Central Administrative Tribunal - Delhi
Hon Ble Mr. A.K.Bhardwaj vs Union Of India Through Its on 9 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.749/2013 MA 797/2013 New Delhi this the 9th day of May, 2013 Honble Mr. A.K.Bhardwaj, Member (A) Shri R.K.Sharma, S/o Shri J.C. Tyagi, Presently posted as ADG (Customs & Central Excise) DRI DZU, New Delhi R/o D-1/96, Rabindra Nagar, New Delhi-110003 Applicant (By Advocate Shri Ajesh Luthra ) VERSUS 1. Union of India through its Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi-110001 2. Chairman, Central Board of Excise & Customs, Department of Revenue, Ministry of Finance, North Block, New Delhi-110001 3. The Director General, Directorate of Revenue Intelligence, D Block, I.P.Bhawan, IP Estate, New Delhi. Respondents (By Advocate Shri R.N.Singh, Shri S.K. Dubey with Ms. Zeenat Masoodi ) O R D E R
The present Original Application is second round of litigation on the issue of transfer of the applicant from ADG, DRI DZU, Delhi to Commissioner (Appeal), Kolkata Customs. In the earlier Original Application, i.e. OA no. 289/2013 filed by him, the applicant questioned the Office Order No. 05/2013 dated 7.01.2013 and sought issuance of direction to respondents to compute his stay (tenure) in Delhi (Group A station) in terms of para 5.5. of Transfer/Placement Policy of Group A OA 749/2013 officers of Indian Revenue Service (Customs & Central Excise). On 1.02.2013, when the Original Application came up for hearing, after notice in the presence of Mr. Rajeev Kumar, counsel for respondents, the respondents were directed to maintain status quo as of date. Finally, the OA was disposed of in terms of order dated 12.02.2013 with a direction to respondents to pass fresh order on the representation dated 8.01.2013 preferred by applicant recording weighty reasons for departing from clauses 5.5 and 5.6 of the transfer policy, lest those covered by the exceptions enumerated in Section 8 of the Right to Information Act, 2005. For easy reference, para 18 of the order is extracted hereinbelow:-
In view of the aforementioned, the OA is disposed of with direction to the respondents to pass fresh order in the representation dated 8.1.2013 made by the applicant recording weighty reasons for departing from clauses 5.5 and 5.6 of the aforesaid transfer policy, unless the reasons for transfer fall in exceptions enumerated in Section 8 of Right to Information Act, 2005. Needful may be done within a period of four weeks from the date of receipt of a copy of this order. Till then, the impugned transfer order, qua the applicant, may not be given effect to by the respondents. No costs. According to respondents, in implementation of the transfer order dated 7.01.2013, the applicant had already been relieved vide order F.No.A-22015/4/2010-Estt-4821 to 4829 dated 24.01.2013 and Mr. Vivek Ranjan had joined as ADG, DRI, Delhi Unit on 24.01.2013. The aforementioned order of the Tribunal needed clarification, thus the respondents filed MA No 582/2013 praying therein:-
In view of the facts and submissions hereinabove made, it is most respectfully prayed that this Honble Tribunal may graciously be pleased to modify/clarify the judgment dated 12 February 2013 passed by this Honble Central Administrative Tribunal so that Respondents can fully comply with the orders of Honble Tribunal vide order/judgment dated 12.02.2013 in OA No. 289/2013 to meet the ends of justice. The MA was disposed of in terms of order dated 5.03.2013. As the order was recorded erroneously, applicant filed MA No. 687/2013 for rectification of the error, which was disposed of by order dated 13.03.2013, operative portion of which reads as under:-OA 749/2013
In the circumstances, it is directed that part of the sentence, i.e. in view of the transfer order the stay order automatically became otiose, in 2nd para of order dated 5.03.2013 would read in view of the stay of transfer order till disposal of the representation the relieving order automatically became otiose.
MA stands disposed of accordingly. Thereafter, in implementation of the order passed in OA 289/2013, respondents issued office order dated 20.02.2013 taking the view that as per history of his posting, the applicant had been continuously on deputation in various posts in Delhi from March 2003 till date except 2008-09 and declined the request of applicant for cancellation of his transfer to the post of Commissioner (Appeal), Kolkata as per office order No. 05/13 dated 07.01.2013. In the circumstances, the present Original Application has been filed with the following prayer:-
8.1. To set aside the impugned order dated 07.01.2013 (Annexure A/1) in so far as it relates to the transfer of the applicant from Delhi to Kolkata and also the order dated 30.01.2013 (Annexure A/2) and order dated 20.02.2013 (Annexure A/3).
8.2. To direct the respondents to compute the tenure of the applicant at Delhi (Group A station) in accordance with the policy guidelines excluding the exempted postings of the applicant and thereafter, retain him at Delhi till he completes his maximum tenure as prescribed under the policy guidelines on transfer.
8.3. Any other relief which this Honble Tribunal may deem fit and appropriate, in the circumstances of the case.
2. To substantiate and buttress the grounds and relief in the Original Application, Mr. Ajesh Luthra, learned counsel for applicant contended:-
(i) Since the respondents have failed to carry out the orders passed by this Tribunal at different stages, they have no right to be heard unless and until they allow the applicant to assume the charge as ADG, DRI DZU, Delhi.
(ii) The impugned order dated 20.02.2013 and also the order dated 30.01.2013 have been passed in defiance of the spirit of the order dated 12.02.2013 passed in OA No.289/2013 inasmuch as OA 749/2013 no weighty reasons have been recorded by the respondents for disregarding the provisions of para 5.5 of transfer guidelines.
