Manmohan Taneja vs Union Of India & Anr.
2008 Latest Caselaw 1338 Del

                                                      REPORTABLE
*                     IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     W.P(C) No. 3004/2008

%                                Date of Decision : August 13, 2008

# MANMOHAN TANEJA                              ... Petitioner
%                                        Through : Mr. Rajat Aneja, Advocate

                           Versus

$ UNION OF INDIA & ANR.                       ... Respondents
^                                        Through : Mr. J.P.Sharma with
                                                   Mr. J.K.Singh, Advocates.

CORAM :
HON'BLE MR. JUSTICE S.N. AGGARWAL

    1. Whether reporters of Local paper may be allowed to see the
       judgment?
    2. To be referred to the reporter or not?
    3. Whether the judgment should be reported in the Digest?


S.N. AGGARWAL, J. (Oral)

The petitioner in this writ petition is mainly aggrieved by his

transfer from Noida to Gandhi Nagar in Gujarat vide impugned transfer

order dated 31.3.2008. He has filed this writ petition seeking grant of

following reliefs:-

"(a) To release the salary of the petitioner w.e.f. 01.03.2007 onwards and pay the same forthwith;

(b) To direct the respondents to promote the petitioner for the two promotions to which the petitioner was eligible from March, 2002 (as per the commitment of the Selection Committee at the time of selection as selection package) onwards in accordance with the rules and regulations of the respondents and after the petitioner is promoted, all the dues payable in the promoted grade be also paid to the petitioner;

(c) To quash the impugned transfer order dated 31.03.2008 whereby the petitioner was transferred from the NOIDA office, STIP to Gandhi Nagar, Gurajat and further to direct the respondents not to implement the said transfer order in any manner whatsoever."

2 The brief facts of the case are as follows:-

The petitioner was invalidated out from military service on

medical grounds while undergoing pre-commission training at IMA,

Dehradun. He has not completed pre-commission training successfully

and was not granted commission in the Army in rank of 'Lieutenant'.

After the petitioner was invalidated out from military service, he joined

the service with M/s Software Technology Parks of India (in short 'STPI')

to the post of Member Technical Staff (MTS E-1) vide appointment letter

dated 8.2.2001, which is annexure R-4 at page 332 of the paper book.

The appointment of the petitioner with respondent No.2 was a

contractual appointment for a period of three years. The petitioner had

joined the service with respondent No.2 on 7.3.2001 on terms and

conditions mentioned in his appointment letter (Annexure R-4) at page

332 of the paper book. After the period of his contractual appointment

including extensions was over, he was regularised in the service of

respondent No.2 on 14.9.2005 with retrospective effect i.e. 7.3.2004,

the date of completion of his 3 years contractual appointment.

3 The petitioner started making complaints of corruption and on

matters relating to internal management against the Director and other

functionaries of respondent No.2 since January, 2005. The complaint

made by the petitioner against the functionaries of respondent No.2 are

at page 66-132 of the paper book.

4 The petitioner was transferred to the statutory and policy related

section of respondent No.2 at Noida on 6.1.2004. His said posting order

dated 6.1.2004 is annexure R-11 at page 345 of the paper book. The

problem with the petitioner started, when he was transferred from

statutory and policy related section of respondent No.2 to the business

development division on 4.1.2007. The business development division

of respondent No.2 is also situated in the same building at Noida. At

the time the petitioner was posted from statutory and policy related

section to the business development division, he did not vacate the

room occupied by him in the statutory and policy related section to

enable the officer who was transfered in his place to occupy the said

room. The petitioner was, therefore, served with an office

memorandum dated 15.2.2007, which is Annexure R-17 at page 352 of

the paper book calling upon him to vacate the room occupied by him in

the statutory and policy related section, so that it can be occupied by

the incumbent, who was transferred in his place. The contents of the

above OM dated 15.2.2007 are extracted herein below:-

"Sh. Manmohan Taneja, MTS E-I may please refer to this office's memorandum of even number dated 29.01.2007 a copy of which was sent to his house by speed post, but he had refused to accept both the letters. He has also not shifted to BD Group, where he has been posted and allotted a Room at Earth Station building. The officer who has been posted in his place is unable to sit and work due to non- vacating the Room he is occupying in Statutory Group. The action and behaviour in this matter attracts CCS(Conduct)Rules, 1964 and disciplinary action could be taken against him.

I am directed to advise Sh. Manmohan Taneja to take out all his belongings from the present Room and move immediately latest by 19.02.2007 to Room alloted to him in Earth Station Building, failing which appropriate action will be taken.

This issues with the approval of the Director."

5 Since the petitioner did not vacate the room occupied by him in

the statutory and policy related section despite service of above

referred OM his room in the statutory and policy related section was

sealed by a Committee constituted by respondent No.2 for the purpose.

