Central Administrative Tribunal - Delhi
Dr. Neelam Bhalla vs Union Of India on 21 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.4328/2010
Order Reserved on 28.05.2012
Order pronounced on 21 .08.2012
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
1. Dr. Neelam Bhalla
D/o Shri S.P.S. Bhalla
R/o Type 5, C-20, HUDCO Place,
Andrews Ganj, New Delhi-110049. -Applicant
(By Advocate: Shri Ajesh Luthra)
Versus
1. Union of India
Through its Secretary
Defence Research and Development Organization
Ministry of Defence, DRDO Bhawan,
Rajaji Marg, New Delhi-110 105.
2. Union of India, through the
SA to RM and DG R&D,
Defence Research & Development Organisation,
Ministry of Defence, DRDO Bhawan,
Rajaji Marg, New Delhi-110 105.
3. Dr. W. Selvamurthy,
CC R&D (LS),
Defence Research and Development Organization
Ministry of Defence, DRDO Bhawan,
Rajaji Marg, New Delhi-110 105.
4. Dr. P.S. Goel
Chairman,
Recruitment and Assessment Centre (RAC)
Defence Research and Development Organization
Lucknow Road, TImarpur, Delhi-110054.
5. Dr. Arun Kumar.
Director of Personnel (DOP)
DRDO Bhawan, Rajaji Marg,
New Delhi-110 105.
6. Shri R.K. Jain
Director,
Recruitment and Assessment Centre (RAC)
Defence Research and Development Organization
Lucknow Road, TImarpur, Delhi-11005-Respondents
(By Advocate: Shri M.K. Bhardwaj for Ms. Priyanka Bhardwaj)
O R D E R
Mr. Sudhir Kumar, Member (A):
This OA has been filed by the applicant against two official respondents and four private respondents alleging that they have all connived to deprive her of her due promotion, and transferred her from one Laboratory (Lab, in short) of the Defence Research and Development Organization (DRDO, in short) to another situated about a half of kilometer away, in a case of gender discrimination and personal humiliation.
2. The applicant had made a prayer for calling for records of the case, which prayer was acceded to, and the records concerning her posting/transfer were ordered to be produced, and have been perused by this Bench. The applicant had also made some unrelated prayers, but this OA is not being rejected at this late stage of passing of this final orders in the OA on the ground that the applicant had sought plural remedies in a single OA, as follows :-
8 (i) Call for the records of the case.
ii) Direct the respondents to initiate and complete the process for recording of APAR for the year 2009-2010 in respect of Applicant and there after to convene a review Peer Committee meeting and consider the case of the Applicant for promotion to the rank of scientist G in a time bound manner.
iii) Award cost of the legal proceedings
iv) Direct the respondents to cancel/set-aside the transfer order of the Applicant.
v) Cost of the case may kindly be awarded in favour of the applicants.
3. The applicant had also made a prayer for Interim Relief, praying for directions upon the respondents to provisionally consider the applicants case for promotion to the post of Scientist F, which Interim Relief was not granted.
4. The applicant has submitted that she is an M.Sc in Physics, M.Sc in Operational Research, and Ph.D in Computer Science, and had joined DRDO as Scientist B in October, 1984, through Union Public Service Commission, and at the time of filing of the OA, she was working as Scientist F in Defence Terrain Research Lab (DTRL, in short) in the Ministry of Defence, Union of India. She has claimed outstanding achievements to her credit, including that she had introduced, Conceptualized & Planned for Scientists Entry Test (SET, in short) conducted by the DRDO for recruitment of Scientists B level while she was working in the Recruitment & Assessment Centre (RAC, in short) of DRDO.
5. The applicant has stated that her problems started in the year 2004 when she was assigned responsibility for recruitment of Scientists B under Advertisement No.66 in respect of 60 items, except item Nos. 34 & 37 of the advertisement, in which two cases some vested interests involving Private Respondent/Respondent No.5 were involved. In September 2005, Private Respondent/Respondent No.5 became the Director of the RAC, and re-organized its structure, which left very little work, responsibility and resources in the hands of the applicant. She has alleged that Private Respondent/Respondent No.5 diverted all the work, responsibilities and resources to male officers, even those juniors to her. She was also not assigned the responsibility for installation of Video Conferencing facility at RAC, and deliberately she was not included as Member of the Departmental Promotion Committee (DPC) for promotion of staff members. She has also submitted that she was not involved in organization of the International Workshop held on 17.09.2008, and was later even prevented from presenting a paper and attending the Workshop. She has submitted that she complained against this incident to the Chairman of the RAC, Private Respondent No.4, but did not get any fair treatment.
