory rule or where the transfer order was mala fide. 29. In N.K. Singh v. Union of India, JT 1994 (5) SC 298, the Court said, “Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers.....” 30. In Abani Kanta Ray v. State of Orissa and others, 1995 Suppl. (4) SCC 169, the Court observed : “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 principle governing the transfer.” 31. In National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, 2001 (8) SCC 574 , the Apex Court held that transfer of a 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. 32. In Public Service Tribunal Bar Association v. State of U.P. and onother, 2003 (4) SCC 104 the Court said : “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 taken 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.” 33. Normally it is not to be interfered with by the Courts. This Court consistently has been taken 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.” 33. In State of U.P. v. Gobardhan Lal, 2004 (11) SCC 402 , the Court said : “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.” 34. In Union of India v. Janardhan Debanath, JT 2004 (2) SC 371, the Apex Court said : “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 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 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....” 35. Thus, the scope of judicial review in the matter of transfer is restricted inasmuch if an order of transfer is challenged on the ground of violation of statutory provision or lack of competence of person who has passed the order or mala fide, only then the Court should interfere otherwise it is not liable to be interfered in judicial review. The reason for such a view taken by the Courts repeatedly is that no Government servant has a right to be posted in a particular post or position once appointed in service. He cannot claim that he should continue at same place as long as he desire. 36. The reason for such a view taken by the Courts repeatedly is that no Government servant has a right to be posted in a particular post or position once appointed in service. He cannot claim that he should continue at same place as long as he desire. 36. Noticing distinction in respect to the transgression of civilian employee or those working in public sector undertakings and those of disciplined forces, in Major General J.K. Bansal v. Union of India, 2005 (7) SCC 227 , the Apex Court said : “The scope of interference by Courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made.” 37. Considering J.K. Bansal (supra), a Division Bench of this Court in Special Appeal No. 1296 of 2005, Guljar Singh v. State of U.P. and others, 2006(1) ESC 40 (All) in respect to member of police force observed as under : “The present case, if not strictly identical to the case of Major General J.K. Bansal v. Union of India and others (supra), is quite nearer to the same. The petitioner-appellant in the present case is a member of a discipline force, namely, U.P. Police. His requirement and urgency as well as the exigency regarding posting would be totally different than other civil employees. There may be numerous factors on account whereof the competent authority has to post a particular member of Police Force at a particular place and unless and until a case of mala fide is made out or there is violation of statutory provision, there would be no occasion for this Court to interfere in the case of transfer of a member of a Police Force. The scope of judicial interference would definitely be limited and narrow in case of a disciplined Force comparing to scope available in the case of other civil servants. It is not the case of the petitioner-appellant that the impugned order of transfer is in contravention of any statutory mandatory provision.” 38. The scope of judicial interference would definitely be limited and narrow in case of a disciplined Force comparing to scope available in the case of other civil servants. It is not the case of the petitioner-appellant that the impugned order of transfer is in contravention of any statutory mandatory provision.” 38. In Prabir Banerjee v. Union of India, 2007 (8) SCC 793 , transfer of a member of central service, namely, Central Excise, from one zone to another zone was challenged on the ground that inter zonal transfer was prohibited in the department of Central Excise and Customs pursuant to the circular dated 19.2.2004 issued by the department of Revenue, Ministry of Finance, Government of India. The Court held that it is no doubt true that transfer is an incident of service in all India service under the Central Service Rules, but in the absence of any direct rule relating to transfer between the two collectorates, the field may be covered by the administrative instructions. 39. In Mohd. Masood Ahmad v. State of U.P. and others, JT 2007 (12) SC 467, the Apex Court said : “Transfer is an exigency of service and is an administrative decision. Interference by the Courts with transfer order should only be in very rare cases.” It further held “This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer.” 40. In Prasar Bharti v. Amarjeet Singh, 2007 (9) SCC 539 , the Court said that an order of transfer is an administrative order. There cannot be any doubt that the transfer being an incident of service should not be interfered except some cases where, inter alia, mala fide on the part of the authorities is proved. 