Central Administrative Tribunal - Delhi
Satya Prakash Yadav vs Revenue on 12 October, 2023
1
OA 1050/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A./1050/2023
M.A./1303/2023
Order reserved on : 23.08.2023
Order pronounced on: 12.10.2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
Satya Prakash Yadav
S/o Shri Jairam Singh Yadav,
R/o Village - Islamabad
Post - Chak Abdul Sattar,
District - Ghazipur,
U.P. Pin-233002 ...Applicant
(Through Shri B.K. Singh, Advocate)
Versus
1. Union of India
Revenue Secretary, Ministry of Finance,
Department of Revenue, North Block,
New Delhi-110001
2. The Director (RL)
Central Revenues Control Laboratory
Hillside Road, Pusa Campus
New Delhi-110012
3. Joint Director (NFSG)
Central Revenues Control Laboratory
Hillside Road, Pusa Campus
New Delhi-110012
4. The Chairman
Central Board of Indirect Tax & Custom
North Block,
New Delhi-110001 ... Respondents
(Through Shri Adish Jain, Advocate)
2
OA 1050/2023
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) The present OA has been filed by the applicant against the order dated 6.04.2023 vide which the applicant has been transferred from Kolkata office to their Chennai office. The applicant has alleged that the said transfer is not only punitive, illegal and arbitrary in nature but also against the provisions of Articles 14 and 16 of the Constitution of India.
2. The factual matrix of the present case is as follows:
2.1 The respondents issued an advertisement dated 26.01.2008 for direct recruitment of 39 Chemical Assistant Gr. II. The advertisement mentioned the qualification and other requirements as under:
"Essential Qualifications: M.Sc. in Chemistry of an Indian University or its equivalent.
Desirable: One year experience of chemical analysis."
2.2 Subsequently the respondents realised that the Recruitment Rules, particularly the Central Revenues Subordinate Chemical Services (Group `C' & `D' Posts) Recruitment Rules, 2004 notified vide GSR 93 dated 15.03.2004, mentioned both the qualifications as essential qualifications. Realising the mistake, the respondents rectified the same and notified that both the above 3 OA 1050/2023 qualifications were essential qualifications, vide corrigendum dated 8.03.2008. In pursuance with the said advertisement, 26 candidates including the present applicant were offered appointment vide offer letter dated 19.12.2008. The present applicant joined with the respondents on 31.12.2008. In the said appointment letter, it was stated that the probation period of the applicant will be of 2 years from the date of appointment, which may be extended at the discretion of the competent authority.
2.3 In 2009, Directorate General of Vigilance, Customs and Central Excise received some complaints regarding alleged irregularities in the said appointments and vigilance investigations were accordingly initiated. As per vigilance investigations, the work experience certificates of certain appointees were forged and in several other cases a number of anomalies were detected including in the case of Sh. Satya Prakash Yadav. Pursuant to vigilance investigations, the services of 9 newly recruited candidates were either terminated or they were not allowed to join. Regular departmental action was also initiated against 4 officers of CRCL, who were involved in scrutiny/screening of applications etc. 2.4 In view of the above, the respondents extended the probation period of the present applicant on administrative grounds vide memorandum dated 26.09.2012, until further 4 OA 1050/2023 orders. Vigilance inquiry continued regarding the experience of the present applicant. On the basis of the report of the Director General of Vigilance, the matter was taken up with the Ministry of Finance, Department of Revenue, Department of Personnel & Training and Department of Legal Affairs. With the advice of the Ministry of Finance, the respondents applied Rule 5 (1) of the Central Civil Services (Temporary Service) Rules, 1965. The respondents decided to issue a notice under the said rules disclosing the grounds for removal from service of the present applicant. After considering the submissions made by the applicant and giving personal hearing to him, the respondents terminated the services of the applicant vide order dated 18.07.2018. The applicant filed OA 2550/2018 before this Tribunal against the said termination order dated 12.06.2018. While the proceedings in the said OA were going on, the respondents terminated the applicant from service with effect from 24.07.2018 vide order dated 18.07.2018 in terms of Rule 5 (1) of CCS (Temporary Service) Rules, 1965. The applicant challenged the said termination before the Hon'ble High Court of Delhi. Vide its order dated 21.10.2019, the Hon'ble High Court directed the respondents to reinstate the applicant in service. In terms of the directions of the High Court, the respondents vide order dated 10.12.2019 5 OA 1050/2023 reinstated the applicant in service and he was posted back at Customs House Laboratory, Kolkata.