(iii) Since no administrative exigency or public interest is sought to be met by transferring the applicant has been shown or explained, the transfer order was necessarily a routine order of rotational transfer in terms of the provisions of para 5.3 of the transfer policy and could be ordered only after considering the provisions of clauses 5.5 and 5.6 of the transfer policy.
(iv) Certain officers, namely, Mr. Mohinder Singh (Commissioner) and Ms. Deepa P.Dass Gupta are kept posted in Delhi for a much longer duration, i.e. for 22 years and 8 months and 31 years, 10 months and 1 day respectively, while in view of the provisions of para 5.5. of transfer guidelines, the stay of applicant in Delhi is only 3 = years
3. Shri R.N. Singh, panel counsel for Union of India stood in opposition of the OA for respondents No. 1 and 2 and contended:-
(i) It is not so that in terms of impugned transfer order dated 7.01.2013, the applicant alone has been transferred. Besides him, 16 more incumbents in the grade of Commissioner of Customs and Central Excise have been transferred with immediate effect.
(ii) As can be seen from the Office Order No.05/13, i.e. impugned transfer order, the applicant has been ordered to be transferred as Commissioner (Appeal) Kolkata Customs with the approval of the competent authority. As per para 2 of the order, he was relieved immediately and was liable to join at OA 749/2013 the new place of posting on or before 24.01.013 under intimation to the Board and no representation could be entertained before his joining at his/her new place of posting.
(iii) The transfer of a Government servant can be interfered only on 3 grounds viz, (i) if not issued by the competent authority;
(ii) is in disregard of the conditions of service; and
(iii) suffers from mala fide.
(iv) Though absence of weighing reasons for non adherence to transfer policy can be no ground to interfere with the transfer order yet in the present case, sufficient detailed reasons have been indicated in the orders dated 30.01.2013 and 20.02.2013 whereby the representation of the applicant has been disposed of.
(v) In terms of clause 2.5 of the transfer/placement policy of group A Officers of Indian Revenue Service (Custom and Central Excise), notwithstanding anything contained in it, the Government, if necessary in public interest or in administrative exigency, transfer or post an officer to any station or post.
4. Mr. S.K.Dubey, counsel for respondent No.3 contended:-
(i) In the Original Application filed by him, the applicant questioned order dated 7.01.2013 only to the limited extent of his transfer as Commissioner (Appeal) Kolkata Customs and he never assailed the transfer of Vivek Ranjan in his place, i.e as ADG DRI, Delhi. Thus, after 24.01.2013 he had no right to continue in said position. As it appears from para 4.12 of the OA, Mr. Ranjan had joined as ADG, DRI, Delhi w.e.f. 24.01.2013.
(iii) In terms of para 2 and 3 of the transfer order, it was incumbent upon the applicant to join at the place of his transfer before raising any grievance regarding his transfer.OA 749/2013
5. Mr. R.N.Singh, relied upon the following judgments of the Honble Supreme Court, High Court and of this Tribunal:
(1) B.Vardha Rao Vs. State of Karnataka ( 1986 (4) SCC 131) (2) Shilpi Bose Vs. State of Bihar & Ors. (AIR 1991 SC 532) (3) Union of India & Ors Vs. S.L. Abbas ( 1986 (4) SCC 131) (4) State of M.P. & Ors Vs. S.S.Kourav & Ors ( 1995 (3) SC 270) (5) State of U.P. & Anr. Vs. Siya Ram 2004 (7) SCC 405 (6) S.C.Saxena Vs. Union of India & Ors ( 2006 SCC (L&S) 1890) (7) Mohd.Masood Ahmed Vs. State of UP & Ors ( 2007 (8) SCC 150) (8) Airports Authority of India Vs. Rajeev Ratan Pandey ( 2009 (8) SCC 337) (9) Tushar D.Bhatt Vs. State of Gujarat & Ors ( 2009 (11) SC 678) (10) Sujata Kohli Vs. H.C. of Delhi ( 148 (2008) DLT 17 (DB) Order/judgment dated 21.5.2012 of this Honble Tribunal in OA No.1388/2012 titled Rajesh Somaal Vs. UOI & Anr. Interim order/judgment dated in OA No.2602/2012 Titled Shankarsen Dash Vs. UOI & Ors. (13) Order/judgment dated 11.9.2012 in OA 2244/2012 Titled R.R.Dhavle Vs. UOI & Ors upheld by Honble High Court vide judgment dated 19.10.2012 in WP ) No. 6661/2012 (14). Sukhdev Singh Sindhu Vs. State of Punjab ( 2003 (4) SLR 12) (15) Public Service Tribunal Bar Association Vs. State of UP & Ors ( 2003 (2) SLJ 14) (16) Chief Commercial Manager South Central Railway, Secunderabad and others Vs. G.Ratnam and others ( 2007 (8) SCC 212) (17) Order/judgment dated 27.09.2012 of Lucknow Bench in 851/2012. OA 749/2013 (18) A.K.Mitra Vs. UOI and Ors ( 1991 17 ATC 756) (19) The State of Maharashtra Vs. Omprakash Ghanshyamdas (Bombay (DB) (Aurangabad Bench) ( 2009 LIC 1016) (20) Sahebrao D.Labde Vs. Jaising Shivaji Patil (Bombay) (DB) ( 2003 (2) BCR 614) 6. In rejoinder, Shri Ajesh Luthra submitted that:
(i) In terms of the order passed by the Tribunal in OA No. 289/2013, respondents ought to have recorded weighty reasons for deviating from clauses 5.5. and 5.6 of the policy guidelines.. According to him, in the case of S.C.Saxena Vs. UOI & 0rs ( 2006) SCC (L&S) 1890), the appellant on his transfer from the Headquarters at New Delhi to Subsidiary Intelligence Bureau, Tejpur on 6.7.1989 kept on submitting leave applications supported by medical certificates from doctor not authorized under the applicable disciplinary rules. He remained absent from 17.08.89 to 20.11.1990, i.e. for a long period of 16 months and was served a charge sheet for committing the misconduct of unauthorized absence. Thus it was a case entirely distinct from the present one.
