Central Administrative Tribunal - Delhi
Alok Kumar Verma vs Union Of India Through Chairman Railway ... on 22 August, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1158/2014 Order reserved on 8th August 2014 Order pronounced on 22nd day of August, 2014 Honble Mr. A.K. Bhardwaj, Member (J) Alok Kumar Verma Chief Engineer/ HQ Baroda House, New Delh-1 .. Petitioner (By Advocate: Mr. Ajit Singh along with applicant) Versus 1. Union of India through Chairman Railway Board Ministry of Railway New Delhi-1 2. General Manager Northern Railway, Baroda House New Delhi-1 3. V K Gupta General Manager Northern Railway, Baroda House New Delhi-1 .. Respondents (By Advocates : Mr. V S R Krishna, Mr. Shailendra Tiwary and Ms. Geetanjali Mohan) O R D E R
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has assailed the orders dated 31.12.2013 and 26.2.2014 whereby a decision has been taken to transfer him to Northeast Frontier Railway and his transfer to said Railway was directed with his posting as CBE. The applicant has raised as many as nine grounds to buttress the challenge to his transfer. Nevertheless, during the course of hearing, Mr. Ajit Singh, learned counsel for applicant confined the challenge to two grounds, viz. (i) mala fide of respondent No.3 and (ii) bias of the respondents against him because the applicant pointed out deficiencies in the chlorination of the water by M/s. Mercury (International) Pvt. Ltd. On 13.5.2014, having heard Mr. Prashant Bhushan, learned senior advocate for applicant, this Tribunal passed the following Order:
Shri Prashant Bhushan, learned senior counsel for applicant submitted that the transfer of the applicant is abased by the mala fide, as when vide his note dated 26.12.2013 he pointed out deficiency in the chlorination of the water and also infirmity in the services provided by M/s. Mercury (International) Pvt. Ltd as also M/s. Deioners Speciality Chemicals (P) Ltd., the respondents issued the order of his transfer just after five days, i.e., on 31.12.2013. According to him, even the relieving of the applicant was also quite unusual as when he had left the office at around 7.00 PM on the previous day, i.e., 27.2.2014, the next morning Mr. Rajesh Agarwal, Chief Engineer (G) had assumed the charge of the post of Chief Engineer without taking charge from him formally.
Ms. Geetanjali Mohan, learned counsel for respondents submitted that she could receive the brief only today and need sometime to prepare her submissions.
In view of the submissions put forth by Shri Prashant Bhushan, learned senior counsel for applicant, the respondents are directed to produce the file pertaining to the orders of transfer and relieving of the applicant as also the file pertaining to his note dated 26.12.2013 whereby he pointed out deficiency in the quality of water chlorination, on the next date of hearing.
List on 22.5.2014 as part heard.
2. The arguments were further heard on 27.5.2014 and 8.8.2014. During the course of further hearing, Mr. Ajit Singh, learned counsel for applicant read out the supplementary written submissions dated 8.8.2014 and made reference to various annexures to the Original Application only to espouse that the transfer of the applicant is mala fide fallout of the infirmities pointed out by him in the services of the aforementioned contractor.
3. To highlight the concern of the applicant towards unsatisfactory bacteriological results of large number of samples collected and the quality of water being supplied at stations / colonies being far from satisfactory, learned counsel referred to his action plan for solving the problems, which are seriously compromising water supply in the Northern Railway (Annexure-D). In the said action plan, suggested by the applicant, there is no mention about the quality of service provided by M/s. Mercury (International) Pvt. Ltd or M/s. Deioners Speciality Chemicals (Pvt.) Ltd. Besides, the proposal for transfer of the applicant was initiated on 31.10.2013 and the said action plan is dated 19.4.2012, thus it would be unrealistic to link the impugned transfer of the applicant with one and half years old action plan. Learned counsel also made reference to the issues raised by the applicant regarding:
Water safety plan to rehabilitate the prevailing unsafe drinking water supply over Northern Railway.
Contamination prone tube-wells on Northern Railway and emergent measures required to improve chlorination for safe drinking water.
Indication of presence of harmful / toxic chemical substances in water of bore-wells in Northern Railway, Bacteriological examination of water samples for monitoring quality of drinking water at stations, colonies and other Railway premises.
