Central Administrative Tribunal - Hyderabad
Dr. K. Jaya Kumar vs Union Of India & Others [2001 (2) Scc 386] ... on 30 July, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH : AT HYDERABAD OA 322/2008 & MA 175/2008 Date of Order : 30-07-2008.
Between:-
1. Dr. K. Jaya Kumar, S/o K. Penchalaiah, aged about 59 years, Occ: Chief Medical Superintendent & Chief Surgeon, Railway Hospitall, SC Rlys, Vijayawada, Krishna District.
2. Dr. N. Shakunthala, W/o Dr. K. Jaya Kumar, Aged 57 years, Occ: Senior Medical Superintendent, O/o Chief Medical Superintendent, Railway Hospital, SC Rlys, Vijayawada, Krishna District. .Applicants And
1. Union of India rep. by The Secretary (Establishment), M/o Railways, Railway Board, New Delhi.
2. The Director General (Railway Health Services), M/o Railways, Railway Board, New Delhi.
3. The General Manager, SC Rlys, Sec'bad.
4. Chief Medical Director, SC Rlys, Sec'bad.
5. The Chief Personnel Officer, SC Rlys, Sec'bad.
6. The Divisional Railway Manager, Vijayawada Division, SC Rlys, Vijayawada.
7. Dr.(Mrs.) Sulochana A. Rajini, Chief Medical Superintendent, SC Rlys, Hyderabad Bhavan, Sec'bad.
8. Dr. P.O. Vandana, Medical Superintendent, Central Hospital, SC Rlys, Lalaguda, Sec'bad. ....Respondents Counsel for the Applicant : Sri KRKV Prasad Counsel for the Respondents : Sri V.Rajeshwar Rao, Sr. SC for Rlys Sri NR Devaraj, counsel for R-7 CORAM:
THE HON'BLE MRS. BHARATI RAY : MEMBER (JUDL) THE HON'BLE MR.R. SANTHANAM : MEMBER (ADMN) (Order per Hon'ble Mr. R. Santhanam, Member (A) ) (Order per Hon'ble Mr. R. Santhanam, Member (A) )
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Heard Sri KRKV Prasad, learned counsel for the applicant, Sri N.R. Devaraj, learned counsel appearing for Respondent No.7 and Sri V. Rajeshwar Rao, learned senior standing counsel for Respondent Railways.
2. The applicants in this OA have challenged the following letters/orders issued by the Respondents :-
(i) Office Order No. 145/2008 transferring a few medical officers issued from file No. P/Gaz/675/MD/2008 dated 12.05.2008 to the extent of the applicants;
(ii) letter No.B/P.Con.675/Gaz/Med, dated 26.05.2008 issued by the Divisional Railway Manager, Bezawada (Respondent No.6 herein);
(iii) speaking orders dated 28.05.2008 on the representation of first applicant dated 15.05.2008 and 13.05.2008 issued by the General Manager, SC Rlys (Respondent No.3 herein).
3. The facts of the case are as follows :
The first and second applicants are husband and wife. The first applicant was appointed to the Indian Railway Medical Services (IRMS for short) as Assistant Divisional Medical Officer during 1978. He was appointed to officiate in Sr. Administrative Grade and was retained in SC Rlys and posted as Chief Medical Superintendent against the existing vacancy. He assumed charge of this post on 10.10.2007. The second applicant was also appointed to the IRM Services as Asst. Divisional Medical Officer and upon getting further promotions, was working as Sr. Medical Superintendent (Gynaecology), Railway Hospital, Vijayawada, in the selection grade at the time of her impugned transfer. Both the applicants were issued with the transfer order dated 12.05.2008. The applicant No.1 submitted two representations dated 13.05.2008 and 15.05.2008 and the applicant No.2 submitted a representation dated 15.05.2008 to the Respondent No.3 with the request to retain them at Vijayawada. Since there was no response and on learning that they will have to relinquish their respective charge as soon as 7th and 8th respondents report at Vijayawada, the applicants filed OA 305/2008 challenging the impugned transfer order to the extent of applicants duly impleading the 7th and 8th Respondents. This Tribunal vide its order dated 21.5.2008 directed the respondents to consider the representations submitted by the applicants and pass appropriate speaking orders, communicating the same within a period of three weeks and to maintain status quo as on the date of the order till the communication of the decision of the respondents to the applicants. After the 1st applicant submitted a copy of the order of the Tribunal to the 3rd, 4th and 5th respondents on 23.05.2008, he received the impugned letter dated 26.05.2008 from the Divisional Railway Manager, Bezawada and the impugned speaking order on his representation dated 13.05.2008 and 15.05.2008. Since the impugned proceedings are prejudicial to the applicants, and issued, according to the applicants, in violation of the instructions and law governing the matter of transfer and the various submissions made by the applicants in the representations have not been taken into account in the impugned speaking order dated 28.05.2008, the applicants have filed the present OA seeking cancellation of the transfer order.
