1. Heard Sri K.S.Pawar, learned counsel for the petitioner and Sri P.K.Singh, learned Additional Chief Standing counsel appearing for the State-respondents. With the consent of learned counsel for both the parties, the instant writ petition is being finally disposed of.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned rejection order dated 02.07.2018, contained in Annexure No. 2 to the writ petition.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned trasnfer order dated 05.12.2017 contained in Annexure No. 3 to the writ petition.
(iii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.02.2018 contained in Annexure no. 4 to the writ petition.
(iv) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 24.05.2018 contained in Annexure-5 to the writ petition.
(v) Issue a writ, order or direction in the nature of mandamus commanding the opposite party not to disturb the petitioner from the post of Junior Engineer, Lucknow Zone, Bareilly Range.
(vi) Any other order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case and
(vii) To allow the writ petition with cost."
3. The case set forth by the petitioner is that he is working on the post of Junior Engineer. Vide order dated 05.12.017, a copy of which is annexure-3 to the writ petition, the petitioner has been transferred from Lucknow Zone to Agra Zone/Moradabad Region. The impugned transfer order indicates that the copy of the transfer order has also been forwarded to the Inspector General of Police (establishment) with reference to his letter dated 17.11.2017. Aggrieved against the transfer order dated 05.12.2017, the petitioner preferred a representation dated 06.12.2017 which came to be rejected vide order dated 19.02.2018, a copy of which is annexure-4 to the writ petition. While rejecting the representation, it has been indicated in para-2 C of the said order that the petitioner has been transferred vide order dated 05.12.2017 taking into consideration the carelessness done by him while working on the post of Junior Engineer and consequently he has been transferred in the interest of the administration.
4. Being aggrieved with the both the orders dated 05.12.2017 and 19.02.2018, the petitioner preferred Writ Petition No. 17501 (S/S) of 2018 Inre; Ajay Kumar Mishra Vs. Inspector General of Police before this Court. This Court vide order dated 08.06.2018, disposed of the writ petition by the following order:-
"Heard learned counsel for the parties.
In compliance of order of this Court dated 06.06.2018, the learned Additional Chief Standing Counsel has submitted that he could not receive any instructions in the matter and he may be granted some more time to seek instructions in the matter.
The order under challenge is a transfer order dated 05.12.2017 as well as the relieving order dated 24.05.2018, which are contained as Annexure Nos.1 and 3 to the writ petition.
The submission of learned counsel for the petitioner is that the aforesaid transfer order has been passed by way of punishment as indicated in the order dated 19.02.2018, which is contained as Annexure No.2 to the writ petition.
Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.7 of the writ petition, which is a detailed representation of the petitioner dated 07.05.2018 preferred to the Additional Director General of Police, U.P. Police Headquarter, Allahabad, whereby the petitioner has submitted his grievance in detail indicating each facts and circumstances, but no decision has been taken by the Competent Authority, however in the meantime, the relieving order dated 24.05.2018 has been issued.
Learned counsel for the petitioner has further submitted that the person who has been posted at the place of petitioner has yet not submitted his joining and the petitioner has also not joined at the transferred place.
Since the petitioner has preferred a detailed representation dated 07.05.2018 and without considering the aforesaid representation of the petitioner the relieving order has been passed, therefore, it is incumbent upon the authority concerned i.e. Additional Director General of Police, Uttar Pradesh Police Headquarter, Allahabad to pass appropriate order on the aforesaid representation of the petitioner by a speaking and reasoned order, with expedition, say within a period of one month from the date of presentation of a certified copy of this order before him. Till the disposal of the representation of the petitioner dated 07.05.2018 or one month, whichever is earlier, no coercive action shall be taken against the petitioner regarding his joining at the transferred place.
In view of the aforesaid terms, the writ petition is disposed of finally."
