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Judgment
O R D E R
By Hon’ble Dr.Chhabilendra Roul, Member (A):-The present OA has been filed by the applicant, Dr Jatinder Bali, CMO working under MCD. The OA seeks to quash order dated 21.8.2019 vide which, the applicant was transferred as CMO from Hindu Rao Hospital to Polyclinic Narela (Mon, Wed,& Friday) and Polyclinic Kanjhawala (Tuesday, Thursday and Saturday).
Brief facts of the case are as follows:-The Applicant appeared in Combined Medical services Examination conducted by UPSC and after being successful, was assigned to Municipal Corporation Delhi. He joined in MCD on 21.01.2002. The Applicant was deployed in Hidu Rao Hospital (henceforth HRH) on 20.09.2005. Since then, the applicant is working in this Hospital and has risen to the rank of CMO. Vide Impugned order dated 21.8.2019, the applicant was transferred as CMO to attend two Polyclinics at Narela and Kanjhwala. The said order stated that he would draw his salary against a vacant post of Medical Officer in Polyclinic Narela. He was also relieved from his duties at Hindu Rao Hospital immediately w.e.f. 21.8.2019 vide the same order. The applicant submitted a representation dated 27.8.2019 which has not been disposed off despite repeated reminders, till filing of the OA. Being aggrieved, the applicant has filed the present OA.
The applicant has sought the following relief in his OA:-
Recall / quash the order dated 21.08.2019.
ii) Consequently directing the respondent to transfer the applicant to his previous posting specifically at HR Hospital.
iii) Direct the respondent to disburse all his bills which is pending since long and upon enquiry it was told that bills are missing /untraceable.
iv) Any other or further order or orders, relief or relief’s which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice may also be passed in favour of the applicant.
On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
The applicant in the OA and his counsel during arguments have taken the ground of vendetta, bias and malafide on the part of the respondents in transferring him to a rural Poly-clinic instead of utilizing his services of an expert at HRH.
The transfer order has been issued as a vendetta because of the following stands taken by the applicant:
The transfer order was because of his representation regarding denial of opportunity to be appointed as Guide to DNB students joining at Hindu Rao Hospital. The applicant had submitted an application dated 13.8.2019 to the medical superintendent , HRH alleging bias and unfair distribution of DNB thesis guides in the Opthalmology Department.
The applicant was not assigned any student as guide /co-guide in 2019. He raised a Dissent Note in the Hospital Scientific Committee meeting dated 276.07.2019. Apprehending that his dissent note may not be recorded, he sent his written dissent Note to Medical superintendent on 30.7.2019.
Blatant violation of Transfer guidelines;
The applicant has been transferred from a major hospital to a polyclinic against a Junior GDMO post to work for two centers. GDMO is a rank below to CMO, against which the applicant was working.
The respondents have relieved him on the same day vide the same transfer order.
The transfer order was violative of Clause 5, and 7 of the Transfer guide lines issued vide circular No. ADC/2008/235 dated 22.04.2008(Annexure-A-6) .Clause 5 states that the official having longest stay is first to be transferred.
Other doctors in the Opalmology department are working for longer periods than the present applicant. The HOD is working since 2003 , longer than the period of stay of the applicant.HRH has been upgraded as a Medical college and non-specialist MBBS doctors having stay of 20-25 years have been retained at HRH. The impugned transfer order is discriminatory and violative of the fundamental rights of equality as enshrined under articles 14 and 16 of constitution of India.
Instead of utilizing the services of an expert like him at HRH, the respondents are utilizing the services of retired doctors in the Ophthalmology Department. The applicant has been deprived of modern lab and research facilities’ at HRH to hone his skills and do research in Advance Ophthalmology.
As the respondents have used pick and chose policy, without following the transfer guidelines, the facts and circumstances of the case point to bias and malafide on the part of the respondents. Transfer has been used a tool for punishing him and depriving him of professional opportunities.
The counsel for the applicants cited order of this tribunal in OA no. 1152 of 2009 in Dr D.P. Ray Vs MCD & 7 ors., wherein in a similar case the transfer orders by respondent MCD was quashed because it was found that the transfer was in violation of the provisions in the extant Transfer Guidelines, particularly period of stay at a particular location.
The counsel for the respondents have strongly argued against any bias or malafide on the part of Respondent. He drew attention of the Tribunal to the counter reply filed by the respondent. Particularly he cited Judgment in Rajendra Singh & others vs Sate of UP where in it was held:
Para 5
“5.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. vs. Gobardhan Lal; (2004) 11 SCC 402].”
