Dismissed

Vijay Kumar Yadav v. State of U.P. and 3 Others

Allahabad HC25 Oct 2018WRIA/22850/2018

Case brief

AI extract

What is this about?

This writ petition challenged a transfer order issued by the Chief Engineer of Purvanchal Vidyut Vitran Nigam Ltd. The court held that transfer orders issued by competent authorities within the same district are valid and not subject to judicial review unless malafides or statutory violations exist. The petitioner was directed to join the new post.

What did the court decide?

Relief of quashment rejected; petitioner directed to undertake joining new posting and allowed to make representation thereafter within 4 months.

Vijay Kumar Yadav Vs State of U.P. and 3… — Pension and Retirement Benefits | Allahabad HC (2018)

¶1

Court No. - 16

¶2

Case :- WRIT - A No. - 22850 of 2018 Petitioner :- Vijay Kumar Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Janardan Singh,Siddhartha Srivastava Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Kapil Dev Singh Rathore

¶3

Hon'ble Ajay Bhanot,J.

¶4

The petitioner was posted as Assistant Engineer in the Tagore Town division, Allahabad, of the Purvanchal Vidyut Vitran Nigam Ltd. The petitioner has been transferred to the sub station Katehara, Hadiya, District Allahabad. The transfer of the petitioner is within the same district.

¶5

Learned counsel for the petitioner submits that the Chief Engineer does not have the power to transfer the petitioner.

¶6

Sri Kapil Dev Singh Rathore, learned counsel for the respondents submits that the competent authority to transfer the petitioner within the zone is the Chief Engineer. He relies on the office memorandum taken out by the U.P. Power Corporation Ltd. dated 31.5.2013.

¶7

No useful purpose would be served by keeping this writ petition pending in this court. With the consent of learned counsel for the parties the matter is being disposed of finally at the admission stage.

¶8

The perusal of the aforesaid office memorandum dated 31.5.2013 discloses that the authority passing the transfer order was vested with the lawful jurisdiction to transfer the petitioner.

¶9

Moreover the transfer is within the district itself. The transfer is an incident of service. The scope of judicial review in regard to transfer is limited. The order of transfer can be assailed on the limited grounds of

¶10

having been actuated by malice or in case it has been passed in violation of statutory provisions. No employee has an indefeasible right to continue indefinitely at one particular place of posting. The judicial authority is consistent. However, for the purpose of the writ petition, it would be apposite to fortify the legal narrative with good authority. The Hon'ble Supreme Court in the case of Shilpi Bose and others Vs. State of Bihar and others , reported at 1991 Supp (2) SCC 659 while considering the challenge to a transfer order held thus:

¶11

"4. In our opinion, the Courts should not interfere with a transfer Order which are 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 malafide. 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 over looked these aspects in interfering with the transfer Orders."

¶12

No mala-fides or infraction of any statutory provision has been demonstrated in this case. It is equally well settled that the transfer guidelines do not confer legally enforceable rights to an employee.

¶13

The Hon'ble Supreme Court in the case of Union of India and others Vs. S.L.Abbas , reported at (1993)

¶14

4 SCC 357 held thus:

¶15

"7. Who should be transferred where, is a matter for

¶16

the appropriate authority to decide. Unless the order of transfer is vitiated of by malafides 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. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee as a legally enforceable right."

¶17

Similar view has been taken by this Court in the case of Ram Bahadur Singh Vs. State of U.P. and others , reported at 2017 (8) ADJ 824 by holding thus:

¶18

"43. Recently, in Rajendra Singh and others v. State of U.P. and others, MANU/SC/1341/2009 : 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.

¶19

".... 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.

¶20

....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, violation 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

¶21

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 instructions 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.

¶22

..... 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 party should approach the higher authorities in the Department.

¶23

.... 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."

¶24

The courts set their face against employees who violate orders of transfer. The Hon'ble Supreme Court in the case of S.C.Saxena Vs. Union of India , reported at 2006(9) SCC 583 held thus:

¶25

"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievance. It is his duty to first report for work where he is transferred and make a representation as to what may bis personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied tht it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Manohar Lohia Hospital proves this point.

¶26

In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorizedly remaining absent from duty."

¶27

In the light of the law laid down by the Hon'ble Supreme Court in the case of S.C. Saxena (supra) , it is incumbent upon the petitioner to join his new place of posting.

¶28

In the light of the admitted facts of the case and the settled position of law, there is no infirmity in the order of transfer.

¶29

Faced with the aforesaid, learned counsel for the petitioner in his usual fairness does not dispute the settled position of law.

¶30

Learned counsel for the petitioner further submits that the petitioner does not press the relief of quashment of the transfer order in the instant writ petition.

¶31

The relief of quashment of the transfer order is accordingly rejected.

¶32

Learned counsel for the petitioner recast his reliefs. He submits that the petitioner undertakes to join his new place of posting.

¶33

In case the petitioner in the light of his undertaking joins his new place of posting, it shall be open to the petitioner to make a representation against his transfer subsequent to that date. In case such representation is made, the competent authority shall decide the same in accordance with law expeditiously preferably within a period of four months from the date of receipt of certified copy of this order alongwith copy of the representation.

¶34

The writ petition is disposed of finally with the aforesaid directions.

¶35

Order Date :- 25.10.2018/Pramod

Vijay Kumar Yadav v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Vijay Kumar Yadav v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

B.I.C. Officers Association Civil Lines Kanpur and Another Vs Union of India and Another

Vipin Kumar Vs Prathama Bank through Its Chairman, Moradabad and 2 Others

Maya Tripathi Vs Union of India and Another

Rajveer Singh Vs State of U.P. and 4 Others

Rakesh Singh Vs State of U.P. and 2 Others

Rajendra Kumar Kushwaha and Another Vs State of U.P. and 3 Others