5. Without deciding the representation of the petitioner, the relieving order dated 24.05.2018 was issued relieving the petitioner from his place of posting. After a period of more than a month, the representation which was directed to be decided by this Court was rejected vide order dated 02.07.2018, a copy of which is annexure-2 to the writ petition.
6. Learned counsel for the petitioner while challenging the impugned transfer order dated 05.12.2017 has indicated that the respondents have themselves admitted while passing the orders dated 19.02.2018 and 02.07.2018, on the representations preferred by the petitioner, that the transfer order is in fact an order of punishment inasmuch as because the petitioner was careless in discharging his duties on the post of Junior Engineer, consequently he has been transferred. Thus, placing reliance on the averments contained in the aforesaid two orders, it is the case of the petitioner that the order of transfer dated 05.12.2017 cannot be said to have been passed either in administrative exigency, which has been indicated in the impugned transfer order or in public interest inasmuch as the same is patently punitive and has been in order to punish the petitioner.
7. This Court vide order dated 23.07.2018 had required the learned Additional Chief Standing counsel to produce the copy of the letter dated 17.11.2017 as has been referred in the impugned transfer order dated 05.12.2017. The copy of the said letter along with the instructions have been made available to the Court today. A copy of letter dated 17.11.2017 indicates that the Inspector General of Police (establishment) vide his letter dated 17.11.2017 has made a request that the petitioner has acted in a causal manner while discharging his duties on the post of Junior Engineer with the result that in the official accommodation which was being supervised by the petitioner has developed cracks and as such the petitioner on account of his causal supervision should be removed from the work of supervision.
8. Learned counsel for the petitioner also submits that taking into consideration the aforesaid facts as well as the letter dated 17.11.2017, it is apparent that the impugned transfer order is not as innocuous as is sought to be made out by the respondents rather it is punitive. The further submission on the part of petitioner is that in the case of Sarvesh Kumar Awasthi Vs. U.P. Jal Nigam and Ors before the Hon'ble Supreme Court vide SLP (C) No. 2523 of 2001, the Hon'ble Supreme Court had observed that transfer of officers are required to be effected on the basis of set norms or guide-lines and that that the power of transferring an officer cannot be wielded arbitrary, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the concerned officer. Consequently, the Chief Secretary was required to file necessary affidavit within six weeks pointing out rules and regulations for effecting transfers of officers including higher officers such as District Magistrate. Sri Pawar contends that on the basis of the said order passed by the Hon'ble Supreme Court dated 04.09.2001, the Chief Secretary had filed an undertaking and subsequently the said case was disposed of. However, no such order has been filed with regard to indicate the said fact. Be that as it may, the under noted discussions and the subsequent judgments of the Hon'ble Supreme Court will not necessitate any further discussion on this aspect.
9. The further argument of the petitioner is that the transfer order of the petitioner is against the transfer policy framed by the respondents themselves per which each officer has got specific tenure and the said tenure so far as it pertains to the petitioner has been violated. The other ground of challenge raised to said transfer order is that the petitioner has been transferred frequently inasmuch as he has been transferred thrice within a period of one and half years and thus the transfer order dated 05.12.2017 has not been passed bonafidely . It is also argued that there is total non application of mind while issuing the impugned transfer order. Sri Pawar while raising challenge to the impugned transfer order has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Somesh Tiwari Vs. Union of India and Ors reported in AIR 2009 SC 1399 to contend that an order of transfer cannot be made on a punitive basis. In this regard he has referred to paragraphs 21, 22 and 28 of the said judgment which for the sake of convenience are reproduced below:-
"21. An enquiry was initiated against the appellant in terms of the allegations contained in an anonymous letter. Having regard to the directives of the Central Vigilance Commission, no enquiry could have been initiated against him but it is beyond any doubt or dispute that in the said enquiry, the allegations were found to be untrue.
Despite the same not only an order of transfer was passed but to a station, which, according to the respondents themselves, was `harsh'. The competent authority of appellant did not consider his initial representation. Admittedly an order of stay was passed by the Central Administrative Tribunal while disposing of O.A. No. 897 of 2005 dated 27th September, 2005.
