KAMESHWAR NATH MISRA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and also learned Standing Counsel.

(2.) TO assail a transfer order is difficult but it is not an impossibility under Article 226 of the Constitution. No doubt, transfer is an incident of service and normally it cannot be challenged unless such order is violative of any provision or principle of law or suffers from malafide. It is commonly believed that Government, some time, forms policy of transfer by issuing administrative instructions in the form of Government Orders. No doubt, the Government is expected to respect its own Govern Orders. Therefore, normally a transfer order is expected to be made unconformity with such Government Orders. It is, however, wrong to believe that the Government is powerless to transfer an employees against its own instructions, as such, the Government Order/instructions are subject to the Rules of transfer on administrative grounds in public interest or on some special reason or on administrative exigencies. Thus, it cannot be said that a transfer order cannot be passed against the principles laid down under the Government Order or instructions. There may be more than one valid reason to transfer an employee against the Government instructions, which cannot be exhaustively illustrated here. Moreover, a mid-term transfer, against the Government instructions, can also be validly made if it so requires under certain given circumstances. No doubt, under certain set of circumstances a transfer order may create a great hardship to an employee and in such event it is always open to the employee to approach the appropriate authority bringing to its notice the adverse circumstances for a fair decision or review of such transfer order. In any view, the employer has to consider such adverse circumstances of an employee with an attitude of infinite kindness and pass necessary orders in strict compliance of law. However, it is not emphasised that the hardship would over weigh the other circumstances or all other provisions of law. All that is necessary is to decide the case on sound principles of fair play which should be circumscribed by legal principles of law on the subject of transfer. Transfer is normally not a punishment Thus, transfer order can be subjected to judicial scrutiny in exceptional cases only.

(3.) A certified copy of this order may be issued to the learned counsel for the petitioner on payment of usual charges within 48 hours.