6. The applicant thereafter filed a complaint with the National Commission for Women (NCW, in short) against the private Respondent/Respondent No.5 on 08.10.2008 (Annexure A-1), which was referred to the Delhi Commission for Women (DCW, in short). She has alleged that on the same date, Private Respondent/Respondent No.5 initiated a Note to post her out of RAC, but, however, through Annexure A-2, noting of the Private Respondent/Respondent No.5 produced by the applicant, and Annexure A-3, the reply given by Private Respondent/Respondent No.5 to the DCW, it is apparent that Private Respondent/Respondent No.5 was evasive, and his malafide intentions are clear. The applicant thereafter filed her reply before the DCW in Complaint No. 8124650 of 2008 File No. 501. On behalf of the applicant, Dr. Reny Jacob, Member, DCW, wrote to the Honble Defence Minister on 05.01.2009 through Annexure A-4(i), to which a reply in Annexure A-4(ii) was issued by the Honble Minister that the matter would be looked into.
7. However, soon the applicant filed a Suit C.S. No.317/2009 before the Additional District Judge (North) Tis Hazari Courts, Delhi, in which summons for settlement of issues were issued on 10.08.2009. In this Suit, she had enclosed her correspondence with the Organizers of the Workshop on 18.09.2008, and her complaint dated 08.10.2008 filed before the NCW, which was referred to DCW, and also the Legal Notice issued by her to Private Respondent/Respondent No.5 on 10.12.2008, and another Legal Notice issued by her on 24.12.2008 to the Organizers of the International Workshop referred to above. The Suit was heard, and through the mediator, on 17.11.2009 the applicant submitted that she was ready to withdraw the case against Private Respondent/Respondent No.5, and also the second defendant, Prof. P.K. Kapur, Department of Operational Research, (who was the organizer of the said International Workshop, but is not a party in the instant OA), and the Suit was settled in the Court on 19.12.2009, as she had no grievance whatsoever against both the defendents.
8. It appears that through Annexure A-6 dated 08.05.2009, the applicant had also given a complaint to the Scientific Advisor, DRDO, Ministry of Defence, but soon thereafter her posting and Movement Order dated 18.05.2009 (Annexure A-7) was issued, relieving her of her duties at RAC w.e.f. 18.05.2009 (FN), and she was directed to report to Director, DTRL, Metcalfe House, Delhi-54. It appears that the applicant did not hand over the complete charge from her place of transfer, because of which, through letter dated 18.11.2009, Director, DTRL was requested that the applicant had not reported to RAC to hand over keys of almirahs, and she may be directed to handover the keys by 20.11.2009, failing which the hard disk of computer left by her at RAC would be formatted, and the computer would be handed over to the concerned officer. In reply, it was reported on behalf of Director DTRL that the applicant was on leave till 31.12.2009, and had been informed, but from Annexure A-7(ii) dated 05.01.2010, it is clear that from her former room in RAC, books pertaining to RAC library were picked up, but her personal items, and 177 books not belonging to the Library were forwarded to her.
9. Since the Movement Order dated 18.05.2009 Annexure A-7 (i) had mentioned the authorization for her transfer issued on 11.05.2009, through her letter dated 21.05.2009, Annexure A-8 (i), the applicant sought a copy of that DOP letter authorizing her permanent posting from RAC to DTRL. Her request was responded to by the respondents through Annexure A-8 (ii), and through letter dated 22.05.2009, a copy of the DOP authorization dated 11.05.2009 was provided to her. It was after receipt of this that she had appealed to the DCW on 28.05.2009 Annexure A-9(i), and nearly six months after the first letter to Honble Defence Minister on 05.01.2009 by a Member of DCW, another letter was sent by Chairperson, DCW on 17.06.2009 to the Honble Defence Minister. The applicant herself also sent an appeal Annexure A-10 dated 09.07.2009 addressed to the Honble Defence Minister, and she directly received a reply dated 01.08.2009 signed by the Honble Minister assuring her as follows:-
Dear Dr. Neelam Bhalla, This has reference to your letter dated 9th July, 2009.
