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Case Number

Civil Misc. Writ Petition No. 2771 of 1992

Judges

R.B Mehrotra, J.

Acts

ARTICLE 226 CONSTITUTION OF INDIA

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Judgment Summary — R.B. Mehrotra, J.

Factual and Procedural Background

The petitioner challenged an order dated 31-12-1991 (filed as Annexure '3') which transferred him from Azamgarh Depot to Dehradun Hill Depot. The petitioner had originally been appointed as a Mazdoor on daily wages in 1978, regularised from 9-7-1980, and had been posted at Azamgarh Depot continuously since 3-3-1981. He alleged he was the president of the Depot-level union (elected April 1990) and contended that on 31-12-1991 he had been promoted to the post of Fitter by the Service Manager, while the transfer communication described him as Mazdoor.

The petitioner challenged the transfer on multiple grounds and filed a writ petition under Article 226 of the Constitution. The court heard counsel for the petitioner (Sri R.G. Padia / Dr. R.G. Padia) and counsel for the U.P.S.R.T.C. (Sri S.K. Sharma). A detailed counter-affidavit was filed by the Corporation alleging general complaints about the petitioner, involvement of the Superintendent of Police and District Magistrate of Azamgarh, and that the Managing Director had ordered transfers of the petitioner and others. The court received and examined the original record to determine the authority that issued the transfer order.

After hearing and consideration of authorities and facts (including policy instructions dated 29-9-1989 and submissions by both sides), the court dismissed the writ petition. The order concludes with the parties bearing their own costs.

Legal Issues Presented

Whether the transfer order dated 31-12-1991 was issued in violation of the U.P.S.R.T.C. instructions dated 29-9-1989.
Whether the transfer was effectively an order of punishment based on complaints and therefore unlawful because it was passed without affording the petitioner an opportunity of hearing or to show cause.
Whether the transfer resulted in a diminution (demotion) of the petitioner from the post of Fitter to Mazdoor and whether such a demotion without a hearing was illegal.
Whether, having regard to the decision in B. Varadha Rao v. State of Karnataka, a IV class employee (or equivalent) could be transferred under the circumstances alleged by the petitioner.

Arguments of the Parties

Appellant / Petitioner (Dr. R.G. Padia)

Challenged the transfer as being in violation of the Corporation's instructions dated 29-9-1989, which purportedly restrict transfers in particular circumstances.
Argued that the transfer was made on the basis of complaints against the petitioner and therefore amounted to punishment carried out without affording an opportunity of hearing or show cause; relied on several authorities to this effect.
Maintained the transfer amounted to demotion because the petitioner had been promoted to Fitter on the same date, while the transfer communication described him as Mazdoor.
Relied on several cases (cited in the petition) to support the proposition that an employee should not be transferred as a punitive measure without hearing.

Respondent / U.P.S.R.T.C (Sri S.K. Sharma)

