Central Administrative Tribunal - Mumbai
Vijay Badlu Kuril vs Defence Production on 1 August, 2023
be obs BAT No.2 nears P2024 : Cc entral Administrative ¥ ribunal Mumbai Bench, Mumbai Oe Na. 222/20 23 Reserved on yo" July, 3023 Pronounced on 01° Aug guat, 2033 Hon'ble Mrs. Harvinder Kaur Oberoi, Member (D Shri Vilay Ba addi oe aged aboul-57 years, S/o Shri Badiu Chunilal Kuril, R/at Plat No.B-2/604, Tirupa Rashi Ganja esd Cora. te Saciet EMy "Dhanori, P ony O15, Mob: 9420882733. o Applicant (Mr. Vishal Shirke aly Mr. Aditya Shirke, Advacates) Versns Union of India, Through the Secretary, Ministry of Defence Department of Defence Prod uction, south Bi ock, New D elhi-l PO O11. Dvrectorate of Ordnance (C 'oordination & Services} Defence Office Complex, C-Black,6" * LOGY, BG. Mars, Block, New Delhi-110 0] Shri Ravi Kant, Chairman and Managing Director (C MD) Munitions Indian Limited, | 2™ Floor, Nyati Unitres, Nagar Road, Yerwada, Pune-411 O06, The General Manager, Ammunition Pact fOry., Kh adky. Pone-4}] N03. ae OA No.222 of 2023 grea . 5. The Chairman and Managing Director Armoured Vehicles Nigam Limited (AVNL} Avadi, Chennai (T.N,)-600 054. ... Respondents | (Mr. RR. Shetty, Ad voeate) ORDER
The applicant 38 anprieved of his transfer order dated 22 12.2022, whereby he : has been transferred from the i factory of respondent | Nad, Munitions India Liniied. (MIL) . Pane to Respondent No.5, Armoured Vehicles Nigam Limited (AVNL}, Chennai Applicant had submitted a representation dated 28.12.2022 requesting for cancellation of his transfer from MIL, Pune to AVNL, Chennai, and the competent authority, afier examining the said representations, had concluded that there was no merit and his representation was rejected vide letter dated 26.03.2023, thereby confirming the transfer. Respondent No.4 natified his relieving order on the internal website vide Factory Order Part-I) Na.S$, dated 17.03.2023. The applicant ¢ therefore submits that the competent authority, respondent No.2, has confirmed his transfer order, without properly considering his representation. Thus, he has | challenged the orders dated 22.12.2022, 16.03.2028 and 17.03.2023 in the present OA.
2... Brief facts as narrated by counsel for the applicant are that vide letter dated 08.08.2022 (Annexure A-17) was written by the Avinash Tarhawadkar, Jt. General Manager/HR MIL to the Deputy Director Ge neral, Directorate of Ordnance (C eS) Respondent no.2, New Delhi, tos vs subnut that one Shri S Sanjay W akhaloo, OM, posted uA de er AVNL, Chennai at RCSSR has .
applied for own request transi er posti ing to MIL at Pune and his application was forwarded et CMDy AVNL with remarks SERS gs PER aetduc hed. _ N ede 'Ree umimended with saiiable replacement only". 3 E25 See aw es ee thas dy Arden & Pig eee ae fet £36 SUPGnEr subsilts Hal gnarder 40 consider the case of recommended the applicant as his replacement to AVNL, Chennai. Thus the case of the applicant is that transfer of the appl ant is fo accommiod Jats Shr Sanjay Wakhaloo, and not.in .
any public j mierest nor His a general trans fir Baten 22 Counsel -- rferring to letter dated 02.09.2022 (Annexure A-G), written by AVNL, Chennai to [Mrectorate of Ordnance (C&S), Respondent no.-2, stated that ee was aifered as replacement by MIL, Pune, however applicant was refused. accepla ance. [t has been stated in the letter that, "consideriag the overall performance of ihe apnolicant, Shri. MB Kuri, as referred in the APARs, if is felt that his services om nay A Rot be functionally suitable for A PNE Thus, he submits "that he was not found suilable as a 'feplac ement of the said officer as applicant and the said officer are belonging to different branches' streams of | engineering, one being Mechanical and the othe: + being an Electric engineer.
