Central Administrative Tribunal - Lucknow
Shashank Deepak vs Defence on 9 September, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
ORIGINAL APPLICATION No.161/2022
Order Reserved On 20.05.2022
Order Pronounced on 09.09.2022
CORAM
Hon'ble Mr. Devendra Chaudhry, Member (A)
Shashank Deepak,
Aged about 30 years,
Son of Shri Chhotey Lal,
Resident of C/o 88/15,
Shainik Vihar Colon,
Rudahi, Bakshi Ka Talab,
Lucknow
.....Applicant
By Advocate : Shri Praveen Kumar
Versus
Union of India through the Engineer-in-Chief,
Kashmiri House, Rajaji Marg,
New Delh-110011.
The Chief Engineer,
HQ Central Command,
56 APO, Lucknow.
The Garrison Engineer (Air Force),
Bakshi-Ka-Talab.
.....Respondents
By Advocate: Ms. Madhu Yadav
O R D E R
Per Hon'ble Mr. Devendra Chaudhry, Member (A) That the applicant is presently posted as SAA at Baksi Ka Talab under the Respondent No.3. He was initially appointed to the post of LDC on 14.10.2010 at Bhopal and was later transfer to GE (AF) BKT i.e Single Tenure Station, vide order dated 31.12.2014 where he joined on 24.7.2015.Later, he has been promoted to the post of UDC vide order dated 08.03.2018. The respondents, have, in their letter dated 14.2.2022 whereby adjustment of surplus/deficiency staff at various locations has been notified along with a warning list stated the name of the applicant at Sl No. 2 under the strength of GE (AF)/BKT Annexure No. A- 3 which implies that the Applicant would be transferred from the current station of BKT. The applicant made a representation dated 22.02.2022 whereby, he prayed that there was certain family constraints and so he may be accommodated at Lucknow itself. The challenge to the transfer is on the grounds of (a)there being other seniors to the applicant who were enjoying posting at Lucknow for a longer period of time - such as certain persons like Shri Sanjeev Gupta, IDC posted under GE(E/M) Lucknow working since 2013, Shri Vijay Kumar Maurya and Shri H.P. Dubey posed under CWE, Lucknow have not been transferred, (b) the authorized Association vis All India MES Admin and Ministerial Staff Association Central Command has also represented the cause by means of representation vide letter dated 26.2.2022, (c) respondents have failed to ascertain the entire strength of all offices of MES falling under the area of responsibility of respondent No. 2 such as Lucknow, Jabalpur, Allahabad, Kanpur, Gaya etc, which have not been included which is violative of transfer policy circulated on 18.2.2019 wherein, it is directed that the command will worked out and the over-all imbalances at various stations and after taking into account then make transfer as per Clause IV of the transfer policy, (d) the applicant has given representation dated 22.2.2022 raising the grievances that he is a bachelor and has old parents and there is nobody to look after them hence also he deserves sympathy and consideration. However, despite this, vide letter dated 15.3.2022 applicant has been transferred vide his name at Serial No. 36 from GE (AF) BKT to GE (W) Agra. Accordingly, the order may be quashed. Hence the O.A.
2. Per contra the Respondents have denied any partiality or illegality in the order on the grounds that
(i) the policy for postings of subordinate staff of the same transfer order dated 15.03.22Military Engineering Services (MES) is as per Guidelines set out in the Engineer-in-Chief's Branch letter No.B/20148/PP/E1C (1) Dated 18 Feb' 2019-Guidelines Management of Gp 'B' (NG) & 'C' Employees Policy (referred to as 'Guidelines' in short hereinafter) - (Annexure No. SCR 1) whereby, the Competent Authority to direct the postings of MES' (called Posting of such staff is the Chief Engineer (CE) Command within the area of responsibility (AOR) of his Command. One of the type of postings to be carried out within the Command AOR is 'Adjustment of Surplus/Deficiency including case of raising/disbandment of unit/formation' and as per this classification, the list of Complexes/Stations in vogue have been issued vide HQ CE 11 Complexes No.905211/P/58/E1C (1) dated 30 June, 2018 (Annexure No. SCR 2) whereby there are in all and 29 Single stations.GE (AF) BKT is a SINGLE STATION and does not form part of Lucknow complex,
(ii) the methodology outlined in Para 5 of the Posting Policy has been uniformly applied sans any arbitrariness or malafide intent while planning and approving the postings of 56 individuals issued vide HQ CE Central Command letter No.901300/SD-2022/48/E1C (1) dated 15 March, 22 (Annexure No. Al of OA),
(iii) the HQ CE Central Command letter dated 14 Feb, 22 also included the details regarding CSL prevalent at the time of posting planning upto 30 April, 22 and requested for certain actions from the environment whereby, (a) Category wise list CS CD of and complexes/stations (since they only were relevant to the posting at hand) have been included per the Appendix J of this letter which gives details of SAA Category of staff and since, Lucknow complex was neither CS/CD in the SAA category, it does not figure in Appendix 'J' while details of GE (AF) BKT were included as it was CS,
(iv) Category wise seniority and warning list of staff in the CS/CD stations with clear remarks about their consideration/grounds of exemption from the posting has been considered whereby, Annexure to Appendix J included two name of SAAS from GE (AF) BKT since the unit was CS with one SAA (Annexure No. SCR-3)
(v) The All India MES Admin Cadre & Ministerial Staff Association, CHQ Central Command (of which SAAs are members) also vide Paragraph 2 (d) of their letter No.AIMESAC & MSA/CHQ/CC/Corres dated 26 Feb, 22 (copy enclosed as Annexure A- of the OA) conveyed their viewpoint of station seniorities of staff posted at BKT, Memaura and Barabanki to be considered from the dates of joining these stations instead of Lucknow Complex. This contention on station seniority was found to be logical and in order, and hence necessary corrections were made and considered while planning the postings. The Association's letter was replied to vide HQ CE Central Command letterNo.901300/SD-2022/50E1C (1) dated 17 March, 22 (Copy attached herein as Annexure No. SCR-5 )
(vi) That a robust two-stage Departmental grievance redressal mechanism is catered for at Paragraph 6 (xvii) in the Posting Policy whereby, representation, if any, against the posting order will be made by the affected Individuals (only) within 21 days of the receipt of the posting order in concerned office and when the representation received through rejected by the Competent Authority, the concerned individual has to move without any further delay. Contingencies may arise when the individual is not satisfied by the decision of the CE Command. In such cases, the individual may represent his case to DG (Pers)/Engineer-in-Chief's Branch which will be forwarded to the Engineer-in-Chief's Branch with recommendation of the CE Command within 10 days and if the decision of the Engineer-in Chief's Branch is in his/her favour, the individual will be brought back at the first available vacancy. However, the applicant has chosen not to make use of this provision but instead has taken recourse to approach Hon'ble CAT Lucknow directly. It would have been prudent for the petitioner to have exhausted Departmental redressal mechanism first.
