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Judgment
Per: Justice M.G. Sewlikar, Member (J)
This is an application for setting aside the Order of the Transfer dated 16th June, 2026 whereby the applicant has been transferred from Goa to Mumbai.
Applicant’s contention is that he was appointed as Scientific Officer on 02nd July, 1997 in National Informatics Centre, Goa.
It is further contended that the applicant rendered his service at Goa till his date of transfer. On 16th June, 2026, the applicant came to be transferred from Goa to Mumbai as Scientist-F vide impugned order dated 16th June, 2026. Vide the said order, the applicant sought to be relieved with effect from 23rd June, 2026.
It is the contention of the applicant that before the order of transfer, the applicant had made representation on 23rd April, 2026. This was not considered by the Transfer Committee. In the said representation, he had stated that the applicant’s son is currently studying in 10th standard and will be moving to 11th standard shortly. His wife is a Professor at Government College, Goa. She cannot be transferred to Mumbai being an employee of the State Government. He had stated in the representation that he may not be transferred for a period of two years and thereafter, he is ready to go anywhere as per the requirement of the respondents. After the transfer order was passed, the applicant made representation on 21st June, 2026. Before the representation could be considered, the applicant filed this OA. After considering the submissions made by the learned counsel for the applicant, this Tribunal directed the respondents not to relieve the applicant if he has not already been relieved till the matter is heard on interim relief.
The applicant further contended that his wife is working in Goa and he is a State Government employee. Since she cannot be transferred out of Goa, the applicant be retained at Goa as per the policy of couple convenience of the DoPT vide OM dated 30th September, 2009.
Respondents filed their reply contending therein that since the day of appointment, the applicant has been serving at Goa i.e. for 29 years. It is contended that the applicant was required to be transferred because of the New Policy framed by the respondents on 19th September, 2025. According to this policy, no employee can be retained beyond a period of five years. Since the applicant had rendered service of 29 years at one place, the respondents thought if fit to transfer the applicant to Mumbai in public interest. It is further contended that the employees were asked to give their options for the transfer. The applicant has been transferred to Mumbai as per the first option given by him and, therefore, the applicant now, has no reason to have grievance against the order of transfer. The respondents further contend that the transfer is in accordance with the choice of the applicant. Therefore, the Original Application deserves no consideration and deserves to be dismissed with costs.
Respondents contend that the policy of couple convenience cannot be applied to the employees like applicant. The policy postulates that the couple convenience can be considered as far as possible. In the case at hand, the applicant has been at Goa for the last 29 years and there cannot be any better example of couple convenience than this. They contend that the applicant cannot expect that he should be retained as per the policy of couple convenience for the entire service.
I have heard learned counsel for the applicant and learned counsel for the respondents.
Learned counsel for the applicant submitted that the applicant, no doubt, has rendered 29 years of service at Goa. It is not the case of the respondents that they tried to shift the applicant out of Goa but the applicant managed to stay at that place despite their best efforts. He further submitted that as per the policy of the respondents, the applicant has to make representation for transfer but that very policy has not been considered by the respondents. He submitted that the respondents have ignored the policy of couple convenience. He submitted that by virtue of earlier policy of the year 2020, the employee’s period of retention at one place was 10 years with minimum stay of three years. Respondents did not attempt to transfer the applicant in their wisdom and now, all of a sudden, the applicant is sought to be transferred to Mumbai. Learned counsel further submitted that the respondents have retained the applicant for 29 years, what harm is going to cause to them if the applicant is retained for another two years. The applicant is ready to give an undertaking that after two years, he will abide by the transfer/posting decision as per organizational requirements.
Learned counsel further submits that the applicant had made representation to the respondents on 23rd April, 2026 which was forwarded by his immediate superior on the very next day with remark “aligning with the averments made in the representation”. However, the representation was forwarded by Dr. Rajesh Kumar Pathak only on 23rd June, 2026 to Shri Om Prakash Wadhwa i.e. one day after the passing of the order on interim relief by this Tribunal. He submitted that this itself is suggestive of the malafides on the part of the respondents.