4. When the case was heard on 3.6.2008 by a Single Member Bench, the learned counsel for the applicants contended that even after the specific direction of the Tribunal, the respondents have not properly considered the representations submitted by the applicants. The main grievance of the applicants is that the 1st applicant was transferred when he is on the verge of his retirement on superannuation. Secondly, though the Government of India had issued specific guidelines for transfer of SC/ST employees, the same were not followed in respect of the applicants. Thirdly, the first applicant had applied for sanction of Leave on Average Pay by letter dated 19.5.2008 which was granted by the DRM, Vijayawada, for a period of four days i.e. from 20.5.2008 to 23.5.2008 but the DRM, Bezawada, vide order dated 26.5.2008, claimed to have relieved the first applicant from his duties in the FN of 20.5.2008 without serving the relieving order on first applicant. Sri V. Rajeshwar Rao, learned standing counsel for the respondents, strongly opposed the submission made by the learned counsel for the applicants and contended that no rules or guidelines had been violated and no discrimination was shown against the applicants. Having heard both sides, this Tribunal suspended the impugned transfer order dated 12.05.2008 till the next date of hearing giving an opportunity to the respondents to file a petition for vacation or modification of the order. On 6.6.2008 MA 175/2008 was filed by the respondents seeking vacation of this interim order dated 3.6.2008 which was heard on 9.6.2008. Referring to the order of this Tribunal dated 21.5.2008, the learned counsel for the Respondents submitted that the first applicant had been relieved in the FN of 20.5.2008 itself and the relieving order was served on him in the chambers of DRM, Bezawada by the 6th Respondent himself. But the learned counsel for the applicant disputed this claim. It was decided to post the matter before the Division Bench and to allow the interim orders to continue till then. In the meantime, the respondents have filed a WP No. 12209/2008 in the High Court of Andhra Pradesh seeking a writ against the interim orders of this Tribunal. The Hon'ble High Court dismissed the writ petition with the following observations :-
"We have perused the judgment, but since the matter is pending and posted to 18-06-2008 and as there is no final adjudication as such made by the Tribunal, we are not inclined to entertain the writ petition. The Tribunal has thought it fit to grant interim direction mainly on the ground that respondent No.1 is having one year service only and is going to retire".
5. The applicants have adduced the following grounds for relief :-
(i) The action of the respondents in transferring the applicants who belong to SC Community to a place farther from their native district is illegal, arbitrary and in violation of the existing policy relating to SC employees;
(ii) the action of the respondents in transferring the applicants by way of unreasonable grounds within seven months of the promotion of the first applicant to Sr. Administrative Grade with the retention at Vijayawada ignoring the fact of his retirement within one year is against the orders of the first respondent and also against the principles of natural justice and is in violation of Articles 14, 16 and 21 of the Constitution and
(iii) the transfer of the applicants to an inconvenient station issued without any valid reason amounts to punitive action and suffers from the vice of unreasonableness.
6. The respondents have filed a detailed reply contesting the claims of the applicants. With the permission of the Court, additional reply affidavit was also filed by the 6th Respondent on 9.6.2008. The applicant filed a rejoinder on 18.6.2008.
7. The short issue that arises for consideration is whether the transfer order dated 12.05.2008 is bad in law, arbitrary and violative of Articles 14 and 16 of the Constitution as claimed by the applicants.
