Bombay High Court
Acting Director, Central ... vs Koppaka Parleshwar And Anr on 21 June, 2017
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6082 OF 2016
Acting Director, Central Institute
for Research on Cotton Technology
and anr. .....Petitioners
V/s.
Koppaka Parleshwar and Ors. ......Respondents
----
Mr. Meelan Topkar, Advocate for the petitioner.
Ms. Vaishali Y. Agane, Advocate for respondent no.1.
None for respondent no.2.
ALONGWITH
WRIT PETITION NO. 6074 OF 2016
Shri. Yogesh Ram Pathare .....Petitioner
V/s.
Koppaka Parleshwar and Ors. ......Respondents
----
Ms. Ranjana Todankar, Advocate for the petitioner.
Ms. Vaishali Y. Agane, Advocate for respondent no.1.
None for respondent no.2.
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CORAM :- SMT. V.K. TAHILRAMANI, &
SANDEEP K. SHINDE, JJ.
RESERVED ON :- 12 th June, 2017.
PRONOUNCED ON:- 21 st June, 2017.
ORAL JUDGMENT : (Per :- SANDEEP K. SHINDE, J)
1. Both these petitions filed under Article 226
and 227 of the Constitution of India are directed
against the order dated 8th February, 2016 passed by
the Central Administrative Tribunal (CAT), Mumbai
Bench, Mumbai in O.A. No. 297 of 2015. This O.A. was
preferred by one, Mr. Parleshwar, eventually
respondent no.1, in both the petitions. The CAT by
judgment and order dated 8th February, 2016 allowed
the said O.A. of respondent no.1 and order of transfer
dated 29th May, 2016 issued by the Acting Director,
Central Institute for Research on Cotton Technology
(CIRCOT) was quashed and set aside and directions
were issued to pass appropriate orders within 2 weeks.
2. Aggrieved by the said order, respondents
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no.1 and 2 in O.A. No. 297 of 2015 have preferred Writ
Petition No. 6082 of 2016 and respondent no.3 in O.A.
No. 297 of 2015 has preferred Writ Petition No. 6074 of
2016.
3. Rule. Rule made returnable forthwith.
Heard finally by consent.
4. Heard both sides.
5. The facts giving rise to these petitions to be
stated in short are as under :-
. In June, 1984 vide appointment order dated 7 th
June, 1984 respondent no.1 was appointed as Lower
Division Clerk at Bombay. Clause-4 of the appointment
order, reflects that though his Headquarters will be at
Bombay, he would be liable to serve in any Institute
and/or Office of the Indian Council of Agriculture and
Research located anywhere in India. Since his
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appointment in June, 1984 he was serving in Mumbai
throughout till the issuance of transfer order dated 29 th
May, 2015. The respondent was promoted and serving
in Mumbai Office for about 31 years till 2015. On 29 th
May, 2015 respondent no.1 was transferred from
CIRCOT, Mumbai to Ginning Training Centre (GTC),
Nagpur on administrative ground and in the interest of
public. At the relevant time, he was working as
Assistant Administrative Officer, (A.A.O). By the very
order, one Yogeshwar Pathare who is respondent no.2
in Writ Petition No. 6082 of 2016 and petitioner in Writ
Petition No. 6074 of 2016, was directed to join and take
charge of the post, CIRCOT, Head-Office- Mumbai and
report immediately.
6. Aggrieved by the order of transfer dated 29th
May, 2015 respondent no.1 in both the petitions had
filed O.A. No. 297 of 2015 before the CAT, Mumbai
Bench, Mumbai seeking relief to quash and set aside
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the transfer order dated 29th May, 2015.
7. It appears Mr. Pathare, as well as, Mr.
Parleshwar (original applicant) were relieved on the
very date of the transfer and Pathare assumed the
charge of the new office at Mumbai immediately on 30 th
May, 2015. In the course of the arguments, Mr.
Topkar, the Learned Counsel for the petitioner, in Writ
Petition No. 6082 of 2016 submitted that respondent
no.1, Parleshwar had reported to Nagpur on new post,
for a day and thereafter has not reported the office till
date. It means, the transfer order has been acted upon
by the respective parties. In other words, respondent
no.3, Pathare, eventually the petitioner in Writ Petition
No. 6074 of 2016 is working at Mumbai office for last
more than two years.
8. The A.O. was resisted by respondents no.1
and 2 i.e. Acting Director, Central Institute for
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Research on Cotton Technology and the
Administrative Officer, Central Institute for Research
on Cotton Technology by filing the affidavit-in-reply,
contending that the services of Parleshwar are
transferable anywhere in India. It was contended that
Mr. Parleshwar, since his appointment in June, 1984
was in Mumbai and therefore he cannot make any
grievance against the transfer order. In para-5 of the
Affidavit-in-reply, it was contended that there are six
posts of Assistant Administrative Officer of which five
posts are in Mumbai and one post at Nagpur. That the
office at Mumbai can be managed with four
Administrative Officer against the five posts. That
upon transfer of Mr. Parleshwar, from Mumbai to
Nagpur and corresponding transfer of Mr. Y.R.
Pathare- respondent no.2 herein, there would be four
Administrative Officers working in Mumbai and one at
Nagpur. It was contended that, transfer of Parleshwar
is on administrative grounds and in public interests.
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The respondents further contended that, there is only
one post of Assistant Administrative Officer in Nagpur
and it was necessary to have a experienced person like
Mr. Parleshwar, to handle the work at the said post at
Nagpur. That the administration can manage with four
Assistant Administrative Officers at Mumbai against
the five posts but Singular Post of Assistant
Administrative Officer in Nagpur cannot be kept
vacant.
