Central Administrative Tribunal - Lucknow
Govind Bhatnagar Aged About 57 Years Son ... vs Union Of India Through Secretary on 24 October, 2013
Central Administrative Tribunal, Lucknow Bench, Lucknow Original Application No. 281/2013 This the 24th day of October, 2013 Honble Sri Navneet Kumar , Member (J) Govind Bhatnagar aged about 57 years son of late B.K.Bhatnagar,r/o F-5271 , Rajajipuram, Sector 11, Lucknow. Applicant By Advocate: Sri A.Moin Versus 1. Union of India through Secretary, Ministry of Defence, New Delhi. 2. Director General, Defence Estates, RakshaSampadaBhawan, Delhi Cantt. 3. Principal Director, Defence Estates, Ministry ofDefence, Central command, 17 KariappaMarg, Lucknow. Respondents By Advocate: Sri Rajendra Singh (Reserved on 9.10.2013) ORDER
BY HONBLE SRI NAVNEET KUMAR, MEMBER (J) The present Original Application is preferred by the applicant u/s 19 of the AT Act, with the following reliefs:-
i) to quash the impugned transfer order dated 27.6.2013 passed by respondent No.2 with all consequential benefits so far as it pertains to the applicant as contained in Annexure A-1 to the O.A. i a) to quash the impugned order dated 25.7.13 passed on behalf of respondent No.2 as contained in Annexure No.4 to the O.A. with all consequential benefits.
ii) to direct the respondents to allow the applicant to continue on the post of Office Superintendent at Lucknow with all attendant benefits.
iii) to direct the respondents to pay the cost of this application.
iv) any other order which this Honble Tribunal deems just and proper in the circumstances of the case be also passed.
2. The brief facts of the case are that the applicant was initially appointed on 7.4.1998 as Lower Division Clerk and was promoted to the post of Upper Division Clerk in 2003 and thereafter he was transferred to Danapur in Bihar in 2004. The applicant was promoted to Technical Assistant in 2010 and was further promoted to the post of Office Superintendent in the year 2013. Learned counsel for applicant has pointed out that there are two sanctioned post of Office Superintendent in Lucknow and one is lying vacant since January 2013 on account of retirement of one Sri P.K. Khanna whereas the applicant is working on the second post. Apart from this, the learned counsel for the applicant has pointed out that applicant is due to retire on 30th April, 2016 and his wife , son and daughter are under continuous medical treatment. The applicant preferred the present Original Application challenging the transfer order dated 27.6,2013 whereby the applicant has been transferred from Lucknow to New Delhi without indicating in the impugned order as to whether it is in administrative exigency or in public interest.
3. The aforesaid matter was taken up and by virtue of an order dated 4.7.2013, the Tribunal directed the respondents to maintain status quo and also to consider and decide the representation of the applicant by means of passing a reasoned and speaking order. During the pendency of the O.A. and as per the direction of the Tribunal, the respondents have considered and decide the applicants representation and rejected the same. The applicant feeling aggrieved by the said order, preferred an amendment application , which was subsequently allowed by the Tribunal. The learned counsel for applicant challenged the said order on the ground that the transfer order does not indicate that the same has been passed in administrative exigency or in public interest, as there is no occasion of transferring the applicant out of Lucknow. It is also pointed out by the learned counsel for the applicant that the applicant is aged about 57 years and is due to retire within a period of 3 years and his wife, son and daughter , all are patient of different diseases. Not only this, it is also pointed out by the learned counsel for the applicant that the persons with longer stay are retained in Lucknow whereas the applicant has been transferred even before completion of 10 years tenure as per the transfer policy. Not only this, the learned counsel for applicant has also pointed out that if the transfer order is issued on the basis of certain complaints, then it is malafide in nature and is liable to be interfered by this Honble Tribunal. On this, the learned counsel for applicant has relied upon a decision of the Honble Apex court in the case of Somesh Tiwari Vs. Union of India and others reported in (2009) 2 Supreme Court Cases, 592. The learned counsel for applicant has also relied upon on two more decisions such as:-
i) Vinod Sahi Vs. Union of India and others , 1996, 34 ATC, 255.- In this case the Tribunal quashed the transfer order and observed that transfer of an employee to accommodate another employee is not bonafide exercise of power.
ii) Naseem Bano (Smt. ) Vs. State of U.P. and others 1993 Supp.(4) SCC page 46, which provides that if the averments made in the writ petition are not controverted by the respondents , should be presumed to have been admitted, as the respondents have not filed any reply to the amended portion of the O.A., as such learned counsel for the applicant pointed out that the contents of amended O.A. cannot be disputed and the O.A. is deserves to be allowed.
