UP Teacher Transfer - कोर्ट का कहना है कि ट्रांसफर गाइडलाइंस के विरुध्द प्रक्रिया होने पर ही एम्प्लॉई ऐसी प्रक्रिया को चुनौती दे सकते हैं -
If the transfer order is in violation of the Transfer Policy, the Supreme Court in the case of Union of India v. S.L.Abbas reported in (1993) 4 SCC 357 has held that Guidelines/Transfer Policy does not confer upon the government employee a legally enforceable right to challenge it under Article 226 of the Constitution
***********************
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 4
Case :- WRIT - A No. - 45473 of 2015
Petitioner :- Sandeep Yadav
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Vijay Gautam
Counsel for Respondent :- C.S.C.
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is a Sub-Inspector. He has been transferred in public interest from Gorakhpur to Varanasi Zone. He has challenged his transfer order on the ground that his wife is a teacher in Gorakhpur and on his request he was earlier transferred to Gorakhpur. The said transfer was cancelled and he was transferred from Gorakhpur Zone to Devi Patan Range. He again made an application to the Inspector General of Police, Gorakhpur Zone and his transfer order was cancelled. The grievance of the petitioner is that despite the said fact the third respondent has passed the impugned order transferring the petitioner from Gorakhpur to Varanasi Zone.
It is contended on behalf of the petitioner that the petitioner's wife is a teacher in Gorakhpur and the transfer policy of the State Government provides that endeavour should be made to post the husband and wife at a same place. He further submits that once the Inspector General of Police has made a recommendation the third respondent should not have transferred the petitioner from Gorakhpur to Varanasi. No other argument has been raised.
In the transfer matter the scope of judicial review is very limited. It is a trite law that no Government Servant has any legal right to be posted at any particular place of his choice. Transfer is an incident of government service. Transfer order can be challenged only on the ground of violation of the statutory rules or malafide.
If the transfer order is in violation of the Transfer Policy, the Supreme Court in the case of Union of India v. S.L.Abbas reported in (1993) 4 SCC 357 has held that Guidelines/Transfer Policy does not confer upon the government employee a legally enforceable right to challenge it under Article 226 of the Constitution.
In the case of N.K. Singh v. Union of India and others, reported in (1994) 6 SCC 98, the appellant Sri N.K.Singh was an I.P.S. Officer. He was allocated to State cadre of Orissa. He was I.G., C.I.D. in Orissa. His services were placed on deputation to Ministry of Home Affairs and was posted as Joint Director in Central Bureau of Investigation (C.B.I.). He was In-charge of a Special Investigation Group conducting some sensitive investigation. He was abruptly transferred to Boarder Security Force (B.S.F.) in an equivalent post of I.G.P.. He challenged his transfer order on the ground of malafide against the then Prime Minister Shri Chandrashekhar and the then Union Law Minister Dr. Subramanyam Swami. The grievance of the appellant therein was that he was In-charge of a Special Investigation Group investigating into St. Kitts affair. Therefore, he was eased out from the C.B.I. to scuttle the fair investigation. Against this background, the Supreme Court ruled as under:
"6. Shri Ram Jethmalani, learned counsel for the appellant did not dispute that the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. In reply, the learned Additional Solicitor General and the learned counsel for Respondent 2 did not dispute the above principle, but they urged that no such ground is made out; and there is no foundation to indicate any prejudice to public interest."
"24. ...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised."
The Supreme Court again dealt with the matter of transfer in the case of State of U.P. and others v. Gobardhan Lal, reported in (2004) 11 SCC 402. Said case arose out of the judgment of a Division Bench of the Allahabad High Court (2000 All LJ 1466), wherein the High Court had issued some general directions in the matter of transfers. The Government servants were given liberty to file representation against their transfer directly to the Chief Secretary and further direction was issued to the State Government to constitute Civil Service Board for dealing with transfers and postings of Class-I officers. The Supreme Court found that the High Court fell in serious error and such general direction will leave an impression that the Courts are attempting to take over the reign of the executive administration. In paragraph-8 of the judgement, the Supreme Court held as follows:
"8. 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 fides 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."
In the case of Mohd. Masood Ahmad v. State of U.P. And others, reported in (2007) 8 SCC 150, the Supreme Court has elaborately considered the well settled principle again and observed as under:
"4. ....Since the petitioner was on a transferable post, in our opinion, the High Court has rightly dismissed the writ petition since transfer is an exigency of service and is an administrative decision. Interference by the courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions, transfer is an exigency of service .."
