# Dharmendra Kumar Saxena v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-12
- **Case number:** Civil Misc. Writ Petition No.36766 of 2013
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-saxena-v-state-of-u-p-and-ors-42574
- **Pages:** 13

## Headnote

Constitution of India, Art. 226-Service
Law-
Transfer-against
government
transfer policy-court should be slow
interfere-proper
way
to
make
representation before the competent
authority-who take appropriate decisiondisclosing reasons for breech of transfer
policy-petition disposed of.

Held: Para-42
After careful consideration of the law laid
down by the Supreme Court, I am of the
view that this Court cannot interfere with
the transfer matter as the Government
servant has no vested right to continue at
a place of his choice. The Government can
transfer the officer/employee in the
administrative exigency and in public
interest. However, if a transfer is made
against the executive instructions or
transfer policy, the competent authority
must record brief reason in the file for
deviating from the transfer policy or
executive instructions and the transfer
must be necessary in the public interest
or
administrative
exigency.
If
an
officer/employee, who is aggrieved by
his/her transfer, makes a representation
to
the
competent
authority,
his/her
representation
must
be
decided
objectively by a reasoned order.

Case Law discussed:
(1981)2 SCC 72; (1986) 4 SCC 131; 1991
Supp (2) SCC 659; (1994) 6 SCC 98; (2004)
11 SCC 402; (2007) 8 SCC 150; (2009) 15 SCC
178; (2010)13 SCC 306; (2003) 11 SCC 740;
(1979) 3 SCC 489; (1973) 1 SCC 194; (1975) 3
SCC 503; (1989) 2 SCC 602; (2004) 7 SCC
405; (1994) 1 AC 531; (1973) 2 SCC 836;
(1990) 4 SCC 594; AIR 1970 SC 150; (2004) 5
SCC 568; (2004) 5 SCC 573; (2008) 3 SCC
172; (2008) 9 SCC 407; (2008) 11 SCC 205;
(2009) 12 SCC 609; (2009) 3 SCC 258; (2009)
4 SCC 422; (2010) 3 SCC 732; (2010) 13 SCC

## Text

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2 All] Dharmendra Kumar Saxena Vs. State of U.P. and Ors.

1117
petitioner's daughter could get married.
Proof of this fact was also filed, but the
Tribunal has failed to understand the need
and urgency in the matter and has
mechanically passed the order while
rejecting the application. There is nothing
to show that the petitioner is an illiterate
widow. On the other hand, a genuine
reason has been given for the release of
the balance amount.

12. Consequently, without further
adverting on this issue, the Court is of the
opinion that the impugned order cannot be
sustained and is quashed.

13. The writ petition is allowed.

14. The petitioner is entitled for the
release of the amount as prayed by her.
The Tribunal is directed to release the
amount along with the interest so accrued
immediately upon the receipt of the
certified copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.36766 of 2013

Dharmendra Kumar Saxena ...Petitioner
Versus
State of U.P. and Ors.
... Respondents
Counsel for the Petitioner:
Sri G.P. Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226-Service
Law-
Transfer-against
government
transfer policy-court should be slow
interfere-proper
way
to
make
representation before the competent
authority-who take appropriate decisiondisclosing reasons for breech of transfer
policy-petition disposed of.

Held: Para-42
After careful consideration of the law laid
down by the Supreme Court, I am of the
view that this Court cannot interfere with
the transfer matter as the Government
servant has no vested right to continue at
a place of his choice. The Government can
transfer the officer/employee in the
administrative exigency and in public
interest. However, if a transfer is made
against the executive instructions or
transfer policy, the competent authority
must record brief reason in the file for
deviating from the transfer policy or
executive instructions and the transfer
must be necessary in the public interest
or
administrative
exigency.
If
an
officer/employee, who is aggrieved by
his/her transfer, makes a representation
to
the
competent
authority,
his/her
representation
must
be
decided
objectively by a reasoned order.

