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2015 DIGILAW 2608 (ALL)

Ramesh Chandra Mishra v. State of U. P.

2015-08-25

ANIL KUMAR

body2015
JUDGMENT Anil Kumar, J. – Heard Sri Satish Kumar Sharma, learned counsel for petitioner, learned State counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order of transfer dated 13.07.2015 passed by Consolidation Commissioner, Uttar Pradesh, Lucknow by which he has been transferred from the Sultanpur to Sonbhadra. 3. Learned counsel for petitioner while challenging impugned order also submits that as the petitioner's two daughters are studying at Sultanpur and if the petitioner is compelled to join at his transferred place at Sonbhadra in pursuance to the impugned order, the study of his children will suffer in the present era of competition, so the same is liable to be set aside. 4. In addition to above said facts, he further submits that petitioner's son is handicapped, so in view of the transfer policy which governs the field, the impugned order is contrary to the terms of transfer policy as well as in violation of principles of natural justice, liable to be set aside. 5. Sri Gyanendra Kumar Srivastava, learned Standing Counsel while defending the impugned transfer order submits that the ground taken by learned counsel for the petitioner for challenging the impugned transfer order in the instant writ petition is in contravention of law laid down by this Court in the case of Ashok Kumar Mishra v. State of U.P. and others, 2015(6) ADJ 498 , so the present writ petition filed by the petitioner liable to be dismissed. 6. Transfer is an incidence of service and it does not require the consent of the employee. A public servant has no vested right to seek transfer to a location of his choice. An employee can be transferred on administrative exigencies and in public interest. It is not obligatory on the part of the employer to comply with the principles of natural justice before making an order of transfer. The Government is empowered to transfer a civil servant from one post to another or to an equivalent post in the same cadre or grade or carrying the a lien. No employee can claim to a particular posting as the matter of posting is entirely in the domain of the administration. 7. The Government is empowered to transfer a civil servant from one post to another or to an equivalent post in the same cadre or grade or carrying the a lien. No employee can claim to a particular posting as the matter of posting is entirely in the domain of the administration. 7. No Government employee has any right to be posted at any particular place forever, because transfer is not only an incidence of service, but also a condition of service, and as such it is necessary in public interest and in the interest of efficiency in public administration. There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The transfer in posts, which are in the same grade or cadre or considered equivalent can be affected on administrative exigencies. 8. The general principles in respect to the transfer an employees that can be deducted from various judicial pronouncements and the statutory provisions are as follows: (i) that an employee cannot be transferred out of his cadre or establishment against his wish; (ii) that no transfer can be justified merely because the pay is not affected, when the appointment is made to a specified post or a specific group of posts; (iii) that the Government employee cannot be asked to perform duties which were never expected of him at the time of recruitment; and (iv) that the expectation of future promotion cannot be wiped off by moving a Government employee around. 9. But, the judicial review of order of transfer can be done, if the order of transfer suffers from the vice of mala fide exercise of power when the transfer is made not in public interest or administrative exigency, but simply to accommodate another employee without any justifiable reason. Unless the order of transfer is shown to be an outcome of mala fide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with by the courts as a matter of routine for every type of grievance sought to be made. 10. Division Bench of this Court in the case of Ashok Kumar Mishra( Supra) has held as under: - "There can be no doubt that transfer is an exigency of service. 10. Division Bench of this Court in the case of Ashok Kumar Mishra( Supra) has held as under: - "There can be no doubt that transfer is an exigency of service. In the present case, the policy circular, which has been relied upon by the appellant, indicates certain conditions in the case of a person who has less than two years to retire. Learned Standing Counsel has sought to distinguish the policy circular on the ground that it applies to Government servants. For the purpose of these proceedings, we need not enter upon a wider area of dispute as to whether the policy circular applies. Even on the assumption that it does, it is a well settled principle of law that a policy circular by itself does not confer any vested right. Interest of the administration is paramount. With due deference to the directions issued by the Division Bench in Badri Prasad Misra (supra), we are constrained to reiterate what was held by the Hon'ble Supreme Court of India in Shilpi Bose (Mrs) v. State of Bihar, 1991 Supp. (2) SCC 659. Dealing with the contention of a transfer order being in violation of administrative instructions, it was held that a transfer order made in public interest and for administrative reasons should not be interfered with unless the same is stated to have been made in violation of any mandatory statutory rule or on the ground of malafides. It was further held that even if a transfer order is passed in violation of executive instructions or orders, the Court should not interfere and leave the affected party to approach the higher authorities in the department. The above law and principles declared in Shilpi Bose (supra) were reiterated by the Apex Court in State of Haryana v. Kashmir Singh, (2010) 13 SCC 306 . The above judgments do not appear to have been brought to the attention of the Division Bench concerned." 11. So far as the personal grievance made by the petitioner in respect to transfer is concerned, Hon'ble the Supreme Court Further in the case of S.C. Saxena v. Union of India and others, 2006(9) SCC 583 has observed as under: - "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." 12. Thus, the Court will not interfere with the impugned order of transfer on the personal grounds of the petitioner as the remedy of him is to approach the competent authority by making representation after joining the place of posting because the transfer policy cannot be enforced as a statute nor does it confer any right/disability upon the employee transferred, it is merely guideline to be followed by the State authorities and the employer is the best judge regarding posting of its employees, Court cannot substitute the decision of the employer. 13. In view of the law and reasons stated herein above, the writ petition is disposed of with a direction to the petitioner to join at the transferred place in pursuance to the transfer order and after joining, he shall make a fresh representation in respect to grievance which he has raised in the present writ petition to respondent No. 2/Consolidation Commissioner, Uttar Pradesh, Lucknow within a period of two week from today annexing all relevant documents and material in support of his case and after receiving the same, respondent No. 2 shall decide in accordance with law within a further period of six weeks thereafter.