9. The parties filed further pleadings in the
form of rejoinder and sur-rejoinder.
10. The Learned Member, CAT after hearing the
parties was pleased to allow the A.O. whereby the
transfer order dated 29th May, 2015 was quashed and
set aside and the respondents were directed to pass
appropriate order within two weeks from the receipt of
the copy of the order.
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11. Aggrieved by the order dated 29th May,
2015, original respondents no.1 and 2 preferred Writ
Petition No. 6082 of 2016 and Mr. Pathare-original
respondent no.3 has preferred Writ Petition No. 6074
of 2016.
12. Heard the petitioners in both the petitions
and learned Counsel for the respondent-original
applicant, Mr. Parleshwar.
13. Perused the order and the relevant
documents.
14. Mr. Topkar, the Learned Counsel for the
petitioner appearing in Writ Petition No. 6082 of 2016
contended that the petitioner was serving in Mumbai
Office for more than 31 years since his appointment
and therefore he can't make any grievance about his
transfer to Nagpur, which was on administrative
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grounds and more so when his services are
transferable. Mr. Topkar, further submitted, that an
order of transfer is an administrative order. He
submitted, transfer is ordinarily an incident of service
and should not be interfered with, save and except,
where inter-alia, malafides on the part of authority is
proved. He further submitted, original applicant did
not allege malafides, except, by saying he was
transferred to Nagpur to accommodate respondent
no.3. He would submit, the Learned Member
committed error in exercise of jurisdiction by
interfering with administrative order, in absence of
malafides on the part of authority is proved.
15. That on the other hand, the Learned Counsel
for the original applicant submitted, that the transfer
order in question was issued to accommodate Mr.
Pathare at Mumbai, at his request and as such there
was no administrative exigency. She would contend
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that, the transfer order was not in public interest.
. In the case in hand, Mr. Parleshwar-original
applicant challenged the transfer order on following
grounds :-
(i)it was a sudden transfer.
(ii) the transfer was made to accommodate, Mr.
Pathare at Mumbai.
(iii)the transfer order was issued when the applicant
was on leave.
(iv) that Mr. Pathare could have been accommodated
on one post which was lying vacant at Mumbai.
(v) the transfer order was wrongful and without
authority.
(vi)that it is not in public interest.
(vii)that it is untimely since his sons are studying at
Mumbai and one son has passed an H.S.C. Board
Examination in 2005.
(viii) that his mother is of 90 years old and there is no
one to take care in the family, besides the applicant.
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(ix)that the transfer order is illegal, arbitrary and
unconstitutional.
16. It is not in dispute that, for last more than 31
years, Mr. Parleshwar, the original applicant was
serving on various posts at Mumbai. It is not in dispute
that, his services are transferable anywhere in India.
That a transfer being an incident of service, it does not
create any vested right in the employee to claim a
posting at a particular place. The law on this issue is
well-settled. In the case of Rajendra Singh and
Others. V/s. State of Uttar Pradesh And Others
reported in (2009) 15 SCC page 778 , it was
held :-
"8. A government servant has no
vested right to remain posted at a place of
his choice nor can he insist that he must
be posted at one place or the other. He is
liable to be transferred in the
administrative exigencies from one place
to the other. Transfer of an employee is
not only an incident inherent in the terms
of appointment but also implicit as an
essential condition of service in the
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absence of any specific indication to the
contrary. No Government can function if
the Government Servant insists that once
appointed or posted in a particular place
or position, he should continue in such
place or position as long as he desires."
17. That even otherwise, transfer, ordinarily is
an incidence of service and Court should be very
reluctant to interfere in transfer orders, as long as,
they are not clearly illegal. It is well settled that,
transfer and posting, must be left to the discretion of
State Authorities concerned which are in the best
position to assess the necessities of the administrative
requirements of the situation. The grounds urged by
the applicant-respondent to challenge transfer order,
even remotely do not indicate, that the order suffers
from malafides or is vitiated by the violation of
statutory provisions. The original applicant did not
plead the material particulars to infer and hold
malafides on the part of original respondents in
issuance of transfer order or it is against some
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statutory provisions.
18. Herein, Mr. Parleshwar, original applicant
was serving in Mumbai since 1984. His services are
transferable. He was working in Mumbai as Assistant
Administrative Officer. On transfer of Mr. Pathare, a
Singular Post of Administrative Officer at Nagpur was
required to be filled in. It is for the reason, respondent
no.1 was transferred to Nagpur from Mumbai first time
in 31 years of service. That no malafides were alleged
by Mr. Parleshwar on the part of petitioners, while
passing the transfer order. He had not pleaded that the
transfer was in violation of any Rule. That merely
because Mr. Pathare has been transferred from
Nagpur to Mumbai at his request and Mr. Parleshwar
has been transferred to Nagpur, it cannot be said that
the transfer order was passed to accommodate Mr.
Pathare. Moreover, on the very next day, Mr. Pathare
assumed the charge at Mumbai. It further appears
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that, Mr. Parleshwar reported to the new place of
posting for a day and thereafter has not reported the
office till date. That Mr. Pathare is admittedly working
in the new posting since last more than two years.
19. That for the aforesaid reason, both the
petitions are allowed. In the result, order dated 8th
February, 2016 passed by the Central Administrative
Tribunal (CAT), Mumbai Bench, Mumbai in O.A. No.
297 of 2015 is quashed and set aside. Rule is made
absolute in each of the petitions with no order as to
costs.
(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)
