Rajendra
Singh Vs. State of U.P.& Ors. [2009] INSC 1351 (31 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4975 OF
2009 (Arising out of SLP) No. 16307/2007) Rajendra Singh etc.etc. ...Appellants
Versus State of U.P. & Ors. ...Respondents With CIVIL APPEAL NO.4976 OF
2009 (Arising out of SLP) No. 18428/2007) JUDGEMENT R.M. Lodha, J.
1.
Leave granted.
2.
These two appeals are directed against the Judgment and Order
passed by the High Court of Allahabad at Lucknow on August 22, 2007 whereby the
High Court although upheld the order of the transfer of Karvendra Singh
(hereinafter referred to as, "Writ Petitioner") but quashed the order
of transfer of Rajendra Singh (hereinafter referred to as, "Respondent No.
5"). Both, Writ Petitioner and Respondent No. 5, are aggrieved by the
order of the High Court and hence, these two appeals by special leave.
2. The
Writ Petitioner and Respondent No. 5 are in the revenue service of the State of
Uttar Pradesh. Both of them are Sub-Registrar. By an Office Order dated July
31, 2007 issued by I.G. Registration, Writ Petitioner, working as
Sub-Registrar, Ghaziabad has been transferred to Hapur-II while Respondent No.
5, working as Sub-Registrar, Hapur-II has been transferred to Ghaziabad-IV. The
transfer order dated July 31, 2007 came to be challenged by the Writ Petitioner
before the High Court of Allahabad, Bench Lucknow. While challenging the
legality of the transfer order, Writ Petitioner set up the grounds that he
joined as Sub-Registrar, Ghaziabad, Sadar-IV only a month back; that the
transfer order has been issued on the complaint of one Radhey Lal, Sanyojak
Dalit Morcha Sangharsh Samiti, Lucknow and that the order of transfer was
arbitrary, stigmatic and suffers from non-application of mind. The Writ
Petitioner also set up the case that Respondent No. 5, who has been 2
transferred in his place as Sub-Registrar, Ghaziabad-IV did not have good
service record; that there was vigilance enquiry pending against Respondent No.
5 on charges of corruption and that his service record bears adverse entry in
the year 2005.
3.
Respondent No. 5 as well as the State Government vehemently
opposed the writ petition. On behalf of the State Government, it was submitted
that although a complaint came to be received from one Radhey Lal against the
Writ Petitioner but Ghaziabad-IV being an important Sub-District from the point
of view of registration of deeds/instruments as well as revenue collection, the
transfer of Writ Petitioner from Ghaziabad-IV to Hapur-II was done on
administrative grounds. The State Government emphatically refuted the
allegation of mala fides and denied that the order of transfer was stigmatic or
punitive.
4.
Respondent No. 5 filed a separate counter affidavit in opposition
to the writ petition. He set up the plea that he has rich experience as
Sub-Registrar having worked at places such as Allahabad, Kanpur, Varanasi and
Ghaziabad. He stated that vigilance enquiry against him has been closed and his
appeal 3 against the adverse entry made in his service record in 2005 is
pending and that pending disposal of that appeal, no effect has been given to
the said adverse entry.
5.
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].
6.
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.
4 In the
case of Shilpi Bose (Mrs.) & Ors. v. State of Bihar & Ors.1, this Court
held :
"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."
7.
In N.K. Singh v. Union of India & Ors.2, this Court reiterated
that the scope of judicial review in matters of transfer of a Government
Servant to an equivalent post without adverse consequence on the service or
career prospects is very limited being confined only to the grounds of mala
fides or violation of any specific provision.
8.
Insofar as the transfer of Writ Petitioner from Ghaziabad-IV to
Hapur-II is concerned, the High Court found that the transfer order has not
affected his service conditions 1 AIR 1991 SC 532 2 (1994) 6 SCC 1998 5 and pay
and other benefits attached to the post which was held by him. As a matter of fact,
the High Court did not find any flaw in the transfer of the Writ Petitioner
from Ghaziabad-IV to Hapur-II. As regards Respondent No. 5, the High Court
considered the matter thus :
".................in
our view, it is evident that the respondent No.
