Central Administrative Tribunal - Hyderabad
M Hedayatullah Warsi vs Employees Providend Fund Organisation ... on 28 June, 2023
OA No.21/00303/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA No.21/00303/2023
Reserved on: 21.06.2023
Pronounced on: 28.06.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
Hon'ble Mr. B. Anand, Administrative Member
M. Hedayatullah Warsi, S/o. late Dr. M. Sanaullah Warsi,
Aged about 52 years,
Occ: Regional Provident Fund Commissioner-I (Group A)
In the O/o. Regional Office, Employees‟ Provident Fund Organization,
Madhapur, Hyderabad, Bhavishya Nidhi, Barkatpura, Hyderabad,
R/o. Flat No. 406, May Flower Apartments,
Mayur Marg, Begumpet, Hyderabad.
...Applicant
(By Advocate: Mr. G. Vidya Sagar, Learned Senior Advocate for
Mr. K. Siva Reddy)
Vs.
Union of India, Rep. by
1. The Secretary,
Ministry of Labour & Employment,
Government of India,
Shram Sakti Bhavan, New Delhi.
2. The Central Provident Fund Commissioner,
Employees Provident Fund Organization,
Ministry of Labour and Employment,
Bhavishya Nidhi Bhavan, 14, Bhikaji Cama Place,
New Delhi - 110 066.
3. The Additional Central Provident Fund Commissioner,
(Telangana), NAC Campus, Kothaguda,
Cyberabad, Hyderabad.
4. Smt. Vaishali Dayal,
Additional Central Provident Fund Commissioner,
(Telangana), NAC Campus, Kothaguda, Cyberabad, Hyderabad.
5. Shri Saurabh Jagati,
Regional Provident Fund Commissioner-I, Head Quarters,
Employees Provident Fund Organization,
Ministry of Labour and Employment, Bhavishya Nidhi Bhavan,
14, Bhikaji Cama Place, New Delhi - 110 066.
....Respondents
(By Advocate: Mr. G. Praveen Kumar, Dy. Solicitor General of India for
Mr. G. Venkateswarlu, SC for EPFO)
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OA No.21/00303/2023
ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The OA is filed seeking the following relief:
i) For the reasons stated above and in the interest of Justice, it is prayed that the Hon'ble Tribunal may be pleased to call for records pertaining to order passed by the respondent 1 vide proceedings No. HRM-
II-/T-1(1)2023/832 dt. 11.05.2023 and relieving order passed vide proceedings No. 32/2023 dt. 12.05.2023 by the respondent No.3 wherein the applicant was transferred without completion of tenure and in violation of the transfer policy and as a punitive measure and not on administrative reasons though mentioned in the impugned order and relieving order while the applicant is on sick leave and declare the action of the respondents as arbitrary, illegal, and violative of Articles 14 and 16 of the Constitution of India and contrary to law laid down by the Hon'ble Apex Court and set aside the same;
ii) Consequently, the respondents may be directed to continue the applicant to work as Regional Provident Fund Commissioner-I, Hyderabad, Madhapur with all consequential benefits;
2. Facts of the case are that the applicant is a directly recruited Assistant Provident Fund Commissioner of 1998 batch and he joined the service on 12.02.1999. He worked in the Sub Regional Offices, Pune, Nashik, Bangalore, Nizamabad, Warangal, Aurangabad and he was finally posted to the present office from July 2021. His duties include not only the administrative functions, but also quasi-judicial functions under the Employees‟ Provident Fund Act, 1952 and the Rules made thereunder. It is submitted by the applicant that, the 3rd respondent, who is arrayed as 4th respondent in individual capacity, developed ill-feeling towards him in the context of securing a placement to her daughter and as a result, she made a false complaints against him to the Vigilance Wing. Even the Vigilance Wing also issued a questionnaire regarding his quasi-judicial functions and the same was suitably replied by him. Thereupon, neither the respondents nor the Vigilance Wing took any action on the same. Thereafter, based on the false complaints given by the 4th respondent, the 1st respondent passed Page 2 of 18 OA No.21/00303/2023 the impugned order dt. 11.05.2023, transferring him from Hyderabad to Zonal Office, Thane even before completion of his tenure, which is not only contrary to the transfer policy, but also punitive in nature and the same is liable to be set aside in terms of the judgment of the Hon‟ble Apex Court in Somesh Tiwari v. Union of India, [2009(2) SCC 592].
