Telangana High Court
Shri. S.K. Razzak vs National Highways Authority Of India on 1 October, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.23588 of 2024
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is
filed seeking the following relief:
"...to issue Writ or Direction or Order more particularly in the
nature of Writ of Mandamus setting aside the impugned order dated
20.08.2024 bearing reference no. 11021/02/2020-Admn(E-
19286)/5611 issued by Respondents being in violation of law and
policy/guidelines including contrary to the principals of natural justice,
equity and good conscious and consequently, direct the Respondents
not to transfer the petitioner till completion of three years tenure at
present posted location and pass..."
2. Heard Sri Md. Anwar Ali, learned counsel for the petitioner and
Sri G. Vidya Sagar, learned Senior Counsel, representing Sri Madisetty
Ramu, learned Standing Counsel for respondent Nos.1 and 2.
3. Learned counsel for the petitioner submits that while the
petitioner was working at Thiruvananthapuram, Kerala, he was designed
as Chief General Manager (Technical) - Regional Officer and was posted
at Hyderabad on deputation basis, vide order dated 21.07.2023.
Thereafter, he joined duty as Regional Officer, Telangana at Hyderabad,
on 01.08.2023. Subsequently, respondents issued order dated
07.08.2023 confirming the posting of the petitioner as Regional Officer,
Hyderabad (Telangana). In the order dated 07.08.2023, it is stated that
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the tenure of deputation may be curtailed or terminated at any stage
with one month notice on either side, and without assigning any
reasons. However, the impugned transfer order dated 20.08.2024 is
issued without putting the petitioner on notice which is in violation of
principles of natural justice and also in violation of General Transfer
Policy and Guidelines adopted by the respondents. It is further
submitted that the tenure of deputation is generally three years and
transfers often do not occur before completion of three years, unless
there are exceptional circumstances, which are not present in the
instant case. As such, the petitioner is entitled to be continued in
Hyderabad till completion of three years period commencing from
01.08.2023. However, without considering the same, the respondents
have issued the impugned transfer order dated 20.07.2024 transferring
the petitioner from the Regional Office, Hyderabad, to NHAI
Headquarters, Delhi. Therefore, learned counsel for the petitioner prays
this Court to pass appropriate orders in the present writ petition by
setting aside the impugned order dated 20.08.2024.
4. Per contra, learned Senior Counsel appearing for the respondents
submits that the petitioner is a Government Servant working as CGM (T)
- Regional Officer, which is a transferrable post and the petitioner's
transfer is an incident of his service, and the transfer from one place to
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another is generally a condition of service and the petitioner has no
choice in the matter. It is further submitted that the present impugned
transfer order dated 20.08.2024, transferring the petitioner from
Regional Officer, Hyderabad, to NHAI Headquarters, Delhi, was approved
by the competent authority and was issued for administrative reasons in
the public interest. Hence, it does not violate any legal rights of the
petitioner. It is further submitted that the petitioner himself made a
representation to the respondents on 20.08.2024 requesting to continue
his service as CGM (T) - Regional Officer at Hyderabad on the ground
that the petitioner's family is disturbed a lot due to the sudden transfer,
and that he has completed only one year of service at Hyderabad. In the
said representation, it is also requested that in the event of not
permitting him to continue his services at Hyderabad, he may be
repatriated to his parent department i.e., Ministry of Road Transport and
Highways (for short, 'MoRTH'). The said request of the petitioner for
repatriation to his parent department i.e., MoRTH was accepted by the
competent authority in terms of the Office Memorandum of the MoRTH
dated 07.09.2022, and the application of the petitioner has been
forwarded to MoRTH for concurrence vide letter 28.08.2024 so as to
relieve the petitioner from the NHAI services.
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5. It is further submitted that the contention of the petitioner
regarding his entitlement to receive a one month notice from the
respondents in accordance with the letter dated 07.08.2023 prior to
issuance of the impugned transfer/posting order is completely
misconceived and misinterpreted, as the one-month notice mentioned in
the letter dated 07.08.2023 is applicable only in the case of termination
or curtailing the petitioner's deputation, and is not applicable for posting
or transferring the petitioner from one place to another during his
deputation with the NHAI. As such, the NHAI is not obligated to issue
any prior notice to the petitioner before issuing the impugned
transfer/posting order. Furthermore, the Government servant, holding a
transferrable post, has no vested right to remain posted at one place or
the other, and therefore, he is liable for transfer.