By reason of the said order passed by the Central Administrative Tribunal, it was obligatory on the part of the respondents to dispose of his representation. When it was rejected, he filed a fresh Original Application.
22. Indisputably he did not join his post at Shillong. We, although, are of the opinion that the appellant, thus, should have joined at his transferred post, he did not do so as a result whereof he might have committed a misconduct. But while invoking the doctrine of `no work no pay', as urged by Mr. Quadri, the superior courts must strike a balance. With a view to do justice to both the parties, the court was required to consider the conduct of both the parties.
Respondents knew that the matter was pending before the Tribunal. They did not approach the Tribunal to obtain leave for passing the second order of transfer. They passed an order of transfer while considering the cases of promotion and transfer of a large number of officers. The order of transfer suffered from a total non application of mind in so far as it proceeded on the premise that the appellant had already joined his post at Shillong. Even it was not stated that the said order of transfer was being passed in modification of the earlier order of transfer or upon reconsideration of the matter afresh on humantarian ground or otherwise. We may place on record an extract from the note sheet of Member (P&V) dated 31st October, 2005 which reads as under:
AC(P) (i.e. petitioner) has tried to fix responsibility on some superintendents for loss/closure of some files about investigations against assessees, those superintendents, who happened to belong to SC/ST category on being thus pressured, has complained to the police and other agencies alleging harassment of backward classes by Sh. Somesh Tiwari, a Brahmim, these complaints were found to be baseless and the police had not pursued the matter. Having failed at the local level it is possible that these officers had lodged the complaint at Delhi which resulted Sh. Tiwari's transfer. Sh. Tiwari is an honest and well intentioned officer.... It is proposed to give him less harsh posting.
28. We, keeping in view the fact, that on the one hand the appellant did not join his posting at Ahmedabad, although no order of stay was passed and on the other wholly unwarranted and reprehensible conduct on the part of the authorities of the respondents, are of the opinion that interest of justice would be subserved if during the period from 28th December, 2005 till his joining his post at Bhopal, the appellant is treated to be on leave and the respondents are directed to pass an appropriate order invoking the leave rules applicable in this behalf. It is ordered accordingly."
10. Per contra, Sri P.K.Singh, learned Additional Chief Standing counsel argues that the transfer is an exigency of service and it is the sole discretion of an employer to transfer and post any employee concerned taking into consideration as to the best place that the services of an employee can be utilised. So far as the ground taken by Sri Pawar pertaining to the two orders dated 19.02.2018 and 02.07.2018 vide which the representation of the petitioner has been rejected indicating that the impugned transfer order has been passed in a punitive manner, it is the case of the learned Additional Chief Standing counsel that once the impugned transfer order itself does not contain any stigma or any insinuation against the petitioner but merely because while deciding the representation of the petitioner, said facts have been indicated, the same would not be a ground for vitiating the impugned transfer order inasmuch as the transfer order clearly indicates that it is being passed in administrative exigency.
11. This Court has heard the learned counsels for the contesting parties and perused the record.
12. It is an undisputed fact that the petitioner has been transferred on the basis of the transfer order dated 05.12.017, a copy of which is annexure-3 to the writ petition. A perusal of the said order indicates that the petitioner has been transferred from his present place of posting ,i.e Lucknow Zone/Bareilly Region to Agra Zone/Moradabad Region. By the same order, one Sri Anurag Mishra has been transferred from Agra Zone/Moradabad Region to Lucknow Zone/Bareilly Region in place of the petitioner. It has been pointed out by learned Additional Chief Standing counsel that Sri Anurag Mishra has already submitted his joining on 23.06.2018 in place of the petitioner, which incidentally has neither been challenged nor Sri Anurag Mishra has been made a party .
