Central Administrative Tribunal - Delhi
Sh. Parveen Kumar vs Union Of India on 13 December, 2010
Central Administrative Tribunal
Principal Bench
New Delhi, this the 13th day of December, 2010
Honble Shri Shailendra Pandey, Member (A)
MA 2731/2010
OA 3160/2010
Sh. Parveen Kumar
Age: 38 years
s/o Sh. Radhey Shayam
r/o House No.1745, Sector-13
Urban Estate, Karnal
Haryana 132 001.
Working as Assistant Engineer
O/o the Executive Engineer (E)
Karnal Central Elect. Division,
CPWD, 22, Indira Colony
Karnal (Haryana) 132001. - Applicant
(By Advocate: Shri R.N. Singh)
Versus
1. Union of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi-110011
(Through: its Secretary)
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi-110011.
3. The Superintending Engineer
(Coordination-Electrical),
East Block-1, R.K. Puram,
New Delhi-110066. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2720/2010
OA-3163/2010
Shri Raj Pal Chopra,
S/o late Shri D.L. Chopra,
R/o E-144, First Floor,
Moti Nagar,
New Delhi-110015. -Applicant
(By Advocate: Shri R.N. Singh)
Versus
1. Union of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi-110011
(Through: its Secretary)
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi-110011.
3. The Superintending Engineer
(Coordination-Electrical),
East Block-1, R.K. Puram,
New Delhi-110066. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2729/2010
OA-3161/2010
Shri Tarak Bhandopadhyay,
S/o late Shri G.C. Bandopadhyay,
R/o 38-A, Pocket-A,
MIG Flats, GTB Enclave,
Delhi-110093. -Applicant
(By Advocate: Shri R.N. Singh)
Versus
1. Union of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi-110011
(Through: its Secretary)
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi-110011.
3. The Superintending Engineer
(Coordination-Civil),
East Block-1, R.K. Puram,
New Delhi-110066. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2733/2010
OA-3162/2010
Shri Harbans Singh
S/o Shri Santa Singh,
R/o Type-IV/1-A,
Income Tax Colony,
Chhotti Baradari,
Patiala, Punjab. -Applicant
(By Advocate: Shri R.N. Singh)
Versus
1. Union of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi-110011
(Through: its Secretary)
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi-110011.
3. The Superintending Engineer
(Coordination-Civil),
East Block-1, R.K. Puram,
New Delhi-110066. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2718/2010
OA-3164/2010
Shri Sanjay Mehta,
S/o Shri Vinod Kumar Mehta,
R/o A-48, Sector-56,
Noida, U.P.-201301. -Applicant
(By Advocate: Shri R.N. Singh &
Shri R.V. Sinha)
Versus
1. Union of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi-110011
(Through: its Secretary)
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi-110011.
3. The Superintending Engineer
(Coordination-Electrical),
East Block-1, R.K. Puram,
New Delhi-110066. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2716/2010
OA-3332/2010
Shri Biswarup Biswas,
S/o Sh. Satyendra Nath Biswas,
R/o Qtr. No.2, Type-III, Ground Floor,
R.A.K. College of Nursing Campus,
Lajpat Nagar, New Delhi-110024. -Applicant
(By Advocate: Shri R.N. Singh &
Shri R.V. Sinha)
Versus
1. Union of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi-110011
(Through: its Secretary)
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi-110011.
3. The Superintending Engineer
(Coordination-Electrical),
East Block-1, R.K. Puram,
New Delhi-110066. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA No.2709/2010
OA No.2384/2010
Virendra Singh
S/o Sh. Bhagwat Singh
r/o B-12/114, Dev Nagar
Karol Bagh
New Delhi. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors.
Through
1. The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Director General (Works)
CPWD, Nirman Bhawan,
New Delhi.
3. Additional Director General
(S&P) CPWD, Nirman Bhawan,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA No.2727/2010
OA No.3252/2010
Shri Daya Ram Maurya
S/o Late Shri Harivansh Maurya
R/o A-164, Sector-22,
Noida (UP)-201301. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors. through
1. The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Director General (Works)
CPWD, Nirman Bhawan,
New Delhi.
3. Additional Director General
(S&P) CPWD, Nirman Bhawan,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2740/2010
OA-3256/2010
Nagendra Kumar
S/o Shri P.S. Rasal
R/o 28-B Street No.4
Kundan Nagar, Delhi-92. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors.
Through
1. The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Director General (Works)
CPWD, Nirman Bhawan,
New Delhi.
3. Additional Director General
(S&P) CPWD, Nirman Bhawan,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru)
OA-3447/2010
Shri Murli Dhar S/o Shri Radhay Shyam
R/o G 131, Sarojni Nagar,
New Delhi. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors. through
1. The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Director General (Works)
CPWD, Nirman Bhawan,
New Delhi.
3. Additional Director General
(S&P) CPWD, Nirman Bhawan,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2735/2010
OA-3197/2010
Shri Vivek Tewari
S/o Shri M.L. Tewari
R/o 50, A.G.C.R. Enclave,
Delhi-110092. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors. through
1. The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Director General (Works)
CPWD, Nirman Bhawan,
New Delhi.
3. Additional Director General
(S&P) CPWD, Nirman Bhawan,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2724/2010
OA-3167/2010
Shri Krishna Murari Tripathi,
S/o Shri P.P. Tripathi,
R/o 232-C, Vikas Nagar,
Uttam Nagar, New Delhi-59. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors. through
1. The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Director General (Works)
CPWD, Nirman Bhawan,
New Delhi.
3. Additional Director General
(S&P) CPWD, Nirman Bhawan,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2722/2010
OA-3106/2010
Shri Yash Pal Singh,
S/o Shri Chauhal Singh,
R/o 1/131 Vasundhra,
Gzb. U.P. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
Union of India & Ors.
Through
1. The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Director General (Works)
CPWD, Nirman Bhawan,
New Delhi.
3. Additional Director General
(S&P) CPWD, Nirman Bhawan,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru)
MA-2743/2010
MA-2744/2010
OA-3128/2010
Shri Rajeshwar Tyagi
Assistant Engineer (Elect)
s/o Sh. Pitambar Singh Tyagi
Assistant Engineer
Sub-Division M-2512
Electrical Division M-251
PWD Govt. of NCT of Delhi
New Delhi.
r/o 3/39, Sector-2
Rejender Nagar
Sahibabad,
Ghaziabad, UP. -Applicant
(By Advocate: Shri S.K.Tyagi)
Versus
Union of India through
Secretary
Ministry of Urban Development,
Nirman Bhawan,
New Delh
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi.