Learned counsel for the respondents submitted that the applicant has rendered 29 years of service at one place. This itself is an ideal example of couple convenience. The respondents are required to follow the transfer policy and, therefore, they transferred the applicant to Mumbai in public interest. Learned counsel further submits that the couple convenience does not mean that employee cannot be transferred just because his wife is working in the State Government on a non-transferable post. That will be against the spirit of the OM dated 30th September, 2009.
Learned counsel for the respondents further submits that the contention as regards the son of the applicant being in 11th standard, has no consideration as the public interest is of paramount importance as against the individual hardships.
Learned counsel for the respondents has placed reliance on the following judgments for the proposition that the transfer of an employee can be interfered with by the Courts/Tribunals only when it is passed by an incompetent authority, it is actuated with malice, it is against statutory rules:-
Anil Kumar Gupta versus Union of India & Ors. in OA No. 408/2026 dated 08th July, 2026 (CAT, Patna Bench).
Prashanta Kumar Pradhan versus Union of India & Ors. in OA No. 280 of 2020 (CAT, Cuttack Bench).
Shri Kamruz Zaman versus Union of India & Ors. in OA No. 213/2026 dated 08th July, 2026 (CAT, Guwahati Bench).
Union of India and Others versus S.L. Abbas, (1993) 4 SCC 357.
State of U.P. and Ors. v. Gobardhan Lal, 2004-(091)-AIR-2165-SC.
Major General J.K. Bansal versus Union of India and Others dated 23rd August, 2005 in Appeal (civil) 5180 of 2005 (Supreme Court).
Between Dhanish Dubey and The State of Madhya Pradesh & Ors. in Writ Petition No. 10639 of 2021 (Madhya Pradesh High Court).
Learned counsel for the respondents submits that the applicant has not made any of these allegations. So far as the malafides argued by the applicant in not forwarding the representation is concerned, at the most, it can be called as an inaction on the part of the officers of the respondents. This inaction cannot be called as malafides. He further submitted that there is no provision in transfer policy to call for the representations even before the consideration of transfer by the Transfer Committee. All these representations were premature. Therefore, non-consideration of such representations cannot be called as malafides. The applicant has not alleged malafides. Therefore, the applicant cannot be permitted to argue on the point of malafides. He further submits that if the applicant is making allegations of malafides that too only in arguments, he has to make the concerned officer as party and then only, he can make such allegations. The applicant has not made party to Rajesh Kumar Pathak. He submits that therefore, the allegations in respect of malafides cannot be considered.
He further submits that similar orders of transfer has been passed PAN India by the same department and some of the employees have approached the Guwahati Bench and Patna Bench of this Tribunal regarding the same hardships i.e. spouse ground and children studying in 11th or 12th standard and these Benches of the Tribunal have directed the respondents to decide the representations. He has filed the orders passed by the Guwahati Bench in OA Nos. 212/2026 & 213/2026 and Patna Bench in OA No. 408/2026. He submits that if the Tribunal is of the opinion that the transfer order is to be interfered with, then, the respondents be directed to decide the representation of the applicant.
Learned counsel for the applicant in response submits that after considering all the authorities cited by the applicant, the Allahabad High Court in the matter Dharmendra Kumar Saxena vs. State of U.P. & Ors, 2013 SCC OnLine All 14049 has come to the conclusion that the respondents cannot breach their own policy and if the policy is breached, they have to come up with justifiable reasons. Learned counsel for the respondents in reply, submits that in this authority also, the respondents were directed to reconsider the representations made by the employees.
