Supreme Court of India
SRI PUBI LOMBIversusTHE STATE OF ARUNACHAL PRADESH & ORS.
- Citation
- 2024 INSC 200
- Decided
- 13 March 2024
- Disposal
- Appeal(s) allowed
- Bench
- K MAHESHWARI
Holding
Courts cannot interfere with transfer orders of transferable posts unless the order is shown to be vitiated by malafide intent or a breach of statutory provisions.
Summary
The case concerned a modified transfer order dated 20 April 2023 of a Deputy Director of School Education, issued on the basis of a UO note from a local MLA. The employee (respondent No.5) challenged the modification, alleging arbitrariness, but the Single Judge of the Gauhati High Court dismissed the petition, finding no malafide intent or statutory violation. The Division Bench of the High Court set aside that judgment, holding that the transfer was arbitrary because it was prompted by the MLA and lacked application of mind. On appeal, the Supreme Court examined the limited scope of judicial review of service transfers, reiterating that courts may intervene only when there is proof of malafide conduct or breach of statutory provisions. Relying on precedents such as Union of India v. S.L. Abbas and N.K. Singh v. Union of India, the Court held that the Division Bench’s interference was unwarranted. Consequently, the appeal was allowed, the Division Bench’s order was set aside, and the Single Judge’s original decision was restored.
Issues considered
- Whether a transfer order modified on the basis of a legislator's UO note can be set aside by a court in the absence of a plea of malafide or violation of statutory provisions.
Subjects
Service LawTransfer orderModified transfer orderPlea of malafideViolation of statutory provisionJudicial interferenceJudicial ReviewTransfer prejudicial to public interest
Judgment
[2024] 3 S.C.R. 407 : 2024 INSC 200
Sri Pubi Lombi
v.
The State of Arunachal Pradesh & Ors.
(Civil Appeal No. 4129 of 2024)
13 March 2024
[J.K. Maheshwari* and Sanjay Karol, JJ.]
Issue for Consideration
In absence of plea of malafide and no averment regarding violation
of statutory provision taken by the private respondent before the
High Court, whether the interference made by the Division Bench
of the High Court in setting aside the judgment of the Single Judge
was justified merely on the pretext that the proposed modification
(in transfer order) is arbitrary or without application of mind for the
sole reason that it was mooted by a MLA.
Headnotes
Service Law – Modified transfer order – Challenge to – The
Single Judge of the High Court by upholding modified order
of transfer dated 20.04.2023 observed that transfer made
on the basis of UO Note dated 28.02.2023 put up by the
MLA itself cannot be held to vitiate the transfer until there
is an allegation of any malafide exercise of powers by the
respondents-authorities in issuing the order – However, the
Division Bench of the High Court set aside the order of the
Single Judge – Propriety:
Held: It is settled that the person challenging the transfer ought to
prove on facts that such transfer is prejudicial to public interest –
The interference is only justified in a case of malafide or infraction
of any professed norm or principle – In view of the judicial decisions
of the Supreme Court, it is clear that in absence of (i) pleadings
regarding malafide, (ii) non-joining the person against whom
allegation are made, (iii) violation of any statutory provision (iv)
the allegation of the transfer being detrimental to the employee
who is holding a transferrable post, judicial interference is not
warranted – In the instant case, in absence of plea of malafide and
no averment regarding violation of statutory provision taken by the
private respondent before the High Court, interference as made by
* Author
408 [2024] 3 S.C.R.
Digital Supreme Court Reports
the Division Bench setting aside the well-reasoned judgment of the
Single Judge is not justified merely on the unsubstantiated pretext
that the proposed modification is arbitrary or without application
of mind for the sole reason that it was mooted by the MLA – The
Division Bench has committed an error in setting aside the judgment
of the Single Judge of the High Court. [Paras 9.2, 10, 14]
Judicial Review – Scope – Transfer orders – Discussed. [Paras
9.2 - 9.5]
Case Law Cited
Union of India and others v. S.L. Abbas, [1993] 3 SCR
427 : (1993) 4 SCC 357; N.K. Singh v. Union of India
and others, [1994] Suppl. 2 SCR 772 : (1994) 6 SCC
98; Mohd. Masood Ahmad v. State of U.P. and others,
[2007] 10 SCR 72 : (2007) 8 SCC 150; State of Punjab
v. Joginder Singh Dhatt, AIR 1993 SC 2486; Ratnagiri
Gas and Power Private Limited v. RDS Projects Limited
and Ors., [2012] 9 SCR 690 : (2013) 1 SCC 524 –
relied on.
Union of India and another v. N.P. Thomas, 1993 Suppl.
(1) SCC 704 – referred to.