3. The Superintending Engineer(Elect)
Coordination Circle (Elect),
CPWD, Level-7
East Block-1, R.K. Puram,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru with Shri A.K.Trivedi, Addl. DG)
MA-2737/2010
OA-3129/2010
Shri Bijendra Singh
s/o Sh. Khazan Singh
Assistant Engineer (Elect.)
Electrical Division - XV
PWD, I.P.Bhawan
New Delhi.
r/o\ C/o Navnidhi Singh Yadav
V 580, J.P.Nagar
Ghonda, Shahdara
Delhi 110 032. -Applicant
(By Advocate: Shri S.K.Tyagi)
Versus
1. Union of India through
Secretary
Ministry of Urban Development,
Nirman Bhawan,
New Delh
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi.
3. The Superintending Engineer(Elect)
Coordination Circle (Elect),
CPWD, Level-7
East Block-1, R.K. Puram,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru with Shri A.K.Trivedi, Addl. DG)
MA-2746/2010
OA-3183/2010
Shri Sanjay Jain
S/o Late Shri B.M.L. Jain
Assistant Engineer (Electrical) CPWD
Dehradun Central Electric Sub-Division-II
ATI-EPI, Green Park, Niranjanpur,
Dehradun (U.K.)
R/o 46/4, Engineers Enclave, Phase-III,
G.M.S. Road, Dehradun. -Applicant
(By Advocate: Shri O.P. Gehlaut)
Versus
1. Union of India
through Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
2. Director General,
CPWD, Nirman Bhawan,
New Delhi. -Respondents
(By Advocate: Shri D.S. Mahendru)
O R D E R (Common)
As the facts and circumstances and the relief claimed in the above OAs are the same, they are being disposed of by this common order.
2. The applicants are Assistant Engineers (Civil/Electrical) in the Central Public Works Department (CPWD) and have challenged the order of the respondents dated 23.07.2010, transferring them from the Northern Region to other Regions and also order dated 13.09.2010, rejecting their representations in this regard.
3. The brief history of the matter leading up to the transfer of the applicants is as follows:
the respondents vide their OM dated 1.04.2010 and subsequent Corrigendum dated 27.04.2010 had issued guidelines for Inter Regional Transfer/Posting of Assistant Engineers (Civil and Electrical) in CPWD.
The Inter Regional Transfer/Posting Committee constituted for the purpose of making Inter Regional Transfers/Postings met on 20.07.2010 and reviewed the cases of the Assistant Engineers (Civil and Electrical) who were to be considered for transfer and their representations in the matter, and made recommendations for transfer on the basis of which the respondents issued the Office Order No.106/2010 and Office Order No.107/2010 dated 23.07.2010.
34 AEs working in the CPWD, who had been transferred by the above order, filed OA No.1936/2010 (Shri Ravindra Pal Malik v. Union of India & Others) before this Tribunal challenging the transfer policy/guidelines contained in OM dated 1.04.2010 and Corrigendum dated 27.04.2010 but the same was dismissed by a Division Bench of this Tribunal vide its order dated 16.07.2010 holding that they found no illegality in the guidelines. In para 21 of their order, the Tribunal had also observed as follows:
21. Counsel for the applicant had submitted that generally the children of officers between the age group of 45 to 50 years are school going, therefore, they should not be disturbed from Northern Region. Such cases cannot be decided by making general statements. We are sure, if any officer is being posted to other region during the mid-session of his school going child and the officer gives a representation, the respondents would consider his request for deferring the transfer till the end of the session so that the education of child does not suffer. thereafter, the Hard Case Committee of the respondents under the Chairmanship of Additional Director General (Border) met on 28.07.2010 and noting the above observation of the Tribunal in para 21 sought clarifications with regard to the following issues
(a) counting of date of officers returning from Hard Area/Other Region,
(b) retention of officers whose children are studying in schools and
(c) posting of officers whose spouses are working in Govt. Offices/PSUs.
In response, the competent authority clarified these issues as under vide OM dated 20.08.2010 and also made amendments to this effect in the guidelines dated 1.04.2010:
a) in case of officers returning from hard area, stay in the region shall be counted from the date of return from the hard area. Similar condition shall apply for those coming on Inter Regional Transfer from another region.
b) One year retention may be granted to those officers whose children are studying in Class XII.
c) In case of working spouse, the case may be dealt with as per DoP&T guidelines.
(e) The Hard Case Committee met again on 01.09.2010 to consider the representations of Assistant Engineers (Civil and Electrical) made in connection with transfer orders issued vide order dated 23.07.2010, and pursuant to its recommendations, OM dated 13.09.2010 was issued, in which retention/extension was granted in respect of cases found eligible as per the guidelines (as amended) while most other cases were not agreed to. Against these cases, the Committees recommendations were recorded in the remarks column as `Regret.
4. This has led to filing of the above OAs, in which the following reliefs are claimed:
a) To quash and set aside the orders dated 29/04/2010/23.07.2010/27/7/2010, transferring the applicants from the Northern Region to other Regions, and Office Memorandum dated 13.09.2010, rejecting their representations in this regard.
5. However, in OA Nos.3106, 3167, 3197, 3256, 3183, 3447, 3252 and 2384 of 2010 the learned counsel for the applicants has confined his relief to deferment of the transfer till 31.03.2011, i.e., the conclusion of the academic session.
6. The impugned orders have been challenged as being arbitrary and discriminatory and bad in the eyes of law primarily on the following grounds:
that while implementing the guidelines the respondents have shown favour to some officials while ignoring the difficulties of the applicants, and have adopted a `pick and choose policy based on their own whims and fancies.
that the impugned orders in the case of the applicants infringe the guidelines/policy drawn up inasmuch as
(i) some Assistant Engineers who are below 50 years of age have been transferred.
(ii) the DoPT guidelines with regard to the posting of husband and wife at the same station, which were reiterated by the respondents in their order dated 20.08.2010, have not been followed in several cases.
