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ADHINASTH KRISHI SEVA SANGH AND OTHERS versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Adhinasth Krishi Seva Sangh And Others v. State Of U.P. And Others - WRIT - A No. 36107 of 2007 [2007] RD-AH 13593 (7 August 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 38

Civil Misc. Writ Petition No. 36107 of 2007

Adhinasth Krishi Sewa Sangh Uttar Pradesh Branch

Kanpur Mandal, Kanpur and  18 others

Versus

State of U.P. and others

Hon'ble V. K. Shukla, J.

In the present case, Adhinasth Krishi Sewa Sangh Uttar Pradesh Branch  Kanpur Mandal, Kanpur and 18 others have filed present writ petition, questioning validity of transfer policy and the subsequent orders of transfer orders based on the same, from Kanpur Dehat  to Farrukhabad.

Objection has been raised by Stamp Reporter in respect of single court fee, which has been paid, whereas, as per report, court fee ought to have been paid by each and every petitioner. Association is questioning the validity of transfer policy and as such single court fee has been paid. Taxing Officer has reported that, as single court fee has been paid, writ petition is not liable to be entertained. Once policy has been challenged , then certainly single set of court fee is sufficient. The objection is overruled and writ petition is entertained.  

In the present case, petitioner Nos. 2 to 18  are regular employees of Krishi Prasar Vibhag of U.P. They have been transferred from Kanpur Dehat to Farrukhabad. Contention of petitioners is that transfer has taken place  on account of policy decision dated 10.06.2005 and 24.05.2007 and the said policy is unsustainable, as the same has been framed  against all established norms and public interest. Petitioners are low paid employees and no object would be served. Transfers have been termed to be capricious and not in public interest.    

It is not disputed that petitioners hold transferable post and the authority who has passed the order of transfer has got full authority to pass such order of transfer. Petitioners have miserably failed to point out  violation of any statutory Rules or Regulations.  Transfer and posting is within the domain of the authorities concerned, and it is for them to see as to where an incumbent should be posted and where his/her services can be best utilized.

Qua this aspect of the matter, view point of Hon'ble Apex Court is being looked into. In the case of Mrs. Shilpi Bose and others Vs. State of Bihar and others reported in 1995 (71) FLR 1011 (SC) the Hon'ble Apex Court held as under:

"A Government servant holding a 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 order issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration, which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."

In the case of State of U.P. Vs. Gobardhan Lal reported in 2004 (101) FLR 586 (SC) Hon'ble Apex Court has held as under:

"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 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 services. Unless the order if transfer is shown to be an outcome of a malafide 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 or 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 polices at the best may afford an opportunity to the office 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 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 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 malafide or is made in violation of any statutory provisions.

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 requirement 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.

9. The very questions involved, as found noticed by the High Court in these case being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write ups in journals or newspapers reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any authority as well as the basis concepts and well-recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring and effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities effecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the concerned authorities, the Courts and Tribunals, as the case may be to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognised grounds or reasons, when property approached and sought to be vindicated in the  manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously Courts endeavour to safeguard the rights of parties."    

Hon'ble Apex Court in case of Union of India and others Vs. Janardhan Debanath and another reported in [(2004) 4 Supreme Court Cases 245 has taken the view that transfer order should not be interfered unless same is in violation of statutory provisions or order passed is malafide. Relevant extract is being quoted below:

"The High Court while exercising jurisdiction under Article 226 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever 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 another 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 or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision 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 Corpn. Ltd. Vs. Shri Bhagwan reported in [(2001) 8 SCC 574].                                                                      

The caution given by Hon'ble Apex Court qua transfer matters of members of Force has been given in the case of Major General, J.K. Bansal Vs. Union of India reported in 2005(107) FLR 37 in following terms.

" It will be noticed that these decisions have been rendered in case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by Courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed force should posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless and exceptionally strong case is made out no interference should be made."    

At this juncture the view of Hon'ble Apex Court in the case of Union of India Vs. Ashok Kumar and others reported in [(2005) 8 SCC 760] qua malafides is also being looked into which is as follows:

"21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its power. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficult is not lessended when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting malafides in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S Pratap Singh Vs. State of Punjab) reported in [(1964) 4 SCR 733 or AIR 1964 SC 72] It cannot be overlooked that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P. Royappa Vs. State of T.N reported in [(1974) 4 SCC 3 or AIR 1974 SC 555] courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly when the imputations are gave and they are made against the holder of an office which has a high responsibility in the administration. (See Indian Rly. Construction Co. Ltd. Vs. Ajay Kumar reported in [(2003) 4 SCC 579.

