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2007 DIGILAW 2237 (PNJ)

Union Of India v. Ashok Kumar

2007-12-21

HEMANT GUPTA, MOHINDER PAL

body2007
Judgment Hemant Gupta, J. 1. The challenge in the present writ petition is to the order dated 18.05.2007 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter to be referred as "the Tribunal") whereby orders dated 17.08.2006 and 25.08.2006, Annexures A-1 and A-2 respectively, transferring respondent No. 1, were set aside. 2. Respondent No. 1 was working as Fireman Grade-I and posted in the office of Garrison Engineer, Engineer Park, Bathinda Mill Station, Bathinda. Respondent No. 1 made complaint against one Iqbal Singh, Fireman Grade-I. On the basis of the complaint, disciplinary proceedings were initiated against said Iqbal Singh. Subsequently, another communication was addressed by respondent No. 1 for closing of the case as it was pointed out that said Iqbal Singh has neither misleading attitude nor any misbehaviour. 3. A show cause notice dated 4.2.2005 was issued to respondent No. 1 as to why disciplinary action should not be taken against him for giving misleading statement/information. An Enquiry Officer was appointed since respondent No. 1 failed to respondent to the notice. Subsequently, said respondent was transferred from Bathinda to Suratgarh vide order dated 17.08.2006 which was challenged by the said respondent before the Tribunal by moving an application under section 19 of the Administrative Tribunals Act, 1985 (hereinafter to be referred as "the Act"). 4. It was pointed out in reply that respondent No. 1 has been transferred on administrative ground. The cadre of Fireman is based on the Command Level seniority and, therefore, the transfer was not outside the cadre. The learned Tribunal allowed the application filed by respondent No. 1 under the Act, inter alia, holding that such transfer is against the posting/transfer policy dated 9.2.2004. It was pointed out that show cause notice dated 4.2.2005 is not a notice under CCS (CCA) Rules, 1965 (hereinafter to be referred as "the Rules", therefore, it cannot be said any disciplinary proceedings are pending against respondent No. 1 which alone will entitle the present petitioner to transfer the said respondent. It was also found that respondent No. 1 alone was transferred and that too during the middle of academic year which is not permissible in terms of the policy. Still further, the seniority of respondent No. 1 has been ordered to be reckoned from the date of his reporting the duty at new Unit which will cause prejudice to the said respondent. 5. Still further, the seniority of respondent No. 1 has been ordered to be reckoned from the date of his reporting the duty at new Unit which will cause prejudice to the said respondent. 5. Learned counsel for the petitioner referred to Para 4(v) of the written statement to contend that the finding recorded by the Tribunal that respondent No. 1 is to lose the seniority is factually incorrect. In the said paragraph, it has been averred that the cadre of the Fireman is based on the Command Level seniority and not at the Commander Works Engineer Level. It was also pointed out that the posting at Surtgarh is under the same Western Command and same Command Works Engineer and, therefore, the argument that the transfer is to affect the seniority of respondent No. 1 is not tenable. Apart from the said fact, learned counsel for the petitioner has stated at the bar that seniority of respondent No. 1 shall not be affected in any manner by his transfer to Suratgarh. In view of the above, the reasoning recorded by the Tribunal that respondent No. 1 shall lose his seniority is not tenable. 6. The primary reason which weighed with the Tribunal for interfering with the order of transfer was that it was mid term transfer and that disciplinary action has not been initiated against the said respondent under the Rules as required under Para 39(a) of the policy dated 9.2.2004, Annexure A-6. 7. Though factually the finding recorded by the Tribunal is incorrect that no proceedings have been initiated under the Rules. As a matter of fact, Annexure R-1 is Memorandum including the statement of imputation of misconduct issued to the respondent. Therefore, the finding recorded by the Tribunal is factually incorrect. Apart from the said fact, the question which is required to be examined is whether such posting and transfer policy confers any enforceable right in favour of respondent No.1 so as to challenge his transfer purportedly made on administrative ground before the Tribunal. Guidelines have been framed by the authorities to regulate their internal working and with a view to deal with different situations evenly. Such guidelines are not statutory in nature. Any departure from the said guidelines by itself does not give right to an employee to successfully challenge his transfer. Guidelines have been framed by the authorities to regulate their internal working and with a view to deal with different situations evenly. Such guidelines are not statutory in nature. Any departure from the said guidelines