# Constable 289 CP Tahsildar Singh and others v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 883
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-15
- **Case number:** Civil Misc. Writ Petition No. 51998 of 2009
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/constable-289-cp-tahsildar-singh-and-others-v-state-of-u-p-and-others-41554
- **Pages:** 23

## Headnote

Constitution
of
India,
Article
226Transfer-Petitioner
one
working
as
Police Constable for the last 10 yearstransfer challenged on ground colorable
exercise of power-being prejudice with
concern
particular
cost-held-wholly
misconceived-without giving complete
particulars-collecting Transfer Order of
particular cost can not be basis for
interferes-No malafide allegation madepersonal hardship can be considered by
higher authorities and not by writ courtpetition dismissed.

Held: Para 56

Besides, the petitioners have also not
placed relevant material on record to
show as to what is strength of the police
force in the State of U.P., what is the
strength of the members of police force
belong to the caste to which the
petitioners belong etc. In the absence of
adequate relevant on vague pleading, in
my view, such a serious issue ought not
to have been raised and it would not
appropriate for this Court to adjudicate
the same.
884 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Case law discussed:
(2006) 8 SCC-1, JT 1993 (4) SC, (1993) 3 SCC
696, (2001) 2 UPLBEC 2559, 1994 Supp (2)
SCC 666, AIR 1974 SC 555, 1977 (4) SCC 193,
1986 (1) SC 249, AIR 1989 SC 1433, AIR 1991
SC 532, JT 1992 (6) SC 732, 1993 (1) SCC 148
and Union of India Vs. N.P. Thomas 1993
Suppl. (1) SCC 704, JT 1994 (5) SC 298, 1995
suppl. (4) SCC 169, 2001 (8) SCC 574, 2003
(4) SCC 104, 2004 (11) SCC 402, JT 2004 (2)
SC 371, 2005 (7) SCC 227, Special Appeal No.
1296 of 2005, 2007 (8) SCC 793, JT 2007 (12)
SC 467, 2007 (9) SCC 539, 2009 (11) SCALE
416, JT 2009 (10) SC 187, AIR 1993 SC 2444,
1992 (1) SCC 306, 2005 (2) ESC 1224, W.P.
No. 52249 of 2000 decided on 5.9.2009,
(Special Appeal No. 769 of 2005) decided on
29.11.2005, Writ Petition No. 243 (SB) of 2007
decided on 31.7.2007, (1993) 4 SCC-25;
(1985) 1 All. ER 40, (1998 (16) LCD- 17), 2009
(4) ALJ 372, AIR 1997 SC 597, 2008 (2) ADJ
484 (SC), 2008 (5) ESC 3052=2008 (9) ADJ
267, AIR 2002 SC 2322, 2005 (2) AWC 1191
(FB).

## Text

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3 All] Constable 289 CP Tahsildar Singh and others V. State of U.P. and others
883
wholly untenable grounds or arbitrary or
perverse. But it is a different matter when
the first court refuses to condone the
delay. In such cases, the superior court
would be free to consider the cause shown
for the delay afresh and it is open to such
superior court to come to its own finding
even untrammelled by the conclusion of
the lower court".

7. This view has further been
affirmed by the Apex Court in the case of
Gangadeep Pratisthan Private Ltd. and
others Vs. Messrs. Mechano and others
reported in A.I.R. 2005 Supreme Court
Page 1958

8. In view of the decision of the
Apex Court it is abundantly clear that
while considering the delay condonation
application the court has to see the merit
of the case also as the law of limitation is
not meant to take away the right of
Appeal. The courts are known for
imparting justice and not to scuttle the
process of justice on technicalities. The
length of delay is also not very much
material if there is a substance on merit.
Further once the discretion has been
exercised in positive manner then it
should not be interfered with unless it is
perverse and based on no material.

9. Here in the present case, the
Revisional court has condoned the delay
in the interest of justice holding it that
even
if
there
was
no
satisfactory
explanation to the condonation of delay
even then the Justice demand to condone
the delay.

I do not wish to interfere with the
impugned order.