(ii) Interim order dated 1.02.2013 was passed in the presence of Government counsel who conspicuously did not raise any such plea as espoused by the counsel for the respondents at the final hearing stage, i.e applicant was relieved from duty on 24.01.2013 and Mr. Ranjan had taken the charge of the post of ADG, DRI, Delhi. Even in the counter reply filed in OA 289/2013, there was no mention about the relieving of the applicant. Referring to the order dated 20.02.2013 passed by respondents in disposal of the representation dated 08.01.2013 preferred by the applicant, he submitted that in the said communication, the applicant had been OA 749/2013 addressed as Additional Director General, DRI, DZU, thus all the submissions put forth by the respondents, i.e. he stood relieved from service on 24.01.2013 are falsified.
7. The submission put forth by the counsel for the parties and the material placed on record give rise to following proposition to be determined by this Tribunal:-
Whether it is within the scope of judicial review by the Courts or Tribunals to interfere with transfer of the Govt. employees.
Whether irrespective of the guidelines laid down on the subject, the authority competent may transfer an officer covered by the Scheme of transfer, even in disregard of the provisions of the Scheme.
Whether the administrative exigency or public interest can be a good cause or reason to disregard the provisions of transfer guidelines and Whether it is essential to record weighty reason to transfer an employee.
Most of the aforementioned issues have been deliberated upon and addressed by this Tribunal several times, but we as the court of first instance, may not avoid dealing with the issues arise in an OA each time these come before us.
8. As far as the scope of interference with transfer is concerned, it is no longer res integra that an order of transfer does not ipso facto vary to the disadvantage of a government servant any of his conditions of service. As has been viewed by Honble Supreme Court in B.Vardha Rao Vs. State of Karnataka and Ors. ( 1986 (4) SCC 131), conditions of a OA 749/2013 Government servant can be said to be varied only when the alterations thereof resulted in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave etc. is caused. Transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incidence of service and no government servant can claim to remain in a particular place or in a particular post unless his appointment is to a specified, non-transferable post. A transfer order per se may be in the exigency of service and does not result in alteration of any of the conditions of service express or implied to the disadvantage of the concerned Government servant. Nevertheless, a transfer order which is mala fide and not made in public interest but made for collateral purpose with oblique motive and in colourable exercise of power is vitiated by abuse of power and is open to challenge before court being wholly illegal and void. Para 4 of the judgment passed by Honble Supreme Court in B.Vardha Rao Vs. State of Karnataka (ibid) taking the aforementioned view reads as under:-
4. The learned Judges observe that these penalties can be imposed on a Government servant where disciplinary proceedings are initiated against him under the Rules by the competent authority. They further observe that Rule. 18 of the Rules therefore provides for appeals against orders imposing penalties referred to and specified in Rule. 8, and add :
If an order of transfer does not amount to an order of penalty or any other order falling within Rule. 19, such an order does not attract and is not appealable either under Rule 18 or Rule 19. We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words or other conditions of service in juxtaposition to the preceding words denies or varies to his disadvantage his pay, allowances, pension in R. 19(1)(a) must be construed ejusdem eneric. Any alteration in the conditions of service mast result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension,. Seniority, promotion, leave, etc. It is well understood that transfer of a Government servant who is appointed to it particular cadre of transferable posts from one, place to another it an ordinary incident of service and therefore does not result in any alteration of any of the conditions OA 749/2013 of service to his disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. As the learned Judges rightly observe:
The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants.
9. In Union of India and Ors Vs. S.L. Abbas (1993 (4) SCC 357), it could be viewed that who should be transferred and 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. In the said judgment, it is categorically ruled that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of High Court under Art. 226 of the Constitution of India and constraints and norms applicable for a Judge of the High Court while exercising the said jurisdiction apply fully to the Tribunal created under Art. 323-A of the Constitution. Tribunal is not an appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In terms of the view taken by Honble Supreme Court in State of M.P.& Ors. Vs. S.S.Kourav and Ors ( 1995 (3) SCC 270), it is for the administration to take appropriate decision regarding transfer of an employee and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration. The expediency of posting of an officer at a particular place cannot be gone into by the Tribunal while examining the validity of the transfer order, the Court cannot go into the question of relative hardship, it would be for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration. If there is OA 749/2013 any such hardship, it would be open to the respondent to make a representation to the Government and it is for the Government to consider and take appropriate decision in that behalf. The legal position that an order of transfer cannot be interfered with unless it is vitiated on account of mala fide or violative of statutory provisions prohibiting a transfer was also reiterated in State of U.P. and Ors. Vs. Siya Ram and Another (2004 (7) SCC 405).
