Devapriya Choudhury And Ors vs Union Of India & And Ors

These two writ petitions having similar issues are proposed to be disposed of by this common order.

1) In WP(C) No. 258 of 2018, the petitioner is serving as Deputy General Manager (Electrical/Mechanical) since April, 2011 and had been working in the Corporate Office, NEEPCO, Shillong. Vide Order No. 100 dated 26th June, 2018 issued by the respondent No. 5, the petitioner was transferred to Assam Gas Based Power Station, Bokulani, Dibrugarh District, Assam. The petitioner being aggrieved with the transfer had made a representation with a prayer to be retained at Shillong for the reasons of his father's old age who is also suffering from various ailments and that his son has just started Class-X. The contention of the petitioner is that as per Para 11.3 and 11.8 of the NEEPCO Transfer Policy, he is to be retained in Shillong till his son completes Class-XII Board Examination and also that the disease suffered by his father was within the purview of Medical Attendance Rules of the NEEPCO.

2) In WP(C) No. 319 of 2018, the petitioner is presently holding the post of Senior Manager (Civil). Vide Order No. 100 dated 26th June, 2018, the petitioner was sought to be transferred to Assam Gas Based Power Station, Bokulani, Dibrugarh District, Assam. The petitioner herein also has submitted a representation for review as he has an old and ailing mother who requires medical attention and also that the transfer was sought in the middle of the academic session of his son. The petitioner had earlier approached the Civil Court but had withdrawn the same, and is now before this court by way of this writ petition.

3) Mr. S.C. Chakrawarty, learned senior counsel assisted by Ms. E. Slong, learned counsel for the petitioners submits that the main contention in these two writ petitions is whether the violation of the Transfer Policy by the respondent Corporation, would vitiate the transfer orders, and they be subject to interference by this Court. He submits that the law with regard to transfer of employees, is well settled as has been consistently held in a number of decisions by the Hon'ble Supreme Court as well various High Courts, that transfer of an employee can only be interfered with if they are made in violation of statutory provisions and or found to be otherwise malicious. He further submits that Rule 11.3 of the Transfer Policy of the NEEPCO, categorically provides that if an employee or his family member is suffering from any special disease as defined in NEEPCO Medical Attendance Rules, then such employee shall be deployed at any location of their choice or nearest to a location where facilities for treatment of special disease are available. In the case of the writ petitioner in WP(C) No. 258 of 2018, it has been clearly made out that his father is an aged person suffering from such special disease namely diabetes mellitus, which requires proper medical attendance which is available in Shillong but not available in the new place of posting i.e. Bokulani, Dibrugarh District, Assam where proper medical attendance is available only 50 Km away. He submits that in the case of the petitioner in WP(C) No. 319 of 2018, his mother is a heart patient who requires constant medical attendance and the same is not available in the new place of posting. Further, he submits that Rule 11.8, provides that if a child of an employee is a student of Class IX and Class XI, such employee shall not be transferred till completion of Class X and Class XII. The learned senior counsel submits that it is the pleaded and un-contradicted case of the petitioners that their children are students of Class IX and Class XI in the year 2018, as such the transfer order is in gross violation of Rule 11.8 of the said Rule. He also contends that Rule 10.2 of the said Transfer Policy provides that an employee shall be generally transferred during the months of February, March and April but in the instant case in gross violation thereto the petitioners were transferred in the month of June, 2018.

4) The learned senior counsel for the petitioners in this connection has placed reliance on the case of Union of India & Others vs. H.N. Kirtania reported in (1989) 3 SCC 445 and in the case of K.K. Saxena vs. International Commission on Irrigation and Drainage and Others reported in (2015) 4 SCC 670. He submits that in the latter judgment though it has been held that contract of personal service cannot be enforced, there are three exceptions (i) when the employee is a public servant working under the Union of India or State (ii) when such employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India and (iii) when such employee is "workmen" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. He further submits that one of the three exceptions as prescribed permits enforcement of contract of personal service, when such employee is employed by the authority which is a State within the meaning of Article 12 of the Constitution of India. He submits that in the instant case the Transfer Policy of the NEEPCO is undoubtedly enforceable by this Court, inasmuch as, it comes within the meaning of Article 12. He further submits that statutory provisions with regard to transfer of employees may be expected only in the case of Government of India or State which are made in pursuance to Article 309 of the Constitution of India. He therefore submits that there being no provision in the Constitution which permits enactment of statutory provision governing transfer and posting of employee by the authorities like Government Corporations as in the instant case, the Rules and policies adopted by the Board pertaining to transfer of employees, such instrumentalities occupy the same position as statutory provisions. As such, he contends, the Transfer Policy of the NEEPCO is enforceable by this Court.

