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SMT. MUKUL MALAVIYA versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Smt. Mukul Malaviya v. State Of U.P. & Others - WRIT - A No. 49828 of 2005 [2006] RD-AH 2280 (30 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ petition No.49828 of 2005

Smt. Mukul Malviya

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioner has approached this Court assailing the validity of transfer order dated 15.06.2005, passed by Assistant Director of Education (Secondary) on behalf of Director of Education, U.P.  transferring her from Government Girls Inter College, Katra, District Allahabad to  Government Girls Inter College, Phulpur, District Allahabad, and adjusting one Smt. Poonam Sahu at  Government Girls Inter College, Katra, District Allahabad.

Brief background of the case, as disclosed in the writ petition, is that petitioner was transferred to Allahabad in 1998 and since then she had been performing and discharging her duties as Assistant Teacher, and on account of her being senior, when Principal of the institution proceeded on leave, then petitioner performed and discharged duties of Principal on officiating basis. Petitioner submits that State Government on 12.05.2005 issued Government Order formulating  guidelines relating to transfer of employees in session 2005-06. Petitioner submits that in clear violation of the said policy, she has been transferred with the sole object and motive to accommodate Smt. Poonam Sahu, as such her transfer has not been made in bona fide exercise of of powers and as such the said transfer order is liable to be quashed.

Writ petition was presented on 19.07.2005. On the said date, learned Standing Counsel was directed to obtain necessary instruction. Sri A.K. Mehrotra has entered appearance on behalf of Smt. Poonam Sahu. On the matter being taken up on 22.07.2005, a letter dated 08.07.2005 issued by the same authority adjusting the petitioner in the same institution from where she has been transferred along with other teachers, had been produced.

Sri R.S. Mishra, learned counsel appearing for the petitioner contended that transfer order is in breach of transfer policy, as such transfer order is liable to be quashed. It has been further contended that power of transfer qua the petitioner has not been exercised bona fidely. This is also evident from the fact that qua petitioner order of attachment has been passed subsequently and Smt. Poonam Sahu has been sought to be adjusted in her place., as such in the present case, order impugned is without jurisdiction. Alternatively, it has been contended that transfer policy is binding on the authorities who are to exercise power of transfer, and in case they have violated or breached the aforesaid policy then interference can be made in the transfer order, and here as the petitioner had never requested to be transferred, contesting respondent has unnecessarily been  adjusted against the post held by the petitioner. The transfer order being in breach of policy decision, it is liable to be quashed.

Sri A.K. Mehrotra, learned counsel appearing for the contesting respondent, has submitted that petitioner has now been adjusted, as such she cannot have any objection to the transfer order, as she has been granted placement in the same institution, and even in case of breach of policy decision no interference is warranted by this Court, and as such writ petition is liable to be dismissed. No malafide has been alleged in the present case. I

After respective arguments have been advanced, the scope of interference qua transfer of an incumbent is to be looked into Hon'ble Apex Court in the case of State of U.P. Vs. Goverdhan Lal, J.T.2004 (5) SC 454 has taken the view that an order of transfer should normally be eschewed and should not countenanced unless the transfer is shown to be an outcome of a mala fide exercise of power or violation of any statutory provision or if an order is passed by an authority not competent to do so. Relevant extract of the aforesaid judgment is being quoted below:

"7 It is too late in the day for any government 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 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 violation 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 mater 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 offer/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. This court has often reiterated that 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.

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 out not 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."