6. It is further submitted that the Central Administrative Tribunal
has the exclusive jurisdiction in accordance with the Administrative
Tribunals Act, 1985, to look into the grievances pertaining to service
matters, including transfers, of the Government bodies, including the
NHAI. As such, this Court lacks jurisdiction to entertain the present
writ petition, and therefore, the same is liable to be dismissed. Further,
it is well-settled law that the Courts should not intervene with the
transfers that are done for administrative purposes or in the public
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interest, unless they are made in violation of any mandatory statutory
rules or on account of mala fides. Furthermore, it is submitted that one
Mr. P. Siva Sankar, General Manager (Technical), was posted as the
Regional Officer at Hyderabad vide dated 20.08.2024. In compliance of
the said order, he joined duty on 21.08.2024 and assumed charge as the
Regional Officer, Telangana at Hyderabad. In consequence thereof, the
petitioner was relieved from duty on 27.08.2024 enabling him to report
at the new place of posting i.e., NHAI Headquarters, New Delhi.
Therefore, there are no merits in the present writ petition and it is
therefore, prayed to dismiss the same.
7. This Court has taken note of the rival submissions made by
learned counsel for the respective parties and perused the record.
8. A perusal of the record discloses that the petitioner was designated
as a Chief General Manager (Technical) and posted as the Regional
Officer at Hyderabad vide office order dated 23.07.2023. Thereafter,
respondent No.2 issued office order dated 07.08.2023 confirming the
services of the petitioner. A perusal of the office order dated 07.08.2023
discloses that the period of deputation is specified as 'initially for a
period of three years or until further orders, whichever is earlier'.
According to the respondents, the petitioner's transfer is made on
account of administrative reasons and work requirements of the NHAI in
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the public interest. Admittedly, the petitioner herein is working as a
Regional Officer, which is a transferrable post.
9. In this regard, it is pertinent to refer to the decision of the Hon'ble
Apex Court in Shilpi Bose and others v. State of Bihar and others 1,
wherein, the Hon'ble Apex Court dealt with a case that involved transfer
of female teachers in Primary Schools in the State of Bihar. The District
Education Establishment Committee issued transfer orders and the said
individuals were transferred, at their own requests, to the places where
their spouses were posted. The displaced teachers challenged the
transfer orders before the Patna High Court on the ground that the
District Education Establishment Committee lacks jurisdiction, and the
said petition was allowed setting aside the transfer orders and directing
the respondents therein to re-post the petitioners therein. The said case
was ultimately carried to the Hon'ble Apex Court, wherein, it was held as
under:
"4. In our opinion, the courts should not interfere with a transfer order
which is made in public interest and for administrative reasons unless
the transfer orders are made in violation of any mandatory statutory rule
or on the ground of mala fide. A government servant holding a
transferrable post has no vested right to remain posted at one place of the
other, he is liable to be transferred from one place to the other. Transfer
orders issued by the competent authority do not violate any of his legal
rights. Even if a transfer order is passed in violation of executive
instructions or orders, the courts ordinarily should not interfere with the
order instead affect party should approach the higher authorities in the
department. If the courts continue to interfere with day-to-day transfer
orders issued by the government and its subordinate authorities, there
1 1991 Supp (2) SCC 659
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will be complete chaos in the administration which would not be
conducive to public interest. The High Court overlooked these aspects in
interfering with the transfer orders."
10. Further, in Mohd. Masood Ahmad v. State of U.P. and others 2,
the Hon'ble Apex Court has once again elaborately considered the well
settled principle and observed that since the petitioner therein was
working in a transferrable post, the High Court has rightly dismissed the
writ petition as the transfer is an administrative decision and an
exigency of service. It is further held that the intervention of the Courts
with transfer orders should only be in very rare cases, and that as
repeatedly held in several decisions, transfer is an exigency of service. In
the aforementioned case, the Hon'ble Apex Court upheld the view taken
by the Allahabad High Court, wherein, the Court refused to interfere in
the transfer cases, and made the following observation:
"7. ...Following the aforesaid principles laid down by the Supreme
Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P,
(1997) 3 ESC 1668, and Onkar Nath Tiwari v. Chief Engineer, Minor
Irrigation Deptt., (1997) 3 ESC 1866, has held that the principle of law
laid down in the aforesaid decisions is that an order of transfer is a part
of the service conditions of an employee which should not be interfered
with ordinarily by a court of law in exercise of its discretionary
jurisdiction under Article 226 unless the court finds that either the order
is mala fide or that the service rules prohibit such transfer, or that the
authorities who issued the orders, were not competent to pass the
orders."
2 (2007) 8 SCC 150
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11. A similar view has been reiterated by the Hon'ble Apex Court in
Rajendra Singh and others v. State of Uttar Pradesh and others 3,
wherein, it is held as follows:
"8. A government servant has no vested right to remain posted at a
place of his choice nor can he insist that he must be posted at one place
or the other. He is liable to be transferred in the administrative
exigencies from one place to the other. Transfer of an employee is not
only an incident inherent in the terms of appointment but also implicit as
an essential condition of service in the absence of any specific indication
to the contrary. No Government can function if the government servant
insists that once appointed or posted in a particular place or position, he
should continue in such place or position as long as he desires [see State
of U.P. v. Gobardhan Lal, (2004) 11 SCC 402; SCC p. 406, para 7).
