Court comes down heavily on the Railway Board
Landmark Judgement of the CAT, Lucknow bench, which set the presidence in the Railways!
On the basis of the analysis heretofore, it is difficult to uphold the impugned order of transfer as it is a rare case of explicit violation of the guidelines of the respondents themselves! -CAT
The applicant shall be ensured to be joined at the same place of posting as immediately before the transfer order even if relieved or having joined at any other place later! -CAT
Read the Judgement in detail-
CENTRAL ADMINISTRATIVE TRIBUNAL LUCKNOW BENCH, LUCKNOW
Execution Application No. 332/00467/2022
In Original Application No. 332/00084/2022
Order reserved on : 23.09.2022
Order pronounced on : 04.11.2022
HON’BLE MR. DEVENDRA CHAUDHRY, MEMBER (A),
Dharmendra Kumar Srivastava, aged about 58 years, son of- Shri Jagdish Prasad, resident of- 5022, MCF, Township, Lalganj, Raebareli.
..Applicant
By Advocate: Shri Praveen Kumar.
VERSUS
1. Union of India through the Secretary, Railway Board, Ministry of Railway, Rail Bhawan, New Delhi.
2. The Chairman, Railway Board, Ministry of Railway, Rail Bhawan, New Delhi.
3. The General Manager, Modern Coach Factory, Lalganj, Raebareli.
..Respondents
By Advocate: Shri Sarvesh Kumar Dubey
O R D E R
Per Hon’ble Mr. Devendra Chaudhry, Member (A)
The matter at hand concerns Execution Application No. 467/2022 in re O.A No 84/2022. In the O.A, an interim order dated 22/02/2022 was passed by this Tribunal with regards to transfer order dated 17/2/2022 which is as under:
Para 4.2 of order dated 22/02/2022:
4.2. Therefore, the rarest of the rare cases, there is enough evidence to consider the interim in favour of the applicant and so it is directed that:
(i) the operation of the impugned order is stayed till the pendency of this OA,
(ii) the applicant shall not be relieved from place of current place of posting at MCF, Raebareli [RDSO Lucknow]* and shall continue to work there till the pendency of the OA,
(iii) even if the applicant has been relieved, he should be restored to the earlier place of posting and this should be done at the pain of contempt which may follow if this order is not complied with.
*corrected vide order dated 12.04.2022
1.1 The Execution Application [EA] has been filed seeking compliance with the above interim order.
1.2 However, after the passing of the detailed interim order, the respondents challenged the same in the Hon High Court Allahabad, Lucknow Bench wherein the following order was passed vide order dated 20.04.2022:
“Supplementary affidavit filed on behalf of the Petitioners is taken on
record.
In view of the order proposed to be passed, notice to Respondent 2 is
dispensed with.
The order under challenge in the present writ petition is an interim order dated 22.02.2022 passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow in Original Application No.84 of 2022 Dharmendra Kumar Srivastava vs. Union of India and others.
The Petitioners have moved an application dated 12.04.2022 along with counter affidavit for vacation of interim order dated 22.02.2022. A copy of the said application has been brought on record as Annexure SA-1 to the supplementary affidavit filed today. The said application is still pending.
Shri Shashi Prakash Singh, learned Additional Solicitor General assisted by Shri Sudhanshu Chauhan, learned counsel for the Petitioners after arguing at some length confines his prayer for a direction to the Tribunal to dispose of the application for vacation of interim order dated 22.02.2022 within a stipulated time frame. Looking into the facts and circumstances of the case, the writ petition is finally disposed of with a direction to the Tribunal to consider and dispose of the application dated 12.04.2022 filed by the Petitioners for vacation of interim order dated 22.02.2022 expeditiously, say, within a period of two months from the date of receipt of a certified copy of this order after due notice to the contesting parties.”
1.3 Thereupon the matter was taken up for consideration of vacation of interim relief but the parties have filed pleadings such as CA, RA and additional affidavits and have requested final hearing of the lis based on the pleadings and documents so filed.
