Central Administrative Tribunal - Kolkata
Mohammed Waseem vs A & N Administration on 20 May, 2025
1 OA 1153/2024/AN
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A./351/01153/2024/AN
Date of hearing : 15.05.2025
Date of Judgment : 20.05.2025
Coram: Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
Mohammed Waseem,
Son of Late Abu Backer, aged about 40 years, 22/3 Church Lane,
Golghar, Port Blair, Pin- 744102.
.............. Applicant
-Vs-
1. The Lieutenant Governor, Andaman and Nicobar Islands,
Rajniwas, Port Blair, Pin- 744101.
2. The Chief Secretary, Andaman & Nicobar Administration,
Port Blair, Pin- 744101.
3. Secretary, RD PRIs & ULB Secretariat, Andaman & Nicobar
Administration, Port Blair, Pin- 744101.
4. The Director, RD PRIs & ULB Directorate of RD PRIs &
ULB, Marine Hill, Port Blair, Pin- 744101.
5. The Assistant Director, RD PRIs & ULB Directorate of RD
PRIs & ULB, Marine Hill, Port Blair, Pin- 744101.
6. The Executive Officer, Panchayat Samiti, Ferrargunj, South
Andaman, Pin- 744102.
...........Respondents
For The Applicant(s): Mr. Bharat Bhushan, Counsel
For The Respondent(s): Dr. D. Chowdhury, Counsel
Digitally signed by SONALI LAL
SONALI
DN: C=IN, O=Personal, T=0572, OID.2.5.4.65=
1335963617493834803xeKNGD5eN7bXL, Phone=
d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997
0cce81465079777, PostalCode=800009, S=Bihar,
SERIALNUMBER=
b85cadb360af4981732c949bc31df6d98e2c92428456adc5
LAL
33ade9e38d5aed96, CN=SONALI LAL
Reason: I am the author of this document
Location:
Date: 2025.05.20 15:02:16+05'30'
Foxit PDF Reader Version: 2024.3.0
2 OA 1153/2024/AN
ORDER
Hon'ble Suchitto Kumar Das, Administrative Member The OA was heard by the Division Bench consisting of Hon'ble Smt. Urmita Datta (Sen), Judicial Member and Hon'ble Mr. Anindo Majumdar, Administrative Member on 13.12.2024 and was reserved for final order on the same date.
Hon'ble Member (A) drafted the final order in the matter and put it up for the approval of Hon'ble Member (J). Hon'ble Member (J) differed with the order of Hon'ble Member (A) and recorded her views in a note dated 11.02.2025. The matter was referred to the Hon'ble Chairman, Central Administrative Tribunal with the following note containing the points of disagreement :-
"REFERENCE UNDER SECTION 26 OF THE ADMINISTRATIVE TRIBUNALS ACT, 1985 We, the members of the Kolkata Bench of Central Administrative Tribunal have differed in the order to be passed in OA No. 351/1153/2024 (Mohammed Waseem vs. Andaman & Nicobar Administration and others). We have differed on the following questions, which are referred to the Hon'ble Chairman on Central Administrative Tribunal under Section 26 of the Administrative Tribunals Act, 1985 :-
1. Whether the transfer of the applicant as Panchayat Secretary from Shoal Bay to Kishori Nagar was made on wider administrative/ public interest?
2. Whether the transfer of the applicant from Shoal Bay to Kishori Nagar was punitive in nature?
3. Whether it was proper on the part of the Andaman and Nicobar Administration to transfer the applicant as Panchayat Secretary from Shoal Bay to Kishori Nagar on administrative interest on the allegations made against him regarding his irregularities and absence from duty every week on Friday and for short period during other week days instead of issuing show cause notice or initiating any disciplinary proceeding against him for his irregularities in attending his duties as per rules ?
4. If for argument sake, it is accepted that the respondents had transferred the applicant in wider public interest, whether it was fair on the part of the respondents to transfer the applicant before completion of his tenure of 3 years at one place by violating the existing Transfer Policy at the time when his wife was in a family way?"Digitally signed by SONALI LAL
SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 3 OA 1153/2024/AN Hon'ble Chairman, CAT vide order dated 03.04.2025, appointed me as the Third-Member in the matter. Accordingly, the matter was heard on 07.05.2025 and 15.05.2025.