List of Keywords
Service Law; Transfer order; Modified transfer order; Plea of
malafide; Violation of statutory provision; Judicial interference;
Judicial Review; Transfer prejudicial to public interest.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.4129 of 2024
From the Judgment and Order dated 22.09.2023 of the Gauhati High
Court in WA No. 266 of 2023
Appearances for Parties
B.K. Sharma, Sr. Adv., Kaushik Choudhury, H.K. Das, S.P. Sharma,
Saksham Garg, Jyotirmoy Chatterjee, Kasif Ahmed, Advs. for the
Appellant.
Saurabh Mishra, Sr. Adv., Gagan Sanghi, Rameshwar Prasad Goyal,
Abhimanyu Tewari, Ms. Eliza Bar, Advs. for the Respondents.
[2024] 3 S.C.R. 409
Sri Pubi Lombi v. The State of Arunachal Pradesh & Ors.
Judgment / Order of the Supreme Court
Judgment
J. K. Maheshwari J.
1. Leave granted.
2. The judgment dated 22.09.2023 passed by the Division Bench of
the Gauhati High Court in Writ Appeal No. 266/2023 reversing the
judgment of the learned Single Judge dated 11.07.2023 passed in
Writ Petition (Civil) No. 199 (AP) 2023 has been assailed by the
appellant (respondent No. 5 in Writ Court). The learned Single
Judge by upholding order of transfer dated 20.04.2023 observed that
transfer made on the basis of UO Note dated 28.02.2023 put up by
the Member of the Legislative Assembly, 29-Basar (ST) Assembly
Constituency (MLA) itself cannot be held to vitiate the transfer until
there is an allegation of any malafide exercise of powers by the
respondents-authorities in issuing the order.
3. Writ Petition (Civil) No. 199 (AP) 2023 was filed before the High
Court by respondent No. 5 herein challenging the modified order
of transfer dated 20.04.2023. Learned Single Judge dismissed the
writ petition in absence of having any allegation of malafide, being
transfer is one of the ingredients of the service. The relevant part
of the said order is reproduced as thus: -
“17. Taking note of the law laid down by the Hon’ble
Supreme Court in the case of Mohd. Masood Ahmad
(supra); the U.O. Note, dated 28.02.2023, put up by the
Member of Legislative Assembly, 29-Basar (ST) Assembly
Constituency, requesting the competent authority for
transfer of the Respondent No. 5 as Deputy Director of
School Education, Government of Arunachal Pradesh,
Leparada, cannot be faulted with.
Accordingly, even if the respondent authorities had
modified the earlier order of transfer, dated 15.11.2022,
issued by the Commissioner (Education), Government
of Arunachal Pradesh, Itanagar, vide the impugned
order, dated 20.04.2023, issued by the Commissioner
(Education), Government of Arunachal Pradesh, Itanagar,
acting on the U.O. Note, dated 28.02.2023, put up by
410 [2024] 3 S.C.R.
Digital Supreme Court Reports
the Member of Legislative Assembly, 29- Basar(ST)
Assembly Constituency; that itself, cannot be held to
vitiate the impugned order, dated 20.04.2023, issued by
the Commissioner (Education), Government of Arunachal
Pradesh, Itanagar.
XXX XXX XXX
19. Accordingly, in the absence of any mala fide exercise
of power by the respondent authorities or violation of
any statutory provision in issuing the impugned order,
dated 20.04.2023, by the Commissioner (Education),
Government of Arunachal Pradesh, Itanagar; I am,
therefore, not inclined to interfere with the impugned
order, dated 20.04.2023, issued by the Commissioner
(Education), Government of Arunachal Pradesh, Itanagar,
in the facts and circumstances of the instant case, even
if the aforesaid order, dated 20.04.2023, has been issued
by the authority acting on the basis of the U.O. Note,
dated 28.02.2023, put up by the Member of Legislative
Assembly, 29-Basar(ST) Assembly Constituency, having
regard to the law laid down by the Hon’ble Supreme Court
in Mohd. Masood Ahmad (supra).
20. In that view of the matter; I do not find any merit in
this writ petition and the same is hereby dismissed.”
4. On filing writ appeal by the Respondent No. 5 the Division Bench
of the High Court while setting aside the order of learned Single
Judge observed that the UO Note of the MLA was approved without
application of mind and any remark of administrative exigencies by
department to substantiate that it was in public interest or in exigency
of the service. The relevant excerpt of the impugned judgment reads
as:
“ 27. The appellant who was already under order of transfer
is having a legitimate expectation to join and continue in
the transferred place of posting. However, his transfer
order was suddenly modified without any proposal being
mooted by his employer but acting on the proposal of the
Local MLA and in favour of respondent No.5. In the above
backdrop, this court is of the considered opinion that such
order of transfer is neither issued in the exigencies of
[2024] 3 S.C.R. 411
Sri Pubi Lombi v. The State of Arunachal Pradesh & Ors.
service nor in public interest, rather the same is a result
of arbitrary exercise of power.