Learned counsel for the respondents submitted that the applicant made representation on a wrong portal i.e. of Grievance portal. Therefore, there was no occasion for the respondents to consider the representation of the applicant. In reply, learned counsel for the applicant submitted that in para 9 of the policy of the year 2025, the respondents have mentioned the portal as https/digital.nic.in and the same portal has been mentioned on the representation made by the applicant. He submitted that the malafides did not end at the time of not considering the representation but they are bent on substantiating the order of transfer by making allegations against their own record.
I have given thoughtful consideration to the submissions made by the learned counsel for their respective parties.
It is not in dispute that the son of the applicant is studying in 11th standard. The respondents have framed the policy dated 19th September, 2025. As per clause 4 of this policy, the rotational transfers and transfers on compassionate grounds shall be done once in a year preferably during the month of March. Clause 10 of the policy states that applications/requests for compassionate transfer/ postings submitted through online system shall be considered by the transfer Committee. Clause 9 states that request for transfer by an employee to be submitted through online system available at https://digital.nic.in and notified from time to time.
Initially, the respondents denied in reply to rejoinder that the applicant had made any representation on the appropriate portal. They contend in the reply to rejoinder that the online portal mentioned in clause 10 applies only to requests for compassionate transfer submitted by NIC employees through the designated online portal, which is opened periodically for such transfers. It does not apply to general representations to retain at some place of posting or grievances, as incorrectly claimed by the applicant. The applicant has not submitted any formal representation. Instead, the applicant has submitted a grievance dated 23rd April, 2026 through the Staff Grievance Redress System requesting deferment/exemption from rotational transfer on the ground of his son’s education. The ordersheet of 07th August, 2026 shows that the portal mentioned in clause 9 of the transfer policy is the one meant for making representations against transfer and it has many drop down options and one of them is transfer. The ordersheet, however, shows that the learned counsel for the applicant had submitted that the applicant had made his representation to the respondents vide e-mail on 13th May, 2026. Respondents were, therefore, directed to clarify whether they received any such e-mail from the applicant.
This e-mail was prior to the order of transfer. Learned counsel for the applicant submitted that the applicant had made representation against the order of transfer on 21st June, 2026.
In the matter of Ripudaman Singh Yadav v. State of M.P., 2019 SCC OnLine MP 1658 (Madhya Pradesh High Court), it has been held thus:-
“4.For a public servant to strive towards excellence, it is of utmost importance that fair and equitable opportunities are made available by the State. One of the means to achieve this goal of providing equitable opportunities by the State is to make available healthy and stress-free working environment for a public servant. A stress-free working environment is inter alia possible when the State, functioning as an employer, while effecting transfers takes into account not only the administrative exigencies/public interest but also the genuine personal problems of the public servant liable to be transferred. A balance has to be struck by the employer which is though difficult but not impossible to achieve. Every government in it’s capacity as an employer owes it to its employees. If this balance between the administrative exigency and personal inconvenience is kept in mind before every event of transfer, the cause of heart burning amongst public servants under transfer would reduce to the minimum thereby creating a healthy and congenial atmosphere between the employer and employees which in turn contributes greatly to the over all development of the particular institution and as well as the nation.
5.In the conspectus of the aforesaid discussion, this Court is of the considered view that the public servant whose children are pursuing their career in the higher secondary stage of education, ought not to be disturbed barring emergent situation where transfer cannot be avoided or deferred.
6.The aforesaid observations cannot be turned into direction due to inherent limitations of the power of judicial review. Therefore, this Court requests the State and its functionaries to keep the aforesaid principle in mind while subjecting transfers particularly of such public servants whose children are in Class-11th and 12th.”
In the case of Director of School Education, Madras and Others versus O. Karuppa Thevan and another, 1996 (1) SLR 225, it has been held that “Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent.”
From these two authorities, it is clear that education of children should be given due consideration while effecting transfer. In the case of Ripudaman Singh Yadav (supra), direction was given to the respondents to reconsider its decision of transfer of the employee.
