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Madhya Pradesh High Court · body

2008 DIGILAW 1001 (MP)

RAJESH GUPTA v. BSNL

2008-08-11

SHANTANU KEMKAR

body2008
Judgment ( 1. ) THE petitioner is holding the post of General Manger (Telecom) in the respondent Bharat Sanchar Nigam Limited (for short bsnl ). He has been transferred from Ujjain (MP Circle) to Shilong (NE-1 Circle) vide order dated 30-06-08 (Annexure P-1) and relieved vide order dated 30-06-08 (Annexure p-2a ). On 30-06-08 itself the third respondent who was posted in place of petitioner assumed the charge of the post held by the petitioner. Feeling aggrieved the petitioner filed a representation (Annexure P-2) and has filed this petition. ( 2. ) ACCORDING to the petitioner he has been transferred only to accommodate the third respondent. He stated that the third respondent who was posted at Shajapur was promoted and was posted at Jabalpur but he got his posting at Jabalpur cancelled and managed his posting at Ujjain. He alleges mala fides in his transfer on the ground that on 30-06-08 the impugned transfer order was issued from Delhi. On 30-06-08 itself he has been ordered to be relieved and on the same day the third respondent was relieved from Shajapur and joined at Ujjain. He therefore alleges that every action was already set in favour of the third respondent so that he can immediately join at Ujjain. The petitioner further alleges that his transfer order is contrary to the transfer policy of the BSNL dated 07-05-08 (Annexure P-5 ). His case is that he has not completed minimum period of three years at Ujjain location and circle tenure of eight years in M. P. Circle. In the circumstances there is violation of Clause 11 (a) and (b) of the Transfer policy. He has also stated that other officers of the same cadre have not been transferred even though they have completed the Circle tenure of eight years. ( 3. ) THE respondent Nos. 1 and 2 in their reply have denied the allegation of the petitioner that he has been transferred to accommodate the third respondent. It is stated that the petitioner has been working in M. P. Circle for more than seven years and as such he has been transferred. ( 3. ) THE respondent Nos. 1 and 2 in their reply have denied the allegation of the petitioner that he has been transferred to accommodate the third respondent. It is stated that the petitioner has been working in M. P. Circle for more than seven years and as such he has been transferred. According to the respondents the observance of condition of minimum period of three years at a location will not be applicable in the case of the petitioner in view of the fact that he is nearing completion of eight years in M. P. Circle and therefore location tenure of three years has no application and will not come in the way of petitioners transfer out of circle. As regards allegation of mala fide the respondents have stated that merely because on the day of transfer the petitioner has been relieved and the third respondent has joined the office at Ujjain after his relieving from shajapur the same cannot be a ground to hold that there is any mala fide on the part of the respondents. According to them in view of the short distance between ujjain, Dewas and Shajapur and also the fast modes of communication and transportation it cannot be said to be impossible or impracticable event. As regards the instances shown by the petitioner in regard to other officers that even after completion of the circle tenure they have not been transferred. It has been stated by the respondents that if other officers have been retained beyond the normal period of Circle tenure it will not give any right to the petitioner to claim his retention in M. P. Circle. According to them it is for the management to consider and decide as to who has to be retained and who has to be transferred. It is stated in the absence of mala fide or breach of statutory rule the Court will not interfere into such administrative decision. ( 4. ) THE third respondent filed reply and has stated that he was promoted from Junior Administrative Grade of ITS Group a to Senior administrative Grade of ITS Group a vide order dated 30-05-08 (Annexure r-3-1) and was posted from Shajapur to Jabalpur. According to him prior to his posting at Shajapur he was posted at Jamnagar and Nadiad in Gujarat Circle. According to him prior to his posting at Shajapur he was posted at Jamnagar and Nadiad in Gujarat Circle. Before completion of his tenure posting at Gujarat Circle and even before his promotion order dated 30-05-08 he had submitted representation on 05-05-06 (Annexure R-3-2) seeking his transfer in M. P. Circle giving preference of places seeking his posting at Indore, Dewas, Ujjain or Ratlam stating therein his personal grounds for posting on either of these places. Again on 11-08-06 (Annexure R-3-3) the prayer for his transfer to the aforesaid places was reiterated. Thereafter when he was transferred and posted at Shajapur he submitted a representation (Annexure R-3-4) claiming that on his promotion he be posted either to Ujjain, indore or Bhopal for the personal grounds. However, on his promotion vide order dated 30-05-08 (Annexure R-3-5) he was not posted at the places which he was demanding since long but at Jabalpur. In the circumstances he submitted another representation on 12-06-08 (Annexure R-3-7) to change his place of posting on promotion from Jabalpur to either Indore, Ujjain to Ratlam enabling him to look after his family on the ground stated by him in the representation. According to him considering the aforesaid representations including the representation (Annexure R-3-7) the BSNL has acceded to his request and changed the