Delhi High Court
Shekhar Srivastava vs Union Of India And Anr on 9 September, 2016
$~17.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7958/2016
% Judgment dated 9th September, 2016
SHEKHAR SRIVASTAVA ..... Petitioner
Through : Mr.Malaya Kumar Chand and
Mr.Prateek Tushar Mohanty, Advs.
versus
UNION OF INDIA AND ANR ..... Respondents
Through : Mr.Jaswindder Singh and Mr.Brajesh
Kumar, Advs. for UOI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
CM.APPL 33002/2016
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 7958/2016
3. Present writ petition has been filed by the petitioner under Articles 226
and 227 of the Constitution of India against the order dated 23.8.2016
passed by the Central Administrative Tribunal (in short „the Tribunal‟)
by which OA No.2850/2016 filed by the petitioner seeking to challenge
his transfer order dated 5.8.2016 whereby he was transferred from
Delhi to Surendernagar, Gujarat, was dismissed by the Tribunal in
liminie.
4. As per the petition, the petitioner was initially appointed as a Direct
Recruit Statistical Assistant, Group C, on being selected by the Staff
Selection Commission in the year. Thereafter the petitioner was
promoted from time to time and lastly was promoted as Senior
Statistical Officer. The petitioner is at present working as a Senior
Statistical Officer in the Office of Directorate General of Supplies and
Disposal, Ministry of Commerce and Industry, New Delhi. The
grievance of the petitioner is that vide office order dated 5.8.2016 he
has been transferred from Delhi to Surendernagar, Gujarat citing as
„Administrative Grounds‟. The petitioner challenged the transfer order
dated 5.8.2016 before the Tribunal alleging mala fides on the part of
the respondents, however, the Tribunal dismissed the O.A. in liminie.
5. Learned counsel for the petitioner submits that while passing the
impugned order, the Tribunal has failed to take into account the
allegations of mala fides urged by the petitioner in paragraphs 4.16 to
4.19 of the OA filed by the petitioner. Counsel further submits that
since the petitioner had unearthed a scam, this has led to the passing of
the transfer order by the respondents. It is contended that the order of
transfer contains the reason for transfer of the petitioner form Delhi to
Surendernagar, Gujarat, as „on administrative grounds‟, which is
stigmatic.
6. Mr.Jaswinder Singh, learned counsel for the respondent/UOI, enters
appearance on an advance copy and submits that the transfer order
dated 5.8.2016 pertains to the transfer of 42 officers. Counsel further
submits that the officers mentioned at Serial Nos.1 to 4 in the said
transfer order have been transferred on administrative grounds while
the other officers have been transferred at their request. Counsel
further submits that the order of transfer is neither stigmatic nor on
account of mala fide reasons. It is further contended that the petitioner
has remained in Delhi continuously for 35 years and there is no ground
for the petitioner to complain.
7. Mr.Singh further contends that transfer is an incident of service and any
officer, who is transferred where, is a matter, which is upon the
appropriate authority to decide. In support of this contention, Mr.Singh
has relied upon Gujarat Electricity Board And Ors. v. Atmaram
Sunjomal Poshani, reported at 1989 (3) SLJ 68 (SC).
8. We have heard learned counsel for the parties and considered their rival
submissions. We may notice that while passing the impugned order,
the Tribunal has relied upon the observations made by the Supreme
Court in the case of S.C. Saxena, v. Union of India & Others, reported
at 2006 SCC (L&S) 1890, more particularly para 6, which reads 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 inference 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. Apart therefrom, if the appellant really had some
genuine difficulty in reporting for work at Tezpur, he
could have reported for duty at Amritsar where he was so
posted. We too decline to believe the story of his
remaining sick. Assuming there was some sickness, were
are not satisfied that it prevented him from joining duty
either at Tezpur or at Amritsar. The medical certificate
issued by Dr. Ram Manohar Lohia Hospital proves this
point. In the circumstances, we too are of the opinion that
the appellant was guilty of misconduct of unauthorisedly
remaining absent from duty."
9. We endorse the view taken by the Tribunal. The petitioner must join
his place of posting. Another aspect, which cannot be overlooked, is
that the petitioner has been posted in Delhi continuously for 35 years.
10. We have, at this stage, asked the counsel for the petitioner, whether the
petitioner is willing to join his place of posting, to which counsel for
the petitioner on instructions from the petitioner, who is present in
Court, submits that the petitioner will join his place of posting within
one week from today.
11. Accordingly, the matter is remanded back to the Tribunal for hearing.
The Tribunal shall examine the ground of mala fide, which has been
urged by the petitioner, if any. The parties shall appear before the
Tribunal on 17.10.2016. The respondents are directed to file counter
affidavit in response to the petition. We make it clear that we have not
expressed any opinion on the merits of the matter.
12. Accordingly, writ petition stands disposed of in view of above.
CM APPL.NOS. 33003/2016 & 33005/2016
13. Applications stand disposed of in view of the order passed in the writ
petition.
G.S.SISTANI, J
I.S. MEHTA, J
SEPTEMBER 09, 2016
msr
