# Smt.Rajni Singh v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-24
- **Case number:** Civil Misc. Writ Petition No.52372 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajni-singh-v-state-of-u-p-and-ors-42709
- **Pages:** 6

## Headnote

Constutution of India, Art.-226- Service Lawtransfer order challenged on breach of govt.
3 All] Smt.Rajni Singh Vs. State of U.P. and Ors.
1381
policy-held-having no statutory force-writ
court should not interfere-proper remedy to
approach before higher authority-petition
dismissed.

Held: Para-9
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.

Case Law discussed:
AIR 1991 SC 532; AIR 1993 SC 2444; 1992(1)
SCC 306; 2004(11) SCC 402; W.P. No. 243(SB) of
2007; (1993) 4 SCC-25; (1994) 6 SCC-98;
1996(1)UPLBEC 54; AIR 2012 SC 232; 2009(8)
SCC 337; JT 2009(2) SC 474.

## Text

1380 INDIAN LAW REPORTS ALLAHABAD SERIES
accommodation in dispute in which the
tenant is residing since prior to its purchase,
while seeking release of the accommodation
under section 21(1)(a) of the Act, he must
give six months' notice to the tenant to vacate
the premises with the stipulation that the
release application cannot be filed before
expiry of three years from the date of
purchase. It would also transpire that six
month's notice can be given even before the
expiry of three years.

7. Sri Nigam submits that six months'
notice is necessary for filing a release
application in each circumstance either the
release application has been filed by a
landlord who has purchased the building or
other than this. From the bare reading of the
Proviso, I find that learned counsel for the
petitioner is misconstruing and misinterpreting
the 1st Proviso to sub-section (1) (a) of section
21 of the Act as the language used therein is
unambiguous and clear and from its literal
reading, it is clear that where the release
application is filed by a landlord who has
purchased the building, seeking release of
accommodation in which tenant is residing,
since prior to its purchase, the condition of six
months' prior notice is necessary and that will
not be available to a landlord other than the
landlord who has purchased the building.

8. On being confronted as to
whether the landlord, who has filed the
release application, has purchased the
building in question or he falls in the
category of other landlord, Sri Nigam,
from the perusal of the records, i.e.,
release application, written statement or
even the amendment application, could
not show that the release application has
been filed by a landlord who has
purchased the accommodation in dispute.
Therefore, in my considered opinion, this
proviso would not be attracted.

9. Sri Nigam further contended that the
court below has erred in rejecting the
application by observing that the tenant has
waived his right to raise the plea of six months
prior notice. In his submissions, the plea can be
taken before the final decision of the release
application and the principle of waiver may
come into play only after decision of the release
application in case it is taken in the appeal.

10. There may be substance in the
submissions of Sri Nigam, but here the first
condition, i.e., release application has to be filed
by a landlord who has purchased the building
wherein the tenant is residing since prior to its
purchase by the present landlord, is missing.
The six months' prior notice is required in a
case where the landlord has purchased the
building and filed an application seeking
release of the accommodation.

11. In view of the foregoing
discussions, I do not find any merit in the
present writ petition and the same is
hereby dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.52372 of 2013

Smt. Rajni Singh

 ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Suresh Chandra Dwivedi

Counsel for the Respondents:
C.S.C.

Constutution of India, Art.-226- Service Lawtransfer order challenged on breach of govt.
3 All] Smt.Rajni Singh Vs. State of U.P. and Ors.
1381
policy-held-having no statutory force-writ
court should not interfere-proper remedy to
approach before higher authority-petition
dismissed.

Held: Para-9
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.

Case Law discussed:
AIR 1991 SC 532; AIR 1993 SC 2444; 1992(1)
SCC 306; 2004(11) SCC 402; W.P. No. 243(SB) of
2007; (1993) 4 SCC-25; (1994) 6 SCC-98;
1996(1)UPLBEC 54; AIR 2012 SC 232; 2009(8)
SCC 337; JT 2009(2) SC 474.

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

1. Heard Sri Suresh Chandra Dwivedi,
learned counsel for the petitioner and learned
Standing Counsel for the respondents.

2. The writ petition is directed against
the order of transfer dated 10.09.2013 passed
by Commissioner, Food and Civil Supply,
U.P., Lucknow transferring petitioner from
Moradabad Region to Bareilly Region.

3. Learned counsel for the petitioner
submitted that the impugned order of transfer
is in violation of transfer policy laid down
vide Government Order dated 18.04.2013.

4. The question, whether violation of
transfer policy or guide lines relating to
transfer contained in an executive order or
executive instructions or policy for a
particular
period
laid
down
by
the
Government would result in vitiating the
order of transfer, has been considered
repeatedly by Apex Court as well as this
Court.

5. The enforceability of a guideline
laid down for transfer specifically came to be
considered by the Apex Court in Shilpi Bose
& Vs. State of Bihar, AIR 1991 SC 532
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 approach the
higher authorities in the Department.

