Is an order of transfer made on administrative grounds open to interference in judicial review, and on what grounds?

The present Writ Petition has been filed challenging the impugned order of transfer dated 29.07.2022, whereby the petitioner was transferred from Chengalpattu Medical College and Hospital to the Government Medical College Hospital, Nagapattinam. Pursuant to the said transfer order, the petitioner was relieved on 30.07.2022. Both the transfer order and the consequential relieving order are under challenge in the present Writ Petition.

The learned counsel for the petitioner would strenuously contend that the impugned orders are non-speaking orders and have been passed without application of mind and without following the principles of natural justice. It is also the contention of the learned counsel for the petitioner that though the transfer order has been stated to be an administrative transfer, in effect, the same has been made only to cause inconvenience and hardship to the petitioner. According to him, the transfer is actuated by malice and the respondents cannot take shelter merely by describing the transfer as an administrative one. It is further contended that, though certain complaints were made against the petitioner, without conducting a proper enquiry and without affording an opportunity to the petitioner, the impugned transfer order has been passed in the nature of a punishment. The sum and substance of the contention of the learned counsel for the petitioner is that the impugned transfer is punitive in nature and has been effected with mala fide intention. Hence, he prayed for interference with the impugned orders.

Per contra, the said contention was stoutly opposed by the learned Government Advocate appearing for the respondents and would submit that the petitioner, being a Doctor, is expected to be a role model to others. Even assuming that the petitioner has any grievance in respect of the transfer, if the same is bona fide, he ought to have joined at the transferred place and thereafter has to agitate his grievance in the manner known to law. In the case in hand, despite the issuance of the transfer order, the petitioner has been continuing in unauthorised absence. His conduct has adversely affected the functioning of the hospital and has caused hardship to poor and downtrodden patients. He would further submit that a complaint had also been made against the petitioner alleging harassment of students, which was taken into consideration while ordering the transfer. Hence, he prayed to dismiss the present Writ Petition.

I have given my anxious consideration to the submissions made on either side and perused the materials available on record.

The primordial submission of the learned counsel for the petitioner is that the impugned transfer has been effected on the ground of malice and is punitive in nature. In this regard, he relies upon the judgment of this Court in R.Mohanasundaram Vs. The Principal Chief Conservator of Forests, reported in 2009 SCC OnLine Mad 916, and would contend that a transfer cannot be made by way of punishment under the guise of administrative reasons. The learned counsel for the petitioner would also rely upon the judgment of the Hon’ble Supreme Court in Somesh Tiwari Vs. Union of India and Others, reported in (2009) 2 SCC 592, and would contend that the impugned transfer order is hit by the principles of malice. While considering Somesh Tiwari’s case (cited supra), the Hon’ble Supreme Court has explained two kinds of malice, viz., malice in fact and malice in law. When an order is passed without any basis or on irrelevant grounds, i.e., on the basis of allegations made against the appellant in an anonymous complaint, the same can be construed as malice in fact.

However, the facts of the present case are distinguishable from those obtaining in the aforesaid judgment. Even according to the petitioner, the complaint was given by the students, though the petitioner would contend that the complaint arose out of a misunderstanding regarding his conduct in reprimanding them, at this stage, it is not necessary for this Court to go into the merits of the complaint in minute detail. The fact remains that a complaint had been made against the petitioner. Though the learned counsel for the petitioner placed reliance upon Somesh Tiwari's case (cited supra), in the said case, the transfer was based upon an anonymous complaint, which is not the factual position in the present case.

Though the learned counsel for the petitioner would further contend that the impugned transfer is punitive in nature, this Court is of the firm view that every transfer effected pursuant to a complaint against an employee cannot, by itself, be construed as punitive in nature. The administration is entitled to take bona fide decisions in order to ensure the effective and smooth functioning of an institution so as to maintain a conducive atmosphere. Though the petitioner would contend that the transfer was effected with mala fide intention and with a view to causing inconvenience to him, no specific individual has been impleaded or identified in personal capacity against whom such allegations of mala fides are made. The allegation of mala fides is, therefore, general in nature and appears to be based on the personal perception of the petitioner.

