Judicial Review of Transfer Orders: Permissible?

The Courts and Tribunals in India are inundated with litigation filed by the employees who are aggrieved by their transfers. Many a time, employees are also aggrieved by their non-transfers when they are not transferred from rural to urban areas. It has to be understood that if no employee is willing to go to the remote areas for work, it would result in utter chaos and confusion. The scope of judicial review of transfer orders is extremely limited but when the transfer has been made in a vindictive or mala fide manner or on an irrelevant consideration, the courts are bound to interfere. An order of transfer is to satisfy the test of Articles 14 and 16 of the Constitution otherwise the same will be treated as arbitrary. The courts are competent to find out whether the order of transfer passed, is reasonable or is a measure of punishment.

The authorities, keeping in view, the exigencies of administration as well as consideration of public interest, have unbridled powers to transfer their employees from one place to another. If a State government employee holds a transferable post, then he is liable to be transferred from one place to the other. An employee holding a transferable post has no right to remain posted at a particular place and courts should normally not interfere with transfer orders as that would also lead to intruding into the working of the administration.

Important Judgments on Transfers

1. Varadha Rao v. State of Karnataka and others, (1986) 4 SCC 131 -

The Supreme Court held that transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service to his disadvantage and no government servant can claim to remain in a particular place or in a particular post.

Shilpi Bose (Mrs) and others v. State of Bihar and others, 1991 Supp (2) SCC 659 -

The Supreme Court held that 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. Transfer orders issued by the competent authority do not violate any of his legal rights.

State of U.P. and others v. Gobardhan Lal, (2004) 11 SCC 402

The Supreme Court held that a challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned.

Sk. Nausad Rahaman v. Union of India, (2022) 12 SCC 1 –

The Supreme Court held that whether and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.

Rajendra Roy v. Union of India & Another, (1993) 1 SCC 148 -

The Supreme Court held that in a transferable post, an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department.

Abani Kanta Ray v. State of Orissa & Others 1995 Supp (4) SCC 169 -

The Supreme Court held that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer.

National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, 2001 (8) SCC 574 –

The Supreme Court held that a transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration.

From a conspectus of the above discussion, it can be concluded that a transfer is a condition of service and an employee has no fundamental right to get a posting at a particular place of his/her choice. The power to transfer an employee lies with the employer who can determine the place of posting of an employee and for what duration, the services of that employee would be required at that place. A transfer order must always be passed in a just, fair and reasonable manner, not arbitrarily or whimsically. There is limited scope of judicial interference against transfer orders and the courts will only step in, if such an order is in contravention of any statutory rule or is based on malafides, and not otherwise. Courts do not have the power to declare invalid any transfer order on the ground that the same will cause inconvenience to the employee or his family as individual convenience of employees is subject to the overarching needs of the administration. Employees are transferred from one place to another to maintain the smooth functioning of the organization, they are working in, as well as for public interest, and the scope of judicial review in transfer orders is narrow.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India and tweets @muneebmalikrash.