In the aforesaid case i.e. Mohd. Masood Ahmad (supra) the Supreme Court approved the view taken by the Allahabad High Court wherein this Court had refused to interfere in the transfer cases. The Supreme Court observed as under:
"7. .... Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P, (1997) 3 ESC 1668, and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt., (1997) 3 ESC 1866, has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 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 orders, were not competent to pass the orders."
Similar view has been reiterated by the Supreme Court in the case of Rajendra Singh and others v. State of Uttar Pradesh and others, reported in (2009) 15 SCC 178, and held as under:
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402; SCC p. 406, para 7).
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is 8 vitiated by violation of some statutory provisions or suffers from mala fides..."
An employee has no right to be posted at a particular place. He cannot exercise his option for his posting at a place of his choice. It is entirely to the employer to decide where and at what point of time a public servant is to be transferred from the present place of posting. The Supreme Court has consistently taken the view that an order of transfer is a part of service conditions of an employee which should not be interfered with ordinarily by the Court of law in exercise of its discretionary jurisdiction under Article 226 of the Constitution unless the order has been passed in violation of the service rules or it is infected with malice.
The petitioner belong to a disciplined force. He cannot be treated at par with other Government employees, while dealing with them in transfer matter. The police personnel should obey the transfer order immediately without any delay. The Supreme Court in the case of State of Haryana and others v. Kashmir Singh and another, (2010) 13 SCC 306, has considered the transfer of police personal and observed thus:
"12. Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well settled that courts must not ordinarily interfere in administrative matters and should maintain judicial restraint, vide Tata Cellular v. Union of India
[(1994) 6 SCC 651]."
The Supreme Court in the case of S.C. Saxena v. Union of India and Others, (2006) 9 SCC 583, has observed that government servant in the matter of transfer should first report/join for work where he is transferred. After joining the transferred place, he may make a representation to the higher authority to ventilate his grievance.
Insofar as the submission of learned counsel for the petitioner that Inspector General of Police has made a recommendation for cancellation of the transfer order, therefore his transfer should not have been made. In my view the said submission has no force. The Police Establishment Board has been constituted in compliance of the order of the Supreme Court in the case of Prakash Singh and others v. Union of India and others, (2006) 8 SCC 1. The Supreme Court has entrusted the transfer, posting, promotions and other service related matters of Police Force to the Police Establishment Board exclusively. Thus the said submission has no force.
The principle which can be discerned from above mentioned and other various decisions of the Supreme Court is that although the breach of guidelines does not give any legally enforceable right in favour of the employee but at the same time the guidelines/transfer policy/Government orders issued to deal with transfer of officers and employees cannot be ignored altogether by the competent authority. While transferring an officer, the broad guidelines mentioned in the transfer policy, executive orders or guidelines must be kept in the mind.
If in the administrative exigency or in public interest, transfer of an officer/employee is necessary, then the competent authority may record the reasons for departing/deviating from the policy or the guidelines. Recording of such reason in the files would facilitate the superior officers to decide the representation of the officer concerned objectively. It is not necessary that while transferring an officer/ employee, reasons should be communicated to the concerned officer/employee.
This Court in the case of Dharmendra Kumar Saxena v. State of U.P. & others, 2013 (7) ADJ 53 has held that the Government is bound by executive orders/policies, and the guidelines are made to follow it and not to breach it without any justifiable reasons. The Court also followed the view consistently taken by the Supreme Court. Relevant paragraph of the order read as under:
"24...the Government is bound by executive orders/policies. The guidelines are made to follow it and not to breach it without any justifiable reasons. Whenever the Government deviates from its policies/guidelines/ executive instructions, there must be cogent and strong reasons to justify the order; when transfer order is challenged by way of representation, there must be material on record to establish that the decision was in public interest and it does not violate any statutory provision, otherwise the order may be struck down as being arbitrary and violative of Article 14 of the Constitution. The authorities cannot justify their orders that breach of executive orders do not give legally enforceable right to aggrieved person. As observed by Justice Frankfurter "An executive agency must be rigorously held to the standards by which it professes its action to be judged".
Learned counsel for the petitioner has placed reliance on a Division Bench judgment of this court in the case of Heera Lal Tewari v. Sate of U.P. And Another, 2007(25)LCD 1296. A bare reading of the judgment clearly indicates that the said judgment is based on the facts of that case. Moreover, no judgment laying down the law in respect of transfer has been referred in the order.
In view of the above the judgment cited by learned counsel for the petitioner does not help the petitioner.
