Central Administrative Tribunal - Delhi
Coram vs General Manager on 18 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.4460 OF 2014
New Delhi, this the 18th day of March, 2015
CORAM:
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..
Tej Pal Singh,
Aged 47 years,
s/o Shri Kewal Ram,
working as Office Supdt./P.Branch,
Northern Railway Hqrs. Office,
Baroda House, New Delhi . Applicant
(By Advocate: Mr.M.S.Saini)
Vs.
1. General Manager,
Northern Railway,
HQs Office, Baroda House,
New Delhi
2. Dy.Chief Personnel Officer,
Northern Railway,
HQs Office, Baroda House,
New Delhi
3. Senior Deputy General Manager,
Northern Railway,
HQs Office, Baroda House,
New Delhi Respondents
(By Advocate: Mr.Kripa Shankar Prasad)
ORDER
In this Original Application, the applicant has prayed for quashing and setting aside the order dated 16.10.2014 (Annexure A/1) whereby he has been transferred from Headquarters Office, Northern Railway, Baroda House, New Delhi, to Firozpur Division, along with post with immediate effect till finalization of D&AR case, on revocation of the order of his suspension and issuance of major penalty charge sheet against him, vide letter dated 15.10.2014 and memo dated 15.10.2014 respectively.
2. I have perused the pleadings and have heard Mr.M.S.Saini, learned counsel appearing for the applicant, and Mr.Kripa Shankar Prasad, learned counsel appearing for the respondents.
3. The applicant was appointed as a Clerk in the Northern Railway in the year 1995 and was subsequently promoted to the post of Senior Clerk, and again to the post of Office Superintendent. While working as Office Superintendent in the Personnel Branch under Senior Personnel Officer/Engineering, Northern Railway, Baroda House, New Delhi, the applicant was placed under suspension with immediate effect, vide order dated 11.9.2014.
4. The disciplinary authority issued a charge memorandum dated 15.10.2014 (Annexure A/3) proposing to hold inquiry against the applicant under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. The article of charges on the basis of which action under the D&AR case was proposed to be initiated against the applicant reads thus:
Shri T.P.Singh while working as OS under SPO/Engg, Baroda House is found responsible for:
1. Demanding and accepting Rs.15,000/- from Sh.Chottey Lal Raigar, Trackman, Rampur/Moradabad division for processing his file of inter-railway mutual transfer.
2. Deliberately delaying issue of orders for Inter-Railway transfer of Shri Chottey Lal Raigar with the mala fide intention to seek illegal gratification by suppressing information about these orders being already approved by the competent authority on 28.05.14.
By the above act of omission and commission Sh.Tej Pal Singh, OS failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Railway servant, thereby, contravened the provisions of Rule 3.1(i),(ii) & (iii) of Railway Service Conduct Rules 1966. The statement of imputation of misconduct/misbehaviour on the basis of which article of charges was proposed to be substantiated against the applicant reads thus:
Charge No.1:
On the basis of source information received that Shri Tej Pal Singh,OS under SPO/Engg is demanding Rs.25,000/- for processing the case file of inter-railway mutual transfer of Shri Chottey Lal Raigar, Trackman, Rampur, Moradabad and Sh.Satinder, trackman, Digana, Jodhpur, a Vigilance trap was planned on 10.9.14 by a team of N.R.Vigilance in which it was decided that Rs.15,000/- will be paid to Sh.Tej Pal Singh by the decoy Sh.Chottey Lal Raigar as part of the payment of Rs.25,000/- which was demanded by Shri Tej Pal Singh from Shri Chottey Lal Raigar (RUD No.1).
