Delhi High Court
Udai Vir Singh Rathi (Acp) vs Union Of India & Ors. on 3 June, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 2nd June, 2011
Date of decision: 3rd June, 2011
+ W.P.(C) No.2435/2011
Udai Vir Singh Rathi (ACP) ... Petitioner
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Arun Bhardwaj, Advocate.
Versus
Union of India & Ors. ... Respondents
Through: Mr. Gaurang Kanth, Advocate for
Respondent No.1/UOI.
Mr. Nirbhay Sharma, Advocate for
Mr. Anjum Javed, Advocate for
Respondent No.3/Delhi Police
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
The present writ petition has been preferred under Articles 226 and
227 of the Constitution of India assailing the legal pregnability of the order
dated 11.3.2011 in OA No.2785/2010 passed by the Central
Administrative Tribunal, Principal Bench (for short „the tribunal‟) whereby
the tribunal has declined to interfere with the order of transfer dated
W.P.(C) No.2435/2011 Page 1 of 10
18.8.2010 transferring the petitioner - applicant from Delhi to Andaman
and Nicobar Islands on the basis of a request made by the Chief Secretary
of the said Administration. The petitioner, as is manifest, had assailed the
order of transfer initially in OA No.2451/2010 before the tribunal which
was disposed of on 30.7.2010 requiring him to make a representation. The
representation was rejected vide order dated 18.8.2010 and the order of
transfer was reiterated. It was contended before the tribunal that the
petitioner has an impeccable record and many laurels to his credit and had
functioned extremely well in many sensitive posts in Delhi Police and,
therefore, there was no justification to transfer him to Andaman & Nicobar
Islands. It was also urged that the vacancies of ACP levels exist at both
Delhi and its outlying segments and, hence, he should not have been
transferred. It was also urged that he is going to retire on 31.12.2013 and,
therefore, there was no warrant to send him to the said place. Apart from
that various other personal difficulties were highlighted.
2. The tribunal placing reliance on the decisions of the Apex Court
rendered in Mysore Paper Mills Ltd., Bangalore v. Mysore Paper Mills
Officer Association, Bhadravati and another, 1999 6 SLR 77, B.
Varadha Rao v. State of Karnataka, AIR 1986 SC 1955, Shilpi Bose v.
State of Bihar, AIR 1991 SC 532, Union of India v. S.L. Abbas, AIR
W.P.(C) No.2435/2011 Page 2 of 10
1993 SC 2444 and Airport Authority of India v. Rajeev Ratan Pandey, JT
2009 (10) SC 472, Rajendra Singh v. State of UP and others, 2010 1
SLR 632 and Masood Ahmad v. State of U.P., 2007 STPL (LE) 39042
SC came to hold as follows:
"27. Further, a close and careful analysis of the order
dated 18.8.2010, I find the Respondents have
considered the grounds taken by the Applicant in his
representation appropriately to arrive at the conclusion
of rejecting the same. Respondents have to balance
the public interest and administrative exigencies on
the one hand and the personal and family problems the
Applicant has posed due to his transfer on the other
hand. They find that institutional need is of
paramount importance over the family compulsions of
the Applicant. I am in full agreement with the views
of the Respondents. The order dated 18.8.2010 is a
speaking and reasoned one and by no stretch of
imagination the same can be termed as non-
application of mind.
28. Applicant has taken the route of family
problems to buttress his claim to stay at Delhi. This is
unfortunate on the part of the Applicant to bring in his
family problem like (i) daughter‟s estranged married
life along with associated litigations; and (ii) brother‟s
criminal appeal in a murder case before the Hon‟ble
Supreme Court. Though, learned counsel for the
Applicant dwelt on these two family issues of the
Applicant in the most part of his arguments and even
voluminous documents on both issues have been
annexed to the OA to impress that Applicant‟s
presence at Delhi is absolutely necessity, I take note of
para 10 of the impugned order and find that the
Respondents have properly addressed those issues and
rejected the Applicant‟s request. It is noted that every
Government employee will have some family /
domestic / personal problems to cling on to one place
W.P.(C) No.2435/2011 Page 3 of 10
but the administrative exigencies and public interest
are more important for the executives to decide on the
transfer. In the present case, in the order passed in
OA No.2451/2010 Applicant‟s family problems were
posed before the Respondents to consider in this case.
They did consider and rejected the Applicant‟s such
plea. I do not find any infirmity in the said decision
conveyed to him vide order dated 18.8.2010."
3. Being of this view, the tribunal dismissed the original application. It
is worth nothing this Court on 26.5.2011 had passed the following order:
"Learned counsel for the respondent shall obtain
instructions whether the petitioner can be
accommodated at Delhi or some other place.
Call on 2nd June, 2011."
4. In pursuance of the aforesaid order Mr. Gaurang Kanth, leanred
counsel for the Union of India has produced a communication sent to him
which we think it appropriate to reproduce:
"I am directed to refer to your letter No.
K&A/UOI/SG/26/05/11/2375 dated 26.5.2011 and to
say that DANIPS officers can be posted in either of
these Union Territories - Delhi, Andaman & Nicobar
Islands, Lakshadweep, Daman & Diu and Dadra &
Nagar Haveli. However, DANIPS officers cannot be
posted in other adjoining States or Union Territories.
2. It is further informed that the Chief Secretary,
Andaman & Nicobar Island Administration vide his
letter dated 22nd June, 2010 requested for the posting
of 6 more Dy. SP/ACP level officers against vacant
posts, including posts of 4 Dy. SP/ACP created for
Traffic, Security and Immigration offices.
Subsequently, vide order dated 18.8.2010, the
W.P.(C) No.2435/2011 Page 4 of 10
petitioner was transferred to the Andaman and
Nicobar Island. These facts are already incorporated
in the reply affidavit filed on behalf of the Ministry."
