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Judgment
Umesh Gajankush , Member (J)
In the present Original Application, applicant is challenging the impugned transfer order dated 11.05.2023 (Annexure A/1) by which he has been transferred as a LSG SPM Sevasi to LSG SPM Rustampura.
In the Original Application, it is stated that applicant was promoted from the cadre of Postal Assistant to the cadre of LSG Postal Assistant and posted at Sevasi SO vide order dated 11.08.2020. The applicant has not yet completed post tenure of three years while working as LSG PA at Sevasi SO. However, the respondent no.4 and SPOs Vadodara West has transferred the applicant prematurely against the Policy of Rotational Transfer. It is further submitted that although, the applicant had not completed post tenure of three years he was forced to submit three choice places in prescribed Performa pursuant to memo dated 28.02.2023.
2.1 It is further submitted that the name of karkhadi SO was not notified as a vacant under Annexure – B of memo dated 28.02.2023 and further as per transfer guidelines without obtaining approval of next higher authority, applicant has been transferred. It is also submitted that representation dated 13.05.2023 was submitted however, it was apprehended that respondent no. 4 shall enforce the applicant to assume charge of new assignment and therefore, original application was filed.
After notice, official respondents have filed the reply and justified their action. It was submitted that applicant was working as LSG SPM, Sevasi SO from 18.08.2020 onwards. Thus, the applicant has worked at Sevasi SO for continuous period of three years. Accordingly the name of applicant was sown in the list of officials who are going to complete their tenure by calling willingness for Rotational Transfer in Vadodara West Division for the year 2023.
3.1 It is submitted that during the year 2023, only seven officials including applicant were completing their tenure. As against that, more than 07 posts of LSG are required to be filled in being sensitive in nature, having establishment of double and single handed and no willingness for the said pos in sufficient number was received. Resultantly, Transfer and Placement Committee recommended transfer of three officials in the interest of service out of seven mentioned above in order to balance the staff which is purely an administrative ground. Official respondents have placed on record minutes of Transfer and Placement Committee at Annexure R/1. It is further submitted that vide Office letter dated 03.05.2023 and 08.05.2023 (Annexure R/3 and Annexure R/4) approval has been granted by the competent authority and only on receipt of approval from next higher authority transfer and posting order in respect of LSG cadre official including the applicant were issued on 11.05.2023.
3.2 It was further submitted that although representation dated 13.05.2023 was submitted, however, without waiting for outcome of the same, the original application was filed on 23.05.2023. It is also submitted that the total completion of service of the applicant is 13 years 07 month and 14 days out of which he had rendered very short span of service period i.e., 01 years 8months and 08 days in rural areas and enjoyed most of service period i.e., 11 years 1 months and 06 days in Vadodara city which is around 85% of his entire service period. His transfer place is only about 60 Kms away from his present posting which infact admitted by the applicant himself. Therefore, on the basis of reply, respondents have prayed for dismissal of the Original Application.
Thereafter, rejoinder has been filed reiterating and explaining the grounds taken in the OA.
We have heard learned counsel for the parties and perused the material on record.
Learned counsel for the applicant Mr. Vinod R Shah vehemently argued that transferring the applicant to Rustampura SO is arbitrary and illegal. During course of the argument, learned counsel for the applicant placed reliance on order passed in OA No. 271/2022 in the case of Kashyap Arjanbhai Roy Vs Union of India decided on 20.01.2023 by the Central Administrative Tribunal of this Bench. Further order passed in OA No. 327/2022 in the case of Ojasmitabahen Sharadbhai Gameti Vs Union of India & Ors decided on 18.07.2023 by this Bench of Central Administrative Tribunal. In OA No.29/2022 in case of Bipinchandra Maganlal Patel Vs Union of India & Ors. decided on 28.01.2022 by this Bench of Central Administrative Tribunal and order dated 21.02.2024 passed in CP No.26/2023 in OA No. 371/2022.
