Central Administrative Tribunal - Delhi
Sahib Singh vs Union Of India & Ors on 9 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2273/2011 NEW DELHI THIS THE 9th DAY OF SEPTEMBER, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) Sahib Singh, S/o Late Sh. Sadhu Singh, R/o 7/C-1, Railway Flats, Near Laxmi Bai College, Ashok Vihar, Phase-III, Delhi-110052. Applicant. (By Advocate Shri M.K. Bhardwaj) Versus Union of India & Ors, through: 1. The General Manager, Northern Railway, Head Quarter Office, Baroda House, New Delhi-110001. 2. The F.A & C.A.O., Northern Railway, Head Quarter Office, Baroda house, New Delhi-110001. Respondents. (By Advocate Shri Shailendra Tiwari) ORDER
By way of this Original Application, the applicant has challenged the Annexure A-1 order dated 10.06.2011 by which he has been transferred to Lucknow, mainly on the ground that it was the 4th transfer in a short period of three years after he was selected as AFA/AAO (Group B) in the year 2007 and he was initially posted as AFA/RCT-CDG at Railway Claims Tribunal, Chandigarh vide order dated 15.01.2008. First he was transferred to Head Quarter Office, Baroda House, vide order dated 22.06.2009. According to him, while he was posted there, he noticed a number of irregularities in the financial concurrences related to various departments of the Railways. As a result, the respondents started putting pressure on him for not highlighting those irregularities but when he did not succumb to their pressure, he was suddenly transferred to the Mechanical Workshop, Amritsar, vide order dated 10.03.2010. There also, he found various irregularities in the vetting of financial cases pertaining to the Workshop and on pointing out them, he was transferred to Claims Office, NDCR office, State Entry Road, New Delhi, vide order dated 06.01.2011. Again, when he pointed out major irregularities in the functioning of the Claims Office resulting huge financial losses to the organization, he was transferred by the impugned Annexure A-1 order dated 10.06.2011.
2. Aggrieved by the aforesaid transfer order, the applicant has made a detailed Annexure A-6 representation dated 15.06.2011 to the Respondent No. 2 and requested him to cancel the same as it was not only adversely affecting him and his family but it was also against public interest. He has also given details of all the financial irregularities pointed out by him in the said representation so that the respondents could take remedial action. He has also stated in his representation that he has been discriminated vis-`-vis other similarly placed officers, namely, S/Shri Dinesh Kumar, Ashok Kumar Dhawan, R.K. Arora, M.I. Khan, Meena Sharma, serving as Senior AFA, A.K. Manchanda, B.K. Sinha, Madhav Ram Arya, Pushpa Ghosh, S.S.M. Zafri, Sudhir Kumar and R.K. Verma, AFAs who have been working undisturbed in Delhi for over 10 years and have not been transferred even once.
3. As regards his own problems, he has explained that he is suffering from Glucoma, Epilepsy and Demyeliniating type of sensory motor nreuropathy causing extreme difficulty in walking, for which he has been taking treatment from Guru Nanak Eye Centre, G.B. Pant, Centre Hospital and from Dr. H.S. Kothari. Therefore, he is not in a position to stay far away from his family members. Further, he has to undergo Field Test after every three months to keep his ocular pressure under check to prevent blindness. He has annexed copies of his medical papers as Annexure A-5 with this OA. He has also stated that his father lost his vision at the age of 46 in the year 1996 due to glaucoma and remained blind for 28 years till his death in December, 1991. The applicant has also relied upon an order of this Tribunal in OA 2871/2009 Dinesh Sharma vs. Union of India & Ors. passed on 19.03.2010 wherein it has been held as under:
11. I have given my careful consideration to the respective submissions made by both the parties. I have also carefully perused the records of the case.
12. Transfer is a normal incidence of service. The right to make transfer in the exigencies of service lies exclusively within the domain of the concerned administrative authority. But this right has to be exercised fairly and justly for the purpose for which the right has been conferred and not for any alien purpose. Like any other administrative power, administrative decisions on transfer are also subject to judicial review. However, the judicial review of such an action is of limited scope. The courts and tribunals do not sit in appeal over the decisions of administrative authority on transfer. It is in fact confined to the decision making process. Such decision making process may be vitiated on account of malafides or any infraction of law. Thus, any transfer made arbitrarily may not be sustainable in law for the reason that arbitrariness, being opposed to reasonableness, is an antithesis to law. There is neither any exact definition of arbitrariness nor is there any strait jacket formula for it. It ultimately depends on the facts and circumstances of each case. Nonetheless, arbitrary action can be described as one that is irrational and not based on sound reason. To put in other way, an arbitrary action is one that is unreasonable. Any decision, whether administrative or otherwise, if taken without considering the relevant facts or, as the case, by taking into consideration irrelevant facts, would indeed be an arbitrary decision and violative of the mandate of Article 14 of the Constitution. In order to avoid arbitrariness in administrative decisions, too often administrative guidelines are evolved with a view to inculcate an element of transparency and uniformity in the decision making process. These guidelines are essentially for the purpose of guidance of the administrative authorities. As such, these do not confer any enforceable right on any one. Nevertheless any deviation from such guidelines, coupled with other circumstances, may help in ascertaining if the administrative decision so taken is vitiated by the vice of arbitrariness. Thus, an act which is discriminatory is liable to be labelled as arbitrary. Extending the benefit to one while denying the same to other belonging to the same class would also be arbitrary and as such bad in law.
13. The facts of the present case may now be examined. It has been alleged by the applicant that while making the impugned transfer, the respondents have arbitrarily picked him up without adhering to the principle of length of tenure and the given circumstances. The applicant has furnished details of the officials with their tenure and stay at Delhi which is much longer than that of applicant. The allegation has been responded by the respondent in the reply stating that some of the officials were not shifted due to their expertise and contributions in respective fields and some are going to retire within one year or two and, therefore, the allegation of the applicant that some officers are staying in Delhi for many years is not sustainable. I do not find any force in this contention. The respondents have indeed admitted the fact of staying of officials with longer tenure in Delhi. The applicant has given particulars of the specific persons but the respondents have chosen to keep silent about these persons and made a general averment without being supported by any material to be substantiated.
14. Furthermore, the applicant has been transferred in Delhi in 2006 at his own request. While in Delhi, he has crossed the age of 55. As per the transfer policy, those who have attained the age of 55 shall not ordinarily be shifted from the stations of their posting except on their own request. Admittedly there is no request by the applicant for his transfer in terms of the impugned order. Thus, the impugned order is in violation of the respondents own transfer policy. Even if the transfer policy is directive in nature, and meant for guidance which can be deviated for valid reasons only yet the respondents are not given liberty to adhere or not to adhere the policy at their whims and fancy. They can pick and choose any policy for transfer in derogation of their own policy without valid reason. Any such transfer would not stand the test of judicial scrutiny being just and fair and would be open to serious objection being arbitrary and would not be sustainable in law.
15. Furthermore, the respondents case has been that the applicant has been chosen for the impugned transfer on the basis of experience in Workshop Audit and thus the claim that the impugned transfer has not been made in the exigencies of service is not sustainable and consequentially fails. A table of statement of Workshops of Audit Unit Sr. AOs and AOs, has been brought on record where from it is seen that the applicants experience is not the highest among the Sr.AOs. A number of Sr. AOs in Different Divisions have much higher experience than that of the applicant. Thus, I do not find much substance in the respondents claim that the applicant has been chosen on the basis of experience in Workshops Audit being the highest experienced one. Furthermore, there is no warrant that the persons from Workshops Audit are required to be shifted from Delhi alone and the persons having higher experience in other Divisions would not be touched.
16. In view of the aforesaid premises, I also do not find any force in respondents stand that it is not possible to extend the benefits of working spouse in Delhi on account of administrative exigencies of service while the other persons similarly situated having longer tenure of stay in Delhi with higher experience in Workshop Audit than that of applicant remain untouched.
17. In the facts and circumstances and for the reasons stated above, the impugned transfer order cannot be sustained and is accordingly quashed and set aside. No order as to costs.
4. The respondents in their reply have submitted that the transfer of an employee is an incidence of his service and it does not call for any judicial review except in rare/exceptional circumstances as held by the Apex Court in the case of Union of India & Ors. Vs. H.N. Kirtania, 1989 (3) SCC 445 wherein it has been held as under:
After hearing learned counsel for the parties we do not find any valid justification for the High court for entertaining a writ petition against the order of transfer made against an employee of the central government holding transferable post. Further there was no valid justification for issuing injunction order against the central government. The respondent being a central government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondents transfer.
5. They have also relied upon the judgment of the Apex Court in Shilpi Bose (Mrs.) and Ors. Vs. State of Bihar & Ors. 1991 (2) Supp.659 wherein it has been held as under:
4. 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 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.
6. Further, they have relied upon the judgment of the Apex Court in State of M.P. & Ors. Vs. S.S. Kourav & Ors. 1995 (3) SCC 270 wherein it has been held as under:
The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such diecisions shall stand unless they are vitiated either by mala fides or by extraveous consideration without any factual background foundation . In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
7. The other case relied upon by the respondents is the judgment of the Apex Court in S.C. Saxena Vs. Union of India & Ors. 2006 SCC (L&S) 1890 wherein it has been held as under:
.In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.
8. They have also relied upon the judgment of the Apex Court in Union of India Vs. Shri Janardhan Debanath & Ors. (Civil Appeal Nos. 1010-1011 of 2004 arising out of SLP (Civil) Nos. 2002-2003 of 2003) decided on 13.02.2004, the relevant part of which reads as under:
The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any mis-behaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was mis-behaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other
9. Another judgment relied upon by them was that of Kishan Singh Vs. State of Rajasthan, 1994 (2) SLR 806 wherein it has been held as under:
it may be mentioned here that transfer is a matter of administrative discretion. It is not a condition but incident of service and the administrative guidelines do not confer any legal or vested right in Government employee for challenging his transfer. Therefore, it was held that the impugned transfer order is neither unauthorized nor without jurisdiction nor malafide nor in violation of any statutory/mandatory rule and as such the same does not suffer from any vice.
10. As far as the merits of the present case is concerned, they have submitted that the applicant was transferred and posted to Railway Claims Tribunal (`RCT for short) Chandigarh on his promotion. There were complaints against him about his unauthorized absences hampering the official work in the said office. The Additional Registrar of the Tribunal reported the matter to the General Manager, Northern Railways vide his Annexure R-1 letter dated 18.05.2009. Further, the RCT has also served him a charge sheet to impose major penalty. According to them, because of his behavior and the work environment created by him in that office, the smooth conduct of the office work became very difficult and as a result of it, he had to be transferred from there to the Northern Railway Headquarters vide the Annexure A-2 order dated 22.06.2009.
11. As regards the irregularities pointed out by the applicant were concerned, they have stated that as Finance Officer, it was obligatory on his part to bring the irregularities, if any happening in the office to the notice of the senior officers of the Department. He was only doing just that as every financial officer is required to do and there is nothing unusual about it. They have also stated that as a junior officer, the points of irregularities highlighted by him were brought to the notice of the competent authority which considered them as per rules and procedures laid down by the Railways and actions have been taken.
12. As regards his transfer to Mechanical Workshop, Amritsar was concerned, it was done on administrative exigencies. Moreover, as per the conditions of service, he is liable to be posted anywhere in the jurisdiction of the Northern Railway. However, they have denied that his transfer from there was due to any vengeance or malafide, as stated by him. But, his approach and conduct there was also not good from the initial days of his joining. He used absenting himself from duty often without any information thereby creating difficult situations in workshop where salary to labour was to be paid on due dates. He has also been making constant requests for his transfer through his wife to the Railway Minister, Chairman, Railway Board Rail Bhawan, General Manager, Northern Railway, Financial Advisor, Northern Railway, etc. Further, on the complaint of the Chief Works Manager, Amritsar who is the senior most officer there and his controlling officer Sr. AFA/Amritsar, he was served with charge sheet for imposing major penalty on account of his habitual absence from duty and leaving the office without permission. Later on, he had to be transferred to Claims Office in Delhi vide Annexure A-4 order dated 06.01.2011. They have, however, denied the contention of the applicant that his present transfer to Railway Claims Tribunal, Luckow is a part of conspiracy by the concerned officers.
13. I have heard the learned counsel for the parties. Admittedly, the applicant has been transferred four times during the last period of three years. It is seen that the applicant is being constantly shifted from one place to another not because of any administrative exigencies but because of his alleged misconduct at his work places including habitual absenteeism. In my considered view, transferring an alleged delinquent employee from one place to another is no solution for maintaining/improving the efficiency of an organization or its work environment. Rather, the solution lies elsewhere and it is for the respondents to find it out. An employee who is a habitual absentee or who does not discharge his duties properly may not improve himself by transferring him continually. On the other hand, because of such transfers, the employee concerned would only create more and more problems.
14. Moreover, the applicant has pointed out that the respondents are following pick and choose policy in the matter of transfer and posting. He has specifically named the officials who are still put in the Headquarter. The Respondents have nothing to say in the matter. The respondent being big Organization with large work force should have definite transfer guidelines to avoid such allegation of favourtism and arbitrariness. A Division Bench of the Bombay High Court in the case of Seshrao Nagorao Umap Vs. State of Maharastra, 1985 (II) LLJ 73 has summarized the law on transfer in the following manner:
It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and Appointing Authority has a wide discretion in the matter. The Government is the best Judge to decide how to distribute and utilize the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration that even administrative actions should be just and fair.
15. It is seen from the record that the applicant has already made a detailed Annexure A-6 representation dated 15.06.2011 to the General Manager, Northern Railways, Baroda House against his transfer to Luknow made vide the impugned Annexure A-1 order dated 10.06.2011. The said representation has not so far been considered and disposed of. In the above facts and circumstances of the case, I dispose of this OA with a direction to the Respondent No.1 to consider his aforesaid representation as well as the entire facts as narrated by him in this OA and convey its decision to him at the earliest. Till such time, the aforesaid impugned Annexure A-1 order transferring him to Lucknow shall be kept in abeyance. There shall be no order as to costs.
( G. George Paracken ) Member (J) SRD