G.P. Yadav vs Bharat Petroleum Corporation Ltd. and Others

This petition under Article 226 and 227 of the Constitution of India has been filed by the Petitioner seeking to get the orders of transfer (Annexures P-5 and P-10) quashed on the ground that the orders are mala fide, against the government policy and violative of principles of natural justice.

The Petitioner is in service of Bharat Petroleum Corporation (for short the ''Corporation'') as senior Aviation Officer. On being taken in service in July 1984 he was promoted subsequently in October 1989 as senior Aviation Officer. The Petitioner was initially posted at Palam Airport and was transferred to Gwalior in June 1936. The Petitioner come to be transferred to Bombay vide Annexure P-5 dated 10-5-91. Against the said order of transfer the Petitioner represented to Corporation vide Annexure P-6 also annexing the copy of the policy of the Government Annexure P-4 which is applicable to public service undertaking also.

Against, transfer order Annexure P-5 a writ petition was filed by the Petitioner before this Court which was numbered as M. P. No. 1044/91 and this Court observed that the writ petition was premature as according to the Petitioner himself his representation was pending consideration before the Corporation and therefore, it was directed that the representation of the Petitioner be decided within a period of 3 weeks and till then the status-quo be maintained. The Petitioner inter alia other grounds, had represented that his wife is in Central Government Service, posted in Delhi and since her service is not transferable, the Petitioner be posted at Delhi or at near about Station Sirsa (Haryana). But thereafter, without effecting any change, the order Annexure P-10, has been passed ordering the Petitioner to join at Santacruz Aviation service station at Bombay.

The Petitioner contends that the orders of transfer Annexures P-5 and P-10 are against the policy of the Government as contained in Annexure P-4 and the relevant Clause 6 of the policy provides that:

Where One spouse belongs to a Central Service and the other spouse belongs to a public sector Undertaking:

The spouse employed under the public sector undertaking may apply to the competent authority and the said authority may post the officer to the station, or if there is no post under the P. S. U. in that station to the station where the other spouse is posted. If, however the request cannot be granted because the P. S. U. has no post on the said station State, then the spouse belonging to the Central service may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station, or if there is no post in that station, to the State where the spouse employed under P. S. U. is posted.

It is contended that under the above clause Petitioner''s posting at Delhi or nearby station was necessary as his wife is in service at Indian Agriculture Research Institute Pusa, New Delhi. It is further contended that the representation of the Petitioner was decided without affording him opportunity of hearing and as such the order Annexure P-10 is violative of the principles of natural justice and it has been passed malafidely on account of the Petitioner''s approaching this Court, challenging the order of transfer Annexure P 5.

The non-applicants have denied the allegations, with regard to the policy Annexure P-4 it has been submitted that the policy is to be adopted and implemented, adjusting the spouse as far as possible but the provisions thereof not mandatory and it has been further submitted that the transfer is an incident of service and posting at a place of ones choice is not the employee''s right. The services of the Petitioner are urgently required in the interest of administration at Bombay, which is the main station of the Corporation. The Petitioner has been posted at Bombay, being the senior Aviation Officer, as 5 posts were lying vacant at Bombay. The allegations of mala fides have been vehemently denied.

Shri D. K. Katare, learned Counsel for the Petitioner has forcefully contended that the non-applicants were bound to carry out the policy. The directions contained in Clause 6 of policy Annexure P-4 are mandatory in nature and accordingly and wife are to be adjusted so as to save the family from disruption The transfer has not been made under the administrative exigency but it is mala fide since the non-applicant No. 2 got annoyed with the Petitioner for his approaching this Court, seeking redress.

To support his contentions, Shri Katare has pressed into service Lalit Mohan Deb and Others Vs. Union of India (UOI) and Others, , Union of India (UOI) Vs. K.P. Joseph and Others, , Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, Shanti Kumari v. Regional Deputy Director, Health Services. Patna Division, Patna and others AIR 1981 SC 1577 , to submit that the orders contained in Annexures P-5 and P-10 are illegal, mala fide against the principles of natural justice and is against the policy Annexure P-4. The orders have been passed with a view to harass the Petitioner and as such deserve to be quashed.

Having considered the contentions and rival contensions, we are of the view that this petition has no substance and is liable to be dismissed.

Admittedly, the non-applicant corporation has no rules of itself and the policy Adnexure P-4 is made applicable to public sector undertaking, has been adopted and followed by the Corporation.

The Petitioner himself, on receiving the transfer order Annexure P-5, informed the non-applicant as per his own endorsement on Annexure P-5 that he shall be able to report at Bombay after July 1991 and vide Annexure P-7, prayed that the transfer be deferred till then. In a letter written by the Petitioner to his superior Annexure P-3, he expressed "I welcome the Change and thank you for effecting this change". Though certain family difficulties were expressed by the Petitioner but lastly it was prayed that his transfer be deferred for a months i. e: up to 31st July 1991, to enable him to discharge his duties and responsibilities towards his family and make proper arrangements.

The Petitioner is an experienced Senior Officer, and his posting at Bombay Aviation Service station is being considered necessary. The non-Petitioners have brought those circumstances which show that the Officer of Petitioner''s cadre is wanted at Bombay, which is their main Service station catering 31% of the Country''s need. There has been no mala fides in posting him at Bombay. Clause 6 of the policy Annexure P-4 contains the guidelines. It is the administrative discretion and does not confer any justiciable right, for the enforcement of which a writ or direction may be issued by the Court. In Union of India v. K. P. Joseph (Supra) it was observed by the Apex Court that:

Generally speaking, an administrative order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions.

Though, it was expressed that to say that an administrative order can never confer any right would be too wide a proposition as there are administrative orders which confer rights and impose duties. Therefore, the order or the directions are to be considered in reference to their object, the language used and the proposition that they lay down. Clause of 6 of the policy itself provides that, as far as possible adjustments are to be made but when exeigency of administration requires, an employee could be posted to a place which the administration thinks fit.

If it is possible to adjust and post an employee at the place or near about the place of posting of his wife in case her post is not transferable, the policy would be followed, taking care of such employee but on a reasonable justification if it is not feasible, the employee will have no right, when he occupies a transferable post, to claim the continuance of his posting at that very place or at a particular place. It would be the matter of administrative discretion which is to be exercised in the larger interest of administration, which should not be arbitrary or mala fide. Though, such administrative instruction may not have the force of law but can not be arbitrarily departed from as was found by the Apex Court in Dr. Amarjit Singh Ahluwalia v. The State of Punjab and Ors. (supra).

Unless, the circumstances are brought out and placed, to infer the mala fides it can not be gathered from its mere narration. The Petitioner has remained stationed at Gwalior, i. e. near Delhi for the last five years. Petitioner''s wife is also not holding the permanent post. Further it could not be established that any post is vacant or available at Delhi or Sirsa (Haryana). In our opinion, the Petitioner''s transfer, in the circumstances is neither tainted with any ulterior motive nor is mala fide.

There is nothing on record to show the presence of mala fides, when order of transfer Annexure P-5 was made. The allegation of the Petitioner are with regard to Annexure P-10. which only confirms the order of transfer Annexure P-5. The Supreme Court in Union of India and Others Vs. H.N. Kirtania, held that:

Transfer of a public servant made on administrative grounds or in public interest should not be interferred 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.

The matter of transfer also come to be considered by the Apex Court in the case of Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, it was observed that;

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 right 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 effici-eacy in the public administration.

As a sequel of the above discussion, we do not find any substance in this petition and the petition is therefore dismissed. There shall be no order as to costs.