Central Administrative Tribunal - Delhi
Smt Harsh Lata Saxena vs Municipal Corporation Of Delhi on 13 February, 2024
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Item No. 40 (C-4) O.A. No. 796/2023
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 796/2023
Reserved on: 06.02.2024
Pronounced on: 13.02.2024
Hon'ble Dr. Chhabilendra Roul, Member (A)
Smt. Harsh Lata Saxena
D/o Late Vishun Sahai Saxena
R/o. B-3, Majlis Park Main Road
Zero Number Gali, Adarsh Nagar
New Delhi - 110033
Mob. No. 7042785498
...Applicant
(By Advocate: Mr. Ashok Chauhan, Mr. Vinod Gaurav, Mr. Raj
Kumar)
Versus
1. Municipal Corporation of Delhi
Education Department : HQ
Through its Commissioner
4th Floor, Civic Centre, Minto Road
New Delhi - 110002
2. Municipal Corporation of Delhi
Education Department
Through its Deputy Commissioner of Education
Namely Smt. Usha Rani
4th Floor, Civic Centre, Minto Road
New Delhi - 110002
3. The Principal
North Delhi M.C. Primary School
Birla Line, Kamla Nagar
Delhi - 110007
4. Asst. Director of Education
Education Department (HQ)
Municipal Corporation of Delhi
Dr. Shyama Prasad Mukherjee Civic Centre
E-Block, 15th Floor, JLN Marg
New Delhi - 110002
...Respondents
(By Advocate: Mr. G D Oberoi)
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Item No. 40 (C-4) O.A. No. 796/2023
ORDER
Hon'ble Dr.Chhabilendra Roul, Member (A) The applicant was appointed as teacher with the respondents on 23.03.1994. Vide order dated 11.10.2021, the applicant was transferred from the MCPS Birla Line, Kamla Nagar, KPZ to MCPS Jahangirpuri, E-I, CLZ with immediate effect. The relieving order was issued on 22.10.2021. Feeling aggrieved the applicant made a representation dated 01.11.2021, requesting for cancellation of the said transfer order. As the respondents did not consider the request, she finally approached this Tribunal in OA No. 1227/2022. This Tribunal vide order dated 23.05.2022, directed the respondents to consider the pending representation of the applicant dated 01.11.2021 and dispose of the same by passing a reasoned and speaking order within a period of two months from the date of the receipt of that order. In pursuant to that order, the respondents have passed a detailed order dated 25.08.2022, rejecting the request of the applicant for cancellation of the said transfer order. The applicant again 3 Item No. 40 (C-4) O.A. No. 796/2023 approached this Tribunal through the present OA seeking the following relief:-
"(8.a) Quash/set aside the impugned office order dated 25--8- 2022 issued by the Respondent No.4 being illegal and direct the respondents to withdraw the office order dated 25-08-2022 thereby direct the respondents to allow the Petitioner to work at MCPS Birla Line, Kamla Nagar, KPZ.
(8.b) To order dated 22-10-2021 issued by the Respondent No.2 malafidely because there is no any urgency for transferring the Applicant/Petitioner during the crucial period of Corona Pandemic.
(8.c) To pass an order in favour of the Applicant/Petitioner thereby direct the Respondent Authorities to pay the withheld salary of the applicant/Petitioner from the month of November, 2021 to till date and to enable the Applicant/Petitioner to live with her dignity in the society.
(8.d) Pass an order in favour of the petitioner thereby directing the respondents to pay the cost of the present petition to the petitioner.
(8.e) Any other directions/orders which this Hon'ble Tribunal deems fit and proper also be passed in favour Petitioner and against the respondents, in the interest of justice."
2. Learned counsel for the applicant states that the impugned order is a punitive one. He further states that the initial transfer order dated 11.10.2021, was issued in a mala fide manner. He also states that the respondents have not passed the reasoned and speaking order within two months from the date of receipt of the earlier order of this Tribunal dated 23.05.2022 and that the respondents have taken four months for passing the impugned order dated 07.09.2022. He states that from this it is amply clear that the respondents were thoroughly biased against him. The learned counsel for 4 Item No. 40 (C-4) O.A. No. 796/2023 the applicant further avers that the respondents have not addressed the actual grievance of the applicant as mentioned in her representation. He states that the respondents have adopted a pick and choose policy in transferring the applicant from the said school. There is another teacher namely Ms. Nishi Jindal, who has been working in the same school for more than eleven years, however, the applicant who has completed a tenure of only six years in the school has been picked for being transferred out of the school. He states that this further goes on to show that the respondents have adopted a discriminatory policy against the applicant.