2.5 The respondents issued a list of officials who are due for transfer vide their circular dated 16.03.2023 (Annexure R-3). The applicant was one of the officials who were shown as due for transfer as he had been shown to have completed the tenure of five years at the existing place of posting. As per para 2 (i) of the transfer policy of the respondents issued on 8.02.2018, an officer shall not be allowed a tenure of more than five years at one Station. Similarly, para 2 (iv) says that officers shall usually not be allowed a cumulative stay (with or without break) of more than 15 years at one Station.
2.6 The applicant submitted representation against the circular dated 16.03.2023. In his representation, the applicant has stated that he has not completed continuous tenure of five years since his date of reinstatement i.e. 10.12.2019. Moreover, in view of medical condition of his wife, he has requested the respondents not to transfer him out of Kolkata. The respondents vide order dated 6.04.2023, transferred the applicant to Customs House Laboratory, Tuticorin. Being aggrieved, the applicant has filed the present OA seeking the following relief:
"8.(a) Quash and set aside the order of transfer issued vide Establishment Order No. 08/2023 dated 06.04.2023 vide C.No. 21-Estt./"B"/2021 dated 6 OA 1050/2023 06.04.2023, passed by Mr. V. Suresh, Joint Director (NFSG), Central Revenues Control Laboratory, New Delhi.
(b) direct the respondent to retain the applicant at Custom House Laboratory at Kolkata or in alternative transfer the applicant to Central Revenue Control Laboratory at New Delhi or any place where proper medical facilities and direct connectivity from Delhi is available.
(c) Pass any other order(s) or direction(s) as this Hon'ble Tribunal may deem fit and proper in the facts of this case."
3. Notices were issued to the respondents and they have filed their counter reply, to which the applicant has also filed rejoinder.
4. The applicant in his grounds buttressed by the learned counsel for the applicant, during the arguments, has tendered the following grounds in support of relief sought by him.
4.1 The applicant has alleged that transfer order dated 6.04.2023 qua him is punitive in nature. He has been transferred out of Kolkata because he has challenged his illegal termination from service vide order dated 12.06.2018. The said termination was subsequently quashed by the Hon'ble High Court of Delhi and respondents were forced to reinstate him in service. This has led the respondents to be annoyed against the applicant and in pursuance to that, they have transferred him out of Kolkata to Tuticorin. The transfer is punitive in nature because the respondents have ignored the fact that he has not completed five years 7 OA 1050/2023 continuously at the present place of posting at Kolkata since his date of reinstatement in pursuance to the order of Hon'ble High Court of Delhi. From the date of his reinstatement till the date of transfer, the applicant has completed only 3-1/2 years at the present place of posting. It is stated that he has been picked up ignoring his tenure of transfer at Kolkata and transferred at a far off place which is about 1800 kms. from his place of posting and also ignoring the health condition of his wife. The transfer can be termed as punitive one because the respondents were forced to reinstate him in pursuance of the order of the Delhi High Court.
4.2 Learned counsel for the applicant averred that the transfer order dated 6.04.2023 is not only punitive but also illegal in the sense that it is violative of the transfer policy, particularly clause 2 (i) of the transfer policy dated 8.02.2018 as he has completed only 3-1/2 years in the present place of posting against the normal tenure of five 5 years and also clause 2 (iv) of the policy as he has not completed cumulative stay of 15 years at Kolkata. In that view of the matter, the transfer is against the policy of the respondents and accordingly it is illegal. 4.3 Learned counsel for the applicant stated that the transfer order smacks of arbitrariness and malafide on the part of the respondents. Arbitrariness of the respondents is 8 OA 1050/2023 evident from the fact that despite the applicant made a representation stating that his wife is suffering from epilepsy which requires continuous medical attention from known doctors, the respondents have ignored his plea and transferred him to a place which is more than 1800 kms from Kolkata. Moreover, the respondents knew that the applicant is pursuing a litigation at Delhi. By transferring him to Tuticorin, they knew that the applicant will not be able to pursue his litigation against the respondents smoothly. The applicant in his OA has stated that in a year there are 5-6 hearings of his case at Delhi and on transfer, he will require 3-4 days for each hearing. This involves both exhaustion of his leave as well as financial outgo to pursue his litigation at Delhi because of the long and frequent travel to defend his case.
