# Vir Singh v. District Inspector of

- **Citation:** (2009) 3 ILRA 847
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-15
- **Case number:** Civil Misc. Writ Petition No. 52133 of 2009
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vir-singh-v-district-inspector-of-41539
- **Pages:** 17

## Headnote

Constitution
of
India
Article-226Transfer U.P. Registration department(
District
Establishment)
ministerial
Service Rule 1978- Rule 28 read with
fundamental
Rule-Rule
15-Transfer
petitioner working Sub Registrar-IIITransferred from Gautam Buddhanagar
to Pilibhit-Transfer order challenged-on
ground
of
authority-instead
of
I.G.
Registration directly, state government
passed order-held-No bar order passed
848 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
in public interest can not be interferedeven otherwise No bar to exercise the
power of Transfer by higher authority
than the appointing authority.

Held: Para 65

The submission of learned counsel for
the petitioner that there was no adverse
material nor enquiry etc. against him
and, therefore, he ought not to have
been transferred is noted to be rejected
for the simple reason that the order of
transfer is not punitive, but is a general
order whereby about 191 Registration
Clerks have been shifted from one place
to another. Therefore, the submission
that in the absence of any adverse
material he ought not to have been
transferred is wholly misconceived. If an
order of transfer is passed in public
interest or due to some administrative
exigency, there is no requirement or
condition precedent that the same can
only be passed if there is some complaint
or enquiry against the person concerned.
Case law discussed:
AIR 1974 SC 555, 1977(4) SCC193, 1986(1)
SC 249, AIR 1989 SC 1433, AIR 1991 SC 532,
JT 1992 (6) SC 732, 1993 (1) SCC 148, 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, Writ
Petition No. 52249 of 2000, (Special Appeal
No. 769 of 2005), Writ Petition No. 243 (SB) of
2007, 2009 (4) ALJ 372., JT 1993 (4) SC, 2007
(3) ESC 1730 (All); 2008 (3) UPLBEC 2290;
Writ Petition No. 4405 (SS) of 2008, W.P. No.
35254 of 2009.

## Text

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3 All] Ramesh Chandra Mishra V. State of U.P. and others
847
2. The contention advanced is that
the letter which was sent by the petitioner
on 4.5.2007 did not amount to a complete
surrender of the rights of the petitioner to
function as officiating Principal of the
institution.

3. Learned counsel for the petitioner
contends that the impugned orders dated
17.6.2009 and 1.10.2008 interfered with
the rights of the petitioner to function as
officiating Principal of the institution
inspite of the fact that the petitioner is the
senior most Teacher.

4. Learned counsel for the petitioner
contends that in view of the aforesaid
position, it was not open to the
respondents to have denied the right
claimed by the petitioner to continue to
function inspite of the letter which has
been appended as Annexure-3.

5. Learned Standing Counsel Sri
K.K. Chand, on the other hand, contends
that the letter dated 4.5.2007 (Annexure3) is a voluntarily resignation tendered by
the petitioner himself. There is no dispute
about the contents, veracity and probity of
the said document. In view of this, since
the document is not under challenge, the
petitioner cannot now reclaim the post
inasmuch as he had already been
appointed as officiating Principal and, he
voluntarily surrendered his rights as such.
Sri Chand relies on the decision of Satya
Vir Singh Vs. District Inspector of
schools, Bulandshahr, and others, 1995
(25) ALR 139, to substantiate his
submission. Reference may be had to the
decision in the case of Ashok Kumar Jain
Vs. State of U.P. and others, (2008) 2
UPLBEC 1159.

6. Having heard learned counsel for
the parties, I have carefully perused the
letter dated 4.5.2007 which clearly
demonstrates
that
the
petitioner
surrendered and resigned from the duties
as officiating Principal coupled with a
recital to the effect that he should be
continued and allowed to function as
Assistant Teacher in the institution. The
recital being full and complete, there is no
ambiguity in the same and as such the
contention advanced by the learned
counsel for the petitioner cannot be
accepted.

7. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 52133 of 2009

Satish Pal

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

Counsel for the Petitioner:
Sri H.R. Misra
Sri K.M. Misra

Counsel for the Respondents:
S.C.

Constitution
of
India
Article-226Transfer U.P. Registration department(
District
Establishment)
ministerial
Service Rule 1978- Rule 28 read with
fundamental
Rule-Rule
15-Transfer
petitioner working Sub Registrar-IIITransferred from Gautam Buddhanagar
to Pilibhit-Transfer order challenged-on
ground
of
authority-instead
of
I.G.
Registration directly, state government
passed order-held-No bar order passed
848 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
in public interest can not be interferedeven otherwise No bar to exercise the
power of Transfer by higher authority
than the appointing authority.

