Shahnawaz Bukhari vs Haj Committee Of India
2022 Latest Caselaw 6545 Bom

                                                               wp_L_15463.22
                                          1


SSC/PDP



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION

                     WRIT PETITION (L) NO. 15463 OF 2022

          Shahnawaz Bukhari                            ... Petitioner

               Versus

          Haj Committee of India and others            ... Respondents

          Mr. Sandeep V. Marne, Advocate for the petitioner.
          Mr. Mahesh Shukla a/w. Mr. Niraj Prajapati, Advocates for
          respondents.


                                CORAM     : DIPANKAR DATTA, CJ &
                                           M. S. KARNIK, J.

                                RESERVED ON : JUNE 24, 2022
                                PRONOUNCED ON : JULY 12, 2022


          JUDGMENT (Per the CHIEF JUSTICE):

1. By instituting this writ petition dated 9th May, 2022, the petitioner takes exception to the order dated 7th April, 2022, issued by the Deputy Chief Executive Officer, (Accounts), Haj Committee of India (hereafter 'HCoI', for short) as well as the order dated 14th April, 2022, issued by the same officer. The first of the impugned orders dated 7th April, 2022 transferred the petitioner, an Upper Division Clerk working under the HCoI, from Mumbai and required him to report, latest by 11th April, 2022, to the Liaison office of HCoI at Dariyaganj, New Delhi and to work under the supervision of Mr. Mohammed Sultan Khan, In-charge, Liaison Office, New Delhi till further orders. Immediately after receipt of the transfer order, the petitioner by his representation wp_L_15463.22

dated 8th April, 2022 had requested the Chief Executive Officer, HCoI to keep the order of transfer in abeyance for at least 20- 25 days on the ground that his mother, aged about 75 years, was suffering from various ailments and weaknesses and that his three children are due to appear in ensuing examinations. The representation of the petitioner dated 8 th April, 2022 stood rejected by the second of the impugned orders dated 14th April 2022.

2. This writ petition was moved during the summer vacation before a co-ordinate bench of this Court on 11th May, 2022. The bench restrained the respondents from taking any coercive steps against the petitioner till 22nd June 2022 and posted the writ petition for hearing before the regular court, while directing exchange of affidavits by the parties in the meanwhile. Interim relief was expressly granted by the bench, considering grounds

(i) and (j) urged in support of the relief claimed in the writ petition.

3. Interim relief was extended on June 20, 2022 by one week, whereafter the writ petition was heard finally in the presence of Mr. Marne, learned advocate for the petitioner and Mr. Shukla, learned advocate for the respondents.

4. Before we proceed to notice the contentions advanced by the learned advocates for the parties, we consider it proper to set out below grounds (i) and (j) of the petition, which impressed the coordinate bench to grant interim relief to the petitioner. The same read as under: -

i) The petitioner is physically disabled person. The Petitioner suffers from Post-Polio Residual Paralysis. A copy of Disability Certificate of the Petitioner is annexed hereto and marked as Exhibit-K. By OM dated 13-03-

wp_L_15463.22

2002 read with OM dated 10-05-1990 issued by the DoPT, disabled employees are required to be given postings at native places, copies whereof are annexed hereto and marked as Exhibit-L. Now the protection from transfers is extended even to government employees who have disabled dependents vide OM dated 08-10-2018, a copy whereof is annexed hereto and marked as Exhibit-M. Rather than extending the same protection to the Petitioner, he is sought to be unceremoniously thrown out of Mumbai.

j) The impugned transfer would create extreme difficulties for the Petitioner and his family members. The Petitioner's family consists of his mother aged 75 years, wife and 3 children. The Petitioner's mother is often ill and requires medical care. Petitioner's children are aged 18, 16 and 10 years. They are taking education at Mumbai in College/Schools. In such situation the Petitioner cannot leave his responsibilities and report at New Delhi, that too when not required administratively. The Petitioner will also not able to manage two establishments in a meagre salary of about Rs.54000/- per month. It is therefore necessary in the interest of justice that the impugned transfer of the Petitioner is set aside.