8. Both the parties have cited case laws extensively. On a perusal of the judgments cited, it is found that each judgment derives its conclusion from specific facts. But there are certain principles famously known as Wednesbury principles which have been followed consistently over the years to judge the validity of administrative action. The Hon'ble Supreme Court in the case of Om Kumar & Others Vs. Union of India & Others [2001 (2) SCC 386] has drawn attention to these principles as extracted below :-
26. Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant facts were considered; or the decision was once which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility".
Since the principles stipulated by Lord Diplock are covered in the conditions mentioned in the Wednesbury principles, we consider that it will be appropriate, if the case before us is examined in the light of Wednesbury principles. We will therefore proceed to examine and answer the following questions :
(a) whether the impugned transfer order was contrary to law;
(b) whether the relevant factors were not considered;
(c) whether any irrelevant factors were considered and
(d) whether the decision was one which no reasonable person would have taken.
9. (a) Whether the impugned transfer order was contrary to law :
The learned counsel for the applicant has cited the case of P. Venupal Vs. Union of India [2008 (5) SCC 1] to show that the government servant entering into government service does not forgo his fundamental rights but on the other hand because of his status as a person in public employment he acquires additional rights constitutionally protected. In this case, the Apex Court has observed that "the State or the other public authorities are therefore not entitled to make and impose laws governing the service conditions of an employee which manifestly deprive him of the privileges of that status". The learned counsel for the applicant argued that the impugned transfer order, if implemented, would demoralize the applicants and would destroy their personal image. It is admitted that the first applicant, who was Chief Medical Superintendent / Railway Hospital, Bezawada, has been transferred in the same capacity as CMS/Hyderabad. The second applicant, who is Sr. Medical Superintendent / Railway Hospital / Bezawada, has been transferred to Chilkalguda / Hyderabad, which is also part of Hyderabad city. There is no change in their responsibilities and they have been shifted from Vijayawada to Hyderabad, which is the State headquarters with more facilities and better connected to all the places in the country. Though they have all India transfer liability, they have not been transferred to a far-off place in the north-east or to one of the northern or western States and to insignificant positions. They have been retained in their home State. We are not able to agree with the learned counsel for the applicant that this transfer would lower the image of the applicants or reduce their status in any manner. In the case of P. Venugopal Vs. Union of India (supra), one of the issues that came up for consideration was premature termination of a tenure which was done without following the safeguards of justifiable reasons and notice. The post of Chief Medical Superintendent / BZA is not a tenure post; nor is the post of the second applicant. Therefore, we do not find any contravention of statutory orders in this case. It is also seen from the impugned speaking order passed by the General Manager, that the first applicant has been working continuously at Bezawada since June, 1990 i.e. for 18 years. The second applicant has also been working continuously at Vijayawada since 1990. We do not see why they should feel demoralized by the transfer. Shri Devaraj, the learned counsel for the Respondents has cited the observations of Hon'ble Supreme Court in State of UP & Others Vs. Siya Ram & Another [2004 (7) SCC 405] "that no government servant has any legal right to be posted at any particular place. The relevant portion of this judgment is extracted below :
"5. 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."
The learned counsel for the applicant has also referred to the cases of Dr. M. Hari Vs. Union of India & Others [2007(2) SLJ 145 (CAT)] and A.K. Singhal Vs. UOI [2008(2)SLJ 55(CAT)]. In the former case, the Tribunal setting aside the transfer orders, held that the impugned transfer had been made to get rid of the applicant who was inconvenient to the 3rd respondent and the transfer order was passed on irrelevant considerations. In the later case, the Principal Bench of this Tribunal noted that the applicant therein who is a Chief Engineer in CPWD was instrumental in issuing arbitration awards against the Ministry of Urban Development and therefore there was latent intent by way of punitive measure to victimize the applicant which has been established on the face of it. It was noted that despite representation preferred to the Secretary, M/o Urban Development, the same has been withheld without any reasonable basis and no final orders had been issued. On account of these infirmities, the transfer order was set aside. The case before us is not on the same footing as the cases cited by the learned counsel for the applicant. No malafide has been made out against the respondents. Therefore, we do not find any contravention of statutory orders in this case.
