Central Administrative Tribunal - Hyderabad
B Bhaskar vs South Central Railway on 23 February, 2024
OA/349/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/21/349/2023
HYDERABAD, this the 23rd day of February, 2024
Hon'ble Dr. Lata Baswaraj Patne, Judicial Member
Hon'ble Shalini Misra, Administrative Member
B. Bhaskar, S/o. BH. Bollob,
Aged about 52 years,
Occ: ASTE/South/HYB, Gr. C,
Railway Quarter No.606/3,
Lancer Colony, Secunderabad,
E. Mail: [email protected]
Mobile No.7981231190.
...Applicant
(By Advocate: Mr. G. Trinadha Rao)
Vs.
1. Union of India rep. by
The General Manager,
South central Railway, Rail Nilayam,
3rd floor Secunderabad - 500 025.
2. The Principal Chief Personnel Officer,
South Central Railway, Rail Nilayam 4th floor,
Secunderabad.
3. The Assistant Personnel Officer/Engg/HQ,
South Central Railway Rail Nilayam, 4th floor,
Secunderabad.
...Respondents
(By Advocate: Mr. B. G. Rajesham, Sr. PC for CG)
----
Page 1 of 11
OA/349/2023
ORAL ORDER
(As per Hon'ble Dr. Lata Baswaraj Patne, Judicial Member) By this OA, the applicant sought the following relief:
"..........to call for the records leading to and connected with the proceedings No.SCR/P-HQ/260/N-10/GAZ/2023 dated 07.06.2023 issued under officer Order No.Gaz/146/2023 by the 2nd respondent to the extent of transferring the applicant from Secunderabad to Mahaboobnagar declare and set aside the same as illegal arbitrary and contrary to transfer policy and consequently direct the respondents to retain the applicant at Hyderabad in any Post as ASTE.
ii) and to pass such other order or orders as deemed fit in the interest of justice."
2. The brief facts of the case are that the applicant initially recruited as Telecom Maintainer and he earned promotions as Junior Engineer and Section Engineer by way of selection. The applicant by way of selection (LDCE), was promoted from the Group 'C' cadre of Section Engineer (Tele) to the Gazetted Cadre to the post of Assistant Divisional Signal and Telecommunication Engineer (ADSTE) during the year 2012. While working as ADSTE from 2012, he was subjected to 5 transfers in a span of eleven years of service during the period from 2012 to 2023. The last being his transfer from Vijayawada to Secunderabad by order dated 19.04.2022. In pursuance to the said transfer, he joined as ASTE/HYB/South at Secunderabad on 11.05.2022. Thereafter, the applicant was once again transferred by the impugned order dated 07.06.2023 by the 2 nd respondent from Hyderabad to Mahabobnagar contrary to the transfer policy governing the case of the applicant. Feeling aggrieved by this, he has approached this Tribunal.
3. After Notice, respondents have appeared through their counsel, filed reply and opposed the relief on the ground that applicant's transfer has been Page 2 of 11 OA/349/2023 effected purely on administrative interest from Hyderabad to Mahaboobnagar. In fact, the posting does not mean the attributes of transfers since there is no change in the assignment, but change in the place of functioning only, wich was unavoidable due to administrative requirement. Since Five new stations in this sections were to be commissioned during the year 2023 and as part of the job, the incumbent of the post of ASTE/South/HYB is required to regularly inspect the section of 297 KMs length for satisfactory performance of train control and signaling equipments, to arrange for quick rectification of the failures. This necessitates the incumbent of the post to move from Hyderabad which is at the extreme end of this section, whenever a failure is reported, apart from monitoring the activities connected to the commissioning of the new stations. With the center of activity concentrated in the field, it was most often found difficult for the incumbent of the post of ASTE/South/HYB to be in the field for required time and move at short notice. On a review of the administrative constraints being regularly faced, a decision has been taken to shift the Headquarters of the post of ASTE/South/HYB to Mahaboobnagar duly operating the same as ASTE/MBNR. This decision has been taken at the highest level, keeping in view, of the administrative requirements as well as logistics.
