Central Administrative Tribunal - Mumbai
Kamal Kishore Uniyal vs M/O Home Affairs on 25 February, 2019
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CENTBQLIQDNENISTBQTEYETTBIBUNAL
QRIGINAL~BEPLIC3TIQN_N°143Z?Q12
Dated this the Q day of February, 2019.
CORAM: R. vIJAYKU1m, MEMBER (A)
A RAVINDER KAUR, MEMBER (J) A
Kamal Kishore Uniyal
Aged 56 years,
Working as Joint Deputy Director/Tech
Subsidiary Intelligence Bureau
C~23, Block E, Bandra Kurla '
complex, Bandra (E), ' '
Mumbai e 400 O51 -
R/o. B 204 Sector V, Navjeeyan
Tower, Antop Hill, - a
Mumbai.~ 400 O37. _ .- Applicant
([email protected] )
VERSUS
The Union of India -
Through the Secretary
Ministry of Home Affairs,
North Block, New Delhi llO O01.
The Director, "
Intelligence Bureau,
7, North Block,
" New Delhi~l1O O01.
The Joint Director/E
Intelligence Bureau
. 7, North Block,
New Delhi ~ llO O01.
The Additional Director,
C-23, Block E,
Bandra Kurla Complex,
Bandra (E), a
Mumbai -- 400 O51. .. Respondents
(By Advocate Shri NZKL Rajpurohit )
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2 I QA 43./201.2
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O R D E R '
Per Rarinuses Kerri 1.Y.1E'1'..€5€"....R 1J1
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' This application has been filed by the
applicant under Section l9 of I the
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Administrative Tribunals Act, 1985 seeking the
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following reliefs: _ '
"(a) y This Hon'ble Tribunal may be graciously
pleased to call for the records -of the case fiom the "
respondents and after examining the same, it may be
declared that the relieving order dated 27.12.1864-1) -
and rejection ofrepresentation to DIB for Darbar dated ' E
5!
21.12.18 (A-2) transfer ordersdated 31.05.18 (A-3) as
illegal and quash and set aside the same. I -2-
'3'
a
(b) The Hon'ble Tribunal may further be pleased to E
direct the respondents No.3 and No.2 to allow the
applicant to continue as Joint Deputy Director at SIB,
Mumbai. .
(c) To grant cost of expenditure incurred and any other
andfurther relief in the nature and circumstances of the
case as this Hon 'ble Tribunal deems fit and proper, be
passed. " _ _
2. We have heard the arguments addressed by
Ms. Priyanka Mehndiratta, learned counsel for
the applicant and Shri N.K. Rajpurohit, learned
counsel for the respondents.-
3. . The applicant was initially appointed .as 5
ACIO--II/EDP -on 26.06.1987. He was promoted as
E
ACIO~I/EDP on l2.07.l994 and transferred to SIB
Mumbai. Thereafter, he was promoted as DCIO/EDP
on 30.06.2004 and was transferred to IB
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3 OA No. 43/.2101 9
Headquarters, New Delhi. On promotion as
Assistant. Director, Ina was 'transferred ix) SIB
Mumbai on 01.01.2015.
3.1 Now the applicant has been transferred
vide impugned order dated 31.05.2018 (Annexure
-.
A~3) 'to 113 Headquarters, New" Delhi. [His
representation. against the transfer order' was
rejected warn; order dated 21.12.2018 (Annexure
.a¢n amd vide order dated 27.12.2018.(Annexure
A-1) he was relieved from his duties from SIB
Mumbai with effect from 15.01.2019(AN) with
directions to report to JDD/C-3, IB Headquarters
after availing admissible joining, time. All
these three orders have been impugned by the
applicant vide present OA. .
