Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1466 (ALL)

Om Tiwari v. State of U. P. and Others

2011-06-22

SUDHIR AGARWAL

body2011
Sudhir Agarwal, J. 1. Heard learned counsel for the parties and perused the material on record. 2. Petitioner is aggrieved by the impugned order of transfer dated 3.6.2011 which has been issued by the District Panchayat Raj Officer, Mahoba, respondent no. 3 in compliance of the approval of transfer dated 28.5.2011 by District Magistrate, Mahoba transferring the petitioner from Vikas Khand-Charkhari to Vikas Khand-Jaitpur District Mahoba. 3. It is contended that the impugned order of transfer refers that such officer who have completed ten years are being transferred while the petitioner in the present development block has completed only about six years and more and therefore he cannot be transferred. It is further contended that the impugned order is vitiated on account of malafide. 4. So far as the first aspect of the matter is concerned, I find on bare perusal of the impugned transfer order that the transfer of the officers has been done on various grounds i.e. who have completed more than ten years of service in the same block, in public interest and on administrative grounds. For those who has worked for a long time in the same block, there was no occasion to mention the "administrative reasons" for transfer. All these clause in the impugned transfer order are separate. Therefore, the submission is misconceived. 5. Now, coming to the second aspect of the matter, it is well settled that the allegation of malafide shall not be entertained by the Court if the person against whom allegations is made is not impleaded eo-nomine. The plea of malafide has to be specifically pleaded and supported by sufficient material but there is nothing on record to show that the impugned order suffers from any malafide. In support of this plea, petitioner in a very vague manner in paragraph no. 13 of the writ petition has stated that he has been transferred under political pressure. Hence even this plea has not been substantiated. It is not the case of the petitioner that his transfer is de-hors the rule or has been made by a person not competent to transfer. 6. Transfer is an exigency of service and no person can retrieve his posting on his choice. It is the discretion of the competent authority to decide as to which person is to be posted where. 7. Judicial review of an order of transfer is very limited. 6. Transfer is an exigency of service and no person can retrieve his posting on his choice. It is the discretion of the competent authority to decide as to which person is to be posted where. 7. Judicial review of an order of transfer is very limited. The grounds on which such order is permitted to be interfered under judicial review have not been made out. 8. Learned counsel for the petitioner could not show that his services are not transferable from one place to another. He also could not show that the impugned order of transfer is contrary to any statutory rules or his bad or mala fide. In fact none has been impleaded eo-nomine in the writ petition, therefore, the plea of mala fide can not be entertained at all. The Apex Court has consistently held that the order of transfer can be reviewed in a Court of Law only if it is contrary to rules or is bad on account of mala fide or the authority concerned has no jurisdiction to transfer. 9. In Mrs. Shilpi Bose and others Vs. State of Bihar & others, AIR 1991 SC 532 dealing with a similar issue, the Apex Court said that 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. 10. In Union of India and others Vs. S.L. Abbas, AIR 1993 SC 2444 , in para 7 of the judgment, their Lordships in the Apex Court held as under: "The said guideline however does not confer upon the Government employee a legally enforceable right." 11. In S.L. Abbas (supra) the employee placed reliance on an earlier judgement of the Apex Court in Bank of India Vs. Jagjit Singh Mehta, 1992(1) SCC 306 , in support of his contention where certain guidelines have been issued, as far as practicable, they must be adhered to and based on the said decision, it was contended where transfer order has been issued in breach of administrative guidelines, when challenged, it is incumbent upon the authorities to give reasons, which justify breach of such guidelines and in absence thereof, the order has to be set aside being arbitrary and illegal. Negativing this contention and after referring the judgement in Jagjit Singh Mehta (supra), the Apex Court is S.L. Abbas (supra) said: "The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgement also does not support the Respondent's 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 the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterised 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." 12. The judgement in S.L. Abbas (supra) has clearly set at rest the question that the order of transfer when challenged on the ground of violation of administrative instructions/guidelines, neither it is obligatory on the authorities to explain as to why they have passed the order of transfer, which is not consistent with the conditions of the administrative guidelines nor failure to provide such explanation would result in to draw an inference that the exercise of power is malicious in law. Since the order of transfer has to be assailed by pleading mala fide as such and not to infer on the basis that the order of transfer is in breach of the conditions of administrative exigency, the breach of administrative exigency would not justify quashing of the order of transfer and therefore, in no manner the argument can be allowed to be stretched so as to invite interference with the order of transfer except where order of transfer is found to be in violation of statutory provision or is vitiated by mala fide. 13. Law laid down herein above has consistently been followed subsequently also, inasmuch as, in National Hydro-Electric Power Corporation Ltd. Vs. 13. Law laid down herein above has consistently been followed subsequently also, inasmuch as, in National Hydro-Electric Power Corporation Ltd. Vs. Sri Bhagwan and another, AIR 2001 SC 3309 Apex court held as under: "It is by now well-settled and often reiterated by this Court that no Government servant or employee of Public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned." (emphasis added) 14. Then in State of U.P. Vs. Gobardhan Lal, AIR 2004 SC 2165 , it was held: "It is too late in the day for any Govt. servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. The order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision." (emphasis added) 15. All the judgements have been quoted and followed in the case of Major General J.K. Bansal Vs. Union of India and others, AIR 2005 SC 3341 . 16. A Division Bench of this Court also (in which I was a member) in Special Appeal No. 1293 of 2005, Gulzar Singh Vs. State of u.P. and others, decided on 07.11.2005 and Civil Misc. Writ Petition No. 68143 of 2005, R.K. Pandey Vs. New India Insurance Company Ltd. and others, decided on 26.10.2005, have also taken the same view. 17. It would be appropriate at this stage to reproduce caution in the words of the Apex court as expressed in Gobardhan Lal (supra) as under: "A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fide when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer." 18. The judgement of the Apex Court in N.K. Singh (supra) which has been relied by the petitioner, has been considered by a Division Bench of this Court (in which I was also a member) in Writ Petition No. 243(S/B)/2007, Uma Shanker Rai Vs. State of U.P. & Others decided on 31.07.2007 and this Court held as under: "The case of N.K. Singh (supra) of which learned counsel for the petitioner has placed reliance on para 23 of the judgement, where the Apex Court has observed as under: "..........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 and the courts lack the necessary expertise for personnel management of all government departments." 19. The writ petition is devoid of merit and is hereby dismissed.