How to challenge a Transfer Order?

Introduction

Government employees who are posted on transferable posts are subject to transfer from one place to another as a condition of their services. These transfer orders often upset the employees as they bring certain challenges for the employees along with them. Sometimes senior authorities, with intent to impose a punishment, transfer employees and and sometimes these transfer orders are passed as part of the administration. Irrespective of the reason, employees are prone to challenge their transfer order before the appropriate authority/court. Although in matters related to the transfer of employees the scope of judicial review is very limited, Indian courtrooms are flooded with a slew of petitions challenging the transfer order of government employees on different grounds. It is a trite law that no Government Servant has any legal right to be posted at any particular place of his choice. A transfer is an incident of government service. Transfer orders can be challenged only on the grounds of violation of the statutory rules or malafide. It is pertinent to note here that the power of judicial review of the court has limited scope when it comes to reviewing the transfer order and the transfer order can be quashed only on the limited grounds evolved by the Supreme Court and High Court through various judgments. In this article, we shall discuss how and what grounds on which an employee can challenge his transfer orders.Our advocate in indore have made an attempt to provide list of grounds on which transfer order can be challenged.

Whether any authority's or department's power to issue transfer order is unlimited?

In general, authorities or departments possess unrestricted power to transfer their employees. It is assumed that the employer is in the best position to decide where its employee is needed the most. Therefore, an employee on a transferable post can be transferred anywhere. However, this does not mean that the power to transfer an employee is unlimited. Such power is subject to service rules governing the service and other existing laws in force. Therefore, transfer orders are being challenged before the High Courts and get quashed if they violate the existing legal principles.

Whether any employee may remain posted at a particular place?

In a catena of judgments it has been pronounced that a government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires.

 

Whether the Courts can interfere in matters related to transfers?

The courts have very limited power when it comes to transfer orders of government employees. Generally, the courts do not interfere in transfer orders else it would be considered as unwarranted and uncontrolled interference in administrative operations. The reason why courts are hesitant to interfere in the case of the transfer order is the ideology that says that the employer is the best judge to decide how and where the service of its employee can be utilised and under the administrative exigency the employee can be transferred by the employer. However, the courts still are vested with the power to stay and quash the transfer orders if the same is malicious, arbitrary, unlawful, against the transfer policy, or the same has been passed as punishment or other.

Steps to Challenge Transfer Order

Our advocate in indore shall provided detailed steps to challenge the transfer order.

Step 1: File Representation before the concerned authority

 The very first step to challenge the transfer order is to file a representation before the concerned authority who has issued the transfer order or any authority higher to such concerned authority. The representation must consist of the details of the employee, details of the transfer order, and grounds on which the employee is challenging the transfer order. There are instances where the concerned authority or department itself has cancelled or quashed the order of transfer of the employee. This saves a lot of precious time and money of the employee. And moreover, there are certain statutes that prescribe the authority to challenge the order passed by certain person. For e.g., an order (including a transfer order) passed by the Collector under Madhya Pradesh Panchayat Raj Adhiniyam can be challenged before the Commissioner under Rule 3(b) of M.P. Panchayats (Appeal and Revision) Rules.

 

Step 2: File a case before the Central Administrative Tribunal or Writ Petition before the High Court

If the representations are rejected or not heard by the concerned authority within a reasonable time, then the second step is to approach either the Central Administrative Tribunal or file a Writ Petition before the High Court. The forum shall be dependent on the nature of service i.e., whether it comes under the jurisdiction of Central Administrative Tribunal. The jurisdiction to decide matters related to services such as All India Service, Civil Service of Union, Defence Services, services related to Union, or of any corporation owned or controlled by the Government, etc. is vested with the Central Administrative Tribunal. Transfer orders of employees belonging to state services such as State Public Service Commissions, State Police Departments, Teaching Departments, etc. must be challenged before the High Court.

What are the grounds on which one can challenge the Transfer Order?

No statute provides an exhaustive list of grounds on which a transfer order can be successfully challenged. However, different pronouncements of recent years have helped us to list out a few grounds on which the courts have quashed transfer orders. A few of them are discussed here:

 

1. When the authority issuing the order of transfer does not have power to issue transfer orders

As per existing service rules, not every senior officer can issue an order of transfer of a junior employee. Order of transfer has to be issued by an authority or employee who has power under the law to issue such orders. If a non-competent authority passes such an order, then the same shall be unlawful and liable to be set aside. In Narendra Kumar Nigam v. The State of Madhya Pradesh & Ors. the petitioner was posted as Patwari and was transferred by the order of transfer issued by the Tehsildar which was later approved by the Sub Division Officer. It was argued before the Court that only a Sub Division officer can issue an order of transfer of a Patwari and a Tehsildar is not vested with such power of issuing an order of transfer of Patwaris. It was held by the Hon’ble High Court of Madhya Pradesh that the fact of the matter is that the impugned order of transfer was passed by an incompetent authority i.e. Tehsildar and, therefore, the proposal is not mooted by the Sub Divisional Officer, merely approval of a proposal is not sufficient as the competent authority to transfer a Patwari is Sub Divisional Magistrate or the Collector and not the Tehsildar. Observing the aforesaid, the Hon’ble High Court has quashed the transfer order.

