CAT as well as the Madras high court rules that Government employees can't avoid transfers. The ruling states that "a government servant holding a transferable post has no vested right to remain posted at a particular place".
The division bench of the court comprising Justice R Banumathi and Justice TS Sivagnanam was passing orders on a petition filed by PR Anand Kumar, an army engineer who entered the Military Engineering Services as surveyor assistant in 1985. The post was re-designated as junior engineer. Anand was transferred from Chennai to Visakhapatnam on November 8, 2011. Anand had made a request to the army to be retained in Chennai which was rejected. Anand then approached the CAT. Citing paragraph 36(b)(c) of the transfer guidelines, the CAT said he ought not to have been transferred in the middle of an academic year. It asked the authorities to pass fresh orders if necessary.
The initial order was withdrawn owing to CAT ruling. But he was transferred to Hyderabad by an order dated February 10, 2012. He again rushed to CAT, which dismissed his application this time. He then moved the high court.
Rejecting his petition, the judges said: "The scope of judicial review of orders of transfer is well settled. The high court, while exercising its jurisdiction under Article 226, is not expected to go into the question as to whether the transfer was for public service, as it would essentially require factual adjudication and depend upon the peculiar facts and circumstances of the case."
"Therefore, unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions, the courts or the tribunals normally cannot interfere with such orders as a matter of routine," they said.
Though the guidelines deal with time of transfer and state that care will be taken to avoid transfers during the middle of the academic year, exceptions are available to meet requirements, the judges said. Transfers on administrative grounds may be ordered giving the employee less time, they said.
"There is no challenge to the order of transfer on the ground of any malafide exercise of power or that the order of transfer was passed by an incompetent authority or it violated any statutory rule," they said of Kumar's case.