On the other hand, learned counsel for the respondent supported the impugned order and submitted that at one hand, against the impugned transfer order 11.05.2023 representation was submitted on 13.05.2024 and without waiting for its decision applicant approached prematurely before this Tribunal. So far as, grounds taken by the applicant on merits that he has been prematurely transferred i.e., without completion of period as per the policy is incorrect in view of the specific date mentioned in the reply. Further, the contention of the applicant that impugned order has been passed without taking prior approval of the competent authority has also no base as due procedure was followed and only after the approval of higher authority transfer order has been passed to that effect relevant minute of Transfer and Placement Committee has been placed on record. Learned counsel for the respondents placed reliance on order passed in OA No. 323/2022 in case of Prabhubhai Virabhai Param Vs Union of India decided on 17.07.2023 by this Bench of Central Administrative Tribunal. Further, reliance has been placed in OA No. 127/2013 in case of Anilkumar Maurya Vs Union of India decided on 28.06.2013 by this Bench of the Central Administrative Tribunal in which similar grounds has been taken by said applicant and the Tribunal was pleased to uphold the action of the respondents.
From the records it is clear that vide impugned order dated 11.05.2023 applicant has been transferred from Sevasi to Rustampura and name of the applicant finds place at Sr. No.6 in the said list. Prior to aforesaid transfer vide memo dated 28.02.2023, three choices were called for Rotational Transfer and applicant has opted for Fategunj HO, Industrial Estate PO & Ranoli PO. It is true that the place at which the applicant has been transferred i.e., Rustampura was not the chosen option of the applicant. However, para – 9 of the OA No. 323/2022 is relevant here:
“Para 9
Having regard to the submissions made by the learned counsel for the parties and material available on record, it emerges that the applicant has completed his posting tenure at Mandal SO. He applied for rotational transfer and informed his choice places. It is correct that he was not accommodated at any of the choice places. However not posting officials at his/her own choice place ipso facto does not infringe any legal right. No one can claim to be posted at a particular place. Competent authority has right to decide the place at which particular official has to be posted. Unless and until transfer is in violation of the statutory rule or against principles of natural justice or on account of malafides on the part of the competent authority, same could not be interfered with in a routine manner. The applicant has challenged his transfer mainly on the ground that the action of the respondent in not transferring him at a choice place is discriminatory in nature. In our view the discretion exercised by the respondent in accepting request for choice posting of one official and at the same time denying the same prayer of others cannot be categorised as discriminatory in nature in the absence of malafides. We as an appellate authority cannot go into the correctness of the discretion used by the respondent. Looking at the facts and circumstances of the matter, examining each and every aspect of transfer order against which the applicant has raised some doubts of bonafides, would not be just and proper on part of this Tribunal. The relief in the present OA has not been prayed for on the ground of malafides. Transfer is an incidence of service. In the absence of claim of the applicant based upon malafides this Bench is not inclined to interfere with the transfer of the applicant”.
Although, learned counsel for the applicant vehemently argued that from the record it is apparent that the impugned transfer order is malafied one. However, to substantiate malafide there should be a proper pleading and material was required to be placed and such person is required to be added as a party against whom malafides are alleged. In want of aforesaid requirement, the contention of the applicant is not tenable.
This Tribunal has considered the scope of interference in transfer matter in case of Anil Kumar (supra) and while taking note of Hon’ble Supreme Court’s judgment in case Shilpi Bose Vs State of Bihar & Ors., 1992 SCC (L&S) 127 stated as under:
“4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest."
(emphasis supplied)
The observations made by Hon'ble Supreme Court of India in Shilpi Bose's case (supra) that even if the transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order and that instead the affected party should approached higher authority in the department is an important pointer to all courts and tribunals that they should not foray into the administrative territories unless there is a violation of legal rules or there is a manifest instance of malafides.”
So far as order relied upon by learned counsel for the applicant is concerned in case of Kashyap Arjanbhai Roy is concerned, the said applicant was transferred within one year of the last transfer and considering said factual aspect this Tribunal quashed the impugned order. Similarly, in case of Ojasmitabahen also the period of tenure was not completed and therefore impugned order in the said OA was quashed. However, in present case the applicant has already completed tenure as per the guidelines. So far as order passed in Bipinchandra is concerned in the said case there was a direction for consideration of the representation and Contempt Petition No. 26/2023 in OA 371/2022, no orders on merits in the said OA was passed. In fact at interim stage itself the said case was decided and therefore all aforesaid orders are not helpful to the applicant.
Thus, in view of the aforesaid, impugned order needs no interference. The Original Application deserves to be dismissed. Hence, the same is dismissed. No orders as to cost.