Central Administrative Tribunal - Allahabad
Badri Prasad Aged About 58 Years vs Union Of India Through General Manager on 23 September, 2011
(RESERVED)
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD
Allahabad, this the day of , 2011
Honble Mr. Sanjeev Kaushik, Member-J
Original Application No.1136 of 2011
(U/s 19 of Administrative Tribunal Act, 1985)
1. Badri Prasad aged about 58 years, Son of Late Bindeshwari Prasad, Resident of Quarter No.L-10-A, Near Mall Godam, Railway Colony, Shahjahanpur.
2. Ram Pal aged about 51 years, Son of Late Chhotkan Ram, Resident of 25-B, Railway Colony, Dhak Taal, Shahjahanpur.
3. Bhurai Lal aged about 42 years Son of Late Kedar Nath, Resident of Quarter No.61-B, Railway Colony, Dhak Taal, Shahjahanpur.
4. Mohammad Yusuf aged about 51 years, Son of Elahi Baksh, Resident of Quarter No.26-A, Railway Colony, Dhaak Taal, Shahjanapur.
5. Dinesh Kumar aged about 58 years, Son of Muneshwar Baksh Singh, Resident of B-W, 61 AB, Railway Colony, Rauja, Shahjahanpur.
Applicants.
By Advocate : Shri T.S. Pandey
V E R S U S
1. Union of India through General Manager, Northern Railway, Head Quarters Office, Baroda House, New Delhi.
2. Divisional Railway Manager, Northern Railway, Moradabad Division, Moradabad.
3. Divisional Operating Manager, Northern Railway, Moradabad Division, Moradabad.
4. Senior Divisional Personnel Officer, Northern Railway, Moradabad Division, Moradabad.
5. S.L. Chaurasia, Traffic Inspector, East Bareilly, Northern Railway, Moradabad Division, Moradabad.
Respondents
By Advocate : Shri Anil Kumar
O R D E R
By way of the instant Original Application filed under section 19 of the Administrative Tribunals Act 1985, the applicants seeks quashing of order dated 09.09.2011 (Annexure A-1) whereby they have been transferred from Shahjahanpur Railway Station to Banthara Railway Station as well as Tilhar Railway Station.
2. The case put forth by the applicants that they were initially appointed as Token Potter in the railway Department between 29.01.1978 to 16.12.1986. Thereafter they were promoted as Shuntman in the year 2002. It is submitted that the applicants are having unblemished service record as they never received any adverse communication from the respondents regarding their conduct. All the applicants before passing the impugned order were working at Shahjahanpur Railway Station from where they have been transferred to Banthara and Tilhar Railway Station along with their post with immediate effect in same pay scale, Pay Band, Grade Pay and capacity. Against this order the applicants have approached this Tribunal by way of instant OA. Sri Anil Kumar learned counsel who is having advance notice on behalf of respondent appeared. Sri T.S. Pandey learned counsel for applicants have argued that the impugned order is in fragrant violation of rules and the transfer of the applicants cannot be termed on administrative grounds as enblock Shuntman have been transferred from Shahjahanpur Railway Station to Banthara and Tilhar Railway Station. It is averred in the OA that Banthara Railway Station is a small Railway Station where small number of trains as well as their engines are shunted out but there is no shorting guard or any shunting take place in Tilahar Railway Station. Since all the applicants are working against the sanctioned strength of Shahjahanpur Railway Station, therefore, their transfer is illegal, arbitrary against the administrative interest of Railways and thus, the impugned order is liable to be set aside. Sri Pandey, also argued that the impugned order is also without jurisdiction as the order has not been passed by the competent authority who can transfer the applicant as reflected from the impugned order that Senior Divisional Personnel Officer passed order whereas the competent authority in case of the applicants are Divisional Railway Manager. He further argued that their transfer are mid session transfer order and as per Railway Board letter mid session transfer is not permissible thus, also impugned order is liable to set aside being passed against policy.
3. On the other hand Sri Anil Kumar appearing on behalf of respondents argued that all the applicants have been transferred on administrative grounds keeping in view their requirements at the particular place. He submitted that with the approval of the competent authority i.e. D.R.M. the impugned order of transfer has been passed. He further urged that all the applicants are working as Shuntman-Cum-Pointsman, therefore, the argument of the applicants that they can only be appointed against the Shuntman post cannot be accepted as the post of points man exists where the applicants have been transferred. He further submitted that the transfer is a prerogative of the executive; therefore, this court cannot sit over the transfer order except the same has been passed with a malafide intention. He place reliance upon following judgments:-
i) E.P. Royappa Vs. State of Tamil Nadu, reported as 1974 SCC (L&S) 165.
ii) B. Varadha Rao V. State of Karnataka and Ors. reported as 1986 SCC (L&S) 750.
iii) Mrs. Shilpi Bose and Ors. Vs. State of Bihar and Ors. reported as 1992 SCC (L&S) 127.
iv) Union of India and Ors. Vs. S.L. Abbas reported as 1994 SCC (L&S) 230.
v) National Hydro-Electric Power Corporation Ltd. Vs. Shri Bhagwan and Anr. reported as 2001 (91) FLR 259.
