Ram Kumar R. vs Union Of India & Ors.
2009 Latest Caselaw 2793 Del

*             HIGH COURT OF DELHI: NEW DELHI

+             Writ Petition (Civil) No. 10200/2009

                          Judgment reserved on: July 21, 2009
%                         Judgment delivered on: July 23, 2009

       Ram Kumar R.                               ..... Petitioner

                          Through: Mr. D.S. Chaudhary with
                                   Dr. L.S. Chaudhary, Advs.

                          Versus

       Union of India & Ors.                   ..... Respondents

                          Through: Mr. H.K. Gangwani, Adv.
       Coram:

       HON'BLE MR. JUSTICE MADAN B. LOKUR
       HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers may
          be allowed to see the judgment?                       Yes

       2. To be referred to Reporter or not?                    Yes

       3. Whether the judgment should be reported
          in the Digest?                                        Yes



A.K. PATHAK, J.

1. The Petitioner joined Central Bureau of Investigation as Sub

Inspector on 1st January, 2001 and was posted at Mumbai.

Subsequently he was transferred to Delhi in the month of

January, 2006. Vide order dated 6th July, 2007 passed by the

Respondent, he was again transferred to Agartala.

2. Aggrieved by his transfer from New Delhi to Agartala

Petitioner filed an Original Application being O.A. No. 1194/2007

before the Central Administrative Tribunal, Principal Bench, New

Delhi (for short hereinafter referred to as "the Tribunal")

challenging his transfer order on the ground that the same was

clothed with malafide intention. Petitioner alleged that in a

pending writ petition in this Court, he had written a letter to the

Judges stating therein that incorrect data had been supplied by

the CBI in the said case. He had also sought permission of the

Respondent to bring the said matter to the notice of the media.

On account of this, superior officers got antagonised against him

and consequent thereof, the impugned transfer order was passed

in order to victimise him.

3. Members of Bench of the Tribunal were divided on the

issue. Member (Administrative) held that allegations of bias and

malafide raised by the Petitioner had remained unsubstantiated.

He further held that the Petitioner was liable to be posted

anywhere in India so the transfer order was issued in public

interest and on administrative ground and could not have been

interfered with unless strong circumstance shown to indicate

that it was punitive. There was nothing to suggest that order was

punitive. Reliance was placed on a judgement of the Supreme

Court in the case of Union of India versus S.L. Abbas reported

in 1993 (2) SLR 585 (SC). Member (Judicial) took a divergent

view. According to him transfer order was not passed in the

exigency of service. Petitioner was a whistle blower as he had

sought permission from the Director of CBI to contact media to

highlight the misleading facts and datas forwarded to the High

Court by the CBI in a case of kidnapping of females. As per

Member (Judicial) transfer was punitive in nature and O.A. was

liable to be allowed.

4. In view of the divergent views taken by both the Members of

the Bench, the matter was referred to Vice Chairman (Judicial).

Vide order dated 2nd June, 2009 Vice Chairman (Judicial)

concurred with the view of the Member (A) and held that there

was nothing to indicate a link between the officer against whom

the complaint had been filed and the authority who issued the

transfer order. In the matter of transfer and posting,

administrative authority was the best judge. There was nothing

to suggest that transfer order was punitive. Consequently O.A.

was dismissed in view of the majority decisions.

5. Petitioner not being satisfied with the order dated 2nd June,

2009 passed in O.A. No. 1194/2007 has come before this Court

by way of present writ petition praying therein that order dated

2nd June, 2009 passed by the Tribunal be set aside and the

transfer order dated 6th July, 2007 be quashed and further that

the Petitioner be treated on duty as from 31st July, 2007 till the

date of his joining duty and arrears of salary from 1st July, 2007

be ordered to be released along with interest @ 12% per annum.

He also claimed damages from the Respondent on the ground

that his fundamental right (Right to Life) was breached.

6. We have heard the learned counsel for the Petitioner and we

are not inclined to interfere with the impugned order which in

our view is not erroneous. We are of the view that Tribunal has

rightly held that the order of transfer had been passed in public

interest and in the exigency of service. Officers working in CBI

are liable to be posted in any part of the country. As per the

Petitioner, the superior officers of the CBI were annoyed with him

as he had written a letter dated 31st May, 2007 to the Judges of

High Court hearing writ petition (crl.) no. 869/1998. Order dated

25th September, 2006 passed by this Court in the said writ

petition has been annexed (at page 81) and we find that no

reference to the letter dated 31st May, 2007 has been made

therein. The order of the transfer dated 6th July, 2007 has been

passed by the Administrative Officer of the Respondent.

Admittedly no reference of Administrative Officer has been made

in the alleged letter dated 31st May, 2007. In our view Tribunal

has rightly observed that there was nothing to indicate a link

between the officer against whom the complaint had been made

and the authority who had issued the transfer order. It is well

settled that the Courts are not required to interfere with the order

of transfer in exercise of its discretionary power unless it finds

that the order was malafide or was against the service rules.

7. In Mohd. Masood Ahmad versus State of U.P. and Ors.

reported in (2007) 8 SCC 150 Hon'ble Supreme Court has held

as under :-

"The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao v . Union of India AIR 1993 SC 1236, National Hydroelectric Power

Corporation Ltd. V. Shri Bhagwan AIR 2001 SC 3309, State Bank of India v. Anjan Sanyal AIR 2001 SC 1748. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. (1997) 3 ESC 1668 :1998) All LJ 70 and Onkarnath Tiwari v. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866 : 1998 All LJ 245, has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders."

8. In the present case the Petitioner has failed to show that the

order of transfer was arbitrary or vitiated by malafide or

infraction or any professed norm or principle governing the

transfer.

9. We accordingly, do not find any merit in this writ petition.

The same is dismissed.

A.K. PATHAK, J

MADAN B. LOKUR, J

July 23, 2009 ga