SUDHIR AGARWAL,J. - (1.) FIFTEEN petitioners working as Constable posted in District Etah have been transferred by means of the impugned orders dated 18.9.2009, 20.9.2009 and 22.9.2009, copy whereof has been filed collectively as Annexure-3 to the writ petition. The aforesaid orders of transfer have been passed in public interest by the Superintendent of Police (Establishment), acting on behalf of Deputy Inspector General of Police (Establishment), U.P. Police Head Quarters, Allahabad. It is also evident from the impugned orders that the same have been issued after concurrence of the Police Establishment Board which has been obtained in view of the Apex Court decision in Prakash Singh and others Vs. Union of India and others (2006) 8 SCC 1. It is clearly averred in para 5 of the writ petition that the petitioners are posted in District Etah for the last more than ten years.
(2.) SRI Nisheeth Yadav, Advocate has assailed the impugned orders of transfer contending : (A) The transfer of all the members of police officers of subordinate rank is governed by the Government Orders dated 7.2.1980, 27.6.1984 and 25.3.1995, but ignoring the same the impugned orders have been passed. (B) All the petitioners belong to a particular community who have been shifted from Etah to Baghpat, Meerut and Muzaffarnagar. it is a clear case of victimization of the petitioners on caste lines and the impugned order is not a simple order of transfer, but malicious in law. (C) By Government Order dated 6.6.2009, transfer policy for the session 2009-10 has been laid down and it is provided therein that no transfer in the session shall be made but ignoring the same, the impugned orders of transfer have been passed in violation of the said Government policy and, therefore, are liable to be set aside. He contended that the transfer policy has been laid down by the respondents themselves and they are bound to observe the same as held by the Apex Court in JT 1993 (4) SC Home Secretary, U.T. of Chandigarh and another Vs. Darshjit Singh Grewal and others, Virendra S. Hooda and others Vs. State of Haryana (1993) 3 SCC 696 and Union of India Vs Mamta Anurag Sharma and another (2001) 2 UPLBEC 2559. (D) The petitioners are all constables belong to lowest rung of the police force and, hence, being petty members of police force would be in great difficulty in maintaining their family at far flung places if their transfer is allowed in such a usual, casual and routine manner. (E) The transfer orders have been passed in mid session causing great difficulty to the family since the children of the petitioners are studying and, therefore, it would not be prudent to disturb the entire family of the petitioners in mid session. The respondents without applying mind to all these difficulties have illegally passed the impugned orders. In view of the law laid down by the Apex Court in Director of School Education, Madras and others Vs. O. Karuppa Thevan and another 1994 Supp (2) SCC 666, till the end of the session, the petitioners should be allowed to continue at the present place of posting. Though, learned counsel for the petitioners has canvassed all the above points at length arguing the matter with great labour, diligence and ability, but having given my anxious and deepest thought to the matter, I find myself unable to accept any of the above submission. In my view, this writ petition does not call for any interference.
(3.) IT is no doubt true that an employee and in particular a Government servant is entitled to be treated fairly, impartially, free from any external influence and strictly in accordance with his service conditions, and rules and regulations framed in this regard. Like any other person, various fundamental rights are applicable to the Government servants also and in particular Article 14, 16 and 21 of the Constitution. If there is a case demonstrating that a Government servant has been dealt with unfairly or has been discriminated on one or the other ground, which are impermissible under Article 16 (2) of the Constitution like, caste, religion, race, sex, descent place of birth etc. this Court would not hesitate to interfere and restrain the State from doing so immediately. However, all these question pre conceive one fact that the Government employee has some kind of right which is being interfered either by singling him out or on account of mala fide etc. There are several aspects in service and in particular Government service. Some arise out of the rights of the Government servant and in some he has no right but exist there merely because one is a Government servant holding a position and status and by virtue thereof such incident of service has fallen upon him. Further, there are a number of incidents of service, some of which confer a legal right upon the Government servant and some do not result in a legal right. For example once a person is appointed as Government servant, his seniority by virtue of his date of entering the service is an incident of service. It confers a legal right upon him to claim that his seniority should be determined in accordance with the rules or the executive instruction in the absence of the statutory rules laying down the criteria for determining seniority. Similarly, another incident of service is that he is entitled to claim salary or wages as prescribed under statutory rules or executive orders. This also confer upon him a legally enforceable right whether flows from statutory rules or from executive instructions. Then if there is a hierarchy of posts and the rules allow a Government servant working on a particular post to be considered for promotion to a higher post, in certain circumstances, in such a case consideration for promotion is also an incident of service and here also it confers a legally enforceable right whether it emerges from rules or executive instructions. Simultaneously there are certain aspects which though are incidents of service but do not result in conferring any legal right upon the Government servant concerned, Enforceability in later cases varies from case to case. In some matters to a limited extent they may be enforceable and in some matters they may not be enforced at all. For example if by an executive order it is provided that a Government servant holding a particular post will have to show his performance upto a particular level, compliance thereof on the part of the Government servant is also an incident of service but its enforceability varies from case to case. For example the executive higher authorities may take action against such Government servants who fail to perform upto the desired level and such failure may result in adverse consequences in the matter of promotion, crossing of efficiency bar etc. Similarly such matter may also be considered by an executive higher authority at the time of considering whether the Government servant concerned has rendered a dead wood necessitating compulsory retirement or not but Government servant cannot challenge the said standard in a Court of law on the ground that those standards according to capacity of the Government servant are excessive etc. and cannot be followed uniformly by all the Government servant since the capacity of every person varies depending on various aspects of the matter. Similarly another Government servant or the people at large may not claim something in his favour on the ground that a particular Government servant has not been able to discharge as per desired the level. For example if in a territorial jurisdiction of a particular Police Station, number of offenses in a particular period are more than another Police Station, the citizens residing in the former Police Station cannot come to a Court of law and say that in view of the executive instructions issued by the State Government, the Officer In-charge of the Police Station having failed to achieve the target or show his performance according to desired level and, therefore, he should be proceeded against in one or the other manner or should be removed from his office or from that Police Station. Similarly, if a member of a Subordinate Judiciary, who is supposed to decide certain number of cases in a month, fails to achieve the target, no litigant or advocate can come to a Court of law to ask that such judicial officer is not able to hold the office and should be removed or should be transferred to some other place. The executive orders, in this regard though require performance upto a particular standard for the public benefit and interest but non achievement thereof is not enforceable. In the administrative side, the executive authority higher in office may take into consideration the above executive instructions and the performance of the Government servant concerned while assessing his performance, but otherwise the executive instructions of the nature stated above are not enforceable since they do not result in creating a legally enforceable right. The executive instructions providing certain monetary benefit to Government servants or their family members are enforceable. However, the executive instructions constituting guidelines for the authority competent to transfer a Government servant from one place to another do not fall in the same category i.e. enforceable as they do not confer any legal right upon a Government servant. This is what the law has been in the matter of transfer throughout in the light of the authorities of the Apex Court as well as this Court. I will not burden this judgment with number of authorities on this subject but would like to come straightway on the main issue but before doing so, I propose to refer certain authorities to show how the matter of transfer of a Government servant has been treated by the Courts in India. After having in-depth study on the subject I find it beyond doubt that throughout it has been held that transfer is an incident of service, which does not affect any legal right of a Government servant holding a transferable post.;