With regard to the jurisdiction in passing the order Sri Anil Kumar submitted that it is clear from the impugned order that the same has been issued after the approval of Divisional Railway Manager, therefore, the arguments raised by the applicant to this effect is not sustainable. He submitted that the applicant has been transferred only 30Kms from the earlier station. It is the law of land that transfer is a prerogative of an employer and the court should not interfere unless the party alleged and proved the malafide.
4. I have heard Sri T.S. Pandey, learned counsel for the applicant and Sri Anil Kumar learned counsel representing the respondents.
5. Even otherwise as per settled law the courts should not deal with transfer orders as if they are appellate authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. They cannot substitute their own decision in the matter of transfer for that of competent authorities. The scope of judicial review in the matter of transfer is restricted inasmuch if an order of transfer is challenged on the ground of violation of statutory provision or lack of competence of person who has passed the order or mala fide, only then the Court should interfere otherwise it is not liable to be interfered in Judicial review. The reason for such a view taken by the Courts repeatedly is that no Government servant has a right to be posted in a particular post or position once appointed in service. He cannot claim that he should continue at same place as long as he desire. My view finds support from the judgment of Honble Supreme Court in the case of E.P. Royappa Vs. State of Tamil Nadu the Hon'ble Apex Court reported 1974 SCC (L&S) 165 as held 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 utilize the services of its employees. However, this power must be exercised honestly, bona fide and reasonably.
6. The Hon'ble Apex Court in the case of B. Varadha Rao V. State of Karnataka and Ors. reported as 1986 SCC (L&S) 750 held as under: -
It is well understood that transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post.
7. In Mrs. Shilpi Bose and Ors. Vs. State of Bihar and Ors. reported as 1992 SCC (L&S) 127 the Hon'ble Apex Court held as under: -
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.
8. Reiterating the aforesaid view, in the case of Union of India and Ors. Vs. S.L. Abbas reported as 1994 SCC (L&S) 230 the Honble Apex Court held that the transfer is an incident of service and in Para-7 their Lordships held as under:-
Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or it made in violation of any statutory provisions, the Court cannot interfere with it.
9. In National Hydro-Electric Power Corporation Ltd. Vs. Shri Bhagwan and Anr. 2001 (91) FLR 259 the Honble Apex Court held as under:-
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 o 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 of poser 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 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.
10. In the case of State of U.P. Vs. Gobardhan Lal the Hon'ble Apex Court (Supra) held as under: -
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 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 if 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 or 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 office 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 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 an seniority, scale of pay and secured emoluments. This court has reiterated that the order of transfer made 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.(Emphasis added).
11. Instead of burdening this judgment referring catena of decisions on this aspect, it would be fruitful to refer a very recent three Judges judgments of the Hon'ble Apex Court in the case of Major General J.K. Bansal v. Union of India and Ors. (Supra), wherein in order to appreciate the scope of interference in a writ jurisdiction under Article 226 of the Constitution of India assailing the order of transfer the Hon'ble Apex Court referred to the earlier law laid down in the case of Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. (Supra) and National Hydro-Electric Power Corporation Ltd. v. Shri Bhagwan and Anr. (Supra), and held in para-12 as follows: -
It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by Courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made. Recently also the above view has been reiterated in UOI & Muialidharane 2009 (9) SCC 304, Rajendra Singh Vs. State of U.P. 2009 (15) SCC 178.
12. With regard to allegation of malafides, as alleged by the applicant against the respondent No.5 in para 4.VIII of the OA, is concerned, the same is general and vague. It is not that one person has been transferred. By the impugned order, six persons have been transferred. Therefore, merely alleging malafide does not entitle the applicant to seek relief against the transfer order. Moreover, respondent No.5 is not the competent authority who can transfer the applicant. He is an officer who is junior to the transferring authority, therefore, it cannot be said that the respondents no.5 with a malafide intention have got the applicants transferred. The coordinate Bench of this Tribunal in OA No.153 of 2011 in the case of Ram Prawesh Yadav Vs. Union of India and Ors. Has also considered the similar controversy and has rejected the same by passing the order dated 06.05.2011.
13. Since no specific allegation has been leveled against any person, general and vague allegation has been leveled therefore, the same cannot be looked into as per Honble Apex Court decision reported in Jasbir Singh Chhabra Vs. State of Punjab (2010) 4 SCC 192 it has been held as follows:-
It is trite to say that while exercising power of judicial review, the superior courts should not readily accept the charge of malus animus laid against the State and its functionaries. The burden to prov the charge of mala fides is always on the person who moves the court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to mala fides and the courts should resist the temptation of drawing dubious inferences of mala fides or bad faith on the basis of vague and bald allegations or inchoate pleadings. In such cases, wisdom would demand that the court should insist upon furnishing of some tangible evidence by the petitioner in support of his/her allegations. In the decision reported in First Land Acquisition Collector V. Nirodhi Prakash Gangoli (2002) 4 SCC 160 it was held as follows: The burden of establishing mala fides is very heavy on the person who alleges it.
14. In view of the above settled law, now I proceed to examine the facts of the present case. Admittedly, the applicants have been transferred 30 Kms. from the present place of posting. The transfer order has also been passed with the approval of the competent authority i.e. Divisional Railway Manager. It is for the respondents to see that each employee has to be placed at a particular place and not for this Tribunal to manage the day to day affairs of the respondent department.
15. In view of the above, I find no reason to interfere with the impugned order. Hence, the OA is dismissed being devoid of merit. No Costs.
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