It is also submitted that some Assistant Engineers who have worked for relatively short periods in the hard areas have been exempted from the Inter Regional Transfer without taking into account their actual period of stay in the hard area while others have been transferred. It is argued that any transfers made ignoring the guidelines are not valid in law and need to be quashed.
that in several cases requests of the applicants on medical grounds supported by medical certificates obtained from the hospitals concerned, have not been taken into account in spite of a clear provision in the guidelines for exemption of cases on medical grounds and that this also shows non-application of mind and improper consideration on the part of the respondents.
that the education needs of the children of several applicants have been overlooked in contravention of para 21 of the order of this Tribunal in OA No.1936/2010, by the provision in the OM dated 20.08.2010 for one year retention to only those officers whose children are studying in Class XII. It is submitted that this is a violation of the Tribunals order and is also irrational as the educational needs of children studying in Class-XI are equally strong and that the educational needs of children in lower Classes are even greater as they need greater supervision of parents than grown up children. In this connection, it was stated that the Apex Court has also opined that transfers should generally not be made in mid-academic session.
that mere use of the word `public interest in the impugned order does not establish that public interest is actually involved and that the statement of the respondents that the transfers have been made/representations rejected on the basis of exigencies of service is not tenable as the transfer orders were issued on 23.07.2010 but in many cases have yet to be implemented and the work is still being managed which shows that there is no extreme exigency involved and that the transfers can be deferred for another 3 to 4 months to enable the academic session of the children to be over.
that the representations of the applicants made in the matter have been rejected by the Hard Case Committee without proper consideration and without application of mind as would be evident from the recording of only one word `Regret against there requests in the impugned order dated 13.09.2010, and that this improper consideration constitutes a violation of the principles of natural justice which also require reasons to be recorded for rejection of a representation.
7. It is submitted that any orders issued contrary to the professed policy/guidelines or in violation of the principles of natural justice are bad in law and need to be quashed. Reliance in this regard has been placed by the learned counsel for the applicants on the Judgments of the Honble Supreme Court/Tribunal in Director of School Education, Madras & Ors. v. O. Karuppa Thevan & Anr., 1994 SCC (L&S) 1180; N.K.Singh v. UOI & Others, AIR 1995 SC 423; S.N.Mukherjee v. UOI & Others, 1990(5 SLR 8 (Constitution Bench); OA 1275/2008 (Rajesh Ranjan Prasad v. UOI & Others, decided on 17.11.2008); OA 1510/2006 (Alok Johri v. UOI & Others, decided on 13.10.2006); and OA 44/2007 (Ashok Mittal v. UOI & Others, decided on 31.07.2007, which was upheld by Honble High Court of Delhi vide order dated 25.07.2008 in WP (C) No.4781/2008.
8. The respondents have opposed the OA and the above submissions and have stated that all the transfers have been necessitated to remove imbalances in the working strength of AEs in various regions and have been made only in public interest and strictly as per guidelines drawn up for the purpose, as incorporated in OM dated 01.04.2010 (and subsequent amendments), and that all the transfers have been made objectively keeping these guidelines and administrative needs and exigencies in view and, in particular, the acute deficit of officers in the Eastern and Western Regions. It is emphasized that there has been total transparency/objectivity in the transfers ordered, through involvement of officials at proper levels, consultations with the Unions before drawing up guidelines and placing of the transfer orders and the guidelines etc. on the Web Site. The transfers itself were made by a Broad Based Committee consisting of:
ADG (NR) : Chairman CE (P&S) : Member SE (Coord), Civil/Electrical : Member (For Civil/ Electrical Stream) DDA Concerned : Secretary of Committee
and the representations against the transfers were looked into carefully by another `Hard Case Committee with a separate Chairman consisting of:
ADG (BFR) : Chairman CE (P&S) : Member CE (CSQ) : Members SE (Coord), Civil/Electrical : Member (For Civil/ Electrical Stream) DDA Concerned : Member Secretary of Committee
and that there is nothing arbitrary or malafide behind any of the transfers made. It is also stated that whenever transfers to hard areas are made, there are attempts by some individuals to disturb the Inter Regional Transfer process by filing Petitions in different Benches of this Tribunal all over India and securing interim stays and that this affects very adversely the work of the Department, particularly in the deficit areas in the Eastern and Western Regions. It is also stated that some Assistant Engineers, who do not find the transfers suitable, approach the Tribunal with a view to engaging in litigation for a sufficient period of time by when they will become 50 years of age and would thus become exempt from the Inter Regional Transfer.
9. The respondents have also stated that all the transfers have been made on the basis of duly notified guidelines/policy drawn up for the purpose, which has been upheld by the Tribunal in OA No.1936/2010. They have also denied that there has been non-application of mind and only superficial consideration by the Hard Cases Committee, and have stated that the Committee looked into all the representations received and after careful review of the relative merits and hardships involved in each case acceded to the requests in the cases which were covered under the guidelines. The DoPTs guidelines with regard to the posting of husband and wife at the same station have also been kept in view as also the provisions of retention for a year of applicants whose children are in Class XII and of the applicants having medical grounds that can be covered under the guidelines. The `Assessment Sheet drawn up by the Hard Case Committee would show that all the factors mentioned by the applicants were duly considered and then a decision taken strictly as per the guidelines. It was submitted that the word `Regret mentioned in the order dated 13.09.2010 has to be viewed in this context and would mean `Regret as not eligible under the guidelines. In case, if required, the same can be supplemented by giving a statement in this regard to each officer who had represented. They have also pointed out that all the applicants are holding transferable posts and transfer is a necessary incident of service and that it is well settled that it is for the executive authorities to decide when and where an officer is to be transferred and as long as the transfer orders are issued by an authority competent to pass the order and does not involve any violation of a statutory rule, no interference of this Tribunal is warranted, as held repeatedly by the Honble Supreme Court in a catena of its Judgments.
10. The rival submissions of both the parties have been considered and the pleadings on record have also been seen.
11. At the very outset, it would be necessary to observe that the CPWD has a very vital function to perform in the service of the nation. It has offices spread across the length and breadth of the country and for functional purposes these have been decided into 4 Regions, namely, North, East, West and South under respective ADGs and each Region has a sanctioned strength of Assistant Engineers, Executive Engineers, Superintending Engineers and Chief Engineer based on the quantum of work to be performed there. All these offices need to be adequately staffed if the CPWD is to discharge its functions effectively. The works undertaken ranging from construction and maintenance of Central Government buildings (both office and residential) to works such as border fencing and flood lighting, etc. that have a bearing on security/national interest. In execution of works of the Department, Assistant Engineers play a pivotal role and in a way the most crucial role. The works executed have a direct impact on over all development of various far flung regions of the country and thus an indirect impact on national integration as well. Adequate staffing of the Government offices of the CPWD in all regions and in particular in the relatively more difficult regions, therefore, assumes great importance. In such a scenario, Inter Regional Transfers become a necessity, particularly when there are gross shortages in certain regions of the country as is evident from the table below (as given by the respondents):
Region-wise position of post of AEs (Civil), Name of Region Sanctioned Strength In position Vacancies Percentage of vacancies NR 1253 1210 43 3% WR 242 171 71 29% ER 380 232 148 39% SR 257 240 17 7% Total 2132 1853 279 13% Region-wise position of post of AEs (Elect), Name of Region Sanctioned Strength In position Vacancies Percentage of vacancies NR 496 456 40 9% WR 78 47 31 39.74% ER 115 53 62 53.91% SR 81 60 21 25.9% Total 770 616 154 20% In the above context, it is necessary to ensure that the deficit in the Western and Eastern Regions is `made up on priority by transfer of requisite number of AEs and equally important to ensure that the dislocation/delay in movement of officers posted to these regions is minimized. No doubt the transfers to these hard areas would entail some personal hardships to many, but keeping this in mind several concessions such as Tenure Posting and Choice Posting Period of 2 years Facility of Retention of Govt. Accommodation at the last place of Posting.