4. The respondents further relied upon various judgments passed by the Hon'ble Supreme Court to justify the said transfer and objected the relief sought and submitted that the Tribunal cannot interfere in the transfer matters and it is the government's prerogative to utilize services of the employee as per the requirement. Further more, relying upon the observations of Hon'ble Supreme Court in the Shilpi Bose and others Vs. State of Bihar & Others AIR 1991 SC 532 it is stated that the government servant holding a transferable Page 3 of 11 OA/349/2023 post has no vested right to remain posted at one place or other and he is liable for transfer from one place to other and transfer order issued by the competent authority does not violate any of his legal right, even if transfer order is passed in violation of executive instructions or orders. The courts ordinarily should not interfere with transfer order, instead the affected party should approach the higher authorities in the department. Moreover, the respondents further contended that it is duty of the applicant to report first at transferred place and raise the grievances as held by Hon'ble Supreme Court in SC Saxena Vs. Union of India & Ors. 2006 (9) SCC 583. Hence, respondents prayed for dismissal of the O.A.
5. The learned counsel for the applicant strongly argued on the issue that the applicant has been frequently transferred. From 2012 onwards he has not been allowed to complete his minimum tenure. Learned counsel for the applicant further contended that by Office order dated 19.04.2022, by way of gezetted arrangement of junior scale in S&T Department, applicant came to be transferred and posted ASTE / HYB /SOUTH (PC.10 SC7P010) vice Sl.No.6 and again the applicant came to be transferred by office order dated 07.06.2023 and posted form Hyderabad to Mahaboobnagar, ASTE/MBNR against the post mention at Sl.3 i.e. Junior scale post of ASTE/SOUTH/HYB (PC.10 SC7P010), which will be operated as ASTE/MBNR just within 13 months from the date of earlier transfer.
6. Learned counsel for the applicant relies upon transfer policy dated 11.09.2015 (Annexure-III) where specific guidelines have been issued that normally minimum tenure on a particular post at a time will be two years and Page 4 of 11 OA/349/2023 maximum tenure will be five years. However, the applicant has not been even allowed to complete minimum tenure of two years on a particular post.
7. Learned counsel for the applicant submitted that the reason of formation of 5 stations is an afterthought, since it was not reflected in the transfer order dated 07.06.2023, which is impugned in the OA.
8. Thereby, learned counsel for the applicant relied upon orders passed by the Madhya Pradesh High Court from its Principal seat at Jabalpur in Writ Petition No.21175/2019 and contended that like the applicant, if the employee has not been allowed to complete his normal tenure at one place and has been frequently transferred, the same is in violation of the policy. In this judgment the Hon'ble High Court has considered various judgments, which are in favour of the applicant.
9. Learned counsel for the applicant also relied upon the order passed by the Hon'ble Supreme Court of India in Civil Appeal No.629/2006 in the matter of State of Punjab vs. M/s. Bandeep Singh & Ors along with CA.No.630/2006 vide order dated 25.08.2015 and mainly harped on the point that "there can be no gain saying that every decision on administrative or executive nature must be composite and self-sustaining one, and in that it should contain all the reasons which prevailed on the date the official taking the decision arriving at his conclusion and the same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
10. Therefore, the learned counsel for the applicant contended that the stand taken by the respondents in their reply is against the settled position of law and the same cannot be accepted.
11. On the contrary, learned counsel for the respondents opposed the relief on the ground that the said transfer is affected in the exigency of the service. Page 5 of 11
OA/349/2023 Moreover, as the respondents have placed their reliance on various orders of the Hon'ble Supreme Court extracted in their reply where the Hon'ble Supreme Court categorically stated that in the matter of transfer, court cannot interfere in routine manner and the applicant, who has obligation of transfer liability, accepted transferable post, he has to report first and then he has to raise his grievances. The applicant has not been transferred to far off place and it is only 100 Kilometer, that too on establishment of new station, since the authorities found that applicant services are more useful. Hence, the said transfer has been effected. The learned counsel for the respondents prayed for dismissal of the OA.
12. It is to be noted that, admittedly the applicant came to be transferred from 2012 frequently. Even when applicant came to be transferred to Hyderabad in the year 2022, without allowing him to complete his tenure which is meant for 2 years, within a 13 months, the applicant is transferred again from Hyderabad to Mahaboobnagar. Bare reading of the transfer order shows that the applicant has been simply posted to Mahaboobnagar by way of simple transfer. No reasons have been given behind this pre tenure transfer.
13. It is to be noted that, the Hon'ble High Court, Madhya Pradesh in the matter of Sanjay Upadhyay vs. State of M.P. & others Jabalpur, dated 03.12.2019 has observed as under:
"The learned counsel for the petitioner further submits that as per W.P. No.21175/2019 the policy of the State Government, the normal tenure of an employee is three years at one place whereas as per the background shown herein above, the petitioner was not allowed to continue at one the place for a period of three years and was being frequently transferred. To support his contention, he has relied upon the decisions reported in T.S.R. Subramanian (supra) and Dr. Nagorac Shivaji Chavan (supra).