XXX XXX XXX
29. This Court cannot approve such kind of sheerly
lackadaisical administrative procedure adopted in
the decision-making process inasmuch as the proper
administration under the Constitutional scheme of
governance, every State action must be supported by
reason. In the present case, the fact cannot be ignored
that the appellant was already under order of transfer
and he was released on 19.04.2023 and he joined at
the place of transfer on 20.04.2023 and therefore, in the
present case, it was further necessary to have the decision
impugned supported by reason in cancelling the earlier
transfer order that too when the proposal of transfer of
respondent No. 5 was initiated not by the administrative
department in public interest or in exigencies of services
rather it was purely on the basis of U.O. Note given by
local MLA. Therefore, in the considered opinion of this
Court, the impugned order cannot be said to be an order
of transfer in public interest or in exigencies of services.”
5. The judgment of the Division Bench has been questioned before
us, inter-alia, contending that in the matter of transfer scope of
judicial review is limited, only when such transfer is in violation of
the statutory provisions or due to malafide reasons. As a corollary,
it is not open to the Court to interfere with the orders of transfer on
a post which is transferrable, in absence of any malafide alleged or
infraction of any professed norms if such transfer is not detrimental.
Further, it was canvassed that transfer on the instance of MP/MLA
always would not per se vitiate the order of transfer.
6. Per contra learned counsel appearing for respondent No. 5 who was
Writ Petitioner before the High Court submits that the malafide is of
two kinds: - one malice in fact and the second malice in law, in the
peculiar facts of this case the Division Bench has rightly set aside
the order which do not warrant interference.
7. Conversely, learned counsel for the State has supported the
contention of the appellant and urged that after consideration of the
UO Note of the MLA, modified order of transfer has been passed in
412 [2024] 3 S.C.R.
Digital Supreme Court Reports
public interest after due application of mind, and the Division Bench
has committed an error in setting aside the well-reasoned judgment
of learned Single Judge.
8. We have heard learned counsel for the parties and first we wish to
appreciate the law and principles laid-down in the matter of transfer
persuading judicial review.
9. In the case of Union of India and others v. S.L. Abbas; (1993) 4
SCC 357, it is clearly observed by this Court that the scope of judicial
review is only available when there is a clear violation of statutory
provision or the transfer is persuaded by malafide, non-observation
of executive instructions does not confer a legally enforceable right
to an employee holding a transferable post. The relevant paragraph
reads as under:
“7. Who should be transferred where, is a matter for
the appropriate authority to decide. Unless the order of
transfer is vitiated by mala fides or is made in violation
of any statutory provisions, the court cannot interfere
with it. While ordering the transfer, there is no doubt, the
authority must keep in mind the guidelines issued by the
Government on the subject……..”
9.1 Further, following the footsteps of S.L. Abbas (supra) this Court
in the case of Union of India and another v. N.P. Thomas;
1993 Supp (1) SCC 704 held that the interference by the Court
in an order of transfer on the instance of an employee holding
a transferrable post without any violation of statutory provision
is not permissible.
9.2 This Court further curtailed the scope of judicial review in the
case of N.K. Singh v. Union of India and others; (1994) 6
SCC 98 holding that the person challenging the transfer ought
to prove on facts that such transfer is prejudicial to public
interest. It was further reiterated that interference is only
justified in a case of malafide or infraction of any professed
norm or principle. Moreover, in the cases where the career
prospects of a person challenging transfer remain unaffected
and no detriment is caused, interference to the transfer must be
eschewed. It is further held that the evidence requires to prove
such transfer is prejudicial and in absence thereof interference
[2024] 3 S.C.R. 413
Sri Pubi Lombi v. The State of Arunachal Pradesh & Ors.
is not warranted. The law reiterated by this Court is reproduced,
in following words: -
“9. Transfer of a public servant from a significant post
can be prejudicial to public interest only if the transfer
was avoidable and the successor is not suitable for the
post. Suitability is a matter for objective assessment by
the hierarchical superiors in administration. To introduce
and rely on the element of prejudice to public interest as
a vitiating factor of the transfer of a public servant, it must
be first pleaded and proved that the replacement was by a
person not suitable for the important post and the transfer
was avoidable. Unless this is pleaded and proved at the
threshold, no further inquiry into this aspect is necessary
and its absence is sufficient to exclude this factor from
consideration as a vitiating element in the impugned
transfer. Accordingly, this aspect requires consideration
at the outset.
XXX XXX XXX
“23. …….Unless the decision is vitiated by mala
fides or infraction of any professed norm or principle
governing the transfer, which alone can be scrutinised
judicially, there are no judicially manageable standards
for scrutinising all transfers and the courts lack the
necessary expertise for personnel management of all
government departments. This must be left, in public
interest, to the departmental heads subject to the limited
judicial scrutiny indicated.”