He also made reference to Chapter 4 of Report No.11 of 2013 (Railways) (Annexure-H) to highlight that as per extent instructions, Health Inspectors should check the presence of residual chlorine daily at various distribution points randomly and record of the same should be kept. They should also collect water samples for bacteriological examination periodically and send water samples for chemical examination once in six months. Learned counsel also referred to the Minutes of 6th meeting of Works Standards Committee (12th13th September 2013) at Nainital, North Eastern Railway (Annexure-I) and the letter dated 7/10.6.2013 written by Mr. A.K. Harit, IRSE (Annexure-J) regarding quality of drinking water supply in the Divisions.
4. In sum and substance, the efforts of learned counsel had been to emphasize that the transfer of the applicant is result of his concern towards the contamination of the water supply to the consumers in the Northern Railway. In the supplementary written arguments, read out by the learned counsel, he has highlighted that:
The respondents acknowledged that the quality of water supply was very unsatisfactory and there was failure of the Divisions to deal with the situation.
The claim of the respondents that the Indian Standard Code on water quality does not apply to Railway is utterly mischievous as the medical department has accepted the suggestion of the applicant in this regard and issued revised instructions regarding monitoring of water quality to the Divisions to implement the changes.
The applicants had met respondent No.3 personally on 17.2.2014 to apprise him with full activities of aforementioned two companies, still the respondents have not mentioned about it either in the counter affidavit or in the written submissions.
In their written arguments, the respondents have vehemently claimed that there were no irregularities in the award of contracts for supply of Programmable Logic Controller Based Automatic Bacteriological Plants to M/s. Mercury (International) Pvt. Ltd.
The applicant had written to the Board on 9.1.2014 that its instructions dated 11.4.2013 to all the Railways to provide that the plants at all bore-wells deserve a re-look because the plants are unsuitable and too costly, and the instructions could result in massive undue benefit to the company because of the following reasons:
(a) The term Programmable Logic Controller Based Automatic Bacteriological Plants is a misleading nomenclature for a chlorination plant. It is actually the name given by M/s Mercury (International) Pvt. Ltd. to the chlorination plant manufactured by his company.
(b) Firozpur Division had awarded all seven contractors to this company through tenders in which detailed technical specifications had been given which exactly matched with the technical specifications of this companys plants of the above nomenclature. Further, in the tender specifications it was also mentioned that the officer for any alternate system not asked for as per technical specification enclosed shall not be considered.
The Board has since withdrawn its letter No. 2013/CE-I/Innov./2 (NBM) dated 7.3.2014, but for inexplicable reasons the Railway Board shies away from giving reasons for instruction being withdrawn, which are otherwise obvious.
The applicant had prepared a comprehensive policy regarding chlorination, which provided for doing away chlorination through contract and suggested generic specifications, which could have brought transparency and competitiveness in the procurement of the chlorination plants, which created fear of losing business for M/s. Mercury (International) Pvt. Ltd or M/s. Deioners Speciality Chemicals (Pvt.) Ltd.
M/s. Mercury (International) Pvt. Ltd or M/s. Deioners Speciality Chemicals (Pvt.) Ltd. actively colluded with the respondents in managing the transfer of the applicant.
5. On the other hand, Mr. V.S.R. Krishna, learned counsel for respondents submitted:
a) The proposal to transfer the applicant was initiated on 30.10.2013 and admittedly till then he had not made any complaint against the aforementioned two contractors, i.e., M/s. Mercury (International) Pvt. Ltd or M/s. Deioners Speciality Chemicals (Pvt.) Ltd.
b) Respondent No.3 against whom mala fide is alleged has no role to play in transfer of the applicant, as proposal for transfer was initiated in the Railway Board.
c) Since the applicant could succeed in assailing the order dated 4.9.2009 passed by the Railway Board transferring him to South Eastern Central Railway by alleging mala fide against the Railway Board on the ground that the transfer was the handy work of respondent Nos. 2 to 4 who wanted to scuttle his viewpoint regarding the alignment of Katra-Qazigand section and contrived to ensure that the said viewpoint was not placed before the Minister of Railways, he has tried to concoct similar ground in the present case.
d) After his transfer in the present case, the applicant has tried to build up somehow similar grounds to question his present transfer to Northeast Frontier Railway.
e) Surprisingly when the applicant is kept posted within Delhi he raised no grievance but when he is shifted to a different Railway, instead of discharging his duty of carrying out the transfer and discharging the responsibility at the new place of posting, he raised the issue of vested interest of the officials.