(vii) as regards, (a) 400616 Shri Vikram Kumar and (b) 414100 Shri Shashank Deepak (applicant), Shri Vikram Kumar's seniority has been counted from the date he was posted to GE (AF) BKT (i.e. 04 June, 18) and not 07 Dec, 13, when he joined Lucknow Complex as per the list of Complexes/Stations in vogue and so he cannot be transferred as alleged by the Applicant.
(viii) Hon'ble Apex Court, in the case of SC Saxena Vs. Union of India and Others reported in 2006 (9) SSC, page 553 has held as follows:
"In the first place, a Government Servant cannot disobey transfer order by not reporting at the place of posting and then go to Court to ventilate grievances. It is his duty first to report for work, where he is transferred and make representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed."
3. Heard the ld counsels of both the parties at length and perused all the filed pleadings carefully.
4. The key issue with respect to the transfer is concerning the compliance of guidelines notwithstanding the law laid down by the Hon Apex Court in a catena of judgements that in cases of transfer guidelines are not statutes to be followed to the letter.
5. Now when we examine the rival submissions we find that first of all, per the issue of accounting for all stations, Annexure -3 gives the surplus / deficiencies position of the staff in respect to various stations, the same is reproduced below:
SAA (CSL63-69): Critical Surplus/Deficient Complexes/Stations Sr. N0 Complexes station Auth Held Dues in Dues out Net Hel Net Held% Critical sru(+)/Defo(-) CRITICAL SURPLUS COMPLEXES/STATIONS 1 Ranchi 15 14 1 0 15 100 5 2 GE Danapur 5 7 0 0 7 140 4 3 GE Ramgarh 6 5 1 1 5 83 1 4 GE(AF) Bakshi-Ka Talab 5 4 0 0 4 80 1 5 AGE(i) (AFD) Manauri 3 3 0 0 3 100 1 6 AGE(i) Pachmarhi 3 2 2 1 3 100 1 7 AGE(i) Naya Raipur 2 3 0 1 2 100 1 8 GE(i) Gopalpur-on-Sea 4 7 0 1 6 150 3 9 AGE B/R Daharbangaunder GE (AF) Binta 0 4 0 2 2 0 2 CRITICAL DEFICIENCT COMPLEXES/STATIONS 10 Agra 29 11 0 0 11 38
-2 11 Bareilly 44 15 7 7 15 34
-4 12 Gwalior 18 4 2 2 2 11
-6 13 Mhow 19 5 0 0 6 32
-2 14 GE Faizabad 5 1 0 0 1 20
-1 15 AGE(I) Raiwala 3 0 0 0 0 0
-1 Evidently, there is a deficiency in Agra of two staffs and there is a surplus of one at BKT for the applicant to say that the deficiencies complexes of all stations have not been worked out does not seems to be very true as reflected in the chart and in which the critical, deficiency complexes station such as Agra, Bareilly, Gwalior, Mhow, Faizabad, Railwala etc, have been identified. Thus the assertion of the Applicant that all stations have not been taken into account is misconceived.
6. The clarification of the Respondents concerning the non-transfer of Shri Vijay Kumar is logical inasmuch that per the explanation by the Respondents assertion that as regards, Shri Vikram Kumar's seniority has been counted from the date he was posted to GE (AF) BKT (i.e. 04 June, 18) and not 07 Dec, 13, when he joined Lucknow Complex as per the list of Complexes/Stations in vogue and so he cannot be transferred as alleged by the Applicant.
6.1 It is also seen in the table above, that a number of other officers have been identified of various seniority ranging from 15 from 2013 to 2021 also. It is not possible for the Tribunal and neither the business of the Tribunal to get into ascertaining the surplus / deficiency by micro analysis of all the data for all the complexes as if it were a statute and besides that would also mean that the Tribunal would be stepping into the shoes of the Executive and try to become an appellate authority with respect to examining the micro detail concerning the transfer and then considering any steps thereafter. The Applicant did not approach the DG (Pers)/Engineer-in-Chief's Branch which will be forwarded to the Engineer-in-Chief's Branch with recommendation of the CE Command within 10 days and if the decision of the Engineer-in Chief's Branch is in his/her favour, the individual will be brought back at the first available vacancy. However, the applicant has chosen not to make use of this provision but instead has taken recourse to approach Hon'ble CAT Lucknow directly. It would have been prudent for the petitioner to have exhausted Departmental redressal mechanism first.
6.2 The representation has been considered at the first level. Moreso in the representation it is only a plea with respect to consideration of his mother's illness etc. None of the grounds stated in the O.A. are stated. For reference the representation of the applicant dated 22nd February 2022 reads as under:
"To Headquarters Chief Engineer Central Command, Lucknow REQUEST FOR POSTING TO LUCKNOW COMPLEX TREATING THIS AS A SPECIAL CASE UNDER ADJUSTMENT OF SURPLUS/ DEFICIENCY - 2022 Respected Sir,
1. Refer your HQ letter No 901300/SD-2022/18/E1C(1) dated 14 Feb 2022.
2. With due respect, I hereby submit the fwg few lines for your kind consideration and favorable action please:
(a) I was posted to GE (AF) BKT under Re-Organization of CE Bhopal Zone vide HQ CE Central command letter No 905211/48/Re-Org/133/E1C (1) dated 31 Dec 2014 (copy enclosed for ready reference) and moved to GE (AF) BKT vide HQ CE Bhopal Zone Mov Order No 100857/Sub/248/E1(R) dated 03 Jul 2015 (copy enclosed for ready reference). I reported to GE (AF) BKT on 24 Jul 2015 (copy of this Office TOS Part-Il Order No 30/2015 dated 27 Jul 2015 enclosed for ready reference). Before, 30 Jun 2018, GE (AF) BKT was an office of Lucknow Complex).
(b) Sir, my mother Smt Rampati age 67 years old is suffering from High Blood Pressure, uncontrolled diabetes and she is unable to walk by herself (copy of prescription slip issued by JIVA Ayurvedic Pharmacy Ltd is enclosed for ready ref). There is no any person in my home to look after my Parents (Mother and Father). The doctor said that treatment can help but it will take long period to cure.
(c) Sir, I want to inform you that in Stations like Lucknow, Jabalpur, Allahabad and others as well, many seniors are working almost 07 to 09 years in the same Stns. But the name of such individuals has been left out in the above subject Warning list - 2022.
