Transfer Of Govt Employee Not Vitiated Merely Because It Was Issued At Instance Of MLA : Supreme Court

The Supreme Court on Wednesday (March 13) observed that the interference by the court in an order of transfer at the instance of a state employee holding a transferrable position without any violation of statutory provision is impermissible.

Reversing the findings of the High Court's Division Bench, the Bench Comprising Justices J.K. Maheshwari and Sanjay Karol, while restoring the findings of the High Court's Single Judge, observed that the transfer order of a state employee issued in the public interest at the instance of a public representative such as the Member of Legislative Assembly ("MLA") by itself would not vitiate the transfer order unless such an order of transfer is malafide or violates statutory provisions.

The aforesaid observation in the Judgment authored by Justice J.K. Maheshwari came while deciding a Civil Appeal preferred by one Sri Puri Lombi/Appellant, who was aggrieved by the decision of the Division Bench of Gauhati High Court, whereby the High Court, while interfering with the transfer order issued by the state government at the instance of MLA in public interest, directed the reinstatement of the appellant to the previously transferred place.

Background

The gist of the dispute relates to the transfer of two state employees i.e., the appellant and respondent no.5, from their previous place of posting to a new place of posting. Two transfer orders were issued by the State Government. The first transfer order dated 15.11.2022 directed the appellant holding the post of DDSE, Seppa, East Kameng District to be transferred as Principal, Dani Kunia GHSS, Ziro, and it directed the respondent no.5 holding the position of Principal at GHSS, Kanubari, Longding District to be transferred as Deputy Director of School Inspector at Leparada District.

However, at the instance of the local MLA, a modification was made to the first transfer order dated 15.11.2022 in the public interest, and the new order dated 20.04.2023 was issued by the state government. The new transfer order directed the appellant to be transferred from DKGHSS, Ziro to, Leparada District, Basar as DDSE, and respondent no.5 to be retained to the position of Principal at GHSS, Kanubari, Longding District.

Aggrieved by the new transfer order issued at the instance of the local MLA, respondent no.5 preferred a Writ Petition before the High Court alleging that the transfer order issued at the instance of the MLA is malafide because there is neither any public interest in issuing such transfer order nor there is any exigency of service, and the transfer order was passed just to discriminate with the appointment of the respondent no.5.

The Single Judge of the High Court dismissed the Writ Petition holding that the transfer made based on the Note put up by the MLA itself cannot be held to vitiate the transfer until there is an allegation of any malafide exercise of powers by the respondents-authorities in issuing the order.

However, the High Court's Division Bench overturned the Single Judge Judgment and directed the reinstatement of the appellant and respondent no.5 as per the first transfer order dated 15.11.2022 by holding that the new transfer order was arbitrary and was passed with malafide intention.

Aggrieved by the Division Bench Judgment, the appellant preferred the Civil Appeal before the Supreme Court.

Supreme Court's Observation

After perusing the impugned order passed by the High Court's Division Bench, the Supreme Court observed that the Division Bench erred in overturning the decision passed by the Single Judge. The court noted that there was no malafide intention on the part of the MLA to discriminate with respondent no.5, and such an order of transfer issued at the instance of the local MLA cannot be vitiated as it was passed in the public interest looking towards the grievances of the people.

The court relied on its Judgment of Mohd. Masood Ahmad Vs. State of U.P. and others, where it observed as follows:

“In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people, and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee……”

The court clarified that although a transfer order passed on the administrative side shouldn't be interfered with by the court, however, the interference is only justified in a case of malafide or infraction of any professed norm or principle.

“Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.”, the Supreme Court observed in N.K. Singh vs. Union of India and others.

Person Against Whom Allegations of Malafide Are Levied Need To Be Impleaded As Party

Apart from the ground of absence of malafide intention in passing the new transfer order, the court also took note of the fact that respondent no.5 failed to make the MLA, at whose instance the transfer order was made, the party to the petition.

To this effect, the court placed its reliance on Ratnagiri Gas and Power Private Limited Vs. RDS Projects Limited and Ors., where one of the pertinent principles of administrative law was reiterated i.e., when allegations of malafide are made, the persons against whom the same are leveled need to be impleaded as parties to the proceedings to enable them to answer.

“In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned……..”, the court observed in Ratnagiri Gas.

Judicial Review Of Transfer Order Is Impermissible Under Article 226

The Supreme Court clarified that “in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India.”

Conclusion

Based on the above premise, the Supreme Court held that the Division Bench erred in reversing the decision of the Single Judge merely on the unsubstantiated pretext that the proposed modification is arbitrary or without application of mind for the sole reason that it was mooted by the MLA.

“In our view the Division Bench has committed an error in setting aside the judgment of the learned Single Judge.”

Accordingly, the appeal was allowed, and the judgment passed by the Division bench was set aside, and the judgment passed by the Single Judge was restored.

Counsels For Petitioner(s) Mr. B.K. Sharma, Sr. Adv. Mr. Kaushik Choudhury, AOR Mr. H.K. Das, Adv. Mr. S.P. Sharma, Adv. Mr. Saksham Garg, Adv. Mr. Jyotirmoy Chatterjee, Adv. Mr. Kasif Ahmed, Adv.

Counsels For Respondent(s) Mr. Saurabh Mishra, Sr. Adv. Mr. Gagan Sanghi, Adv. Mr. Rameshwar Prasad Goyal, AOR Mr. Abhimanyu Tewari, AOR Ms. Eliza Bar, Adv.

Case Title: SRI PUBI LOMBI VS. THE STATE OF ARUNACHAL PRADESH

Citation : 2024 LiveLaw (SC) 231

Click Here To Read/Download The Judgment