Dhirendra Shukla vs Union Of India And Ors

Heard learned counsel for petitioner, learned State counsel and perused the record.

By means of the present case, the petitioner has challenged the impugned order dated 24.09.2019 passed in O.A. No. 440 of 2019 (Dhirendra Shukla Vs. Union of India) and the transfer order dated 29.08.2019

Facts in brief of the present case as submitted by learned counsel for petitioner are that petitioner was initially appointed on the post of Postal Assistant on 31.12.1991 and in the year 1995 he was posted at Mandhata Sub-Post Office. Vide order dated 11.5.2018 the petitioner was transferred/posted as SPM, Mandhata SO by placing him under LSC cadre. Against the said order, the petitioner preferred a representation/refusal dated 15.5.2018 to the respondent no.1. On account of refusal, the petitioner was directed to work as System Manager vide order dated 9.7.2018.

By an order dated 03.10.2018, competent authority/respondent no.3 rejected the refusal of the petitioner. As stated, the willingness from the employees in relation to routine transfer was asked and in pursuance thereof, the petitioner submitted his application dated 8.3.2019 giving three choice stations.

And by order dated 3.6.2019, the petitioner was directed to join Sub Post Office Mandhata. Against the order dated 03.06.2019, submitted his representations to the respondent No. 2 on 19.06.2019, 22.6.2019 and 06.07.2019. It is stated that without considering the request of the petitioner, the respondent no.3 vide order dated 8.7.2019 in compliance of the order dated 3.7.2019 of respondent no.2 has transferred the petitioner from SPM, Mandhata SO to LSG SPM, Prithviganj Bazar SO, again preferred a representation dated 16.7.2019 for his posting at Pratapgarh Division, but without considering his request, the respondent no.3 passed the order dated 29.08.2019, whereby the petitioner has been transferred to Agra Region.

Aggrieved by the transfer order dated 29.08.2019 the petitioner approached the Central Administrative Tribunal (in short 'Tribunal') by filing Original Application (in short 'O.A.') No. 440 of 2019 (Dhirendra Shukla Vs. Union of India), dismissed by order dated 24.09.2019. The relevant portion of order dated 24.09.2019 passed by Tribunal reads as under:-

"Admittedly the transfer is an incidence of service as has been held by Hon'ble High Courts and Hon'ble Supreme Court in numerous decisions. It is also settled law that no government servant has any legal right to be posted at a particular station forever. It is also noticed that the applicant has failed to point out anything that the transfer order has been passed in violation of Rules or it has been passed malafide and also against the transfer police. In absence thereof, it cannot be said that the transfer order is bad and not legally sustainable. Admittedly, the transfer order has been passed by the competent authority on administrative ground and in compliance thereof, the applicant has been relieved from his present place of posting. It may also be stated that the transfer of the employee is withing the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee is required. There is a very little scope of judicial review by the Court/Tribunal against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafide is established, which in the instant case is lacking. Besides the above, on the request of the applicant, he has been accommodated by the respondents twice, though not as per choice submitted by the applicant, Further, the applicant has failed to point out any rule which provides that on being posted/promoted the applicant cannot be transferred out of Division. In absence thereof, it cannot be said the transfer order is illegal."

Aggrieved by the order dated 24.09.2019 passed by the Tribunal the petitioner has approached this Court by filing present writ petition, with the following main prayer:-

"1. To issue Writ, order or direction in the nature of Certiorari quashing the judgment/order dated 24.09.2019 passed in O.A. No. 440 of 2019 (Dhirendra Shukla Vs. Union of India) contained as Annexure No. 1 tyo this writ petition, with all consequential benefits.

To issue a writ, order or direction in the nature of Certiorari quashing the transfer order dated 29.08.2019, contained as Annexure No. 2 to this writ petition and order dated 28.08.2019 after summoning original from the opposite parties, with all consequential benefits.

To issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to allow the petitioner to continue at the present place of posting and pay him salary accordingly."

Learned counsel for the petitioner for the purpose of relief sought, submits that the transfer order is bad as it has been passed by the respondents with a view to punish the petitioner by posting him at a very far place. He further submits that if the petitioner is not a fit person to be retained in service, the disciplinary proceedings ought to have been initiated against him, but instead of doing so, the petitioner has been transferred at a very far place viz. Agra Region. He further submits that the transfer order is punitive in nature.

