Transfer Order Unsustainable if it is Based On Irrelevant Ground & Not on Any Germane Factor: Supreme Court

Team SoOLEGAL 11 Feb 2022 6:08pm

Transfer Order Unsustainable if it is Based On Irrelevant Ground & Not on Any Germane Factor: Supreme Court

NEW DELHI: The Supreme Court ruled that a transfer order is invalid if it is based on an irrelevant premise rather than any consideration relevant to the decision – making process.

The writ petitioner in this case claimed that hostile transfer orders were issued because she did not comply with the requests of the supervisory High Court Judge. She protested that she was being transferred from a Category ‘A’ city to a Category ‘C’ city, as well as to a Naxal – affected area, in contravention of the High Court’s existing transfer rules. She had no choice but to quit because the move would have prohibited her from being with her daughter, who was currently taking board examinations. She later petitioned the Supreme Court, claiming her right to be reinstated.

During its review of this matter, the court observed that (1) the transfer order was issued on July 08th, 2014. (2) The petitioner submitted a submission the very following day, on July 09th, 2014, and it was dismissed two days later, on July 11th, 2014. (3) On July 11th, 2014, the petitioner filed a new representation. However, it did not go down well with respondent No. 1 and was denied on July 14, 2014, on the grounds that the previous submission on identical grounds had previously been rejected. As July 12th, 2014, was a second Saturday, while the July 13th, 2014 was a Sunday. (4) Her second representation was denied the very following working day, on July 14th, 2014. (5) The petitioner offered her retirement on July 15th, 2014. (6) The next day, on July 16th, 2014, the MP High Court sent the recommendation for approval to respondent No. 2. (7) Respondent No. 2 accepted the same the next day, on July 17th, 2014.

“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 July 08th, 2014, would be squarely covered by ‘malice in law’ because it was passed without taking into account the Guidelines provided in the Transfer Policy but on the basis of unverified allegations made in the complaint filed by the then D 7 SJ, Gwalior. In this regard, the bench cited Somesh Tiwari V. Union of India and Others (2009) 2 SCC 592, in which it stated:

“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 went on to say that, while the Transfer of Policy is not legally binding, when it is framed by the MP High Court for the administration of the District Judiciary, every Judicial Officer has a legitimate expectation that such a Policy will 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 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 July 09th, 2014 and July 11th, 2014, would also not stand the scrutiny of law”, the court added.

Tagged: SupremeCourt   Transfer   Order   Irrelevant   HighCourt   Judge   SCC   TimesofIndia   SomeshTiwari     
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