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2022 DIGILAW 778 (RAJ)

Ajay Pal Singh v. Union Of India

2022-03-07

ANOOP KUMAR DHAND, PANKAJ BHANDARI

body2022
JUDGMENT 1. Petitioner has preferred this Civil Writ Petition aggrieved by Order dated 13.01.2022 passed by Central Administrative Tribunal, Jaipur Bench, Jaipur in OA No.396/2021 with the prayer that the order passed by the Central Administrative Tribunal be quashed and further direction that the posting order dated 23.09.2021 and movement order dated 26.11.2021 be quashed and set aside. 2. It is contended by counsel for the petitioner that the petitioner was transferred by CORPS order, the policy of the respondents. As per the policy, petitioner could not have been transferred prior to the completion of the term of five years. It is also contended that as per the CORPS order dated 10.10.2013, the requests for posting of personnel from one unit to another, projected by the Cos/OsC units, on administrative grounds that the employees are creating hindrance in the smooth functioning of unit will not be accepted, since there are adequate provisions to deal with such cases. 3. It is also contended that in the reply filed by the respondents, it is evident that a recommendation was made by C.O. that the petitioner be transferred to another unit. It is contended that the reply filed by the respondents cast stigma on the petitioner. It is contended that since the reason for transfer was in the nature of stigma, the same cannot be sustained. 4. Counsel for the petitioner has placed reliance on "State of Rajasthan & Ors. v. Madho Singh Bhati, 2006 2 RLW (Raj.) 1347", wherein the Court held that exercise of power has been in abuse of authority delegated by the State Government, the same cannot be sustained. 5. Counsel for the petitioner has also placed reliance on "Somesh Tiwari v. Union of India (UOI) and Ors. AIR 2009 SC 1399 ", wherein Apex Court has held as under:- "19. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. 20. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. 20. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. 21. An enquiry was initiated against the appellant in terms of the allegations contained in an anonymous letter. Having regard to the directives of the Central Vigilance Commission, no enquiry could have been initiated against him but it is beyond any doubt or dispute that in the said enquiry, the allegations were found to be untrue. Despite the same not only an order of transfer was passed but to a station, which, according to the respondents themselves, was 'harsh'. The competent authority of appellant did not consider his initial representation. Admittedly an order of stay was passed by the Central Administrative Tribunal while disposing of O.A. No. 897 of 2005 dated 27th September, 2005. By reason of the said order passed by the Central Administrative Tribunal, it was obligatory on the part of the respondents to dispose of his representation. When it was rejected, he filed a fresh Original Application." 6. Counsel for the respondents has opposed the writ petition. It is contended that from bare perusal of the order dated 23.09.2021, it is evident that it was issued on administrative grounds. No stigma whatsoever has been cast upon the petitioner in the said order. It is also contended that petitioner belongs to a disciplined post and transfer on administrative grounds cannot be challenged before the Courts. 7. It is contended that from bare perusal of the order dated 23.09.2021, it is evident that it was issued on administrative grounds. No stigma whatsoever has been cast upon the petitioner in the said order. It is also contended that petitioner belongs to a disciplined post and transfer on administrative grounds cannot be challenged before the Courts. 7. Counsel for the respondents has placed reliance on "Registrar General High Court of Judicature at Madras v. R. Perachi and Ors. 2011 (5) SLR 760 ", "National Hydroelectric Power Corporation Ltd. v. (I) Shri Bhagwan (ii) Shiv Prakash 2002(1) Apex Court Judgments (SC)262" and "Rajendra Singh v. State of U.P. & Ors. 2010 (2) SLR 632", wherein Apex Court has held that a Government servant has not vested right to remain posted at a place of his choice nor he can insist that he must be posted at one place or the another and is liable to be transferred in the administrative exigencies. 8. We have considered the contentions and have perused the order passed by Central Administrative Tribunal, Jaipur. 9. Apex Court in the case of "Union of India & Ors. v. S.L. Abbas, AIR 1993 SC 2444 " has observed that an order of transfer is not only an incident but a condition of service. Who should be transferred where is a matter for the appropriate authority to decide. 10. It is informed by learned counsel appearing for the Union of India that the order dated 10.10.2013 passed by the CORPS is merely a guideline and is not having any statutory force. From perusal of the order, it is evident that it has been passed in administrative exigencies. It is only the reply in which respondents have given justification for proposing the transfer of the petitioner that has been bone contention of counsel for the petitioner. 11. We do not find anything material to quash the transfer order passed by the authorities. However, we make it clear that the reply given by the respondents or the impugned order of transfer would not be considered as stigma against the petitioner. 12. Considering the above, no ground is made out in the writ petition and the same is accordingly, dismissed. 13. Stay application stands disposed.