 

2. When an order of transfer is issued contrary to the service rules

Services of employees are mainly governed by the service rules. The service rules apart from providing the mode of appointment, eligibility criteria of an employee, and termination procedure, also provide for the mode of transfer of particular employee. If an employee is transferred against the governing service rule it may be successfully challenged before the High Court.

In Ramesh Bhabar v. State of MP & Ors. a Panchayat Secretary who was transferred by the Chief Executive Officer, Jila Panchayat challenged his transfer order before the High Court on the ground that the transfer order is passed against the service rules governing the service of Panchayat Secretary. It was argued that although the power of transfer vests with the Chief Executive Officer of Jila Panchayat as provided in M.P. Panchayat Services (Gram Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011, however, as per Rule 15(j) of M.P. Jila Panchayat (Business) Rules, 1998 matters related to transfers must be brought before the General Administrative Committee and strict adherence to rules of 1998 is mandatory. The State opposed the prayer arguing that after Rules 2011 came into force, the Rules of 1998 shall have no applicability as the only requirement under Sub Rule (7) of Rule 6 of Rules of 2011 is that there has to be some administrative ground or an inquiry may also be conducted on this behalf on recommendation of Chief Executive Officer, Janpad Panchayat for transfer of Panchayat Secretary. The Hon’ble High Court while observing that Rule 3 and Rule 15 of 1998 Rules are mandatory in nature. Whereas, Rule 6(7) of 2011 provides one of the service conditions of a Gram Panchayat Secretary, under which circumstances he or she can be transferred, but what procedure the Chief Executive Officer of a Gram Panchayat is required to be adopted is only provided in the Zila Panchayat (Business) Rules, 1998. Therefore, the transfer order of the Panchayat Secretary has to be brought before the General Administrative Committee. The Hon’ble High Court in light of the aforementioned, quashed the impugned transfer order.

3. When the transfer order is passed as a punishment or with mala fide intention

It is a settled law that the instrumentality of transfer cannot be used as punishment and therefore, a transfer order which is issued only with intent to punish the employee is illegal and the same is liable to be quashed.

In Gajendra Kumar v. State of Madhya Pradesh & Anr. the appellant was posted as Superintendent Engineer at M. P. Paschim Kshetra Vidyut Vitran Company Limited, Indore. A show-cause notice was issued to him alleging that he unauthorizedly entered into the Chamber of the Managing Director of the Company without obtaining prior permission as important files, documents etc., are kept inside the Chamber. Before the appellant could reply to the aforesaid show-cause notice, he was transferred from Indore to Agar on the post of Executive Engineer. Thereafter on the same day, he was relieved for joining at new place of posting with a direction that he should hand-over the charge immediately. The appellant challenged his transfer order on the ground that the same has been passed as punishment as the entire process was done within 24 hours which shows the malafide intention behind such transfer order. The Division Bench of the Hon'ble High Court observed that “It is to one to say that the employer is entitled to pass an order of transfer in administrative exigency, but it is another thing to say that the order of transfer is passed by way of, or, in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set-aside being wholly illegal.” The Hon’ble Court noted that the respondents even without waiting for the reply to show-cause notice have deliberately transferred the appellant, which amounts to colourable exercise of powers and quashed the impugned transfer order.

4. When the transfer order is passed during the election

During the election state is under the obligation to follow and strictly comply with the Model Code of Conduct. Model Code of Conduct imposes a ban on the promotion and transfer of officials connected with elections without prior clearance from the election commission. The ban continues till the continuation of the election process. If an order passes without taking the prior clearance from the Election Commission, the said order can be considered to be an order passed by the authority without any competence and jurisdiction. In Rajesh Henry v. State of M.P. & Ors, the Petitioner was an Additional Excise Commissioner. During the election, he was serving as State Level Flying Squad, Bhopal. He was transferred to the Office of Excise Commissioner, Gwalior without taking prior clearance from the Election Commission. The Hon’ble High Court of Madhya Pradesh quashed the order of transfer while observing that the model code of conduct has a statutory force and strict adherence to the same is required by the state, the state cannot transfer the officials connected with the election during the continuation of election process without prior clearance from the election commission.