2. The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"(a) To quash and/or set aside the impugned Order NO. 966 dated 01.08.2024 and its reliving order no. 225 dated 12.08.2024 passed by the respondent no.4 and 6 as the same is violation of natural justice.
(b) Direction upon the respondents to allow the applicant to remain in South Andaman (Zone-A) until the completion of stipulated tenure as per transfer policy, 2007.
(c) Any other order or orders as this Hon'ble Tribunal may deem fit & proper."
3. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-
With the approval of the Director (RD/Panch), a draft transfer order, vide Office Order No. 691 dated 6th June, 2024, was issued whereby claims and objections were invited latest by 12/6/2024 against the proposal to transfer the applicant, Shri Mohammad Wasim , Panchayat Secretary from Shoal Bay to Paschim Sagar. The applicant submitted a representation against the said order. However, the said representation was not considered by the respondents and vide Office Order No. 746 dated 13th June 2024, the applicant was transferred to Kishori Nagar with additional charge of Paschim Sagar. Aggrieved by the said transfer order, the applicant filed an original Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0
4 OA 1153/2024/AN application being No. 351/795/2024 before this tribunal which was disposed by this tribunal vide order dated 18/6/2024 with the following directions:-
"9. Accordingly, the respondents are directed to consider the grievance of the applicant as mentioned in the representation dated 7/6/2024 in accordance with extant rules as well as the Transfer Policy dated 30/7/2007 and pass a reasoned and speaking order within a period of 4 weeks from the date of the receipt of a certified copy of this order and communicate the decision to the applicant forthwith. Till date of communication & one week thereafter, no coercive action shall be taken against the applicant."
In compliance with the aforesaid directions of this tribunal, the Director (RD/Panch), vide Order No. 966 dated 1st August 2024 rejected the prayer of the applicant as made by him vide this representation dated 07.06.2024. Aggrieved by the rejection of his representation, the applicant has filed the instant Original Application before this tribunal. The said application was initially heard on 16/08/2024 wherein the tribunal had directed as under:-
{Emphasis supplied} "Ld. Counsel for the applicant further submits that the applicant has already been relieved on 12.08.2024.
After hearing Ld. Counsel for both the parties and upon consideration of the material on record, I am of the view that this matter requires to be "admitted". List the matter on 21.08.2024 and until then respondents shall not take any coercive action. The matter be listed under the "Direction & Orders".
A copy of this order be handed over to Ld. Counsel for both the sides."
4. At the outset, Learned Counsel for the applicant pointed out that as per Section 26 of the Administrative Tribunals Act, adjudication by the Third Member in the event of a disagreement is confined to the points of disagreement only.
4.1 Learned Counsel for the applicant submits that the applicant had spent less than three years in Zone-A which has a minimum tenure of three years as per the transfer policy of the Andaman & Nicobar Administration. Therefore, applicant's transfer from Zone-A to Zone-B is violative of the transfer policy.Digitally signed by SONALI LAL
SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0
5 OA 1153/2024/AN 4.2 Learned Counsel for the applicant further submits that the submissions made by the respondents leave no doubts that the impugned transfer order was issued as a measure of punishment. Respondents have admitted that the applicant was transferred after complaints were received about his unsatisfactory performance, lack of punctuality in attending office etc. Learned Counsel for the applicant submits that these allegations were made against the applicant with ill motive by the Panchayat Pradhan and the Panchayat Members. Before taking action against the applicant, the respondents should have afforded an opportunity to the applicant to defend himself against the accusations against him. 4.3 Learned Counsel for the applicant submits that even if the respondents prima facie concluded that the applicant was guilty of the charges made against him, disciplinary proceedings under the Conduct Rules should have been initiated against him. Transfer cannot be resorted to as a punitive measure and is liable to be set aside. Learned Counsel for the applicant submits that the applicant's transfer order is malafide as it suffers from both malice in fact as well as malice in law. He cites the judgments of the Hon'ble Supreme Court in Somesh Tiwari vs. Union of India and others in (2009) 2 SCC 592 and of Hon'ble Calcutta High Court in Ajit Kumar Singh vs. Union of India and others in W.P. 15782 (W) of 2019.