Case Law discussed:
(1981)2 SCC 72; (1986) 4 SCC 131; 1991
Supp (2) SCC 659; (1994) 6 SCC 98; (2004)
11 SCC 402; (2007) 8 SCC 150; (2009) 15 SCC
178; (2010)13 SCC 306; (2003) 11 SCC 740;
(1979) 3 SCC 489; (1973) 1 SCC 194; (1975) 3
SCC 503; (1989) 2 SCC 602; (2004) 7 SCC
405; (1994) 1 AC 531; (1973) 2 SCC 836;
(1990) 4 SCC 594; AIR 1970 SC 150; (2004) 5
SCC 568; (2004) 5 SCC 573; (2008) 3 SCC
172; (2008) 9 SCC 407; (2008) 11 SCC 205;
(2009) 12 SCC 609; (2009) 3 SCC 258; (2009)
4 SCC 422; (2010) 3 SCC 732; (2010) 13 SCC
336.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. The writ jurisdiction of this Court
under Article 226 of the Constitution of
India is invoked by a Government servant
against his transfer order dated 10th May,
2013 passed by the respondent no. 2 i.e.
1118 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Director,
Fisheries,
U.P.,
Lucknow,
whereby petitioner has been transferred
from the office of Assistant Director,
Fisheries, Bareilly to the office of
Assistant
Director,
Fisheries,
Maharajganj.

2. Short question, which arises for
determination, is that what would be the
effect of violation of transfer policy/
executive instruction in the matter of
transfer of officers and employees of the
State Government. For this purpose, few
facts, which would be relevant for
considering the issue arises in the present
case, may be set out.

3. The petitioner is an Assistant
Fisheries Development Officer. In the
year 2005 he was transferred to the office
of Assistant Director, Fisheries, District
J.P. Nagar and after about one year he
was transferred to District Moradabad. In
the year 2009 he was transferred from
District Moradabad to District Pilibhit.
After sometime, he was attached to the
Assistant Director, Fisheries, District
Shahjahanpur, from where he was again
transferred to the office of Assistant
Director, Fisheries, District Bareilly on
31st July, 2012. By the impugned order,
the petitioner has been transferred from
the office of Assistant Director, Fisheries,
District Bareilly to the office of Assistant
Director, Fisheries, District Maharajganj,
which is about 600 Kms. away from
district Bareilly.

4. Learned Counsel for the petitioner
submits that transfer of the petitioner is in
violation of the transfer policy of the State
Government as the petitioner has been
transferred four times within a short span
of time and he will reach his age of
superannuation on 30th April, 2016. He
has made several representations that his
wife is seriously ill and she is undergoing
treatment at Bareilly. He has filed several
medical certificates in support of the said
fact.

5. In the transfer policy of the State
Government it is provided that officers of
Group-A
and
Group-B,
who
have
completed six years' service in a district,
shall be transferred and if they have
completed ten years' service in the same
Division, then such officer may be
transferred out of the Division after
completion of 10 years. It is submitted
that the petitioner has been transferred
four times within a short span of three
years and he has not completed 6 years in
the district. It is also provided in the
transfer policy that if an officer/employee
has some personal difficulty like illness,
education of children, etc., adjustment can
be made. A copy of the transfer
policy/executive instructions dated 18th
April, 2013 of the State Government has
been placed on record.

6. Legal position in the matter of
transfer of Government servant is too well
settled to require any reiteration.

7. Before adverting to the core
question of the case, I find it helpful to
refer some decisions of the Supreme
Court on this issue. From a perusal of
those judgments, the principle, which
emerges, is that a Government servant has
no vested right to ask to continue at a
place of his choice. Transfer is an incident of
service. Government is the sole authority to
take a decision regarding posting/transfer of
an
officer/employee
in
administrative
exigency and in public interest. The Court
cannot examine whether transfer is in public
interest or not because it requires factual
adjudication. The Court cannot act as an
2 All] Dharmendra Kumar Saxena Vs. State of U.P. and Ors.

1119
appellate authority and substitute its finding
for that of the Government. There would be a
chaos in the administration if Courts start
interfering in the transfer matter in a routine
manner.

8. Transfer of an officer/employee is
inherent in terms of the appointment and
in absence of its provision in the relevant
Service Rule, it is implicit as an essential
condition of service subject to contrary
provision in the rule. Fundamental Rule
15 provides that "the President may
transfer a Government servant from one
post to another". One common thread
running from almost all the cases is that in
transfer matters each case should be
decided upon the facts and circumstances
of the case concerned.

