Uoi & Ors. vs Smt. Kiran Bala Sharma & Anr.
2010 Latest Caselaw 588 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No.702/2010

%                        Date of Decision: 03.02.2010

UOI & Ors.                                                  .... Petitioners
                        Through Mr.G.C.Nagar, Advocate

                                 Versus

Smt. Kiran Bala Sharma & Anr.                        .... Respondents
           Through            Mr. F.K.Jha, Advocate for respondent
                              No.1.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                  YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                     NO
3.     Whether the judgment should be reported in                 NO
       the Digest?



ANIL KUMAR, J.

*

The petitioner UOI through Secretary of Ministry of Agriculture

challenges the order dated 11th January, 2010 passed in OA No.

3473/2009 titled as Mrs. Kiran Bala Sharma Vs. UOI holding that the

transfer order dated 23rd September, 2009 and order dated 12th

November, 2009 rejecting the respondents' representation being

punitive in nature and contrary to establish principles and procedure

adopted for a transfer of employee are bad and thus quashing and

setting aside the transfer orders. The Tribunal has also allowed the

respondent to continue in the post which she was occupying prior to

23rd September, 2009.

The respondent had joined the service of the petitioner in the year

1970 and was promoted to the post of Personal Secretary (PS) in the

year 2000. She was transferred to the present post on 23rd October,

2008.

In September, 2009, the respondent was transferred vide order

dated 23rd September, 2009 to the office of the Director, National

Research Centre for Plant Bio Technology (NRCPB). The respondent

submitted a representation against her transfer and as the

representation was not decided she preferred an original application

being OA No. 2789/2009 which was disposed of at the admission stage

directing the petitioners to consider the representation and to pass a

speaking and reasoned order before transferring the respondent.

The representation of the respondent was rejected by the

petitioners by order dated 12th November, 2009 which was challenged

by her in the OA No. 3473/2009 titled as Mrs. Kiran Bala Vs. UOI &

Ors. which was allowed against which another original application was

filed before the Tribunal, Principal Bench.

The respondent had challenged her transfer on the ground that it

was not on account of administrative exigencies and was punitive and

also on the ground that since her transfer is on account of transfer of

post from one office to another, in the first instance, the option is to be

called from the officials who are agreeable to the transfer and thereafter

junior most officials were to be transferred first. The respondent

contended that being a Senior Private Secretary, she should not have

been transferred and she relied on (1989) Supp (1) SCC 679, Jawaharlal

Nehru University Vs. Dr. K.S. Jawatkar and Ors. The respondent also

contended that she has been suffering from Osteoporosis and

Hyperthyriodism and it was difficult for her to climb the stairs of the

office of NRCPB as it was located at 2nd floor.

The original application of the respondent was contested by the

petitioners contending, inter-alia, that the respondent had not been

working properly and had been suffering from the punctuality problem

for which she had been surrendered by various divisions of the Indian

Agricultural Research Institute (AIRI). The petitioners rather produced

many letters and communications between different authorities to drive

the point that the respondent had been violating the working norms

and was not acceptable to various departments because of which she

was sent to various divisions. Regarding her personal disability, it was

contended that the office of NRCPB has the lift facilities and therefore

transfer would not affect her physical ailment and her mobility in the

building.

After considering the rival contentions, the Tribunal held that the

respondent is a Senior Private Secretary in Indian Agricultural Research

Institute being 11th out of 18 Personal Secretary and there are vacant

posts of Personal Secretaries in the said organization which could have

been transferred to NRCPB and no option was called from the

respondent for her transfer. Considering the letters and

communications produced by the petitioner, the Tribunal has held that

the transfer of the petitioner is not on administrative ground but it is

punitive in nature. Even the order passed by the petitioners pursuant to

directions given by the Tribunal in OA No. 2789/2009, the petitioners

in their order dated 12th November, 2009 highlighted that the

respondent had to be transferred to different division since concerned

authorities were not satisfied with her working and non-punctuality and

disciplinary actions were also initiated against her twice and penalty of

censure was imposed on her and on account of this she was transferred

to NRCPB.

The Tribunal in the circumstances, accepted the contention of the

respondent that her order for transfer was not on account of

administrative exigencies and it was rather punitive in nature and

despite the respondent being one of the senior most Personal

Secretaries, she has been transferred without obtaining her consent

and in the circumstances it cannot be called not a punitive transfer.

Such a transfer which is not for administrative exigencies cannot be

permitted in the facts and circumstances.

The Tribunal has relied on Jawaharlal Nehru University Vs. Dr.

K.S. Jawatkar and Others, AIR 1989 SC 1577, Masood Ahmad Vs. State

of UP, 2007 STPL(LE) 39042 SC & Somesh Tiwari Vs. Union of India,

AIR 2009 SC 1399 holding that there cannot be any doubt whatsoever

that the transfer is ordinarily an incident of service and transfer for

administrative exigencies is not to be interfered with except in cases

where malafide on the part of the authorities is proved. It was held that

malafides are of two kinds:- one malice in fact and the second malice in

law. It was further held that if an order of transfer is based on any

factor which are not germane for passing an order of transfer and is

based on some other irrelevant grounds or is punitive in nature then it

cannot be said to be an order for administrative exigencies and in that

case, the order of transfer is by way of order in lieu of punishment and

such an order is liable to be set aside.

The learned counsel for the petitioner has not been able to deny

that there are categorical and specific allegations against the

respondent that she had not been working properly and had been

suffering from punctuality problem in the office because of which she

was transferred from various divisions. That has also not been disputed

that the disciplinary proceedings were taken against her however, they

resulted only in the censure and no other punishment could be

imposed on the respondent and consequently she has been transferred.

Such an order cannot be sustained on any of the grounds raised by the

petitioners.

This also has not been disputed that there are posts in Indian

Agricultural Research Institute and the petitioner being a Senior

Personal Secretary, the option for transfer ought to have been obtained

from her. The learned counsel for the petitioner is also unable to say

whether the junior Personal Secretaries were willing to go for transfer to

NRCPB or not. Taking it from any point of view, the inevitable

interference is that the transfer of the respondent is not for

administrative exigencies but on account of being punitive and cannot

be sustained on any of the grounds raised by the petitioners.

In the circumstances, the order of the Tribunal setting aside the

order of transfer dated 23rd September, 2009 and order dated 12th

November, 2009 rejecting the representation of the respondent cannot

be faulted on any of the grounds raised by the petitioners. Thus there is

no illegality or irregularity in the order of the Tribunal dated 11th

January, 2010, which would require any interference by this Court.

Therefore, the writ petition is without any merit and is therefore

dismissed.

ANIL KUMAR, J.

FEBRUARY 03, 2010                                MOOL CHAND GARG, J.
'rs'