FAKIR MOHAMMAD v. STATE OF RAJASTHAN & Ors.

Judgment

28.3.2011 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE C.M. TOTLA Mr. D.D.Chitlangi, for the appellant. BY THE COURT : (PER HON'BLE A.M. SAPRE,J.) This is an intra court appeal filed by the writ petitioner of W.P. No.1955 of 2011 under Rule 134 of the Rajasthan High Court Rules, 1952 against an order dated

07.3.2011 passed by Single Judge in the aforementioned writ petition.

2. By impugned order, the learned Single Judge dismissed the writ petition filed by appellant and in consequence upheld the order of Tribunal which was impugned in the appeal before the Tribunal and later in the writ petition out of which this appeal arises.

3. This is what was held by learned Single Judge while

dismissing the writ petition of the appellant. “By the order dated 4.11.2000 one Shri Buddha Ram was posted as Naib Tehsildar, Kolayat, where the petitioner was working in the same capacity. By another order dated 5.1.2011, the petitioner was Bikaner. in Collectorate, posted Subsequent thereto by order dated 9.12.2000 the services of petitioner were ordered to be utilized as Master Trainer in 2 Census Operation. Being aggrieved by the same, he preferred an appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur, that came to be rejected vide judgment dated 3.2.2011. The Tribunal held the transfer of petitioner in administrative exigency. While assailing the same, it is submitted by learned counsel for the petitioner that the Tribunal failed to appreciate that the petitioner was transferred just to accommodate Shri Buddha Ram. I do not find any merit in the argument advanced. The Tribunal considered all the aspects of matter and reached at the conclusion that the courts are not required to interfere with the order of transfer until that is in violation of statute or is an outcome of malafide or is shockingly arbitrary. No such circumstance exists in the present controversy, as such, there is no wrong in the order impugned that may warrant interference of this Court while exercising powers under Article 226 and 227 of the Constitution of India. The petition for writ is dismissed accordingly.”

4. So the question that arises for consideration in this writ-appeal is whether the learned Single Judge was justified in dismissing the writ petition and in consequence was justified in upholding the transfer order of appellant.

5. The appellant is working as Naib Tehsildar and presently posted in Collectorate, Bikaner. By order dated

9.12.2010 the services of petitioner were ordered to be utilized as Master Trainer in Census Operation at Naib Tehsildar (Election Officer) District Collectorate, Bikaner. It is against this order of transfer, the appellant felt aggrieved and filed an appeal before the Tribunal. The learned Member of the Tribunal dismissed the appeal of the appellant and being aggrieved by the order of the Tribunal, the appellant filed a writ petition, out of which this intra-court appeal arises. As 3 observed supra, the learned Single Judge dismissed the writ petition and in consequence upheld his transfer order.

6. Having given our anxious consideration to the submission argued by learned counsel for appellant and on perusal of record of the case, we find no merit in the same.

7. At the outset, we may take note of certain well settled principles which govern the cases relating to transfer in service jurisprudence. A transfer of any employee from “A” place to “B” by his employer is always regarded as an incidence of his service. Indeed, it is inherent in the service conditions. It is the right of an employer to transfer an employee to any place depending upon the exigencies, requirement, need etc. No employee can legally assert that he has a right to remain posted at a particular place for all his service tenure or only at a place of his choice, if transferred. It is, therefore, always regarded as an administrative decision on the part of an employer while transferring a particular employee or particular set of employees to a particular place. This right, therefore, of an employer cannot be challenged by an employee. In other words, only because an employee is asked to go to a place, which may or may not be of his liking, is no ground to seek judicial intervention against such transfer. Such action on the part of an employer cannot be made subject matter of judicial scrutiny in writ jurisdiction, nor it gives any cause of action to assail and that too successfully due to these well settled parameters, which are judicially recognized. However, there are certain well defined exceptions carved out by judicial precedents as to under which circumstances, the writ court, or to say any court, is competent to examine the legality of impugned transfer order. These exceptions broadly are, if the transfer order is issued by a competent authority with some definite malice or by way of punishment against the delinquent employee, or when it is found to be against any statutory 4 provisions of law governing the transfer, or when it is found ex-facie arbitrary, or is issued by a person not competent to issue such order, or when it is found to be contrary to specific service condition etc. It is only in these cases, the Court may consider proper to examine the legality. In other words, these are usually the parameters which are made basis for examining the legality of transfer order. We have not been able to notice any such ground in the impugned transfer order though vehemently pressed in service by learned counsel for the appellant.

8. In our considered opinion, the submission urged by the learned counsel for the appellant does not satisfy the exceptions taken note of supra. Firstly, it is issued by the State on administrative grounds. Secondly, it is not assailed on the ground of any malice as such against any particular authority and lastly it does not violate any statutory policy of State. It is essentially a policy evolved by State for its observance by the authorities as a guiding principle in their day-to-day administrative working. Any departure in itself does not give any right to an employee to question the transfer order on judicial side in writ jurisdiction unless as observed supra, a naked arbitrariness is pointed out to the Court. It being a settled rule of law that arbitrariness, if successfully shown to exists, it vitiates the whole action of State. Such does not appear to be a case of this nature.

9. So far as the filing of representation to the authorities by the appellant requesting them to withdraw the transfer order on any ground is concern, it being the right of the appellant to request his master (employer) to reconsider his case of transfer, the same can always be resorted to by him and for that no permission is necessary from the Court. Needless to observe, the employer is also then apply their 5 mind to the causes shown by the appellant in the representation and depending upon the several administrative factors, the orders of transfer can always be modified / annulled, if considered proper. This Court would like to observe, that as and when any representations is made by an employee, the same must be dealt with by the concerned authorities on priority basis in its proper perspective to avoid hardship likely to be suffered by an employee due to his uprooting from one place to other.

9. In view of aforesaid discussion and with the aforesaid liberty, we find no substance in the appeal which fails and is dismissed in limine but with aforementioned observations. [C.M. TOTLA], J. [A.M. SAPRE],J. /Anil/