3.2 The contention of the applicant is that
he was aggrieved by illegal activities prevalent
at Mumbai Office and submitted an observation on
08.02.2018 (Annexure A-4) to respondent No.3 in
this regard. Thereafter, on the direction of the
respondent No.3, he submitted his statement
dated 07.03.2018 (Annexure AH5). It is
thereafter' vide impugned. transfer order dated
31.05.2018, the applicant. was. transferredn He
has challenged all the orders referred above on
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the following grounds:-- _
(a) The transfer order is passed without
application of' mind and due to extraneous
consideration. '
(b) The respondent No.2 has transferred the
applicant from SIB Mumbai to IB Headquarters,
New Delhi on 31.05.2018 under Review SPM--2018
orders. That Review SPM orders are issued only
for those employees who had made request for
their transfer whereas applicant never made any
such request. Further, that most of the transfer
orders as shown in the Review SPM--2018 were
cancelled in respect of various other employees.
(c) That the transfer order is punitive as
the same is the result of submission of his
observation dated C$.02.2018 regarding as white
colour Gunny Bag being handed over by a
contingency staff ix; an unknown person outside
Gateel.
(d) That .in order to shield the illegal
activity of contingency staff, who was probably
acting (n1 behalf cxf some <official tiara within
the Organisation,' the respondents transferred
the applicant to Inns Delhi without considering
his statement dated 07.03.2018. -
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(e) Vide letter dated 13.08.2018 (Anneuxre Am
7) the applicant had requested Respondent No.4
to allow 1mn1'Uu appear tin: Darbar. However, it
is stated that though such request ofvarious
officials vide Annexue A-8 dated 11.12.2018 for
audience in the Darbar was approved by DIB, but
his znnma was cnnspicuously absent is1 the said
order and he was informed by R-2 to verbally
that he will have to join at New Delhi for some
S.' _
-,1 .
reason though he did not disclose the reason. ~
(f) It is' stated that the representation of.
the 'applicant. to DIB for .Darbar* was declined
vide order dated 21.12.2018 and he was directed
to be relieved on 15.01.2019 vide impugned order
dated 27.12.2018.
(g) It is further stated that there was no
emergent unavoidable public interest involved in
the transfer of the applicant and the order of
transfer is arbitrary and vitiated with
illegalities. It is stated" that there is no
administrative exigency at New Delhi as already
around 18 Joint Deputy Directors/Tech are posted
at Delhi as against one Joint Deputy Director
i.e. the applicant at Mumbai.
(h) That the applicant has been transferred at
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6
the fag end of his career where he is left only
three years and six months service. Besides, his
wife is serving as Principal of Private college
at Mumbai and hence she cannot shift to Delhi
alongwith the applicant.
(i) The son.cHi the applicant is studying in
Final 'Year cu? Graduation, lies daughter ins of
marrigable age and thus his presence is required
at Mumbai to search for a suitable match for
her. On the above referred personal grounds, the
applicant :Ms unable ix: carry out iflus_transfer
orders.
(j) ifiné applicant rmnka representation. dated
17.12.2018 (Annexure-A~12) to the DIB.
(k) That the 'applicant's statutory and
constitutional right have been violated.
4. The . respondents have' filed detailed
affidavit in reply denying the averments" as
contained in the OA and have justified the
impugned orders.
5. After hearing the submissions of both the
parties, we have carefully gone through the
material available on record.
6. As per the respondents, the applicant had
joined service at Intelligence Bureau (IB) on
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7 N033/Z012
26.06.1987 in the znnflc of ACIO~II/EDP. All the
Officers and staff' members in the Department
have All---India Transfer Liability. IB, being a
sensitive organization, the -officials are
generally transferred depending upon suitability
and requirements. The applicant has been posted
in Subsidiary Intelligence-Bureau (SIB), Mumbai
since 01.01.2015 and was transferred to New
Delhi on completion of more than 3 years in the
office (mi SIB, Mumbai. iflna applicant ir1Ihis 31
years of service has had only 3 transfers that
too only between Delhi and Mumbai. He was
I'
promoted to the rank of JDD/Tech vide IB Hqrs.
vide Order No.16/C-3/2018(1)~2536~615 dated
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31.01.2018. All these facts are not disputed by
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the applicant.. -
7." Learned counsel for the respondents has 'E'
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drawn our attention to the promotion order dated
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31.01.2018. We lnnma gone through.tjna promotion E
order which clearly- finds mention that the
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promotion shall take effect on assuming the
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charge of the, post of JDD/Tech at the present
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place of posting (in his case it is SIB, Mumbai) 5
subject to the condition that the further
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transfer/posting nmy'1xa decided in.<mna course.
