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CASE NO.: Appeal (civil)  5005 of 2004

PETITIONER: State of U.P. and Anr.

RESPONDENT: Siya Ram and Anr.

DATE OF JUDGMENT: 05/08/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

(Arising out of SLP) No. 2196/2004)

ARIJIT PASAYAT, J

       Leave granted.

       While respondent No.1 was functioning as an Executive Engineer  (Mechanical), Irrigation Division-I, Government of U.P., he was transferred  from the Tubewell Division-I, Ghazipur to the office of Joint Chief  Engineer, Tubewell East, Faizabad. The transfer order dated 23.10.2002  shows that the transfer was on administrative grounds.

       The said order of transfer of respondent No.1 having been quashed by  a Division Bench of the Allahabad High Court, State of U.P. is in appeal.  The respondent filed a writ petition in the Allahabad High Court questioning  the order of transfer. The primary stand taken in the writ application was that  the order of transfer was as a measure of punishment. An enquiry in a  departmental proceedings had been initiated. Without affording him an  opportunity of being heard, the transfer was done as a measure of  punishment. The disciplinary action which was taken against respondent  No.1 pursuant to the enquiry conducted was referred to the Uttar Pradesh  Public Service Commission for approval. But it was not approved.  The  present appellant-State filed a counter affidavit taking the stand that the  transfer of the writ petitioner was on administrative grounds and merely  because the writ petitioner was transferred to a non-working post that did not  in any way vitiate the order of transfer.  

       The writ petition was allowed by the impugned judgment dated  5.11.2003 holding that the order of transfer was punitive in nature and had  been passed by the State Government without awaiting the decision in the  disciplinary proceedings.  

The High Court while exercising jurisdiction under Articles 226 and  227 of the Constitution of India, 1950 (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

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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 (8) SCC 574).

       The above position was recently highlighted in Union of India and  others v. Janardhan Debanath and another (2004 (4) SCC 243).  It has to be  noted that the High Court proceeded on the basis as if the transfer was  connected with the departmental proceedings. There was not an iota of  material to arrive at the conclusion.  No mala fides could be attributed as the  order was purely on administrative grounds and in public interest.  

In view of the settled position in law the judgment of the High Court  is indefensible and is set aside.

       Learned counsel for respondent No.1 submitted that respondent shall  file a representation highlighting the various difficulties which may or have  resulted from the transfer and the non-desirability thereof. If such  representation is made to the appropriate authorities, it goes without saying  that the same shall be considered in its proper perspective and in accordance  with law. We do not express any opinion in that regard. The appeal is  allowed to the extent indicated with no order as to costs.