The petitioner along with 16 other employees of respondent No.2 was

transferred to various places vide impugned transfer order dated

31.3.2008, which is at page 134 of the paper book. All other employees

of respondent No.2 except the petitioner, who have been transferred

are stated to have joined their duties at the place they were transferred

vide impugned transfer order.

6 The petitioner has filed this writ petition on 9.4.2008 and had

obtained an ex parte stay order against his impugned transfer vide

interim order passed by this Court on 11.4.2008. This stay order is

continuing till date.

7 The respondent No.2 has filed its counter affidavit to the petition

in which it has taken a plea that the petitioner has procured ex parte

stay order against his impugned transfer by concealment of material

fact. It is contended that the petitioner vide his letter dated 4.4.2008

had accepted the impugned transfer and had expressed his willingness

to join at the place of his transfer, subject to payment of his salary since

March, 2007. It is further alleged in the counter affidavit that the

petitioner had not only expressed his willingness to join at the place of

his transfer but had also handed over the charge to the concerned

authorities at Noida on 9.4.2008. It is contended that the petitioner has

concealed from the Court that he has already handed over the charge

on 09.04.2008 and had accepted the transfer order and succeeded in

procuring an ex parte stay order by concealment of these material

facts. On merits the respondent No.2 has taken a stand that the

transfer of the petitioner from Noida to Gandhi Nagar in Gujarat is in

terms of administrative policy of respondent No.2 institute coupled with

the conditions of his appointment contained in his appointment letter

according to which he is liable to be posted anywhere in India.

Reference is made to clause 3 of the appointment letter of the

petitioner, which is at page 332 of the paper book.

8 Mr. Aneja, learned counsel appearing on behalf of the petitioner

has vehemently argued that the impugned transfer of the petitioner

from Noida to Gandhi Nagar in Gujarat is motivated and is actuated in

mala fides because the petitioner had made complaints of corruption

against the functionaries of respondent No.2 since January, 2005. Mr.

Aneja had contended that all those who have been making complaints

against the functionaries of respondent No.2 were targeted for their

transfer by respondent No.2. Mr. Aneja has attacked the impugned

transfer of the petitioner mainly on four grounds and they are as

follows:-

1) There is no transfer policy in respondent No.2 institute;

2) The transfer of the petitioner is based on pick and choose policy;

3) The impugned transfer of the petitioner is the outburst of the legal notice dated 29.4.2007 sent by the petitioner coupled with his complaints against corruption in respondent No.2 institute and;

4) All those who had made complaints against the functionaries of respondent No.2 have been targeted in the impugned transfer order for their transfer at various places.

9 I have carefully scanned all the contentions urged and advanced

on behalf of the petitioner but I could not persuade myself to agree

with any one of them. On going through the complaints made by the

petitioner against the functionaries of respondent No.2 Institute, it

appears that the petitioner has adopted black-mailing and arm-twisting

tactics against the concerned authorities in order to settle his own

score. It shall be significant to refer to the threat extended by the

petitioner to his employer through legal notice dated 29.4.2007, which

is at page 372 of the paper book. The relevant portion of the legal

notice is extracted below:-

" I have been told by Dr. Rai and also advised vide para 3 of this office letter dated 25th April, 2007 to apply for my transfer against threat apprehension to my life from the officer against whose corrupt activities, which had transpired into certain audit observations on office record

also, I had been attempting several complaints. Instead of transfer I subscribe following declaration:-

That if I happen to meet same fate as happened with late Dr. Trilok Nath, Senior Deputy Director, STPI, Noida then it may kindly be taken as my dying declaration that Dr. Sunil Kumar Aggarwal (presently working as Director STPI Noida), Sh. Ravi Nagpal (presently working as SAO with STPI HQ) and their associates are responsible and if any accident or indecent happens to my family member then it would be my FIR under Sections 120A, 302, 307 against same person and his associate."

10 The plain reading of the above contents would show the extent to

which the petitioner could go. He did not spare his employer in

extending threats by saying that the legal notice may be treated as

dying declaration and in case something happens either to him or to

any of his family members, then it should be treated as FIR under

Sections 120A, 302, 307 IPC against the persons named in the notice.

Such threats are not expected from a responsible officer like the

petitioner.

11 The contention of the petitioner, that there is no transfer policy in

respondent No.2 institute, seems to be without any merit. From the

record, it appears that the petitioner himself had been transfered from

one section to another section before he was transfered from Noida to

Gandhi Nagar in Gujarat vide impugned transfer order. The transfer

order was passed not only against the petitioner but against several

other employees of the organisation from time to time. Vide impugned

transfer order, transfer has been effected on 16 more persons besides

the petitioner. All those sixteen employees of respondent No. 2 have

admittedly joined the place of their transfer.

