Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2024 INSC 200
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4129 OF 2024
(Arising out of Special Leave Petition (C) No. 22074 OF 2023)
SRI PUBI LOMBI ...APPELLANT
VERSUS
THE STATE OF ARUNACHAL PRADESH ...RESPONDENTS
& ORS.
J U D G M E N T
J. K. Maheshwari J.
1. Leave granted.
2. The judgment dated 22.09.2023 passed by the Division
Bench of the Gauhati High Court in Writ Appeal No.
266/2023 reversing the judgment of the learned Single
Judge dated 11.07.2023 passed in Writ Petition (Civil) No.
199 (AP) 2023 has been assailed by the appellant
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2024.03.13
16:03:10 IST
Reason:
(respondent No. 5 in Writ Court). The learned Single Judge
by upholding order of transfer dated 20.04.2023 observed
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that transfer made on the basis of UO Note dated
28.02.2023 put up by the Member of the Legislative
Assembly, 29-Basar (ST) Assembly Constituency (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.
3. Writ Petition (Civil) No. 199 (AP) 2023 was filed before the
High Court by respondent No. 5 herein challenging the
modified order of transfer dated 20.04.2023. Learned Single
Judge dismissed the writ petition in absence of having any
allegation of malafide, being transfer is one of the
ingredients of the service. The relevant part of the said order
is reproduced as thus: -
“17. Taking note of the law laid down by the Hon’ble
Supreme Court in the case of Mohd. Masood Ahmad (supra);
the U.O. Note, dated 28.02.2023, put up by the Member of
Legislative Assembly, 29-Basar (ST) Assembly Constituency,
requesting the competent authority for transfer of the
Respondent No. 5 as Deputy Director of School Education,
Government of Arunachal Pradesh, Leparada, cannot be
faulted with.
Accordingly, even if the respondent authorities had modified
the earlier order of transfer, dated 15.11.2022, issued by the
Commissioner (Education), Government of Arunachal
Pradesh, Itanagar, vide the impugned order, dated 20.04.2023,
issued by the Commissioner (Education), Government of
Arunachal Pradesh, Itanagar, acting on the U.O. Note, dated
28.02.2023, put up by the Member of Legislative Assembly,
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29- Basar(ST) Assembly Constituency; that itself, cannot be
held to vitiate the impugned order, dated 20.04.2023, issued
by the Commissioner (Education), Government of Arunachal
Pradesh, Itanagar.
XXX XXX XXX
19. Accordingly, in the absence of any mala fide exercise
of power by the respondent authorities or violation of any
statutory provision in issuing the impugned order, dated
20.04.2023, by the Commissioner (Education), Government of
Arunachal Pradesh, Itanagar; I am, therefore, not inclined to
interfere with the impugned order, dated 20.04.2023, issued
by the Commissioner (Education), Government of Arunachal
Pradesh, Itanagar, in the facts and circumstances of the
instant case, even if the aforesaid order, dated 20.04.2023,
has been issued by the authority acting on the basis of the
U.O. Note, dated 28.02.2023, put up by the Member of
Legislative Assembly, 29-Basar(ST) Assembly Constituency,
having regard to the law laid down by the Hon'ble Supreme
Court in Mohd. Masood Ahmad (supra).
20. In that view of the matter; I do not find any merit in
this writ petition and the same is hereby dismissed.”
4. On filing writ appeal by the Respondent No. 5 the Division
Bench of the High Court while setting aside the order of
learned Single Judge observed that the UO Note of the MLA
was approved without application of mind and any remark
of administrative exigencies by department to substantiate
that it was in public interest or in exigency of the service.
The relevant excerpt of the impugned judgment reads as:
27. The appellant who was already under order of transfer is
“
having a legitimate expectation to join and continue in the
transferred place of posting. However, his transfer order was
suddenly modified without any proposal being mooted by his
employer but acting on the proposal of the Local MLA and in
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favour of respondent No.5. In the above backdrop, this court is
of the considered opinion that such order of transfer is neither
issued in the exigencies of service nor in public interest,
rather the same is a result of arbitrary exercise of power.