10. The writ petition lacks merit and
it is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED ALLAHABAD 15.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 51998 of 2009

Constable 289 CP Tahsildar Singh and
others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri C.B. Yadav
Sri Nisheeth Yadav

Counsel for the Respondents:

Constitution
of
India,
Article
226Transfer-Petitioner
one
working
as
Police Constable for the last 10 yearstransfer challenged on ground colorable
exercise of power-being prejudice with
concern
particular
cost-held-wholly
misconceived-without giving complete
particulars-collecting Transfer Order of
particular cost can not be basis for
interferes-No malafide allegation madepersonal hardship can be considered by
higher authorities and not by writ courtpetition dismissed.

Held: Para 56

Besides, the petitioners have also not
placed relevant material on record to
show as to what is strength of the police
force in the State of U.P., what is the
strength of the members of police force
belong to the caste to which the
petitioners belong etc. In the absence of
adequate relevant on vague pleading, in
my view, such a serious issue ought not
to have been raised and it would not
appropriate for this Court to adjudicate
the same.
884 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Case law discussed:
(2006) 8 SCC-1, JT 1993 (4) SC, (1993) 3 SCC
696, (2001) 2 UPLBEC 2559, 1994 Supp (2)
SCC 666, AIR 1974 SC 555, 1977 (4) SCC 193,
1986 (1) SC 249, AIR 1989 SC 1433, AIR 1991
SC 532, JT 1992 (6) SC 732, 1993 (1) SCC 148
and Union of India Vs. N.P. Thomas 1993
Suppl. (1) SCC 704, JT 1994 (5) SC 298, 1995
suppl. (4) SCC 169, 2001 (8) SCC 574, 2003
(4) SCC 104, 2004 (11) SCC 402, JT 2004 (2)
SC 371, 2005 (7) SCC 227, Special Appeal No.
1296 of 2005, 2007 (8) SCC 793, JT 2007 (12)
SC 467, 2007 (9) SCC 539, 2009 (11) SCALE
416, JT 2009 (10) SC 187, AIR 1993 SC 2444,
1992 (1) SCC 306, 2005 (2) ESC 1224, W.P.
No. 52249 of 2000 decided on 5.9.2009,
(Special Appeal No. 769 of 2005) decided on
29.11.2005, Writ Petition No. 243 (SB) of 2007
decided on 31.7.2007, (1993) 4 SCC-25;
(1985) 1 All. ER 40, (1998 (16) LCD- 17), 2009
(4) ALJ 372, AIR 1997 SC 597, 2008 (2) ADJ
484 (SC), 2008 (5) ESC 3052=2008 (9) ADJ
267, AIR 2002 SC 2322, 2005 (2) AWC 1191
(FB).

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Fifteen petitioners working as
Constable posted in District Etah have
been transferred by means of the
impugned
orders
dated
18.9.2009,
20.9.2009 and 22.9.2009, copy whereof
has been filed collectively as Annexure-3
to the writ petition. The aforesaid orders
of transfer have been passed in public
interest by the Superintendent of Police
(Establishment), acting on behalf of
Deputy Inspector General of Police
(Establishment),
U.P.
Police
Head
Quarters, Allahabad. It is also evident
from the impugned orders that the same
have been issued after concurrence of the
Police Establishment Board which has
been obtained in view of the Apex Court
decision in Prakash Singh & others Vs.
Union of India & others (2006) 8 SCC
1. It is clearly averred in para 5 of the writ
petition that the petitioners are posted in
District Etah for the last more than ten
years.