Special Duty Allowance (SDA) @ 12=%.
Additional Facilities on LTC/Emergency Passage Concession.
Special Travelling Allowance on Transfer (Cash equivalent of carrying 1/3rd of admissible personal effects without having to produce any receipt).
Children Education Allowance; and Telephone Facilities at old station.
have been provided to them.
12. We now proceed to discuss the grounds on which the orders of transfer and rejection of representations against the transfer have been challenged. It would be useful, in this connection, to make mention of the limited scope of judicial interference in transfer matters, that has been reiterated by the Honble Apex Court time and again. Some relevant pronouncements of the Honble Apex Court in the matter are given below:
The Honble Supreme Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan & Others, (2001) 8 SCC 574 held 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. In State of U.P. and Others vs. Siya Ram and Another, AIR 2004 SC 4121 the Honble Supreme Court held as under:
5. The High Court while exercising ju-risdiction under Arts. 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') had gone into the question as to whether the transfer was in the inter-est of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circum-stances of the case concerned. No Govern-ment servant or employee of a public un-dertaking has any legal right to be posted forever at any one particular place or place of his choice 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. Un-less an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions pro-hibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substi-tuting their own decision for that of the employer/management, as against such or-ders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and another (2001 (8) SCC 574). In Mohd. Masood Ahmed v. State of U.P. and Others, (2007) 8 SCC 150 held as under:
Since the petitioner was on a transferable post, the High Court has rightly dismissed his writ petition because transfer is an exigency of service and is an administrative decision. Interference by the courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions of the Supreme Court, transfer is an exigency of service. It should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is malafide or that the service rules prohibit such transfer, or that the authorities who issued the orders were not competent to pass the orders. In Union of India and Others v. S.L.Abbas, AIR 1993 SC 2444 it was held as under:
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 set-back 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.
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 said guideline however does not confer upon the Government employee a legally enforceable right. It is thus well settled that in the matter of transfer, the Executive retains the absolute right to transfer a person in public interest and unless there are clear cut malafides established or if it is established that the decision is in violation of a statutory rule it should not be interfered with. All the applicants in the above OAs belong to the category of Assistant Engineers in the CPWD and have transfer liability all over India and have to work, in their turn, in these hard areas of the country. Therefore, interference in their cases is warranted only if the transfers orders are issued by an incompetent authority or the transfer orders are established to be based on malafides. We proceed to examine the orders challenged in these OAs in the above backdrop.
13. The main grounds of challenge (grounds (a) to (c) in para 6 above, are that the respondents have deviated from their own professed guidelines/policy and that implementation of the same has been as per their own whims and fancies. It would be useful in this connection to extract the guidelines drawn up for purposes of transfer as contained in the respondents OM dated 1.04.2010 and Corrigendum dated 27.04.2010 and supplemented by clarification in OM dated 20.08.2010. These are given below:
Guidelines for Inter-Regional Transfer/Posting of AEs (Civil/Electrical) in CPWD (OM dated 01.04.2010:
1.1 The regionalization scheme of the AEs has been put into operation on as-is-where-is basis and further transfer and posting of AEs will be done region-wise.
1.2 If the inter-regional transfers are necessitated to remove implances in the working strength of AEs, in the various regions, the same shall be effected as under:
Any officer who voluntarily opts for inter-regional transfer on his/her own volition shall be considered for inter-regional transfer.
The Junior Engineers who qualify in the LDCE for promotion to the post of AEs and who are below 50 eyars of age may be posted outside their regions irrespective of the length of their stay in the region/station. Transfer shall be effected in ascending order of age.
A list of all Assistant Engineers with age less than 50 years as on 1st of January of each year/5th April for year 2010 shall be prepared by concerned SE (Coord.). The name of all Assistant Engineers, who have still not completed 10 years after successful return from hard areas or the inter-regional transfer as on 1st of January of each year/5th of April for year 2010, shall be shown as exempted from Inter-regional transfer. This list will be made public and shall be forwarded to Directorate General on or before 31st January of each year/10 to 15th April for 2010. This will be sorted out in ascending order of age and will be the basis of inter-regional transfer (in order of ascending order of age).
The Inter-regional Transfer would be made through the aforesaid criteria in order of sequence brought out above.
Assistant engineers likely to be sent on inter-regional transfer, may forward their option/choice of three regions in order of preference to the concerned SEs(Coord.) for onward transmission to Directorate General of Works, CPWD. This option shall reach in the Directorate by 28th February of each year/25th April for year 2010. Choice of region would be considered depending upon availability.
1.3 While making Inter-Regional transfers, station tenures shall not be a parameter for consideration.
1.4 The tenure of stay in hard area shall be 2 years and 3 years in other areas in case of inter-regional transfer. Application for inter-regional transfer on completion of tenure, back to choice region shall be accepted 6 months before the successful completion of stipulated tenure. Transfer-order authorizing posting back the assistant engineers would be issued well in time. AEs shall not be retained by concerned CE under any circumstances except by express order of Additional DG of the Region for a period not exceeding three months.
1.5 Completion of stay in Delhi PWD or at any other station/posting will not come in the way for Inter-Regional transfer if it is due as per these guidelines.
1.6 Period of continuous stay in Hard area, Border fencings, Border roads & Flood lightings work will be 2 years. On successful completion of posting in above areas, AEs shall not be posted outside their region for next 10 years.
1.7 The Assistant Engineers who have completed 50 years of age and ladies shall normally not be posted to hard area or out of the region.
1.8 The order issued under the authority/delegation of power of Directorate General in terms of these guidelines shall be binding on all controlling officers, at the time of joining and relieving after successful completion of their tenure.
1.9 Posting in hard areas, in `Indo-Bangla Border and, in `North Eastern States, shall directly be made by the Directorate General of Works to CE (NEZ) and CE (IBBZ). These Chief Engineers would further post Assistant Engineers in NER, IBBZ and IBBR respectively.
1.10 All Controlling Officers shall initiate preparatory action three months in advance to enable them to relieve Assistant Engineers in time after successful completion of their tenure.
1.11 These inter regional transfer order issued by the Dte. General of Works shall also serve as an authority to relieve back AEs after successful completion of their tenure to the Region of their choice. Addl. D.G. of the region, considering exigencies shall have power to extend the tenure stay not exceeding 3 months.
