Prasar Bharti and Others vs Mohammad Tulha Rahmani

M.M. Kumar, C.J.—The Prasar Bharti (Broadcasting Corporation of India) and its officers based at New Delhi and Srinagar have filed the

instant petition under Article 226 of the Constitution with a prayer for setting aside order dated 7.5.2012 rendered by the Central Administrative

Tribunal, Chandigarh Bench (for brevity the Tribunal). The respondent was appointed as Transmission Executive (Script). The Tribunal has set

aside order dated 29.10.2010, transferring the respondent from All India Radio Srinagar to All India Radio Kargil. The Tribunal while disposing of

T.A. No. 7/JK/2011 filed by respondent has opined that the averments made in para 7(a) of the application were not controverted. According to

the averment made in that para, the All India Radio Kashmir, Srinagar, is the only station from where Kashmiri programmes are being broadcast

and Kashmiri script is made use of. And that there was no post of Transmission Executive in Kashmiri script available in All India Radio Kargil.

The petitioners justified the order on the basis of administrative exigencies as conceived by the competent authority. They submitted that ordinarily

the Courts are not to interfere. The view of the Tribunal is discernible from paras 11 and 12 of the order which read thus:--

A conjunctive perusal of the aforementioned para 7(a) of the O.A. and the corresponding para of the written statement would indicate that the

respondents, in their wisdom, refrained from controverting the plea raised in the former documentation.

In view of the factual scenario noticed in the preceding paras, it is apparent that the services of the applicant cannot be used by posting him at

Kargil. The present is a case wherein though not being unmindful of the law relating to transfers, we are of the considered view that it is a fit case

for interference by the Tribunal, particularly in view of the fact that the services of the applicant cannot be utilized at the proper place in view of his

specialization and also because the only post at Kargil has been fill up. The O.A. deserves to be allowed by quashing the impugned order qua the

applicant and we so order accordingly.

It is also appropriate to mention that the Tribunal felt persuaded by the order earlier rendered when the respondent was sought to be transferred

from Srinagar to Hissar (Haryana). The transfer order was quashed on 11-7-2007 by the Tribunal when O.A. No. 872-JK of 2005 was allowed

by the Tribunal. The petitioners filed review which was also rejected on 19.3.2009 and the Division Bench dismissed the writ petition vide order

dated 21.7.2008.

Mr. S.A. Naik, learned counsel for appellants has vehemently argued that the respondent was appointed as Transmission Executive in All India

Radio Srinagar on 5-1-1996 and there is no stipulation in the order of his appointment which may indicate that the post was not transferable. A

copy of his appointment order dated 5-1-1996 has been placed on record (R4).

Our attention has been invited to Clause 7 of the appointment order which stipulates that the respondent could be posted and transferred

anywhere in India and if on account of family circumstances, he anticipated any difficulty in the matter of posting then he was not to accept the

offer. Mr. Naik emphasized that in view of the aforesaid stipulation in the appointment order the respondent cannot object to his transfer anywhere

in the country on the ground that Kashmiri script can be used only if he is posted at All India Radio Srinagar because his services could not be

used anywhere else.

Another submission made by Mr. Naik is that the service condition of Transmission Executives (Script) are governed by the statutory rules

framed under proviso to Article 309 of the Constitution which are known as All India Radio and Doordarshan (Transmission Executive)

Recruitment Rules, 1992 (for brevity 'Recruitment Rules'). A copy of the 'Recruitment Rules' has been placed on record (Annexure-E). The cadre

of Transmission Executive includes the posts of Production Assistant (All India Radio), Assistant Editor (Scripts), Assistant Editor (Translation),

Assistant Editor (Farm and Home) so on and so forth. According to the learned counsel there is no separate cadre which may be known as

Transmission Executive, Kashmiri script. He has maintained that the appointment letter also does not specify that there is a separate cadre,

although Transmission Executive (Script/Kashmiri) has been mentioned. Thus it is an All India Cadre and Transmission Executive (Script) are

transferable anywhere in the country.

Mr. Naik has also made a reference to the Advertisement Notice No. 2/1992 dated 29-8-1992. It was in pursuance to the aforesaid

Advertisement Notice that the respondent participated in the selection process and appointed. The aforesaid Advertisement Notice was followed

by a corrigendum dated 12th September, 1992 which made it clear that initial appointment and posting of a Transmission Executive (Script) could

be in the respective zones. However, that too cannot be claimed as a matter of right. Learned counsel has further argued that transfer order is

purely an administrative order which is made in the exigencies of service and the Courts are reluctant to interfere unless it has emerged from mala

fide intention. According to the learned counsel it is against the elementary principles of service jurisprudence as laid down in various judgments

including State of U.P. and Others Vs. Siya Ram and Another, ; National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and others, ,

State of U.P. and Others Vs. Gobardhan Lal, , E.P. Royappa Vs. State of Tamil Nadu and Another, and Indian Railway Construction Co. Ltd.

Vs. Ajay Kumar, .

Mr. S.R. Hussain learned counsel for respondent has argued that at one stage on 7-4-2004, the respondent was sought to be transferred from

Srinagar to Hissar in Haryana. The aforesaid transfer order was successfully challenged by him in O.A. No. 872-JK of 2005 which was decided

on 11-7-2007 (Annexure-D). The basis of quashing of transfer order was an imaginary report allegedly received by the appellant. That report

resulted in his transfer which was never supplied to him. At the time of hearing no such report was produced before the Tribunal and the order was

found to be punitive in nature. According to the learned counsel the present order has also been passed on some extraneous consideration.