2. Sri Nisheeth Yadav, Advocate has
assailed the impugned orders of transfer
contending:

(A) The transfer of all the members of
police officers of subordinate rank is
governed by the Government Orders
dated 7.2.1980, 27.6.1984 and 25.3.1995,
but ignoring the same the impugned
orders have been passed.
(B) All the petitioners belong to a
particular community who have been
shifted from Etah to Baghpat, Meerut and
Muzaffarnagar. it is a clear case of
victimization of the petitioners on caste
lines and the impugned order is not a
simple order of transfer, but malicious in
law.
(C) By
Government
Order
dated
6.6.2009, transfer policy for the session
2009-10 has been laid down and it is
provided therein that no transfer in the
session shall be made but ignoring the
same, the impugned orders of transfer
have been passed in violation of the said
Government policy and, therefore, are
liable to be set aside. He contended that
the transfer policy has been laid down by
the respondents themselves and they are
bound to observe the same as held by the
Apex Court in JT 1993 (4) SC Home
Secretary, U.T. of Chandigarh &
another Vs. Darshjit Singh Grewal &
others, Virendra S. Hooda & others Vs.
State of Haryana (1993) 3 SCC 696 and
Union of India Vs Mamta Anurag
Sharma & another (2001) 2 UPLBEC
2559.
(D) The petitioners are all constables
belong to lowest rung of the police force
and, hence, being petty members of police
force would be in great difficulty in
3 All] Constable 289 CP Tahsildar Singh and others V. State of U.P. and others
885
maintaining their family at far flung
places if their transfer is allowed in such a
usual, casual and routine manner.
(E) The transfer orders have been passed
in mid session causing great difficulty to
the family since the children of the
petitioners are studying and, therefore, it
would not be prudent to disturb the entire
family of the petitioners in mid session.
The respondents without applying mind to
all these difficulties have illegally passed
the impugned orders. In view of the law
laid down by the Apex Court in Director
of School Education, Madras and
others Vs. O. Karuppa Thevan and
another 1994 Supp (2) SCC 666, till the
end of the session, the petitioners should
be allowed to continue at the present
place of posting.

3. Though, learned counsel for the
petitioners has canvassed all the above
points at length arguing the matter with
great labour, diligence and ability, but
having given my anxious and deepest
thought to the matter, I find myself unable
to accept any of the above submission. In
my view, this writ petition does not call
for any interference.

