Central Administrative Tribunal - Delhi
Sh Sudhir Kumar vs Employees State Insurance Corporation ... on 29 January, 2025
1
OA No. 4784/2024
Item No. 9 (C-1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 4784/2024
Reserved on: 02.01.2025.
Pronounced on: 29.01.2025.
Hon'ble Mr. Rajinder Kashyap, Member (A)
Sudhir Kumar
S/o Sh. Ram Lai, Aged 57 Years R/o A-3/159-160,
Ground Floor, Sector-11,Rohini,
New Delhi-110085.
...Applicant
(Through Advocate:Mr.Somnath Bhattacharya)
Versus
1. Employee State Insurance Corporation Through its Director General,
Panchdeep Bhawan, Comrade Indrajeet Gupta Marg, New Delhi
110002.
2. Insurance Commissioner (Personnel & Administration) ESIC, HQ
Office Panchdeep Bhawan, CIG MARG NEW DELHI 110002.
3. Regional Director, Delhi, ESIC Regional Office, Rajendra Bhawan,
Rajendra Palace, New Delhi-110008
...Respondents
(Through Advocate: Mr.Amit Chawla)
2
OA No. 4784/2024
Item No. 9 (C-1)
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A): -
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s): -
"(i) Allow the O.A and Quash and Set aside the impugned transfer policy dated 20.05.2022.
(ii) Quash and set aside the impugned speaking order dated 27.11.2024 and Transfer Order No. 35 OF 2024 dated 03.03.2024 passed by the authority, competent,оп the Recommendation of Transfer Committee only in respects of the Applicant in which Applicant name is present at S.No. 635 and has been transferred from ESIC Delhi to ESIC Mumbai (Approximate-1500Kms) and consequently pass an order allowing the applicant to serve at the present station.
(iii) Issue an appropriate direction or order for quashing Relieving Order dated 03.12.2024 having an Office Order No. 119 OF 2024 issued by the Deputy Director only in respect of the applicant with all consequential relief.
iii) Pass any further order as this Hon'ble Tribunal seems fit in the facts and circumstances of the case."
2. The factual matrix of the present case is that in pursuance of transfer policy dated 20.05.2022, the applicant has been transferred from Delhi to Mumbai on 03.03.2024. Assailing the said order of transfer, the applicant approached this Tribunal by filing OA No.3938/2024 and this Tribunal was pleased to dispose of the same at the admission stage on 08.10.2024 directing the respondents to dispose of the pending representation of the applicant and his relieving order was stayed. Therefore, the respondents decided the representation and passed a speaking order on 27-11-2024 upholding the transfer order. The applicant has again approached the Tribunal. 3 OA No. 4784/2024 Item No. 9 (C-1)
3. It is stated by the applicant that the coordinate Benches of this Tribunal at Mumbai, Chandigarh and Calcutta were pleased to stay the impugned transfer policy as the issues raised in the matters were identical. The applicant contends that he is entitled to get similar relief. It is stated that the Competent Authority, on the recommendations of Transfer Committee, ordered Annual General Transfer for the 'Transfer Year-2024' vide Office Order No.35 of 2024 on 03.03.2024 in respect of the Cadre Officer/Manager of Social Security Grade II/Superintendent which includes the name of the Applicant at Serial No. 635. The Applicant, without causing further delay, had submitted grievance through online mode on the ESIC, (ERP) Portal as per the prescribed procedure.
4. The applicant states that the lacuna pointed out in the portal by the applicant or the employees of the Corporation is that the employee cannot write a grievance of more than 1000 words and are not been able to upload supporting documents to prove the genuineness of their grievances because of which the parameters or criteria on which Transfer Grievance Redressal Committee has decided the grievances of the employees, is somehow questionable. The applicant had also forwarded his representation to the Insurance Commissioner (P&A) in reference to their grievance against the transfer to the place i.e. SRO Thane.
