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2016 Supreme(P&H) 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AJAY KUMAR MITTAL, RAMENDRA JAIN, JJ.
Union of India and another - Petitioners
Vs.
The Central Administrative Tribunal, Chandigarh Bench and another - Respondents
CWP No. 18210 of 2016
Decided On : 29-09-2016
Advocate Appeared:
For the Petitioners: Mr. Puneet Gupta
For the Respondent: Mr. Rohit Sharma
The main legal point established in the judgment is that transfer orders should not be interfered with by the Courts unless they are in violation of any statutory rule or on the ground of malafide.
Headnote:
Transfer - Administrative Tribunal - Constitution of India - 226/227 - Policy guidelines dated 25.11.2009 - Mrs. Shilpa Bose and others Vs. State of Bihar and others, 1991 (Sup2) SCC 659, Union of India Vs. S.L. Abbas, 1993(4) SCC 357, Union of India Vs. Ashok Kumar and another, 2008(1) S.C.T. 704 - Dr. Dev Prakash Chugh Vs. State of Punjab, 2005(4) SCT 726
Fact of the Case:
The petitioner challenged the order of the Central Administrative Tribunal quashing the transfer order of respondent No.2 and directing the petitioner-department to continue respondent No.2 at Bathinda till he is given the posting of his choice.
Finding of the Court:
The Court found that the transfer order of respondent No.2 was passed keeping in view the overall interest of the organization and due to administrative exigencies, and thus, the Tribunal erred in quashing the transfer order.
Issues: The main issue was whether the transfer order of respondent No.2 was in violation of any statutory rule or on the ground of malafide.
Ratio Decidendi: The Court held that transfer is an incidence of service and the Courts should not interfere with the transfer orders unless the same are in violation of any statutory rule or on the ground of malafide.
Final Decision: The writ petition was allowed and the impugned order quashing the transfer order of respondent No.2 was quashed.
Ajay Kumar Mittal, J.
1. Challenge in this petition under Articles 226/227 of the Constitution of India, is for quashing the order dated 13.07.2016, Annexure P.4 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (in short, “the Tribunal”) whereby the original application filed by respondent No.2 has been allowed by quashing the transfer order and directing the petitioner–department to continue respondent No.2 at Bathinda only till he is given the posting of his choice. Further prayer has been made for staying the operation of the impugned order dated 13.07.2016.
2. Briefly, the facts necessary for adjudication of the controversy involved as narrated in the petition may be noticed. Respondent No.2 was appointed as Manager Grade-I on 04.11.1998. He was promoted as an Assistant General Manager w.e.f. 20.09.2012. He was posted at Bangalore prior to his posting at Bathinda vide order dated 22.05.2014, Annexure A.5. Vide order dated 03.03.2016, Annexure A.1, respondent No.2 was transferred from Bathinda to Mumbai in general order of transfers. Aggrieved thereby, respondent No.2 approached the Tribunal. By order dated 22.03.2016, Annexure P.1, the Tribunal stayed the transfer order of respondent No.2. Through order dated 13.07.2016, Annexure P.4, the Tribunal quashed the transfer order dated 03.03.2016 and the order dated 17.03.2016, Annexures A.1 and A.2 respectively, with the further direction that respondent No.2 shall continue to be posted at CSD Depot, Bathinda till he is granted compensatory posting at his choice station, as per policy guidelines dated 15.11.2009, Annexure A.3. According to the petitioners, the entire case of respondent No.2 was based upon the policy guidelines, Annexure A.3, which are merely guidelines and not any statutory rules. Respondent No.2 had made a representation on 04.02.2016, Annexure A.10, requesting for three stations of his choice. His request had not been rejected but was kept pending vide order dated 17.03.2016, Annexure A.2, stating that the same will be considered at an appropriate time. Further, when respondent No.2 was transferred from Guwahati on 07.06.2010 to Head Office Mumbai, he approached the Guwahati Bench of the Tribunal by filing an application which was disposed of vide order dated 17.06.2010, Annexure A.7 with the direction that a decision be taken on his representation dated 09.06.2010 by passing a speaking order. Thereafter, speaking order dated 25.06.2010, Annexure R.2 was challenged by respondent No.2 by filing original application before the Tribunal at Guwahati which was dismissed on 01.07.2010. The writ petition filed by respondent no.2 before the Guwahati High Court was also dismissed on 06.08.2010. Respondent No.2 filed another application before the Tribunal which was also dismissed on 10.09.2010. Hence, the instant writ petition by the petitioners impugning the order dated 13.7.2016 passed by respondent No.1.
3. We have heard learned counsel for the parties.
4. Learned counsel for the petitioners submitted that the Tribunal erred in passing the impugned order dated 13.07.2016 quashing the transfer order of respondent No.2 with a further direction that he shall continue to be posted at Bathinda till he is granted compensatory posting at his choice of the station as per the policy guidelines dated 25.11.2009. It was further submitted that the policy guidelines dated 25.11.2009 are only advisory in nature and are not legally enforceable by an official of the department. Reliance was placed on judgments in Mrs. Shilpa Bose and others Vs. State of Bihar and others, 1991 (Sup2) SCC 659, Union of India Vs. S.L. Abbas, 1993(4) SCC 357 and Union of India Vs. Ashok Kumar and another, 2008(1) S.C.T. 704.
5. On the other hand, learned counsel for respondent No.2 supported the impugned order and relied upon judgment of this Court in Dr. Dev Prakash Chugh Vs. State of Punjab, 2005(4) SCT 726.
6. Admittedly, respondent No.2 was appointed as Manager Grade
