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Judgment
Hon''ble Shri A.K. Sinha, Member (J)
In this application the applicant has challenged the impugned order of his transfer dated 26.11.1993 (Annexure-1) issued under the signature of the Assistant General Manager (Personnel) so far it relates to the applicant and has prayed for setting aside the impugned teleprinter message dated April 8, 1994 (Annexure-2) whereby the earlier order dated 24.3.1994 has been cancelled and the applicant has been directed to be relieved for posting at Bombay Area Depot immediately. The short facts giving rise to this application are as follows :-
The applicant was posted as Security-in-Charge, Canteen Stores Department Depot, Ramgarh Cantt., Ramgarh, While so posted, he was served with a memo of charge-sheet dated 17.2.1992 whereby a departmental proceeding was initiated against him under the relevant rules. The applicant received the memo of charges on 17.2.1992 and he submitted his show cause reply and thereafter departmental enquiry was held and the Enquiry Officer by the enquiry report dated 13.3.1993 held that article of charge Nos. 1 and 2 where not proved against the applicant but the article of charge No. 3 was proved against the applicant and submitted the enquiry report to the disciplinary authority. A copy of the enquiry report was also supplied to the applicant for filing representation before the disciplinary authority. The applicant submitted his representation to the disciplinary authority and thereafter the disciplinary authority found the same to be unsatisfactory and passed the punishment order dated September, 16, 1993 stopping annual increment for a period of two years without cumulative effect. The applicant has also filed his appeal before the appellate authority on 13.1.1994 and same is pending disposal.
The case of the applicant is that the Assistant General Manager (Personnel) passed transfer order No. 219/93 dated 26.11.1993 (Annexure-1) transferring the applicant from Canteen Stores Department Depot, Ramgarh, to Bombay Area Depot. It is stated that this transfer order was passed by way of punishment. The applicant filed his representation dated 17.12.1993 before the respondent No. 2, General Manager, Canteen Stores Department, Bombay, requesting therein to consider his case for transfer to Delhi vide Annexure-5 and on consideration of his representation, respondent No. 2 issued a telegram bearing Reference No. 1811 dated 24.3.1994 changing the posting of the applicant from Bombay Area Depot to Delhi vide Annexure-6 and while the applicant was ready to proceed for Delhi but since the annual examination of his children were to commence from April 14, 1994, the applicant requested the respondent-Manager, Canteen Stores Department Depot, Ramgarh, to relieve him after April 30, 1994. But in the meanwhile the respondent No. 2 that is General Manager, Canteen Stores Department, Bombay reviewed his earlier order dated 24.3.1994 (Annexure-6) changing the posting of the applicant from Bombay to Delhi and issued the teleprinter message dated April 8, 1994 (Annexure-2) cancelling earlier order dated 24.3.1994 (Annexure-6) and directed the respondent Manager, Canteen Stores Department Depot, Ramgarh, to relieve the applicant immediately for joining at Bombay Area Depot. It is stated that the applicant is still functioning on the post of Security-in-Charge, Canteen Stores Department, Ramgarh and has not handed over charge and, as such, he has not been relieved from Ramgarh Cantt. Depot. On all these allegations, this application was filed for the above relief.
On hearing the applicant at the admission stage on 13.4.1994 this Court by its order dated 13.4.1994 had stayed the operation of the impugned transfer order dated 26.11.1993 (Annexure-1) and teleprinter message dated 8.4.1994 (Annexure-2) for a period of fourteen days calling upon the respondents to show cause why this interim order be not made absolute.
