Delhi High Court
R.N. Tiwari vs Videsh Sanchar Nigam Ltd. on 19 December, 2006
Equivalent citations: 136(2007)DLT232
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT J.M. Malik, J.
1. The petitioner joined the erstwhile Overseas Communication Services, Govt. of India in October, 1971. He became manager (Hindi) in the year 1993. The petitioner submitted a representation to the respondent requesting that he is due to retire on superannuation on 31.7.2009. He was left with two and a half years of service. As per the policy, "an employee, as far as possible, may be posted at a station of his choice during last three years of his service". He also prayed that he should not be transferred till his retirement. However, on 3.11.2006, the petitioner was transferred to Coimbatore. This was his fourth transfer. Under these circumstances, the present writ was filed with the prayer that transfer order dated 3.11.2006 be quashed.
2. The respondent has contested the present writ petition on the point of its admission. I have heard counsel for the parties. Learned Counsel for the petitioner has drawn my attention towards the transfer policy, clause 7 (k), which is reproduced as follows:
An employee will not be disturbed with a transfer during the last 3 years of his service and to the extent possible shall be posted at station of his choice.
It was pointed out that the said policy has not yet been withdrawn or deleted.
3. He also pointed out that petitioner is a Manager (Hindi), there is no work for Manager (Hindi) in Delhi and there is every possibility that there is no work for Manager (Hindi) in Coimbatore where the petitioner stands transferred.
4. Lastly, the petitioner has been directed to report before Mr. Rajesh Rajan who is his junior. However, this ground finds no place in the petition.
5. For the following reason, I see no merit in his argument. This question was considered by this Court in a case reported in R.S. Yadav v. V.S.N.L. and Anr. 105 (2003) Delhi Law Times 95.
4. I have considered the rival submissions of the Counsel appearing for the parties. There cannot be any denial of the fact that the petitioner has a transfer liability. The grievance of the petitioner is that when the aforesaid order of transfer was issued he had less than three years of service left before superannuation and, therefore, even according to the own policy of the respondent he should not have been transferred out.
5. The Supreme Court in the case of Union of India and Ors. v. H.N. Kirtania (1989) 3 SCC 445 had occasion to consider a similar point and the Supreme Court in that regard observed as under:
After hearing the Counsel appearing for the parties we do not find any valid justification for the High Court for entertaining a writ petition against the order of transfer made against an employee of the Central Government holding transferable post. Further there was no valid justification for issuing injunction order against the Central Government. The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country; he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer.
6. It is a settled position of law that a transfer order, which is passed by the respondent in the administrative exigencies of service should be interfered with by the Court only when it is found by the Court that the same is issued in violation of the statutory rules or the order is passed mala fide. No mala fide is alleged in the present writ petition. Therefore, the only aspect to be scrutinised here is whether or not the impugned order was passed in violation of statutory rules. In this connection, reference may be made to the decision of the Supreme Court in Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. (1991) 2 Supp. 659. In the said decision, the Supreme Court observed as follows:
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 and 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 overlooked these aspects in interfering with the transfer orders.
In Union of India and Ors. v. S.L. Abbas (1993) 4 Supreme Court Cases 357. It was held:
6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later.
It was further held:
All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
6. In case of State of M.P. and Ors. v. S.S. Kourav and Ors. 1995 (3) S.C.C 270 it was held:
The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous considerations without any factual background foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the court.
7. The above said views are emboldened by the following authorities as well:- Zee Telefilms Ltd. and Anr. v. Union of India and Ors. (2005) 4 Supreme Court Cases 649, Laxmi Narain Mehar v. Union of India and Ors. 1997(2) SLR 383, State of UP and Ors. v. Gobardhan Lal (2004) 11 SCC 402.
8. Secondly, in the instant case, as many as 226 persons were transferred, petitioner is not the single person. Learned Counsel for the petitioner argued that others are newly appointed engineers and only one manager has been transferred.
9. I see no force in this ground. In R.S. Yadav v. V.S. N.L. and Anr. (Supra) it was observed:
8.The transfer order, which is passed in the present petition, does not only relate to the transfer of the petitioner but also involves several other persons and it is in the nature of a general order of chain transfer. Therefore, no mala fide is rightly alleged by the petitioner. The order also apparently was passed in the administrative exigencies of service. There is no statutory violation committed by the respondent in issuing the aforesaid order of transfer. It is true that guidelines provide that a person should be allowed to be retained at one place within the last three years of his service. But the same is in the nature of a guideline which has to be kept in mind by the administration. It is for the administration to decide applicability of the aforesaid guidelines in the exigencies of administration. When the respondent has decided that for the administrative exigencies of service, service of the petitioner could be best used and utilised by transferring him to Kanpur, in such matter the Court should not and cannot interfere as there is neither any mala fide nor any violation of the statutory rules in the present case. Therefore, the order of transfer issued by the respondent cannot be interfered with.
10. Moreover, the case of the petitioner itself goes to show that due to official exigencies, he was transferred from Delhi. Petitioner has mentioned grounds in para 8 of his petition, its Clause (vii) is reproduced as follows:
Because the petitioner is Manager (Hindi). There is no work for the employees like the petitioner as the respondent has closed its Hindi Establishment. The impugned order merely to harass him and not to utilise his services.
14. It therefore clearly means that the petitioner has no work in Delhi. For the reasons detailed above, I find no force in this writ petition, the same is therefore dismissed in liming, stay order granted earlier is hereby vacated.