3.Hence, you are requested to post me in any of the Office within Lucknow Complex treating the same as a Special Case so that I will be able to facilitate better treatment to my mother and also to look after her.
Thanking you and awaiting for your valued and favorable action please.
Thanking you Sir, Yours sincerely, (Shashank Deepak) SAA MES 414100 Station BKT, Lucknow Dated 22.Feb 2022"
Evidently, it states only posting at Lucknow with the plea of the illness of the mother and some transfers not considered. Transfer is a indeed painful process often and it is difficult more so because issues of parents or elders who cannot be supported is involved. But then a transfer is an incident of service and it brings within itself the pleasure and the pain. The applicant was originally posted at Bhopal and has been transferred to Lucknow about 7 years ago and so has had the pleasure of preferred posting. Now obviously, there would be difficulty in going to another station which needless to say is not far inasmuch that it is only at. Agra would have very good Military hospitals and excellent medical facilities. Government accommodation in any case is provided to the offices and the staff. Therefore, there can be little in the way all any great difficulty to applicant to shift to Agra even if along with his mother. To allege that the others have not been picked up etc., would mean that they would have to be added as respondents for their case to be considered or not consider in any case their particular transfer is not challenged in the OA itself. Exemplars as stated cannot satisfy judicial scrutiny unless full details are available from the concerned parties also. The applicant's case has been considered and found as not being possible to be accommodated as is reflected in the chart filed by the respondents (Annexure SCR4) which is reproduced below:
"ADJUSTMENT OF SURPLUS/ DEFICIENCY-2022 Refer:
(a)This HQ letter No 901300/SD-2022/18/E1C(1) dated 14 Feb 2022.
(B) GE (AF) BKT letter No 1003/BKT/37/E1 dated 22 Feb 2022.
(C)GE (AF) BKT letter No 1003/BKT/35/E1. dated 22 Feb 2022.
(D)GE (AF) Bihta letter No 1039/Mon/E1A dated 28 Feb 2022.
(E)Your HQ letter No 951030/CML/465/E1C(1) dated 25 Feb 2022.
(F) GE (AF) Gorakhpur letter No 1000/CIK/46/E1G dated 24 Feb 2022.
(G) GE (AF) Gorakhpur letter No 1000/4/Clk/14/E1G dated 28 Feb 2022.
(h )Your HQ letter No 951030/CML/468/E1C(1) dated 02 Mar 2022.
(i)Application dated 22 Feb 2022 by MES/Ex JC-307384F Padmakar Dubey,JAA of AGE (AF) Varanasi.
(K) GE (AF) TA Agra letter No 1022/Sur Defe/43/E1C(1) dated 24 Feb 2022.
(l)Application dated 09 Mar 2022 by MES-511017 Vijay Shanker, JE (Civ) of AGE (AF) Varanasi.
(m)GE (AF) BKT letter No 1003/BKT/38/E1 dated 26 Feb 2022.
(n)Application dated 22 Feb 2022 by MES/EX JC-330854N Sangram Ram, SK-I of AGE (AF) Varanasi.
(o)This HQ letter No 901300/SD-2022/48/E1C(1) dated 15 Mar2022
2. As per this HQ letter referred at Para 1(a) above, the environment that representations/ requests from individuals on the circulated seniority and warning , be forwarded to this HQ by 28 Feb 2022. Zone
3. Details of representations/ requests received from individuals of your zone before finalisation of subject postings and directions of the Competent Authority thereon are enclosed at Appendix to this letter..."
The respondents have filed a number of judgments of Hon'ble Apex and the Hon High Court wherein the intervention of the court in the transfer is declined. This is as per letter dated 15.10.2019 and the same is reproduced below "...Supreme Court
1. Gujarat Electricity Board & Aur vs Atmaram Sungomal Poshan on 31 March, 1989 (Equivalent Citations 1989 AIR 1433 1989 SCR (2) 357) (CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3561 of 1986) 2 Major General K. Bansal vs. umon of India and others on 23rd August, 2005 (CASE NO: Appeal (civil) 5189 of 2005) JUDGMENT(Arising out of S.L.P. (C) No. 11258 of 2005)
3. Mrs. Sulpi Bose and Others vs. State of Bihar and Others on 19th November 1990 (Equivalent Citations IR 1991 SC 532. 1991 LablC 360 (1991) HILL] 591 SC, 1991 Supp (2) SCC 659) 4 N.K. Singh vs. Union of India on 25th August, 1994 (Equivalent Citations: 1995 AIR 423, 1994 SCC (6) 98)
5. National Hydroelectric Power... vs. Shri Bhagwan on 11th September, 2001 CASE NO Appeal (civil) 1095-1096 of 2001)
6. Rajendra Singh vs. State of U.P & Ors on 31st July,2009 (CASE NO.. Appeal (crl) 1019 of 2007) JUDGME NT CRIMINAL APPEAL NO 1019 OF 2007 (Arising out of Special Leave Petition (Crl.) No.3182 of 2006)
7. State of U P and Ors vs Gobardhan Lal on 23rd march 2004 (CASE NO Appeal (civil) 408 of 2004) JUDGM ENTWITH CIVIL APPEAL No 409 OF 2004
8. Union of India vs. S L. Abbas on 27th April. 1993 (Equivalent citations: 1993 AIR 2444 1993 SCR (3) 427)
9. State of Uttar Pradesh vs. Siyaram on 5th August, 2004 CASE NO.:Appeal (civil) 5005 of 2004, JUDGMENT (Arising out of SLP) No. 2196/2004).
10. State Bank of India vs. Anjan Sanyal 12th April, 2001(CASE NO.:Appeal (civil) 226 of 1997) High Courts 1 Param Singh & Ors vs. State of Uttar Pradesh on 19th November 2018 (Court No.-5. Case SPECIAL APPEAL NO 1163 of 2018)
2. S Thomson vs. The Directorate General of Police on 19th July, 2012 (W.P.No.17500 of 2007(T)
3. (O.A.No.2145 of 2004)
4. The State of Assam vs. Shri Dilip Kumar Sharma & Ors. on 1st September 2011 (Writ Appeal No. 238 of 2011)
5. Donger Singh Thakur vs. State of Chhattisgarh on 9th October 2018 (VPS No. 6720 of 2018) CAT
1. Dimple Chandel vs. Cabinet Secretariat on 17th June, 2018.."
Some of the above and others are examined hereby.