13. So far as the grounds contained in the orders dated 19.02.2018 and 02.07.2018 that the petitioner has been transferred on the basis of the carelessness and casual nature reflected by him during the course of supervision of construction, this Court may only point out that once no such insinuation or allegations are contained in the impugned transfer order then merely because while deciding the representation preferred by the employee concerned, certain grounds have been indicated, would not render the original order of transfer bad in the eyes of law or would indicate that the same has been issued in a punitive manner. In this regard, this Court may refer to judgment of the Hon'ble Supreme Court in the Constitution Bench judgment of Mohinder Singh Gill Vs. Chief Election Commissioner reported in AIR 1978 SC 851 which for the sake of convenience is reproduced below:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji :
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
14. Accordingly, it is apparent that the Hon'ble Supreme Court has held that when an authority passes an order, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise else an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds. In the instant case also, the impugned order of transfer has been passed in a routine manner. Merely because while rejecting the representation preferred by the petitioner, orders were passed indicating about certain complaints made against the petitioner would not itself render the order of transfer bad in the eyes of law.
15. This Court may also refer to a Division Bench judgment of this Court in the case of Union of India Vs. Vishnu Kant Pal in Special Appeal No. 969 of 2015 decided on 11.01.2016 where in with respect to a similar order of transfer which was sought to be challenged on the ground that while deciding the representation of the employee concerned, reasons were indicated that the same has been issued in a punitive manner, the Division Bench indicated that even if the order of transfer was passed upon the receipt of the report, the order of transfer cannot be regarded as being stigmatic inasmuch as the authorities are entitled to issue such orders of transfer on administrative grounds and even assuming that a complaint is received against the employee, it is for an employer to make suitable arrangements to ensure that the interest of the employee is duly taken care of. For the sake of convenience, the relevant paragraph is being reproduced below:-
"Even if, the order of transfer was passed upon the receipt of the report, we are emphatically of the view that the transfer cannot be regarded as being stigmatic. The authorities are entitled to issue such orders of transfer on administrative grounds. Even assuming that a complaint is received against an employee, it is for the employer to make suitable arrangements to ensure that the interest of the employer - in the present case, a public employer such as the North Central Railway is duly taken care of by assigning suitable duties to the employee."
16. In this regard, the Court may refer to the judgment of the Hon'ble Supreme Court in the case of Registrar General High Court Vs. R.Perachi reported in (2011) 12 SCC 137 wherein the Hon'ble Supreme Court even after considering that the transfer order of the employee concerned was on the basis of report of the Registrar (Vigilance) and it had also been opined by the District Judge concerned that the retention of the employee in his District was undesirable from the point of view of the administration, held that transfer is an exigency of service and one cannot make a grievance if the transfer is made on an administrative ground and without stigma.
17. In this regard, the relevant observations of the Hon'ble Supreme Court for the sake of convenience is reproduced below:-
"21. We have considered the submissions of both the counsel. As far as the action of transfer against the first Respondent was concerned, the same was on the basis of the report of the Registrar (Vigilance). Besides, the District Judge had also opined that retention of the Appellant in his district was undesirable from the point of view of administration. Thus, it involved inter-district transfer. The Respondent No. 1 had not disputed the power of the High Court to transfer him outside the district, nor did the division bench interfere therein on that ground. This is apart from the fact that transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative grounds, and without attaching any stigma which was so done in the present case.
22. In the context of transfer of a govt. servant we may refer to the dicta of this Court in N.K. Singh v. Union of India reported in AIR 1995 SC 423 where this Court observed in para 22 as follows:
22... Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.
23. In State of Madhya Pradesh v. S.S. Kourav reported in AIR 1995 SC 1056, the Administrative Tribunal had interfered with the transfer order of the Respondent and directed him to be posted at a particular place. It is relevant to note that while setting aside the order of the tribunal this Court observed in para 4 of its judgment as follows:
4....The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
24. We may mention that this Court has reiterated the legal position recently in Airports Authority of India v. Rajeev Ratan Pandey reported in 2009 (8) SCC 337 that:
"10...... In a matter of transfer of a govt. employee, the scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer."
