Central Administrative Tribunal - Delhi
S.K. Dhaker, Working As Pgt ... vs Navodaya Vidyalaya Samiti Through Its ... on 13 November, 2006
ORDER Mukesh Kumar Gupta, Member (J)
1. Since the issue raised in these two OAs is common in nature and relates to transfer, same were heard together and disposed of by the present common order.
2. For brevity, facts have been delineated from OA No. 1346/2006. Applicant in this OA is a PGT (Chemistry) since 1997, while applicant in OA No. 1354/2006 is employed as Catering Assistant since the year 1993. Both are working in Navodaya Vidyalaya Samiti and posted to JNV Deverala. Tenders were invited to supply doors from public through Daily Newspaper "Amar Ujala" dated 21.01.2006, fixing last date of application as 28.01.2006 with date of opening tender as 30.01.2006. Applicant made a representation objecting the illegalities and fraud committed by the Principal as the work of doors had already been undertaken and completed on 18/19.01.2006 at a higher rate, though number of contractors were ready to complete it on lower rates. He was called by the Deputy Commissioner, Jaipur vide message dated 03.03.2006 and accordingly he reported at NVS (RO) Jaipur on 04.03.2006. Thereafter, a committee of two persons, namely, Dr. R.K. Sharma, Joint Director (Admn), New Delhi and Shri P.C. Shukla, Asstt. Director, Jaipur was constituted, who reached at JNV Deverala on 17/18.03.2006 and conducted enquiry into the whole matter. It recorded statement of staff members, outsiders as well as the Principal and submitted its report. During enquiry, the Principal of said School made certain false statement against applicants and on such basis they were temporarily attached to JNV Kajra and JNV Kuchamancity, Distt. Nagaur vide orders dated 23.03.2006 and 28.03.2006 respectively. As per their knowledge, report submitted by said Committee clearly recorded that the Principal had committed irregularities in the shape of fraud and based on such report and findings, the Principal has been transferred to JNV Muradabad on 29/30.04.2006. Immediately, thereafter i.e. on 14.6.2006 applicants were also transferred on permanent basis to JNV Rajsamand and JNV Kuchamancity, Distt. Nagaur respectively. Their grievance is that their transfers have been effected without conducting any enquiry and without affording an opportunity of hearing, which render orders of transfer as illegal, arbitrary, unjust and violative of principles of natural justice.
3. Shri Yogesh Sharma, learned Counsel for applicants strenuously urged that impugned transfer orders have been issued based on complaint of the Principal, which was a malafide intention on his part and to cover up the illegalities committed by him. Since transfers have been effected on complaint of the Principal, said orders become punitive, which is unsustainable in the eyes of law. If applicants had committed misconduct, disciplinary proceedings ought to have been initiated against them. The transfer orders issued cannot be termed in public interest or in administrative exigencies as respondents failed to establish or explain any administrative exigency involved in their transfers. Number of juniors and seniors remain in their respective stations, which render respondents' action as illegal, arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India. Moreover, respondent No. 3 is not the competent authority to effect transfers. Shri Yogesh Sharma, learned Counsel further contended the post of PGT (Chemistry), JNV, Deverala remains vacant in terms of interim order passed by this Tribunal on 27.06.2006 in OA No. 1346/2006.
4. Strong reliance was placed on 1997 (2) SCSLJ 255 Arvind Dattaraya Dhande v. State of Maharashtra, wherein it has been held that transfer was not in public interest but was a case of victimization of an honest officer at the best of the aggrieved complainant. Therefore, the transfer was assailed as malafide exercise of power, unsustainable in law. Reliance was also placed on 2003 (2) ATJ 658 T.L. Gupta v. Union of India, wherein it has been held that for any misconduct, disciplinary proceedings are to be taken up and transfer is not the remedy. Reliance was also placed on 2004 (3) ATJ 97 K.P. Prasad v. Union of India, to suggest that respondents should explain and establish administrative exigencies in transferring the official. Further reliance was placed on 2005 (2) ATJ 125 Shri Harpal Singh Kashyap v. Govt. of NCT of Delhi and Ors. to contend that in absence of explaining the exigencies, decision to transfer cannot be sustained particularly when there had been deviation from the rules. Similarly, reliance was placed on 2004 (1) ATJ 328 Shri Sanjay Namdeorao Dhakre v. Sr. Divisional Manager (Oper.), Central Railway, Bhusawal and Ors. to contend that transfer cannot be made by making allegations of misconduct against a Govt. employee. Lastly, reliance was placed on 2005 (1) ATJ 104 Dr. Ravi Shankar v. Union of India and Ors. where it has been emphasized that non-disclosure of reasons is a fundamental defect which cannot be supplemented by filing affidavit.
5. Shri Yogesh Sharma, learned Counsel further pointed out that Shri Giriraj Kishore, Catering Assistant, was transferred, on his own request, vide order dated 27.06.2006 from JNV, Gulbarga to JNV, Nagaur, but as the applicant in OA No. 1354/2006, Shri Rishi Pal Malik, Catering Assistant, had been transferred from JNV Deverala to JNV, Kuchamancity, Distt. Nagaur vide order dated 14.6.2006, the said Shri Giriraj Kishore was posted to JNV, Bhiwani. In the back-drop of above, learned Counsel vehemently contended that the impugned transfer orders deserve to be quashed and set aside.
