Central Administrative Tribunal - Mumbai
Jayesh Mohan Solanki vs Ordnance Factory on 24 May, 2024
1 OA No.1113/2023 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.1113/2023 Dated this Friday, the 24°" day of May, 2024 CORAM: SHRI RAJINDER KASHYAP, MEMBER (ADMINISTRATIVE) Jayesh Mohan Solanki, Aged about 53 years, At present working as a Ward Master, Ordnance Factory Hospital, Khadki, Pune 411003, Residing at : "C" 11, Mithila Nagari Aundh Road, Pune, Pin 411 020, Mob. No.9403317102, Email : [email protected]. - Applicant (By Advocate Shri A.A.Manwani) Versus 1. Director General Ordnance (C&S), Directorate of Ordnance © 10-A, S.K. Bose Road, Kolkata (Hospital & School Division), Pin No.700 001. 2. Deputy Director General (H&S), Directorate of Ordnance (C&S), 10-A, S.K.Bose Road, Kolkata, (Hospital & School Division), Pin No.700 001. 3. Director Health Services, Directorate of Ordnance (C&S), 10-A, 5.K.Bose Road, Kolkata, (Hospital & School Division), Pin No.700 001. 4, Deputy Director General, Field Unit, Ammunition Factory, Khadki, Pune 411 003. Page 1 of 33 2 OA No.1113/2023 5. Incharge, Chief Medical Officer, Ordnance Factory, Khakdi, Pune 411 003. - Respondents (By Advocate Shri N.K.Rajpurohit) Reserved on 09.05.2024 Pronounced on 24.05.2024 ORDER
The applicant has filed this Original Application under Section 19 of the Administrative Tribunals, Act, 1985 by challenging the impugned order dated 12.09.2023 (Annexure A-1} wherein he has been transferred from Ordnance Factory Hospital (OFH), Khadki to the Ordnance Factory Hospital, Dehu Road. The respondents while transferring him has stated that the said transfer is of permanent nature and on public interest and will take effect immediately. The applicant has prayed for the following reliefs :-
"8(a) This Hon'ble Tribunal will be pleased to quash and set aside the Transfer Order dated 12.09.2023 (Annexure A-1) and also Relieving Order dated 22.11.2023 (Annexure A-3).
&(b). Any other or further order may be passed in the interests of justice. .
&{c}. Cost of this Application may be provided."Page 2 of 33
3 OA No,.1113/2023
2. Theapplicant states that he was appointed as Medical Assistant in the year 1994. He promoted to the post of Ward Master in the year 2020. He states that he has discharged his duties in diligent manner and has also been involved in the activities of Trade Union as a Union Leader for the welfare of the Medical and Paramedical Staff working in the Ordnance Factories in the Pune Hospital.
2(a). The applicant states that there are only 17 posts of Ward Master in Ordnance Factory Hospitals established throughout India. Ward Masters are required and necessary only in the hospitals which have sufficient large number of patients admitted in the said hospitals. He states that he is working in the Ordnance Factory, Khadki, Pune which have capacity of 125 Beds for indoor patients.
2(b). The applicant contends that he is a single male member in the family and has to take care of two twin children who are studying in VI! standard in Kendriya Vidyalaya. He states that his wife is employed. He further mentions that he is suffering from head injury for which he is under medication. He also states that he has to take care of his bedridden brother who is aged about 68 years and suffering from bone Page 3 of 33 4 OA No.1113/2023 marrow cancer. His spinster sister is also 64 years of age and suffering from diabetes and psychiatric problems. His another sister aged about 56 years is under severe dementia and has to kept under constant watch. The applicant mentions that he has to take care of his kith and kin who are under constant medical treatment and despite about problem, he has discharged his duties in diligent manner. The applicant submits that he has not even been given 3-4 months time to settle his family issues before he attends work at Dehu Road. He states that his twin children aged about 11 years, his wife being in service and his brother staying in the same house is bedridden condition and his brother suffering from Blood Cancer (Myeloid Leukemia) and living in the same house who requires constant care and attention of the applicant. Besides his unrnarried sisters are also depending upon him, his retention at Ordnance Factory Hospital, Khadki is required to take care of his family members.
