Madhya Pradesh High Court
Sunil Kumar vs Union Of India on 16 December, 2022
Author: Sheel Nagu
Bench: Sheel Nagu, Virender Singh
1 MP-5559-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
MISC. PETITION No. 5559 of 2022
BETWEEN:-
SUNIL KUMAR S/O SHRI SAHABDEEN, AGED
ABOUT 58 YEARS, OCCUPATION: DEPUTY
CHIEF LABOUR COMMISSIONER (C)
JABALPUR, R/O BLOCK NO. 10, 2ND FLOOR,
CIVIC CENTER, JABALPUR (M.P.) (UNDER
ORDERS OF TRANSFER TO DELHI)
.....PETITIONER
(BY SHRI MANOJ KUMAR SHARMA - SENIOR ADVOCATE WITH
SHRI QUAZI FAKHRUDDIN AND SHRI DEEPAK SAHU -
ADVOCATES)
AND
1. UNION OF INDIA THROUGH SECRETARY
MINISTRY OF LABOUR AND EMPLOYMENT,
SHRAM SHAKTI BHAWAN, RAFI MARG, NEW
DELHI -110001
2. SHRI ABHIJEET KUMAR, DEPUTY CHIEF
LABOUR COMMISSIONER (C) NEW DELHI,
OFFICE OF DEPUTY CHIEF LABOUR
COMMISSIONER (C), 4TH FLOOR, JEEVAN DEEP
BUILDING, PARLIAMENT STREET, NEW DELHI
- 110001 (UNDER ORDERS OF TRANSFER TO
JABALPUR)
.....RESPONDENTS
2 MP-5559-2022
(RESPONDENT NO.1 BY SHRI PUSHPENDRA YADAV - ASSISTANT
SOLICITOR GENERAL AND CAVEATOR/RESPONDENT NO.2 BY SHRI
SANJAY K. AGRAWAL - ADVOCATE )
-----------------------------------------------------------------------------------------
Reserved on : 02.12.2022
Pronounced on : 16.12.2022
----------------------------------------------------------------------------------------
This petition having been heard and reserved for orders, coming on
for pronouncement this day, Hon'ble Shri Justice Sheel Nagu pronounced
the following:
ORDER
The supervisory jurisdiction of this Court is invoked under Article 227 of the Constitution of India to assail the legality and validity of the final order dated 11.11.2022 passed in O.A. No.200/647/2022 by the Single Bench of Central Administrative Tribunal at Jabalpur.
1.1 The challenge before the Tribunal was to an order of transfer dated 11.07.2022 transferring the petitioner (Deputy Chief Labour Commissioner (Central), Jabalpur) from Jabalpur to New Delhi.
2. Shri Manoj Kumar Sharma, learned senior counsel with Shri Quazi Fakhruddin and Shri Deepak Sahu, learned counsel for petitioner and Shri Pushpendra Yadav, learned Assistant Solicitor General for respondent No.1/Union of India and Shri Sanjay K. Agrawal, learned counsel for private respondent No.2 are heard on the question of admission so also final disposal.
3 MP-5559-2022
3. Learned senior counsel for petitioner questioned the legality and validity of order of transfer before the Tribunal on the following grounds:
(i) The transfer policy vide Office Memorandum dated 05.05.2022 vide Annexure A/2 stands violated since petitioner has been transferred when less than three years is left for his superannuation on 30.04.2024.
(ii) The transfer policy is further said to be violated since the official respondent while transferring the petitioner has ignored the precarious health condition of the petitioner which would deteriorate if petitioner is compelled to be posted in a polluted city like New Delhi.
(iii) The counsel for petitioner without assailing the transfer policy has also questioned its legality and validity on the ground that the same is dehors the guiding principles laid down by the Department of Personnel and Training, Government of India in respect of transfer of civil post holders in various departments under the Government of India. In this regard, it is submitted that the cut off date mentioned by the DoPT is 1 st July, 2022 whereas the transfer police Annexure A/1 prescribes the cut off date as 31/03/2022.
(iv) The transfer order is a result of a mala fide action as it tends to accommodate the private respondent in place of petitioner at Jabalpur.
4. Shri Pushpendra Yadav, learned counsel for respondent No.1/Union of India on the other hand defending the order of the Tribunal submits that the Tribunal has relied upon decisions of the Apex Court rendered in the case of State of U.P. and others Vs. Gobardhan Lal, (2004) 11 SCC 402 and State of M.P. and another Vs. S.S. Kourav and others, (1995) 3 SCC 270, and has rightly held that the transfer policy is nothing but guidelines meant for smooth and effective administration. Learned counsel for respondent 4 MP-5559-2022 No.1/Union of India submits that violation of transfer guidelines do not have statutory force and thus its violation does not give rise to a justiciable cause to the transferred employee/officer.
4.1 Shri Sanjay K. Agrawal, learned counsel on behalf of private respondent submits that the private respondent has since joined and the petitioner has been relieved. It is submitted that the private respondent is discharging the duties of Deputy Chief Labour Commissioner (Central) at Jabalpur ever since his joining. Shri Agrawal has also adopted the arguments of Union of India to oppose this petition.