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s A [email protected]/2019 A 5'
The relevant portion of promotion order is
reproduced as follows:
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"ORDER
The following Assistant Directors/Tech in [B are promoted E to the rank ofJoint Deputy Director/Tech in the Level 12 of pay matrix in the Intelligence Bureau. Their promotion shall take eflect on their assuming the charge ofthe post of JDD/Tech at their present place ofposting with immediate eflect subject to - the condition that their further transferfloosting may be decided in due course:- ' I SI (Name of the Officer Present place of N0. D.O.B./PIS N0.(S/Shri) iposting 1 2 3 a 1 'Ajay Hqrs.
g 52 @Man0j DubeyIB Hqrs.
- 103807/11.6.64 5 I_____________ _____ _______ i ........... ..
3 1Ajit' _ MathurIB Hqrs.
103803/30.5.62 5E 4 Praveen _ Singh IB Hqrs.
E *103802/11.3.64 - 1 .........
'
5 tKamal- Kishore Uniyal§SB1\/Imuhai
. 103830/4.7.62 E
6 gMs. Preetinder Juneja IB Hqrs.
i 103904/28.7.64 ' .
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7 Digamber Singh Rawat"IB Hqrs.
yyyy ' 1
sum Rao slsnydaubad
103322/10.5.62
gem.
9193894/25-3-5.4 1. . . . .
F 10 Subrata BiswassIB Hqrs. '
A 106173/1.11.67 I N
_ s 11 "S. Rajendra11%IBHqrs.
106686/2.6.68.r--"""" .------------- . . .. . . . . - - '
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E12 Laskslnman Singh Baserass SIB Dehradun
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100146/1.2.58
_ _____ __,_______
s _________ _
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9 QA-.N0. 43/Z019
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The promotion order above clearly shows a
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that on promotion the applicant was liable to be transferred in {has course. It.:Us also observed -2- that. the applicant only after accepting the é- terms and conditions of the said promotion order 5| 5H (Annexure~R*1) submitted his joining report on Ki' H 31.01.2018 and assumed the charge of the post of ii JDD/Tech in S1B Mumbai itself. If the applicant was aggrieved by this condition imposed in I .
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Annexure RH1 the promotion order, he could have challenged the same or' had made some B representation to the Competent Authority before El I?! assuming the charge of the postof JDD/Tech in SIB Mumbai. However, he 'did not -raise -any objection to the said promotion order which was 9' conditional to the effect that all those who E El were promoted. vide this order, their further El B transfer/posting may kma decided in (hue course. El E It is also pertinent to note that the applicant did run; disclose iJ1 the (Ni that Ins has Ibeen promoted to the post of JDD/Tech and {Li.. . . . . . . . . .
