Manoj Kumar Gupta vs Union Of India And Ors
2013 Latest Caselaw 403 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 518/2013

%                                                          JANUARY 29, 2013

MANOJ KUMAR GUPTA                                     ..... Petitioner
                Through:                 In person with Mr. Jetendra Singh,
                                         Advocate.
                            versus


UNION OF INDIA AND ORS                              ..... Respondents

                  Through:               Mr.Ravinder Aggarwal, Adv./CGSC.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This is a very hard case, but, hard cases can lay down wrong law. Sometimes

even courts are powerless to do anything, because although, in equity it may want

to grant relief, however, where declaration of law is categorical, courts cannot

breach the law to grant relief which is prayed merely on the grounds of sympathy

and equity.

2. In the present case, the petitioner challenges his transfer order passed

sometime back on 14.05.2012. Pursuant to the transfer order a relieving order was

issued on the same date, so that the petitioner may join his place of posting at EIA

Kochi, HO. The petitioner instead of joining at Kochi has been moving repeated

representations, but all of which have been effectively rejected inasmuch as the

employer has replied that the transfer is based on public interest and acute shortage

of manpower at the place where the petitioner has been transferred. The ground

made out by the petitioner for seeking to cancel the subject transfer was on account

of the petitioner's daughter suffering from Cerebral Palsy, however, the only

ground which is urged in support of this aspect as to whether the particular

treatment which the daughter of the petitioner is undergoing cannot be available at

Kochi is stated in Ground Z of the petition, but the same does not help the

petitioner. This would be dealt with by me subsequently, in the present judgment.

3. Before coming to the facts of the present case, it is necessary for me to refer

to a judgment very similar and nearly identical to the facts of this case, being

judgment of a learned Single Judge of this Court in case of S.K. Tandon Vs.

Export Inspection Council of India in W.P. (C) No.1986/2010 decided on

19.12.2011. The respondent/employer in the said case is the same as the

respondent/employer in the present case. The facts of the said case are also nearly

identical to the facts of the present case in that even in the case of S.K. Tandon

(Supra), the petitioner had sought cancellation of the transfer order on the ground

that he had a daughter aged about 24 years suffering from Down's syndrome (a

mental problem) and that the posting of the said petitioner to Kochi would deprive

the petitioner's daughter of medical treatment. Paras 3, 4, 6, 7, 8, 9 and 10 of the

said judgment are relevant and the same read as under:-

"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 strength wise, 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."

4. In the present case, the transfer order dated 14.05.2012 states that the

transfer of the petitioner to Kochi was required in public interest. Thereafter, the

respondent vide its letter dated 27.07.2012 reiterated this transfer order by rejecting

the request for retention of the petitioner in Delhi sought on the basis of the

medical ground of his daughter stating that the request of the petitioner to retain

him at Delhi is not possible because of acute shortage of manpower. The petitioner

thereafter continued to make various representations, but the respondent/employer

has not acceded to his request of retaining the petitioner at Delhi. I may note that

the respondent/employer has already written letters to the petitioner dated

31.10.2012, 09.11.2012 and 03.12.2012 informing the petitioner that the petitioner

ought to join duty at Kochi, and his failure to join duty would amount to

misconduct under the Rules. Petitioner, however, has steadfastly refused to join the

place of posting at Kochi in spite of aforesaid notices. I may note that the petitioner

had also applied for half pay leave which was first rejected because the letter was

addressed at Delhi whereas service records of the petitioner was sent to Kochi, and

secondly when the petitioner sought for grant of half pay leave from the Kochi

office, he was informed that issue of leave can only be considered after the

petitioner joins his duties at Kochi.

