STATE OF KERALA Vs. RAJAN

JUDGEMENT

(1.) THIS appeal is by the State Government and the director of Health Services against the judgment of the learned single judge in o. P. No. 8429 of 1988. The problem that has arisen for consideration in this case is in the realm of transfers that are effected in Government service. The respondents came to this court primarily complaining that their request for transfer, which could have been very conveniently be acceded to, has not been granted and that they have a right to claim transfer as prayed for by them in a proceeding under Art. 226 of the Constitution. It is unfortunate that inspite of a series of decisions of this court and the Supreme Court, a persistent attempt is made to canvass the correctness of the administrative decisions taken by the authorities in the matter of transfer. Transfers are effected in respect of transferable posts in the exigencies of service. A Government servant who occupies a transferable post has no right to insist that he should be continued in a particular place or that he should be transferred to a particular place of his choice. There is no condition of service implied or express in this behalf. That is a matter entirely of administrative discretion to be exercised in the larger interests of administration. It is not a question of a judicial or quasi-judicial decision being taken. Hence no reasons are required to be given when transfers are effected in public interest. Superior authorities are normally presumed to act consistent with the interest of the administration and therefore in public interest when transfers are effected. A variety of situations are required to be taken into consideration in the matter of effecting transfers and to accommodate the claims and interests of large number of persons. It is obvious that as a result of transfer when a Government servant may feel that he is being shifted from very cosy place to a less cosy place, another Government servant may feel that the place where he is posted is not as cosy a place as he would like it to be and would like to get a transfer to a more cosier place. Self-interest in the matter of securing utmost convenience for oneself, one can understand. But to elevate self-interest or personal convenience to the status of an enforceable right under Art. 226 of the constitution is a quite different matter. As every action of the State government or the authorities is required to be taken in public interest, if such action is taken for collateral purposes and is mala fide, such action is always amenable to the jurisdiction of this court for correction under Art. 226 of the Constitution. Except in cases where the transfer itself is regulated by statutory provisions which confer enforceable conditions of service or in cases where the transfer is effected mala fide, there would be no scope for this court to interfere under Art. 226 of the Constitution in the matter of transfer. Even though the State Government enunciated guidelines in the matter of effecting transfers, any deviation from those guidelines also does not amount to violation of any conditions of service. We have pointed out in our earlier decisions that the guidelines enunciated by the State Government in the matter of effecting transfers are not exhaustive in character and a variety of other circumstances could also be taken into account in the matter of effecting transfers. A decision to effect transfers cannot be equated with a judicial or quasi-judicial decision requiring reasons to be given in support of the said decision. It is also not reasonable to except the authorities who are empowered to effect transfers to write judgments in the matter of effecting transfers considering the rival claims and give reasons for accepting one claim or rejecting the other. Though the request made or the representations submitted by the government servants should normally be taken into consideration by the concerned authorities, no grievance can be made on the ground that the order rejecting the representation does not contain reasons or does not meet the grounds put forward by them. It is unfortunate that ordinary matters of administration like transfers which do not confer any enforceable right in favour of the Government servants are sought to be brought before this court for debate, inspite of the fact that there is no scope for interference in such cases as laid down by the Supreme Court and this court in several decisions. The precious time of this court would be unnecessarily required to be spent if we have to examine the correctness of every order of transfer that is passed by the Government or the different authorities under the State. Except for the limited scope for interference in the matter of transfers as indicated above, the Government servants who are transferred cannot seek any writ or directions at the hands of this court under Art. 226 of the Constitution merely on the ground that their representation has not been decided to or on the ground that a particular guideline, in their opinion, has not been scrupulously followed or on the ground that the benefit of transfer has been given to another person who, according to the aggrieved party, does not stand on the same footing as himself in regard to claim transfer to a particular place.

(2.) THE law on the question has been laid down by the decision of the Supreme Court reported in (1989) 2 S. C. C. 602 between Gujarat electricity Board and another and Atmaram Sungomal Poshani. In Para. 4 of the said judgment it is stated as follows: "transfer of the government servant appointed to a particular cadre of transferable post from one place to the other 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 toother 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. Whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled, the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. THE respondent lost his service as he refused to comply with the order of his transfer from one place to the other. " THE Supreme Court was at pains to point out that unless the order of transfer is stayed, modified or cancelled it must be obeyed promptly by the Government servant, failing which he is liable to be proceeded against in disciplinary proceedings resulting in termination of his service. Administration cannot function smoothly unless the orders of transfers are promptly obeyed and given effect to. It is of the essence of the matter and discipline requires that orders of transfers are promptly obeyed, unless they are stayed, modified or cancelled by superior authorities.

(3.) WHAT the learned single judge has done in this case is to examine the relevant aspects bearing on the question of transfer and to indicate that it is reasonably possible to accommodate the request made by all the respondents. In the opinion of the learned single judge when it was possible to accommodate the respondents, if their request is not acceded to, it amounts to not properly considering their requests. All that has been stated in the impugned orders Exts. P9 to P11 is that their request cannot be considered for want of vacancies. Even though the ultimate direction of the learned single judge is to consider the respondents' request and pass appropriate orders, it virtually amounts to issuing orders in accordance with their request, the learned single judge having held that their request can be granted and that there is no reason why their requests should not be considered. This view of the learned single judge is clearly inconsistent with the well settled principles of law which we have summarised above. The learned single judge has not come to the conclusion that the decision of the authorities is vitiated by mala fides. He has not come to the conclusion that the respondents hold non-transferable posts. The learned single judge, after evaluating the circumstances, was inclined to take a view different from the one taken by the authorities in regard to accommodating the claim of respondents 1 to 3, for their being transferred to particular places. This is clear from the following observations of the learned single judge in his judgment: "according to the petitioners, second petitioner can be shifted from Trichur to Kottayam and the first petitioner can be shifted from kottayam to Quilon and the third petitioner from Quilon to Trivandrum. If this is done, all the petitioners would get posting at places of their choice without disturbing others. The averment in Ext. P9 that transfer is not given to petitioners 1 and 3 for want of vacancies appears to be wholly unsustainable because transfer of other officers made in Ext. P9 was by creation of vacancies by transfer of the second petitioner not to a place of his choice but to some other place. Learned Govt. Pleader has not been able to tell the court that there are any administrative exigencies or other reasons which prevent the posting of the three petitioners to places of their choice. In these circumstances it appears to be necessary that the first respondent should reconsider the requests of the petitioners since their requests have not received proper or legal consideration. " Thus it is clear that what the learned single judge has attempted to do is to substitute his own decision in the matter of effecting transfer for the administrative decision of the authorities. This the court has no jurisdiction to do under Art. 226 of the Constitution, as held by this court and the Supreme Court. The decision of the learned single judge virtually amounts to calling upon the State Government to abide by the decision taken by respondents 1 to 3 as to where and how they should be transferred. This is clearly impermissible.