10. In Mohd Masood Ahmed Vs. State of UP & Ors, ( 2007 (8) SCC 150), it was reiterated yet again that the order of transfer is a part of the service condition of an employee which should not be interfered with ordinarily by Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authority who issued the order was not competent to do so. Para 7 of the judgment reads as under:-
7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.OA 749/2013
11. In Airport Authority of India Vs. Rajeev Ratan Pandey ( 2009 (8) SCC 337), the Honble Supreme Court held that having found no contravention in transfer policy in transferring the respondent, High court should not have interfered with an order of transfer policy. The legal position that the transfer should not be interfered with unless it is outcome of mala fide was also reiterated in Tushar D.Bhatt Vs. State of Gujarat & Ors ( 2009 (11) SC 678), Sujata Kohli Vs. H.C. of Delhi (148 (2008) DLT 17 (DB), The State of Maharashtra Vs. Omprakash Ghanshyamdas Mudiraj ( W.P.No.4859/2008), Sahebrao D.Labde & Ors Vs. Jaising Shivaji Patil & Ors (WP Nos.3473, 3474 & 3501 of 2002) Rajesh Somaal Vs. UOI & Ors ( OA No. 1388/2012), R.R.Dhavle Vs. UOI & Ors ( OA 2244/2012) and Praveen Chandra Karunakaran Solomon Vs. UOI & Ors (Jabalpur-OA 851/2012) etc.etc.
12. In the case of R.R.Dhavle (ibid) decided by this Bench, it could be viewed that discrimination can be no ground to interfere with the order of transfer. Relevant excerpts of said judgment read as under:-
5. It is true that in terms of DOP&T OM dated 30.09.2009, on availability of the required level of post, the husband and wife if working in the same department should invariably be posted together to enable them to lead a normal family life and to look after the welfare of their children. Thus in the present case, even though after 1.03.1994 the post of Maintenance Engineer was not available in Delhi, still by transferring such post of ERPC, FD, Kolkata to Film Division, New Delhi vide order dated 5.10.1989 the respondents facilitated continuance of applicant in Film Division, New Delhi between 8.10.89 to 12.08.1997, 21.11.2000 to 22.11.2000 and 1.11.2011 to 11.06.2012. In the interregnum period, the applicant was sent on deputation to various offices located in New Delhi only. Thus in spite of non availability of the post of Maintenance Engineer in Films Division, New Delhi, respondents made all possible efforts to continue the applicant in Delhi. Moreover, in terms of OM relied upon by the applicant, husband and wife are to be posted together till their children attain the age of 18 years. In the present case, it is not the plea of the applicant that he has children below 18 years of age. In Bank of India Vs. Jagjit Singh Mehta (JT 1991 (4) SC 460), Honble Supreme Court viewed that the desirability of posting of husband and wife at the same station does not mean that their place of posting should invariably be one though their preference may be OA 749/2013 taken into account while making the decision in accordance with the administrative needs. In the said case, Honble Supreme Court further viewed that irrespective of the guideline requiring the spouses to be posted at one place as far as practicable, neither of the spouses can claim such posting if the departmental authorities could not consider it feasible. Such view was also reiterated in Union of India and Ors. Vs. S.L. Abbas ( JT 1993 (3) SC 678) and UOI and Ors Vs. N.P.Thomas ( AIR 1993 SC 1605). While observing that the transfer of a Government personnel holding transferable post cannot be held to be vitiated on the ground that some of his juniors are retained at the same station and his transfer is against the policy of the Government that husband and wife should be posted in the same station. Para 8 of the judgment reads as under:-
8. In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory rule or that the transfer order suffers on the ground of mala fide. The submissions of the respondent that some of his juniors are retained by Kerala Circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has no vested right to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that Circle even on promotion. Apparently the respondents facilitated the posting of applicant at New Delhi but simultaneously now it is felt by the competent authority that the services of the applicant are required at ERPC, FD, Kolkata to ensure the maintenance of infrastructure in said Division before production commences in view of Centenary Celebration of India Cinema. In the circumstances, particularly in view of the law laid down by the Honble Supreme Court, the plea of the applicant that in view of the posting of his wife at New Delhi he should also be posted in the same station, can also be not accepted.
6. As far as the reliance on CVC letters dated 28.03.2006, 11.8.2008 and 1.05.2008 is concerned, the applicant remained posted in CVC between 2000 to 22.11.2004, thus a period of more than 7 years after his last posting in CVC has passed. Further it is not the case of the applicant that he had undertaken verification of complaints or detailed investigation against any officer under whom he would be required to work in his capacity as Maintenance Engineer at ERPC, FD, Kolkata. The reliance placed on Circular No.006/VGL/022 dated 28.03.2006 to question the impugned order is misconceived and cannot be accepted as ground to interfere with said order. Raising the plea of mala fide and bias the applicant has submitted that in view of his posting in CVC between 2000 to 2005, he is being harassed as earlier the acting DG, Kuldeep Sinha transferred him in 2007 and now Mr. Suresh Menon, Deputy General Manager (i/c) has passed the impugned order. It is also the contention of the applicant that the transfer of applicant is outburst of issuance of Memo to Shri A.K.Singh who was looking after the charge of Films Division, Mahadev Road. He has also alleged that Shri Sohan Pal, Senior OA 749/2013 Projector had collected the booking money of Films Division Auditorium and given on interest to outside people and such money was used to entertain DG, other senior officers as well as Ministries officers. He also alleged that the imprest money for the films shooting was retained by Sr. AO, Mr. Dogra, Director/Cameraman, Mr. Sunder Singh, Cameraman, Mr. Saha, DDG/In-charge, Mr. Saha and Director, Mr. Jagjivan Ram and was returned after one- two years. Applicant has also linked his transfer with appointment of Shri S.K.Sharma (Retd) as Consultant and stoppage of his salary by him. It is also the stand taken by applicant that all the aforementioned incidents were reported by him to DG (Films Division) from time to time which resulted in his transfer made by Mr. Reddy, Joint Secretary and Mr. Bankim. However, the applicant has not adduced any material to support the bald allegation made against said officers. The allegation of mala fide cannot be substantiated by conjectures and surmises as the applicant has tried to do so. Moreover, the transfer of the applicant was approved by Mr. V.S.Kundu against whom no allegation is made by applicant. Further no authority is impleaded as party by name to the present proceedings in his personal capacity nor any material to establish, the allegation of malice has been adduced. It is stair decisis that in order to allege mala fide the person against whom mala fide is alleged is required to be impleaded as party to the proceeding in his personal capacity. In the present case, the DG who approved the transfer has not been made a party to the present proceedings, thus factual mala fide alleged by applicant is not accepted on this ground alone. In Bureau of Indian Standards Officers Association and Another Vs. Bureau of Standards and others ( 1993 III AD (Delhi) 1145), Honble Delhi High Court viewed that the burden of establishing mala fides is very heavy on the person, who alleges it. The allegations of mala fide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Paras 19 and 20 of the judgment read as under:-