9. In the case of Shanti Kumari v.
Regional
Deputy
Director,
Health
Services, Patna Division, Patna and
others, reported in (1981) 2 SCC 72, the
petitioner was Auxiliary Nurse Midwife
posted at Bowstead Zanana Hospital at
Barh. She was transferred to Urban
Family Welfare Centre, Danapur. She
challenged her transfer in Patna High
Court by filing writ petition, which was
dismissed in limine. In her special leave
petition the Supreme Court declined to
interfere with order of High Court but
authorities were directed to consider her
grievance and until decision was taken,
her transfer order was stayed. The
Supreme Court ruled as under:

"2. .....Transfer of a Government
servant may be due to exigencies of
service or due to administrative reasons.
The courts cannot interfere in such
matters. ...."

10. In B. Varadha Rao v. State of
Karnataka and others, reported in
(1986) 4 SCC 131, the Supreme Court
had the occasion to consider a short point
whether an order of transfer is appealable
under Rule 19 of the Karnataka Civil
Services (Classification, Control and
Appeal) Rules, 1957, and the Supreme
Court held in paragraphs- 4 and 6 as
under:

"4. ........ It is well understood that
transfer of a government servant who is
appointed to a particular cadre of
transferable posts from one place to
another is an ordinary incident of service
and therefore does not result in any
alteration of any of the conditions of
service to his disadvantage. That a
government servant is liable to be
transferred to a similar post in the same
cadre is a normal feature and incident of
government service and no government
servant can claim to remain in a particular
place or in a particular post unless, of
course, his appointment itself is to a
specified, non-transferable post. .."

"6. .......But, at the same time, it
cannot be forgotten that so far as superior
or more responsible posts are concerned,
continued posting at one station or in one
department of the government is not
conducive to good administration. It
creates vested interest and therefore we
find that even from the British times the
general policy has been to restrict the
period of posting for a definite period. We
wish to add that the position of class III
and class IV employees stand on a
different footing. We trust that the
government
will
keep
these
considerations in view while making an
order of transfer"

11. The Supreme Court in the case
of Shilpi Bose (Mrs) and others v. State
1120 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

of Bihar and others, reported in 1991
Supp (2) SCC 659, was dealing with the
case of transfer of some lady teachers in
Primary Schools in the State of Bihar.
They were transferred, on their own
request, to places where their husbands
were posted. The transfer orders were
made
by
the
District
Education
Establishment Committee. The teachers,
who were displaced, challenged the
transfer order before the Patna High Court
on the ground that District Education
Establishment
Committee
had
no
jurisdiction. Patna High Court allowed the
petition, set aside the transfer order and
directed for re-posting of the respondents.
Ultimately, the matter was carried to the
Supreme Court and the Supreme Court set
aside the judgment of the Patna High
Court and held as under:

"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."

12. The law laid down in Shilpi
Bose (supra) was again reiterated by the
Supreme Court in the case of Union of
India and others v. S.L. Abbas, reported
in (1993) 4 SCC 357, and observed as
under:

"6. An order of transfer is an incident
of Government service. Fundamental
Rule 11 says that "the whole time of a
Government servant is at the disposal of
the Government which pays him and he
may be employed in any manner required
by proper authority". Fundamental Rule
15 says that "the President may transfer a
Government servant from one post to
another". That the respondent is liable to
transfer anywhere in India is not in
dispute. .."

13. In the case of N.K. Singh v.
Union of India and others, reported in
(1994) 6 SCC 98, the appellant Sri
N.K.Singh was an I.P.S. Officer. He was
allocated to State cadre of Orissa. He was
I.G., C.I.D. in Orissa. His services were
placed on deputation to Ministry of Home
Affairs and was posted as Joint Director
in
Central
Bureau
of
Investigation
(C.B.I.). He was In-charge of a Special
Investigation Group conducting some
sensitive investigation. He was abruptly
transferred to Boarder Security Force
(B.S.F.) in an equivalent post of I.G.P..
He challenged his transfer order on the
ground of malafide against the then Prime
Minister Shri Chandrashekhar and the
then
Union
Law
Minister
Dr.
Subramanyam Swami. The grievance of
the appellant therein was that he was Incharge of a Special Investigation Group
2 All] Dharmendra Kumar Saxena Vs. State of U.P. and Ors.