4.4 Learned counsel for the applicant averred that the transfer order is also discriminatory in the sense that the officials who have completed more period than the applicant have been retained at Kolkata and the applicant has been singled out to be transferred.
4.5 Learned counsel for the applicant cited the ruling of the Hon'ble Apex Court in MS. X Vs. Registrar General, High Court of Madhya Pradesh and another, Writ Petition (Civil) No.1137/2018, wherein the Apex Court has held that 9 OA 1050/2023 when the transfer policy provides for making representation, the petitioner had a legitimate expectation that the said representation would be considered in accordance with it. Consideration of representation is not a formality. While deciding the representation of the petitioner, the respondents are supposed to take a view on the relevant factors mentioned in the representation by the petitioner. It is held that non-consideration of the relevant material and consideration of the extraneous material would come into the realm of irrationality. Such action will attract violation of Article 14 of the Constitution of India. The Apex Court held as follows:
"64. It could be seen that as per Clause 9 of the Transfer Policy, the petitioner is entitled to make a representation to the MP High Court for retaining her at the same posting, and for posting at alternate places of her choice in view of Clause 10 of the Transfer Policy. When the Transfer Policy provides for making a representation, the petitioner had a legitimate 30 expectation that the said representation would be considered in accordance with it. Consideration of representation is not a formality. We are not saying for a moment that prior to rejection of the petitioner's representations, she should have been heard or that the reasons ought to have been communicated for such rejection. However, the least that is expected is that the representation is considered in the right earnest. When the Transfer Policy provides for a ground on which the representation is to be made, then the least that is expected is that the matter should be considered in reference to the provisions made in the Transfer Policy. In her first representation, the petitioner had specifically contended that she should be retained at Gwalior on the ground of her daughter's education. There was a legitimate expectation that the respondent No.1 ought to have considered as to whether her case fits in Clause 9(a) of the Transfer Policy. The petitioner was 10 OA 1050/2023 entitled for consideration of her case on the ground that her daughter was to appear in the final year of Board Examination. The petitioner had specifically stated that her daughter was also undergoing FIITJEE coaching. She had further clearly stated that after her daughter completes the academic year, she was willing to abide by the transfer order. However, in the noting of the then RG, it was mentioned that "it is gathered that adequate educational facilities including CBSE School are available at Sidhi". It is further stated that the Transfer Committee, in its meeting held on 7th July 2014, had recommended the transfer of the petitioner on administrative grounds after considering the request of the then D & SJ, Gwalior with regard to conduct and behaviour of the petitioner. On the said proposal, the then Judge on the Transfer Committee had directed the representation of the petitioner to be rejected. As such, it could be seen that the respondent No. 1 had not at all taken into consideration as to whether the petitioner's case was required to be considered under Clause 9(a) of the Transfer Policy or not.
xxxx xxxx xxxx xxxx
66. It could thus be seen that the respondent No.1 has failed to take into consideration the factors, which were required to be considered, while deciding the representation of the petitioner and had taken into consideration the factors which were not relevant. The then Judge on the Transfer Committee, in his deposition before the JIC, had clearly admitted that he had not gone into the annexures, which were attached with the representation of the petitioner. Non-consideration of the relevant material and consideration of the extraneous material would come into the realm of irrationality. An action which is arbitrary, irrational and unreasonable would be hit by Article 14 of the Constitution of India. We, therefore, find that the rejection of the representations of the petitioner dated 9th July 2014 and 11th July 2014, would also not stand the scrutiny of law."
