R.C. Gandhi, J.
1. Petitioners, by means of all these petitions, have challenged the impugned transfer orders, passed by the respondents. These petitions having common facts and law are being decided by this common order.
2. The impugned transfer orders have been challenged on the grounds that the transfer has caused hardship to the petitioners as their children are minor and school going and there are no member in the family to look after them. The respondents impugned action of transferring the petitioners is mala Tide and arbitrary. The petitioners have been transferred to a place which is at a long distance. Policy of transfer/posting had not been adhered to by the respondents. Transfers have been made in mid-session of the school. In some of the petitions, it is averred that they have been transferred on complaint filed by the outsider against the petitioners, without holding an inquiry therein. The Election Commissioner has banned the transfers by an explicit order. The original order was challenged and the court granted interim stay order. The respondents have withdrawn the transfer orders to frustrate the cause of the petitioners and adjudication before the Court and passed another order posting the petitioner at another place where there is no post available for joining as the employee posted vice the petitioner has already joined. The transfers have been made even within one and a half month, one year or two years. No public interest or administrative exigency has been shown in the transfer orders. Some petitioners have pleaded in their petitions mala fide against the Minister and the Authorities of the State but they have not been arrayed as party-respondents. In some cases, transfers are shown to have been made at the request of the petitioners whereas no such request was made by them. Despite post available at the place, from where the petitioners have been transferred or in the nearby district, the petitioners have been posted to other place or far away from district. State Government has not framed the Rules for transfer of the employees. Though, the ban was imposed by the respondents on transfers and postings, which was relaxed only from 15.6.2006 to 15.7.2006 vide order No. P.4(4) GA/2/99 dated 15th June, 2006 yet the transfer orders which have been issued during ban period. The petitioners serving in Panchayat Raj Department on the Establishment of District Cadre have been transferred outside the District Cadre in violation of Section 89 of Panchayat Raj Act, 1994 (hereinafter to be referred as 'Act of 1994) which indicates that the respondents have enacted this provision to create a service designated as the Rajas-than Panchayat Samiti and Zila Parishad Service and recruitment thereto shall be made district-wise and the transfer can not be made outside the district cadre.
3. It is also one of the grounds set out in the petitions that the Tribunal has maintained the subsequent order of transfer on the ground that once the transfer order is cancelled, subsequent order passed by the respondents cannot be assailed. The mother of the petitioner is ailing and the transfer order was issued on the representation, which has also been cancelled. The petitioner in one of the petition has taken the ground that the petitioner is likely to be promoted and the transfer order has been issued to frustrate his promotion. In few petitions, the ground taken is that they have been transferred within one month twice or thrice prematurely to accommodate the respondents and their orders have been issued awaiting posting but they have not challenged the basic order. In two petitions, the ground is set out that they have been transferred from one Municipal Board to another Municipal Board without their consent but no challenge to the Section 310-A of the Rajasthan Municipality Act, 1959 has been made in these petitions. The common grounds for their transfers to a larger distance has been taken in many petitions, the spouses' are already working at distant places. In some cases, petitioners have not been permitted to join despite transfer orders. One of the petitioners has stated that she has filed complaint against his superior officer and she has been transferred as a measure of vengeance. In one of the petitions, the transfer order has been issued at the instance of the Minister. The respondents, in their reply before Service Appellate Tribunal, have admitted this fact. The order impugned before the Tribunal was cancelled and within 10 days another transfer order has been issued. It is the grievance projected by a few petitioners that they have been transferred despite the fact that they are to retire within one year. In some of the petitions, it is stated that they were appointed on compassionate ground and still they have been transferred outside the District in violation of the policy framed by the State which provides that such an employee shall be posted in the District. In some petitions, the petitioners have been transferred despite stay granted by the courts by canceling the impugned orders.
4. The petitioner was transferred at his request as his mother was ailing but again has been sent back without assigning any reasons. Another petitioner has been transferred from Sikar to Jalore while his father was suffering from Asthma. However, the petitioner has admitted that he has been working at Sikar since last 13 years. Petitioner has been transferred five times in eight months and his age is 52 years. Another petitioner has been transferred four times in pre-mid session while marriage of the son is fixed in February, 2007. One of the petitioner pleaded that he has been posted where there is no vacant post. Petitioner has been transferred where there were three posts available to accommodate the petitioner, the higher Officer has also requested the adjustment of the petitioner against one of the three post.
