DEVENDRA KUMAR SHARMA v. SOUTH EASTERN COAL FIELDS LTD.
2005-01-11
SUNIL KUMAR SINHA
body2005
DigiLaw.ai
SUNIL KUMAR SINHA, J. ( 1 ) WITH the consent of the parties, heard finally. ( 2 ) BY this petition filed under Article 226/227 of the Constitution of India, the petitioner has challenged the validity of order, dated May 31, 2004 (Annexure P 3) by which he has been transferred from SECL establishment at Korba to Jamna Kotma. He has also challenged the validity of order, dated september 27, 2004 (Annexure P 5) which is an order passed on representation, dated september 9, 2004. Admittedly, the petitioner is working on the post of chief security guard. His name appears at Serial No. 4 in the impugned order, dated May 31, 2004. ( 3 ) THE facts of the case are that the petitioner was transferred vide order, dated may 31, 2004 Annexure P3 from SECL Korba to SECL Jamna Kotma. After receiving the said order, the petitioner challenged its validity by filing a writ petition vide W. P. No. 2416 of 2004. The said petition came up for hearing before this Court on August 20, 2004 and the same was disposed of with a direction that the petitioner shall make a detailed representation before the competent authority and the competent authority shall consider and decide the same on its own merits in accordance with law preferably within six weeks from the date of receipt/production of representation. It was also directed that if any contravention of policy or guidelines is brought to the notice, the same be considered on its own merits. ( 4 ) IT appears that after passing of the said order, the petitioner filed a representation on september 9, 2004. The said representation was considered by the competent authority and the impugned order, dated September 27, 2004 (Annexure P 5) has been passed. Since the competent authority rejected the aforesaid representation of the petitioner, now the petitioner has come up before this Court in the second round. ( 5 ) LEARNED counsel for the petitioner submits that even before passing of the order of transfer, the petitioner had given an application that he is getting some treatment in gevra and his son aged about 12 years is also under treatment of Arthritis, therefore, he should be transferred in Gevra area. She further submits that even after this application of pre-transfer date, the authorities did not transfer him to Gevra and he has been transferred to Jamna Kotma.
She further submits that even after this application of pre-transfer date, the authorities did not transfer him to Gevra and he has been transferred to Jamna Kotma. She also submits that according to the impugned order Annexure p3 many persons have been transferred to gevra from different places in which the petitioner could have been easily adjusted. It is important to mention about this fact here that the copy of representation, dated September 9, 2004, referred to in the order Annexure P5 has not been filed on record. Therefore, this Court is unable to find out as to what grounds were raised by the petitioner before the competent authority. ( 6 ) AFTER bare perusal of the order annexure P5 it appears that the competent authority has examined the representation of the petitioner in light of the instructions of central Vigilance Commission, Government of india. It is held by the authority that under the aforesaid instructions of Central Vigilance department only 134 security personnel have been transferred to different places and the transfer is not in infringement of any policy framed by the South Eastern Coalfields limited. ( 7 ) COUNSEL for the petitioner also could not point out as to how the transfer is bad in law and which of the policy was infringed by the department while transferring the petitioner. The law in relation to consideration of orders of transfer is now well settled. The Apex Court while dealing with the matter of Kendriya vidyalaya Sanghatan v. Damodar Prasad pandey, reported in 2004 (4) LLN 783, referring to the various decisions has observed as follows:"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 mala fide or infraction of any prescribed norms of principles governing the transfer [see Ambani Kanta Ray v. State of Orissa, 1995 (2) LLN 1089]. Unless the order of transfer is vitiated by mala fide or is made in violation of operative guidelines, the Court cannot interfere with it. (See: union of India v. S. L. Abbas AIR 1993 SC 2444: 1993 (4) SCC 357 : 1993-II-LLJ-626 ). Who should be transferred and posted where is a matter for the administrative authority to decide.
Unless the order of transfer is vitiated by mala fide or is made in violation of operative guidelines, the Court cannot interfere with it. (See: union of India v. S. L. Abbas AIR 1993 SC 2444: 1993 (4) SCC 357 : 1993-II-LLJ-626 ). Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of operative guidelines or rules the Courts should not ordinarily interfere with it. In Union of India and others v. Janardan Debanath and another AIR 2004 sc 1632 : 2004 (4) SCC 245 : 2004-II-LLJ-1057, 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 a 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 AIR 2001 SC 3309 : 2001 (8) SCC 574 : 2001-II-LLJ-1243. " ( 8 ) IN light of above observations and the principles enumerated in various judicial pronouncements of the Apex Court, now it is clear that the transfer which is an incidence of service can only be interfered with when the same is shown to be arbitrary or mala fide or passed in infraction of any prescribed norms of principles governing the transfers. If the guidelines are properly followed and the transfer is neither mala fide nor arbitrary and it does not infringe any right of the employee, the same cannot be interfered by the Courts in routine.
If the guidelines are properly followed and the transfer is neither mala fide nor arbitrary and it does not infringe any right of the employee, the same cannot be interfered by the Courts in routine. The case would have been differently governed when the employee claims that he was working on a non-transferable post and the transfer was not an incidence of his service. ( 9 ) APPLYING the aforesaid principles in the present case, it seems that the petitioner has challenged the transfer on his personal grounds only. No ground of mala fides or arbitrariness or violation of norms, of transfer have been raised. The order of transfer is also a general transfer order. Such orders cannot be set aside or interfered with by the Courts on personal grounds. In the opinion of this Court, the authority has rightly rejected the representation of the petitioner by testing its competency on the touch stone of the guidelines and instructions and no interference is required in the same. A person working in the security section which in fact is other than a civil post carries more responsibility than working in the general civil services. Their postings are made in accordance with the security oriented necessary of the department. Their cases cannot be viewed by general eye. In the opinion of this Court, even rejection of the representation cannot be said to be illegal or arbitrary. The petition has no merit and is dismissed. ( 10 ) CONSEQUENTLY, M. W. P. No. 4224 of 2004 stands disposed of. ( 11 ) WRIT petition dismissed. --- *** --- .