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2005 DIGILAW 251 (ORI)

Commissioner, Kendriya Vidyalaya Sangathan v. Archana Jena

2005-04-13

I.M.QUDDUSI, N.PRUSTY

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JUDGMENT I. M. QUDDUSI, J. — This writ petition has been filed against the impugned order passed by the learned Central Adminis¬trative Tribunal, Cuttack Bench, Cuttack dated 5.11.2004 and 14.2.2005 in M.A. 715/2004 and MA. 72/05 respectively arising out of O.A. No.609 of 2004. 2. When this writ petition was taken up as a fresh matter, this Court vide order dated 31.3.2005 issued notice to the oppo¬site parties and also passed interim order in Misc. Case No.3442 of 2005 staying operation of the impugned order of transfer. 3. Learned counsel for opposite party No.1 thereafter has filed Misc. Case No.4512 of 2005 for vacation of interim order dated 31.3.2005. Since the learned counsel for the parties have been heard at length, we are of the view that the writ petition itself be decided finally at the admission stage. Therefore, the same is being disposed of as under. 4. The brief facts of the case, are that the opposite party No.1, who is at present working as T.G.T. (Biology) in Kendriya Vidyalaya, Tatanagar under Jharkhand Region has filed O.A. No.609 of 2004 before the Central Administrative Tribunal, Cuttack Bench, Cuttack challenging her order of transfer from Cuttack to Tatanagar dated 31.3.2003 with a prayer to issue direction to the Opposite Parties to transfer her from Tatanagar to Cuttack and/or to any other nearby place where the vacancy exists. Two Miscellaneous Applications were consequently filed and the same were registered as M.A.715 of 2004 and M.A.72 of 2005. The learned Tribunal vide its order 5.11.2004 passed an interim order in M.A.715 of 2004 directing the respondents to post the opposite party No.1 (petitioner before the Tribunal) namely, Archana Jena as T.G.T. (Biology) in the second shift of KV No.1 at Bhubaneswar by keeping in mind the difficulties expe¬rienced by her on being posted at Tatanagar. The Miscellaneous Application was disposed of accordingly. The operative part of the order of the Tribunal dated 5.11.2004 is quoted hereunder: “xxx xxx xxx The respondents are hereby directed to post the Applicant as TGT (Biology) in the second shift of KV No.1 at Bhubaneswar; by keeping in mind the difficulties being experienced by the applicant being posted at KV Tatanagar.” 5. The operative part of the order of the Tribunal dated 5.11.2004 is quoted hereunder: “xxx xxx xxx The respondents are hereby directed to post the Applicant as TGT (Biology) in the second shift of KV No.1 at Bhubaneswar; by keeping in mind the difficulties being experienced by the applicant being posted at KV Tatanagar.” 5. Thereafter on 14.2.2005 the Central Administrative Tribunal passed an interim order in the above, the relevant por¬tion of which is also quoted hereunder: “xxx xxx xxx Since a clear vacancy is available at KVS No.1 Bhubaneswar and since poor lady (App) is experiencing a lot of difficulties at her family front, the authorities of KVS headquarters shall do well in expediting the matter of posting the Applicant as TGT (Biology) at KVS No.1 Bhubaneswar expeditiously. With this observation, this M.A. No.72/05 is hereby disposed of requiring the Respondents to pass necessary posting orders in favour of the Applicant as TGT (Biology) at KVS No.1 Bhubaneswar (second shift) by end of February 2005.” 6. Normally we do not interfere with the interim orders passed by the Tribunal, but in the peculiar circumstances of the case, we are compelled to interfere with the same as we find it necessary due to the reason that the orders passed by the Tribu¬nal are prima facie beyond its jurisdiction. 7. In the case of Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey reported in AIR 2004 SC 4850 it has been held by the Hon’ble Apex Court that when a teacher of Kendriya Vidyalaya Sangathan was transferred from the state of Madhya Pradesh to the state of Jammu & Kashmir, filed a petition in the Administrative Tribunal and when the Administrative Tribunal recorded categori¬cal finding that no mala fide was involved in an order of trans¬fer and the High Court had not disturbed those findings, in such a case a direction given by the High Court that the petitioner-teacher of a Kendriya Vidyalaya Sangathan should be posted some¬where in Madhya Pradesh, was not sustainable in the eye of law. The relevant paragraph-4 of the judgment is quoted as under : “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 (Suppl) 4 SCC 169). Unless the order of transfer is visited 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 ). 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 any guidelines or rules the Courts should not ordinarily interfere with it. In Union of India & Others v. Janardan Debanath & Another (2004) 4 SCC 245 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 condi¬tion 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 inter¬est of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhawan (2001) 8 SCC 574 .” 8. In the case of State of U.P. v. Gobardhan Lal reported in AIR 2004 SC 2165 the Hon’ble apex Court held 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. In the case of State of U.P. v. Gobardhan Lal reported in AIR 2004 SC 2165 the Hon’ble apex Court held 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 ap¬pointment 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 or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of trans¬fer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or con¬taining transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher author¬ities for redress but cannot have the 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. Paragraphs 9 and 10 of the judgment are also repro¬duced as under : “9. 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. Paragraphs 9 and 10 of the judgment are also repro¬duced as under : “9. 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 author¬ities 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 the concrete materials and ought not 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 inter¬ference could ordinarily be made with an order of transfer. 10. The very questions involved, as found noticed by the High Court in these cases, being disputed questions of facts, there was hardly any scope for the High Court to generalize the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write-ups in journals or newspaper reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the in-built powers of supervision and control in the hierarchy of the administration of State or any Authority as well as the basic concepts and well-recognized powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observa¬tions and directions unmindful of the anarchy which it may create in ensuring an effective supervision and control and running of administration merely on certain assumed notions of orderli¬ness expected from the authorities affecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the concerned authorities, the Courts and Tribunals, as the case may be, to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognized grounds or reasons, when properly approached and sought to be vindicated in the manner known to and in accordance with law. No such generalized directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and en¬croachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously Courts endeavour to safeguard the rights of parties.” 9. In the above principle laid down by the Hon’ble apex Court and also there is catena of decisions that the order of transfer made even in transgression of administrative guidelines cannot be interfered with as they do not confer any legally en¬forceable rights on a transferred Government servant, the Tribu¬nal was wrong in directing the petitioners to post and transfer opposite party No.1 at a particular place by way of interim order and there is no doubt that the impugned order passed by the Tribunal was beyond its judicial powers. 10. The instant case is similar to the case of Kendriya Vidyalaya Sangathan (supra) as in the instant matter when the opposite party No.1-teacher in Kendriya Vidyalaya Sangathan was transferred from Cuttack (Orissa) to Tatanagar (Jharkhand) and took over charge there and worked at Tatanagar, filed her O.A. before the Central Administrative Tribunal, the Tribunal issued directions to post the petitioner at Bhubaneswar (Orissa), though by way of interim order. However, that interim order amounts to final disposal of the Original Application. 11. In view of the above mentioned facts and circumstances, we are inclined to interfere with the impugned orders of the Tribunal which are no doubt without jurisdiction. 12. In view of the aforesaid facts and circumstances, the writ petition is allowed. The impugned order passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack in M.A. No. 715 of 2004 and M.A. 72 of 2005 dated 5.11.2004 and 14.2.2005 respectively arising out of O.A. No.609 of 2004 are quashed. N. PRUSTY, J. I agree. Petition allowed.