Ashraf Zaidi Geelani vs NHPC Ltd And Others

Anoop Chitkara, J

Petitioner, a General Manager (Electrical) of National Hydro Power Corporation Ltd. (NHPC Ltd. in short), posted at Parbati-III, Power Station, Largi, Disgtrict Kullu, HP, has come up before this Court challenging his transfer order dated 13.07.2020 (Annexure P-1) primarily on three grounds; Firstly, that the employer is frequently transferring him in comparison to the similarly placed persons, which is arbitrary; secondly, the transfer has been effected before the completion of normal tenure as he was posted in the previous place of posting only on 4th May, 2019 and now within a short span of one year and two months he has been transferred to Chenab Valley Power Projects Pvt. Ltd. (CVPPPL), Kishtwar, Jammu & Kashmir; and lastly that Clause 3.17 of the Transfer Policy provides that any employee who is above 57 years of age would not be posted in hard locations as far as possible.

The respondents/NHPC has filed reply to the petition to which the petitioner filed rejoinder and thereafter the NHPC also filed sur-rejoinder to the same.

We have heard learned Counsel for the parties and gone through the case file. The parties did not raise any dispute with regard to the territorial jurisdiction of this Court to take up this matter.

Learned counsel for both the parties have placed reliance on various judicial pronouncements in support of their respective contentions and more particularly Mr. C.N. Singh, learned Counsel for the respondents relied upon Director of School Education Vs. O. Karuppa Thewan, 1994 Supp (2) SCC 666; State Bank of India vs. Anjan Sanyal, (2001) 5 SCC 508; Union of India vs. Deepak Niranjan Nath Pandit, (2020) 3 SCC 404, Punjab & Sind Bank vs. Durgesh Kuwar, 2020 SCC OnLine SC 774; and Airports Authority of India vs. Rajeev Ratan Pandey, (2009) 8 SCC 337.

Transfer is an incidence of service and the Courts would interfere only in exceptional circumstances like arbitrariness, mala fides, unreasonableness or violation of the terms of the transfer policy.

Mr. Karan Singh Kanwar, learned Counsel for the petitioner has drawn attention of this Court to Annexure P-3, wherein the history of the postings of the petitioner is mentioned right from 29.4.1992 to 2.5.2019. He states that in these 27 years petitioner was transferred on 14 occasions to different stations. He further submitted that he was lastly transferred on 4.5.2019 and now within a short span of one year and two months, he has again been transferred vide impugned transfer order dated 13.07.2020 (Annexure P-2).

On the other hand Mr. C.N. Singh, learned Counsel for the respondents/NHPC has drawn attention to this transfer order (Annexure P- 2) and has stated that this order is passed for as many as twelve employees and petitioner was not singled out and the said order was passed to implement the Kiru Hydro Electric Project of Chenab Valley Power Projects(P) Ltd. for which the contracts have been signed in the month of June, 2020, and now the Contractors are likely to be mobilized from July, 2020 and project is to commence immediately thereafter. Thus he states that the transfer is in public interest.

Undoubtedly, the NHPC is a listed Company, in which, as per the documents supplied by the respondents the stake of the Central Government despite being more than 50%, it is still answerable to the share holders who have also invested capital to the extent of 29% of equity. It also remains undisputed that delay in the project is likely to over run the cost, causing financial losses. Thus in the above background, we analyse the contentions of the parties.

As far as short stay is concerned, the petitioner is at the level of General Manager and requirement of project would certainly need a person holding that kind of experience. Thus, on this ground alone it does not lie to the petitioner to seek cancellation of his transfer.

However, Clause 3.17 of the transfer policy annexed in the petition as Annexure P-4 reads as follows:

"3.17 To the extent possible, posting of employees above 57 yrs of age to hard locations with difficult terrains/extreme climate conditions will be avoided. However, management would reserve the right to transfer out an employee to any location on organizational requirement."

A perusal of this clause reveals that posting of an employee above 57 years of age to hard locations, shall be avoided. Affidavit annexed to the petition mentions the age of the petitioner to be 57 years and the learned Counsel for the respondents/NHPC does not dispute that this project where the petitioner has been transferred falls in hard area. Such classification of hard area and soft area is mentioned in the Transfer Policy itself wherein Kiru Hydro Electric Project of CVPPPL is mentioned as a difficult positing in Clause 3.3-B under the heading 'Difficult Postings' Cluster-II.

Now the question that arises is whether the respondents/NHPC had some alternative arrangement for posting in place of the petitioner, who some how gets the protection of the transfer policy of the respondents itself?