5'1'-'<'§'$':'f§§£§2"'*F5?5E"'§"' 11. E'j.>'§"§ -E§§"€§€"="§*;'<?2.>"%€§.<{ _ 10 QAA@4$flH9 intentionally' has not placed on record the order of his promotion Annexure Rel which contained ea specific: condition mfiiii regard ix) his transfer/posting i11 pursuance 11> the promotion, in due course. It is only the respondents who placed this document Annexure Re 1 on record alongwith their reply. The applicant has withheld this document and adverse inference is liable to be drawn against him. The applicant has not even whispered about his being promoted to the rank of JDD/Tech in the level 12 of pay matrix in the intelligence Bureau vide order dated 31.01.2018 and' has tried to give a different colour to his transfer from Mumbai to New Delhi vide impugned order dated 31.05.2018. The argument (Hf learned. counsel. for "the applicant is that the impugned transfer order \-
dated '31.05.2018 is not in pursuance to the promotion order.Annexure R-1 dated 31.01.2018 as there .is ZN) proximity emf time ;n1 both. these orders. However. we are not convinced with this argument of the applicant as in the promotion order ii; is specifically mentioned.1finn: "their further transfer/posting may be decided in due course" and no time limit was fixed as to when rygmpw.. . . . . . . . . . . .Ii
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E *?I' 11 OAB@€iZU9 such orders will be issued. The applicant was fully aware about the terms and conditions of his promotion " _ order that further B transfer/posting would be decided in due course. B
8. The other contention of the applicant is E that the Review SPM orders are issued only in 5 respect of those employees who have made request for their transfers whereas the applicant never E made any such request. But this fact has been specifically denied by the respondents in their reply. Learned counsel inn: tme respondents has submitted that the SPB and Review SPB orders are issued every year to nmintain the proper E deployment. of officers throughout 'the country and that the applicant who has already put in 30 E years of service is well aware of this fact. It a is also stated that it is not material whether B _ \-
E the.applicant had applied or not applied for his transfer and that the transfer was in pursuance tr: the jpromotion. order .Annerure: R-1. We find force in the argument of the learned counsel for E the respondents. Moreover, all these contentions El of the respondents are not denied or rebutted by the applicant. Learned _ counsel -\ _for _the E respondents Inns further drawn (nu: attention to mfimww@rw """""""""""""""" '-
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In 12 OANO. 43127019 the fact 'that Annual General Transfers are generally done by the Competent Authority at IB Headquarters, after considering various aspects like suitability anwi functional requirement of the officers aflj. over India. ]k1 the instant case, the applicant was transferred to IB Headquarters New Ikflini-after completion <uf his normal tenure of three years in SIB,.Mumbai and in view of the acceptance of the terms and conditions of -the promotion- order. Thus the transfer of the applicant was part hof the process of Annual General Transfers, 2018 vide IB Headquarters order dated 31.05;2018. 1'
9. It is further observed from record that the applicant had submitted representation dated 14-06.2018 for cancellation of his transfer w which was duly "considered by 'the Competent ' 1 F | Authority and the same was not accepted. Aggrieved by the decision of the Competent .Authority, the applicant had applied for personal audience before the Director, Intelligence Bureau lfikmni of Department)and he was personally heard by the' Director, Intelligence Bureau (IB) on 15.12,2018. Here also mmzgyni an opportunity to make observation qqflw.. . . . . . . . . . .-' ~- ~:r---->;--:.---*1:;*::.:.---'--------------"----""-""""'1:1""""""'*=»'-=W""='=*-*'P-'FP-A-'F-'I$5.-2-.=.-Li"$111*23'f;?Z;§<:§§§§§q_fi§§59;.31-,15}3;§;;;§;g;;:§;§ggr/ggggg _____ n§§;{><§$.<'>&<"E§ri§€'{§$& 'kg? -is-§' ?§§§§§€"§§§1X<'§{ 13 _ OA No.43/2019 about the_ndschievous conduct cfififlns applicant who in his OA at para No.4.5 has stated on oath that Ina had requested Respondent No.4 ix; allow him to appear for Darbar vide his letter dated 13.08.2018 (Anneuxre AM7) but though. such request of various officials was approved vide order dated 11.12.2018 (Annexure A+8). the name of the applicant was conspicuously absent. However, the perusal of Annexure A~8_shows that the name of the applicant appears at Serial No.15 on page 2 of the document and DIB had approved lfias request.:fim: audience ill Darbar at 10.30 hours December 15, 2018. In view of this document which has been placed on record by the applicant himself, it does not lie in his mouth to state that he was not given audience in Darbar. Tflua respondents lwnma categorically submitted in their reply that the applicant was al1owed_ personal hearing on 15.12.2018, so therefore his grievance to this effect is of no consequence. .Annexure Zed? dated. 21.12.2018 is the relieving order" which. also clearly finds mention that applicant had appeared before DEB in Darbar on 15.12.2018 and. his request for cancellation of his transfer order was not qi....1.. . .
