Mukesh Kumar vs Union Of India (Uoi), Chairman, ...
2006 Latest Caselaw 1715 Del

JUDGMENT

J.M. Malik, J.

1. In this writ petition the petitioner has called into question the transfer order dated 11.03.2006 wherein the petitioner was transferred to Burnpur as Manager Civil(Maintenance). Adumbrated in brief the petitioner's case is this. Petitioner belongs to scheduled caste. The petitioner joined Steel Authority of India on 10.06.1991 at Rourkela as Management Trainee (Admn.). He took training at various places like Burnpur and Calcutta. On completion of his training he was posted in December 1991 at Delhi as Sales Executive, in December 1992, he was transferred to Batala, Punjab, in February 1995, he was transferred to Chandigarh, in September 1996, he was transferred to Burnpur and again in June 2000 to Delhi. Before his transfer in March 2006 he was working as Manager (Sales - Delhi Stock Yard) ISP. In February 2006 ISCO was dissolved. All employees working in Sale Department throughout India were transferred to Central Marketing Organisation and were posted at the same station except the petitioner who was transferred to Burnpur. It is averred that the respondents No. 2 & 3 are not following any proper transfer policy and it appears that their best policy is the policy of whims and fancy and pick and choose. From the list submitted by the petitioner with the writ, it appears that some officials are working at one station for last 7 years to 18 years.

2. The respondents have contested this application. I have heard the counsel for the parties at length. Both the parties have also filed the written synopsis as well. The most telling argument urged by the learned Counsel for the petitioner was the petitioner sought permission of the competent authority to join M.B.A.(part-time) three years course for the session 2004-2007 in Faculty of Management Studies, University of Delhi. Permission was granted on 22.04.2004. The petitioner has already completed two years course and the petitioner has yet to attend classes for one year more. The permission letter does not state that the petitioner could be transferred out of Delhi within the period of three years. It is averred that had it made clear while granting permission, petitioner would not have joined the course. Again, his MBA course will complete by 2006-07 academic year. It was prayed that under these circumstances the transfer order should not have been passed till March-April 2007 i.e. after the completion of his MBA course.

3. His arguments reveal a lack of realism. He has attempted to evade truth by a quibble. The permission was granted to the petitioner vide letter dated 22.04.2004 subject to the following conditions:

Kindly refer to your application dated 31.03.2004 addressed to GM(P&A) requesting for grant of permission for admission to MBA (part-time) course for the session 2004-2007 from the Faculty of Management Studies, University of Delhi.

We are pleased to inform you that the Competent Authority has acceded to your request and has allowed you to join the said course for the session 2004-2007 subject to the following conditions:

1. You will avail your own leave for undergoing the said course and for appearing in the examinations.

2. You will undergo the above course beyond your duty hours and the and the above course should not affect your official work in any way.

3. The Company will not bear any expenditure for pursuing the said course and all expenses in connection with the above will be borne by you.

4. The Company will have no liability whatsoever arising out of your undergoing the said course and subsequently qualifying in the same.

This has the approval of the Competent Authority.

(Sabyasachi Dutta)

Dy. Manager(Personnel)OD

Condition No. I is crucial. This is an indisputable fact that the petitioner can have study leave. It is difficult to fathom as to why he is not taking study leave. He wants to have the cake and eat it too. It is made clear that when the petitioner joins at Burnpur his study leave will be granted at once without any hassles within a period of two days.

4. The second submission made by the learned Counsel for the petitioner was that The petitioner had sought leave w.e.f. 10.03.2006 to 20.04.2006 in order to appear in 4th Semester Exam of MBA. During his vacation the said order dated 11.03.2006 was issued. The transfer order dated 11.03.2006 and relieving order dated 21.04.2006 were served upon the petitioner together on 20.04.2006. The main grouse of the petitioner is that he was not granted time to make his representation before the respondents authority. The learned Counsel for the respondent has drawn my attention towards Apex Court authority reported in State of West Bengal v. M.R. Mondal and Anr. 2001 (Suppl.) Arb. LR 683 (SC), wherein, it was held that the order passed but retained in file without being communicated to the plaintiff can have no force or authority whatsoever and the same has no valid existence in the eye of the law or claim to have come into operation and effect.

