Central Administrative Tribunal - Chandigarh
Bhagwant Kaur vs Union Of India Through Its Secretary on 16 February, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. No.060/00800/2016 Decided on: 16.02.2017 Coram: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) HONBLE MRS. RAJWANT SANDHU, MEMBER (A) Bhagwant Kaur, W/o Sh. Kulwant Singh, age 51 years, Physical Education Teacher, Jawahar Navodaya Vidyalaya, Chandigarh, R/o H. NO. 4-A, Jawahar Navodaya Vidyalaya Campus, Sector 25 West, Chandigarh.
.Applicant Argued by: Mr. Dinesh Kumar, Advocate Versus
1. Union of India through its Secretary, Ministry of Human Resource Development (Department of School Education and Literacy), New Delhi.
2. Navodaya Vidyalaya Samiti (An Autonomous Organization under Ministry of Human Resource Development, Department of School Education & Literacy), Govt. of India B-15, Institutional Area, Sector 62, Noida through its Commissioner.
3. Deputy Commissioner, Navodaya Vidyalaya Samiti, Regional Office, Bay No. 26-27, Sector 31-A, Chandigarh.
4. Principal, Jawahar Navodaya Vidyalaya, Sector 25 West, Chandigarh.
..Respondents Argued by: None for Resp. No. 1 Mr. D.R. Sharma, Advocate for Respondents No. 2 to 4 Order(Oral) BY HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
1. Applicant Bhagwant Kaur w/o Sh. Kulwant Singh, Physical Education Teacher (PET), Jawahar Navodaya Vidyalaya (JNV), Chandigarh, has preferred the instant Original Application (O.A.), challenging the impugned order dated 19.08.2016 (Annexure A-12) and orders dated 22/23.08.2016 Annexure (A-13 colly) whereby she was transferred/relieved from JNV Chandigarh and joined on 02.09.2016 in JNV Ferozepur, under protest.
2. The compendium of the facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy involved in the instant OA, and exposited from the record is that the applicant was appointed as PET, vide appointment letter dated 28.10.1991(Annexure A-1). Consequently, she joined as such on 11.11.1991 at JNV, Sarol Distt. Chamba. She was posted at JNV, Chandigarh in the month of October, 2002 and since then, she has been working there. The Navodaya Vidyalaya Samiti was stated to have prepared the transfer list (Annexure A-2). It was alleged by the applicant that her husband is an Agriculturist and staying at Samana Distt. She is living at Chandigarh along with her two children- Akshdeep Kaur (Daughter) aged 16 years, studying in 10+1 class, and Shahdeep Singh (son) aged 13 years, studying in 8th class, in Chitkara International School, Chandigarh. They are good in studies and sports as well. According to the applicant, the academic session of her children commences in the month of April, ends in the month of March. Thus, her mid-term transfer in the month of August will adversely affect their academic as well as sports career.
3. The case set up by the applicant, in brief, insofar as relevant, is that the applicant submitted representation dated 27.07.2016 (Annexure A-9) for redressal of her grievance, forwarded vide letter dated 30.07.2016 (Annexure A-10). But the same was not considered by the competent authority which necessitated her to file O.A. NO.060/00750/2016. It was disposed of by the Co-ordinate Bench of this Tribunal, vide order dated 12.08.2016 with the direction to the respondents to consider her representation by passing a speaking and reasoned order. However, her representation dated 27.07.2016 (Annexure A-9) for allowing her to continue at Chandigarh or consider her transfer to JNV Ropar/Mohali or Fategarh Sahib, was rejected, vide impugned order dated 19.08.2016 (Annexure A-12). In pursuance thereof, she was relieved on 23.08.2016, vide order dated 22/23.08.2016 (Annexure A-13 colly). She has now joined in JNV Ferozepur on 02.09.2016, under protest.
4. Aggrieved thereby, the applicant has preferred the instant O.A., challenging the impugned order dated 19.08.2016 (Annexure A-12) and consequent relieving order 22/23.08.2016 (Annexure A-13 colly), mainly on the grounds that these orders are totally vague, non-speaking, cryptic, suffer from perversity, and the malafides are writ large. Her representation (Annexure A-9) for consideration of her case either for stay during the academic session or for consideration of her case for transfer to nearby place was wrongly rejected, although one Manpreet Kaur, who was earlier transferred to JNV Dhaulpur (Rajasthan), has been posted at JNV Farour, Distt Fategarh Sahib.
5. Levelling a variety of allegations and narrating the sequence of events, in detail, in all, the applicant claimed that her transfer from Chandigarh to Ferozepur was arbitrary, discriminatory, illegal and smeared with malice. On the strength of the aforesaid grounds, the applicant seeks to quash the impugned orders (Annexure A-12 and Annexure A-13 (colly), in the manner indicated hereinabove.