The AEs/their family as per their service records, who are suffering from terminal illness shall be considered for exemption from inter regional transfer on purely medical grounds on submission of such medical certificate from any competent Government Hospital or Hospital approved by CGHS. Similarly AEs having their children mentally retarded/spastic needing special schools for their education/training shall normally be allowed retention in the region on request and on submission of medical certificate from any competent Government Hospital or Hospital approved by CGHS.
Notwithstanding these guidelines, Director General (CPWD) shall have full power to order trasnsfer/posting or retention of any AEs (Civil) & (Electrical) keeping in view the exigencies of public service, compassionate grounds, administrative requirements and merits of the individual cases.
Director General (CPWD) shall have full powers to order transfer/posting of AEs (Civil) & (Electrical) from one region to another or in any manner according to exigencies of public service, compassionate grounds, administrative requirements and merits of individual cases, as well as making any changes in these guidelines.
This scheme of inter-regional transfer/posting will take effect immediately. (Emphasis supplied) The above were partially modified by Corrigendum dated 27.04.2010, which is extracted below:
Para 2.2 (ii) and 2.2. (iii) of the guidelines may be read as under:-
2.2(ii) The Junior Engineers who qualify in the LDCE for promotion to the post of AEs and who are below 50 years of age may be posted outside their regions irrespective of the length of their stay in the region/station. Transfer shall be affected in the order of seniority based on the length of the stay in the region.
2.2 (iii). A list of all Assistant Engineers with age less than 50 years as on 1st of January of each year/1st May for year 2010 shall be prepared and circulated by the concerned Superintending Engineer (Coordination). The list will include names of all AEs below 50 years of age including those who have returned from Hard area or from Inter Regional within the last 10 years. However, for those who have returned from Hard Area/Inter Regional Transfer during the preceding 10 years, the date of return from such posting shall also be indicated. This list will be made public and shall be forwarded to Directorate General on or before 31st January of each year/30th April for 2010. The list of longest stayee AEs received in the DG Office from SE (Coord.) will be sorted out in the order of seniority based on the length of the stay in the region and it will be the basis of Inter-Regional Transfer.
2. Four more points have been included in the OM No.18/01/2008-EC.III dated 01.04.2010 as 1.4, 2.2(vi), 2.12 and 2.13 which can be read as under:
1.4 The Inter Regional Imbalances of Assistant Engineers shall be worked out once every year so as to determine the necessity and extent of the Inter Regional Transfer be effected during the year. For working out the imbalances, sanctioned strength and held strength of Assistant Engineers in each region as on 31st December shall be intimated to the DG(W) Office for working out the regional imbalances for subsequent year.
2.2 (vi) Officers below 50 year of age on the date of promotion to the grade of Assistant Engineer against Seniority quota and whose Region seniority is already covered in Inter Regional Transfer shall be posted outside the region.
2.12 The officers going on Inter Regional Transfer shall be considered for choice place of posting on return from Inter Regional Posting.
2.13 Officers aged more than 50 years who volunteer for Inter-regional transfer shall also be considered by interpolating their name in the longest stayee. (Emphasis supplied) OM dated 20.08.2010 made the following clarifications/amendments in the guidelines (already referred to in para 3 above):
a) in case of officers returning from hard area, stay in the region shall be counted from the date of return from the hard area. Similar condition shall apply for those coming on Inter Regional Transfer from another region.
b) One year retention may be granted to those officers whose children are studying in Class XII.
c) In case of working spouse, the case may be dealt with as per DoP&T guidelines.
14. The learned counsel for the applicants have argued that the orders of transfer have infringed the guidelines of the respondents read in conjunction with para 21 of the Tribunals order in OA No.1936/2010 (referred to in para 3(c) above) and are thus bad in law and need to be quashed. In support of their contention that any orders issued in violation of professed guidelines/norms/policy need to be interfered with judicially, they have relied on N.K.Singh v. Union of India & Others, AIR 1995 SC 423; OA No.1275/2008 (Rajesh Ranjan Prasad v. Union of India & Others, decided on 17.11.2008 by the Principal Bench of this Tribunal); OA No.1510/2006 (Alok Johri v. Union of India & Others, decided on 13.10.2006 by the Principal Bench of this Tribunal) and OA No.44/2007 (Ashok Mittal v. Union of India & Others, decided on 31.07.2007 by the Principal Bench of this Tribunal. We have perused these cases and find them to be of no help to the applicants. Each of these cases was decided in the context of the facts and circumstances of those cases and the decision therein would not automatically be applicable to the cases in the OAs before us. In N.K.Singhs case (supra), the issue involved was when a transfer made can be considered to be prejudicial to public interest, and the case has no relevance or applicability to the present OAs. In the other 3 OAs No.1275/2008, 1510/2006 and 44/2007 transfers had been made in total violation of the guidelines/policy drawn up by the respondents, but, as discussed later, we do not find the orders challenged in the present OAs to be in violation of the guidelines/policy drawn up by the respondents for the purpose of Inter Regional Transfers/Postings.
15. The table below lists out the grounds mentioned by the applicants in their representations for exemption from transfer/deferment of transfer:
OA No. of 2010 Date of impugned orders challenged Date of representations Grounds raised in the representation 3128 29.04.2010 23.07.2010 and 13.09.2010 06.05.2010 and 26.07.2010 Applicant completed the age of 50 years as on 05.05.2010 Already worked in SR from 1989 to 1993 Consequent upon the posting at Roorkee, on public interest, he joined Delhi office on 03.05.2010 only.
Wife suffered with Cardiac Arrest and she is taking treatment in N.M.Hospital, Gaziabad.
3129 29.04.2010 23.07.2010 and 13.09.2010 04.05.2010 and 27.07.2010 Younger son studying B.Tech (Ist year) in Ghaziabad.
Mother 86 years old with medical problems Single earning members in the family.
Applicant is a diabetic.
Attained the age of 50 years on 16.07.2010.
2384 23.07.2010 30.04.2010 Common Wealth Games are going and he was incharge of their works.
Children studying in Class 11th and 7th standard and having Government quarter.
3106 23.07.2010 27.08.2010 13.09.2010 16.07.2010 and 10.08.2010 Son studying in Class 9th, therefore, deferment till completion of academic session.
3167 23.07.2010 and 13.09.2010 24.05.2010 One marriageable daughter of 24/25 years of age One child under new education session Applicant attaining the age of 50 years on 14.08.2010.
3197 23.07.2010 and 13.09.2010 13.08.2010 Mother aged 75 years and bed ridden for the last 3 years.
Wife is working as teacher Son is studying in Class IV.