place of his posting from Jabalpur to Ujjain. Thus according to the third respondent his place of posting has been modified on account of his persistent demand for posting at either Indore, Ujjain, Bhopal or Ratlam on account of his family problems and for not any other reasons. It is also stated that apart from a representation dated 30-06-08 (Annexure P-2) the petitioner has again submitted a representation (Annexure R-3-12) on 04-07-08 before the BSNL but without waiting for the decision on it has rushed to this Court by filing this petition. ( 5. ) THE petitioner has filed rejoinder and has stated that he has not completed eight years in M. P. Circle and would be completing eight years only in september 2008 and before completion of Circle tenure he could not have been transferred to Shilong (NE-1 Circle) in view of Clause 11 (a) of the transfer policy. ( 6. ) HEARD learned Counsel for the parties and considered the averments made in the petition, returns and rejoinder. ( 7. ( 6. ) HEARD learned Counsel for the parties and considered the averments made in the petition, returns and rejoinder. ( 7. ) THE petitioner is holding the post of General Manager (Telecom)and has been posted in the M. P. Circle since the year 2000. For a continuous period of seven years he was stationed at Bhopal and from 19-07-07 he was at ujjain. In the circumstances when only few months prior to the completion of eight years of Circle tenure he has been transferred out of Circle he cannot come forward with a plea that he has not completed three years at location Ujjain. In order to successfully challenge the transfer order the petitioner was required to establish mala fide or breach of statutory rule. In the present case neither of the two grounds are existing. The challenge of the petitioner on the ground that his transfer is in violation of the transfer policy is of no merit. Clause 11 (a) of Section-B of transfer policy (Annexure P-5) provides that transfer of SAG or equivalent level Executives shall be on the basis of circle tenure of eight years. Clause 11 (b) provides for minimum period of three years at a location shall be maintained as far as possible in order to avoid hardship to the employees. On conjoint reading of Clause 11 (a) and (b) of the transfer policy the petitioners contention that even though he is nearing completion of circle tenure of eight years he cannot be transferred since he has not completed three years at location Ujjain, to my mind is wholly misconceived and cannot be accepted. Even otherwise the conditions of the policy will not give any right to the petitioner to claim that he cannot be transferred before completion of eight years of tenure service. The Supreme Court in case of Union of India and others Vs. S. L. Abbas, AIR 1993 SC 2444 , has held that guidelines issued by the Government in regard to the transfer do not confer upon employees legally enforceable right. In case order of transfer made without following guidelines the same cannot be interfered with by the Court unless it is vitiated by mala fides or is passed in violation of statutory provision. ( 8. In case order of transfer made without following guidelines the same cannot be interfered with by the Court unless it is vitiated by mala fides or is passed in violation of statutory provision. ( 8. ) AS regards the posting of the third respondent in place of the petitioner, I find that the same has been ordered after consideration of his representation to avoid inconvenience to him. The petitioner having only few months to complete the circle tenure if has been transferred he cannot make any grievance about the posting of the third respondent which has been made considering his personal difficulties. The Supreme Court in case of Ms. Shilpi bose and others Vs. State of Bihar and others, AIR 1991 SC 532 has held that where a competent authority issues transfer order with a view to accommodate a public servant to avoid hardship the same cannot and should not be interfered with by the Court merely because the transfer orders were passed on the request of employees concerned. It is further observed by the Supreme Court that the court should not interfere with transfer orders which are made in public interest and for administrative reasons, unless the same 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 other. He is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any legal right. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead the affected party should approach the higher authority in the department. In case of National Hydroelectric power Corporation Limited Vs. Shri Bhagwan and another, AIR 2001 SC 3310, it has been held by the Supreme Court that any government servant or employee or public undertaking has no legal right to be posted forever at any one particular place. Transfer is not only an incident but a condition of service in case of an employee who is appointed on a transferable post. ( 9. Transfer is not only an incident but a condition of service in case of an employee who is appointed on a transferable post. ( 9. ) HAVING regard to the aforesaid legal position and the fact that the petitioner has been transferred out of M. P. Circle only when he is nearing completion of eight years in M. P. Circle and the fact that the petitioner could not establish mala fide or breach of statutory rule in my considered view no case is made out warranting interference by this Court in a petition under Article 226 of the Constitution of India. ( 10. ) ACCORDINGLY, for the reasons stated above the petition is having no merit and the same deserves to be and is hereby dismissed. The interim ex-parte order dated 17-07-08 is vacated. No order as to costs.