4. The learned counsel appearing on behalf of the respondents filed their reply and through reply, it was pointed out by the respondents that applicant was initially appointed in 1978 and came to Lucknow on transfer in 2006 and he is working here since last approximately 10 years. The impugned order was passed in exigency of service as the same has been mentioned in the decision of the representation of the applicant. Apart from this, it is also pointed out by the respondents that the applicant spent almost 26 years in DEO, Lucknow i.e. from the date of his appointment till 2004 and thereafter he was posted to DEO, Danapur for a very short period of about 2 years 4 months and thereafter, again posted back to Lucknow in 2006 and is continued here since then. Apart from this, the learned counsel for applicant has also placed a document dated 16th April, 2013 which is an internal correspondence which provides that the applicant is a careless person and neither he wants to work nor he allows other to work. He used to misbehave with the superior authority and also threatened them. His ill behavior is noticed by not only one but number of persons , as such he has been transferred from Lucknow for peaceful functioning of the Department. Apart from this, it is also pointed out by the learned counsel for the respondents that applicant being a Central Govt. employee is have an all India transfer liability and liable to be posted in any part of the India as per the transfer policy for Defence Estates Personnel other than Group A and B officers the applicant can be transferred. It is also pointed out by the learned counsel for the respondents that not only one but about 12 persons have been transferred from one place to another by means of order dated 27.6.2013 which is impugned in the O.A.
5. Learned counsel for applicant has filed Rejoinder Reply and through Rejoinder reply, mostly the averments made in the O.A. are reiterated. However, it is once again pointed out by the learned counsel for the applicant that all transfer has to be carried out under professed norms or guidelines. The learned counsel for applicant has relied upon para 2(iii) of the Transfer Policy dated 6.12.2005 which provides that all Group C staff including the technical and non-technical employees will have normally a tenure of 10 years in one station subject to exigency of service. Apart from this, it is also pointed out by the learned counsel for applicant that number of persons who are having longer stay are still retained in Lucknow whereas the applicant has been singled out and transferred. Not only this, it is once again reiterated that one sanctioned post of Office Superintendent is lying vacant in Lucknow since January 2013 and there is no indication in the impugned transfer order that the applicant has been transferred in exigency of service and the same has been passed with a malafide intention, as such it is punitive in nature and accordingly the said transfer order is liable to be quashed.
6. Heard the learned counsel for the parties and perused the records.
7. The applicant joined the respondents organization in the year 1978 as Lower Division Clerk and thereafter promoted to the post of Upper Division clerk and subsequently he was transferred to Lucknow . The said transfer order was passed in the year 2006 and during the said period, the applicant was promoted to the post of Office Superintendent and remained posted at Lucknow only. It is also not disputed that there are two sanctioned post of Office Superintendent in Lucknow, out of which one is lying vacant since January, 2013 on account of retirement of one Sri P.K. Khanna. The applicant has taken a ground that the impugned transfer order is based on a complaint as such, the said transfer order is bad in the eyes of law on the basis of observations of the Honble Apex Court as observed in the case of Somesh Tiwari (supra), wherein the Honble Apex Court has been pleased to observe as under:-
The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order or transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
8. In response to the applicants submission in regard to the decision of Somesh Tiwari (supra) is concerned, the learned counsel appearing on behalf of the respondents has categorically pointed out that the impugned transfer order has not been passed under any malafide intention since not only one but about 12 persons have been transferred. Only there was a complaint against the applicant, as such, he has been transferred but not as a punishment. Only to maintain the harmony in the office and also to maintain peaceful working atmosphere, the applicant has been transferred. But this cannot be said to be a punishment upon the applicant.
9. Apart from this, the learned counsel for the applicant has also submitted another decision of Vinod Sahi (supra) passed by this Tribunal that in case, the transfer order was passed to accommodate another person , is not a bonafide exercise of power. But in the present case, not only one but about 12 persons have been transferred from one place to another and this has been done exclusively in the interest of administration and without any malafide intention and the same has been passed in the exigency of service. In reply to the decision cited by the learned counsel for the applicant in regard to Vinod Sahi (supra) is concerned, for this, learned counsel for respondents has categorically pointed out that the respondents have not passed this present transfer order to adjust some other person at Lucknow. As regards to the decision cited by the applicant in the case of Naseem Bano (Smt.) (supra), the learned counsel for respondents pointed out that the respondents have already given the detailed reply and no new facts was brought on record by the learned counsel for applicant through their amendment application as such there was no need to file any reply to amended portion of the O.A.
