Central Administrative Tribunal - Mumbai
P N Deshmukh vs Navodaya Vidyalaya Samiti on 6 April, 2023
H QA No. O80 of 2022 CENTRAL ADMINISTRATIVE TRIBUNAL, _ MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.680 of 2022 Boe Seg OEY 4 aot, : ice we 5 Dated this Thunaday the OQ6° day of April, 2023 CORAM: HON'BLE MR. SHRIKRISHNA, MEMBER (A) Shri RN. Deshmukh, Age 48 years, working as Vice Principal in Jawahar Navodaya Vidhyalaya, Buldhana, Residing at INV Girs, Buldhana, Dist. Buldhana 444 203. - Applicant (By Advocate Shri Vicky A. Nagrani} Versus 4. Union of india through the Commissioner, Navodaya Vidyalaya Samill, 8-15 Institutional Area, sector 62, Noida 201 370. 2 The Deputy Commissioner, Navodaya Vidyalaya Samili, shetiMahamandal Bhawan (MSFC Ltd}, lind Floor, B-Wing, 2/3 Bhamburda, Senapati Banat Road,Pune 411 O16. -- ce The Principal, Jawahar Navodaya Vidyalaya, Buldhana. Dist. Buidhana 444 203. - Respondents -- (By Advocate Smit. N.V.Masurkar} Reserved on 27.02.2023 Pronounced on © © 04.2023 ORDER
The applicant is aggrieved by the impugned transfer order dated 12.08.2022, 17.08.2022 and 20.08.2022 passed by the respondent No.2 by transferring the applicant from Buidhana to INV Narmada. He is due for retirement _ within the span of two years Ls. on 90.04.2024 and as per the 2 OA No.d80 of 2022 transfer policy, the employee approaching superannuation after attaining the age of 58 years was not amenable to transfer. The applicant has crossed the age of 58 years. He is working as Vice Principal and he has been asked to take over the charge of Principal as In-charge at Narmada by 22.08.2022. Against the said order, the applicant has made representation on 13.08.2022 which was forwarded by the respondent No.4 recommending the case of the applicant. But respondent No.2 rejected the said representation. Therefore, applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 for seeking the following reliefs:
"8.6. This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Raspandenis and after examining ihe same. quash and set aside the onlers dated 72.08 2022, 17.08.2022 and 20.08.2022 with al consequential benefits.
(8.5, This Hon'ble Thbunal may further be pleased to direct the Respondents ta retain the applicant at INV Buldhang as Vice Principal S.c. Costs of the application be provided for.
8.d. Any other and further order as this Han'ble Trihunal deems fit in the nature and circumstances of the case be passed"
wh Ll 3 OA Na. 680 of 2022 Be The applicant has aiso prayed for interim relief which has already been granted ex-parte by this Tribunal on 30.08.2022 by staying the impugned transfer order dated 4 2.082022 Annexure A-1).
3. Summarized facts of the case--
3.4. 'The applicant was initially appointed as TGT (Mathematics) on 071.098.1990 at JNV, Hingoli (Basamath Nagar), Thereafter, he was considered for promotion and promoted to the post of PGT (Mathematics) on 24.08.1996 and was accordingly posted at JNV, Yawatmal. Thereafter, he was posted at various places such as Shegaon, Jalgaon (Bhusawal), The details of the said posting aré annexed as Annexure A-4. | | 3.2. The applicant submits that he was considered for promotion to the post of Vice Principal at UNV, Valsad in the year 2021 but for the said post, he has shown his unwillingness for promotion on the ground that his wife fs having 100% occlusion (blockage) in her left ophthalmic artery {complete chronic occlusion of left ICA). The request of the applicant was forwarded and same was duly considered by the respondents and he was retained 4 OA No.680 of 2022 on promotion at JNV, Buldhana as Vice Principal meaning thereby his retention for same station was duly considered and accepted. Copy of his representation and order of retention is annexed as Annexure A-S. 3.3. The applicant further submits that the respondents within the short time of 6 to 8 months, again passed the impugned order on 12.08.2022 (Annexure A-1) transferring him to JNV, Narmada (Gujarat) and by the sald impugned arder, he was asked fo take the charge at INV Narmada as In- charge Principal. Being aggrieved by the above-mentioned order. he immediately submitted his representation on 13.08.2022 wherein he has pointed cut his wife's serious ailment and also the fact that he is due for retirenient on 30.04.2024 and he is left with less than two years of service. The said representation was duly forwarded by the respondent No.3 vide letter dated 15.08.2022 to respondent No.2 which he has rejected vide order dated 17.08.2022 by passing a cryptic order by merely stating that the said request cannot be acceded to due to administrative exigencies.
