Central Administrative Tribunal - Hyderabad
K Shankar vs Dgms on 17 October, 2023
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OA.21/254/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.021/254/2023
RESERVED ON: 08.09.2023
DATE OF ORDER: 17.10.2023
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, JUDICIAL MEMBER
K. Shankar, S/o. late K. Pentaiah,
Aged about 55 years,
Working as Driver,
O/o. Dy. Director General of Mines Safety,
South Central Zone, Government of India,
Ministry of Labour & Employment, Hyderabad.
.....Applicant
(By Advocate: Shri K. Sudhakar Reddy)
Vs.
1. Union of India, Rep. by its Director General of Mines Safety,
Government of India,
Ministry of Labour and Employment,
O/o. Directorate General of Mines Safety,
Dhanbad.
2. Dy. Director General of Mines Safety,
South Central Zone,
Government of India,
Ministry of Labour and Employment,
Kavadiguda, Hyderabad.
....Respondents
(By Advocate: Sri V. Venu Madhav Swamy, Sr. PC for Cg)
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OA.21/254/2023
ORDER
PER: HON'BLE SUDHI RANJAN MISHRA, JUDICIAL MEMBER The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"..To quash and set aside the impugned transfer order No. 9(4)2000- Admn-I/30, dated 18.04.2023 issued by R-1, transferred the applicant from Hyderabad to Jabalpur, Madhya Pradesh as illegal, arbitrary and clear violation of DOPT OM No. 36026/3/85-Estt.(SCT) dated 24th June, 1985 so far as the applicant is concerned and clear violation of the applicant's fundamental rights guaranteed under Article 14 and 21 of the Constitution of India.."
2. Brief facts of the case are that the applicant, who belongs to Scheduled Caste community, was appointed as Driver on 20th November 1997 and was posted in the office of the 2nd respondent. Later, he was transferred to KGF, Bangarupet in the year 2000. On his request, he was brought back to Hyderabad in 2002.
3. It is stated by the applicant that two others who were appointed along with him as Drivers were never transferred from Hyderabad, whereas, he was earlier transferred to KGF, Bangarupet and now, he is transferred to Jabalpur, Madhya Pradesh, which is 800 km away, thereby he has been discriminated. The cadre strength of drivers is 4 and one person already retired and only three drivers are working and the impugned order is passed without any reasoning.
4. The respondents contested the OA and filed reply affidavit stating that the applicant was appointed as Peon vide Memo dt. 21.11.1997 with posting at Hyderabad. On passing departmental examination on 02.03.2000, the applicant 3 OA.21/254/2023 was selected as Driver with posting at Oorgaum, where the applicant joined on 13.04.2000 and as he was appointed as Driver, which is higher post, his posting at Oorgaum cannot be taken as transfer. His request for transfer was accepted and posted at Hyderabad vide order dt. 14.12.2001. It is submitted that as per work study of SIU, there are 88 posts of Driver in DGMS for HQ/Zone/Regions and as and when existing incumbents (permanent employee) vacate the post due to promotion/ reversion/retirement, the posts stand abolished and the same are on outsourcing basis and as such, the Drivers are posted in offices on need basis.
5. It is further stated that, at present there are two vehicles at Hyderabad office for which there were three Drivers, whereas, in the office of DGMS at Jabalpur Region, Jabalpur there is one vehicle, but there is no Driver. Therefore, in public interest/ administrative exigency, the applicant, being junior most Driver in Hyderabad, is transferred to Jabalpur. It is the further contention of the respondents that the applicant joined as Driver in Hyderabad on 21.02.2002 and since then, he has been working in Hyderabad. He has all India transfer liability and therefore, his transfer made in public interest/ administrative exigency cannot be termed as discriminatory. The employer has right to transfer his employee and the employee, having accepted the employment knowing fully well about the transfer liability cannot question the same. The applicant pursuant to his transfer has been relieved from the present post at Hyderabad vide Memo dt. 21.04.2023, with a direction to report at Jabalpur region. The respondents cited the judgment of the Hon'ble Supreme Court in Civil Appeal No. 1243/2022 in S.K. Nausad Rahaman & Ors v. Union 4 OA.21/254/2023 of India & Ors in support of their case. The respondents also filed vacate stay petition.