4. It is no doubt true that an
employee and in particular a Government
servant is entitled to be treated fairly,
impartially,
free
from
any
external
influence and strictly in accordance with
his service conditions, and rules and
regulations framed in this regard. Like
any other person, various fundamental
rights are applicable to the Government
servants also and in particular Article 14,
16 and 21 of the Constitution. If there is a
case demonstrating that a Government
servant has been dealt with unfairly or has
been discriminated on one or the other
ground, which are impermissible under
Article 16 (2) of the Constitution like,
caste, religion, race, sex, descent place of
birth etc. this Court would not hesitate to
interfere and restrain the State from doing
so immediately. However, all these
question pre conceive one fact that the
Government employee has some kind of
right which is being interfered either by
singling him out or on account of mala
fide etc. There are several aspects in
service and in particular Government
service. Some arise out of the rights of the
Government servant and in some he has
no right but exist there merely because
one is a Government servant holding a
position and status and by virtue thereof
such incident of service has fallen upon
him. Further, there are a number of
incidents of service, some of which confer
a legal right upon the Government servant
and some do not result in a legal right. For
example once a person is appointed as
Government servant, his seniority by
virtue of his date of entering the service is
an incident of service. It confers a legal
right upon him to claim that his seniority
should be determined in accordance with
the rules or the executive instruction in
the absence of the statutory rules laying
down
the
criteria
for
determining
seniority. Similarly, another incident of
service is that he is entitled to claim salary
or wages as prescribed under statutory
rules or executive orders. This also confer
upon him a legally enforceable right
whether flows from statutory rules or
from executive instructions. Then if there
is a hierarchy of posts and the rules allow
a Government servant working on a
particular post to be considered for
promotion to a higher post, in certain
circumstances,
in
such
a
case
consideration for promotion is also an
incident of service and here also it confers
a legally enforceable right whether it
886 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
emerges
from
rules
or
executive
instructions. Simultaneously there are
certain aspects which though are incidents
of service but do not result in conferring
any legal right upon the Government
servant concerned, Enforceability in later
cases varies from case to case. In some
matters to a limited extent they may be
enforceable and in some matters they may
not be enforced at all. For example if by
an executive order it is provided that a
Government servant holding a particular
post will have to show his performance
upto a particular level, compliance thereof
on the part of the Government servant is
also an incident of service but its
enforceability varies from case to case.
For
example
the
executive
higher
authorities may take action against such
Government servants who fail to perform
upto the desired level and such failure
may result in adverse consequences in the
matter
of
promotion,
crossing
of
efficiency bar etc. Similarly such matter
may also be considered by an executive
higher authority at the time of considering
whether
the
Government
servant
concerned has rendered a dead wood
necessitating compulsory retirement or
not but Government servant cannot
challenge the said standard in a Court of
law on the ground that those standards
according to capacity of the Government
servant are excessive etc. and cannot be
followed
uniformly
by
all
the
Government servant since the capacity of
every person varies depending on various
aspects of the matter. Similarly another
Government servant or the people at large
may not claim something in his favour on
the ground that a particular Government
servant has not been able to discharge as
per desired the level. For example if in a
territorial jurisdiction of a particular
Police Station, number of offenses in a
particular period are more than another
Police Station, the citizens residing in the
former Police Station cannot come to a
Court of law and say that in view of the
executive instructions issued by the State
Government, the Officer In-charge of the
Police Station having failed to achieve the
target or show his performance according
to desired level and, therefore, he should
be proceeded against in one or the other
manner or should be removed from his
office or from that Police Station.
Similarly, if a member of a Subordinate
Judiciary, who is supposed to decide
certain number of cases in a month, fails
to achieve the target, no litigant or
advocate can come to a Court of law to
ask that such judicial officer is not able to
hold the office and should be removed or
should be transferred to some other place.
The executive orders, in this regard
though require performance upto a
particular standard for the public benefit
and interest but non achievement thereof
is not enforceable. In the administrative
side, the executive authority higher in
office may take into consideration the
above executive instructions and the
performance of the Government servant
concerned
while
assessing
his
performance, but otherwise the executive
instructions of the nature stated above are
not enforceable since they do not result in
creating a legally enforceable right. The
executive instructions providing certain
monetary benefit to Government servants
or their family members are enforceable.
However,
the
executive
instructions
constituting guidelines for the authority
competent to transfer a Government
servant from one place to another do not
fall in the same category i.e. enforceable
as they do not confer any legal right upon
a Government servant. This is what the
law has been in the matter of transfer
3 All] Constable 289 CP Tahsildar Singh and others V. State of U.P. and others
887
throughout in the light of the authorities
of the Apex Court as well as this Court. I
will not burden this judgment with
number of authorities on this subject but
would like to come straightway on the
main issue but before doing so, I propose
to refer certain authorities to show how
the matter of transfer of a Government
servant has been treated by the Courts in
India. After having in-depth study on the
subject I find it beyond doubt that
throughout it has been held that transfer is
an incident of service, which does not
affect any legal right of a Government
servant holding a transferable post.

5. Initially, in E. P. Royappa Vs.
State of Tamilnadu AIR 1974 SC 555
the Court said that it is an accepted
principle that in a public service transfer
is an incident of service. It is also an
implied
condition
of
service
and
appointing authority has a wide discretion
in this matter. The Government is the best
judge to decide how to distribute and
utilize the services of its employees.

6. Thereafter, dealing with the
transfer of the Hon'ble Judges of High
Court,
in
Union
of
India
Vs.
Sankalchand Himatlal Sheth 1977 (4)
SCC 193 the Apex Court observed that
transfer is an incident of service. It was
further held that once a person has entered
service he is bound by the conditions
imposed either by the Service Rules or the
Constitutional provisions. No person after
having joined the service can be heard to
say that he shall not be transferred from
one place to another in the same service
without his consent. Having accepted the
service, the functionary has no choice left
in the administrative action that can be
taken by empowered authorities namely,
transfer from one place to another,
assignment of work and likewise.

7. In B. Varadha Rao Vs. Vs. State
of Karnataka JT 1986 (1) SC 249 the
Court said that it is now well settled that a
Government servant is liable to be
transferred to a similar post in the same
cadre. It is a normal feature and incident
of Government service. No Government
servant can claim to remain at a particular
place or in a particular post unless, of
course, his appointment itself is to a
specified, non-transferable post.