3.4, Respondent No.3 relleved the applicant vide letter dated 20.08.2022 after passing of rejection order. Copies of 5 GA No.680 of 2022 both these orders are annexed as Annexure A-2 and A-3 respectively. The applicant accepts the fact that the transfer is an incidence of service but when the action is unlawful, discriminatory, unprecedent, unusual and unjust, judicial intervention is necessary. Therefore, this OA has been filed for quashing and setting aside the above impugned orders and allow the OA by imposing cost on the respondents. 3.5. The applicant also relied on the judgment of Hon'ble High Court of Gularat in the case of Dipika Kantilal Shukla which categorically states that --
This court is canscious of ihe legal position that an employer has the nght to transfer its employees in the intearast of the administration and in public interest, since transfer is an incidence of service. However, when the employer iiself has framed certain guidelines s for cerfain categories of employees, with a clear intention, then ihe action of the concerned authorities should have 4 reasonable nexus with the objectives sought to be achieved. if Is exnected that the respondents will act within the guidelines framed by them, otherwise & will remain nothing more than an empty formalily on paper The very objective of framing the policy will be defeated in is implementation, which will result in arbitrariness and discrimination, ress alling in violation of Anicle 14 of the Constitution of india."
3.8. The applicant further submits that the judgment passed by the Division Bench of High Court of Madhya Pradesh in the case of Ripudaman Singh Yadav V/s. State of ALP and oltfers reported in 2079 SCC Ont ne MP 1638 6 OA No.8 of 2002 wherein considering Article 38(1) of the Constitution of India, the Court has held as under -
"For a public servant ie Strive fowards excellence, it is of ulmost importance that fair and equitable opportunities ave made avaiable by the State. One of the means to achieve this goal of broviding equitable opportunities by ihe State is to make available healthy and stress-free working environment for a pudlic servant A stress free working environment is inter aiis possible when the Slate, functioning as an employer while effecting transfers takes into account not only the administrative exigencies/nublic interast but also ine genuine personal problems of the public servant lable tn be transferred. 4 balance has fo be struck by the employer which js fhough diffiead but not impossible fo achieve. Every GOvVEMMENL IN IES canacily as an employer owes jt fo ifs employees, if this balance between the administrative exigency and personal inconvenience is kept in mind before every event of transfer, the cause of heart burning amangst public servants. under transfer would reduce to the minimum thereby causing a health yy and congenial atmosphere between the employer and emvoyvees whieh in turn convibules greatly fo the aver . al! development of the Particular institution and as well as fhe nation."
4. On notice, the respondents resisted the OA 'by a reply dated 13.09.2022 and denied all the adverse allegations and, averments raised therein and stated that the impugned orders passed by the respondents against the applicant is fully justified and there are no merits in the case. The respondents submits that OA suffers from deliberate suppression and misrepresentation of the facts giving colar to the impugned order which fs a stop gap purely on look-after-charge' basis to 7 OA No.680 of 2022 meet administrative exigencies as the JNV Narmada is newly established Vidyalaya and applicant was posted at JNV Narmada temporarily tif the appointment/joining of regular Principal and accordingly has made representation for exemption of duties assigned as in-charge Principal. [t has been submitted that the applicant himself has admitted the fact that he has been accommadated on promotion from PGT to the post of Vice Principal as per his request in his representation on posting to JNV Valsad sympathetically when he was posted as Vice Frincipal Shegaon in JNV Buldana. Therefore, the contention raised by the applicant are denied being manipulative giving grab of regular transfer order to the impugned order being a stop gap arrangement to meet the exigencies of administration and same has nothing to do with fransfer policy.