It has also been submitted that without considering the request of the petitioner, transfer order was passed and the Tribunal did not consider the same. Prayer is to allow the writ petition.

Per contra, learned counsel for the respondents submits there is no illegality or infirmity in judgment and order dated 24.09.2019 passed in O.A. No. 440 of 2019 (Dhirendra Shukla Vs. Union of India) as the transfer order has been passed by the competent authority on administrative ground. In transferring the petitioner no rule has been violated. The petitioner has already been relieved from his present place of posting w.e.f. 29.8.2019 (Afternoon). The petitioner is not entitled to get any relief including interim protection.

The issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner.

The employee does not have any vested right to be posted at a particular place. (Vide B. Varadha Rao v. State of Karnataka and Ors. AIR 1986 SC 1955, Shilpi Bose v. State of Bihar AIR 19991 SC 532, ; Union of India v. N.P. Thomas AIR 1993 SC 1605,Union of India v. S.L. Abbas,AIR 1993 SC 2444,Rajender Roy v. Union of India,AIR 1993 SC 1236; Ramadhar Pandey v. State of U.P. and Ors., 1993 Supp. (3) SCC 35; N.K. Singh v. Union of India and Ors., AIR 1995 SC 425; Chief General Manager (Tel.) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee, AIR 1995 SC 813 ; State of U.P. v. Dr. R.N. Prasad, 1995 (Supp) 2 SCC 151; Union of India and Ors. v. Ganesh Dass Singh,1995 Supp.(3) SCC 214; Abani Kante Ray v. State of Orissa, 1995 (Supp) 4 SCC 169; Laxmi Narain Mehar v. Union of India,AIR 1997 SC 1347; State of U.P. v. Ashok Kumar Saxena,AIR 1998 SC 925; National Hydroelectric Power Corporation Ltd. v. Shir Bhagwan,(2001)8 SCC 574; Public Services Tribunal Bar Association v. State of U.P. and Ors.,AIR 2003 SC 1115; State of U.P. v. Siya Ram,AIR 2004 SC 4121; and Union of India v. Janardhan Debanath, (2004) 4 SCC 245).

An employee holding a transferable post cannot claim any vested right to work at a particular place as the transfer order does not affect any of his legal rights and the Court cannot interfere with a transfer/posting which is made in public interest or on administrative exigency. In Gujarat Electricity Board v. Atmaram Sungomal

Poshani, AIR 1989 SC 1433, the Hon'ble Supreme Court has observed as under:-

"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration."

In Union of India v. H.N. Kirtania,AIR 1989 SC 1774, the Hon'ble Apex Court observed as under:-

"Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of malafide."

In Union of India v. S.L. Abbas (supra), the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions.

Similar view has been reiterated by the Supreme Court, in Bank of India v. Jagjit Singh Mehta,AIR 1992 SC 519, observing that the terms incorporated in the transfer policy for posting of both the spouses, if in service, at the same place, require to be considered by the authorities "along with exigencies of administration" and " without any detriment to the administrative need and claim of other employees".

In State Bank of India v. Anjan Sanyal, AIR 2001 SC 1748, the Apex Court held as under:-

"4. An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction 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 order, had not the competence to pass the order.

(Emphasis supplied).

In Rhone-Poulence (India) Ltd. v. State of U.P.,(2000) 7 SCC 675, the Hon'ble Supreme Court held as under.-

"the mere fact that after the order of transfer had been issued and when Respondent 3 had failed to report for duty, he was also asked by the Corporate Manager, who was competent to order his transfer, to join the duties at Kanpur will not validate ' the order of transfer issued by an authority not competent to do so."

In Government of Andhra Pradesh Vs. G. Venkata Ratnam, (2008) 9 SCC 345, the Supreme Court deprecated the view taken by the High Court interfering in transfer matter merely on the basis of some extraordinary achievements highlighted by the respondent-employee. The Apex Court held that it is not for the Court to consider where respondent would be more suited. Such an approach is rather unusual and strange as no employee can be permitted to choose his own place of posting.

In Atmaram Sungomal Poshani (supra), the Apex Court in crystal clear words observed that an employee fails to join at the transferred place, he exposes himself to the disciplinary proceedings for disobedience of the order.

The employee cannot avoid the compliance of the transfer order.

In Addisons Paints & Chemicals Ltd. v. Workman, AIR 2001 SC 436, a similar view has been reiterated and it has been held therein that refusal to report for duty upon transfer amounts to misconduct. Even if the transfer order is bad for some reason, the employee must ensure compliance of the order first and then raise the issue with the employer for redressal of his grievance.

