Court No. - 16
Case :- WRIT - A No. - 22306 of 2018
Petitioner :- Ashutosh Singh
Respondent :- Union Of India And 3 Others
Counsel for Petitioner :- Saurabh Singh,Shreya Gupta
Counsel for Respondent :- A.S.G.I.,Satish Chaturvedi
Hon'ble Ajay Bhanot,J.
Heard Ms. Shreya Gupta, learned counsel for the petitioner and Sri Sumit Kakkar, learned counsel for respondents 2, 3 and 4.
The petitioner has assailed the transfer order dated 13.06.2018 and the order rejecting his representation dated 01.10.2018 in the instant writ petition.
The petitioner was working as Law Officer in the State Bank of India at the Administrative Office, Varanasi. He was transferred by order dated 13.06.2018 to the Head Office, Patna of State Bank of India. His representation against the transfer order has been rejected by order dated 01.10.2018.
Learned counsel for the petitioner submits that the transfer order has been passed in the teeth of transfer policy of the respondent Bank. The order rejecting the representation does not consider various grounds raised by the petitioner including the fact that there are some vacancies in other branches against which the petitioner could be adjusted.
Sri Sumit Kakkar, learned counsel for the respondents in opposition to the claim of the petitioner submits that transfer is an incident of service and the order passed by the competent authority is a reasoned and speaking order justifying the transfer. He further submits that the authority is not required to go into a detailed judicial exercise to defend transfer orders.
The law relating to transfer is long and well settled. There is good authority to hold that transfer is an incident of service and no employee has any indefeasible right to continue at a particular place of posting. The order of transfer is open to judicial review on very limited grounds of mala-fides or infraction of statutory provisions. The transfer guidelines created by a department do not confer any legally enforceable right to an employee. Further the law has also set its face against the employees who do not join the place of posting and rush to the courts without complying with the orders of transfer. The courts have looked askance at those employees who instead of complying with the order of transfer and then coming to the Courts, choose to approach to the courts first and avoid joining the place of posting. In case such conduct of employees is condoned, it would lead to indiscipline amongst employees and a break down of administration in the institution.
The list of authorities is long and consistent. However, for the purpose of the writ petition, it would be apposite to fortify the legal narrative with some good authority.
The Hon'ble Supreme Court in the case of Shilpi Bose and others Vs. State of Bihar and others, reported at 1991 Supp (2) SCC 659 while considering the challenge to a transfer order held thus:
"4. 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 malafide. 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 over looked these aspects in interfering with the transfer orders."
No mala-fides or infraction of any statutory provision has been demonstrated in this case. It is equally well settled that the transfer guidelines do not confer legally enforceable rights to an employee. The Hon'ble Supreme Court in the case of Union of India and others Vs. S.L.Abbas, reported at (1993) 4 SCC 357 held thus:
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated of by malafides 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 as a legally enforceable right."
Similar view has been taken by this Court in the case of Ram Bahadur Singh Vs. State of U.P. and others, reported at 2017 (8) ADJ 824 by holding thus:
"43. Recently, in Rajendra Singh and others v. State of U.P. and others, MANU/SC/1341/2009 : JT 2009 (10) SC 187, the Court observed that a Government servant holding a transferable post has no vested right to remain posted at one place or other, he is liable to be transferred from one place to other.
".... The Court in Rajendra Singh (supra) also observed that the transfer orders issued by the competent authority do not violate any of the legal rights of the concerned employee. If a transfer order is passed in violation of a executive instruction or order, the Court ordinarily should not interfere with the order and the affected party should approach the higher authority in the department.
. Thus, from the above it is evident that since an employee holding a transferable post has no right to continue at a particular place or position, an order of transfer does not violate any of his legal right whatsoever. That being so, an order of transfer cannot be interfered except of the contingency of mala fide, violation of Rule and competence since it cannot be said to be an order affecting the legal rights of an employee. The limited scope of interference in a judicial review, therefore, has been left to the cases where the order is either violative of statutory provision or is vitiated on account of mala fide or has been issued by a person incompetent. The transgression of administrative guidelines at the best provide an opportunity to the employee concerned to approach the higher authorities for redressal but its consequences would not go to the extent to vitiate the order of transfer. The question as to whether violation of transfer policy or guide lines relating to transfer contained in an executive order or executive instructions or policy for a particular period laid down by the Government would result in vitiating the order of transfer has also been considered repeatedly in past by Apex Court as well as this Court.
..... The enforceability of a guideline laid down for transfer specifically came to be considered by the Apex Court in Shilpi Bose (supra) and it was held that even if transfer order is passed in violation of the executive instructions or orders, the Courts ordinarily should not interfere with the order and instead affected party should approach the higher authorities in the Department.
.... Besides the judgments of the Apex Court, this Court has also considered the same time and again and has reiterated that the order of transfer made even in transgression of administrative guidelines cannot 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. Some of such authorities are as under."
The courts set their face against employees who violate orders of transfer. The Hon'ble Supreme Court in the case of S.C.Saxena Vs. Union of India, reported at 2006(9) SCC 583 held thus:
"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievance. It is his duty to first report for work where he is transferred and make a representation as to what may bis personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied tht it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Manohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorizedly remaining absent from duty."
In the light of the law laid down by the Hon'ble Supreme Court in the case of S.C. Saxena (supra), it is incumbent upon the petitioner to join his new place of posting.
The order of transfer dated 13.06.2018 suffers from no infirmity. Likewise there is no illegality in the order dated 01.10.2018 rejecting the representation of the petitioner. The aforesaid orders are upheld as lawful and valid.
Faced with the aforesaid Ms. Shreya Gupta, learned counsel for the petitioner in her usual fairness does not dispute the settled position of law.
At this stage, learned counsel for the petitioner submits that the petitioner undertakes to join his new place of posting on or before 24.10.2018.
In view of such undertaking the writ petition is dismissed without costs.
Order Date :- 11.10.2018 Pravin