4.6 The learned counsel for the applicant has states that the applicant in the instant case has given his family and medical condition, particularly the fact that his wife is suffering from epilepsy but this fact has been ignored by the 11 OA 1050/2023 respondents and hence applying the ratio of the aforesaid judgment of the Apex Court in MS. X (supra), it can be said that the action of the respondents is arbitrary and smacks of malafide. Learned counsel further cited the judgment of the Apex Court in Somesh Tiwari Vs. Union of India, Civil Appeal No.7308/2008, wherein it was held as follows:
"19. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law.
20. 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 of 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."
4.7 Learned counsel for the applicant averred that as the applicant has not completed five years at the present place of posting, it can be safely said that the respondents have transferred him on extraneous grounds. Applying the ratio of the judgment in Somesh Tiwari (supra), he stated that the transfer of the applicant to a far off place at Tuticorin points out the malafide intention of the respondents. 12 OA 1050/2023
5. Per contra, the learned counsel for the respondents relied on the counter affidavit filed by the respondents, stating that the transfer policy of February 2018 mentions that an officer shall not be allowed a tenure of more than five years at one Station. The applicant has been reinstated in service by an order dated 10.12.2019. Though he remained out of service from 24.07.2018 to 10.12.2019, due to reinstatement in service the said period was to be considered as continuous period at the present place of posting. The applicant was posted at Kolkata on 19.10.2015 and by 6.04.2023 when the impugned transfer order was issued, he has completed 7 years and 6 months. Even if the period for which he remained terminated i.e. 24.07.2018 to 10.12.2019 for a period of 1 year 5 months is deducted from the aforementioned period of 7 years and 6 months, still his period of stay at Kolkata was more than five years. Considering all these factors, it cannot be said that the applicant did not stay for more than five years at Kolkata. 5.1 Learned counsel for the respondents states that because the applicant had been reinstated, the period during which he remained out of service has to be considered as continuous stay at Kolkata from 19.10.2015. He stated that all the averments made by the learned counsel for the applicant during arguments and in pleadings are based on the premise that the applicant had not 13 OA 1050/2023 completed continuous period of stay of five years at Kolkata. As the aforementioned analysis shows that the applicant stayed at Kolkata for more than five years, the entire grounds taken by the applicant fall flat.
5.2 The learned counsel for the respondents further stated that the judgments quoted by the learned counsel for the applicant in MS. X and Somesh Tiwari (supra) are not applicable in the present case in view of the fact that the facts and circumstances in those cases are completely different. In Somesh Tiwari case (supra), the Apex Court held that the relevant facts mentioned in representation of the petitioner were not considered by the respondents and in addition, the respondents considered extraneous factors for the transfer of the petitioner. However, in the instant case, the respondents have considered the fact that the applicant has completed continuous stay of five years at Kolkata and it was also considered that the place like Tuticorin which has international port and it has all the medical facilities for treatment of epilepsy. Hence, the medical ground of wife is not a significant constraint for the applicant to go and serve at Tuticorin. He further averred that the allegation that because the applicant entered into litigation, the respondents were biased against him is not true because his transfer was due as per transfer policy of the respondents. Learned counsel for the respondents also averred that the 14 OA 1050/2023 applicant has failed to substantiate that those who have longer period of stay at Kolkata have not been transferred and he has been singled out. No such documentary evidence has been provided by the applicant in the OA. Hence, he cannot say that he has been discriminated against. The argument that the applicant has old age parents and his children are studying in Kendriya Vidyalaya is not tenable as place like Tuticorin has adequate educational and medical facilities for his children and family.
5.3 Learned counsel for the respondents argued that it is not compulsory for the applicant to remain present in court during hearing of his case as the litigants are generally represented by their counsels. He stated that the applicant has joined a transferable government service and he has no legal right to remain posted at a particular place of posting. He cited the following judgments in support of his arguments:
(i) Mrs. Shilpi Bose & ors. Vs. State of Bihar, AIR 1991 SC 532
(ii) UOI Vs. S.L. Abbas, (1993) 4 SCC 357
(iii) State of U.P. & ors Vs. Goverdhan Lal, 2004 (3) SLJ 244 SC In Shilpi Bose (supra), the Hon'ble Apex Court held:
"4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and 15 OA 1050/2023 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."