5) The learned senior counsel then submits that since the Transfer Policy of the NEEPCO. has been violated in both the cases herein, and the same by the exceptions as made out in the judgment being enforceable, interference is called for by this Court and the impugned transfer orders are liable to be set aside and quashed. The learned senior counsel reiterated that the whole controversy involves around this point as to the point whether a contract of personal service can be enforced on the facts as set out and illustrated. He then concludes by praying for setting aside and quashing of the impugned orders and that the writ petitions be allowed.

6) In reply, Mr. V.K. Jindal, learned senior counsel assisted by Ms. C. Nongkhlaw, learned counsel for the respondents submits that the respondent NEEPCO is not a statutory body, though being a Government Company, it can be considered to be an instrument of the State and thus amenable to writ jurisdiction. He submits that the Company is registered under the Indian Companies Act, 1956 with its own Memorandum and Articles of Associations which empowers the Director to make bylaws for regulation of service conditions of the employees. He further submits Rule 11.3 and 11.8 of the NEEPCO Transfer Policy, came into force on 8th May, 2017, and were formulated by the respondent Corporation pursuant to clause 35 of the Articles of Association, and as such are not Statutory Rules having the force of law. He submits that the respondent authority is under no legal obligation to formulate such Rules, and even if it had done so, it has the power to repeal, vary and amend the same. The learned senior counsel further submits that services of the petitioners are purely contracts of personal service and the same cannot be enforced especially in view of the provisions contained in Section 14 (1) (b) of the Specific Relief Act, 1963.

7) The learned senior counsel while alluding to the facts submits that no case of violation of Rule 11.3 and 11.8 of the NEEPCO Transfer Policy has been made out and relies on his written argument wherein the reasons have been placed as follows, that :-

a) As per Rule 4, one of the objectives of the Transfer Policy is to enable cross functional rotation in the strategy interest of organization and it is with this objective that the Petitioners were transferred.

b) As per Rule 6.4 of the Transfer Policy, the minimum tenure is 4 (four) years in one location. In the case of Writ Petitioners in W.P (C) No. 258/2018 the Petitioner was posted at HQ, Shillong for more than 20 years in two spells, out of his total length of service period of about 29 years. In the case of Writ Petitioner in W.P (C) No. 319/2018 the Petitioner was first posted at HQ, Shillong from 11/6/1990 to 12/5/1997 and then again he was posted in Shillong on 11/3/2013 to 31/7/2018.

c) As per para 5 of the Transfer Policy, the job locations of the Corporation are classified as Category 1 and Category 2 based on the criteria mentioned therein and the Petitioners have been transferred within the area specified in Category 1. Thus, the transfer of the Petitioners is from Category 1 to Category 1 locations only.

d) All medical facilities are available at the new place of posting and as such there is no violation of Rule 11.3. Further, the academic session of both the children of the Petitioners is over and their transfers were considered keeping in view the numbers of years they were posted at HQ, Shillong.

e) The Petitioners were transferred on 26/6/2018 and they were released to enable them to join their new place of posting but till date they have not reported for duties to the new place of posting for which they are liable to be dealt with as per CDA Rules.

f) No case of any malafide or violation of any statutory rule is made out and hence the petitioners are not entitled to any relief.

