Sh. S.K. Tandon vs Export Inspection Council Of ...
2011 Latest Caselaw 6204 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment reserved on: 12.7.2011
                          Judgment delivered on: 19.12.2011

+                    WP(C) No. 1986/2010


Sh. S.K. Tandon                                  ......Petitioner

             Through: Petitioner in person.


                          Vs.

Export Inspection Council of India and Anr.     ......Respondents

                  Through: Mr. L.R. Khatana, Advocate for R-1.
                          Mr. Michael Dias with Mr. Siddharth
                          Dias, Advocates for R-2.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR


KAILASH GAMBHIR, J.

1. By this petition filed under Articles 226 and 227 of the

Constitution of India, the petitioner seeks quashing of the

order dated 26.02.2010 to the extent of his place of posting

at Kochi Head Office (Kerala). The petitioner further seeks

directions to direct respondents to post him at Delhi in

terms of the Govt. of India instructions notified through OM

No. 14017/41/90-Estt.(RR) dated 15.02.1991.

2. Brief facts of the case relevant for deciding the

present petition are that the petitioner joined the

respondent organization in 1976 as Junior Scientific

Assistant and the petitioner was promoted to the post of

Technical Officer in 1979 and thereafter posted at various

places. In the year 2010 the respondents initiated the

process for a promotion of a Deputy Director and the

petitioner having come to know the same, submitted a

representation on 23.2.2010 expressing his personal

difficulty that he has a mentally challenged daughter and

should not be put to any hardship at the place of posting.

The respondent thereafter posted the petitioner at Kochi as

Deputy Director vide impugned order dated 26.2.2010 and

feeling aggrieved with the same, the petitioner has

preferred the present petition.

3. In support of his case, the petitioner argued himself

and the main plank of the argument of the petitioner was

that the respondent has ignored the Govt. of India

instructions notified through OM No. 14017/41/90-Estt.(RR)

dated 15.02.1991, making special provision for employed

parents of a mentally retarded child to be given posting at a

place of his/her choice. The contention raised by the

petitioner was that he has a daughter aged about 24 years

suffering from Down's syndrome; a mental problem and his

posting at Kochi would deprive him to provide proper

medical treatment to his daughter and also proper

education. The petitioner submitted that neither proper

medical facilities are available at Kochi nor is there any

educational institution for such special children where his

daughter could continue her education. The petitioner also

submitted that there are enough vacancies for the post of

Deputy Director available in Delhi Office, but yet his

representation to post him at Delhi was not considered by

the respondent. The petitioner also submitted that already a

person of the rank of Deputy Director (Technical) has been

handling the Certificate of Origin Activity at Kochi for the

last one year, and therefore, there is absolutely no reason

for the respondents to have posted the petitioner for

handling the said Certificate of Origin Activity at Kochi

Office. The petitioner further submitted that the

respondents have acted in a most malafide manner and in

utter violation of Articles 14 and 16 of the Constitution of

India by adopting a different approach towards the

petitioner amongst similarly placed officers. The petitioner

further submitted that if his technical expertise can be

utilized by taking his services at Delhi Office, then he should

not be deprived to take care of his mentally challenged child

who is being given proper education and medical help in

Delhi which may not be available at the place of his posting

at Kochi.

4. Opposing the present petition, Mr. L.R. Khatana,

counsel for respondent No.1 strongly contended that the

present petition is grossly misconceived as the posting of

the petitioner to Kochi was on his promotion to the post of

Deputy Director and the said posting is in view of the

administrative exigencies and in public interest. Counsel

also submitted that the petitioner is a specialist in the

matter of Preferential Certificate of Origin and there is no

officer who has specialization in this field at Kochi and

because of petitioner not joining his duty at Kochi, an officer

from the Food Scheme has been posted at the said place to

manage the said technical duty of Preferential Certificate

Origin for the time being. The respondent also took a stand

that the petitioner cannot attribute any malafide against the

respondent as the posting of the petitioner on promotion

has been done in public interest. Counsel further submitted

that in fact out of 28 years of service, the petitioner

remained posted at Delhi for most of his service career and

for rest he was posted in the neighbourhood of NCR of

Delhi. The respondent has further submitted that the

petitioner was given proper hearing and the decision not to

change his place of posting from Kochi was taken after due

consideration of his representations. Counsel also submitted

that due consideration was given by the respondent to the

OM No. 14017/41/90-Estt.(RR) dated 15.02.1991, which

official memorandum is directory in nature and cannot have

a transcendental effect over the supervening administrative

exigencies and demand of public interest. In support of his

arguments, learned counsel for the respondent placed

reliance on the following judgments:

1. Md. Masood Ahmad -vs- State of U.P. & Ors., (2007) 8 SCC 150

2. State of M.P. & Anr. -vs- S.S. Kourav & Ors., (1995) 3 SCC 270.

3. S.C. Saxena -vs- Union of India & Ors., (2006) 9 SCC 583.

5. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration

to the arguments advanced by them.