Contended that the power to make inter-zonal transfers vested in the Managing Director and that the Managing Director in fact passed the transfer order; the communication placed on record was a transmission of that order.
Submitted that the 29-9-1989 policy permits transfers on administrative grounds and in special circumstances, and that transfers based on general administrative complaints are permissible.
Pointed out that the District Magistrate and Superintendent of Police of Azamgarh made complaints/recommendations regarding law and order concerns at the Azamgarh Bus Station, supporting administrative grounds for transfer.
Argued that even if there was a technical breach of executive instructions, the proper remedy is to make a representation to higher authorities rather than approach the court; courts ordinarily should not interfere with administrative transfers absent mala fide or violation of mandatory statutory rules.
Asserted that the petitioner will be posted as Fitter in Dehradun and there will be no reduction in emoluments; the misdescription in the transfer communication does not amount to demotion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
B. Varadha Rao v. State of Karnataka, (1986) 4 SCC 131 : AIR 1986 SC 1955 (also cited with variant reference in the text)	Guidance that transfer norms are guidelines for administrative exigencies and do not vest immunity from transfer; general policy for III and IV class employees should be kept in mind but does not prohibit transfers in all circumstances.	The court relied on the observation that transfer guidelines are not absolute immunities and that the Supreme Court did not hold that III and IV class employees cannot be transferred in any circumstances. This supported the proposition that transfer could validly be ordered in special circumstances.
Mrs. Shilpi Bose v. State of Bihar, 1991 Supp (2) SCC 659 : AIR 1991 SC 532	Court should not interfere with transfer orders made in public interest or for administrative reasons unless they violate mandatory statutory rule or are mala fide; affected employee should ordinarily seek departmental representation.	The court relied on this principle to hold that transfers based on administrative grounds and general complaints are not ordinarily subject to judicial interference where no mala fides or statutory breach is alleged.
State of U.P v. Sesh Mani Tripathi, (1991) 2 UP LB EC 1303	As cited by petitioner: used to support the proposition that an employee cannot be transferred on the basis of a complaint that operates as a punitive measure without hearing.	The court acknowledged this authority as part of the petitioner's cluster of decisions that stand for the principle against punitive transfers without hearing, but distinguished the present facts as involving general complaints rather than a particular punitive complaint.
Sangam Lal Dube v. Director of Education U.P., AIR 1957 All. 70	Cited by petitioner to support the principle that transfers made on the basis of complaint amounting to punishment are liable to be set aside if no hearing afforded.	The court treated it as authority relied on by petitioner for the above principle and again distinguished the present case on facts (general versus particular complaints).
Dinesh Chandra Kansal v. The State of U.P., 1991 (63) FLR 19	Cited by petitioner to support the view that transfers based on complaints which are effectively punitive require opportunity of hearing.	Recognised as an authority relied upon by the petitioner; the court observed that the cited decisions applied where a specific complaint/punitive displacement was involved, unlike the present case.
Umesh Chand Tiwari v. State of Uttar Pradesh, 1988 LIC 668	Cited by petitioner in support of the principle that transfers based on complaints can be punitive and require hearing before imposition.	Noted as part of petitioner's authorities; court distinguished present facts as involving general administrative complaints and not a single punitive incident.
Dr. Ambika Prasad Mishra v. State of U.P., 1988 (56) FLR 169	Cited by respondent for the proposition that transfers in administrative interest need not be interfered with by courts.	Used by the court as part of the body of authority supporting non-interference with administrative transfers absent mala fide or violation of mandatory rules.
Atul Kumar v. Union of India, (1991) 1 UP LB EC (Tribunal) 46	Cited by respondent reinforcing the non-interference approach to administrative transfers.	Counted among the authorities supporting the respondent's contention that administrative transfers on general complaints are permissible and not ordinarily justiciable.

Court's Reasoning and Analysis

The court's reasoning proceeded in a series of findings grounded on the record and on settled principles from the authorities cited:

The court examined the authority that issued the order. Although the communication filed as Annexure '3' did not itself appear to be signed by the Managing Director, the original record produced in court showed the Managing Director had in fact passed the transfer order; the Annexure was a communication of that order. This established the competence of the authority that made the transfer.
The counter-affidavit and documentary material disclosed that the petitioner had been posted at Azamgarh for almost ten years and that general complaints had been received about his conduct at the bus station. The Superintendent of Police reported an incident and the District Magistrate wrote recommending transfer of the petitioner and others on law-and-order grounds. The Managing Director, acting on recommendations from the General Manager (Administration), directed transfers in the circumstances described.
The court analyzed the Corporation's instructions dated 29-9-1989. Those instructions contain protections (for example, against transferring certain promoted posts and protections for union office-bearers), but also permit transfers for administrative reasons and in special circumstances (clause 3 and other clauses). The instructions also state disciplinary proceedings should normally be initiated for misconduct rather than transfers (clause 6), and union office-bearers should not be transferred for two years without permission of the Addl. District Magistrate (clause 8). However, the instructions also preserve the head of the office's power to make transfers in special circumstances.
The court engaged with competing authorities. It accepted the petitioner's submission that transfers based on a particular specific complaint amount to punishment and require an opportunity to be heard, drawing on the cases relied upon by the petitioner. But it distinguished those authorities on the facts: in the present case the complaints were of a general nature, supported by police and district administration correspondence, and were treated by the Managing Director as providing administrative grounds for transfer.
Applying Mrs. Shilpi Bose and the principle that courts should not ordinarily interfere with administrative transfers made in public interest or on administrative grounds unless mala fide or in violation of a mandatory statutory rule, the court concluded there was no allegation of mala fides and no asserted violation of a mandatory statutory provision in the writ petition.
Regarding the claimed demotion, the court accepted the Corporation's clear stand in the counter-affidavit that the petitioner had not been demoted: he would be posted as a Fitter in Dehradun and his emoluments would not be reduced. The court treated the misdescription of designation in the transfer communication as a clerical mistake insufficient to invalidate the transfer.
On the issue of transferring III/IV class employees, the court read B. Varadha Rao as not precluding all transfers of such employees; rather, the decision indicates that general transfer policy should be applied with consideration to their status but does not confer absolute immunity from transfer.
Given the combination of (a) the competence of the Managing Director to order the transfer, (b) the presence of general administrative complaints supported by district authorities, (c) the absence of pleading or evidence of mala fide or statutory breach, and (d) representations by the respondent that the petitioner will retain his promoted post and emoluments, the court concluded that the transfer was within permissible administrative action and not subject to judicial interference.