XXX XXX XXX
29. This Court cannot approve such kind of sheerly
lackadaisical administrative procedure adopted in the
decision-making process inasmuch as the proper
administration under the Constitutional scheme of
governance, every State action must be supported by reason.
In the present case, the fact cannot be ignored that the
appellant was already under order of transfer and he was
released on 19.04.2023 and he joined at the place of transfer
on 20.04.2023 and therefore, in the present case, it was
further necessary to have the decision impugned supported by
reason in cancelling the earlier transfer order that too when
the proposal of transfer of respondent No. 5 was initiated not
by the administrative department in public interest or in
exigencies of services rather it was purely on the basis of U.O.
Note given by local MLA. Therefore, in the considered opinion
of this Court, the impugned order cannot be said to be an
order of transfer in public interest or in exigencies of services. ”
5. The judgment of the Division Bench has been questioned
before us, inter-alia, contending that in the matter of
transfer scope of judicial review is limited, only when such
transfer is in violation of the statutory provisions or due to
malafide reasons. As a corollary, it is not open to the Court
to interfere with the orders of transfer on a post which is
transferrable, in absence of any malafide alleged or
infraction of any professed norms if such transfer is not
detrimental. Further, it was canvassed that transfer on the
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instance of MP/MLA always would not per se vitiate the
order of transfer.
6. Per contra learned counsel appearing for respondent No. 5
who was Writ Petitioner before the High Court submits that
the malafide is of two kinds: - one malice in fact and the
second malice in law, in the peculiar facts of this case the
Division Bench has rightly set aside the order which do not
warrant interference.
7. Conversely, learned counsel for the State has supported the
contention of the appellant and urged that after
consideration of the UO Note of the MLA, modified order of
transfer has been passed in public interest after due
application of mind, and the Division Bench has committed
an error in setting aside the well-reasoned judgment of
learned Single Judge.
8. We have heard learned counsel for the parties and first we
wish to appreciate the law and principles laid-down in the
matter of transfer persuading judicial review.
9. In the case of Union of India and others Vs. S.L. Abbas;
(1993) 4 SCC 357 , it is clearly observed by this Court that
the scope of judicial review is only available when there is a
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clear violation of statutory provision or the transfer is
persuaded by malafide, non-observation of executive
instructions does not confer a legally enforceable right to an
employee holding a transferable post. The relevant
paragraph reads as under:
“7. Who should be transferred where, is a matter for the
appropriate authority to decide. Unless the order of transfer is
vitiated by mala fides or is made in violation of any statutory
provisions, the court cannot interfere with it. While ordering
the transfer, there is no doubt, the authority must keep in
mind the guidelines issued by the Government on the
subject……..”
9.1 Further, following the footsteps of (supra) this
S.L. Abbas
Court in the case of
Union of India and another Vs. N.P.
held that the
Thomas; 1993 Supp (1) SCC 704
interference by the Court in an order of transfer on the
instance of an employee holding a transferrable post
without any violation of statutory provision is not
permissible.
9.2 This Court further curtailed the scope of judicial review in
the case of
N.K. Singh Vs. Union of India and others;
holding that the person challenging the
(1994) 6 SCC 98
transfer ought to prove on facts that such transfer is
prejudicial to public interest. It was further reiterated that
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interference is only justified in a case of malafide or
infraction of any professed norm or principle. Moreover, in
the cases where the career prospects of a person
challenging transfer remain unaffected and no detriment is
caused, interference to the transfer must be eschewed. It is
further held that the evidence requires to prove such
transfer is prejudicial and in absence thereof interference is
not warranted. The law reiterated by this Court is
reproduced, in following words: -
“9. Transfer of a public servant from a significant post can be
prejudicial to public interest only if the transfer was avoidable
and the successor is not suitable for the post. Suitability is a
matter for objective assessment by the hierarchical superiors
in administration. To introduce and rely on the element of
prejudice to public interest as a vitiating factor of the transfer
of a public servant, it must be first pleaded and proved that
the replacement was by a person not suitable for the
important post and the transfer was avoidable. Unless this is
pleaded and proved at the threshold, no further inquiry into
this aspect is necessary and its absence is sufficient to
exclude this factor from consideration as a vitiating element in
the impugned transfer. Accordingly, this aspect requires
consideration at the outset.