41. In Prasar Bharti v. Amarjeet Singh, 2007 (9) SCC 539 , the Court said that an order of transfer is an administrative order. There cannot be any doubt that the transfer being an incident of service should not be interfered except some cases where, inter alia, mala fide on the part of the authorities is proved. 41. In Union of India and onother v. Murlidhar Menon and others, 2009 (11) SCALE 416, the Court observed that even if the conditions of service are not governed by the statutory rules, yet the transfer being an incident of service, an employee can be transferred which may be governed by the administrative instruction since an employee has no right to be posted at a particular place. 42. Recently, in Rajendra Singh and others v. State of U.P. and others, JT 2009 (10) SC 187, the Court observed that a Government servant holding a transferable post has no vested right to remain posted at one place or other, he is liable to be transferred from one place to other. 43. The Court in Rajendra Singh (supra) also observed that the transfer orders issued by the competent authority do not violate any of the legal rights of the concerned employee. If a transfer order is passed in violation of a executive instruction or order, the Court ordinarily should not interfere with the order and the affected party should approach the higher authority in the department. 44. Thus, from the above it is evident that since an employee holding a transferable post has no right to continue at a particular place or position, an order of transfer does not violate any of his legal right whatsoever. That being so, an order of transfer cannot be interfered except of the contingency of mala fide, vviolation of Rule and competence since it cannot be said to be an order affecting the legal rights of an employee. The limited scope of interference in a judicial review, therefore, has been left to the cases where the order is either violative of statutory provision or is vitiated on account of mala fide or has been issued by a person incompetent. The transgression of administrative guidelines at the best provide an opportunity to the employee concerned to approach the higher authorities for redressal but its consequences would not go to the extent to vitiate the order of transfer. The transgression of administrative guidelines at the best provide an opportunity to the employee concerned to approach the higher authorities for redressal but its consequences would not go to the extent to vitiate the order of transfer. The question as to whether violation of transfer policy or guide lines relating to transfer contained in an executive order or executive insturcitoins or policy for a particular period laid down by the Government would result in vitiating the order of transfer has also been considered repeatedly in past by Apex Court as well as this Court. 45. The enforceability of a guideline laid down for transfer specifically came to be considered by the Apex Court in Shilpi Bose (supra) and it was held that even if transfer order is passed in violation of the executive instructions or orders, the Courts ordinarily should not interfere with the order and instead affected party should approach the higher authorities in the Department. 46. Again in Union of India and others v. S.L. Abbas, AIR 1993 SC 2444 a similar argument was considered and in para 7 of the judgment the Court said : “The said guidelines, however, does not confer upon the Government employee a legally enforceable right.” 47. Referring its earlier judgment in Bank of India v. Jagjit Singh Mehta, 1992 (1) SCC 306 the Apex Court in S.L. Abbas (supra) observed as under : “The said observations in fact tend to negative the respondents contentions instead of supporting them. The judgment also does not support the Respondents’ contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterized as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.” 48. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.” 48. Same thing has been reiterated by the Apex Court in Gobardhan Lal (supra) in the following words : “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.” 49. Besides the judgments of the Apex Court, this Court has also considered the same time and again and has reiterated that the order of transfer made even in transgression of administrative guidelines cannot 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. Some of such authorities are as under. 50. In Rajendra Prasad v. Union of India, 2005 (2) ESC 1224 , a Division Bench observed : “Transfer policy does not create legal right justiciable in the Court of law." 51. In Division Bench of this Court in Civil Misc. Writ Petition No. 52249 of 2000 (Dr. Krishna Chandra Dubey v. Union of India and others) decided on 5.9.2009 said : “It is clear that transfer policy does not create any legal right in favour of the employee. It is well 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 breath of statutory duty on the part of the employer.” 