5. During the pendency of this case this argument was raised on 1st September, 2006. The counsel for the respondents had made a statement that the petitioner can make representation to respondents and the same will be considered as per law. The case was adjourned to 12th September, 2006. Ordersheet of 12th September, 2006 goes to show that the petitioner had made a representation before the respondents. The learned Counsel for the respondent explained that although, he has referred to 67 documents, yet, the same have not been filed Along with the representation. Learned Counsel for the petitioner replied that all those documents should be ignored and the matter be decided in accordance with law. On 18th September, 2006, respondents stated that respondents had rejected the representation made by the petitioner. Consequently, this ground too does not ensure in favor of the petitioner.

6. The petition has further argued that the petitioner was promoted as Divisional Manager(Sales - E-3 grade) on 30.06.1999. As per promotion policy, the petitioner was due for promotion on completion of two years service. Other batch-mates were promoted on 30.06.2001 but the petitioner was denied promotion on the lame excuse of non acquiring of requisite credit points of 100. He was denied this promotion in the year 2002 and 2003. Finally he had to approach the National Commission for Scheduled Caste and Scheduled Tribes through a representation. The petitioner was however promoted as Manager (Sales - Grade E-4) on 10.11.2004. For the excellent performance during the financial year 2001-02, the respondents issued an appreciation letter to the petitioner appreciating his efforts for achieving highest targets. As per appreciation letter, the petitioner surpassed the records of past ten years in respect of daily delivery of steel in a day for three consecutive days, which exceeded 500 MT/day. Despite this excellent performance, the petitioner performance during 2001-02 was rated as grade 'C' i.e. worth 15 points only. It is alleged that this act apparently discloses bad faith and malafide against the petitioner because of social back ground and caste prejudice. Since the petitioner sought redress of his grievance before the National Commission for Scheduled Castes and Scheduled Tribes, therefore, the concerned officer turned more violent towards the petitioner and the respondents started harassing the petitioner in various ways. The petitioner was compelled to leave his job stating that under such revengeful atmosphere it was difficult to work. The services of the petitioner were terminated. Due to intervention of National Commission for Scheduled Castes and Scheduled Tribes, the petitioner was taken back only when as desired by the respondents, the petitioner withdrew his representation from the Commission and requested the Commission not to initiate any action against the officials of the Authority.

7. It was also submitted that all other persons except the petitioner have been accommodated in Delhi. Those persons have continuously worked for a longer period in Delhi in comparison to the petitioner who was transferred from Delhi for four times. The petitioner was singled out with malafide intention and hostile treatment. Petitioner is stated to be an outstanding officer and as per the assessment made by the respondents and his ACRs have been very good. Again the wife of the petitioner is also working in Delhi.

8. Moreover, the respondents were aware that the petitioner was belongs to SC/ST caste. It is averred that Govt. of India issued a notification dated 24.06.1985 which runs as follows:

2. It has, however, been pointed out to this Department that the Scheduled Castes and Scheduled Tribes officers, after appointment, are subjected to harassment and discrimination on grounds of their social origin. It has been pointed out that SC/ST officers are sometimes transferred to far-off places and also placed at insignificant positions. It has also been stated that these officers are not accepted at their places of postings by the concerned superior officers in some cases.

It is reiterated that in the matter of postings/placements of officers/ staff, no discrimination should be shown against those belonging to SC/ST. Complaints in this regard should be given due consideration and should be brought to the notice of the Head of the Department for corrective action, wherever necessary.

9. Again as per the terms of recruitment the officials so recruited are required to work as executive positions in key performance areas of Management such as Personnel, Marketing, Materials, Law, Administration and Public Relations etc. However, violating all the recruitment terms, the respondents transferred the petitioner to Burnpur as Manager(Civil Maintenance). As per the recruitment rules of the authority only, those Executives are required to be posted in civil maintenance who have been recruited as Management Trainee(Technical).