XXX XXX XXX
“23. …….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.”
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“24. …Challenge in courts of a transfer when the career
prospects remain unaffected and there is no detriment to the
government servant must be eschewed and interference by
courts should be rare, only when a judicially manageable and
permissible ground is made out. This litigation was ill-
advised.”
9.3 The issue involved in the present case is somewhat similar
in the case of Mohd. Masood Ahmad Vs. State of U.P.
and others; (2007) 8 SCC 150 wherein this Court in
paragraph 8 has observed as thus: -
“8. ….. 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……”
9.4 It is not tangential to mention that this Court in the case of
State of Punjab Vs. Joginder Singh Dhatt; AIR 1993 SC
2486 observed as thus: -
“3……..It is entirely for the employer to decide when, where
and at what point of time a public servant is transferred from
his present posting………”
9.5 It is also imperative to refer the judgement of this Court in
the case of Ratnagiri Gas and Power Private Limited Vs.
RDS Projects Limited and Ors.; (2013) 1 SCC 524 where
it reiterated one of the pertinent principles of
administrative law is that when allegations of malafide are
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made, the persons against whom the same are levelled
need to be impleaded as parties to the proceedings to
enable them to answer. The relevant excerpt is reproduced
as thus:
“27. There is yet another aspect which cannot be ignored. As
and when allegations of mala fides are made, the persons
against whom the same are levelled need to be impleaded as
parties to the proceedings to enable them to answer the
charge. 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……..”
10. In view of the foregoing enunciation of law by judicial
decisions of this Court, it is clear 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.
11. On examining the facts of the present case, it is apparent
that respondent No. 5 herein was transferred from the
Government Higher Secondary School (GHSS) Kanubari,
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Longding district to Leparada as Deputy Director of School
Education (DDSE) vide order dated 15.11.2022 and was
directed to join in the last part of April, 2023. The UO Note
dated 28.02.2023 has been written by the MLA specifying
the administrative exigency and public interest in posting
the appellant on the post of DDSE, Leparada. The said UO
Note has been examined and competent authority has
exercised its discretion in favour of the appellant, and the
respondent No. 5 herein has been retained on the same post
in the same district in same status which he was holding
prior to order of transfer dated 15.11.2022 un-affecting his
salary. Besides, it is also averred by the State that the
modified order dated 20.04.2023 was passed prior to
effective period during which respondent no. 5 was directed
to join i.e., in the last part of April, 2023.
12. As per the counter affidavit filed by the State Government,
even before us it is specifically averred that the order of
transfer dated 20.04.2023 modifying the previous order
dated 15.11.2022 has been issued in public interest after
due application of mind and without any malafide
intentions. As far as the stance of respondent no. 5 herein is
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concerned, the plea of malafide against transferring
authority has not been agitated even before this Court or
the High Court. Further, the impugned transfer order is also
not alleged to be violative of any prescribed statutory
provision.
13. In view of the stand taken by the Government and in
absence of plea of malafide and no averment regarding
violation of statutory provision taken by the private
respondent before the High Court, interference as made by
the Division Bench setting aside the well-reasoned judgment
of the Single Judge is not justified 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.
14. Accordingly, the Civil Appeal is hereby allowed, the
judgment and order dated 22.09.2023 passed by the
Division Bench of the High Court is hereby set aside,
restoring the order dated 11.07.2023 of the learned Single
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Judge. Pending application(s), if any, shall stand disposed
of.
…………….…………J.
(J.K. Maheshwari)
………………………..J.
(Sanjay Karol)
New Delhi;
13.03.2024.
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