52. In Gulzar Singh (supra) and Ram Niwas Pandey and others v. Union of India and others, 2006(1) ESC 454 (All)(DB) also this Court held that transgression of transfer policy or executive instructions does not give a legally enforceable right to challenge an order of transfer. 53. In Civil Misc. In Gulzar Singh (supra) and Ram Niwas Pandey and others v. Union of India and others, 2006(1) ESC 454 (All)(DB) also this Court held that transgression of transfer policy or executive instructions does not give a legally enforceable right to challenge an order of transfer. 53. In Civil Misc. Writ Petition No. 243 (SB) of 2007 Uma Shankar Rai v. State of U.P. and others, decided on 31.7.2007 this Court observed as under : “Dr L.P. Misra, learned counsel for the petitioner seriously contended that though the transfer of Government servant is made in exigencies of service, yet where transfer policy has been framed, the same is expected to be adhered to and cannot be defied in a discriminatory and selective manner. Any action of the authorities, even in respect of the matter of transfer, if is inconsistent to such policy would vitiate the order of transfer since it would render the same arbitrary and illegal. Referring to para 2 and 3 of the transfer policy dated 11.5.2006, he contended that the respondent No. 4 having completed his tenure of six years in the District and ten years in the Commissionery even at Mirzapur yet he has again been sought to be posted at Mirzapur to accommodate him and the petitioner has been transferred to Varanasi, therefore, the impugned order is patently illegal. In support of the submission that order of transfer, if has been issued in violation of transfer policy, the same can be assailed since the transfer policy was laid down to adhere to and not to violate, reliance has been placed on the apex Court’s decision in Home Secretary, U.T. of Chandigarh and onother v. Darshjit Singh Grewal and others, (1993) 4 SCC 25 ; N.K. Singh v. Union of India and others, (1994) 6 SCC 98 ; R. v. Secretary of State, (1985) 1 All. ER 40; and a Division Bench decision of this Court in Smt. Gyatri Devi v. State of U.P. and others, 1998 (16) LCD 17. In other words the learned counsel for the petitioner contends that even through the order of transfer may not be challenged on the ground of mere violation of transfer policy, yet such order can be interfered with if the authorities who are supposed to adhere with the guidelines, have failed to do so. In our view the submission is mutually destructive and self contradictory. In our view the submission is mutually destructive and self contradictory. What the petitioner in fact has sought to argue is that the Executive once has laid down certain standards for guidance in its functioning, it must adhere to and any deviation thereof would vitiate the consequential action, which may be challenged in writ jurisdiction. The argument though attracting but in the matter of transfer, however, in our view, the same has no application. Transfer of Govt. servants in the State of U.P. is governed by the provisions contained in Fundamental Rule- 15, which reads as under : ................................. It is not disputed that the post held by the petitioner is transferable and he is liable to be transferred from one place to another. The employer once possess right to transfer an employee from one place to another, in our view, there is no legal or otherwise corresponding obligation upon him to inform his employee as to why and in what circumstance an employee is being transferred from one place to another. Shifting and transferring of the employee from one place to another involves more than thousand reasons and it is difficult to identify all of them in black and white. The commonest reason may be a periodical shifting of person from one place to another, which does not require any special purpose; the other reasons include necessity of a particular officer at a particular place; avoidance of disturbance or inconvenience in working of the officer on account of a person at a particular place; unconfirmed complaints and to avoid any multiplication thereof; transfer may be resorted to and so on. These are all illustrations. The question as to whether in any of the circumstances when a person is transferred from one place to another without casting any stigma on him, does it infringe, in any manner, any right of such employee which may cause corresponding obligation or duty upon the employer to do something in such a reasonable manner which may spell out either from its action or from the record and when challenged in a Court of law, he is supposed to explain the same, In our view, the answer is emphatic No." 54. It further held : “In view of the aforesaid well settled principles governing the matter of transfer, the consistent opinion of the Courts in the matter of judicial review of the transfer orders has been that the order of transfer is open for judicial review on very limited grounds; namely if it is in violation of any statutory provisions or vitiated by