1.4 Accordingly, the matter was heard finally on the O.A itself.
2. The case of the applicant in brief is that he had been posted on transfer to the post of Principal Executive Director (Stores) RDSO, Lucknow by means of order dated 25.09.2020 on promotion and in pursuance thereof, the applicant was relieved in January 2021, whereafter he joined on 28.01.2021 at RDSO Lucknow. That on 18.08.2021 that is 7 months after joining at the new post as per the earlier transfer, the applicant was further transferred from RDSO Lucknow to MCF Raibareli as MCF (Annexure A-4). That surprisingly now another transfer has been imposed on the applicant within 06 months of joining at MCF Raibareli and this time he has been posted to East Central Railway, Hajipur, Bihar in the same capacity vide order dated 17/2/2022. That the impugned transfer order to Bihar is unjustifiable inasmuch that the applicant would attain the age of superannuation shortly on 31st December, 2023 and as per the Railway Board Circular dated 31st August 2015, and 12th December, 2018, it is provided that officers due for retirement within the span of two years, should not be disturbed from the present posting. That this has been a consistent stand of the Railway Board right since 1974 when the circular dated 14th March, 1974 was issued vide PS No. 6024. Copy of the Railway Board Circulars dated 31st August 2015, 12th December, 2018, and 14.3.1974 are enclosed at Annexure A-5 and A-6 of the OA. That the impugned transfer order is against the guidelines of the respondents themselves and since great harm will come to the applicant if he is relieved and forced to join at the transferred place of posting, hence, the applicant is before the Tribunal seeking to stay the operation of the transfer order in the interim and the quashing of the same in finality. Hence, the OA.
3. Per contra, the respondents have repelled the applicant’s assertion in their detailed CA on the grounds that:
(i) the grant of interim relief was done without proper hearing of the respondents;
(ii) the interim order is in the nature of a final order and so not justifiable;
(iii) the applicant has been transferred only twice in entire career – firstly from Gorakhpur to Modern Coach Factory, Lalganj, Rae Bareilly [MCF in short hereinafter] in 2018 which was on own request and then secondly, by the impugned order of 17/02/2022 from MCF to East Central Railway, Hajipur, Bihar [ECR in short hereinafter];
(iv) the transfer to Principal Stores Director RDSO was on account of the fact that the applicant got promoted while at MCF and as there was no vacant post at MCF at the promoted level, hence, he had to be shifted to RDSO to the level of the promoted post where he was positioned for barely 08 months. That subsequently, when the promoted level post got vacant at MCF he was accommodated back at MCF vide August 2021 order and so, the posting at ECR is not unjustifiable given the rights of the employer to assign a post as per administrative exigencies;
(v) Per Clause-7 of Appendix to Indian Railway Stores Service Recruitment Rules,1969 (Annexure-SCA-1) provision exists for incumbents to any Railway / Project / Unit etc across the country and so the respondents have the right to transfer the applicant per the administrative needs;
(vi) the reliance by the Tribunal in the interim order on the Circulars dated 14/3/1974, 31/8/2022 and 12/12/2018 [Annexure No.5/6 of O.A] are not justifiable inasmuch that the Circulars – any Circular for that matter – are only advisory in nature and not mandatory as per the law laid down by the Hon Apex court judgments in the matters of – Bhagwati Developers v/s Peerless General Finance & Investment Co. & Ors., Appeal [Civil] 12640 of 1996 and later judgments as cited in para-8 of the CA.
3.1 Reliance has been further placed on the judgment of Hon Apex court in the matter of Registrar General High Court v/s R. Perachi, (2011) 12 SCC 137 {para-7 of CA} with regards to issue of transfer per se being the right of the employer to deploy its employees as per administrative exigencies and needs.
3.2 That hence the O.A lacks any merits and is liable to be dismissed.
4. The applicant apart from filing the O.A has filed RA in response to the CA and the respondents have thereupon filed Supplementary Affidavit [„SA‟ in short hereinafter].
5. The parties have been heard in extenso and all the pleadings filed examined carefully.
6. The key issue, falling for consideration is the vires of the transfer order dated 17/2/2022 per the guidelines and Circulars and the rival contentions on the law laid down by the higher courts in matters of transfer.
7. While the interim order is no longer a matter for consideration now during the course of final hearing, notwithstanding, as regards the contention of the respondents in paragraph 10 of the CA that the interim order is in the nature of a final order it would be proper to examine the short interim order dated 22/2/2022 itself which was passed on the day of the grant of interim relief immediately after hearing on interim relief. The order reads as under:
“..For Applicant: Shri Praveen Kumar
For Respondents: Ashutosh Pathak
Heard learned counsel for the parties at length on the matter of transfer qua the interim relief prayed. Learned counsel for the respondents clarified that the applicant has not yet been relieved as per information to him. Interim relief granted.
Detailed order transcribed separately. Respondents are directed that the impugned order shall not be acted upon till further orders. Respondents may file CA within four weeks. RA, if any, may be filed within two weeks thereafter.