As per the proceedings on the day of Vigilance Trap (RUD-2), Shri T.P.Singh was apprehended by a Vigilance team near Lady Irwin Colelge on 10.9.14 at around 5.40 P.M. where the decoy money Rs.15,000/- (decoy money was the same as mentioned in TCM i.e. RUD-1) was recovered from the pocket/shelf of the car on right side of the steering where Sh.Tej PalSingh was seated. The amount was taken out from this shelf by Sh.Anjani Kumar, Constable, CIB/NDBH accompanying the Vigilance team (statement as RUD-8) and recovery memo (RUD-14) reveals that the denomination and number in the currency note was same as that mentioned in the test check memo (RUD-1). This incident was also recorded through a camera (video CD as RUD-3). The belongings of Decoy, Sh.Chottey Lal and independent witness Sh.Suresh Kumar, SI/CIB/RPF/NDBH were checked by Sh.Rajinder Kumar after the Vigilance trap and no money was found with item (RUD-9). In the proceedings, it has been brought out that Shri tej Pal Singh has accepted that Rs.15,000/- was taken by him from sh.Chottey Lal Raigar, Trackman, Moradabad who had given it to him to be kept in safe custody. As per the statement of decoy, Sh.Chottey Lal and independent witness Sh.Suresh accompanying Sh.T.P.Singh in his car No.DL 2C AH 2284 and as brought out in the proceedings (RUD-2 & RUD-7 and 7/1), Sh.Tej Pal Singh took the decoy and the independent witnesses in his car from Punjab Bhavan (where he had called Sh.Chotey Lal to meet, audio recording as RUD-4, which has been accepted by Sh.Tej Pal Singh in his statement dated 10.9.14, 12.9.14 & 15.9.14 to 22.9.14 RUD-5, 5/1 & 5/2) and moved to several part of Delhi during which he demanded more money for processing the case since involvement of higher officers was there. The independent witness has confirmed that Rs.15,000/- were given by Sh.Chottey Lal Raigar to Sh.Tej Pal Singh to process his case file and the same were counted by Sh.Tej Pal Singh and kept in the pocket/shelf in the right side of steering of the car where Sh.Tej Pal Singh was seated and was driving (RUD-7 & 7/1). Sh.Chottey Lal in his statement dated 10.9.14, 11.9.14, 12.9.14 (RUD-8, 6/1 & 6/2) has stated that prior to 10.9.14, he had met Sh.Tej Pal Singh at least ten times for his transfer during January to September14 and on 27.8.14 he had met him in person at Baroda House when again at around 6.00 p.m. he took him in his car and while moving to different parts of Delhi demanded Rs.30,000/- for finalization of his case of mutual transfer to which Sh.Chotey Lal expressed his inability to pay. As per statement the deal on that day was fixed to Rs.25,000/-. The reference to a part of amount to be paid to Sh.Tej Pal Singh also came up during conversation of Sh.Chottey Lal Raigar and Sh.Tej Pal Singh on 09.9.14 (RUD-4), which has been accepted by Sh.Tej Pal Singh on his statement dated 15.9.14 to 22.9.14 (RUD 5). All the audio and video listed as RUDs have been heard/seen by Sh.Tej Pal Singh and accepted in answer to q.No.25 to Q.No.41 of statement dated 18.9.14 & 19.9.14 (RUD-10).
Charge No.2
i) The application of Sh.Chottey Lal Raigar, Trackman, Rampur, Moradabad as forwarded by DRM/P/MB was received by Shri Tej Pal Singh on 06.01.14. This was processed for seeking NOC from GM/P/NWR by Sh.Tej Pal Singh on 28.3.14. On receipt of NOC from GM/P/NWR vide letter dated 24.4.14, the case file of mutual transfer was put up for approval of CTE/NR on 26.5.14 which was in turn approved on 28.5.14. Sh.Tej Pal Singh did not reveal this fact of approval to Sh.Chottey Lal Raigar with the intention to seek illegal gratification (RUD-11 & RUD-6, 6/1 & 6/2).
ii) When the case of inter-railway mutual transfer of Sh.Chottey Lal Raigar had been approved on 28.5.14 by CTE/NR, the orders of mutual transfer of Sh.Chottey Lal Raigar with Sh.Satender Kumar were not put up to higher authority by Sh.Tej Pal Singh for issue and the case file was kept in his custody without any action on the said transfer orders till the date of vigilance check (RUD-11).
iii) As per instructions issued by Railway Board vide letter No.ERP/PORTAL-TRANSFER/2013 dated 10.3.2013, every action on the status of cases is required to be updated regularly on the Common Portal for Transfer. Sh.Tej Pal Singh did not update the status of the case of inter-railway mutual transfer of Sh.Chottey Lal Raigar after initial registration of the same vide registration no.NR020000234 dated 20.12.13 even when the case file of this mutual transfer was in the custody of Sh.Tej Pal Singh and was being dealt by him (RUD-12 & 13).
5. Thereafter, the applicant was issued with the impugned notice/order dated 16.10.2014 (Annexure A/1), which reads as follows:
In reference to this office notice of even no. dated 15.09.2014 as per Dy.CPO/HQ confdl letter No.E-142/831(Loose) Security Cell/P dated 15.10.2014, the competent authority has been revoke (sic) the suspension of Shri Tej Pal Singh Office Supdt/Pesonnel Branch and Major penalty charge sheet (SF-5) has been served upon him. Shri Tej Pal Singh Office Supdt. is transferred to Firozpur Division along with post with immediate effect till the D&AR case is finalized.