10. (b) Whether the relevant factors were not considered :
The learned counsel for the applicant argued that the following relevant factors have not been considered while ordering the transfer of the applicants :
(i) the applicants being SC employees are entitled to be posted nearer to their to their native place in the same station and the transfer of both the applicants is in violation of existing policy relating to SC employees ;
(ii) the first applicant had been promoted to the Sr. Administrative grade only a few months back and he assumed charge of the post of Chief Medical Superintendent (SA Grade), Railway Hospital at Vijayawada on the FN of 10.10.2007. Within seven months, he has been transferred by the impugned order without assigning any reason ignoring the fact that he is retiring within one year;
(iii) both the applicants will have to carry the stigma of their transfer during the rest of their service. Though the first applicant's grade may remain the same, his status will come down drastically. Though he is basically a Surgeon, he is now posted to look after the administrative work at Hyderabad. The second applicant, who is the senior most Gynecologist with 27 years service, is posted to the Health Unit where there is no operation theater / hospital to deal with Obstetrics or Gynaecology work;
(iv) the mother of first applicant is 93 years old and is residing at Nellore. Both the applicants will have to look after her at Nellore. Their continuing at Vijaywada at this juncture is of dire necessity;
(v) the seventh respondent, who is to replace the first applicant has already requested for transfer to Souther Railway which is under the active consideration of the Railway Board. The impugned order has been made without taking this factor into account and with the sole aim of shifting the applicants from Vijayawada.
11. The learned counsel for the applicant cited the following case laws :-
(i) K. Ramchander Vs. The Director General, All India Radio & Others (1994 (2) SLJ (CAT) Ernakulam 89);
(ii) D.R. Sengal Vs. Chief Postmaster General & Others [1991 (15) ATC 36];
(iii)G. Prabhakaran Vs. Divisional Railway Manager, Southern Railway (1995 (29) ATC 45);
(iv)R. Nanoo Vs. Divisional Railway Manager, Trivandrum & Others (1989 (10) ATC 137) in support of his arguments that transferring SC employees to a station away from their native place is not justified. Learned counsel for the Respondents quoting from Master Circular No. 24 regarding the transfer to Non-gazetted Railway Servants, argued that as per para-9.5 of the circular "the employees belonging to SC/ST should be transferred very rarely and for very strong reasons only. Posting of employees belonging to these communities on their initial appointment/promotions/transfers should as far as practicable be confined to their native districts or adjoining districts or places where the Railway Administration can provide the quarters subject to their eligibility". The learned counsel for the Respondents argued further that this circular does not apply to Gazetted Railway Servants much less to Class-I officers who have All India transfer liability. We are unable to accept the argument of Shri Devaraj that since there is no Master Circular with regard to transfer of Gazetted Railway Servants, the instructions regarding the transfer of SC/ST employees would apply only to Non-gazetted Officers. Various courts have examined the Railway Board circular dated 24.11.1985 outlining the transfer policy of SC/ST employees and the circular issued by the M/o Personnel & Training dated 24.6.1985 and set aside transfer orders on the ground that no strong reasons have been given. We find that para-2 of the circular issued by M/o Personnel & Training dated 24.6.1985 reads as follows :-
"2. It has however been pointed out to the department that the SCs and STs officers after appointment are subjected to harassment and discrimination on grounds of their social origin. It has been pointed out that SC/ST officers are sometimes transferred to far-off places and also placed at insignificant position. It has also been stated that these officers are not accepted at their places of postings by the concerned superior officers in some cases".
In the case of the first applicant, it is not as though he had been subjected to frequent transfers in the past. He has been continuously working in Vijayawada for 18 years. It is also not the fact that he has been transferred to a far off place and placed at an insignificant position. The main intention behind the policy as we can make out from the Department of Personnel & Training's circular and that of the Railway Board is to make sure that the Railway Administration provide quarters to the SC/ST employees and that those who are dependent on the persons employed may also be benefited by their presence and enabled to join the mainstream of social fabric. Being one of the senior most officers in the Medical Department and as one who is entitled to quarters wherever he is posted, the first applicant will certainly be entitled to government quarters at Hyderabad. Since he is posted to the State Headquarters, there will be ample opportunities for him to mix with the members of his community and guide the underprivileged sections from his community. Therefore, irrespective of whether the government guidelines apply to Class-I officers or not, we find that, in this case, the transfer is not one that it should be set aside on this score.