mala-fides or passed by an authority holding no jurisdiction. Since the power of transfer in the hierarchical system of the Government can be exercised at different level, sometimes for the guidance of the authorities for exercise of power of transfer, certain executive instructions containing guidelines are issued by the Government so that they may be taken into account while exercising power of transfer. At times orders of transfer have been assailed before the Court on the ground that they have been issued in breach of the conditions of such guidelines or in transgression of administrative guidelines. Looking to the very nature of the power of transfer, the Courts have not allowed interference in the order of transfer on the ground of violation of administrative guidelines and still judicial review on such ground is impermissible unless it falls within the realm of malice in law. The reason behind appears to be that the order of transfer does not violate any right of the employee and the employer has no corresponding obligation to explain his employee as to why he is being transferred from one place to another.” 55. The Division Bench judgment in Uma Shanker Rai (supra) has been followed in another Division bench of this Court in Jitendra Singh v. State of U.P. and another, 2009(3) ADJ 569 . 56. Learned counsel for the petitioner placed reliance on the Apex Court decision in JT 1993 (4) SC 25, Home Secretary, U.T. of Chandigarh and another v. Darshjit Singh Grewal and others and certain judgments of this Court in Akash Sharma v. State of U.P. and others, 2007(3) ESC 1730 (All); Mohd. 56. Learned counsel for the petitioner placed reliance on the Apex Court decision in JT 1993 (4) SC 25, Home Secretary, U.T. of Chandigarh and another v. Darshjit Singh Grewal and others and certain judgments of this Court in Akash Sharma v. State of U.P. and others, 2007(3) ESC 1730 (All); Mohd. Zeeshan v. State of U.P. and others, 2008(3) ESC 1753 : 2008(4) ADJ 536 ; Writ Petition No. 4405 (SS) of 2008, Satya Dev Pandey v. State of U.P. and others decided on 6.8.2009 and W.P. No. 35254 of 2009, Gulab Singh v. State of U.P. and others decided on 16.7.2009 in support of the submission that the transfer in violation of executive instructions can be challenged since the authorities cannot ignore the executive instructions or the policy laid down by themselves and must observe the same. Disregard of the transfer policy without any proper justification would render the order of transfer arbitrary. Once the guidelines have been laid down by the Government in the form of transfer policy, they are bound to follow and observe the same in words and spirit and in any case in substantial manner. 57. This Court finds that in Darshjit Singh Grewal (supra), the case before the Apex Court was not of transfer of Government servant but transfer of students from one affiliated College to another. In order to govern migration of students from one college to another, certain rules were framed by Syndicate of Punjab University in exercise of its power under Section 20 of the Punjab University Act, 1947. Similarly for migration of students in various technical/ profession college under the control of Chandigarh Administration, since Chandigarh Administration provides finance to the engineering colleges within the union territory of Chandigarh, it has issued a policy vide letter dated 6.9.1991 governing such migration. It was found that said guideline was not inconsistent with the Rules and Regulations made under the Punjab University Act, 1947 but contains similar provisions. The students for Medical Colleges are normally not liable to be transferred from one College to another during the Course they are studying in particular College and in a particular discipline since it has various repercussions. The students for Medical Colleges are normally not liable to be transferred from one College to another during the Course they are studying in particular College and in a particular discipline since it has various repercussions. Students while seeking admission in Medical Colleges are entitled to give their option for admission against a seat in a particular Medical College and allotment is normally made on the basis of the merit of the students concerned. Migration, if allowed in a routine course, would be destructive to the said scheme where the students are given admission in a particular Medical College based on their merit position and their option etc. The rules, regulations and scheme for migration, thus, were bound to affect the right of the concerned students of one or the other Medical College or those students who were seeking admission in a particular Medical College, but may not get due to migration allowed by the authorities concerned to that College. The rules and regulations, therefore, had the effect of directly effecting the rights of the students community undergoing medical education in the State of Punjab or otherwise. Thus, in the absence of any otherwise right of seeking transfer to some extent the same was allowed by the rules and regulations which were found statutory and the policy guidelines issued