Kandhan Karunai.V v. Directorate of Medical Education
WP.2199/2023 · 2026:MHC:3556 · WP No. 2199 of 2023
Coram: Justice C.Kumarappan
No. In the absence of any stay, modification or cancellation of the transfer order, a public servant has no justification to avoid or evade the order merely on the ground of having made a representation or of difficulty in moving from one place to the other; he must carry out the order and may thereafter agitate his grievance in the manner known to law. Continuing in unauthorised absence despite the issuance of the transfer order amounts to serious delinquency.
Service Law — Administrative transfer — Incidence of service — Malice in fact and malice in law — Judicial review —
Service Law — Administrative transfer — Incidence of service — No vested right to a place of posting —
Held: An administrative transfer is an incidence of service and a condition of service, and no employee has a vested right to insist upon a particular place or post of posting; the choice of posting lies within the domain of the administration. (¶8)
Service Law — Administrative transfer — Judicial review — Mala fides, arbitrariness or statutory violation —
Held further: A transfer effected on administrative grounds is not open to interference in judicial review unless shown to be vitiated by mala fides, arbitrariness or statutory violation; a personal grievance of the employee is no ground. (¶8)
Service Law — Punitive transfer — Complaint against an employee — Not by itself punishment —
Held further: A transfer effected pursuant to a complaint against an employee cannot by itself be construed as punitive; the administration may act bona fide to maintain discipline and a conducive atmosphere in the institution. (¶7, ¶13)
Service Law — Mala fides — Pleading and proof — General allegation insufficient —
Held further: An allegation of mala fides is general and unsustainable where no individual is impleaded in personal capacity and the petitioner does not demonstrate whether malice in fact or malice in law is asserted. Writ Petition dismissed. (¶13, ¶14)
In the Court's own words
Paragraph 3Per 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.
Paragraph 10Similarly, 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.
Paragraph 11In 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”.
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