5. Per contra, Learned Counsel for the respondents submits that the Panchayat Secretary has to work in close cooperation with the elected representatives of the Panchayat. Panchayat Pradhan and the other members of the Gram Panchayat had informed the administration in writing of certain facts which indicated that the coordination between the Panchayat Samity and the Panchayat Secretary was completely missing in the case of Shoal Bay Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0
6 OA 1153/2024/AN Panchayat. In the assessment of the administration, absence of such coordination would adversely affect the working of the Gram Panchayat. Therefore, it was considered administratively prudent to transfer the applicant to another Panchayat office where it was expected that his services can be fruitfully utilized.
5.1 Learned Counsel for the respondents vehemently opposes the notion that the transfer was punitive in nature and submits that the service condition of the applicant was in no way altered by this transfer. The applicant has no inherent right to choose his place of posting. It is for the administration to decide where to utilize the services of an employee in the best manner possible.
5.2 Learned Counsel for the respondents further submits that the transfer policy indicating a three years tenure in Zone-A is a guideline and not a statutory provision. In the opinion of the administration, continuing with the posting of the applicant at Shoal Bay Panchayat would have resulted in disruption in the working of the Panchayat. Not being considered suitable for the post of Panchayat Secretary at Shoal Bay, he was transferred from Shoal Bay to ensure smooth functioning of the Shoal Bay Panchayat. Such transfer in no way amounts to a punitive action.
5.3 Learned Counsel for the respondents submits that pursuant to the Tribunal's order, an opportunity was given to the applicant to represent his case. His explanation was considered by the authorities who passed a reasoned order upholding their earlier decision to transfer the applicant from Shoal Bay. Therefore, there has been no violation of the principle of natural justice in this case.
Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 7 OA 1153/2024/AN 5.4 Learned Counsel for the respondents submits that in Somesh Tiwari (supra) , Hon'ble Supreme Court had ruled that an order is liable to be set aside if it has been passed with proven malafide which can be either malice in law or malice in fact. Neither of these malices exists in the present case and hence no malafide exists in the transfer order which merits no interference by the Court. Learned Counsel for the respondents further submits that the judgment in Ajit Kumar Singh (supra) is also not applicable in this case.
5.5 Learned Counsel for the respondents submits that the applicant has not carried out the transfer order even after the issue of the speaking order on 01.08.2024 rejecting the applicant's request. He points out that neither his grounds, i.e., wife's pregnancy and non-completion of his tenure of three years is valid anymore at the present time.
6. Heard the parties. Perused material on record. 6.1 In terms of Section 26 of the Administrative Tribunals Act, 1985, I proceed to consider the following points as contained in the note to the Hon'ble Chairman outlining the points of difference of opinion between Hon'ble Smt. Urmita Datta (Sen), Judicial Member and Hon'ble Mr. Anindo Majumdar, Administrative Member.
6.2 It is well settled position of law that transfer of an officer/employee is inherent in terms of the appointment and in absence of its provision in the relevant Service Rule, it is implicit as an essential condition of service subject to contrary provision in the rule.
In the case of Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna and others, reported in (1981) 2 SCC 72, the Hon'ble Supreme Court ruled as under:
Digitally signed by SONALI LAL
SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 8 OA 1153/2024/AN "2. .....Transfer of a Government servant may be due to exigencies of service or due to administrative reasons. The courts cannot interfere in such matters. ...."
In B. Varadha Rao v. State of Karnataka and others, reported in (1986) 4 SCC 131, the Hon'ble Supreme Court had the occasion to consider a short point whether an order of transfer is appealable under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, and the Supreme Court held that transfer of a government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions 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. In the case of Shilpi Bose (Mrs) and others v. State of Bihar and others, reported in 1991 Supp (2) SCC 659 the Hon'ble Supreme Court set aside the judgment of the Patna High Court and held as under:
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day- today 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.Digitally signed by SONALI LAL
SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 9 OA 1153/2024/AN The law laid down in Shilpi Bose (supra) was again reiterated by the Hon'ble Supreme Court in the case of Union of India and others v. S.L. Abbas, reported in (1993) 4 SCC 357, and observed as under:
"6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority".