5. The Chandigarh Bench of this Tribunal in the matter titled as ESIC Union Punjab Region through its General Secretary Amandeep 4 OA No. 4784/2024 Item No. 9 (C-1) Singh & Others Vs. ESIC in O.A No. 622/2024 has also granted stay relying upon the order passed by the Mumbai Bench of this Tribunal in O.A No. 477/2023. The applicant states that once transfer policy is under review by the competent authority, issuance of the transfer order on the basis of aforesaid policy is not justified.
6. In pursuance to the order of Principal Bench of this Tribunal dated 08.10.2024 passed in OA 3938/2024, the DG, ESIC has complied with the order and after considering representation dated 22.09.2024 rebutting the claim of the applicant. The learned counsel for the respondents' states that in pursuance of Hon'ble CAT, PB, New Delhi Order dated 08.10.2024 passed in OA 3938/2024, the DG, ESIC has complied with the order and after considering representation dated 22.09.2024 and as per available records, Speaking Order dated 27.11.2024 was issued with the directions to the applicant to report for duty at his ordered place of posting. However, the applicant herein is misusing the judicial forum to vent out his grievances without following the proper course/method provided. It is submitted that the present applicant has straightway approached to this Tribunal without exhausting the alternative departmental remedy available to him. The applicant ought to have first avail the alternative remedy to National Litigation Committee (NLC) as per circular dated 07.06.2023.
7. The respondents further state that the present Applicant has straightway approached this Hon'ble Central Administrative Tribunal without exhausting the alternative remedy. The Applicant ought to 5 OA No. 4784/2024 Item No. 9 (C-1) have first availed the alternate departmental remedies available to him in the form of approaching the National Litigation Committee. The Applicant has been relying upon the report of Transfer Grievance Redressal Committee and against the said order, it is the duty of the Applicant to approach National Litigation Committee before coming to this Hon'ble Tribunal for ventilating any grievance. The present application is devoid of merits only for the reason that the Applicant has to avail first alternate and efficacious remedy at National Litigation Committee. It is further submitted that the Applicant ought to have joined his transferred place of posting and then should have applied for redressal of grievance to National Litigation Committee. The learned counsel for the Respondents states that the applicant herein cannot claim any right over only one place. It is submitted that the condition of Transfer is inextricably connected with the Government Services and it is the duty of the applicant to join the place to which he/she has been transferred. Respondents state that it is administrative reason combined with compassionate ground, as raised by the applicant that such transfers orders have been passed and therefore there is no right of the present applicant over one place where he is presently posted. It is submitted that the transfer orders have been passed on the basis of Transfer Policy at Pan India level and as per administrative reason and therefore, the transfer order issued by the Respondent is just, legal and proper and it does not require any interference. In Civil Appeal No. 280/2003 the matter of 6 OA No. 4784/2024 Item No. 9 (C-1) case of S.C. Saxena Vs. Union of India and Ors. the Hon'ble Apex court held as follows:
"In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems."
8. The respondents contend that the applicant did not approach this Tribunal with clean hands and concealed the vital fact that the Hon'ble Supreme Court of India vide its order dt. 09.08.2024 and 22.10.2024 in SLP 16721/2024 has upheld the Transfer order no 35/2024 dated 11.03.2024 issued under AGT-2024. It is submitted that the ESIC is fully empowered to transfer any of its employees to anywhere in India according to the requirements of public interest as the basic scheme of the ESI Act is to serve general public in India. Therefore, it would become necessitate in the interest of all persons including all IPs and as an administrative exigency, the transfer of service is inevitable. The foregoing will stand to prove before this Hon'ble Tribunal that OA filed by the applicant is frivolous, against the public interest and not in consonance with the service conditions of the appointment.
9. Heard learned counsel for both parties and perused the material available on record.
ANALYSIS
10. The applicant is a Social Security Officer/Manager Grade II/Superintendent, was transferred from SRO Rohini to RO Mumbai, 7 OA No. 4784/2024 Item No. 9 (C-1) as part of the Annual General Transfer for the Transfer Year-2024. Based on the recommendations of the Transfer Committee, the transfer order was issued on 03.03.2024 by the Competent Authority.