He may be relieved and directed to report to Sr.DPO/FZR for further posting order.
The changes may be advised to EIIIB and Bills separately. The applicant has challenged the said order dated 16.10.2014 (Annexure A/1) in the present O.A.
6. It was submitted by Shri M.S.Saini, learned counsel appearing for the applicant that the officers of the Vigilance Department were biased against the applicant, and that the respondent-departmental authorities issued the impugned order of his transfer at the dictate of the Vigilance Department. The impugned order of transfer was issued in clear violation of the Railway Boards Circular dated 25.3.1967 (Annexure A/4) and R.B.E.No.336/85 dated 24.12.1985(Annexure A/5). Paragraph 17 of the Master Circular is not applicable to the case of the applicant inasmuch as investigation has already been over. In support of his contentions, the learned counsel invited our attention to the decision of the Honble High Court of Delhi in Ganesh Din v. Union of India, 2006(2) ILR (Del) 852, and the decision of Ahmedabad Bench of the Tribunal in Shri Satendra Ramjor Oza v. Union of India and others, 4/2012 Swamysnews, OA No.118 of 2007, decided on 23.11.2010; as well as the decision of Guwahati Bench of the Tribunal in Shri Nabajit Das v. Secretary, Ministry of Home Affairs, 4/2012 Swamysnews 81, O.A.No.04 of 2011, decided on 25.2.2011.
6.1 In Ganesh Dins case (supra), the Honble High Court of Delhi in paragraphs 15 to 17 held thus:
15. We are of the view that the circulars of 25.3.1967 and 30.10.1998 deal with the transfer of non-gazetted staff of the Railways, whose conduct is under investigation. These circulars dealt with the non-gazetted staffing general, while the circular of 2.11.1998, is specifically dealing with ticket checking staff and other staff posted in mass contact areas, who are detected to be indulging in malpractices. While in the case of non-gazetted staff whose conduct is under investigation, the Boards letter dated 29.3.1962 as also the Circular of 25.3.1967 provide that they should not be transferred from one Railway administration to another till conclusion of the departmental proceedings. In fact, a Model Time Scheme as it appears at page 67 of the paper book seeks to reduce the earlier Model Time Schedule of 202 days to 150 days so as to achieve expeditious completion of departmental enquiries within a period of five months so that following the enquiry and its results, action can be taken.
16. The Railways as a matter of policy and in their wisdom have carved out a different treatment for employees, who are either posted in the ticket checking or other areas of mass contact and are found to be indulging in malpractices. Inter-divisional transfer for these persons has been provided by the circular dated 2.11.1998. The transfer need not await the completion of departmental inquiry as for the other non-gazetted staff whose conduct is under examination. The objective is to root out corruption totally from the posts, which are in public contact or having public dealings. The different treatment is clearly justifiable based on a reasonable classification and an intelligible differentia. The railways cannot be faulted with for taking strong and vigorous steps to project a clean image and towards that end to effect transfer necessary in public interest. Transfer is an incidence of service and unless the transfer is vitiated by mala fides or by extraneous considerations, the Courts are loathe to interfere. Courts are not expected to interdict the working of the administrative system by interfering in transfers as held by the Supreme Court in the State of Madhya Pradesh and another vs. Sri S.S.Kourav & ors 1995(3) SCC 270. No Government servant or employee has a legal right to be posted at a particular place. Transfer apart from being an incidence of service is also a condition of service necessary in public interest for maintaining efficiency in public administration as held in National Hydro Electric Power Corporation Ltd. vs. Shri Bhagwan & another (2001) 8 SCC 574.