2(c). The applicant states that as per the transfer policy of the respondents, there is no provision of transfer of Ward Master and he places reliance on Annexure A-4 which is issued on 27.10.2005. He Page 4 of 33 5 OA No.1113/2023 states that the said transfer has caused hardship to him as the policy guideline of Transfer of Paramedical Staff specifically does not include post of Ward Master. He further states that the said transfer is nothing but a punitive action due to applicant's union activities to the discomfort of the respondents which reveals the autocratic way of functioning at Ordnance Factory Hospital. The applicant states that his transfer is against rules and there is no transfer policy to transfer an employee of his rank from one hospital to another. He states that there is no post of Ward Master in Ordnance Factory Hospital, Dehu Road and has only 25 bed hospital. He further states that he is being targeted by the respondents, harassed and tormented due to the fact keeps on raising issues on welfare of the staff working in the Ordnance Factory Hospitals. The said transfer is sort of punishment as he had made complaint about the decision making of the Senior Officers. He states that none of his requests have been considered by the respondents. He prays for quashing and setting aside of unconstitutional transfer order.
2(d). It is stated by the applicant that he had submitted a representation on 13.09.2023 against the transfer order dated Page 5 of 33 6 OA No.1113/2023 12.09.2013 highlighting his problems and requesting the respondents to retain him in his present assignment. However, the respondents have rejected his representation on 10.10.2023. He submits that again on 07.10.2023, he had made another representation which also met the same fate on 22.11.2023. The respondents vide order dated 17.10.2023 ordered to release him from the post of Ward Master, Ordnance Factory Hospital, Khadki and directed him to join Ordnance Factory Hospital, Dehu Road, which is 20 kms away from his residence.
3. The respondents have filed their reply on 31.01.2024 denying the correctness of averments made by the applicant in this OA. It is stated by the respondents in the reply that transfer is an incident of service and it is for the employer/administration to decide how to and where to use its employees in the best interest of the organization and public service. Transfer being incident of service, immunity from it cannot be claimed as of right. They further states that it is a settled law that transfer is an exigency and incident of service and an implied condition of employment.
Page 6 of 33 7 OA No.1113/20233(a). They state that the service of the applicant is required at Ordnance Factory Hospital, Dehu Road on functional necessity and his transfer is ordered on functional ground in public interest. Considering his personal constraints and his long experience of working in Maharashtra, he has been transferred to the nearest place i.e. Dehu Road which is only 20 kms away from Khadki. They further states that the representations submitted by the applicant have been gone through and the respondents authorities have given due consideration to the issues raised in the said representations while deciding to transfer the applicant to Ordnance Factory Hospital, Dehu Road.
3(b). They state that the applicant has worked in Khadki for more than 29 years and in his service career, this is the first transfer which the respondents have made only 20 kms away from Khadki. They further states that the applicant has sought 3-4 months time to join the new place of transfer and the said 3-4 months are already over. They relied upon the judgment of Hon'ble Supreme Court in the case of State of U.P. & Ors. Vs. Gobardhan Lal, decided on 23.03.2004 in Civil Appeal No.408/2004 and others reported in 2004-(091)-AIR-2165-SC wherein it Page 7 of 33 8 OA No.1113/2023 has been held that "in the matter of transfer, the employer retains the absolute right to transfer his employee in public interest and unless there are mala fide or the decision is in violation of a statutory rule, it should not be interfered with". As per the aforesaid judgment, the transfer order can be interfered only on the three grounds i.e. (a) violation of any statutory provisions of law, (b) order passed with mala fide intention, (c) order passed by the Incompetent Authority. In the present case, no statutory provisions of the transfer has been violated the transfer order is not issued in the mala fide intention and competent authority has passed the 'transfer order. In the present OA, none of the ground mentioned by the applicant. The applicant has vaguely made allegations of mala fide.
3(c). They further relied upon the judgment of the Hon'ble Bombay High Court in the case of Arun Damodar Veer Vs. The State of Maharashtra & Ors, reported in 1999 (2) Bom CR 766, held that "it is well said that the transfer is an incident of service for the Government Officers and it is not to be interfered with by the Court unless it is shown to be clearly arbitrary, vitiated by mala fides. The Hon'ble High Court is Page 8 of 33 9 OA No.1113/2023 further observed that, the transfer effected in such circumstances is equally beneficial for the petitioner in as much as he would have an opportunity to work at a new piace".