Holding and Implications

Holding: The writ petition is dismissed. (Paragraph 17–18 of the opinion)

Direct consequences:

The transfer of the petitioner from Azamgarh Depot to Dehradun Depot stands; the court found no illegality warranting interference under Article 226.
The court accepted the respondent's assurance that the petitioner would be posted in Dehradun as a Fitter and would not suffer diminution of emoluments; the misdescription in the transfer communication was treated as a clerical error and not as demotion.
The petitioner and the Corporation were ordered to bear their own costs.

Broader implications: The court applied and followed the principle that administrative transfers made in public interest or for administrative reasons, supported by general complaints and sanctioned by competent authority, are ordinarily not subject to judicial interference unless mala fides or violation of a mandatory statutory rule are pleaded and proved. The decision did not purport to lay down any novel legal principle or to overrule existing authorities.

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Govind Pratap Singh (Petitioner) v. Managing Director (Personnel) U.P State Road Transport Corporation And Others (S).

R.B Mehrotra, J.:— By means of the present writ petition, the petiti-oner has challenged the order, dated 31-12-1991, filed as Annexure ‘3’ to the writ petition transferring the petitioner from Azamgarh Depot to Dehradun Hill Depot.

2. The aforesaid transfer order has been challenged by the petitioner mainly on the following grounds:

Firstly, that the order of transfer has been passed in violation of the instructions, dated 29-9-1989 issued by the U.P Road Transport Corporation (hereinafter referred to as the U.P.S.R.T.C).

Secondly, that the transfer order has been passed on the basis of the complaint made against the petitioner and as such the transfer order is an order of punishment and the same has been passed without affording any opportunity of hearing or show cause to the petitioner.

Thirdly, the transfer order is in effect the order of diminution of the petitioner from the post of the fitter to the post of Mazdoor. The said order having been passed without affording any opportunity of hearing or show cause to the petitioner is bad in law, and

Fourthly, the petitioner being a IV class employee could not have been transferred in view of the decision of the Supreme Court in B. Varadha Rao v. State of Karnataka, (1986) 4 SCC 131 : AIR 1986 SC 1955.

3. Necessary facts, in brief, are as under

The petitioner was intially appointed as Mazdoor on daily wages basis in the year 1978 and later on was appointed on regular basis from 9-7-1980 at Dohri Ghat Depot, Azamgarhi The petitioner was transferred at Azamgarh Depot, Azamgarh on 3-3-1981 as Mazdoor. Since the year 1981 to the date of the order of transfer, the petitioner had continued to work at Azamgarh Depot. The petitioner alleges that the petitioner is the president of the Union, namely, Uttar Pradesh State Road Transport Corporation Employees Union, Depot Azamgarh and was elected as president in the month of April, 1990 and continued to hold the said office on the date the order of transfer was passed The petitioner was promoted to the post of Fitter by an order dated 31-12-1991 the date on which the transfer order has been passed against the petitioner. The petitioner was promoted as Fitter by the Service Manager, U.P.S.R.T.C Azamgarh. In the transfer order which has been com-municated from the office of the General Manager (Administration), Lucknow on the same date i.e, 31-12-1991, the petitioner has been described as Mazdoor. On the basis of the aforesaid order, the petitioner contended that since he was promoted as Fitter, he could not have been transferred as Mazdoor.

4. I have heard Sri R.G Padia, learned counsel for the petitioner and Sri S.K Sharma, learned counsel for the U.P.S.R.T.C During the course of arguments it was disclosed by Sri S.K Sharma that the powers to make inter-zonal transfers vest in the Managing Director and the Managing Director passed the order in respect of the petitioner transferring him from Azamgarh Depot to Dehradun Depot. This contention was challenged by Dr. Padia who stated that the order shows that it has been passed by the General Manager and not by the Managing Director. To meet this objection, I asked the learned counsel for the U.P.S.R.T.C to pro-duce the original record since no specific point in the writ petition was taken regarding this objection. The original record was produced before me which disclosed that the order has been passed by the Managing Director and the order filed as Annexure 3' to the writ petition is only a communication of the order passed by the Managing Director.

