Gaurav Dhaka vs Ajmer Vidhyut Vitran Nigam Limited (Avvnl) And Ors

This appeal is directed against the judgement of learned Single Judge dated 15.7.2019, by which writ petition no.11181/2019 filed by respondent no.2-Nemi Chand assailing the order of his transfer dated 26.6.2019 has been allowed. The learned Single Judge has quashed the order of transfer taking note of the fact that the respondent-writ petitioner has been transferred 10 times within a period of 5 years, details whereof are contained in the following part of the judgement of learned Single Judge:

The facts of the case are that the petitioner an A.En., following several transfers i.e. ten within a period of five years, vide order dated 6-3-2019 came to be transferred from Malsisar to ACOS Jhunjhunu. The respondent No.2 Gaurav Dhaka posted there since 16-6-2014 was transferred as AEN (O&M) Gudha. The case of the petitioner is that within a period of four months he was again transferred vide order dated 26-6-2019 from ACOS Jhunjhunu to AEN (O&M) Gudha, merely to accommodate the respondent No.2, who had earlier been posted as ACOS Jhunjhunu since 16-6-2014. Mr. Madhav Mitra submitted that the stark fact that the respondent No.2 was brought back as ACOS Jhunjhunu within four months of his transfer on 6-3-2019 makes it evident that the impugned transfer order dated 26-6-2019 is not actuated either by an administrative exigencies or public interest. It is instead vitiated by malice in law inasmuch as the discretion to transfer has been exercised merely to accommodate the respondent No.2 at Jhunjhunu. That cannot be the purpose of the vesting of discretion in an employer to transfer an employee. Until discretion to transfer is reasonably exercised, it will mutate into feudalistic patronage which cannot be countenanced under the rule of law. Mr. Madhav Mitra submitted that a transfer within four months, as in the petitioner's case, is inherently contrary to public interest. A transferred employee necessarily takes time to comprehend the work and familiarize in an office and if he is transferred out before he can so do and perform work in public interest it would be detrimental both to administrative exigencies and public interest. Mr. Madhav Mitra submitted that in the reply to petition, the respondent AVVNL merely vaguely postulates "nigam interest" in transferring the petitioner.

That fig leaf cannot and should not cloud the gross unreasonableness and arbitrariness in transferring out the petitioner within four months and bringing in his place respondent No.2, who had earlier been posted there in different capacities for about five years."

Shri Anil Upman, learned counsel for the appellant has submitted that the appellant subsequent to his transfer joined at Gudha, but then he was again transferred from Gudha to Jhunjhunu by order dated 25.7.2019 and that order has been challenged by one Ujjawal Singh Sekhsaria in another writ petition being S.B. Civil Writ Petition No.12762/2019. Learned counsel submitted that the respondent has throughout remained in Jhunjhunu District at different places and this therefore cannot be attributed to appellant alone that he has managed to stay in Jhunjhunu or around Jhunjhunu. In the order of transfer, no interference should have been made by the learned Single Judge.

Shri Madhav Mitra, learned counsel for the respondent no.2- Nemi Chand has taken the Court through some orders, which are filed with the writ petition, which indicates that respondent had been frequently transferred although within the past 5 years of his service. He was transferred by order dated 6.3.2019 from Malsisar to Jhunjhunu. Within four months by order dated 26.6.2019, he was transferred from Jhunjhunu to Gudha and by order dated 25.7.2019, the appellant-Gaurav Dhaka was brought back to Gudha from Jhunjhunu where he had been working for past five years. Learned counsel argued that the appellant is so influential that after his earlier order of transfer from Gudha to Jhunjhunu was quashed, he has again managed to get himself transferred back to Jhunjhunu, now this time, vice one Ujjawal Singh Sekhsaria.

Shri Abhishek Sharma, learned counsel for the AVVNL submitted that earlier order of transfer of the appellant-Gaurav Dhaka from Gudha to Jhunjhunu was superseded by fresh order of transfer dated 25.7.2019, by which he was transferred from Gudha to Jhunjhunu as TA to SE (O&M), AVVNL and, therefore, no cause of action with respect to earlier order of transfer now survives.

We are inclined to uphold the above submission of learned counsel for AVVNL because as far as order of transfer dated 26.6.2019 is concerned, which was quashed by the learned Single Judge has been overwritten by a fresh order of transfer dated 25.7.2019. Now at this stage, learned counsel for the appellant submits that though Ujjwal Singh Sekhsaria has been relieved, but the Court by order dated 31.07.2019 in S.B. Civil Writ Petition No.12762/2019 has directed not to permit the appellant to join.

Be that as it may, no case for interference in the present case is made out for the two reasons; firstly and apparently that the finding of the learned Single Judge that it was not a case of administrative exigency, but of accommodating the appellant within few months of his transfer from outside Jhunjhunu, who was brought back to Jhunjhunu and secondly the allegation of accommodating him at Jhunjhunu stands again fortified by fresh order of transfer made by the respondent on 25.7.2019 by which he has been again brought back from Gudha to Jhunjhunu. In any case, the earlier order of transfer now no longer survives, the appellant having been posted back to Jhunjhunu.

No interference is called for in the impugned order. The appeal is dismissed. It is however made clear that observations made in this judgement shall not affect the rights of the appellant in writ petition filed against his fresh transfer order.