While testing a challenge to an order transferring an employee by an authority, which is ‘State’, within the meaning of Article 12 of the
Constitution of India, in a proceeding of judicial review under Article 226 of the Constitution of India, certain principles, which are fundamental,
primordial and which have been consistently reiterated by the Supreme Court in its judicial pronouncements, need to be kept in mind.
Transfer, in the service jurisprudence, means movement of an employee from one headquarter station to another to take up the duties of a new post.
Transfers are generally lateral movements. Transfer, it is trite, is an incident of service and an employee does not have any vested right to remain
posted at a particular place. The law, in relation to the scope and limitations of judicial review in the matters relating to transfer of a government
servant, has been lucidly explained by the Supreme Court in its decision in case of Shilpi Bose v. State of Bihar, reported in 1991 SUPP (2) SCC 659,
paragraph 4 whereof reads as under :-
“4. 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 malafide. 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 overlooked these aspects in interfering with the transfer Orders.â€
The law laid down by the Supreme Court, in case of Shilpi Bose (supra), holds the field and has been followed in umpteen subsequent cases.
Keeping these principles in mind, I am proceeding to test the merit of the challenge of the petitioner’s transfer from Bihar Sector Headquarter to
Kashmir Based Units. The petitioner is a Sub-Inspector (Ministerial) in Central Reserve Police Force. An order of transfer dated 14.01.2020, issued
by Special Director General of Police, Central Zone, Central Reserve Police Force, Sector 3, Kolkata, is being challenged in the present writ
application. It transpires that the said order has been issued in the light of communications dated 25.09.2019 and 31.10.2019, which have been
mentioned in the transfer order. The said communications have been brought on record by way of Annexures to the counter affidavit filed on behalf of
the respondents.
I have heard Mr. Sarva Deo Singh, learned counsel appearing on behalf of the petitioner, and Mr. S.D. Sanjay, learned Addl. Solicitor General of India
assisted by Mr. Ram Anurag Singh, learned Central Government Counsel.
It is evident from the pleadings on record and submissions advanced on behalf of the petitioner that the main ground, which has been taken to assail
the impugned order, is of violation of the guidelines issued by the Department of Administrative Reforms and Public Grievances, Government of India,
dated 25.02.1997, and the Standing Order No. 3/2016 as well as the Office Memorandum of the Government of India, Ministry of Personnel, Public
Grievance and Pension, Department of Personnel and Training, dated 08.10.2018. I must notice, at the outset, before going into the facts asserted in
the writ petition, that there is no allegation of any malafide nor any case has been made out of breach of any statutory provision, to assail the impugned
order.
Mr. Sarva Deo Singh, learned counsel appearing on behalf of the petitioner, has laid great emphasis on the expression “regarding complaintâ€
mentioned in the impugned communication dated 14.01.2020 and has submitted that the petitioner is being transferred on an anonymous complaint,
which is in breach of the guidelines issued by the Government of India on 08.10.2018 through an Office memorandum and other guidelines earlier
issued on 18.10.2013 and 18.06.2013. He has argued that no action ought to have been taken on anonymous complaints, irrespective of the nature of
allegations. On the aforesaid ground, he has assailed the impugned order.
From the averments made in the writ application, transpires that it is the case of the petitioner that after his appointment as Sub-Inspector of Police in
1999, he was continuously posted in ‘hard area’ till 05.06.2013, whereafter he was posted in ‘soft area’ with effect from 06.06.2013 in
the Office of Deputy Inspector General, Central Reserve Police Force, Ashiyana Digha Road, Patna, where he remained till 25.12.2017. He was
thereafter transferred on 26.12.2017 and posted to Group Centre, Mokama Ghat. Again, in July 2019, he was transferred to the Office of the
Inspector General, Central Reserve Police Force, Ashiyana Digha Road, Patna. The petitioner is resident of Patna district. It is his grievance that
within six months of his posting in the Office of Inspector General, Central Reserve Police Force at Ashiyana Digha Road, he is being transferred at
Kashmir Based Unit. He has relied on Standing Order No. 3/2016 dated 29.12.2016, which contains transfer policy of ministerial staff. It is his case
that normal tenure of posting, as indicated in Clause 4 of the said policy, has not been followed and the petitioner’s transfer, in the facts and
circumstances of the case, is punitive in nature.
As has been noted above, Mr. Singh has relied on the guidelines, issued by the Government of India from time to time, relating to the manner in which
anonymous complaints are to be dealt with. It is petitioner’s further case that he had approached the competent authority against the order of his
transfer by making a representation on 16.01.2020 and subsequently on 27.01.2020. He had also asked for supply of a copy of the complaint, which
was the basis for the decision of the respondents to transfer him, but, according to the petitioner, no decision has yet been communicated.
A counter affidavit has been filed on behalf of the respondents. It has been stated in the counter affidavit that raising a grievance against the
petitioner’s transfer from Mokama Ghat to Bihar Sector, a complaint was made, which was processed through Central Zone Headquarter,
Kolkata vide letter dated 25.09.2019. The complainant, Manoj Kumar, had alleged in his complaint petition that transfer of the petitioner from G.C.
Mokama Ghat to the Headquarters at Patna was against the provision as contained in the Standing Order No. 3 of 2016 and that he should be posted
appropriately in terms of the transfer policy.