The department has examined the matter. You have now been posted to nearby Laboratory DTRL in public interest on the recommendations of Chairman, Recruitment and Assessment Centre. You will be assigned major R&D Project in line with your core strength of Computer Science.
Your apprehensions are not true. However, due care is taken to protect your interest.
With regards, Yours sincerely, Sd/ (A.K. Antony)
10. The applicant was, however, still dissatisfied, and pursued her complaint of gender discrimination at workplace by sending another complaint on 25.09.2009, Annexure A-12(ii), and also filed an application under RTI Act on 26.10.2009. DCW again took up the case of the applicant with the Honble Defence Minister through a third letter dated 21.10.2009 (Annexure A-13). The reply to her RTI query was received by the applicant through Annexure A-14 (i) dated 13.11.2009, but being still dissatisfied, she filed an appeal through Annexure A-14(ii) dated 23.11.2009. The applicant also approached the Central Information Commission (CIC, in short) by filing an on line RTI Complaint on 20.01.2010 Annexure A-15(i), and her case was decided by the CIC on 17.08.2010 through Annexure A-15(ii), directing the file notings relating to her transfer to DTRL to be supplied to the appellant, and the letter sent by DRDO to Honble Defence Minister also to be provided to her. Accordingly, through letter dated 16.09.2010, Annexure A-15(iii), the RTI Cell of DRDO supplied all the relevant information to her including copies of the confidential communication from private Respondent/Respondent No.4 dated 23.04.2009 addressed to private Respondent/Respondent No.3, and the file notings of the private Respondent/Respondent No.3 dated 23.07.2009, which was put upto the Honble Defence Minister.
11. The applicant has also filed as Annexure A-21 (i) dated 06.01.2010 and dated 15.12.2009 the correspondence regarding issuance and distribution of blank Annual Performance Assessment Report (APAR, in short) forms for Scientists to be reported upon, in response to which, through her letter dated 15.01.2010 Annexure A-21 (ii), the applicant had stated that she had worked under two superiors for the period of two months and two and half months in between the period from 01.01.2009 to 17.05.2009, and wanted to know as to who would be the Assessing Officer in respect of her APAR, to enable her to fill the requisite information. In response to that, the Non-Initiation Certificate of APAR was issued to her on 19.1.2010. The applicant then stated that though the Director, RAC, had issued a Non-Initiation Certificate of APAR for the period from 01.01.2009 to 17.05.2009, but since during the subsequent period 18.05.2009 to 31.12.2009, she had availed Earned Leave most of the time, she had not submitted her APAR form for the year 2009, and had requested that the average of her earlier APARs may be considered for the year 2010 also as per rules. However, through letter dated 05.08.2010 Annexure A-21 (vii), the applicant was asked to submit the duly filled APAR for the year 2009 to DRDO, for necessary action, as filling up the APAR for the officers is mandatory. But, aggrieved by this instruction also, the applicant submitted a representation dated 01.06.2010 addressed to the Scientific Advisor to Raksha Mantri, and DG R&D, through Annexure A-22. She also filed another RTI application dated 10.07.2010 through Annexure A-23 (i), to which reply was issued by her through Annexure A-23 (ii) dated 10.08.2010, on the basis of the information submitted by the Associate Director (Pers) of DRDO on 06.08.2010.
