Involuntary transfer is not justified when there is no provision for it and when the transfer does not arise due to the non-abolishment of the post.

P.K. Misra, J.

Heard Mr. V. Raghavachari, learned counsel for the petitioner and Mrs. K. Parameshwari, learned Additional Central Government Standing Counsel appearing for respondents 2 and 3.

2. The order of transfer of the present petitioner was challenged by him before the Central Administrative Tribunal by filing O.A.No.129 of 2008 which was, however, dismissed at the stage of admission by passing the following order:-

2. We have perused the records. It is well settled principle that transfer in incidental to the service. Apart from that, the distance between Ramenahalli and Muthampatti is only forty five kilometers. Therefore, we see no justified grounds to interfere with the order of transfer. Accordingly, the OA is dismissed."

3. A counter has been filed in the writ petition, wherein the reasons for transfer have been stated as follows:-

a)In Ramenahalli B.O. there is no justification for three GDS and there is justification only for two GDS as per work load. Therefore, the petitioner, whose work load in the post of GDSMD is only 2 hours19 minutes 22 seconds, was redeployed.

b)Accordingly, leaving GDSBPM and GDSMC of the office, the petitioner was redeployed to the next nearby vacant post.

c)As per orders contained in Directorate Letter No.19-10/2004-GDS dated 09. 2004 and 17. 2006, the GDS are entitled for transfer. Accordingly, the petitioner had been transferred. Moreover, they need not be confined to a particular/same locality for ever."

4. In the course of hearing, the learned counsel for the respondent Department has produced before us several instructions issued from time to time. Since the Department has placed particular reliance upon the instruction, dated 09. 2004, whereunder, Rules were amended, it is necessary to refer to such provision. From the said instruction, it is evident that Note II (iv) below Rule 3 of the Department of Posts, Gramin Dak Sevaks (Conduct and Employment) Rules 2001 was amended as follows:-

A Sevak shall not be eligible for transfer in any case from one post/unit to another post/unit except in public interest."

5. By letter, dated 17. 2006, the Government of India has clarified as to what would constitute transfer in public interest" in the following lines:-

2. In terms of amendment to Rule 3 of GDS (Conduct & Employment) Rules 2001, a GDS is not eligible for transfer in any case from one post/unit to another post/unit except in public interest". What constitute a Public Interest" has been interpreted differently by different Circles. In order to have a uniform criteria, it has been decided to allow limited transfer facility to GDS from a post/unit to another under the existing provision of amended Rule 3 of GDS (Conduct & Employment) Rules 2001 on the following grounds:-

I. A GDS who is posted at a distant place on redeployment in the event of abolition of the post.

II. ... ... ... ...

III. ... ... ... ...

.IV. ... ... ... ...

.V. ... ... ... ...

3. The limited transfer facility to GDS from post/unit to another will be subject to fulfillment of the following conditions. The conditions mentioned below are only illustrative.

.(i) A GDS will normally be eligible for only one transfer during the entire career.

.(ii) Request for such transfer will be considered against the future vacancies of GDS and that too after examining the possibility of recombination of duties of GDS.

(iii) ... .... ...

.(iv) ... .... ...

.(v) ... .... ...

.(vi) ... .... ...

(vii) ... .... ... "

(the other provisions are not extracted, as admittedly, those provisions are not applicable to the present case). Since the department has justified transfer on the anvil of the amended Rule 3 arrayed with the explanation at para 2 (I), the matter has to be examined in the light of the said provisions.

6. In this connection, it is also necessary to refer to the earlier letter, dated 212. 2002 addressed to the Chief Post Master General by the Government, clarifying the question of re-deployment of a surplu