Ajithkumar Komath vs Union Of India & Ors.
2015 Latest Caselaw 9024 Del

$~24 & 25

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Date of Decision: December 04, 2015
+ (i)               W.P.(C) 9887/2015 & C.M.23925/2015
         AJITHKUMAR KOMATH                             ..... Petitioner
                     Through:        Ms. Sahila Lamba, Advocate

                    versus

         UNION OF INDIA & ORS                          .....Respondents
                       Through:      Ms. Anjana Gosain and Mr. Vishu
                                     Aggarwal, Advocates for
                                     respondent No.1
                                     Mr. Digvijay Rai with Mr. Syed
                                     Hassan Bin Taher, Advocates for
                                     respondents No.2-AAI and 3 with
                                     GM (ATM) and AGM (ATM)

+ (ii)              W.P.(C) 9910/2015 & C.M.23969/2015
         TARUN CHANDER CHANDOLIA                ..... Petitioner
                     Through: Ms. Sahila Lamba, Advocate

                    versus

         UNION OF INDIA & ORS                          .....Respondents
                       Through:      Ms. Anjana Gosain and Mr. Vishu
                                     Aggarwal, Advocates for
                                     respondent No.1
                                     Mr. Digvijay Rai with Mr. Syed
                                     Hassan Bin Taher, Advocates for
                                     respondents No.2-AAI and 3 with
                                     GM (ATM) and AGM (ATM)
         CORAM:
         HON'BLE MR. JUSTICE SUNIL GAUR


W.Ps.(C) 9887 & 9910 of 2015                                   Page 1 of 9
                           JUDGMENT

% (ORAL)

In the above captioned two petitions, petitioners, who were posted at the IGI Airport, Delhi, have been transferred to Corporate Headquarters at Delhi and their request for cancellation of transfer to Corporate Headquarters at Delhi has been rejected vide respondent's Communication of 28th August, 2015, which was challenged on the ground that it was contrary to the Transfer Policy of 25th November, 1999 and was malafidely done to accommodate few chosen persons at IGI Airport. Above captioned writ petitions were dismissed by this Court vide common judgment of 29th October, 2015 while observing that the Transfer Policy of 1999 does not apply to the case of petitioners because it was a mere posting in the same station and that no mala fides has been alleged.

Petitioners had preferred Letters Patent Appeal against judgment of 29th October, 2015 and a Division Bench of this Court vide order of 16 th November, 2015 has remanded the matter back while observing that the case of petitioners is required to be considered under the Transfer Policy of the year 2010 and also because the plea of mala fides taken by petitioners has not been considered by this Court in its judgment of 29th October, 2015. While remanding the matter back to this Court, contesting respondent No.2 was permitted to file a counter and petitioners were also given the liberty to file a rejoinder thereto. Upon remand, the pleadings are complete.

The Division Bench in its order notes that reasons for cancellation of transfer of five officers i.e. Manjit Singh, Vipin Kumar, Pramod

Kumar Sharma, Santosh Kumar Maurya and Anup Kumar have not been spelt out. It was found that the counter filed by respondent No.2 was silent on this aspect.

To examine the allegations of mala fides, respondent No.2 was directed to file a supplementary counter indicating the reasons for cancellation of transfer of the afore-noted five employees because there was allegation against respondents No.2 to 7 of accommodating these five employees and of malafidely transferring petitioners. In pursuance to the directions issued vide last order, second respondent has placed on record supplementary affidavit disclosing that based on performance of last twenty five months, deployment of the Assistant General Managers/ Senior Managers was undertaken by the senior officers of the Airports Authority of India and the initial transfer of the above referred five officers was cancelled on their Representations. The reasons spelt out for cancelling the transfer of these five officers in the supplementary counter affidavit alongwith annexures are as under: -

"That Sh. Manjit Singh gave a representation dated 02.06.2015 stating therein that due to some urgent family commitments and his son's admission process for Professional Graduation Course, he is not in a position to move out of the station at this juncture and requested to exempt him from transfer this year and gave an undertaking that he may be considered for transfer/posting in the next year.