5. After having heard learned counsel for rival parties, this Court is of the considered opinion that no ground for interference in the order of the Tribunal is made out for reasons infra :
(i) The Apex Court time and again has laid down that the policy of transfer has no statutory force and is meant to only for guiding the Executive in the decision making process for transfer of employees/officers working on transferable posts. These are mere guiding principles for smooth functioning of the administration so that the act of transfer leads to minimum heart burning for the transferred employees/officers. Thus, the violation of transfer policy does not give a justiciable right to the employee/officer to challenge in the court of law. As such this Court need not go into the merits of the challenge laid by the petitioner to the order of transfer since all the grounds are essentially founded upon the ground of violation of transfer policy.
(ii) The Apex Court as well as this Court time and again have held that an order of transfer passed in violation of any clause of transfer policy does not give rise to justifiable cause to the transferred employee. The relevant extract 5 MP-5559-2022 of judgments of Apex Court in Bank of India vs. Jagjit Singh Mehta, (1992) 1 SCC 306, Union of India vs. S.L. Abbas, (1993) 4 SCC 357 and State of M.P. vs. S.S. Kourav & Others, (1995) 3 SCC 270 and this Court in R.S. Chaudhary Vs. State Of M.P. & Others ILR [2007] M.P.1329 in this regard are reproduced below for ready reference and convenience:-
In Jagjit Singh Mehta (supra) "5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different.
The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to 6 MP-5559-2022 the officers' grade and thereafter he seeks to be relieved of that necessary incident of all-India service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
In S.L. Abbas (supra) "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. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. 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."
In S.S. Kourav (supra) "4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no justification to retransfer him 7 MP-5559-2022 again to Jagdalpur. We cannot appreciate these grounds. The courts or tribunals are not appellate forums to decide on transfers 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 fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place."
In R.S. Chaudhary (supra) "35. Fulcrum of the matter is whether the decision in T.N.Bhardwaj (supra) govern the field and would be the binding precedent or that of the decision rendered in J.K. Bansal and others (supra) would be binding or both can simultaneously be valid. In the case of J.K. Bansal and others (supra) a three-Judge Bench of the Apex Court has referred to the decisions in Mrs. Shilpi Bose (supra) and National Hydroelectric Power Corporation Ltd. vs. Bhagwan (supra). Their Lordships have not only noticed but have quoted exhaustively the ratio laid down in the said decisions. Thus, the said decisions have been approved by the three-Judge Bench. In T.N. Bharadwaj (supra) what their Lordships have stated that the guidelines are binding on the Government. The binding nature of the guidelines, in our humble view, has to be understood in the context of Mrs. Shilpi Bose (supra), S.L. Abbas (supra), Jagjit Singh Mehta (supra) and S.S. Kaurav and others (supra). To elaborate the instructions or the guidelines do not confer any enforceable right on an employee. He has no vested right to remain at one post or the other. However, while ordering a transfer the authority must keep in mind the guidelines issued by the Government whether an order of transfer is passed in violation of the guidelines or the executive instructions. The action of the State Government should not be 8 MP-5559-2022 mala fide or malicious and should be tested on the anvil and touchstone of acceptable reasonableness. In view of the aforesaid pronunciation of law by the Apex Court in several cases, which we have referred hereinabove, we are of the considered opinion that the transfer policy formulated by the State is not enforceable as the employee does have a right and the Courts have limited jurisdiction to interfere in the order of transfer. The Court can interfere if there is violation of mandatory statutory rule or if the action of the Government is capricious, malicious, cavalier and fanciful. What would constitute these components that would depend on facts of each case as the same can be neither illustratively or exhaustively stated. In fact, that is not warrantable to be stated. We proceed to hold that in case an order of transfer is assailed on the gound that there has been violation of the policy, the proper remedy is to approach the authorities by pointing out the violation and it is expected of the authorities to deal with the same keeping in mind the policy guidelines with utmost objectivity."
(iii) As regards the ground of petitioner being unwell is concerned, the same lies within the domain of the competent authority to consider. The petitioner in that regard is always free to make his representation before the competent authority, which if made, shall be considered by the competent authority but not before the petitioner joins at the transferred place. This is so because all personal interests of an employee/officer are subservient to the larger public interest of efficient administration, which will be adversely affected if the vacancy meant to be occupied by the petitioner at Delhi on his transfer is allowed to remain vacant. Public interest is always paramount and above all personal interests. Thus, the consideration of representation can only be made when the petitioner joins at the transferred place.
9 MP-5559-2022
6. This Court may remind itself that an order of transfer of service can be successfully challenged on very limited grounds. Proven malafide, the transfer being violative of any constitutional or statutory provision or transfer adversely affecting the service conditions of the transferred employee are some of the limited grounds which can be successfully raised while challenging an order of transfer. None of these three grounds are made out in the present petition and, therefore, the Tribunal had rightly rejected the OA filed by the petitioner.
7. In view of above and with the liberty given to petitioner to make his representation subject to joining at the transferred place, this Court declines interference.
8. Consequently, the petition stands dismissed with the aforesaid liberty.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
DV
Digitally signed by
DINESH VERMA
Date: 2022.12.16
16:21:01 +05'30'