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10. Undisputedly, transfer is an incident of service and interference in transfer matters in a writ petition in normal course is not permissible but it does not mean that if an employee is frequently transferred by the authority and not allowing him to continue or complete his normal tenure at one place, the High Court cannot examine the validity of the order. The scope of interference in transfer matters is very limited for the reason that transfer is considered to be an administrative exercise and is an incident of service therefore, if administrative exigency arises, the employer has every right to transfer the employee but on several occasions, the Supreme Court as well as the High Court has considered this aspect that if an employee is arbitrarily transferred frequently then that conduct of the authorities is considered to be a mala fide action on their part and in such a circumstance, the High Court has every right to interfere in the matter.
11. The Supreme Court in the case of T.S.R. Subramanian(supra) has observed the importance of allowing an employee to complete his normal tenure of service at one place and has stated as under :-
"35. We notice, at present the civil servants are not having stability tenure, particularly in the State Governments where transfers and posting are made frequently, at the whims and fancies of the executive heard for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the W.P. No.21175/2019 Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling / transfer of the officers is deleterious good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also priori various social and economic measures intended to implement for the p and marginalised sections of the Society."
12. Further, in the case of Dr. Nagorao Shivaji Chavan (supra), Supreme Court has observed as under :-
"............... It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees, However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."
739). Where government action is unreasonable or lacking in quality of public interest, though different from that of mala fides, it may in a Page 7 of 11 OA/349/2023 given case furnish evidence of mala fides (See: Kasturi Lal v. State of J & K (1980) 4 SCC 211). Even if an order is found to be not vitiated by malice in fact, but still can be held to be invalid, if the same is passed for unauthorized purpose as it would amount to malafide in law [see: (2005)6 SCC 776 (Punjab State Electricity Board v. Zora Singh)]. Interference of mala fides can be drawn by reading in between the lines and taking into consideration the attendant circumstances [see (1994) 6 SCC 98 (Ν.Κ. Singh v. Union of India)]. In (2009) 2 SCC 592 (Somesh Tiwari v. Union of India) it is opined that transfer order will be bad in law, if it is issued not based on any factors germane to the passing of an order of transfer and based on irrelevant grounds.
17. That, another submission made by the respondents is that though the transfer policy contemplates that ordinarily transfer of employees should not be done before expiry of 3 years but since the transfer policy not having statutory flavor it is not binding. This contention of the Respondents lacks weightage as it is settled position of law that a field not occupied by statutory rules can be governed by executive instructions. Meaning thereby the State Government can fill up gaps and cover areas which otherwise have not been covered by statutory provisions. The aforesaid principle has been laid down in the matter of Union of India V. Central Electrical and Mechanical Engineering Services (CE & MES) Group A (Direct Recruits) Assn. and others reported in (2008) 1 SCC 354 in Para 10 as under:-
10. It is now a well-settled principle of law that an executive order must be passed in conformity with the rules. Power of the State Government to issue W.P. No.21175/2019 executive instructions is confined to filling up not of the gaps or covering the area which otherwise has not been covered by the existing rules. See Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910] and DDAv.
Joginder S. Monga [(2004) 2 SCC 297]. Such office orders must be subservient to the statutory rules.
30.) The moot question that falls for determination in this appeal is: whether in the absence of any express rule in the State Rules, was it open to the State Government of Madhya Pradesh to have provided by way of an executive Order dated 5-4-2002 that the service rendered by the respondent as President of the State Commission would be counted as pensionable service? The incidental question is: whether such order is inconsistent with Section 16(2) or the State Rules?
19. The aforesaid proposition of law again came up for consideration before the Hon'ble Supreme Court recently and in the matter of State of a Karnataka V. Krishna Kumar and Others reported in AIR 2019 SC 3133 the Hon'ble Supreme Court has held that in the absence of statutory provisions the executive functions would have force of law. Relevant extract of the aforesaid judgement is reproduced herein for ready reference:-
9. Even assuming that the provisions of the Act of 2007 and rules thereunder are applicable, since there is no provision to the contrary therein, the provision in question providing for mutual transfer could have been carved out by issuing executive instructions contained in Memo dated 7.4.2010. No such provision in the Act and rules has been pointed out with respect to mutual transfers.
Particularly when the provisions of 'mutual transfer' which is made in Office Memorandum of 2010, depends on the volition of an employee, there is no compulsion, it cannot be W.P. d No.21175/2019 said to be arbitrary. It is Page 8 of 11 OA/349/2023 ordered only when two incumbents opt for mutual transfer. Thus, Office Memorandum dated 07.04.2010 could not be said to be in violation of the provisions of the Act of 2007 and rules. The Tribunal and the High Court both have misdirected themselves in this regard.
