Vishnu Choudhary & Ors. vs Food Corporation Of India Through Its Chairman & Ors.

“That the petitioners have wrongly invoked the writ jurisdiction of this Hon'ble Court. Admittedly the petitioners were transferred vide order dated 07.03.2025 (Annexure P-15) by the Zonal Office (North) of the Food Corporation of India which is situated at Noida (State of Uttar Pradesh) whereby the petitioner no. 1 has been transferred to the Himachal Pradesh Region of the FCI and petitioner no. 2 and 3 have been transferred to Jammu and Kashmir Region of the FCI, all within the North Zone of the FCI. As such, invoking of the writ jurisdiction of this Hon'ble Court is without territorial jurisdiction over the matter, specifically in view of the fact that the petitioner no. 2 and 3 have already joined at their respective place of posting and petitioner no. 3 is willfully absent from duty.

2.

That subject to the aforesaid objection, even otherwise, the petitioners cannot be allowed to avail to remedies simultaneously. Admittedly, the petitioners claiming them to be office bearers of a unrecognized employees’ union namely FCI Category III & IV Employees Union, also invoked the jurisdiction under the Industrial Disputes Act, 1947, the proceedings for which took place before the Regional Labour Commissioner (Central), Chandigarh. As the said Authority under the Industrial Disputes Act, 1947, declined to grant any relief to the petitioners, therefore, the petitioners insisted for refereeing the dispute to the Central Government Industrial Tribunal, Chandigarh. As such, the Regional Labour Commissioner (Central), Chandigarh has submitted his report dated 26.03.2025 and referred the matter to the CGIT, Chandigarh, for adjudication. Simultaneously, the petitioners have also filed the present writ petition challenging the aforesaid order of their transfer dated 07.03.2025 (Annexure P-15) without even disclosing the invoking of the jurisdiction under the Industrial Disputes Act, 1947. As such, on this ground also, the writ petition is liable to be dismissed being not maintainable.

3.

That moreover, as is clear on perusal of the transfer orders dated 07.03.2025 (Annexure P-15), the petitioners being in the Technical Cadre of the FCI, have been ordered to be transferred out of Punjab Region absolutely on Administrative grounds to break the cartel between these employees and the rice millers. All these three petitioners were holding the Technical post were found to be indulging in malpractices, falsification of records in order of favor a particular rice miller prior to the inspection by the Senior Officers. The record maintained by them was not as per the prescribed guidelines, indicating gross negligence and a deliberate violation of laid down procedure. As such, it was not in the interest of the Corporation to continue to post them in the same Region i.e. Punjab Region of the FCI where the petitioner no. 1 (Vishnu Chaudhary) remained posted from 16.02.2015 to 07.03.2025, petitioner no. 2 (Yatinder Verma) remained posted in the Punjab Region from 29.11.2021 to 07.03.2025 and similarly petitioner no. 3 (Durga Lal Meena) remained posted in the Punjab Region of the FCI from 12.01.2018 to 07.03.2025. The transfer is an incidence of service and in terms of Regulation 17 of the FCI (Staff) Regulations, 1971, applicable to the petitioners, an employee is liable to serve anywhere in India in the service of the Corporation. For ready reference of this Hon'ble Court, Regulation 17 is reproduced as under:-

"Transfer and tours:

An employee shall be liable to serve anywhere in India in the service of the Corporation and to proceed on tour in the course of his official duty to any place within India or abroad". Thus in all probabilities, the writ petition is liable to be dismissed with exemplary cost.”

4.

