The Allahabad High Court while relying on various judgments of the Supreme Court held that 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.
A Single Bench of Justice Kshitij Shailendra passed this order while hearing a petition filed by Vijay Bahadur Singh.
The petitioner is aggrieved by the transfer order dated 20.10.2023, whereby the State Government, on the ground of exigency of work, has transferred the petitioner from district Agra to district Saharanpur with a direction to immediately join the transferred post.
While assailing the transfer order, it has been argued that just three months ago, the petitioner was transferred from district Farrukhabad to district Agra and, therefore, the order impugned having been hurriedly passed, is seriously prejudicial to the petitioner’s interest, as he has just settled at district Agra.
Counsel for the petitioner further submitted that the petitioner is suffering from heart disease and he may be transferred to any place, either at Prayagraj or any other nearby location.
He has further contended that three posts are vacant in district Prayagraj and has also placed reliance upon an order dated 01.11.2023 passed by the Court, whereby a direction was issued to the State Government to decide the concerned petitioner’s representation and till the disposal of the representation, joining pursuant to the impugned transfer order has been stayed.
All the counsel representing the respondent side submit that the order of transfer has been passed on the ground of exigency of work and for administrative reasons and, therefore, no interference is warranted.
The Court said that it is a well settled position of law that 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”.
The Court noted that,
In Abani Kanta Ray Vs State of Orissa & others 1995 suppl (4) SCC 169 the Supreme 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.”
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 with except some cases where, inter alia, mala fide on the part of the authorities is proved.
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.
In view of above, while declining to interfere in the transfer order impugned, the Court disposed of the petition in the following terms:-
(i) The petitioner, who has already been relieved from Agra, may join the transferred post immediately.
(ii) The petitioner is permitted to file a representation before the respondent No 1, (State of U.P through Principal Secretary, Nagar Vikas Anubhag-3, Government of U.P at Lucknow), requesting his transfer to any other place based upon the availability/vacancy etc and pressing medical ground, if any, as the Court finds that transfer from district Farrukhabad to district Agra was earlier made accepting the medical unfitness of the petitioner.
(iii) The respondent No 1 shall sympathetically consider the representation and pass appropriate order thereon by the end of February, 2024, after summoning the relevant report from the concerned authorities regarding availability of the vacancy in any of the districts proposed by the petitioner.