12. The learned counsel for the applicant cited the cases of Pushpa Mehta (Smt.)(Dr.) Vs. Rajasthan Civil Services Appellate Tribunal & Others [2000 (001)-CLR-0900-RAJ] and Dr. P.K. Ganguly Vs. Union of India & Others [1998-(003)-SLJCAT-0365, Calcutta] in support of his contention that employees on the verge of retirement should not be subjected to transfer and sufficient time should be given to plan their post retirement life. We have gone through the judgments in both the cases. In the case of Dr.(Mrs.)Pushpa Mehta (supra), the transfer order was set aside because it had been passed only to accommodate the private respondent in that case and there were no administrative reasons to transfer the applicant. In the case of Dr. P.K. Ganguly (supra), the transfer order was held unsustainable for non compliance of the directions of the Tribunal. The case of the applicant before us cannot be compared with the two cases cited above. One of the judgments of the Hon'ble Supreme Court cited in the case of Dr. P.K. Ganguly (supra) is that of Union of India Vs. S.L. Abbas (1993 (2) SC SLJ 371), wherein it was held inter alia that "who should be transferred and where is a matter for the appropriate authority to decide. Unless offer of transfer is vitiated by malafide or is made in violation of the statutory provision, the Court cannot interfere with it. While ordering transfer, there is no doubt that 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 taking regard of the exigency of the administration". In the case before us, it is noted that the first applicant made a representation on 13.5.2008 and 15.5.2008. Speaking orders on the representation have been communicated to the applicant on 28.5.2008. In several cases cited by the learned counsel for the applicants Shri Prasad, the courts have held the view that transfers can be made if they are in public interest. In the case of N.K. Singh Vs. Union of India, cited by Shir Devaraj this point has been elaborated, as follows :-
"9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiation element in the impugned transfer. Accordingly, this aspect requires consideration at the outset".
We will come to the question whether in the case before us, the transfer was avoidable or not a little later. It is not the case of the applicants that their successors are not suitable for the post. The only plea made by the applicants is that the 7th respondent was not keen on joining because she was interested in going on transfer to Southern Railway and the Railway Board was considering her request. Nowhere has applicant No.1 questioned her credentials. Taking all these aspects into account, we are of the view that the first applicant's plea that he should not be transferred when he is on the verge of retirement cannot be sustained.
13. The applicants have claimed that they have been demoralized by the transfer and if the order is implemented, the applicants will be ill placed in the Railway system. They have also stated that it is violative of their rights under Articles 14 & 16 of the Constitution. The learned counsel for the applicant has cited the case of E.P.Royappa Vs. State of Tamil Nadu & Another (AIR 1974 SC 555) to contend that even though the posts to which the applicants have been transferred are of equal status, there is hostile discrimination and no administrative exigency is established when the duties and responsibilities are different. We have gone through the case cited by the learned counsel for the applicant very carefully. The applicant in that case was the Chief Secretary of the State, the head of the State Civil Services, when he was transferred as Dy. Chairman of the State Planning Commission. Later he was transferred and posted as Officer on Special Duty for 'streamlining and rationalizing the structure of Tamil Nadu Sales Tax and similar enactments relating to Commercial Taxes by creating a post in the rank of Chief Secretary to Government. The applicant therein claimed that these transfers were arbitrary and violative of the principles enshrined in Articles 14 & 16 of the Constitution. The Five Member bench of the Hon'ble Supreme Court went into this case at great length. After discussing the meaning and scope of Articles 14 & 16 of the Constitution elaborately, the Hon'ble Apex Court gave its ruling as follows :-
"What has to be seen for equivalence is the status and the nature and responsibility of the duties attached to the two posts. Merely giving the salary of one post to the other does not make for equivalence. We are, therefore, not prepared to accept the thesis that the post of Officer on Special Duty was equal in status and responsibility to the post of Chief Secretary as claimed by the respondents. We entertain serious doubts about it. But equally it is not possible for us to hold it established on the material on record that this post was inferior in status and responsibility to the post of Chief Secretary, though prima facie it does appear to be so. We cannot, therefore, say that the petitioner was arbitrarily or unfairly treated or that equality was denied to him when he was transferred from the post of Chief Secretary and in his place Sabanayagam, his junior, was promoted and confirmed. The challenge based on Arts. 14 and 16 must therefore fail".