6.3 Thus in the matter of Satish Kumar Dwivedi v. State of U.P S/S No. 2375 of 2019 dated 26/02/2019 it is held as under:
"..."....By means of the present writ petition, the petitioner has challenged the order of transfer dated 11.01.2019 on the following grounds:- "(a) Because the petitioner has hardly completed the stay of six months at Bareilly, yet the order, impugned in the petition, has been passed transferring the petitioner from Bareilly to Deoria on administrative ground without any rhyme and reason, though no administrative ground is available and, therefore, the order, impugned in the petition, is not regally sustainable.
In the supplementary affidavit filed today the petitioner has taken broadly two additional grounds to the effect that:- "(i) the transfer order has been passed on the basis of complaint, and (ii) the Police Establishment Board has only approved the order of transfer and not taken any decision for transfer of the petitioner."
......This Court in the case of Union of India Vs. Vishnu Kant Pal in Special Appeal No. 969 of 2015 decided on 11.01.2016 has held as under:-
"Even if, the order of transfer was passed upon the receipt of the report, we are emphatically of the view that the transfer cannot be regarded as being stigmatic. The authorities are entitled to issue such orders of transfer on administrative grounds. Even assuming that a complaint is received against an employee, it is for the employer to make suitable arrangements to ensure that the interest of the employer - in the present case, a public employer such as the North Central Railway is duly taken care of by assigning suitable duties to the employee."
.......In Union of India v. H.N. Kirtania, AIR 1989 SC 1774, the Hon'ble Apex Court observed as under:- "Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of malafide."
......."In the case of Registrar General High Court Vs. R.Perachi reported in (2011) 12 SCC 137 the Hon'ble Supreme Court even after considering that the transfer order of the employee concerned was on the basis of report of the Registrar (Vigilance) and it had also been opined by the District Judge concerned that the retention of the employee in his District was undesirable from the point of view of the administration, held that transfer is an exigency of service and one cannot make a grievance if the transfer is made on an administrative ground and without stigma. .."
"....In the case of Rajendra Singh Vs. State of U.P reported in (2009) 15 SCC 178 held as under:- "3.The transfer order dated July 31, 2007 came to be challenged by the Writ Petitioner before the High Court of Allahabad, Bench Lucknow. While challenging the legality of the transfer order, Writ Petitioner set up the grounds that he joined as Sub-Registrar, Ghaziabad, Sadar-IV only a month back; that the transfer order has been issued on the complaint of one Radhey Lal, Sanyojak Dalit Morcha Sangharsh Samiti, Lucknow and that the order of transfer was arbitrary, stigmatic and suffers from non-application of mind.
8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires.
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. AIR 1991 SC 532, this Court held:
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 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 overlooked these aspects in interfering with the transfer orders.
10. In N.K. Singh v. Union of India and Ors. (1994) 6 SCC 1998, this Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision.
12. As regards Respondent No. 5, the High Court considered the matter thus: ...in our view, it is evident that the respondent No. 5 also can not be said to be an Officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad and in this regard, it appears that I.G. (Stamps) did not give correct information to the Principal Secretary. However, it can not be held that the respondent No. 1 in passing order dated 31st July, 2007 has acted maliciously or for extraneous reasons amounting to malafide. Once the basic ground of challenge to the impugned order of transfer that the same is malicious in law falls, we do not find any reason to interfere with the impugned order of transfer, transferring the petitioner from Ghaziabad to Hapur. It is not the case of petitioner that his transfer is contrary to rules or has been issued by an authority who is not competent. It is well settled that an order of transfer is amenable for judicial review on limited grounds namely it is contrary to rules or has been passed an incompetent authority or is a result of malafide. In view of admission on the part of the respondent No. 1 in his Counter Affidavit that the respondent No. 5 has been found guilty of serious misconduct for causing loss to the Government revenue by acting without jurisdiction and colluding evasion of stamp duty, in our view transfer of the respondent No. 5 to Ghaziabad can not be sustained in view of further admission on the part of the respondent No. 1 that the interest of department requires posting of an honest and efficient person at Ghaziabad.
13. It is difficult to fathom why the High Court went into the comparative conduct and integrity of the petitioner and Respondent No. 5 while dealing with a transfer matter. The High Court should have appreciated the true extent of scrutiny into a matter of transfer and the limited scope of judicial review. Respondent No. 5 being a Sub-Registrar, it is for the State Government or for that matter Inspector General of Registration to decide about his place of posting. As to at what place Respondent No. 5 should be posted is an exclusive prerogative of the State Government and in exercise of that prerogative, Respondent No. 5 was transferred from Hapur-II to Ghaziabad- IV keeping in view administrative exigencies.
14. We are pained to observe that the High Court seriously erred in deciding as to whether Respondent No. 5 was a competent person to be posted at Ghaziabad-IV as SubRegistrar. The exercise undertaken by the High Court did not fall within its domain and was rather uncalled for. We are unable to approve the direction issued to the State Government and Inspector General of Registration to transfer a competent officer at Ghaziabad-IV as SubRegistrar after holding that Respondent No. 5 cannot be said to be an officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad-IV. The High Court entered into an arena which did not belong to it and thereby committed serious error of law." I "....In the case of Union of India Vs. Janardhan Debnath and Anr reported in (2004) 4 SCC 245 has held as under:- "3. Background facts sans unnecessary details are as follows: The respondents were working in the Postal Services Department. They were transferred from Agartala Division to Meghalya Division by order of transfer dated 10.9.2002. Feeling aggrieved by the order, the respondents (writ petitioners) along with two others moved the Central Administrative Tribunal at Guwahati (in short the 'Tribunal'). The Tribunal after hearing the parties directed the authorities to consider the representations made by the two lady applicants who were co-applicants along with the respondents within one month. So far as the present respondents are concerned, no interference was made by the Tribunal with the order. Challenging the decision of the Tribunal, the writ petitions were filed. The grounds on which the writ petitions were filed were (a) the transfer orders of the two respondents were in violation of the provisions of Rule 37 of the Posts and Telegraphs Manual. Volume IV (in short 'the Manual') read with D.G. Posts Letter No. 20-12/90-SPBI dated 23.8.1990; (b) the transfer is in violation of Rule 15 of the Fundamental Rules (in short 'FR 15') and (c) the inter Divisional transfer would effect the seniority and promotional prospects of the writ petitioners and (d) the transfer order was passed as a measure of penalty. 4. The Union of India took the stand that the transfer was done in public interest and on account of exigencies of administration. It was pointed out that the respondents not only misbehaved with the Director (Postal Services), a senior lady officer, she was confined and dragged from one room to another and this was done with a view to force her to withdraw the charge sheet against the Deputy Post Master. She was abused in filthy language and was physically manhandled. This conduct was certainly unbecoming of an employee and with a view to enforce discipline and to avoid recurrence of such unfortunate incident, they were transferred. There was no violation of either Rule 37 of the Manual or FR 15. The High Court accepted the prayers made in the writ petitions and held that transfer was impermissible in terms of Rule 37 and was in violation of FR 15. It was as a measure of penalty and the seniority and the promotional prospects were likely to be affected. 