Petitioner has filed rejoinder to the reply filed by the respondents and para-10 whereof reads as under:

"10. That the contents of para 10 of the preliminary submissions are wrong hence denied. The contents of the petition are reiterated. It is submitted that Sh. Pradeep Kumar Roy, General Manager (E), Employee No. 101702-H has been posted at TLDP- IV Power Station since 26.7.2012 which is a soft station. His superannuation is due ton 31.7.2032. Sh. Himangshu Saha, General Manager (E), Employee No. 101696-A has been posted at NHPC Corporate Office Faridabad since 26.6.2012 which is a soft station. His superannuation is due on 28.2.2027. Sh. Ramakanta Malik, General Manager (E), Employee No. 101764-H has been posted at NHPC Corporate Office, Faridabad since 5.5.2012 which is a soft station. His superannuation is due on 31.8.2028. Sh. Mithilesh Prasad Dinkar, General Manager (E), Employee No. 101727-V has been posted at NHPC Corporate Office, Faridabad since 11.4.2015, which is a soft station. His superannuation is due on 31.1.2030. These facts reveal that the petitioner has been targeted even though there are other Genral Manager (Electrical) who have completed their respective tenures on soft stations and are much younger in age as compared to the petitioner."

In response to this the respondents/NHPC has filed sur-rejoinder, para -10 whereof reads as under:

"10. That the contents of para 10 has already been submitted in the previous reply. Beside Sr. Officer Sh. Prit Pal Singh Wilkh, aged about 58 ½ years, General Manager, who is presently posted at Nimmo-Bazgo Power Station which is a hard Station has been again transferred to Dhauliganga Power Station, which is hard too due to urgency of work and organizational requirement. Copy of Letter dated 09.09.2020 is enclosed as Annexure R5. It confirm the fact that the replying respondent had been posting its higher ranking officer nearing their superannuation also at hard station and the petitioner cannot be an exception keeping organization requirement. Beside the Corporation is spending an amount of approx. Rs. 50 lac towards salary per annum including PRP, matching EPF, matching Pension Fund, etc. in favour of the Petitioner and it is for the corporation to utilize his service as per its organizational requirements. Where Petitioner's requirement is not needed, retaining him there is an absolute loss for the corporation. Copy of Pay slip for the month of August 2020 regarding the petitioner is enclosed herewith as Annexure R6. So far Officer Sh. Pardeep Kumar Roy & Himangshu Saha General Manager (E) are concerned, apart from work requirements, their posting is on medical grounds on account of their Specially abled Children, and Sh. Ramakanta Malik General Manager (E) stood transferred to Bhuneshwar (Orissa), rest of the contents has been further submitted above at para 5. It is also submitted that Sh. Mithlesh Prasad Dinkar, General Manager (Electrical) is at present associated with urgent works in Contracts Division at Corporate Office. Also, before posting to Corporate Office he was posted at Kishanganga Power Station, which is a difficult station as per Transfer Policy of NHPC. It is denied that petitioner has been targeted as alleged in this para."

A bare perusal of the response of the respondents/NHPC reveals that as far as Sh. Pradeep Kumar Roy & Himangshu Saha, both General Managers (E) are concerned they were posted in special case on account of their specially abled children. We will not go into this aspect because it is a matter between an employer and an employee. Now coming to the name of Sh. Ramakanta Malik, General Manager (E), he stands transferred to Bhuveneshwar (Orissa). After that coming to Sh. Mithlesh Prasad Dinkar, General Manager (E), the response of respondents/NHPC is that he is required with urgent work in Contracts Division at Corporate Office. It is further stated that before his posting to the Corporate Office he was posted at Kishanganga Power Station, which is a difficult station as per the Transfer Policy. However, there is a specific averment in the rejoinder which mentions that Sh. Mithlesh Prasad Dinkar, was posted in Corporate Office, Faridabad since 11.4.2015 and his superannuation is due on 31.1.2030.

Thus, it appears that the action of the respondents/ NHPC in transferring the petitioner, though it had alternate human resource available and could have complied with Clause 3.17 of their own Transfer Policy, is arbitrary and unreasonable.

Analysis of the above makes it clear that the respondents/NHPC could have transferred other persons like transferring Sh. Ramakanta Malik to the post in question instead of Orissa or Mr. Mithlesh Prasad Dinkar. However, none of these persons are party before us, therefore, we are not commenting whom the respondents/NHPC should transfer and whom not.

Without commenting on the internal administrative arrangement of the respondents/NHPC, we are of the opinion that the petitioner is entitled to be considered in view of Clause 3.17 of the Transfer Policy which provides that employees above 57 years of age are not to be posted in hard locations with difficult terrains/extreme climate conditions.

At this stage it would also be appropriate to draw attention to Clause 3.11 of the Transfer Policy which states that an employee who has two years of service remaining for superannuation will be considered for posting at the station of his choice. Impliedly, petitioner would have accrued right to get transferred by exercising his option under Clause 3.11 of the Transfer Policy.

Be that as it may, we are of the considered opinion that the respondents/NHPC had alternatives available instead of transferring the petitioner who had to be considered in the light of Clause 3.17 of the Transfer Policy framed by the respondents/ NHPC.

Given above we quash the impugned transfer order dated 13.7.2020 (Annexure P-1), qua Serial No. 2, which relates to the transfer of the petitioner from Parbati-III PS to CVPPPL, being arbitrary, unreasonable and since it violates Clause 3.17 of the Transfer Police so framed by the respondents/NHPC.

Petition stands disposed of so also the pending application(s), if any.