List this case on 18.04.2022 for completion of pleadings before Deputy Registrar.”
Evidently, it is inexplicable that the above order is in the nature of a final order because the order clearly states that while interim relief is granted the respondents have to file CA in four weeks and RA if any thereafter by the applicant – which implies that the order was interim in nature and opportunity to file CA etc., before arriving at a final decision with regards to the relief of quashing sought by the applicant. The stay cannot be considered a final order by the very nature of it and so to assert that it is final in nature shows misconceived understanding of law. Hence this assertion of the respondents that the interim order is in the nature of a final order is not justifiable and held against them.
8. Similarly the assertion of the respondents that they were not given adequate opportunity before passing of the interim order is also, now, not of much relevance because we are now hearing the O.A finally, however, given its assertion in paragraph 5 of CA, it again seems a misconstrued understanding inasmuch that the short order of 22/2/2022 as seen above was proclaimed in open court upon hearing of the ld counsels of both the parties including that of the respondents – represented by Shri Ashutosh Pathak as also recorded in the order sheet of that date. This would be clear from the order-sheet extracted in the earlier paragraph of this judgment above. Hence, this statement of the respondents is not justifiable apart from being scurrilous in nature for which the respondents open themselves to contempt of court by such statement. However, taking a lenient view this aspect is not followed up further down the road
of contempt by this Tribunal. Nevertheless, the point of the interim relief being granted without due hearing is held against the respondents.
9. The next assertion by the respondents in their CA is that the applicant has been transferred only twice in his life career and so the applicant should not resist the impugned transfer order. However, this initial assertion in the CA was immediately retracted by the respondents after the applicant submitted in his RA that he had been transferred 16 times in his career. An unconditional apology was also submitted by the respondents for this erroneous assertion. So the point of only two transfers asserted to by the respondents stands extinguished. However, the fall-out from this point nevertheless remains inasmuch that the applicant has been a dutiful officer and has joined every place of posting in the last 16 odd transfers, ranging from Gujarat to Maharashtra to Rajasthan, Bihar etc which is a plus point in his conduct with regards to transfer compliance. Therefore, any assertion by the respondents that the applicant is recalcitrant with regards to current transfer is unjustifiable and so held against them.
10. As regards the central issue of the vires of the transfer order itself with regards to the rival interpretation of the Circulars / guidelines, it is important that the same are examined carefully for which purpose the same are extracted below:
Paragraph 1(vii), (viii), (xiii) of Circular dated 31/8/2015 – Annexure A-5:
(vii) Normally, minimum tenure on a particular post at a time will be 2 years and maximum tenure will be 5 years. For sensitive posts, maximum tenure will be 4 years. Minimum tenure will not be applicable for Junior Scale /Senior Scale officers of Group ‘A’. However, in administrative exigencies, relaxation may be granted by cadre controlling officer.
(viii) Total stay at a stretch at a particular station should not be more than 10 years and the total cumulative stay (in broken spells) should not be more than 15 years. Deputation to PSUs and other Ministries will not be counted for this purpose. This will be implemented in a phased manner.
(xiii) Transfers other than those caused due to promotion, deputation/return from deputation, retirements etc. will be generally issued from January to March. However, in administrative exigencies, transfer orders may be issued as and when required.”
Evidently, as regards the Circular of 31/8/2015 [‘2015 Circular’ in short hereinafter] above, the ld applicant counsel‟s argument that per paragraph 1(viii) the minimum tenure at any post is of two years and by transferring the applicant thrice in short spans of time – firstly on 25/9/2020 from MCF to RDSO, then secondly from RDSO to MCF vide 18/8/2021 and thirdly from MCF to Bihar now vide the impugned order, this paragraph has been violated notwithstanding, for whatever reasons of promotion or lack of post etc., and so the respondents cannot be let off lightly for these frequent transfers. The respondents however, stomp on their right of transfer as per administrative needs and that transfer is an exigency of service in light of the catena of judgments of the higher courts which also leaves little room for the courts to interfere judicially in matters of transfer. Thus, on the basis of admitted facts per se, it is clear that the impugned transfer order is not compliant with the condition 1-(vii) and (xiii) of the Circular dated 31/8/2015.
