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Judgment
K. Haripal, Member J
Applicant, the Director of Nehru Yuva Kendra Sangathan, NYKS, is aggrieved by Annexure-A1 order dated 27.03.2023 by which he stands transferred from Kerala to Tamil Nadu on administrative ground. He contends that such a transfer causes him considerable heartburn, that he has only less than a year to retire from service, that the transfer is in violation of Annexure-A3 transfer policy. Moreover, his wife is suffering from coronary artery disease, type-II diabetes mellitus and systemic hypertension. She had recently undergone heart surgery and one more surgery is recommended for her. In the circumstances, it would be difficult for him to leave the wife alone in Kerala or to take her to Chennai.
According to the applicant, the transfer order has been issued without following the guidelines in Annexure-A3. After putting in 34 years of unblemished service in the Nehru Yuva Kendra Sangathan, he is at the fag end of service. Considering the health condition of his wife also he is unable to move. Immediately after getting copy of the order he gave Annexure-A5 representation, which is pending. In the circumstances, he approached this Tribunal to quash Annexure-A1 to the extent transferring him as State Director, NYKS, Tamil Nadu and for a declaration that he is entitled to continue in Kerala.
Annexure-A1 issued on 27.03.2023 had to be taken effect from 01.04.2023. The O.A. was filed on 31.03.2023, which came up for admission on Monday, 03.04.2023. At the time of admission, Sri.Ashok Suresh, the learned ACGSC took notice for respondents 1 and 2 and requested for time for filing reply. The Tribunal also observed that, for the time being, notice need not be issued to the party respondent. On the submission that the applicant was not yet relieved, an interim order of stay was granted against relieving him from the post of Director, NYKS, Thiruvananthapuram till the next date of posting. The case was then adjourned to 10.05.2023. But on 05.04.2023, seeking to modify the interim order, an application was filed by the party respondent by 'today moving'. He contended that he is the substitute of the applicant, for relieving the applicant he was relieved from Bangalore on 01.04.2023 and reported at the office of the applicant on 03.04.2023 at 10 AM, but the applicant was not available in the office, he was absent from duties from 01.04.2023, in his absence, with the concurrence of the official supervisors, he assumed charge of the Director before this case was taken up for consideration on 03.04.2023.
At that time, Sri.Ashok Suresh, the learned Standing Counsel for the respondents 1 and 2 also submitted that in the absence of the applicant at the office, the 3rd respondent was allowed to assume charge. He further submitted that the Original Applicant was unauthorisedly absent from 01.04.2023. The submissions made by the counsel on both sides were recorded and this Tribunal did not pass any further order on 05.04.2023.
The respondents 1 and 2 filed reply opposing the Original Application. According to them, the 3rd respondent had assumed charge of the Director on 03.04.2023. They disputed the merits of the contentions of the applicant also. Chennai being a Metropolitan city, has all the medical facilities for treatment of his wife and therefore that ground cannot be upheld. According to them, transfer was ordered on administrative grounds. They admitted that the applicant is due for retirement on 31.05.2024. But from 29.12.1988 when he was appointed as the District Youth Coordinator till 01.04.2023, the applicant was working in Kerala for more than 34 years, out of which 16 years was in Malappuram, his home district. Relying on Annexure-A3, they said that clause 3(1) of the Transfer Policy provided that a person should be able to serve not more than 10 years in 3 to 4 tenures in his/her State. Moreover, clause 4(vi) provided that officers/ employees shall not have the option to get postings in his/her home district except with the approval of Chairperson of BoG of NYKS for maximum of 3 years in their entire service. The applicant is liable to be transferred anywhere in India.
Supporting contentions of the 3rd respondent, they submitted that the 3rd respondent had assumed charge of the Director at 10 AM on 03.04.2023 itself and had forwarded his joining report to the higher officers. Therefore, the respondents contend that the Original Application has become infructuous.
I heard the learned counsel on both sides.
The learned counsel for the applicant disputed the arguments of the respondents that the applicant was on unauthorised absence from 01.04.2023. Even though he did not attend office on 1st and 2nd of April, was engaged in official discharge of functions. Referring to Annexure-A11 dated 26.04.2023 it was pointed out that he was asked by the Delhi office to attend a webinar in the given link at 3 PM on 27.04.2023. Annexure-A9 was also highlighted to show that the applicant was relieved from Thiruvananthapuram office only on 11.05.2023.
On the other hand, the learned counsel for the party respondent wanted to say that the 3rd respondent had assumed charge on 03.04.2023 at 10 AM itself before the interim order was passed by this Tribunal after 10.30 AM that day. Thus the interim order as well as the Original Application have become infructuous. The learned Standing Counsel for the respondents 1 and 2 also supported this version. But according to the learned counsel for the applicant, he continued in Thiruvananthapuram till 11.05.2023, that the Original Application has not become infructuous, the matter requires to be disposed of on merits.