8) The learned senior counsel in support of his submissions with regard to the enforceability and maintainability of the writ petitions against the order of transfer has relied in the case of Executive Committee, UP Warehousing Corporation vs. Chandra Kiran Tyagi reported in (1969) 2 SCC 838 and in the case Indian Airlines Corporation vs. Sukhdeo Rai reported in (1971) 2 SCC 193. The learned senior counsel then also placed reliance on the case of K.K. Saxena vs. International Commission on Irrigation and Drainage and Others reported in (2015) 4 SCC 670 and submits that if a body performing public duties is amenable to writ jurisdiction, all its decisions will not be subject to judicial review, and that only those decisions which have a public element can be judicially review, and that if appear to be purely private in character no mandamus can be issued.

9) He closes his arguments by submitting that there is no case for interference and that the transfer orders were issued in consideration of the organizational requirements and length of period served at the present location by the petitioners. As such he submits, there being no infirmity in the orders, the writ petitions being devoid of merit should be dismissed.

10) I have heard learned counsel for the parties.

11) The basic contention or perhaps the only point raised by the petitioners in these two writ petitions is that the stated transfer policy has been violated by the respondent NEEPCO in passing the impugned orders against the petitioners. In this regard, it would be advantageous to reproduce herein the extract of the NEEPCO Transfer Policy especially Clauses 10.2, 11.3 and 11.8. which are relevant for our purpose

"10.2 Employees shall be generally transferred during the months of February/March/April in consideration of academic schedule of the school/college of wards of the employees. However, transfer of employees, under special case, may be made at any time.

11.3 Employee and his/her family suffering from Special diseases as defined in NEEPCO MEDICAL ATTENDANCE Rules shall be deployed at any location of their choice or nearest to a location where facilities for treatment of special diseases are available.

11.8 Employees whose children are studying in Class IX and Class-XI may not be transferred till completion of Class-X and Class XII of the children. Length of the employee's posting at the present location shall be considered while deciding such cases. Such cases shall only be applicable when the family of the employee is staying with him/her at the employee's place of posting or within the distance of 30 kms from his/her place of posting."

12) On a bare reading of the policy, it is noticed that the same has been made applicable to all regular employees of NEEPCO in all three categories namely Workmen, Supervisors and Executives including Work-Charged category employees and deputations. The case as put up by the petitioners as noted earlier is that; firstly the transfer was sought to be effected, in violation of clause 10.2 which provides that employees shall be generally transferred during the months of February, March & April in consideration of academic schedule of ward of the employees. Secondly, that the same is also in violation of clause 11.3, whereby the policy provides that employees or families suffering from special disease shall be deployed at any location of their choice or nearest to a location where facilities for treatment of special disease are available. Thirdly, that it is also in violation of clause 11.8, which provides that employees whose children are studying in Class IX and Class XI may not be transferred till completion of Class X and Class XII.

13) The petitioners in both the writ petitions as per the case put up by them, would come within the meaning of the terms of the clauses as quoted above, inasmuch as, both are having parents who are suffering from diseases which need constant attention and also their wards are studying in Class-XI and Class IX respectively, which in their submissions, if transfer is effected, will cause hardship and dislocation of their family and studies of their children.

14) The Transfer Policy it appears provides for such contingencies in which, when the transfer of an employee was to be effected it was to be considered whether the employee came within the exceptions as provided in the above noted clauses and if so, such transfer was then to be accordingly weighed against the said circumstances. However, even if so, the blanket enforceability and the status of the policy is to be examined in the backdrop of the stated decisions and as to whether, contracts of personal services which can be enforced especially in view of the provisions contain the Section 14 (1) (b) of the Specific Relief Act, 1963. In this regard, therefore it would be in the fitness of things to determine the character of the respondent Corporation and whether the Transfer Policy be seen to be binding and enforceable.

15) Though the respondent NEEPCO is not a statutory body but the very fact that it is a Government Company and is therefore amenable to writ jurisdiction under Article 226, has to be given due consideration. It is a settled position of law that the rule of non-enforceability governs contract personal service is covered by Section 14 (1) (b) of the Specific Relief Act, 1963. However, as enunciated in the judgment of K.K. Saxena vs. International Commission on Irrigation and Drainage and Others three exceptions have been carved out which permit exception to the rule. In its context it would be apposite to quote Para-52 of the said judgment as given herein under :

"52.It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely:

(i) when the employee is a public servant working under the Union of India or State;

(ii) when such an employee is employed by an authority/ body which is a State within the meaning of Article 12of the Constitution of India; and

(ii) when such an employee is "workmen" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act.

