Dir. Gen. Employees State ... vs R.C. Gupta
2006 Latest Caselaw 732 Del

JUDGMENT

Mukul Mudgal J.

1. The writ petitioner, Director General, Employees State Insurance Corporation challenges the order of the Central Administrative Tribunal, New Delhi(in short `the CAT') dated 16th November, 2005 passed in OA 1810/2005 setting aside the orders of the petitioner dated 1st June, 2005, transferring the respondent from New Delhi to West Bengal as well as the order dated 28th July, 2005 by which the respondent's representation for changing the transfer order was turned down by a non-speaking order. The impugned order dated 16th November, 2005 quashed the order of transfer dated 1st June, 2005 and directed the petitioner herein to reconsider the respondent's posting either at headquarter or nearby place in the light of decision rendered by the Rajasthan High Court in Dr. (Smt.) Pushpa Mehta v. Rajasthan Civil Services Appellate Tribunal and Ors. reported as 2000 (5) SLR 598 which held that the employee should not be disturbed on the verge of retirement so as to avoid inconvenience.

2. The petitioner's plea is that on 9th June, 2005 a general order of transfer of 86 officials, was passed out of which 19 were the Deputy Directors such as the respondent herein.

3. The learned Counsel for the petitioner, Shri T. Raja has submitted that the CAT has relied upon the recommendation of Vth Pay Commission that there should be no transfer of Government servants retiring on superannuation with less than 3 years' service left. He has further submitted that these guidelines were never accepted by the Central Government and cannot be considered to be applicable and holding the field.

4. The CAT by its impugned judgment held as follows:

(a) In examining the validity of a transfer though administrative exigency and public interest hold the field, yet the order has to be supported by reasons and since another person retiring within three years' service such as D.D. Sharma had been, on his request, transferred to a place other than West Bengal, the departure from the 3 year policy, had to be supported by reasons and the applicant/respondent's plea also ought to have been considered.

(b) Not according similar treatment such as in D.D. Sharma's case amounted to violation of Article 14.

(c) There was unfairness in the procedure based upon the non-consideration of the respondent's request.

(d) The appellate authority in dealing with the respondent's representation, has passed the unreasoned order in rejecting the respondent's representation.

5. In so far as the rejection of the respondent's representation is concerned, we are of the view that generally a rejection while need not give detailed reasons but is required to very briefly indicate why the representation has not been found acceptable. While we are not entirely satisfied with the order of rejection dated 28th July, 2005 which is laconic, but nevertheless in light of the fact that both the parties pressed for an early hearing we thought it fit to examine the reasons ourselves in the interest of justice.

6. The learned senior counsel for the respondent, Shri G.D. Gupta has submitted that the transfer order was arbitrary and mala fide and violated the Government of India's guidelines. In particular he had while stressing the plea of arbitrariness submitted that the respondent (a) had just built a house in Delhi and (b) had a 25 year unmarried daughter and (c) being a vegetarian ought not to have been transferred to West Bengal which is predominantly a non- vegetarian State.

7. He accordingly submitted that since three other persons, namely, S/Shri M.K. Sharma, Uday Singh and M. Maithani who had represented against their transfer, had their request accepted, it was unfair to single out the respondent alone as his request for transfer was not accommodated.

8. Since we have examined the reasons ourselves, we have noted the following factors:-

(a) The respondent was a part of the routine transfer which encompassed 86 officers out of which 19 were Deputy Directors such as the respondent herein.

(b) A perusal of the respondent's postings throughout his career shows that the respondent in spite of serving in an All-India transferable post except for two brief periods; i.e., October, 1983 to November, 1984 when the respondent had served in Bhavnagar(Gujarat) and from January, 1992 to July, 1994 when the respondent had served in Regional Office, Rajasthan; had always been posted in NCR of Delhi which is treated as one unit.

(c) It is also evident that the petitioner has since July, 1994 served in Delhi and the respondent is due for retirement in the year 2008 and had slightly less than three years' service when he was transferred.

(d) The respondent's plea of mala fide as to the transfer cannot be accepted as the respondent has not been singled out for transfer and is a part of transfer of 86 officers.

(e) The other reasons given by the learned senior counsel for the respondent, Shri G.D. Gupta, i.e., (a) the respondent owning a house in Delhi (b) having an unmarried daughter of 25 years and being a vegetarian unsuited to a non-vegetarian State are wholly unacceptable grounds.