Mr. Hussain has then argued that in the Advertisement Notice dated 29-8-1992 (R1) seven posts of Transmission Executives (Script) were

advertised and one of the post (NR-29) was for All India Radio Srinagar (J&K) and the vacancy was unreserved. The respondent being

Transmission Executive Kashmiri Script, as is required by the advertisement was appointed and given posting at Srinagar. He has then made a

reference to communication dated 28-9-1995 and had drawn our attention to Item No. 5 were the name of respondent figures and he has been

shown in the list of selected candidates for posting him as Transmission Executive (Script Kashmiri). On the basis of aforesaid material it was

sought to be argued that Transmission Executive (Kashmiri/Script) is a separate cadre and posting the respondent at any other place would be hit

by mala fide because no other radio station would be able to make use of Kashmiri Script. Therefore, it has been urged that in view of the various

orders passed by the petitioners or its officers, the order passed by the Tribunal in O.A. No. 872-JK of 2005 decided on 11-7-2007, the

impugned order passed by the Tribunal deserves to be upheld because his service was meant specifically for Kashmiri Script and cannot be utilized

anywhere else.

It is trite to observe that transfer is an incidence of Govt. service. The law in this area is well settled which concedes to the employer almost

absolute right to transfer an employee anywhere to reap his potentials to the maximum. The judgments cited by Mr. Naik support that view. The

only principal exception created by law against a transfer order is when (i) it is marred by colorable exercise of powers on account of mala fides of

the authorities; or (ii) if it is made in violation of a statutory provision.

There are valid reasons as to why transfer of an employee is regarded in the public interest and in the interest of effective administration. In B.

Varadha Rao Vs. State of Karnataka and Another, , their Lordships of the Supreme Court have held that continued posting of an employee at one

station for a long period would not be conducive to good administration because long years of posting create vested interest which may not serve

the administration and would rather run counter to it. Therefore, the period of posting is generally restricted to a reasonable length, say three years.

It is only when the post itself is non-transferable or there is a special condition in the employment contract to that effect then transfer may not be

possible.

When the aforesaid principles are applied to the facts of the present case, it is evident that Clause 7 of the appointment letter dated 5-1-1996

(R4) issued to the respondent clearly stipulates that he was liable to be posted and transferred anywhere in India. It is significant to read that clause

which is set out below in extenso:--

You shall be liable to be posted and transferred anywhere in India and if on account of family circumstances, you anticipate any difficulty in the

matter of posting you should not accept the offer.

It is thus evident that there was clear stipulation in the letter of appointment that the post was transferable and in case the respondent was

feeling any difficulty on account of his family circumstances then he was advised not to accept the offer.

Another significant feature of this case is that after issuance of advertisement notice on 29-8-1992 a corrigendum was issued on 12.9.1992

which clearly postulates that initial posting could be in one of the All India Radio Station that is held within the jurisdiction of the main Station of All

India Radio. However, the first posting was not to give any right that later on they cannot be posted elsewhere. The first paragraph of the

corrigendum makes aforesaid position absolutely clear and reads thus:--

F. No. 2/13/92-P&P (Vol. II): Candidates may refer to the Commission's Advertisement No. 2/92 published in the issue of Employment News

for the week 29.8.92 to 4.9.92 wherein various posts of Transmission Executives (Specialised Categories viz. Scripts, Family Welfare, Science

Reporting, Educational Broadcast, Farm and Home, and Dialect and Translation) in the pay-scale of Rs. 1,400-2,600 existing in different All India

Radio Stations, were advertised. The place of Initial posting INDICATED FOR EACH OF THESE Transmission Executive posts in Advt. No.

2/92 are the main stations of All India Radio in the respective zones (State/Union Territory) and candidates who get finally selected are liable to be

offered their first/initial posting at any one of the AIR stations that falls within the jurisdiction of the aforesaid main station of AIR in the respective

zone. The candidates thus selected cannot, as a matter of right, claim for being offered their first posting at the main station of AIR in the respective

zone. In addition, all Transmission Executive posts carry All India Service Liability.

The matter does not rest there. The Recruitment Rules applicable to the post of Transmission Executive do not anywhere indicate that the post

of Transmission Executive (Script) is non-transferable. On the contrary the power to transfer has been held to be implicit consistently by the Courts

(G.B. Molinamani v. Commissioner, Hubi, Charwar Municipal Corporation, (1974) 1 SLR 669, K.N. Cheluvaiah Vs. Management, Bharat

Heavy Electricals Ltd., . Therefore, there is no impediment in the exercise of powers by the petitioner to transfer its employees including the

respondent.

The question then is whether the transfer is vitiated on account of any exception? There are no allegation of mala fide against any individual

factually nor any such mala fide could in law be inferred. The other exception that any rule should be violated by the order of transfer is also not

present in the instant case. The argument of Mr. Hussain, learned counsel for respondent, that in the earlier round of litigation the transfer order

was quashed would also not cut any ice because the earlier transfer was stated to be actuated, as per the stand of the petitioner before the

Tribunal, by some secret information which was never substantiated nor any report was produced. Therefore, even that would not constitute a

valid ground for setting aside the order of transfer especially when the power of transfer is regarded as almost absolute. On principle and

precedent no doubt is left that respondent has no case warranting quashing of transfer order.

As a sequel to above discussion, this petition succeeds. The impugned order dated 7-5-2012 passed by the Tribunal is set-aside. The transfer

order passed by the petitioner on 29-10-2010 is upheld. The writ petition is disposed of in the above terms.