12. The respondents filed their reply written statement on 28.02.2011. In their reply, they explained the elaborate and well defined system for promotion of Scientists in DRDO from Scientists F grade, equivalent to Director in Govt. of India, to Scientist G grade, equivalent to the Joint Secretary in Govt. of India. It was explained that for promotion to this level, besides professional competence and technical knowledge and expertise, the personality attributes like leadership qualities, managerial skills, sound acumen related to Team Building, and sustaining a motivated group etc. are quintessential. It was explained that these personality attributes are examined by a Peer Review Committee of the DRDO, for which the APAR is only a basic document, which has to be supported by other inputs, from the Internal Screening Committee, an Assessment Board, and the Peer Committee. It was pointed out that in order to enable the authorities to timely complete the process of assessment of officers, the officer has to firstly fill in certain columns in APAR, that relate to his/her projects/assignments, set targets, achievements etc., and in the case of receipt of a blank APAR, the onus of fulfilling his/her part of the APAR lies on the concerned officer. After explaining the intricacies of the selection process, respondents submitted even though a blank APAR form was issued to the applicant for completion of her part and return, she did not submit her duly filled APAR to the concerned authority, and after a reminder, submitted her APAR for the year 2009 only on 30.08.2010, in respect of which the process of recording of comments has already been completed in October, 2010. It was further submitted that the subsequent APAR for the year 2010 is not relevant for the prayers of the applicant.
13. It was further submitted that the meetings of the Assessment Board and the Peer Committee are held by DRDO in a time-bound manner, and cannot be stopped or delayed due to the acts of omission and commission of any one individual, and that the Internal Screening Committee meetings of Scientist F for promotions to Scientist G were held on 29.03.2010, and on 16.04.2010, whereas the applicant submitted her APAR form for the year 2009 only after reminders etc. on 30.08.2010 and the process of recording of her APAR could be completed thereafter only in October, 2010. It was submitted that as a result when the Internal Screening Committee meetings were convened on 29.03.2010 and 16.04.2010, the applicants APARs for the years from 2005 to 2008, which were available, were considered, as per the criteria adopted by the Committee uniformly for all Scientists F, which was same as for earlier promotion years also. However, the name of the applicant could not be screened for want of minimum 85% average qualifying marks. It was further submitted that she could not have made it to 85% marks, even if she had scored 100% APAR marks for the missing APAR for the year 2009. Thus, it was submitted that in the facts and numeric realities of the case, the absence of the APAR of the applicant for the year 2009 did not have any effect on non-shortlisting of her name, as per the criteria adopted. It was, therefore, submitted that any prayer of the applicant for issuance of direction to re-convene a meeting of the Committee, as well as of the Review Peer Committee, would be impractical, and would lead to an infructuous exercise. It was further assured that her case will be again considered for the promotion year 2011 as per rules, and any wrong doing on the part of the Internal Screening Committee, or Peer Committee, or any other authority were denied.
14. In the context of her transfer, it was mentioned that her transfer order was made in public interest, on functional considerations, when the Private Respondent No.4 the Chairman, RAC, under whom the applicant was earlier employed, had observed in his letter that the applicant had developed a feeling of disconnect, and had shown a resultant lack of interest in her work because of such self-imposed disconnect, and therefore her core competence and expertise could not be consequentially gainfully and purposefully utilized in RAC. It was submitted that these observations of the Chairman, RAC, were based on a sound judgment, positive intent and for providing a meaningful solution to a problem, in the larger interest of both the applicant, as well as the organization. It was further submitted that in fact the matter was even discussed in detail between the Private Respondent No.4, Chairman, RAC and the applicant. The applicant had then agreed in principle for her transfer, and even though such extraordinary step of consideration is usually not taken in transfers, but that it only demonstrates the good intentions and sincerity of purpose on the part of the respondents.
15. It was further submitted that the applicant has been transferred from one Lab of DRDO to another in the same station, and in the same area of Delhi, just 3 kms. away, and this has provided her with fresh environment and new challenges in the areas more compatible with her core competence, and, therefore, the applicant cannot be allowed to allege that she has been put to any undue disadvantage, loss or harm in any manner. It was submitted that being an employee of DRDO, Govt. of India, she has an all India transfer liability, and could have been transferred to any place, wherever her expertise are more useful, and even the Honble Defence Minister himself had examined the matter and wrote back to the applicant directly, explaining the bonafide reasons for her transfer, and had assured her due protection of her professional interests, and also reiterated the same in the reply sent to the Chairperson, DCW. In this context, it was submitted that the allegations made by the applicant in regard to her transfer from RAC to DTRL are baseless, filmsy, motivated and vexatious.
