Delhi High Court
Sunita Malik vs Union Of India & Ors. on 9 December, 2015
Author: Sunil Gaur
$~8 & 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: December 09, 2015
+ (i) W.P.(C) 10155/2015 & CM APPLN.25024/2015
MEENU GUPTA ..... Petitioner
Through: Mr. V.K. Garg, Senior Advocate,
with Mr. Saqib and Ms. Noopur
Dubey, Advocates
versus
UNION OF INDIA & ORS .....Respondents
Through: Mr. Arun Bhardwaj, CGSC, with
Mr. Shekhar Kumar, Advocate for
respondents No.1 and 2
Mr. Sudhir Nandrajog, Senior
Advocate with Mr. Pankaj Seth,
Mr. Shoumik Mazumdar and Mr.
S.C. Das, Chief Manager, National
Insurance for respondents No.3 to
5
+ (ii) W.P.(C) 10410/2015
SUNITA MALIK ..... Petitioner
Through: Mr. V.K. Garg, Senior Advocate,
with Mr. Saqib and Ms. Noopur
Dubey, Advocates
versus
UNION OF INDIA & ORS .....Respondents
Through: Mr. Arun Bhardwaj, CGSC, with
Mr. Shekhar Kumar, Advocate for
respondents No.1 and 2
Mr. Sudhir Nandrajog, Senior
Advocate, with Mr. Pankaj Seth,
W.Ps.(C) 10155 & 10410 of 2015 Page 1 of 7
Mr. Shoumik Mazumdar and Mr.
S.C. Das, Chief Manager, National
Insurance for respondents No.3 to
6
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In the above captioned two petitions, the challenge is to the
impugned transfer orders of 5th October, 2015 and 1st October, 2015
respectively whereby petitioners have been transferred from Delhi to
Chandigarh by respondent No.3-Company. Petitioner-Meenu Gupta upon
being promoted to the post of Deputy Manager (Scale-III) has been
transferred to Chandigarh whereas the transfer of petitioner-Sunita Malik,
Assistant Manager (Scale-II), is a general one. These transfers have been
made under the Transfer and Mobility Policy (TMP) for Class-I Officers
of respondent-Company.
With the consent of learned counsel for the parties, both these
petitions were heard together as the challenge to the impugned transfers is
on identical grounds and so, by this common judgment, these petitions
are being disposed of together.
To assail the impugned transfers, learned senior counsel for
petitioners had drawn the attention of this Court to the Office
Memorandum of 30th September, 2009 (Annexure P-3) dealing with the
posting of husband and wife at the same station and also relied upon
directions issued by first respondent vide Communication of 23rd
September, 2014 (Annexure P-4) on the subject of transfer/posting of
female employees in Public Sector Insurance Companies. Pertinently,
respondent-Company is a Public Sector Insurance Company.
At the hearing, it was pointed out by learned senior counsel for
petitioners that husband of petitioner-Meenu Gupta is posted as
Administrative Officer (Judicial) in this Court whereas the husband of
petitioner-Sunita Malik is posted as Personal Assistant in Delhi
University and so, it was submitted that the impugned transfers are in
utter violation of afore-referred Office Memorandum (Annexure P-3) and
Government's Circular (Annexure P-4). Attention of this Court was
drawn to paragraph No.5 of the Office Memorandum (Annexure P-3)
which provides that specific reasons are required to be given if the
posting of husband and wife at the same station is not made and no such
reasons are coming forth by the counter-affidavit by respondent-
Company.
During the course of hearing, attention of this Court was drawn by
learned senior counsel for petitioners to the Representation (Annexure P-
13) made by petitioner-Meenu Gupta to the respondent-Company on 10th
October, 2015 wherein it was highlighted that two small children and an
old mother-in-law aged more than 75 years, who is having serious
neurological and other ailments requires petitioner's attention and so,
prayer was made for retaining her in Delhi or in the alternative, to post
her in Ghaziabad or at Rohtak, Haryana. It was pointed out that similar
Representation (Annexure P-10) was made by petitioner-Sunita Malik on
2nd November, 2015 in the above-captioned second writ petition
highlighting that her husband has undergone cataract operation of both
the eyes and so, it will not be possible for her to join the new place of
posting and a request was made, while highlighting that her husband is
suffering from diabetes and hyper-tension, and so she be retained in
Delhi.