Held: Para 65

The submission of learned counsel for
the petitioner that there was no adverse
material nor enquiry etc. against him
and, therefore, he ought not to have
been transferred is noted to be rejected
for the simple reason that the order of
transfer is not punitive, but is a general
order whereby about 191 Registration
Clerks have been shifted from one place
to another. Therefore, the submission
that in the absence of any adverse
material he ought not to have been
transferred is wholly misconceived. If an
order of transfer is passed in public
interest or due to some administrative
exigency, there is no requirement or
condition precedent that the same can
only be passed if there is some complaint
or enquiry against the person concerned.
Case law discussed:
AIR 1974 SC 555, 1977(4) SCC193, 1986(1)
SC 249, AIR 1989 SC 1433, AIR 1991 SC 532,
JT 1992 (6) SC 732, 1993 (1) SCC 148, 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, Writ
Petition No. 52249 of 2000, (Special Appeal
No. 769 of 2005), Writ Petition No. 243 (SB) of
2007, 2009 (4) ALJ 372., JT 1993 (4) SC, 2007
(3) ESC 1730 (All); 2008 (3) UPLBEC 2290;
Writ Petition No. 4405 (SS) of 2008, W.P. No.
35254 of 2009.

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

1. Heard Sri H.R. Misra, learned
Senior Advocate, assisted by Sri K.M.
Misra, learned counsel for the petitioner
and learned Standing Counsel for the
respondents.

2. The petitioner is aggrieved by the
order dated 30.9.2009 (Annexure 8 to the
writ
petition)
whereby
the
State
Government has transferred him from
district
Gautambudh
Nagar
to
Bulandshahar.

3. The facts in brief giving rise to
the present dispute are that the petitioner
was appointed as Registration Clerk in the
Registration Department of the State of
U.P. on 24.11.1981. district Gautambudh
Nagar was created vide notification dated
6.5.1997 issued under Section 11 of U.P.
Land Revenue Act, 1901 bifurcating
district
Ghaziabad
and
district
Bulandshahar. Thereafter, the petitioner
was transferred and posted in district
Gautambudh Nagar on 28.6.1997. On
13.7.2004, he was posted as Sub-Registrar
III, Noida (district Gautambudh Nagar)
and since then, is working as such till
date.

4. It is not disputed that home
district of the petitioner is Ghaziabad. The
recruitment and conditions of service of
Registration Clerk are governed by U.P.
Registration
Department
(District
Establishment) Ministerial Service Rules,
1978 (hereinafter referred to as '1978
Rules') framed under proviso to Article
309 of the Constitution of India. Vide
1978 Rules, the appointing authority of
Registration Clerk is Inspector General,
Registration, U.P., Allahabad. It appears
that
Minister,
Institutional
Finance,
Stamp, Court Fees and Registration, U.P.
Government during the course of review
of work at Bareilly, Meerut and Aligarh
divisions found that there existed surplus
Registration Clerks in some districts
3 All] Satish Pal V. State of U.P. and others
849
while in others they are deficit. Therefore,
he sought information from the concerned
Assistant Inspector General, Registration,
U.P. to give the details of the sanctions
strength of Registration Clerks in the
concerned district, the persons actually
working as also the requirement of the
staff in the said district along with the
detail of the home district etc. In
compliance
thereof,
the
Assistant
Inspector
General,
Registration,
Gautambudh Nagar vide his letter dated
25.6.2009
informed
the
Inspector
General, Registration, U.P., Allahabad
that
the
sanctioned
strength
of
Registration Clerks at Gautambudh Nagar
was
14
while
actual
number
of
Registration Clerks working in the said
District was 22. He gave details of the 22
Registration clerks working in the District
Gautambudh Nagar which included the
name of the petitioner also. He also
submitted that considering increase in the
work etc., staff in District Gautambudh
Nagar cannot be said to be in excess.
However, for some Registration Clerks,
he suggested rearrangement in different
offices of District Gautambudh Nagar,
which included the name of the petitioner
also. He recommended that instead of
office of Sub-Registrar III, Noida, he may
be posted in the office of Sub-Registrar I,
Noida.