The learned Judges observe that these penalties can be imposed on a Government servant where disciplinary proceedings are initiated against him under the Rules by the competent authority. They further observe that Rule 18 of the Rules, therefore, provides for appeals against orders imposing penalties referred to and specified in Rule 8, and add :

“If an order of transfer does not amount to an order of penalty or 'any other order' falling within Rule 19, such an order does not attract and is not appealable either under Rule 18 or Rule 19.” We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words 'or other conditions of service in juxtaposition to the preceding words 'denies or varies to his disadvantage his pay, allowances, pension' in Rule 19(1)(a) must be construed ejusdem generis. Any alteration in the conditions of service mast result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave, etc. It is well understood that transfer of a Government servant who is appointed to it particular cadre of transferable posts from one, place to another it an ordinary incident of service and, therefore, does not result in any alteration of any of the conditions of service to his disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. As the learned Judges rightly observe :

“The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants.”

“10.

It is settled that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principle governing the transfer. [See N.K. Singh v. Union of India and others, 1995(1) SCT 269 (SC) : 1994(6) SCC 98]. The transfer of D.N. Mishra in this background being clearly in public interest, there was no permissible ground available to the Tribunal for quashing it. We are constrained to observe that the Division Bench of the Tribunal which made the impugned order dated 6.8.1993 quashing the transfer of D.N. Mishra on the ground of malice of the appellant as the Chairman of the Tribunal did so against the material on record and the facts beyond controversy which borders on judicial impropriety. It may also be noted that such comments were made against the Chairman without even a notice to him and as stated in the order itself after treating the application for impleading the Chairman to be deemed rejected.”

“4.

Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (see Ambani Kanta Ray v. State of Orissa, 1995 (Suppl) 4 SCC 169). Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the Court cannot interfere with it. (see Union of India v. S.L. Abbas, 1995(4) SCT 455 (SC) : AIR 1993 Supreme Court 2444). Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of operative any guidelines or rules the courts should not ordinarily interfere with it. In Union of India & ors. v. Janardan Debanath & anr., (2004) 4 SCC 245 it was observed as follows :

“No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, 2002(1) SCT 236 (SC) : (2001) 8 SCC 574".

““9. In the case of Union of India and others v. S.L. Abbas; (1993) 4 SCC 357, it is clearly observed by this Court that the scope of judicial review is only available when there is a clear violation of statutory provision or the transfer is persuaded by malafide, non-observation of executive instructions does not confer a legally enforceable right to an employee holding a transferable post. The relevant paragraph reads as under:

"7.

Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject........"

9.1

Further, following the footsteps of S.L. Abbas (supra) this Court in the case of Union of India and another v. N.P. Thomas; 1993 Supp (1) SCC 704 held that the interference by the Court in an order of transfer on the instance of an employee holding a transferrable post without any violation of statutory provision is not permissible.

9.2

This Court further curtailed the scope of judicial review in the case of N.K. Singh v. Union of India and others; (1994) 6 SCC 98 holding that the person challenging the transfer ought to prove on facts that such transfer is prejudicial to public interest. It was further reiterated that interference is only justified in a case of malafide or infraction of any professed norm or principle. Moreover, in the cases where the career prospects of a person challenging transfer remain unaffected and no detriment is caused, interference to the transfer must be eschewed. It is further held that the evidence requires to prove such transfer is prejudicial and in absence thereof interference is not warranted. The law reiterated by this Court is reproduced, in following words: -

"9.

Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset. XXX XXX XXX

"23.

.......Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising 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 indicated."

"24.

...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was illadvised."

9.3

The issue involved in the present case is somewhat similar in the case of Mohd. Masood Ahmad v. State of U.P. and others; (2007) 8 SCC 150 wherein this Court in paragraph 8 has observed as thus: -

"8.

..... In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee......"

9.4

It is not tangential to mention that this Court in the case of State of Punjab v. Joginder Singh Dhatt; AIR 1993 SC 2486 observed as thus: -

"3........It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting........."

9.5

It is also imperative to refer the judgement of this Court in the case of Ratnagiri Gas and Power Private Limited v. RDS Projects Limited and Ors.; (2013) 1 SCC 524 where it reiterated one of the pertinent principles of administrative law is that when allegations of malafide are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer. The relevant excerpt is reproduced as thus:

"27.

There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned........"

10.

In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India.”