1121
investigating
into
St.
Kitts
affair.
Therefore, he was eased out from the
C.B.I. to scuttle the fair investigation.
Against this background, the Supreme
Court ruled as under:

"6. Shri Ram Jethmalani, learned
counsel for the appellant did not dispute
that the scope of judicial review in
matters of transfer of a government
servant to an equivalent post without any
adverse consequence on the service or
career prospects is very limited being
confined only to the grounds of mala fides
and violation of any specific provision or
guideline
regulating
such
transfers
amounting to arbitrariness. In reply, the
learned Additional Solicitor General and
the learned counsel for Respondent 2 did
not dispute the above principle, but they
urged that no such ground is made out;
and there is no foundation to indicate any
prejudice to public interest."

"24. ...Challenge in courts of a
transfer when the career prospects remain
unaffected and there is no detriment to the
government servant must be eschewed
and interference by courts should be rare,
only when a judicially manageable and
permissible ground is made out. This
litigation was ill-advised."

14. The Supreme Court again dealt
with the matter of transfer in the case of
State of U.P. and others v. Gobardhan
Lal, reported in (2004) 11 SCC 402. Said
case arose out of the judgment of a
Division Bench of the Allahabad High
Court (2000 All LJ 1466), wherein the
High Court had issued some general
directions in the matter of transfers. The
Government servants were given liberty
to file representation against their transfer
directly to the Chief Secretary and further
direction
was
issued
to
the
State
Government to constitute Civil Service
Board for dealing with transfers and
postings of Class-I officers. The Supreme
Court found that the High Court fell in
serious error and such general direction
will leave an impression that the Courts
are attempting to take over the reign of
the
executive
administration.
In
paragraph-8
of
the
judgement,
the
Supreme Court held as follows:

"8. A challenge to an order of
transfer should normally be eschewed and
should not be countenanced by the courts
or tribunals as though they are Appellate
Authorities over such orders, which could
assess the niceties of the administrative
needs and requirements of the situation
concerned. This is for the reason that
courts or tribunals cannot substitute their
own decisions in the matter of transfer for
that of competent authorities of the State
and even allegations of mala fides when
made must be such as to inspire
confidence in the court or are based on
concrete materials and ought not to be
entertained on the mere making of it or on
consideration borne out of conjectures or
surmises and except for strong and
convincing reasons, no interference could
ordinarily be made with an order of
transfer."

15. In the case of Mohd. Masood
Ahmad v. State of U.P. and others,
reported in (2007) 8 SCC 150, the
Supreme Court has elaborately considered
the well settled principle again and
observed as under:

"4. ....Since the petitioner was on a
transferable post, in our opinion, the High
Court has rightly dismissed the writ
petition since transfer is an exigency of
1122 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

service and is an administrative decision.
Interference by the courts with transfer
orders should only be in very rare cases.
As repeatedly held in several decisions,
transfer is an exigency of service .."

16. In the aforesaid case i.e. Mohd.
Masood Ahmad (supra) the Supreme Court
approved the view taken by the Allahabad
High Court wherein this Court had refused to
interfere in the transfer cases. The Supreme
Court observed as under:

"7. .... Following the aforesaid
principles laid down by the Supreme
Court, the Allahabad High Court in Vijay
Pal Singh v. State of U.P, (1997) 3 ESC
1668, and Onkar Nath Tiwari v. Chief
Engineer, Minor Irrigation Deptt., (1997)
3 ESC 1866, has held that the principle of
law laid down in the aforesaid decisions is
that an order of transfer is a part of the
service conditions of an employee which
should not be interfered with ordinarily by
a court of law in exercise of its
discretionary jurisdiction under Article
226 unless the court finds that either the
order is mala fide or that the service rules
prohibit such transfer, or that the
authorities who issued the orders, were
not competent to pass the orders.

17. Similar view has been reiterated
by the Supreme Court in the case of
Rajendra Singh and others v. State of
Uttar Pradesh and others, reported in
(2009) 15 SCC 178, and held as under:

"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 [see
State of U.P. v. Gobardhan Lal, (2004) 11
SCC 402; SCC p. 406, para 7).

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..."

