Udai Vir Singh Rathi v. Union of India & Ors.

1. Whether reporters of the local papers be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ The present writ petition has been preferred under Articles 226 and 227 of the Constitution of India assailing the legal pregnability of the order dated 11.3.2011 in OA No.2785/2010 passed by the Central Administrative Tribunal, Principal Bench (for short „the tribunal‟) whereby the tribunal has declined to interfere with the order of transfer dated 2011:DHC:3145-DB 18.8.2010 transferring the petitioner – applicant from Delhi to Andaman and Nicobar Islands on the basis of a request made by the Chief Secretary of the said Administration. The petitioner, as is manifest, had assailed the order of transfer initially in OA No.2451/2010 before the tribunal which was disposed of on 30.7.2010 requiring him to make a representation. The representation was rejected vide order dated 18.8.2010 and the order of transfer was reiterated. It was contended before the tribunal that the petitioner has an impeccable record and many laurels to his credit and had functioned extremely well in many sensitive posts in Delhi Police and, therefore, there was no justification to transfer him to Andaman & Nicobar Islands. It was also urged that the vacancies of ACP levels exist at both Delhi and its outlying segments and, hence, he should not have been transferred. It was also urged that he is going to retire on 31.12.2013 and, therefore, there was no warrant to send him to the said place. Apart from that various other personal difficulties were highlighted.

2. The tribunal placing reliance on the decisions of the Apex Court rendered in Mysore Paper Mills Ltd., Bangalore v. Mysore Paper Mills Officer Association, Bhadravati and another, 1999 6 SLR 77, B. Varadha Rao v. State of Karnataka, AIR 1986 SC 1955, Shilpi Bose v. State of Bihar, AIR 1991 SC 532, Union of India v. S.L. Abbas, AIR 1993 SC 2444 and Airport Authority of India v. Rajeev Ratan Pandey, JT 2009 (10) SC 472, Rajendra Singh v. State of UP and others, 2010 1 SLR 632 and Masood Ahmad v. State of U.P., 2007 STPL (LE) 39042 SC came to hold as follows:

3. Being of this view, the tribunal dismissed the original application. It is worth nothing this Court on 26.5.2011 had passed the following order: “Learned counsel for the respondent shall obtain instructions whether the petitioner can be accommodated at Delhi or some other place. Call on 2nd June, 2011.”

4. In pursuance of the aforesaid order Mr. Gaurang Kanth, leanred counsel for the Union of India has produced a communication sent to him which we think it appropriate to reproduce: “I am directed to refer to your letter No. K&A/UOI/SG/26/05/11/2375 dated 26.5.2011 and to say that DANIPS officers can be posted in either of these Union Territories – Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli. However, DANIPS officers cannot be posted in other adjoining States or Union Territories.

2. It is further informed that the Chief Secretary, Andaman & Nicobar Island Administration vide his letter dated 22nd June, 2010 requested for the posting of 6 more Dy. SP/ACP level officers against vacant posts, including posts of 4 Dy. SP/ACP created for Traffic, Security and Immigration offices. Subsequently, vide order dated 18.8.2010, the petitioner was transferred to the Andaman and Nicobar Island. These facts are already incorporated in the reply affidavit filed on behalf of the Ministry.”

5. We have heard Mr. Sandeep Sethi, learned senior counsel along with Mr. Arun Bhardwaj, learned counsel for the petitioner, Mr. Gaurang Kanth, learned counsel for the respondent no.1 – Union of India and Mr. Nirbhay Sharma, learned counsel for Mr.Anjum Javed, learned counsel for the respondent no.3 – Delhi Police

6. On a perusal of the pleadings before the tribunal and the delineation of the issue by the tribunal, it is manifest nothing was put forth that the order of transfer was violative of any statutory mandatory rule or is malafide. In the case of Shilpi Bose (supra), it has been held as follows: “In our opinion, the courts should not interfere with a transfer order which is 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 mala fide. 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.”

7. In National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, (2001) 8 SCC 574, it has been held thus: “No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other 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 of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals 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 management, as against such orders passed in the interest of administrative exigencies of the service concerned.”

8. In State of U.P. v. Siya Ram, (2004) 7 SCC 405, a two-Judge Bench of the Apex Court has opined that unless an order of transfer is shown to be malafide or is in violation of statutory provisions it is not open to interference by court.

9. In State of U.P v. Gobardhan Lal, (2004) 11 SCC 402, their Lordships opined that transfer is prerogative of the authorities concerned and court should not normally interfere therewith, except when an order of transfer is shown to be vitiated by malafides, or is in violation of any statutory provision, or has been passed by an authority not competent to pass such an order.

10. In Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey, (2004) 12 SCC 299, it has been held thus: “Transfer which is an incidence of service is not to be interfered with by 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 Abani Kanta Ray v. State of Orissa, 1995 Supp (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, AIR 1993 SC 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 fides or is made in violation of any operative guidelines or rules the courts should not ordinarily interfere with it.”