3(d). They again state that it is well settled that in the matter of transfer, the employer retains the absolute right to transfer his employee in public interest and unless there are clear cut mala fide established or if it is established that the decision is violation of a statutory rule it should not be interfered with.
3(e). They further stated that the applicant is making allegation of mala fide against the respondents, whereas, the applicant has been penalized on different occasions from the year 2008 to 2022. While calculating this, the respondents states that in view of the settled position of law and in the circumstances and reasons stated above. The transfer has been ordered on administrative grounds on functional necessity without any mala fide intention. Hence, the OA should be dismissed.
4. The applicant has filed rejoinder where he has reiterated his position. He has mentioned that Ward Master Mrs. Kunda Thorat is senior most and experienced in the State of Maharashtra who has been Page 9 of 33 10 OA No.1113/2023 retained in the Ordnance Factory Hospital, Khadki. This belies the contention of the respondents that the applicant being senior and most experienced is transferred. He has rendered 29 years of service at one Station. The applicant states that the incident of misconduct cited by the respondents in their reply has been challenged in this proceeding which is pending for adjudication/decision. He concludes by saying that keeping in view his peculiar family circumstances, he may be retained at Ordnance Factory Hospital, Khadki and this OA deserves to be allowed.
5. The respondents have filed sur-rejoinder on 16.04.2024 wherein they have stated that after corporatization of Ordnance Factory in the year 2021, new transfer policy came into existence with effect from 28.12.2021. The applicant has relied on the old policy which is not in existence at present and has mislead this Tribunal. They state that the transfer of the applicant is ordered on functional necessity in public interest as per new transfer policy. They reiterated that the representations of the applicant was considered by the competent respondent authorities and the problem projected by the applicant were kept in while in posting the applicant in Ordnance Factory Hospital, Page 10 of 33 11 ~ QA No.1113/2023 Dehu Road which is only 20 kms away from Khadki. Again they have relied upon the judgment of Hon'ble High Court of Bombay in the case of State of U.P. & Ors. Vs. Gobardhan Lal (supra) which they have cited in their reply earlier.
6. Heard the learned counsels for the applicant and the respondents at great length. | have perused the pleadings and document available on record.
7. The learned counsel for the applicant states that the Transfer Policy dated 27.10.2005 states that the paramedical staff of other categories shall not be transferred to other factories, at present, under this policy. On the enquiry to the learned counsel for the applicant, whether the applicant falls within the category of paramedical staff, he affirmed the answer in a positive manner and stated that the applicant is covered under the category of paramedical staff. He further states that even para 8 and 9 of the Transfer Policy issued on 28.12.2021 for the Nursing and Paramedical staff (PMS) working in the Ordnance Factory Hospitals and independent health clinic/dispensaries provides for procedure to transfer such staff. The same is placed by the
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Page 11 of 33 12 OA No.1113/2023respondents as Annexure SR-1 and the relevant para 8 and 9 is reproduced hereunder :-
"8. Notwithstanding any of the clauses enumerated above, all Nursing and PMS are as per SRO provisions, liable to be transferred to any Unit of the Organization at any point of time on functional grounds, as per the evolving scenario and as per decision of the Competent Authority. Specific reasons for the same will be clearly recorded and communicated to the transferred staff as and when such transfers are effected by the DoO (C&S).
9. Further, in spite of the above, any representation/individual request for transfer before completion of tenure, or any request for consideration by deviation from the transfer policy, in exceptional circumstances, if duly forwarded for by the concerned MD I/Cs shall be considered by the Committee consisting of the Addl.DHS, DDG- Hospital & School and the DHS. The Committee shall recommend its views stating clearly therein the reasons for deviation from the policy to the Addl. DGO (P). The decision of the Addl. DGO (P) in the matter shall be final."
8. Further, the applicant states that the functional necessity, administrative exigency has not been made out while transferring the applicant. He also states that none of the Ward Master has been transferred including one senior to the applicant. These contentions are not denied by the respondents. He place reliance of the judgment of Hon'ble Supreme Court in the case of Somesh Tiwari Vs. Union of India Page 12 of 33 13 OA No.1113/2023 and others, reported in (2009) 2 SCC 592 decided on 16.12.2008, in which he is relying on para 16 which is 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 iflegal."