12 I also do not find any force or merit in the contention of the

petitioner that all those who had been making complaints of corruption

against the functionaries of respondent no.2 have been targeted vide

impugned transfer order. Mr. Aneja, learned counsel appearing on

behalf of petitioner has taken me through a complaint lodged by five

persons, namely, Mr. Rajesh Mittal, Mr. S.N. Maurya, Mr. Parveen Misra,

Mr. Manjeet Nayak & Mr. Ajay P.Srivastava aginast Director General of

respondent no.2 institute. This complaint is at page 467-472 of the

paper book and the same is undated. The impugned transfer order is at

page 134 of the paper book. On a perusal of the impugned transfer

order, it may be seen that out of the five persons, who have made

complaints only three of them are there in the transfer list and they all

three have joined the place of their transfer without any protest or

murmur. The petitioner has not given any reason much less a cogent

reason as to why the thirteen persons who did not make any complaint

have been transfered vide the impugned transfer order.

13 Over and above to what has been mentioned above, this Court

also cannot ignore the concealment of material facts by the petitioner in

procuring ex parte stay order against his impugned transfer on

11.4.2008. The petitioner had expressed his willingness to join at the

place of his transfer vide letter dated 4.4.2008, which is at page 136 of

the paper book. Not only that he has also handed over the charge at

Noida on 9.4.2008 and this all happened before he succeeded in

obtaining ex parte stay order against his impugned transfer on

11.4.2008. The petitioner is, therefore, otherwise not entitled to any

discretionary relief in exercise of writ jurisdiction of this Court under

Article 226 of the Constitution on account of concealment of material

facts with regard to his handing over of charge on 09.04.2008 pursuant

to the impugned transfer order dated 31.03.2008. Reliance is placed

upon a judgment of the Supreme Court in Raj Kumar Soni and Anr.

vs. State of U.P and Anr. (2007) 10 SCC 635.

14 This Court is of the opinion that the transfer is made by the

employer in exigencies of service in exercise of administrative

discretion vested with it. The Court should not interfere in the matter of

transfer unless the transfer is found to be motivated with mala fides. I

do not find any mala fide in the present case in transferring the

petitioner vide impugned transfer order. The challenge of the petitioner

to the impugned transfer is, therefore, found to be devoid of any merit.

15 As far as the prayer made by the petitioner regarding his

promotion, it may be noted that the petitioner has already been

considered for his promotion by the duly constituted DPC in 2006 but he

was not found fit for promotion. The recommendations of the DPC held

in 2006 are annexure R-9 at page 343 of the paper book. Hence no

mandamus can be issued by this Court directing the respondents to

grant him promotion and that too from March, 2002. At this stage, it

may be noted that the petitioner had joined the service with respondent

No.2 on 7.3.2001. He claims promotion w.e.f. March, 2002 i.e. just

after about one year of his service. The appointment of the petitioner

with respondent No.2 in 2001 was a contractual appointment for three

years. A contractual appointee, in the opinion of this Court, is not

entitled to any promotion till the time he is regularised in the service

either before or after completion of his contractual tenure. Under the

circumstances, the prayer of the petitioner for directing the respondents

to grant him two promotions to which he was eligible w.e.f March, 2002

is found to be devoid of any merit and is, therefore, rejected. However,

the respondent No.2 may consider the petitioner for his promotion as

and when he is found due for such promotion in terms of its promotion

policy.

16 With regard to the prayer made by the petitioner for directions to

the respondents to release his salary w.e.f. 1.3.2007 onwards, it may be

noted that the respondent No.2 has tendered an amount of

Rs.3,15,741/- to the petitioner in Court on 30.5.2008 towards his salary

for the period from 29.4.2007 onwards. The salary for the period from

1.3.2007 to 29.4.2007 was not released because the petitioner was

remained unauthorisedly absent from duty during the said period. At

this stage, Mr. Aneja, learned counsel appearing on behalf of the

petitioner says that the petitioner has received two amounts (one of

Rs.3,15,741/- and the second of Rs.17,000/-) from respondent No.2

recently on 6.8.2008 without prejudice to his rights and contentions. Mr.

J.P.Sharma, learned counsel appearing on behalf of the respondent No.2

says that the salary for the period from 1.3.2007 to 29.04.2007 shall be

released to the petitioner subject to the final outcome of the inquiry

pending against him. This completely addresses the grievance of the

petitioner with regard to release of his salary mentioned in prayer (1) of

the prayer clause of the petition.

17 In view of the above and having regard to the facts and

circumstances of the case, this writ petition is found to be devoid of any

merit and therefore fails and is hereby dismissed with costs quantified

at Rs.25,000/-. The stay order against the impugned transfer granted

by this Court on 11th April, 2008 is hereby vacated.

August 13, 2008                                    (S.N. AGGARWAL)
mw                                                       JUDGE