5. When the employee is transferred to a place or institution where his post does not exist

An employee can be transferred either on the same post on which he is posted or to a higher post. However, in no circumstances, an employee shall be transferred where his post does not even exist else posting the employee at place would be meaningless. In Santosh Jatav v. State of Madhya Pradesh, the government employee who was Panchayat Secretary at Gram Panchayat was attached at Janpad Panchayat. The order of transfer was challenged on the ground that there is no post of Panchayat Secretary at Janpad Panchayat and such post exists only at Gram Panchayat as per the statutory rules of 2011 which governs the service conditions of Panchayat Secretary. It was thus, argued before the court that the government employee cannot be attached, transferred, or posted to the place where there is no post. The High Court of Madhya Pradesh observed that attachment to the place, where there is no post cannot be said to be legally sustainable and allowed the petition of the employee and quashed the order of transfer.

6. When the order of transfer has been issued at the time of retirement of the employee

In general, employees do not get transferred when they are going to retire soon. It is a prolonged practice and jurisprudence of service law that departments do not issue orders of transfer of an employee who is about to retire within 2-3 years. Transfer Policy issued from time to time carries a clause relating to transfer of employee who are going to retire within 2-3 years. Such employees are preferred to give posting at their home town or places close to their home town or any other station where they want to settle down after retirement. Such posting would subject to administrative convenience. On the other hand orders of transfer which would bring personal difficulty for them at time of retirement are avoided.

7. When the employee is transferred frequently

Courts believe that fixed minimum tenure would enable civil servants to achieve their professional targets as well as help them to function as effective instruments of public policy. (See T.S.R. Subramanian and Others v. Union of India and Others). Frequent transfers are deleterious to good governance. A minimum assured tenure would result in efficient service delivery and increased efficiency. Apart from this courts acknowledge the personal difficulty that arises out of frequent transfers such as disturbing the education of children, demoralisation of public servant, uprooting his family and others. (See Dr. Nagorao Shivaji Chavan v. Dr. Sunil Purushottam Bhamre and Others)  Frequent transfer of an employee indicates a sign of arbitrariness and thus, can’t pass through the filter of law. Therefore, frequent transfer order in the absence of any explained administrative exigency have evolved as successful ground for quashing a transfer order.

In, Sanjay Upadhyay v. State of M.P. & Ors. the petitioner, a member of the State Administrative Service, was transferred eight times in 3 years and the transfer order which was challenged before the Principal Seat of High Court of Madhya Pradesh, was issued within 1 and 1/2 years of the last transfer order. The High Court observed that although transfer is an incident of service and interference in transfer matters in a writ petition in normal course is not permissible, however, it does not mean that if an employee is frequently transferred by the authority and is not allowed to continue or complete his normal tenure at one place then the High Court cannot examine the validity of the order. The scope of interference in transfer matters is very limited for the reason that transfer is considered to be an administrative exercise and is an incident of service, therefore, if administrative exigency arises, the employer has every right to transfer the employee but on several occasions, the Supreme Court as well as the High Court has considered this aspect that if an employee is arbitrarily transferred frequently then that conduct of the authorities is considered to be a mala fide action on their part and in such a circumstance, the High Court has every right to interfere in the matter. The High Court quashed the transfer order holding that frequent transfer was a clear sign of arbitrariness.

 

8. When the employee is carrying more than 40% disability

In general, employees carrying disability are treated on different footing than other employees especially in matters related to the transfer depending on the quantum of percentage of disability of such employee. It is acknowledged by courts that employee having disability up to 40% or above should not generally be transferred unless the application of transfer is given by them. In Kamlesh Sharma v. State of M.P. and Ors. the petitioner was carrying 45% of disability and was appointed as Assistant Grade III from handicap quota. Vide her transfer order, the petitioner was transferred from Gwalior to Panna. The petitioner challenged her transfer order before the High Court on the ground that since she is carrying 45% of disability therefore, she cannot be transferred. The Hon’ble High Court while allowing the petitioner of the petitioner observed that employees carrying more than 40% disability generally should not be transferred and only on the application given by them for transfer on the own request, can be taken into consideration by the authorities.

What if one does not challenge his transfer order?

If a person is aggrieved by the order of transfer, then it is legally advised that he must challenge the same before the appropriate authority else it will attain finality and it will be presumed that the employee has accepted the order, and he is duty-bound to comply with the same. Recently in U.P. Singh v. Punjab National Bank (CIVIL APPEAL NO.5494 OF 2013) it was observed by the Hon’ble Supreme Court that “A person aggrieved by the order of transfer cannot sit at home and decide on his own that the order is illegal or erroneous and he will not comply with the same. If the workman had any grievance, he could have availed of his remedy available against the same; otherwise, he was duty-bound to comply with the same. Failure to avail of any remedy also would mean that he had accepted the order and was duty-bound to comply with the same. At a later stage, he could not take a plea that the order being erroneous, no consequence would follow for its non-compliance.”