11. The applicant has challenged the transfer order on the grounds of his being superannuated in less than two years and so the impugned transfer order is in violation of the paragraph (iii) of the transfer policy dated 12/12/2018 issued by way of amending the 2015 Circular as also the Circular PS 6024. In order to adjudicate this point, it would be good to examine the Circulars and so relevant portions of the same are extracted below:
Circular dated 12/12/2018 – Annexure A-6
Government of India
Ministry of Railways
Railway Board.
No. E(O)III-2014/PL/05 New Delhi, dt. 12.12.2018
The General Managers,
All Indian Railways/Production Units
(As per Standard List),
Sub: Addendum to the Comprehensive Transfer Policy guidelines issued vide Board‟s letter of even number dated 31.08.2015.
In partial modification to the Comprehensive Transfer Policy guidelines issued vide Board‟s letter of even number dated 31.08.2015, particularly with reference to para 1(i) & the para 1 (viii) regarding the total stay of Railways officers at the stretch at a particular station, it has been decided with the approval of the Competent Authority that-
(i) Stay only at Head Quarters of the Zonal Railway should normally be counted for the purpose of continuous stay.
(ii) One full tenure posting in Railway Board should be exempted for the purpose of counting continuous stay at a station.
(iii) Officers due for retirement within the span of two years should normally not be disturbed from the present posting.
(iv) Critical/Terminal illness of dependents requiring staying at a station for the sake of continuity of treatment can be considered on the case to case basis.
(v) Officers with children who are at a crucial stage of education, i.e. Board level exams (IXth & XIIth only) should be exempted till such time the child is in the crucial classes.
Sd/-
(S. K. Agarwal)
Joint Secretary (Gaz)
Railway Board
PS 6024 dated 14/3/1974:
“Sub.- Transfer of Staff nearing Superannuation.
In supersession of the instructions contained in this office letter No. 940-E/O-II(EIV), dated 2-9-1960 (P.S. No. 920) it has been decided that the transfer of staff from one station to another in the same grade should not, as a matter of principle be made within two years of the date of superannuation.”
Evidently, it is seen that an officer may not be transferred if there are two years left for retirement and so, the paragraph (iii) of the 12/12/2018 Circular restricts transfer of a retiring employee which itself is nothing new inasmuch that it finds mention in PS 6024 of 1974 issued earlier, implying thereby that it is a long standing instruction. In this context the applicant has asserted that he will superannuate on 31/12/2023. This date is clearly less than two years from the date of transfer viz 17/2/2022. So clearly, the impugned order is also against the transfer policy of 12/12/2018 read with PS 6024 and so the challenge of the applicant that the transfer order is against the Circular of 2018 is upheld.
12. Now, factually therefore, there is nothing left to be considered with regards to transfer being in violation of the transfer policy guidelines stated by the respondents themselves in the context of the peculiar set of circumstances and facts in the case at hand.
13. We may now advert to the rival citations presented by the parties. In this regard, the applicant has cited the following –
a. CAT PB SK Chopra & 2 Ors v/s Union of India through Secretary M/o Health and Family Welfare;
b. Prabhat Ranjan Singh & Anr. v/s RK Kushwaha – in the Supreme Court CA 9176 of 2018 decided on 07/9/2022;
c. CAT Mumbai – S Bharthi v/s Union of India through Secretary M/o Labour and Employment;
d. CAT Lucknow Bench – Puneet Kumar v/s Union of India through GM NR and Uday Pratap v/s Union of India;
The ld respondents’ counsel has given the following citations:
a) Registrar General High Court v/s R.Perachi, (2011) 12 SCC 137;
b) Bhagwati Developers v/s Peerless General Finance & Investment Co. in CA 12640 of 1996;
c) Michelin India Pvt Ltd. – [2015] 192 Comp Cas 152 and some others in para-8 of their CA;
d) K.Kuppusamy & Anr. v/s State of TN & Ors. – [1998 ] 8 Supreme Court Cases 469;
e) Dr Rajinder Singh v/s State of Punjab (2001) 5 SCC 482;
f) MP Ramgarhia v/s State of Punjab (2005) 12 SCC 426;
14. As regards citations by ld applicant counsel, the CAT Lucknow Bench citations are with regards to interim relief and hence their value has to be discounted as we do not know the final fate of the concerned cases especially when the current O.A is being taken up for final judgment. As regards the Chopra [supra] matter the judgment has placed reliance on the factoid of the applicants therein retiring the next year and hence the impugned order of transfer was not upheld. The respondents have countered this judgment by pointing out that the matter concerns a Group ‘B’ officer which stand is not justifiable inasmuch that the ratio of a judgment applies and it does not matter whether the applicant therein was a Gp B officer – the ratio is of transferring on the verge of retirement which is prohibited by the respondents themselves per their transfer guidelines – this ratio shall remain as per law laid down in matter of the doctrine of decidendi and is in a way stare decisis so the respondents contra is not justifiable and has to be considered not worthy of consideration which point is also made by the applicant in the RA.