6. Heard learned counsel for the parties and perused the pleadings on record.
7. The issue to be decided in this OA is whether the impugned transfer of the applicant is sustainable in law.
8. Learned counsel for the applicant argued that the applicant was earlier transferred from out of Hyderabad and again transferring him to a far off place is arbitrary. He further argued that though there are other two Drivers who were never transferred, transferring the applicant is discriminatory. On the other hand, learned Standing Counsel for the respondents submitted that the applicant has been working in Hyderabad for more than 21 years and he has been transferred in public interest, and holding the post with all India transfer liability, the applicant cannot question the same. Further, it is argued that the transfer of any official on administrative exigency is the prerogative of the controlling authority.
9. It is seen from the record that the applicant the applicant was initially appointed as Peon in 1997 at Hyderabad and on passing the departmental examination, he was appointed as Driver in 2000 and posted outside Hyderabad and on his request, he was transferred back to Hyderabad in 2002 and since then, he has been working at Hyderabad. In regard to the plea of discrimination raised by the applicant stating that two other Drivers viz., E. Vara Prasad and Ch. Ramulu were never transferred, the respondents made it clear that the said 5 OA.21/254/2023 two individuals were appointed as Drivers at Southern Zone, Hyderabad in 1997, whereas, the applicant was initially appointed as Peon at Hyderabad in 1997 and on passing a Departmental examination, he was offered the post of Driver on 20.03.2000 and posted at Oorgaum Region, Oorgaum, where he joined on 13.04.2000 and the said posting at Oorgaum cannot be termed as transfer. Thus, the contention of the applicant that he has been discriminated in transferring him to a far off place is not acceptable and his reliance on the DOPT OM dt. 24.06.1985 vis-à-vis harassment and discrimination against SC/SC employees in Central Government Services/ posts, in the facts and circumstances of the case, is not appropriate. It is also seen that as per work study, some Driver posts were abolished and the same are being manned through outsourcing. It is clearly stated by the respondents that there are two vehicles at Hyderabad office with three Drivers, whereas at DGMS office, Jabalpur Region, there is one vehicle with no Driver. As such, as per the administrative exigency, the applicant, being junior-most Driver in Hyderabad, has been transferred to Jabalpur Region. Admittedly, the appointment of the applicant carries all India transfer liability. Therefore, this Tribunal does not find fault with the impugned transfer order.
10. In Shilpi Bose v. State of Bihar, 1991 Sup (2) SCC 659, Hon'ble Supreme Court held 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 6 OA.21/254/2023 approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
11. In Union of India & ors v. SL Abbas, (1993) 4 SCC 357, it has been held as under:
"An order of transfer is an incident of Government Service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it."
12. In Rajendra Singh vs State of U.P. & Ors, (2009) 15 SCC 178, the Hon'ble Supreme Court held as under:
"5. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402].
6. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. "
13. Recently, the Hon'ble Supreme Court in SK Nausad Rahaman & Ors. v. Union of India & Ors, in Civil Appeal No. 1243 of 2022, reported in 2022 (4) SCALE 626 has held as under:
"24 xxxx Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."7
OA.21/254/2023
14. The respondents placed reliance on the judgment of the Hon'ble High Court of Judicature at Allahabad In Special Appeal No. 1163/2018 wherein it has been held as under:
"The court cannot interfere with the transfer matter as the Government servant has no vested right to continue at a place of his choice. The Government can transfer the officer/ employee in the administrative exigency and in public interest. xxx xxx A Government servant has no vested right to remain posted at the place of his/ her choice. The transfer order does not violate legal right of a person holding transferable post, if he is transferred from one place to another in public interest. The order of transfer is an administrative order. The Supreme Court in unbroken line of decisions has held that the scope of judicial review in the matter of transfer is very limited. The Courts should not interfere with transfer order which is made in public interest and for administrative reasons, unless an order of transfer is shown to be outcome of malafide exercise or stated to be in violation of statutory provision prohibiting any such transfer."
15. As seen from the records and the submissions made, the impugned transfer of the applicant is not shown to be the outcome of malafide exercise or is in violation of any statutory provision prohibiting such transfer.
16. Thus, it is settled law that transfer is an incident of service and a Government Servant has no vested right to remain posted at a place of his choice and he is liable to be transferred from one place to the other and the Hon'ble Supreme Court held so in a catena of judgments. The employer can transfer an employee from one place to other as per administrative exigency.
17. In view of the above position, the OA lacks merit and the same is accordingly dismissed. MA(s) pending, if any, shall stand disposed of. Consequently, the interim relief granted is vacated. There shall be no order as to costs.
SUDHI RANJAN MISHRA JUDICIAL MEMBER /evr/