4.1, Respondents further submits that there is nothing wrong on the part of the respondents that the applicant's substantive post is Vice Principal and on the other posts he is merely on 'look-after-charge' basis to meet exigencies of the administration. The impugned order dated 12.08.2022 is a mere slop gap arrangement to meet the administrative § OA No.680 of 2622 exigencies which has nothing to do with transfer policy applicable to regular transfer orders. It is submitted by the respondents that in service no one has a right to ask for or stick to a current duty charge. The applicant was directed to take over the charge of JNV Narmada as in-charge Principal by 22.08.2022 authorizing to exercise all administrative and financial powers considering the administrative exigency, 4.2. itis submitted by the respondents that if applicant wishes to apply for leave to take care of his spouse, he may join frst at INV Narmada and apply for any kind of leave as admissible to him which course of action is always onen to the apnlicant, 4.3. _ The respondents have also relied on the judgment Passed by the Hon'ble Supreme Court in the case of State of MLB Vs. 3.3. Kouray, wherein # is held that "/f is settled jay fhat a transfer which is an incident of service is not to be interfered with by the Courts unless fis shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed HOM oF principle governing the transfer .
$4 The grounds raised in the OA are denied by the respondents being malafide and manipulative and the 9 OA No. 680 of 2022 impugned order passed by them is in public Interest and no cause or action arose in favour of the applicant, to invoke the jurisdiction of this Tribunal. Therefore, the OA js in abuse of process of Court and hence it deserves dismissal.
5. | In rebuttal, the applicant filed rejoinder to the reply on 18.11.2022 and applicant denied aif the contentions of the respondents in reply and submits that they are bound ta follow their own transfer policy dated 28.01.2022 which categorically provides deemed protection for DER category Le. due for retirement category and the applicant is undisputedly covered under deemed protected category In fact, transfer policy iself provides that employees due for retirement shall be allowed to continue ail the present station till retirement, unless such employee request for transfer if clearly provides that unless and until the applicant does not submit his willingness for transfer, he cannot be transferred under any circumstances unless employee request for transfer.
5.1. The applicant submits that the impugned order is legal and there is no mention about the Stop Gap arangement to meet the exigencies of administration and NG sssurance is given that the applicant will ne 10 OAN.G80 af 2022 transferred back on completion of the said period of six months. In this case also applicant cannot accept the present post for the short- term period on the ground of his wife who is suffering from various serious ailments and he do not want to take risk fo the life of his wife. As per policy is concerned, there is no doubt at all that the said Transfer Policy is only a set of guidelines, however, mere reasonable or legitimate expectation may not be an enforceable right but failure to consider and give due weight to it will render the decision arbitrary.
§.2. The applicant further submits that there may be few Principals whe are deemed protected as per their own policy and also who falls under the category of "Due for Retirement"
(DFR) and those who ought not to have been considered at all before approving the decision of transferring the Vice Principal to take over the charge of Principal. They are silent on the aspect whether DFR category was considered which is a legitimate expectation of the applicant and whether if was duly taken into consideration before approving the transfer He again submits that there is nothing mentioned in the impugned order about regular transfer or the order is a stop gap a CA No.680 of 2022 arrangement and if assumed for a while thal the present order is Stop Gap Arrangement. in that case the respondents are duty bound to follow their own policy and give weightage to the said policy before effecting ihe transfer which they have not considered in thelr averments.
5.3. it was submitted that in the reply of the respondenis about the administrative exigencies and argument that the applicant can apply leave after joining the new place of posting, what purpose would be served if the applicant is being asked to apply for leave, as this would neither be in the interest of respondents nor in the interest of applicant. Therefore, i is ecessaty to adhere to the policy before effecting the transfer even if it is shart term or stop gap arrangement §.4, - The-applicant further submits that no hardship will be caused to the respondents as this is not the first time the Said situation has accurred as it is a newly established school with enrolment of very few students and when there is a shortage of staff and non-availability of Principal/Vice Principal, then the senior most Teacher can look after School by Ranaing aver the charge of Principal as this situation has arisen many pos bea OA No.680 of 2022 times where the senior most teacher of said school has taken over the charge of Principal as this is only for administrative purpose and question of students baing suffered does not arise. Because of shortage of Teachers/Principal, applicant cannot be made sufferer and compensate for na fault of him at al, this is the clear Inaction on the part of the respondents by not fing the said posts as nowhere if js Stated in reply by them that they are in the process of filling up the post of transfer, appointment or any promotion is going on.
