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Judgment
Harvinder Kaur Oberoi, Member (J)
By way of the present OA, the applicant, serving in the Election Commission of India (ECI) as a Section Officer (SO), a Group B Post, has approached this Tribunal aggrieved of the Transfer/Posting Order dated 18.12.2024. He is also aggrieved of the OMs/Office orders dated 22.11.2024 and 17.12.2024 issued by ECI.
Learned counsel for the applicant submits that the applicant is serving as a SO and the same is a non-transferrable post. She submits that vide the impugned order, the applicant along with his post has been posted to the Chief Electoral Office (CEO) in Bihar. Further, the same has been issued in pursuance to the OMs dated 22.11.2024 and also 17.12.2024. Such action of the respondents is impermissible under the rules, governing the services of the applicant, dated 11.01.2019, according to which appointment as SO, even by way of deputation, requires consultation with the UPSC. She thus questions the posting/transfer of the applicant to the office of the CEO, Bihar.
The impugned OM dated 22.11.2024, was issued concerning temporary attachment of ECI officers to State CEO offices’. This OM amounts to amendment in the rules dated 11.01.2019. Even for amendment consultation with DOPT and UPSC is necessary. Yet without consultation, the OM was issued. As such the OM is illegal.
It was argued that vide the impugned OM dated 22.11.2024the ECI has decided to create a pool of five Flexi-posts to be operated at any level, starting from SO to that of the Secretary Level, to be carved out from the existing posts in the ECI. This pool is to be at the disposal of the ECI for posting in any state CEO office. Officers of the ECI would be under the direct supervision of the CEOs of the states, while remaining under the administrative control of the Dy. Election Commissioner of the ECI.
Further this OM issued by the ECI was modified on 17.12.2024. By way of the modification, the temporary attachment has been removed. The amended OM provides that upon transfer the headquarters of the officer would also be changed to the CEO office to which he has been transferred. These changes/amendments introduced vide OM dated 17.12.2024 amounts to a change in the service conditions of the officers/employees of the ECI subject to such postings.
Another objection raised by the applicant is that though both these OMs state that they have been issued with the approval of the competent authority, however, no such approval from DoPT or UPSC has been taken.
Furthermore, both these OMs amount to a cadre-restructuring exercise undertaken by the ECI. The same cannot be done without the consultation from DoPT. It was thus argued that vide the impugned transfer order dated 18.12.2024, under the garb of a temporary attachment, the applicant is being posted under the control of CEO, Bihar. The impugned order is changing the headquarters of the applicant and also his service conditions.
Although the transfer order and the OMs refers to the posting/transfer as temporary and shall culminate a month after the constitution of the new Legislative Assembly. However, the impugned transfer order dated 18.12.2024, mentions the posting to office of CEO Bihar, as extendable upon the approval of the Commission.
The impugned transfer order mentions the upcoming election as a reason for his transfer to CEO, Bihar. As per the applicant, the only upcoming election is in Delhi, since the tenure of the Bihar Legislative Assembly does not end till December 2025.
On the personal front also, it was stated that the applicant is the only son and is unmarried and 55 yrsof age. Responsibility of taking care of his octogenarian parents lies on his shoulders alone. He has annexed with the OA, the medical certificates of the father, who has undergone a surgery on 04.12.2024. He submits that a representation was also submitted by the applicant; however, it seems the same has been rejected. However, the rejection order is not on record.
This tribunal acknowledges that transfer ordinarily is an incidence of service, and the Courts should be very reluctant to interfere in transfer orders as long as they are not illegal. In the case of Mrs. Shilpi Bose and others vs State of Bihar and others 1991 Supp (2) SCC 659, it is held as under:-
"In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other; he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders."
However, we note that the applicant a Section Officer, is serving on a non-transferable post. Transfer policy is non-existent. The impugned OM’s give sweeping powers to the respondents to post officers to different states along with the post attached to them. Their administrative control remains with the ECI, whereas for all other purposes they are under control of the CEO, of the state. How the applicant was chosen to be transferred is also opaque. In fact, it is not a case of transfer but rather a case of posting on cadre restructuring. Whether the same is possible without amendment in the Rules is also another point.
Considering the above and in view that the challenge to the posting order, as well as the OMs preferred by the applicant, are hitting at the root of the matter. It would be appropriate if the respondents are directed to decide the pending representation and to take a call concerning the objections raised by the applicant regarding the OMs and the consequent posting/transfer order.
Accordingly, the competent authority amongst the respondents is directed to decide on the representation of the applicant within four weeks from the date of receipt of a certified copy of this order. While, completing the aforesaid exercise, the respondents shall treat the grounds taken in the OA as part of the representation and also afford an opportunity of a personal hearing to him. It is also made clear, that no coercive steps, concerning the impugned transfer/posting order dated 18.12.2024 shall be taken by respondents till that time.
The OA is disposed of in the aforesaid terms. Pending MAs, if any, are also disposed of. No costs