9. A bare reading of Rule 37 shows that officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers were not to be ordered except when advisable in the interests of public service. The transfers can be made subject to conditions laid down in FR 15 and 22. The appellant has indicated as to why and under what circumstances the transfers were thought proper in the interests of public service. 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 concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr., 12. That brings us to the other question as to whether the use of the expression 'undesirable' warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. The Union of India (1964)ILLJ418SC to contend that whenever there is a use of the word 'undesirable' it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression 'undesirable' in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature an extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. 13. Additionally, it was pointed out by learned counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion. It was also submitted that transfer was within the same circle i.e. the North Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise. 14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehavior is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehavior or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirements, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as costs." Another Division Bench of this Court in a judgment reported in 2010 SCC Online ALL 1152 Inre: Dr. Anil Kumar Pradhan Vs. State of U.P has held as under:- "3. Mr. Manish Kumar, learned Counsel for the petitioner submits that after being selected through U.P. Public Service Commission, the petitioner was appointed on the post of Medical Officer on 14.2.1988 and while working as such, he was promoted on the post of Senior Consultant at S.S.P.G. District Hospital, Varanasi in the month of September, 2009. He submits that pursuant to the oral complaint being moved by unknown person, opposite party No. 6-Hon'ble Minister, Medical and Health, U.P. Civil Secretariat, Lucknow, summoned the petitioner, to which the petitioner tendered his explanation, wherein it has been stated that the patient was not operated prior to one month as his hemoglobin was below 5% and as soon as his hemoglobin was above 10%, he had operated the patient. He submits that there is no complaint ever made against the petitioner in his 22 years of service. Further, the impugned transfer order has not been passed either in public interest or in administrative exigency and as such, the petitioner has been transferred merely on the dictate of the Hon'ble Minister. He also submits that it is the policy decision of the Government that no one will be transferred during financial year 2010-11. 16. One more important aspect of the matter is that the government servant does not have right not to comply with the transfer order without there being any interference or otherwise protection given by the Court or by the superior authority and to keep on filing petition after petition challenging the order in the High Court. Government servant cannot claim that he should be posted at a particular place for a particular period. The transfer is an incidence of service. The posting of government servant by issuing transfer order is a natural requirement in service law. The transfer is effected keeping in mind the exigency of service, and in public interest or for administrative reasons. It is the sole discretion of the appointing authority to post the government servant at any place where he/she is more required. Of course, if transfer order has been passed in violation of any statutory Provision or Rule or is a result of mala fide or bias of the authorities, then that can be subjected to scrutiny by the Court but unless the order so suffers, the High Court will, normally, not interfere in the transfer order. 17. In the instant case, there is admittedly a complaint against the petitioner. The petitioner fully knows about that complaint as is evident from the stand taken in the writ petition itself. The plea of the petitioner that he cannot be transferred on such a complaint deserves to be rejected outright. It may be mentioned that instead of initiating disciplinary proceedings against the petitioner on the ground of a charge of negligence in performing his duties, he has only been required to be transferred." When the facts of the instant case are seen in the light of the principles of law laid down by the Hon'ble Supreme Court in the case of R.Perachi (supra), Rajendra Singh (supra) and Janardhan Debnath (supra) what clearly comes that from the point of view of the administration that even if complaints are there, the employee can be transferred out of unit/place concerned. So far as the judgment in the case of Somesh Tiwari (supra) over which reliance has been placed by learned counsel for the petitioner suffice to state that subsequent to the said judgment of the year 2008, the Hon'ble Supreme Court has considered the matter in the case of R. Perachi (supra) in the year 2011 as well as in the case of Rajendra Singh (supra) in the year 2009 and as such the aforesaid subsequent judgments would prevail. Consequently, having considered the aforesaid facts and submission as well as the law laid down by the Hon'ble Supreme Court, no interference is required with the impugned order dated 11.01.2019. Accordingly, writ petition is dismissed. Order Date :- 26.2.2019."
Therefore, on the whole, the Hon' High Court has held that even if the transfer has been made on administrative grounds then also the transfer order cannot be challenged. In the same judgement it is held as under:
".....Reference in this regard may be made to a judgment of Hon'ble Supreme Court in the case of Rajendra Singh and another Vs. State of U.P. and others, reported in (2009) 15 Supreme Court Cases 178. Paragraphs 8, 9 and 10 of the said judgment are extracted herein below : "8. A government servant has no vested right 5 to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to other. 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 contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal, SCC p.406, para 7). 9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from malafides. In Shilpi Bose V. State of Bihar this Court held : (SCC p.661, para 4) "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 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 overlooked these aspects in interfering with the transfer orders." 10. In N.K. Singh v. Union of India this Court reiterated that : (SCC p. 103, para 6) "6.....the scope of judicial review in matters of transfer of a government servant to 6 an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of malafides and violation of any specific provision....." So far as the submission advanced by the learned counsel for the appellant-petitioner relating to transfer order being vitiated on account of the same having been based on the letters of public representatives is concerned, we are very clear in our mind that in all such cases the transfer order may not be necessarily vitiated or illegal. Such a transfer order can be interfered with in case it is found that the letter or recommendation or complaint made by the public representative is the only consideration which impelled the employer to transfer the employee concerned. Regard may be had in this respect to the judgment of Hon'ble Supreme Court in the case of Mohd. Masood Ahmad Vs. State of U.P. and others, reported in (2007) 8 Supreme Court Cases 150. We thus need to examine the submissions made by the learned counsel for the appellant-petitioner in the light of the aforementioned legal principles available to a writ court for interfering in an order of transfer of an employee. The allegation/submission made by the learned counsel for the appellant-petitioner impeaching the transfer order is that it was effectuated nor for bonafide purpose but only on account of complaint made against the appellant-petitioner regarding his conduct. In this respect we may notice that there are three complaints which are said to have been received against the appellant-petitioner. Two of such complaints are said to have been withdrawn. However, one complaint said to have been made by the Member of Parliament on 01.01.2021 was available and the said complaint appears to have taken into consideration as is apparent on perusal of the recitals made in the transfer order 7 dated 28.06.2021. The complaint dated 01.01.2021 made by the Member of Parliament is available on record of this Special Appeal at page 48. When we peruse the