__ ""r.f;_;g-'-§_=r-"";*>*>-<=****"M**** ------------------~;-3.; ya'-HEm;'"""""""""==Z"§' 'Q?-¥.=_ W?' 035-; eygygggyrgegggfggg ygrgfiigrg 14 OA N0. 43/2.019 agreed upon and copy of this document was also sent to 1flua applicant.. Eh: the applicant had been given an opportunity to make his representation before DIB in Darbar.
10. It is contended by the applicant that the impugned orders are passed for "extraneous consideration. thus. he is alleging malafide against the respondents. However. careful perusal of the entire record do not suggest that the impugned orders are suffering fromi any malafide. TM; the contrary ting? are .issued is1 furtherance of the promotion order dated 31.01.2018 and the applicant was very much aware of this fact that sooner or later he would be transferred. The record further 'speaks that there is no Iproximity between submission of observation. dated 08;O2.2018 kg? the applicant about his witnessing a contingency staff handing over a Gunny bag to some unknown person followed .-P kg? his "written. statement. dated. 07.03.2018 and the impugned "order of transfer. as if the applicant was to be transferred on account of this incident, he could have been immediately or within reasonable time transferred out of Mumbai but time transfer order cane cni 31.05.2018 i.e §§WW-;....l.. ..1 _______________________________1:: ?:-.- -.-,-.--.- -,_.-.-.--:-:-:--- :--:------------~-------------------------------------------"-"'-"'1f_1"""""""='-- -*1-*1-'.1E::_";'_fQ';'E1'-3>§';'§§§{EQfifF3'-1"°'§'T'5'{.;§.E;§_=_§:~§;-:§_.:;><;'<§=;5:'f_f=\\\\\\. \_€-.\Q'§:r<-'-'='--;q.E'§§-?-5--- ':'_"'_'-'-\-"-'-E-.\_§"'_'"_"?,';";<§\§"'''''' 15 OA N0. 43/Z01 after more than 3 months. Similarly. he was not relieved. from. his jpresent. posting" immediately after the transfer order, but was given audience in Darbar by DIB on his representation. Hence there do not appear to be any nexus between the reporting of the incident against a contingency staff by the applicant and the impugned transfer order. The other contention of the applicant is that time transfer order jii punitive iJ1;nature, is again of no consequence as it is admitted fact that the applicant during his service tenure of 30/31 years has been transferred only three times that too cnflq7'Ua Delhi and Mumbai. There is no doubt that the transfer of the applicant is only in pursuance to his promotion order dated 31.01.2018 (Annexure End). It is further observed that ijnnnfl1 the applicant has alleged malafide in the issuance of the impugned orders. however lwa ihas not impleaded any authority kn? name. THwa burden <mf establishing malafide is very heavy on the person who alleges it. The Hon'ble Apex Court dealt with this issue in the case of S. Prarap Singh Vs. Stare 0fPnnjab (1966) ILLJ 458 SC and again in E.P. Royappa Vs. Stare of Tamil Nada and Am. (1974) I LLJ I72 SC and made the following pertinent , . \ . . , _._..._._: ............... '_,,_
-------------..-_-:::_ __ . .-- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-.\_..,\_.:,-_-.1I;Ir_-:P\%' _ _ __ 2I\-.\_1'%.............._ { 'N ________€__ r a\ an ii" <2 _ »m%mE§8.$ss mmmes >;/ *<<;<<;:1r§§gs;e§rr§j%* 16 OA No. +43/2 observations:~ "92. Secondly, we must not also overlook that the burden of- establishtng mala fides ts very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such . allegations demands proof of a high order of credibility. Here the petitioner, who was himself . once the Chief Secretary, has flung a series of charges of oblique conduct against the Qhtef Minister. That ts tn ttseh' a rather -' extraordinary and unusual occurrence and n' these charges are true, they are bound to shake the confidence of the people tn the political custodians ofpower in the State, and therefore, the anxiety of the Court should .be all the greater to insist on a high degree ofproof In this context it may be noted that top administrators are oflen required to do acts which ajfect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstructton and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would therefore, be slow to draw E 1 dubious inferences fiorn incomplete facts placed before 'it by a party, particularly when the tmputattons are grave and they are made against the holder of an ojfice which has a high responsibility tn the administration... "
