WPSS/1128/2004 of DEVENDRA SINGH Vs UNION OF INDIA and ORS

HIGH COURT OF UTTARAKHAND, AT NAINITAL

Writ Petition No. 1128 (S/S) of 2004

Devendra Singh aged about 40 years S/o Shri Omkar Singh, LNK No.8765750 SSB, Sector Head Quarter, Ganiadoli, Ranikhet, District Almora

…Petitioner

Versus

Union of India and others

…Respondents

Mr. M.C. Pandey, Advocate for the petitioner. Mrs. Anjali Bhargava, Standing Counsel (Union of India) for respondents.

Per Hon’ble J.C.S. Rawat, J.

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the impugned transfer order dated 31/08/2004 (annexure-1 to the writ petition) passed by the respondent No.3-Inspector Genera, SSB, Frontier Head Quarters, 11[th] Floor, Kendriya Bhawan, Aliganj, Lucknow (U.P.) whereby the petitioner has been transferred from SHQ Ranikhet to 6[th] Battalion.

2. The petitioner has challenged the said transfer order on the ground that the transfer has been made solely adjusting the attached personnel by putting extra financial burden on the Union of India; the said transfer order has been made in violation of the guidelines for the transfer made by the Government of India; the petitioner was transferred after 2-1/2 month arbitrarily and with malafide intention; and the representation of the petitioner has not been dealt with properly. Feeling aggrieved by the said transfer order, this petition has been filed by the petitioner.

3. Learned counsel for the petitioner contended that the transfer has been made in utter violation of the transfer policy made by the Government; there is malafidy on the part

of respondent No.2; and the said transfer order is arbitrary because it was made after 2-1/2 months after the posting of the petitioner at Ranikhet.

4. Heard learned counsel for the parties and perused the record.

5. It is settled position of law that the transfer order can only be interfered by the Court when there is malafide or it has been made in utter violation of the rules; it is also not disputed that the transfer policy made by the Government is merely guideline and it has not been formulated under any of the provision of the law; the said policy cannot be enforced in the Court of law, the policy can only bind the employer and the employee; it is for the employer to see that the guidelines are to be followed; and if the guidelines are violative, it can not be questioned in the court of law.

6. The Hon’ble Apex Court in the case of Major General J.K. Bansal Vs. Union of India and others reported in (2005) 7 SCC p/227) has held in paras 9, 10 and 11 as under:-

“9. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under: -

"In our opinion, the courts should not interfere with transfer order which are 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 mala fide. Government servant holding 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 issuedby the competent authority do not violate any ofhis legal rights. Even if transfer order is passedin violation of executive instructions or orders, theCourts ordinarily should not interfere with the orderinstead affected party should approach the higherauthorities in the Department."

10. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under:-

"Who should be transferred where, is matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. Theguidelines say that as far as possible, husband and wifemust be posted at the same place. The said guidelinehowever does not confer upon the Governmentemployee legally enforceable right."

11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held 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 particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown tobe an outcome of malafide exercise of power or statedto be in violation of statutory provisions prohibiting anysuch transfer, the courts or the tribunals cannotinterfere with such orders, as though they were theappellate authorities substituting their own decision forthat of the management.”

7. I am fortified by the view taken by the Hon’ble Apex Court in the cases cited above. Whereas the malafide is concerned, it is settled position of law that merely stating that there is malafide or transfer has been made after 2-1/2 months of the posting is not sufficient. The details of the malafide and the malice should have been brought on record by the petitioner. The details of the malafide has not been given in the petition by the petitioner; mere vague averments of malafide is not sufficient unless the details of it had not been given in the writ petition; and the party against whom malafide has been alleged must have been arrayed as party by the petitioner.

8. It is apparent from the perusal of the aforesaid judgments that unless the order of transfer is vitiated by malafideor it is made in violation of any statutory provisions, the Court should not interfere with it.

9. In view of the above, I do not find any ground for interference in the impugned transfer order. The writ petition is liable to be dismissed and is hereby dismissed summarily.

11[th] September, 2009 Shiv

(J.C.S.Rawat, J.)