by the Chandigarh Administration, which, therefore, conferred a limited right upon a student studying in a particular College to seek migration in given certain circumstances and following the conditions laid down therein. Thus, here was a case where the executive instructions conferred though limited but a right upon the student community and in these context, the executive order was held to be binding upon the administration. It is in these circumstances, the Court held that the policy of general application having been enunciated and communicated to all, the administration was bound by it and until changed, it is bound to adhere to it. Thereafter, considering the validity of the order of transfer i.e. migration of the students from one college to another, the Court found the same to be contrary to the statutory rules and, therefore, judgment in Darshjit Singh Grewal (supra), in my view, has no application at all to the cases of the transfer of Government servants. Thereafter, considering the validity of the order of transfer i.e. migration of the students from one college to another, the Court found the same to be contrary to the statutory rules and, therefore, judgment in Darshjit Singh Grewal (supra), in my view, has no application at all to the cases of the transfer of Government servants. In the matter of transfer of Government servant, since they have no legal right whatsoever to seek their posting at a particular place. The order of transfer does not affect their legal rights, this question does not arise at all. The executive orders and guidelines which were available in the case of Darshjit Singh Grewal (supra) cannot be placed at par with the guidelines pertaining to transfer of Government servants issued by the State Government though by an executive order. When the Government Servant has no right in the matter of posting etc. the guidelines cannot create something which was not already existed and, therefore, will not result in creating a better right to the Government servant which otherwise is not there even though the matter of transfer is governed by the statutory rules. 58. In Mohd. Zeeshan (supra), the Court found that the order of transfer vitiated since it was passed at the instance of politicians who were not representative of the people at the relevant time. I do not find it as a proposition of law that this Court nowhere in the above judgment held that the transfer policy, if not followed, would confer a legally enforceable right to challenge an order of transfer. 59. Similarly, in Akash Sharma (supra), the Court after analysing the facts of a particular case found that the petitioner Akash Sharma within a short span of time was frequently transferred and sometimes the order of transfer was changed within few days. Further not being satisfied with the stand taken by the Government the Court perused the record of the State Government and based on the facts recorded the following finding : “The transfer orders has been amended, cancelled at the whims of the local politician who did not want the government employee to be transferred. The cancellation, modification or amendment in the transfer orders was not in public interest or on administrative grounds, but on account of personal interest of the politician or of the government employee itself.” 60. The cancellation, modification or amendment in the transfer orders was not in public interest or on administrative grounds, but on account of personal interest of the politician or of the government employee itself.” 60. It is, therefore, in the particular facts and circumstances of the case, the Court directed the Government to abide by its policy of transfer of the employees who have completed a particular period at a particular place, but it has not been said anywhere that a mere non compliance of observations of transfer policy would vitiate the order of transfer. 61. In Satya Dev Pandey (supra) again the Court found that the decision of transfer was not taken in public interest or administrative exigencies and though by the Government Order dated 10.6.2008 clerical cadre, paramedical cadre and nurse cadre were exempted from transfer, though were transferred without looking into the said order. In the said judgment also, I do not find any proposition of law laid down by the Hon’ble Single Judge that an order of transfer would be vitiated in law and cannot be changed unless on the ground that it has violated the transfer policy. 