Delhi High Court
Meena Matai vs Union Of India & Ors. on 19 April, 2021
Equivalent citations: AIRONLINE 2021 DEL 522
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th April, 2021
+ W.P.(C) No.4788/2021
MEENA MATAI .... Petitioner
Through: Mr. Kishore M. Gajaria, Mr. Aayush
Paranjpe and Mr. Sarthak Gupta,
Advs.
Versus
UNION OF INDIA & ORS. ....Respondents
Through: Mr. Pratyush Miglani and Mr. Taqvi
Hussain, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE NAJMI WAZIRI
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
CM No.14785/2021 (for exemption)
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
W.P.(C) No.4788/2021 & CM No.14784/2021 (for stay)
3. This petition, under Article 226 of the Constitution of India, impugns
the order dated 31st March, 2021 of Central Administrative Tribunal (CAT),
Principal Bench, New Delhi, of dismissal of O.A. No.726/2021 preferred by
the petitioner, an Assistant in the Architectural Department at Public Works
Department (PWD), New Delhi, with respect to her transfer to Chandigarh.
4. We have perused the records and heard the counsel for the petitioner.
W.P.(C) No.4788/2021 Page 1 of 9
5. It is the case of the petitioner, that (i) the petitioner, now aged 56
years, joined the Architectural Department of Ministry of Housing and
Urban Affairs, on 10th December, 1986, on the post of Assistant; (ii) the
petitioner, since 1986 i.e. for nearly 36 years, has been posted at Delhi; (iii)
the petitioner was diagnosed as suffering from "hole in macula of eye and
retinal detachment" and underwent two surgeries therefor in the year 2014;
(iv) on 23rd June, 2016, transfers of officials, staff, employees in PWD were
effected but the Transfer and Posting Committee and Hard Case Committee
of the respondents, being satisfied that the petitioner, on medical grounds,
was required to be at Delhi, did not effect the transfer of the petitioner; (v) in
the year 2018, the petitioner was promoted from the post of Assistant, to the
post of Technical Officer and was required to join duties at Raipur; (vi) the
petitioner, for the sake of remaining at Delhi owing to her medical condition,
refused the said promotion and vide the Office Memorandum dated 12 th
February, 2019, was allowed to continue at Delhi, as an Assistant; (vii) on 5th
March, 2020, though again transfers were effected but the name of the
petitioner was not included therein; however the said transfer order was kept
in abeyance owing to the prevailing pandemic and which resulted in another
transfer order dated 28th April, 2020 being issued and which surprisingly
included the name of the petitioner, transferring the petitioner from New
Delhi to Chandigarh; (viii) the petitioner immediately made a representation
dated 30th April, 2020, pleading that she was required to undergo regular
checkups and treatment and that the nature of her disease was such that an
emergency could arise at any point of time, requiring her to avail of medical
treatment at Delhi and it was thus not possible for her to move out of Delhi;
(ix) however the respondents, vide order dated 23rd September, 2020,
W.P.(C) No.4788/2021 Page 2 of 9
rejected the representation of the petitioner; (x) the petitioner made yet
another representation dated 28th September, 2020, also pleading that owing
to the prevalent pandemic, it was not possible for her to move from Delhi to
Chandigarh; (xi) however vide order dated 1st February, 2021, the petitioner
was directed to join at Chandigarh; (xii) the petitioner preferred O.A.
No.376/2021 before CAT, impugning her transfer; (xiii) vide order dated
19th February, 2021, CAT, Principal Bench, New Delhi directed the
respondents to consider the representation dated 28th September, 2020 of the
petitioner and to dispose of the same by passing a reasoned and speaking
order and to not give effect to the transfer order of the petitioner till such
order; (xiv) the respondents, vide order dated 15th March, 2021, again
declined the request of the petitioner to not transfer her from Delhi to
Chandigarh; however in the said order no reasons were given as to why the
request of the petitioner on medical ground was not being acceded to; the
order dated 15th March, 2021 was thus arbitrary and vague; the respondents
did not even consider that the petitioner had forgone her promotion from the
post of Assistant to the post of Technical Officer, for the sake of continuing
at Delhi and in earlier orders of transfers, had not been posted out from Delhi
and that there was no change in the said reasons; (xv) the petitioner, so
aggrieved, again approached CAT by means of O.A. No.726/2021 (from
which this petition arises), impugning her transfer from Delhi to Chandigarh;
and, (xvi) the said O.A. No.726/2021 was listed before the Principal Bench,
New Delhi of CAT, on 31st March, 2021, when after hearing the arguments
of the counsel for the petitioner, CAT rejected the prayer of the petitioner for
interim relief, passing a detailed order, which has the effect of rendering the
W.P.(C) No.4788/2021 Page 3 of 9
entire O.A. infructuous, though also giving time to the respondents to file the
counter affidavit.