18. In a recent judgment rendered in
the case of State of Haryana and others
v. Kashmir Singh and another, reported
in (2010) 13 SCC 306, the Supreme Court
has observed that in the matter of transfer
of police personnel, the Courts should be
very slow to interfere in their transfer as
the competent authorities of the State are
in the best position to assess the
necessities
of
the
administrative
requirements
of
the
situation.
The
Supreme Court held as under:

"12.
Transfer
ordinarily
is
an
incidence of service, and the courts
should be very reluctant to interfere in
transfer orders as long as they are not
clearly illegal. In particular, we are of the
opinion that transfer and postings of
policemen must be left in the discretion of
the State authorities concerned which are
in the best position to assess the
necessities
of
the
administrative
requirements
of
the
situation.
The
administrative authorities concerned may
be of the opinion that more policemen are
required in any particular district and/or
another range than in another, depending
2 All] Dharmendra Kumar Saxena Vs. State of U.P. and Ors.

1123
upon their assessment of the law and
order
situation
and/or
other
considerations.
These
are
purely
administrative matters, and it is well
settled that courts must not ordinarily
interfere in administrative matters and
should maintain judicial restraint, vide
Tata Cellular v. Union of India [(1994) 6
SCC 651]."

19. However the Supreme Court has
carved out few exceptions where Courts
can interfere in transfer matters, some of
the exceptions are;

(i) If the order is found to be infected
by mala fide.

(ii) If there is infraction of any
statutory provisions.

(iii) If the power of transfer is abused
or transfer is made for some collateral
purpose;
if
it
is
found
that
the
Government has not used its power
bonafidely to meet the exigency of
administration or transfer order has been
passed by an authority, who had no
power.

(iv) The order of transfer cannot
prejudicially affect the status of the
employee.

20. The aforesaid principle emanates
from the judgments of the Supreme Court
in the cases of Shilpi Bose (supra), S.L.
Abbas (supra), N.K. Singh (supra) and
B. Varadha Rao (supra).

21. Now I turn to the central
question of the case, what would be the
effect if an order of transfer is made in
violation of the policy decision of the
State Government.

22. The Supreme Court in the case
of Sarvesh Kumar Awasthi v. U.P. Jal
Nigam and others, reported in (2003) 11
SCC 740, by an interim order dated 04th
September, 2001, had issued a direction to
the Government of Uttar Pradesh to frame
the guidelines for transfer. The direction
given by the Supreme Court reads as
under:

"3. In our view, transfer of officers is
required to be effected on the basis of set
norms or guidelines. The power of
transferring an officer cannot be wielded
arbitrarily, mala fide or an exercise
against efficient and independent officer
or at the instance of politicians whose
work is not done by the officer concerned.
For better administration the officers
concerned must have freedom from fear
of being harassed by repeated transfers or
transfers ordered at the instance of
someone who has nothing to do with the
business of administration.

4. In this set of circumstances, the
Chief Secretary, State of U.P. is directed
to file necessary affidavit within six
weeks from today pointing out rules and
regulations for effecting transfers of
officers including higher officers such as
District Magistrates. A copy of Annexure
A-2 (p. 124 of the paper-book) be also
sent to the Chief Secretary, State of U.P.
along with this order by which the
transfers of the officers are effected..."

23. In compliance of the said order,
the State of Uttar Pradesh constituted a
committee to frame the guidelines in
respect of IAS and PCS officers. After
several adjournments taken by the parties,
learned Solicitor General of India, who
appeared on behalf of State of Uttar
Pradesh, submitted guidelines before the
Supreme Court. On 22nd November,
1124 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

2002 the Supreme Court passed the
following order:

"Mr. K.L. Rawal, learned Solicitor
General appearing on behalf of State of
U.P. submits that the direction issued on
the basis of the affidavit dated 26.8.2002
laying down the transfer policy for I.A.S.
and P.C.S. officers would be strictly
adhered to. In this view of the matter, this
petition would not survive and stands
disposed of accordingly. If any other
officer is having any grievance, it would
be open to him to approach the
appropriate forum."

24. On a perusal of the order it is
evident that State Government stated
before the Court that it will follow its
policy strictly.

