Full Judgment
B.S. Chauhan, C.J.
1. This Writ Petition has been filed challenging the Judgment and order of the Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter called 'the Tribunal) dated 9.1.2009 passed in O.A. No. 385 of 2007 dismissing the petition which was filed against an order of transfer.
2. The facts and circumstances giving rise to this case are that the Petitioners are working as Upper Division Clerk and Assistant in Central Institute of Fisheries Technology (CIFT) at Burla Research Centre in the district of Sambalpur, wherein institute had undertaken to work on research of fisheries development. On 10.01.2006 and 14.05.2007 policy decisions had been taken by the competent authorities to close down the said research centre of CIFT at Burla. Therefore, most of its employees have to be transferred to Headquarters/ Research Centres as per the order of the competent authority vide it's letter dated 21.05.2007 (Annex.-1) and in view thereof, Petitioners had been transferred to the Headquarters at Cochin vide Order Dated 21. 5.2007 (Annex. -1). Further the policy decisions had been taken that some of the employees may be retained at Burla research centre of CIFT till shifting process is over and vide Order Dated 8.6.2007 only six persons have been retained at that Burla centre till completion of the shifting process. Thereafter, on 10.08.2007 in supersession of earlier order another order was passed transferring six employees, out of which three persons are transferred to Visakhapatnam Research Centre of CIFT and other three persons including the Petitioners are transferred to the Headquarters at Cochin. Being aggrieved Petitioners challenged the order of transfer by filing the Original Application No. 395 of 2007 before the Tribunal on the ground that Petitioners were at the verge of retirement therefore they may be transferred to any nearby places or retained at Burla. However, the said Original Application has been dismissed vide Judgment and Order Dated 9.01.2009. Hence this petition.
3. Learned Counsel for the Petitioners raised all the issues which had been agitated before the Learned Tribunal. It has been submitted that, out of that six persons, who had been retained at Burla research centre, some of them would be transferred to nearby centre and Petitioners are transferred to Kochin which is far away from Sambalpur. Therefore, Petitioners be transferred to the nearby centre and against them persons who are working in that centre be transferred to Kochin as the Petitioners are at the verge of retirement.
4. The submission made by the Learned Counsel for the Petitioners that Petitioners are at the verge of retirement is factually not correct, in view of the fact that the dates of retirement of the Petitioner No. 1 is 31.03.2011 and Petitioner No. 2 is 31.11.2012. Therefore, there is a complete fallacy in the submission that Petitioners are likely to reach the age of superannuation very soon.
5. The issue of transfer and posting has been considered time and again by the Apex Court and law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service. In any manner. The employee does not have any vested right to be posted at a particular place. (Vide B. Varadha Rao v. State of Karnataka and Ors. : (1986)IILLJ516SC ; Shilpi Bose v. State of Bihar : (1991)IILLJ591SC ; Union of India v. N.P. Thomas : (1993)ILLJ 1063 SC ; Union of India v. S.L. Abbas : (1993)IILLJ626SC ; Rajender Roy v. Union of India : AIR 1993 SC1236 ; Ramadhar Pandey v. State of U.P. and Ors. : (1993)IILLJ817SC ; N.K. Singh v. Union of India and Ors. AIR 1995 SC 425; Chief General Manager (Tel.) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee : [1995]1SCR360 ; State of U.P. v. Dr. R.N. Prasad ; Union of India and Ors. v. Ganesh Dass Singh ; Abani Kante Ray v. State of Orissa : 1995(6)SCALE41 ; Laxmi Narain Mehar v. Uniog of India : (1997)IILLJ29SC ; State of U.P. v. Ashok Kumar Saxena : 1998 CriLJ1205 ; National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan : (2001)IILLJ 1243 SC ; Public Services Tribunal Bar Association v. State of U.P. and Ors. : [2003]1SCR666 ; Pearlite Liners (P) Ltd. v. Manorama Sirsi : (2004)ILLJ 1041 SC ; State of U.P. v. Siya Ram : AIR 2004 SC4121 ; Union of India v. Janardhan Debanath : (2004)IILLJ 1057 SC ; S.C. Saxena v. Union of India and Ors. (2006) 9 SCC 583; Mohd Masood Ahmad v. State of U.P. and Ors. : (2007)8SCC150 ; and Tejshree Ghag and Ors. v. Prakash Parashuram Patil and Ors. : AIR 2007 SC2141 )
6. An employee holding a transferable post cannot claim any vested right to work at a particular place as the transfer order does not affect any of his legal rights and the Court cannot interfere with a transfer/posting which is made in public interest or on administrative exigency. In Gujarat Electricity Board v. Atmaram Sungomal Poshani : (1989)IILLJ470SC , the Supreme Court has observed as under:
Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident Of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration.
7. In Union of India v. H.N. Kirtania : (1989)IILLJ585SC , the Apex Court observed as under:
Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of malafide.
8. In Union of India v. S.L. Abbas (supra) the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order Is alleged to have been passed by malice or where it is made in ' violation of the statutory provisions.
9. Similar view has been reiterated by the Supreme Court, in Bank of India v. Jagjit Singh Mehta : (1992)ILLJ329SC , observing that the terms incorporated in the transfer policy for posting of both the spouses, if in service, at the same place, require to be considered by the authorities 'along with exigencies of administration' and 'without any detriment to the administrative need and claim of other employees'.
10. In State Bank of India v. Anjan Sanyal : (2001)ILLJ 1687 SC the Apex Court held as under:
4. An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.
11. In S.C. Saxena v. Union of India and Ors. (2006) 9 SCC 583, the Apex Court depricated the practice of approaching the Court by the Government employees against transfer order rather joining at the transferred place.
12. In Government of Andhra Pradesh v. G. Venkata Ratnam : (2008)9SCC345 , the Supreme Court deprecated the view taken by the High Court interfering in transfer matter merely on the basis of some extraordinary achievements highlighted by the respondent-employee. The Apex Court held that it is not for the Court to consider where Respondent would be more suited. Such an approach is rather unusual and strange as no employee can be permitted to choose his own place of posting. Thus the Apex Court found the Judgment of the High Court wholly untenable and observed that the High Court had not only lost judicial poise and restraint but also arrived at completely unfounded conclusions. The High Court seems to have been completely taken in by the ipse dixit of the respondent-employee, and the transfer order could not be found as lacking bona fides on flimsy and fanciful pleas. There must be factual foundation and sufficient materials to prove that the pleas taken by the employee are tenable and well rounded and unless the transfer order suffers from violation of any statutory rules or could be described as mala fide, no interference is called for.
13. Thus, it is clear that the transfer policy does not create any legal right in favour of the employee. It is settled law that a Court/Tribunal can entertain a case only for enforcing the statutory or legal right or when there is a complaint by an employee that there is a breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable legal right for the enforcement of which legal proceedings can be resorted to. The Court/Tribunal can enforce the performance of a statutory duty by public bodies through its jurisdiction at the behest of a person, provided such person satisfies the Court that he/she has a legal right to insist on such performance. The existence of the-said right is a condition precedent for invoking the Court's jurisdiction. (Vide Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal and Ors. : AIR 1962 SC1044 ; Mani Subrat Jain and Ors. v. State of Haryana : [1977]2SCR361 ; State of Kerala v. Smt. A. Lakshmi Kutty : [1987]1SCR136 ; State of Kerala v. K.G. Madhavan Pillai and Ors. : AIR 1989 SC49 ; Krishan Lal v. State of J and K : (1995)IILLJ718SC ; State Bank of Patiala and Ors. v. S.K. Sharma : (1996)IILLJ296SC ; Rajendra Singh v. State of M.P. : AIR 1996 SC2736 ; Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors. : AIR 1998 SC3104 ; Utkal University v. Dr. Nrusingha Charan Sarangi and Ors. : [1999]1SCR19 ; State of Punjab v. Raghbir Chand Sharma and Anr. : AIR 2001 SC2900 ; and Sadhana Lodh v. National Insurance Co. Ltd. and Anr. : [2003]1SCR567 .
14. In Shilpi Bose (supra), the Apex Court has held that order of transfer/posting 'issued by the competent authority did not violate any of her legal right.' The employee holding a transferable post cannot claim any vested right for his/her posting at a particular place.
15. In State of U.P. and Ors. v. Gobardhan Lal : (2004)IIILLJ749SC , the Apex Court held as under:
A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or tribunals as though they are Appellate authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
(Emphasis added)
Similar view has been reiterated by the Apex Court in State of U.P. v. Siya Ram : AIR 2004 SC4121 ; and Major General J.K. Bansal v. Union of India and Ors., : AIR 2005 SC3341 .
16. In view of the above, the legal position can be summersied that transfer is a condition of service. It does not adversely affect the status or emoluments or seniority of the employee. The employee has no vested right to get a posting at a particular place. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. There is a very little scope of Judicial review by the Court/Tribunal against the transfer order and only if it is found to be, in contravention of the statutory Rules or for mala fide that the Court can interfere. This is for the reason that a transfer order does not violate any legal right of the employee.
17. It is a unique case where the Research Centre itself has been closed down in view of the policy decision taken by the employer. The transfer of the present Petitioners is not even in an ordinary circumstances, but under the compelling circumstances. As there would be no work available for them, it was open for the employer even to retrench these Petitioners. However, it has taken a lenient view and transferred the Petitioners' service to other suitable place. It is not contended by the Learned Counsel for the Petitioners that the transfer order is in violation of any statutory provisions or is a product of malice. The entire argument has been advanced on the ground of personal inconvenience of the employees, which cannot be a ground for interference by the Court in view of the Judgment of the Apex Court in State of M.P. and Anr. v. S.S. Kourav and Anr. AIR 995 SC 1056.
18. In such a fact-situation we do not see any cogent reason to interfere in the matter, taking into consideration the aforesaid legal propositions and law of transfer in service jurisprudence. The Writ Petition lacks merit and is accordingly dismissed.
B.N. Mahapatra, J.
I agree.