Petitioner has been transferred on 22.5.2006, 5.7.2006, 10.8.2006 and lastly on 22.8.2006 and have been kept awaiting posting order.
5. The petitioner Conductor was transferred on 17.11.2005, 19.12.2005 and 25.3.2006, it is shown in the transfer order that he has been transferred on his request on 25.3.2006., which is not borne out from the record of the respondents. However, lastly petitioner has been transferred on 25.6.2006.
6. Petitioner has not been transferred to nearby district according to the policy of the Government.
7. The transfer orders have also created analogous situation where two persons are working and the transfer has been made without availability of the post.
8. The transfer order has the effect of reversion of the petitioner to the post of Lower Division Clerk from Upper Division Clerk. Petitioner has been shown as LDC by mistake in the transfer order but he has been posted as UDC. This is just a mistake in using the word as the petitioner is a ODC and has been posted against the post of UDC.
9. Petitioners-Doctors are husband and wife and both have been transferred by the Collector which has been challenged on the ground that the Collector has no jurisdiction. It is admitted by the respondents that the Collector has no jurisdiction but subsequently another order has been issued whereby they have been transferred back. No cause survives, as the impugned order has been recalled. In one of the petitions, the Doctor has been transferred by Chief Medical and Health Officer being bereft of jurisdiction It is also admitted by the respondents that the Chief Medical & Health Officer has no such jurisdiction. Thus, the petitioner is allowed to work and the impugned order is set aside.
10. A Class-IVth employee has been transferred outside the district in contravention of Circular of the Government which prescribes that Class-IVth employee ordinarily shall not be posted outside the district. It is also stated by one of the petitioners that though the respondent has been transferred against the post of the petitioner but no posting order is issued for transfer of the petitioner.
11. A Junior Accountant has been transferred at the instance of an MLA concerned and the letter of the MLA belonging to Ruling Party has been annexed with the writ petition.
12. In another petition, the petitioner has stated that he needs four months' time to stay at his place of posting as his daughter is preparing for Pre-Medical Test. Four months, by now, has elapsed as the petitioner was transferred in the month of June, 2006. This petition is dismissed on this ground.
13. Petitioner was transferred on 18.1.2004, 6.9.2004, 15.7.2005 and 4.7.2006 to Tonk and on 15.7.2006 from Tonk to Bikaner, it is a perfect case of frequent transfers.
14. Petitioner has stated that he has two years to retire. He is working as UDC and has been posted as LDC. Respondents rectified this mistake of showing the petitioner as LDC and has been posted as UDC. His grievance to that extent stands redressed. His further submission is that the post is available nearby but he has been shifted to a far of place. To this averment, respondents have stated that the petitioner has been staying against the said post since five years and was required to be transferred.
15. Petitioner has stated that his son and father met with an accident. His wife is a Nurse. The wife, mother of the child, is already posted nearby as stated by the respondents.
16. Petitioner Teacher Gr. II has been transferred from Chhabra, Baran by the District Education Officer. Respondents, in their reply, have submitted that the petitioner has not challenged the transfer order but challenged the relieving order. Unless the transfer is challenged, the writ petition is not maintainable and no relief can be granted unless transfer order is quashed which has not been challenged.
17. Petitioner, an elected Vice Secretary of the Khadi Board, has been transferred by the Secretary, Khadi Board who has no jurisdiction as the post is only in Head Office whereas he has been posted as Manager. Respondents, in their reply, have stated that despite the transfer order, the petitioner shall be permitted to stay against the post of Vice Secretary till reelection, his grievance, therefore, stood redressed.
18. Petitioner, a Junior Accountant, has been posted in the Social Welfare Department by the Director, Treasury and Accounts. He has been transferred by the Director, Social Welfare Department to Mentally Retarded Hospital. It is stated at the Bar by learned Counsel for the respondents that the impugned order has been withdrawn. The writ petition, therefore, has rendered infructuous.
19. Petitioner, a Lady Para-Teacher was embarrassed by the Headmaster. She was transferred on 7.5.2005 keeping in view the administrative control of the said Headmaster. She again has been transferred vide impugned order and put under the control of the same Headmaster.