9. Learned counsel for the respondents place reliance on new transfer policy issued by the respondents on 28.12.2021 and states that as per the said policy, the applicant was transferred. He also relied on para 8 and 9 of the said policy. He also places reliance of SRO 88 issued on 03.08.2005 wherein attention was drawn to Note 16 which states that :
"Note- 16 : The incumbent of posts in this schedule are liable for service in the any factory or office in the Ordnance Factories " Page 13 of 33 14 OA No.1113/2023 Organization on transfer depending upon the functional requirement and transfer policy guideline framed by the Ordnance Factory Board from time to time."
10. They further states that the order of transfer was issued on 12.09.2023 and the applicant kept on making representation even after the transfer order. In some of the representations, he sought retention of 2% months and the said time is already over.
1i. Learned counsel for the respondents states that the Court can interfere in the transfer order only if such orders are issued by the Incompetent Authority, mala fide intention and transfer order issued in violation of any Acts/Rules. He also states that the conduct of the applicant is also blameworthy. He places reliance on the following judgments :
{i) Mrs. Shilpi Bose And Others Vs. State of Bihar And Others, AIR 1991 SC 532 wherein in para 4, it is held that :
"A. in our opinion, the Courts should not interfere with a transfer Order which are 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 malafide. A Government servant holding a transferable post Page 14 of 33 15 OA No.1113/2023 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-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 over looked these aspects in interfering with the transfer Orders."
(ii) In the case of Union of india and Others Vs. S.L. Abbas, (1993) 4 SCC 357 wherein it has been held in para Nos.6, 7, 8 and 10 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". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain Page 15 of 33 16 OA No,1113/2023 executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
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.
8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the constitution of India in service matters. This is evident from a perusal of Article 323-Aof the constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find it ail the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative 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 this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).Page 16 of 33 17 OA No.1113/2023
10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterized as malafide for that reason. To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions."
(iii) In the case of State of M.P. And Another Vs. S.S. Kourav and Others, (1995) 3 SCC 270 wherein it is held in para 6 that :
"6. It is further contended that in an unfortunate situation the respondent's wife committed suicide leaving three children and he would suffer extreme hardship if has to work in the tribal area. This court cannot go into that 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 administrator. If there is 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."
(iv) In the case of National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan, Appeal (Civil) 1095-1096 of 2001 wherein it is held by the Apex Court that :
Page 17 of 33 18 OA No.1113/2023"Heard Shri B. Datta, learned senior Advocate for the appellant- Corporation and Shri Jitendra Sharma, learned senior Advocate, for the respondent-employees. It was urged for the appellant- Corporation that transfer being an incident of service, no exception could be taken to the impugned orders of transfer, which came to be made according to the appellant in accordance with law and in public interest, particularly in the absence of any proof of malafides or. contravention of any specific prohibitory provision in this regard, rendering the employees immune from such transfers. Rule 4.1.1 of the Seniority Rules was, according to the appellant, misconstrued completely giving a go-bye to R 5-14
- of the Recruitment Rules and a proper construction of the same would really support the stand of the Corporation to justify the transfers in the case on hand. The assumption made by the High Court on the alleged grievance of loss of seniority is said to be unwarranted having regard to the fact that the Projects to which the respondents were transferred being new, no such grievance could have been countenanced. It was also urged that the Government of India, from time to time, assigned new Projects to the Corporation for being executed and implemented and the above transfers become absolutely necessary for undertaking such new Projects in order to adjust the staff from various Projects or Corporate Offices where they were either not required or found to be surplus and so far as the case on hand is concerned, staff from the lowest level, namely, Class-IV, to the level of General Managers have been transferred, offering a package deal under which they were permitted to not only keep their families at the previous place of posting or any place of their choice in India entitling them to House Rent Allowance of that Station, but also giving them in addition, special House Rent Allowance of ten per cent of presently drawn basic pay, giving them, at the same time, temporary accommodation at the project site free of cost, besides granting them other benefits like site compensatory allowance, monthly ad hoc monetary Page 18 of 33 19 OA No.1113/2023 assistance, free transport of essential commodities to the site and mess facilities, etc. More than one and a half times the insurance coverage that they would have got in the previous place of posting also become due to them for which the premium is said to be borne by the Corporation, in addition to the travel facilities to the members of the family.
On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well-settled and often reiterated by this Court that no Government servant or employee of public Undertaking has any legal right to be posted forever at any one particular place 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 thé public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the
- Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4.1.1 of the Seniority Rules interdicts any transfer of the employees from one Office or Project or Unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider. it to be a ae Page 19 of 33 20 OA No.1113/2023 mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance."