f) The applicant is the longest stayee Chief Engineer in the Northern Railway since 2004 while all other Chief Engineers have lesser stay than him.
g) The proposal for transfer of the applicant was initiated as a regular process in the Railway Board with due consideration for cadre balancing of Senior Administrative Grade engineering officers of Northern Railway and the process of transfer was initiated on 3o.10.2013.
h) Monitoring, review and improvement of water supply, quality of water and provision for new water supply sources are inherent in the duties of Chief Engineer/HQ. Further as part of the assigned duties, it is normal and logical to review the work being carried out by Field/Divisional Units, bring out the discrepancies and irregularities, review and monitor shortfall, if any, and pursue improvements and rectification of the work carried out by Field/Divisional Units.
i) Instructions regarding provision of Bacteriological Treatment Plants (chlorinator) existed since long and even before 20.4.2013. Some of such instructions were issued for Microprocessor based control automatic bacteriological plant by the Director/Land Management, Railway Board on 13.6.2000 and also by Member Engineering, Railway Board vide his DO letter dated 13.4.2004.
j) Microprocessor based bacteriological treatment plants also termed plants with (implied microprocessor based) Programmable Logic Controllers (PLC) are in regular usage, procured through works contracts with different maintenance periods, by various different Government Departments/Public Sector Undertakes, like Central Public Works Department, Dr. Ram Manohar Lohia Hospital, New Delhi since September 1999, All India Institute of Medical Sciences in 2002-03, and IIT, New Delhi since January 2003, Steel Authority of India at Bolani at Bolani Township since February 2007, Delhi Metro Rail Corporation at Officers Flats, Civil Lines, Delhi since July 2008. Satisfactory performance certificates regarding these plants from different user Departments reflect that the technology of such PLC based bacteriological plants is reasonably functional and cannot be termed as non-appropriate or a plant (product) of misleading nomenclature.
k) In Ferozepur and Delhi Divisons, more than one tenders have participated in each of the said tenders and the contract was awarded based on competitive bid evaluation to the lowest bid offer, so the allegation that competitive bidding in tendering had been precluded is baseless and incorrect.
l) Regarding water quality samples, the percentage of satisfactory samples, overall in Northern Railway for the year 2013 is 79.6% tested as per the procedure based on Indian Railway Medical Manual 2000 and to assess the quality and reflect the test results for bacteriological examination of water samples, testing is carried out by Medical Department of Northern Railway at various locations, including major stations and colonies on the Divisions of Northern Railway.
(m) The applicant was posted as Chief Engineer/HQ, Baroda House, New Delhi since 2011 and he pointed out such irregularities only somewhere around November, 2013 when his transfer proposal was under consideration at Board level.
(n) Not only the applicant but the Principal Chief Engineer (PCE) was also concerned with the quality of the water supplied in the Railway and had instructed the applicant to issue necessary instructions to all concerned.
(o) The applicant is posted in Delhi for almost 10 years and being a senior officer need to serve in other Railways also.
(p) The applicant has become provocative in pin pointing the irregularities only after his transfer was ordered.
(q) Three contracts were awarded for providing disinfection system (Auto Chlorinator) in the section of Sr. DEN/III/NDLS during the period 2008-2011, out of which two were determined/closed in November, 2011 and May, 2013, while in respect of the third contract last payment was made in May, 2012 and no payment was made thereafter. The finalization of third contract issue is under process.
(r ) Vide Boards letter No. 2004 / LMB/ 09 / 01 dated 7.03.2014 and letter no.2013/ CE-1/ Innov./2 (N.B.M) dated 11.04.13, Zonal Railways were advised to install Programmable Logic Controller (PLC) based Automatic Bacteriological Treatment Plant at all pump locations for chlorination of water at source using Sodium Hypochlorite solution with long term in-built operation & maintenance contracts. The Railways shall continue to follow the best suitable practices/methodologies for treatment of water conforming to lay down standards and to ensure that hygienic, safe and potable water is provided to all regions.
