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Allahabad High Court · body

2018 DIGILAW 92 (ALL)

SANDEEP BAJPAI v. UNION OF INDIA

2018-01-10

DEVENDRA KUMAR ARORA, VIRENDRA KUMAR II

body2018
JUDGMENT By the Court.—Heard. 2. The instant writ petition arises out of the judgment and order dated 5.4.2016 whereby the Original Application No. 189/2016 preferred by the petitioner against the order of transfer dated 4.4.2015 transferring the petitioner from CE Lucknow Zone to GE(U)(E/M) Meerut has been rejected. 3. It has been contended by the learned Counsel for the petitioner that transfer order was issued only on the basis of the complaints made by the Builders Association against the petitioner and as such the same is penal and stigmatic in nature. Further, the wife of the petitioner is a State Government employee and as per O.M. issued by DOP & T both the spouses should be posted at one place. The order of transfer is bad in law and is legally not sustainable. All these relevant aspects of the matter have not been correctly appreciated by the Tribunal and the application has been rejected in a cursory manner. 4. In the transfer matter the scope of judicial review is very limited. It is a trite law that no Government Servant has any legal right to be posted at any particular place of his choice. Transfer is an incident of Government service. Transfer order can be challenged only on the ground of violation of the statutory rules or mala fide. 5. If the transfer order is in violation of the Transfer Policy, the Supreme Court in the case of Union of India v. S.L. Abbas, (1993) 4 SCC 357 , has held that Guidelines/Transfer Policy does not confer upon the Government employee a legally enforceable right to challenge it under Article 226 of the Constitution. 6. In the case of N.K. Singh v. Union of India and others, (1994) 6 SCC 98 , the appellant Sri N.K.Singh was an I.P.S. Officer. He was allocated to State cadre of Orissa. He was I.G., C.I.D. in Orissa. His services were placed on deputation to Ministry of Home Affairs and was posted as Joint Director in Central Bureau of Investigation (C.B.I.). He was In-charge of a Special Investigation Group conducting some sensitive investigation. He was abruptly transferred to Boarder Security Force (B.S.F.) in an equivalent post of I.G.P.. He challenged his transfer order on the ground of mala fide against the then Prime Minister Shri Chandrashekhar and the then Union Law Minister Dr. Subramanyam Swami. He was In-charge of a Special Investigation Group conducting some sensitive investigation. He was abruptly transferred to Boarder Security Force (B.S.F.) in an equivalent post of I.G.P.. He challenged his transfer order on the ground of mala fide against the then Prime Minister Shri Chandrashekhar and the then Union Law Minister Dr. Subramanyam Swami. The grievance of the appellant therein was that he was In-charge of a Special Investigation Group investigating into St. Kitts affair. Therefore, he was eased out from the C.B.I. to scuttle the fair investigation. Against this background, the Supreme Court ruled as under : “6. Shri Ram Jethmalani, learned counsel for the appellant did not dispute that the scope of judicial review in matters of transfer of a Government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. In reply, the learned Additional Solicitor General and the learned counsel for Respondent 2 did not dispute the above principle, but they urged that no such ground is made out; and there is no foundation to indicate any prejudice to public interest.” “24. ...Challenge in Courts of a transfer when the career prospects remain unaffected and there is no detriment to the Government servant must be eschewed and interference by Courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised.” 7. The Supreme Court again dealt with the matter of transfer in the case of State of U.P. and others v. Gobardhan Lal, (2004) 11 SCC 402 . Said case arose out of the judgment of a Division Bench of the Allahabad High Court (2000 All LJ 1466), wherein the High Court had issued some general directions in the matter of transfers. The Government servants were given liberty to file representation against their transfer directly to the Chief Secretary and further direction was issued to the State Government to constitute Civil Service Board for dealing with transfers and postings of Class-I officers. The Supreme Court found that the High Court fell in serious error and such general direction will leave an impression that the Courts are attempting to take over the reign of the executive administration. The Supreme Court found that the High Court fell in serious error and such general direction will leave an impression that the Courts are attempting to take over the reign of the executive administration. In paragraph-8 of the judgement, the Supreme Court held as follows : “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.” 8. In the case of Mohd. Masood Ahmad v. State of U.P. and others, (2007) 8 SCC 150 , the Supreme Court has elaborately considered the well-settled principle again and observed as under : “4. ....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” 9. In the aforesaid case i.e. Mohd. Masood Ahmad (supra) the Supreme Court approved the view taken by the Allahabad High Court wherein this Court had refused to interfere in the transfer cases. The Supreme Court observed as under : “7. .... As repeatedly held in several decisions, transfer is an exigency of service” 9. In the aforesaid case i.e. Mohd. Masood Ahmad (supra) the Supreme Court approved the view taken by the Allahabad High Court wherein this Court had refused to interfere in the transfer cases. The Supreme Court observed as under : “7. .... 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, and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt., (1997) 3 ESC 1866, 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.” 10. Similar view has been reiterated by the Supreme Court in the case of Rajendra Singh and others v. State of Uttar Pradesh and others, (2009) 15 SCC 178 , and held as under : “8. A Government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the Government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 ; SCC p. 406, para 7). 9. The Courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides...” 11. Needless to say that an employee has no right to be posted at a particular place. 9. The Courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides...” 11. Needless to say that an employee has no right to be posted at a particular place. He cannot exercise his option for his posting at a place of his choice. It is entirely upon the employer to decide where and at what point of time a public servant is to be transferred from the present place of posting. The Supreme Court has consistently taken the view that an order of transfer is a part of service conditions of an employee which should not be interfered with ordinarily by the Court of law in exercise of its discretionary jurisdiction under Article 226 of the Constitution unless the order has been passed in violation of the service rules or it is infected with malice. In view of the above, we are of the view that there is no infirmity in the impugned judgment and the order of transfer. 12. After careful consideration of the matter, we are of the view that the writ petition lacks merit and it is accordingly dismissed. No order as to costs.