6. 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."

7. 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 therefor. 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."
1382 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Same thing has been reiterated by
the Apex Court in State of U.P. Vs.
Gobardhan Lal 2004 (11) SCC 402 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."

9. 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.

10. 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."

11. 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."

12. In Ram Niwas Pandey &
others Vs. Union 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.

13. 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
3 All] Smt.Rajni Singh Vs. State of U.P. and Ors.
1383
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
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."

14. 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
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

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

16. Following the above authorities
and also dealing with the similar
contention negativing the same this Court
in Constable 289 CP Tahsildar Singh &
Others Vs. State of U.P. & Ors., (2010)
1 UPLBEC 124, in para 46 of the
judgment, the Court said :

"No authority of this Court or the
Apex Court has been placed before me
which has considered this question in the
matter of transfer and has taken a
different view and is binding on me. In
the absence of any otherwise binding
precedent, I feel myself bound to follow
the law laid down by the Apex Court in
Shilpi Bose (supra), S.L. Abbas (supra),
Gobardhan Lal (supra) etc. and this
Court's Division Bench judgments as
discussed above."

17. Learned counsel for the
petitioner, however, placed reliance on a
Division Bench decision of this Court in
Deepa Vashishtha Vs. State of U.P. and
others, 1996(1) UPLBEC 54 and Apex
Court's decision in State of Haryana Vs.
Balwan and others, JT 1999 (6) SC 461.

18. So far as the decision in Deepa
Vashishtha
(supra)
is
concerned,
the
subsequent Division Bench in Uma Shankar
Rai (supra) has also considered the aforesaid
decision and it has been discussed that the
executive orders issued in respect of certain
matters which relate to right of a person and
those which are in respect of a matter in
which a person has no rights, stand on
different footing. For example, when a
person is to be considered for appointment or
admission in colleges or for other benefits, he
has a right of consideration at par with
others, i.e., the right of equality enshrined
under Articles 14 and 16 of the Constitution
but in respect of the matter of transfer no
person has any right, legal or otherwise, to
stay at a particular place and also has no right
to have a place of posting of his choice. It is
the privilege of employer to decide, whom it
wants to post where and what work it intends
to take from such person in the interest of
administration. Unless such exercise of
power is shown to be mala fide, the transfer
of a person is not to be interfered.

19. Similarly, the decision of Apex
Court in State of Haryana Vs. Balwan
3 All] Sumit Kumar Gupta Vs. Debts Recovery Appellate Tribunal & Ors.
1385
(supra) was not a matter related to transfer
and, therefore, has no application at all in
respect to the issue up for consideration in
the present case. There the matter relates to
the Government policy/instructions which
were found relevant in respect of right of life
convicts conferring right of early release and
the Court held that if such a scheme has been
framed, the incumbent may ask the
Government to consider his case according
to such scheme.

20. Both the judgements, therefore, in
my view, do not help the petitioner at all. On
the contrary, there are some subsequent
authorities of the Apex Court also which
have deprecated any attempt to interfere with
the orders of transfer very lightly.

21. Recently in The Registrar
General High Court of Judicature at
Madras Vs. R. Perachi and Ors., AIR
2012 SC 232, the Court has observed:

"...transfer is an incident of service, and
one cannot make a grievance if a transfer is
made on the administrative grounds, and
without attaching any stigma....".

22. The Court also referred to its
earlier decision in Airports Authority of
India Vs. Rajeev Ratan Pandey, 2009
(8) SCC 337 and said :

"in a matter of transfer of a govt.
employee, the scope of judicial review is
limited and the High Court would not interfere
with an order of transfer lightly, be it at
interim stage or final hearing. This is so
because the courts do not substitute their own
decision in the matter of transfer."

23.

A
transfer
is
made
in
administrative exigency, if there is a
complaint pending and instead of a regular
department enquiry, the authority concerned
decided to transfer a person concerned. It
would then be a transfer purely on
administrative ground and not by way of
punishment etc. This approach has been
approved by Apex Court in The Registrar
General High Court of Judicature at
Madras (supra), and in para 27 of the
judgment the Court observed:

"...the transfer was purely on the
administrative ground in view of the pending
complaint and departmental enquiry against
first Respondent. When a complaint against
the integrity of an employee is being
investigated, very often he is transferred
outside the concerned unit. That is desirable
from the point of view of the administration
as well as that of the employee.

24. In Tushar D.Bhatt Vs. State of
Gujarat & Ors., JT 2009 (2) SC 474,
reiterating well established principle in
long chain of authority the Court said:

"The legal position has been crystallized
in number of judgments that transfer is an
incidence of service and transfers are made
according to administrative exigencies."

25. In view of above discussions and
observations, I find no merit in the writ
petition. It is, accordingly, dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.52475 of 2013

Sumit Kumar Gupta

 ...Petitioner
Versus
Debts Recovery Appellate Tribunal & Ors.
 ..Respondents