Q: We are employees of the state government. Over the past 3 years, we have been subjected to frequent transfers and this is having a destabilising effect on our lives. We believe that our senior officers are deliberately doing this to frustrate us and make us resign, so that other persons can take our place. Can they keep on transferring us as many times as they want? Can we demand that we remain in the post where we were originally appointed? Can we approach the courts for justice?
Names withheld
A: Public servants hold transferable posts. It is the employer?s prerogative to decide where the employee should be posted, without even requiring or taking the employee?s consent. Government servants thus cannot claim a vested right to remain in or be posted at a particular place or post of his or her choice (unless, of course, their appointment specifically mentions that it is a non-transferable post.)
This does not mean that transfer orders are immune from judicial review. Whereas courts acknowledge that the employer is the best judge to decide how to distribute and utilise its employees, they can still interfere with such an order if the power to transfer is not exercised honestly or in public interest or if it is done for some extraneous considerations. Transfers invariably entail personal sacrifice for public good. It may also have an unsettling effect on the employee and his family. Thus, keeping in mind these hardships, the employer is bound to exercise its powers in a just and fair manner.
To successfully challenge the transfer order, you need to consider their legality, i.e. were they passed by the competent authority, are they in violation of any specific terms of your appointment or contrary to any prevailing rules and practices, etc.
Also, consider how you can factually establish that these orders are arbitrary and mala fide. It is hardly believable that in normal circumstances it is necessary to repeatedly transfer the same individuals from one post to another within a short period of time. Such frequent transfers, apparently without reasons or justification, prima facie appears to be suspect, but the onus would be on you to prove before the court the lack of bona fides.
The high court sitting in its writ jurisdiction would then be able to consider whether the orders were passed due to some genuine administrative exigency and whether they were merely a ?colourable? exercise of power, used to cloak an ulterior motive. In a fit case, the court can therefore quash illegal orders of transfer already made but cannot pass a blanket order restraining future transfers.
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