15. This brings us to the other two cases cited by the applicant. As regards Ranjan Singh [supra], it lays down that IREM has statutory force as the said rules have been made in the statutory exercise of powers under Article 309 of the Constitution [para-25 of judgment refers]. This is fine inasmuch that the Circular of 12/12/2016 of the M/o Railways does mention in para (iii) that officers due for retirement within a span of two years should normally not be disturbed from the present posting which is how the Chopra [supra] judgment came about and per information the same has attained finality inasmuch that it has not been set aside by any higher court. Fact remains that the transfer policy itself is notified per the powers vested in the respondents which can be traced to Article 309. The question therefore, is as to how much weightage to give the same when considering a violation of same in a given case.
16. We may weigh the same in light of the citations given by the ld respondents’ counsel. On doing so we find that the Perachi [supra] judgment concerns transfer of an employee under Vigilance cloud. In para-31 it is stated that –
“As seen above, the transfer was purely on the administrative ground in view of the pending complaint and departmental inquiry against the first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit…”.
In the case at hand we do not have any vigilance matter so the circumstances in Perachi [supra] are distinguishable on facts. More so, in paras 21-22 of the judgment, the Hon Apex court while emphasizing the point of transfer being an incident of service has notwithstanding held in para -22 that – “…there are no judicially manageable standards for scrutinizing all transfers…”.
17. Thus, what can be best done is to actually see as to what are the peculiar circumstances in the case at hand, and then see how they match with regards to the Circulars notified by the concerned executive authorities. On doing so we find that firstly, the present case is indisputably one in which the applicant is due to retire in less than two years’ time and still he has been transferred. Secondly, that the administrative need of the respondents to post an incumbent in his place is not very convincing under the circumstances because the officer – Mr Jain – who was transferred in place of the applicant did not join and so he had to be replaced by an officer who had to be transferred all the way from Bilaspur – South Eastern Railway to the incumbents place vide an order dated 23/2/2022.
17.1 This factum is important from the point of view of the EA filed by the applicant, wherein, in para-5 it is stated that when the stay order was granted by this Tribunal vide 22/2/2022, the respondents issued another order dated 23/2/2022 [Annexure No.3 to EA] modifying the impugned order of 17/2/2022 whereby the reliever of the applicant was changed. The question before this Tribunal is thus that – Does this qualify “public interest”. Does the public interest change constantly – once – when Mr Jain was transferred and now again when another incumbent is coming from some 700 kms distance – SECR Bilaspur to Lucknow {para-3 of the applicant’s letter dated 25/2/022 refers} – when the sitting incumbent Mr Jain stationed in Lucknow is unable to join the applicant’s post.
17.2 Firstly, what kind of public interest is this where more and more expenditure is done of public money in public’s name which actually may border on wastefulness and secondly, why has the administrative need changed between Mr Jain and the new incumbent. Was Mr Jain’s posting not an administrative need or in public interest and the new incumbent’s transfer is? How does the court assess these changing sand dunes of public interest and administrative need assessment in the desert of transfers in the case at hand? Is this not arbitrary use of the power vested in the respondents to transfer its employee per public need and administrative exigency? The Hon Apex court has the matter of E.P. Royappa v. State of T.N., (1974) 4 SCC 3, Hon’ Bhagwati, J., speaking for the majority, categorically laid down that along with unjustness and unfairness, arbitrariness is a distinct facet of Article 14. The three facets form independent anvils on which impugned State actions were to be tested when assailed on the touchstone of Article 14. The key portion reads as under:
“From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”
The ruling in Royappa [supra] was followed in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, wherein with regards to public interest it was held that “in the interests of the general public” is vague and undefined and, thus, the power conferred by this provision is excessive and suffers from the vice of “over-breadth”. Hon Bhagwati, J. (fresh off the ruling in Royappa case), sought to further amplify the doctrine of arbitrariness and it would be opposite to reproduce the oft-quoted para:-
• “equality is antithetical to arbitrariness… Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, there would be no procedure at all and the requirements of Article 21 would not be satisfied.”
