Gujarat High Court
Vakhatsinh Hemtaji Parmar vs Union Of India (Uoi) And 2 Ors. on 14 February, 2006
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
JUDGMENT Abhilasha Kumari, J.
Page 613
1. By way of the present writ petition, the petitioner has assailed the decision of the Central Administrative Tribunal, Ahmedabad Bench (Herein-after referred to as CAT) contained in order dated....
Whether Reporters of Local Papers may be allowed to see the Judgment? Yes 10.1.2006 passed in O.A. No. 515 of 2005 Vakhatsinh Hemtaji Parmar v. Union of India and Ors.
2. The petitioner is working as a Senior Accounts Officer in the office of the Accountant General at Ahmedabad. He was transferred to the office of the Accountant General at Rajkot vide order dated 8.9.2005, which he challenged before CAT on the ground that the same was violative of the guidelines formulated by the respondents and therefore, suffered from the vice of discrimination. The CAT rejected the O.A. filed by the petitioner since it found that there were no allegations to the effect that the transfer order was issued in a malafide exercise of power or with an ulterior motive. It was also found that there was no violation of the guidelines framed by the office of the Accountant General and since the transfer order of the petitioner was issued due to the administrative exigency, the same did not deserve to be interfered with.
3. In the present petition, the impugned order dated 10.1.2006 passed by CAT in O.A. No. 515 of 2005 has been assailed before us mainly on the ground that the CAT has erred in holding that the transfer order has not been challenged on the ground of malafides and is not violative of statutory rules. It has also been contended that there is no public interest or administrative exigency to justify the order of transfer of the petitioner and the CAT has failed to consider this aspect of the matter.
4. We have heard Shri N.S. Shevade,learned counsel appearing for the petitioner and gone through the material on record. The learned counsel for the petitioner has argued that the CAT had erred in coming to the conclusion that the transfer order of the petitioner was not a result of malafide exercise of power and,therefore, no interference was called for. According to him, since there are no administrative exigencies, which necessitate the passing of the said order, the malafide intention of the respondents can be Page 614 inferred, even though the transfer order may appear to be innocuous. In support of this contention, he has referred to Rajendra Roy v. Union of India and Anr. In particular he has stressed upon paragraph 5 of the said judgment, which contains the arguments advanced by the appellant in that case, but does not contain the ratio of the judgment. We fail to see how this paragraph will be of any help in supporting the arguments of the learned counsel for the petitioner, since the contentions put forward by the appellant in Rajendra Roy's case (Supra) were considered by the Supreme Court and answered in paragraph 7 of the same judgment, which lays down the ratio of the case. The observations of the Supreme Court are reproduced herein-below:
It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents in passing the impugned order of transfer. It does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed mala fide by seizing an opportunity to transfer Shri Patra to Orissa from Calcutta.
5. Adverting to the facts of the present case, it is clear that the office of the Accountant General (Accounts and Entitlement), Gujarat functions from two locations i.e. Rajkot and Ahmedabad. Group SC and SD staff cadres of these two offices are separate and non transferable. The petitioner belongs to Group SB cadre comprising Section Officers, Assistant Accounts Officers, Accounts Officers and Senior Accounts Officers, who are borne on a single common cadre. These Officers are liable to be transferred between the main office at Rajkot and Branch office at Ahmedabad, at any time during their service. The Ahmedabad office, being a Branch Office, has a comparatively smaller number of posts than the main office at Rajkot. Persons qualified for promotions were generally promoted and transferred to Rajkot and on availability of the vacancies at Ahmedabad, posted back at Ahmedabad on seniority basis but, subject to administrative exigencies. The petitioner, on his promotion as a Section Officer in July 1988 and Assistant Accounts Officer in July 1992 was retained in the same office at Ahmedabad as, at that point of time, a vacancy was available at that place. However, on his promotion as Accounts Officer in January 1994 he was transferred to Rajkot office in view of the vacancy position prevailing there at that point of time,. The petitioner worked in Rajkot till 31.3.1995 and was posted to the Treasury Inspection Party from 1.4.1995 to 28.2.1997.