5. A detailed counter affidavit has been filed in the case which discloses that since the petitioner was posted at the same place for almost ten years, the petitioner developed the vested interest therein and there were complaints of general nature against the petitioner that the petitioner is creating law and order problem on the Roadways Bus Station and is harassing the passen-gers and particularly harassing the women passengers. The Supdt, of Police, Azamgarh made a complaint on 28-10-1991 to the Managing Director, U.P.S.R.T.C reporting an incident dated 26-10-1991 and thereafter that Amar Jit Singb and Govind Singh's retention in the Azamgarh Depot can create law and order problem since both the aforesaid employees are local leaders of the Union, therefore, the Roadways officers are finding themselves unable to take any action against them It was requested that these persons may be trans-ferred. Subsequently by a letter, dated 30-10-1991, the Reginal Managing sent a note to the Addl. General Manager, Lucknow making general com-plaint of the employees posted at Bus Station, Azamgarh regarding their misbehaviour with the officers of the Corporation and regarding their misbehaviour with the general public and passengers at the But Station. It was also mentioned that these persons are local people and have been staying at the same place for last more than ten years, and have created a vested interest at Azamgarh. The matter was ultimately brought to the notice of the Managing Director who directed that these persons should be transferred as suggested by the General Manager (Administration). On the basis of the aforesaid order, the petitioner has been transferred along with 3 other persons to various places.

6. Sri S.K Sharma has contended that the policy direction issued by the Corporation, dated 29-9-1989 regarding transfers of the Corporation employees is of general naturel It specifically permits transfers on adminis-trative reasons and in special circumstances the employees can be transferred throughout the State. Sri Sharma also contended that in the present case even the District Magistrate, Azamgarh wrote a letter, dated 10-12-1991 to the Managing Director of the Corporation recommending transfer of the petitioner and 4 other persons from Azamgarh Roadways Bus Station to some other place as these persons were creating law and order problem on the Bus Station. Since the District Magistrate himself recommended transfer of the petitioner, it was not necessary for the respondent to have obtained permission of the Addl. District Magistrate for transferring the petitioner who were office bearers of the Union as is contemplated by Circular, dated 29-9-1989.

7. Sri Sharma has contended that even if the order is in violation of the Government instructions, the Hon'ble Supreme Court has ruled that the appropriate remedy for the employee is to make a representation to the higher authorities. It does not give any vested right in the employee to challenge the order of transfer in a court of law. Sri Sharma also contended that if a transfer is made on the basis of a general complaint against an employee and the transfer is not mala fide and is in public interest, such a transfer is a transfer made for administrative reasons and should not be interfered with by this court in exercise of its jurisdiction under Article 226 of the Constitution of India. It was also contended by Sri Sharma that at the time of the passing of the order of the transfer, the promotion of the petitioner was not in the knowledge of the General Manager communicating the transfer order from Lucknow as on the same day, the petitioner was promoted to the post of Fitter. The petitioner will be given the posting on the post of Fitter in Dehradun Depot and there is no question of diminution of the petitioner on the transferred past. Lastly Sri Sharma contended that in the case of B. Varadha Rao (supra), the Hon'ble Supreme Court has not laid down that III or IV class employees should not be transferred in any circumstances whatsoever. It only observed that III and IV class employees stand on a different footing in matters of transfer and the Government will keep these considerations in view while making the order of transfer.

8. On behalf of the petitioner as well as oa behalf of the Corporation, several decisions have been cited in support of their respective submissions.

9. Dr. R.G Padia, learned counsel for the petitioner has placed reliance on—

(i) State of U.P v. Sesh Mani Tripathi, (1991) 2 UP LB EC 1303.

(ii) Sangam Lal Dube v. Director of Education U.P Allahabad, AIR 1957 Alld. 70.

(iii) Dinesh Chandra Kansal v. The State of U.P, 1991 (63) FLR 19.

(iv) Umesh Chand Tiwari v. State of Uttar Pradesh, 1988 LIC 668.

10. On the basis of the aforesaid decisions, Df. Padia has mainly stated that by the aforesaid decisions, it has been held that an employee cannot be transferred on the basis of the complaint made against him and if such transfer is made, the order of transfer is by way of punishment and is liable to be set aside on the ground that the order has been passed without affording an opportunity of show cause to the concerned employee.

11. In reply to the aforesaid submission, Sri Sharma has relied upon the following cases

(a) Dr. Ambika Prasad Mishra v. State of U.P, 1988 (56) FLR 169.

(b) Atul Kumar v. Union of India, (1991) 1 UP LB EC (Tribunal), 46.