5.4 Learned counsel for the respondents further averred that the applicant has not joined at the new place of posting. He referred to the judgment of Hon'ble Apex Court in S.C. Saxena Vs. Union of India and ors., 2006 SCC (L&S) 1890, where it has been held that a government servant is supposed to join his new place of posting and discharge duties. Thereafter, if he feels aggrieved by the action of the authorities due to transfer order, he may represent to the respondents or come to the Tribunal or Judicial Courts for redressal of his grievances. Learned counsel stated that the applicant has not joined at Tuticorin where he has been transferred and he preferred to remain at Kolkata without rendering any service to the respondents. This is against the spirit of government service as well as violation of settled law as laid down in S.C. Saxena (supra). In view of the above, 16 OA 1050/2023 learned counsel for the respondents stated that the present OA lacks merit and deserves to be dismissed.
6. I have gone through the records of the case thoroughly and heard the arguments carefully. It has been held in several judgments by the Apex court that transferring an employee and reassigning duties and responsibilities at the same place of posting or at a new location is the prerogative of the competent authorities.
6.1 Transfers, deployments, redeployment or placement of organizational human resources are essential components of Human Resources Management Strategies of any organization, be it in private sector or in the Government or Public sector. These strategies are aimed at realizing the organizational goals for furtherance of mission objectives of the organization. For a government department or autonomous organization or Public Sector Undertaking, Public Interest in the form of discharging the assigned responsibilities to these entities by the Constitution, statutory provisions subordinate legislation or delegated competencies is the charter for mission objectives. 6.2 Deployment or transfer is also the process of providing sub-entities and subordinate offices with the required human resources and support they need to be successful in their roles. This is akin to allocation of organizational 17 OA 1050/2023 resources to achieve organizational goals. Modern governments and organizations begin the process prior to adopting transfers as a redeployment tool by assessing the organization's current and future human resources needs. Following these assessments, the competent authority makes decisions how best to deploy the human resources to meet the identified needs. These include the type of human resources required, the number of human resources required, the location of the human resources, and the timing of the deployment. In Government, generally this task is assigned to an Administrative/Establishment/ Placement/Transfer Committee.
6.3 Effective utilization of service of an employee is in the very core of administrative exigency. It is the prerogative of the employer to transfer his employee at any point of time and to any work station based on administrative exigencies. Deployment of staff in the form of transfers enables realignment of human resources to new work assignments or job responsibilities to meet organizational needs or to provide opportunities to the employees gain skills and experience. Such activities are aimed at supporting employee's engagement, employee motivation and increased productivity and leadership development across all level of employees within the organization.
18OA 1050/2023 6.4 The position that the competent administrative authorities have a prerogative to redeploy or transfer an employee for better utilization of human resources of the organization for furtherance of organizational mission objectives have been well settles in several case laws by the Apex court. The employee in a transferable job does not have any vested right to remain at a particular place or post. The counsel for the respodents has cited the judgments in Gujrat electricity Board vs Atmaram Sungomal Poshani (CA No 3561 0f 1986 decided on 31.3.1989 ). This judgment of the Apex court has been reiterated in a series of judgments by the Apex Court.
6.5 The Apex court in Union of India vs S.L. Abbas, CA no 2348 of 1993 decided on 27.4.1993 has again reiterated similar position 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."
"He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force."
6.6. Again in Public Services Tribunal Bar Vs State Of U.P. & Another on 29 January, 2003 [Appeal (civil) 3946 of 2001 Date of Judgment: 29/01/2003] it was held :- 19 OA 1050/2023
"Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts. This Court consistently has been taken a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner.
From the above quoted decisions, it is evident that this Court has consistently been of the view that by way of interim order the order of suspension, termination, dismissal and transfer etc. should not be stayed during the pendency of the proceedings in the Court."
