Vinod Dialani vs Union Of India & Ors

Kumar Rajesh Chandra, Member A

Heard the learned counsel for the applicant, learned counsel for the respondents and perused the records.

By means of this Original Application (OA), the applicant has challenged the transfer order dated 14.12.2021 (Annexure A/1) by means of which he has been transferred from Regional office, Bhopal to Regional office Guwahati on administrative grounds. The applicant has also challenged the order dated 12.1.2022 whereby the representation of the applicant against the transfer order dated 14.12.2021 has been rejected by the competent authority by filing amendment application, which has been allowed.

The brief facts of the case are that the applicant was initially appointed as Programmer in Central Board of Secondary Education (In short CBSE), Regional Office at Allahabad in May 2007. Thereafter, the applicant was transferred in May, 2009 to Headquarters, Delhi. He was again transferred to Regional office at Guwahati vide order dated 11th August, 2011. In the meanwhile the post of Programmer was re-designated as Assistant Secretary (IT). It is averred in the O.A. that there is no separate transfer policy in CBSE and it adopts the policy of DoPT. According to the applicant, he has completed hard tenure posting at Guwahati w.e.f. August, 2011 to December, 2014. The applicant was selected on deputation in Narmada Control Authority in March,2014 where he joined on 1.1.2015. It is alleged in the O.A. that the deputation period of the applicant was curtailed by the respondents and as such he knocked the door of this Tribunal by filing Original Application No. 150 of 2017. While entertaining the aforementioned Original Application, this Tribunal has passed an interim order dated 22.2.2017 and ultimately the said O.A. came to be allowed vide order dated 5.5.2017. It is pleaded in the O.A. that CBSE notified the transfer guidelines dated 1.1.2018. The applicant was promoted to the post of Deputy Secretary (IT) and subsequently he was transferred from CBSE Headquarters, New Delhi w.e.f. 21st August, 2019 to Regional Office, Bhopal where he joined on 22nd August, 2019. Suddenly on 14.12.2021, without any basis, the applicant has been transferred from Regional Office, Bhopal to Regional Office, Guwahati. Being aggrieved, the applicant preferred a representation dated 16.12.2021, which came to be rejected vide order dated 12.1.2022, which too has been challenged by the applicant through amendment application. Hence this O.A.

The main grounds for challenging the transfer order are that there is no sanctioned post of Deputy Secretary (IT) available at Regional Office, Guwahati and that the applicant has already completed his hard tenure at Regional Office, Guwahati. Transfer order is also arbitrary, illegal having been passed in violation of the transfer policy and the applicant has been subjected to hostile discrimination.

Per contra, learned counsel for the respondents have contested the claim of the applicant by filing a detailed Reply wherein they have stated that the Government servant has no vested right to remain posted at a particular station of his choice. Transfer of an employee is an incidence of service. The applicant has been transferred to Guwahati on account of administrative exigencies and the applicant has also been relieved pursuant to transfer order on 20.12.2021. The respondents have stated that prior to notification of Transfer policy dated 1.1.2018, the sanctioning authority had power to transfer any employee in the interest of administration by virtue of Chapter I clause 1.1.6 of CBSE Service Rules. The applicant is an IT Officer in CBSE and IT services are one of the important services for examination matters. The IT personnel are on high demand and their services are crucial for conducting the examinations. The respondents also pleaded in their Reply that posting of an employee is the prerogative of the administration and the same had to be taken in true spirit in the interest of organization. There is shortage of skilled IT officers/professionals in the Board. The Board is going through a phase of revamping its IT enabled services and increasing intervention in different areas. They have also stated that the applicant is in habit of raising smaller issues rather than to focus on constructive work and the Board has always taken a lenient view in the matter. The applicant has all India transfer liability as has been mentioned in the appointment letter of the applicant itself and as such there is no violation of Transfer policy. The respondents also averred that after restructuring of IT cadre, no specific Deputy Secretary (IT) cadre was earmarked for any specific Regional Office like Regional Office, Bhopal where no specific Deputy Secretary (IT) post is sanctioned. As per the requirement the Board can post any IT Officer to perform IT related activity in Regional Office from cadre starting from Analyst (IT) to Joint Secretary (IT). Lastly, the respondents have stated that the applicant has no case having all India transfer liability and as such the O.A. is liable to be dismissed.

During the pendency of the O.A., the representation of the applicant against his transfer order was rejected vide order dated 12.1.2022, which has been assailed by the applicant through Amendment Application (M.A. No. 631 of 2022), which was allowed vide order dated 29.9.2022. To this, the respondents have filed additional Reply to the paras asserted by the applicant through amendment application.

The applicant has also filed Rejoinder to the Reply filed by the respondents refuting the contentions of the respondents made in the Reply by reiterating the averments as already made in the Original Application and nothing new has been added in the Rejoinder.

While entertaining the aforementioned Original Application, this Tribunal has passed an interim order dated 21.12.2021 to the effect that the applicant shall be allowed to work as Deputy Secretary (IT) in the Regional Office, Bhopal till the next date of hearing, which has been extended from time to time.

The only issue involved in this O.A. is whether the applicant has any indefeasible right to continue at a particular station for the period he wants or not? The facts as presented by the applicant have not been disputed by the respondents. Admittedly the applicant has All India Transfer liability and he can be transferred anywhere in India in the interest of administrative exigencies. An employee has no vested right to claim a transfer or posting of their own choice. It is also not in dispute that the applicant is a IT Officer and there is acute shortage of skilled IT officers/professionals in the Board.

As regards the fact that there is no post of Deputy Secretary (IT) at Regional Office at Guwahati, the respondents have stated that after restructuring of IT cadre, no specific Deputy Secretary (IT) cadre was earmarked for any specific Regional Office including Regional Office, Bhopal and it is fully within the domain of the Board to post IT Officer to perform IT related activity in the regional Office from the cadre starting from Analyst (IT) to Joint Secretary (IT) where the exigencies so arises, in the interest of organization.

Learned counsel for the respondents has placed reliance the following decisions in support of their submissions:-

(i) S.K. Nausad Rahaman & Others Vs. Union of India & Others reported in MANU/SC/0297/2022.

(ii) Basant Kumar Rohit Vs. State of M.P. & Others in Writ Appeal No. 1238 of 2022 decided on 27.10.2022.

We have carefully gone through the aforementioned decisions as cited by the learned counsel for the respondents. In the case of Basant Kumar Rohit (supra), the Hon’ble High Court of M.P. has placed reliance the decision of Mridul Kumar Sharma Vs. State of M.P., which reads as under:-

"4. Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incidence of service. No government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other."

In view of the above discussions made hereinabove and also the law laid down by Hon’ble High Court of M.P. in the case of Basant Kumar Rohit (supra), we are of the considered view that the applicant has no case for grant of any relief(s) in his favour. As such, O.A. is liable to be dismissed and is dismissed accordingly. Interim order, passed earlier, shall stand vacated. No costs.