20. The petitioner has submitted that two years before i.e 15.7.2004, he was transferred. He challenged that order before the Tribunal which was stayed. The respondents passed second order on the same day and relieved the petitioner. The respondents have admitted this mistake at the bar.
21. Petitioner, a Class-IVth employee, has been appointed in Social Welfare Department on compassionate ground on 20th April, 2002 and posted at Sikar on 9.7.2004. He was transferred to Jaipur on 26.10.2005 and from Jaipur to some other office at Jaipur. Now vide impugned order, he has been transferred on 14.7.2006 from Jaipur to Jaisalmer which is about 800 km away from Jaipur. His submission is that once a person is appointed on compassionate ground, he cannot be posted outside the district.
22. Respondents have filed their reply in some of the petitions and submitted at the bar that the reply filed therein may be treated and read as reply to the other petitions as well wherein the reply has not been filed. It has been permitted by the court. The respondents, in their reply, have submitted that the impugned transfers have been made in public interest and for administrative exigencies. There is no malice for effecting transfers on the part of the respondents. The petitioners' transfers are an exigency of service and an employee is bound to serve wherever he is posted by the employer. The hardship pleaded is no ground for not transferring an employee, which is an ingredient part of the service. An employee, while accepting service, is aware that he/she could be transferred/posted at any place in the State. The policy of posting the employees outside the District at a distance place, is not statutorily enforceable in the court of law. The respondents have a right to transfer an employee on a complaint or mis-behaviour. No transfer has been made in violation of any order passed by the Election Commissioner banning impugned transfers. The original transfer orders have been cancelled in public interest, as the public office was vacant because of the stay granted by the Court and has been made functional in public interest. If any employee has been transferred and not permitted to join, he shall be provided posting. The allegations of malafide and arbitrariness can be taken into consideration by the Authorities but no such representation has been received. Persons against whom the allegations have been leveled have not been arrayed as party-respondents, therefore, such allegations cannot be inquired into and proved at his back. Employees who have been transferred on their requests, if it is found factually incorrect, such cases can be looked into by the respondents. Respondents have exercised the power of transfers of the employees working in Panchayat Raj Department in terms of Sub-Section 8A of Section 89 of the Act of 1994.
23. Heard learned Counsel for the parties and perused the record.
24. Learned Counsel for the petitioners have submitted that the respondents have not framed the Rules for transfer of the employee. In rebuttal, learned Counsel for the respondents have submitted that Sub-section 8A of Section 89 of the Panchayati Raj Act, 1994 (hereinafter called as the 'Act of 1994) read with Rule 20 of Rajasthan Service Rules (Volume I) contains provision of transfer of a government servant. For convenience, they are extracted below and read as under:
(8A) Notwithstanding anything contained in Sub-section(8), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti whether within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from a Panchayat Samiti to Zila Parishad or from a Zila Parishad to a Panchayat Samiti, and may also stay the operation of, or cancel, any order of transfer made under Sub-section (8) or the rules made thereunder:
Rule 20. Transfer of Government servant: (a) Government may transfer a Government servant from one post to another; provided that except:
(i) on account or inefficiently or misbehaviour,
or
(ii) on his written request,
a Government servant shall not be transferred substantively to, or, except in a case covered by Rule 50 appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds lien or could hod a lien had his lien not been suspended under Rule 17.
25. The plea of the learned Counsel for the petitioners that the respondents have not framed the Rules for transfer of employees has no substance and is rejected in view of the aforesaid provisions of law.
26. Order dated 15.6.2006 has been issued by the respondents whereby ban was relaxed for a period of one month i.e. from 15.6.2006 to 15.7.2006. The transfers have been effected during this period and also before and after this period. It is submitted by learned Counsel for the petitioners relying upon the order dated 15.6.2006 that it was the duty of the Authorities of the State who issued the impugned orders to behave like public servant and adhere to the orders of the Government.