In my considered opinion and having regard to the observations of the Supreme Court in the case of O. Karuppa Thevan and another (supra), the respondents should give due consideration to the education of the son of the applicant before effecting transfer. It is pertinent to note that the applicant made representation on 21st June, 2026. Initially, the respondents denied to have received any such representation. On the last date, learned counsel for the respondents submitted that the respondents did receive the representation but contended that the applicant did not wait for the decision of the representation and on the very next day, i.e. on 22nd June, 2026, the applicant filed the present petition.
From this chronology of events, it is clear that the respondents did not have the time to decide representation as the applicant preferred this application on the very next day of his making representation. In these circumstances, I am of the view that the respondents be directed to consider the representation of the applicant and pass appropriate orders.
Learned counsel for the applicant submitted that the respondents be directed not to give effect to transfer order for a period of 08 days in case, the representation did not find favour with the respondents. This submission was opposed by learned counsel for the respondents on the ground that the Supreme Court in the matter of Manish S. Pardasani (M/s Wine Kornder) etc. etc. versus Inspector State Excise, P-1, Division, Mumbai(Suburbs) & Ors. etc. in Civil Appeal Nos. 126-156 of 2019 (Supreme Court), has held thus:-
“71)We find that the High Court while disposing of the Writ Petitions also passed the following writ/ directions in Para 20 which reads as under:
“Since an apprehension is expressed and a serious one by the petitioners, we direct that in the event the fourth respondent passes any orders adverse to the petitioners, then such orders shall not take effect for a period of four weeks from the date they are communicated to the petitioners. Since we have set aside the fourth respondent’s interim order and for the present not expressed any opinion on the contentions raised before us, interest of justice demands that the sealing of the premises by the authorities should be set aside. Therefore, the Superintendent or other functionary is directed to remove the seal, lock and key placed on the premises forthwith. This order will ensure to the benefit of such of the petitioners whose licenses are subsisting and are not cancelled. The other licences, which are no longer in operation on account of their termination, the holders thereof cannot avail the benefit of this order. However, we do not express any opinion on the remedies that are available to them and they can avail them as observed and held in the above paragraphs.”
(Emphasis Supplied)
72)In our considered view, the High Court ought not to have issued directions of this nature. It was legally not permissible to do so. Indeed, the High Court by issuing such directions which are essentially passed in anticipation of the order being passed by an appellate authority, interfered with the judicial independence of an appellate authority in deciding the appeals in accordance with law.
73)It is the sole discretion of the appellate authority under the Act to decide the appeal based on the facts involved in the appeal, and legal provisions which eventually result in passing a judicial order. No higher court can pass such directions merely on anticipation of an order being passed by an appellate authority. It is only after the order is passed, that the aggrieved person has a legal right to take recourse to a legal remedy available in law against such order by approaching to a higher forum and pray for grant of appropriate relief against such order.
74)This stage in this case is yet to arrive. The High Court should not have, therefore, pre-empted the passing of any order of the appellate authority, while deciding the Writ Petition. It is a settled law that the Court can stay or quash only those orders, which are impugned in the lis before it. A fortiori, the Court cannot stay or/and quash the orders in anticipation, before they are passed. We cannot, therefore, uphold such writ/directions issued by the High Court.”
The Hon’ble Supreme Court in the case of Manish S. Pardasani (supra) has held that no Court can pass an order in anticipation of any adverse order being passed. Therefore, the contention of learned counsel for the applicant cannot be considered. It is, therefore, rejected.
In view of the above, the respondents are directed to decide the representation of the applicant dated 21st June, 2026 on all the contentions raised therein including the contention regarding his son taking education in 10th standard by passing a reasoned and speaking order within a period of four weeks from the date of receipt of a certified copy of this order in accordance with law/ rules/ regulations/ extant circulars/ orders/ policy/ notification, etc. Till then, interim relief to continue.
It is made clear that I have not passed any order touching the merits of the matter.
With these directions, OA stands disposed of. Pending MAs, if any, stand disposed of. No costs.