6. Impugning the aforesaid order dated 31st March, 2021 of CAT, copy
of which, till date, is stated to be not available (and which is not found on the
website of CAT by us also till the time of correcting and releasing this
order), this petition has been preferred.
7. In view of the aforesaid scenario, we have at the outset only enquired
from the counsel for the petitioner, whether not Chandigarh has equally good
if not better medical facilities available, as/then Delhi.
8. The counsel for the petitioner, replying fairly, has not disputed the
aforesaid fact but has contended that the petitioner, till now has been treated
at Delhi and her follow up treatment is also at Delhi. It is emphasized that
the petitioner is required to go for regular medical check-ups and which
would not be possible to do from Chandigarh.
9. We have enquired from the counsel for the petitioner, whether it is the
stand of the petitioner that the petitioner, since 1986, has never stepped out
of Delhi.
10. The counsel for the petitioner, after obtaining instructions, has again,
fairly stated that it is not so.
11. We have next enquired from the counsel for the petitioner, whether
not owing to the number of posts available at Delhi being limited, allowing
the petitioner to remain posted at Delhi would be to the prejudice of another,
who though desirous of and being entitled to be posted at Delhi, will be
denied the said posting owing to the petitioner occupying the said post.
W.P.(C) No.4788/2021 Page 4 of 9
12. The counsel for the petitioner has not controverted the aforesaid also.
13. We have next enquired about the family of the petitioner.
14. It is informed that the husband of the petitioner carries on business at
Delhi and the children of the petitioner are grown up, with one working in
Delhi and the other shifting abroad.
15. The possibility of the petitioner wanting to continue at Delhi, to be
with her husband and children at Delhi who, owing to their business /
personal commitments are unable to move out of Delhi, and of the petitioner
using the medical ground only as an excuse, cannot be ruled out.
16. Supreme Court, in a catena of decisions has held that a Government
Servant has no vested right to remain posted at a place of his choice nor can
he insist that he must be posted at one place or the other; he is liable to be
transferred in the administrative exigencies, from one place to the other.
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 contrary. No Government can
function if the Government Servant insists that once appointed or posted in a
particular place or position, he should continue in such place or position as
long as he desires. The Courts are always reluctant to interfere with the
transfer of an employee unless such transfer is vitiated by violation of some
statutory provisions or suffers from mala fides. Reference in this regard may
be made to the decisions in Shilpi Bose (Mrs) Vs. State of Bihar AIR 1991
SC 532, Rajendra Roy Vs. Union of India (1993) 1 SCC 148, Union of
India Vs. S.L. Abbas (1993) 4 SCC 357, State of U.P. Vs. Gobardhan Lal
W.P.(C) No.4788/2021 Page 5 of 9
(2004) 11 SCC 402 and Rajendra Singh Vs. State of U.P. (2009) 15 SCC
178.
17. When it is not in dispute that the job / service of the petitioner is
transferable and when the petitioner has been accommodated by the
respondents at Delhi, where her husband is carrying on business, for the last
as many as 36 years, even if a sympathetic view were to be taken, the same
does not permit us to do injustice to others not before this Court and who
would axiomatically be prejudiced / will suffer from sympathy if any shown
to the petitioner; they would be deprived of their desired posting at Delhi, for
the reason of the petitioner, under orders of this Court continuing at the post
at Delhi. This Court, as a Court of equity and justice, cannot while
appearing to be sympathetic, be seen as shutting its eyes to others not before
it and is required to take a holistic view and which view does not allow us to
interfere with the order of CAT declining any interim relief to the petitioner.