Page 615
6. The respondents in the reply filed to the O.A. before the CAT have specifically denied the existence of any transfer policy. However it has been stated that in September 2003 some internal guidelines for transfer and posting were framed in view of the difficulties experienced in giving effect to transfer orders. These guidelines catered to the transfer of officers at Ahmedabad, who had earlier been posted at Rajkot for comparatively shorter periods, and as per these guidelines two Senior Accounts Officers, who were senior to the petitioner, have already been transferred to the Rajkot office. It is clearly stated that the transfer of the petitioner has also been ordered on the basis of these very same guidelines when his turn came and as such, his transfer is neither discriminatory nor arbitrary but, has been made purely in the exigencies of the administration. There is no material on record to dispute this averment.
7. It cannot be disputed that transfer is an incidence of Government service. The petitioner is governed by the Fundamental Rules and it is relevant to note that Fundamental Rule 11 says that Sthe whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority. Further Fundamental Rule 15 says that Sthe President may transfer a Government servant from one post to another. Apart from this, it has been laid down by the Supreme Court in a catena of judgments that Courts and Tribunals should refrain from interfering in cases of transfer of Government employees until and unless the transfer is a result of ulterior motives or a malafide exercise of power or made without following the statutory rules. In Union of India v. S.L. Abbas it has been specifically observed as under:
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt,the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.
8. In the present case, the petitioner has no where stated that his transfer is a result of malafide exercise of power and is therefore,vitiated on that account. Malafides have to be clearly pleaded and proved and can not be inferred or presumed. The argument advanced by the learned counsel for the petitioner has been repudiated by the Supreme Court in Rajendra Roy's case (Supra) in the following terms:
7. ...It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw Page 616 reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions.
9. The petitioner has neither laid a firm foundation on which to rest his vague use of the word 'malafide' nor is there any specific averment as to which authority has acted in a malafide manner and in what way the conditions of his service have been altered to his detriment due to such action. No motive has been imputed to any authority and it has not been established that the action of the authority in transferring the petitioner was not bona fide or in a routine manner, but was an outcome of malice.
10. In our opinion, the impugned transfer of the petitioner is also not in violation of any statutory rules or provisions. There is no transfer policy which has been framed by the respondents but, only certain internal guidelines have been made, in order to regulate the smooth functioning of the office and cater to the demands of the administrative interest and exigencies in matters of transfer. As far as the argument of the learned counsel for the petitioner that there is no public interest or administrative exigency is concerned, we are unable to accept the same. Administrative exigency is to be seen by the authority concerned and not by the employee. It is not for the Courts to decide what is in the interest of the smooth functioning of the concerned office. Administrative matters are best left to those in charge of the administration. If Courts start interfering with day to day transfer orders, that may result in complete chaos in the administration, which may not be conducive to public interest.
11. Of course, the Courts will, and should interfere, if there is an arbitrary exercise of power, which is unsustainable in law, in violation of rules, in a malafide manner, but not in every matter, where the employee has been transferred in a routine manner.
12. This is not a case where the order of transfer has been issued as a result of any malafides or a colourable exercise of power. The transfer of the petitioner therefore, does not suffer from the vice of discrimination or arbitrariness and calls for no interference from this Court. In National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan the Supreme Court has held:
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 other is not only an incident, but a condition of service, necessary too in public interest and Page 617 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 were 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.
13. This position of law has been reiterated in State of U.P. v. Gobardhan Lal. In this case the Supreme Court has observed 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.
14. During the course of the hearing, the learned counsel for the petitioner has stated at the Bar that the petitioner has already been relieved and has joined at his new place of posting at Rajkot in pursuance of the transfer order. That apart, we are of the considered opinion that in view of the factual and legal position, as discussed hereinabove, there is no reason to interfere in the impugned order dated 10.1.2006 of CAT, since the same suffers from no infirmity. The writ petition is therefore, dismissed summarily, as being devoid of any merit.