After careful consideration of the matter, I am of the view that the writ petition lacks merit and it is accordingly dismissed.
No order as to costs.
Order Date:-13.8.2015
ssm
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If the transfer order is in violation of the Transfer Policy, the Supreme Court in the case of Union of India v. S.L.Abbas reported in (1993) 4 SCC 357 has held that Guidelines/Transfer Policy does not confer upon the government employee a legally enforceable right to challenge it under Article 226 of the Constitution
***********************
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 4
Case :- WRIT - A No. - 45473 of 2015
Petitioner :- Sandeep Yadav
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Vijay Gautam
Counsel for Respondent :- C.S.C.
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is a Sub-Inspector. He has been transferred in public interest from Gorakhpur to Varanasi Zone. He has challenged his transfer order on the ground that his wife is a teacher in Gorakhpur and on his request he was earlier transferred to Gorakhpur. The said transfer was cancelled and he was transferred from Gorakhpur Zone to Devi Patan Range. He again made an application to the Inspector General of Police, Gorakhpur Zone and his transfer order was cancelled. The grievance of the petitioner is that despite the said fact the third respondent has passed the impugned order transferring the petitioner from Gorakhpur to Varanasi Zone.
It is contended on behalf of the petitioner that the petitioner's wife is a teacher in Gorakhpur and the transfer policy of the State Government provides that endeavour should be made to post the husband and wife at a same place. He further submits that once the Inspector General of Police has made a recommendation the third respondent should not have transferred the petitioner from Gorakhpur to Varanasi. No other argument has been raised.
In the transfer matter the scope of judicial review is very limited. It is a trite law that no Government Servant has any legal right to be posted at any particular place of his choice. Transfer is an incident of government service. Transfer order can be challenged only on the ground of violation of the statutory rules or malafide.
If the transfer order is in violation of the Transfer Policy, the Supreme Court in the case of Union of India v. S.L.Abbas reported in (1993) 4 SCC 357 has held that Guidelines/Transfer Policy does not confer upon the government employee a legally enforceable right to challenge it under Article 226 of the Constitution.
In the case of N.K. Singh v. Union of India and others, reported in (1994) 6 SCC 98, the appellant Sri N.K.Singh was an I.P.S. Officer. He was allocated to State cadre of Orissa. He was I.G., C.I.D. in Orissa. His services were placed on deputation to Ministry of Home Affairs and was posted as Joint Director in Central Bureau of Investigation (C.B.I.). He was In-charge of a Special Investigation Group conducting some sensitive investigation. He was abruptly transferred to Boarder Security Force (B.S.F.) in an equivalent post of I.G.P.. He challenged his transfer order on the ground of malafide against the then Prime Minister Shri Chandrashekhar and the then Union Law Minister Dr. Subramanyam Swami. The grievance of the appellant therein was that he was In-charge of a Special Investigation Group investigating into St. Kitts affair. Therefore, he was eased out from the C.B.I. to scuttle the fair investigation. Against this background, the Supreme Court ruled as under:
"6. Shri Ram Jethmalani, learned counsel for the appellant did not dispute that the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. In reply, the learned Additional Solicitor General and the learned counsel for Respondent 2 did not dispute the above principle, but they urged that no such ground is made out; and there is no foundation to indicate any prejudice to public interest."
"24. ...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised."
The Supreme Court again dealt with the matter of transfer in the case of State of U.P. and others v. Gobardhan Lal, reported in (2004) 11 SCC 402. Said case arose out of the judgment of a Division Bench of the Allahabad High Court (2000 All LJ 1466), wherein the High Court had issued some general directions in the matter of transfers. The Government servants were given liberty to file representation against their transfer directly to the Chief Secretary and further direction was issued to the State Government to constitute Civil Service Board for dealing with transfers and postings of Class-I officers. The Supreme Court found that the High Court fell in serious error and such general direction will leave an impression that the Courts are attempting to take over the reign of the executive administration. In paragraph-8 of the judgement, the Supreme Court held as follows:
"8. 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 fides 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."
In the case of Mohd. Masood Ahmad v. State of U.P. And others, reported in (2007) 8 SCC 150, the Supreme Court has elaborately considered the well settled principle again and observed as under:
"4. ....Since the petitioner was on a transferable post, in our opinion, the High Court has rightly dismissed the writ petition since transfer is an exigency of service and is an administrative decision. Interference by the courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions, transfer is an exigency of service .."