The counsel for the respondent averred that the transfer of the applicant was a regular transfer. Government Servant in a transferrable post may be transferred by the competent authority. The Government servant has no vested right to remain at a particular post at a particular place. He further cited the Judgment of the Apex court in N.K. Singh vs union of India (1994) 6 SCC 98 wherein it was held that;
“Transfer of a Government servant in a transferable service is a necessary incident of service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only relative approach is to leave it to the wisdom of the hierarchical superiors to make the decision unless the decision if vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicted.”
The counsel for the respondent further submitted that Clause 10 of the Transfer guidelines empowers the MCD to transfer any medical officer to any place in public interest. Clause 10 of the Transfer policy dated 22.4.2008 states:
10.The MCD reserves the right to transfer anyone at anything in public interest, considering the exigencies of work & need of any institution /organization. Likewise, the MCD also reserves the right to allow an officer to work at any place, in public interest, beyond the period prescribed in this Policy.
In view of the above, the counsel for the respondents averred that the applicant has no cause for grievance and the OA lacks merit.
I have gone through the records of the case thoroughly and heard the arguments carefully. It has been held in several judgments by the Apex court that transferring an employee and reassigning duties and responsibilities at the same place of posting or at a new location is the prerogative of the competent authorities.
Transfers, deployments, redeployment or placement of organizational human resources are essential components of Human Resources Management Strategies of any organization, be it in private sector or in the Government or Public sector. These strategies are aimed at realizing the organizational goals for furtherance of mission objectives of the organization. For a government department or autonomous organization or Public Sector Undertaking, Public Interest in the form of discharging the assigned responsibilities to these entities by the Constitution, statutory provisions subordinate legislation or delegated competencies, is the mission objective.
Deployment or transfer is also the process of providing sub-entities and subordinate offices with the required human resources and support they need to be successful in their roles. This is akin to allocation of organizational resources to achieve organizational goals. Modern governments and organizations begin the process by assessing the organization’s current and future human resources needs. Following these assessments, the competent authority makes decisions how best to deploy the human resources to meet the identified needs. These include the type of human resources required, the number of human resources required, the location of the human resources, and the timing of the deployment. In Government, generally this task is assigned to an Administrative/Establishment/ Placement/Transfer Committees.
Effective utilization of service of an employee is the very core of administrative efficiency. It is the prerogative of the employer to transfer his employee at any point of time and to any work station based on administrative exigencies. Deployment of staff in the form of transfers enables realignment of human resources to new work assignments or job responsibilities to meet organizational needs or to provide opportunities to the employees gain skills and experience. Such activities are aimed at supporting employee’s engagement, employee motivation and increased productivity and leadership development across all level of employees within the organization.
The position that the competent administrative authorities have a prerogative to redeploy or transfer an employee for better utilization of human resources of the organization for furtherance of Public interest have been well settled in several case laws by the Apex court. The employee in a transferable job does not have any vested right to remain at a particular place or post. The counsel for the respondents have cited the judgments in Rajendra Singh & others Vs Sate of UP and N.K. Singh Vs union of India (1994) 6 SCC981. The following sections discuss several other judgments belonging to the same genre.
The Apex Court in Gujarat electricity Board Vs Atmaram Sungomal Poshani (CA No 3561 0f 1986 decided on 31.3.1989 ) held that :
Para 4
“Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in 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 the 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 the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.”
The Apex court in Union of India Vs S.L. Abbas CA no 2348 of 1993 decided on 27.4.1993 has again reiterated similar position. Para 6 of this judgment states:
“:6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundemental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. “ ….
“He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
Again in Public Services Tribunal Bar ... vs State Of U.P. & Another on 29 January, 2003[Appeal (civil) 3946 of 2001 Date of Judgment: 29/01/2003] it was 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 transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner. From the above quoted decisions, it is evident that this Court has consistently been of the view that by way of interim order the order of suspension, termination, dismissal and transfer etc. should not be stayed during the pendency of the proceedings in the Court.”
The transfer policies are in the form of executive guidelines. And hence, these have no statutory force. The aforementioned case laws affirm the prerogative of the government to transfer its employees to place of posting for administrative exigencies. The transfer guidelines are subservient to public interest.