6. I heard learned counsel for parties and perused the record. The applicant is a Senior Administrative Grade Officer of 1981 batch of Indian Railways Service of Engineers (IRSE). He is posted as Chief Engineer/HQ, Northern Railway at Headquarter office, Baroda House. In October 2009, when he was transferred to Bilaspur, Chhatisgarh, i.e. South East Central Railway, he challenged the same on the ground that some officials wanted to manipulate to scuttle his study into the shortcomings of the alignment which had paralyzed the construction of the rail link to Kashmir and his proposal for adoption of an alternative alignment. According to him, the order of transfer was quashed by the Tribunal and finally the order of Tribunal was upheld by Honble High Court and thereafter by Honble Supreme Court. When again now the respondents ordered his transfer, he has questioned the same on the ground that the respondents wish to scuttle his voice to improve the treatment required for drinking water and take side of the companies given the contract to chlorination of the water. The plank of the argument of learned counsel for applicant was that since the steps taken by applicant to improve the water treatment was detrimental to M/s Mercury (International) Pvt. Ltd and M/s Deioners Speciality Chemicals (Pvt) Ltd, to safeguard their interest, the respondents have ordered his transfer. When Mr. Ajit Singh, learned counsel for the applicant was specifically asked to point out any complaint made by the applicant regarding the services provided by the aforementioned contractors prior to 30.10.2013 when the Board processed his case for transfer, learned counsel categorically submitted that no complaint was made against the Companies before said date, but a note was initiated by applicant on 19.04.2012 wherein the corrective action plan to solve the problem of water supply in Northern Railway was suggested which was taken as detrimental to the interest of the contractors. As can be seen from the said note, the corrective action suggested by the applicant was for:-
(i) Review of water supply infrastructure plan in other important locations of Northern Railway at ASR, JUC, CD, UMB, LKO, BSB, GZB, DDN, HW and JAT.
(ii) Examination of the scheme of all sanctioned work of augmenting water supply system appearing in Pink Book 2012-13 to optimize benefits from these works and avoid unnecessary expenditure as happened in the scheme at Kalka to bring water from Pinjor and unsatisfactory integration and planning as seen in the case of Delhi-New Delhi area.
(iii) Monitoring progress of all major water supply works and
works by the Headquarter office.
(iv) Removing deficiencies in the system of checking chemical
content of water monitoring equipments system.
(v). Improving functioning of the HQ water supply.
In the said note, the applicant has not commented upon the performance of the two Companies (ibid) in any manner. Besides, the note was initiated in April, 19, 2012 and the transfer order was issued only in Feb., 2014 after a decision was taken on 31.12.2013 in this regard. No link can be established between the said note and the transfer of the applicant. Though from the note initiated by the applicant (ibid) and his Circulars dated 5.09.2012, 3.08.2012 and
11.10.2012 etc., the concern of the applicant regarding treatments of water in the Northern Railway is explicit, but at the same time such concern was also joined by Mr. A.K. Harit, the Principal Chief Engineer, Northern Railway, Baroda House. The relevant excerpt of the letter written by Shri A.K.Harit to Shri N.C.Goel, Divisional Railway Manager, Ferozepur read as under:-
4. To provide necessary direction, focus and emphasis to the water quality issues on the Divisions, DRMs are requested to review progress of the critical items of water quality on monthly basis by holding special water quality review meetings in the next six months. You are also requested to inspect major water supply installations on the Division along with the concerned Branch Officers. Emphasis should be on the following items:
Inspection of water supply installation at the prescribed frequency by the supervisors and officers and keeping of inspection records in the prescribed formats.
Proper storage, handling and testing of the disinfectant (sodium hypochlorite) and improving the condition of the chlorination rooms/pump-houses.
The chlorination plants should be in good working condition, with minimum break-downs and prompt repairs. Special watch should be kept on chlorination plants where operation and maintenance is done through contracts. Some indents are still awaited from the Divisions despite repeating reminders (See status in Annexure 1). All pending indents must be submitted in the next one week. At all places where auto-chlorinators are not existing, manual-chlorination under proper supervision must to ensured.
Improvement in the condition and upkeep of the ground-level water storage tanks.
Daily testing of residual chlorination by SSE/W and preparation of sampling plan for each of the major water supply stations and colonies.
Periodic testing of microbial quality of the supply water as per prescribed frequency by Medical department, and necessary follow-up action in the event of sample failures including repeat sampling and testing for pathogens like E-Coll (Detailed Instructions in this regard have been recently issued vide letter No.22-Med/AM dated 02.08.13).
Testing of chemical and microbial quality of water extracted from bore-wells (Before chlorination/treatment).
Proper working of pumps at the bore-wells with 16-20 hours pumping as per the requirement, minimizing disruption in supply due to pump and power supply failures.