As regards the applicant's (Shri E.P. Royappa's) contention that there was malafide exercise of power by the Chief Minister in that case, the Hon'ble Court dismissed this plea with the following observations :-
"These and a few other circumstances do create suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in upholding the plea of mala fides has been placed before us in the present case. We must, therefore, reject this contention of the petitioner as well".
14. When we compare the case of E.P. Royappa, cited by the learned counsel for the applicant, with that of the applicants before us, the contrast cannot be more striking. The first applicant herein is a senior medical officer who was working as Chief Medical Superintendent, Vijayawada, and has been transferred as Chief Medical Superintendent, Hyderabad. It cannot be denied that it is the same post with the same responsibilities at a different station with the better facilities. The second applicant, who is admittedly in a transferable job, has been transferred after a long period of 18 years to another post of equal status and responsibility in another station along with her husband. We do not see how the rights under Articles 14 & 16 of the Constitution are affected when the Hon'ble Apex Court had rejected a much stronger claim in the case of E.P.Royappa.
15. The applicants have taken the plea that the respondents have not taken into account the fact that the mother of the first applicant is 93 years old and is residing at Nellore and Vijayawada is nearer to Nellore than Hyderabad. The second applicant has also, in her representation dated 15.5.2008 mentioned that she has to look after her ailing mother-in-law. We are not impressed by the plea of the applicants in this regard. Nothing prevents the applicant No.1 from keeping his mother with him at Hyderabad where there are excellent medical facilities and the fact that both the applicants are doctors should be an incentive for the old lady to stay with them. We also note that she was not staying with the applicants at Vijayawada. This shows that this plea has been made only as an additional ground for getting the transfer order revoked.
16. The learned counsel for the applicant argued that the 7th respondent who had been posted to replace the first applicant was not interested in joining and therefore this factor should have been taken into consideration by the Respondents. It is not denied by the respondents that the 7th respondent had applied for transfer to Southern Railways. That does not mean that she should not be transferred to any other place till her transfer to Southern Railways comes through. We note that 7th respondent has also filed reply affidavit that immediately on receipt of his transfer order, she had vacated the Railway quarter allotted to her and left Sec'bad to join at Vijayawada and also joined at Vijayawada on 21.5.2008.
17. Whether irrelevant factors have been considered: The only argument that the learned counsel for the applicant made in the course of his submissions was that the learned counsel for the Respondents produced a sealed cover, the contents of which have not been disclosed to the applicant and which apparently had influenced the transfer of the applicants. This brings us to the question whether the transfer was avoidable. The learned counsel for the respondents maintained that it was an administrative transfer, made in public interest. In response to repeated questions from the Bench as to what was the administrative interest involved in the case, he produced a sealed cover and mentioned that it contained confidential information which had a bearing on the transfer. On opening the sealed cover, we found that there had been some complaints of irregularities against both the applicants and their transfer had been under consideration for quite some time. It was not a decision taken suddenly or on an impulse. This Tribunal is not competent to go into the merits of the complaints against the applicants. It is for the hierarchical superiors in administration to make an objective assessment of the situation and take a decision. As pointed out earlier, no malafide has been attributed or made out against the Respondents by the applicants. Once an administrative decision is made and transfer order is given, it is incumbent on the government servant to obey the transfer orders. In this context, it is relevant to recall the observations of the Hon'ble Apex Court in N.K. Singh's case (supra) :
" The tendency of anyone to consider himself indispensable is undemocratic and unhealthy. Assessment of worth must be left to the bonafide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make that decision. Unless the decision is vitiated by malafides or interaction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated".
On the basis of the material placed before us, we do not subscribe to the views of the learned counsel for the applicants that the transfer was arbitrary or avoidable.
