JUDGMENT Amitava Lala, J.
1. The writ petitioner appears to be an officer of the department of Trade Tax Government of Uttar Pradesh. From paragraph 5 of the writ petition it appears that he has discharged his duty in the Trade Tax Office, Division-1 Jhansi from 4th August,2000 to 22nd June,.2001, at Sahayata Kendra, Chaukhta Allahabad from 28th June,2001 to 18th July, 2002, in the Trade Tax Office Division-1, Allahabad from 18th July, 2002 to 4th August,2002, in the office of Railway Sahayata Kendra Allahabad from 23rd September, 2002 to 6th August,2003 and he was further posted at the Mobile Squad, Karvi from 12th August,2003 to 15th July,2004. On 15th July,2004 itself he was posted as Assistant Commissioner, at the Check Post,Sitapur, Karvi (Chitrakoot). On 15th June, 2005 the petitioner was transferred from Sitapur, Karvi (Banda)(previously Chitrakoot) to Lalitpur as Assistant Commissioner ( Mobile Squad) Trade Tax Lalitpur. The last transfer is a part and parcel of general order of transfer dated 15th June,2005 itself. Pursuant to the said transfer order the petitioner took over charge at the transferred place on 25th June,.2005. According to him, he took a rented house there and shifted his family and house hold belongings to Lalitpur.
2. Prior to his transfer he opted five places following the norms of the transfer on 29th April,2005. Options are as follows:
a) Kaushambi
b) Bhadohi
c) Pratapgarh
d) Allahabad
e) Kanpur
3. According to the petitioner, after about a month of effecting earlier transfer at Lalitpur, he was again ordered to transfer at Varanasi ( a place nearer to Bhadohi) under order impugned dated 28th July, 2005 purpotedly following the options. Such transfer order was communicated to the petitioner vide letter dated 8th August,2005. According to the petitioner, such transfer is wholly arbitrary and colourable exercise of power. Challenging the second order of transfer dated 28th July, 2005 this writ petition has been moved.
4. Learned Standing Counsel has filed a counter affidavit and contended that as per General Departmental Transfer Policy introduced by the Commissioner, Trade Tax, U.P. Lucknow, Uttar Pradesh, on 11th April 2005 the earlier transfer order was passed transferring the petitioner for one year only. Moreover transfer of the petitioner was made from Sahayata Kendra Sitapur, Karvi, District Banda to Mobile Unit,Lalitpur keeping in view of the minimum distance so that the petitioner may not bear heavy expenses in shifting as well as the Government may have to incur lesser amount towards travelling allowance. It has further stated that the petitioner opted transfer during his posting in the year 2003-04 in the Mobile Unit, Karvi on the ground that traders having grudge against him because of the fact that he was entrusted with the job of recovering security from the traders. The petitioner made a request opting his transfer into the aforesaid places and since it was not possible to transfer the petitioner in those places, he was transferred at Varanasi, a district nearer to opted district Bhadohi. Distance between Varanasi and Bhadohi is about 40 KMs. If the petitioner has any grievance, he can make a representation and if such transfer is found against the transfer policy the same will be decided in accordance with law.
5. According to us, transfer is a part of service which should not be interfered by the Court normally unless and until element of illegality is available or such order is passed without any jurisdiction. It is not a matter of right. Factually transfer order has already effected about one month before the second order of transfer. Therefore, the petitioner become aggrieved. Element of communication gap can not be ruled out but the respondents wanted to consider the cause.
6. The petitioner relied upon two Division Bench judgments of this High Court reported in 1997 (2) ESC 1102 (All.) (Dr. A.K. Singh v. State of U.P. and Ors.) and in 1998 (1) ESC 91 (All) (K.P. Singh v. The Secretary, Cooperative Department, U.P. Lucknow) and Ors.). The relevant portion of the first cited judgment is as follows:
Para 6. Having noticed this factual background, the petition's averments may be examined. Dr. A.K.Singh, the petitioner, was posted as Chief Medical Officer, Basti, on 15th August, 1995 and the transfer order dated 16/17 July, was thrust upon him within about 10 or 11 months of his posting in Basti. It goes without saying that Government Officers have their families also which settle down normally at the place of their posting and if a normal span is not allowed to them to continue at a place of posting, their life becomes hazardous and they may be compelled to lite as nomads, which no government or reasonable man can, legitimately, permit unless exceptional circumstances make such an order an absolute necessary. (Emphasis supplied)
7. The relevant portion of the second cited judgment is as follows:
Para 4. Within a period of about one month the petitioner has been transferred four times to four different places. Frequent transfers of a Government servant from one place to another within a short span of period amounts to abuse of power by the Government excepting in exceptional cases where the public interest warrants such transfers. No such case has been made out by the respondents. ' The Government has not even bothered to file counter-affidavit disclosing the reasons for passing frequent transfer orders. Neither the Government policy nor the law permit exercise of power of transfer in such a manner.(Emphasis supplied)
8. Although the aforesaid judgments are placed on slightly different factual footings but principally frequent successive transfer was discouraged by the different Division Benches of this High Court.
9. On the other hand the frequent intervention of the High Court in the case of transfer was not accepted by the Supreme Court.
10. In (Mrs Shilpi Bose and Ors. v. State of Bihar and Ors.) the Supreme Court observed:
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 other. Transfer orders issued by the competent authority do not violate any of his legal instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department.(Emphasis Supplied)
11. In (Union of India and Ors. v. S.L. Abbas) the Supreme Court observed:
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. ( Emphasis Supplied)
12. Similar view has been taken earlier in the case of Abani Kanta Ray v. State of Orissa and Ors. reported in 1995 Supp (4) SCC 169 which is as follows:
It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fide or infraction of any professed norm or principle governing the transfer. (Emphasis Supplied)
13. Similar view has also been taken in (National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr.) which is as follows:
It is by now well settled and often reiterated by this Court 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 other is not only an incident, but a condition of service, necessary to in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide 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 a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned. (Emphasis Supplied)
14. In ( State of U.P. and Ors. v. Ashok Kumar Saxena and Anr. etc.) a three judges of the Supreme Court held:
The withdrawal, alteration or modification of the Govt. order transferring an employee after the validity of the order of transfer has been upheld by Court by dismissing the writ petition of the transferred employee, does not amount to flouting of Court's order. (Emphasis Supplied)
15. A Full Bench decision of this Court in the case of Director, Rajya Krishi Utpadan Mandi Parishad, Lucknow and Ors. v. Natthi Lal (1995)2 UPLBEC 1128 held:
... an order of transfer, even after it has been implemented, can be cancelled on other grounds too, including administrative considerations and exigencies of service. An order canceling an order of transfer, after it has been implemented, would of course, be open to challenge for reasons akin to those on which an order of transfer may be questioned. (Emphasis Supplied )
16. Therefore, upon going through the relevant judgments we are of the view at "best the petitioner can get an order of, consideration by the authority particularly when the respondents wanted to do so.
17. Therefore, to strike a balance we dispose of the writ petition with a direction upon the authority to consider the representation of the writ petition within a month from the date of communication of the order by affording adequate opportunity of hearing and by passing a reasoned order thereon. For the purpose of effective adjudication a copy of the writ petition along with annexures can also be treated part and parcel of the representation. However, till one week after the communication of the order to be passed by the authority concerned no effect of immediate subsequent transfer order will be given by the authority.
Thus, the writ petition stands disposed of.
No order is passed as to costs.