18. We have also perused the medical records of the petitioner placed
before us and therefrom also are unable to find that the petitioner is required
to visit the medical facilities being consulted by her at New Delhi with any
regularity. The said documents are of 19th July, 2014, 21st July, 2014, 1st
December, 2014, 29th August, 2018, 12th September, 2019 and 29th February,
2020 and which show the visits of the petitioner to be far apart and not
requiring any daily or weekly check-ups.
19. As far as the argument, of the petitioner having foregone her
promotion in the past, to remain at Delhi, is concerned, the same cannot also
entitle the petitioner to any relief as none can be permitted to buy a post at
Delhi, to the prejudice and cost of others.
W.P.(C) No.4788/2021 Page 6 of 9
20. 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 administration, which would not be conducive to public
interest. Reference in respect of the aforesaid reasoning may be made to the
decision dated 15th July, 2020 in W.P.(C) 3625/2020 titled Rachpal Singh
Vs. Union of India (Special Leave Petition whereagainst has been dismissed
vide order of the Supreme Court dated 14th August, 2020), the decisions in
Kiran Pooja Vs. Union of India MANU/DE/1715/2020, Aadesh Kumar Vs.
Union of India MANU/DE/1872/2020, Baikuntha Nath Das Vs. Central
Reserve Police Force MANU/DE/1708/2020, SI/(M) Praveen Kumar Vs.
Union of India 2020 SCC OnLine Del 1047, and the decision dated 11 th
August, 2020 in W.P.(C) 5182/2020 titled CT/GD Rajender Singh Vs.
Union of India.
21. We may also notice that the earlier O.A. being O.A. No.376/2021
preferred by the petitioner impugning her transfer, was disposed of directing
the respondents to decide the representation of the petitioner, not for the
reason of CAT at that time having found any merit in the challenge made by
the petitioner to her transfer but for the reason of the counsel for the
petitioner having suggested so and which suggestion was accepted by CAT.
22. We also find the order dated 15th March, 2021 of the respondents,
pursuant to the direction of CAT, to have reasoned, that (i) OM dated 25th
March, 2019 qua restructuring of Central Public Works Department (CPWD)
had resulted in closing of some offices, opening of new ones and issuance of
sanctions of staff of those offices after restructuring; (ii) as a result, the staff
had to be mapped / transferred in new offices and as per re-organized set up,
W.P.(C) No.4788/2021 Page 7 of 9
posting of staff to that offices was done; (iii) due to restructuring, at some
stations the staff became surplus and had to be posted out where ever
necessary, against creation of vacancies as per restructuring of CPWD; (iv)
accordingly, transfer and postings were done and policy was adopted for
transfer of senior most staff at that station; (v) the petitioner was transferred
from Delhi to Chandigarh, being the senior most at Delhi station and to meet
the administrative requirements as per restructuring; (vi) the petitioner had
been working at Delhi since 10th December, 1986; and, (vii) the
representation of the petitioner against her transfer, on medical grounds, was
duly considered by the Competent Authority and was not found to be
covered by Ministry of Housing and Urban Affairs Guidelines dated 11 th
May, 2020.
23. No error whatsoever in the aforesaid reasoning has been pointed out
during the hearing.
24. The counsel for the petitioner has lastly contended that the petitioner
has only three to four years of service left and Delhi is also the hometown of
the petitioner and the petitioner should not be disturbed therefrom.
25. Once it is found that the petitioner has never been transferred out of
Delhi and owing to medical grounds expressed by her has been
accommodated in the past and further once no merit is found in the medical
ground urged by the petitioner, we are not persuaded by the aforesaid
argument either.
W.P.(C) No.4788/2021 Page 8 of 9
26. No case for interference with the impugned order of CAT declining
interim relief, is made out.
Dismissed.
RAJIV SAHAI ENDLAW, J.
NAJMI WAZIRI, J. APRIL 19, 2021 „gsr‟..
W.P.(C) No.4788/2021 Page 9 of 9