(f) Owning the house is perhaps common to almost all officers serving in a similar post. Even the factum of having an unmarried daughter is not such an uncommon occurrence so as to thwart a transfer and a vegetarian being asked to serve in a non-vegetarian State does not imply that the vegetarian food is not available in the State where the petitioner has been transferred such as West Bengal. If a transfer is allowed to be stalled on such specious pleas it will totally destroy the administrative efficacy of any establishment.

(g) The last plea by the learned senior counsel for the respondent was that in case of three other persons, namely, S/Shri M.K. Sharma, Uday Singh and M. Maithani, their representations were considered and they were accommodated elsewhere than West Bengal. This plea is not required to be considered because we have ourselves examined the reasons on the basis of which the respondent sought to stall the transfer and we have found the reasons to be totally devoid of any merit. We have also noticed that the respondent has not been singled out for hostile treatment and barring a period of about 2 years had always served in NCR of Delhi in his career spanning from 1987.

(i) The Tribunal has erroneously sought to apply the principle of avoidance of a transfer in the last 3 years of an official's career in spite of the fact that such a recommendation of the Vth Pay Commission of the 3 year principle was not accepted by the Central Government.

9. The learned Counsel for the petitioner, Shri T. Raja has relied upon the following passage from the judgment of the Hon'ble Supreme Court in Union of India and Ors. v. S.L. Abbas reported as and Shilpi Bose (Mrs) and Ors. v. State of Bihar and Ors. reported as 1991 Supp (2) SCC 659 and State of U.P. and Anr. v. Siya Ram and Anr. reported as to contend that since the order is not found to be flawed by mala fides and not in violation of any statutory provisions no cause for interference is made out. The relevant position of law in the above judgment in S.L. Abbas's case (supra) is as under:-

An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however, does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force.

Since no applicable statutory provision or guidelines applicable said to be violated were pointed out by the learned senior counsel for the respondent, the said judgment in S.L. Abbas's case (supra) fully applies to the present case. The learned senior counsel for the respondent has relied upon the judgment rendered by the Rajasthan High Court in Dr. (Smt.) Pushpa Mehta v. Rajasthan Civil Services Appellate Tribunal and Ors. reported as 2000 (5) SLR 598. The Rajasthan High Court in Pushpa Mehta's case (supra) held as follows:-

4. In the instant case, the second respondent is due to retire in January 2001 and the appellant has long to go in service. The Tribunal was of the view that policy of the Government has been that ordinarily, an employee at the verge of retirement, should not be disturbed. It appears that the State Government was not satisfied with the reasoning given by the Tribunal and, therefore, it did not prefer to challenge the said order, it is only the appellant, who is interested in posting at Udaipur, has preferred to challenge the order of the Tribunal. It may be noticed that in the opinion of the Tribunal, the order of transfer was malafide for the reason that it has been passed in order to only accommodate the appellant. This finding gets confirmation from the fact that the State the Tribunal. Thus, there appears to be non administrative reasons to transfer Dr. (Mrs.) Pushpa Mehta to Udaipur and to disturb Dr. (Mrs.) Shanta Dubey, who is at the verge of retirement. We are of the view that unless there are compelling reasons, ordinarily, an employee should not be disturbed from the place of his/her posting, when he/she is at the verge of retirement. An employee should be given sufficient time, which may be of two years or so to plan peacefully his/her post retirement life. This can be the legitimate expectation of an employee who has served the Department for major part of his/her life. In exceptional case, if the transfer in such case is felt necessary in the public interest, it must be kept in mind while giving the fresh posting that minimum inconvenience is caused to the concerned employee. Any transfer contrary to aforesaid principle will lead to interference that the order is malafide. We find no good reason to interfere with the order of the learned Single Judge.

We are unable to agree that the reasoning of the Rajasthan High Court in Pushpa Mehta's case (supra) applies in the present case because the respondent was neither on the verge of retirement and had about three years of service left nor was the transfer impugned in the present case done to accommodate some one else. We are indeed bound by the judgment of the Hon'ble Supreme Court in S.L. Abbas's case (supra) and since no mala fide has been established nor any government guidelines or statutory provisions have been shown to be violated, the transfer ought not to have been interfered with.

10. Accordingly the CAT erred in interfering with the order of transfer. Such an interference was wholly unjustified. Accordingly the writ petition is allowed and a writ of certiorari shall issue quashing and setting aside the CAT's judgment/order dated 16th November, 2005 by which the order of transfer dated 28th July, 2005 passed by the petitioner was set aside.