5 also cannot
be said to be an Officer having a better conduct and integrity in comparison to
the petitioner justifying his posting at Ghaziabad and in this regard, it
appears that I.G. (Stamps) did not give correct information to the Principal
Secretary. However, it can not be held that the respondent No. 1 in passing
order dated 31st July, 2007 has acted maliciously or for extraneous reasons
amounting to malafide. Once the basic ground of challenge to the impugned order
of transfer that the same is malicious in law falls, we do not find any reason
to interfere with the impugned order of transfer, transferring the petitioner
from Ghaziabad to Hapur. It is not the case of petitioner that his transfer is
contrary to rules or has been issued by an authority who is not competent. It
is well settled that an order of transfer is amenable for judicial review on
limited grounds namely it is contrary to rules or has been passed an
incompetent authority or is a result of malafide. In view of admission on the
part of the respondent No. 1 in his Counter Affidavit that the respondent No. 5
has been found guilty of serious misconduct for causing loss to the Government
revenue by acting without jurisdiction and colluding evasion of stamp duty, in
our view transfer of the respondent No. 5 to Ghaziabad can not be sustained in
view of further admission on the part of the respondent No. 1 that the interest
of department requires posting of an honest and efficient person at
Ghaziabad."
9.
It is difficult to fathom why the High Court went into the
comparative conduct and integrity of the petitioner and Respondent No. 5 while
dealing with a transfer matter. The 6 High Court should have appreciated the
true extent of scrutiny into a matter of transfer and the limited scope of judicial
review.
Respondent
No. 5 being a Sub-Registrar, it is for the State Government or for that matter
Inspector General of Registration to decide about his place of posting. As to
at what place Respondent No. 5 should be posted is an exclusive prerogative of
the State Government and in exercise of that prerogative, Respondent No. 5 was
transferred from Hapur-II to Ghaziabad- IV keeping in view administrative
exigencies.
10.
We are pained to observe that the High Court seriously erred in
deciding as to whether Respondent No. 5 was a competent person to be posted at
Ghaziabad-IV as Sub- Registrar. The exercise undertaken by the High Court did
not fall within its domain and was rather uncalled for. We are unable to
approve the direction issued to the State Government and Inspector General of
Registration to transfer a competent officer at Ghaziabad-IV as Sub-Registrar
after holding that Respondent No. 5 cannot be said to be an officer having a
better conduct and integrity in comparison to the petitioner justifying his
posting at Ghaziabad-IV. The High Court entered 7 into an arena which did not
belong to it and thereby committed serious error of law. The only question
required to be seen was whether transfer of Respondent No. 5 was actuated with
malafides or otherwise in violation of statutory rules. The transfer of
Respondent No. 5 was not found to suffer from any of these vices. The High
Court went into the competence and suitability of Respondent No. 5 for such
posting. It is here that the High Court fell into a grave error. As a matter of
fact, the impugned order of the High Court casts stigma in the service of
Respondent No. 5 which may also act prejudicial to his interest in the pending
appeal against the adverse remarks.
11.
We may also observe that transfer of the Writ Petitioner from
Ghaziabad-IV to Hapur-II cannot be said to be stigmatic and any observation
made in the impugned order about the work and conduct of the Writ Petitioner
shall not be read adversely by the authorities against the Writ Petitioner.
12.
Consequently, the order dated August 22, 2007 passed by the High
Court quashing the transfer of Respondent No. 5 from Hapur-II to Ghaziabad-IV
is set aside. Appeal of Rajendra Singh is allowed while appeal of Karvendra
Singh 8 stands dismissed with clarification as indicated above. The parties
shall bear their own costs.
........................J (Tarun Chatterjee)
........................J (R. M. Lodha)
New Delhi
July 31, 2009.
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