In the first two cases, the employment ceases to have private law character and "status" to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the Labour Court/Industrial Tribunal to grant reinstatement in case termination is found to be illegal."

16) In the above quoted judgment itself at Para 43 to 45 and 50, the Hon'ble Supreme Court has held that even if a person or authority is part of the State within the meaning of Article-12 of the Constitution, and amenable to writ jurisdiction under Article-226 a writ would not lie to enforce private law rights. In the present case, NEEPCO has framed the Transfer Policy and has been made applicable across the Board to all of its employees, as such though writ would not lie in the context of enforcement of private rights; the aspect that is to be considered is to whether such policies will notionally have the same effect as statutory rules. It is a common knowledge that the power to make such rules or policies of such entities such as NEEPCO will always vest with the Board or Management. Therefore, the rules or policies pertaining to transfer of employees adopted by the Management of such instrumentalities of the State is to be examined as to whether they can be regarded to be in the same footing as statutory provisions applicable to employees of the Government itself.

17) Transfer is an incidence of service and no employee will be justified in resisting the same to demand to be posted at a particular place of his choice. Courts do not normally interfere in such administrative matters of transfer and posting except in three situations (a) where the transfer order is issued contrary to statutory rules (b) where the transfer order is vitiated by malafides and (c) where the transfer order is issued by an authority not competent to issue such transfer order. The presence however, of the stated Transfer Policy will necessarily entail examination from another aspect, which is whether any transfer decision is to be taken only after considering the same. Though the Transfer Policy as such does not occupy the position and authority of statutory rules, they nonetheless, constitute norms and guidelines on which transfer and postings should be effected on its basis and the same also must not be whimsical or arbitrary. In the case of Sarvesh Kumar Awasthi vs U.P Jal Nigam reported in (2003)11SCC740, the Supreme Court at para 3 observed as under:

" 3. In our view, transfer of, officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrary, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers ..........."

In Union of India vs. S.L. Abbas (1993)4SCC357 also, the Supreme Court held

".......... While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration"

18) Admittedly, NEEPCO is a public sector undertaking and has framed the Transfer Policy to regulate the transfer and posting of employees of NEEPCO. The Policy framed by NEEPCO cannot be said to have the status of statutory rules framed under proviso to Article 309. However, once NEEPCO has laid down well thought out norms and policy, there must be valid reasons to deviate therefrom. It is true that these guidelines do not have the force of statutory Rules, and as such they do not confer any right on the employee, but it is also equally true that since NEEPCO has laid down norms and policy for transfer and policy, there must be valid and justifiable reasons for NEEPCO to deviate from the same in any particular case of transfer and posting. The norms and policy which have been framed by NEEPCO have obviously been framed for the purpose that they be followed and naturally have not been framed for the purpose that they be violated. As such though these guidelines do not confer a right on the employee, but definitely these Guidelines cast an obligation on NEEPCO to follow these norms and policy and justify with valid reasons why the set norms and policy of transfer cannot be followed in the case of a particular employee.

19) In view of the findings as recorded herein above, and the taking into consideration the applicability of the Transfer Policy of NEEPCO to all of its employees and reliance also being placed on the same by the respondent Senior counsel himself in his submissions, there can be no doubt as to the relevance of the Policy while considering transfers and postings. On the aspects as to whether, NEEPCO though amenable to writ jurisdiction would come within the definition given at Para-52 clause (ii) of K.K. Saxena(supra) judgment, and whether the bar by application of the Specific Relief Act, will be attracted, in view of the discussions and findings above the same are left open.

20) As such, for the foregoing as discussed, the writ petitions are hereby disposed of with a direction to the respondents (NEEPCO) to re-consider the transfer of the petitioners herein by taking all relevant factors and situation of the petitioners into consideration in its application of the Transfer Policy within a period of one month from the date of this order. Till such decision, status quo as to their transfer and posting shall be maintained. The writ petitions are accordingly allowed to the extent indicated and disposed of.