Arun Kumar vs Union of India & Ors.

By Kumar Rajesh Chandra, AM:-

Through this Original Application, the applicant is seeking quashing of the impugned transfer order no. DPB/389/24, Bilaspur, Dt. 18.03.2024 (Annexure A/1) so far as it concerns to the transfer of the applicant as well as the respondent no. 5.

Briefly, the facts of the case of the applicant as projected in the Original Application are that the applicant was initially appointed on the post of Khalasi vide the order, dt. 29/05/2007 and thereafter, the he was promoted on the post of Technician Grade- III in the year 2015. In the year 2018, the applicant was promoted on the post of Technician Grade-II and in the year 2020, he was promoted to the post of Technician Grade-I. He was never communicated any adverse ACR and even no complaint is pending against him. Now he has been transferred from present place of posting to the same Office at Brajrajnagar on administrative grounds and the respondent no. 05 has been transferred in his place. He has been allegedly transferred only with ab intention to accommodate the respondent no. 05 at Bilaspur Office without any administrative exigencies of service during the academic session when his four children are studying in B.Com-Part-II at C.M.D. College, Bilaspur, 12th Boards, 10th Boards, and 9th Class examination (copies of certificates Annexure-A/2 colly). The mother of the applicant is suffering from various ailments and she is on death-bed. Recently, the mother of the applicant was admitted to a hospital on 28/02/2024 and she was discharged on 05/03/2024. The copy of the discharge ticket and outpatient record is annexed herewith as Annexure-A/3 colly. Looking to the aforesaid difficulties, the applicant is seeking for quashing the instant impugned transfer order, dt. 18/03/2024.

The respondents have filed their reply wherein it has been submitted that the applicant seeks for quashing the transfer order dated 18.03.2024 (Annexure A/1) claiming personal difficulties and in the O.A., he submits that his transfer is done in a discriminatory manner. However, impugned transfer order (Annexure A-1) has been passed only after it was duly approved by the "placement committee"; and said transfer order was an absolute "administrative exigency" and there is no malafide intention or discrimination on the part of respondents nos. 1 to 4 to transfer the Applicant. The applicant has been transferred to Brajrajnagar on Administrative Exigencies as per the requirement of the Respondents. There is no violation of rules in passing the transfer order. The Railway Establishment has been following the guidelines of the Hon'ble Apex Court in its letter and Spirit with regard to transfer and posting of its employees, and hence, the said transfer order dated 18.03.2024(Annexure A/1) has been passed only after it was duly approved from the placement committee on Administrative Exigencies as per the requirement of the Railway Establishment. The children of the Applicant are studying in Bilaspur (C.G), and the mother of the applicant possesses medical ailments, therefore, it would be pertinent to bring it on record that the applicant and his family have been provided with the Railway Accommodation, and they may be granted permission by the Respondents to retain the railway accommodation till the end of the academic session as per rules. Further, the interference of Court in the Judicial review has time and again been discussed by the Hon'ble Apex Court in various cases. Further, the Applicant has misled the court by stating that "Bilaspur to Brijrajnanar" is 300 kms where as Distance from Bilpasur to Brijrajnagar is only about 200 Kms which is only around 2 hours journey. Further, the Hon'ble Apex Court has clearly held that if the transfer is effected in a routine manner then it need not be interfered by the Court unless it is shown by the Applicant to be clearly arbitrary or vitiated by malafide intention. In a Similar terms Hon'ble Apex Court has also stated that "since a public servant holds a transferable post, he has no vested right to remain in a place"."

This Tribunal has considered the matter and perused the documents annexed herewith the original application. The judgments relied upon by the counsel for the parties are taken into consideration.

During the course of arguments the counsel for the applicant has taken various grounds that the respondent authorities have passed the impugned order in arbitrary and contrary manner which is bad in law. Furthermore, the applicant has been transferred on administrative ground and the respondent no. 05 has been transferred in place of the applicant on request which shows the discriminatory action of the respondent authorities. Moreover, the applicant has been transferred far away from present place of posting at Brajrajnagar and the same is without any administrative exigencies of services. Citing applicant’s personal difficulties, she submitted that applicant’s children are studying at various classes and at this stage they cannot shift to Brajrajnagar and if they will shift, their studies of children would be disturbed adversely. The mother of the applicant is suffering from various ailments and it is not possible to shift for them at Brajrajnagar because she is being treated at Bilaspur and there are no good medical facilities available at Brajrajnagar. Furthermore, the applicant has also made a representation on 18.04.2024. The counsel for the applicant has also relied upon the judgment passed by the Hon’ble High Court of Himachal Pradesh in CWP No. 2621 of 2020

Regarding the contention of the applicant that the transfer of the applicant has been done in violation of rules by the respondents, it is made clear by the respondents that the Applicant has been transferred to Brajrajnagar on Administrative Exigencies as per the requirement of the Respondents and the transfer order has been passed after the approval obtained from the "placement committee". Furthermore, transfer of the applicant and the respondent No. 5 have been issued in the same order and on the same date, but it shouldn't be inferred/assumed that the transfer is an outcome of discrimination being exercised by the Respondents. The Railway Establishment has followed the guidelines of the Hon'ble Apex Court with regard to transfer and posting of its employees, the transfer order dated 18.03.2024(Annexure A/1) has been passed only after it was duly approved from the placement committee as per the requirement of the Railway Establishment. Furthermore, no malafide as alleged has been proved by the applicant against the respondents.

Another contention of the applicant that that the children of the Applicant are studying in Bilaspur (C.G), and that the mother of the Applicant possesses medical ailments, it is clear as per the reply of the respondents that applicant and his family have been provided with the Railway Accommodation, and they may be granted permission by the Respondents to retain the railway accommodation till the end of the academic session as per rules. So the difficulty of the applicant has been minimized regarding his personal family difficulties. Furthermore, as the Brajrajnagar is approx. 200 kms away from the present place of posting of the applicant, it would not create that much hardship to the applicant in his transfer at this station as it would take 2-3 hours for the applicant to reach his family, if in Bilaspur. Furthermore, there is no documentary evidence regarding the non-availability of medical facilities at Brajrajnagar, submitted by the applicant.

Furthermore, the Applicant's post is a transferable post. Transfer is an incidence of service and applicant is having transfer liabitlity. It is further submitted that if there are no irregularities in the rotational transfer, the duty of the Government servant is to comply with the transfer order. Further, the Hon'ble Apex Court has clearly held that if the transfer is performed on a routinely manner then it need not be interfered by the Court unless it is shown by the Applicant to be clearly arbitrary or vitiated by malafide intention. The Supreme Court of India in the case of Rajendra Singh and others v. State of U.P. and others, has observed as follows:

In the matter of Rajendra Roy Vs. Union of India' the Hon'ble Apex Court observed that :

The Respondents are taking sympathetic consideration to the Applicant and its family members, but the said transfer of the Applicant is vital for the smooth functioning of the Establishment. Furthermore, the malafide alleged by the applicant has no documentary support and not proven in any manner.

The Courts/Tribunals have limited jurisdiction regarding the exercise of power in the matter of transfer unless it is done in a malafide manner or by an incompetent authority. The administrators are the best judge in the matter as to in which manner the manpower needs to be utilized. The Hon'ble Apex Court in Shanti Kumari Vs. Regional Deputy Director, Health Services Patna has held that:

In view of observations made in the preceding paragraphs, we do not find any malafide or illegality in the action of the respondents in passing the impugned transfer order (Annexure A/1).

Accordingly, this Original Application is dismissed being devoid of any merit. No order as to costs.