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2014 DIGILAW 590 (GAU)

UNION OF INDIA v. RANJEET KUMAR

2014-06-04

A.K.GOSWAMI, A.M.SAPRE

body2014
JUDGMENT : - A.M. Sapre, J. By this writ petition filed by the Union of India (Ministry of Home Affairs) – who was non-applicant of O.A. No 69 of 2013 under Article 227 of the Constitution of India, the writ petitioner challenges the order dated 4.12.2013 passed by Central Administrative Tribunal (for short hereinafter referred to as “CAT”) in aforementioned O.A. By impugned order, the CAT allowed the original application of the respondent herein (applicant before the CAT) and granted him the relief which he had claimed in his original application against the writ petitioner. So the short question, which arises for consideration in this writ petition is whether CAT was justified in allowing the original application of the respondent and thereby was justified in granting him the relief claimed in the original application? Facts of the case lie in a narrow compass. The respondent is working in the Defence establishment of Union of India as Hindi Teacher. He is posted in a school known as “Assam Rifles Nodal School at Dimapur in state of Nagaland.” By general order of transfer issued on 15.2.2013, as many as 47 employees were transferred to various places. The transfer order said that only those employees are transferred who have completed their normal period of tenure at one place i.e. 3 years or so. So far as respondent was concerned, he was in this list and was accordingly transferred to another School known as “Assam Shakhuvi Rifles Nadal School at Thoubal in State of Manipur“. It is against this transfer order, the respondent felt aggrieved and filed the original application out of which this writ petition arises challenging its legality and correctness. In substance, the transfer order was challenged on the ground that firstly since the petitioner had not completed normal tenure of 3 years in Dimapur and hence he could not have been transferred to any other place and secondly since the petitioner is pursuing his studies in Dimapur and the course is to be over by September, 2014 and hence he be allowed to remain at Dimapur. By impugned order, the CAT allowed the original application and set aside the impugned transfer order, which has now given rise to filing of the writ petition by the Union of India. Heard Ms. J Huda, learned Central Govt. Counsel for the petitioners and Ms. B Choudhury, learned counsel for the respondent. By impugned order, the CAT allowed the original application and set aside the impugned transfer order, which has now given rise to filing of the writ petition by the Union of India. Heard Ms. J Huda, learned Central Govt. Counsel for the petitioners and Ms. B Choudhury, learned counsel for the respondent. Having heard learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the writ petition and while setting aside the impugned order, dismiss the OA filed by respondent out of which this writ petition arises and in turn uphold the transfer order dated 15.2.2013 as being legal and proper. At the outset, we may take note of certain well-settled principles, which govern the cases relating to transfer of an employee in service jurisprudence. The transfer of any employee from "A" place to "B" by his employer is always regarded as an incidence of his service condition. Indeed, it is inherent in his service conditions. It is the right of an employer to transfer his/her employees to any place depending upon the exigencies, requirements and need etc. No employee can legally assert that he has a right to remain at a particular place for all his service tenure or only to remain at a place of his choice, if transferred. It is, therefore, always regarded as an administrative decision on the part of an employer, while ordering transfer of any particular employee or particular set of employees to a particular place. This right cannot be challenged by an employee. In other words, only because an employee is asked to go to a place, which may or may not be of his liking would not be a ground to seek judicial protection against such order. In other words, such action on the part of an employer cannot be made subject matter of judicial scrutiny in writ jurisdiction, nor does it give rise to any cause of action to successfully assail in Court or Tribunal on the well-settled parameters, judicially recognized by Courts. However, there are certain well-defined exceptions carved out by judicial precedents as to under what circumstances, the writ court or to say any Court or Tribunal is competent to examine the legality and correctness of any transfer order. However, there are certain well-defined exceptions carved out by judicial precedents as to under what circumstances, the writ court or to say any Court or Tribunal is competent to examine the legality and correctness of any transfer order. These exceptions broadly are - if the transfer order is issued by a competent authority with some definite malice against the employee or when it is found to have been issued against any statutory provisions, which govern such transfer, or when it is found to be ex facie arbitrary, or is issued by a person not competent to issue such order, or when it is found to be contrary to terms of service condition or/and any statutory policy etc. These are usually the grounds, which are made basis to examine the legality and correctness of transfer order on judicial side. Keeping in view the aforesaid principle in consideration, when we examine the facts of the case in hand then we find that the Tribunal was not right in interfering in the transfer order transferring respondent from 41 Assam Rifles, ARTC&S, Dimapur to 15 Assam Rifles at Thoubal, Manipur and the grounds on which the transfer order was assailed were not sufficient to quash the transfer order. Learned counsel for the respondent (applicant) contended that although the impugned order says that only those employees are transferred out of Dimapur who have completed their normal period of tenure, but since the respondent has not yet completed his full tenure on the post presently held by him, he having joined on the post in 2012, he should not have been transferred till completion of his tenure. We find no merit in this submission as it is factually incorrect. As rightly pointed out by the learned counsel for the writ petitioner and we are inclined to accept this submission that respondent has in fact completed more than 3 years at Dimapur because he has been working at different places in the same area and it was only since one year, he was attached to the present post. In this way, taking his total period at one place i.e. more than 4 years, he was rightly transferred along with 47 employees alike him. In such case, what is important is a duration to stay at a particular place and not his duration of working on a particular post. In this way, taking his total period at one place i.e. more than 4 years, he was rightly transferred along with 47 employees alike him. In such case, what is important is a duration to stay at a particular place and not his duration of working on a particular post. Learned Counsel for the respondent then argued that respondent is pursuing some courses and they would be completed by September 2014 and hence he be allowed to remain at Dimapur till the end of this year at Dimapur. We do not agree. This does not involve any judicial scrutiny and nor this court is empowered to monitor the day to day administrative matters of any department of Union/State. It is the job of concern heads of department to deal with such transfer and such issue cannot be made subject matter of judicial scrutiny. In the light of foregoing discussion, we cannot concur with the reasoning and conclusion arrived at by the CAT when it interfered in the transfer order of the respondent. In our view, there was no case made out for interfering in the transfer order, which no employee challenged except the writ petitioner. As a result of foregoing discussion, the writ petition succeeds and is allowed. Impugned order is set aside. As a consequence, the original application out of which the writ petition arises is dismissed resulting in upholding of the transfer order dated 15.2.2013 as being legal and proper. The respondent is granted two weeks time from the date of this order to join at transferred place as per the transfer order dated 15.2.2013, failing which, appropriate action for non-compliance of the transfer order be initiated against the respondent in accordance with law. No cost.