Hon'ble Supreme Court in case of State of U.P. and others Vs. Siya Ram and another, J.T. 2004 (6) SC 255, has set aside the order of High Court on the ground that if the disciplinary action has been taken and the matter was pending, then merely because petitioner was transferred to a non-working post, the same did not in any way vitiate the order of transfer. For convenient perusal paragraphs 3 to 7 of the said judgment are being quoted below:

"3. The said order of transfer of respondent No. 1 having been quashed  by a Division Bench of Allahabad High Court, State of U.P. is in appeal. The respondent filed a writ petition in the Allahabad High Court questioning the order of transfer. The primary stand taken in the writ application was that the order of transfer was as a measure of punishment. An enquiry in a departmental proceedings had been initiated. Without affording him an opportunity of being heard, the transfer was done as a measure of punishment. The disciplinary action which was taken against respondent no. 1 pursuant to the enquiry conducted was referred to the Uttar Pradesh Public Service Commission for approval. But it was not approved. The present appellate-State filed a counter affidavit taking the stand that transfer of the writ petitioner was on administrative grounds and merely because the writ petitioner was transferred to a non-working post that did not in any way vitiate the order of transfer.

4. The writ petition was allowed by the impugned judgment dated 5.11.2003holding that the order of transfer was punitive in nature and had been passed by the State Government without awaiting the decision in the disciplinary proceedings.

"5. The High Court while exercising jurisdiction under article 226 and 227 of the Constitution of India, 1950 (in short the ''Constitution') had gone into the question as to whether the transfer was I the interest of public service. that would essential require factual adjudication an invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted for ever at any one particular place or place of his choice 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 a mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or tribunals normally  cannot interfere with such order as a matter of routine, s though they were the appellate authorities substituting their own decisions for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. V. Shri Bhagwan and Anr, J.T. 2001 (7) SC 515.

6. The above position was recently highlighted in Union of India  and others v. Janardhan Debanath and another, J.T. 2004 (2) SC 371. It has to be noted that the  High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest.

7. In view of the settled position in law the judgment of the High Court is indefensible and is set aside."

In the light of the principles enunciated in the aforesaid two judgments, transfer order has to be seen. Scope of interference is very very limited, and the transfer order can be interfered with only in the event it is shown that power has been exercised mala fidely, or the same has been made in violation of statutory provisions.

At this juncture transfer policy dated 12.05.2005 has to be looked into. The said transfer policy mentions that in case any incumbent intends to be transferred on account of personal reasons, then he/she may be transferred in case there is existing vacancy and in case some one is there, then with his/her consent. Here, in the present case, as far as respondent No. 4 is concerned, she had made request for being transferred. The fact of the matter is  that at no point of time consent has been taken from the petitioner, and the petitioner has been sought to be transferred in order to adjust Smt. Poonam Sahu in place of the petitioner. Prima facie there appears to be violation of prescribed guidelines, but as observed by Hon'ble Apex Court the said guidelines are not enforceable, and they are merely administrative guidelines in regulating the transfer. The said transfer policy is not enforceable under Article 226 of the Constitution, but certainly, once the State Government  has issued the aforesaid guidelines, then at the point of time when transfer is sought to be effected, then the said guidelines have to be kept in mind by the  transferring authority and endeavour should be  made that, as far as possible, transfers are to be effected as per guidelines, and in case deviation is to be made then some reasons may appear on record or in the order itself, in order to weed out arbitrariness and maintain transparency in maintaining the administration.

Here, in the present case, subsequent order of attachment in the same institution is also reflective of the fact that power of transfer has been exercised in order to adjust a particular incumbent. As no mala fide has been alleged and no violation of any statutory Rules has been shown, this Court refuses to exercise its power under Article 226 of the Constitution. However, as observed above, personal inconvenience is being alleged to be faced by the petitioner and guidelines are alleged to have been violated, liberty is given  to the petitioner to represent her case against the aforementioned order of transfer to the higher authority i.e. Director of Education (Basic) within a period of two weeks from the date of judgment, who shall consider and take appropriate decision in accordance with law preferably within next six weeks after calling for comments from the transferring authority as well as the incumbent in whose favour order of transfer order has been passed. Needless to say that earlier order of transfer shall abide by fresh order, which would be passed by the authority concerned.

With the above observations, writ petition is disposed of.

29.07.2005

SRY


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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