16. The respondents also denied the applicants allegations of gender discrimination, humiliation, vengeance, malafide intention against private Respondent/Respondent No.5, as being frivolous and baseless. It was further submitted that since all these allegations already formed part of the Civil Suit No.317/2009 filed by the applicant in Tis Hazari Court on 06.08.2009, which is sub-judice and pending adjudication in the appropriate Court, those grounds cannot be allowed to be raised by the applicant as a part of the present OA. The respondents had also deprecated baseless allegations made by the applicant against private Respondents/Respondent No.3 and Respondent No.4, who are eminent scientific personalities, and who could not be alleged to have colluded to give effect to a routine administrative transfer of a Scientist F, much below in hierarchy than them. It was submitted that such blatantly false and insidious allegations amply demonstrate the applicants negative mind set and scant respect for her Peer, Seniors, Systems and Lawful procedures. It was further submitted that a number of sincere attempts were made by all the respondents, and the other authorities in the higher echelons of DRDO, to counsel the applicant, but still she did not heed such advise, and chose to be on leave of different kinds for approximately 238 days in the year 2009, and 274 days in the year 2010, displaying her virtual disconnect and lack of contribution to the organization as such. It was prayed that this Tribunal should take a serious note of such willfully fabricated and potentially injurious allegations made by the applicant against all the private respondents, and pass strictures against her, in order to curb her tendency of abusing the process of law.
17. Respondents had given in detail the main functions of the RAC, and the portions of work assigned to the applicant, and had submitted that the applicant had never been disregarded in the organization, and that all her allegations in her complaint to the NCW and DCW were untrue, motivated, and made out of personal prejudice. The respondents further explained the circumstances in which the orders of her transfer were issued on 18.05.2009, and as to how for the purpose of issuance of No dues Certificate, the applicant had been requested to hand over all inventory items outstanding in her name, which she has not done till date, while her own books and personal effects had already been forwarded to her new place of posting. It was submitted that since a Non Initiation Certificate was issued in respect of her ACR for the period from 01.01.2009 to 17.05.2009, and for most of the period from 18.05.2009 to 31.12.2009, the applicant being away on leave, in the peculiar circumstances of the case, her APAR for the period from 01.01.2009 to 17.05.2009 had been completed by the Controlling Authority, and has been shown to her and treated as her full APAR for the year 2009, and, therefore, any wrong doing on the part of the respondents in this regard was denied. Lastly, the respondents had submitted that since the applicants Civil Suit No.317/09 on the grounds of gender discrimination, defamation, humiliation etc. against Respondent No.5 in the present OA was still pending, the present OA deserves to be dismissed.
18. Separate replies were filed on behalf of private Respondents/Respondent No.3, Respondent No.4, Respondent No.5 and Respondent No.6 also on 28.02.2011, supporting and adopting the stand of official Respondents No. 1& 2, and also denying the allegations of bias and malafide made by the applicant against them, and they had all prayed that since it is settled law that allegations of bias and malafide not supported by any material may not be relied upon, the present OA filed by the applicant is misconceived, and devoid of merits, and deserves to be dismissed.
19. The applicant chose to file a rejoinder on 13.07.2011, more or less reiterating all the contentions raised by her in the OA, and also enclosing Annexure RA-I, the proceedings before the ADJ (North) in Civil Suit No.317/09 on 19.04.2011, in which the defendant had tendered an apology, which had been accepted by the plaintiff, and in accordance with the same, the Suit stood disposed of, and the statement of the applicant was recorded before the ADJ (North) stating as follows, which formed the basis for disposal of the suit:-
I Dr. Neelam Bhalla withdraw all sets of allegations made against Dr. Arun Kumar to different authorities related to present suit.
RO & AC Sd/ Vimal Kumar Yadav ADJ (North) 19.04.2011 I Dr. Arun Kumar feel deeply sorry and tender my apology if any of my actions caused any hurt or inconvenience to Dr. Neelam Bhalla.