That Sh. Vipin Kumar gave a representation dated 30.06.2015 stating therein that his family comprises of old parents of which he is the only son, wife who is in job and her office is at Noida and has two children and that his elder daughter is in Class XI and is preparing for Engineering for which she is also taking coaching classes at Noida and in this

scenario requested that he be retained at the IGI Airport for the next two years.

That Sh. Pramod Kumar Sharma gave a representation dated 27.06.2015 stating therein that his wife is suffering from chronic lumbar spondylitis for the last one year and has been under treatment at Delhi and was also admitted in the hospital in the first week of November, 2014. She has also taken second opinion from AIIMS and Rockland Hospitals and that the patient needs complete bed rest and further that such medical facility could not be available at Guwahati and his wife is not able to sit straight and need an attendant to carry out the daily activities and there is nobody to take care of her. He also annexed a medical certificate from the Hospital.

That Sh.Santosh Kumar Maurya gave a representation dated 29.06.2015 stating therein that his wife is suffering from severe ache in her spinal cord and a treatment for the same is going on and Doctor has recommended for continues treatment and complete bed rest.

That Sh.Anup Kumar gave a representation dated 03/07.07.2015 stating therein that his wife is suffering from Arthritis and has suffered several miscarriages which has resulted in her poor physical and emotionally disturbed mental conditions and has to take care of his family. Moreover, his parents who are above 75 years of age have undergone various surgeries several times and are undergoing treatment from Kailash Hospital and that his wife's parents are also dependent on him as their son is suffering from Schizophrenia."

It is disclosed in the supplementary counter affidavit that petitioners in their Representations have given no personal reasons why they wanted to stay at IGI Airport, Delhi. In the supplementary counter affidavit, it is disclosed by respondent No.2 that petitioner-Tarun

Chander Chandolia has been now promoted to the rank of Deputy General Manager and so, there is no question of any mala fides being their against petitioners.

Learned counsel for petitioners submits that the mala fides are regarding Manjit Singh making a Representation on 2nd June, 2015 whereas his transfer order is of 23rd June, 2015. On this aspect, the response of learned counsel for respondents No.2 is that the seniority list was made public in December, 2014 and since the said Manjit Singh was quite senior and therefore, he had foreseen his transfer and therefore, he had made a Representation in anticipation of transfer with a prayer that he may not be transferred this year and may be transferred or posted in the next year.

To highlight the administrative exigencies, learned counsel for respondents No.2 draws the attention to an extract of paragraphs No.16 of counter filed, which is as under:-

"It is submitted that the Directorate of ATM at the CHQ overseas and controls the operational and administrative aspects of the entire Indian Air Traffic Services Operations and hence Officers with varied backgrounds having required skills and experience are essentially required at the CHQ to provide subject specialization and operational knowledge and support to the ATM Management for Policies and Decisions. For example many ATC Officers in other Sections like Flight Procedure Design (FPD), Air Traffic Services (ATS), Human Resource Development (HRD), Aeronautical Information Services (AIS), Aviation Safety

Department etc. are both from Delhi as well as from other stations throughout the Country and many of them are Radar Rates Officers. At present, about 88 Officers of the ATM Directorate are posted at CHQ."

Learned counsel for respondents No.2 submits that the afore-said five officers have been retained on compassionate grounds for one year only and thereafter, they are liable to be transferred.