3. It is contended by the applicant that the stance of the respondents that the impugned transfer is on administrative grounds is incorrect and on the contrary, it is nothing but colourable exercise of power and on his transfer, the 5th respondent has been posted in his place. The 2nd respondent issued Transfer Policy on 24.02.2022, as per which, tenure means three years of continuous posting in a particular post, after which, a Commissioner shall be liable for transfer and the said period shall count from the date of joining, and not from the date of the order and the three years period should be over by the 1st April of financial year and reckoning from the date of his joining on 08.07.2021, his tenure will be completed on 1st April 2025. Clause 5 of the said Policy deals with Annual General Transfer (AGT) and the respondents are under obligation to publish the vacancies of posts and seek options from the concerned employees before issuing the transfer orders. In fact, 2nd respondent circulated the vacancies and since he has not completed his tenure, vacancy position at Hyderabad is shown as „Nil‟. He also pointed out certain other instances like, though nil vacancy is shown in Faridabad, one employee was transferred to that place; two employees were posted to Mumbai against vacancy position of one.
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4. It is further submitted by the applicant that his daughter is studying Graduation at Hyderabad and her final semester exams would be during the period from June 2023 - July 2023 and his son is studying in VIII at Hyderabad and their studies would be affected due to the impugned transfer. He also submits that his wife is also suffering from certain ailments and taking treatment at Hyderabad. He was also attacked with viral fever and he was advised to take rest and when he was on sick leave, the respondent No.3/Respondent No.4 passed relieving orders on 12.05.2023, with a mala fide intention. He further contended that, he has also not been communicated with the recommendations of the Committee. Thus, transferring him before completion of his tenure is arbitrary and contrary to the instructions and the impugned transfer amounts to punishment and the same is not sustainable under law.
5. This Tribunal, at the time of admission, passed an interim order on 17.05.2023 suspending the impugned transfer order dt. 11.05.2023 in so far as the applicant is concerned.
6. The applicant filed MA 223/2023 stating that pursuant to the above interim order, he joined duty on 18.05.2023 and on the very same day, the respondent No.3 passed an order directing the applicant to hand over charge to Dr. Hemant R. Tirpude, Regional Provident Fund Commissioner-I, Regional Office, Kukatpally as an additional charge and the applicant was allotted unimportant work, which is contrary to the interim order of this Tribunal. Earlier, the 1st respondent issued order dt.06.07.2021 posting the Page 4 of 18 OA No.21/00303/2023 applicant to work in Regional Officer (Hyd) Madhapur and now, the 3 rd respondent issued order dt. 18.5.2023 directing the applicant to work in Accounts, which is contrary to the order of the 1 st respondent. The 3rd respondent is neither a disciplinary authority nor appointing authority for the cadre of Commissioners and therefore, the order dt. 18.05.2023 passed by the 3rd respondent is per se illegal. The applicant also complained to the 2nd respondent about the above acts done by the 3rd respondent and the same is pending. The applicant further submits that as per Para 3.1 of the transfer policy, the competent authority to effect any premature transfer is the Chairman, Central Board i.e. the Union Minister of Labour and Employment and no such approval was obtained by the respondents in his case. Therefore, the applicant sought a prayer to suspend the order dt. 18.05.2023 and to direct the respondent No.3 to implement the interim order dt. 17.05.2023 and allow him to perform his duties done by him prior to the transfer order dt. 11.05.2023.