62. In Gulab Singh (supra) without referring to any binding precedent or authority of the Apex Court or this Court the Hon’ble Single Judge disposed of the writ petition by keeping the order of transfer suspended till prior approval as provided in the policy decision dated 6.6.2009 of the Chief Minister is obtained. In the absence of any discussion on the question as to whether the policy decision is enforceable in law, the above augment cannot be said to be a binding precedent on the subject. On the contrary, as already discussed, the Apex Court as well as several Division Bench of this Court have clearly held that an order of transfer is not assailable in a Court of law only on the ground that it is in transgression of an transfer policy. Learned counsel for the petitioner could not place any other authority, wherein a different view has been taken and which is binding on this Court. Learned counsel for the petitioner could not place any other authority, wherein a different view has been taken and which is binding on this Court. In any case, the entire argument, in my view his wholly academic for the reason that the petitioner himself has admitted in para 22 of the writ petition that prior approval of the Chief Minister has been obtained before passing the impugned order of transfer, that being so even on facts in the present case, the impugned order cannot be said to be violative of the Government Order dated 6.6.2009. 63. The next submission is that the impugned order has been passed at the dictates of the Minister concerned. Firstly no such material has been placed on record and secondly in view of the fact that the transfer has been effected in the case in hand with the prior approval of the Chief Minister in accordance with the Government Order dated 6.6.2009 which is sheet anchor of the petitioner himself, the submission that the order of transfer is at the behest of the Minister, or at the dictates of Minister is wholly misconceived and has to be rejected outright. 64. Besides, the averments in respect to the allegations which according to the counsel for petitioner are in regard to his plea of malice in law are contained in paras 19, 20, 21, 22 and 23. The same were read before this Court by Sri Misra. It is interesting to notice that all these paragraphs have been sworn on legal advice. The plea of malice in law based on the facts which are extraneous and co-lateral for the purpose sought to be achieved and that is how an executive order can be said to be vitiated on account of malice in law. Those facts, thus, have to be pleaded or sworn either on the basis of personal knowledge or record or informations received as the case may be. Whether those facts collectively would constitute malice in law or not is a legal issue but existence of facts has to be pleaded as fact existed and in my view cannot be sworn on the basis of legal advice. Whether those facts collectively would constitute malice in law or not is a legal issue but existence of facts has to be pleaded as fact existed and in my view cannot be sworn on the basis of legal advice. Besides, learned counsel for the petitioner could not explain as to how he could advise his client about the existence of facts contained in paras 19, 20, 21, 22 and 23 though the petitioner himself neither knew about them nor has undertaken any responsibility to swear it on personal knowledge. Thus also the plea of malice in law, being not substantiated, is liable to be rejected. 65. The submission of learned counsel for the petitioner that there was no adverse material nor enquiry etc. against him and, therefore, he ought not to have been transferred is noted to be rejected for the simple reason that the order of transfer is not punitive, but is a general order whereby about 191 Registration Clerks have been shifted from one place to another. Therefore, the submission that in the absence of any adverse material he ought not to have been transferred is wholly misconceived. If an order of transfer is passed in public interest or due to some administrative exigency, there is no requirement or condition precedent that the same can only be passed if there is some complaint or enquiry against the person concerned. 66. At this stage, learned counsel for the petitioner submitted that it is a mid session transfer and cause some hardship to the petitioner on account of his illness. So far as the matter of personal hardship etc. is concerned, it is well settled that it is always open to the concerned employee, who has been transferred from one place to another to approach the higher authorities of the department appraising them of the hardship, if any, being faced by the employee concerned on account of transfer from one place to another and it is always open to the higher authorities to look into grievance of the concerned employee and pass appropriate order. This Court, however, can take judicial notice of the fact that from Gautambudh Nagar, six person have been transferred and five has been posted in the adjoining District Bulandshahar while one has been posted in District Bijnor since he belong to District Bulandshahar itself. This Court, however, can take judicial notice of the fact that from Gautambudh Nagar, six person have been transferred and five has been posted in the adjoining District Bulandshahar while one has been posted in District Bijnor since he belong to District Bulandshahar itself. Out of these six persons, three, namely, the petitioner, Sri K.K. Garg and Sri S.K. Tyagi have their own District as Ghaziabad, two, namely, Vaseek Ahmad and Ramesh Chandra Gaur have their home districts at Bulandshahar and one Thomas Ram Tyagi belong to District Meerut. The petitioner has been transferred to the adjoining area only. 67. In view of the above discussions, I do not find any merit in the writ petition. Dismissed. ————