25. The effect of infraction of policy
decision or the executive instructions has
been subject matter of several judgments
of the Supreme Court. The Supreme
Court in the case of Ramana Dayaram
Shetty
v.
International
Airport
Authority of India and others, reported
in (1979) 3 SCC 489, had the occasion to
deal with the executive orders. The Court
observed as under:

"10. .....It is a well settled rule of
administrative law that an executive
authority must be rigorously held to the
standards by which it professes its actions
to be judged and it must scrupulously
observe those standards on pain of
invalidation of an act in violation of them.
This rule was enunciated by Mr Justice
Frankfurter in Viteralli v. Saton [359 U.S.
535: Law Ed (Second series) 1012] where
the learned Judge said:

An
executive
agency
must
be
rigorously held to the standards by which
it professes its action to be judged ....
Accordingly,
if
dismissal
from
employment is based on a defined
procedure, even though generous beyond
the requirements that bind such agency,
that procedure must be scrupulously
observed .... This judicially evolved rule
of administrative law is now firmly
established and, if I may add, rightly so.
He that takes the procedural sword shall
perish with the sword."

26. Similar view was taken by the
Supreme Court in its earlier decision in
the case of Union of India v. K.P. Joseph
and others, (1973) 1 SCC 194, and held as
under:

"9.
Generally
speaking,
an
administrative
Order
confers
no
justiciable right, but this rule, like all
other
general
rules,
is
subject
to
exceptions. This Court has held in Sant
Ram Sharma v. State of Rajasthan and
Another (AIR 1967 SC 1910) that
although Government cannot supersede
statutory
rules
by
administrative
instructions, yet, if the rules framed under
Article 309 of the Constitution are silent
on any particular point, the Government
can fill up gaps and supplement the rules
and issue instructions not inconsistent
with the rules already framed and these
instructions will govern the conditions of
service."

27. In the case of Dr. Amarjit
Singh Ahluwalia v. The State of Punjab
and others, reported in (1975) 3 SCC
503, the Supreme Court was dealing with
the executive/ administrative instructions
and held as under:
2 All] Dharmendra Kumar Saxena Vs. State of U.P. and Ors.

1125

"9. .......Now, it is true that clause
(2)(ii) of the memorandum dated October
25,
1965
was
in
the
nature
of
administrative instruction, not having the
force of law, but the State Government
could not at its own sweet will depart
from it without rational justification and
fix an artificial date for commencing the
length of continuous service in the case of
some individual officers only for the
purpose of giving them seniority in
contravention of that clause. That would
be clearly violative of Articles 14 and 16
of the Constitution. The sweep of Articles
14 and 16 is wide and pervasive. These
two articles embody the principle of
rationality and they are intended to strike
against arbitrary and discriminatory action
taken by the "State". Where the State
Government departs from a principle of
seniority laid down by it, albeit by
administrative
instructions,
and
the
departure is without reason and arbitrary,
it would directly infringe the guarantee of
equality under articles 14 and 16. It is
interesting to notice that in the United
States it is now well-settled that an
executive agency must be rigorously held
to the standards by which it professes its
actions to be judged and it must
scrupulously observe those standards on
pain of invalidation of an act in violation
of them. Vide the Judgment of Mr Justice
Frankfurter in Vitaralli v. Seaton."

28. From the aforementioned cases,
it is evident that the Government is bound
by
executive
orders/policies.
The
guidelines are made to follow it and not to
breach it without any justifiable reasons.
Whenever the Government deviates from
its
policies/guidelines/
executive
instructions, there must be cogent and
strong reasons to justify the order; when
transfer order is challenged by way of
representation, there must be material on
record to establish that the decision was in
public interest and it does not violate any
statutory provision, otherwise the order
may be struck down as being arbitrary
and violative of Article 14 of the
Constitution.
The
authorities
cannot
justify their orders that breach of
executive orders do not give legally
enforceable right to aggrieved person. As
observed by Justice Frankfurter "An
executive agency must be rigorously held
to the standards by which it professes its
action to be judged".

29. It is true that the Supreme Court
has consistently taken the view that in
transfer
matters
breach
of
guidelines/policy/ executive orders do not
confer upon government servants any
legally enforceable right. But on a careful
reading of the judgements of the Supreme
Court on this issue, it is also evident that
in all those cases the Supreme Court has
ruled that in case of breach of executive
instructions/orders,
the
Government
Servant can make representation to the
appropriate authority and if any such
representation is made, the appropriate
authority must consider it in proper
perspective and in accordance with law.
In this regard, some of the relevant
observations of the Supreme Court are
extracted below:

30. In the case of Gujarat
Electricity Board
and
another
v.
Atmaram Sungomal Poshani, reported
in (1989) 2 SCC 602, the Supreme Court
held as under:

"4. ......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
1126 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

make representation to the competent
authority
for
stay,
modification
or
cancellation of the transfer order. ........"