7. The respondents 1 to 3 filed counter in the MA 223/2023, wherein it is stated that though the transfer was premature, it was made on administrative grounds since the name of the applicant was included in the Agreed list, but it is not a punitive transfer. The applicant was transferred to a non-sensitive post on the recommendations of Commissioners‟ Transfer Committee (CTC) and they filed minutes of the meeting in support of the same. It is stated that there is no violation of transfer guidelines. Respondent No.3 has no role either in the preparation of Agreed List or in the process of recommending transfer and the respondent No.3, being the Page 5 of 18 OA No.21/00303/2023 controlling officer and Addl. Central PF Commissioner, assigned specific work to the applicant in the same office vide order dt. 18.05.2023 and it is not a transfer order. The contention of the applicant that Respondent No.3 is not competent to allot the work to the applicant or any other RPFC-I level officer within her jurisdiction is patently wrong and lacks merit. The respondents referred to an Office Order dt. 17.06.2021 issued by the Respondent No.3 regarding work allocation/ link arrangement of various officers of the Zone, including RPFC-I level officers, and the same is still in force and being followed by all concerned, including the applicant. They also referred to several other orders changing the work allocation. They further stated that the order of this Tribunal has been fully complied with and the applicant is allowed to work in the same office i.e. Regional Office, Hyderabad - II, Madhapur, where he was working prior to the transfer order, but, as his name is in the Agreed List, he is not given sensitive assignment. It is stated that the applicant did not allow the officer, who was given the interim charge, to function in his place and thus, disobeyed the directions from the higher authorities.
8. It is further submitted by the respondents that change of assignment from sensitive to non-sensitive post is a routine administrative exercise done by the controlling officers of the respective cadres. In the past, the applicant himself changed the work allocation of one official from sensitive to non-sensitive in the Regional Office, Madhapur and as such, the applicant, knowing fully well about the same, is trying to mislead this Tribunal. As per Para 3.1 of the transfer policy, for premature transfer, the Page 6 of 18 OA No.21/00303/2023 Chairman, Central Board i.e. the Union Minister of Labour and Employment is the competent authority and the impugned order has been issued with the approval of the competent authority. It is settled position that transfer is an incident of service and the Government/ Employer is the best judge as to how to distribute and utilize the services of its employees. In the instant case, the said power has been exercised in public interest.
9. Respondents 1 to 3 filed a counter affidavit to the main OA, wherein they have stated, inter alia, that based on the recommendations of the CVO, Central PF Commissioner notified sensitive posts vide letter dt. 14.06.2022, which includes the post of Regional Head/ OIC in the Regional Office. As per the CVC instructions on the subject, the officers placed in the „Agreed List‟ should not be posted in sensitive posts. It is further stated that, an elaborate transfer policy has been framed, which was circulated vide HO letter dt. 30.03.2022, as amended on 30.05.2022 and all transfers and postings in the Annual General Transfer (AGT) for Commissioners are done by the Competent Authority on the recommendation of the Commissioners‟ Transfer Committee (CTC). The competent authority is the Chairman, Central Board i.e. the Union Minister of Labour and Employment for all cases of transfers including pre-mature transfers, relaxation, deviation from norms, compassionate ground, appeals, etc. The applicant, while working as Officer-in-Charge, Regional Officer, Hyderabad-II (Madhapur) from 08.07.2021, has been placed in the "Agreed List" by the competent authority vide order dt. 24.03.2023. Therefore, he has been transferred vide impugned order to Zonal Office-Thane, which is a non-sensitive post, with the approval of the competent authority and on the Page 7 of 18 OA No.21/00303/2023 recommendations of Commissioner‟s Transfer Committee. Having received the relieving order dt.12.05.2023, the applicant, instead of complying with the same, sent an email dt. 12.05.2023 at around 6 pm for sanction of leave from 10.05.2023 to 17.05.2023 and the same was permitted in view of the interim order of this Tribunal.