8. In B. Varadha Rao (supra) an
attempt was made to argue that since in E.
P. Royappa (supra) it was held that the
transfer is an implied condition of service,
therefore, the transfer affecting the
petitioner must be treated to have altered
the service conditions to his disadvantage
and such an order would be deemed to be
an adverse order appealable under the
provisions
applicable
in
the
rules
pertaining to disciplinary action, but was
rejected by the Court observing that
transfer
is
always
understood
and
construed as an incident of service. It does
not result in alteration of any of the
conditions of service to the disadvantage
of the employee concerned. In the
reference of E. P. Royappa (supra) with
respect
to
observation
"an
implied
condition of service" the Apex Court in B.
Varadha Rao (supra) held as "just an
observation in passing" and it was held
that it cannot be relied upon in support of
the contention that an order of transfer
ipso facto varies to the disadvantage of a
Government servant, any of his conditions
of service making the impugned order
appealable.
888 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
9. In Gujarat Electricity Board Vs.
Atmaram Sungomal Poshani AIR 1989
SC 1433, the Apex Court further said that
transfer from one place to another is
necessary in public interest and efficiency
in the public administration. Whenever, a
public servant is transferred he must
comply with the order but if there be any
genuine difficulty in proceeding on
transfer it is open to him to make
representation to competent authority for
stay, modification or cancellation of the
transfer order. If the order of transfer is
not stayed, modified or cancelled the
concerned public servant must carry out
the order of transfer. In the absence of any
stay of the transfer order a public servant
has no justification to avoid or evade the
transfer order merely on the ground of
having made a representation, or on the
ground of his difficulty in moving from
one place to the other. If he fails to
proceed on transfer in compliance to the
transfer order, he would expose himself to
disciplinary action under the relevant
Rules.

10. In Shilpi Bose & Vs. State of
Bihar AIR 1991 SC 532, it was held "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."

11. In the same judgment the
Hon'ble Apex Court also held that a
transfer order, even if, is issued to
accommodate a public servant to avoid
hardship, the same can not and should not
be interfered by the Court merely because
transfer orders were passed on the request
of the concerned employees. No person
has a vested right to remain posted to a
particular place, and unless the transfer
order is passed in violation of any
mandatory rule, the High Court had no
jurisdiction to interfere with the transfer
orders. Relevant extract is quoted as
under:

"If the competent authority issued
transfer
orders
with
a
view
to
accommodate a public servant to avoid
hardship, the same cannot and should not
be interfered by the court merely because
the transfer order were passed on the
request of the employees concerned. The
respondents have continued to be posted
at their respective places for the last
several years, they have no vested right to
remain posted at one place. Since they
hold transferable posts they are liable to
be transferred from one place to the
other. The transfer orders had been
issued by the competent authority, which
did not violate any mandatory rule,
therefore, the High Court had no
jurisdiction to interfere with the transfer
orders. "
(Para-3)

12. In Rajendra Roy Vs. Union of
India & another JT 1992 (6) SC 732, it
was said "in a transferable post an order
of transfer is a normal consequence and
personal difficulties are matters for
consideration of the department."

13. In Rajendra Rai Vs. Union of
India 1993 (1) SCC 148 and Union of
India Vs. N.P. Thomas 1993 Suppl. (1)
SCC 704 it was said that the Court should
3 All] Constable 289 CP Tahsildar Singh and others V. State of U.P. and others
889
not interfere with the transfer orders
unless there is a violation of some
statutory rule or where the transfer order
was mala fide.

14. In N.K. Singh Vs. Union of
India JT 1994 (5) SC 298, the Court said,
"Unless the decision is vitiated by mala
fides or infraction of any professed norm
of principle governing the transfer, which
alone can be scrutinised judicially, there
are no judicially manageable standards for
scrutinising all transfers....."

15. In Abani Kanta Ray Vs. State
of Orissa & others 1995 suppl. (4) SCC
169 the Court observed "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 fides or
infraction of any professed norm or
principle governing the transfer."