17. In view of the foregoing discussion, we reject the challenge to the Circular of 2.11.1998 as being discriminatory and violative of Article 14 of the Constitution of India or being arbitrary and punitive in nature. As noticed earlier, the Circulars dated 25.3.1967,and 30.10.1998 prescribing a restraint on transfers pending the disciplinary or departmental enquiry are intended for the general non-gazetted staff of railways, while the circular of 2.11.1998 deals specifically with the railways staff posted in ticketing and the areas of mass contact. 6.2 In Satendra Ramjor Ozas case (supra), the applicant made complaint to the vigilance wing that respondent no.8 and 9 were let off leniently with a minor penalty for producing false ITI Certificate. The Chief Vigilance Inspector along with other officials visited his house for an enquiry regarding a complaint of disproportionate assets possessed by the applicant. On the allegation made by the officers of the vigilance wing against the applicant that they were manhandled by the applicant, the departmental authorities placed the applicant under suspension and also issued charge sheet. Thereafter, the applicant was transferred from one Division to another. On the finding that the issue of charge sheet to the applicant led to his transfer and it was done on the advice of vigilance department, the Tribunal held that the existence of such a reason for bias coupled with the absence of any material to support the ground that the applicant was likely to obstruct the enquiry would indicate that the transfer was resorted to for extraneous consideration that can be construed as mala fide exercise of power. Accordingly, the Tribunal allowed the O.A. and quashed the transfer order as well as the relieving order.
6.3 In Shri Nabajit Dass case (supra), the applicant was transferred in the middle of scholastic session of his children. The Tribunal passed interim order for deferring the transfer of the applicant. During pendency of the O.A., the applicant had requested for his posting to a different place. Therefore, the Tribunal held that no grievance survived, but directed the respondents to consider the pending representation of the applicant.
7. Per contra, Shri Kripa Shanker Prasad, learned counsel appearing for the respondents, submitted that the applicant has been transferred in accordance with paragraph 17 of the Master Circular, and that the Railway Boards Circular dated 25.3.1967 (Annexure A/4) and R.B.E.No.336/85 dated 24.12.1985(Annexure A/5) being inapplicable to the applicants case, question of violation of the provisions thereof does not arise.
8. The relevant portion of the Railway Boards circular dated 25.3.1967 reads thus:
Sub: Transfer of Railway staff whose conduct is under investigation.
Reference Boards letter NO.E(D&A)62RG6-15 dated 29.3.1962 wherein it was laid down that non-gazetted staff whose conduct is under investigation for charges meriting dismissal/removal from service, including those under suspension, should not be transferred from one Railway administration to another till after the finalization of the departmental or criminal proceedings against them. The Board have considered the matter further and have now decided that non-gazetted staff against whom a disciplinary case is pending or is about to start, should not normally be transferred from one Railway/Division to another Railway/Division till after the finalization of the departmental or criminal proceedings, irrespective of whether the charges merit imposition of a major or a minor penalty. 8.1 R.B.E.No.336/85, dated 24.12.1985 reads thus:
In Boards letters dated 19.11.70 and 14.1.75 referred to above, it was desired that the transfer of SC/ST employees should be confined to their native districts or adjoining districts or places where the Administration can provide quarters and that these instructions should be followed to the maximum extent possible, subject of course to the exigencies of service. It was also desired that employees belonging to SC/ST should be transferred very rarely and for very strong reasons only. Again, in Boards letter dated 6.7.78 referred to strong reasons only. Again, in Boards letter dated 6.7.78 referred to above, it was clarified that even at the time of initial appointment, the SC/ST candidates should, as far as practicable, be posted nearer to their home towns or at a place where the Administration can provide them quarter subject to their eligibility. It was further clarified that these instructions would equally apply to cases of transfer on promotion, provided the post is available.
A few cases of transfer of SC/ST employees have come to the notice of the Board wherein the above mentioned instructions have not been followed. They, therefore, desire that instructions on the subject should be reiterated to all concerned that due consideration should be given to the above mentioned instructions while ordering transfer/posting of SC/ST employees. 8.2 Paragraph 17 of the Master Circular issued by the Government of India, Ministry of Railways, reads thus:
If the investigation is likely to take more time, it should be considered whether the Railway servant should continue to remain under suspension or whether the suspension order should be revoked and the Railway servant permitted to resume duty. If the presence of the Railway servant is considered detrimental to the collection of evidence etc., or if he is likely to tamper with evidence of cases, he may be transferred on revocation of the suspension order.
9. From the impugned notice/order dated 16.10.2014 it transpires that after issuance of the major penalty charge sheet dated 15.10.2014 to the applicant, the competent authority has revoked the order of suspension of the applicant, vide letter dated 15.10.2014. After revoking the order of suspension, the competent authority, vide impugned order dated 16.10.2014. has transferred the applicant to Firozpur Division along with post with immediate effect till the D&AR case is finalized. It is, thus, clear that the applicant has been transferred to Firozpur Division not on permanent basis, but on temporary basis till finalization of the disciplinary proceeding initiated against him, vide charge memo dated 15.10.2014. Although the applicant should not normally be transferred to Firozpur Division in terms of the Railway Boards circular dated 25.3.1967, yet it cannot be said that the said circular dated 25.3.1967 absolutely prohibits the competent authority from transferring the applicant if the circumstances warrant such transfer. Therefore, I find no substance in the contention of the applicant that the impugned transfer order is violative of the Railway Boards circular dated 25.3.1967.