11. Meanwhile, Chandigarh Bench of this Tribunal, passed an order staying the transfer order dated March 03.03.2024, for certain applicants. This Tribunal stated that the transfer policy being under review by the competent authority and held that the issuance of transfer orders based on the policy was not justified.
12. The applicant filed an OA No. 3938 of 2024, challenging the transfer order. This Tribunal passed an order dated 08.10.2024 directing the respondents to decide on the applicant's representation, keeping the transfer and relieving orders in abeyance. The respondents eventually passed a speaking order on 27.11.2024 rejecting the applicant's prayers, and relieving order was issued. The applicant has now filed the present Original Application challenging the respondents' actions and seeking relief against the transfer policy dated 20.5.2022, speaking order dated 27.11.2024, transfer order dated 03.3.2024 and relieving order dated 03.12.2024. The applicant contends that the respondents' actions are arbitrary, unjust, and violative of their rights and seeks to have the above-mentioned orders quashed and set aside.
13. Learned counsel for the respondents argues that the applicant has misused the judicial forum by not exhausting alternative 8 OA No. 4784/2024 Item No. 9 (C-1) departmental remedies available. Specifically, the applicant should have approached the National Litigation Committee (NLC) before filing the current application. They further state that the applicant has concealed the vital information, including the Supreme Court's order upholding the transfer order. Learned counsel for the respondents argues that the applicant's transfer order was issued in accordance with the transfer policy and transfer is ordered on the administrative reasons. He had submitted a transfer request with choices but the Transfer Committee recommended his posting to RO, Mumbai based on administrative requirements. As a statutory organization, the ESIC has the power to transfer employees across India to serve public interest. The applicant's transfer order is just, legal, and proper. It is further argued that the applicant cannot claim any right over a particular place of posting. As a government servant, it is his duty to report to the transferred location and make representations about personal problems, as held by the Supreme Court in the case of S.C.Saxena v. Union of India & Others reported in (2006) 9 SCC
583. Learned counsel for the respondents state that the present OA is frivolous, against public interest and not in consonance with the service conditions of the applicant's appointment.
14. From catena of judgements of the Hon'ble Court, it can be stated that the Courts can interfere in the transfer order only if such orders are issued by the incompetent authority, with mala fide intention and transfer order issued are in violation of any Acts/Rules. To bring 9 OA No. 4784/2024 Item No. 9 (C-1) clarity on the issue and for facility of reference, it would be proper to refer to the following judgements:-
(i) In the matter of Mrs. Shilpi Bose and Others Vs. State of Bihar and Others, AIR 1991 SC 532, wherein, in para 4, it is held that:-
"4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders."
(ii) In the case of Union of India and Others Vs. S.L. Abbas,(1993) 4 SCC 357, wherein, it has been held in para Nos.6, 7, 8 and 10 as under:-
"6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the 10 OA No. 4784/2024 Item No. 9 (C-1) Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, 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 transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and 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 323-A. (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 clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).
9. ................
10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The 11 OA No. 4784/2024 Item No. 9 (C-1) 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 instructions/guidelines are not followed, much less can it be characterized as malafide 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."
(iii) In the case of State of M.P. and Another Vs. S.S. Kourav and Others,(1995) 3 SCC 270, wherein, it is held in para 6 that:-
"6. It is further contended that in an unfortunate situation the respondent's wife committed suicide leaving three children and he would suffer extreme hardship if has to work in the tribal area. This court cannot go into that question of relative hardship. It would be for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administrator. If there is any such hardship, it would be open to the respondent to make a representation to the Government and it is for the Government to consider and take appropriate decision in that behalf."