Annual yield test of all the bore-wells on the Division jointly by Engineering and Electrical Department should be completed in the next two months (Step-drawdown Test by measuring drawdown at different rates of discharge).
Prompt commissioning of new bore-well and closing down unproductive and contamination-prone borne bore wells. Too many bore-wells in the supply system are a major hindrance to improving quality of water.
The practice of carrying out water supply works without a proper approved engineering plan must be stopped forthwith. Though it is true that in his note dated 30.12.2013, the applicant aggravated his attack on unhygienic, contaminated and untreated water by espousing that it would be criminal neglect of the duty on the part of Northern Railway as a head organization to continue such supply of water. But his such aggravated steps taken on 30.12.2013 and 9.01.2014 cannot be taken into account to test the validity of the order of his transfer, for the simple reason, that he had taken the same only after the proposal dated 30.10.2013 to transfer him had been moved. There is no such material on record on the basis on which this Tribunal can arrive at a conclusion that prior to 30.10.2013, the applicant had directly attacked the Contractors who were given the job of treatments/ chlorination of the water. His complaint after 30.10.2013 can be looked at only an attempt on his part to generate a ground to question the transfer order. Nevertheless, once the applicant has expressed his concern about the conduct of the Contractors and has raised a plea that his transfer is outcome of his steps to improve the quality of water, which would be detrimental to the interests of Contractor, the respondents should conduct an in-depth enquiry into the matter, as such officers who are true to their duty and do not oblige the outside service agencies while taking their service at the cost of public exchequer need to be protected. However, at the same time, no employee can be encouraged to project his routine work and concern about his duty as ground to challenge the order of transfer, as all Government employees/officers are expected to perform their duty with honesty, devotion, sincerity and efficiency. The pointing out of inefficiency of a private agency engaged to provide service to the public on payment basis should not be projected by Government employee as his extraordinary efforts and such perception needs to be given up. But at the same time, the Courts cannot turn blind eyes, where an honest and sincere Government officer is subjected to persecution to safeguard the illegal interest of the Contractor or some other interested senior officer.
7. As has been noticed hereinabove, in the present case, despite specific query, Mr. Ajit Singh, learned counsel for the applicant could not point out any complaint made by the applicant regarding the quality or efficiency of service of the Contractor prior to 30.10.2012. In such circumstances, it is not possible for us to take a view that the transfer of the applicant is consequence of pointing out irregularity of the aforementioned Companies. Though, during the course of hearing, the learned counsel for the applicant tried to point out that the wife of the applicant is unwell and is taking treatment from Central Railway Hospital, but the applicant who was present in person took a definite stand that he is not interested in serving at Delhi and is prepared to perform his duty in any part of the Country and what is needed in the present OA is that justice should be done. However, when he was asked to explain the reasons for not joining at the place of posting even after six months, he could again put forth the ailment of his wife as a ground for not doing so. Though the efforts made by the applicant in making suggestions to improve the quality of water supplied in Northern Railway may deserve appreciation, but at the same time, in the absence of any stay of the order of his transfer, his conduct of non-joining at the place of his posting would scuttle all his claims and concern towards the public service. Having joined the applicant in his concern regarding the quality of water supply and in taking the stand against the Contractors given responsibility to do the chlorination/treatment of the water, the respondents have shown their bonafide in the matter. Learned counsel for the applicant also submitted that the respondents could not have transferred the applicant within three years. It is seen that out of 18 IRSE officers in NR as on 26.02.14, the applicant has the longest stay. For easy reference, the chart produced by the respondents in this regard is reproduced hereinbelow:-
SN DESIG DIVN GR P/W INCUMBENT Wkg on N.Rly. since 1 CE/TMC HQ SAG Pt P.K.SANGHI 23.08.13
2. CE/G HQ SAG Pt RAJESH AGARWAL 04.07.13
3. CE/TMS HQ SAG PT B.P.AWASTHI 00.06.05
