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2024 DIGILAW 504 (RAJ)

Sunil Kumar v. Jaipur Vidyut Vitaran Nigam Ltd.

2024-03-22

SAMEER JAIN

body2024
ORDER : (Sameer Jain, J.) The instant petition is filed under Article 226 of the Constitution of India, whereby a challenge is raised against the impugned transfer order dated 20.02.2024, by way of which, the petitioner has been transferred from the Office of AEN(MST), Kota to the Office of AEN(O&M), Baseri. 2. Being aggrieved of the impugned transfer order, learned counsel for the petitioner has challenged the same, on the following grounds, namely:- 2.1. That the petitioner is a low-paid employee. 2.2. That the petitioner's seniority is to be maintained at the Divisional Level. Therefore, the impugned order, whereby an inter district transfer is effectuated, is in contravention of the Rajasthan State Electricity Board (Technical Workmen) Service Regulations, 1975. 3. In support of the arguments noted above, learned counsel placed reliance upon certain interim orders, passed by this Court, which are marked as Annexure-6. 4. Per contra, learned counsel for the respondent-employer has vehemently opposed the instant petition and submitted that the scope of judicial interference is minimal in transfer orders, especially when the same are passed on account of administrative exigencies. 5. Heard learned counsel for both the sides and scanned through the record of the petition. 6. At the outset, it is noted that the Hon'ble Apex Court, through a plethora of judgments, has time and again held that the permissibility and scope of judicial review against transfer orders is miniscule. The rationale exercised to circumscribe the Courts interference with transfer orders whilst exercising writ jurisdiction, primarily pertains to the fact that a bedlam of an aggravated magnitude shall ensue within the workings of the Government, if all employees, posted at a location of their liking, refuse to and/or contest their postings, when issued on account of administrative exigencies. Inevitably, the only scope of interference subsists in an eventuality where the transfer orders are issued on account of certain malafides, at the end of the transferring authority. 7. In Varadha Rao v. State of Karnataka and Ors. reported in (1986) 4 SCC 131 , the Hon'ble Apex Court held as under:- "We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension' in Rule 19(1)(a) must be construed ejusdem generis. The words 'or other conditions of service' in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension' in Rule 19(1)(a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave etc. It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post." 8. The Hon'ble Apex Court in Rajendra Roy v. Union of India and Anr. reported in (1993) 1 SCC 148 , has held that the order of transfer is a natural consequence of service, especially when the transferred employee is rendering his services on a transferable post. The relevant extract is reproduced herein-under:- "It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score 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, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents is passing the impugned order of transfer." 9. Similarly, in Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. reported in 1991 Supp. We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents is passing the impugned order of transfer." 9. Similarly, in Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. reported in 1991 Supp. (2) SCC 659, the Hon'ble Apex Court propelled that the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. 10. Furthermore, in National Hydroelectric Power Corporation Ltd. v. Shri. Bhagwan reported in (2001) 8 SCC 574 , the Hon'ble Apex Court held as under:- "On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well-settled and often reiterated by this Court that no Government servant or employee of public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. 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 are 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. Along the aforesaid lines, the Hon'ble Apex Court in S.K. Nausad Rahaman v. Union of India and Ors. reported in (2022) 12 SCC 1 , held that it is the exigencies of service and administration which shall have the paramount say in 'when' and 'where' an employee shall be posted. Along the aforesaid lines, the Hon'ble Apex Court in S.K. Nausad Rahaman v. Union of India and Ors. reported in (2022) 12 SCC 1 , held that it is the exigencies of service and administration which shall have the paramount say in 'when' and 'where' an employee shall be posted. Resultantly, an employee's posting at a place of their liking, especially when employed on a transferable job, invariably does not constitute their fundamental right which ought to be protected by the Courts. 12. In summation, this Court is of the view that the consideration regarding which employee should be posted 'where', falls purely within the administrative domain of the appropriate authority/department to decide, in the best interests of the working of the said department, whilst seeking to advance the department's resultant output and service efficiency. Unless the order is vitiated by mala fides or is passed in violation of any applicable statutory provisions, the Courts ought not to extend interference in such orders. By logical deduction, it is made rather obvious that no Government will be able to smoothly function if the Government Servants insist that once appointed or posted in a particular place, they should continue at such place, as long as they desire whilst meeting out their individualistic and familial ease. The fact of the transfer being an indispensable part of an employee's service is of paramount importance, which often loses favourability at the end of the employee, when they become comfortable with the place of their choosing. 13. Resultantly, it is noted that a government employee, posted at a location of their liking, does not have the fundamental protection to continue serving at the said location, especially in light of the fact that the incident of transfer, is a part and parcel of the conditions of service, when employed on a transferable post. It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score alone, the order of transfer cannot be struck down. Administrative exigencies ought to prevail and/or take precedence over the familial and individualistic priorities of the employees posted on transferable jobs. The only eventuality, where the Courts may extend interference in transfer orders, is when the transfer orders violate an applicable statute or are passed on account of certain malice. Administrative exigencies ought to prevail and/or take precedence over the familial and individualistic priorities of the employees posted on transferable jobs. The only eventuality, where the Courts may extend interference in transfer orders, is when the transfer orders violate an applicable statute or are passed on account of certain malice. In the absence of any specific malafides alleged, the Courts interference is largely curtailed by the plethora of judicial pronouncements noted above. 14. Additionally, in the facts and circumstances of the present case, this Court is further not inclined to interfere with the impugned transfer order dated 20.02.2024, for the following reasons as well, namely:- 14.1.That the order impugned dated 20.02.2024, is a common order transferring over 95 employees, within the State of Rajasthan, on account of administrative exigencies in the workings of the respondent-employer, which is public utility department.. The name of the petitioner is reflected at Sr. No. 7. 14.2.That transfer policies ought to be complied with in letter and spirit. However, in public utility departments, where the nature of services rendered is flexible and volatile, on account of administrative exigencies, deviations can be made and accordingly, transfers can be ordered. 14.3.Qua the submission of learned counsel for the petitioner regarding the disturbance of his seniority on account of the inter-district transfer, learned counsel for the respondents satisfied the Court by submitting at Bar that seniority is ascertained on the basis of the timeframe/period of services of the employee. Therefore, the mere transfer of the petitioner from one district to another, shall not affect the seniority of the petitioner. 14.4.What constitutes an administrative exigency, can be ascertained by the employer itself, best equipped to understand the nuances of the workings of their Department. The Court, by no stretch of judicial intervention and in the limited arena of its knowledge of the workings of the public departments, can ponder on the question that whether or not an administrative exigency subsisted. 14.5.In public utility services, transfer is a part and parcel of service and the petitioner does not possess a vested right to continue serving at the place of their liking/choice. 15. 14.5.In public utility services, transfer is a part and parcel of service and the petitioner does not possess a vested right to continue serving at the place of their liking/choice. 15. Accordingly, in light of the foregoing observations and placing reliance upon the dictum of the Hon'ble Apex Court as enunciated in Varadha Rao (Supra), Rajendra Roy (Supra), Shilpi Bose (Supra), National Hydroelectric Power Corporation (Supra) and S.K. Nausad Rahaman (Supra), this Court deems it appropriate to dismiss the instant petition. 16. As a result, the instant petition is dismissed. Pending applications, if any, stand disposed of.