RO & AC Sd/ Vimal Kumar Yadav ADJ (North) 19.04.2011
20. It has been contended by the applicant as well as the respondents that the allegations of harassment and malafide made by the applicant against private Respondent/Respondent No.5 were the same or similar both in this OA, as well as in the concerned Suit No.317/09. Now that compromise had been reached in the said Suit, and the applicant had herself on 19.04.2011, as cited above, withdrawn all the allegations, and the Respondent No.5 as the defendant had also submitted his apology as already cited above, we need not advert any further in regard to the allegations of malafide, sexual harassment etc, raised by the applicant in this OA.
21. Heard. File No. DOP/05/53162/HQ/RAC/M/01 regarding Posting/Transfer of Smt. Neelam Bhalla was also produced for our perusal.
22. The evidentiary value of a statement recorded on oath before the Learned Additional District Judge in the two Civil Suit cases by the applicant as a Plaintiff, and by the Respondent No.5 as the defendant No.1, has also to be fully respected by this Tribunal.
23. We are also convinced with the reply given by the respondents that the applicants APAR for the years 2009 and 2010, as commented upon by the Reviewing Authority, and shown to the applicant herself, have become final, even though there were no Reporting Authorities available for the period from 01.01.2009 to 17.05.2009, and the applicant was mostly on leave from 18.05.2009 to 31.12.2009. This aspect has not been effectively controverted by the applicant in her rejoinder also, and, therefore, the prayer of the applicant at Para-8(ii) does not merit consideration.
24. The only main prayer of the applicant which therefore survives, apart from the cost of legal proceedings claimed by her, is the prayer of the applicant to direct the respondents to cancel/set aside her transfer order.
25. It is correct that as a DRDO officer the applicant was liable for transfer to any place in India. After observing her disconnect from the organization where she was working, the Chairman RAC, called her and talked to her, and counselled her, and only when such counselling failed to improve her performance, the Private Respondent/Respondent No.4 made a recommendation to the Private Respondent No.3 to consider the applicants transfer, on which, as per the Note prepared by Private Respondent No.3, and approved by Honble Defence Minister, a decision was taken by the respondents to transfer her to another DRDO Lab, situated within North Delhi itself, just 3 kms. away from her previous place of posting, noting that her core competence and capabilities could be better utilized at the new place of posting. Private Respondent No.6 has actually just been a cog in the wheel, and the applicant has not even made any averments of mala fide against Private Respondent No.6.
26. In the result, we find that the Private Respondents No.3 and No.4, who are both eminent Scientists in their own field, and were much above in the official hierarchy than the applicant, have been very considerate and reasonable in dealing with the case of the applicant. As regards Respondent No.5, after the Civil Suit had been decided by the Learned ADJ, and after withdrawal of all the allegations made by the applicant against Respondent No.5 as Defendant No.1 of the Civil Suit, and the apology tendered by the Respondent No. 5 before the Learned ADJ, which led to the closure/disposal of the Civil Suit also on 19.04.2011, it appears that no allegations of malafide against the Private Respondent No.5 can survive in the instant case also. As already mentioned above, the applicant has not made even any specific averments as to how private Respondent No.6 has harassed and humiliated her.
27. As is apparent from the very detailed discussion of the facts of this OA above, the authorities have been quite considerate, and even Honble Defence Minister has chosen to write directly to the applicant, who is just a Scientist F , showing the bona fides of the respondents in dealing with her case, and her complaints. It is also relevant to note that the applicant has been transferred only to another DRDO Lab 3 kms. away from her previous place of posting. Therefore it calls for no interference from this Tribunal.
28. The law regarding transfer is well settled, and we have to only relate the case law to the details of this case.
29. The respondents had relied on the case law in State of Haryana and Others vs. Kashmir Singh and Another (2010) 13 SCC 306 to cite that the Courts should not interfere with pure administrative matters like transfers and postings except where it is absolutely necessary on account of violation of any fundamental or any other legal right, since State Administration cannot function with its hands tied by judiciary behind its back. We have considered the facts of the case, and do not think that this is a case in which judicial interference is necessary, or that any of the fundamental or legal rights of the applicant has been violated.