The respondents have appeared and filed their written statement repudiating the claim of the applicant stating, inter alia, that the applicant holds transferable post and the order of transfer was passed on administrative ground in the public interest. Hence, this application has got no merit and is fit to be dismissed, It is stated that the representation of the applicant dated 17.12.1993 was examined carefully by the competent authority and after thorough examination, it was found that the applicant will not suffer from transfer to Bombay as he will get better medical facilities for treatment of his son. It is further stated that due to delay in movement of the applicant to the place of posting, administrative difficulty has arisen as the applicant has already been relieved vide order dated 8th April, 1994, with effect from April 30, 1994 with the instruction to report to Bombay immediately The applicant has illegally refused to accept the movement order and meanwhile he has filed his representation on April 9, 1994, requesting his posting to Delhi or Missamare. On all these grounds, it has been sought to be urged that the order of transfer of the applicant was purely on administrative ground and in the interest of service and the allegations of mala fide alleged by the applicant are absolutely misconceived and not tenable in the eye of law.
The question for consideration is as to whether the applicant is entitled to the relief as prayed for.
Annexure-1 is the impugned order of transfer dated November 26, 1993, which would show that 11 persons were transferred to different places and the name of the applicant is at Serial No. 2 which would show that he has been transferred from the post of Security-in-Charge, Ramgarh to Bombay Area. In the impugned order of transfer it is clearly mentioned that the transferred employees be relieved by 24th December, 1993. The applicant, admittedly, thereafter filed his representation dated 17.12.1993 (Annexure-5) stating therein that he may be transferred to Delhi Depot instead of Bombay Depot as the medical treatment of his son was going on at Army Hospital, Delhi. On due consideration of his representation, it appears that the ad-ministration modified transfer order and changed his place of posting from Bombay to Delhi vide order dated 24.3.1994 (An-nexure-6). The relevant portion of order dated 24.3.1994 is extracted below :
We confirm having sent to the above massage with reference to our telex bearing Ref. No. 3/Para/A-2/PM 2358/9850 dated 21.12.93. The station of posting in respect of PM 2958 Shri B,P Sharma is changed from Bombay Area to Delhi. He will therefore be relieved to report to Delhi forthwith and confirm action by telex.
Thereafter it appears that a teleprinter message dated 8.4.1994 vide An nexure-2 was issued by respondent No. 2 whereby the posting of the applicant to Delhi was cancelled and he has been directed to report to Bombay Area Depot. It appears that against this order the applicant has already filed his representation on 9.4.1994 vide Annexure-R/2 and in that representation he has prayed to transfer him to Delhi Depot or Missamare on humanitarian ground.
The contention of the learned counsel for the applicant is that when the administration on consideration of earlier representation dated 17.12.1993 modified the earlier order of transfer from Bombay to Delhi but subsequently by another teleprinter message dated April 8, 1994 (Annexure- 6) the modified order of transfer from Ramgarh to Delhi was cancelled and again the earlier transfer order was reviewed and he has been directed to report to Bombay Depot, it was submitted that this order of transfer was quite illegal in view of the fact that no valid reason was assigned in that order as to why the modified order of transfer was cancelled and the earlier order of transfer was reviewed. On the contrary, the submission of the learned counsel for the respondents is that the applicant''s representation dated 17.12.1993 was examined carefully by the competent authority and after thorough examination, it was found that the applicant will not suffer from transfer to Bombay as he will get better medical facilities for treatment of his son who has got kidney trouble and, therefore, in the interest of administration as well as considering the convenience of the applicant so far treatment of his son is concerned, the order of transfer was reviewed and, accordingly, he was directed to report to Bombay and, as such, there was no ma/a fide on the part of the administration, so far the transfer of the applicant to Bombay Depot was concerned.
I have gone through the pleadings of the parties and the relevant documents.
It cannot be gainsaid that transfer is part of the condition of service of the employee and it is not normally open to judicial review. But if, however, the order of transfer is trained with mala fides or is in violation of well accepted norms, or it is penal in nature, the court, of course, can examine it to find out as to whether such an order of transfer is mala fide and punitive in character based on extraneous consideration. It has been observed by the Supreme Court in H.N. Kirtania''s case reported in 1989 (4) SLR, page 9 Supreme Court, that transfer of public servant made on administrative ground 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. In Gujarat Electricity Board''s case, reported in 1989 (2) Lab. I.C. page 1374 (1377), the Apex Court has observed that transfer of a Government servant appointed to a particular cadre on transferable post from one place to another is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to another place is generally a condition of service and the employee has no choice in the matter. Transfer from one place to another is necessary in the public interest and efficiency in the public administration. 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 his transfer order. If the order of transfer is not stayed, modified or cancelled, the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order, a public servant 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 another. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant rules.