10. While relying upon the transfer policy, the learned counsel for respondents pointed out that the said transfer policy was framed for the Defence Estates Personnel other than Group A and B officers. The relevant portion of said transfer policy reads as under:-
2. In order to bring about rationalization in the matter of transfer and posting of Group C and D staff and to ensure placement of competent personnel in the field offices, basedon realistic work assessment it has been decided to delegate the powers to transfer/posting in the following manner:-
i)
ii) ..
iii) All Group C staff including the technical and non-technical employees will have normally a tenure of 10 years in one station subject to exigencies of service. However, within the same station, they may be considered for transfer to the other office after completion of three years in an office located in the same station.
iv) After completion of first tenure of posting of 10 years, such staff may be transferred to some other station within the same command.
.
3) Notwithstanding the above delegation, the DGDE shall issue order for transfer and posting of Group C and D staff, at any time to any place in India, irrespective of the tenure of posting as mentioned in the preceding para in exigencies of service.
11. Learned counsel for respondents relied upon para 2(iii) of the said transfer policy which says that all Group C staff including the technical and non-technical employees will have normally a tenure of 10 years in one station subject to exigencies of service. It is also pointed out by the learned counsel for the respondents that in the instant case, there is no illegality in the transfer order because it is not necessary that applicant who was posted in place has to be remained posted there till the completion of 10 years. Normally, it should be 10 years but he can be transferred to any other station subject to exigency of service. While deciding the representation of the applicant, the respondents have categorically pointed out that still the applicant is having 3 more years to go and the applicant is working in Lucknow since 2006. Apart from this, the applicant being a Central Govt. employee is having All India transfer liability He is liable to be posted in any part of India in the D.E. organization Not only this, it is also submitted by the learned counsel for the respondents that during his entire tenure of service of about 35 years, the applicant was posted under the DEO Lucknow for about 32-1/2 years since his date of appointment and he has already spent 26 years in DEO Lucknow from the date of his initial appointment and only he remained out of Luckow for a very short period of 2 years and 4 months . As regards the medical problem is concerned, the respondents have categorically pointed out that medical facilities is available all over India and services of specialist doctors can be obtained any where.
12. Learned counsel for respondents has relied upon a decision of this Tribunal in O.A. No. 362/2012 (Bashisht Narain Singh Vs. UOI) wherein the Tribunal has considered the following cases of Honble Apex Court :-
i) Shilpi Bose and others Vs. State of Bihar , 1991 SC 532
ii) Union of India Vs. S.L. Abbas AIR 1993 SC 2444
iii) SomeshTiwari Vs. Union of India and others (2009) 2 Supreme Court Cases 592
iv) Rajendra Singh Vs. State of U.P. and others (2009) INSC 1351 (31st July, 2009)
v) National Hydroelectric Power Vs. Sri Bhagwan (11th September 2001) [Appeal (Civil) 1095-1096 of 2001] .
13. Apart from this, the learned counsel for respondents has also relied upon the decision of the Honble Apex Court of the following cases:-
i) State of Haryana Vs. Kashmir Singh , 2010 (13) SCC 306
ii) Registrar, High Court of Madras Vs. R. Perachi , 2011 (12) SCC 137.
14. The Honble Apex court not only in one but in number of cases such as in the case of B. Vardharao Vs. State of Karnataka , AIR 1986 SC 1955, Shilpi Bose and others Vs. State of Bihar , 1991 SC 532, Union of India Vs. S.L. Abbas AIR 1993 SC 2444, has been pleased to observe that the transfer is an incidence of Government service and the courts should not normally interfere with it unless the order of transfer is vitiated by malafides or is made in violation of statutory provisions. Apart form this, it is also observed that the court should not interfere with the purely administrative matters like transfer and postings except it is warranted and is passed against the statutory provisions.
15. In the case of National Hydroelectric (supra), the Honble Apex Court has been pleased to observe that Govt. servant has no vested legal right to be remained posted forever on a particular place.