8.5. it was further submitted that after completion af six months, they will further extend if by passing another order which will make applicant to suffer without any fault despite being deemed protected under DER category. In fact, initially applicant has denied his promotion for the post of Vice Principal on his personal ground and if that wauld have bean accepted then occasion of transferring the applicant again would have not arised. Therefore, in the present case, his promotion to the post of Vice Principal is considered at the Same Station which is next to impossible for him to join at the place of pasting and # respondents gre very much eager to 5 r him then they are themself a: liberty to refuse the said promotion and pass an order to revert hirn back to his earlier post. But they are stopped for transferring the applicant as they themselves have retained him at same station on promotion. lf was submitted that if the respondents are contending that it is not a case of transfer and only a stop gap afrangement, then the case should be heard by a Division Bench. However, the counsel for the respondents argued that the applicants have not filed the OA before this Bench, he cannot take this plea af this late stage to say that the matter should be heard by a Division Bench now. Therefore, all the avermenis raised in reply are false and the present OA is flable to be allowed.
6. In response io rejoinder, respondents have filed surrejoinder on 22.11.2022 by denying all the contentions made in the rejoinder.
6.1. _ tis submitted that the applicant was posted to Narmada only as a stop gap arrangement to take charge of JNV Narmada (Gujarat) as Incharge Principal constitute a ciass which is separate and distinct from regular arrangement by way of regular transfer, to which transfer policy refers and applied as far as possible and applicant is also fidivy aware of i4 OA Ne.680 of 2022 the same and applicant in his representation dated 15.08.2022 (Annexure A-7} himself contended whereby he sought exemption of duties as incharge Principal JNV Narmada and this school iS a newly established Vidyalaya and he was posted at JNV Narmada temporarily tl the appointment or joining of regular Principal, 6.2. it has been submitted that Circular bearing No.F.No, 1-15/98-NVS(Esit) dated 10.12.1998 (Annexure RS-2) issued by NVS Duties and Responsibilities attached to the post of Vice Principal prescribed in para GH which states that "He shall shoulder the responsibilities and duties as assigned fo him from time to time by the Principal/Regional Office'. The circular further states that "The Regional Offices have already been instructed with regard to the utilization of the services of the Vice Principals as Ineharge Frincipal in the Vidyalayas where the post of Principal is vacant fn such cases, Vice Principal should report in the place of his posting as Vice Principal first and then shall be sent as Ineharge of the Vidyalaya where there is a vacanoy of post of Principal in the Most economical manner"
iS OA No.680 of 2022inn support of their arguments, the respondents have relied upon the following judgments:
1. State of U.P. And Ors. Vs. Gobardhan Lal (AIR 2004 SC 2785). |
2. Mohit Sain Vs. State of H.P. and others decided by the Hon'ble High Court of Himachal Pradesh on 05.10.2020 and aiso in CWP No.2225/2020 tiled as Puran Chand Vs. State of HF
3. Ravi Shankar Singh Vs. The State of Madhya Pradeshdecided by Han'ble High Court of Madhya Pradesh on 28,10,.2022,
4. Mohd. Ahsan dargarVs. Union Territory of J&K and othersdecided by Hon'ble Jarnmu & Kashmir High Court on 10.02.2020, 4, Santosh Tiwari Ve. The State of Madhya Pradesh decided byHon'ble Madhya Pradesh Hich Court on 14.08:2022, 6.4. | The respondents submits that the applicant was further directed to fake over the charge of INV Narmada as In-
charge Principal by 12.08.2022 authorizing to exercise all administrative and financial powers considering purely the 16 OA No.680 of 2022 administrative exigency as the INV Narmada being a stop gap purely on 'look-after-charge' basis to meet administrative exigencies at the INV Narmada is newly established Vidyalaya and he was posted temporarily i the new joining or appointment of regular Principal and Vice Principal. Along with applicant, fourteen other Vice Principals have directed to take over the charge of different Vidyalayas where no Principal is appointed with same direction, Out of the above, 12 have already joined at their new place of posting.