In State of UP &Ors vs Govardhan Lal CA 408 of 2004 decided 23.3. 2004, the Apex Court held that:
Para 6
“Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.”
Para 8
“A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.”
Here, even the transgression of the transfer guidelines has not been allowed to be interfered by the court. This has been further reiterated by the Apex Court in Airport Authority of India Vs Rajeev Ratan Pandey and Ors CA No 5550 of 2009. Para 10 of the said judgment states that even if the transfer order is violative of transfer policy, the court should not interfere. It has been held that:
“In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut”
Similar view has been echoed in Rajendra Singh &Ors Vs. State of Uttar Pradesh &Ors CA No.4975 of 2009 decided on 31.7.2009 as has been cited by the counsel for the respondents.
When the courts interfere in the administrative functioning of a department by entertaining the petitioners against transfer orders, it creates administrative complexitities for the authorities. The Apex court in State Of Haryana &Ors Vs Kashmir Singh &Ors on 6 October, 2010 [CIVIL APPEAL NOS. 8690-8701 OF 2010] has clearly advised the courts /tribunals to desist from interfering in those matters. It held:
“ 16. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.
18.For the foregoing reasons, these appeals succeed and are hereby allowed. The impugned judgment of the High court is set aside and the writ petitions before the High Court stand dismissed. No costs.”
The view that the transfer guidelines /circulars may not in itself confer a vested right which can be enforceable by a writ of mandamus was reiterated and highlighted by the Apex Court in Punjab and Sind Bank &Ors. Vs. Durgesh Kuwar, 2020 SCC Online SC 774. It was held that:
Para17.
“……….An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus.”
Even the Supreme Court in Union of India and Others Vs. Ganesh Dass Singh Civil Appeal No. 1358 of 1994, Decided On, 25 February 1994 held that there is hardly any scope of judicial review of administrative action in the form of transfer orders. It held:
“4.In our opinion, in the present case there is no material to justify interference with the mere order of transfer made by the competent authority for administrative reasons particularly when the Tribunal had rejected the respondent's assertion that the transfer had been made on account of certain complaints he had made regarding the functioning of the Dept. We have no doubt that the view taken by the Tribunal is not justified on the facts found by it. It is also not within the scope of permissible judicial review in such matters relating to mere transfer made by the competent authority for administrative reasons.”
The apex Court has further stated that a government servant should not disobey the transfer order by not reporting to at the place of posting. It is his duty to first report for work and if he has some difficulty / personal problem, he can make a representation after joining at his new place of posting. The Supreme Court has deprecated the practice of not reporting at the place of posting and indulging in litigation. The Court in S.C. Saxena Vs. Union of India and others, (2006) 9 SCC 583, held as under:
"6.We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart there from, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Monohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly remaining absent from duty."
Personal hardships, family circumstances, education of children, health issues of self and dependant family members are matters for consideration for the competent authority but not for the courts/ tribunals to decide the matter as an appellate authority. The decision of the administrative authorities after considering these personal difficulties is considered final. The Apex court in Sate of MP and Ors Vs S.S. Kourav&Ors [CA No. 1285 of 1995 decided 19.1.1995] held that :
“It is further contended that in an unfortunate situation the respondent’s wife committed suicide leaving three children and he would suffer extreme hardship if he has to work in the tribal area. This court cannot go into that question of relative hardship. It would be for the administration to consider the facts of the 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 make a representation to the government and it is for the government to consider and take appropriate decision in that behalf.”
Sometimes, employees or employee groups assail the transfer policy or suspension of any particular clause or clauses of the transfer policy as it may create difficulties for individual or group of employees. As the transfer policies/circulars are only guidelines for the administrative Authorities, these cannot be enforceable by the courts [Punjab and Sind Bank &Ors. vs. Durgesh Kuwar, 2020 (supra)]. Whether, the transfer policy or suspension of particular clause of transfer policy is good or bad, it is for the administrative authorities to consider the grievances of the employees in respect of a particular issue regarding transfer policy. In Kumari Shrilekha Vidyarthi and others vs State of UP and Others [1991 AIR 537, 1990 SCR Supl. (1) 625], the Apex Court held that:
“The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. As indicated by Diplock, L.J., in Council of Civil Service Unions v. Minister for the Civil Service [(1984) 3 All ER 935] the power of judicial review is limited to the grounds of illegality, irrationality and procedural impropriety.”