31. As seen above, the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances the decision of the then Chief Justice to transfer him outside that district could not be faulted."
18. Likewise, the Hon'ble Supreme Court in the case of Rajendra Singh Vs. State of U.P reported in (2009) 15 SCC 178 held as under:-
3.The transfer order dated July 31, 2007 came to be challenged by the Writ Petitioner before the High Court of Allahabad, Bench Lucknow. While challenging the legality of the transfer order, Writ Petitioner set up the grounds that he joined as Sub-Registrar, Ghaziabad, Sadar-IV only a month back; that the transfer order has been issued on the complaint of one Radhey Lal, Sanyojak Dalit Morcha Sangharsh Samiti, Lucknow and that the order of transfer was arbitrary, stigmatic and suffers from non-application of mind.
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.
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. AIR 1991 SC 532, this Court held:
4. In our opinion, the courts should not interfere with a transfer order which is 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. 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 orders 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 overlooked these aspects in interfering with the transfer orders.
10. In N.K. Singh v. Union of India and Ors. (1994) 6 SCC 1998, this Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision.
12. As regards Respondent No. 5, the High Court considered the matter thus:
...in our view, it is evident that the respondent No. 5 also can not be said to be an Officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad and in this regard, it appears that I.G. (Stamps) did not give correct information to the Principal Secretary. However, it can not be held that the respondent No. 1 in passing order dated 31st July, 2007 has acted maliciously or for extraneous reasons amounting to malafide. Once the basic ground of challenge to the impugned order of transfer that the same is malicious in law falls, we do not find any reason to interfere with the impugned order of transfer, transferring the petitioner from Ghaziabad to Hapur. It is not the case of petitioner that his transfer is contrary to rules or has been issued by an authority who is not competent. It is well settled that an order of transfer is amenable for judicial review on limited grounds namely it is contrary to rules or has been passed an incompetent authority or is a result of malafide. In view of admission on the part of the respondent No. 1 in his Counter Affidavit that the respondent No. 5 has been found guilty of serious misconduct for causing loss to the Government revenue by acting without jurisdiction and colluding evasion of stamp duty, in our view transfer of the respondent No. 5 to Ghaziabad can not be sustained in view of further admission on the part of the respondent No. 1 that the interest of department requires posting of an honest and efficient person at Ghaziabad.
13. It is difficult to fathom why the High Court went into the comparative conduct and integrity of the petitioner and Respondent No. 5 while dealing with a transfer matter. The High Court should have appreciated the true extent of scrutiny into a matter of transfer and the limited scope of judicial review. Respondent No. 5 being a Sub-Registrar, it is for the State Government or for that matter Inspector General of Registration to decide about his place of posting. As to at what place Respondent No. 5 should be posted is an exclusive prerogative of the State Government and in exercise of that prerogative, Respondent No. 5 was transferred from Hapur-II to Ghaziabad- IV keeping in view administrative exigencies.
14. We are pained to observe that the High Court seriously erred in deciding as to whether Respondent No. 5 was a competent person to be posted at Ghaziabad-IV as Sub- Registrar. The exercise undertaken by the High Court did not fall within its domain and was rather uncalled for. We are unable to approve the direction issued to the State Government and Inspector General of Registration to transfer a competent officer at Ghaziabad-IV as Sub-Registrar after holding that Respondent No. 5 cannot be said to be an officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad-IV. The High Court entered into an arena which did not belong to it and thereby committed serious error of law.