5. Appearing in support of the writ petition, Mr. Marne raised the following contentions: -

a) The service of the petitioner is not transferable;

hence he should not have been transferred to New Delhi.

b) HCoI has no regular establishment in New Delhi and it is only a Liaison Office that is operational and, therefore, the petitioner ought not to have been ordered to be posted there.

c) The petitioner is physically disabled and, therefore, the respondents ought to have kept such disability in mind.

d) The petitioner, on transfer, would be required to work wp_L_15463.22

under the supervision of Mr. Mohammed Sultan Khan, who was appointed as Upper Division Clerk along with the petitioner on 11th May, 2006, and this would lead to the petitioner being made to work under the supervision of his own colleague.

e) The petitioner has been penalized by the impugned order of transfer having raised issues on behalf of the staff of HCoI on various occasions for remedial measures to be taken.

6. Based on the aforesaid contentions, Mr. Mane has prayed for reliefs as claimed in the writ petition i.e. quashing and setting aside of the orders dated 7th April, 2022 and 14th April, 2022.

7. Per contra, Mr. Shukla contended that the order of transfer has been issued bearing in mind the administrative exigency. According to him, transfer is an incident of service and thus the petitioner cannot claim immunity from transfer. In this connection, our attention has been drawn by Mr. Shukla to the contents of paragraph 19 of the reply affidavit of Mohd. Yakoob Shekha, Chief Executive Officer, HCoI, to demonstrate the extent of urgent administrative exigency that necessitated the petitioner's transfer to New Delhi. He contended that the HCoI has a Liaison Office at New Delhi and hence, Haj related work such as receiving passports from all the States for endorsement of the Haj visa has already started and having regard to the pressure of work, it was considered necessary to utilize the experience of a senior employee like the petitioner at such office.

8. The contention of the petitioner that he was not in transferable service was countered by Mr. Shukla by referring to the Haj Committee Act, 2022 (hereafter "Act", for short) and the wp_L_15463.22

Haj Committee Rules, 2002 (hereafter "Rules", for short), framed in exercise of powers conferred by section 44 of the Act. According to him, rule 15(1) of the Rules provides that all officers and other employees of the HCoI appointed under sub-section (5) of section 16 of the Act shall be responsible to the Chief Executive Officer and act according to his instructions. The Chief Executive Officer having ordered the petitioner to report at New Delhi, it was contended that the petitioner is bound to follow the former's instructions and report for duty at New Delhi.

9. Insofar as physical disability of the petitioner as a ground for assailing the order of transfer is concerned, Mr. Shukla contended that such physical disability has never stopped the petitioner from proceeding on deputation to various destinations across the country including destinations abroad, as and when he was placed on deputation. The point that Mr. Shukla sought to be make out was that while the petitioner has never urged his physical disability as a ground for not complying with the orders of deputation, such ground has been raised only when his transfer to New Delhi has been ordered.

10. Regarding the accusation that the order of transfer has been made as and by way of a punishment, Mr. Shukla contended that the petitioner's allegation is absolutely without any substance. According to him, it is for the employer to decide when and where to post any of its employees; and, such a prerogative of the employer cannot be questioned by the petitioner unless mala fide is pleaded and proved. There is no such allegation in the writ petition. Paragraph 28 of the reply affidavit was referred to, wherein it has been clearly averred that the petitioner has miserably failed to prove that his transfer is mala fide and the same is punitive in nature as falsely alleged.

wp_L_15463.22

11. Mr. Shukla also contended that the petitioner himself prayed for 20-25 days' time to join at New Delhi. Such time is long over and, therefore, the petitioner should be directed to report in terms of the impugned transfer order.

12. Resting on the aforesaid contentions, Mr. Shukla prayed that the writ petition, which is lacking in merit, ought to be dismissed.

13. Referring to the rejoinder affidavit of the petitioner, Mr. Marne in his rejoinder address sought to impress upon us that even when the volume of Haj pilgrims in the years prior to the pandemic was more, the Chief Executive Officer did not consider it necessary to utilize the petitioner's service in New Delhi. With a lesser volume, it is indeed doubtful whether the petitioner's transfer is for meeting any administrative exigency or for extraneous considerations.