3256 23.07.2010 and 13.09.2010 27.07.2010 3 daughters one studying in 11th class, 2nd LLB in Delhi University(Evening college) 1st year and 3rd in Dental College at Ghaziabad.
Relied on para 21 of the CAT Judgement dated 16.7.2010 in OA 1936/2010.
3183 23.07.2010 and 13.09.2010 14.09.2010 24.07.2010 Not due for Inter Regional Transfer Already served in Western Region during 1989 to 1998 Children are studying in Class IX and Class V Relied on the Judgment of the CAT in para 21.
3447 23.07.2010 and 13.09.2010 27.07.2010 Recently been transferred from Chandigarh to Delhi and had been allotted the quarter.
Son is studying in Class 11th and joined Coaching Classes at IIT study Circle.
3252 23.07.2010 and 13.09.2010 01.6.2010, 22.06.2010 and 27.07.2010 Already served hard area posting at Rajasthan he is not due for IRT.
Completed 50 years of age on 10.07.2010 and below 50 years left untouched.
Applicant is having backbone problem.
3160 23.07.2010 and 13.09.2010 24.07.2010 Wife is working as a Teacher under Haryana Govt. at Karnal Two children of 11 years and 7 years at Karnal in VIth and IInd Class Already done Hard Area posting at Srinagar during 1993 to 1997 double tenure Old age parents are residing 155 kms away to Karnal Applicant himself doing B.Tech at Karnal for the necessary permission has been given by the competent authority 3332 23.07.2010 and 13.09.2010 24.07.2010 Wife is working since 1997 as a Tutor at Raj Kumari Amrit Kaur College, Lajpat Nagar under Ministry of Health and Family, Govt. of India. Non-transferable job and she is pregnant and the expected date is in October, 2010 medical grounds.
3164 23.07.2010 and 13.09.2010 26.07.2010 Son studying in Class VIth in DPS and the fees has already been deposited and he is an Ashtma patient.
Wife is working as a Teacher in Delhi Govt. School non transferable.
3162 23.07.2010 and 13.09.2010 24.07.2010 Three daughters and one son. The son is studying LKG at Patila and the daughters studying:
Ist daughter BA 2nd daughter +1 3rd daughter 7th Class Wife is a patient of Hypertension, Diabetic malytis type II, Numbness of legs and arms, vertigo, Gaxtroenteritis, Body pains, cervical pain.
3161 23.07.2010 and 13.09.2010 27.07.2010 Son studying in Class 11th and taken admission in FIITJEE Wife is suffering from depression, stone in her right kidney and hypothyroid.
Facture of right foot of the applicant on 09.07.2010 3163 23.07.2010 and 13.09.2010 26.07.2010 Elder daughter is 24 years and marriageable age and studying in 4th year of BA LLB in I.P. University.
Son is 15 years old and studying in 10th Standard.
Applicant served recently till 08.11.2006 in Punjab and suffering from various illnesses and undergone treatment at AIIMS Wife is working in the office of Registrar General India, M/o Home Affairs not transferable It is noticed that the grounds in the above cases fall into four broad categories medical grounds, education of children, spouse working in a non-transferable post in Delhi and the applicant having completed 50 years of age. In respect of these categories, the provisions in the guidelines are as under:
(i) Spouse working To be considered for exemption if in the same Department or Central Service(s) subject to availability of posts.
(ii) Medical AEs their family suffering from terminal illness or mentally challenged.
(iii) Education of children One year retention if children studying in Class XII.
(iv) 50 years of age Should be 50 years on 01.05.2010.
Tested strictly against these provisions in the guidelines contained in OM dated 1.04.2010, Corrigendum dated 27.04.2010 and clarification in OM dated 20.08.2010, it cannot be said that the orders of transfer have infringed the guidelines in any of the above cases.
15.1 The learned counsel for the applicants would, however, contend that the guidelines need to be adhered to both in letter and spirit and, therefore, the transfer orders of the applicants must be construed to be an infringement of the guidelines.
15.2 Shri R.N.Singh, learned counsel for the applicants submitted that the guidelines issued by the DoPT vide OM dated 30.09.2009, with regard to the posting of husband and wife at the same station, have not been complied with in letter and spirit. In this connection, he invited our attention to DoPT guidelines issued earlier vide OM dated 12.06.1997, which only provided that efforts be made to post husband and wife at the same station. However, these guidelines, according to him, were reiterated in the second OM dated 30.09.2009 issued on the subject when the guidelines were given mandatory status. For facility of ready reference DoPTs OM dated 30.09.2009 is extracted below:
Subject: Posting of husband and wife at the same station.
In view of the utmost importance attached to the enhancement of womens status in all walks of life and to enable them to lead a normal family life as also to ensure the education and welfare of the children, guidelines were issued by DoP&T in OM No.28034/7/86-Estt.(A) dated 3.4.86 and No.28034/2/97-Estt(A) dated 12.6.97 for posting of husband and wife who are in Government service, at the same station. Department had on 23.8.2004 issued instructions to all Minis./Deptts. to follow the above guidelines in letter and spirit.
2. In the context of the need to make concerted efforts to increase representation of women in Central Government jobs, these guidelines have been reviewed to see whether the instructions could be made mandatory. It has been decided that when both spouses are in same Central Service or working in same Deptt. and if posts are available, they may mandatorily be posted at the same station. It is also necessary to make the provisions at Paras 3(iv) and (vi) of the OM dated 3.4.86 stronger as it is not always necessary that the service to which the spouse with longer service belongs has adequate number of posts and posting to the nearest station by either of the Department may become necessary.
3. On the basis of the 6th CPC Report, Govt. servants have already been allowed the facility of Child Care Leave which is admissible till the children attain 18 years of age. On similar lines, provisions of O.M. dated 12.6.97 have been amended.
4. The consolidated guidelines will now be as follows:-
(i) Where the spouses belong to the same All India Service or two of the All India Services, namely IAS, IPS and Indian Forest Service (Group `A):
- The spouse may be transferred to the same cadre by providing for a cadre transfer of one spouse to the Cadre of the other spouse, on the request of the member of service subject to the member of service not being posted under this process to his/her home cadre. Postings within the Cadre will, of course, fall within the purview of the State Govt.
(ii) Where one spouse belongs to one of the All India Services and the other spouse belongs to one of the Central Services:-
- The cadre controlling authority of the Central Service may post the officer to the station or if there is no post in that station, to the State where the other spouse belonging to the All India service is posted.
(iii) Where the spouses belong to the same Central Service:
- The Cadre controlling authority may post the spouses to the same station.
