JITENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri U.N. Sharma, learned Senior Advocate assisted by Sri Chandan Sharma, learned counsel appearing for the petitioner and learned Standing Counsel for the respondents. Sri Sharma contended that the petitioner was posted at Gautambudh Nagar only in July, 2008 and without assigning any reason within a span of seven months he has been transferred as Deputy Commissioner, Division-4, Basti which is wholly arbitrary and shows non application of mind on the part of the competent authority. He further contended that the impugned order of transfer is also in violation of the Government Order dated 15.05.2008 laying down policy of transfer for the session 2008- 09 which in para 9(7) provides that the handicapped persons or such employees whose dependants family members are effected from handicappedness shall be exempted from the normal transfer i.e. routine transfer. It is contended that the petitioner is handicapped as his both legs are amputated and, therefore, he ought to have been exempted from the normal transfer. Learned Standing Counsel on the contrary after receiving instructions from the department has produced before us the recommendation of the Additional Commissioner (Trade Tax), Gautambudh Nagar to the Commissioner (Trade Tax), U.P. Lucknow and submitted that the order of transfer in respect to the petitioner has been passed purely in administrative exigency and in the interest of department. He has produced the aforesaid documents before us and after perusing the same we are satisfied that the transfer of petitioner in the present case is in the administrative exigency and in the interest of department. Moreover, the order of transfer cannot be said to be in violation of policy laid down in the Government Order dated 15.05.2008 inasmuch as it only provides that the handicapped persons may be exempted from routine transfer which does not include a transfer made on administrative exigency. Besides, violation of a policy guideline in respect to transfer does not provide any right to challenge the order of transfer as laid down by Hon'ble Apex Court in the case of Union of India and others Vs. S.L. Abbas, AIR 1993 SC 2444. In para 7 of the said judgment, their Lordships in the Apex Court held as under: "The said guideline however does not confer upon the Government employee a legally enforceable right." In S.L. Abbas (supra) the employee placed reliance on an earlier judgement of the Apex Court in Bank of India Vs. Jagjit Singh Mehta, 1992(1) SCC 306, in support of his contention where certain guidelines have been issued, as far as practicable, they must be adhered to and based on the said decision, it was contended where transfer order has been issued in breach of administrative guidelines, when challenged, it is incumbent upon the authorities to give reasons, which justify breach of such guidelines and in absence thereof, the order has to be set aside being arbitrary and illegal. Negativing this contention and after referring the judgement in Jagjit Singh Mehta (supra), the Apex Court in S.L. Abbas (supra) said: "The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgement also does not support the Respondent's contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/ guidelines are not followed, much less can it be characterised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions." The judgement in S.L. Abbas (supra) has clearly set at rest the question that the order of transfer when challenged on the ground of violation of administrative instructions/guidelines, neither it is obligatory on the authorities to explain as to why they have passed the order of transfer, which is not consistent with the conditions of the administrative guidelines nor failure to provide such explanation would result in an inference that the exercise of power is malicious in law. Since the order of transfer has to be assailed by pleading mala fide as such and not to infer on the basis that the order of transfer is in breach of the conditions of administrative exigency. In no manner the argument can be allowed to be stretched so as to invite interference with the order of transfer except where order of transfer is found to be in violation of statutory provision or is vitiated by mala fide. Law laid down herein above has consistently been followed subsequently also, inasmuch as, in National Hydro-Electric Power Corporation Ltd. Vs. Sri Bhagwan and another, AIR 2001 SC 3309 Apex court held as under: "It is by now well-settled and often reiterated by this Court that no Government servant or employee of Public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned." (emphasis added) Then in State of U.P. Vs. Gobardhan Lal, AIR 2004 SC 2165, it was held: "It is too late in the day for any Govt. 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 of 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. 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." (emphasis added) All the above judgements have been quoted and followed in the case of Major General J.K. Bansal Vs. Union of India and others, AIR 2005 SC 3341. A Division Bench of this Court also in Special Appeal No. 1293 of 2005, Gulzar Singh Vs. State of U.P. and others, decided on 07.11.2005 and Civil Misc. Writ Petition No. 68143 of 2005, R.K. Pandey Vs. New India Insurance Company Ltd. and others, decided on 26.10.2005, have also taken the same view. It would be appropriate at this stage to reproduce caution in the words of the Apex court as expressed in Gobardhan Lal (supra) as under: "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 fide 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." Another Division Bench of this Court [in which one of us (Sudhir Agarwal, J.) was a member] in Writ Petition No. 243(S/B)/2007, Uma Shanker Rai Vs. State of U.P. and Others decided on 31.07.2007 has also taken the same view and we are in respectful agreement thereto. In view thereof, we do not find any reason to interfere with the impugned order of transfer. However, at this stage, Sri Sharma contended that the petitioner ought to have been transferred at a place where, if necessary, he could get immediate medical facility. That being so, it is open to the petitioner to approach the concerned authority since it is for the Government to decide as to where the petitioner can be transferred. At this stage, we only provide that if the petitioner makes any such representation the same shall be considered and disposed of by the competent authority expeditiously. With the aforesaid observation the writ petition lacking merit is dismissed.