31. The Supreme Court in the case
of Shilpi Bose (supra) held as under:

"4. .......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. .........."

32. In S.L. Abbas (supra) the
Supreme Court has held that the guideline
does not confer upon the Government
servants a legally enforceable right.
However, it was also observed that while
ordering transfer, the authorities must
keep in mind the guidelines issued by the
Government on the subject. Relevant part
of the judgment reads as under:

"7. 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 by me)

33. The Supreme Court in the case
of State of U.P. and another v. Siya
Ram and another, (2004) 7 SCC 405,
observed as under:

"8. Learned counsel for Respondent
1 submitted that the respondent shall file a
representation highlighting the various
difficulties which may result or have
resulted from the transfer and the nondesirability thereof. If such representation
is made to the appropriate authorities, it
goes without saying that the same shall be
considered in its proper perspective and in
accordance with law. We do not express
any opinion in that regard. The appeal is
allowed to the extent indicated with no
order as to costs."

34. In Gobardhan Lal (supra) the
Supreme Court has observed in respect of
the representation against the transfer
order in the following terms:

"9. .... Even as the position stands,
avenues are open for being availed of by
anyone aggrieved, with the authorities
concerned, the courts and tribunals, as the
case may be, to seek relief even in
relation to an order of transfer or
appointment or promotion or any order
passed in disciplinary proceedings on
certain
well-settled
and
recognized
grounds or reasons, when properly
approached and sought to be vindicated in
the manner known to and in accordance
with law. No such generalised directions
as have been given by the High Court
could ever be given leaving room for an
inevitable impression that the courts are
attempting to take over the reigns of
executive administration. Attempting to
undertake an exercise of the nature could
even be assailed as an onslaught and
encroachment on the respective fields or
areas of jurisdiction earmarked for the
various other limbs of the State. Giving
room for such an impression should be
avoided with utmost care and seriously
2 All] Dharmendra Kumar Saxena Vs. State of U.P. and Ors.

1127
and
zealously
courts
endeavour
to
safeguard the rights of parties."

35. The principle which can be
discerned from above mentioned and
other various decisions of the Supreme
Court is that although the breach of
guidelines does not give any legally
enforceable right in favour of the
employee but at the same time the
guidelines/transfer
policy/Government
orders issued to deal with transfer of
officers and employees cannot be ignored
altogether by the competent authority.
While transferring an officer, the broad
guidelines mentioned in the transfer
policy, executive orders or guidelines
must be kept in the mind.

If in the administrative exigency or
in public interest, transfer of an
officer/employee is necessary, then the
competent authority may record the
reasons for departing/deviating from
the policy or the guidelines. Recording
of such reason in the files would
facilitate the superior officers to decide
the
representation
of
the
officer
concerned
objectively.
It
is
not
necessary that while transferring an
officer/ employee, reasons should be
communicated
to
the
concerned
officer/employee.

36.

In
England
earlier
well
established law was that in administrative
decisions there was no requirement of law
to give reasons [R v. Secretary of State
for the Home Department, ex p. V
Doody, (1994) 1 AC 531]. In the said
case, Lord Mustill delivered his opinion
for the House of Lords and held that "the
law does not at present recognise a
general duty to give reasons for an
administrative decision". But recent trend
in England has been noticed by Prof.
Smith in his book, known as, "Principles
of Judicial Review", (1999 Edition), at
page 344, as under:

"The beneficial effects of a duty to
give reasons are many. To have to provide
an explanation of the basis for their
decision is a salutary discipline for those
who have to decide anything that
adversely affects others. The giving of
reasons is widely regarded as one of the
principles of good administration in that it
encourages a careful examination of the
relevant
issues,
the
elimination
of
extraneous
considerations,
and
consistency
in
decision-making.
Moreover, if published, reasons can
provide guidance to others on the body's
likely future decisions, and so deter
applications
which
would
be
unsuccessful. Further, the giving of
reasons may protect the body from
unjustified challenges, because those
adversely affected are more likely to
accept a decision if they know why it has
been taken. In addition, basic fairness and
respect for the individual often requires
that those in authority over others should
tell them why they are subject to some
liability or have been refused some
benefit."