10. In R.B.E.No.336/85, dated 24.12.1985, the Railway Board has reiterated the instructions contained in its letters dated 19.11.70, 14.1.75 and 6.7.1978 that the transfer of SC/ST employees should be confined to their native districts or adjoining districts or places where the Administration can provide quarters, and that these instructions should be followed to the maximum extent possible, subject of course to the exigencies of service, and that employees belonging to SC/ST should be transferred very rarely and for very strong reasons only. Thus, the instructions contained in RBE No. 336/85, dated 24.12.1985, pertain to normal transfer and posting of SC/ST employees, but do not deal with a situation where an SC/ST employee, like the applicant, is transferred consequent upon revocation of the order of his/her suspension and issuance of major penalty charge sheet against him. Even the RBE No. 336/85, dated 24.12.1985 also does not completely prohibit the departmental authorities from transferring an SC/ST employee. Therefore, the competent authority, after considering the facts and circumstances of a given case, can transfer an SC/ST employee for strong reasons. As a consequence, I am not inclined to accept the contention of the applicant that the impugned transfer order has been issued by the competent authority in clear violation of the RBE No. 336/85, dated 24.12.1985.
11. It is next to be seen as to whether paragraph 17 of the Master Circular is applicable to the case of the applicant, and whether the impugned order of transfer has been issued in accordance with paragraph 17 of the Master Circular. The applicant has contended that paragraph 17 of the Master Circular is not applicable to his case inasmuch as the investigation has already been over and charge sheet has been issued against him. Paragraph 17 ibid stipulates that if the presence of Railway servant is considered detrimental to the collection of evidence, etc., or if he is likely to tamper with evidence, he may be transferred on revocation of the suspension order. As already pointed out, by the impugned order the applicant has been transferred not on permanent basis but on temporary basis till finalization of the disciplinary case initiated against him, vide charge memo dated 15.10.2014. In paragraph 4.8 of the counter reply, the respondents have stated that the applicants seniority is still being maintained in his parent cadre. The applicant has admittedly been working in the Headquarters Office, Northern Railway, Baroda House, New Delhi, since 1995. Therefore, I do not find any infirmity in the impugned order issued by the competent authority transferring the applicant from Headquarters Office, Northern Railway, Baroda House, New Delhi, to Firozpur Division, till finalization of the disciplinary case, after issuance of the charge sheet and revocation of the suspension, in terms of paragraph 17 of the Master Circular.
12. After issuance of the charge sheet under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968, inquiry is held. During the inquiry, oral as well as documentary evidence is adduced on behalf of the Department and the delinquent in support of their respective cases. In the present case, on the basis of the statements of witnesses and documentary evidence gathered during investigation/raid by the Vigilance Wing of the Northern Railway, the disciplinary authority has proposed to hold inquiry against the applicant. During the inquiry, the listed witnesses have to be examined and cross-examined, and the documentary evidence has to be produced and proved through the witnesses. The investigation completed by the Vigilance Wing of the Northern Railway in the case of the applicant is not the inquiry which has been proposed by the disciplinary authority in the charge memo issued under Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968. The word evidence, occurring in paragraph 17 of the Master Circular, certainly refers to and means evidence which has to be adduced at the domestic inquiry. Therefore, I do not find any substance in the contention of the applicant that since the investigation by the Vigilance Wing has already been over and charge sheet has already been issued, paragraph 17 of the Master Circular is not applicable to his case.