19. Hon'ble Supreme Court in the case of Union of India Vs. Janardhan Debnath and Anr reported in (2004) 4 SCC 245 has held as under:-
"3. Background facts sans unnecessary details are as follows:
The respondents were working in the Postal Services Department. They were transferred from Agartala Division to Meghalya Division by order of transfer dated 10.9.2002. Feeling aggrieved by the order, the respondents (writ petitioners) along with two others moved the Central Administrative Tribunal at Guwahati (in short the 'Tribunal'). The Tribunal after hearing the parties directed the authorities to consider the representations made by the two lady applicants who were co-applicants along with the respondents within one month. So far as the present respondents are concerned, no interference was made by the Tribunal with the order. Challenging the decision of the Tribunal, the writ petitions were filed. The grounds on which the writ petitions were filed were (a) the transfer orders of the two respondents were in violation of the provisions of Rule 37 of the Posts and Telegraphs Manual. Volume IV (in short 'the Manual') read with D.G. Posts Letter No. 20-12/90-SPBI dated 23.8.1990; (b) the transfer is in violation of Rule 15 of the Fundamental Rules (in short 'FR 15') and (c) the inter Divisional transfer would effect the seniority and promotional prospects of the writ petitioners and (d) the transfer order was passed as a measure of penalty.
4. The Union of India took the stand that the transfer was done in public interest and on account of exigencies of administration. It was pointed out that the respondents not only misbehaved with the Director (Postal Services), a senior lady officer, she was confined and dragged from one room to another and this was done with a view to force her to withdraw the charge sheet against the Deputy Post Master. She was abused in filthy language and was physically manhandled. This conduct was certainly unbecoming of an employee and with a view to enforce discipline and to avoid recurrence of such unfortunate incident, they were transferred. There was no violation of either Rule 37 of the Manual or FR 15. The High Court accepted the prayers made in the writ petitions and held that transfer was impermissible in terms of Rule 37 and was in violation of FR 15. It was as a measure of penalty and the seniority and the promotional prospects were likely to be affected.
9. A bare reading of Rule 37 shows that officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers were not to be ordered except when advisable in the interests of public service. The transfers can be made subject to conditions laid down in FR 15 and 22. The appellant has indicated as to why and under what circumstances the transfers were thought proper in the interests of public service. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') 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 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 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 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 Corporation Ltd. v. Shri Bhagwan and Anr.,
12. That brings us to the other question as to whether the use of the expression 'undesirable' warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. The Union of India (1964)ILLJ418SC to contend that whenever there is a use of the word 'undesirable' it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression 'undesirable' in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature an extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
13. Additionally, it was pointed out by learned counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion. It was also submitted that transfer was within the same circle i.e. the North Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise.
14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehavior is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehavior or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirements, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as costs."
20. Another Division Bench of this Court in a judgment reported in 2010 SCC Online ALL 1152 Inre: Dr. Anil Kumar Pradhan Vs. State of U.P has held as under:-
"3. Mr. Manish Kumar, learned Counsel for the petitioner submits that after being selected through U.P. Public Service Commission, the petitioner was appointed on the post of Medical Officer on 14.2.1988 and while working as such, he was promoted on the post of Senior Consultant at S.S.P.G. District Hospital, Varanasi in the month of September, 2009. He submits that pursuant to the oral complaint being moved by unknown person, opposite party No. 6-Hon'ble Minister, Medical and Health, U.P. Civil Secretariate, Lucknow, summoned the petitioner, to which the petitioner tendered his explanation, wherein it has been stated that the patient was not operated prior to one month as his hemoglobin was below 5% and as soon as his hemoglobin was above 10%, he had operated the patient. He submits that there is no complaint ever made against the petitioner in his 22 years of service. Further, the impugned transfer order has not been passed either in public interest or in administrative exigency and as such, the petitioner has been transferred merely on the dictate of the Hon'ble Minister. He also submits that it is the policy decision of the Government that no one will be transferred during financial year 2010-11.
