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1995 Supreme(Gau) 229
GAUHATI HIGH COURT
J.N.Sarma, J.
G.S.1502065 Skt Prabhu Dayal Tiwari -Appellant
Versus
Union of India and Ors. -Respondent
Civil Rule No. 1872 of 1995
Decided On : 02-11-1995
S.N.Chetia, N.Dutta
Transfer of a government servant is an incident of service and the court cannot interfere with it unless it is vitiated by malafides or is made in violation of any statutory provisions.
Headnote:
TRANSFER OF GOVERNMENT SERVANT - GUIDELINES FOR COMPASSIONATE POSTING - INTERPRETATION AND APPLICATION - TRANSFER ORDER NOT BASED ON MALAFIDE OR VIOLATIVE OF STATUTORY PROVISIONS - COURT CANNOT INTERFERE.
Fact of the Case:
The petitioner, a government servant in the Army, challenged the legality and validity of his transfer order on the grounds that his request for posting on compassionate ground was not considered and that the case was not processed as per the guidelines.
Finding of the Court:
The court held that the transfer order was not based on malafide or violative of any statutory provisions and that the guidelines for compassionate posting do not confer upon the employee a legally enforceable right.
Issues: 1. Whether the transfer order was based on malafide or violative of any statutory provisions? 2. Whether the guidelines for compassionate posting confer upon the employee a legally enforceable right?
Ratio Decidendi: 1. The court relied on the Supreme Court judgments in Gujrat Electricity Board & another vs. Atmaram Sungomal Poshani, Union of India & others vs. SL Abbas, and NK Singh vs. Union of India & others to hold that transfer of a government servant is an incident of service and that the court cannot interfere with it unless it is vitiated by malafides or is made in violation of any statutory provisions. 2. The court also held that the guidelines for compassionate posting do not confer upon the employee a legally enforceable right.
Final Decision: The court dismissed the writ petition and vacated the stay order passed earlier.
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2. Earlier to it, the petitioner was transferred and he filed a representation and that was rejected. A notice of motion was issued on 8.5.95 and the transfer order was stayed. As against this a writ appeal was filed being Writ Appeal No.348 of 1995 and that was disposed of with an observation to hear the Civil Rule earlier. Accordingly, Rule was issued and this matter was taken up for hearing. The legality and validity of the transfer order was challenged on the following grounds:
(i) That the request for posting on compassionate ground as provided by the own guidelines of the Army was not considered.
(ii) Cases for posting on compassionate ground or for projects will be examined by a Board of Officers to be assembled every month at GREF Record and that was not done in the case of the petitioner. The representation dated 15.3.95 submitted by the petitioner was found to be genuine and proper by the Officer Commanding of 529 SC and Tika GREF and he forwarded the same to the Head Quarter ie Annexure D to the writ application. That is quoted below :
"1. Reference GREF Records PO No.063/GP-IV/SKT/CA2 dated 21 February, 1995.
2. An application dated 15 March, 1995 received from GS-15206 5X SKT Prabhu Dayal Tiwari of this unit is sent herewith in triplicate alongwith its enclosures, duly recommended for your further necessary action please.
3. The case has been examined by the undersigned and found to be genuine."
3. That in spite of it, the case of the petitioner was not considered and it was rejected in the impugned order vide Annexure I.
4. An affidavit-in-opposition has been filed wherein it is stated that the petitioner has never served in a high altitude, it is the necessity of service that he must serve in an high altitude area. The policy for compassionate posting is subject to organisational and functional requirement and the overriding consideration is the management of the force by the administration. It is stated that the petitioner has completed two consecutive tenures in the East and as such he is not entitled to be retained. Retention in the Eastern Sector is monetarily attractive and as such the petitioner wants to be retained in the Eastern Sector. The recommendation given by the Officer Commanding is not binding on the Head Quarter and the Head Quarter in consideration of the entire materials on record rejected the representation.
5. I have heard Shri N. Dutta, learned Advocate for the petitioner and Shri SN Chetia, learned Advocate for the respondents. Shri Chetia in support of his contention relied the following decisions :
(i) AIR 1989 SC1433 (Gujrat Electricity Board & another vs. Atmaram Sungomal Poshani) wherein he relied in paragraph 4. That is quoted below :
"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 had legal right for being posted at any particular 1 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."
(ii) AIR 1993 SC 2444 (Union of India & others vs. SL Abbas) wherein he relied on paragraph 7. That is quoted below :
"Who should be transferred where, is a matter for the appropriate authority to decide. Unless me order of transfer is vitiated 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