Thus there has to be some level of rationale in exercise of absolute executive authority. Where arbitrary it can be challenged. The circumstances and facts above do point out towards a liberal dose of arbitrariness and so there is scope for judicial intervention here.
18. Thirdly, this Tribunal is not even going into the events narrated in the paras-6 to 10 the EA which point to the conduct of the respondents to make every effort in their belt to thwart the interim relief granted. Surprisingly nothing has been said by the respondents in their Affidavit filed subsequent to the EA with regards to deferment of execution proceedings concerning the interim relief granted by this Tribunal and the only point stressed is that transfer is an incident of service and so protected fully per the executive authority qua the Circular of 18/01/1969 of the Indian Railway Stores Service Recruitment Rules, 1969 that the service rules permit all India transfer. This aspect was never in debate and so the citation of the rules is quite superfluous and does not help the respondents as the applicant has no-where challenged the rules qua all India transfer. In fact the applicant has been so compliant that following the modified order of 23/2/2022 the applicant made a futile representation to his superiors [Annexure No.2 of EA]. In fact, the applicant dutifully even complied with the orders for joining at Bihar following the order of 23/2/2022 despite an interim in his favour which [order of 23/2/2022] is ab initio contemptuous and not sustainable in the eyes of law and then therefore, now for the respondents to plead that as the applicant has joined at his new place of posting making the O.A infructuous is nothing but a huge distortion of justice at the hands of the respondents – more so as it is now being touted as a final victory by pleading that as the applicant has joined the new place at Bihar, hence, there is nothing left in the case of the applicant now.
19. Therefore, the issue boils down to the final weighing down of the Circular of the respondents themselves of dated 12/12/2018. Should its compliance be insisted upon in terms of condition – (iii) – restricting respondents rights to transfer an employee due to retire in two years’ time given the above set of peculiar circumstances in the case at hand. Should we classify this as an incident of service? – and so, not deigning compliance. Even if we dwell on the word – normally – used in paraphrasing the sentence – “should normally not be disturbed” – in the paragraph (iii) of the Circular of 2018, the respondents fail to show any abnormal circumstances which necessitated over-running of the phrase “normally not be disturbed”. Black’s Law Dictionary defines – “normal” as – ‘According to regular pattern’ – what this implies is that per regular pattern the employees should not be disturbed if they are close to retirement. Even otherwise, the principle of “noscitur a sociis” [Black’s Law Dictionary – page 1087 – 8th South Asia Edition – would require – A canon of word construction holding that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it – which would imply that the word “normally” when read with the word “disturbed” would incline prudence to the side of disturbance only and only in exceptional circumstances.
19.1 As against this, what we have instead is that the actual incumbent – Mr Jain – abnormally transferred in place of the incumbent is not joining and some other person is brought overnight to replace the applicant from 700 km afar – even after the transfer of the applicant being stayed by this Tribunal in open court, notwithstanding detailed transcription being issued later, and so the court how-so-much it may wish to give the benefit of executive authority to the respondents to transfer at will and fancy, finds it difficult in the extant circumstances to be able to support their wishes and diktat. So the impugned transfer order seems to be an exception in reverse against the respondents rather than giving any exceptionable reason to transfer the applicant.
20. The citation of Rajinder Singh [supra] and the Ramgarhia [supra] judgments by the ld respondents counsel are about the sanctity of service rules which are no-where challenged by the applicant and so the citations are mere misplaced peacock feathers, more so as they concern promotion/recruitment issues rather than transfer matters. The other citations of the Respondents with regards to transfer being an administrative right of the employer and the limited scope for judicial intervention which points have been dealt with comprehensively above already.
21. This then brings us to the end of the analysis of the peculiar facts and circumstances of the case at hand. On the basis of the analysis heretofore, it is difficult to uphold the impugned order of transfer as it is a rare case of explicit violation of the guidelines of the respondents themselves and so, as a rare exception in the melee of transfer cases, considering the point of transfer being an incidence of service and the employer having full rights but the same cannot be exercised arbitrarily – a case of ‘notablis excessus’ – a very great excess – howsoever absolute they may be and so, as a result the impugned transfer order has to be perforce quashed. It is accordingly directed that OA is allowed as per following directions–
a. The transfer order dated 17/2/2022 is quashed;
b. The applicant shall be ensured to be joined at the same place of posting as immediately before the transfer order even if relieved or having joined at any other place later;
c. Compliance of this order be ensured forthwith at the pain of contempt in failure to do so.
22. No costs. MAs outstanding stand disposed.
(Devendra Chaudhry)
Member (A)