(iv) In the case of National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan, Appeal (Civil) 1095-1096 of 2001, wherein, it is held by the Apex Court that:-
"Heard Shri B. Datta, learned senior Advocate for the appellant- Corporation and Shri Jitendra Sharma, learned senior Advocate, for the respondent-employees. It was urged for the appellant- Corporation that transfer being an incident of service, no exception could be taken to the impugned orders of transfer, which came to be made according to the appellant in accordance with law and in public interest, particularly in the absence of any proof of malafides or contravention of any specific prohibitory provision in this regard, rendering the employees immune from such transfers. Rule 4.1.1 of the Seniority Rules was, according to the appellant, misconstrued completely giving a go-bye to R 5-14 of the Recruitment Rules and a proper 12 OA No. 4784/2024 Item No. 9 (C-1) construction of the same would really support the stand of the Corporation to justify the transfers in the case on hand. The assumption made by the High Court on the alleged grievance of loss of seniority is said to be unwarranted having regard to the fact that the Projects to which the respondents were transferred being new, no such grievance could have been countenanced. It was also urged that the Government of India, from time to time, assigned new Projects to the Corporation for being executed and implemented and the above transfers become absolutely necessary for undertaking such new Projects in order to adjust the staff from various Projects or Corporate Offices where they were either not required or found to be surplus and so far as the case on hand is concerned, staff from the lowest level, namely, Class-IV, to the level of General Managers have been transferred, offering a package deal under which they were permitted to not only keep their families at the previous place of posting or any place of their choice in India entitling them to House Rent Allowance of that Station, but also giving them in addition, special House Rent Allowance of ten per cent of presently drawn basic pay, giving them, at the same time, temporary accommodation at the project site free of cost, besides granting them other benefits like site compensatory allowance, monthly ad hoc monetary assistance, free transport of essential commodities to the site and mess facilities, etc. More than one and a half times the insurance coverage that they would have got in the previous place of posting also become due to them for which the premium is said to be borne by the Corporation, in addition to the travel facilities to the members of the family.
..............
On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well-settled and often reiterated by this Court that no Government servant or employee of public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of 13 OA No. 4784/2024 Item No. 9 (C-1) routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4.1.1 of the Seniority Rules interdicts any transfer of the employees from one Office or Project or Unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance."
(v) In the case of State of U.P. And Ors. Vs. Gobardhan Lal, 2004- (003) CLR-0078-SC, wherein, it has been held that:-
"It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit [sic] as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made 14 OA No. 4784/2024 Item No. 9 (C-1) even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
(vi) In the case of State of U.P. And Anr. Vs. Siya Ram And Anr., in Appeal (Civil) 5005/2004 dated 05.08.2004, wherein, it has been held that:-
"The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service 15 OA No. 4784/2024 Item No. 9 (C-1) concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr. (2001 (8) SCC 574)."
(vii) In the matter of Major General J.K. Bansal Vs. Union of India and others, Appeal (Civil) 5189/2005 decided on 23.08.2005, wherein, it has been held in para 9 and 10 are as follows:
"9. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under: -
"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department..................................."
10. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in a Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In 16 OA No. 4784/2024 Item No. 9 (C-1) appeal this Court set aside the order of the Tribunal and observed as under: -
"Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, 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 transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."