"3 To the applicant's surprise, on 03.11.2022 (Annexure A-
7}, Just after nyo months from the letter dated G2 09, 2022, AVNL, Chennai, suo mote, recansidered the transfh er request of 'Shri Sanjai We skhaloo. by accepting services of the applicant as replacement of Shri Sanjai Wakhaloo. This decision/volte face AgONstREN, fee *2 ay 3"
te (EHD OA No. B22 af £2023 Bg ten.
Speneek ae x by AVNL, Chennai he as pave way for the impiened transfer of the applicant.
24 At this juncture, counsel for the applicant points out te the noting (Annexure A-15) submitted before the Hon'ble Rak sha Mantel foor mpelcnt authority), for anoroval of the said : ai bars transfer. it is pertinent to point 'out here that the transfer concerned is With respect to transfer from ane corporate entity to another. As affer the coipotatization of tie Ordnance Factory Board, seven corporates have been created and the 41 factories af the erstwhile OP B, have been merged/dis tributed amon est the seven companies. Incidently, MIL, Pune and AVNL, Chennai are part of different corporates. Therefore, approval from the highest authority is a prerequisite for transfer.
2.5. Counsel, while referring to the aforamentioned note sheet submits that in the said noting, it was siated that the proposed transfer is on functional basis. He submits that the note placed before the competent authority did not present the correct facts. The proposed transfer was on own Tequest of Shri Sanjai Wakhaloo and it was to accommodate his request that applicant was being transferred and not on fimetional basis. It is also Stated in the said noting that the transfer is recommended with suitable replacement, whereas initially AVNL had rejected the applicant as a replacement. In the said noting Secretary/DP also raised a query as to "what is the criteria for approving such transfers? Are they fulfilled here? ° Ta which the FespOntents reiterated that the transfer in on functional basis and alsa in public interest.
re me SPORES thenpeernen et OA Na. 222 of 2023 Oo Counsel for the applicant vehemently s submitted that it is not case of transfer in public Interest. In fact if is a case of request transfer. and further as Shri Sanjai Wakhaloo is a BLE, RTS sepa he 3 sree exes e Sy 4 awy 7 Mechanical Engineer and applicant is an Electrical Engineer the . oie a parang cat ms ayy ye ~ tive sh WWO CANNOL Fepiacs Gach other. 7 SOS, QO SUDNTHS inary the q respondents have misrepresented the transfer request of Shri Sanjai Wakhalos in order to accommodate him at MIL, , Pune and took the approval of Hon'ble Raksha Mantri an this misrepresentation. c olsel for the & ape icant submits that dixe fo the transfer order a apolicant has also suffered collateral da una as he Was not considered for upgradation to post of HOD/GM Sialus whereas his juniors have been granted the said status in MUL, Pune. Thos, the present OA challencing impugned transfer and relieving orders, dated 22.12.2022, 16.63.2023 and (703 2023 with praye: er fo quash and set aside the same.
3. At the outset, counsel for the respondents, while referrme to his counter affidavit submits that the F actory order noliying release of the applicant fom APE to AVNL wef 18.63.2023 = (AN) was published on 17.43.2023 only after the d disposal af the ae of the applicant dated 28.12.2022 on 16.03.2023. Purther, the applicant reflsed to accept any documents regarding his release from Joint General Manager Admin, as stated in the Incident Report dated 18.03.2023 submitted oy the Jomt General Manager/Admin.
And there fore, all the scanned documents relat ed ta his transfer were S-mailed to his official e-mail ID at 06:3 PM. on 17.03.2023 (Annexure R-2). 'Therefore, the applicant is deemed to be released from ARK RM mel 18.05.2033. The respondents rely upon the judgme sn of the Hon' ble 'Supreme Court in the:
: pounaes Ne cerns Coo ey O84 No, 22 of 9023 case of S.C, Saxena vs, UOT & Ors, (2006) 9 SCC 583 and judgment aft the Hon' ble Bombay High court in the case af The
- Stat of Maharashtra ¥S. Vinay Mohan Lal & Ors. in WP "Lodeine No.1636 of 2005 dated Ji ly 04, 2008 to submit that £5 transfer is an incidence of service and applicant beimgs an offic with All India transfer liability should have reported at the __ trans ferred place and only then approacn ned the Tribunal for redressal of his erievance, 3.1. Further, counsel for the respondents submits that. the contention of the applicant in the OA that after corporatization of the OFB, the officers are deemed to be deputationist and cannot be thus subjected to transfers is not correct. He submits that the transfer order dated 22.12.2022 is governed as per para 'A' () of Annexure-l of DDPAMOD OM (S}o 202 L/OF/DP (Ple-VyOs/O1 dated 30.11.2021 and is approved by the competent authority, tc Hon ble Raksha Mantri.
my ?