5. Counsel for the petitioner has argued that India is signatory to International

Convention on Human Rights as also the convention with respect to persons with

mental retardation etc and for which the Act of 1999, called National Trust for the

Welfare of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple

Disabilities Act, 1999 was passed and therefore petitioner should not be transferred

to Kochi. It is also argued that treatment which the daughter of the petitioner is

undergoing at Delhi would not be available at Kochi and in this regard, the ground

Z is urged which reads as under:-

"That the petitioner's daughter Meghna Gupta is registered with AADI (Action for ability development and inclusion-an organisation working in the field of disability aiming at empowering persons with disability and their families to lead a barrier free life) for improvement of her general health condition and quality of life with proper habilitation and habilitation services. AADI vide their letter dated 27.07.2012 stated her mental condition and is of the view that it is extremely difficult for the family in the interest of the child to relocate in a new city where language, medical health facility, rehabilitation and other support services would be difficult to arrange. Also, leaving petitioner's family at Delhi is also not possible as his wife alone cannot look after two small children and avail medical and rehabilitation services for the disabled daughter simultaneously. The petitioner and his wife used to carry Meghna on their hands and now she is weighing around 25 kgs as she is not able to balance her body on the wheel chair. AADI is working on the design of wheel chair for her. A true copy of the letter dated 27.07.2012 is enclosed herewith and marked as Annexure P/26".

6. In view of the ratio of the judgment in S.K. Tandon's case, I am unable to

agree with the argument as urged on behalf of the petitioner, including the

argument that the judgment in S.K. Tandon (Supra), will not apply to the petitioner

because the transfer to Kochi of the petitioner in the said case was pursuant to the

promotion granted to the said petitioner. In my opinion, this argument is of no

avail to the petitioner because though the petitioner in S.K. Tandon's case (Supra)

was given promotion and thereafter given transfer, however, that does not mean

that unless a person is promoted at the time of transfer, there cannot be a transfer

order. In S.K. Tandon's case the transfer, as in this case, was on account of

administrative exigencies. Transfer is incidental to service and there are judgments

of Supreme Court as also this Court that transfer order passed in accordance with

the exigencies of services cannot be interfered with and the employee must join at

his place of posting. Court cannot stop transfer orders because otherwise,

organizations will not be able to function.

7. The reliance upon by the petitioner on the order of Government of India

Office Memorandum dated 15.02.1991 is also placed when inasmuch as this very

office memorandum has been dealt with by the Single Judge in the case of S.K.

Tandon (Supra), wherein it is held that this office memorandum is only directory

and the same will not bring to complete halt transfer of persons if required by the

employer-organization.

8. I may note that respondent/corporation M/s. Export Inspection Corporation

of India would require a senior officer such as the petitioner, who is an Assistant

Director, at Kochi inasmuch as Kochi is a port from where exports are done. For

the purpose of exports, inspections also would have taken place and there would,

therefore, exist requirement of administrative exigencies for posting of senior

officers like the petitioner at Kochi. It is not for the petitioner to argue before this

Court that there are sufficient vacancies at Delhi and the petitioner should be

absorbed at Delhi because this court cannot run organisations and organisations

themselves are to best decide as to where and why particular employees are to be

posted. This aspect is squarely covered by para 6 of the judgment in S.K.

Tandon's case.

9. In view of the aforesaid, this court though does have sympathy, however this

Court cannot legally grant any other relief to the petitioner, much less because the

court finds that for now for over about 7 months the petitioner has obdurately not

joined his duties at Kochi. The petitioner has been asked to join duties, failing

which action will be taken against him but yet, the petitioner yet chooses to ignore

the communication which specifically refers to shortage of manpower. The

petitioner's request for changing his place of posting was also denied, and once

again in spite of the same, the petitioner has failed to join his place of posting at

Kochi. As observed in the judgment in the case of S.K. Tandon (Supra), Kochi is a

very large city and therefore, the claim of the petitioner that the daughter will not

get medical aid is not a sound argument which I can accept.

10. In view of the above, the writ petition is dismissed.

JANUARY 29, 2013                                    VALMIKI J. MEHTA, J.
neelam