“24. …Challenge in courts of a transfer when the career
prospects remain unaffected and there is no detriment
to the government servant must be eschewed and
interference by courts should be rare, only when a judicially
manageable and permissible ground is made out. This
litigation was ill-advised.”
9.3 The issue involved in the present case is somewhat similar
in the case of Mohd. Masood Ahmad v. State of U.P. and
others; (2007) 8 SCC 150 wherein this Court in paragraph 8
has observed as thus: -
414 [2024] 3 S.C.R.
Digital Supreme Court Reports
“8. ….. In our opinion, even if the allegation of the appellant
is correct that he was transferred on the recommendation
of an MLA, that by itself would not vitiate the transfer order.
After all, it is the duty of the representatives of the people
in the legislature to express the grievances of the people
and if there is any complaint against an official the State
Government is certainly within its jurisdiction to transfer
such an employee……”
9.4 It is not tangential to mention that this Court in the case of
State of Punjab v. Joginder Singh Dhatt; AIR 1993 SC 2486
observed as thus: -
“3……..It is entirely for the employer to decide when, where
and at what point of time a public servant is transferred
from his present posting………”
9.5 It is also imperative to refer the judgement of this Court in the
case of Ratnagiri Gas and Power Private Limited v. RDS
Projects Limited and Ors.; (2013) 1 SCC 524 where it reiterated
one of the pertinent principles of administrative law is that when
allegations of malafide are made, the persons against whom
the same are levelled need to be impleaded as parties to the
proceedings to enable them to answer. The relevant excerpt
is reproduced as thus:
“27. There is yet another aspect which cannot be ignored.
As and when allegations of mala fides are made, the
persons against whom the same are levelled need to
be impleaded as parties to the proceedings to enable
them to answer the charge. In the absence of the person
concerned as a party in his/her individual capacity it will
neither be fair nor proper to record a finding that malice
in fact had vitiated the action taken by the authority
concerned……..”
10. In view of the foregoing enunciation of law by judicial decisions of this
Court, it is clear that in absence of (i) pleadings regarding malafide,
(ii) non-joining the person against whom allegation are made, (iii)
violation of any statutory provision (iv) the allegation of the transfer
being detrimental to the employee who is holding a transferrable
post, judicial interference is not warranted. In the sequel of the said
settled norms, the scope of judicial review is not permissible by
[2024] 3 S.C.R. 415
Sri Pubi Lombi v. The State of Arunachal Pradesh & Ors.
the Courts in exercising of the jurisdiction under Article 226 of the
Constitution of India.
11. On examining the facts of the present case, it is apparent that
respondent No. 5 herein was transferred from the Government
Higher Secondary School (GHSS) Kanubari, Longding district to
Leparada as Deputy Director of School Education (DDSE) vide
order dated 15.11.2022 and was directed to join in the last part of
April, 2023. The UO Note dated 28.02.2023 has been written by
the MLA specifying the administrative exigency and public interest
in posting the appellant on the post of DDSE, Leparada. The said
UO Note has been examined and competent authority has exercised
its discretion in favour of the appellant, and the respondent No. 5
herein has been retained on the same post in the same district in
same status which he was holding prior to order of transfer dated
15.11.2022 un-affecting his salary. Besides, it is also averred by the
State that the modified order dated 20.04.2023 was passed prior to
effective period during which respondent no. 5 was directed to join
i.e., in the last part of April, 2023.
12. As per the counter affidavit filed by the State Government, even
before us it is specifically averred that the order of transfer dated
20.04.2023 modifying the previous order dated 15.11.2022 has been
issued in public interest after due application of mind and without any
malafide intentions. As far as the stance of respondent no. 5 herein
is concerned, the plea of malafide against transferring authority has
not been agitated even before this Court or the High Court. Further,
the impugned transfer order is also not alleged to be violative of any
prescribed statutory provision.
13. In view of the stand taken by the Government and in absence of
plea of malafide and no averment regarding violation of statutory
provision taken by the private respondent before the High Court,
interference as made by the Division Bench setting aside the well-
reasoned judgment of the Single Judge is not justified merely on the
unsubstantiated pretext that the proposed modification is arbitrary or
without application of mind for the sole reason that it was mooted
by the MLA. In our view the Division Bench has committed an error
in setting aside the judgment of the learned Single Judge.
14. Accordingly, the Civil Appeal is hereby allowed, the judgment and
order dated 22.09.2023 passed by the Division Bench of the High
416 [2024] 3 S.C.R.
Digital Supreme Court Reports
Court is hereby set aside, restoring the order dated 11.07.2023 of
the learned Single Judge. Pending application(s), if any, shall stand
disposed of.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
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