6.5. Respondents are denying all the contentions raised therein in OA and rejoinder of the applicant and also denied that in relieving order. it is mentioned that applicant is entitied to TAIDA as per NVS norms therefore, said order is nothing but an order of transfer 85 stated by hirn., Therefore, respondents state thal aoplicant is misleading this Court by applying 'method acting or mind game in the matter insphe of fully aware that in his case TA is 'Travelling Allowance' and not 'Transfer Allowance', 6.6. The respondents place reliance on the decision of Hon'ble Supreme Court in the case of Stafe of UP Vs.
-
Gobarchan Lal, reported in AIR 2004 SO 2165 which states 1? OA No.G80 of 2022 that "Conditions of service or rights, which are personal to the parties concerned, are lo be governed by rules as also the inbulll powers of supervision and contro! in the Alerarchy of the administration of State or any Authority as well as the basic concepts and well-recognized powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy whieh it may create in ensuring an effective supervision and control and running of administration merely an certain assumed notions of orderliness expected from the authorities effecting transfers". Therefore, this OA should be dismissed with cast on the applicant.
7. Heard the counsels for both sides at length and perused the pleadings and documents filed on record, The learned counsel for the applicant submits that the applicant was transferred from JNV Buldhana to Narmada (Gujarat) in violation of Transfer Policy issued by the respondents. The Transfer Palicy provides that the Vice Principals who are due for retirement within two years will not be transferred.
Tals The contention of the respondents is that the posting order was provisional, fortuitous arrangemenis, purely 1§ OA No.O80 of 2022 on 'look-after-charge' basis a temporary expedient makeshift arrangement fo meet urgent administrative exigencies within the exclusive domain of the employer to determine as to what place and for how long the services of a particular employee are required which is regular feature of schoo! functioning. Both the counsels nave relied upon various judicial pronouncements in support of their arguments.
V2. In this background of matter, it is important to first consider the Transfer Policy. The Transfer Policy dated 28.07.2022 was formulated for regulating transfer of employees of Navodaya Vidyalaya Samii and was duly approved by the Hon'ble Education Minister.
7.3. As per Clause 4.5(e) of the said transfer policy, this applicant's case falls under DFR category Le. "Due for Retirement" category and under said category, the priority shall be accorded to the employee coming under DFR category to seek transfer without restricting him/her with any mandatory tenure after they attained 58 years of age. The applicant is due for retirement on 30.04.2024 and had attained the age of 58 years. Thus, he was lef with less than two years of service.
he was asked fo take over the charge of in-charge Principal at ig OA Noe.680 of 2022 JNV, Narmada (Gularat) despite there being priority which is in violation of the transfer policy. As per the transfer policy, the normal tenure is of five years and Clause (P) of para 3 provides that the employees due for retirement within two years termed as DFR shall be allowed to continue at their present station till retirement unless such ernployee requests for transfer.
TA, The respondents have not clarified as to whether any process of appointment of Principal is going on anc that a new Principal will be appointed in near future, nor respondents have stloulated that the transfers of principal will be carried out or any promotion from the post of Vice Principal to Principal is under process. Respondenis have aisa net given any assurance that applicant will be transferred back on completion of said period of six months as his new place of posting is more than 400 kms away from the present place. 7.5, On receipt of the impugned order dated 12-08- 2022, the applicant immediately submitted his representation on 13.08.2022 wherein he has pointed out his wife's serious aliment, hal she suffered heart attack a few months back, the applicant is only male mernber in the family to look after her 20 OA Wo.680 of 2022 and also he is due for retirement on 30.04.2024 and he is lef with less than two years of service. The said representation was duly forwarded by the respondent No.3 vide letter dated 18.08.2022 to respondent No.2 which he has rejected vide order dated 17.08.2022 by passing a cryptic order by merely stating thet the said request cannot be acceded to due to administrative exigencies. Respondent No.3 relieved the applicant vide letter dated 22.08.2022 after passing of rejection order.