In view of these settled principles of law, on transfer of Government servant and employee of Public Undertaking, it has to be considered in the facts and circumstances of the case as to whether the impugned order of transfer (Annexure-1) dated 26.11.1993 and the impugned teleprinter message dated 8.4.1994 (An-nexure-2) by which the earlier order dated 24.3.1994 (Annexure-6) has been cancelled is fit to be set aside on the ground of mala fide. From perusal of the relevant documents, it is quite clear that the applicant along with 10 others was transferred to different places and the applicant was transferred from Ramgarh to Bombay Area. But, subsequently, on his representation vide An-nexure-5 his transfer order from Ramgarh to Bombay was changed from Ramgarh to Delhi vide Annexure-6 dated 24.3.1994 which is a Photostat copy of the telegram sent by the Assistant General Manager (Personnel) for General Manager. Thereafter, it appears that by another teleprinter message, contained in Annexure-2 dated 8.4.1994, the authorities have cancelled the applicant''s posting to Delhi and he has been advised to report to Bombay Area which was his initial place of posting.
As stated above, the contention of the learned counsel for the applicant is that this order was passed without any rhyme or reason and is punitive in character. It appears further against this order the applicant has filed his representation dated 9.4.1994, which is Annexure-R/2 filed by the respondents in their written statement. The respondents have stated in clear and unequivocal term that the transfer of the applicant was on administrative ground and in the interest of administration and the applicant has already filed his representation which is still pending consideration. It was submitted on behalf of the respondents that where the transfer is on the administrative ground and on consideration of overall facts and circumstances that the applicant''s son will get better treatment at Bombay and so he has been posted to Bombay Area and, as such, there is no mala fide or any oblique motives behind his transfer order.
Considering these submissions and in view of the conspectus of facts and circumstances, it is quite clear from the representation of the applicant (Annexure-R/2) dated 9.4.1994 filed before the General Manager, it will be seen that the applicant has prayed that he may be posted either to Delhi or to Massimare. In view of this fact, it is for the administration-respondents to consider the representation of the applicant.
To my mind, where the applicant himself wants him transferred either to Delhi or Massimare, that shows that the ground for treatment of his son at Delhi does not appear to be a most pressing necessity. Moreover, even assuming for the sake of argument that treatment of his son is going on in Delhi Military Hospital, although for which no document has been produced, it appears to me that his posting at Bombay can be said to be more conducive for treatment of his. son regarding kidney trouble.
Moreover, no factual foundation of mala fide has been laid down whereby it could be said by any stretch of imagination that the impugned orders of transfer (Annexure 1 and 2) are mala fide or with oblique motive.
In that view of the matter, I do not find any substance in the contention of the learned counsel for the applicant that the impugned orders of transfer are mala fide. In the result and considering the facts and circumstances of the case, there is no merit in this application and it is, accordingly, dismissed.
However, it must be stated that interim stay was granted by this Court on 13.4.1994 and by virtue of the order of stay the applicant is continuing at Ramgarh. By M.A. which the applicant has filed in this Court, it has been prayed that he has not received his salary with effect from May 1994 and he is put to a great financial hardship.
As it is held that there is no merit in the application, the interim order stands vacated. But in the circumstances, there shall be no break in service of the applicant, in view of the interim order granted by this Court. The applicant is directed to join his place of posting at Bombay Area within 15 days from the receipt of this order and the respondents shall in the meantime make available, on the application filed by the applicant, his advance I.A., etc., as admissible under the rules and shall make payment of his salary since May, 1994 onwards, which the applicant is entitled to receive to enable the applicant to join his place of posting. With this observation the application is dismissed but there shall be no order as to costs.