The government's power to transfer its employees is not absolute and must be exercised bona fide and in accordance with the government's own policy.

Headnote:
TRANSFER OF EMPLOYEES - MALA FIDE EXERCISE OF POWER - ARTICLE 14 AND 16 OF THE CONSTITUTION OF INDIA - GUIDELINES FOR TRANSFERS - CANCELLATION OF TRANSFER ORDER - REINSTATEMENT OF PETITIONER.
Fact of the Case:

The petitioner, a Medical Officer in a Municipal Dispensary, was transferred to a Cottage Hospital. He challenged the transfer order, alleging that it was mala fide and issued to accommodate another doctor who had political influence.
Finding of the Court:

The court found that the transfer order was issued in colourable exercise of power and was mala fide. It held that the government had a policy of transferring employees after a period of three years, but this policy was not being followed in a uniform manner. The court also found that the transfer of the petitioner was effected only to accommodate another doctor who had political influence.
Issues: 1. Whether the transfer order was mala fide and issued in colourable exercise of power? 2. Whether the government's policy of transferring employees after a period of three years was being followed in a uniform manner?
Ratio Decidendi: The court held that the transfer order was mala fide and issued in colourable exercise of power. It relied on the following principles: (i) The government has the power to transfer its employees employed in a transferable post, but this power has to be exercised bona fide to meet the exigencies of the Administration. (ii) If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. (iii) A provision for transfer is intended to check creation of vested interest, nepotism and corruption. (iv) The government is bound by its own policy decision and must enforce it faithfully. (v) While implementing the policy it cannot pick and choose.
Final Decision: The court quashed the impugned order of transfer and directed the government to adhere to its guidelines and not to exercise the power mala fide.

JUDGMENT - C.S. DHARMADHIKARI, J.:---The petitioner Dr. Sheshrao Nagorao Umap was a Medical Officer in the Municipal Dispensary, Bhusawal, District Jalgaon. He was posted in the said post vide order dated 19th June, 1981. Accordingly he took charge of the post of Medical Officer at Bhusawal on 1st of July, 1981 and since then has been working in the said post. However, he came to be abruptly transferred as Medical Officer Cottage Hospital, Parola District Jalgaon vide order dated 30th of April, 1983. It appears that this order was issued to accommodate the respondent No. 4, Dr. R.P. Patil who was transferred to Dhule and had never assumed charge of the said office at any time but proceeded on leave for last about one and half year. It then appears from record that the Administrator of the Municipal Council, Bhusawal made a representation to the Government that the petitioner should not be transferred to Parola since he has done exemplary work during his tenure. It was also pointed out that the respondent No. 4 Dr. Patil was a permanent resident of Bhusawal and had also opened a private Nursing Home in the name and style of 'Shiv Surgical Nursing Home' at Bhusawal itself. The Administrator had also pointed out that a vacancy of Medical Officer in the Urban Family Welfare Centre of the Municipal Council, Bhusawal, was lying vacant and a suitable Medical Officer from the Government cadre may be deputed to the said post. The petitioner himself had also made a representation for cancellation to his transfer. In his representation the petitioner had also contended that his mid-term transfer is likely to adversely affect the academic career of his daughter. In view of these representations and the recommendations of the Deputy Director of Health Services, Nasik Circle, the earlier order of transfer came to be cancelled, vide order 28-6-1983. It then appears that after this order of cancellation the respondent No. 4 who according to the petitioner is politically influential person, engineered to get fresh order of transfer issued on 23rd of September, 1893 by which the petitioner was again transferred as Medical Officer, Cottage Hospital, Parola and the respondent No. 4 was appointed as Medical Officer, Municipal Dispensary at Bhusawal, in place of the petitioner. It is this order of transfer which is challenged in this writ petition by the petitioner on various grounds. It is also contended by the petitioner that he is being transferred contrary to Government policy, with a view to accommodate the respondent No. 4, Dr. Patil because of the political influence he wields.

2. No return has been filed on behalf of any of the respondents denying the allegations made in the petition, therefore, in law they are deemed to be admitted.

3. Shri Atre the learned Counsel appearing for the petitioner contended before us that the order of transfer issued on 23rd of September, 1983 was not only mala fide but was issued in colourable exercise of power and, therefore, was wholly illegal. In our opinion there is much substance in this contention of Shri Atre.

4. It is not disputed that the normal practice of Government is to effect transfer of persons in transferable services after a period of 3 years unless exceptional circumstances make it obligatory to transfer the employee earlier than the said period. Normally such transfers are effected before starting of an academic year of rainy season. In the present case initial transfer order was issued on 30th April, 1983 that is even before the expiry of the normal period of three years. There were no complaints against the petitioner. On the other hand he had done exemplary work. Fortunately on the representations made by the petitioner as well as the Administrator of the Bhusawal Municipal Council this order of transfer was cancelled vide order dated 28th June, 1983. However, for the reasons best known to the respondents, the petitioner was again transferred vide order dated 23rd of September, 1983. Accor

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Judicial Analysis