Before we delve into the other aspects, this Court deems it appropriate to refer to certain settled principles with regard to administrative transfers, which are an incidence of service and a condition of service. When a transfer is effected on administrative grounds, ordinarily, the same cannot be interfered with by a Court in exercise of its power of judicial review, unless the transfer is shown to be vitiated by mala fides, arbitrariness or statutory violation. An employee has no vested right to insist upon a particular place or post of posting. The choice of place of posting is primarily within the domain of the administration. It is the duty of the administration to deploy its available human resources in the most effective manner for the larger interest of the institution and the society. Personal grievances of an employee, by themselves, cannot ordinarily be a ground for interference with an administrative transfer.

In this regard, it is relevant to refer to the judgment of the Hon'ble Supreme Court in Shilpi Bose and Others Vs. State of Bihar and Others, reported in 1991 Supp (2) SCC 659, wherein the Hon'ble Supreme Court has held as follows:- “A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department”.

Similarly, in the case of State of Uttar Pradesh Vs. Gobardhan Lal, reported in (2004) 11 SCC 402, the Hon’ble Supreme Court has held that an order of transfer, even if made in transgression of administrative guidelines, cannot ordinarily be interfered with, as such administrative guidelines do not confer any legally enforceable right. In order to maintain a peaceful atmosphere in an institution, the competent authority may effect a transfer, and such transfer cannot always be branded as punitive in nature. In the case in hand, though the petitioner was transferred in the year 2022, he has not joined at the transferred place, which according to this Court amounts to serious delinquency.

In this regard, it is also relevant to refer to the judgment of the Hon'ble Supreme Court in Tushar D. Bhatt Vs. State of Gujarat, reported in (2009) 11 SCC 678, wherein the Hon'ble Supreme Court has observed as follows:- “16. The legal position has been crystallised in a number of judgments that transfer is an incidence of service and transfers are made according to administrative exigencies. 17. In the instant case, in the entire tenure of more than 18 years, the appellant was only transferred twice. The appellant's transfer order cannot be termed as mala fide. The appellant was not justified in defying the transfer order and to level allegations against his superiors and remaining unauthorisedly absent from official duties from 11-10-1999 to 27-4-2000 i.e. more than six months. In the interest of discipline of any institution or organisation such an approach and attitude of the employees cannot be countenanced. 18. In Gujarat Electricity Board v. Atmaram Sungomal Poshani [(1989) 2 SCC 602 : 1989 SCC (L&S) 393 : (1989) 10 ATC 396 : AIR 1989 SC 1433] this Court had an occasion to examine the case of almost similar nature. This Court observed as under: (SCC p. 607, para 4) “4. … Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the public servant concerned must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other”.

Further, in the recent judgment of the Hon'ble Supreme Court in The Tamil Nadu Agricultural University and Another Vs. R. Agila etc., in Special Leave to Appeal (C) Nos.13070-13075 of 2022, dated 20.08.2024, the Hon'ble Supreme Court has held as follows:- “18. Despite there being no interim order in their favour, respondent nos.4 and 7 continued to remain absent after being relieved from their original place of posting. As such, this Court is not inclined to extend any benefit of salary for the period of unauthorised absence. However, as the transfer order was quashed by the learned Single Judge, their service periods shall continue to be treated in continuity, and they would be entitled to whatever other benefits accrued to them due to this continuity, but no salary for the said period of unauthorised absence.”

Therefore, this Court is of the firm view that, though the petitioner has raised an allegation of mala fides, he has not been able to demonstrate before this Court the nature of such mala fides, namely, whether the same constitutes malice in fact or malice in law. If the petitioner intends to contend that the transfer is vitiated by malice in fact, the same cannot be accepted in the facts of the present case, particularly when there was a complaint against the petitioner alleging harassment of students. The competent authority is entitled to take appropriate administrative measures to maintain discipline and a peaceful atmosphere in the institution. Therefore, this Court is of the considered view that the impugned transfer cannot either be construed as malice or be termed as punitive in nature. Hence, this Court does not find any valid ground to interfere with the impugned orders.

In the result, this Writ Petition is dismissed. Consequently, the connected Miscellaneous Petitions are closed. No costs. 20-08-2026