said complaint, what we find is that it is clear that the said Member of Parliament though had made complaint about the conduct of the appellant-petitioner, however, he has not made any recommendation to transfer him. The only request made in the said complaint by the Member of Parliament is that the alleged irregularities against the appellant petitioner may be enquired into and appropriate action may be taken. The order dated 28.06.2021 whereby the appellant petitioner has been transferred from Bahraich to Mahoba, after making a reference to the complaint dated 01.01.2021 made by the Member of Parliament also recites that the appellant petitioner has been posted in the office of Chief Medical Officer, District Bahraich since 03.12.2007. Accordingly, what can be inferred from perusal of the recitals made in the transfer order dated 28.06.2021 is that while transferring the appellant petitioner, two relevant material/information weighed in the mind of the authority concerned, namely, (1) the complaint into the misconduct of the appellant-petitioner and (2) his posting at the same place for a considerable period of 13 years from 03.12.2007. It is well settled principal of law that an employee can be transferred on administrative grounds which would include a situation where some complaints are received against his misconduct. The existence of complaints, in our considered opinion, itself is sufficient to impel the authority concerned to pass the order of transfer on administrative ground. In the instant case, apart from the complaint dated 01.01.2021, another relevant 8 fact which impelled the authority concerned to pass transfer order was stay of the appellant-petitioner at the same place for a long period of 13 years since 03.12.2007. More over, the letter/complaint dated 01.01.2021 written by the Member of Parliament does not contain any request or recommendation to transfer the appellant-petitioner. In this view of the matter, we are convinced that the reason for transfer of the appellant-petitioner is not any recommendation made by the Member of Parliament; rather what impelled the authority concerned to transfer him was his long stay at the same place and of course availability of complaint into his conduct which can be the basis of transferring him on administrative grounds. So far as the judgments cited by the learned counsel for the appellant-petitioner are concerned, there cannot be any quarrel on the legal principle that in case any order transferring an employee has not been passed to achieve the bonofide purpose; rather the same is passed for malafide reasons on the asking of politically affiliated person, the same would be vitiated. However, the facts of the instant case, as are apparent from perusal of the transfer order dated 28.06.2021 itself, clearly, in our considered opinion, establish that the same is not vitiated on account of any malice and malafide. In the writ petition before the learned single judge what was pleaded was only that the appellant-petitioner has been transferred on the asking of political person, as such the transfer order suffers from malice, however, no foundation of any malafide or malice allegedly borne by the Member of Parliament against the appellant-petitioner, appears to have been laid in the writ petition, which can be said worth considering. It has also been stated by the learned counsel for the 9 appellant-petitioner that in the proceedings before the learned Single Judge opportunity to file rejoinder affidavit to rebut the contents of the counter affidavit filed by the State-respondents was denied to the appellant-petitioner. In this regard what we notice is that the counter affidavit before the learned Single Judge was filed at least before 30.09.2021 and the writ petition has been heard and decided by the learned Single Judge on 09.03.2022 i.e. after a period of more than 5 months. Availability of such a long period to the appellant-petitioner to file rejoinder affidavit cannot be said to be inadequate so as to infer that the appellant-petitioner was denied opportunity to rebut the contention of the State respondents in the counter affidavit. The said submission, in our considered opinion merits rejection, which is hereby rejected. For the reasons stated herein above, we find that no interference in the judgment and order dated 09.03.2021, passed by the learned Single Judge in Writ-A No.14972 of 2021 is warranted. Resultantly, this Special Appeal is hereby dismissed..."
Next if we examine the judgement delivered in the matter of Krishna Chandra Dubey v. UoI, dated 05/09/2005 of Hon' High Court of Allahabad of AIR 2001 SC 436, - there are more reasons to not to be able to agree to the assertions of the ld. counsel for applicant. Relevant portions of the judgement are reproduced below:
"..7. The issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner. The employee does not have any vested right to be posted at a particular place. (Vide B. Varadha Rao v. State of Karnataka and Ors., ; Shilpi Bose v. State of Bihar, ; Union of India v. N.P. Thomas, ; Union of India v. S.L. Abbas, ; Rajender Roy v. Union of India, ; Ramadhar Pandey v. State of U.P. and Ors., 1993 Supp. (3) SCC 35; N.K. Singh v. Union of India and Ors., ; Chief General Manager (Tel.) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee, ; State of U.P. v. Dr. R.N. Prasad, 1995 (Supp) 2 SCC 151; Union of India and Ors. v. Ganesh Dass Singh, ; Abani Kante Ray v. State of Orissa, 1995 (Supp) 4 SCC 169; Laxmi Narain Mehar v. Union of India, ; State of U.P. v. Ashok Kumar Saxena, ; National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, ; Public Services Tribunal Bar Association v. State of U.P. and Ors., ; State of U.P. v. Siya Ram, ; and Union of India v. Janardhan Debanath, .
8. An employee holding a transferable post cannot claim any vested right to work at a particular place as the transfer order does not affect any of his legal rights and the Court cannot interfere with a transfer/posting which is made in public interest or on administrative exigency. In Gujarat Electricity Board v. Atmaram Sungomal Poshani, , the Hon'ble Supreme Court has observed as under:-
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration."
9. In Union of India v. H.N. Kirtania, , the Hon'ble Apex Court observed as under:-
"Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of malafide."
10. In Union of India v. S.L. Abbas (supra), the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions.
11. Similar view has been reiterated by the Supreme Court, in Bank of India v. Jagjit Singh Mehta, , observing that the terms incorporated in the transfer policy for posting of both the spouses, if in service, at the same place, require to be considered by the authorities "along with exigencies of administration" and " without any detriment to the administrative need and claim of other employees".
12. In State Bank of India v. Anjan Sanyal, , the Apex Court held as under:-
"4. An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.
(Emphasis supplied).
13. In Rhone-Poulenc (India) Ltd. v. State of U.P.,, the Hon'ble Supreme Court held as under.-
"the mere fact that after the order of transfer had been issued and when Respondent 3 had failed to report for duty, he was also asked by the Corporate Manager, who was competent to order his transfer, to join the duties at Kanpur will not validate ' the order of transfer issued by an authority not competent to do so."
14. A relieving order could be passed when certain functional responsibilities are to be carried out by the transferred employee. For example, heading over of the charge, classified documents, registers, commercial documents, cash etc., as the case may be (Vide Raj Bahadur Sharma v. Union of India, ).
15. Thus, it is clear that the transfer policy does not create any legal right in favour of the employee. It is settled law that a writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by an employee that there is a breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he/ she has a legal right to insist on such performance. The existence of the said right is a condition precedent for invoking the writ jurisdiction. (Vide Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal and Ors., ; Mani Subrat Jain and Ors. v. State of Haryana, ; State of Kerala v. Smt. A. Lakshmi Kutty, ; State of Kerala v. K.G. Madhavan Pillai and Ors., ; Krishan Lal v. State of J & K, ; State Bank of Patiala and Ors. v. S.K. Sharma, ; Rajendra Singh v. State of M.P., ; Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors., ; Utkal University v. Dr. Nrusingha Charan Sarangi and Ors., ; State of Punjab v. Raghbir Chand Sharma and Anr., ; and Sadhana Lodh v. National Insurance Co. Ltd. and Anr., .