(viii) In the decision of Central Administrative Tribunal, Hyderabad Bench in the case of Shri G. Nageshwara Rao S/o G.S..... Vs. The Govt. of India Rep. decided on 22.08.2007, it has been held in para 8 that: -
"8. From the above cited decisions, it is clear that the Court or Tribunal cannot interfere with the orders of transfer unless the transfer order is passed by incompetent authority or the transfer is malafide or it is against the statutory rules. It is also clear that the burden is on the employee to prove malafides or violation of statutory rules or incompetency of authority to pass transfer orders. So, it has to be seen whether in the instant case the applicant has proved either malafide or violation of statutory rules or incompetency of the authority who issued transfer orders. The transfer orders dated 25.5.2007 is filed along with the application as Annexure R-1, the transfer order is passed by Director of Administration with the approval of the competent authority to transfer the applicant from Hyderabad to Kolkata. It is not pleaded in the application that the authority who passed transfer order is incompetent to pass the transfer order. It is also not pleaded in the application that the said transfer order is in violation of any statutory rules or provisions. It is not disputed that the post of Drugs Inspector is a transferable post all over India. In 17 OA No. 4784/2024 Item No. 9 (C-1) the application, it is stated that there is no specific policy regarding transfers in existence in the office of the respondents. Therefore, it is not the case of the applicant that the impugned transfer order is made in violation of any statutory rules or any policy guidelines. The applicant pleaded that the respondents have chosen pick and choose policy while transferring the applicant by making a Drugs Inspector who is junior to him in charge of Deputy Drugs Controller. Admittedly, the applicant has been working for more than six years at Hyderabad but his case is that there are several others who have been serving for more than 20 years or 30 years without transfer and therefore, his transfer is unjust. That is not a ground to interfere with the transfer order. As long as the authority who issued transfer order is the competent authority to order transfer, the Court cannot interfere with such order unless the malafides are proved. Here, in the instant case, no malafides have been attributed to the authority who issued transfer orders. The pleadings are very vague. It is simply stated that in the rejoinder filed in OA 419/2006 he made certain allegations against certain persons and that the transfer orders were issued at the behest of those persons. The applicant did not name those persons nor did he implead them as parties. In the absence of the details of those persons and also the nature of the allegations made against such persons, it cannot be said that the impugned transfer orders are issued with malafide intention. Malafides are to be pleaded specifically and are to be proved. But in the instant case, the allegations made are very vague. It is true that as the applicant was denied promotion, he challenged the action of the respondents for not promoting him by way of filing OA 419/2006. Merely because he filed an application before this Tribunal challenging the action of the respondents in not giving promotion, it cannot be said that it is the reason for the competent authority to issue transfer order. I am unable to hold that the said admitted fact of the pendency of the OA 419/2006 is sufficient to attribute the malafides to the competent authority who issued transfer orders. Hence, in my considered view, the applicant has failed to prove the malafides alleged in the application. Hence, this Tribunal has no power to interfere with the transfer orders. However, as this Tribunal passed an interim order on 11.7.2007, to maintain status quo and as the relieving order is not yet served on the applicant and that the applicant in his letter dated 18.6.2007, stated that he is not a position to leave Hyderabad for some time as his mother cannot be moved for a minimum period of three months. I consider it expedient to grant 15 daystime from this day for the applicant to move from Hyderabad to Kolkata. The period of absence of the applicant 18 OA No. 4784/2024 Item No. 9 (C-1) from duty from 6.6.2007 shall be regularised treating it as leave available to the applicant. The joining time shall be reckoned after the expiry of 15 days from this day."
15. Applicant has raised two main grounds for seeking revocation of transfer order. The first ground is that the mother of the applicant is 80 years of age who is dependent upon him and the second ground is that the applicant is on the verge of retirement as he is retiring in February, 2027 i.e. after around little over two years from now. Applicant alleges that the respondents have adopted pick and choose tactics to consider the requests of some of the employees in the transfer list. I am of the considered view that both these grounds are not tenable grounds to interfere in the transfer orders of applicant in view of law laid down in the above mentioned judgments of Hon'ble Courts.
16. In view of the submissions made by the learned counsel for both parties, the OA is disposed with the following directions: -
(a) Applicant is directed that he shall submit a representation to the National Litigation Committee (NLC) within one week from the date of certified copy of this order, providing all details of medical health condition of her mother along with three new options for place of posting, which have not been previously submitted. Thereafter, the National Litigation Committee (NLC) shall consider the applicant's representation, taking a holistic view of the matter, in light of the priority matrix for compassionate ground transfers and uninfluenced by the impugned order 19 OA No. 4784/2024 Item No. 9 (C-1) dated 27.11.2024 and pass a reasoned and speaking order within 03 (three) weeks from the date of receipt of his representation. The respondents while deciding representation of the applicant shall also consider the fact that applicant is retiring from service in around 02 (two) years.
(b) Pending MAs, if any, stand closed.
(c) No order as to costs.
(Rajinder Kashyap) Member (A) /mk/