The Hon'ble Supreme Court again dealt with the matter of transfer in the case of State of U.P. and others v. Gobardhan Lal, reported in (2004) 11 SCC
402. The Supreme Court held that 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 of the 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 that of 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 except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. Similar view has been reiterated by the Hon'ble Supreme Court in the case of Rajendra Singh and others v. State of Uttar Pradesh and others, reported in (2009) 15 SCC 178, and held as under:
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 10 OA 1153/2024/AN appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402;
SCC p. 406, para 7).
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides..."
In Rajendra Roy Vs. Union of India & another, JT 1992 (6) SC 732, it was said "in a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department." In N.K. Singh Vs. Union of India, JT 1994 (5) SC 298, the Hon'ble Apex Court said:
"Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers....."
In Abani Kanta Ray Vs. State of Orissa & others 1995 suppl. (4) SCC 169 the Hon'ble Supreme Court observed:
"It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer."
In National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan 2001 (8) SCC 574, the Hon'ble Apex Court held that transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. In Public Service Tribunal Bar Association Vs. State of U.P. & another 2003 (4) SCC 104 the Court said, "Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the Courts. This Court consistently has been taken a Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 11 OA 1153/2024/AN view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner."
In Union of India VS. Janardhan Debanath, JT 2004 (2) SC 371, the Hon'ble Apex Court said, "No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management...." In Prasar Bharti Vs. Amarjeet Singh 2007 (9) SCC 539, the Court said that an order of transfer is an administrative order. There cannot be any doubt that the transfer being an incident of service should not be interfered except some cases where, inter alia, mala fide on the part of the authorities is proved. In Union of India & another Vs. Murlidhar Menon & others 2009 (11) SCALE 416 the Court observed that even if the conditions of service are not governed by the statutory rules, yet the transfer being an incident of service, an employee can be transferred which may be governed by the administrative instruction since an employee has no right to be posted at a particular place. 6.3 In Somesh Tiwari(supra)cited by Learned Counsel for the applicant , there were anonymous complaints of caste bias against the petitioner which could not be proved in an enquiry undertaken by the respondent organization. Even then the petitioner was transferred first from Bhopal to Shillong and then from Bhopal to Ahmedabad without cancelling the first order of transfer from Bhopal to Shillong although the petitioner had not carried out his Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 12 OA 1153/2024/AN transfer to Shillong. Hon'ble Supreme Court in its order dated 16.12.2018 observed as follows :-
"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds- one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
6.4 In the instant case, the applicant has been transferred to a different location as in the opinion of the administration he was unable to discharge his duties in his present post. He was also not able to maintain proper coordination with the Panchayat Pradhan and the other members of the Gram Panchayat Samity who are tasked with running the administration at the Panchayat level. It is the responsibility of the administration to ensure that a government servant is suited to hold a particular position. Hon'ble Supreme Court in the catena of judgments quoted above has reiterated that it is the right of the administration to place an incumbent in a particular post on the basis of his suitability for the post. In the instant case, in the administration's view, the applicant is not suitable for the post at Shoal Bay due to open conflict between him and the Panchayat functionaries. It is therefore held that the transfer of the applicant from Shoal Bay was ordered in administrative interest.
Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 13 OA 1153/2024/AN 6.5 Learned Counsel for the applicant has relied on the judgments in Somesh Tiwari (supra) and Ajit Kumar Singh (supra) to buttress his argument that punitive transfer is unsustainable. There is no dispute that a transfer order passed in lieu of a punishment cannot be sustained for the reason that transfer is not mentioned as one of the punishments provided for in the Conduct Rules. In the instant case, there is no evidence that the applicant was transferred as a measure of punishment. The respondents have taken cognizance of the letter written by the Panchayat Members to the extent that they have reached the conclusion that there is a breakdown of working relation between the Panchayat Samity and the Panchayat Secretary creating an impasse in the functioning of the Panchayat at Shoal Bay and the way out of this impasse was to transfer the Panchayat Secretary, applicant herein, to another Panchayat. The decision to transfer him was not taken to punish him but to ensure smooth functioning of the Panchayat. The transfer order as well as the speaking order carry no indication that the transfer is intended as a measure of punishment. If anything, the decision to transfer the applicant from Shoal Bay has been taken only to ensure smooth functioning of the Panchayat administration at Shoal Bay. It is therefore held that the impugned transfer order is not punitive in nature. Judgments in Somesh Tiwari (supra) and Ajit Kumar Singh (supra) which have held that punitive transfers are not sustainable, are therefore, not applicable in this case.