3. Per contra, the learned counsel for the respondents states that the impugned order dated 25.08.2022 is fairly detailed one and it does not suffer on account of any irregularities or deficiencies. He states that the applicant has repeatedly shown instances of indiscipline and poor performance during the course of her tenure at the said school. He states that other than that there are other administrative reasons also for the impugned order as clearly detailed in Para Nos. 1 to 9 of the said order and because of all these reasons, the applicant had been transferred from the said school to ensure harmonious and cordial relationship 5 Item No. 40 (C-4) O.A. No. 796/2023 between the school staff. He submits that the initial transfer order so passed is neither punitive nor is it biased in any way against the applicant.
4. I have heard the learned counsels for the parties and gone through the pleadings available on record.
5. Transfers, deployments, redeployment or placement of organizational human resources are essential components of Human Resources Management Strategies of any organization, be it in private sector or in the Government or Public sector. These strategies are aimed at realizing the organizational goals for furtherance of mission objectives of the organization. For a government department or autonomous organization or Public Sector Undertaking, Public Interest in the form of discharging the assigned responsibilities to these entities by the Constitution, statutory provisions subordinate legislation or delegated competencies is the charter for mission objectives.
6. Deployment or transfer is also the process of providing sub-entities and subordinate offices with the required human resources and support they need to be successful in their roles. This is akin to allocation of organizational resources to 6 Item No. 40 (C-4) O.A. No. 796/2023 achieve organizational goals. Modern governments and organizations begin the process prior to adopting transfers as a redeployment tool by assessing the organization's current and future human resources needs. Following these assessments, the competent authority makes decisions how best to deploy the human resources to meet the identified needs. These include the type of human resources required, the number of human resources required, the location of the human resources, and the timing of the deployment. In Government, generally this task is assigned to an Administrative/ Establishment/ Placement/ Transfer Committee.
7. Effective utilization of service of an employee is in the very core of administrative exigency. It is the prerogative of the employer to transfer his employee at any point of time and to any work station based on administrative exigencies. Deployment of staff in the form of transfers enables realignment of human resources to new work assignments or job responsibilities to meet organizational needs or to provide opportunities to the employees gain skills and experience. Such activities are aimed at supporting employee's engagement, employee motivation and increased productivity 7 Item No. 40 (C-4) O.A. No. 796/2023 and leadership development across all level of employees within the organization.
8. The position that the competent administrative authorities have a prerogative to redeploy or transfer an employee for better utilization of human resources of the organization for furtherance of organizational mission objectives have been well settled in several case laws by the Apex court. The employee in a transferable job does not have any vested right to remain at a particular place or post. The counsel for the respondents has cited the judgment in Gujrat Electricity Board vs Atmaram Sungomal Poshani (CA No 3561 0f 1986 decided on 31.3.1989). This judgment of the Apex court has been reiterated in a series of judgments by the Apex Court.
9. The Apex court in Union of India vs S.L. Abbas, CA no 2348 of 1993 decided on 27.04.1993 has again reiterated similar position 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." 8
Item No. 40 (C-4) O.A. No. 796/2023 "He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force."
9. Again in Public Services Tribunal Bar Vs State Of U.P. & Another on 29 January, 2003 [Appeal (civil) 3946 of 2001 Date of Judgment: 29/01/2003] it was held :-
"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 view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner.
From the above quoted decisions, it is evident that this Court has consistently been of the view that by way of interim order the order of suspension, termination, dismissal and transfer etc. should not be stayed during the pendency of the proceedings in the Court."
The transfer policies are in the form of executive guidelines. And hence, these have no statutory force. The aforementioned case laws affirm the prerogative of the government to transfer its employees to ant place of posting for administrative exigencies. The transfer guidelines are subservient to public interest."
10. In State of UP & Ors Vs Govardhan Lal, CA 408 of 2004 decided 23.3. 2004, the Apex Court held that:
"6.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 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."