The applicant has -failed to bring sufficient material on record -of alleged malafide against any particular officer of the respondents in issuance of the impugned orders. _ ll. The argument of learned counsel for the applicant that Review SPM is conducted only to consider request of various officers for their transfer is not supported by any" material. Learned counsel for the respondents _has submitted that Review SPM is regularly held every year in _February, March and generally r after promotion order is issued. The other __ . _._ ._. _. \ , . . . ) § _ . .... , , . , » . . . . .. .. , .. . ~ , . . . . . . . . .. . . . . ,I_ I I _ \ . § . _ _I_ _I_ I . . . . . .. <.',§ -{X , - - - --;- ___ 1? e/2019 contention of the applicant is that vide Review SPB the "transfer orders (ME 25' officers were cancelled whereas despite the representation of the applicant, his transfer order was not withdrawn. However since the case files of these 25 officers are run; before the Itibunal so ems cannot assess their case as to why their request
-E3 for' transfer was accepted. Merely for the reasons that 25 persons request for transfer was acceded to, the applicant cannot get relief vide present OA for stay of his transfer. The case of each officers has to be dealt with according to its own facts and circumstances.
12. It is not disputed by the applicant that all the members of Intelligence Bureau (IB) have All India Transfer Liability." In catena of judgments the Hon'ble Apex Court has dealt with the issue under consideration. The few of judgments are as under:*-
In the case of State of Andcclgthersy GvbcertlhqnccLelrepvrzed tn20Q4(»5'C) 2165, the Horflble Apex Court observed as under: -
" 8 . It is too late in the dayfor any Government Servant to contend that once appointed or posted in a particalar 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 inherent in the terms of appointment but also implicit as an essential condition of service in the absence iKci,r.Wctt t t t t t t ~ .......................................................................................................................................................................... ,,.__,,_, i \ <5 <i r\<s'~i -in 13 O./1 No.43/2019 of any spechic indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise ofpower or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order 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 regulating 'transfers or containing transfer policies at best may ajford an opportunity to the ofiicer 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 ojficial status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not 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.
9. A 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, which could assess the niceties ofthe administrative needs and requirements of the situation concerned This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for thatof competent authorities of the State and even allegations 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 conjectures or surmises and I except for strong and convincing reasons, no interference could ordinarily be made with an order oftransfer; "
In Shtlpttficse(Mrs-J Stateref Biker and others,,(1991) the Hon'ble Apex Court observed that -- -
"In our opinion the Court should not interfere with the "\,ii,,.,a,_.. . . .
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. 19
transfer order which is made in public interest and for adniinistrative reasons unless the transfer orders are made in violation of any statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to reniain posted at one place or other, he is liable to be transferred from one place to i the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order and instead ajfected 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 case of State of M.P. and others Vs .
S S. Kourav and others, 1993(3) SCC 276, it was held that ~ "The Courts or tribunals are not appellate forums to decide on transfer of ofiicers on administrative grounds. 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 considerations without any factual backgroundfoundation. In this case transfer orders having been issued on administrative grounds, expediency ofthose orders cannot be examined by the court. " .
