Transfer Order Unsustainable If It Is Based On Irrelevant Ground & Not On Any Germane Factor : Supreme Court

The Supreme Court court observed that a transfer order is unsustainable if it is is based on an irrelevant ground and not on any factor germane for passing it.In this case, the writ petitioner alleged that hostile transfer orders were passed as she did not act as per the demands of the supervising High Court judge. She complained that was faced with transfer from a Category 'A' city to Category 'C' city and also a Naxal affected area, in violation of the extant transfer policy of the High Court. Since the transfer would have prevented her from being with her daughter who was then appearing for the board exams, she was faced with no option but to resign. Later, she approached the Supreme Court asserting her right to be reinstated.While examining this case, the court noted that (1) The transfer order was issued on 8th July 2014. (2) The petitioner made a representation on the very next day i.e. 9th July 2014, and the same was rejected within two days i.e. 11th July 2014. (3) On 11th July 2014, the petitioner made another representation. However, that also did not find favour with respondent No. 1 and was rejected on 14th July 2014, on the ground that the earlier representation on identical grounds was already rejected. (12th July 2014 was a second Saturday, 13th July 2014 was a Sunday ) (4) On the very next working day i.e. 14th July 2014, her second representation was rejected. (5) On 15th July 2014, the petitioner tendered her resignation. (6) On the next day i.e. 16th July 2014, the MP High Court with the recommendation for acceptance of the same, forwarded it to respondent No.2. (7) On the very next day i.e. 17th July 2014, respondent No. 2 accepted the same. "Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances enumerated hereinabove, would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative", the court observed.The court observed that the transfer order dated 8th July 2014, would squarely be covered by 'malice in law' as it was passed without taking into consideration the Guidelines provided in the Transfer Policy but on the basis of unverified allegations made in the complaint made by the then D & SJ, Gwalior. In this context, the bench referred to Somesh Tiwari v. Union of India and Others (2009) 2 SCC 592, to observed thus:61. This Court has held that normally an order of transfer, which is an incident of service should not be interfered with, unless it is found that the same is mala fide. It has been held that mala fide is of two kinds — one 'malice in fact' and the second 'malice in law'. When an order is not based on any factor germane for passing an order of transfer and based on an irrelevant ground, such an order would not be sustainable in law."The court added that though the Transfer Policy may not be enforceable in law, but when the Transfer Policy has been framed by the MP High Court for administration of the District Judiciary, every Judicial Officer will have a legitimate expectation that such a Policy should be given due weightage, when the cases of Judicial Officers for transfer are being considered."Non-consideration of the relevant material and consideration of the extraneous material would come into the realm of irrationality. An action which is arbitrary, irrational and unreasonable would be hit by Article 14 of the Constitution of India. We, therefore, find that the rejection of the representations of the petitioner dated 9th July 2014 and 11th July 2014, would also not stand the scrutiny of law", the court added.Case name: Ms. X vs Registrar General, High Court of Madhya PradeshCitation: 2022 LiveLaw (SC) 150Case no.|date: WP(C)1137 OF 2018 | 10 Feb 2022Coram : Justices L. Nageswara Rao and BR GavaiCounsel: Sr. Adv Indira Jaising for petitioner, SG Tushar Mehta for respondentsCaselawFactual Summary - The writ petitioner alleged that hostile transfer orders were passed as she did not act as per the demands of the supervising High Court judge. She complained that was faced with transfer from a Category 'A' city to Category 'C' city and also a Naxal affected area, in violation of the extant transfer policy of the High Court. Since the transfer would have prevented her from being with her daughter who was then appearing for the board exams, she was faced with no option but to resign. Later, she approached the Supreme Court asserting her right to be reinstated. The Supreme Court Held: Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative.The petitioner's resignation from the post of Additional District & Sessions...

Transfer Order Unsustainable If It Is Based On Irrelevant Ground & Not On Any Germane Factor : Supreme Court

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