16. In National Hydroelectric
Power Corporation Ltd. Vs. Shri
Bhagwan 2001 (8) SCC 574, the Apex
Court held that 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.

17. In Public Service Tribunal Bar
Association Vs. State of U.P. & another
2003 (4) SCC 104 the Court said,
"Transfer is an incident of service and is
made
in
administrative
exigencies.
Normally it is not to be interfered with by
the Courts. This Court consistently has
been taken a view that orders of transfer
should not be interfered with except in
rare cases where the transfer has been
made in a vindictive manner."

18. In State of U. P. Vs.
Gobardhan Lal 2004 (11) SCC 402, the
Court said "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 service."

19. In Union of India VS.
Janardhan Debanath JT 2004 (2) SC
371,
the
Apex
Court
said,
"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...."

20. Thus, the scope of judicial
review in the matter of transfer is
restricted inasmuch if an order of transfer
is challenged on the ground of violation
of
statutory
provision
or
lack
of
competence of the person who has passed
the order or mala fide, only then the Court
should interfere otherwise it is not liable
to be interfered in judicial review. The
890 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
reason for such a view taken by the
Courts repeatedly is that no Government
servant has a right to be posted in a
particular post or position once appointed
in service. He cannot claim that he should
continue at same place as long as he
desire.

21. Noticing distinction in transfer
of civilian employee including those
working in public sector undertakings and
those of disciplined forces, in Major
General J.K. Bansal Vs. Union of India
2005 (7) SCC 227, the Apex Court said
"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 forces
should be posted. The Courts should be
extremely slow in interfering with an
order of transfer of such category of
persons and unless an exceptionally
strong case is made out, no interference
should be made."

22.

Considering
J.K.
Bansal
(supra), a Division Bench of this Court in
Special Appeal No. 1296 of 2005
(Gulzar Singh Vs. State of U.P. &
others) decided on 7.11.2005 in respect to
member of police force observed as under
:

"The present case, if not strictly
identical to the case of Major General
J.K.Bansal Versus Union of India and
others (Supra), is quite nearer to the
same. The petitioner-appellant in the
present case is a member of a discipline
force,
namely,
U.P.
Police.
His
requirement and urgency as well as the
exigency regarding posting would be
totally
different
than
other
civil
employees. There may be numerous
factors on account whereof the competent
authority has to post a particular member
of Police Force at a particular place and
unless and until a case of mala fide is
made out or there is violation of statutory
provision, there would be no occasion for
this Court to interfere in the case of
transfer of a member of a Police Force.
The scope of judicial interference would
definitely be limited and narrow in case of
a disciplined Force comparing to scope
available in the case of other civil
servants. It is not the case of the
petitioner-appellant that the impugned
order of transfer is in contravention of
any statutory mandatory provision."

23. In Prabir Banerjee Vs. Union
of India 2007 (8) SCC 793, transfer of a
member of central service, namely,
Central Excise, from one zone to another
zone was challenged on the ground that
inter zonal transfer was prohibited in the
department
of
Central
Excise
and
Customs pursuant to the circular dated
19.2.2004 issued by the department of
Revenue,
Ministry
of
Finance,
Government of India. The Court held that
it is no doubt true that transfer is an
incident of service in all India service
under the Central Service Rules, but in the
absence of any direct rule relating to
transfer between the two collectorates, the
field
may
be
covered
by
the
administrative instructions.

24. In Mohd. Masood Ahmad Vs.
State of U.P. & others JT 2007 (12) SC
467, the Apex Court said "Transfer is an
exigency
of
service
and
is
an
administrative decision. Interference by
the Courts with transfer order should only
be in very rare cases." It further held
"This Court has time and again expressed
its disapproval of the Courts below
3 All] Constable 289 CP Tahsildar Singh and others V. State of U.P. and others
891
interfering with the order of transfer of
public servant from one place to another.
It is entirely for the employer to decide
when, where and at what point of time a
public servant is transferred from his
present posting. Ordinarily the Courts
have no jurisdiction to interfere with the
order of transfer."