14. In view of the above, it is clear from the facts of the case in hand that the petitioner has been frequently transferred without assigning any reason as to what administrative exigency existed. The respondents, in their reply, have also not explained that frequent transfer of the petitioner and not allowing him to be continued at one station for a normal tenure is because of administrative exigency. In absence of any such explanation, that too when the orders have been assailed by the petitioner alleging arbitrariness and mala fide on the part of the respondent authorities, the duty lies upon the employer to explain the administrative exigency under which the petitioner is being frequently transferred. As such, in absence of such an explanation, the Court should have no hesitation to form an opinion that the petitioner is being arbitrarily transferred frequently and such an action of the employer has to be deprecated. W.P. No.21175/2019
15. Accordingly, I am of the opinion that the order impugned is a clear sign of arbitrariness and it comes within the meaning of frequent transfer and as such, the same is not sustainable and deserves to be set aside. The respondents have also not clarified that when there are ten vacancies of SAS officers in the District Raisen then in such a situation, the petition can also be accommodated along with the respondent No.3.
16. Accordingly, the order impugned dated 26.09.2019 (Annexure-P/17) is hereby set aside and the petition is accordingly allowed in the above terms.
14. It is also to be noted that while considering the issue in respect of supplementing reasons, the Hon'ble Supreme Court in Civil appeal No. 629 of 2006 and 630 of 2006 in the matter of State of Punjab vs. M/s. Bandeep Singh & others as observed that paras 4, 8, & 7 which reads as under:
"4 There can be no gainsaying that every decision of an administrative or executive nature must be a composite and self sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any Authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. If precedent is required for this proposition it can be found in the celebrated decision titled Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi [1978] 2 SCR 272, of which the following paragraph deserves extraction:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji [1952] 1 SCR 135: Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of Explanations subsequently given by the officer making the order of what he Page 9 of 11 OA/349/2023 meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older".
7. The bid of the Respondents is already over a decade old, which is the period the present Appeal has been awaiting its turn in this Court. We must, therefore, balance the equities and interest of the adversaries before us. It has been submitted by the learned Senior Counsel for the Respondents that although the Appellant had addressed a letter to the Respondents purporting to return the sums received from them, the cheque for this amount was not enclosed with the letter. The fact remains that these sums continue to be in the coffers of the Appellant. It is also submitted by the learned Senior Counsel that the balance sale consideration had been tendered by the Respondents to the Appellant, who declined to accept it on the premise that their Appeal was pending in this Court. Learned Senior Counsel suggested that in the endeavour to do justice to all the parties before this Court, we may direct the Respondents to pay the price of the land at the prevailing Circle Rates, which suggestion has readily been accepted by the learned Counsel for the Appellant with alacrity. Since the Respondents have succeeded in the High Court as well as before us, they should not be deprived of the fruits of the litigation and suffer the disadvantage of losing the land for which they have successfully paid the earnest money and deposited more than twenty five per cent of the sale consideration and have tendered the entire remainder. Learned counsel appearing for the Appellant conceded that, in the facts of the present case, if the Respondents are directed to pay the circle rates, as existing today, the ends of justice would be met. Accordingly, in the circumstances of the present case, we hold that if the Respondents tender the price of the land equivalent to the prevailing Circle Rate minus the sums already paid by them to the Appellant within ninety days from today, the Appellant shall take all necessary steps to convey the land to the Respondents within sixty days thereafter."
15. It is to be noted that the argument advanced by the learned counsel for the respondents is that the courts may not in a routine manner interfere with the transfer. However, while considering the impugned transfer in the OA, we may not ignore the policy also which is framed to streamline the actions of the authority.
16. It is also to be noted that the applicant who came to be transferred frequently transfer from 2012, accepted the same and reported at transferred place. When again, by way of impugned transfer, he came to be transferred before completion of his minimum tenure and without giving any reasons, we cannot accept the reasons quoted in the reply which is an afterthought. May Page 10 of 11 OA/349/2023 be it is true, but the same did not reflect in the transfer order and therefore it does not sustain in the eyes of law as well as transfer policy and hence, same is required to be quashed and set aside.
17. Accordingly, the impugned order is set aside. In the result, the OA is allowed. In view of the same, MA/405/2023 is closed. No order as to costs.
(DR. LATA BASWARAJ PATNE) JUDICIAL MEMBER /al/ Page 11 of 11