Sambit Kumar Samantaray vs Union Of India & Ors

Sudhi Ranjan Mishra, Member (J)

The applicant at present working as Scientist 'D' (HG), Central Ground Water Board, South Eastern Region, Bhubaneswar, has filed this O.A. seeking to quash his order of transfer to NCR, Bhopal vide order dated 13.03.2024, mainly on the ground that as per DOP&T OM, since his spouse is working in PNB, Bhubaneswar he is not liable to be transferred. Further, since his daughter and son are studying in +2 Science and Standard-III respectively at Bhubaneswar and mother is ill therefore will cause immense difficulty to his family life. He has been posted to NCR, Bhopal in place of Rakesh Singh whose order of transfer has been kept in abeyance by the authority.

Respondents filed their counter contesting/objecting the case of the applicant.

Applicant has filed rejoinder by reiterating the points raised in the O.A.

We have heard the learned counsels for both the sides and perused the records.

We find that in this case, by the order of stay passed by this Bench vide order dated 12.04.2024 he has been continuing at Bhubaneswar. The applicant did not produce any document to establish that his spouse is still working as on date in PNB, Bhubaneswar. The legal position has been crystallized in a number of judgments of Hon'ble Apex Court that transfer of employee is an incidence of service and is made according to administrative exigencies/public interest. Who should be transferred where and at what point of time are a matter for the appropriate authority to decide taking into consideration the need of hands of the employees for smooth functioning of the administration and, thus, a caution has been imposed on the Tribunal in interfering in the order of transfer subject to exception. It is not tangential to mention that the Hon'ble Apex Court in the case of State of Punjab Vs. Joginder Singh Dhatt, AIR 1993 SC 2486, observed that "it is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting". In State of M.P. Vs. S.S.Kourav, (1995) 3 SCC 270, it was held by the Hon'ble Apex Court that "the courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place."

However, the Hon'ble Apex Court in an authoritative pronouncement in the case of S.C. Saxena Vs. Union of India and Ors., 2006 (9) SCC 583 held as under:

"In the first place, a Government Servant cannot disobey a transfer order by not reporting at the place of posting and then go to Court to ventilate his grievances. It is his duty first to report for work, where he is transferred and make representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed."

The above principles have been reiterated in very many cases by the Hon'ble Apex Court, different Hon'ble High Courts so also by the various Benches of the CAT and suffice it to refer the decision of the Hon'ble Apex Court in the case of The Tamil Nadu Agricultural University & Anr. vs Vs R. AGILA ETC., in Civil Appeal Nos........OF 2024 (Special Leave to Appeal (C) No(s).13070- 13075/2022) dated 20.08.2024, in which it was reiterated that an employee is well within his rights to join at the first instance in the transferred place of posting and still continue to avail the remedies available under the law for redressal of his grievances against the transfer inter alia observing as under:

"5.The focal consideration behind it is that the intent of transfer is to fill up certain vacancies at the new place of posting and when the transferred employees fail to join such posts, the said vacancy would continue and the goal of providing optimal service at full capacity remains defeated. An even worse situation would arise when the authorities, while the challenge to such transfer is underway, would have to employ other individuals to fill up such vacancies and has to ultimately spend from both the pockets by providing salary to the employee who is actually delivering such service as well as to the employee who has remained absent from service unauthorizedly. It cannot be ignored that such a situation would result in nothing but burning a hole in the pocket of public exchequer, lead to excessive financial burden on the Government institutions, and would fundamentally jeopardize public interest.

It is not uncommon to see employees who challenge such orders of transfer before various forums, extending the litigation to several years, while choosing to not join the service and still seeking full salary, and often citing medical conditions as a ground for such inability to join. It is of utmost importance that, while the legal challenge runs its course, the needs of administration are treated paramount in comparison to the inconvenience faced by the employees in cases of transfer. In this regard, the Government employers should also take stern measures against such employees who fail to join the new places of posting without any rationale or an order of stay being in place."

On examination of the case of the applicant with reference to the law, especially in the case of S.C. Saxena (supra) and R. Agila (supra), discussed above, we see no ground to interfere in the order impugned in this OA. Accordingly, this OA stands dismissed. Costs made easy.