Reliance was placed upon an extract of vacancy position in the
cadre of Deputy Managers/Scale-II Officers in Delhi to show that there
are 29 vacancies available in Delhi and so, petitioners can be
accommodated in Delhi and in view of Office Memorandum (Annexure
P-3) and Government's Circular (Annexure P-4), the impugned transfers
ought to be set aside. Reliance was also placed upon Apex Court's
decision in State of Karnataka and Another v. R. Vivekananda Swamy
(2008) 5 SCC 328 and it was submitted that to refute the allegations of
arbitrariness, respondent-Company should demonstrate that petitioners
have been treated fairly in the light of the Office Memorandum
(Annexure P-3) and Government's Circular (Annexure P-4).
To refute the stand taken on behalf of petitioners, learned senior
counsel for respondent-Company had drawn attention to the first
preliminary objection taken in the counter to submit that All India Large
Scale Transfer of Officers undertaken by respondent-Company was
closely monitored by the Central Vigilance Commission, and so, after
scrutinizing each and every case, special care was taken that in view of
their safety, genuine hardships, security concerns, and in view of the
Government's Circular (Annexure P-4) of 23rd September, 2014
(Annexure P-4), the lady officers are accommodated in the State Capitals
or in the major cities.
It was pointed out that since large number of lady officers were
being transferred/posted on all India basis, therefore, it was not possible
to accommodate all of them. It was also submitted by learned senior
counsel for respondent No.3 that an endeavour was made to find out if
petitioners can be accommodated in the vicinity of Delhi, but seeing the
manpower situation, it was found that it is not possible to do so and the
vacancy position, as highlighted by petitioner, does not present a
complete picture and since petitioners have been transferred to a State
Capital, therefore, no case for quashing the impugned transfers is made
out. Reliance was placed upon Apex Court's decision in Union of India
and Others v S.L. Abbas (1993) 4 SCC 357 to submit that the Office
Memorandums or the Government's Circulars do not confer any legally
enforceable right on an employee as these are only the guidelines issued
by the Government, which have been followed in these cases and so,
impugned orders cannot be termed to be arbitrary.
Upon hearing both the sides and on perusal of the material on
record and the decisions cited, I find that the Office Memorandum
(Annexure P-3) heavily relied upon by petitioners has no application to
the case of petitioners. Rather, Government's Circular of 23rd September,
2014 (Annexure P-4) applies to the case of petitioners and as per the
above-referred Government Circular, transfer/posting of female
employees in Public Sector Insurance Companies has to be done to
accommodate married female employee at the place where her husband is
stationed or near to that place, as far as possible.
In view of the counter-affidavit filed by respondent-Company, I
find that substantial adherence has been made by respondent-Company to
the Government Circular (Annexure P-4) and the plea of arbitrariness
does not stand to reason because manpower situation at each station has
to be considered by respondent-Company and so, vacancy position in
Delhi by itself would be of no avail. Since there is no basis for petitioners
to allege that respondent-Company had acted arbitrarily, therefore,
reliance placed upon Apex Court's decision in R. Vivekananda Swamy
(supra) is of no avail. In matters of transfer, the pertinent observations of
a Division Bench of this Court in Udai Vir Singh Rathi (ACP) v. Union of
India & Ors. 2011 SCC OnLine Del 2601 have to be kept in mind.
In the afore-referred decision, the Division Bench 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.
Apex Court in Registrar General, High Court of Judicature of
Madras v. R.Perachi & Ors. (2011) 12 SCC 137 has 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.
Applying the afore-noted dictum of Apex Court to the facts of the
instant case, I find no palpable error in the impugned transfer orders.
Hence, both these petitions and the application are dismissed while
leaving the parties to bear their own costs.
(SUNIL GAUR)
JUDGE
DECEMBER 09, 2015
s