25. In Prasar Bharti Vs. Amarjeet
Singh 2007 (9) SCC 539, the Court said
that
an
order
of
transfer
is
an
administrative order. There cannot be any
doubt that the transfer being an incident
of service should not be interfered except
some cases where, inter alia, mala fide on
the part of the authorities is proved.

26. In Union of India & another
Vs. Murlidhar Menon & others 2009
(11) SCALE 416 the Court observed that
even if the conditions of service are not
governed by the statutory rules, yet the
transfer being an incident of service, an
employee can be transferred which may
be
governed
by
the
administrative
instruction since an employee has no right
to be posted at a particular place.

27. Recently, in Rajendra Singh &
others Vs. State of U.P. & others 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.

28. 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.

29. 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 insturcitoins 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.

30. 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 arty should
892 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
approach the higher authorities in the
Department.

31. Again in Union of India &
others Vs. S.L. Abbas AIR 1993 SC
2444 a similar argument was considered
and in para 7 of the judgment the Court
said, "The said guidelines, however, does
not
confer
upon
the
Government
employee a legally enforceable right."

32. Referring its earlier judgment in
Bank of India Vs. Jagjit Singh Mehta
1992 (1) SCC 306 the Apex Court in S.L.
Abbas (supra) observed as under :

"The said observations in fact tend to
negative the respondents contentions
instead of supporting them. The judgment
also does not support the Respondents'
contention that if such an order is
questioned in a Court or the Tribunal, the
authority is obliged to justify the transfer
by adducing the reasons therefore. It does
not also say that the Court or Tribunal
can quash the order of transfer, if any of
the administrative instructions/guidelines
are not followed, much less can it be
characterized as mala fide for that
reason. To reiterate, the order of transfer
can be questioned in a Court or Tribunal
only where it is passed mala fide or where
it is made in violation of the statutory
provisions."

33. Same thing has been reiterated
by the Apex Court in Gobardhan Lal
(supra) in the following words :

"Even administrative guidelines for
regulating
transfers
or
containing
transfer policies at best may afford an
opportunity to the officer 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
as
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."

34. 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.

35. In Rajendra Prasad Vs. Union
of India 2005 (2) ESC 1224, a Division
Bench observed, "Transfer policy does
not create legal right justiciable in the
Court of law."

36. In Division Bench of this Court
in Civil Misc. Writ Petition No. 52249 of
2000 (Dr. Krishna Chandra Dubey Vs.
Union of India & others) decided on
5.9.2009 said, "It is clear that transfer
policy does not create any legal right in
favour of the employee. It is well settled
law that a writ petition under article 226
of the Constitution is maintainable for
enforcing the statutory or legal right or
when there is a complaint by an employee
that there is a breath of statutory duty on
the part of the employer."

37. In Gulab Singh (supra) and
Ram Niwas Pandey & others Vs. Union
3 All] Constable 289 CP Tahsildar Singh and others V. State of U.P. and others
893
of India & others (Special Appeal No.
769 of 2005) decided on 29.11.2005 also
this Court held that transgression of
transfer policy or executive instructions
does not give a legally enforceable right
to challenge an order of transfer.

38. In Civil Misc. Writ Petition No.
243 (SB) of 2007 Uma Shankar Rai Vs.
State of U.P. & others decided on
31.7.2007 this Court observed as under:

"Dr L.P. Misra, learned counsel for
the petitioner seriously contended that
though the transfer of Government
servant is made in exigencies of service,
yet where transfer policy has been
framed, the same is expected to be
adhered to and cannot be defied in a
discriminatory and selective manner. Any
action of the authorities, even in respect
of the matter of transfer, if is inconsistent
to such policy would vitiate the order of
transfer since it would render the same
arbitrary and illegal. Referring to para 2
and 3 of the transfer policy dated
11.5.2006,
he
contended
that
the
respondent no. 4 having completed his
tenure of six years in the District and ten
years in the Commissionery even at
Mirzapur yet he has again been sought to
be posted at Mirzapur to accommodate
him
and
the
petitioner
has
been
transferred to Varanasi, therefore, the
impugned order is patently illegal. In
support of the submission that order of
transfer, if has been issued in violation of
transfer policy, the same can be assailed
since the transfer policy was laid down to
adhere to and not to violate, reliance has
been placed on the apex Court's decision
in Home Secretary, U.T. of Chandigarh
and another Vs. Darshjit Singh Grewal
& others (1993) 4 SCC-25; N.K. Singh
vs. Union of India and others (1994) 6
SCC- 98; R. vs. Secretary of State (1985)
1 All. ER 40; and a Division Bench
decision of this Court in Smt. Gyatri Devi
vs. State of U.P. and others (1998 (16)
LCD- 17). In other words the learned
counsel for the petitioner contends that
even through the order of transfer may
not be challenged on the ground of mere
violation of transfer policy, yet such order
can be interfered with if the authorities
who are supposed to adhere with the
guidelines, have failed to do so.
In our view the submission is
mutually
destructive
and
self
contradictory. What the petitioner in fact
has sought to argue is that the Executive
once has laid down certain standards for
guidance in its functioning, it must adhere
to and any deviation thereof would vitiate
the consequential action, which may be
challenged in writ jurisdiction. The
argument though attracting but in the
matter of transfer, however, in our view,
the same has no application. Transfer of
Govt. servants in the State of U.P. is
governed by the provisions contained in
Fundamental Rule- 15, which reads as
under :-
..................................
It is not disputed that the post held by
the petitioner is transferable and he is
liable to be transferred from one place to
another. The employer once possess right
to transfer an employee from one place to
another, in our view, there is no legal or
otherwise corresponding obligation upon
him to inform his employee as to why and
in what circumstance an employee is
being transferred from one place to
another. Shifting and transferring of the
employee from one place to another
involves more than thousand reasons and
it is difficult to identify all of them in
black and white. The commonest reason
may be a periodical shifting of person
894 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
from one place to another, which does not
require any special purpose; the other
reasons include necessity of a particular
officer at a particular place; avoidance of
disturbance or inconvenience in working
of the officer on account of a person at a
particular place; unconfirmed complaints
and to avoid any multiplication thereof;
transfer may be resorted to and so on.
These are all illustrations. The question
as to whether in any of the circumstances
when a person is transferred from one
place to another without casting any
stigma on him, does it infringe, in any
manner, any right of such employee which
may cause corresponding obligation or
duty upon the employer to do something
in such a reasonable manner which may
spell out either from its action or from the
record and when challenged in a Court of
law, he is supposed to explain the same,
In our view, the answer is emphatic no."

39. It further held :

"In view of the aforesaid well settled
principles
governing
the
matter
of
transfer, the consistent opinion of the
Courts in the matter of judicial review of
the transfer orders has been that the
order of transfer is open for judicial
review on very limited grounds; namely if
it is in violation of any statutory
provisions or vitiated by mala-fides or
passed by an authority holding no
jurisdiction. Since the power of transfer in
the
hierarchical
system
of
the
Government can be exercised at different
level, sometimes for the guidance of the
authorities for exercise of power of
transfer, certain executive instructions
containing guidelines are issued by the
Government so that they may be taken
into account while exercising power of
transfer. At times orders of transfer have
been assailed before the Court on the
ground that they have been issued in
breach
of
the
conditions
of
such
guidelines
or
in
transgression
of
administrative guidelines. Looking to the
very nature of the power of transfer, the
Courts have not allowed interference in
the order of transfer on the ground of
violation of administrative guidelines and
still judicial review on such ground is
impermissible unless it falls within the
realm of malice in law. The reason behind
appears to be that the order of transfer
does not violate any right of the employee
and the employer has no corresponding
obligation to explain his employee as to
why he is being transferred from one
place to another."

40. The Division Bench judgment in
Uma Shanker Rai (supra) has been
followed by another Division bench in
Jitendra Singh Vs. State of U.P. &
another 2009 (4) ALJ 372.

41. Now coming to the authorities
cited by Sri Nisheeth Yadav, this Court
finds that in Darshjit Singh Grewal
(supra), the case before the Apex Court
was not of transfer of Government servant
but transfer of students from one affiliated
College to another.