(iv) Where the spouse belongs to one Central Service and the other spouse belongs to another Central Service:-
- The spouse with the longer service at a station may apply to his/her appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station to the nearest station where the post exists. In case that authority, after consideration of the request, is not in a position to accede to the request, on the basis of non-availability of vacant post, the spouse with lesser service may apply to the appropriate cadre authority accordingly, and that authority will consider such requests for posting the said officer to the station or if there is no post in that station to the nearest station where the post exists.
(v) Where one spouse belongs to an All India Service and the other spouse belongs to a Public Sector Undertaking:
- The spouse employed under the Public Sector Undertaking may apply to the competent authority and said authority may post the said officer to the station, or if there is no post under the PSU in that station, to the State where the other spouse is posted.
(vi) Where one spouse belongs to a Central Service and the other spouse belongs to a PSU:-
- The spouse employed under the PSU may apply to the competent authority and the said authority may post the officer to the station or if there is no post under the PSU in that station, to the station nearest to the station where the other spouse is posted. If, however, the request cannot be granted because the PSU has no post in the said station, then the spouse belonging to the Central Service may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station, to the station nearest to the station where the spouse employed under PSU is posted.
(vii) Where one spouse is employed under the Central Govt. and the other spouse is employed under the State Government:-
The spouse employed under the Central Govt. may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted.
The husband & wife, if working in the same Department and if the required level of post is available, should invariably be posted together in order to enable them to lead a normal family life and look after the welfare of their children especially till the children attain 18 years of age. This will not apply on appointment under the central Staffing Scheme. Where only wife is a Govt. servant, the above concessions would be applicable to the Govt. servant.
5. Complaints are sometimes received that even if posts are available in the station of posting of the spouse, the administrative authorities do not accommodate the employees citing administrative reasons. In all such cases, the cadre controlling authority should strive to post the employee at the station of the spouse and in case of inability to do so, specific reasons, therefore, may be communicated to the employee. 15.3 It is noticed from the above guidelines that husband and wife are mandatorily to be posted to the same Station/State/nearest station if they are working in the same Department or if they belong to the same Central Service or to the Central Services, and that too provided posts are available at the station of posting at the appropriate level. Even in such cases, the guidelines (Para 13 above) envision cases where it may not be administratively possible to accommodate them, and in such cases it is provided that specific reasons need to be given. Of course, maximum efforts are required to be made to post the employee and the spouse at the same station where administratively possible to do so but this may not be possible in all cases. The cases of the applicants in OA Nos.3160, 3332, 3164, 3197 and 3163 of 2010 do not fall, as pointed out by the respondents, in the category where they must be mandatorily posted together, as they do not belong to a Central Service(s) or the same Department. Therefore, the contention that there has been infringement of the guidelines contained in DoPT OM dated 30.09.2009 is not tenable.
15.4 It has also been contended by the learned counsel for the applicants that the observations (Para 21) of the Division Bench of this Tribunal in OA No.1936/2010 (referred to in para 3 above) had clearly directed that transfer orders in the case of officers posted out during the mid academic session should, on request in this regard being made, be deferred till the end of the academic session so that the education of the child does not suffer. It has also been submitted that the Honble Supreme Court in Director of School Education v. O.Karuppa Thevan, (1994) Supp.2 SCC 666 had also observed that transfers during mid academic session should not be made. It is also contended that the respondents should take into account the problems faced by the employees and their children due to transfer in mid academic session and as model employers defer the cases of transfer of all employees who have school going children till the end of the academic session. It has also been argued that the provision of exempting only employees whose children are studying in Class-XII is irrational. The officers whose children are studying in Class-XI have an equally strong case for deferment of the transfer, and officers whose children in lower classes in a way have a stronger case, as parental supervision in their cases is more important than in grown up children. Although, these arguments deserve consideration, it would be pertinent to mention that these problems would be common to the majority of the cadre and if all transfers were to be deferred till the end of the academic session, even where administrative requirements do not permit such deferment, it may dislocate the entire working programme of the Department which, as already mentioned earlier, has implications of security and national importance. Thus, while the fact that an officer has children studying in school and that the academic session has already started, must be taken into account, this has to be weighed against public interest involved in each transfer and necessarily public interest would take precedence. In this connection, it is also noted that this was also the view taken by the Honble Apex Court in Director of School Education (supra) - which has been relied on by the counsel for the applicants in which it observed as under:
2. The tribunal has erred in law in holding that the respondent employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration. However, the learned counsel for the respondent, contended that in view of the fact that respondent's children are studying in school, the transfer should not have been effected during mid-academic term. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. . (Emphasis supplied) Thus, the transfers in such cases can be postponed till the end of the academic session provided the exigencies of the service are not urgent , but in the cases in these OAs, the respondents have stated that transfers have been made only in the exigencies of service and in public interest in view of the acute shortages in the Eastern and Western Regions and also in view of the urgency and importance of several works relating to border fencing, flood lighting, etc. Further, what constitutes public interest and exigencies of service, would have to be decided by the administrative authorities, who are in possession of the full facts and the larger picture, and not by this Tribunal. Keeping this larger picture in mind, the respondents had provided for consideration of exemption in case of officers whose children were studying in XII. It would not be possible for this tribunal to interfere in their decision. It may also to be mentioned in this connection that in para 21 of this Tribunals order in OA No.1936/2010, this Tribunal had not given any directions to defer the transfers till the academic session was over. It only directed that these factors should be taken into account by the respondents while deciding the representations against the transfers.
15.5 The next category of cases relate to cases of applicants whose dependants have medical problems. In this connection with these cases, the learned counsel submitted that although requests made on medical grounds were supported by certificates from the hospital/medical authorities and action for exemption should have been taken on the strength of these certificates and, therefore, rejection of these representations by the respondents can only be deemed to be arbitrary as they do not have any expertise in medical matters and are not in a position to state that these cases are not serious and not covered by the phrase `terminal illness which has not been defined. It is, therefore, contended that rejection of these requests also constitutes an infraction of the guidelines. In this connection, para 3 of the policy with regard to the exemption of cases on medical grounds, at the cost of repetition, is reproduced below:
3. The AEs/their family as per their service records, who are suffering from terminal illness shall be considered for exemption from inter regional transfer on purely medical grounds on submission of such medical certificate from any competent Government Hospital or Hospital approved by CGHS. Similarly AEs having their children mentally retarded/spastic needing special schools for their education/training shall normally be allowed retention in the region on request and on submission of medical certificate from any competent Government Hospital or Hospital approved by CGHS.
