High Court of Delhi was dealing with the petition filed seeking setting aside of the order passed by the learned Central Administrative Tribunal, dismissing the petition filed by the petitioner. The petitioner further prays for quashing and setting aside of the Office Order issued by the respondent no. 2, transferring the petitioner from New Delhi to Jaipur.
Brief Facts:
The petitioner, in June 1992, joined as a Section Officer in the Horticulture Wing of the respondent no.2. The petitioner asserts that the respondent no. 2, invited options from Section Officers (Horticulture) for positing at certain stations. The petitioner gave his willingness to be posted to Guwahati and was accordingly transferred to Guwahati. Soon after joining his place of posting, in the absence of his wife, who was unable to join him at Guwahati due to her permanent job as a teacher in a school in Delhi-NCR, the petitioner started facing a lot of difficulty in managing his day-to-day activities, which made it quite impossible for him to live alone in Assam. The petitioner, therefore, made a representation seeking a transfer back to New Delhi. Despite representations made seeking transfer to New Delhi, the petitioner was retained in the Eastern Region and the petitioner was posted to DD (Horticulture), Guwahati HQ: Shillong. Aggrieved by the said transfer, the petitioner made representations to the respondents. The petitioner was directed to be posted in the office of DD (Horticulture) under CE (NDZ-II) at New Delhi. However, within thirty-five days of his transfer, the respondent no. 2 transferred the petitioner from the office of DD (Horticulture) under CE (NDZ-II) at New Delhi to the office of DD (Horticulture) under CE Jaipur in Rajasthan. The petitioner, aggrieved by this sudden transfer, made a representation dated 13.04.2020 to the Special Director General (NR), Central Public Works Department, requesting for cancellation of his transfer order.
Petitioner’s Contention:
Learned counsel for the petitioner submitted that the learned CAT failed to appreciate that the respondents, apart from stating that the impugned Office Order has been passed on account of “exigencies in service” and in the “public interest”, have not disclosed the reason for transferring the petitioner from New Delhi within only thirty-five days of his posting and that too in the peak of the COVID-19 pandemic. It was submitted that the impugned order is not sustainable in law as the same is arbitrary, discriminatory and in gross violation of the provisions of the RPD Act as well as the DOP&T OM and the Posting Guidelines.
It was contended that the transfer order is also in violation of the Declaration on the Rights of Disabled Persons, 1975, as well as the Human Rights Act, 1993, as adopted by the General Assembly of the United Nations Organization. The learned counsel for the petitioner finally places reliance on certain office orders issued by the respondent no. 2 to contend that the respondent no. 2 has, in fact, in the recent past, retained certain personnel at New Delhi for a period beyond three years as prescribed under the Posting Guidelines.
Respondent’s Contention:
Learned Counsel for the respondent submitted that prior to transfer to Guwahati, the petitioner had been allowed to be posted in New Delhi since the time of joining the respondent no. 2, that is, 15.06.1992 to 16.02.2019, which is a period of twenty-six years. He submitted that the transfer of the petitioner from New Delhi to Jaipur vide the impugned Office Order had been done in compliance with directions received from the Competent Authority.
It was further submitted that merely because other officers have been allowed to remain in New Delhi for more than three years, does not give a right to the petitioner to also seek continuation of his posting in Delhi. He submitted that the Office Memorandum, relied upon by the petitioner, does not direct cancellation of the transfer orders already issued.
HC’s Observations:
After hearing both the sides Court stated that it must be emphasised that an employee in a transferable job has no vested right to remain posted at one place. The Courts should not readily interfere with the transfer order which is made in the public interest and for administrative reasons, unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide.
HC further stated that interference under Article 226 of the Constitution of India is permitted only where the Court finds either the transfer order is mala fide or that the service rules prohibit such transfer or that the Authorities issuing the order were not competent to pass the same.
HC observed that pursuant to the interim order passed in the earlier writ petition, and later in this petition, the petitioner has remained in New Delhi in spite of the transfer order. Therefore, in his entire career, barring the period less than one year, the petitioner has, in fact, remained posted in New Delhi for almost 28 years. HC stated that the petitioner, therefore, cannot be allowed to claim that his transfer is bad merely because he was not allowed to complete a formal tenure posting of three years at New Delhi after his re-transfer from Shillong to New Delhi. His transfer to New Delhi was in itself not a normal posting order and was passed before completion of his tenure at Shillong.
HC stated that in any event, as held by the Supreme Court, even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the same. Present is one such case where we do not deem it appropriate to interfere with the impugned Officer Order passed by the Authorities, taking into account the earlier posting of the petitioner to New Delhi.
HC Held:
After evaluating submissions made by both the parties the Court held that “Insofar as the plea of discrimination is concerned, again, the same cannot be a ground to interfere with the impugned Office Order. In fact, we may note that the petitioner himself, having remained in New Delhi for more than twenty-six years at the first instance, has been a beneficiary of such benevolent acts of the respondents and cannot now be heard to complain against the same. The petitioner has also not impleaded the officers, against whom the petition makes allegations of discrimination, as parties to the present petition. We, therefore, do not consider this a fit case to examine the plea of discrimination raised by the petitioner any further.”
Bench: Hon'ble Mr. Justice Manmohan and Hon'ble Mr. Justice Navin Chawla
Case Title: Amarjeet Singh Dagar v. Union of India and Others
Case Details: W.P.(C) 6311/2020 & CMs 22412/2020, 23078/2020
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