22.  As observed by this Court in Gulam Mustafa Vs. State of Maharashtra reported in [(1976) 1 SCC 800] mala fides is the last refuge of a losing litigant."

This court in the case of  Akash Sharma Vs. State of U.P. reported in (2007) 5 ADJ 354 taking into account various dictum of Hon'ble Apex Court took the view that employee has no choice in the matter of transfer and posting  and State Government has the authority to frame transfer policy, and the transfer policy of year 2006-2007, clearly indicates that a Government Servant, who stays in one district for six years or ten years in a division, has to be transferred. This is a salutary provision and should be implemented mandatory. There cannot be any relaxation to this norm for the simple reason, that if Government servant over stays at particular station, he develops local links and vested interest, which is detrimental  to public interest. Categorical direction was given that State Government should ensure that in future no Government employee   more than six years is placed and posted at one place and this direction was to come into effect, w.e.f. 2007-2008. Relevant para nos. 3,4,5,6,7,8,9,10,11,12,13,21 and 26 are being extracted below.

3    The latest transfer policy announced by the State Government is dated 11.5.2006 for the year 2006-07 which contemplates transfer on administrative ground, transfer on account of promotion, termination and retirement. Transfer can also be made on account of personal reason of a government servant such as medical aid, education, transfer on mutual consent of the employees, transfer to post husband and wife together. The transfer policy indicates that an employee who has completed six years in a district and ten years in a Division has to be transferred away from that district or division, as the case may be.

4.       The policy further contemplates that not more than 10% of the total employees would be transferred. Where an employee has completed six years in a district or ten years in a division, and in case the transfer of the employees exceeds 10%, in that event, prior approval from the concerned Minister of the Department or the Chief Minister is required to be obtained. The policy further contemplates that transfer made after the prescribed date would require approval from the Chief Minister/Minister or from a high ranking officer, depending on the category of the employee. The policy       further indicates that in case of any deviation, the transfer would required approval from the Chief Minister.

5.      The aforesaid policy indicates that a detailed procedure has been evolved as to how and when and under what circumstances a government employee could be transferred. But the whole question is, whether the policy is being followed ? Are the transfers made in accordance with the policy ? Is the State Government following its own policy ?

6.    No doubt, the transfer policy will have its plus points as well as its minus points. No transfer policy is perfect in the world. Therefore, even if there is some difficulty or irregularity or lapse in passing orders of transfer the same has to be ignored.  It must be remembered that if an organisation has to run efficiently, sufficient flexibility is required to be given to the authority in matters of transfer of its employers, otherwise the administrative machinery may collapse. Necessary adjustments and accommodation for keeping administrative machinery in smooth gear is required at times.

7.     In this light, the courts have been consistent in their observations that the transfer policy are only guidelines without statutory force. It is not necessary that the State Government should follow its policy strictly but it should be followed as far as possible. In certain situation, the policy may not be followed and therefore, certain flexibility is given to the appropriate authority, having regard to the exigency of administration. In Union of India and others Vs. S.L. Abbas, JT 1993 (3) SC 678, the Supreme Court held that the guidelines does not confer the government employee a legally enforceable right and that the authority would keep in mind the guidelines issued by the Government. Consequently, the courts normally does not interfere in the transfer orders even if there was a violation of the transfer policy/guidelines framed by the State Government.                        

8. Consequently, the Courts normally does not interfere in the transfer orders even if there was a violation of the transfer guidelines framed by the State Government.  

9.    In Union of India Vs. S.L. Abbas, JT 1993(3) SC 678, Rajendra Roy Vs. Union of India, AIR 1993 SC 1236, and in Union of India Vs. M.P. Thomas, AIR 1993 SC 1605, the Supreme Court held that the Government should not interfere with the transfer orders unless there is a violation of some statutory rules or where the transfer order was malafide.

10.    In N.K. Singh Vs. Union of India, 1994(6) SCC 98, the Supreme Court observed

"Unless the decision is vitiated by malafide or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there can be no judicially manageable standards for scrutinising all transfers."

11.       In Smt. Gayatri Devi Vs. State of U.P., 1997(2) UPLBEC 925, a single Judge of this Court held that a transfer order could be set aside on three grounds namely:                              

a) Violation of a statutory rule,

b) malafides, or

c) infraction of any professed norm or principle governing transfers.