(v) State of U.P. And Ors. Vs. Gobardhan Lal, 2004-(003)CLR-0078-SC wherein it has been held that:
'It is too late in the day for any Government Servant to contend that once appointed 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 inherent in the terms of appointment but also implicit [sic] as an essential condition of service in the absence of any specific 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 of power 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 afford an opportunity to the officer 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 official 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 a Page 20 of 33 21 OA No.1113/2023 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.
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."
(vi) State of U.P. And Anr. Vs. Siya Ram And Anr., in Appeal (Civil) 5005/2004 dated 05.08.2004 wherein it has been held that :
"The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. 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 Page 21 of 33 22 OA No.1113/2023 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, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr. (2001 (8) SCC 574)."
(vii) In the case of Major General J.K. Bansal Vs. Union of India and others, Appeal (Civil) 5189/2005 decided on 23.08.2005 wherein it has been held in para 9 and 10 are as follows :
"9. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under: -
"In our opinion, the courts should not interfere with a transfer order which are 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 id Page 22 of 33 23 OA No.1113/2023 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... esses deeasessasesseeeees
10. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in 4 Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under: -
"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."Page 23 of 33 24 OA No.1113/2023
(viii) The decision of Central Administrative Tribunal, Hyderabad Bench in the case of Shri G. Nageshwara Rao S/o G.S..... Vs. The Govt. of India Rep. By its...... decided on 22.08.2007, it has been held in para 8 that :
"8. From the above cited decisions, it is clear that the Court or Tribunal cannot interfere with the orders of transfer unless the transfer order is passed by incompetent authority or the transfer is malafide or it is against the statutory rules. It is also clear that the burden is on the employee to prove malafides or violation of statutory rules or incompetency of authority to pass transfer orders. So, it has to be seen whether in the instant case the applicant has proved either malafide or violation of statutory rules or incompetency of the authority who issued transfer orders. The transfer orders dated 25.5.2007 is filed along with the application as Annexure R-1, the transfer order is passed by Director of Administration with the approval of the competent authority to transfer the applicant from Hyderabad to Kolkata. It is not pleaded in the application that the authority. who passed transfer order is incompetent to pass the transfer order. It is also not pleaded in the application that the said transfer order is in violation of any statutory rules or provisions. It is not disputed that the post of Drugs Inspector is a transferable post all over India. In the application, it is stated that there is no specific policy regarding transfers in existence in the office of the respondents. Therefore, it is not the case of the applicant that the impugned transfer order is made in violation of any statutory rules or any policy guidelines. The applicant pleaded that the respondents have chosen pick and choose policy while transferring the applicant by making a Drugs Inspector who is junior to him in charge of Deputy Drugs Controller. Admittedly, the applicant has been working for more than six years at Hyderabad but his case is that there are several others who have been serving for more than 20 years or Page 24 of 33 25 OA No. 1113/2023 30 years without transfer and therefore, his transfer is unjust. That is not a ground to interfere with the transfer order. As long as the authority who issued transfer order is the competent authority to order transfer, the Court cannot interfere with such order unless the malafides are proved. Here, in the instant case, no malafides have been attributed to the authority who issued transfer orders. The pleadings are very vague. It is simply stated that in the rejoinder filed in OA 419/2006 he made certain allegations against certain persons and that the transfer orders were issued at the behest of those persons. The applicant did not name those persons nor did he implead them as parties. In the absence of the details of those persons and also the nature of the allegations made against such persons, it cannot be said that the impugned transfer orders are issued with malafide intention. Malafides are to be pleaded specifically and are to be proved. But in the instant case, the allegations made are very vague. It is true that as the applicant was denied promotion, he challenged the action of the respondents for not promoting him by way of filing OA 419/2006. Merely because he filed an application before this Tribunal challenging the action of the respondents in not giving promotion, it cannot be said that it is the reason for the competent authority to issue transfer order. | am unable to hold that the said admitted fact of the pendency of the OA 419/2006 is sufficient to attribute the malafides to the competent authority who issued transfer orders. Hence, in my considered view, the applicant has failed to prove the malafides alleged in the application. Hence, this Tribunal has no power to interfere with the transfer orders. However, as this Tribunal passed an interim order on 11.7.2007, to maintain status quo and as the relieving order is not yet served on the applicant and that the applicant in his letter dated 18.6.2007, stated that he is not a position to leave Hyderabad for some time as his mother cannot be moved for a minimum period of three months. | consider it expedient to grant 15 days time from this day for the applicant to move from Hyderabad to Kolkata. The period of absence of the applicant Page 25 of 33 26 OA No.1113/2023 from duty from 6.6.2007 shall be regularised treating it as leave available to the applicant. The joining time shall be reckoned after the expiry of 15 days from this day."