3.2. Tn rebutial to the contention of the applicant in the OA that, 'Shri Sanjai Ww akhaloo, was holding the post of GM, whereas the applicant was holding the past of Addl General Manager in MIL, Pune, as such, the applicant could not have been considered as replacement for Shri Sanjai Wakhaloo, in fact, the applicant was due for placement as General Manager in MYL Pune, the post having higher sponsibilities and duties, and the transfer order has denied him the said privilege, respandents submit that this contention of the applicant is.
incorrect. The actual position is that both Shri Sanjai Wakhaloo and the applicant were holding the past of Senior (SAG) grade at the time of transfer and thus the applicant has misled the
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< SSA << SR eeeerererrrerereatenennns Tribunal to get tndue favour by misrepresenting the facts. The respondents in n thelr counter atimiavit have aiso admitted that Shr Sanfai Wak chaloo is a BUR. Mechanical Engineer whereas the applicant is an Electrical Emeineer and hence these tvo AXONS sized cha CNY NES "Twas eye bee Poy es the ere KEN TR $ ee oe CAMO SEDSGCO CEC OLY. § ney SROME EMAL Ge TESpormgeny Nod has intimated the requi irement of officers and accordingly the, transter of the applic fant Was cons sidered Lan the fine ional grounds and is in accordance with the SOP for transfers , Rerice there is no merit in the OA and the same deserves to be
4. f bave heard the arguments of both the parties and sane through the materials placed on record,
5. It is an admitted fact that Shri Saniai Wakhaloo did make a request for transier to MIL, Pune. It is also nat denied that his request was considered by his parent company, Le. respondent No.5, only on the ground that he be suitably replaced. Tt is also not denied that the applicant's se ices were offered by MIL, Pune as a replacement to Shri Saniai W. akhaloo. Mey is alse nat denied that se Chennai had refs sed to accept the services. of the applicant as he was not found suitable for the same. What. is disputed is that In spite of applicant's not being found | Suitable, he was transferred. as a replacement ta Shri Sanjai Wakhaloo to sccornmodate him. The respondents have submitted that if was purely a Ainctional tr anster dn public imferest, and the prSiore Mie transier order is correct,
6. The applicant has vehemently submitted that in the note _ which was sent for approval of the competent authority, Le.
Hon'ble Raksha Mantri. all these fhots were not present rather 8 & No. 222 of 3023 nea, the picture drawn before the competent authority was if béing a "e ~~ _ matter of transfer in public interest. Besides the said note, the ore.
is ne other docament available on record to show how the transfer of the applicant from MIL, Pune to AVNL, Chennai could be considered to be a transfer in public interest and on 2 functional basis, when the two officers belong to different Streams.
~ Counsel for the applicant relies upon para 85 of the a4 judgment of the Apex Court in the. case of E Py: Royappa vs. State of Tamil Nadu & Anr., (1974) 4 SCC 3 . ta say that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by amy extraneaus or irtelevant considerations heeause that would be denial of equality, the said para reads as under:
"83. The last two grounds of challenge may be taken up together for consideration. Though y we have formulated the third ground of challenge a distinct and separate ground, it is rally in substance and effect merely an aspect of the second ground based on vialation of Articles 14 - and "16. Article 16 embodies the fimdamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great -- importance as a principle ensuring equality of opportunity in public employment which is so vital to the buildine up of the new. classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined dn Article I4. tn other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the, doctrine of equality in all OA Ne 223 af 2033.
matters relating fo public employment. The basic principle which, therefore, informs both Articles ig-and 16 is equality and inhibition agains at discrimination. Naw, what is the content and reach of this great equalising oes i i828 founding faith, to use the sends af Bose J., "a way of fife", and must not be sublected fo a narrow pedantic or feicoeerhic appraach, We cannot countenance any aiienipt fo truncate its alk embracing scope and meaning, for to do so. would be to violate Hs activist magnitude. Equality is a_ dynamic concept with many aspects and. dumensions and ff cannot be "Sribbed eabined and confined" within traditional and doctrinaire limits. From a posilivistic point of view, equality is antithetic fo arbitrariness. In fact, equality and arbifrariness are sworn enemies; one belongs io the rule of law in a republic while the other, to the whim and caprice of an absolute monarch, Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to. public employment, # is. also violative Article 16, , Avucles 14 and 16 strike at arbitrariness in Stale action and ensure faimess and equa ae of treat ment. They t Squire Ra not a suided: by any extraneous ar leas considerations because that would be denial of | ssid. Where the operative reason for State action, as distinguished fam motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of p pele considerations, if would amount to me fla Je exercise of power and that is hit by Adis 4 "and 16. Mala fide exercise of Power and arbitrariness are different dethal radiations emanating frorn the same vies :
in fact the matter comprchends the former. Both are inhibited by Articles 14 and 16".