In S.C. Saxena Vs. Union of India & Ors., (2006)9 SCC 583, the Apex Court deprecated the practice of approaching the Court by the Government employees against transfer order rather joining at the transferred place.

In State of U.P. Gobardhan Lal,AIR 2004 SC 2165, the Hon'ble Supreme Court held as under:-

"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. Unless the order if 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."

Similar view has been reiterated in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey,(2004) 12 SCC 299.

The transfer order may cause great hardship as an employee would be forced to have a second establishment at a far distant place, education of his children may be adversely affected, may not be able to manage his affairs and to look after his family. This aspect was also considered by the Apex Court in State of M.P. v. S.S. Kaurav,(1995) 3 SCC 270, wherein it has been held that it is not permissible for the Court to go into the relative hardship of the employee. It is for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration.

Thus, it is clear that the transfer policy does not create any legal right in favour of the employee. It is 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 breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he/ she has a legal right to insist on such performance. The existence of the said right is a condition precedent for invoking the writ jurisdiction. (Vide Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal and Ors.,AIR 1962 SC 1044; Mani Subrat Jain and Ors. v. State of Haryana,AIR 1977 SC 276; State of Kerala v. Smt. A. Lakshmi Kutty,AIR 1987 SC 331; State of Kerala v. K.G. Madhavan Pillai and Ors.,AIR 1989 SC 49; Krishan Lal v. State of J & K,(1994) 4 SCC 422; State Bank of Patiala and Ors. v. S.K. Sharma,AIR 1996 SC 1669; Rajendra Singh v. State of M.P.,AIR 1996 SC 2736; Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors., AIR 1998 SC 3104; Utkal University v. Dr. Nrusingha Charan Sarangi and Ors.,AIR 1999 SC 943; State of Punjab v. Raghbir Chand Sharma and Anr.,AIR 2001 SC 2900 ; and Sadhana Lodh v. National Insurance Co. Ltd. and Anr (AIR 2003 SC 1561).

In the case of B. Vardha Rao Versus State of Karnataka and Others reported in (1986) 4 SCC 131 the Hon'ble Apex Court observed that frequent, unscheduled and unreasonable transfers must be deprecated.

In the case of Dharmendra Kumar Saxena Versus State of U.P. And Others reported in 2013 LawSuit (All)1796 this Court has held as under:

"After careful consideration of the law laid down by the Supreme Court, I am of the view that this Court cannot interfere with the transfer matter as the Government servant has no vested right to continue at a place of his choice. The Government can transfer the officer/employee in the administrative exigency and in public interest. However, if a transfer is made against the executive instructions or transfer policy, the competent authority must record brief reason in the file for deviating from the transfer policy or executive instructions and the transfer must be necessary in the public interest or administrative exigency. If an officer/employee, who is aggrieved by his/her transfer, makes a representation to the competent authority, his/her representation must be decided objectively by a reasoned order."

In view of the above, the legal position on the issue of transfer can be summarized as under:

(1) Transfer is an incident/condition of service.

(2) It does not adversely affected the status or emoluments or seniority of the employee.

(3) The employee has no vested right to get a posting at a particular place or can choose to serve at a particular place for a particular tenure.

(4) It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employees are required.

(5) Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure.

(6) An employee should not be subjected to frequent transfer.

(7) There is a very little scope of judicial review by the Court/Tribunal against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or mala fides is established.

In the instant case, it hs not been stated nor argued that the transfer order dated 29.08.2019 has been passed by incompetent authority. It has also nto been pleaded nor argued that transfer order daed 29.08.2019 is in contravention of service rules. The malafide has also not been alleged. Further, it appears from the record that in the year 1995 petitioner was posted at Mandhata sub Post Office, district - Pratapgarh, and from District -Pratapgarh by the order of transfer dated 29.08.2019, after serving in District-Pratapgarh for about 24 years, the petitioner has been transferred to Agra Region.

Considering the aforesaid and settled law in regard interference in transfer order, we are not inclined to cause interfere in the impugned order dated 24.09.2019, passed by the Tribunal and the order of transfer dated 29.08.2019.

For the foregoing reasons, the writ petition lacks merit in the facts and circumstances of the case.

Accordingly, this writ petition is dismissed.

No order as to costs.