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2007 Supreme(P&H) 2243
PUNJAB & HARYANA HIGH COURT
Hemant Gupta and Mohinder Pal JJ.
Union Of India
Versus
Ashok Kumar
Civil Writ Petition No. 11380 of 2007,
Decided On : DECEMBER 21, 2007
The main legal point established is that administrative guidelines for transfers do not confer legally enforceable rights unless a transfer is shown to be vitiated by mala fides or in violation of statutory provisions.
Headnote:
Transfer - Central Administrative Tribunal - Administrative Tribunals Act, 1985 - Section 19
Fact of the Case:
The case involved the challenge to the transfer of a Fireman Grade-I from Bathinda to Suratgarh. The respondent had made a complaint against a colleague, and disciplinary proceedings were initiated against him. Subsequently, the respondent was issued a show cause notice for giving misleading information, and he was transferred, which was challenged before the Tribunal.
Finding of the Court:
The Court found that the transfer was within the cadre and not in violation of the posting/transfer policy. It held that the guidelines for transfer were not statutory in nature and did not confer any legally enforceable right to challenge the transfer.
Issues: The issues involved the legality of the transfer, the enforceability of the posting/transfer policy, and the grounds on which a transfer can be challenged.
Ratio Decidendi: The Court emphasized that unless a transfer is vitiated by mala fides or is in violation of statutory provisions, it cannot be interfered with. It also clarified that administrative guidelines for transfers do not confer legally enforceable rights.
Final Decision: The Court allowed the writ petition and set aside the order passed by the Tribunal, upholding the legality of the transfer.
Hemant Gupta, J.
1. The challenge in the present writ petition is to the order dated 18.05.2007 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter to be referred as "the Tribunal") whereby orders dated 17.08.2006 and 25.08.2006, Annexures A-1 and A-2 respectively, transferring respondent No. 1, were set aside.
2. Respondent No. 1 was working as Fireman Grade-I and posted in the office of Garrison Engineer, Engineer Park, Bathinda Mill Station, Bathinda. Respondent No. 1 made complaint against one Iqbal Singh, Fireman Grade-I. On the basis of the complaint, disciplinary proceedings were initiated against said Iqbal Singh. Subsequently, another communication was addressed by respondent No. 1 for closing of the case as it was pointed out that said Iqbal Singh has neither misleading attitude nor any misbehaviour.
3. A show cause notice dated 4.2.2005 was issued to respondent No. 1 as to why disciplinary action should not be taken against him for giving misleading statement/information. An Enquiry Officer was appointed since respondent No. 1 failed to respondent to the notice. Subsequently, said respondent was transferred from Bathinda to Suratgarh vide order dated 17.08.2006 which was challenged by the said respondent before the Tribunal by moving an application under section 19 of the Administrative Tribunals Act, 1985 (hereinafter to be referred as "the Act").
4. It was pointed out in reply that respondent No. 1 has been transferred on administrative ground. The cadre of Fireman is based on the Command Level seniority and, therefore, the transfer was not outside the cadre. The learned Tribunal allowed the application filed by respondent No. 1 under the Act, inter alia, holding that such transfer is against the posting/transfer policy dated 9.2.2004. It was pointed out that show cause notice dated 4.2.2005 is not a notice under CCS (CCA) Rules, 1965 (hereinafter to be referred as "the Rules", therefore, it cannot be said any disciplinary proceedings are pending against respondent No. 1 which alone will entitle the present petitioner to transfer the said respondent. It was also found that respondent No. 1 alone was transferred and that too during the middle of academic year which is not permissible in terms of the policy. Still further, the seniority of respondent No. 1 has been ordered to be reckoned from the date of his reporting the duty at new Unit which will cause prejudice to the said respondent.
5. Learned counsel for the petitioner referred to Para 4(v) of the written statement to contend that the finding recorded by the Tribunal that respondent No. 1 is to lose the seniority is factually incorrect. In the said paragraph, it has been averred that the cadre of the Fireman is based on the Command Level seniority and not at the Commander Works Engineer Level. It was also pointed out that the posting at Surtgarh is under the same Western Command and same Command Works Engineer and, therefore, the argument that the transfer is to affect the seniority of respondent No. 1 is not tenable. Apart from the said fact, learned counsel for the petitioner has stated at the bar that seniority of respondent No. 1 shall not be affected in any manner by his transfer to Suratgarh. In view of the above, the reasoning recorded by the Tribunal that respondent No. 1 shall lose his seniority is not tenable.
6. The primary reason which weighed with the Tribunal for interfering with the order of transfer was that it was mid term transfer and that disciplinary action has not been initiated against the said respondent under the Rules as required under Para 39(a) of the policy dated 9.2.2004, Annexure A-6.
7. Though factually the finding recorded by the Tribunal is incorrect that no proceedings have been initiated under the Rules. As a matter of fact, Annexure R-1 is Memorandum including the statement of imputation of misconduct issued to the respondent. Therefore, the finding recorded by the Tribunal is fa