5. Besides, the State Government,
took a policy decision communicated by
order
dated
6.6.2009
(Government
transfer policy for session 2009-10)
stating therein that the session 2009-10
has been declared a 'zero transfer session',
hence, no person of any category should
be transferred in the said session.
However, if any transfer is necessary,
prior approval of the Chief Minister shall
be obtained for the same. It is averred that
neither there was any complaint against
the petitioner nor any enquiry was ever
initiated against him, yet all of a sudden
the impugned order has been issued by
the State Government transferring the
petitioner from District Gautambudh
Nagar to District Bulandshahar.

6. Sri H.R. Misra, learned Senior
Counsel appearing for the petitioner
contended that the impugned order of
transfer is illegal, arbitrary and without
jurisdiction for the following reasons :

1.
Impugned order of transfer has been
passed by the State Government
though
under
1978
Rules,
the
appointing authority of the petitioner
is Inspector General, Registration
and, therefore, the State Government
cannot pass the order of transfer.
2.
It has been passed in utter violation
and transgression of Government
transfer policy for the session 200910 as contained in the Government
Order dated 6.6.1009.
3.
He submitted that a decision was
taken by the Government to transfer
those
employees
who
have
completed more than 15 years in a
District
and
the
petitioner
has
completed only 12 years, yet he has
been transferred by means of the
impugned order and, hence, it is
wholly arbitrary and illegal.
4.
There is neither any complaint nor
enquiry, disciplinary or otherwise,
initiated against the petitioner, yet he
has been transferred from one place
to another.
5.
The impugned order of transfer has
been passed on the dictates of the
Minister concerned.
850 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
7. Having heard learned Senior
Counsel at length and given my serious
thoughts to the issues raised by him, I,
however, do not find myself in agreement
with any of the above submissions and, in
my view, the writ petition deserves to be
dismissed.

8. The first question is whether the
order of transfer has been passed by the
competent authority, i.e., whether the
petitioner could have been transferred
only
by
the
Inspector
General,
Registration,
U.P.,
Allahabad,
the
appointing authority under 1978 Rules or
even by the State Government, who is a
higher authority to the Inspector General,
Registration
and
under
the
rules
applicable for disciplinary proceedings
etc. is the appellate authority.

9. 1978 Rules defines appointing
authority vide Rule 3 (b) as under :

"(b)
"Appointing
Authority"
in
respect of the post of the
Chief
Registration Clerk means the InspectorGeneral of Registration, Uttar Pradesh,
and in respect of the post of Registration
Clerk the District Registrar of the district
where the post exists;"

10. The District Registrar and
Inspector General have also been defined
under Rule 3 (f) and (i) as under :

"(f) "District Registrar" means the
officer appointed as Registrar under
Section 6 of the Act;"
"(i) "Inspector General" means the
Inspector General of Registration, Uttar
Pradesh, appointed under sub-section (1)
of 3 of the Act;"

11. A perusal of the Rule 5 read with
Rule 4(2) and Appendix-A shows that the
said Rules apply to the following
categories of service:

(1) Registration Clerk;
(2) Chief Registration Clerk

12. It is no doubt true that 1978
Rules by itself do not provide for transfer
of the Registration Clerk or Chief
Registration Clerk from one district to
another but Rule 28 provides for such
matter as are not governed by the 1978
Rules and reads as under:

"28. Regulation of other matters.-
In regard to the matters not specifically
covered by these rules or special orders,
persons appointed to the service shall be
governed by the rules, regulations and
orders
applicable
generally
to
Government
servants
serving
in
connection with the affairs of the State."

13. Learned counsel for the
petitioner could not dispute that the
general
power
of
transfer
of
a
Government servant is contained in
Fundamental Rule 15, which reads as
under :

"15. (a) A Government servant may
be transferred from one post to another;
provided that, except-
(1) on account of inefficiency of
misbehaviour; or
(2) on his written request,
a Government servant shall not be
transferred substantively to, or except in a
case covered by Rule 49, appointed to
officiate in, a post carrying less pay than
the pay of the permanent post on which he
holds a lien, or would hold a lien had his
lien not been suspended under Rule 14.
3 All] Satish Pal V. State of U.P. and others
851
(b) Notwithstanding anything to the
contrary contained in these rules, the
Governor may in the public interest
transfer a Government servant to a post
in another cadre or to an ex-cadre post.
(c) Nothing contained in Clause (a)
of this rule or in Clause (13) of Rule 9
shall operate to prevent the retransfer of
a Government servant to the post on
which he would hold a lien, had it not
been suspended in accordance with the
provisions of Clause (a) of Rule 14."