16. In Shilpi Bose (supra), the Apex Court has held that order of transfer/posting "issued by the competent authority did not violate any of her legal right." The employee holding a transferable post cannot claim any vested right for his/her posting at a particular place.
17. In Atmaram Sungomal Poshani (supra), the Apex Court in crystal clear words observed that an employee fails to join at the transferred place, he exposes himself to the disciplinary proceedings for disobedience of the order. The employee cannot avoid the compliance of the transfer order. In Addisons Paints & Chemicals Ltd. v. Workman, AIR 2001 SC 436, a similar view has been reiterated and it has been held therein that refusal to report for duty upon transfer amounts to misconduct. Even if the transfer order is bad for some reason, the employee must ensure compliance of the order first and then raise the issue with the employer for redressal of his grievance.
18. In State of U.P. Gobardhan Lal, , the Hon'ble Supreme Court 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 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 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).
19. Similar view has been reiterated in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey, .
20. The transfer order may cause great hardship as an employee would be forced to have a second establishment at a far distant place, education of his children may be adversely affected, may not be able to manage his affairs and to look after his family. This aspect was also considered by the Apex Court in State of M.P. v. S.S. Kaurav, , wherein it has been held that it is not permissible for the Court to go into the relative hardship of the employee. It is for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration.
21. The issue of "malus animus" was considered in Tara Chand Khatri v. Municipal Corporation of Delhi and Ors., , wherein the Hon'ble Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.
22. Similarly, in E.P. Royappa v. State of Tamil Nadu and Anr., , the Hon'ble Supreme Court held that a transfer is mala fide when it is made not for professed purpose, such as normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. The Court further observed as under:-
"Secondly, we must not also over-look that the burden of establishing mala fides is very heavy on the person who alleges it.... The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other, not because of any special status... but because otherwise, functioning effectively would become difficult in a democracy."
23. The Hon'ble Supreme Court in Sukhwinder Pal Bipan Kumar and Ors. etc. etc. v. State of Punjab and Ors., ; and Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors., has made similar observations.
24. In M. Sankaranarayanan, IAS v. State of Karnataka and Ors., , the Hon'ble Supreme Court observed that the Court may "draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of institution, surmise or conjecture."
25. In N.K. Singh (supra), the Hon'ble Supreme Court has held that "the inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances."
26. In Arvind Dattatraya Dhande v. State of Maharashtra, , the Hon'ble Supreme Court held as under:-
"In view of the unimpeachable and eloquent testimony of the performance of the duties, it will be obvious that the transfer is not in public interest but is a case of victimisation of an honest officer at the behest of the aggrieved complainants carrying on the business in liquor and toddy. Under these circumstances, as stated earlier, the transfer of the appellant is nothing but mala fide exercise of the power to demoralise honest officer who would efficiently discharge the duties of public office."
27. There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide Kiran Gupta and Ors. v. State of U.P. and Ors., ; and Netai Bag and Ors. v. State of W.B. and Ors., ).
28. In State of Punjab v. V.K. Khanna and Ors., AIR 2001 SC 343, the Hon'ble Apex Court examined the issue of bias and mala fide, observing as under:-
"Whereas fairness is synonymous with reasonableness- bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or 'ill will'. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice.... In almost all legal inquiries, 'intention as distinguished from motive is the all-important factor' and in common parlance a malicious act stands equated with an intentional act without just cause or excuse."
29. Similar view has been reiterated in Samant and Anr. v. Bombay Stock Exchange and Ors., .
30. In Dr. Balkrishna Pandey v. State, 1997 Ad 1038 a Division Bench of this Court has held that if an employee is at a station for a long time and the transfer is made administratively only on that ground, it cannot be a case of mala fide.
31. The Hon'ble Supreme Court in Sarvesh Kumar Awasthi v. U.P. Jal Nigam, held as under:-
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration, the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration."
32. Transfer effected as a punitive measure is also not permissible. Whether a transfer is punitive or not is a question of fact, as held by the Hon'ble Supreme Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd., . It was permissible for the Court to go behind the order and find out if it was punitive in nature.
33. In Gobardhan Lal (supra), the Apex Court held as under:-
"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."
(Emphasis added)."
34. Similar view has been reiterated by the Apex Court in State of U.P. v. Siya Ram, .
35. In First Land Acquisition Collector and Ors. v. Nirodhi Prakash Gangoli and Anr., ; and Jasvinder Singh and Ors. v. State of J & K and Ors., , the Apex Court held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under a legal obligation to place the specific materials before the Court to substantiate the said allegations.
36. It is settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations cannot be considered. (Vide State of Bihar and Anr. v. P.P. Sharma, IAS. and Anr., AIR 1992 SC 1260; Dr. J.N. Banavalikar v. Municipal Corporation of Delhi and Anr., AIR 1996 SC 326; All India State Bank Officers Federation and Ors v. Union of India and Ors., ; & I.K. Mishra v. Union of India and Ors., ).
37. In Federation of Rly. Officers Association v. Union of India and Ors., , the Apex Court has held that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.
38. In this case, neither the authority which wanted to accommodate Dr. Dinesh Kumar nor Shri Dinesh Kumar had been impleaded before the Tribunal. Even before this Court, Dr. Dinesh Kumar has been impleaded without leave of the Court. A period of five years has passed but no notice has been issued to him. In view of the above, the allegations of mala fide cannot be considered.
39. In Director of School Education Madras and Ors. v. O. Karuppa Thevan and Anr., 1994 Supp (2) SCC 666, the issue of transfer in mid academic session was considered by the Hon'ble Supreme Court and it was held that "the fact that children of the employee are studying should be given due weight, if the exigencies of the service are not urgent." Therefore, it is for the employer to examine as to whether transfer of an employee can be deferred till the end of the current academic session. The Court has no means to assess as what is the real urgency of administrative exigency.