4. CBE HQ SAG Pt N.K.SINHA 15.06.11
5. CE/TSP HQ SAG Pt. R.K.JHA 26.06.06
6. CE/P&D HQ SAG Pt. S.K.RAINA 22.08.12
7. CE/HQ HQ SAG Pt. A.K.VERMA 00.04.04
8. CTE HQ SAG Pt. RAKESH KUMAR GOYAL 16.01.14
9. CE/RC HQ SAG Pt NARINDER KUMAR 08.03.11
10. CE/MRTS HQ SAG W P.K.AGGARWAL 04.02.13
11. CE/C/CENTRAL KG SAG W MANOJ SHARMA 11.06.10
12. CE/C/JAT JAT SAG W B.B.S.TOMAR 16.01.14
13. CE/C/NW KG SAG W M.K.GUPTA 28.03.12
14. CE/C/Spl. KG SAG Pt S.C.JAIN 00.03.09
15. CE/CII/JAT JAT SAG W SANDEEP GUPTA 14.02.12
16. CE/C/E KG SAG W LALIT KAPUR 22.08.12
17. CE/C/NC KG SAG W MAHIPAL SINGH 23.07.10
18. CE/C/SURVEY KG SAG W VIJAY PRATAP SINGH 29.02.12 TRG/LEAVE J.S.SONDHI 13.03.13 LEAVE VISHWAISH CHAUBEY 00.05.12 Thus, the plea of secured tenure of three years is not available to applicant, as a ground to interfere with the order of transfer. As far as the malafide alleged against Shri V.K.Gupta is concerned, we do not find any document on record to show his involvement in the transfer of the applicant. The transfer of the applicant is ordered at the level of Railway Board. Besides, as has been ruled by Honble Supreme Court in a catena of cases, the transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has any legal right for being posted at any particular place. Having followed said judgments of Honble Supreme Court, this Tribunal declined to interfere with the transfer of applicant in OA No. 1043/2012. Relevant excerpts of the order dated 4.09.2012 passed in said OA read as under:-
In Public Services Tribunal Bar Association Vs. State of U.P. & Anr ( 2003 (3) SLJ 14), Honble Supreme Court ruled that transfer is an incident of service and is made in administrative exigencies. Normally, it is not to be interfered with by the Court, except in rare cases where the transfer has been made in a vindictive manner. Para 38 of the judgment read as under:-
38. 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 here the transfer has been made in a vindictive manner. In Sujata Kohli Vs. High Court of Delhi ( 148 (2008) DLT 17 (DB), Honble Delhi High Court reiterated the aforementioned view taken by Honble Supreme Court, in the following words:-
12. It is not in dispute that transfer is an incidence of service and the High Court, which has the superintending control over the subordinate judiciary, is empowered to decide about the posting, transfer, promotion etc. of the judicial officers belonging to the subordinate judiciary. Law in the matter of transfers is also well settled by catena of judgments of the Apex Court. Instead of taking note of all these judgments, it would be sufficient to refer to two decisions of the Apex Court wherein the Court considered its earlier decisions. First case, note whereof we take, is Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors. AIR 2004 SC 4850, wherein the Court reiterated the principle of law in the following terms:
Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or visited by malafide or infraction of any prescribed norms of principles governing the transfer (see Ambani Kanta Ray v. State of Orissa 1995 (Suppl) 4 SCC 169). Unless the order of transfer is visited by malafide or is made in violation of operative guidelines, the Court cannot interfere with it (see Union of India v. S.L. Abbas . Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by malafide or is made in violation of operative any guidelines or rules the courts should not ordinarily interfere with it. In Union of India and Ors. v. Janardan Debanath and Anr. it was observed as follows:
No government servant or employee of a public undertaking 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 another 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 or stated to be in violation of statutory provisions prohibiting 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 substituting their own decision for that of the employer/management, as against such orders 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. In Union of India and Another Vs. N.P.Thomas ( AIR 1993 SC 1605) also it is viewed that an employee holding a transferable post has no vested right to remain posted at a particular place as a matter of right. In Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani ( AIR 1989 SC 1433) it was held thus:-
4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.
In Shanti Kumari V. Regional Deputy Director, Health Services, Patna Division, Patna and Ors ( 1981) 2 SCC 72), it was ruled that the transfer of a Government servant may be due to exigencies of service or due to administrative reasons, the Courts cannot interfere in such matters.
6. Considering the aforementioned view taken by Honble Supreme Court and Honble Delhi High Court, it is reiterated that the transfer is an incident of service and the applicant has no legally enforceable right to remain posted at any particular place.