42. Learned counsel for the applicant while replying to the oral submissions stated that other employees who are senior to the applicant and have spent more number of years as compared to the applicant have been retained at the same station. He further states that recently promoted officials have also been retained at same station. On the list of the judgments given by the learned counsel for the respondents, the learned counsel for the applicant stated that the said judgments are not relevant as they are decided by the Hon'ble Courts on the matter having different facts and circumstances which are not applicable to the present case.
13. The applicant further states that the respondents have given the list of cases In which the penalty has been imposed upon the applicant, in some of the cases, the order of the Disciplinary Authority imposing penalty has been challenged before this Tribunal and he gave details of some OAs which the applicant has filed i.e. OA No.570/2016, 302/2016 and 73/2018. He also states that the earlier transfer policy of the year Page 26 of 33 27 OA No.1113/2023 2005 does not envisaged transfer of the applicant. He further states that para 4 of the present transfer policy issued in the year 2021 also does not provide for transfer of the Nursing and Paramedical staff (PMS) working in the Ordnance Factory Hospitals and independent health clinic/dispensaries as a matter of routine.
14. The applicant submits that the SRO cited by the learned counsel for the respondents is of earlier date and the transfer policy is of the later date. The condition laid down in the SRO is to be operated upon as per the transfer policy. He states that even as per new transfer policy issued on 28.12.2021 while transferring the Nursing and Paramedical staff (PMS) working in the Ordnance Factory Hospitals and independent health clinic/dispensaries reasons are to be recorded and in this case no specific reasons has been recorded by the respondents and the applicant has been transferred. Therefore, keeping in view the above position, the OA needs to be allowed.
45. | have examined the pleadings, oral arguments and other connected record in this matter. Note 16 under SRO 8&8 dated 03.08.2005 states that :
Page 27 of 33 28 OA No.1113/2023"Note 16 - The incumbent of posts in this schedule are liable for service in the any factory or office in the Ordnance Factories Organization on transfer depending upon the functional requirement and transfer policy guideline framed by the Ordnance Factory Board from time to time."
16. A plain reading of the above stipulation states that the transfer of officials can be made and such transfers depend upon the functional requirement and transfer policy guidelines framed by the Ordnance Factory Board from time to time. The transfer policy dated 27.10.2005 is issued after the above mentioned SRO 88 and the said transfer policy laid down that the paramedical staff of other categories shall not be transferred to other factories, at present, under this policy. The respondents have placed reliance to the new Transfer Policy issued on 28.12.2021 consequent to restructuring of organization of Ordnance Factory Hospital. The said transfer policy is for the Nursing and Paramedical staff (PMS) working in the Ordnance Factory Hospitals and independent health clinic/dispensaries.
17. In the above mentioned transfer policy, it has been laid down that accordingly, the matter has been carefully examined in its entirety keeping in view the peculiar and indispensable nature of service a = rage 28 of 33 29 OA No.1113/2023 rendered by the Nursing and PMS at 29 different and varied iocations and each place having its different complexities and requirements. Consequently, it has been decided that the following guidelines shall be followed in the matter of transfer and postings of Nursing & PMS.
18. in Para 2 of the above policy, it has been stated that as per the Recruitment Rules for the Nursing & PMS stipulates that the incumbents appointed in the O.F. Hospitals/Dispensaries shall be liable to serve anywhere in India. Accordingly, the incumbents may be transferred in the public interest, on functional grounds at any time from one unit to another unit for which the reasons thereof shall be recorded. The applicant states that while transferring him, no reason has been recorded. Further, in this matter, the respondents have also failed to produce any material which reveals that the respondents have recorded any reason for transfer of the applicant in public interest or on functional grounds.