27. Imposing ban on transfers and postings by the respondent/State is a matter of administrative convenience. The order of imposing ban is in the form of instructions to the Authorities of the State to be complied with. It has no statutory force. The respondents have exercised their power of transferring the employees in terms of the Rules. The administrative instructions cannot be a substitute of statutory law or the rule, therefore, transfers effected without adhering to the instructions of the Government cannot be said to be a violation of the service condition. The respondents/authorities of the State and the Government have the power vested in them under the Rules to exercise it in public interest and keeping in view the exigencies of service. Dealing with such proposition, that the transfers have been made in violation of the executive instructions or orders as the case herein pleaded by the petitioners herein, the Apex Court in case title Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. reported in : (1991)IILLJ591SC held as under:
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 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 over looked these aspects in interfering with the transfer orders.
28. So far as the plea of the learned Counsel for the petitioners that they have been put to great harassment by transferring them to far off places and that too in mid term session prematurely and within two years of superannuation though the posts were available at the places from where they have been transferred and the respondents could have accommodated the petitioners against vacant posts, is also not sustainable as the transfer is an exigency of service and the petitioners cannot dictate the employer for his posting at a particular place or at a nearer distance or the petitioners have difficulties because of their children are minor and school going. It is the prerogative of the employer to post his employees wherever their services are required in public interest In similar circumstances the Apex Court while discussing the plea of the State of Panjab and Ors. v. Joginder Singh Dhatt reported in : AIR1993SC2486 wherein the High Court allowed the writ petition on the ground that it was mid term transfer and within two years of the superannuation, was reversed by the Supreme Court allowing the Civil Appeal preferred by the State of Punjab, observing as under:
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 public servant is transferred from his present posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused
29. The malafide as pleaded by the petitioners also cannot be taken into consideration as the concerned Minister/Authority of the State/MLA has not been arrayed as party respondents. No observation and finding can be recorded in their absence. Allegations of malice has been leveled without supporting material and the court is unable to record any finding bereft of supporting evidence. Dealing with such situation, the Apex Court in case title State of U.P. and Ors. v. Gobardhanlal & D.B. Singh v. D.K. Shukla and Ors. reported in : (2004)IIILLJ749SC , while maintaining the transfer order observed as under:
It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. 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. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. 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. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also 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.
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 or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
30. The plea of the learned Counsel for the petitioners that the respondents have not adhered to their policy for posting of husband and wife at one station. This policy is not having statutory force and cannot be enforced in the Court of law as observed by the Supreme Court in case title Bank of India v. Jagjit Singh Mehta reported in : (1992)ILLJ329SC held as under:
No doubt, the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.
31. The plea of learned Counsel for the petitioners that the respondents have created a district service under Section 89 of the Act of 1994 and they cannot be transferred to other services. In some of the petitions, the petitioners are the employees of the District Cadre and their transfer to another District Cadre service is not sustainable. Section 89 and Sub-section 8(ii) of the Act of 1994 has been pressed into service to make out that the transfers have to be made by the competent authority after consultation of the Pradhans or the Zila Pramukhs as the case may be, of the Panchayat Samiti/Zila Parishad and from and to where transfer is proposed to be made. For convenience, Section 89 of the Act of 1994 is extracted below and reads as under:
(89) Constitution of the Rajasthan Panchayat Samiti and Zila Parishad Service -
(1) There shall be constituted for the State a service designated as the Rajasthan Panchayat Samiti and Zila Parishad Service and hereinafter in this section referred to as the service and recruitment thereto shall be made district wise.
(2) The service may be divided into different categories, each category being divided into different grades, and shall consist of
(i) village level workers;
(ii) Gramsevikas;
(iii) [Primary and Upper Primary School] teachers; and
(iv) ministerial establishment (except Accountants and Junior Accounts).
(3) The State Government may encadere in the service any other category or grade of officers and employees of Panchayat Samitis and Zila Parishads and not included in Class IV Services.
(4) The State Government may prescribe the duties, functions and powers of each grade and each category of officers and employees encadred in the service.
(5) All appointments to posts in the service shall be made-
(a) by direct recruitment; or
(b) by promotion; or
(c) by transfer.
(6) Appointment by direct recruitment shall be made by a Panchayat Samiti or Zila Parishad, as the case may, in accordance with the rules made in this behalf by the State Government, from out of the persons selected for the posts in a grade or category in the district by the District Establishment Committee referred to in Sub-section (1) of Section 90.
(7) The Appointing Authority may, so long as selection is not made by the District Establishment Committee or selected persons are not available for appointment, make appointments in the prescribed manner on a temporary basis for a period not exceeding six months and the said period may be extended only after consultation with the District Establishment Committee.