40. In Suresh Chand Sharma v. Chairman, UPSEB and Ors., 2005 AIR SCW 1133, the Hon'ble Supreme Court deprecated the transfer under political pressure. In Lokesh Kumar v. State, 1998 (1) AWC 27, this Court has held that transfer in colourable exercise of power without administrative exigency only on political or extraneous consideration is liable to be set aside. The transfer of an employee must be made considering the administrative exigency and not at the whim of any administrator/ politician, including the Ministers, for the reason that in such a case transfer order may be passed for extraneous consideration as held by this Court in Director v. Nathi Lal, 1995 (2) UPLBEC 1121. In Pratap Narain Srivastava v. State of U.P. and Ors., 1995 (1) Edu. & Service Cases 509; Pradeep Kumar Agrawal v. Director, (1994) 1 UPLBEC 189; Sheo Kumar Sharma and Ors. v. District Shiksha Adhikari, Kanpur Dehat and Ors., (1991) 1 UPLBEC 690; Smt Gayatri Devi v. State of U.P., 1997 (2) UPLBEC 925, Pradip Kumar v. Director Local Bodies, 1994 (1) UPLBEC 156; Pawan Kumar Srivastava v. U.P. State Electricity Board, 1995 (1) UPLBEC 414; Shiv Kumar Sharma v. Basic Shiksha Adhikari, 1991 (1) UPLBEC 69; and Goverdhan Lal v. State of U.P. and Ors., 2000 (2) UPLBEC 1356, it has categorically been held that a transfer order passed under influence of any other person cannot be sustained in the eyes of law.
41. In view of the above, the legal position can be summersied that transfer is a condition of service. It does not adversely affect the status or emoluments or seniority of the employee. The employee has no vested right to get a posting at a particular place. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. There is a very little scope of judicial review by the Court/Tribunal against the transfer order and only if it is found to be in contravention of the statutory Rules or for mala fide that the Court can interfere. This is for the reason that a transfer order does not violate any legal right of the employee. Transfer policy of the State does not have any statutory force. It merely provides for guidelines for the understanding of the Departmental personnel. However, transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee not under political pressure. If a party alleges mala fides, the burden to prove it lies upon him and it is to be proved by taking appropriate pleadings and the person against whom the allegation of mala fides are alleged, should be impleaded by name. The Court must examine the case from all angles to find out whether the order is punitive or not.
42. If a transfer order is passed during the pendency of the disciplinary proceedings, the Court may examine as to whether the order is punitive in nature as it may also be necessary to facilitate the proceedings and as a preventive measure of tampering with the evidence or witnesses.
43. Once a transfer order is passed, the Competent Authority has a right to cancel it or modify it, even after it stood executed. The transfer order must be passed by the Competent authority and employee should be relieved for joining at the transferred place, if it is necessary to relieve him formally. There is no prohibition to post both the spouses at different places, if they are in service, and cannot be adjusted at the same place or services of one of them is required in administrative exigency at a different place. Same remains the position of mid-academic session. The employer may consider and keep this aspect in mind, but he cannot compromise with administrative requirement.
44. The case requires to be examined in view of the aforesaid settled legal proposition. After assessing the entire factual and legal position, the Tribunal recorded the following findings:-
1. Dr. Dinesh Kumar had been transferred to Agra in accordance with para 3.1.4 of the Rules 1977.
2. The transfer order of the petitioner was in public interest and no mala fide can be attributed in transfer of the petitioner.
3. The guidelines for transferring the employee in mid-academic session provided only not to transfer the employees as far as possible, therefore, it did not confer any statutory right to challenge the transfer order on this ground.
45. Learned counsel for the petitioner did not point out any statutory provision which has been violated while passing the transfer order, which warrant this Court to interfere against the impugned order. The officer, who wanted to accommodate Dr. Dinesh Kumar at Agra, after transferring the petitioner, nor Dr. Dinesh Kumar had been impleaded before the Tribunal. Even, before this Court only Dr. Dinesh Kumar has been impleaded without seeking any permission of the Court. We fail to understand how such a course is available to the petitioner. Till today, notice has not been issued to Dr. Dinesh Kumar, though petition is pending before this Court for more that five years. Thus, the allegations of mala fides can not be taken into consideration. It is no one's case that the order had been passed by the Authority not competent to pass the transfer order. As the transfer order was passed in 1998, there is no occasion for this Court to examine the issue further.
46. In view of the above, we do not find any force in the petition. It is accordingly dismissed. No costs...."
Evidently in this judgment all possible scenarios with regards to a transfer have been dealt with through a catena of judgment citations. This leaves little room for further manoeuvre to grant any benefit to the applicant.
In UoI Vs. H.N. Kirtania, AIR 1989 SC 1774, the Hon'ble Apex Court observed as under:
"Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides".
The Hon Apex Court in the case of Union of India Vs. Vishnu Kant Pal in Special Appeal No. 969 of 2015 decided on 11.01.2016 has held as under:
"Even if, the order of transfer was passed upon the receipt of the report, we are emphatically of the view that the transfer cannot be regarded as being stigmatic. The authorities are entitled to issue such orders of transfer on administrative grounds. Even assuming that a complaint is received against an employee, it is for the employer to make suitable arrangements to ensure that the interest of the employer - in the present case, a public employer such as the North Central Railway is duly taken care of by assigning suitable duties to the employee."
In fact, it has been held by the Hon Apex Court that even if there is a complaint of punishment which is not the case herein, then also the Hon'ble Apex Court has held in the matter of UoI Vs Janardhan Debnath and Ors (2004) 4 SCC 245 wherein it has been held as under:
".....12. ..........The manner, nature an extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
13. .........
"14. ........ and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirements, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as costs......"
The Hon Apex Court in a judgment reported in 2010 SCC Online ALL 1152 Inre: Dr. Anil Kumar Pradhan Vs. State of U.P has held as under:-
"17. In the instant case, there is admittedly a complaint against the petitioner. The petitioner fully knows about that complaint as is evident from the stand taken in the writ petition itself. The plea of the petitioner that he cannot be transferred on such a complaint deserves to be rejected outright. It may be mentioned that instead of initiating disciplinary proceedings against the petitioner on the ground of a charge of negligence in performing his duties, he has only been required to be transferred."
7. As regards the assertion by the ld. counsel for applicant that the applicant has been the only one picked for being transferred, this Tribunal is inclined to agree with the argument of the ld. counsel for respondent because the transfer of the applicant is not an isolated one as can be seen in the disposal of representations letter cited above also.
8. In light of the above analysis it is difficult to help the applicant despite valiant plea by the ld counsel for applicant. Therefore, there is no reason why there should be any interference. The Tribunal's conviction is fortified by the citations made by the ld. Respondents counsel. Thus, there is no reason why this Tribunal should interfere in the transfer order.
9. Accordingly, the O.A. is liable to be dismissed and is dismissed.
10. No costs.
Devendra Chaudhry
Member -A
vidya
CAT, Lucknow OA No. 161 of 2022 Shashank Deepak vs Union of India &Ors
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