6. Sequelly, the respondents refuted the claim of the applicant, filed the reply, wherein it was, inter-alia, pleaded that the applicant joined at JNV, Chandigarh on 05.10.2002 and she was in deemed vacancy transfer as per the guidelines in Annual Transfer Drive of 2016.. She did not opt any choice station of posting. Accordingly, she was ordered to be transferred from Chandigarh to Ferozepur, whereas one Ms. Mukti Asthana was ordered to be transferred from Kullu to Chandigarh, who has already joined at Chandigarh. The representation of the applicant was stated to have been duly considered and rejected vide speaking order dated 12.09.2016 (Annexure R-1), passed by the competent authority.
7. According to the respondents, there is no vacancy at JNV, Chandigarh in current session. The post of PET (female) in JNV Chandigarh is filled up by Ms. Mukti Asthana on the ground of couple case, as her husband, who is PET(Male) is posted in JNV Chandigarh on the ground of his serious ailment of blood cancer. Hence, retaining the applicant at JNV, Chandigarh is administratively not possible. Otherwise also, she cannot be retained at Chandigarh for all time to come, as per transfer policy. She has been transferred/relieved after considering her representation dated 27.07.2016. She was transferred on administrative grounds, in the public interest and in pursuance of the transfer policy. It will not be out of place to mention here that virtually acknowledging the factual matrix and reiterating the validity of the impugned orders, the respondents have stoutly denied all other allegations and grounds contained in the O.A., and prayed for its dismissal.
8. Controverting the pleadings in the written statement of the respondents and reiterating the allegations and grounds contained in the O.A., the applicant filed her rejoinder. That is how we are seized of the matter.
9. Having heard learned counsel for the parties, having gone through the record with their valuable assistance and after considering the entire matter and legal position, we are of the firm view that there is no merit, and the present O.A. deserves to be dismissed for the reasons mentioned herein below.
10. Ex-facie the arguments of the learned counsel that the mid-term transfer of the applicant would adversely affect the educational and sports career of her children and since the impugned transfer is arbitrary, malafide and illegal, so the impugned orders are liable to be set aside, are not only devoid of merit but misplaced as well.
11. What cannot possibly be disputed here is that the applicant was posted in JNV Chandigarh on 05.10.2002 and since then she was continuing there for the last more than 14 years. As regards the plea, pressed into service by the applicant, that the mid-term transfer made in August, 2016, would adversely affect the educational and sports career of her children, in this regard, it may be added here that the academic session of her children is going to complete in the month of March, 2017, as per her own showing. It is not a matter of dispute that she has already joined in JNV Ferozepur on 02.09.2016 and now her husband is looking after their children. Similarly, the mere fact that one Manpreet Kaur was adjusted at Fategarh Sahib by the JNV Samiti, ipso facto, is not a ground, much less cogent, to term the impugned order illegal, as urged on behalf of the applicant. On the contrary, the respondents have duly explained in their written statement that having considered all the relevant factors vis-`-vis request of the applicant, vacancy position and transfer policy, the representation of the applicant was rejected vide impugned order (Annexure A-12) and she has been relieved vide impugned order (Annexure A-13 colly) . That means, the competent authority has transferred the applicant on administrative grounds in public interest and in pursuance of the transfer policy.
12. Not only that, all the points raised by the applicant in her representation were duly considered and the Competent Authority has rightly rejected her claim, vide detailed order dated 12.09.2016 (Annexure R-1). The operative part of the order reads as follows:-
And whereas, transfer of the employees of the Samiti is effected in accordance with the provisions of the Transfer Policy 2012 and guidelines issued to all concerned in Annual transfer Drive. For Annual transfer Drive 2016, applications from officials were invited vide letter dated 22nd December, 2015 in prescribed formats through their respective JNV/Regional Office. It was emphasized in the said letter that transfer will be effected in following order of priorities by adhering to the provisions of Transfer Policy and instructions of Govt. of India.
1. Transfer of physically handicapped employees irrespective of their tenure in the present place of posting as per Govt. of India instructions.
2. Transfer of employees suffering from serious ailment (as mentioned in the transfer policy) irrespective of their tenure in the present place of posting
3. Transfer of employees completing mandatory tenure in hard and difficult station.
4. Transfer of employees having working spouse posted in separate place for the purpose of unification irrespective of their tenure in the present place of posting as per Govt. of India instructions.
5. Transfer of employees willing to get transfer to hard and difficult station.
6. Transfer of employees serving in plain area (not declared hard and difficult area) who have completed the normal tenure in their present place of posting.
And whereas, it was further made clear in the said letter dated 22.12.2015 that transfers of (i) differently abled employees (ii) employees suffering from, serious ailment/disease including their spouse and children as mentioned in Transfer policy (iii) transfer of husband/wife to one station for unification with spouse or nearby station will not be covered under transfer counts keeping in view the Government of India orders in their favour. Employees were asked to opt for choice places for request transfer against actual vacancies as well as deemed vacancies. Deemed vacancies were those where present incumbents completed more than the normal tenure prescribed in the transfer Policy.
