B. Sukumaran vs The Deputy General Manager, Airports Authority of India and Others

S.S. Subramani, J.—This writ petition is filed for the issue of a writ of certiorari or any other appropriate writ of direction, to call for the

records on the file of the first respondent by which he was transferred from the present place of employment to New Delhi. The order is dated

7.4.1994.

The relevant facts are as follows:

The petitioner is an employee of the Airports Authority of India, a State as defined under Article of the Constitution. He joined the International

Airports Authority of India on 4.1.1973 as Assistant Grade -HI. Later oh he was promoted as Assistant Grade- II and subsequently as Assistant

Grade - I. He was further promoted as Cargo Superintendent on 24.12.1986. It is stated that in Airports Authority of India, Group B Services

consist of Officers from Assistant Manager level and unionised cadre like Chargeman, Housekeeping Supervisors, Cargo Superintendent, etc. It is

stated that since the petitioner is placed in the Unionised cadre, the incumbent of that post is not transferred from one place to another. It is also

stated that there is considerable difference in the pay scale, uniform, nature of employment and treatment between the Assistant Manager (Official

cadre) and Cargo Superintendent (Unionised cadre) As per proceedings dated 7.4.1994, the petitioner was transferred, for which he made

representations on 8.4.1994, objecting the same. According to him, the post is not transferable, that he did not seek promotion and refused it since

promotional cadre is transferable and also on the ground that he has aged parents and his family is at Madras, and he being the sole earning

member, it will not be possible to maintain a house at Madras and a separate establishment at New Delhi. It is also stated that considering his

objections, the transfer was kept in abeyance. It is also stated that there is no policy of transfer of cargo Superintendents and till a policy is

evolved, the petitioner shall not be transferred. It is stated that his promotion was kept in abeyance in pursuance of transfer of one R.S. Jamwal on

promotion as Assistant Cargo Manager, at New Delhi. The petitioner was under the impression that since another incumbent has been provided to

Delhi, he will not be disturbed from Madras. It is also stated that his transfer was intended only to provide another employee, R. Santhanam, and

the same was mala fide. It is also stated that all of a sudden, the petitioner received a communication that he will be relieved with effect from

31.5.1995 and he was asked to join at New Delhi. He moved are presentation on 8.5.1995, requesting the Authorities that he may not be

promoted, and that he is even willing for a reversion to a lower post, and that he was not written any examination only to avoid transfer from a

particular place. The personal difficulties of the petitioner are also narrated. He states that the present emoluments which he is getting at Madras

will be insufficient to meet his family expenses and his expenses. It is also stated that there has been discrimination and that he has been transferred

only to favour another person. This according to the petitioner, is mala fide. It is also stated that even though at Madras there are four posts of

Cargo Superintendent and even now two posts are vacant, his seniors in the same Unionised Cadre have not been transferred. On the above

grounds, he wants this Court to quash the Order dated 7.4.1994.

At the time of admission, I heard the petitioner in detail.

According to me, none of the contentions now raised by the petitioner can be sustained.

The petitioner was transferred as per order dated 7.4.1994, and till date he has not joined the place where he is expected to work.

Even the ground of mala fide is not specifically stated. An argument was taken by the learned Counsel for the petitioner that it is only to provide

one R. Santhanam that the petitioner has been transferred and that therefore the impugned order of transfer is lacking in good faith. The said

contention has to fail for the simple reason that the person against whom mala fide is alleged is not made a party to the proceeding. On merits also,

the said contention has no legs to stand. It is true that in order dated 7.4.1994, Thiru R. Santhanam, who is now working in Delhi, was asked to

join in Madras, and in his place the petitioner was transferred to Delhi. It is admitted by the petitioner''s own document that the respondents were

not particular of transferring the petitioner. When they obtained the service of one Jamwal, they directed that the posting of the petitioner may be

kept in abeyance until further orders. That conduct itself shows that it is not with any mala fides the petitioner was transferred but the respondents

wanted an urgent hand at New Delhi, and that is purely an administrative reason.

Even though the petitioner alleges that they being in the Unionised Cadre, he cannot be transferred, in the affidavit filed in support of the writ

petition and also in his various presentations, he has not asserted that his post is not transferable. His case in this representation dated 8.4.1994 is

only that from Unionised Cadre, transfer is not made as a routine. The petitioner also has no case that at the time when he was appointed, he was

given any assurance that he will be transferred. Even in his representation dated 8.5.1995, he has not stated that his post is not a transferable post.

His case is only that he being a member of the Unionised Cadre of Group B, transfers are not taking place as a routine. In all the representations he

wanted the Authorities to cancel the transfer only due to his personal difficulties. It can be further seen that even the Union of which he is a

Member, has no case that his post is not a transferable post. What they wanted was that a transfer policy has to be evolved before any member

could be transferred. From the documents produced by the petitioner himself, it cannot be said that the petitioner is holding a post which is not

transferable.

In this connection, it is also worthwhile to note that from 7.4.1994 till 8.5.1995, various representations were given by the petitioner by himself

and through this Union. The respondents have considered his representations. They gave sufficient time to the petitioner to join the place, and

ultimately they rejected the final representation dated 8.5.1995. and directed that he will be relieved on 31.5.1995. In his representation dated

8.5.1995, the petitioner has even threatened that if his request is not conceded, the said representation may be treated as a request for resignation.