The transfer policies are in the form of executive guidelines. And hence, these have no statutory force. The aforementioned case laws affirm the prerogative of the government to transfer its employees to ant place of posting for administrative exigencies. The transfer guidelines are subservient to public interest. 6.7 In State of UP & Ors Vs Govardhan Lal, CA 408 of 2004 decided 23.3. 2004, the Apex Court held that:
"6.Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."
"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."20 OA 1050/2023
6.8 Here, even the transgression of the transfer guidelines has not been allowed to be interfered by the court. This has been further reiterated by the Apex Court in Airport Authority of India Vs Rajeev Ratan Pandey and Ors CA No. 5550 of 2009. Para 10 of the judgment states that even if the transfer order is violative of transfer policy, the court should not interfere. It has been held that:
"In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut"
6.9 Similar view has been echoed in Rajendra Singh & Ors Vs State of Uttar Pradesh & Ors, CA No.4975 of 2009 decided on 31.7.2009.
6.10 When the courts interfere in the administrative functioning of a department by entertaining the petitions against transfer orders, it creates administrative complexities for the authorities. The Apex court in State of Haryana & Ors Vs Kashmir Singh & Ors on 6 October, 2010 [CIVIL APPEAL NOS. 8690-8701 OF 2010] has clearly advised the courts /tribunals to desist from interfering in those matters. It has been held as under:-
"16. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its 21 OA 1050/2023 police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.
18. For the foregoing reasons, these appeals succeed and are hereby allowed. The impugned judgment of the High court is set aside and the writ petitions before the High Court stand dismissed. No costs."
6.11 The view that the transfer guidelines /circulars may not in itself confer a vested right which can be enforceable by a writ of mandamus was reiterated and highlighted by the Apex Court in Punjab and Sind Bank & Ors. vs. Durgesh Kuwar, 2020 SCC OnLine SC 774. It was held that:
"17. ..........An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus."
6.12 Even the Supreme Court in Union of India and Others Vs. Ganesh Dass Singh, Civil Appeal No. 1358 of 1994, decided on 25 February 1994 held that there is hardly any scope of judicial review of administrative action in the form of transfer orders. It has been held as under:-
"4. In our opinion, in the present case there is no material to justify interference with the mere order of transfer made by the competent authority for administrative reasons particularly when the Tribunal had rejected the respondent's assertion that the transfer had been made on account of 22 OA 1050/2023 certain complaints he had made regarding the functioning of the Dept. We have no doubt that the view taken by the Tribunal is not justified on the facts found by it. It is also not within the scope of permissible judicial review in such matters relating to mere transfer made by the competent authority for administrative reasons."
6.13 Personal hardships, family circumstances, education of children, health issues of self and dependant family members are matters for consideration for the competent authority but not for the courts/ tribunals to decide the matter as an Appellate Authority. The decision of the Administrative Authorities after considering these personal difficulties is considered final. The Apex court in State of MP and Ors Vs S.S. Kourav & Ors, [CA No. 1285 of 1995 decided on 19.1.1995] held that:
"It is further contended that in an unfortunate situation the respondent's wife committed suicide leaving three children and he would suffer extreme hardship if he has to work in the tribal area. This court cannot go into that question of relative hardship. It would be for the administration to consider the facts of the given case and mitigate the real hardship in the interest of good and efficient administration. If there is any such hardship, it would be open to make a representation to the government and it is for the government to consider and take appropriate decision in that behalf."
6.14 Sometimes, employees or employee groups assail the transfer policy or suspension of any particular clause or clauses of the transfer policy as it may create difficulties for individual or group of employees. As the transfer policies/circulars are only guidelines for the administrative Authorities, these cannot be enforceable by the courts 23 OA 1050/2023 [Punjab and Sind Bank & Ors. Vs. Durgesh Kuwar, 2020 (supra)]. Whether, the transfer policy or suspension of particular clause of transfer policy is good or bad, it is for the administrative authorities to consider the grievances of the employees in respect of a particular issue regarding transfer policy. In Kumari Shrilekha Vidyarthi and others Vs Sate of UP and Others [1991 AIR 537, 1990 SCR Supl. (1) 625], the Apex Court held that:
"The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case.
As indicated by Diplock, L.J., in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935] the power of judicial review is limited to the grounds of illegality, irrationality and procedural impropriety."