12.       The said view was reiterated by a division bench of this Court in Rajendra Prasad Vs. Union of India, 2005(2) ESC 1224. The Court held :                                  "In view of the above, it is evident that transfer is an incident of service. An employee working on a transferable post cannot claim a right to be posted at a particular place. It is the choice of the employer to determine as on what place and for how long, the services of an employee are required. The Court cannot interfere with the transfer order, unless it is found to be in contravention of statutory rules or passed on malafides. Transfer policy does not create legal right justiciable in the Court of law. Transfer order does not affect any of his legal rights and Court cannot interfere with a transfer/posting, which is made in public interest or on administrative exigency. However, if the power of transfer is abused or transfer not made in public interest, but for collateral purposes and with oblique motive, the order would stand vitiated."                                

13.    In State Bank of India Vs. Anjan Sanyal and others, (2001)5 SCC 508, the Supreme Court held

" An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of aw in exercise of its discretionary jurisdiction unless the court finds that either the order is malafide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order."

21.       The State Government has framed a transfer policy. It is the duty of the State Government to implement the policy. Even if the Government servant disagrees with the policy, nonetheless, the same has to be implemented. The policy has been framed so that the transfer of an employee is implemented. The policy has not been framed to enable the employee or the State Government to misuse it with impunity. In the opinion of the Court, the transfer and posting of a government employee should not be made at the behest of Minister. Transfer has to be made on administrative grounds or in public interest. Transfer should not be made on political considerations, or on the policy of pick and choose or on the ground of favouritism.

26.    The policy clearly indicates that a government servant who stays in one district for six years or ten years in a division has to be transferred. This is a salutary provision and should be implemented mandatorily. There cannot be any relaxation to this norm for the simple reason that if the government employee overstays at a particular station he develops local links and vested interest, which is detrimental to public interest. On the other hand, in B. Varadha Rao Vs. State of Karnataka and others, (1986) 4 SCC 131 the Supreme Court held:                                

" However this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to malafide and colour able exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as malafide. A transfer is malafide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purposes, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."

And again held                            

"But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period."

Framing  of transfer policy is in the domain of the State Government.  State Government in its wisdom has taken decision that where Group-C employee who are from the State cadre have completed six years of service in one district they are entitled to be transferred  to another District and further for Group-C and Group-D  employees who are from the district cadre, after completing six years of service in the district be transferred to different District. No dispute whatsoever has been  raised in respect of  the authority of the State Government to frame transfer policy, rather entire assertion has been on the fact, that employees are being paid small emoluments, and this mandatory transfer, will create tremendous  problems and difficulties.

Hon'ble Apex Court, in the case of State of Orrisa Vs. Gopinath Dash, AIR 2000 SC 251, took the view that policy decision must be left to the Government as it alone can adopt which policy should be adopted after  considering all the points from different angles. In the matter of policy decision or exercise of discretion by Government, so long as infringement of fundamental right is not shown,Courts will have no occasion to interfere, and the Courts will not and should not substitute its own judgment for the judgment of executive in such matter . In assessing the propriety of decision of the Government, the Court cannot  interfere even if second view is possible from that of Government.  Taking the case in hand, petitioners have failed to point out violation of any fundamental right, accept for the difficulty part. The underlying idea for framing such policy is that the Government servant, who overstays at particular station he develops local links and vested interest, which is detrimental to public interest. Once the  experience of the State Government, has been this and in this background, with larger interest in mind policy decision has been taken to effectuate transfer, no fault could be found in the same. Public interest will have to be given way vis-a viz personal inconvenience. State Government being the employer, is posted with full facts in respect of emoluments being paid to its Class III and Class IV employees, and thereafter once conscious decision has been taken, as a policy decision , to be applied uniformly , no fault could be found in the same. Small emolument and Big emolument, are always determined by the State Government to be paid to its employees, keeping in view various factors and it is not for this Court to determine that member of petitioners association are being paid small emoluments . Once State Government has chosen to frame policy, without there being any element of discrimination , with conscious mind, and have  satisfied themselves that with the emoluments paid, Class IV and Class III employee can be transferred, this Court, will not proceed to interfere with the said policy.

In these circumstances and in this background, once petitioners have been transferred as per policy framed, none of their legal rights are being infringed. Writ petition lacks substance, as such same is dismissed.

07.08.2007

SRY


Copyright

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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