14. He also could not dispute that in
view of Rule 28 of 1978 Rules, the
petitioner's service is transferable under
Fundamental Rule 15 since the petitioner
is also a Government servant.

15. Fundamental Rule 15 does not
confer power of transfer only on the
appointing
authority.
A
perusal
of
Fundamental Rule 15 shows that an order
of transfer can be passed by an authority,
who
is
competent
to
transfer
a
Government
servant.
Clause
(b)
empowers specifically the Governor to
transfer a Government servant in public
interest even outside the cadre. The
provision under Clause (b) confers power
upon the Governor which is not to be
exercised by the Governor himself, but
has to be exercised in accordance with
provision of the Constitution meaning
thereby on the advice of the Council of
the Ministers. Thus the above provision
confer power upon the Government to
transfer an employee from his cadre even
to another cadre. This provision shows
that not only the appointing authority but
even the higher authorities, i.e., the
authorities
who
have
appellate
or
revisional power against the order passed
by the appointing authority can also
exercise power of transfer. Such power
can be exercised even by an authority
subordinate to the appointing authority, if
such power has been delegated to such
subordinate authority.

16. In the case in hand, learned
counsel for the petitioner could not
dispute that in the disciplinary matters
etc., the orders of the Inspector General,
Registration are appealable before the
State Government. He also could not
dispute that the State Government is an
authority higher to the Inspector General,
Registration. Further, since the approval
of the Chief Minister has also been
obtained, in the case in hand, it appears
that the order accordingly has been issued
by the Government. In respect to all such
matters of transfer of Registration Clerks
in the State of U.P., where approval has
been given by the Chief Minister, it
appears that the order of transfer has been
issued by the State Government itself. In
the absence of any provision authorizing
only the appointing authority to transfer
the petitioner from one place to another,
in my view, it cannot be said that the
order passed by the higher authority, i.e.,
State Government is vitiated in law.

17. Now coming to the next
question, i.e. transgression and violation
of transfer policy for the session 2009-10
as contained in the Government Order
dated 6.6.2009, whether an order of
transfer can be interfered by the Court on
the Ground that it violates guidelines
issued by the Government in the matter of
transfer, i.e., the transfer policy.

18. In order to appreciate the above
submission, it would be necessary to
consider the nature of the order of transfer
in relation to a Government servant.
Whether an order of transfer affects any
852 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
right of the Government servant, whether
it causes disadvantage to him etc. At the
pain of repetition, it may be reminded that
the petitioner's service is transferable and
he is holding a transferable post, hence,
can be transferred from one place to
another.

19. Consistently, transfer of an
employee and in particular a Government
employee has been held to be an incident
of service, which does not affect any of
his legal rights whatsoever.

20. Initially, in E. P. Royappa Vs.
State of Tamilnadu AIR 1974 SC 555
the Apex 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.

21. 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.

22. 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.

23. 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.

24. In Gujarat Electricity Board
Vs. Atmaram Sungomal Poshani AIR
1989 SC 1433, the Apex Court further
said that transfer from one place to
3 All] Satish Pal V. State of U.P. and others
853
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.

25. 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."

26. In the said judgment of Shilpi
Bose 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)

27. 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."

28. 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
not interfere with the transfer orders
unless there is a violation of some
statutory rule or where the transfer order
was mala fide.
854 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
29. 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....."

30. 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."

31. 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.

32. 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."

33. 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."

34. 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...."

35. 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 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
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
3 All] Satish Pal V. State of U.P. and others
855
continue at same place as long as he
desire.

36. Noticing distinction in respect to
the transgression of civilian employee or
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."

37.

Considering
J.K.
Bansal
(supra), a Division Bench of this Court in
Special Appeal No. 1296 of 2005
(Guljar 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."

38. 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.

39. 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
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
856 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
public servant is transferred from his
present posting. Ordinarily the Courts
have no jurisdiction to interfere with the
order of transfer."

40. 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.

41. 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.

42. 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.

43. 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.

44. 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,
vviolation 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.

45. 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
approach the higher authorities in the
Department.
3 All] Satish Pal V. State of U.P. and others
857
46. 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."

47. 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."

48. 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."

49. 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.

50. 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."

51. 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."

52. In Gulab Singh (supra) and
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
858 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
transfer policy or executive instructions
does not give a legally enforceable right
to challenge an order of transfer.

53. 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
from one place to another, which does not
require any special purpose; the other
reasons include necessity of a particular
3 All] Satish Pal V. State of U.P. and others
859
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."

54. It further held :