This petition is being filed with the prayer to quash the impugned transfer order dated 06.03.2020 as also the relieving order dated 03.06.2020, contained at Annexure 1 & 2 to the writ petition and also to command the respondents no.2 & 3 to permit the petitioner to work on the post of Foreman at Government Industrial Training Institute, Pandu Nagar, Kanpur or Government Industrial Training Institute Kalyanpur, Kanpur or Government Industrial Training Institute, Rasoolabad Kanpur and release the salary of the petitioner along with all consequential benefits.
Before proceeding with the matter, a query has been made by the court that the petitioner has joined at the transferred place or not, learned counsel for the petitioner sought time to take instructions from his client and the matter has been kept to be taken up in the revised list. In the revision of list, learned counsel for the petitioner has submitted that she has no instructions regarding the joining of the petitioner at the transferred place and she presses the petition on the merits.
On merits, learned counsel for the petitioner has submitted that vide order dated 30.08.2018 passed by the Director, Industrial Training and Employment, the petitioner, while being posted at Pandu Nagar, was promoted from the post of Instructor to Foreman and since then he has been discharging his duties as Foreman. Learned counsel for the petitioner also submitted that vide the impugned order dated 06.03.2020, the petitioner has been transferred to Itawa-I, Siddarthnagar. It has also been submitted that Director, Industrial Training and Employment issued a letter dated 17.03.2020 which provides that if anyone is unable to join at the transferred place, he may submit his application. The petitioner has submitted his application, which is pending consideration and vide order dated 03.06.2020, the petitioner has been relieved from 06.06.2020 to join at the transferred place.
Learned counsel for the petitioner has also submitted that subsequently, looking to the spike of cases of Covid-19 in the State of U.P., the State Government by means of an order dated 09.07.2020 has directed the Director, Industrial Training and Employment not to compel the Foreman to join at their new place of posting if they have not yet been relieved. Learned counsel submits that since the parents of the petitioner, who are very old age are suffering from various age related ailments, needs special care, therefore, transferring the petitioner at present will danger the life of the parents of the petitioner. Two daughters of the petitioner are also studying in Kanpur and his wife is also serving as a Principal of Primary School, which is fifty kilometers away from his residence.
Learned counsel for the petitioner further submitted that the petitioner has been relieved unilaterally and while passing the reliving order, the respondent has failed to consider the ailment of the petitioner and his parents. It has also been submitted that four posts of Foreman are lying vacant and the petitioner can easily be retained at the said place. Learned counsel submits that the impugned orders are perverse, illegal, arbitrary and as such the same are liable to be quashed.
Per contra, learned counsel appearing for the State has vehemently opposed the submissions made by the learned counsel for the petitioner and submitted that the petitioner has been relieved vide order dated 03.06.2020 and till date, he has not joined at the transferred place. The Government order dated 09.07.2020, on which the petitioner relies, was passed after the relieving order of the petitioner, therefore, the said Government Order is not applicable for the petitioner as the same was not in existence when the order dated 03.06.2020 was passed. It is submitted that an employee holding a transferable post cannot claim any vested right to work at a particular place as the transfer order does not affect any of his legal rights and the Court cannot interfere with a transfer/posting. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. There is no illegality in the impugned orders, and the petition is liable to be dismissed.
Heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner failed to give reply to the court regarding the joining of the petitioner at the transferred place, however, learned counsel for the State has stated that the petitioner has not yet joined at the transferred place. The conduct of the petitioner for non-joining at the transferred place inspite of the order passed by the competent authority and that is too when his representation was rejected cannot be appreciated by any court of law.
It is settled law that 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 law in exercise of its discretionary jurisdiction.
In Shilpi Bose vs. State of Bhiar reported at 1991 Supp (2) SCC 659, 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 a 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 a 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. 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..................................."
In Union of India 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 a 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 a 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 a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."
Similar view has been taken in National Hydroelectric Power Corporation vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place 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 malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management.
In view of the above, the legal position can be summersied that transfer is a condition of service. It does not adversely affect the status or emoluments or seniority of the employee. The employee has no vested right to get a posting at a particular place. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. The learned counsel appearing on behalf of the petitioner is failed to make out any case for interference in the impugned order by this Court.
In view of the above, we do not find any force in the petition. It is accordingly dismissed.
Order Date :- 19.1.2021 VNP/-