30. In the cited case of V. Jagannadha Rao and Others vs. State of A.P. and Others (2001) 10 SCC 401, the Honble Apex Court had held that the transfer of an employee does not necessarily comprehend promotion within its scope, and it is essentially movement to another place or branch, to a similar post in the same cadre. Therefore, in terms of the Honble Apex Courts findings in this case also, it is clear that the respondents were fully within their rights to transfer the applicant.
31. In the case of Novartis India Ltd. V. State of West Bengal and Others, (2009) 3 SCC 124, the Honble Apex Court has held that an order of transfer, unless issued contrary to a statutory rule or settlement, should not be interfered with, and the conduct of an employee in a transfer case is material, as he cannot get a premium for his disobedience, unless there were exceptional circumstances regarding his non-joining of services at the transferred place. We do not think that any exceptional circumstances prevented the applicant in this case to proceed on transfer to a place 3 kms away from her previous place of posting, and, therefore, the findings of the Honble Apex Court in this case will be binding upon her also.
32. In the case G. Ramanathan vs. Acting Zonal Manager, Food Corporation of India, Madras and others in W.P. No. 3845/77 decided on 8th August, 1979, the Honble Madras High Court had discussed the principles regarding judicial interference in orders of transfer proceedings. It was held by Honble Madras High Court that if ex-facie it is clear that the order of transfer was not made for administrative reasons, but was made to achieve a collateral purpose, then it is open to the Court to crack the shell of innocuousness which wraps the order of transfer, and by piercing such a veil, find out the real purpose behind the order of transfer. We do not think that the applicants transfer was made to achieve a collateral purpose, not related to exigencies of administrative functioning.
33. In Shilpi Bose vs. State of Bihar, 1991 Supp. (2) SCC 659, the Honble Supreme Court had at page 661, para 4 observed thus:
4. In our opinion, the Courts should not interfere with a transfer order which is 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 is 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.
34. We do not think that any mandatory statutory rule has been violated in the case of the present applicant, and the case of mala fides has also not been proved by her satisfactorily.
35. In Union of India vs. S.L. Abbas, (1993) 4 SCC 357, at para-7, the Honble Supreme Court observed that:
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."
36. The present applicants representation against her transfer has been considered by the highest possible level of the Honble Union Defence Minister herself, and thus the benefit of this judgment also does not ensure to the applicant.
37. A similar view has been taken by the Honble Supreme Court in National Hydroelectric Power Corpn. Limited vs. Shri Bhagwan, 2002 (1) SLJ 86= 2001(8) SCC 574, wherein at para 5 at page 577 it was held that:
5.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 mala fide 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 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
38. The applicant has been continued to be posted at the same place, and has been transferred to another Lab just 3 kms away. We do not think that this can amount to a mala fide exercise of powers by the respondents.
39. A three Judges Bench of the Honble Supreme Court has also adopted the aforesaid view in Major General J.K. Bansal vs. Union of India and others, ( 2005) 7 SCC 227, by stating 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: -
(Already reproduced in para 33 above) 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 appeal this Court set aside the order of the Tribunal and observed as under: -
(Already reproduced in para 35 above) 11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held that no Government servant or employee of a 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 another 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 though they were the appellate authorities substituting their own decision for that of the management.
12. 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.
40. In State of M.P. and Another vs. S.S. Kourav and Others, 1995(2) SLJ 109 [SC]=(1995) 3 SCC 270, the Honble Supreme Court observed that:
5.The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India 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 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 mala fide 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 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. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan.. 6. The above position was recently highlighted in Union of India vs. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No malafides could be attributed as the order was purely on administrative grounds and in public interest.
41. As has been pointed out in the file notings, at her new place of posting, perhaps the applicants core strengths can be utilized in a better manner. Therefore, her transfer has to be termed to be in the interest of efficiency in public administration.
42. In the light of the above judgments, we have given our anxious consideration to the case of the applicant regarding her transfer, and are not convinced that a case has been made out by her for judicial intervention. In the result, we are of the view that none of the prayers made by the applicant in her OA can be granted. The OA is, therefore, rejected. There shall be no order as to costs.
(Sudhir Kumar) (Mrs. Meera Chhibber) Member (A) Member (J) cc.