S. H. A. Raza, J - (1.) THE fate of this writ petition hinges on the answer of the question as to whether this Court, under Article 226 of the Constitution of India, can invoke jurisdiction to quash either an order of transfer or cancellation of order, of transfer.
(2.) THE petitioner in this writ petition has raised the grievance that on 26-12-89 he was transferred from Meerut to Ghaziabad by means of an order passed by the Chief Engineer, U. P. Jal Nigam Agra. On 5-1-90 he was, relieved from Meerut and submitted his joining report on 6-1-90 in the office..of the Executive Engineer, U. P. Jal Nigam, Ghaziabad but on 18-1-90 the said order of transfer was cancelled and he was directed to work at Meerut., The petitioner has challenged the order dated 18-1-90 passed by Sri R. S.Sipgh, Chief Engineer, firstly, on the ground that before cancelling the order of transfer the opposite parties did not give him any opportunity to show cause ; secondly the impugned order dated 18-1-90 was passed without application of mind ; and, lastly, the order was passed without indicating any reason. The counsel for the petitioner, in support of hiscontention, has relied upon the case reported in 1987 (5) L. C. D. 253 (inre : Smt. Beena Tripathi v. State of U. P. In that case the transfer order was passed on 5-8-1986 and in pursuance of the said order the petitioner joined at Gonda on 7-8-1986. But on 18-8-86 the earlier order of transfer dated 5-8-1986 was cancelled.' The Division Bench of this Court, in the aforesaid Circumstances indicated as Under "the petitioner had already taken over charge at Gonda and as such the transfer order could not have been cancelled. It appears that to accommodate the opposite party no. 4, the impugned order has been passed but legally the same could not have been done. The opposite party no. 4 has also represented the authorities that her husband being posted at Gonda, benefit of the G. O. which provides that as far as possible, the husband and the wife should be posted at one place, should be extended to her. This could have have done in some other manner than the cancellation of transfer order." The case before us is quite distinguishable for the reason of the fact that no such act of mala fide has been alleged.
(3.) RELIANCE has also been placed on a case reported in 1984 (2) L. C. D. 243 (in re : Govind Taran Dwivedi v. The Union of India, New Delhi. In the aforesaid case a Division Bench of this- Court held as under : "Learned counsel for the petitioners urged that the reuslt of the cancellation of the appointment order was that the petitioner's services stood terminated without giving them any opportunity of hearing. We find considerable force in the contention. In the counter affidavit filed on behalf of the respondents, it is asserted that the petitioner's appointment has been cancelled, as a Dumber of irregularities were found in the selection, some of which have been mentioned in paragraph 6 of the counter affidavit. The petitioners have however, asserted that they were not given any opportunity at any stage either during the enquiry or before the issue of the impugned order. Since the petitioners had been appointed after their selection and they had been working for more than two years, they had acquired a right to continue in service unless the same was terminated in accordance with services Rules. If there was any irregularity committed in the selection and if the authorities proposed to cancel the selection, the petitioners should have been given opportunity of hearing. Admittedly, no opportunity was given to the petitioners, as a result of which principle of natural justice was clearly violated. An order passed in breach of the principles of natural justice is rendered null and void, and it is not necessary to demonstrate any prejudice, See S. L. Kapoor v. Jag mohan (AIR 1981 SC 136). The precedent cited by the learned counsel has no application to the facts of the present case inasmuch as upon the complaints made by some workers Union to the Post Master General, some inquiry was held and thereafter the selection of the petitioner and his appointment was cancelled. In the aforesaid circumstances their lordships rightly indicated that if there was any irregularity committed in the selection and if the authorities proposed to cancel the said selection, the petitioner should have been given an opportunity of bearing Admittedly, no opportunity was given to the petitioners, as a result of which the principle of natural justice was cleariy violated. An order passed in breach of natural justice is null and void and it is not necessary to demonstrate any prejudice, See S.L.Kapoor v. Jagmohan, AIR 1981 SC 136. The learned counsel thereafter cited a precedent of this Court reported in 1986 (4) L. C. D. 362 (inre : Ram Achal Misra v. State of U. P.). The facts of the aforesaid case, in brief, wgre that the petitioner was posted at Rae Bareli and on his own request he was transferred to Lucknow. As soon as he joined at Lucknow within a span of ten days the petititioner was served with an order of transfer to Kanpur. It seems that the petitioner who was at the verge of retirement in his writ petition has alleged malafides against the authority which had passed the second transfer order. A Division Bench of this Court indicated as under : ".........It is not necessary that factual allegations of mala fide ought to have been asserted against any officer but they can well be inferred from attending circumstances. The petitioner had foregone his travelling allowance in opting his posting at Lucknow. Naturally on the verge of his retirement Lucknow being the home town of the petitioner he had opted for his posting over here There are Government directions also to this effect that when a person is to attain retirement, as far as possible the authorities will post him at his home town or near his home-town so as to enable him to make necessary arrangements when he retires from service. The authorities in utter violation of the executive directions and for some ulterior motive which cannot be spelt out in this order, transferred the petitioner to Kanpur. If the transfer order smacks of malafide, the court can interfere and this is one of those fit cases where the Court may exercise its jurisdiction in order to set at rest any malafide. order. Issue a writ of certiorari to cancel the order of transfer contained in Annexure-8 dated 2-7-1986 and we direct that the authorities will make suitable arrangement for posting of the petitioner according to his qualification." Hotfble Supreme Court in Shanti Kumari v. Regional Deputy Director, Health Services, Patna, AIR 1981 SC 1577 indicated as under .* "Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reason. The Courts cannot interfere in such matters. Sri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant." A similar question arose in the case of B. Vardha Rao v. State of Karnataka (1986) 4 SCC, 131. Their lordships of the Supreme Court held as under : "An order of transfer does not ipso facto vary to the disadvantage of a government servant any of his conditions of service making the order appealable under Rule 19 (1) (a) of the Karnataka Rules. The words "or other conditions of service" in uxtaposttion to the preceeding words "denies or varies to his disadvantage his pay, allowances, pension" in Rule 19 (1) (a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave etc." "Transfer of a Government servant who is appoiuted to a particular cadre of transferable posts from one place to another is an ordinary incident of service. No government servant can claim to remain in a particular place or in a particular post unless, his appointment itself is to a specified, non-transferable post. Therefore, a transfer order per se made in the exigencies of service does not result in alteration of any of the conditions of service, express or implied, to the disadvantage of the concerned government servant. However, a transfer order which is mala fide and not made in public interest but made for collateral purposes, with oblique motives and in colourable exercise of power is vitiated by abuse of power and is open to challenge before court being wholly illegal and void." ;