From his representation, it is very clear that he is not prepared to join at the transferred place, and that the respondents have to concede his

request. It is more or less like an ultimatum to the respondents. The said conduct of the petitioner cannot be appreciated.

Legally also, the petitioner''s case cannot be appreciated in any manner.

In B. Varadha Rao Vs. State of Karnataka and Others, , it was held that where transfer does not affect the service conditions and where the

transfer is bona fide, the court should be reluctant in interfering with such orders. Their Lordships held thus:

Transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of

service. No government servant can claim to remain in a particular place or in a particular post unless, his appointment itself is to a specified, non-

transferable post. Therefore, a transfer order per se made in the exigencies of service does not result in alteration of any of the conditions of

service, express or implied, to the disadvantage, of the concerned government servant....

In Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, , it was held thus:

Transfer of a government servant appointed to a particular cadre of transferable post from one place to the other is an incident and a condition of

service. It is necessary in public interest and efficiency in public administration. No government servant or employee of Public under undertaking

has legal right for being posted at any particular place. Whenever a public servant is transferred he must comply with the order but if there be any

genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation

of the transfer order. If the order of transfer is not stated modified or cancelled the concerned public servant must carry out the order of transfer.

He has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty

in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to

disciplinary action under the relevant rules as has happened in the instant case.

No government servant or employee of any public undertaking has a right to be absent from duty without sanction of leave, merely on account of

pendency of representation against the order of transfer. Regulation 113 of the Service Regulations contemplates that before exercising power

thereunder for summarily discharging an employee from the service of the Gujarat State Electricity Board without complying with the procedure

prescribed for taking disciplinary action, two conditions must be satisfied firstly, the employee must be found to be absent from duty without leave

or overstaying the period of sanctioned leave, and, secondly, he failed to join his duty even after a warning. The object and purpose of giving

warning is to remind the delinquent employee that if he continues to be absent from duty he would be liable to action under Regulation 113 and to

afford him an opportunity to make amends by joining his duty. If even thereafter he fails to join duty, his service are liable to be terminated by an

order of discharge. A warning need not be in any particular form.

In Union of India and Others Vs. H.N. Kirtania, , their Lordships held thus:

...The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in

the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner

in which he impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative

grounds or in public interest should not be interfered with Unless there are strong and pressing grounds rendering the transfer order illegal on the

ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent''s transfer.

In State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others, , it was held thus:

It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to

Bhopal, there was no justification to transfer him again to Jagdalpur. We cannot appreciate these grounds. The Courts or tribunals are not

appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and

the courts or tribunals are not expected to interdict the working of the administrative system, by transfering the officers to proper places. It is for

the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous

consideration without any factual background foundation.

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This Court cannot go into that question of relative hardship. It would be for the administration to consider the facts of a given case and mitigate the

real hardship in the interest of good and efficient administration. If there is any such hardship, it would be open to the respondent to make a

representation to the Government and it is for the Government to consider and take appropriate decision in that behalf.

In the above decisions it has been declared that unless the order of transfer is mala fide and is not in public interest, the court shall be reluctant

to interfere with the orders of transfer. The employer is the best person to say as to where his employee should work. That is purely within the

knowledge and discretion of the employer. In this case, I have already stated that the question of mala fides will not arise and even the allegations

are vague. The petitioner has no definite case that he is not liable to be transferred. The only stand taken is that till a policy is taken, he shall not be

transferred.

Learned counsel for the petitioner has relied on certain decisions and wanted this Court to injunct the respondents-Department from effecting

the transfer.

Learned counsel relied on the decision reported in E.P. Royappa Vs. State of Tamil Nadu and Another, , that is a case where the petitioner

who was acting as Chief Secretary of this state was posted in another naturally created post. The some was challenged on various grounds, mainly

on the ground of mala fides. It was also contended that his posting was a reversion and amounted to punishment. Their Lordships repelled all the

contentions and rejected the writ petition. While discussing the above judgment, their Lordships said that the transfer of an employee is one of the

conditions of service. I do not think that the facts therein any way help the petitioner in this case.

The learned Counsel for the petitioner also relied on the decision reported in Umesh Chand Tiwari v. The State of U.P. and Ors. (1988) 1

S.L.R. 409. That was a decision by a Division Bench of the Allahabad High Court. There, the petitioner was in a position to allege mala fides

against the orders of transfer, which was found favour with the court. I have already stated that when a ground of mala fides is made out, even the

order of transfer can be interfered with by court.

The learned Counsel also relied on the decision reported in B. Varadha Rao v. State of Karnataka and Ors. (1986) 2 S.L.R. 60, wherein their

Lordships of the Apex Court held that if the power of transfer is abused, such an exercise of the power vitiated, and that in such case, the court

will exercise the discretion in favour of the petitioner. In that case, it was held thus:

It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer

which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different

thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implead, to the advantages of the

concerned Government servant.

The said decision has no application since the facts in the instant case are entirely different.

Learned counsel also relied on the decision reported in N.K. Singh Vs. Union of India and others, , There also it was held that unless a case of

mala fides or infraction of any professed norms is made out, the court will be justified in not interfering with the order of transfer. The relevant

portion of the said decision reads thus:

...Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised

judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel

management of all government departments.

In view of the limited scope of review which the petitioner has failed to plead and prove in this case, I do not find that there are any grounds to

interfere with the order of transfer dated 7.4.1994. The writ petition is, therefore, dismissed in limine.