Central Administrative Tribunal - Chandigarh
Mamta Sharma Aged 24 Years Daughter Of ... vs Union Of India Through Secretary To ... on 3 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. NO.1353/HR/2013 Decided on: 03.10.2013 Coram: Honble Mr. Sanjeev Kaushik, Member(J) Mamta Sharma aged 24 years daughter of Sh. Surender Sharma, presently working as PA Bhiwani, Head Office, Bhiwani and resident of Parshu Ram colony, Behind Gawar Factory, near Shyama Public School, Bhiwani, District Bhiwani.
.Applicant Versus
1.Union of India through Secretary to Government of India, Ministry of Communication and Information Technology, New Delhi.
2.Chief Postmaster General, Haryana Circle, Ambala, Haryana.
3.Superintendent of Post Office, Bhiwani, District Bhiwani, Haryana.
4.Post Master Bhiwani Head Office, District Bhiwani, Haryana.
..Respondents Present: Mr. Jagjeet Beniwal, counsel for the applicant Order (Oral) BY HONBLE MR. SANJEEV KAUSHIK, MEMBER(J)
1. By means of the present O.A, the applicant has assailed the order dated 31.07.2013(Annexure A-3) whereby the applicant has been transferred from PA Bhiwani Head Office to PA Board of School Education Haryana.
2. In support of his averments, learned counsel for the applicant vehemently argued that the impugned transfer order is in violation of policy dated 25.02.2013 issued by the Department wherein it has been provided that a person should not be transferred before completion of tenure of four years. He submits that the applicant joined at the present place of posting on 29.03.2010 and before completion of her tenure of four years, she has been transferred, therefore the same is in violation the Respondents own transfer-policy. On the basis thereof, he prays that the impugned order be set aside and that during the pendency of the OA the same may also be stayed. He further submits that the applicant has been transferred to punish her as she had made a complaint against one of the employees of Head office and only for that reason she has been transferred from PA Head office to PA Board of School Education Haryana.
3. Mr. Deepak Agnihotri, learned Sr. Standing Counsel, who is having advance notice appears and vehemently opposes the prayer made on behalf of the applicant. He submits that the applicant has been transferred to a All Ladies post office where only ladies are posted, which is apparent from the impugned order itself. He further submits that the transfer is not out of revenge but after considering the complaints made by the applicant and finding that her posting to a Lady Post Office would be suitable to her, she has been transferred there. He submits that transfer is a prerogative of the employer and, therefore, this Court should not interfere with the transfer order. In support of his contention, he places reliance upon the Honble High Court Order in the case of State of U.P. Vs. Gobardhan Lal 2004(11) SCC 402) wherein it has been held that 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 unless an order of transfer is shown to be an outcome of mala fide exercise of power of stated to be in violation of statutory provisions prohibiting any such transfer.
4. I have given my thoughtful consideration to the matter. Admittedly it is not the contention of the applicant that the order of transfer has been passed by an authority who is incompetent. She has not even alleged mala fide against any officer. The sole ground taken is that the same is in violation of respondents own transfer policy. It is settled law that if the transfer is in contravention of statutory service rules, then only the Court can interfere, otherwise the instructions regarding transfer are not binding upon the authorities because these are only guidelines and can be deviated in appropriate cases. This issue has already been considered and settled by this Tribunal in the case of Balbir Singh Vs. U.O.I. & Others (O.A. No. 561/CH/2013). The relevant portion thereof reads as under:-
The first question is no more res-integra as the Honble Apex Court has held in the case of Union of India versus S.L.Abbas (A.I.R. 1993 S.C. Page 2444) that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions. Similar view has again been reiterated in the case of Shilpi Boses case (supra), the court observed thus (Para 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 malafide. 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. The High Court over looked these aspects in interfering with the transfer Orders In the case of State of U.P. versus Gobardhan Lal (supra), the Honble Court has held as follows :-
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. Thus, it is clear that the transfer policy does not create any legal right in favour of the employee. In the present case, the applicant has been transferred without there be any change in his status at Delhi. It is settled law that a writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by an employee that there is a breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court/Tribunal can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court/Tribunal that he/ she has a legal right to insist on such performance. The existence of the said right is a condition precedent for invoking the writ jurisdiction. In the present case, it cannot be said that the transfer order of the applicant is in violation of any statutory rule. In view of the above, I find no reason to interfere with the impugned transfer order. Accordingly, the O.A., being devoid of any merit, is dismissed in limine.
(SANJEEV KAUSHIK) MEMBER (J) PLACE: Chandigarh Dated: 03.10.2013 mw