8, The respondents have placed reliance on the judgement of the Hon'ble Apex Court in the case of Stefe of UP Vis. Gabardhan Lai (supra) which pertains to transfer matter District Supply Officer(DSO), the respondent officer was found to have committed many irregularities in Ais previous postings, he was suspended twice and two Deparimental Preceedings were pending against hirn. Moreover, the transfer of respondent officer in that case was not in violation of the transfer policy and the officer concerned was not due for retirement, 8.4 Similarly, the Decision of Hon'ble Himachal _ Pradesh in the case of Moalt Sain Vs. State af WO fsuorss 3 OA No.680 af 2022 pertains to the transfer matter which was also not In violation of the transfer policy. The respondents on one hand are contending that it was not a transfer and only a stop gap arrangement and at the same time relying on the judgments on the issue of transfer.
8.2. In the case of Ravi Shankar Singh Vs. State of Madhya Pradesh (supra) relied upon by the respondents, the petitioner was deputed in a nearby district for a specific period of 90 days only. But in the case of applicant, he has been posted fo a place more than 450 Kms away from his present place of posting without specifying the period for which he will be required to be posted there. .
§.3. in the case of Mohd. Ahsan Zargar Vs. UT of JaK {supra}, the petitioner was substantively posted as Sanitary Inspector Bhaderwah and was only temporarily deputed te Municipal Committee Banihal to look after the work of Executive officer as a stop gap arrangement and later on he was sent back to his original place of posting at Bhaderwah where he was substantively posted. in the case of Santosh Hiwart Vs. State of Madhya Pradesh (supra), the pelitioner was depuled fo Singraull as a stop gap arrangement and if 23 OA Noss af 2002 Was Specifically mentioned in the order that it is a stop gap arrangement. Therefore, the judgments are distinguishable from the peculiar facts of the applicant.
9. The learned counsel for the respondent submitted a copy of the internal note sheet by which it was stated that the order can be issued froin 12.08.2022 and the posting will be for six months. However, it is seen that the impugned Office order dated 12.08.2022 directs the applicant to take over charge as Incharge Principal of JNV, Narmada by 22.08.2022. i says that the In charge Principal Senior Teacher JNV Narmada will hand over charge to the applicant. The Order Says that the applicant will exercise full administrative pawers as per rules of Samiti, he will be provided free boarding and lodging and directs to send the report of the handing overs taking over by 23.08.2022. The order does not specify whether it is a transfer or a deputation or as a Stop gap arrangement. {t does not specify how long the applicant will be posted there. The impugned order does not mention that the arrangement is for six months only. Similarly, the impugned Office Order dated 20.08.2022 directs the applicant fo hand over the charge of Vice Principal Buldhana and all related cocuments fo Smit.
Eee ae © oe i ter ceed © i bed = Boat Pad Sharda Ahire PGT/English senior most teacher and also relieved the applicant In the afternoon with the direction to take over charge of Incharge Principal, at Jawahar Navodaya Vidyalaya, Narmada on 22.08.2022. This order also does not specify the tenure of the posting of the applicant that the posting is for six months only. ff the said posting of order dated 12.08.2022 was for six months only, that period has already lapsed in the month of February, 2023.
70. The applicant has placed rellance on the judgement of Hon'ble Suprerne Court in the case of X¥ wv Registrar General, High Court of Madhya Pradesh (supra) reported in 2022 SCC Online SC 171 decided on 10.02.2022 in support of his arguments that the transfer order was not reasonable. He invited our attention to paras Nos.40, 50 and o1 of the said judgement which are reproduced as under:
"80. No doubt that the sald Transfer Policy is only @ set of Guidelines for infernal administration of the District Judiciary issued by the MP High Cour However while exercising is functions on the administrative side, the MP High Court would also be a State within the meaning of Article 12 of the Cansiilution of india. We may gainfully refer to the following observations made by tis Court in ihe case of Food Garporation of india v. M/s Kamehenu Cattle Feed Industries, (1993) 1 SCC 77:
"8. The mere reasonable of legiimele expectation of a ciizen, in such a situation, may not by ieelf be a distinct enforceable right, but failure fo consider arid gives due weight to i may render the decision arbitrary.24 OA No.886 of 2022