37. The Supreme Court expanded
the horizon of reason in the case of Union
of India v. Mohan Lal Capoor and
others, (1973) 2 SCC 836, and held that
reasons are links between the materials on
which certain conclusions are based. They
indicate how the mind is applied, whether
it is administrative matter or quasijudicial.

38. Then came a Constitution Bench
judgment in S.N. Mukherjee v. Union of
1128 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

India, (1990) 4 SCC 594. The Court
observed that it is in the larger public
interest that an administrative authority
must record the reason for the order
passed by him. The Court has quoted the
view of Prof. H.W.R. Wade that "natural
justice may provide the best rubric for it,
since the giving of reasons is required by
the ordinary man's sense of justice". The
Court further held that after the decision
of A.K. Kraipak and others v. Union of
India and others, AIR 1970 SC 150,
many subsidiary rules came to be added
to the rules of natural justice, the reason is
also one of them.

39. In recent time, the Supreme
Court has further enlarged the scope of
the reasons to such an extent that it has
termed it heartbeat of every conclusion
because it introduces clarity in an order
and in its absence the order becomes
lifeless. It ensures transparency and
fairness in decision-making. It also
ensures that aggrieved person must know
why his representation/ application has
been rejected. The need for recording the
reasons is greater in a case where the
order
is
passed
at
original
stage.
Reference may be made to the judgments
of the Supreme Court wherein aforestated
views have been taken, vide, State of
Orissa v. Dhaniram Luhar, (2004) 5
SCC 568; State of Rajasthan v. Sohan
Lal and others, (2004) 5 SCC 573;
Vishnu Dev Sharma v. State of Uttar
Pradesh and others, (2008) 3 SCC 172;
Steel Authority of India Limited v.
Sales Tax Officer, Rourkela I Circle
and others, (2008) 9 SCC 407; State of
Uttaranchal and another v. Sunil
Kumar Singh Negi, (2008) 11 SCC 205;
Uttar Pradesh State Road Transport
Corporation v. Jagdish Prasad Gupta,
(2009) 12 SCC 609; Ram Phal v. State
of Haryana and others, (2009) 3 SCC
258; State of Himachal Pradesh v. Sada
Ram and another, (2009) 4 SCC 422;
Secretary
and
Curator,
Victoria
Memorial Hall v. Howrah Ganatantrik
Nagrik Samity and others, (2010) 3
SCC 732; and Sant Lal Gupta and
others v. Modern Cooperative Group
Housing Society Limited and others,
(2010) 13 SCC 336.

40. In S.L. Abbas (supra) the
Supreme Court has acknowledged the
right of the officer/employee to make
representation to the superior authority if
the transfer order has been passed in
violation of policy or government orders.
Recording of reason would also be helpful
in case of judicial review. Every year
large number of writ petitions are filed
challenging the transfer orders on the
ground
of
malafide
and
serious
allegations are made that transfer order
has been passed for collateral purpose and
extraneous reasons. In most of the cases
the allegations are that the aggrieved
officer has been transferred only to
accommodate another officer, who is
enjoying political patronage.

41. There is another aspect of the
matter.
The
State
Government
in
compliance of the direction of the
Supreme
Court
in
Sarvesh
Kumar
Awasthi (supra) has framed transfer
policy. It has filed an affidavit in the
Supreme Court that it would adhere with
the guidelines strictly. The statement has
also been given by the then learned
Solicitor General of India to the said
effect. I am not oblivious of the fact that
transfer policy/executive instructions are
amended periodically. Nonetheless the
guidelines are basically same except some
insignificant changes. The affidavit and
2 All] Phulgen and Ors. Vs. Vinay Kumar Tiwari

1129
the statement are not confined to a
particular case or the year, therefore, in
my opinion, it is binding on the State
Government.

42. After careful consideration of
the law laid down by the Supreme Court,
I am of the view that this Court cannot
interfere with the transfer matter as the
Government servant has no vested right to
continue at a place of his choice. The
Government
can
transfer
the
officer/employee in the administrative
exigency and in public interest.