Transfer made by the MLA cannot be held to vitiate the transfer until there is an allegation of any malafide exercise of powers: SC

While hearing the Sri Pubi Lombi vs. the State of Arunachal Pradesh & Ors. case on March 13, 2024, the Supreme Court (SC) of India clarified the scope of judicial review in transfer orders under the service law. The two-judge bench said 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 transferable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India.” Further, Justice J.K. Maheshwari and Justice Sanjay Karol observed that the court’s interference in the transfer order at the instance of a state employee holding a transferable position without any violation of statutory provision is not permissible. 

In this case, the appellant (Sri Pubi Lombi) was transferred from the Government Higher Secondary School (GHSS) Kanubari, Longding district to Leparada as Deputy Director of School Education (DDSE) and was directed to join in the end of April 2023. The UO Note has been written by the MLA specifying the administrative exigency and public interest in posting the appellant on the post of DDSE, Leparada. The Writ Petition was filed before the Gauhati High Court by Sri Pubi Lombi challenging the modified order of transfer. Learned Single Judge dismissed the writ petition in the absence of having any allegation of malafide, and said that “being transfer is one of the ingredients of the service”. It also said that a transfer made on the basis of a UO Note put up by MLA itself cannot be held to vitiate the transfer until there is an allegation of any malafide exercise of powers by the respondent (authorities) in issuing the order. 

Further, the matter was heard by a Division bench, it set aside the order of the Learned Single judge and 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 matter was therefore mentioned before the SC. It observed that the scope of judicial review is not permissible by the Courts in exercising the jurisdiction. The SC added, “The UO Note has been examined and competent authority has exercised its discretion in favor of the appellant” and he has been retained on the same post in the same district in the same status which he was holding before the order of transfer un-affecting his salary. Further, the plea of malafide against transferring authority has not been agitated even before the Supreme Court or the HC. The impugned transfer order was also not alleged to be violative of any prescribed statutory provision; therefore, it said that the Division Bench committed an error in setting aside the judgment of the learned Single Judge.