19. In para 4 of the above mentioned new transfer policy (supra), the following has been laid down :
Page 29 of 33 30 OA No.1113/2023"4, Transfer of Nursing and PMS will not be a matter of routine. individual requests/cases will be considered as per the merits of each case in conjunction with the functional requirements at Unit and overall Organisational level. All individual requests for transfer and posting of all categories/grades/levels of Nursing (except Matron) and PMS shall be forwarded by the MO I/C of the Unit with clear and objective recommendation.
All such applications duly completed by the MO I/C of the applicant's Unit will be considered by the Committee consisting of Addl.DHS (Member-Secretary}, DDG-Hospital & School (Member) and the DHS(Member) The Committee shall piace its recommendations to the Addl.DGO (P) for his approval mentioning clearly actively is recommendations in each case. The Committee will consider all individual cases at DoO (C&S)."
20. On para 8 and 9, the applicant and the respondents both place reliance. The paras are reproduced for ready reference :
"8. Notwithstanding any of the clauses enumerated above, all Nursing and PMS are as per SRO provisions, liable to be transferred to any Unit of the Organization at any point of time on functional grounds, as per the evolving scenario and as per decision of the Competent Authority. Specific reasons for the same will be clearly recorded and communicated to the transferred staff as and when such transfers are effected by the DoO (C&S).
9. - Further, in spite of the above, any representation/individual request for transfer before completion of tenure, or any request for consideration by deviation from the transfer policy, in exceptional circumstances, if duly forwarded for by the concerned MD I/Cs shall be considered by the Committee consisting of the Addl.DHS, DDG- Hospital & School and the DHS. The Committee shall recommend its views stating clearly therein the reasons for deviation from the policy to the Addl. DGO (P}. The decision of the Addl. DGO (P} in the matter shall be final."Page 30 of 33 31 OA No.1113/2023
21. it is seen that the respondents have failed to produce any material which reveals that the specific reasons were recorded while transferring the applicant and the same have been conveyed to him as stipulated in para 8 of the said transfer policy. Further, the respondents did not produce any material to demonstrate that they have followed the procedure laid down in para 4, 8 and 9 of new transfer policy issued on 28.12.2021 by the respondents and the applicant has been transferred after following due process as laid down under the above policy.
22. It is clearly laid down in para 4 that the transfer of Nursing and PMS will not be a matter of routine. individual requests/cases will be considered as per the merits of each case in conjunction with the functional requirements at Unit and overall Organizational level. All individual requests for transfer and posting of all categories/grades/levels of Nursing (except Matron} and PMS shall be forwarded by the MO I/C of the Unit with clear and objective recommendation. All such applications duly completed by the MO I/C of the applicant's Unit will be considered by the Committee consisting of a Page 31 of 33 32 OA No. 1113/2023 Addl.DHS (Member-Secretary), DDG-Hospital & School (Member) and the DHS(Member) The Committee shall place its recommendations to the Addl.DGO (P) for his approval mentioning clearly actively is recommendations in each case. The Committee will consider all individual cases at DoO (C&S).
23. From the record, it is clear that the applicant has not made request for his transfer from Ordnance Factory Hospital, Khadki to Ordnance Factory Hospital, Dehu Road. It is the respondents who have transferred him stating the reasons of administrative ground and public interest. The respondents can do so but unfortunately they did not pay any heed to provisions of Transfer Policy declare by themselves. The applicant has been transferred and the reasons of transfer have not been conveyed to the applicant nor his case has been placed before the Committee for consideration and recommendation as provided for in the new Transfer Policy for handling cases of transfer.
24. !am well aware of the facts that it is a 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 7 Page 32 of 33 33 OA No.1113/2023 infraction of any professed norm or principle governing the transfer. However, the actions of respondents are such which does not fall within the policy framework laid by they chemselves. in view of the forgone discussion, catena of judgments of Hon'ble Courts cited by the respondents will not come to their rescue as they have patently violated the transfer guidelines to transfer the applicant. With utmost restraint, | refrain from imposing cost on the respondents. It is held that the transfer of the applicant is not inconsonance to the new Transfer Policy issued by the respondents on 28.12.2021.
25. Accordingly, | issue the following order :
(a). the OA is allowed and the transfer order dated 12.09.2023 and the relieving order dated 22.11.2023 is quashed and set aside.
(b). Pending MA, if any, stands closed.
(c). There shall be no order as to costs.
a (RAJINDER KASHYAP) MEMBER (A) Page 33 of 33