18. Was the decision one which no reasonable person would have taken :
The impugned speaking order of the General Manager points out that the second applicant has been working continuously since 1990 in Vijayawada. She has got all her promotions in Vijayawada itself. Due to her long stay in Vijayawada, she was transferred out of Vijayawada to Sec'bad Division. Even in her representation against the transfer, the only plea she has taken is that her husband would be retiring on 31.5.2009 on superannuation and they are planning to settle down at Nellore, which is nearer to Vijayawada. Since she is also a government servant, her plea quoting her husband's case does not merit consideration. Moreover since she has nearly three years of service left, her plea that she will settle down in Nellore after her husband's superannuation does not make sense. The Respondents have also justified the transfer on the ground that since the second applicant has been transferred due to her long stay at one place, her husband has also been transferred along with her and posted as Chief Medical Superintendent, Hyderabad, in accordance with the policy of Railways that both husband and wife should be posted at the same station to the extent possible. Learned counsel for the applicant has taken the plea that the transfer is not as innocuous as has been made out. He has also argued strongly that the respondents should have come out with the real reasons for transferring the first applicant. Here, one must appreciate that it is not always possible for the administrators to disclose all the reasons for a transfer. When a transfer is made on administrative grounds, it may be due to one or more reasons. In the present case, it is noted that there have been complaints against both the applicants and the authorities though it fit to transfer both of them to another place with the same status and with better facilities. There might have been several imponderables requiring formation of this subjective opinion. This cannot be termed as arbitrary or illegal. When a complaint is made against an individual, it is not always possible to disclose the nature of complaint since it would otherwise affect the investigation. Very often administrators take recourse to transfer of the persons complained against, pending investigations. It may not be justified in all cases but it is the price one has to pay for being in government service. In the case of P.Pushpakaran Vs. The Chairman, Coir Board, Cochin & Another ( 1979(1) SLR 309), the Kerala High Court said "It cannot be disputed that an employer has a right to transfer his employee. An employee accepts employment fully knowing that he is liable to transfer from place to place for administrative reasons. This is one of the conditions of service. No employee can demur or cavil at an order of transfer. It is only when an order of transfer is made otherwise than in public interest or for no administrative reasons and in the circumstances amounting to punishment or with mala fide intentions, that the transfer order gets exposed to challenge". In the case before us, the second applicant has no grounds at all to question her transfer. In the case of the first applicant, he has taken the plea that he is on the verge of retirement and this point has been dismissed earlier. It has not been established in this case that the dominant motive of the respondents was to punish the applicants nor has it been established that this transfer has been used as a tool to settle scores. Therefore, we come to the conclusion that the decision in respect of this transfer is one which any reasonable person would have taken, given the same set of circumstances.
19. In the course of the hearing, there were a lot of arguments about the date of relief of applicant No.1 from the post of Chief Medical Superintendent, BZA, the reasons given by the applicants for going on leave, etc., we do not want to go into these dates, because they are not relevant to the main issues.
20. In the light of the foregoing discussion, we are of the view that the impugned transfer order is not contrary to law, that all the relevant factors were considered, irrelevant factors were not considered and the decision was one which any reasonable person would have taken. We therefore come to the conclusion that this case does not warrant interference of this Tribunal.
21. In the case of N.K. Singh (supra) who was an IPS Officer, the Hon'ble Supreme Court made certain observations which are equally applicable to all senior officers holding responsible administrative posts, including the applicant No.1 herein :
"24. The private rights of the appellant being unaffected by the transfer, he would have been well advised to leave the matter to those in public life who felt aggrieved by his transfer to fight their own battle in the forum available to them. The appellant belongs to a disciplined force and as a senior officer would be making several transfers himself. Quite likely many of his men, like him, may be genuinely aggrieved by their transfers. If even a few of them follow his example and challenge the transfer in courts, the appellant would be spending his time defending his actions instead of doing the work for which he holds the office. Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill-advised".
22. In the result, the OA is dismissed as devoid of merits. MA is also disposed of by vacating the interim order. Parties to bear their own costs.
(R.SANTHANAM) (BHARATI RAY)
Member (Admn) Member (Judl)