In the aforesaid case i.e. Mohd. Masood Ahmad (supra) the Supreme Court approved the view taken by the Allahabad High Court wherein this Court had refused to interfere in the transfer cases. The Supreme Court observed as under:
"7. .... Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P, (1997) 3 ESC 1668, and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt., (1997) 3 ESC 1866, has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 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 orders, were not competent to pass the orders."
Similar view has been reiterated by the Supreme Court in the case of Rajendra Singh and others v. State of Uttar Pradesh and others, reported in (2009) 15 SCC 178, and held as under:
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402; SCC p. 406, para 7).
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is 8 vitiated by violation of some statutory provisions or suffers from mala fides..."
An employee has no right to be posted at a particular place. He cannot exercise his option for his posting at a place of his choice. It is entirely to the employer to decide where and at what point of time a public servant is to be transferred from the present place of posting. The Supreme Court has consistently taken the view that an order of transfer is a part of service conditions of an employee which should not be interfered with ordinarily by the Court of law in exercise of its discretionary jurisdiction under Article 226 of the Constitution unless the order has been passed in violation of the service rules or it is infected with malice.
The petitioner belong to a disciplined force. He cannot be treated at par with other Government employees, while dealing with them in transfer matter. The police personnel should obey the transfer order immediately without any delay. The Supreme Court in the case of State of Haryana and others v. Kashmir Singh and another, (2010) 13 SCC 306, has considered the transfer of police personal and observed thus:
"12. Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well settled that courts must not ordinarily interfere in administrative matters and should maintain judicial restraint, vide Tata Cellular v. Union of India
[(1994) 6 SCC 651]."
The Supreme Court in the case of S.C. Saxena v. Union of India and Others, (2006) 9 SCC 583, has observed that government servant in the matter of transfer should first report/join for work where he is transferred. After joining the transferred place, he may make a representation to the higher authority to ventilate his grievance.
Insofar as the submission of learned counsel for the petitioner that Inspector General of Police has made a recommendation for cancellation of the transfer order, therefore his transfer should not have been made. In my view the said submission has no force. The Police Establishment Board has been constituted in compliance of the order of the Supreme Court in the case of Prakash Singh and others v. Union of India and others, (2006) 8 SCC 1. The Supreme Court has entrusted the transfer, posting, promotions and other service related matters of Police Force to the Police Establishment Board exclusively. Thus the said submission has no force.
The principle which can be discerned from above mentioned and other various decisions of the Supreme Court is that although the breach of guidelines does not give any legally enforceable right in favour of the employee but at the same time the guidelines/transfer policy/Government orders issued to deal with transfer of officers and employees cannot be ignored altogether by the competent authority. While transferring an officer, the broad guidelines mentioned in the transfer policy, executive orders or guidelines must be kept in the mind.
If in the administrative exigency or in public interest, transfer of an officer/employee is necessary, then the competent authority may record the reasons for departing/deviating from the policy or the guidelines. Recording of such reason in the files would facilitate the superior officers to decide the representation of the officer concerned objectively. It is not necessary that while transferring an officer/ employee, reasons should be communicated to the concerned officer/employee.
This Court in the case of Dharmendra Kumar Saxena v. State of U.P. & others, 2013 (7) ADJ 53 has held that the Government is bound by executive orders/policies, and the guidelines are made to follow it and not to breach it without any justifiable reasons. The Court also followed the view consistently taken by the Supreme Court. Relevant paragraph of the order read as under:
"24...the Government is bound by executive orders/policies. The guidelines are made to follow it and not to breach it without any justifiable reasons. Whenever the Government deviates from its policies/guidelines/ executive instructions, there must be cogent and strong reasons to justify the order; when transfer order is challenged by way of representation, there must be material on record to establish that the decision was in public interest and it does not violate any statutory provision, otherwise the order may be struck down as being arbitrary and violative of Article 14 of the Constitution. The authorities cannot justify their orders that breach of executive orders do not give legally enforceable right to aggrieved person. As observed by Justice Frankfurter "An executive agency must be rigorously held to the standards by which it professes its action to be judged".
Learned counsel for the petitioner has placed reliance on a Division Bench judgment of this court in the case of Heera Lal Tewari v. Sate of U.P. And Another, 2007(25)LCD 1296. A bare reading of the judgment clearly indicates that the said judgment is based on the facts of that case. Moreover, no judgment laying down the law in respect of transfer has been referred in the order.
In view of the above the judgment cited by learned counsel for the petitioner does not help the petitioner.
After careful consideration of the matter, I am of the view that the writ petition lacks merit and it is accordingly dismissed.
No order as to costs.
Order Date:-13.8.2015
ssm
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