It is further case of the respondents that one S.I. (Ministerial), Ravi Shankar Prasad Singh, was posted at the headquarters, who had submitted his
application for his transfer as he was going to complete normal tenure on 13.06.2019. It was in this backdrop, since a post was going to fall vacant in
the Headquarter, the petitioner was transferred from Mokama Ghat to the Headquarter. It is the case of the respondents that on receiving of the
complaint, the matter was enquired into and the headquarter Central Zone was apprised that the transfer of petitioner from Mokama Ghat to Bihar
Sector Headquarter was an administrative decision. On enquiry, it transpired that against the authorized sanctioned post of 84 S.I. (Ministerial), there
were 91 S.I. (Ministerial) posted in the Bihar Sector Headquarters. After taking into account these aspects, the Central Zone headquarter, vide signal
dated 14.01.2020, directed transfer of the petitioner from Bihar Sector Headquarters to Kashmir Based Units with an advice that if any surplus
occurred, as a result of posting of above S.I. (Ministerial), the same may be adjusted during SCT-2020 by posting out the S.I. (Ministerial) having
longest stay in the particular Unit.
The petitioner’s case that anonymous complaint made against him ought not to have been the basis for his transfer in the light of the guidelines
laying down handling of complaints by the Government of India, as indicated above, is not at all acceptable to this Court. It is not that the complaint
was directed against the petitioner, rather it was in the nature of grievance or information communicated to the officials regarding long continuous stay
of the petitioner in Patna and nearby place against the transfer policy of Ministerial Cadre of Central Reserve Police Force. The complaint of this
nature, even if anonymous, could not have been merely dropped as anonymous complaint taking shelter of guidelines laying the procedure handling of
complaints in the Ministries/Departments of the Government of India. The complaint was against the functioning of the Department in the matter of
implementing its own transfer policy. It was essentially within the jurisdiction of the authorities to examine and get verified the nature of complaint.
Mr. S.D. Sanjay, learned Additional Solicitor General for India, has referred to and relied on Clause 4 of the guidelines issued by the Directorate
General, Central Reserve Police Force, and has submitted that in order to maintain uniformity, tenure of all Officers/Officials of Ministerial has been
fixed as three years for ‘soft area’ and two years for ‘hard area’. He has submitted that the petitioner has remained posted in a soft area
since last six years and eight months and, therefore, his transfer to hard area cannot be termed to be violative of transfer policy.
Mr. Sarva Deo Singh, learned counsel for the petitioner, has relied on Supreme Court’s decision in case of Arvind Dattatraya Dhande vs The
State Of Maharashtra, reported in (1997) 6 SCC 169 with reference to paragraph 6 thereof. The said decision, in my opinion, has no application at all
in the facts and circumstances of this case. The Supreme Court, considering the facts of the said case, had recorded a conclusion, based on
unimpeachable and eloquent testimony of the performance of the duties of the appellant of that case, that the transfer was not in public interest, rather
that was the case of victimization of an honest officer at the behest of aggrieved complainants carrying on the business in liquor and toddy. Facts of
this case are clearly distinguishable.
In the present case, it transpires that there was a complaint and it is time that the identity of complainant could not be ascertained. The complaint, I
reiterate, was not against the conduct of the petitioner touching his integrity or otherwise. It was against his unduly long stay in soft area. This is an
admitted fact the petitioner remain posted in soft area, that too within his home district for long period of six years and eight months.
In such circumstance, the impugned decision of the respondents to transfer the petitioner from Patna to Kashmir Based Units cannot be said to be
unreasonable or arbitrary, requiring this Court’s interference. The Supreme Court, in case of N.K. Singh v. Union of India, reported in (1994) 6
SCC 98, has reiterated the law that the scope of judicial review, in the matters of transfer of a government servant to an equivalent post without any
adverse consequences on the service or career prospects, is very limited and is confined only to the ground of malafides and violation of specific
statutory provision.
In case of Rajendra Singh v. State of Uttar Pradesh reported in (2009) 15 SCC 178, the Supreme Court reiterated the law that the only question,
which is required to be seen in such matters is as to whether the transfer was actuated with malafides or otherwise in violation of statutory Rules.
While interfering with the decision of Allahabad High Court, the Supreme Court, in case of Rajendra Singh (supra), made following observations in
paragraph 13 and 14:
“9. It is difficult to fathom why the High Court went into the comparative conduct and integrity of the petitioner and Respondent No. 5 while
dealing with a transfer matter. The High Court should have appreciated the true extent of scrutiny into a matter of transfer and the limited scope of
judicial review. Respondent No. 5 being a Sub-Registrar, it is for the State Government or for that matter Inspector General of Registration to decide
about his place of posting. As to at what place Respondent No. 5 should be posted is an exclusive prerogative of the State Government and in
exercise of that prerogative, Respondent Nakasho. 5 was transferred from Hapur-II to Ghaziabad- IV keeping in view administrative exigencies.
10. We are pained to observe that the High Court seriously erred in deciding as to whether Respondent No. 5 was a competent person to be posted at
Ghaziabad-IV as Sub- Registrar. The exercise undertaken by the High Court did not fall within its domain and was rather uncalled for. We are unable
to approve the direction issued to the State Government and Inspector General of Registration to transfer a competent officer at Ghaziabad-IV as
Sub- Registrar after holding that Respondent No. 5 cannot be said to be an officer having a better conduct and integrity in comparison to the petitioner
justifying his posting at Ghaziabad-IV. The High Court entered into an arena which did not belong to it and thereby committed serious error of law.â€
In view of the discussions, as noted above, based on rival pleadings and submissions made on behalf of the parties, I am of considered view that the
petitioner has failed to establish violation of any statutory Rule or binding Circular to assail the impugned order of transfer. No lack of jurisdiction in
authority, who has passed the order of transfer, has been pleaded.
This writ application has, therefore, no merit and is accordingly dismissed.
No order as to cost.