By Annexure-A1 the applicant as State Director, NYKS-Kerala stands transferred as State Director, NYKS-Tamil Nadu. The transfer is on administrative ground. By the very same order, the 3rd respondent, Deputy Director, NYKS Regional Office Bangalore stands transferred to Kerala as State Director-in-charge, in the vacancy of the applicant. This order is also on administrative ground. It has been pointed out by the respondents that on 03.04.2023 at 10 AM itself the 3rd respondent had assumed charge of the Director in Thiruvananthapuram so that the applicant stood automatically relieved. Both the applicant and the 4th respondent are senior gazetted officers. Normally, Rules of business require that transfer of charge report should be prepared by the 'relieving' as well as the 'relieved' officers, together. Here, a simultaneous handing over/taking over of charge did not take place. Admittedly, the applicant was not present in office on 03.04.2023. Referring to Annexure-A10 the learned counsel pointed out that the applicant was relieved only on 11.05.2023. Referring to Annexure-A7 e-mail it was pointed out that an application was already forwarded on 29.03.2023, seeking leave on 03.04.2023 and 05.04.2023, 04.04.2023 being closed holiday. It is worth to note from Annexure-A6 that the Annexures-A5 representation for cancelling his transfer was rejected on 03.04.2023 itself. The documents produced by the parties indicate that the applicant was actually relieved from Thiruvananthapuram only on 11.05.2023 and had taken charge at Chennai on 12.05.2023. That means, dehors other controversies Annexure-A1 order of transfer had taken effect on 03.04.2023 at 10 AM itself, whether the 3rd respondent had assumed charge of the office. Annexure-R3(a) and (b) suggest that the 3rd respondent was relieved from Bangalore on 01.04.2023 and was allowed to join as State Director-in-charge on 03.04.2023. In that view of the matter, there is considerable force in the submission of the respondents that the Original Application has become redundant.
Even though the learned counsel for the applicant wanted to amend the Original Application and obtained adjournment on that score, that was not done nor any rejoinder was filed. In the circumstances, in fact it is not necessary to turn to the merits of the contentions raised by the applicant. Still I am inclined to consider the merits also.
The first contention is that he is due for retirement on 31.05.2024 and the transfer is violative of sub-clause (iii) of clause 4 of Annexure-A3 Transfer Policy. The learned counsel also invited my attention to the judgment of the Cuttack Bench of this Tribunal in O.A.759/2018 as well as Annexure-A4 order of the Madras Bench in O.A.1972/2017 and submitted that a transfer in violation of such a provision on the eve of retirement is oppressive and illegal.
After hearing both sides, I am of the view that such an argument cannot be upheld. Annexure-A3 is only a guideline which cannot take the force of law. Secondly, even assuming that it is binding clause 4 of Annexure-A3 deals with request transfers; here, the transfer was granted on administrative ground. The applicant is holding the post of Director of the State unit. He has all India transfer liability. But he has never seen a posting beyond Kerala. It is pointed out that, all along he had been working in Kerala for the last 34 years, from 29.12.1988. he is a native of Malappuram. Out of 34 years of service, for about 16 years he was working in Malappuram district. Retaining him in the State or in his native district for a long term itself is violative of the transfer norms. Be that as it may, the present transfer on administrative ground cannot justifiably be interfered with by this Tribunal.
Transfer is an incidence of service. As held by the Apex Court in National Hydro Electric Power Corporation Ltd. v. Shri Bhagwan and another [(2001) 8 SCC 574], transfer is not only an incident, but condition of service made in public interest and efficiency in the public administration. According to the Hon'ble Supreme Court, unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or Tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision. Any number of authorities can be cited to say that transferring an employee is part of service conditions, which cannot be interfered with lightly by a Court in exercise of discretionary jurisdiction, unless it is found that either the order is malafide or that the Service Rules prohibit such a transfer.
In other words, an order of transfer is normally not judiciable. It can be interfered with only if it is vitiated by malafides or if there is any statute prohibiting such transfers. Such policy decisions are mere guidelines and are not statutes. Here, the applicant does not have a case that the respondents 1 and 2 had acted with malafide intention for troubling the applicant. After putting in more than 34 years of service in Kerala, such a transfer cannot be called in question merely for the reason that he is due for retirement on 31.05.2024. Any transfer may cause inconvenience and difficulties to an employee. But a Court cannot go into the question of relative hardships (State of Madhya Pradesh and Another v.S.S.Kourav and others [(1995) 3 SCC 270]).
It may be true that the applicant was allowed to continue in Kerala till 11.05.2023 and had taken charge of the Director, Tamil Nadu only on 12.05.2023. It is the look out of the respondents 1 and 2 as to how he could remain here till 11.05.2023. But the respondents have shown that the 3rd respondent had taken charge of the Director on 03.04.2023 relieving the applicant before the interim order was passed by this Tribunal.
That means, the Original Application has become infructuous. On the merits also, the applicant is not entitled to succeed. The Original Application is dismissed. No costs.
(Dated, this the 18th December, 2023)