10. I seen no merit in these submissions. Firstly, his bizarre conduct is difficult to fathom. The petitioner joined IISCO on 10.06.1991. He requested for change of his department from personal to marketing on 19.08.1991. On 19.08.1991 he submitted his resignation on personal grounds and withdrew it on the same day. On 19.08.1991 he was posted in Marketing department and was transferred to New Delhi. On 28.12.1992 he was transferred to Batala on organisational requirement with full transfer benefit . From 2nd week September 1994 he stopped reportedly for duty without any information. A letter dated 31.10.1994 was sent to him by AGM Sale NR Chandigarh to report for duty. He was advised to report to Burnpur Hospital for medical treatment but he failed to do so. Batala branch was closed down and petitioner was transferred to Chandigarh. He abandoned service in January 1996. He was allowed to join at Burnpur on 09.02.1998 with the intervening period as dies-non. He was transferred to New Delhi at his own request and was posted to the STOCK YARD of IISCO at New Delhi on 19.06.2006.

11. Secondly, I advert to his representation made by the order of the court during the pendency of this case. It itself goes to speak well for his conduct and behavior. The relevant extracts run as follows:

In compliance to the directions of the Hon'ble High Court of Delhi, I wish to submit my representation for cancellation of the impugned Transfer Order No. PL/OD/ET-06/15 dt. 11.03.06 and the subsequent Release Order No. BSS/11/MK/124 dt. 19.04.06 on the following grounds.

The Departmental Promotion Committees never included representation of SC/STs in their panels in absence of SC/ST officers at GM level (E-8 grade) and above in the company. And even for Performance Review Committee the representation of SCs/STs were extremely rare and were never binding as per company's policy. In fact, for Sales Department, the PRC could never include any SC/ST member in the panel in absence of any SC/ST as Regional Manager. Therefore, justice to SCs/STs in the company had been at stake. And it is really unfortunate and painful to submit that my representations against such lacunae on the part of the management, have rather evoked a revengeful response instead of corrective measures at the hands of the management. In fact, the company has made wrong statement (argument) before Hon'ble High Court of Delhi on 01.09.2006 that SCs/STs were represented in the PRCs and DPCs.

The significant contribution as breaking the record of past ten years and other routine performance as also acknowledged in almost all my Self Appraisals were NOT the part of assessment grading recorded by the Performance Review Committees, fully dominated by upper caste members in the company. In fact I was treated like a 'donkey' for all valuable work without any recognition or credible assessment.

Referring my Appeal dated 13.10.2003 and the annual Self Appraisals duly signed by the Reporting Officers at the time of Performance Review and Planning meetings, some of my distinct achievements recorded as I/C Okhla Stockyard, and as a sole Executive at the Yard, are hereunder, which the management completely ignored while awarding "B" or "C" grades, but to react revengefully for the incidents of 1995 as evident from the "Dates and Events" submitted by the company before Hon'ble High Court of DHCLSC.

In view of above, I very humbly request that the management should consider my request favorably and cancel the impugned Transfer and Release Orders, which are discriminatory, and with the high handedness of some senior officials against me and out of vendetta, and save me from the uncalled for harassment and mental torture inflicted upon me so far on various false excuses.

12. Moreover, I find force in the submission made by the respondent that the transfer of the petitioner has been effect for the exigencies of work in public interest at about Rs. 10,000/- crores is proposed to be invested in plant Modernisation at Burnpur. IISCO was referred to BIFR and was declared a sick company. IISCO was then merged with SAIL. The Marketing department of IISCO was closed down. The petition being a Civil Engineer was transferred to Burnpur in civil maintenance based on organisational requirements. The reason for lack of engineers was also reflected in order dated 18.02.2006. It must be borne in mind that there is no work for Marketing man of IISCO at New Delhi.

13. Other points which must be borne in mind are that he was transferred from Delhi after the lapse of six years. According to terms and conditions of employment he could be transferred to any part of the country. The petitioner had in past applied for his posting as Civil Engineer in Qater and other PSUs.