by itself does not give right to an employee to successfully challenge his transfer. The transfer can be challenged on limited grounds i.e., when the same is not within the cadre or the authority is not competent to order transfer or it is in violation of the statutory rules or actuated by mala fide. The transfer is normal incidence of service and an employee has no right to resist his transfer on the basis of alleged violation of the guidelines. The issue is not res integra. In Bank of India v. Jagjit Singh Mehta, 1992(1) SCT 161 : AIR 1992 SC 519, Honble Supreme Court was seized of the guidelines for posting husband and wife at one station even if their employers be different. The Court found that the only thing required in terms of the guidelines is that the departmental authorities should consider this aspect along with the exigencies of administration. Thus, no right is conferred on an employee to remain at the same place even if administrative exigency and transfer policy do not permit it. 8. In Union of India v. S.L. Abbas, 1995(4) SCT 455 : AIR 1993 SC 2444, Honble Supreme Court held to the following effect :- " Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer of vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guidelines, however, do not confer upon the Government employee a legally enforceable right". 9. Similarly, if a person makes any representation with respect to his transfer the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guidelines, however, do not confer upon the Government employee a legally enforceable right". 9. In State of U.P. v. Gobardhan Lal, 2004(2) SCT 368 : AIR 2004 SC 2165, Honble Supreme Court held that no government servant can 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 appointment 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. The administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving of 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. The order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable right unless shown to be vitiated by mala fides or is made in violation of any statutory provision. 10. In National Hydroelectric Power Corporation Limited v. Shri Bhagwan, 2002(1) SCT 236 : AIR 2001 SC 3309, Honble Supreme Court held that unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals 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 management, as against such orders passed in the interest of administrative exigencies of the service concerned. 11. In S.L. Abbass case (supra), Honble Supreme Court has held that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. 11. In S.L. Abbass case (supra), Honble Supreme Court has held that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A of the Constitution. The Central Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. 12. A Full Bench of this Court in Jagir Singh Kanungo v. The State of Punjab through the Secretary Vigilance, Punjab, Chandigarh, 1993(2) SCT 128 : 1993(1) Punjab Law Reporter 376, has the occasion to interpret the guidelines issued by the State of Punjab for conclusion of the inquiry proceedings in a time bound manner. It was held that if the enquiry proceedings are not completed within the aforesaid period, no right accrues to the employee to approach the Court of law for enforcement of those guidelines. It was held to the following effect :- ".......If the State Government have issued certain guidelines for the guidance of the various departments or the disciplinary authorities to impress upon them the necessity of finalising the departmental proceedings expeditiously or even within a fixed period, it does not mean that after the expiry of that period, a right in law accrues to the employee to approach the Court of law for the enforcement of those guidelines......" Keeping in view the aforesaid parameters and the scope of the jurisdiction of the Tribunal in an application under section 19 of the Act, we are of the opinion that the order passed by the Tribunal setting aside the order of transfer is illegal exercise of the jurisdiction by the Tribunal. The guidelines are not statutory and do not confer any legally enforceable right on the basis of which an employee can challenge his transfer. No doubt, normally, the guidelines are to be adhered to by the administrative authorities but their non-adherence will entitle an employee to bring such facts to the notice of the superior authorities but does not confer any right to seek quashing of the transfer either in an application under section 19 of the Act or under Article 226 of the Constitution of India. Under section 19 of the Act or under Article 226 of the Constitution, transfer order can be interfered with if it is shown to be vitiated by mala fide or in violation of the statutory provisions or having been passed by an authority not competent to pass such an order. Since none of the three conditions are satisfied in the case set up by respondent No. 1, the order passed by the Tribunal cannot be sustained in law. Consequently, we allow the present writ petition and set aside the impugned order passed by the Tribunal.