1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (W) NO.618/2010 VISHNA RAM VS. STATE OF RAJASTHAN & Ors. Date of Judgment : 7.10.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Rajesh Choudhary, for the appellant. BY THE COURT : (PER HON'BLE A.M. SAPRE,J.) This is an intra court appeal filed by the writ petitioner of W.P. No.8598/2010 under Rule 134 of the Rajasthan High Court Rules, 1952 against an order dated 23.9.2010 passed by the Single Judge in the aforementioned writ petition. 2. By impugned order, the learned Single Judge dismissed the writ petition filed by appellant and in consequence upheld the order of his transfer which was impugned in the writ petition. 3. So the question that arises for consideration in this writ-appeal is whether the learned Single Judge was justified in dismissing the writ petition and in consequence justified in upholding the transfer order. 2 4. The appellant is working as Teacher Grade II and presently posted at Government Upper Primary School, Sardarpura, Jodhpur. He is now transferred to Government Secondary School, Bhalurajva, Balesar in the same capacity by the order dated 18.9.2010. It is against this order of transfer, the appellant felt aggrieved and filed the writ petition, out of which this intra-court appeal arises. As observed supra, the learned Single Judge dismissed the writ petition in limine and in consequence upheld his transfer order. 5. Having given our anxious consideration to the submission argued by learned counsel for appellant and on perusal of record of the case, we find no merit in the same. 6. At the outset, we may take note of certain well settled principles which govern the cases relating to transfer in service jurisprudence. A transfer of any employee from “A” place to “B” by his employer is always regarded as an incidence of his service. Indeed, it is inherent in the service conditions. It is the right of an employer to transfer an employee to any place depending upon the exigencies, requirement, need etc. No employee can legally assert that he has a right to remain posted at a particular place for all his service tenure or only at a place of his choice, if transferred. It is, therefore, always regarded as an administrative decision on the part of an employer while transferring a particular employee or particular set of employees to a particular place. This right, therefore, of an employer can not be challenged by an employee. In other words, only because an employee is 3 asked to go to a place, which may or may not be of his liking, is no ground to seek judicial intervention against such transfer. Such action on the part of an employer can not be made subject matter of judicial scrutiny in writ jurisdiction, nor it gives any cause of action to assail and that too successfully due to these well settled parameters, which are judicially recognized. However, there are certain well defined exceptions carved out by judicial precedents as to under which circumstances, the writ court, or to say any court, is competent to examine the legality of impugned transfer order. These exceptions broadly are, if the transfer order is issued by a competent authority with some definite malice or by way of punishment against the delinquent employee, or when it is found to be against any statutory provisions of law governing the transfer, or when it is found ex-facie arbitrary, or is issued by a person not competent to issue such order, or when it is found to be contrary to specific service condition etc. It is only in these cases, the Court may consider proper to examine the legality. In other words, these are usually the parameters which are made basis for examining the legality of transfer order. We have not been able to notice any such ground in the impugned transfer order though vehemently pressed in service by learned counsel for the appellant. 7. In our considered opinion, the submission urged by the learned counsel for the appellant does not satisfy the exceptions taken note of supra. Firstly, it is issued by the State on administrative grounds. Secondly, it is not assailed on the ground of any malice as such against any particular 4 authority and lastly it does not violate any statutory policy of Statee. It is essentially a policy evolved by State for its observance by the authorities as a guiding principle in their day-to-day administrative working. Any departure in itself does not give any right to an employee to question the transfer order on judicial side in writ jurisdiction unless as observed supra, a naked arbitrariness is pointed out to the Court. It being a settled rule of law that arbitrariness, if successfully shown to exists, it vitiates the whole action of State. Such does not appear to be a case of this nature. 8. Learned counsel for the appellant contended that the transfer is bad because it is passed in quick succession. It is according to him in the nature of “frequent transfer” and hence bad in law. We do not agree to this submission. No transfer order can be quashed on judicial side only because it falls what is called in the category of “frequent transfer”. The fact that it is passed keeping in view administrative exigencies cannot be disputed. Hardship caused to employee cannot be made basis on judicial side to quash any transfer order. This submission was thus rightly repelled by learned Single Judge and we concur with the same. 9. So far as the filing of representation to the authorities by the appellant requesting them to withdraw the transfer order is concern, it being the right of the appellant to request his master (employer) to reconsider his case of transfer, the same can always be resorted to by him and for that no permission is necessary from the Court. Needless to observe, the employer is also then apply their mind to the 5 causes shown by the appellant in the representation and depending upon the several administrative factors, the orders of transfer can always be modified / annulled, if considered proper. This Court would like to observe, that as and when any representations are made by an employee, the same must be dealt with by the concerned authorities on priority basis in its proper perspective to avoid hardship likely to be suffered by an employee due to his uprooting from one place to other. 10. In view of aforesaid discussion and with the aforesaid liberty, we find no substance in the appeal which fails and is dismissed in limine but with aforementioned observations. [Dinesh Maheshwari], J. [A.M. Sapre],J. /Anil/