6. It is a well settled legal position that the transfer is not

only an incidence of service but a necessary condition and

no employee can claim to be posted at one place forever. It

is for the administration to take appropriate decision on the

transfer and postings of the staff keeping in view the

administrative exigencies and such decisions taken by the

administration shall not be interfered with by the courts

unless they are vitiated either by malafides or by some

extraneous considerations or there is some kind of

prohibition under the Service Rules for such transfer or that

the authorities who issued the orders are not competent to

pass such orders. It would be relevant here to refer to the

judgment of the Apex Court in the case of National

Hydroelectric Power Corporation Ltd. vs. Shri

Bhagwan & Ors. (2001)8SCC374 wherein it was held as

under:

"It is by now well-settled and often reiterated by this Court that no Government servant or employee of public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned."

The scope of judicial review is very limited in the matters of

transfers and the court while exercising jurisdiction under

Article 226 of the Constitution will not go into the question

as to whether the transfer was done in public interest or not

as that would require the adjudication on facts which would

not be in the ambit of writ jurisdiction. It would be relevant

here to mention that the Apex Court in the case of State of

M.P vs. S.S Kourav & Ors. (1995)3SCC270 held that the

court cannot go into the question of relative hardship and

the same will not be a ground for judicial review as it is for

the administration to consider the facts of a given case and

mitigate the real hardship in the interest of good and

efficient administration.

7. In the background of the aforesaid legal

pronouncements, and facts of the case at hand, this Court is

of the considered view that the order of transfer dated

26.02.2010 and the relieving order issued on 09.03.2010

issued by the respondent do not smack of any malafide or

bias against the petitioner and the same has been issued by

the respondent due to administrative exigencies in public

interest. It cannot be lost sight of the fact that vide office

order dated 26.02.2010, 14 officers were promoted and on

promotion they were posted to various offices under the

control of the respondent and the petitioner being one of the

officers cannot decide himself the place of his suitable

posting on the ground that his services to the respondent

can prove to be more beneficial if he is posted at Delhi. If

such a plea of any employee is accepted then it will result in

the collapse of the entire administrative set up of any Govt.

Undertaking. It cannot be the prerogative of the officers or

employees to choose their own place of postings, as it is the

function of the administration to decide the place of posting

of its employees, keeping in view the various administrative

factors and requirements of staff at a particular place

strengthwise, nature of their duties and other technical

capabilities of such staff.

8. The petitioner has also relied upon the OM No.

14017/41/90-Estt.(RR) dated 15.02.1991, which for better

appreciation is reproduced as under:

No. AB 140174/41/90-Estt.(RR) Government of India Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training)

New Delhi, 15 February, 1991

OFFICE MEMORANDUM

Subject : Posting of Government employees who have mentally retarded children.

The undersigned is directed to say that there has been a demand that an employed parent of a mentally retarded child should be given posting at a place of his/her choice. This demand has been made on the plea that facilities of medical aid and education of such children does not require special care and patience and is expensive. Hence some concessions from the Government at least in matters of posting at a place of choice is called for.

2. The matter has been examined. Considering that the facilities for medical help and education of mentally retarded children may not be available at all stations, a choice in the place of posting is likely to be of

some help to the parent in taking care of such a child. While administratively it may not be possible in all cases to ensure posting of such an employee at a place of his/her choice, Ministries/Departments are requested to take a sympathetic view on the merits of each case and accommodate such requests for posting to the extent possible.

(M.V. Kesavan) DIRECTOR

The petitioner also cannot take shelter under the said office

memorandum as the said office memorandum is advisory in

nature and not binding upon the administration and only

calls for taking a sympathetic view to the extent possible in

such like matters. Admittedly, as the daughter of the

petitioner is about 24 years of age and the petitioner has not

placed on record anything to satisfy this Court or the

respondent explaining as to what kind of education she is

receiving which cannot be imparted at Kochi. The petitioner

has further not placed on record any material to persuade

this Court that she would be deprived of any particular

medical help which she is getting in Delhi. It is a matter of

fact that Kochi is also one of the advanced cities where all

medical and educational facilities are available and it is not

a kind of any remote area where the petitioner can claim

that he would not be able to provide proper medical help

and educational facilities to his daughter.

9. Before parting it would be also pertinent to refer to the

judgment of the Apex Court in the case of S.C Saxena vs.

Union of India (2006)9SCC583 wherein it was held that it

is the duty of the government officer to comply with the

transfer order and not doing the same can result into

misconduct and the relevant para of the same is reproduced

as under:

"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed."

10. In the light of the above discussion, there is no

merit in the present petition and the same is accordingly,

dismissed.

December 19 , 2011                                  KAILASH GAMBHIR, J
'raj'