The aforementioned judgments of the Apex Court have given upper hand to the administrative authorities or the Government in matters of Transfers. However, transfers may affect negatively the level of productivity, motivation, innovation quality, relations, and participation and communication patterns among other core human resources activities. When handled well and in accordance with the employees’ circumstances, deployment increase employee performance through increased innovation, creativity, quality, productivity, profitability, loyalty flexibility, efficiency, effectiveness, and low levels of discontents, dysfunctional conflicts. In other words, employee welfare is also in the interest of the organizations. The principles of effectiveness, efficiency and economy in matters of deployment of human resources are sought to be aligned with organizational mission goals.
While effecting redeployment through transfers, the organizations should also treat all such employees fairly and without any bias or malafide or discrimination. Moreover, a model employer like the government also treats its employees far more transparently and it is expected that the government ensures that there is no violation of Articles 14 and 16 Indian Constitution. Based on the twin objectives of satisfying organizational goals (public interest and better governance for delivery of public services) and employee welfare, employee growth and development, organizations including government departments formulate transfer /placement policies. These policies ensure transparency and also provide better opportunities to official/officers for excellence and more planned approach to cadre planning. Such transfer policies develop some sort of reasonable employee expectations to be treated fairly while effecting redeployment through transfers. Similarly, the government departments also have reasonable expectations from its employees to cooperate in such deployment to achieve mission goals of departments and other entities.
Redeployment in the form of transfers inter alia should also satisfy the test of reasonable expectations of the employees to be treated fairly and such administrative action should not be based on malafide, bias and unreasonable factors. There are several judgments of the Apex court which have moderated the absolute power of the government/ administrative authorities in the matters of transfer. The earliest of this genre is the judgment of the Apex court in E.P. Royappa vs State Of Tamil Nadu &Anr [ 1974 AIR 555, 1974 SCR (2) 348; Dated 23/11/1973] . The Apex court held that:
“It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilize the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colorable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.”
Subsequently, a series of judgments by the Apex court have reiterated and substantiated this view. These judgments are:
Food Corporation of India Vs. M/s Kamdhenu Cattle Feed Industries: Civil Appeal No. 4731 of 1992.
Kumari Shrilekha Vidyarthi and others Vs Sate of UP and Others [1991 AIR 537, 1990 SCR Supl. (1) 625]
Somesh Tiwari v. Union of India and Others: (2009) 2 SCC 592
Shilpi Bose Vs State of Bihar AIR 1991 SC532
National Hydroelectric Power Corporation Ltd Vs. Shiv Bhagwan&Anr CA no. 1095-96 0f 2001 decided 11.9.2001
Mohd Masood Ahmad Vs State of UP & others CA 4360 of 2007 decided on 18.9.2007
E. P. Royappa Vs State Of Tamil Nadu &Anr on 23 November, 1973 Equivalent citations: 1974 AIR 555, 1974 SCR (2) 348
Varadha Rao Vs State Of Karnataka And Ors. on 26 August, 1986 Equivalent citations: AIR 1986 SC 1955,
Union Of India &Ors Vs H.N. Kirtania on 12 July, 1989; Equivalent citations: 1989 AIR 1774, Date Of Judgment12/07/1989
Punjab and Sind Bank &Ors. Vs. Durgesh Kuwar, 2020 SCC Online SC 774, the Supreme Court summarized the principles applicable to transfer orders, as under:
Chief General Manager (Telecom) ... Vs. Shri Rajendra Ch. Bhattacharjee ... on 18 January, 1995
Union Of India And Ors Vs. Sri Janardhan Debanath And Anr on 13 February, 2004 Appeal (civil) 1010-1011 of 2004; Date Of Judgment: 13/02/2004
Mrs X Vs Registrar General, High Court of Madhya Pradesh &Anr, WP No 1137 of 2018, decided on 10.2.2022.
Earlier, Delhi High Court in Union of India vs. Yogender Mittal in WPC No. 6376/2015 decided on 25.8.2015, based on the judgments in Shilpi Bose case (supra) and Gujarat Electricity Board Vs. Atmaram Sungomal Poshani, 1989 (2) SLR 684 (SC), has summarized the scope of judicial review in transfer matters under certain circumstances: It was held that a judicial review of an administrative action is of course permissible, but orders of transfer are interfered when:-
"(a)the transfer is malafide or arbitrary or perverse;
(b)when it adversely alters the service conditions in terms of rank, pay and emoluments;
(c)when guidelines laid down by the department are infringed;
(d)when it is frequently done and lastly;
(e)if there is a statutory infraction." It has been also held that Transfer should not be used as a tool for punishing an employee. For that, there is scope in the form of Disciplinary Proceedings, which should be explored. Such transfers may be construed as vendetta on the part of the senior competent authority.