19. Reliance is placed on the judgment of the Supreme Court in E.P.Royappa v. State of Tamil Nadu and another AIR 1974 Supreme Court 555, wherein it was held that the burden of establishing mala fides is very heavy on the person, who alleges it. The allegations of mala fide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
20. In the present case, the sole ground, on which petitioners have based their case, is that newspaper reports raised corruption issues against the respondents and in view of the role, played by the Association in highlighting these issues, petitioner no.2, who is the President of petitioner no.1, was transferred to Bhopal. This was also with a view to scuttle the trade union activities of the petitioners. These circumstances do create suspicion, but suspicion cannot take the place of proof. Proof needed in the present context is always of high degree and the plea of mala fide, which has been placed before us, OA 749/2013 cannot be held to come to that level. The judgment of the Supreme Court, as referred above, has been relied upon by the Division Bench of this Court in Ghanshyam Singh v. Union of India and others 41 (1990) Delhi Law Times 96, wherein the plea of mala fide was rejected on the ground that a mere allegation that respondent no. 4 (the then Chief Minister) was actuated by improper motive, based on surmise, contained in a few Press clippings, cannot be made basis of investigation by the Court. The judgment in Express Newspapers Pvt Ltd (supra) also reiterates the proposition that vague allegations of mala fide are not enough and abuse of authority must appear to be reasonably probable. In Gurbachan Singh Sawhey Vs. Union of India and Ors ( C.W.P. No. 5878/1998 decided on 31.05.2002), Honble Delhi High Court viewed that the natural justice bias rule applies to judicial and disciplinary functions but not generally more widely to administrative decision making and actions. In Airport Authority of India Vs. Rajeev Ratan Pandey and Others ( 2009 (8 SCC 337), Honble Supreme Court viewed that the bald plea of malafide not supported by any material cannot be accepted as a ground vitiating the order of transfer. The applicant has not produced any material satisfying the standard and test required to hold the transfer order vitiated being malafide. Thus the plea of mala fide raised by him is rejected.
7. Normally the order of transfer on administrative grounds cannot be questioned as vitiated by bias. Very recently in Registrar General, High Court of Judicature of Madras Vs. R.Perachi & Ors. (2011) 12 SCC 137), Honble Supreme Court held that transfer is an incident of service and one cannot make a grievance if a transfer is made on administrative ground. Relevant excerpts of said judgment read as under:-
22. In the context of transfer of a government servant we may refer to the dicta of this Court in N.K.Singh v. Union of India (1994) 6 SCC 98) where this Court observed in AIR para 22 as follows:-
23 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 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 the decision Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all OA 749/2013 transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in pubic interest, to the departmental heads subject to the limited judicial scrutiny indicted.
23. In State of M.P. v. S.S.Kourav the Administrative Tribunal had interfered with the transfer order of the respondent and directed him to be posted at a particular place. It is relevant to that while setting aside the order of the Tribunal this Court observed in para 4 of its judgment as follows:
4.The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background or foundation. In this case, we have seen that on the administrative grounds the transfer came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
31. As seen above, the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances the decision of the then Chief Justice to transfer him outside that district could not be faulted. In State of UP and others Vs. Gobardhan Lal (2004 (11) SCC 402), it is held that the 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. In the said case it was further held that challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are appellate authorities over such orders. Paras 7 and 8 of the judgment read as under:-OA 749/2013
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 transfer. I also find force in the contention of respondents that in view of promotion of applicant against the post of Maintenance Engineer, ERPC, FD, Kolkata, he is liable to serve there only and his posting at Films Division, New Delhi by transferring his headquarters of said post has been sympathetic gesture by the respondents. In Gujarat Electricity Board v. Atmaram Poshani (AIR 1989 SC 1433), Honble Supreme Court viewed that the transfer of a OA 749/2013 Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and for efficiency in the public administration. Para 4 of the said judgment reads as under:-
4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. 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 concerned public servant 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 to 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.
The said view was reiterated in UOI v. H.N.Kirtania ( 1989 (3) SCC 445), State of UP and Ors V. Gobardhan Lal with D.B. Singh v. D.K.Shukla and Ors ( 2004) 11 SC 402) and K.N.Bhardwaj v. LIC (WP (C) No.4422/2008 decided on 3.12.2010). In Shanti Kumari Vs. Regional Deputy Director, Health Services, Patna Division, Patna and Ors (1981) 2 SCC 72), it s held that the transfer of a Government servant may be due to exigencies of service or due to administrative reason, the Court cannot interfere in such matters. Para 2 of the judgment reads as under:-
2. Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reason. The Courts cannot interfere in such matters. Shri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant. OA 749/2013 In view of the law laid down by Honble Supreme Court as above, the order of transfer cannot be interfered lightly.
