Central Administrative Tribunal - Delhi
Rajender Singh vs Union Of India Through on 25 July, 2008
Central Administrative Tribunal Principal Bench OA No. 0958/2008 OA No.1864/2007 New Delhi this the 25th day of July, 2008. Honble Mr. Shanker Raju, Member (J) OA No.958/2008 Rajender Singh, R/o 29-P, 116, Indira Park, Palam Colony, New Delhi-45. -Applicant (By Advocate Shri Anil Singhal) -Versus- 1. Union of India through its Secretary, Ministry of Defence, South Block, New Delhi. 2. The Commandant, Central Vehicle Depot, Delhi Cantt, New Delhi. 3. The Administrative Officer, Central Vehicle Depot, Delhi Cantt., New Delhi. 4. R.S. Dabas (ISO), Central Vehicle Depot, Delhi Cantt., New Delhi. -Respondents (By Advocate Mrs. Priyanka Bhardwaj (R-1-3) and Shri M.K. Bhardwaj, for R-4) OA No.1864/2007 Rajender Singh, R/o 29-P, 116, Indira Park, Palam Colony, New Delhi-45. -Applicant (By Advocate Shri Anil Singhal) -Versus- 1. Union of India through its Secretary, Ministry of Defence, South Block, New Delhi. 2. The Commandant, Central Vehicle Depot, Delhi Cantt, New Delhi. 3. Sh. Ram Kumar (Lt. Col.) The Administrative Officer, Central Vehicle Depot, Delhi Cantt., New Delhi. 4. R.S. Dabas (ISO), Central Vehicle Depot, Delhi Cantt., New Delhi. -Respondents (By Advocate Shri A.K. Sharma) O R D E R
Applicants, a Fire Master, i.e., a civilian in the Defence, by virtue of these two OAs, has challenged intra and inter organizational transfer on identical issues. For the sake of multiplicity and in the interest of justice, OAs are disposed of by this common order.
2. At the outset, wheels of administration should be allowed to run smoothly. Day-to-day order passed in administrative exigencies and in public interest by the Government to post and transfer the employees should not be interfered in judicial review by sitting over as an administrative authority over the orders. Substitution of the view by the Courts in the matter of transfer is also legally precluded. It is also trite that a person having All India transfer liability has no legal indefeasible right to be posted at a particular place.
3. The Apex Court in Union of India v. Sri Janardham Debanath and Anr., 2004 (2) ATJ 586, ruled as under:-
7. As Rule 37 and FR 15 form the foundation of the claim of the respondents, it would be appropriate to quote them. Rule 37 read as follows :
"All officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers should not, however, be ordered except when advisable in the interests of the public service. Postmen, village postmen and Class IV servants should not, except for very special reasons, be transferred from one district to another. All transfers must be subject to the conditions laid down in Fundamental Rules 15 and 22."
FR 15 reads as follows :
"(a) The President may transfer a Government servant from one post to another provided that except on account of inefficiency of misbehaviour, or on his written request, a Government servant shall not be transferred to, or except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien."
4. The Apex Court in State of U.P. & Others v. Gobardhan Lal, 2004 (3) ATJ SC , 2004 (3) ATJ SC 565:
7. It is too late in the day for any Gov-ernment servant to contend that once ap-pointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident in-herent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or condi-tions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statu-tory provision (an Act or Rule) or passed by an authority not competent to do so, an or-der of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulat-ing transfers or containing transfer policies at best may afford an opportunity to the of-ficer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the offi-cial status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emolu-ments. This Court has often reiterated that the order of transfer made even in trans-gression of administrative guidelines can-not also be interfered with, as they do riot confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tri-bunals as though they are Appellate Authori-ties over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribu-nals cannot substitute their own decisions in the matter of transfer for that of compe-tent authorities of the State and even alle-gations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjec-tures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of trans-fer.
9. The very questions involved, as found noticed by the High Court in these cases, being disputed questions of facts, there was hardly any scope for the High Court to gen-eralise the situations based on its own ap-preciation and understanding of the prevail-ing circumstances as disclosed from some write-ups in journals or newspaper reports, conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the in-built pow-ers of supervision and control in the hierar-chy of the administration of State or any Authority as well as the basic concepts and well-recognised powers and jurisdiction in-herent in the various authorities in the hi-erarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may cre-ate in ensuring an effective supervision and control and running of administration merely on certain assumed notions of or-derliness expected from the authorities af-fecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the concerned authorities, the Courts and Tribunals, as the case may be, to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in discipli-nary proceedings on certain well-settled and recognized grounds or reasons, when prop-erly approached and sought to be vindicated in the manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive admin-istration. Attempting to undertake an exer-cise of the nature could even be assailed as an onslaught and encroachment on the re-spective fields or areas of jurisdiction ear-marked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously Courts endeavour to safeguard the rights of parties.
