Research › Search › Judgment

Orissa High Court · body

2011 DIGILAW 218 (ORI)

Union of India v. Kishore Ch. Mohanty

2011-04-06

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT S.K. MISHRA, J. — The Union of India has preferred this Appeal against the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 415 of 2010, wherein it allowed the application filed by the opposite party and quashed his order of transfer from Cuttack to Rourkela. 2.It is borne out from records that the opposite party has been working as Programme Executive (PEX), All India Radio (in short, ‘AIR’), Cuttack. He has been transferred from Cuttack to Rourkela as per the order dated 4th August, 2010. Challenging such order of transfer, the opposite party filed the Original Application before the learned Tribunal, inter alia, pleading that Clause (xxi) of the policy of transfer of the All India Radio employees provides that there should be no transfer within a period of three years of retirement and if such transfer is inevitable, then effort should be made to post him nearer to his home town. It is further pleaded that Clause (xxi) further provides that as far as possible, the transfer should be synchronized at the end of the academic year, so that, education of children does not suffer. The opposite party further pleaded that he will be retiring w.e.f. January, 2013 and his son will be appearing +2 final examination. Hence, on the event of his transfer he could neither shift his family nor he being a Heart and BP patient can live at Rourkela alone. He, therefore, prayed before the Tribunal to quash the order of transfer. 3.Before the Tribunal, the present petitioners i.e. the Union of India and its officials filed their written counter affidavit, inter alia, pleading that the transfer is an incident of service and the Tribunal should not interfere with it. The learned Tribunal, after considering the materials on record, relied upon its earlier order passed in O.A. No. 301 of 2010 dated 29.06.2010 and quashed the order of transfer. Such order of transfer has been assailed in this writ petition. 4.Learned counsel appearing for the Union of India contended that transfer is an incident of service and secondly, transfer policy does have the force of a statute and its violation does not confer any right on the opposite party. Therefore, the Court should refrain from interfering such order. Such order of transfer has been assailed in this writ petition. 4.Learned counsel appearing for the Union of India contended that transfer is an incident of service and secondly, transfer policy does have the force of a statute and its violation does not confer any right on the opposite party. Therefore, the Court should refrain from interfering such order. Learned counsel for the opposite party, on the other hand, relying upon the reported case of Rajendra Roy v. Union of India and another, AIR 1993 S.C. 1236 contended that if a transfer order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, should be set aside by the Tribunal. Therefore, he prayed to dismiss the writ petition. 5.A careful reading of the aforesaid case reveals that the Hon’ble Supreme Court in that case observed that the order of transfer often causes difficulties and dislocation in the family set up of the concerned employees but on that score alone, the order of transfer is not liable to be struck down, unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification. However, the Supreme Court in that case holding that there being no material to draw any inference of mala fide in transferring the appellant to Calcutta, dismissed the appeal. 6.The Hon’ble Supreme Court in Union of India v. S.L. Abbas, AIR 1993 S.C. 2444 has observed that the Government instructions of transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer, unless the said order is alleged to have been passed by malice or it is made in violation of the statutory provision. On examination of the transfer policy, it is seen that it is a court guideline. It is not issued under the provisions of any statute. Therefore, the observation made in the case of S.L. Abbas (supra) is squarely applicable to this case. On examination of the transfer policy, it is seen that it is a court guideline. It is not issued under the provisions of any statute. Therefore, the observation made in the case of S.L. Abbas (supra) is squarely applicable to this case. 7.It is further noted that this Court in W.P.(C) No. 17767 of 2010 (Union of India and others v. Prakash Chandra Ray and others), as on similar fact set aside the order passed by the learned Tribunal on the following reasoning: “Law is well settled that an order of transfer can only be challenged on the ground of infraction of any statutory rule or on the ground of mala fides. Admittedly, there is no rule governing transfer of employees of All India Radio and only guidelines regarding such transfer are available. Admittedly also there is no allegation of mala fide in the Original Application filed before the Tribunal. Therefore, the entire case of the opposite party no.1 is dependent upon the guidelines. It is true that the guidelines prescribe that ordinarily an employee should not be transferred within three years prior to the date of retirement on superannuation. But the guidelines have no statutory force. Law is also well settled that guidelines are to be followed as far as practicable but when a transfer is made on administrative exigency one cannot take recourse to the guidelines as if it were statutory rules. The Tribunal in the impugned judgment has placed much reliance on the guidelines to set aside the order of transfer and we are unable to accept the findings of the Tribunal solely based on the guidelines relating to transfer of employees working in All India Radio. The order of transfer is on administrative grounds and therefore, infraction of the guidelines shall not confer jurisdiction on the Court to interfere with an order of transfer.” Thus, for the aforesaid reasons, the writ petition is allowed and the impugned judgment and order passed by the learned Tribunal is quashed. L. MOHAPATRA, J.I agree. Petition allowed.