And whereas, the applicant in her representation dated 27.07.2016 had requested for her retention at JNV Chandigarh on the ground that education of her two children, would be affected because of the present transfer. Further, she submitted that if she is allowed to remain in JNV, Chandigarh in current session, she may apply for consideration of her case for transfer to nearby place as JNV Patiala, Ropar/Mohali/Fategarh Sahib in the next session. In this regard, it is to mention here that there is no vacancy at JNV, Chandigarh in the current session. The post of PET(Female) in JNV Chandigarh is filled up by Ms. Mukti Asthana on spouse ground. Her husband, who is PET(Male) is posted in JNV, Chandigarh on the ground of serious ailment as he is suffering from Blood Cancer. Therefore, retaining the applicant at JNV, Chandigarh is administratively not feasible. The ground on which she is insisting to be posted in and around Chandigarh is not covered under Transfer Policy as teaching staff in the Samiti can admit their children in the Jawahar Navodaya Vidyalaya where they are working. If someone admits his/her children elsewhere, Samiti is morally not bound to accede to the demand of the said teacher for retention in a particular Vidyalaya of his/her choice. However, in the instant case there is no vacancy available at places to which she intends to get transfer in next session.
And now therefore, in view of the aforementioned facts and circumstances of the case, the representation dated 27th July, 2016 of the applicant stands disposed in compliance of the order dated 12th August, 2016 of the Honble Tribunal in OA NO. 060/00750/2016.
13. Meaning thereby, the Competent authority has examined the matter in the right perspective and it stands proved on record that the applicant was transferred on administrative grounds and in public interests, in pursuance of the transfer policy. She has miserably failed to specifically plead and substantiate the specific allegations of malice against any particular individual. It is now well settled principle of law that mala fide is very easy to allege but difficult to prove as the onus to prove mala fide lies on the persons who alleges it. The Honble Apex Court in the case State of Punjab & Another Vs. Gurdial Singh & Others (1980) 2 SCC 471 has ruled as under:-
9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act. The same view was reiterated by this Tribunal in T.M. Sampath Vs. Union of India, [OA No. 188/2012 decided on 30.08.2013] and Naresh Wadhwa Vs. Union of India [OA No. 810/2013 decided on 29.10.2013].
14. Meaning thereby, the Competent Authority has transferred the applicant from Chandigarh to Ferozepur on administrative ground and in public interest after considering the relevant factors like the vacancy position, organization seniority and request of the applicant. Indeed such transfer order cannot and should not be interfered with by the courts. A Government servant holding a transferable post is liable to be transferred and he has no right to remain posted at one place or the other. Such transfer orders issued by the competent authority do not violate any legal right. If the courts continue to interfere with day-to-day transfer orders issued by Government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to the public interest. This matter is no more res integra and is now well settled.
15. An identical question came to be decided by Honble Supreme Court in case Shilpi Bose Vs. State of Bihar AIR 1991 SC 532. Having considered the scope of judicial interference in transfer matter, the Apex Court has observed as under:-
4.In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department.
16. In the same manner, it was also held by Honble Supreme Court in case Union of India V. S.L. Abbas 1993 (4) SCC 357 that 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.
17. Sequelly, a three-Judge Bench of Honble Supreme Court in cases Major General J.K. Bansal Vs. Union of India & Ors. (2005) 7 SCC 227 and State of M.P. and Another Vs. S.S. Kourav and Others (1995) 3 SCC 20 has observed that the Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In case S.C. Saxena Vs. U.O.I. & Others (2206) 9 SCC 583, it was held by Honble Apex Court that a Government servant cannot disobey a transfer order by not reporting back at the place of posting and then go to a court to ventilate his grievances. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.
18. Again the same view was reiterated by Honble Supreme Court State of U.P. Vs. Gobardhan Lal (2004) 11 SCC 402 wherein it was ruled as under:-
7. It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power off violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievances sought to be made. Even administrative guidelines for regulating transfer 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 thee 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.
19. Therefore, it is held that the transfer of the applicant was in public interest and on administrative exigency, which indeed legally could not and should not be interfered with on the basis of wishful thinking of the applicant and on indicated speculative grounds.
20. As indicated hereinabove, once it is held that the Competent Authority has transferred the applicant from Chandigarh to Ferozepur on administrative grounds and in public interest, in that eventuality, the impugned transfer/relieving order (Annexure A-13 colly) is not open to judicial review. We do not find any reason to interfere with the impugned order (Annexure A-12), which has been passed by the respondents after considering all the relevant factors and as per transfer policy. Therefore, the contrary arguments of the learned counsel for the applicant, stricto sensu deserve to be and are hereby repelled. The ratio of law laid down in the indicated judgments is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand.
21. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
22. In the light of the aforesaid reasons, as there is no merit, the instant O.A. is hereby dismissed. However, the parties are left to bear their own costs.
(RAJWANT SANDHU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J) 16.02.2017
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