P. Rajapratap vs Uoi & Ors.
2009 Latest Caselaw 4748 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision : 20th November, 2009

+                        WP(C) 9484/2009

       P. RAJAPRATAP                                  ..... Petitioner
                  Through:     Mr.N.L.Bareja, Advocate.

                    versus

       UOI & ORS.                  ..... Respondents
                    Through:   Mr.Ankur Chhibber, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

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

     2. To be referred to the Reporter or not?         No.

     3. Whether the judgment should be reported in the
        Digest?                                   No.


PRADEEP NANDRAJOG, J.

1. The petitioner has challenged a signal dated

6.4.2009 where under just within one year and two months of

petitioner being posted at the GO's Bill Section PAO, Director

General CRPF, Delhi, has been transferred to Jammu &

Kashmir. The petitioner alleges the transfer to be mala-fide on

account of his being a member of a Scheduled Caste.

Petitioner alleges that respondent No.3, Shri N.P.N.Nair being

a Brahmin and his immediate superior, has targeted him on

account of caste bias. The petitioner further alleges that as

per Standing Order No.2/2007, containing the transfer-posting

policy, it is a requirement that a person posted at a place

should not be posted out within four years. The petitioner

claims that his previous posting was at Agartala, a hard

station, for 2 years and 9 months and there was no reason to

post him to Jammu & Kashmir, another hard station. To bring

home the allegations of mala-fide the petitioner points out

that the speed with which the file was processed to issue a

transfer order to the petitioner is a self-serving evidence of the

malice. It is pointed out that the note requiring petitioner to

be transferred out was prepared by the JAD(GO) on 23.3.2009.

It was approved by the next higher officer the same day and

the very next day i.e. on 24.3.2009, the necessary approval

was granted.

2. During arguments learned counsel for the appellant

stated that although a transfer/posting of an employee is the

prerogative of the employer, but where the order is issued

mala-fide, as held in the decision reported as 2009 (1) SCC

(L&S) 411 Somesh Tiwari vs. UOI & Ors., a Court can certainly

interfere exercising power under Article 226 of the

Constitution of India.

3. As per the respondents the petitioner had always

been extended a helping hand and evidenced by the fact that

out of 22 years and 4 months service rendered by him, hard

posting was only for 2 years and 6 months and for nearly 19

years the petitioner was posted at family stations shows that

far from acting hostilely against the petitioner, he had been

treated with compassion. It is pointed out in para 2 of the

counter affidavit that on being posted in the GO's Branch

Office, it came to the notice of his superiors that there were

large scale deficiencies in the working of the petitioner.

4. The same have been penned down in para 2 of the

counter affidavit. The same are as under:- page 87-89 sub

paras (i) to (viii).

5. It is thus pleaded that the immediate superior

officer of the petitioner suggested that the petitioner be

transferred and penned the note dated 23.3.2009. The same

was approved resulting in the signal in question being issued.

6. To put it in simple words, the respondents claim

that the petitioner was posted out due to administrative

exigencies.

7. Responding to the averments in para 2 of the

counter affidavit, the petitioner has given his version with

respect to the 8 misdemeanours alleged against him in para 2

of the counter affidavit. We note that the petitioner has not

denied the deficiencies but has tried to reason by stating that

they were the result of excessive work in the office.

8. As held in the decision reported as UOI vs.

S.L.Abbas AIR 1993 SC 2444, a policy guideline regulating

transfer of employees does not create any enforceable legal

right in favour of an employee. It being settled law that

transfer and posting is an incident of service and it is up to the

employer to decide where the employee should be deputed.

Of course, as held in Somesh Tiwari's decision (supra), where

malice is proved, a Court can interdict a transfer-posting

order.

9. Thus, the petitioner cannot lay the foundation of a

legal right under the standing order 2/2007.

10. On the issue of mala-fide against respondent No.3,

the foundation laid by the petitioner in the writ petition is

caste bias.

11. Except for averring that respondent No.3 used to

utter racist remarks, no particulars of the time and the place

when offending words were used have been disclosed. If the

respondent No.3 used to do and say as alleged by the

petitioner, we would have expected at least some

representation in writing to the superior officers from the side

of the petitioner. We find none.

12. As against that, the respondents have brought out

as many as eight deficiencies noted in the working of the

petitioner requiring his posting out from the said office.

13. The respondent has given his version by

highlighting that the same were the result of excessive work in

the GO's Bill Section.

14. But, that is not the issue before us. We are not to

go into the issue whether the work which had got accumulated

was on account of the petitioner's inefficiency or due to

excessive work. The fact of the matter is that due to

excessive work which got accumulated the petitioner came

into conflict with his immediate superior officer.

15. It is good management to separate two employees

in an organization who come into conflict with each other

without apportioning blame on any, for the reason, a blame

game vitiates the atmosphere in an organization. One of the

two employees needs to be transferred out. We see no scope

for malice in said approach being adopted.

16. That apart, respondent No.3 is not the competent

officer to decide on the transfer-posting. He only initiated the

note. The decision was of the superior authorities against

whom no mala-fide has been alleged.

17. On the issue as to why was the petitioner posted to

Jammu & Kashmir we may only respond by stating that it is up

to the employer to find a suitable seat where the employee

can be assigned some work. This is the subjective satisfaction

of the employer and the Writ Court cannot delve into the issue

for it would require an analysis of all the seats in the various

offices of the respondent to be considered; each and every

incumbent on the seat would have be to scrutinized and then

a decision to be taken. Such an activity is clearly beyond the

domain of a Writ Court.

18. Before concluding we note that in the absence of

any interim order in favour of the petitioner he has already

moved to the State of Jammu & Kashmir where he is working

since May 2009.

19. We may also note that pertaining to his working at

Delhi a penalty of censure has been awarded to the petitioner.

Lest the petitioner be handicapped on the said issue on

account of the instant writ petition being dismissed, we clarify

that we have expressed no opinion on merits pertaining to the

deficiencies in the working of the petitioner as laid in para 2 of

the counter affidavit to which the petitioner has responded in

the corresponding para of the rejoinder affidavit. If the

petitioner were to question the penalty of censure which

needless to state would be on account of the said deficiencies

alleged, the issue would be decided on merits in said

proceedings.

20. The writ petition is dismissed.

21. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 20, 2009 Dharmender