(8) Appointment by -
(i) Promotion shall be made by the Panchyat Samiti or the Zila Prishad, as the case may, in the prescribed manner from amongst the persons whose names have been entered in the list prepared by the District Establishment Committee; and
(ii) transfer shall be made after consultation with the Pradhans or the Pramukhs, as the case may be, of the Panchayat Samitis or the Zila Parishads from and to which such transfer is proposed to be made.
32. Section 89 has been enacted to crate and regulate a service. Sub-section 8 deals with appointments against the posts of the service. Sub-section 5 deals with mode of appointment. Sub-section 6 deals with direct appointment and Sub-section 7 is procedural whereas Sub-section 8(i) deals with appointment by promotion and Sub-section 8(ii) appointment by transfer in consultation with Pradhans or the Pramukhs of one Panchayat Samiti or Zila Parishad to another as the case may be. It has nothing to do with the transfer of an employee. The provision for transfer of the employees is contained in Sub-section 8A of the Act of 1994 which reads as under:
(8)(A) Notwithstanding anything contained in Sub-section(8), the State Government may transfer any member of the service from one Panchayat Samiti to another Panchayat Samiti whether within the same district or outside it, from one Zila Parishad to another Zila Parishad, or from a Panchayat Samiti to Zila Parishad or from a Zila Parishad to a Panchayat Samiti, and may also stay the operation of, or cancel, any order of transfer made under Sub-section (8) or the rules made thereunder:
33. By virtue of Sub-section 8A of Section 89 of the Act of 1994, the State Government has been vested with power to transfer any member of the service.or Panchayat Samiti to any other Panchayat Samiti or Zila Parishad or within the same district or outside it. This provision of law further transpires that the Government can also stay the operation of, or cancel, any order of/ transfer/ which means order of appointment by transfer.
34. There is glaring anomaly in the Rules. When Sub-section 8 is read with Sub-section 8A appointment by promotion and appointment by transfer which are recognized mode of appointment to service, in the Rules, no power has been specifically and expressly vested with the appointing authority to transfer an employee in terms of Section 89. Sub-section 8A only deals with the transfers. There is no substance in the plea of the leaned counsel for the petitioners that Section 89(8)(ii) deals with transfers. Sub-section 8 contains opening word 'Appointment by - '. Two separate modes of appointment have been suggested by means of Sub-section 8(i) and Sub-section 8(ii). It does not deal with simplicitor transfer. It deals with appointment by transfer after consultation with the Pradhans or the Pramukhs, as the case may, of the Panchayat Simitis or the Zila Parishads. However, Sub-section 8A which opens with the words 'Notwithstanding anything contained in sub-section (8)....'
35. Thus, the State Government has power to transfer an employee from Simiti to another Panchayat Simiti from Zila Parishad to Panchayat Simiti and by vice versa. No power to any authority of the State has been vested for transferring by an employee under Sub-section 89(8)(ii). The impugned orders have been issued by the Government and the Government has absolute power to make such transfers in exercise of power contained in Section 89(8A).
36. The judgment relied upon by both the sides has been reported in : AIR2003SC3849 State of Rajasthan and Ors. v. Anand Prakash Solanki deals with the transfer from one district forum to another district forum. Similar proposition of law has been decided by the Apex court observing as under:
It is true that there is no cadre as such of the Presidents and the members of the District for a contemplated by the Act and this the principal consideration which has prevailed with the High Court for holding that the President and members of District for a are not liable to be transferred inasmuch as there is no single cadre of such persons in the State. We cannot subscribe to that view. The existence of one cadre is not essential and is not the sine qua non to make available the power of transfer. As District for a, more than one, are constituted within the State, there is nothing wrong in the President or members of one District Forum being appointed by transfer to another District Forum, subject to the requirement of Sub-section (1-A) of Section 10 being satisfied. Such appointment by transfer shall be made by the State Government but only on the recommendation of the Committee consisting of the President of the State Commission and tow secretaries i.e the Committee composed as per Sub-section (1-A) of Section 10. Such appointment by transfer cannot be a frequent or routine feature. The power is there but is meant to be exercised sparingly and only in public interest or in such exigencies of administration as would satisfy the purpose of constituting the District Forum. The broader concept of 'transfer' is a change of the place of employment within an organization. Transfer is an incidence of public service and the power to transfer is available to be exercised by the employer unless an express bar or restraint on the exercise of such power can be spelt out. The power, like all other administrative powers has to be exercised bona fide.