13. It is the plea of the applicant that on account of bias of the officers of the Vigilance Wing of the Northern Railway, a false and fabricated case has been foisted against him, and on the dictates of the said officers of the Vigilance Wing, the disciplinary authority has issued the impugned transfer order. In support of the said plea, the applicant has filed a copy of the complaint dated 19.9.2014(Annexure A/2) lodged by him at the Tilak Marg Police Station, New Delhi. In the said complaint, the applicant has stated that on 10.9.2014 at about 5 P.M. while he was going to his residence in his car and was near Lady Irwin College Lane, S/Shri Mukesh Kumar, Kailash, Prahlad and Suresh Mongia, all working in Baroda House, intercepted him and forcibly took his Mobile, Pan Card, and Identity Card. On the next day, he requested the said persons to return him the aforesaid articles, but the latter declined. On 15th and 19th September, 2014, he also made similar requests, but the aforesaid persons abused him in vulgar language. It has also been stated by the applicant that Kailash slapped him and Mukesh pushed him out. After going through the records of the present case, I find that the persons named in the complaint dated 19.9.2014, which is claimed by the applicant to have been lodged at Tilak Nagar Police Station, were none other than five out of six members of the raiding party duly constituted by the Vigilance Wing of the Northern Railway, Baroda House, New Delhi, vide test check memo dated 10.9.2014. It is found that after the raid was over and the applicant was placed under suspension with effect from 11.9.2014, the applicant lodged the said complaint at Tilak Nagar Police Station on 19.9.2014 not only as a counterblast to the raid conducted and action taken by the Vigilance Wing, but also to involve five out of six members of the raiding party in criminal case. The applicant has not disclosed as to what action has been taken by the police on his complaint dated 19.9.2014. Furthermore, it transpires that the articles, which were claimed to have been forcibly taken away by the persons named in the complaint dated 19.9.2014 from the possession of the applicant, were seized by the raiding party of the Vigilance Wing on 10.9.2014 from the possession of the applicant during the raid. In paragraph 4.4 of the counter reply, it has been emphatically asserted that on 15.9.2014 the vigilance team returned the Pan Card and Identity Card to the applicant who acknowledged receipt of the same. The fact that the applicant had lodged a complaint at the Police Station against the members of the raiding party, who were listed as witnesses to be examined during the domestic inquiry, prima facie shows the attitude of the applicant to tamper with evidence which is yet to be produced at the domestic inquiry. On the basis of the said complaint, the applicant has pleaded that the officers of the Vigilance Wing were biased against him, and that on the dictates of the said officers, the disciplinary authority initiated disciplinary proceedings and transferred him. After considering the entire materials available on record, I am not inclined to accept the aforesaid plea of the applicant.
14. The allegations made against the applicant are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in the departmental proceeding already initiated against the applicant. What is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of against the applicant. The question whether the applicant could be transferred to a different Division is a matter for the departmental authorities to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Tribunal to direct one way or the other.
15. In Shilpi Bose v. State of Bihar, 1991 Supp.(2) SCC 659, the Honble Supreme Court, at page 661, para 4, observed thus:
4. In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order. Instead affected party should approach the higher authorities in the department.
16. In Union of India v. S.L.Abbas, (1993) 4 SCC 357, at page 359, Para 7, the Honble Supreme Court observed thus:
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.
17. A three-Judge Bench of the Honble Supreme Court in Major General J.K.Bansal v. Unon of India and others, (2005) 7 SCC 227, has also adopted the aforesaid view.
18. In State of M.P. and another v. S.S.Kourav and others, 1995(2) SLJ 109 (SC): (1995) 3 SCC 20, the Honble Supreme Court observed:
The Courts or Tribunals are not the 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 decisions shall stand unless they are vitiated either by mala fide or by extraneous consideration without any factual background foundation.
19. Again, the Honble Supreme Court in State of U.P. and Another v. Siya Ram and another, 2005 (1) SLJ 54 (SC): (2004) 7 SCC 405, where the respondents therein were transferred on administrative grounds, the Honble Supreme Court observed thus:
5. The High Court while exercising jurisdiction under Articles 226 and 22 of the Constitution of India 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 for ever 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 the other is not only incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or Tribunals normally cannot interfere with such orders as a matter of routine, as though they were 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 Corpn. Ltd. V. Shri Bhagwan.
6. The above position was recently highlighted in Union of India v. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest.
20. Again, the Honble Supreme Court in State of U.P. v. Gobardhan Lal, 2004 (3) SLJ 244(SC): (2004) 11 SCC 402, in paragraphs 7 and 8 observed thus:
7. 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 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 transfer 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 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 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.
21. In the light of the above discussions, I hold that the applicant has not been able to make out a case for the relief claimed by him, and that none of the decisions cited by the learned counsel for the applicant is of any help to the case of the applicant. As a consequence, the O.A. being devoid of merit is liable to be dismissed.
22. Accordingly, the O.A. is dismissed. The interim order stands vacated. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN