Central Administrative Tribunal - Delhi
Sh. Dinesh Sharma vs Union Of India & Ors on 19 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2871 of 2009
New Delhi this the 19th day of March,2010
Honble Dr. Dharam Paul Sharma, Member (J)
Sh. Dinesh Sharma,
S/o Shri O.N.Sharma,
R/o 191, A.G.C.R Enclave.
Indraprashtha Extension Part-II,
Delhi-110092 ... Applicant
(By Advocate: Ms. Priyanka Bhardwaj for Shri M.K.Bhardwaj)
VERSUS
Union of India & Ors.
Through:
1. The CAG of India,
Bahadurshah Zafar Marg,
New Delhi.
The Principal Director of Audit,
Northern Railway,
Baroda House,
New Delhi.
Ms. R.Rajlaxmi,
The then Principal Director of Audit,
(presently serving aas DG (Audit) Railways),
Northern Railway,
Baroda House, New Delhi.
.. Respondents
(By Advocate: Shri Sunil Kumar Rai)
O R D E R
The applicant has filed this application under Section 19 of the Administrative Tribunals Act,1985 challenging the correctness and legality of Order No.SOO No.63-NR/2009-10 dated 29.09.2009 transferring the applicant from Traffic Audit -I, New Delhi to Workshop, Amritsar.
2. The applicant had initially joined as Auditor on 26.06.1980 and due to his hard work, he got promotion to the post of Senior Audit Officer in the year,1984 and then he qualified the Section Officer Grade Examination and promoted to the post of Section Officer on 07.03.1989. Thereafter, he was promoted to the post of Assistant Audit Officer on 01.01.1993 and as Audit Officer on 01.01.2005. On 01.06.2007, the applicant was promoted to the post of Senior Audit Officer. The applicant remained posted at different places. Initially, he was posted at Delhi and thereafter he was posted to Ghaziabad as Section Officer in November,1990 and he remained there for two years. In the year 1992and onwards, he was posted to Kapurthala, Firozpur and again Kapurthala. Thereafter, in December,2006 he was again posted to Delhi. As a normal practice, the applicant could only be transferred after the officers with longer tenure at the station are transferred.
3. The grievance of the applicant is that the impugned transfer has been made with a view to accommodate one Shri Chiranji Lal, Senior Audit Officer in Delhi who is staying in Delhi since long. While the applicant has been moved after two years of stay in Delhi, there are more than 8 similarly placed persons who have been continuing in Delhi for more than 10 years. Besides, there are many officials who have never been transferred in their entire service career, details of which have been given in Para 4.5 of the application. It is the applicants case that the impugned transfer has been made malafidely and arbitrarily by Respondents No.1 and 2 for his indulging in Union activities. In Para 5.1 of the application, the applicant has given particulars of the 12 officials who were having longer stay than that of applicant in Delhi. Accordingly, it has been prayed that the impugned transfer order be quashed and set aside for the same being illegal, malafide, arbitrary and discriminatory and against the guidelines as contained in Government policy on transfer.
4. In their reply, the respondents have stated that the applicant was transferred in Delhi at his own request in the year 2006. The applicant remained in Traffic Audit Office, New Delhi and as such he was transferred to Workshop Audit Office, Amritsar in public interest on purely administrative ground to utilize his past experience in workshop audit. Shri Chiranji Lal, Sr. Audit Officer was already in Audit Office and has been transferred to Traffic Audit Office for utilizing his experience in Traffic Audit. As such the question of accommodating Shri Chiranji Lal, Sr.Audit Officer in Delhi does not arise. There is no restriction on transferring any officer from one branch office to another within the same station. It has been specifically averred that there is no mala fide intention in making transfer of the applicant. It is in public interest. It has further been submitted that as per Government of India policy, as far as possible and within the constraints of administrative feasibility, the husband and wife should be posted at the same station to enable them to lead a normal family life and to ensure the education and welfare of their children. As the applicant has been transferred in public interest purely on administrative ground, there is no violation of the above government policy.
5. The applicant has filed an additional affidavit stating that the applicant does not have much experience of workshop as he had worked in the workshop 18 years back and that too for a short period of about two years while he was holding Group C post and as such the nature of duties and responsibilities are entirely different. As against this, there are numbers of other employees whose particulars have been given in Para 2 of this addl. Affidavit, who have recently worked in workshop and for more numbers of years than the applicant. He has also referred to the details filed by the respondents. These details clearly reveal that there are numbers of employees who have more experience of working in Workshop than that of applicant. The transfer is bad in law as the applicant has been picked up without any rhyme and reason.
6. At the hearing, the learned counsel for the applicant challenged the legality of the impugned transfer order on five grounds; firstly, it is mala fide as has been made out at the instance of Respondents No.1 and 2 for his association in union activities; secondly, that the impugned order is bad in law and discriminatory as it has been made on pick and choose basis ignoring not only the longest stayee but even such officials who have never been transferred out of Delhi in their entire service career, the details of which are given in Para 5.1 of the application; thirdly, the transfer order is against Govt. of Indias transfer policy which provides, inter alia, that the female employees and those who have attained the age of 55 shall not ordinarily be shifted from the stations of their posting except on their own request; fourthly, that it is bad as has been made to pressurize the applicant and to accommodate Shri Chiranji Lal, and lastly this is violative of Article 14 of the Constitution of India as in similar cases of other employees, namely Shri J.R. P. Verma and Satnam Singh the posting orders have been cancelled. 7. These aforesaid grounds are vehemently controverted by the respondents. It is submitted that there is no iota of evidence that the applicant has been transferred to accommodate Shri Chiranji Lal and he ever approached Respondent No.3 for recognition of newly formed Association. It is also submitted that either General Secretary or President of an Association should carry out correspondence with the Administration and not the Vice President. No particular or incident has been pointed out for which one can assume that either Respondent -1 or Respondent -2 had been inimical towards the applicant. As regards the averment of hostile discrimination, It has been submitted by the respondents that some of the officers were not shifted due to their expertise and contributions in respective fields and some are going to retire within a year or two and the allegation of the applicant that some officers are in Delhi for many years is rejected.
8. As regards the policy guidelines are concerned, it is open to the authority concerned to deviate them for exigency of service. The same is with regard to the posting of husband and wife at the same station.
9. In support of his contention, the learned counsel for the applicant referred to certain cases; namely Km.Indira Mathur Vs. Union of India &Ors. (OA-1993/99, decided by this Tribunal on 25.6.2000); Shri Harpal Singh Kashyap Vs. Government of NCT of Delhi and Ors. ( 2005(2) ATJ 125; UOI & Ors. Vs. R.S.Sharma (W.P. (C ) 1361-62/2005, decided by Delhi High Court on 23.5.2005); Alok Johari Vs. UOI & Ors. ( OA-1510/2006 decided on 13.10.2006); Lalit Mohan Pandey Vs. UOI (OA-1243/2007 decided by this Tribunal on 17.7.2007) and Ashok Mittal Vs. Chairman, Central Board of Direct (OA-44/2007, decided by this Tribunal on 31.7.2007).
10. The learned counsel for the respondents strongly urged that the transfer which is an incidence of service and is made on administrative consideration, would not be interfered with by the Tribunal unless it is in violation of statutory provisions and vitiated by malafides or infraction of any professed norm or principle governing the transfer. The guidelines are meant only guidance and do not create justiciable right. In support of this proposition, the learned counsel for the respondents referred the cases of Union of India and others Vs. S.L.Abbas (1993 (4) SCC 357); State of U.P. and others Vs. Gorbardhan Lal 2004 (11) SCC 402); S.C.Saxena Vs. Union of India and Others ( 2006 (9) SCC 583); and Mohd. Masood Ahmad Vs. State of UP and other (2007(8) SCC 150.
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.
(Dharam Paul Sharma) Member (J) /usha/