7. The question whether the order of transfer passed during contemplation/pendency disciplinary action/complaint can be termed as punitive or not is no longer res integra. In Somesh Tiwari Vs. Union of India and Others ( 2009 (2) SCC 592), it has been held that when an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. However very recently in Registrar General, High Court of Judicature of Madras Vs. R.Perachi & Ors (2011) 12 SCC 137)), Honble Supreme Court viewed that when a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. It is desirable from the point of view of the administration as well as that of the employee. Relevant excerpt of the said judgment read as under:-
.As seen above, the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances the decision of the then Chief Justice to transfer him outside that district could not be faulted. From the aforementioned, it is apparent that an order of transfer cannot be based on the allegation in complaint or charge sheet in a departmental enquiry, but during pendency of such enquiry, independent of allegation enquired into, an employee can be posted out. Thus the order of transfer of applicant cannot be held punitive merely on the ground that the same is passed at a point of time when he is facing disciplinary action. As has been held by the Honble Supreme Court in the case of Registrar General, High Court of Judicature at Madras Vs. R.Perachi & Ors (AIR 2012 SC 232), transfer during pendency of disciplinary action is desirable. Such view is also envisaged as guiding principle for such suspension wherein it is laid down that while placing an employee under suspension the competent authority should consider whether the purpose cannot be served by transferring the official from his post to a post where he may not repeat the misconduct or influence the investigation, if any, in progress. Such guiding principles published in Chapter 2 of CCS (CCA) Rules published in Swamys Compilation read as under:-
Guiding principles
1. While public interest is to be the guiding factor in deciding to place a Government servant under suspension, the competent authority should take all factors into account and exercise his discretion with due care while taking such action even when the matter is under investigation and before a prima facie is established. The following circumstances may be considered appropriate to place a Government servant under suspension:-
where his continuance in office will prejudice investigation, trial or any enquiry (e.g., apprehended tampering with witnesses or documents);
where his continuance in office is likely to seriously subvert discipline in the office in which he is working;
where his continuance in office will be against the wider public interest, e.g., if there is a public scandal and it is considered necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal with officers involved in such scandals, particularly corruption;
where a preliminary enquiry revealed a prima facie case justifying criminal or departmental proceedings, which are likely to lead to his conviction and/or dismissal, removal or compulsory retirement from service; and where he is suspected to have engaged himself in activities prejudicial to the interest of the security of the State.
2. Certain types of misdemeanour where suspension may be desirable in the circumstances mentioned above are indicated below:
an offence or conduct involving moral turpitude;
corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;
serious negligence and dereliction of duty resulting in considerable loss to Government;
desertion of duty; and refusal or deliberate failure to carry out written orders of superior officers.
In case of types (iii), (iv) and (v), discretion should be exercised with care. As suspension may cause lasting damage to the Government servants reputation even if he is exonerated or is ultimately found guilty of only a minor misconduct, the discretion vested in the competent authority in this regard should be exercised with care and caution after taking all factors into account.
3. While placing an official under suspension the competent authority should consider whether the purpose cannot be served by transferring the official from his post to a post where he may not repeat the misconduct or influence the investigation, if any, in progress. If the official would like to leave that might be due to him and if the competent authority thinks that such a step would not be inappropriate, there should be no objection to leave being granted instead of suspending him. In the circumstances it is held that the transfer of the applicant during contemplation/pendency of disciplinary action cannot be called punitive but may be considered as desirable.