6.6 Transfer of the applicant from Shoal Bay was without doubt based on the letter from the Panchayat Pradhan and the Panchayat members. However, as observed above, this letter was taken cognizance of, to arrive at the conclusion that the relations between the Panchayat members and the applicant, who was the Panchayat Secretary had broken down to the extent Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 14 OA 1153/2024/AN that it was detrimental to the functioning of the Panchayat administration.
Therefore, in the opinion of the administrative authorities, transfer of the applicant from Shoal Bay was the solution to ensure smooth functioning of the Panchayat at Shoal Bay. Transferring the applicant does not preclude initiation of disciplinary proceedings against the applicant by the respondents, if in the opinion of the respondents, the applicant has prima facie violated the Conduct Rules. At the same time, it is not a pre-requisite that disciplinary proceedings are initiated prior to issue of a transfer order in a case like the instant one where continuance of the applicant as Panchayat Secretary at Shoal Bay had become dysfunctional to the functioning of the Panchayat. Disciplinary proceedings and transfer are two separate administrative actions which are not mutually exclusive. The fact that no disciplinary action has been initiated against the applicant does not mean that disciplinary action will not be taken at a future date, nor does it automatically render the transfer order a punitive action. It is therefore held that the transfer of the applicant from Shoal Bay cannot be termed as a punitive action. 6.7 Applicant has alleged that his tenure in Zone-A as per policy is 3 years, whereas he has been transferred after 2 years. There has thus been an express violation of their own policy by the administration Relevant extract from the Transfer Policy dated 30.07.2007 is reproduced below :-
"No. 55-3/2007-PW Andaman and Nicobar Administration Secretariat Port Blair, dated the 30th July, 2007 CIRCULAR Sub: Transfer Policy-regarding.Digitally signed by SONALI LAL
SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 15 OA 1153/2024/AN ............................
2. TENURE OF POSTING : Normal tenure of postings in different groups of Islands is as under :-
Zone Group of Islands Tenure of posting
Zone A South Andaman District except 03 years
Little Andaman, Havelock, Neil
Island & Offices of the A & N
Administration located at mainland
.......................................
As per the policy normal tenure in Zone A, which comprises South Andaman except Little Andaman, Havelock, Neil Islands and offices located in mainland, is 03 years. The use of the term 'normal' in the abovequoted para clearly implies that in special circumstances, tenure can be altered. In the opinion of the respondents, lack of coordination between the Panchayat Secretary and the Panchayat members including its Pradhan constitutes a special circumstance which merits the applicant's transfer from his present post. To quote from Hon'ble Supreme Court's judgment in Gobardhan Lal (supra) :
"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."
6.8 As has been observed above, transfer in the instant case was effected to ensure smooth functioning of the Shoal Bay Panchayat. I do not find any evidence in either the transfer order, the subsequent actions of the respondents, of malafide on account of either malice in law or malice in face. I therefore, do not find any mala fide in the impugned transfer order which has been passed in order to ensure efficient working of the administrative Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0 16 OA 1153/2024/AN machinery, nor is there a violation of a statutory provision in issuing the transfer order.
6.9 In view of the discussion above and the ratio laid down in the catena of judgments quoted above, I find no legal infirmity in the impugned transfer order and hence I find no reason to interfere with the impugned orders dated 01.08.2024 and 12.08.2024.
7. OA is dismissed being devoid of merit. There will be no order as to costs.
(Suchitto Kumar Das) Administrative Member sl Digitally signed by SONALI LAL SONALI DN: C=IN, O=Personal, T=0572, OID.2.5.4.65= 1335963617493834803xeKNGD5eN7bXL, Phone= d55227c56413c0574ef7e92b84fad3fa8644c2a67fb01f997 0cce81465079777, PostalCode=800009, S=Bihar, SERIALNUMBER= b85cadb360af4981732c949bc31df6d98e2c92428456adc5 LAL 33ade9e38d5aed96, CN=SONALI LAL Reason: I am the author of this document Location:
Date: 2025.05.20 15:02:16+05'30' Foxit PDF Reader Version: 2024.3.0