"8. 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 9 Item No. 40 (C-4) O.A. No. 796/2023 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. "
11. Here, even the transgression of the transfer guidelines has not been allowed to be interfered by the court. This has been further reiterated by the Apex Court in Airport Authority of India Vs Rajeev Ratan Pandey and Ors CA No. 5550 of 2009. Para 10 of the judgment states that even if the transfer order is violative of transfer policy, the court should not interfere. It has been held that:
"In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut"
12. Similar view has been echoed in Rajendra Singh & Ors Vs State of Uttar Pradesh & Ors, CA No.4975 of 2009 decided on 31.7.2009.
13. When the courts interfere in the administrative functioning of a department by entertaining the petitions against transfer orders, it creates administrative complexities 10 Item No. 40 (C-4) O.A. No. 796/2023 for the authorities. The Apex court in State of Haryana & Ors Vs Kashmir Singh & Ors on 6 October, 2010 [CIVIL APPEAL NOS. 8690-8701 OF 2010] has clearly advised the courts /tribunals to desist from interfering in those matters. It has been held as under:-
"16. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.
18. For the foregoing reasons, these appeals succeed and are hereby allowed. The impugned judgment of the High court is set aside and the writ petitions before the High Court stand dismissed. No costs."
14. The view that the transfer guidelines /circulars may not in itself confer a vested right which can be enforceable by a writ of mandamus was reiterated and highlighted by the Apex Court in Punjab and Sind Bank & Ors. vs. Durgesh Kuwar, 2020 SCC OnLine SC 774. It was held that:
"17. ..........An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus."11
Item No. 40 (C-4) O.A. No. 796/2023
15. Even the Supreme Court in Union of India and Others Vs. Ganesh Dass Singh, Civil Appeal No. 1358 of 1994, decided on 25.02.1994 held that there is hardly any scope of judicial review of administrative action in the form of transfer orders. It has been held as under:-
"4. In our opinion, in the present case there is no material to justify interference with the mere order of transfer made by the competent authority for administrative reasons particularly when the Tribunal had rejected the respondent's assertion that the transfer had been made on account of certain complaints he had made regarding the functioning of the Dept. We have no doubt that the view taken by the Tribunal is not justified on the facts found by it. It is also not within the scope of permissible judicial review in such matters relating to mere transfer made by the competent authority for administrative reasons."
16. The aforementioned judgments of the Apex Court have given upper hand to the administrative authorities or the Government in matters of Transfers. However, transfers may affect negatively the level of productivity, motivation, innovation quality, relations, and participation and communication patterns among other core human resources activities. When handled well and in accordance with the employees' circumstances, deployment increase employee performance through increased innovation, creativity, quality, productivity, profitability, loyalty flexibility, efficiency, effectiveness, and low levels of discontents, dysfunctional conflicts. In other words, employee welfare is also in the 12 Item No. 40 (C-4) O.A. No. 796/2023 interest of the organizations. The principles of effectiveness, efficiency and economy in matters of deployment of human resources are sought to be aligned with organizational mission goals.
17. While effecting redeployment through transfers, the organizations should also treat all such employees fairly and without any bias or malafide or discrimination. Moreover, a model employer like the government also treats its employees far more transparently and it is expected that the government ensures that there is no violation of Articles 14 and 16 Indian Constitution. Based on the twin objectives of satisfying organizational goals (public interest and better governance for delivery of public services) and employee welfare, growth and development, organizations including government departments formulate transfer /placement policies. These policies ensure transparency and also provide better opportunities to officers for excellence and more planned approach to cadre planning. Such transfer policies develop some sort of reasonable employee expectations to be treated fairly while effective redeployment through transfers. Similarly, the government departments also have reasonable expectations from its employees to cooperate in 13 Item No. 40 (C-4) O.A. No. 796/2023 such deployment to achieve mission goals of departments and other entities.
18. Earlier, Delhi High Court, based on the judgment in Gujarat Electricity Board (supra), has summarized the scope of judicial review in transfer matters under certain circumstances: It was held that a judicial review of an administrative action is of course permissible, but orders of transfer are interfered when:-
"(a) the transfer is malafide or arbitrary or perverse;
(b) when it adversely alters the service conditions in terms of rank, pay and emoluments;
(c) when guidelines laid down by the department are infringed;
(d) when it is frequently done and lastly;
(e) if there is a statutory infraction."
19. In the instant case, the applicant has failed to convince this Tribunal that the transfer order smacks biasness, malafide, arbitrariness and is punitive in nature. In view of the above, the present OA lacks merit and hence dismissed.
(Dr. Chhabilendra Roul) Member (A) /ss/