8. As for as the plea of discrimination is concerned, transfer or posting of Government servant at a particular place cannot be claimed by him as a matter or legal right. Articles 14 and 16 of the Constitution guarantee equality before law and is a positive piece of legislation. The posting of Mr. Manohar Singh and Mr. Suresha at Mumbai for a long period would not create any right in favour of applicant also to claim his posting at same station for entire career. Moreover, a person is promoted and posted at the place where the post in question is sanctioned while the applicant has been accommodated either on deputation or by transfer of aforementioned post from ERPC, FD, Kolkata to Films Division, New Delhi. Moreover in UOI and Ors Vs. N.P.Thomas (AIR 1993 SC 1605), Honble Supreme Court ruled that an employee holding a transferable post has no vested right to remain posted at a particular place as a matter of right. Para 8 of the judgment has been extracted hereinabove. However, it is seen that Mr. Suresha, Maintenance Engineer is enabled to work at SRPC, Bangalore in addition to his own duty without any remuneration until further orders. Even in terms of Note dated 11.06.2012 wherein the transfer of the applicant is approved also, it is provided that Shri B.Suresha will be deputed at Bangalore to sort out the problem and submit a report for further action. In other words, respondents have enabled Shri B.Suresha to look after the work of Films Division Bangalore as well as Film Division, Mumbai by retaining him at Films Division, Mumbai itself. It is also noticed that Films Division, Delhi is much more large establishment then the EPRC, Kolkata. Records also reveal that in the past respondents kept the applicant posted at Films Division, Delhi for quite long period by transferring the headquarter of the post of ERPC, FD, Kolkata at New Delhi vide order dated 5.10.1989.
9. In the aforementioned legal and factual backdrop when the interference with the impugned order is declined and the prayer of the applicant contained in the OA is rejected, it is directed that after joining at ERPC, FD, Kolkata to keep infrastructure ready for the commencement of production to commemorate 100 years of cinema and other production works, the applicant would be at liberty to make a representation to respondents to utilize his services at Films Division, Delhi and ERPC, FD, Kolkata in the manner the services of Mr. B. Suresha are utilized at Film Division, Mumbai and SRPC, Bangalore. On such representation being made, respondent No. 2 would consider and decide the same keeping in view the fact that in the past the post of Maintenance Enginer, FD, Kolkata was utilized at Film Division, Delhi and the establishment of Delhi is larger than the ERPC, Kolkata. In view of the aforementioned, as far as the scope of interference with transfer is concerned, following negative/positive aspects are well established.OA 749/2013
Positive aspects (the grounds on which transfer order may be interfered ) (a ) it is vitiated by mala fide;
(b) not made in public interest but made for collateral purpose with oblique motive and in colourable exercise of power (B.Varadha Rao Vs State of Karnataka & Ors- vitiated by abuse of power) (c ) passed for extraneous considerations without any factual background or foundation.
prohibited by service rules; passed by the incompetent authority or; (i) being vindictive ( Public Service Tribunal Bar Association Vs. State of UP and Ors- para 38 ) Negative aspects ( grounds not sufficient to interfere with transfer order) Order of transfer may not be interfered even if;
passed in violation of executive instructions/order result in relative hardship;
it is discriminatory (UOI and Ors Vs. N.P.Thomas (AIR 1993 SC 1605)- transfer of a Government personnel holding transferable post cannot be held to be vitiated on the ground that some of his juniors are retained at the same station and his transfer is against the policy of the Government that husband and wife should be posted in the same station;
Violative of the principles of natural justice;
OA 749/2013There is pending complaint and departmental enquiry against the transferee (Registrar General, High Court of Judicature of Madras Vs. R.Perachi & Ors. (2011) 12 SCC 137).
When we talk of public interest in the matter of transfer, it needs to be kept in mind that it is not for the authority transferring an employee to establish on each occasion that order is in public interest but the transferee employee may question the same by taking the plea that order of transfer is detrimental or prejudicial to the public interest.
13. Again, it is stare decisis that the administrative instructions or guidelines do not confer upon a government employee a legally enforceable right. In Shilphi Bose (Mrs) and Others Vs. State of Bihar and Ors (1991 (Supp (2) SCC 659), it has been held that even if transfer order is passid in violation of executive instructions or order, the court ordinarily should not interfere with the order; instead affected party should approach the higher authority in the department. If the courts continue to interfere with day-to-day transfer order issued by the government and its subordinate authority, there will be complete chaos in the administration which would not be conducive to public interest. Again in Union of India and Ors Vs. S.L. Abbas ( 1993 (4) SCC 357), it was held thus:-
7. 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. While ordering the transfer, there is no doubt, the 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 having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.OA 749/2013
In the said case, it was also held that the Administrative Tribunal is not appellate authority sitting in judgment over the orders of transfer and substitute its own judgment for that of the authority competent to transfer.
14. Also in UOI and Ors Vs. N.P.Thomas (AIR 1993 SC 1605) followed by this Tribunal in R.R. Dhavles case (ibid), it was held that transfer of a government personnel holding transferable post cannot be held to be vitiated on the ground that some of his juniors are retained at the same station and his transfer is against the policy of the Government. Para 8 of the judgment reads as under:-
8. In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory rule or that the transfer order suffers on the ground of mala fide. The submissions of the respondent that some of his juniors are retained by Kerala Circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has no vested right to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that Circle even on promotion. Also in Bank of India Vs. Jagjit Singh Mehta (JT 1991 (4) SC 460), Honble Supreme Court viewed that the desirability of posting of husband and wife at the same station does not mean that their place of posting should invariably be one, though their preference may be taken into account while making the decision in accordance with the administrative needs. In the said case, it was further viewed that irrespective of the guidelines requiring the spouse to be posted at one place as far as practicable, neither of the spouses can claim such posting if the departmental authority could not consider it feasible. Thus, I have no hesitation in arriving at a conclusion that the transfer guidelines do not give any enforceable right to a Government employee to question the OA 749/2013 order of his transfer on the ground that it is violative of the provisions of such guidelines. In other words, non adherence to various provisions of transfer guide lines can be no ground to interfere with transfer.
