V.P.S.Panwar, Commandant vs Union of India

The petitioner, a Commandant in the Central Reserve Police Force, challenges his transfer form Jammu and Kashmir to Assam on the ground of malafides and being in contravention of the transfer policy. The case of the petitioner is that he was transferred to 76 Battalion Srinagar where he served with effect from August, 1994 until his transfer to 34 Battalion C.R.P.F, Jammu in April, 1997. He has not been transferred to Assam before completion of three years which is the minimum tenure fixed under the policy.

Mr. Singh, appearing for the petitioner, argued that the transfer of the petitioner to Assam has been influenced by respondent No.3 who is biased against him. He also pointed out that petitioner's transfer, being in contravention of the statutory policy, is liable to be quashed. The contention of Mr. Salathia appearing for the respondents is. the material constituting bias or malafides having not been disclosed, the charge is baseless besides being fallacious. According to him transfer of the petitioner is not in violation of even the guidelines let alone any statutory policy.

The issue of transfer and posting has been considered time and again by this court' and the Apex Court, and the entire law is settled by catena of decision of the Apex Court. It is settled law that transfer of a Government servant appointed to a particular cadre of transferable post from one place to the other is an incident of service. No Government servant, therefore, has any legal right for being posted at any particular place.

Moreover transfer from one place to other is necessary in public interest and exigency in public administration as held in ""Gujrat Electricity Board

Vs. Atma Ram Sugomal Poshani"", AIR 1989 SC 1433, which reads as under

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

However, transfer order can be interfered with if it is illegal on the ground of violation of statutory rules or on the ground of rnalafide as observed in Union of India Vs. H.N. Kirtania:, AIR 1989 SC 1774, which reads as under:

Transfer of a public servant made on administrative ground 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

Since the petitioner has alleged malafide against Shri A.S. Gill, respondent No.3, the question arises whether necessary particulars of the charge making out a prima facie case have been stated in the petition so as to justify investigation into the allegation

This is necessary in view of the law laid down in "Tara Chand Khatri Vs. Municipal Corporation of Delhi", holding that:

It has been held time and again by this court that the High Court would be justified in refusing to carry on investigation into the allegation of malafides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition.

Similarly in E.P. Rayappa Vs. State of Tamil Nadu, AIR 1974 SC 555, it was held that,

We must not also overlook that the burden of establishing malafides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility.....

This proposition was reiterated in "Shivajirao Nilangerkar Patil Vs. Dr. Mahesh Madhav Gosavi", AIR 1987 SC 294, holding that:

It was somewhat unfortunate that allegations of malafide which could have no foundation in fact were made and several cases which had come up before this Court and other courts and it had been found that these were made merely with a view to cause prejudice or in the hope that whether they have basis in face or not some of which might at least stick.

No doubt inference of malafide can be drawn by taking into account the attendant circumstances but such inference must be based on factual matrix as laid down in "M. Shankarnarayana Vs State of Karnataka", AIR 1993 SC 763, holding that:

It may be permissible in an appropriate case to draw a reasonable inference of malafide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of institution . surmise of conjecture.

The question involved is whether such inference of malafide can be drawn from the facts pleaded by the petitioner. The charge of malafide against respondent No.3 has been pleaded in the petition which reads:

The respondent No.3 has been having personal grudge against the petitioner as the petitioner has been a straight forward officer. Respondent no.3 now plays the most pivotal role in deciding the transfer orders in CRPF Directorate as he is presently holding the appointment as IG (Pers). The transfer order dated 26.05.98 annexed herewith as Annexure 'A' has been issued with vindictive bias and malafide of Shri A.S.Gill, IGP (Pers)

Respondent No.3.

As noticed above, it is not sufficient to allege bias and malafides unless the material facts establishing the same are pleaded. No particular act has been attributed to Shri Gill which is"" required to be answered by him. The allegation against respondent no.l is that during his visit to Jammu the petitioner raised the issue of 'organised service' of CRPF Officers before him in presence of other officers which appears to have annoyed him and consequently he issued the transfer order within 15 days after his return to Delhi. Even this charge is more ipsidexit of the petitioner because what is an organise serviced an in what manner it was different than the present conditions of service of the officers is not disclosed. No other fact or material in support of the charge of bias or malafides has been pleaded and as such the charge does not require any investigation by the court because vague allegation of malafides without material to substantiate the same do not warrant any interference by this court as held in "Rajinder Roy Vs. Union of India 7 another", AIR 1993 SC 1236, which reads:

It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of malafide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. In this case we are unable to draw any inference of malafide action in transferring the appellant from the facts pleaded before the Tribunal.