9. The courts are always reluctant in interfering with the transfer of
an employee unless such transfer is vitiated by violation of some
statutory provisions or suffers from mala fides..."
12. In Rajendra Roy v. Union of India and another 4, it was
observed, "in a transferable post an order of transfer is a normal
consequence and personal difficulties are matters for consideration of the
department."
13. In N.K. Singh v. Union of India 5, the Hon'ble Apex Court held as
follows:
"Unless the decision is vitiated by mala fides or infraction of any
professed norm of principle governing the transfer, which alone can be
scrutinised judicially, there are no judicially manageable standards for
scruitinising all transfers..."
3 (2009) 15 SCC 178
4 JT 1992 (6) SC 732
5 JT 1994 (5) SC 298
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14. In Abani Kanta Ray v. State of Orissa and others6, it is
observed:
"It is settled law that a transfer which is an incident of service is not to be
interfered with by the Courts unless it is shown to be clearly arbitrary or
vitiated by mala fides or infraction of any professed norm or principle
governing the transfer."
15. In National Hydroelectric Power Corporation Ltd. v. Shri
Bhagwan 7, the Hon'ble Apex Court held that the transfer of a particular
employee appointed to the class or category of transferable posts from
one place to another is not only an incident, but also a condition of
service, necessary too in public interest and efficiency in the public
administration.
16. In Public Service Tribunal Bar Association v. State of U.P. and
another 8, the Hon'ble Apex Court held:
"Transfer is an incident of service and is made in administrative
exigencies. Normally it is not to be interfered with by the Courts. This
Court consistently has been taken a view that orders of transfers should
not be interfere with except in rare cases where the transfer has been
made in a vindictive manner."
6 1995 Supp (4) SCC 169
7 2001 (8) SCC 574
8 2003 (4) SCC 104
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17. In Union of India v. Janardhan Debanath 9, the Hon'ble Apex
Court has observed:
"No Government servant or employee of a public undertaking has any
legal right to be posted forever at any one particular place of place of his
choice 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 mala fide exercise or stated to be in violation
of statutory provisions prohibiting any such transfer, the Courts or the
Tribunals normally cannot interfere with such orders as a matter of
routine, as though they were the appellate authorities substituting their
own decision for that of the employer/management..."
18. In Prasar Bharti v. Amarjeet Singh 10, the Hon'ble Apex Court
said that an order of transfer is an administrative order. There cannot
be any doubt that the transfer being an incident of service should not be
interfered except in some cases where, inter alia, mala fide on the part of
the authorities is proved.
19. In Union of India and another v. Murlidhar Menon and
others 11, the Hon'ble Apex Court observed that even if the conditions of
service are not governed by the statutory rules, yet the transfer being an
incident of service, an employee can be transferred which may be
governed by the administrative instructions since an employee has no
right to be posted at a particular place.
9 JT 2004 (2) SC 371
10 2007 (9) SCC 539
11 2009 (11) SCALE 416
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20. Having regard to the principle laid down by the Hon'ble Apex in the
above referred judgments, since the petitioner is a Government servant
employed in the class or category of transferable post and his transfer
had been effected on administrative exigencies and work requirements of
the NHAI in the public interest, this Court is not inclined to interfere
with the impugned transfer order dated 20.08.2024.
21. Furthermore, as can be seen from the record, the petitioner
himself submitted a letter to respondent No.1 on 20.08.2024 either to
permit him to continue at Hyderabad or to repatriate him to his parent
Department i.e., MoRTH. In pursuance thereof, respondent No.2 has
addressed a letter to the Joint Secretary, Ministry of Road Transport and
Highways, on 28.08.2024 stating that the petitioner's request for
repatriation has been accepted by the competent authority of NHAI and
requested for concurrence of MoRTH, for which, there cannot be any
grievance for the petitioner in view of the letter dated 20.08.2024
submitted by the petitioner himself.
22. The record further reveals that one Mr. P. Siva Sankar was posted
as Regional Officer, Hyderabad, vide office order dated 20.08.2024, and
he joined duty on 21.08.2024. Subsequently, the petitioner had been
relieved from duty on 27.08.2024. However, the petitioner failed to
implead the aforementioned individual as party respondent to the
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present writ petition. Therefore, the present writ petition is also liable to
be dismissed for non-joinder of necessary party.
23. In view of the above made discussion, this Court does not inclined
to grant any relief to the petitioner. As such, the present writ petition is
liable to be dismissed.
24. Accordingly, the Writ Petition is dismissed.
Miscellaneous applications, if any, pending in this writ petition,
shall stand closed. No costs.
___________________________
PULLA KARTHIK, J
Date: 01.10.2024.
Note: Issue C.C. by 03.10.2024
B/o.
GSP