O&A No 222 of 2033 coe He alsa relies upon para 9 of Babita Thakur v. State of TP. en NS, : : :
>: .
2011 SCC OnLine HP 2289, which reads as under to say that : > oP power fo transfer cannot be exercised to accommodate any one person:
OO. itis true that it is for the employer to see where the Government servant is to be However, it is equally true that there arbitrariness in the action. The transfer cannot be - used 48 an instrument to accommodate/adjust the persons without there being any administrative exigency... The underline principle for transfer is. public interest or administrative oxig instant case, neither there was any public interest nor any administrative exigency necessitating the transfer of the petitioner ftom Government Primary School, Chadyara (Sadar} to Government Primary School, Khanyari (Chachoit- 1)".
Lasily, he relies upon para 33 of Dr. A. Jayachitra vs. Principal Seeretary/Member Secretary, Sport Development Authority of Tamil Nadu, 2020 SCC OnLine Mad 5635, which is reproduced herein below wherein the Hon'ble High Court held that merely saying administrative reasons is not "enough, there should be solid ground io espouse administrative reasons for transfer.
"33. In the absence of any administrative -
requirement or exigencies, any transfer order issued in such situation and terming the same as being issued on the ruse of administrative requirement, may have to ultimately pass the test of judicial review. Merely because the transfer order is couched in such hackneyed, oft repeated and routine administrative terminology, unless the reasan. sétforth in the transfer order when questioned, is established factually to -- the satisfaction of this Court, a ritualistic and clichéd r expression "administrative reasons" in the transfer DA No2t2 af 2023 order, cannot be taken at ifs face value and the relief refused ta ' allected individuals. In this case, though the p failed in other fronts of attack, ultimately, this Court Hes s that the transfer of the pe -titioner is not based ¢ pee reqilirement, but, fot an extran eason and. therstore, the transfer order is liable fo be set aside only on that ground, As stated above, this Court perused the relevant files and did not discover a modicum of material supporting the. respondent's plea of adminisirative requirement for transferring the petitioner io Tinivannamalal.
:o Ht is well within the 5 bee) et, ig ah power of the Court to pierce the vel of the fle leaf behind | the : {Pansier order and to hold that the ee ee action of ie respondent authority stems exorcise of power on his part ds hence, 8 able to be interfered solely on the well established legal premise namely the transfer is hii by malice in fae?
& fn rebuttal, counsel for the r régpandents has relied oon paras 21 to 24 of Registrar General, High Court of fudieature of Madras vs. Perach? & Ors., (2092) 12 Scc E37, which is repradueed as under:
"ol. We bave vonsiderec 1 the submissions of both the counsel, AS ft far as the action at banster against the first respondent is cancemed, the same was on the basis af the report of the Revistrar (V 'igilance). Besides, the District Judge had also opined that retention of the appellant in his district "was undesirable from the paint of view of ee ae tt involved inter district af de High Ce Gut fo iransier him outside the district, nor did the DNvision Bench interfere therein on that ground. This is apart fram the fact that transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative & grounds, and without attach: = any stigma which wag $0 do ane in the present ca "42
23. In the context of transfer of a government servant we may refer to the dicta of this Court in N.K. Singh v. Union of India where this Court observed in AIR para 22 as follows: (SCC p. 108, para 23} "23. ... Transfer of a ene uf servant in a transferable service is a necessary incident of the service vareer, Assessment. af the quality of menis to be mad by the superiors --"
taking into account several factars - including suitability of the person for a partict alae 'post. .and exigencies. of.