14. We have heard learned advocates for the parties and perused the pleadings on record.

15. It is true, as contended by Mr. Marne, that there are no rules/guidelines for transfer of employees of the HCoI. However, exercise of the power of transfer is not dependent upon an express provision to such effect in any rules. This follows from the basic proposition that transfer is an incident of public service. Law is well settled that transfer in relation to service, reduced to simple terms, is the change of a place of employment within the organization. Transfer being an incidence of public service, the power to transfer is available to be exercised by the employer bona fide, unless an express bar or restrain on the exercise of such power can be spelt out. Reference in this regard can profitably be made to the decision of the Supreme Court in wp_L_15463.22

(2003) 7 SCC 403 (State of Rajasthan Vs. Anand Prakash Solanki). The Act or any rule made thereunder does not prohibit or exclude exercise of the power to transfer any employee. On the contrary, we find from rule 15(1) of the Rules that all officers and other employees of the HCoI shall, inter alia, act according to the instructions of the Chief Executive Officer. It has not been shown from the appointment letter issued to the petitioner that the same contains any express bar or restraint on exercise of the power of transfer. The petitioner, therefore, cannot validly contend that he would not abide by the directions of the Chief Executive Officer; if he does so, it would be at his own risk and peril. Bearing the above principles in mind, it is clear that absence of any rule/guidelines for transfer cannot be used as shield to ward off an order of transfer.

16. Secondly, the order of transfer having expressly been made by the Chief Executive Officer of the HCoI in administrative exigency, it is not for the writ court to doubt the case run in the reply affidavit. Whether the workload at New Delhi would require posting of a senior member of the staff like the petitioner, is within the exclusive domain of the Chief Executive Officer. This is an area from which the writ court ought to stay at the distance.

17. Thirdly, the contention of the petitioner that the order of transfer has been made by the Chief Executive Officer in the guise of a weapon of punishment is also not well founded. A coordinate bench of this Court in its decision reported in 2021 (4) ALL MR 83 (Dr. Soudamini S. Chaudhari vs. State of Maharashtra & Ors.) laid down when an order of transfer could be held to be punitive in nature and hence, invalid. The impugned order of transfer does not satisfy any of the requirements and, therefore, we overrule the contention of Mr. wp_L_15463.22

Marne that the order of transfer has been issued in lieu of punishment.

18. Fourthly, there is also no substance in the petitioner's allegation that the order of transfer was made only because he had, on behalf of the other employees, raised voice against the HCoI and the Chief Executive Officer. The allegations have been clearly denied by Mohd. Yakoob Shekha by filing an affidavit and such affidavit, though dealt by the petitioner by filing an affidavit in rejoinder, does not have any material therein to warrant a finding of mala fide against the Chief Executive Officer.

19. Insofar as the ground of the petitioner's mother's illness as well as education pursued by his children is concerned, we find that the petitioner in his representation dated 8th April, 2022 sought for 20-25 days' time to report for duty at New Delhi. Mr. Marne has sought to explain that such period was mentioned on a certain assurance that the petitioner had received. That is not the plea raised in the writ petition. We, therefore, disbelieve the plea of assurance. The period for which the petitioner prayed the order of transfer to be kept in abeyance having long expired, such order cannot be kept in abeyance any further.

20. Regarding physical disablement, the statement made by the Chief Executive Officer that the petitioner has never objected to being sent on deputation is uncontested. It is, therefore, clear that the physical disablement did not stand in the petitioner's way while he was deputed for duty at places far away from Mumbai. This contention too lacks substance and accordingly, stands rejected.

21. For the foregoing reasons, we find that the petitioner has not been able to set up any case for interference with the wp_L_15463.22

impugned orders. The writ petition stands dismissed. There shall be no order as to costs.

22. Interim relief stands vacated. However, the petitioner is given 10 days' time to report at New Delhi failing which it will be open to the Chief Executive Officer to take such steps against the petitioner as are warranted in law.

                             [ M. S. KARNIK, J. ]                [ CHIEF JUSTICE ]


          Digitally
          signed by
          PRAVIN
PRAVIN    DASHARATH
DASHARATH PANDIT
PANDIT    Date:
          2022.07.12
          16:41:57
          +0530