From the above, it is noticed that only those cases in which the medical certificate from a Govt./CGHS approved hospital certifies them to be cases of terminal illness or mentally retarded/spastic needing special schools, have been provided exemption under the policy, and none of the cases in the OAs appear to be of this type on the basis of the details given. Thus, it cannot be accepted that there has been infringement of the policy in these cases. In the event of any of the medical cases being of the above categories, the applicants concerned may furnish the requisite certificates to the respondents, who would then be duty bound to exempt the same. In other cases, though they may be difficult cases, all relevant factors would need to be taken into account, but exemption of these cases is possible only if the exigencies of service permit deferment of such cases. The decision would, however, again be that of the administrative authorities.
15.6 Some applicants have said that their transfers are against the policy as para 2.7 of the guidelines provides that AEs, who have completed 50 years of age shall normally not be posted to a hard area or out of the region and have been exempted from transfer in terms of the guidelines/policy.
A review of the cases mentioned in the table, however, shows that none of them had attained the age of 50 years on the cut off date of 01.05.2010 as prescribed in Corrigendum dated 27.04.2010. The learned counsel for the applicants in relevant OAs argued that the cut off date cannot be fixed arbitrarily and should be taken as the date of transfer. This is clearly not tenable in view of the guidelines as amended by OM dated 27.04.2010. The Government has every right to fix a cut off date as a policy decision, provided the same is not irrational or fixed with malafide intention [See: State of Orissa & Ors. v. Niranjan Nayak & Anr., 1997 (5) JT 374].
16. The learned counsel have also alleged that there has been discriminatory treatment given to their cases as in the case of several AEs, transfers have been deferred on educational/medical grounds though their problems of education of children/medical treatment of dependants are more or less the same. It is for the respondents to take a decision in each case based on the facts and circumstances of that case as well as relevant factors such as the urgency of the need to fill up the post at the new place, the number of cases involved and the administrative impact of deferment of the transfers, the urgency of the ongoing work at the new place and at the old place, etc. The assessment in this regard would necessarily have to be made by the administrative authorities concerned and it is neither possible nor desirable for this Tribunal to try and assess the implications of deferment. Further, the respondents have been given the authority in terms of para 4 of the guidelines dated 01.04.2010 to decide individual cases in relaxation of the guidelines keeping in view exigencies of public service and administrative requirements. In the case of any shockingly discriminatory treatment in this regard, the individual concerned should first take up the matter with higher authorities in the respondents-Department at the level of Secretary of the Ministry instead of rushing to the Tribunal. In any case, the deferment of the transfer of a person less deserving or similarly placed would not confer any right on the applicant to have his transfer also deferred, and at best may warrant a review by the respondents of the deferment given to the other officer.
17. It has also been contended by the learned counsel for the applicants [ground (e)] that mere use of the word `public interest does not establish that public interest is actually involved, and that the public interest would have to be shown to be involved. It is also argued that the very fact that in most OAs, filed against their transfers, the Tribunal issued notice and directed that the status quo be maintained would itself suggest that the Tribunal was prima-facie not convinced that any public interest or administrative exigency was involved. Also as the transfer orders were issued on 23.07.2010 but in many cases have yet to be implemented and the work is still being `managed shows that there is no extreme administrative exigency involved and that the transfers can be deferred for another 3 to 4 months to enable the academic session of the children to be over. However, these arguments of the learned counsel are clearly specious and not acceptable. The transfer orders have not been implemented as the applicants had obtained stay in many cases and this in no way can be construed to mean that no administrative exigencies of service exist. In the cases on hand, the acute shortages of AEs in the Eastern/Western Region itself establishes that public interest is involved. Whether exigencies of service exist in a case or not is an issue that lies exclusively within the domain of the executive to decide and once they have decided to transfer their employees in public interest, as stated in the transfer order, and the fact of there being administrative exigencies in these cases has been reiterated by the respondents in their counter affidavit with reasons also being given, this Tribunal cannot interfere in this regard. The Honble Supreme Court has held on several occasions that Courts or Tribunals are not appellate forums to decide on transfers on administrative grounds. In Union of India & Others v. H.N.Kritania (1989(11) ATC 269 = (1989) 3 SCC 445, the Honble Supreme Court observed as under:
5. After hearing learned counsel 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 respondents transfer Again in State of M.P. Anr. v. S.S.Kourav & Others (1995) 3 SCC 270 observed that .in this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the Court.
18. The last ground raised is that the Hard Case Committee has not given proper consideration to the representations of the applicants and has, without application of mind, by just recording one word `Regret, rejected the representations of the applicants which constitute the violation of principles of natural justice. In this connection, the learned counsel for the applicant has invited our attention to the Constitutional Bench Judgement of the Honble Supreme Court in S.N.Mukherjee v. Union of India & Others (1990 (5) SLR 8) in which it was held that . except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. The counsel for the respondents would contend that the decisions rejecting the representations in these cases were not judicial/quasi-judicial decisions. It has also been explained by the respondents that the Hard Case Committee was constituted in the department to consider the representations of the Assistant Engineers who have been transferred by the Inter Regional Transfer Committee as per the guidelines in the matter. The Hard Case Committee in its meeting held on 01.09.2010 considered all the representation and recommended for retention only those AEs who were eligible for retention strictly as per guidelines dated 1.04.2010, 27.04.2010 and 20.08.2010 and cases which it did not find eligible as per the guidelines were rejected. The Assessment Sheet prepared by the Committee would show that the grounds given in the representations were listed out in detail and examined strictly as per the guidelines and against those found not eligible, the word `Regret was written. It is reiterated that the cases were decided in a very transparent manner, after taking into account the factual position of each case and keeping administrative requirements and the guidelines in view. And, that keeping in view the large number of representations received individual replies were not given, and the word `Regret is to be read in this context and would mean `Regret, as not covered under the guidelines and, if necessary, the order dated 13.09.2010 can be supplemented by stating so. As already discussed in para 15 above, the cases in these OAs, as mentioned in the table, cannot be said to be violative of the guidelines and no case for interference by this Tribunal is made out as the transfers are also stated to be in public interest. However, it would have been useful for the respondents to have stated `Regret as request not covered under the guidelines, in place of the word `Regret. This may be done even now by publishing a supplementary list giving reasons for the rejection of the requests. However, this would not be construed as giving any fresh cause of action for deferment of the transfers or for delaying the relief of the officials concerned, which is to be decided (if not already ordered) as per administrative requirements.
19. In view of the above discussions, it must be held that there is no legal infirmity or illegality in the orders challenged in these OAs. Keeping this and the well settled position of law in mind that transfer orders issued on administrative grounds/public interest cannot be interfered with except if they are issued by an incompetent authority, which is not the case here, or if they are established to be on clear malafides, which again is not the case here, the OAs under consideration shall stand dismissed. Interim orders passed in the above OAs also stand vacated. No costs.
(Shailendra Pandey) Member (A) /nsnrsp/