10. It is further submitted by the respondents that the applicant, being a Group „A‟ officer, has all India transfer liability. He is a habitual late attendee in official meetings and sometimes absents himself from the office duties unauthorizedly, adversely affecting the working of the office. He resorts to deliberate insubordination and refuses to follow the instructions of EPFO. Vacancy position for the AGT 2023 was published on 24.01.2023 and the published vacancy position does not include vacancies arising out of transfer on administrative grounds, as it cannot be predicted. The applicant without making any representation to the higher authorities in the administrative channels provided under the norms of transfer policy, has straightaway, approached this Tribunal. The recommendations of the CTC are not supposed to be communicated to the applicant and therefore, there is no of violation of principles of natural justice, as contended by him. The respondents stated that continuing an officer with doubtful integrity in sensitive post is contrary to the CVC guidelines and also against the public interest and, therefore, it is mandatory to transfer the applicant from sensitive post. The respondents also state that the applicant resorts to use of his official power in discharge of his duties for his illegitimate works. The respondents, thus, prayed to vacate the interim order dt. 17.05.2023 and dismiss the OA.
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11. The respondents also filed separate MA seeking vacation of the interim order dt. 17.05.2023 with the similar averments, as referred to above.
12. The applicant filed rejoinder stating that the impugned order shows that he was transferred on administrative grounds, whereas, in the pleadings, the respondents have tried to improve their case stating that he has been transferred since his name is in the "Agreed List", which is not permissible as per judgment of the Hon‟ble Supreme Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, (1978) 1 SCC
405. The applicant denied the averments of the respondents regarding his habitual late attendance in official meetings and deliberate insubordination vis-à-vis the EPFO instructions and further added that, if that be true, the respondents could have taken action against him. As per the transfer policy, premature transfer shall be done by the competent authority for good and sufficient reasons to be recorded in writing and uploaded in HRSoft, but the same has not been done. Regarding the biometric device attendance filed by the respondents, it is stated by the applicant that the same reveals both morning/ entry and evening/ exit attendance and the devices are often very slow and inaccurate. He has been issued with questionnaire by the Vigilance Dept regarding his quasi-judicial functions of assessment orders under Section 7A of the Act and he replied to the same. He submitted that the Hon‟ble Bombay High Curt vide its judgment in Criminal WP No.2637 of 2010 dt. 02.05.2012 held that Commissioner passing order under Section 7A is a quasi-judicial function and he has protection and accordingly, set aside the FIR filed by the CBI.
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13. Heard learned counsel for both sides at length and perused the elaborate pleadings as well as the judgments cited by both sides.
14. The main issue that arises for adjudication is whether the impugned transfer of the applicant is sustainable under law.
15. Learned Senior Counsel appearing for the applicant argued that the impugned transfer is punitive in nature and the same is not permissible as per the law laid down by the Hon‟ble Apex Court in Somesh Tiwari (supra). Learned Senior Counsel further argued that, as seen from the averments of the respondents, on one hand, the transfer of the applicant is shown to be on administrative grounds, on the other hand, it is said to have been effected since the name of the applicant is included in the „Agreed List‟ for the year 2023. Further, there is protection under law for the quasi- judicial functions performed by the applicant in discharge of his duties. The respondents have violated the transfer policy as the applicant has been transferred before completion of his tenure. Learned counsel for the applicant cited the following judgements in support of his case:
i) Judgment of Hon‟ble Supreme Court in Somesh Kumar v. Union of India & ors, in CA No. 7308 of 2008
ii) Judgment of the Hon‟ble High Court of Andhra Pradesh at Amaravati in WP No. 23195 of 2020
iii) Judgement of the Hon‟ble High Court of Judicature at Bombay in Criminal Writ Petition No. 2637 of 2010.Page 10 of 18
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16. On the contrary, learned Deputy Solicitor General of India appearing for the respondents submitted that the applicant has been placed under Agreed List for the year 2023 by following the due procedure and as per the CVC guidelines on the subject, an officer in the „Agreed List‟ should not be posted in a sensitive post and thus, the transfer of the applicant is not punitive, but due to the above reasons and it is done with the approval of the competent authority on the recommendations of the CTC. It is further argued that it is not mandatory for the tenure to complete for transfer on administrative grounds and there is no change of service conditions to the prejudice of the applicant by virtue of the impugned transfer. Learned counsel further argued that the applicant has all India transfer liability and the role of the Hon‟ble Courts/ Tribunals is limited in the matters of transfer. Learned Counsel appearing for the respondents cited the following judgments in support of his claim that transfer is an incident of service and an employee has no right to choose a place of posting, etc.:
i) Shilpi Bose v. State of Bihar (1991) Supp (2) SCC 659;
ii) Union of India & Ors v. S.L. Abbas - (1993) 4 SCC 357;
iii) Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey & ors, 2004 (12) SCC 299;
iv) Airports Authority of India v. Rajeev Ratan Pandey (2009) 8 SCC 337.
