Mohammed Mobin Mansuri vs Ajmer Vidhyut Vitran Nigam Limited And Ors

This intra court appeal is directed against order dated 10.5.19 passed by the learned Single Judge of this court, whereby the writ petition preferred by the appellant questioning the legality of order dated 28.2.19 issued by the Secretary (Administration), Ajmer Vidhyut Vitran Nigam Limited (AVVNL) transferring the appellant from the post of AO (O&M), Udaipur to AO (Rev.), Udaipur, has been dismissed.

Precisely, the case set out by the appellant was that the transfer order as aforesaid was issued by the Secretary (Administration), AVVNL on the desire made by Mr. Gajendra Singh Shekhawat, MLA, Vallabhnagar vide communication dated 26.2.19. It was contended that as per the transfer policy laid down by the AVVNL vide Guidelines dated 9.3.18, no incumbent can be transferred from one place to another before completion of tenure of three years. That apart, while directing the transfer of the appellant as aforesaid, travelling allowance was not allowed whereas, the appellant was not transferred on his own request.

The learned Single Judge after due consideration of the material on record arrived at the conclusion that the transfer being made on the desire of the MLA is not proved. The learned Single Judge observed that no malafide has been alleged and the transfer has been made for administrative reasons, which does not call for any interference by the court. The learned Single Judge observed that as a matter of fact, the appellant has not been transferred from one place to another rather he has been transferred to a different post and his office is located on the first floor of the same building and thus, no prejudice has been caused to the appellant on account of mere change in nomenclature of the post.

Learned counsel appearing for the appellant contended that the learned Single Judge has not appreciated the controversy raised in correct perspective. Learned counsel drawing the attention of this court to the communication dated 26.2.19 of MLA, Vallabhnagar addressed to the Managing Director, AVVNL, Ajmer submitted that apparently so as to accommodate Devendra Singh Rathore on the post of AO (O&M), Udaipur, the appellant has been transferred from AO (O&M) AVVNL, Udaipur to the post of AO (Revenue), AVVNL, Udaipur. Learned counsel submitted that the transfer of the appellant without lawful purpose and in absence of any administrative exigency, just at the instance of local MLA, suffers from the vice of malice in law and therefore, the MLA or anybody else was not required to be impleaded as party. Learned counsel would submit that a bare perusal of clause 2.2 of Annexure A attached to the Guidelines issued by the AVVNL, governing transfer of the employees, reveals that an officer holding the post of Account Officer cannot be transferred from one place to another before completion of the tenure of three years and thus, the transfer order is ex facie violative of the transfer policy issued by AVVNL. Learned counsel submitted that no MLA can be permitted to interfere in the matter of transfer and posting of the officers of the AVVNL and thus, the action of the respondents in transferring the appellant at the instance of MLA is not sustainable in the eyes of law. In this regard, the learned counsel relied upon a decision of the Hon'ble Supreme Court in the matter of "Suresh Chandra Sharma vs. Chairman, U.P. SEB.", (2005) 3 SCC 153.

On the other hand, the counsel appearing for the AVVNL submitted that the order transferring the appellant from one post to another is only an administrative arrangement and the appellant has not been transferred from one place to another to his prejudice. It is submitted that the order has been issued for administrative reasons and the entire edifice of the writ petition raised by the appellant that the transfer is made at the instance of local MLA is absolutely baseless. Producing the original record for perusal of the record, learned counsel submitted that there is absolutely nothing on record to suggest that the transfer order passed is actuated by malafide. Learned counsel submitted that since the appellant has not been transferred from one place to another and therefore, the question of allowing him travelling allowance does not arise. It is submitted that the transfer policy is not justiciable and as a matter of fact, none of the clause of the transfer policy has been violated by the respondents, as alleged.

We have considered the submissions of the learned counsels and perused the material on record.

It is well settled proposition that transfer is incidence of service rather, condition of service and therefore, an employee holding the transferable post can always be transferred from one place to another by the employer for administrative reasons. No employee is entitled to claim posting at particular place of his choice as a matter of right. Of course, the power vested with the employer to transfer an employee needs to be exercised in fair and reasonable manner.

In the instant case, the appellant has not been transferred from one place to another rather, he has been posted on different equivalent post at the same place. The allegation of the appellant that he has been transferred at the instance of local MLA is not substantiated by any evidence on record. A perusal of the original record produced by the respondent also did not reveal that the alleged desire made by the local MLA was acted upon by the respondents while taking a decision to change the posting of the appellant as aforesaid. While alleging the malafide as aforesaid against the respondent in issuing the impugned order of transfer, the appellant has not impleaded the person against whom malafides are alleged, as party respondent and therefore, as a matter of fact, such allegations levelled cannot be looked into. In any case, in absence of any evidence that the alleged recommendation made by the MLA was actually acted upon by the respondents, it is difficult for this court to arrive at the conclusion that the transfer order issued is actuated by malafide. Thus, the decision of the Hon'ble Supreme Court in Suresh Chandra Sharma's case (supra) does not help the appellant in any manner.

Coming to non sanctioning of the travelling allowance, suffice it to say that the appellant has not been transferred from Udaipur City to any other town or city rather, his posting continues at Udaipur in the same office where he was posted prior to passing of the impugned order and thus, the question of travelling allowance being paid to him does not arise.

The violation of transfer policy by the respondent as alleged by the appellant is also not established inasmuch as, clause 2.2 of the Annexure A attached to the transfer policy provides for the maximum period of stay of an incumbent at a particular place which is prescribed in case of Account Officer as three years, but it in no manner suggests that an officer cannot be transferred from one place to another for administrative reasons prior to completion of tenure of three years.

In view of the discussion above, in our considered opinion, the order impugned passed by the learned Single Judge dismissing the writ petition does not warrant any interference by us in exercise of intra court appeal jurisdiction.

The appeal is therefore, dismissed. No order as to costs.