14. It is Axiomatic that if transfer order is actuated with mala fide or extraneous consideration or malice or has been made in violation of a statutory rule or regulation, it will be illegal. This is also the obvious implication of the dicta of the Hon'ble Supreme Court that a transfer order is liable to be struck down if it is made with the aforesaid reasons. It is well settled law that the transfer is an incidence of service. The Govt. employee cannot claim the posting at a particular place. That apart the respondent is not required to disclose administrative exigency in the order of transfer itself.

15. In Laxmi Narain Mehar v. Union of India and Ors. 1997(2) SLR 383, the transfer was made on administrative exigencies. It was held that transfer could not be said to be arbitrary as the services of the experienced officers were necessary. It was also observed that it is true that as far as possible, the convenience of the officer belonging to Scheduled Castes and Scheduled Tribes may be considered and he may be posted near the home town, but the authority has power to transfer him when the administrative need arises. The Apex Court did not interfere with the transfer order but gave liberty to the petitioner to move representation before the appropriate authority.

16. In an another authority reported in Union of India and Ors. v. Janardhan Debanath and Anr. , the person was transferred because of inefficiency or misbehavior. It was held that the said order was not barred by Fundamental Rules 14 and 15. Similar view was taken in Cipla Ltd. v. Jaya Kumar R. and Anr. 1998 (7) SLR 629, Bimalendu Chanda v. Steel Authority of India Ltd. and Ors. 1987(2) SLR Calcutta High Court 527, Rajendra Roy v. Union of India and Anr. . The Apex Court while relying upon National Hydroelectric Power Corporation Ltd. v. Sh. Bhagwan in State of U.P. and Anr. v. Siya Ram and Anr. : 2004(5) SLR 760 (SC) took the same view.

17. The Apex Court in case of Abani Kanta Ray v. State of Orissa and Ors. 1995 Supp 4 S.C.C 169 was pleased to observe:

It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer.

18. In case of State of M.P. and Ors. v. S.S. Kourav and Ors. 1995 (3) S.C.C 270 it was held:

The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous considerations without any factual background foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the court.

19. The Apex Court in State of U.P. and Ors. v. Gobardhan Lal : 2004(3) SLR 239 (SC) took a view that transfer made even in transgression of administrative guidelines cannot be interfered with by the courts, as they do not confer any legally enforceable rights, unless such transfer is shown to be vitiated by mala fides or is made in violation of any statutory provision.

20. This position was reiterated by the Apex Court in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors. by observing that who should be transferred and posted where, is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any operative guidelines, the courts should not ordinarily interfere with it.

21. In Union of India v. S.L. Abbas it was held:

No doubt the guideline requires the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.

I am of the considered view that this authority neatly dovetails with the facts of case in hand.

22. This view is further followed by recent High Courts' judgments reported in Padam Singh v. State of MP 2006 (3) S.L.R page 129 P.L. Choudhry v. Chairman Jodpur Discom Jodhpur 2006 (3) S.L.R page 285. State of Maharashtra and Ors. v. Prakash Pandharinath and Ors. 2006 (3) S.L.R. (D.B) page 402, Krishan Lal and Ors. v. Bharat Sanchar Nigam Ltd. and Ors. 2006 (3) F.L.R. 514 and Krishan Kumar Pahwa v. Director Industrial Training and Vocational Education 2006 (3) S.L.R. (D.B) 841.

23. No malice, no mala fides, no extraneous consideration stand proved. There is no evidence to show that transfer of the petitioner was actuated with violation of statutory rules. On the other hand conduct and behavior of the petitioner does not prove to be above board. The Court gave him an opportunity to make representation but his representation and other documents go to depict that spewing of venom appears to be his sole aim. Is it the way to behave with you senior officers, where is the discipline obedience and efficiency? The petitioner knew it well that his representation would come up for the scrutiny of this Court. Under these circumstances one is expected to approach the authority with hat in hand instead having a quarrelsome deposition. I shudder to think that while working as a Magistrate or Sessions Judge could I have made such like representation to the Hon'ble High Court what would have been the reactions of my the then seniors can be anybody's guess? The writ petition is sans merits and therefore it is dismissed. Interim order if any stands vacated. No costs.