17. On careful consideration of the pleadings on record and the oral arguments, it is seen that the applicant has been working in the present post as Officer-in-Charge, Regional Officer, Hyderabad-II (Madhapur), which is Page 11 of 18 OA No.21/00303/2023 classified as sensitive post, from 08.07.2021 and while so, his name has been included in the Agreed List for the year 2023 with the approval of the competent authority vide EPFO, Vigilance Division letter dt. 24.03.2023. Therefore, the competent authority transferred the applicant to the Zonal Office, Thane, which is a non-sensitive post through the impugned order dt.11.05.2023. As seen from the impugned order, the transfer of the applicant has been effected along with many other officers, on the basis of recommendations of the Commissioners Transfer Committee and with the approval of the competent authority. We have also seen the list of Sensitive posts, declared on the recommendations of CVO vide EPFO, Head Office, New Delhi Circular dt. 14.06.2022, which includes the post of Regional Office (Regional Head/ OIC), held by the applicant prior to his transfer. The above Circular was further reiterated vide EPFO, Head Office Letter dt. 06.10.2022, directing that all the offices should strictly adhere to the guidelines and any posting in sensitive posts should be done accordingly. CVC, New Delhi guidelines dt.18.08.1999, on the subject of „Measures for strengthening vigilance and anti-corruption work‟, filed by the respondents, clearly direct not to post the officers in the "Agreed list" in sensitive positions. The minutes of the CTC meeting dated 10.05.2023 clearly show that the Committee considered several principles while recommending the officers for transfers and one among them is, for posting of officers as per CVC guidelines regarding non-sensitive assignments. The Committee, after considering the several material placed before it including the Transfer Policy of Commissioner Cadre circulated vide HO Circulated dt.30.03.2022 and the subsequent amendments dt. 30.05.2022, recommended for transfer of the applicant from sensitive to non-sensitive under the category of Page 12 of 18 OA No.21/00303/2023 „Officers in ODI/Agreed List whose tenure is not completed‟. The Committee also considered transfers of several other officers under different categories. Based on the recommendations of the CTC, the impugned transfer order was issued on 11.05.2023, with the approval of the Competent Authority, transferring ten other officers apart from the applicant. Thus, the applicant was transferred from sensitive to non- sensitive post before completion of tenure by the competent authority. Even according to the applicant, as per Para 3.1 of the transfer policy, the competent authority to effect any premature transfer is the Chairman, Central Board i.e. the Union Minister of Labour and Employment and the respondents emphatically stated that the transfer of the applicant has been ordered on administrative grounds with the approval of the said competent authority.
18. We have also seen from the material filed by the respondents that the applicant was given additional charge in the past vide Office Order dt. 17.01.2022. The respondents also filed material to show that the applicant himself passed orders in the past allotting additional tasks to some officers and also changing the distribution of work between the officers.
19. In Somesh Tiwari cited on behalf of the applicant, it has been observed by the Hon‟ble Apex Court as under:
"19. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law.Page 13 of 18
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20. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
On the question of proving mala fide, the Hon‟ble Supreme Court observed as under in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and Others [(2005) 7 SCC 764], a Three-Judge Bench of this Court opined:
"It is well settled that the burden of proving mala fide is on the person making the allegations and the burden is "very heavy". (vide E.P. Royappa v. State of T.N. [(1974) 4 SCC 3]) There is every presumption in favour of the administration that the power has been exercised bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. As Krishna Iyer, J. stated in Gulam Mustafa & Others v. State of Maharashtra & Others (1976) 1 SCC 800; "It (Mala fide) is the last refuge of a losing litigant".