6. Respondents resisted the claim laid by filing detailed reply, stating that transfers were made on administrative grounds and such orders were passed by the Deputy Commissioner of Regional Office of NVS Jaipur. Deputy Commissioner, NVS under jurisdictional Regional Office is alone competent to transfer them, and it is incorrect to suggest that Respondents No. 1 and 2 are only competent to pass such transfer orders. The averments made by applicants in para 4.2 to 4.9 of the OAs detailing the events under which orders were passed were denied, stating that the averments made therein "do not relate to the transfer of the applicant". It was further emphasized that it is due to administrative exigencies alone, applicants were transferred. The alleged irregularities committed by the Principal of JNV Deverala, Distt. Bhiwani have no relevance with impugned transfer orders. No allegations of misconduct etc. were levelled against the applicants. Their transfers have been made due to administrative exigencies alone and not for accommodating any other employees, as suggested. Where to post an employee is the prerogative of competent authority and there is no need to indicate detailed reasons in the transfer orders. The question of senior or junior has no relevance. Shri Section Rajappa, learned Counsel for respondents vehemently contended that the impugned transfer orders are simply innocuous and contained no element of punitiveness. There is no allegation made against them on any count. The Ld. Counsel further contented that the onus to prove the allegations of malafide, misconduct etc. rests on the persons who allege the same and no material has also been produced by applicants to establish the same. Therefore, the allegations of malafide, misconduct etc. have no basis and justification. The applicants also cannot be allowed to indulge in roving enquiry into the matter.
7. By filing detailed rejoinder, applicants reiterated their contentions. A prayer was also made to summon the file relating to reports submitted by the Committee against Principal, NVJ, being a relevant and important document for adjudication of issue raised in present OAs.
8. I have heard the learned Counsel for parties and perused the pleadings & material placed on record carefully.
9. On bestowing my careful consideration to all aspects of the matter and on consideration of the pleadings and the judgments relied upon by the applicants, I find that entire case revolves around the complaint made by applicants against the Principal in inviting tenders and to counter blast the said allegations, alleged complaint made by the Principal against them. I may note that apart from making allegation on this aspect, no material was produced before the Tribunal to establish that there was any counter complaint made by the Principal against them. I find justification in the contention raised by Respondents that the onus to prove such an allegation/contention rests upon the applicants, which they have miserably failed to prove. Burden to prove the allegation of malafide is very heavy upon person who alleges.
10. The judgments, on which reliance has been placed, in my respectful view, are quite distinguishable and inapplicable in the facts and circumstances of present case. In Shri Arvind Dattaraya Dhande (supra), the appellant, who was found to be an honest officer was transferred at the behest of aggrieved complainants carrying on the business in liquor and toddy as he was instrumental in conducting raid, finding adulterated toddy, which was harmful and poisonous and could endanger the lives of consumers. It was particularly held therein that appellant's transfer was not in public interest and the complaint was made to the Minister for State Excise. In T.L. Gupta (supra), the applicant was transferred six times within a period of two years and allegations were made by the Respondents of his having a tainted and blemished service career. In K.P. Prasad (supra), the Ernakulam Bench of this Tribunal noticed that respondents were not able to explain either from pleadings or material from record as to what had been the administrative exigencies, which necessitated transfer from Thiruvanathapuram to Silchar (Assam). At the same time it was observed therein that it is not as if the transfer under given circumstances we impermissible, but it was emphasized that it should be made only when there is any pressing administrative exigency. In Shri Harpal Singh Kashyap (supra), the transfer order was quashed as it was based on a complaint and no document was placed to show that prior approval of the Director of Education was taken before passing the impugned transfer order. Within Delhi he was posted about 40 KMs from his residence. In Shri Sanjay Namdeorao Dhakre (supra), the official who was holding the post of Safety category at Jalan was residing at Akola and had been transferred on the ground that he was residing at Akola without the permission of Railway Administration and also involved in criminal court cases. In Dr. Ravi Shankar (supra), the transfer was quashed as the authorities failed to prove that said official had an all India transfer liability.
11. In the facts and circumstances of present cases, I find that no allegation of misconduct or any other nature advanced against the applicants. Transfer orders are innocuous in nature and contain no element of punitiveness. These are pure and simple transfer orders, which are recited to be on "administrative grounds". It is not their case that they have lost either seniority or suffered in the pay & allowances/perks. It is also not a case that they do not have all India transfer liability. Both applicants have been transferred to places within the State of Rajasthan, which are otherwise not very distant from their previous place of postings. It is well settled law that transfer can be interfered by Courts/Tribunal only when it is issued in violation of statutory rules or suffers on account of malafide. It is not applicants' case that said transfer orders have been issued in violation of any statutory rules. As far as the question of malafide is concerned, I do not find that any cogent material has been produced to establish such allegation.
12. In view of the discussion made & findings recorded hereinabove, I do not find any merit in OAs Nos. 1346 & 1354 of 2006 and accordingly same are dismissed. Interim orders are vacated. No costs.