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2018 DIGILAW 1390 (RAJ)

Shailendra Rajalwal v. Punjab National Bank

2018-06-01

VEERENDR SINGH SIRADHANA

body2018
JUDGMENT Veerendr Singh Siradhana, J. - Petitioner aggrieved of the transfer order approached this Court by institution of writ application No.9729/2018:Shailendra Rajalwal Vs. Punjab National Bank and anr.; whereupon he was directed to address a comprehensive representation detailing out his grievances, as was prayed. The representation made in compliance thereof, has declined by the respondent-Bank. The petitioner, therefore, has again approached this Court complaining of the order of determination, on his representation, dated 22nd May, 2018. 2. I have heard the petitioner present in person and perused the materials available on record. 3. The respondent-Bank while declining the prayer of the petitioner vide order dated 22nd May, 2018, has specifically detailed out that Jaipur station has one excess IT specialist above the sanctioned strength. And therefore, as decided by the Information Technology Division, Corporate Office, New Delhi, the petitioner, being senior most at Jaipur, has been transferred to New Delhi. Further, Regulation of 47 of PNB (Officers) Service Regulation, 1979, as amended from time to time, contemplates that every officer is liable for transfer to any office or branch of the Bank through out the country. 4. By a catena of judgments, now it is well settled that transfer of an employee is an incidence of service and is not open to interference by Court unless the transfer is made in infraction of statutory conditions of service or for malafide exercise of power. 5. Who should be transferred where is an exclusive prerogative of the employer as has been observed by Apex Court of the land in the case of Gobardhan Lal Vs. State of U.P.: 2004 (11) SCC 402 , which reads thus: "7. It is too late in the day for any Government 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. 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. This Court has often reiterated that 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. 8. 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 fides 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." 6. In case of Tushar D. Bhatt (supra), Apex Court of the land, observed thus: "16. In case of Tushar D. Bhatt (supra), Apex Court of the land, observed thus: "16. The legal position has been crystallized in number of judgments that transfer is an incidence of service and transfers are made according to administrative exigencies. 17. In the instant case, in the entire tenure of more than 18 years, the appellant was only transferred twice. The appellants transfer order cannot be termed as mala fide. The appellant was not justified in defying the transfer order and to level allegations against his superiors and remaining unauthorisedly absent from official duties from 11.10.1999 to 27.4.2000 i.e. more than six months. In the interest of discipline of any institution or organization such an approach and attitude of the employees cannot be countenanced." 7. In case of Mohammad Masud (supra), while examining the issue of transfer in the backdrop of recommendations made by a member of legislative assembly, the Supreme Court observed that transfer is an incident of service, and therefore, judicial interference should be in very rare case. At this juncture, it will be relevant to take note of the text of para 4 and 7, which reads thus: "4. The petitioner-appellant, who was an Executive Officer, Nagar Palika Parishad Muzaffarnagar, had in his writ petition challenged his transfer by the State Government by order dated 21.6.2005 as Executive Officer, Nagar Palika Parishad Mawana, District Meerut. Since the petitioner was on a transferable post, in our opinion, the High Court has rightly dismissed the writ petition since transfer is an exigency of service and is an administrative decision. Interference by the Courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions, transfer is an exigency of service vide B.Varadha Rao v. State of Karnataka MANU/SC/0435/1986 : (1986)IILLJ516SC , Shilpi Bose v. State of Bihar MANU/SC/0147/1991 : (1991)IILLJ591SC , Union of India v. N.P. Thomas MANU/SC/0258/1993 : (1993)ILLJ1063SC , Union of India v. S.L. Abbas MANU/SC/0370/1993 : (1993)IILLJ626SC , etc. 7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao v. Union of India MANU/SC/0430/1993 : AIR1993SC1236 , National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan MANU/SC/0549/2001 : (2001)IILLJ1243SC , State Bank of India v. Anjan Sanyal MANU/SC/0249/2001 : (2001)ILLJ1687SC. 7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao v. Union of India MANU/SC/0430/1993 : AIR1993SC1236 , National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan MANU/SC/0549/2001 : (2001)IILLJ1243SC , State Bank of India v. Anjan Sanyal MANU/SC/0249/2001 : (2001)ILLJ1687SC. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. (1997) 3 ESC 1668 : 1998) ALJ 70 and Onkarnath Tiwari v. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866 : 1998 ALJ 245, has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders." 8. In case of Shilpi Bose (supra), dealing with the scope of interference with a transfer order made in public interest or for administrative reasons the Apex Court of the land in no uncertain terms reiterated that unless the transfer made in violation of any mandatory statutory rule or on the ground of malafide; the same could not open for interference by the Court. In this reference, para 4, of the judgment is relevant, which reads thus: "4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. 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. 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. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders." 9. For reasons and discussion aforesaid and in view of the factual matrix of the case at hand, the writ application assailing the legality, validity and correctness of the impugned transfer order dated 25th April, 2018; cannot be sustained for neither the transfer is in violation of any mandatory statutory rule nor it has been assailed for malafide with factual foundation laid for an inference to that effect.20. Accordingly, the writ application is devoid of substance and lacks in merit, and therefore, deserves to be dismissed. 21. Ordered accordingly.