4 a administration. Several imponderables reauiring formation of a subjective opinion up that sphere may be involved, at times. The only realistic approach js to leave it to the wisdom of the hierarchical superiors to make the decision. Unless th decision is Viliated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be serutinized judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for:
xersonnel omanagement oof all government departments. This must be lef, mm public interest, to the departmental heads subject to the limited judicial scrutiny indicated."
23. In Slaw of MP vy SS Kouray the Administrative Tribunal had interfered with the transfer order of the respondent and directed him to be posted at a particular place. {t is relevant to note that while setting aside the order of the Tribunal this Court observed in para 4 of its judgment as follows: (SCC p, 272) "4.... The courts or tribunals are not appellate forums to decide on transfers of officers on administrative srounds.
ee Sn hs Os No. 22 of 2028 -
The wheels of administration should be allowed io run smoothly and the cours or tribunals are aot expected ta interdict. the working of the admin istrati ive system by transferring oper places. ik is for ion ts take ¢ appropri ate clea they evils sicher by mala fides or by extrancaus consideration . .
without any factual backerotnd ar foundation, In this case we have seen that on the administrative erounds the transi=r orders came fo he issued: ~ Therefore, we cannot go into the | expediency af posting an officer at particular place."
We may mention that this Court has reiterated the legal position recently in dinports Authority of fadia v. Rajeev Ratan Pe eudey that:
p. 339, para 1G) (Scr Go. Bara Judicature under:
Sk.
judicial review is "TO. ... In a matter of transfer of a goverment em mpleys ze, [the] se ope oF limited and the Hick Cour world not interfere with an arder af transfer Hehtly, be it at interim stage or final hearing. This is so because the courts do not substituie their own decisian in the matter af STE a 31° of Registyar General, Hich Court of of Madras ve. Perachi & Ors, (upra} reads as AS seen above, the transfer was purely on the administrative ground j in View of the pending complaint and departmental enquiry against the first respondent, When a COMpIAiNE against the infearity of an employee is being imvestigated, SEES Ge often he is. transferred outside the unit re Aeon aa OA N Q.228 af 2023 © concerned. That is desirable from the point of view of the administration as well as that of. the employee. The complaint with respect to the Airst tespondent was that he was dominating the administration of the District Judiciary, and the District fudge had reported that his retention in the district was undesirable, and also that departmental enquitie ies were pending against him and other employees, with respect to their imegrity. In the circumstances the decision of the then Chief Jusifee to transfer him outside that at district could not be faulied™:
10. The question in the present case is also the same as in the aforementioned cases, Le. whether the impugned transfer order is in public interest for administrative reasons or for collateral purpose, mala fide or any other reason. Courts have repeatedly held that Tribunal should not interfere in transfer orders routinely as the same would result in disturbance/impediment In running of the administration. In the present case applicant on the basis of the documents annexed with the OA has heen able to show that his case for transfer was considered after application for request transfer was submitted by Shri Sanjai.
Wakhloo. This fact and the other related facts which are part of record by way of letters written by all the interested parties were not placed before the competent authority, To my mind this has resulted in injustice to the applicant. Therefore, in the facts of the present case and considering the law laid down by the Apex Court and the High Courts as quoted os it becomes necessary to lif the veil and ga behind the reas ns for this transfer which j isnotag general transfer issued in any routine manner, During arguments, if Was pointed that even Shri Sanjai Wankloo has not been posted in MIL, Pune, rather he has been At S023 OA No2S2 af : ya relained In AVNL's affice at Pune, instead af Chennai. This. the transfer af the applicant was initiated for the reason of the request from Sanjat Wan khloo. if he has been adjusted | im the same company at their Pune office on oo Sarg ee me rs x es X. on rm "
Den GASSE AVES ERS Tree i QE OLTEE apniicant Rf TON lorthcoming. In the circumstances the Impugned transfer orders dated #212,2022 and 16. 3. 2023 and relieving order dated 17.032! O23 a e quashed : an ad set aside. Respond ents are directed io pl ace the entire facts before the compe etent RatDOrIY, if the need fo > po stthe a applice mt in AVNE, Chemai still exists, li. Registry is directed to serve cone exira copy upon respondent nol, ie. Secretary, Ministry of Defence Department of Defences Production, South Block, New Delhi- (iQ OLT by way of Read. Ad to enable respondent no.] to place the same before the Competent authority.
wt Vids - With the alpresaid observations and directions, the OA stands allowed. Pending applic cations, If any, stand closed. No i My os : COSTE.
(HarvinidéF Kaur Oberoi) Member (3)