37. However, it was a case of appointment by transfer and not simplicitor transfer whereas the case in hand is simplicitor of transfer, it involved rights of the employee such as seniority and dislocation. However, the circular is not having binding force and the petitioners cannot claim as a matter of right to remain posted within the District. In case title State of U.P and Ors. v. Gobardhanlal & D.B. Singh v. D.K. Shukla and Ors. reported in : (2004)IIILLJ749SC , the Supreme Court while allowing and maintaining the transfer order observed in paragraph No. 7 as under:
7. It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. 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. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. 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. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also 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.
38. This view has been reiterated in case title Chief General Manager, (Telecom) N.E. Telecom Circle and Anr. v. Rajendra Ch. Bhattacharjee and others reported in : [1995]1SCR360 , the court in para 7 observed as under:
It is needless to emphasize that a government employee or any servant of a Public Undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala, therefore, there was no justification for the Tribunal to set aside the respondent's transfer to Dimapur.
39. The plea of learned Counsel for the petitioners is that the petitioners are facing hardship one way or the other because of their children studying, suffering from ailment or the parents are suffering. The learned Counsel for the respondents has submitted that the Apex Court has pronounced time and again that the transfers are made taking into consideration the exigencies of service and the employees are aware since the time of joining of service that he/she may be transferred by the employer to a place where it suits to the employer. No doubt, the employer has to see welfare of the employee but to the extent possible. If such an employee feels that he is unable to move he may well proceed on leave making out a case for grant of leave, or file a representation before the respondents to consider his grievance. The Supreme Court while dealing with similar case title Gujrat Electricity Board & Anr. v Atmaram Sungomal Poshani reported in AIR 1989 SC 1433, where the respondent Atma Ram Sungomal Poshani was appointed as Technical Assistant and thereafter promoted to the post of Deputy Engineer. While working as Deputy Engineer, he was transferred and relieved from duty. He made a representation to the higher officer for cancellation of his transfer order on the ground that his mother is of 70 years of age and ailing and this circumstance has caused inconvenience and hardships to him to join the post where he was transferred. His representation was rejected. He resorted to file a Civil Suit challenging the order of transfer. In the meantime his superior officer discharged him from service. He challenged the action of the authority and in turn came before Apex Court. While dealing with such a situation, the Apex Court observed as under:
Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight 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. 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 the 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, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.
40. This view has been reiterated in case title State of M.P. And Anr. V. S.S. Kaurav and Ors. reported in : (1995)IILLJ849SC , the court in para 6 observed as under:.The Court cannot go into that question of relative hardship. It would be for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration.
41. So far as plea that the transfer has been made to a far away place, it cannot be interfered with for the reason that the employee has to work in the State wherever he/she is posted. The plea of posting at a distance from one place to another is immaterial. It does not involve any violation of service Rule.
42. So far as the plea of behaviour/complaint against the employee is concerned, it has been considered by the Supreme Court in case title Union of India and Ors. v. Janardhan Debanath and Anr. reported in : (2004)IILLJ1057SC . The Apex Court dealing with allegations, in paragraphs No. 11, 12, 13 and 14 observed as under:
11 In a case where transfer is on account of inefficiency or mis-behaviour, the same can be made to a post carrying less pay than the pay of the post on which he holds a lien. Similar is the position where a transfer is made on a written request. Where the transfer is otherwise than for inefficiency or mis-behaviour or on a written request made by the transferred employee, the protection of pay is ensured. The High Court seems to have completely mis-construed the rule as if there cannot be any transfer in terms of FR 15 on account of inefficiency or mis-behaviour. The view is clearly contrary to the pronounced intention of FR 15.
12. That brings us to the other question as to whether the use of the expression 'undesirable' warranted an enquiry before the transfer. Strong reliance was placed by learned Counsel for the respondents on a decision of this Court in Jagdish Mitter v. The Union of India : (1964)ILLJ418SC , para 21, p.456) to contend that whenever there is a use of the word 'undesirable' it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression 'undesirable' in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
13. Additionally, it was pointed out by learned Counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion. It was also submitted that transfer was within the same circle i.e. the North Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise.
14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any mis-behaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was mis-behaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, is submitted by learned Counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside.
43. This view has been reiterated by the Supreme Court in case title S.C. Saxena v. Union of India and Ors. reported in 2006 (9) SCC 583 observing as under:.It is his duty to first report for work where he is transferred and make a representation as to what may be his 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 from work at Tezpur, he could have reported from 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 that 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. In the Circumstances, we too are of the opinion that the appellant was guilty of the misconduct unauthorizedly remaining absent from duty.
44. In case title Public Services Tribunal Bar Association v. State of U.P. and Anr. reported in : [2003]1SCR666 , the court observed as under:
Transfer is an incident of service and is made in administrative exigencies. Normally, it is not to be interfered with by the courts. The Supreme Court consistently has been taking a views that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner.
45. In case title Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors. reported in : (2004)12SCC299 , the court held as under:
Transfer is an incidence of service. Who should be transferred and posted where, is a matter for the administrative authority to decide. Unless the order of transfer is shown to be clearly arbitrary or is vitiated by mala fides or is made in violation of any operative guidelines or rules governing the transfer the courts should not ordinarily interfere with it
46. In case title Jagdish Chandra Ojha v. The State of Rajasthan reported in 1998 (3) WLC (Raj.) 380, the court in para 23 observed as under:.However, it is clarified that inspite of the fact that administrative exigencies are supreme and the competent authority has to decide a case bearing in mind the administrative exigency....
47. Some of the petitioners have challenged that they belong to the service of one Municipal Board and cannot be transferred to the service of another Board which is a different service. Such a transfer order can be made protecting their seniority and other service conditions. Petitioners have not challenged Section 310-A of the Rajasthan Municipalities Act, 1959, which empowers the State Government to transfer a member of Subordinate Ministerial or Class IV Service from one Municipal Board to another. This point has been dealt with in preceding paragraph in case title State of Rajasthan and Ors. v. Anand Prakash Solanki(supra).
48. So far as the plea in some of the cases that a person appointed by way of compassionate appointment as Class IVth employee cannot be transferred outside the district is concerned, they have relied upon the instructions issued by the Government, which prescribes that at the time of appointment such employee should be posted in district and ordinarily shall not be posted outside the district. It does not mean that for all times to come such employee cannot be posted outside the district. If this plea is accepted, it will make two differential classifications for one set of Class-IVth employees which is not permissible. Compassionate appointment is also a source of recruitment and appointment. On joining the post, such person becomes a member of the service and his transfer has to be governed under the Service Rules. Keeping in view the facts and circumstances of the each case and the judgments noticed in the course of judgment, the following orders in the writ petitions are passed as under:
(1) Malice/misbehavior and vengeance pleaded for transfer orders is a matter of fact and cannot be looked into and decided on the basis of affidavits of the parties by the court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India as pronounced by the Supreme Court in case title State of U.P and Anr. V. Siya Ram and Anr. reported in : AIR2004SC4121 , the court observed in para 5 as under:
5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 950 (in short the 'Constitution') had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. 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, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr. : (2001)IILLJ1243SC .
49. This view has been reiterated by the Supreme Court in case title Abni Kanta Ray v. State of Orissa and Ors. reported in 1995 Supp.(4) SCC 169, the court held as under:
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 vitiate by mala fides or infraction of any professed norm or principle governing the transfer. The Transfer of the Additional Registrar of the Cuttack Bench of the Orissa Administrative Tribunal being on facts in public interest, there was no permissible ground available to the Tribunal for quashing the same. The Division Bench of the Tribunal which quashed the said transfer on the ground of malice of the Chairman of the Tribunal did so against the material on record and the facts beyond controversy which borders of judicial impropriety.
50. The writ petitions filed alleging malafide against the respondents are dismissed for the reasons noticed in this judgment.
(2) The writ petitions filed pleading that there is hardship of on account of ailment of the member of the family, children studying in school or posted at a long distance are dismissed.
(3) The petitions wherein it is asserted that the petitioners should be posted as per the Government Policy are dismissed as the policy has no binding statutory force. The remedy for the petitioners lies before the superior authorities by filing a representation or before the authority which has passed the impugned order inviting attention to consider the representation sympathetically.
(4) Where there is no post to join for the petitioner despite that transfer order has been issued by the respondents or where the transfer order has been issued and the employee occupying the said post has not been transferred, the' respondents are directed to look immediately into it and pass appropriate orders within two weeks.
(5) In cases where the petitioners have been shown transferred in their transfer orders on their request which is factually incorrect. The respondents shall look into their record and if the plea of the petitioners is found correct, they will withdraw impugned order within two weeks.
(6) The transfer orders challenged on the ground that they are violative of Sub-section 8(ii) of Section 89 of Panchayat Raj Act, 1994 are dismissed for the reasons noticed in the course of this judgment.
(7) Where the transfer order has been withdrawn because of its challenge before, the Court/Tribunal and fresh order of transfer has been passed despite the Us pending before the Court/Tribunal, the respondents shall withdraw the subsequent order and contest the cause in the court of law.
(8) In some of the cases, it is established that the petitioners have been transferred three to five times in two years and two or three times in two to three months, such transfer orders are the cases of frequent transfers. The petitioners shall file representation to that effect to the competent authority within a period of one week and the competent authority shall dispose of it within two weeks thereafter. In case they do not file representation within stipulated period, it shall be presumed that they are not serious to seek the transfer orders examined/modified by the respondents.
(9) Where because of the transfer order, two persons have been permitted to join against one post, the respondents shall immediately pass appropriate order adjusting the employee who is without post. While making adjustment, the respondents will take into consideration that he/she may be posted nearby, if convenient.
(10) The transfer order issued of the Health Officer by the Chief Medical and Health Officer and the transfer orders issued by the Block Education Officer of the Teachers have been found issued without jurisdiction, those are quashed and writ petitions are allowed.
(11) Where the petitioner has been posted outside the administrative control of the Headmaster because of her complaint against the Headmaster, has again been posted under the control of same Headmaster, the respondents shall consider it and pass appropriate orders within two weeks.
(12) Where the respondents passed two orders of transfer on 15.7.2006. One of the order has been stayed by the Tribunal and the respondents by virtue of second order relieved the petitioner, is not justified.' The respondents should not have issued two orders on the same day. The second order by virtue of which petitioner has been relieved is set aside. The respondent will contest the cause of the petitioner before the Tribunal, if pending. The Tribunal in that event shall dispose of all such appeals within three months positively
(13) Where the petitioner has submitted an application to forego his promotion from the post of Vice Principal to Principal, despite that he has been relieved to join on promotional post, the respondents are directed to consider his application sympathetically within two weeks.
(14) So far as the transfer orders issued during the ban period are concerned, the writ petitions are dismissed relying upon the judgment delivered in case title Shilpi Bose and Ors. v. State of Bihar and Ors. reported in : (1991)IILLJ591SC (supra).
(15). Where the writ petitions have been filed on the ground that the petitioners are to retire within two years and they should not have been transferred relying upon the Division Bench judgment of this Court, perusal whereof reveals that there is no Rule or Government Instructions to that effect issued by the Government. Such a proposition was also before the Apex Court in the case title State of Punjab and Ors. v. Joginder Singh Dhatt (supra), the Supreme Court dealt with similar direction of the High Court of State of Punjab. The Supreme Court allowed the appeal and set aside the order of the High Court upholding the order of transfer. This judgment is applicable to the cases of the petitioners per incuriam. These petitions are dismissed.
(16). The writ petitions filed by Class-IVth employees on the ground that they have been transferred in contravention of Circular issued by the Government that they can not be transferred outside the district are dismissed as Circular has no binding force of law.
(17). The writ petition filed by the petitioners that he has been transferred at the instance of MLA whose letter has been annexed with the writ petition shall move representation to the respondents for redressal of his grievance, the respondents will pass appropriate orders.
(18). In writ petitions where the relieving order has been challenged and the original order has not been challenged, those petitions are not maintainable unless the original order of transfer is challenged, consequential order can not be set aside.
(19). Writ Petition filed by the petitioners that they have been appointed on compassionate ground and they could not have been transferred out side the district because the Circular issued by the Government are dismissed as the Circular is not enforceable in the court of law.
(20). AH other writ petitions being devoid of merits are dismissed.