Bombay High Court
Surendra Prasad vs The Nuclear Power Corp. Of India Ltd. ... on 3 March, 2021
Bench: K.K. Tated, R.I. Chagla
Digitally signed
Jitendra by Jitendra S.
Nijasure
S. Date:
Nijasure 2021.03.06
15:35:01 +0530
23-wpst-5133-2021.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO.5133 OF 2021
Mr. Surendra Prasad ...Petitioner
Versus
The Nuclear Power Corporation of India ...Respondents
& Anr.
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Rajalakshmy Mohandas with Pooja Shinde i/b. Rajalakshmy
Associates for the Petitioner.
Mr. Arsh Misra i/b M.V. Kini for Respondent No.1.
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CORAM : K.K. TATED &
R.I. CHAGLA, JJ.
DATE : 3RD MARCH, 2021
ORDER :
1. Heard learned Counsel for parties.
2. By this Writ Petition under Article 226 of the Constitution of India the Petitioner challenges the transfer order from Head Office, Mumbai to Kudankulam, Tamilnadu as Additional Mechanical Engineer. It is the case of the Petitioner that the reactor at Nuclear Power Corporation of India Ltd at Kudankulam to be operational will take around 7 to 8 years and till then the work of the Petitioner as a Additional Mechanical 1/7 23-wpst-5133-2021.doc Engineer is not required at Kudankulam, Tamilnadu. Learned Counsel for the Petitioner submits that, the Respondents issued the transfer order only because the Petitioner has filed some Writ Petition against them i.e. Writ Petition No.13743 to 2017. On this ground learned Counsel for the Petitioner submits that the transfer order issued by the Respondent No.1 is required to be set aside.
3. In support of this contention the learned Counsel for the Petitioner relies on the judgment in the case of Abdul Hamid Vs. State of Himachal Pradesh & Ors.1. She relies upon paragraph 18(f), which reads thus:-
"18. In Sudhir Kumar's case supra Division Bench has referred various judgments passed by this High Court in Ram Krishan v. District Education Officer, reported in ILR 1979 HP 481: A K Vasudeva V. State of H.P., reported in ILR (Himachal Series) (1981) 10 HIM 359:; CWP NO.1105 of 2006, titled as Sushila Sharma V. State of H.P., Sant Ram Pant v. State of H.P. , reported in 2009 (3) Shim L.C. 206; CWP No.2844 of 2010, titled as Pratap Singh Chauhan v. State of H.P., decided on 18.06.2011; CWP NO.3530 of 2011, titled as Babita Thakur v. State of HP, Amir Chand V. State of Himachal Pradesh, reported in 2013 (2) HLR (DB) 648, Sanjay Kumar V State of HP reported in latest HLJ 2013 (HP) 1051, Raj Kumar v. State of H.P., reported in 2015 (1) Hm.LR. (DB) 567, and CWP NO.2621 of 2020 1 2021 SCC OnLine HP 48 2/7 23-wpst-5133-2021.doc titled as Lekh Raj v. State of H.P., decided on 18.08.2020. Following principles propounded in above referred pronouncement may be relevant for the purpose of adjudication of present petition:-
(f) Whenever any transfer is ordered not by the departments but on the recommendations of a Minister or MLA, then before ordering the transfer, the views of the administrative department must be ascertained and only after ascertaining the viw of the administrative department, the transfer may be ordered if approved by the administrative department, meaning thereby the views of the administrative department have essentially to be sought in the matters of transfer. What follows is that the views of the administrative department must refect subjective satisfaction and conscious application of mind that the transfer is essential on account of administrative exigency and / or public interest or that the transfer of employee is necessary for the effective utilization of his / her service."
4. On the basis of this submission, the learned Counsel for the Petitioner submits that pending the hearing and final disposal of the Writ Petition, this Court be pleased to stay the operation and implementation of impugned transfer order dated 2nd February, 2021. She submits that if the ad-interim relief is not granted irreparable loss and injury will be caused to the Petitioner.
5. On the other hand, the Respondent submits that there is no question of setting aside the transfer order dated 2nd 3/7 23-wpst-5133-2021.doc February, 2021. He submits that the Petitioner is working in Head Office, Mumbai for last 12 years. He submits that as per the policy of the Respondent No.1, the said post is transferable. Hence as per the policy of the Respondent No.1, they issued the transfer order dated 2nd February, 2021.
6. Learned Counsel for Respondent No.1 submits that the main contention of the Petitioner is that just because the Petitioner has filed litigation against the Respondent No.1, the said transfer order is issued. In support of this contention, learned Counsel for the Respondent No.1 relies on ground nos.3, 4, 5 and 6 of the Petition, which read thus:-
III. By this transfer, the Respondent No.1 is really showing his vindictive approach against Petitioner because, according to Respondent No.1, the Petitioner is the only key person in filing the Writ Petition No.13743 of 2017 against the Respondent No.1 seeking pension facilities for its employees.
IV. According to Respondent No.1, it is only at the instant of the Petitioner, who happened to be a General Secretary of the Nuclear Power Corporation Officers Association, the said Writ Petition seeking pension came to be filed.
V. The Petitioner is also the General Secretary of the NPCIL Officers Association registered on 1st March, 2014 under the Trade Union Act, 1926 and NPCIL higher authorities believe that in his guidance only, the Writ Petition NO.13743 of 2017 4/7 23-wpst-5133-2021.doc is filed and the Petitioner is educating / guiding the other Nuclear Power Cooperation Association members to fight their legitimate pension issue involved in the Writ Petition.
VI. The Petitioner is being targeted by the Respondent No.1 as he has filed the Writ Petition No.13743 of 2017 on behalf of the Association for issuance of Writ of Mandamus or any other appropriate writ directing the Respondent No.1 management to grant the Petitioners who have joined prior to 1st January, 2004 pension as retirement benefit along with the General Provident Fund and Gratuity instead of Contributory Provident Fund forthwith and further directing the Respondent No.1 to make necessary changes in the service book of all such officers so that they get the retirement benefits on their superannuation or on VRS as the case may be."
7. He submits that the said contention of the Petitioner cannot be a ground to set aside the transfer order. In support of this contention, he relies on the judgment in the case of Union of India & Ors. Vs. S.L. Abbas 2, more particularly paragraph nos.7, 8 and 10, which read thus:-
Who should be transferred where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of statutory provisions, the Court cannot interfere with it. There is no doubt that, while ordering the transfer the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his 2 (1993) 4 Supreme Court Cases 357.5/7
23-wpst-5133-2021.doc transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, the husband and the wife must be posted at the same place. The said guideline,however, does not confer upon the government employee a legally enforceable right.
8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case, the Tribunal has dearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sifting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).
10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative 6/7 23-wpst-5133-2021.doc instructions/guidelines are not followed, much less can it be charactrised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions.
8. It is to be noted that by reading of the transfer order dated 2nd February, 2021 shows that the same was issued in the interest of the department. Thus, prima facie there is no question of any malafide intention. Apart from that the post which the Petitioner is occupying is Chief Mechanical Engineer which is a transferable post. In view of these facts, there is no question of at present granting any ad-interim relief to the Petitioner. Hence the following order is passed:-
(a) Respondent No.1 to file their Affidavit in Reply on or before 10th March, 2021, with copy to other side.
(b) Affidavit of Rejoinder, if any, to be filed on or before 12th March, 2021, with copy to other side.
(c) Matter to appear on board on 17th March, 2021.
(d) At present no ad-interim relief.
[R.I. CHAGLA J.] [K.K. TATED, J.]
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