6.15 The aforementioned judgments of the Apex Court have given upper hand to the administrative authorities or the Government in matters of Transfers. However, transfers may affect negatively the level of productivity, motivation, innovation quality, relations, and participation and communication patterns among other core human resources activities. When handled well and in accordance with the employees' circumstances, deployment increase employee performance through increased innovation, creativity, quality, productivity, profitability, loyalty flexibility, 24 OA 1050/2023 efficiency, effectiveness, and low levels of discontents, dysfunctional conflicts. In other words, employee welfare is also in the interest of the organizations. The principles of effectiveness, efficiency and economy in matters of deployment of human resources are sought to be aligned with organizational mission goals.
6.16 While effecting redeployment through transfers, the organizations should also treat all such employees fairly and without any bias or malafide or discrimination. Moreover, a model employer like the government also treats its employees far more transparently and it is expected that the government ensures that there is no violation of Articles 14 and 16 Indian Constitution. Based on the twin objectives of satisfying organizational goals (public interest and better governance for delivery of public services) and employee welfare, growth and development, organizations including government departments formulate transfer /placement policies. These policies ensure transparency and also provide better opportunities to officers for excellence and more planned approach to cadre planning. Such transfer policies develop some sort of reasonable employee expectations to be treated fairly while effective redeployment through transfers. Similarly, the government departments also have reasonable expectations from its employees to cooperate in such 25 OA 1050/2023 deployment to achieve mission goals of departments and other entities.
6.17 Redeployment in the form of transfers inter alia should also satisfy the test of reasonable expectations of the employees to be treated fairly and such administrative action should not be based on malafide, bias and unreasonable factors. There are several judgments of the Apex court which have moderated the absolute power of the government/ administrative authorities in the matters of transfer. The earliest of this genre is the judgment of the Apex court in E.P. Royappa Vs State Of Tamil Nadu & Anr [ 1974 AIR 555, 1974 SCR (2) 348; Dated 23/11/1973]. The Apex court has held that:
"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 its employees. However, this power must be exercised honestly, bona fide 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 to mala fide and colorable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration that even administrative actions should be just and fair."26 OA 1050/2023
6.18 Subsequently, a series of judgments by the Apex court have reiterated and substantiated this view. These judgments are:-
(i) Food Corporation of India vs. M/s Kamdhenu Cattle Feed Industries: Civil Appeal No. 4731 of 1992.
(ii) Kumari Shrilekha Vidyarthi and others vs Sate of UP and Others [1991 AIR 537, 1990 SCR Supl. (1) 625]
(iii) Somesh Tiwari Vs. Union of India and Others:
(2009) 2 SCC 592
(iv) Shilpi Bose Vs State of Bihar AIR 1991 SC532
(v) National Hydroelectric Power Corporation Ltd Vs Shiv Bhagwan & Anr CA no. 1095-96 0f 2001 decided 11.9.2001
(vi) Mohd Masood Ahmad Vs State of UP & others CA 4360 of 2007 decided on 18.9.2007
(vii) E. P. Royappa Vs State Of Tamil Nadu &Anr on 23 November, 1973 Equivalent citations: 1974 AIR 555, 1974 SCR (2) 348
(viii) Varadha Rao Vs State Of Karnataka And Ors. on 26 August, 1986 Equivalent citations: AIR 1986 SC 1955,
(ix) Union Of India &Ors Vs H.N. Kirtania on 12 July, 1989; Equivalent citations: 1989 AIR 1774, Date Of Judgment12/07/1989
(x) Punjab and Sind Bank &Ors. Vs. Durgesh Kuwar, 2020 SCC Online SC 774, the Supreme Court summarized the principles applicable to transfer orders, as under:
(xi) Chief General Manager (Telecom) ... Vs Shri Rajendra Ch. Bhattacharjee ... on 18 January, 1995
(xii) Union Of India And Ors Vs Sri Janardhan Debanath And Anr on 13 February, 2004 Appeal (civil) 1010-1011 of 2004; Date Of Judgment: 13/02/2004
(xiii) Mrs X Vs Regisrar General , High Court of Madhya Pradesh &Anr, WP No 1137 of 2018, decided on 10.2.2022.27 OA 1050/2023
6.19 Earlier, Delhi High Court, based on the judgments in Shilpi Bose case (supra) and Gujarat Electricity Board Vs. Atmaram Sungomal Poshani, 1989 (2) SLR 684 (SC), has summarized the scope of judicial review in transfer matters under certain circumstances: It was held that a judicial review of an administrative action is of course permissible, but orders of transfer are interfered when:-
"(a) the transfer is malafide or arbitrary or perverse;
(b) when it adversely alters the service conditions in terms of rank, pay and emoluments;
(c) when guidelines laid down by the department are infringed;
(d) when it is frequently done and lastly;
(e) if there is a statutory infraction."