15. Mr. Ajesh Luthra, counsel for applicant has argued with vehemence that may be, irrespective of the guidelines entitling an employee to remain posted at a particular place for some duration, he could be transferred out, but the order of transfer may not be justified merely by using the expression public interest or taking the legal plea that the violation of the administrative instruction is no ground to interfere with the transfer order. The guidelines may not be considered enforceable to the extent of creating a legal right in favour of an employee against his transfer and the provisions contained therein may also be disregarded, but the same should be done for some good cause or valid reason, may not be explanatory one. If the provisions incorporated in transfer guidelines are flouted in routine manner or the transfers are to be ordered as condition of service, in complete disregard of transfer guidelines, then there is no point in issuing and maintaining any such guidelines. If each and every order of transfer issued in variance of transfer guidelines is endorsed merely on the ground that the violation of guidelines is no ground to interfere with an order of transfer, then a presumption may take place that an authority competent to order transfer may overrule the guidelines laid down by a superior mechanism for its guidance by his administrative order at his whims which, of course, is not the spirit of the administrative law. When we talk in terms of superiority/degree of the legislation, certainly the general executive instructions or guidelines issued on a particular subject are always superior than an administrative order to be issued by an authority dealing with an individual issue or subject covered by the OA 749/2013 guidelines. Thus, though it is true that the guidelines particularly in the matter of transfer may not create any right in favour of an employee either to remain posted at a particular place or to seek choice posting, but while issuing an transfer order in deviation of transfer policy, the concerned authority should at least indicate some good cause. Even when the order is issued in public interest or administrative exigency, it should be indicated that though the transfer guidelines suggest otherwise, but the administrative exigency warrant the transfer of the employee concerned in a different manner. Also in Shilpi Bose (Mrs) and Ors Vs. State of Bihar and Ors (supra), it is held that when a transfer order is passed in violation of the executive instructions or order, the Court ordinarily should not interfere with the order, instead affected party should approach the higher authority in the department. Also in Union of India and Others Vs. S.L.Abbas (ibid), it is viewed that while ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject and if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigency of administration.
16. In Amit Sahay, IFS Vs. State of Assam and Ors (2003 (1) SLJ 152 CAT) followed in OA No. 3214/2012 decided by this Bench on 29.10.2012, it has been held that a policy formulated to regulate the transfer can be departed only for good and weighty reasons. Paras 8 and 9 of the said judgment read as under:-
8. As alluded earlier the applicant took over charge of the post of Divisional Forest Officer, Aie-Valley Division only on 4.7.2001. Hardly four months after, the impugned order of transfer dated 20.11.2001 was issued scuttling the tenure of the applicant. It is the State Government which has laid down OA 749/2013 its policy fixing a normal tenure of three years. Mr Uzir submitted that it was only a guideline and not a statutory instrument. Admittedly, the rules contain a mandatory flavour. Executive policies are meant for guidance. Guidance are also meant to be obeyed. Such policy guidelines generated expectation conferring some benefits. A Government servant legitimately expects that those policies are to be followed. The rule of legitimate expectation is founded on basic principles of justice and fair play. Legitimate expectations are not to be readily thwarted. The safeguard of legitimate expectation has its root in the constitutional principle of rule and law that calls for legality, regularity, predictability and certainty in the Government dealings. The expectation cannot endure for all times. It can, of course be revoked cither by express or implied representation. It can also be superseded. We were not made aware that the policy of tenure positing had ever been supcrceded. A policy formulated can be departed from, but there must be some good and weighty reasons. No justifiable reasons are ascribed as to why in this fashion the applicant's tenure of posting at Aie-Valley Division had to be brought to an end abruptly and despatch him to a non descript post four months after his assignment.
9. Mrs M. Das, learned Government Advocate, Assam appearing on behalf of respondent Nos. 1 and 2 promptly referred to the orders by the Governor dated 20.11.2001 mentioning that the transfer was made in the interest of public service. Mr. Uzir added that transfer is an incident and condition of service and such orders are passed in the public interest and efficiency of public administration. As pointed out earlier, there is no dispute on the principle of transfer. No Government servant or employee has a legal right for being posted in a particular place. Transfer of a public servant made on administrative ground or in public interest is not to be interfered with unless there are strong and pressing ground rendering the transfer order illegal on the violation of statutory rules or on the ground of malafides. We have already discussed the matter in the preceding paragraphs and reached the conclusion that the transfer order was made contrary to the statutory provisions. However, to consider the plea of the respondents that the transfer was made in public interest, we called for the records. On perusal of the records it transpired that the Hon'ble Minister, Forests/HAD etc. sent the Memo No. M/HAD/F/M/19/2001 dated 16.10.2001 addressed to the Secretary, Forests. By the said communication the Hon'ble Minister issued the following instruction. Also in Y. Kurikesu Vs. The Sr. Supdt. of Telegraph Traffic, Trivendrum Div & Others (1994) 1 ATJ 71), it has been viewed that the expression public interest is not a magic word which can do service for anything in any situation. Para 6 of the order reads as under:-OA 749/2013
6. Be that as it may, since applicant has raised his grievance in Annexure VIII before the third respondent, Director General, I am of opinion that the Director General should consider the matter instead of this Tribunal dealing with it. He will specifically examine, (a) whether any public interest supports the order of transfer, (b) whether there was discriminatory treatment between koshi and the applicant, and (c) whether any known or justifiable principle motivated the transfer. He will also impress the need to act without arbitrariness on his subordinate officials even in routine administrative matter. The interim order of stay granted by a Bench of this Tribunal on 18.3.1993 will ensure of the benefit of applicant, till a final decision is taken by the third respondent, Director General, on Annexure-VIII..