In the instant case, no mala fide on the part of the authorities is proved and the impugned transfer is not in lieu of punishment, inasmuch as the transfer would not result in change of any service conditions of the applicant. Further, it has been held that where the pay, position and seniority were not affected, the transfer order would not be punitive [Registrar General, High Court of Judicature at Madras v. R. Perachi, AIR 2012 SC 232]. Therefore, having regard to the facts of the instant case, the judgment of the Hon‟ble Supreme Court in Somesh Tiwari v. Union of India, [2009(2) SCC 592], cited by the applicant, is distinguishable.
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OA No.21/00303/2023 The other judgment of the Hon‟ble High Court of Judicature at Bombay in Criminal Writ Petition No. 2637/2010, cited by the applicant, decided the question as to whether the Regional Provident Fund Commissioner while passing orders under Section 7A is a Judge within the definition under Section 19 of the IPC & Section 2 of the Judgments (Protection) Act, 1985, in the affirmative. As the issue being adjudicated in the instant case is the transfer of the applicant, the above judgment is also distinguishable.
In the judgment Hon‟ble High Court of Andhra Pradesh at Amaravati in Writ Petition No. 23195 of 2020, the transfer of the petitioner therein was held to be punitive in nature in the facts and circumstances of the case, wherein in the given facts of the instant case, it is not established that the transfer of the applicant is punitive in nature. Therefore, the said judgment is not of any assistance to the applicant.
20. It is settled law that transfer is an incident of service and a Government Servant has no vested right to remain posted at a place of his choice and he is liable to be transferred from one place to the other. In this context, we have gone through the judgments cited by the respondents.
In Shilpi Bose v. State of Bihar, 1991 Sup (2) SCC 659, it has been held as under:
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate Page 15 of 18 OA No.21/00303/2023 any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
In Union of India & ors v. SL Abbas, (1993) 4 SCC 357, it has been held as under:
"An order of transfer is an incident of Government Service. 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."
Similar view was taken in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey & ors, 2004 (12) SCC 299.
In a later judgment in Rajendra Singh vs State of U.P. & Ors, (2009) 15 SCC 178, the Hon‟ble Supreme Court held as under:
"5. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402].
6. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. "Page 16 of 18
OA No.21/00303/2023 In this case, neither the statutory provisions are violated nor the impugned transfer order suffers from mala fides. As held in Shilpi Bose (supra) even if a transfer order passed is in violation of executive instructions or orders, the Court normally should not interfere with the same.
The Hon‟ble Supreme Court in SK Nausad Rahaman & Ors. v. Union of India & Ors, in Civil Appeal No. 1243 of 2022, vide judgment dt. March 10, 2022, reported in 2022 (4) SCALE 626 has held as under:
"24 xxxx Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."
Thus, transfer being an incident of service and the guidelines laid down for affecting transfer not being enforceable conditions of service, an order of transfer, made in violation of such guidelines, would by itself does not furnish the ground for interference by the Tribunal. Executive instructions for transfer of Government servants are in the nature of guidelines and do not confer a legally enforceable right. [Union of India & Ors. v. S.L. Abbas, (1993) 4 SCC 357:: AIR 1993 SC 2444]. If there are statutory provisions including rules governing transfer, then the employer has to exercise the power of transfer according to such rules. If, however, transferability is governed only by executive instructions or guidelines, it appears that the employer can deviate from such instructions or guidelines in the exigencies of administration.
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21. In view of the law settled by the Hon‟ble Supreme Court, as above, this Tribunal is of the view that the OA lacks merit and the same deserves to be dismissed. Accordingly, the OA is dismissed and MA(s) pending, if any, shall stand disposed of. Consequently, the interim relief granted is vacated.
22. In the circumstances, there shall be no order as to costs.
(B. ANAND) (SUDHI RANJAN MISHRA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
//evr//
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