6.20 In the instant case, the applicant has relied on the transfer policy of the respondents. As per para 2 (i) of the transfer policy of 8.02.2018, an officer shall not be allowed a tenure of more than five years at one Station. Similarly, according to para 2 (iv), no official shall be allowed a cumulative stay (with or without break) of more than 15 years at one Station.
6.21 In the instant case, the learned counsel for the applicant averred that the applicant has not completed five years in the present tenure at Kolkata nor has he completed a cumulative period of 15 years at the same place. However, 28 OA 1050/2023 this has been effectively countered by the learned counsel for the respondents stating that as the applicant was reinstated in service and given all the service benefits, his tenure at the present place should include the period for which he remained terminated from service. Taking that into consideration, the period of the present tenure is more than five years.
6.22 The applicant was transferred from Chennai to Kolkata on 19.10.2015 and vide order dated 6.04.2023, he has been transferred from Kolkata to Tuticorin. I intend to agree with the learned counsel for the respondents that the applicant has more than five years' tenure at the present place of posting i.e. Kolkata. In view of this, there is no violation of the extant transfer policy of the respondents. The transfer order dated 6.04.2023 includes 19 officials and the present applicant was not singled out for transfer. In that view of the matter, the allegation that the applicant has been discriminated against, is not tenable.
6.23 The applicant has not yet joined at the transferred place. In view of the ratio laid in S.C. Saxena (supra), the government servant should first join at the transferred place and then represent regarding his personal difficulties because of the transfer, to the competent authority who can take an appropriate decision in that respect. Moreover, as it 29 OA 1050/2023 has been held in Shilpi Bose (supra) and Gujarat Electricity Board (supra), the judicial review in transfer matters is very limited and only in case the transfer is arbitrary or perverse or when it alters the service conditions of the transferred employee in terms of rank, pay and emoluments or if it violates the guidelines laid down by the department for transfer, the Courts can interfere. In the instant case, none of these conditions are attracted.
6.24 The Apex Court in series of judgments like Gujarat Electricity Board Vs Atmaram Sungomal Poshani (Supra), Union of India Vs S.L. Abbas (supra), Public Services Tribunal Bar Vs State Of U.P. & Another (supra), State of UP & Ors Vs Govardhan Lal (supra), Airport Authority of India Vs Rajeev Ratan Pandey and Ors (supra), Rajendra Singh & Ors Vs State of Uttar Pradesh & ors (Supra), State of Haryana & Ors Vs Kashmir Singh & Ors (supra), Punjab and Sind Bank & Ors. Vs. Durgesh Kuwar (supra), Union of India and Others Vs. Ganesh Dass Singh (supra), has given upper hand to the administrative authorities or the Government in matters of Transfers. In all those judgments, the Apex Court held that the Public Interest is paramount in such administrative exercises and there is very limited scope 30 OA 1050/2023 for judicial review in the matters of transfer. As it has been held in the other set of judgments cited in paragarph 6.18 above, unless there is malafide, bias, infringement of statutory provisions, lack of competency, non-application of mind, etc, the courts and tribunals should not interfere in the administrative decision in respect of transfers. In the instant case, as I have already discussed above, I do not find any such bias or non-application of mind in the present case.
7. In view of the above, the OA lacks merit and hence dismissed. There shall be no order as to costs.
Pending MA also stands disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /dkm//