16. One more important aspect of the matter is that the government servant does not have right not to comply with the transfer order without there being any interference or otherwise protection given by the Court or by the superior authority and to keep on filing petition after petition challenging the order in the High Court. Government servant can not claim that he should be posted at a particular place for a particular period. The transfer is an incidence of service. The posting of government servant by issuing transfer order is a natural requirement in service law. The transfer is effected keeping in mind the exigency of service, and in public interest or for administrative reasons. It is the sole discretion of the appointing authority to post the government servant at any place where he/she is more required. Of course, if transfer order has been passed in violation of any statutory Provision or Rule or is a result of mala fide or bias of the authorities, then that can be subjected to scrutiny by the Court but unless the order so suffers, the High Court will, normally, not interfere in the transfer order.
17. In the instant case, there is admittedly a complaint against the petitioner. The petitioner fully knows about that complaint as is evident from the stand taken in the writ petition itself. The plea of the petitioner that he cannot be transferred on such a complaint deserves to be rejected outright. It may be mentioned that instead of initiating disciplinary proceedings against the petitioner on the ground of a charge of negligence in performing his duties, he has only been required to be transferred."
21. When the facts of the instant case are seen in the light of the principles of law laid down by the Hon'ble Supreme Court in the case of R.Perachi (supra), Rajendra Singh (supra) and Janardhan Debnath (supra) what clearly comes out is that once transfer order itself indicates that the same is being passed in a routine manner then it would be desirable from the point of view of the administration that even if complaints are there, the employee can be transferred out of unit/place concerned. The employee concerned is not faced with any stigma or any insinuation as the order does not indicate so and consequently, no interference would be required in such a transfer order. To the same effect are the Division Bench judgments of this Court of Dr. Anil Kumar Pradhan Vs. State of U.P. and Vishnu Kant Pal (supra).
22. So far as the judgment in the case of Somesh Tiwari (supra) over which reliance has been placed by learned counsel for the petitioner suffice to state that subsequent to the said judgment of the year 2008, the Hon'ble Supreme Court has considered the matter in the case of R. Perachi (supra) in the year 2011 as well as in the case of Rajendra Singh (supra) in the year 2009 and as such the aforesaid subsequent judgments would prevail. Even otherwise the question before the Hon'ble Supreme Court in the case of Somesh Tiwari (supra) was as to whether the High Court while quashing the order of transfer passed against the employee was correct in directing that he would not be entitled to the salary for the period after the modified order of transfer till the date he joined at the original place of transfer and was not a question pertaining to punitive transfer. Also, the order of transfer in the case of Somesh Tiwari (supra) is not reflected in the judgment of Hon'ble Supreme Court and consequently it cannot be said whether the said order itself reflected any allegation or insinuation or complaint against the employee concerned so as to have rendered it a punitive order of transfer.
23. As regards, the ground taken by the petitioner of having been frequently transferred, suffice to state that transfer is an exigency of service and once the petitioner is holding a transferable post, he can be transferred. Moreover,no malafidies have been alleged in the writ petition against any particular individual and consequently no interference is required in the impugned transfer order on the ground of frequent transfer.
23. Consequently, when the facts of the instant case are tested on the touchstone of the aforesaid principles of law as enunciated by the Hon'ble Supreme Court what this Court finds is that the impugned order of transfer dated 05.12.2017 does not cast any stigma or refers to any allegations against the petitioner rather the same is a simple order of transfer as already recorded in the said order. The mere fact that a copy of the said transfer order has also been endorsed to the Inspector General of Police (establishment) would not and cannot depart from the fact that the impugned transfer order has been issued in a routine manner and it is the sole prerogative of the employer to post an employee at any place.
24. Consequently, having considered the aforesaid facts and submission as well as the law laid down by the Hon'ble Supreme Court, no interference is required with the impugned orders and accordingly, the writ petition is dismissed.
25. At this stage, Sri Pawar, learned counsel for the petitioner submits that he has not been paid salary for the months of June and July, 2018. In this regard, it is expected that the authorities concerned would pass appropriate orders in accordance with rules with respect of the claim of salary of the petitioner for the said two months within a period of one month from today.
Order date:- 31.07.2018 Pachhere/-