This applies to the facts of the case on all fours as the pleadings are silent about the charge except the use of words 'bias and malafides'. Since facts constituting malafides have not been pleaded, no inference can be drawn. So there is no substance in the charge of malafides and the same is rejected.

This takes us to the question whether the order impugned is in contravention of the policy of transfer and if so, whether the right arising there under is enforceable. In support of the plea that the order impugned is against the policy of transfer the petitioner placed reliance on office order dated 15,09.1977 issued by respondent no.l, which reads as under:

At present there is no uniform policy regarding rotational transfer of Gazetted Officers except for posting on compassionate grounds. To ensure uniformity all over the Force, it has been decided that with immediate effect, the normal tenure of posting of Gazetted Officers (including Medical Officers) in a particular unit/place including Director General, will be three years. Only in exceptional cases premature transfers before the expiry of the normal tenure may be ordered or the normal tenure be increased on account of unavoidable operational or administrative reasons.

This order will, however, not apply to officers holding specialist appointment or to GDD Gd.l doctothers

This is only a guideline not a statutory policy as is noticed by the subsequent letter of clarification dated 03.02.1979 which is extracted below:

Vide this Directorate General Office Order of even number dated 15th September, 1977, it was circulated that the normal tenure of posting of Gazetted Officers (Including Medical Officer) in a particular unit/place, will be 3 years. The spirit behind this order seems to have been misunderstood/misconstrued by our officers and in a number of cases where transfers have been ordered before an officer has completed three years in a particular posting, officers have represented pleading, inter alia, that such transfers are in violation of the policy already laid down.

The primary consideration behind every transfer of a Govt. servant is public interest. The policy laid down vide our office order of even number dated 15th Sept. 1977 is only a guideline to the competent authorities and does not hold out any promise or assurance to the officers. It is also not meant to act as a constraint on the powers of the competent authorities while convenience of officers will be taken into account it cannot take precedence over exigencies of public service.

So the respondents has clarified that office order dated 15.09.1977 is only a guideline and the same can be deviated from in public interest. So public interest has been given primacy in the matter of transfers and rightly so. It is however clear that there is no statutory policy of transfers which can be enforced in exercise of jurisdiction under Article 226 of the Constitution. Thus assuming that petitioner's transfer was premature, this Court will not interfere because the Apex Court in "Shilpi Bose' and Others Vs. State of Bihar and Others". AIR 1991 SC 532, held that order of transfer/posting issued by the Competent authority do not violate any legal right Their, Lordships cautioned the courts against interference in the matter of transfers by observing as under:

The courts should not interfere with a transfer order which is 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. 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.

The caution sounded in this case was reiterated in "State of Punjab Vs. Joginder Singh Dhatt", AIR 1993 SC 2486, holding that:

This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting.

Ordinarily the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it. no injustice was caused

So the High Court should be loath in interfering in the matter of transfer of Government servants except in cases as indicated in H.N. Kirtania's case (AIR 1989 SC 1774 (supra). Since the transfer of the petitioner is not in violation of any statutory policy, he is not entitled to challenge the same in view of the law laid down by a Letters Patent Bench of this court in "Mohammad Sikandar Bhat Vs. State of J and K and Others", 1989 KLJ 186, holding as under:

From the reading of the aforesaid authorities it is to be concluded that any instruction, circular or order issued by the Executive under its plenary powers can be made justiciable only when it relates to condition of service of a member of service and is consistent with the rules already framed in this regard. If it does not relate to the condition of service, the employee of the State would not get any right to enforce the circular, instruction or the order.

The Bench further held: ""The circular governs incident or exigency of service. This will not afford cause of action to the Govt. By not following the transfer policy, none of the rights of a Govt. servant legal, constitutional or statutory, can said to be violated. It is the prerogative of the State Govt. to post sic transfer of employees would not relate to the condition of service of an employee.

Since the guidelines relied by the petitioner are only executive instructions, any contravention thereof cannot be successfully challenged.

So the transfer of the petitioner is in accord with the order dated 15.09.1977 as clarified on 03.02.1979, though these are only executive instructions, the violation of which cannot be enforced. In view of this, it is not necessary to decide the question whether three years tenure is to be counted with effect from posting in the State of Jammu and Kashmir in August, 1994 or 34 Battalion in April, 1997 because there is no statutory rule fixing such a tenure, in the absence of which the same is not enforceable as noticed above. This being the. settled law, the question involved is no longer res Integra for this court. There is thus no merit in the petition which is dismissed without any order as to costs.