16. In the case of State of U.P. Vs. GovardhanLal reported in 2004 11 SCC 402, it is once again observed by the Honble Apex Court that transfer of employee is purely discretion of the authority and court should not interfere in it except :-
i) malafide is shown
ii) in violation of statutory rules;
iii) passed by authority not competent
17. As can be seen that the impugned transfer order is neither passed in any malafide intention because it is not single transfer nor it has been passed in violation of statutory provision because the tenure of 10 years is not fixed tenure whereas a person can be transferred subject to exigency of service and as regard the authority not competent to pass order is also not there because the authority who has passed the transfer order is competent to pass the impugned transfer order.
18. The Honble Apex Court in the case of S.L. Abbas (supra) has been pleased to observe as under:-
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right. An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force.
19. Further, the Honble Apex Court in the case of Shilpi Bose(Mrs.) (supra) has been pleased to observe as under:-
4. In our opinion, the Courts should not interfere with a transfer Order which are 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 malafide. 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 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 over looked these aspects in interfering with the transfer orders. 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 malafide . 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; 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.
20. A Division Bench of the Honble Mumbai High Court in S.N. Umap v. State of Maharashtra (Bom.) reported in 1984 (2) SLR 328 has held as under:-
It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best Judge to decide how to distribute and utilize the services of it employees. However, this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount o mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfer, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such an in normal course or other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even the administrative actions should be just and fair. Frequent unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to the employee and drive him to desperation. It disrupts the education of the children and leads to numerous other inconveniences and problems and results in hardship and demoralization. Therefore, the policy of transfer should be reasonable and fair and should apply to everybody equally.
21. In another judgment in the case of National Hydroelectric Power Corporation Limited v. Sri Bhagwan & Another (supra) this was again reiterated by the Apex Court and it was further observed that scope of judicial review in transfer of an employee is not warranted and the transfer is not only an incident but a condition of service and it should not be interfered with unless shown to be an outcome of malafide exercise of power or violative of any statutory provisions otherwise transfer order is not subject to judicial interference as a matter of routine. It is also observed by the Honble Apex Court that no Government servant or employee or public undertaking has any legal right to be posted for long at any one particular place. The Apex Court has observed as under:-
No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned.
22. The Honble Apex Court in the case of State of U.P. & Others v. Gobardhan Lal (Supra) observed that the transfer is prerogative of the authorities concerned and court should not normally interfere therewith except:-
(i) Transfer order is shown to be vitiated with malafide
(ii) Issued in violation of any statutory provision or
(iii) Having been passed by an authority not competent to pass such order.
While deciding the said case the Honble Apex Court further pleased to observe as under:-
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
23. In another matter of transfer which came up before the Honble Apex Court i.e. the case of Rajendra Singh & Others v. State of U.P & Others (supra), it has been observed by the Apex Court that the scope of judicial review in transfer matters is very limited and the courts are always reluctant to interfere with transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from malafide. The Honble Apex Court further observed as under:-
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar this Court held:
4. 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 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.
10. In N.K. Singh v. Union of India this Court reiterated that :
6the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision..
24. Again in 2010 in the case of State of Haryana & Ors. v. Kashmir Singh & Another (supra) the Honble Supreme Court emphasized in regard to the judicial review in transfer matters. It has been observed that it is a policy matter which is purely an administrative matter and in transfer and posting the scope of interference by the courts is very limited. The Honble Apex Court further observed that the State Administration cannot function with its hands tied by judiciary behind its back. The Honble Apex Court while deciding the issue of transfer has been pleased to observe as under :-
12. Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well settled that courts must not ordinarily interfere in administrative matters and should maintain judicial restraint, vide Tata Cellular v. Union of India.
25. The bare perusal of the aforesaid observations of the Honble Apex Court is absolutely clear that the transfer ordinarily is an incidence of service and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. Apart from this, as observed by the Honble Apex Court in the case of Aravali Gold Club Vs. Chander Hass reported in (2008) 1 SCC 683 and in the case of Common cause Vs. Union of India reported in (2008) 5 SCC 511, that judges must observe judicial restraint and must not ordinarily encroach into the domain of the legislature or the executive. Undoubtedly, the transfer is domain of an executive and it should only be interfered with where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. The State administration cannot function with its hands tied by judiciary behind its back.
26. In the instant case, since the applicant is having an All India transfer liability and has three more years to go for retirement and there is no specific violation of any statutory rules or guidelines, since not only one but about 12 persons have been transferred from one place to another, as such, the grounds taken by the applicant are not tenable in the eyes of law . Accordingly, I do not find any reason to interfere in the present transfer order, as such, O.A. is fit to be dismissed.
27. Accordingly, the O.A. is dismissed. No order as to costs.
(NAVNEET KUMAR) MEMBER (J) HLS/-