(d) B. Varadha Rao v. State of Karnataka, AIR 1968 SC 1955

12. In the aforesaid decisions, it has been held that if a transfer order has been passed in violation of general policy of the transfer, then it does not confer any right in the employee to agitate the matter in the court. He can at best make a representation to the higher authorities and if the transfer has been made on administrative grounds and is not mala fide, then such order should not be snterferred with by a court of law. The transfer can be made even on the basis of the general complaints against an employee, that provides the administrative ground for transfer.

13. I have given a careful consideration to the submissions made by the parties, counsel In B Varadha Rao's case (supra), the Hon'ble Supreme Courts approved the following observations of the High Court:

The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines t) the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants”.

14. In the case of Mrs. Shilpi Bose (supra) the Hon'bls Supreme Court held as under;

“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 rale or on the ground of mala fide. 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 over looked these aspects in interfering with the transfers orders.”

15. In the instructions issued on 29-9-1989, it is mentioned that in the matter of promotion on the post of Asstt. Transport Inspector and some other post mentioned in clause ‘1’ of the instructions including the post of Fitter, the transfers will not be made. In clause ‘6’ thereof it is mentioned that if some employee commits indiscipline and commits some misconduct then instead of transferring him, departmental proceedings should be initiated against him In clause ‘8 it is provided that General Secretary and the President-of the recognised Trade Union at the Depot level should not be transferred for to years from the date of their holding of the office and if it is found that for administrative reasons their transfer is necessary, then the transfer shall be made with the permission of the Addl. District Magistrate. Subsequently at the end, there are instructions that while making transfers the following directive principles should be observed and in clause ‘3’ of the said direction, it is provided that for adminstrative reasons and in special circumstances, the, Head of office can make transfer of any employee through-out the state. In the present case, the transfer has been ordered by the Managing Director himself in special circumstances of the case. As such, such a transfer cannot be said to have been made in disregard of the aforesaid instructions and in any case even if it Is assumed that the petitioner's transfer has been made in disregard of the instructions issued that does not confer a right on the petitioner to challenge the order of transfer in a court of law. The best course for the petitioner is to make a representation to the Managing Director concerned and if any such representation is made, the Managing Director will consider the same on merits and will pass orders within a reasonable time. The violation of any such instructions does not make out a ground for interfering with the transfer order. So far as the petitioner's contention is concerned that by order of transfer, the petitioner has been demoted to the post of daily wager, a clear stand has been taken in the Counter affidavit that the petitioner has not been demoted. He will be posted as Fitter in Dehradun Depot also and no emoluments will be reduced As such merely for the mistake in mentioning the designation of the petitioner in the transfer order, the said order of transfer cannot be interfered with. The petitioner will stand transferred to Dehradun only as a Fitter and not as Mazdoor (Labouier).

16. In the case of B. Varadha Rao (supra), the Hon'ble Supreme Court did not lay down that III and IV class employees should not be transferred in any circumstances of the case. The Hon'ble Supreme Court only observed that general policy of transfer should not be applied to III and IV class employees and the Government should keep this fact in mind The court did not lay down that III and IV class employees cannot be transferred in any circumstances whatsover.

17. So far as the petitioner's submission on the point that the transfer of the petitioner is by way of complaint is concerned, in the decisions relied upon by the petitioner, it has been held that if there is a particular compl-aint in respect of a particular incident, then the person concerned should not be transferred because such a transfer order will amount to an order of punishment without affording an opportunity of bearing or show cause to an employee concerned, but the decisions referred to and relied upon by Sri S.K Sharma make out that if there are general complaints then on the said basis a transfer order can be passed against the employee concerned. In the present case, I am clearly of the opinion that the petitioner has not been transferred on the basis of a particular complaint but the complaints were of general nature and those complaints provided administrative grounds to the Managing Director to transfer the petitioner from Azamgrah Depot to Dehradun Depot There are no allegation at all in the writ petition that the order has been passed mala fide or there is violation of any statutory rules in transferring the petitioner from one place to another place. The petitioner was posted at Azamgarh Depot for last ten years. Since on the basis of general complaints, the Managing Director decided to transfer the petitioner and other persons like the petitioner, there is no such illegality which calls for an interference by this court under Article 226 of the Constitution of India particularly in the circumstances of the present case when the Superin-tendent of Police of the district and the District Magistrate of the district wrote to the authorities concerned that the petitioner is creating law and order problem in the Bus Station of Azamgarh, these general complaints provided admiristrative grounds for the transfer of the petitioner by the Managing Director. The order is not by way of punishment. The writ petition accordingly fails and dismissed. However, in the circumstances of the case, parties will bear their own costs.

18. Petition dismissed.

Govind Pratap Singh ... v. Managing Director (P...