Allahabad High Court
Niraj Agrawal vs Union Of India And 5 Others on 11 January, 2021
Bench: Munishwar Nath Bhandari, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- WRIT - A No. - 13961 of 2020
Petitioner :- Niraj Agrawal
Respondent :- Union Of India And 5 Others
Counsel for Petitioner :- Pramod Kumar Dubey,Sanjiv Singh(Senior Adv.)
Counsel for Respondent :- A.S.G.I.,Suchit Tandon
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Rohit Ranjan Agarwal,J.
By this writ petition, a challenge is made to the judgment dated 11.06.2020 passed by Central Administrative Tribunal Allahabad Bench, Allahabad in Original Application No.330/00248/2020.
The Original Application was filed to challenge the order of transfer dated 21.01.2020. It was dismissed finding no violation of statutory provision or the transfer order vitiated by mala fide. A reference of judgment of Apex Court in Union of India vs. S.L.Abbas (1993) 4 SCC 357 has been given.
Counsel for the petitioner submits that while transferring the petitioner from one place to another, there was a violation of policy guidelines. The Tribunal even ignored that administration has not kept petitioner's transfer order in abeyance while it was so allowed in favour of 39 other candidates who preferred original application before Central Administrative Tribunal, Lucknow Bench, Lucknow, followed by an interim order in their favour. The interim order by the Lucknow Bench was after recording a finding about violation of operative guidelines of transfer. The respondents were expected to maintain parity between the similarly placed and otherwise representation made by the petitioner against the order of transfer remain undecided. On all the three grounds, interference in the order of Tribunal has been sought.
A reference of judgment of Apex Court in Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others (2004) 12 SCC 299 has been given. It is to support the argument that whenever there is infraction of the prescribed norms of principles governing the transfer, interference can be made by the Court. In that regard reference of Apex Court in the case of Abani Kanta Ray vs. State of Orissa 1995 Supp (4) SCC 169 has been given.
The prayer is to set aside the order of Tribunal and, if not, then at least direction to the administration to decide the representation of the petitioner and till then to keep the order of transfer in abeyance.
We have considered the submissions advanced by the counsel for the petitioner and perused the record.
It is a case where petitioner was transferred from one place to another almost a year back. It was when the petitioner had already served at one place for almost eight years. The challenge to the order of transfer was not made alleging mala fide of the officer or referring to violation of statutory provision. The order of transfer was questioned in reference to the infraction of guidelines of transfer said to be statutory in nature, but, no material was placed to show that Instructions or guidelines to be statutory in nature. It is well settled that violation Administrative Instructions or Circular governing the policy of transfer cannot be taken basis to challenge order of transfer.
Learned counsel made a reference to the judgment of Apex Court in Kendriya Vidyalaya Sangathan (supra) and to substantiate his argument, para 4 of the said judgment was referred.
A perusal of para 4 of the judgment in the case of Kendriya Vidyalaya Sangathan (supra) also make a reference of the judgment of Apex Court in the case of S.L.Abbas (supra) with a clear view that an order of transfer should not be interfered unless it suffers from mala fide or is made in violation of operative guidelines.
The word "operative guidelines" does mean a Circular but should be statutory in nature. If the judgment in the case of Kendriya Vidyalaya Sangathan (supra) is construed to mean that an order of transfer passed in violation of Instructions/Circular/Policy of transfer can be interfered then it would be having different view than expressed by the Apex Court earlier in the case of S.L.Abbas (supra) and catena of judgments.
Thus, we are unable to accept challenge to the order of transfer in reference to violation of administrative Instructions or guidelines for transfer, not being statutory in nature. It is despite an opportunity to the counsel for petitioner, he could not bring any material to show that instructions are statutory in nature.
The second argument is in reference to the order passed by the Tribunal at Lucknow Bench granting interim order against the order of transfer. The interim order of Lucknow Bench was referred showing it to be on the pretext of violation of Instructions/guidelines of transfer.
A perusal of the order does not show any discussion or finding that the order being in violation of Instructions/guidelines, needs to be stayed. In fact that was a case where the Tribunal, in earlier original application, had given direction for a decision on the representation of the applicants therein. The representations were not decided despite the direction of the Tribunal. Thus, in those circumstances, non compliance of the direction was taken literally to be contemptuous in nature and on that ground, interim order was passed. The similar position is not operating in the case in hand. It is otherwise not correctly stated by the counsel that the interim order by the Tribunal was in reference to violation of Instructions or guidelines. Accordingly we do not find any discrimination in the action of the respondents rather in those cases where interim order has been passed by the Tribunal, they had no option but to give effect to it and thereby pursuant to the interim order of the Tribunal, if somebody could not be transferred, the effect cannot be applied on the petitioner without an interim order in his favour. Thus even the second limb of argument of the petitioner cannot be accepted.
The third issue is in reference to the representation so as to seek direction for its decision. We are unable to accept even the third limb of argument or the prayer in a case where the transfer was effected by order dated 21.01.2020 and period of one year is going to pass. The applicant-petitioner has not yet joined the place of posting, as informed by his counsel. It is despite the fact that no interim order exist in his favour.
We do not want to comment as to what can be the consequence of non-joining but in the peculiar circumstances, it is not a fit case where a direction can be given for decision of the representation of the petitioner when the order of transfer was effected much prior to the representation and that too, upon a person who has already served at one place for more than eight years.
The writ petition accordingly fails and is dismissed.
Order Date :- 11.1.2021
KA
