Transfer Order Allegedly In Violation Of State Policy Cannot Be Challenged In Writ Jurisdiction: Allahabad High Court

“Transfer is indeed an exigency of service and interference by this Court in exercise of our writ jurisdiction under Article 226 of the Constitution of India is permissible only in the event that the transfer is actuated by malafides in fact or is vitiated by malafides in law. Still, there is one more avenue, where this Court can interfere with a transfer order, and, that is where the transfer order is in breach of a statutory rule. However, in no event a transfer order can be interfered with on the ground of infraction of the State's transfer policy,” held Justice JJ Munir.

Petitioner, a Senior Auditor in the office of the Director, Co-operative Societies and Panchayat Audit, Lucknow, U.P., was issued a transfer order in ‘public interest’. He assailed the transfer order on the ground that his wife, an Assistant teacher at a Government Primary School, was recently transferred to his current posting to post spouses at the same station.

Paragraph number, 5(iv) of the State Government transfer policy for 2022-23 provides that if both spouses are in government employment, so far as viable, transfer can be made to post them in the same district, city or station.

Counsel for the Petitioner argued that the transfer of the Petitioner, 200 km away, was arbitrary and based on pick and chose policy. Though an exigency of service, the transfer cannot be made arbitrary. Further, the right of the wife cannot be defeated, since she was recently transferred to the posting of the Petitioner, argued the Counsel for the Petitioner.

Relying on the law laid down by the Supreme Court in the State of U.P. and others v. Govardhan Lal, the Court held that transfer policy if the State are administrative in nature. Since they are different from statutory rules, violation of the policy will not grant government servants any right to challenge it before a Court of law.

The Court distinguished the case of Ram Awadh Ram v. State of U.P. and another, relied upon by the Petitioner as the transfer order under challenge therein was in violation of U.P. District Offices (Collectorates) Ministerial Service Rules, 1980. The court interfered in the transfer order in that case as it was in violation of a statutory rule, it clarified.

Accordingly, in the present case, since no violation of any statutory rule had been established, the Court refused to interfere with the transfer order. However, the petitioner was given an opportunity to join his posting and raise his grievances before the concerned authorities.

Case Title: Amit Kumar vs. State of UP & 2 Others 2023 LiveLaw (AB) 248 [Writ A No. 11797/2023]

Case Citation: 2023 LiveLaw (AB) 248