5. We have heard Mr. Sandeep Sethi, learned senior counsel along with
Mr. Arun Bhardwaj, learned counsel for the petitioner, Mr. Gaurang
Kanth, learned counsel for the respondent no.1 - Union of India and Mr.
Nirbhay Sharma, learned counsel for Mr.Anjum Javed, learned counsel for
the respondent no.3 - Delhi Police
6. On a perusal of the pleadings before the tribunal and the delineation
of the issue by the tribunal, it is manifest nothing was put forth that the
order of transfer was violative of any statutory mandatory rule or is
malafide. In the case of Shilpi Bose (supra), it has been held as follows:
"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
W.P.(C) No.2435/2011 Page 5 of 10
administration which would not be conducive to
public interest."
7. In National Hydroelectric Power Corporation Ltd. v. Shri
Bhagwan, (2001) 8 SCC 574, it has been held thus:
"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 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."
8. In State of U.P. v. Siya Ram, (2004) 7 SCC 405, a two-Judge Bench
of the Apex Court has opined that unless an order of transfer is shown to
be malafide or is in violation of statutory provisions it is not open to
interference by court.
9. In State of U.P v. Gobardhan Lal, (2004) 11 SCC 402, their
Lordships opined that transfer is prerogative of the authorities concerned
and court should not normally interfere therewith, except when an order of
W.P.(C) No.2435/2011 Page 6 of 10
transfer is shown to be vitiated by malafides, or is in violation of any
statutory provision, or has been passed by an authority not competent to
pass such an order.
10. In Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey,
(2004) 12 SCC 299, it has been held thus:
"Transfer which is an incidence of service is not to be
interfered with by courts unless it is shown to be
clearly arbitrary or visited by mala fide or infraction
of any prescribed norms of principles governing the
transfer [see Abani Kanta Ray v. State of Orissa, 1995
Supp (4) SCC 169]. Unless the order of transfer is
visited by mala fide or is made in violation of
operative guidelines, the court cannot interfere with it
(see Union of India v. S.L. Abbas, AIR 1993 SC 2444).
Who should be transferred and posted where is a
matter for the administrative authority to decide.
Unless the order of transfer is vitiated by mala fides or
is made in violation of any operative guidelines or
rules the courts should not ordinarily interfere with it."
11. In Tushar D. Bhatt v. State of Gujarat, (2009) 11 SCC 678 it has
been ruled that transfer of an employee is an incidence of service and is
made due to exigencies of service and the court would not interfere
particularly unless when no malafides are shown.
12. In view of the aforesaid enunciation of law, we are of the considered
opinion that the order of transfer cannot be lanceted by exercise of judicial
review. It is obligatory on the part of the petitioner to join at the place of
W.P.(C) No.2435/2011 Page 7 of 10
transfer. In this context, we may profitably reproduce a passage from
Gujarat Electricity Board v. Atmaram Sungomal Poshani, (1989) 2 SCC
602, it has been held thus:
"4. ...Transfer from one place to other is necessary
in public interest and efficiency in the public
administration. Whenever, a public servant is
transferred he must comply with the order but if there
be any genuine difficulty in proceeding on transfer it
is open to him to make representation to the
competent authority for stay, modification or
cancellation of the transfer order. If the order of
transfer is not stayed, modified or cancelled the public
servant concerned must carry out the order of transfer.
In the absence of any stay of the transfer order a
public servant has no justification to avoid or evade
the transfer order merely on the ground of having
made a representation, or on the ground of his
difficulty in moving from one place to the other. If he
fails to proceed on transfer in compliance with the
transfer order, he would expose himself to disciplinary
action under the relevant rules, as has happened in the
instant case. The respondent lost his service as he
refused to comply with the order of his transfer from
one place to the other."
13. Similar principle was reiterated in Mithilesh Singh v. Union of
India, (2003) 3 SCC 309.
14. In this regard, we may also refer with profit to the decision in (2009)
3 SCC 124 wherein it has been held thus:
W.P.(C) No.2435/2011 Page 8 of 10
"34. There cannot be any doubt whatsoever that
ordinarily an employee who has been transferred
should, subject to just exceptions, joint at his
transferred place. Ordinarily in an industrial
undertaking indiscipline should not be encouraged.
This Court in SBI v. Anjan Sanyal, (2001) 5 SCC 508
observed that the conduct of an employee in a transfer
case is material as he cannot get a premium for his
disobedience. There are, however, certain exceptional
situations in this case. Admittedly the respondents
were challenging the right of the employer to order
transfer of the employee particularly when they hold
some posts in the association. The dispute was sub
judice. They were in their late fiftees. They had
served the company for a period of more than 25
years. It is true that they did not joint at their
transferred posts within a reasonable time. It may also
in an ordinary situation be held that seven months is
too long a period to joint at the transferred place.
There cannot furthermore be any doubt that the
transfer is an incidence of service. Unless an order of
transfer is passed contrary to the provisions of the
statutory rule or settlement, the same should not be
interfered with."
15. We have referred to the aforesaid decisions as the petitioner, despite
the order of transfer, has been knocking at the doors of the court without
success and not joining at the transferred place is under the legal obligation
to join at the transfer place. Regard being had to the plight that has been
put forth by the petitioner, we are inclined to extend the period of joining
till 30.6.2011. When we have extended the period, it would only mean that
no disciplinary action shall be initiated against him because of late joining.
That apart, we have not expressed any opinion with regard to his salary
W.P.(C) No.2435/2011 Page 9 of 10
component or any other aspect.
16. With the aforesaid observations, the writ petition stands dismissed
leaving the parties to bear their respective costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
JUNE 3, 2011 dk W.P.(C) No.2435/2011 Page 10 of 10