The doctrine of reasonable expectations (Doctrines of Reasonable Expectations vs Public interest) has been expounded by the Apex Court in the case of Food Corporation of India Vs. M/s Kamdhenu Cattle Feed Industries CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4731 of 1992 wherein it was held that :
“8.The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process.” …….
“9.In Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 All ER 935 (HL)] the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power……. Lord Scarman pointed out that “the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subjectmatter”. Again in Preston, in re [1985 AC 835 : (1985) 2 All ER 327] it was stated by Lord Scarman that “the principle of fairness has an important place in the law of judicial review” and “unfairness in the purported exercise of a power can be such that it is an abuse or excess of power”. These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. Shri A.K. Sen referred to Shanti Vijay and Co. v. Princess Fatima Fouzia [(1979) 4 SCC 602: (1980) 1 SCR 459] which holds that court should interfere where discretionary power is not exercised reasonably and in good faith.”
The Doctrine of Reasonable Expectations has been reiterated by the Apex Court in Mrs X Vs Regisrar General , High Court of Madhya Pradesh & Anr [WP No 1137 of 2018 in decided on 10.2.2022].
The facts and circumstances of a particular case may point out arbitrariness, malafide and biasedness on the part of the competent authority. The transfer effected by an authority having no competency, to place an employee to a place having no position, mid-tenure transfer, transfer as a punitive action for not obeying illegal pressure, violation of transfer Policy in not holding meeting of Placement Committee, frequent transfers etc. point to biasedness, malafide on the part of authorities. Outright rejection of the personal hardships (children’s education and family tragedy and poor health of applicant) will point to failure of the tests of reasonable expectations from a model employer like Government of India.
In the instant case, the respondents have failed to demonstrate that the transfer is to a place where the rules and regulations of the MCD require that a super specialist ophthalmologist is required in a poly-clinic. The respondents have also failed to satisfy this Tribunal that there is any exercise to assess the manpower requirements, particularly ophthalmologist specialists at various polyclinics, dispensaries and hospitals and the present status of deployment and the vacancies thereof. The respondent organization has failed to satisfy as to the administrative exigencies which required the transfers in violation of clause 5 and 7 of the transfer policy. The argument that the respondent organization has absolute power to transfer any employee any time any where does not stand scrutiny of settled case laws cited above. Moreover, Clause10 of the transfer policy cannot be read in a stand alone basis without taking into the holistic spirit of the transfer guidelines , which provide a mirror of transparency and fairness and reasonable expectation of fair play as it has been held in by the Apex Court in the case of Food Corporation of India vs. M/s Kamdhenu Cattle Feed Industries CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4731 of 1992 and in Mrs X Vs Registrar General , High Court of Madhya Pradesh & Anr [WP No 1137 of 2018 in decided on 10.2.2022].
The respondents have failed to demonstrate that they have maintained a seniority list of doctors at each place of posting and a seniority list of doctors who are liable for transfer after completing the stipulated period of stay. Nor it could produce any policy guidelines stating the administrative exigency under which the Transfer guidelines shall be kept in abeyance. Under such circumstances, the competent authority has to demonstrate reasonable application of mind and record as such on files or orders that the transfer is required due to administrative exigencies for furtherance of public interest.
In view of the above facts and circumstances, this tribunal comes to conclusion that the transfer order dated 21.8.2019 fails the tests of fairness and reasonableness. Hence, the said order is quashed. The applicant shall be posted back to HRH in the Department of Ophthalmology. However, this does not give him a right to stay in the same capacity in the same department forever. Once the respondent comes out with a detailed exercise regarding manpower requirement with specialization and years of experience at each location, existing strength and vacancies and maintenance of seniority list of doctors liable for transfer, they can effect transfers and redeployment, that may include the present applicant. The Respondent Corporation may transfer doctors and specialists due to administrative exigencies under clause 10, exigencies suspending any other clause under the transfer guidelines. But such transfers be effected after recording reasons in writing by the Competent Authority in official records.
The OA is disposed off in the above terms. No order as to the costs.
All pending MAs are also disposed of accordingly.