8. Although learned counsel appearing for applicant vehemently argued that the order of transfer is issued not in exercise of the power conferred for the purpose but is issued malafidely for collateral purposes however, neither any authority against whom malafide is alleged is impleaded as party to the present proceeding in his personal capacity nor any material to establish the allegation of malice has been adduced. In Bureau of Indian Standards Officers Association and Another Vs. Bureau of Standards and others ( 1993 III AD (Delhi) 1145), Honble Delhi High Court viewed that the burden of establishing mala fides is very heavy on the person, who alleges it. The allegations of mala fide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Paras 19 and 20 of the judgment read as under:-
19. Reliance is placed on the judgment of the Supreme Court in E.P.Royappa v. State of Tamil Nadu and another AIR 1974 Supreme Court 555, wherein it was held that the burden of establishing mala fides is very heavy on the person, who alleges it. The allegations of mala fide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
20. In the present case, the sole ground, on which petitioners have based their case, is that newspaper reports raised corruption issues against the respondents and in view of the role, played by the Association in highlighting these issues, petitioner no.2, who is the President of petitioner no.1, was transferred to Bhopal. This was also with a view to scuttle the trade union activities of the petitioners. These circumstances do create suspicion, but suspicion cannot take the place of proof. Proof needed in the present context is always of high degree and the plea of mala fide, which has been placed before us, cannot be held to come to that level. The judgment of the Supreme Court, as referred above, has been relied upon by the Division Bench of this Court in Ghanshyam Singh v. Union of India and others 41 (1990) Delhi Law Times 96, wherein the plea of mala fide was rejected on the ground that a mere allegation that respondent no. 4 (the then Chief Minister) was actuated by improper motive, based on surmise, contained in a few Press clippings, cannot be made basis of investigation by the Court. The judgment in Express Newspapers Pvt Ltd (supra) also reiterates the proposition that vague allegations of mala fide are not enough and abuse of authority must appear to be reasonably probable. In Gurbachan Singh Sawhey Vs. Union of India and Ors (C.W.P. No. 5878/1998 decided on 31.05.2002), Honble Delhi High Court viewed that the natural justice bias rule applies to judicial and disciplinary functions but not generally more widely to administrative decision making and actions. In Airport Authority of India Vs. Rajeev Ratan Pandey and Others ( 2009 (8 SCC 337), Honble Supreme Court viewed that the bald plea of malafide not supported by any material cannot be accepted as a ground vitiating the order of transfer. The applicant has not produced any material satisfying the standard and test required to hold the transfer order vitiated being malafide. Thus the plea of mala fide raised by him is rejected.
9. Relying upon the OM No. 28034/9/2009-Estt.(A) dated 30.09.2009 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), particularly clause 4 (vii) thereof, learned counsel appearing for applicant submitted that the wife of applicant being employed in Health Department of Delhi Government as doctor and posted in DDU Hospital, he should not be posted out of Delhi/Gurgaon. As has been held by Honble Supreme Court in UOI and Another Vs. N.P.Thomas (supra), the transfer of a Government personnel holding transferable post cannot be held to be vitiated on the ground that some of his juniors are retained and his transfer is against the policy of the Government that the husband and wife should be posted in the same station. Paras 7 and 8 of the judgment read as under:-
7. In Shilpi Bose's case (AIR 1991 SC 532), the Court observed thus (Para 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 as 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."
8. In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory rule or that the transfer order suffers on the ground of mala fide. The submissions of the respondent that some of his juniors are retained by Kerala Circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has no vested right to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that Circle even on promotion. In Bank of India v. Jagjit Singh Mehta (JT 1991 (4) SC 460), decided on 22.01.1999), Honble Supreme Court ruled that even if there is a policy providing that as far as practicable the husband and wife employed should be posted at the same station even if their employers are different would not mean that their place of posting should invariably be one of their choice. Para 5 of the said judgment read as under:-
5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India, Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers' grade and thereafter he seeks to be relieved of that necessary incident of All India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.
In UOI and others Vs. S.L.Abbas ( 1993)4 SCC 357), it has been held thus:-
9. Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta, (1992) 1 SCC 306: (1992 AIR SCW 170) rendered by a Bench of which one of us (J. S. Verma, J.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein (para 5 of AIR):-
"There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees.
In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places....No doubt the guideline requires the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
(Emphasis added) In the backdrop of aforementioned view taken by the Honble Supreme Court, the plea of the applicant that in view of the posting of his wife in Delhi he should also be kept posted there or in Gurgaon, cannot be countenanced.
11. In view of the aforementioned, the interference with the impugned orders is declined. Nevertheless, the respondents are directed to conduct in-depth enquiry into the allegation made by the applicant that his transfer is the result of the efforts made by him to improve the quality of water in Northern Railway which adversely affected the interest of M/s Mercury (International) Pvt. Ltd or M/s Deioners Speciality Chemicals (Pvt.) Ltd. If in such enquiry, it is found that his transfer is consequence of the concern shown by him to improve the quality of work in the Northern Railway, which proved adverse to the interest of the aforementioned companies, the applicant would be brought back to his present place of posting. The respondents would ensure that any action brought by the two contractors against the applicant for the steps taken by him in discharge of his official duty and in public interest to improve the quality of water is defended by the Railway Administration. In case, the applicant has any personal problem such as ailment of his wife and all, after joining at the place of transfer, he may make a representation to the respondents espousing the same. The representation, if made would be examined by the respondents objectively. The Original Application stands disposed of. No cost.
( A.K.Bhardwaj) Member (J) sunil/sk .