5. Recently the Apex Court in Prasar Bharti v. Amarjit Singh, 2007 (2) SCC (L&S) 566 and also in Mohd. Masood v. State of U.P., 2007 (11) SCALE 271 ruled that interference by the Court in the matter of transfer should be rarest of the rare.
6. With the above position of law, applicant who has been functioning as Fire Master in OA-1864/2007 impugns by alleging mala fides against Administrative Officer and ISO deputation on a shift starting from 12.00 hrs. to 20.00 hrs. on the ground that as per Fire Order only three shits on weekly basis are permissible. As such, applicant being deputed to 4th shift is a mala fide action of respondent No.4, who wanted applicant to assist construction in a bungalow constructed by a relative of respondent No.4.
7. Learned counsel of applicant would contend that applicant while being promoted as Fire Master on 2.5.2005 has been made to work under Fire Master Shri Udaivir who was junior as promoted later on, on 9.5.2005. It is further stated that applicant was marked absent on 30.8.2007 and 31.8.2007 whereas he was present on duty on those dates.
8. It is also stated that adverse remarks have been recorded by respondents No.3 and 4 on the basis of false report to mar the ACR of applicant.
9. In OA-958/2008 applicant impugns respondents order dated 5.5.2008, whereby he has been transferred to Bhatinda on the ground that the original order by AOC was not served upon him and neither TA/DA/Joining time and preparatory leave is admissible, despite his writing to the respondents. Applicant has impleaded respondent No.4, ISO to allege mala fides on the ground that just to scuttle and frustrate his OA-1864/2007, which was listed for hearing on 7.5.2007, applicant was transferred two days before it. It is also contended that due to a conspiracy hatched out by respondents No. 3 and 4 applicant has been harassed, as he is not abided by the illegal order by respondent No.4. Learned counsel of applicant states that the representations preferred by the applicant have not been considered and the instructions relied upon by the respondents are not valid in law.
10. It is lastly contended that in the reply a shifting stand has been taken by the respondents, which shows punitiveness in the order of transfer.
11. On the other hand, learned counsel of official respondents vehemently opposed the contentions and states that the applicant is a Fire Master, who is a mere shift Incharge during working hours. Moreover, the Fire Master is not Incharge of Fire Brigade nor is there an exclusive office for any Fire Master. It is further stated that applicant is the junior Fire Master than the others. The First staff has personnel who have different ranks like Fireman, Leading Hand Fire etc. It is stated that applicant was neither punctual nor disciplined and was not maintaining the desired standards, despite oral and written advice and his baseless and frivolous allegations against the officers are not well founded.
12. Learned counsel states that the manpower distribution within the Establishment is under the purview of the Management and is required to be done as per the workload of the concerned station. According to the learned counsel the Fire Master is a mere shift Incharge and does not enjoy any administrative power and hence the transfer of applicant is resorted to in exigency of service and just to maintain decorum and discipline in the organization and is not by way of punishment but as per the laid down guidelines.
13. Private respondents, who have been impleaded through their learned counsel vehemently opposed the contentions, who states that mala fides alleged against respondents No.3 and 4 have not been proved to hilt by laying down a strong foundation and mere a stray statement on suspicion and surmises will not be a valid discharge. Accordingly, it is stated that they are not at all instrumental in transfer of the applicant, which is the prerogative of the higher authority.
14. On careful consideration of the rival contentions of the parties, mere taking away administrative work than the norms prescribed and posting applicant without any administrative function and the fact that the seniority, as claimed by applicant, is not correct, the other being seniors, a posting order within the organization cannot be a transfer. As such, the prerogative to assign duties when is the function of the Executive and when such duties are in the charter of duties no baseless complaint could be taken cognizance of to justify interference in judicial review.
15. Insofar as transfer of applicant is concerned, as per the trite law (supra) the applicant having miserably failed to establish mala fides against the private respondents, the order passed by the AOC to transfer applicant in the larger interest of the organization to prevent disharmony, lack of decorum and to maintain discipline in the organization the aforesaid prerogative when exercised no punitiveness can be raised. The transfer of applicant being effecting within the exception, no interference in judicial review is called for or warranted.
16. Applicant, who has been transferred though prayed for TA/DA/joining time, which could not be allowed to him to facilitate in an effective manner his reporting to the transferred place.
17. Though on merits, no infirmity is found, yet directing the respondents to validly comply the pre-condition of payment of TA/DA/joining time and preparatory leave to enable the applicant to comply with the direction to report to the transferred placed, OAs are disposed of accordingly. No costs.
Let a copy of this order be placed in OA-1864/2007 as well.
(Shanker Raju) Member (J) San.