and this is how the requirement of due cansideration of a legitimate expectation forms part of Ihe principle of non-arbitrariness, a necessary concomitant of the rule of Jaw. Every legitimate expectation is a relevant factor requiring due consideraiion in a@ fair decision making process. Whelher the expectation of the claimant is reasonable or legitimate in the cantext is a Question of fect in each case. Whenever the question oases, fis fo be detennined not according to the ciaimant's perception but in larger public interest wherein other more impartant consideratians may outweigh what would otherwise have Besn fhe legitimate expectatian of the claimant. A bona fee decision of the public authority reached in this manner would satisfy the requirement of nan-arbitrariness and wilistand judicial scrutiny. The doctrine of iegitimate expectation gels agsimilated in the nile of law and operates in our legal system in this manner and fa this exfent
9. in Counell of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (7984) 3 Al ER 935 (AL}} the House of Lords indicated the extent to which ihe Jegilimale expeciation interfaces with exercise of discretionary power, The impugned action was upheld a8 reasonable, made on due consideration of al relevant factors including the legitimate expectation af ihe applicant whersiy fic consideralians of nefana! Secunty were found to outweigh that which olhenvise would have been the reasonable expectation af the applicant. Lard Scarman pointed ouf that "the contraiing fector in determining whether the exercise a? prerogative power is subject to judicial review is not Hs source buf its 20 subject matter' Again in Preston. ire [1985 AC 835 : (1985) 2 AN ER 32 fj i was stated by Lord Searman thal "the principle of faimess has an important place ja the law af judicial review" and 'uniaimess in the purported exercise of 9 power can be such that if is an abuse or excess of power", These vecisians of the House af Lords give. a similar indication of the sionificance of the doctrine of legitimate expectation. Shri AK. Sen referred fs Shanti Vay and Co. uv Princess Fatima Fousia {4878} 4 SCO G02 : (7980) 7 SOR 459] which holds that court should intentero where discretionary power is sot exercised reasonably and in good faith, * BW ee ewe 25 OA Wo.680 of Z0gE BO. Undisputedly neither the procedure as prescribed under Clause 9 of the Transfer Polley of obtaining the comments from the District Judge and the Portfolio Judge were complied with, nor the Transfer Commiliee considered the provisians of Clause Q{a) of the Transfer Polley S}.. When sub-clause (a) of Clause 9 of the Transfer Policy provided, that the case of a Judicial Officer for an extension should be considered if such Judicial Officer's daughter (not. sen} was ta appear for the final year of Board Examination or University Examination, and when such educational instilution where such daughter is studying, does not fave hostel faciity for girls, the petiioner had a legitimate expectation that the MP High Court would cansider her request in accordance therewith. Not only thet, such a concession of extension would have been availaile anly if the Olstrict Judge certified thal there is no Hostel facility available in such educational institution. if alsa further required the camments fo be oblained by the RG from the District Judge and the Partfolio Judge of the MP High Court From the perusal of the Transfer Policy, if is clear that tofal 3 weeks' period is provided between the date of the receiot of fhe representation and the decision thereon. However, in the present case, within hwo days from the 24 submission of the representation, the Transfer Committee rejactad fhe same without considering sub- clause (a) of Ciause @ of ihe Transfer Policy. it is a diferent matter thaf inviting comments from the District Judge would Have been just a formally, inasmuch as the transfer was effected an his cariplaint itself"
471.4 lt is seen that clause (p} of para 3 of the transfer policy dated 28-01-2022 reads as under:
"ip) Employess "Due for Retirement' within fwo Sueceeding years as on cutoff date of ihe transfer year hitherto termed as BFR, shail be allowed fo continue al their present station fl retrament unless such employee requests for transfer'.26 OA No.680 of 2022
Para 4.3 of the Transfer Policy provides that cut-off date is 31° July. Therefore, [ find force in the submission of the applicant that the applicant was transferred in vialation of the Transfer Policy in the garb of stop gap arrangement posting. Since the applicant is due for retirement on 30-04-2024, he is left with less than two years of service on the date of impugned orders, and therefore the same was in violation of the respondents' own transfer policy dated 28-04-2022 which has been duly approved by the Hon'ble Education Minister
72. In light of the above discussion, given the peculiar facts and circumstances of the case and also considering the fact that the applicant is now left with less than 13 months of service, as an exception cf exception, not to be cited as precedent, the impugned orders are set aside. The aoplicant to continue at his original place of posting. The OA is allowed in these terms.
13. There shall be no order as to the costs.
YShri RYishAay Member (4) king?