17. In the present case in the order dated 30.01.2013, it has been indicated that the transfer of the applicant has been made on administrative exigency in the broader interest of work and with the approval of the competent authority in terms of Para 2.5 of the transfer policy. In Para 4 of the said order, it is indicated that applicant had no right to remain posted in a group A station for 8 years as such tenure denotes the maximum tenure and it is not envisaged that an officer can be transferred out of category A station only on completion of permissible maximum period of 8/14/16 years, as the case may be. In the said order, the respondents tried to explain that the transfer of the applicant is in terms of Para 2.5 of the transfer policy and he had no right to remain posted in a group A station for any specific tenure. They have not specifically either said that the provision of clause 5.5 of the transfer policy is not departed from or the transfer order is as per policy. Though in para 6 of the order dated 20.01.2013, it is indicated that the applicant as per his history of posting had been continuously on deputation in various posts in Delhi from March 2003 till date except 2008-09 and that the tenure of 8 years in A station was maximum and not a guarantee of minimum stay and the respondents have indicated premises for transferring the applicant, but they have not OA 749/2013 suggested a conclusive reason. It may be correct that from the premises put forth by the litigating party before it, the Court or Tribunal may draw an assumption, but such assumption may not always be correct. Besides, there is difference between the reason and the explanation. The reason is something which operates and works in mind of the authority taking action as a ground or grounds for such action. When the action so taken is in question, the reason is put forth with all promptness. When the concrete reason, i.e. ground or grounds for action is not instantly available, the same is justified by putting forth plausible explanation. The difference between reason and the explanation may be demarcated by the consistency and connectivity. A reason comes forward in concrete form with consistency of ground and explanation is adjunction of in consistent factors jotted down to justify an action already taken.
18. In the present case when OA 289/2013 was filed, in para 4.2 (C) of the reply filed on behalf of respondents, it could be stated that no one has a right to remain posted at A category station for 8 years as it is the maximum tenure only and that in terms of para 2.5 of the transfer policy, if it is necessary, in public interest or in administrative exigency, an officer can be transferred to any station or post. Such stand taken by the respondents is basically indication of competence of the respondents to transfer an officer and not the criteria adopted in transferring the applicant, i.e. whether he was transferred because it was not his right to remain posted at a particular station for 8 years or he was not entitled to benefit of the provisions contained in para 5.6 of the policy or his transfer was required in the exigency of service. For easy reference, said para of the reply is extracted hereinbelow:-
That the contents of para 4.2.(c ) of the OA are wrong and denied. The applicant is under impression that one can stay in a Group A Station for a minimum period of 8 years before being transferred to other station. However, as per Para 5.3 of the aforesaid transfer/ OA 749/2013 placement policy the residency of 8 years is the maximum tenure prescribed in an A station. Thus, it is not correct to say that, an officer could be transferred out of A Category Station only on completion of 8 years of maximum permissible period. Further, Para 2.5 of the transfer policy clearly stipulates that Notwithstanding anything contained in the transfer policy, Government may, if necessary in public interest or in an administrative exigency, transfer or post any officer to any station or post. Though, in para 4.2 D of the reply, it could be explained that the transfer was ordered as per para 2.5 of the transfer policy keeping in view the overall human resource requirement and in the interest of the work in the Customs and Central Excise Department, but despite specific order dated 5.03.2013 passed by this Tribunal, it could not be explained why due regard could not be given to Paras 5.5. and 5.6 of the transfer policy. More or less, the stand taken in the reply filed in OA 289/2013 has been reiterated in the reply to the present OA. Though specific stand has been taken in the OA that certain other incumbents in the grade of applicant are not disturbed despite their stay in Delhi for 16-20 years, in the counter reply, no explanation has been put forth for such different treatment meted out to the officer in the same grade. After a specific order passed by this Tribunal, the respondents were obliged either to take specific stand that clauses 5.5. and 5.6 of the policy were not violated or that the same could not be adhered to for weighty reasons. They should not have given a premise and left it to the Tribunal to draw its own assumption from the same. One of the possible assumption which can be drawn from the order dated 20.02.2013 is, since the applicant remained posted in Delhi for quite long, the protection of clause 5.5. of transfer policy could not be made available to him. But in the absence of articulated stand taken on bahalf of the respondents in this regard, it cannot be so presumed. Transfer guidelines cannot be made operative only to ensure a fix tenure for few and uncertain tenure OA 749/2013 for the others. In the order passed by them, respondents have not even shown confidence to say that irrespective of the fact that by operation of the policy the stay of the applicant at A station turns out 3 = years, his transfer is necessary in public interest or in an administrative exigency. The setting up of the premises in the order purportedly passed in compliance of the directions given by this Tribunal and an assumption by this Tribunal from the same would not inspire the confidence of the applicant.
20. In the circumstances, OA is disposed of with direction to respondents to pass a fresh order indicating their articulated stand i.e. whether the transfer of the applicant is in deviation of clause 5.5 & 5.6 of the policy being warranted by public interest and administrative exigency or the same is in consonance with the provisions of the policy. Till then the applicant would not be forced to join as Commissioner (Appeal), Kolkala Customs and would be treated on duty in Delhi with consequential benefits. No costs.
( A.K. Bhardwaj) Member (J) sk