Now, the case of petitioners is required to be considered under the Transfer Policy of the year 2010 (Annexure R-2/1) which clearly spells out that shifting of an employee from one place to another at the same station would not amount to transfer. Clause 12.2.1 of the transfer policy defines the "same station" as the area within the same Municipality or Corporation. Pertinently, Annexure-1 to the transfer policy clearly shows that Delhi is one station. In the earlier transfer policy, IGI Airport and CHQ were shown as two different stations in Delhi while it is not so in the new transfer policy. In the face of new transfer policy (Annexure R- 2/1), this Court has no hesitation to conclude that shifting of petitioners from IGI Airport, Delhi to Corporate Headquarters at Delhi would not be a transfer from one place to another. Rather, it is shifting from one place to another at the same station. Therefore, any reference to transfer from IGI Airport to Corporate Headquarters at Delhi or vice versa would not be considered to be a typical transfer, which can be subject matter of length of stay at one station. So, any infraction of Transfer Policy of the year 2010 cannot be made a ground to get the posting of petitioners to Corporate Headquarters at Delhi cancelled.

Acceptance of the Representations of the so-called favoured five employees cannot be faulted with because their transfers outside Delhi have been put on hold only for a period of one year and that too on account of hardships faced by them, as noticed above. The amendment of 27th February, 2014 to the transfer policy permits cancellation of transfers of employees facing hardships. The pertinent extracts of the amended transfer policy reads as under:-

"In order to mitigate the hardship faced by employees in attending to their sick children, the scope of exemption from transfer on medical grounds is extended to cover dependent children also. However, exemption from medical grounds will be applicable only if the employee/spouse/dependent children is/are suffering from cancer (until cured)/have undergone open heart surgery (exemption for two years after surgery) and any terminal illness; and"

So far as petitioners are concerned, they have been sent to Corporate Headquarters in Delhi itself with no mala fide intent but to provide specialization and operational knowledge of Air Traffic Management Policies and decisions. It is a matter of record that 88 such officers are working in Directorate of Corporate Headquarters at Delhi and so, it cannot be said that petitioners have been sidelined by being sent to Corporate Headquarters at Delhi. Merely because petitioners suffer from some financial loss would not be a justification for cancelling the posting of petitioners from IGI Airport to Corporate Headquarters at

Delhi. This court is of the considered view that transfer of petitioners from IGI Airport to Corporate Headquarters at Delhi cannot be said to be motivated. A Division Bench of this Court in Udai Vir Singh Rathi (ACP) v. Union of India & Ors. 2011 SCC OnLine Del 2601 has reiterated that if courts continue to interfere with the day-to-day orders passed by the government and its subordinate authorities, then there will be complete chaos in the administration, which will not be conducive to public interest and that even if the transfer order is passed in violation of executive instructions or orders, the courts should not ordinarily interfere with the transfer order.

Although the Management Cadre i.e. respondents No.4 to 7 have been impleaded in these writ petitions, but they are not required to be put to notice as there are no specific mala fides alleged against them. In Airports Authority of India v. Rajeev Ratan Pandey & Ors. (2009) 8 SCC 337, Apex Court has reiterated that while dealing with the matters of transfer, allegations of mala fides must be specific and should inspire confidence of the Court and mere assertion or a bald statement of mala fides is not enough and the burden to prove mala fides is heavy one and lies on the person, who alleges it and the allegations of mala fides must be supported by requisite material. It is also reiterated by Apex Court that the scope of judicial review is limited and the court should not interfere with the order of transfer lightly.

Apex Court in Registrar General, High Court of Judicature of Madras v. R.Perachi & Ors. (2011) 12 SCC 137 has again reiterated that several imponderables requiring formation of a subjective opinion in the sphere of transfers may be involved, at times. The only realistic approach

is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left in public interest to the departmental heads subject to a very limited judicial scrutiny.

In the light of the afore-referred legal position, I have examined the allegations of mala fides and I find them to be wholly insufficient as in the supplementary counter affidavit, respondents have provided a plausible explanation for cancelling the transfer of the five officers and so the cancellation of their transfer does not suffer from any extraneous reasons.

This Court is of the considered view that the impugned posting of petitioners from IGI Airport, Delhi to Corporate Headquarters at Delhi does not suffer from any palpable error, nor is vitiated by any mala fide. Thus, finding no substance in the petitions and the applications, they are dismissed while leaving the parties to bear their own costs.

(SUNIL GAUR) JUDGE DECEMBER 04, 2015 s/vn