In case of El¢t¢tShaktt ..
it_ has been held that -
"Wile exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution "lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional G limits or statutory power. (See Ashif Hamid v. State ofJ.& K. (AIR 1989 SC 1899), Shri Sitaram Sugar ' Bi iii'; '€v'"\$i§ e%§%1§'?$¥%ifi¥i%'§$hiiil€is<§§§§ .20 . OA No. 4312.01.9 Co. v. Union of India (AIR 1990 SC I277). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution.
"Thus, the position is that even ij" the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere. " I - ' s
13. It is settled proposition of law that power of this Tribunal for judicial review of an In administrative action is' limited to the x extent to ' ensure that ' the administrative action is not against any statutory provisions or is violative of the fundamental rights or is opposed to the provisions of the Constitution. None of these conditions are satisfied in the present case. It is admitted
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case of both the parties-that the officers and staff' of the IB department have All India Transfer Liability. The "applicant cannot be allowed to contend that he should continue to remain posted. at Mumbai only. The personal grounds cited by him to continue at Mumbai are also not convincing. His wife is Principal in a college and both the children are grown up and can manage their affairs even in the absence of the applicant as they too aware of the fact that the job of the applicant is transferable and the transfer order is'as a P ( "-r"°"'*--c\--"'- 1-qr-w.-- www-'"'"*"" ' "H "ii _ ' I " I '-
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. 21 OA,No. 43/Z019
consequence of promotion to the post of
JDD/Tech, Moreover, learned counsel for the
applicant during' the course of .argumentT has
admitted tjnn: earlier 'whenever time applicant
was transferred out of Mumbai, his family
stayed.an; Mumbai itself. So runs there is Inn
change in the circumstances to plead that he
should not be transferred out of Mumbai. l4.- As held by the Hon'ble- Apex Court, transfer of "an 'employee is not only -an incident inherent jx1 the ternm cxf appointment but also implicit as an essential condition of service iJ1 the absence 'an? any specific indication to the contra, in the law governing or conditions fixf service. 11: is further held that unless the order of transfer is shown to be an outcome of a malafide exercise of power or violative of any statutory provision or passed by an authority not competent to do so, an. order (ME transfer' cannot .lightly ins interfered with' as a matter of course or routine for any or every type of grievance sought to be made. None of these conditions are fulfilled in the present case. There is no material ant record tflwnz the txansfer <xf the . '"€K_F_;,,,,,i_,,.Wr..r......
~1'?'§§.l;'\,i_;>?j=*:-:-:-:-'<-:-:ei5='§.'*~--5%.......... _,K\§}_§§,\"'A?/*.. >\\'%>'Q'§§§'*"*?>»
- 22 OA 1-'x(_fl.}.'!..%?3H20.-Z9
-r applicant is an outcome of a malafide exercise cxf power nor ii: is shown txi be violative of any statutory provision nor it is passed by an incompetent authorityu At the l1nost,_ the applicant could make representation against |_, -_ the order of transfer which he did but the Competent Authority rejected the same in vdew of time administrative reasons. 31; is settled principle of law that a challenge to an order of transfer' should Jnormally Ina eschewed. and should not be interfered by the Courts or the Tribunals as it is the competent authority who is competent to assess the administrative needs and requirements of the situation concerned. In the present case, the promotion of the applicant vide order dated 31.01.2018 was subject to the condition that _ his transfer/posting awn/Ibe decided in chne course anni consequently Ina was transferred vide impugned order dated 31.05.2018. _
15. In view of the above discussion, we do not find any merit in the Original Application.' Hence, the same is hereby dismissed. The cost of Pmnl0,000/r is imposed upon the applicant for misusing the process of "L .. ,. ......
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23 OA No.43/2019
law. The cost be deposited with CAT Bar
Association, Mumbai - for library" purposes
within a period of two weeks from the date of receipt of certified copy of this order;
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