Mrs. Chameli Majumdar, Member (J).
1. The applicant presently working as Director Safety has challenged the letter dated 09.04.2013 rejecting the representation of the applicant for his posting at Mumbai. The said letter was issued pursuant to the order of this Tribunal passed on 22.02.2013 in OA No.456/2012 filed by the applicant. This Tribunal directed the concerned authority to consider the representation of the applicant and to pass a reasoned and speaking order. In the said OA, the applicant challenged the order of his transfer dated 09.08.2012 transferring him from Mumbai to Regional Labour Institute (for short RLI), Kanpur as in charge.
2. The grievance of the applicant is that he made a detailed representation pursuant to the order of this Tribunal, but major issues raised in the said representation were not disposed of, therefore, the impugned order is not a speaking order at all. The impugned order as well as the order of transfer have been issued with a malafide intention to harass and punish the applicant. The applicant had not completed his three years in his present posting as on 01.01.2012 to 09.08.2012 being the date of the issue of the transfer order. As such, the said transfer order has been passed in deviation of the transfer policy. The applicant has another 20 months service left for superannuation, therefore, he is entitled for a posting nearer to his hometown in terms of DOPT order. The respondents ought to have considered the medical conditions of the applicant.
3. The applicant appeared in person and strenuously argued that the transfer order dated 09.08.2012 or the impugned letter dated 09.04.2013 have been issued in malafide exercise of power. To substantiate such submission, he has brought in various facts. However, the fact remains that he has not impleaded any of the respondents by name against whom he has alleged malafide. The applicant has annexed the transfer policy. The said transfer policy says that all Gazetted Officers up to the level of Director will be subjected to the rotational transfer at specified periodical intervals. That the tenure of the officers will ordinarily be 3 to 5 years at any station depending on the nature of the posting. The period of 3/5 years at any station will be counted from the date of taking over the charge in that station. Officer completing 3 or 5 years by 31st December of an year will be considered for transfer in that year. The applicant submits that although, he did not complete 3 years in Mumbai, he has been transferred to Kanpur, which is in clear violation of the transfer policy. The other grievance of the applicant is that the applicant has been transferred only to accommodate the officer, who was just promoted as Director Safety and transferred on his promotion from Kolkata to Mumbai. The applicant strongly argued and the respondents resorted to pick and choose policy in transferring him to Regional Labour Institute of Kanpur in as much as the post of Director has been remaining vacant for about two years at Kanpur, RLI. During this period, two officers of the department were promoted as Directors Safety, but they have been retained at Mumbai. Although, these two officers have been working in Mumbai without any transfer for more than 20 years. The applicant has been suffering from various physical ailments. He had undergone many surgeries. He would be exposed to serious physical problems if, he is posted at cold places like Kanpur, Faridabad or Kolkata. The applicant will be retiring after 15 months, as such, at this fag end of his service career, he may be accommodated at Chennai, where till today, a vacancy in the post of Director Safety remains.
4. The respondents have filed their Reply denying all the allegations raised by the applicant including the allegation of mala-fide action of the respondents. The respondents interalia contended that the applicant had been demanding from the Government that the period of his service on deputation be counted towards seniority, which was not permissible under the rules. He filed an OA before this Tribunal, which was dismissed vide order dated 26.02.2013. The respondents further contended that the applicant never brought to the notice of the higher authorities about his multiple illness except submitting a few routine medical reimbursement claims. The applicant has not produced any medical advice from any appropriate authority that his ailments will aggravate in the climate of Kanpur. According to the respondents, the post of Director (Safety) in RLI, Kanpur being the head of the institute cannot be kept vacant indefinitely. Posting the new promotee to the post of Director (Safety) as in charge of an institute was not considered ideal by the administration. The applicant was looking after the functioning of RLI, Kanpur in the absence of Director Safety in RLI, Kanpur. Subsequently, another Director from RLI, Faridabad was asked to look after the functioning of the RLI, Kanpur in the absence of Director in RLI, Kanpur. The applicant earlier headed institute in Chennai and has the requisite expertise and experience. As such, he was considered to be posted as in charge of RLI, Kanpur. The officer, who has been transferred from Kolkata to Mumbai cannot be posted at Kanpur as in charge because he has been transferred to Mumbai only on his promotion as Director Safety. The said officer from Kolkata has already joined Mumbai as Director Safety. The applicant is also working at Mumbai, since an interim order was passed by this Tribunal not to give any effect to the order of his transfer to Kanpur. The department is being forced to draw the salary of the said officer from Kanpur although, he is posted to Mumbai due to interim stay granted by this Tribunal.
5. We have heard the applicant in person and Shri R.R.Shetty, learned counsel for the respondents. It appears that the transfer order was issued on 09.08.2012, when admittedly two months were left to the applicant to complete his three years' tenure at Mumbai. The respondents in Reply have admitted that the applicant joined at Mumbai on 05.10.2009. However, the respondents in appreciation of the knowledge and experience of the applicant transferred him as in charge of the institute at Kanpur, since the said post has been lying vacant for about two years. Therefore, apparently in view of administrative exigencies the applicant has been transferred to Kanpur. Both the applicant and the respondents have given a chart regarding the actual position of the posts of Director Safety at Mumbai, Chennai, Kolkata, Faridabad and Kanpur. It appears from the said chart that in Kanpur, there are two posts and in Chennai also, there are two posts, but in Chennai, only one post is vacant whereas in Kanpur, both the posts of Director Safety are vacant.
6. It is well settled by the various decisions of the Hon'ble Supreme Court in respect of the judicial review of transfer orders that an order of transfer is an incident of Government service. Who should be transferred where is a matter for the appropriate authority to decide. There is no judicially manageable standard for scrutinizing all transfers. The Courts do not have the necessary expertise for personnel management for all Government departments. This must be left in public interest, to the department heads subject to the limited judicial scrutiny. For interference with an order of transfer on the ground of mala-fide there must be firm foundation of fact pleaded and established. Such interference cannot be drawn on the basis of insinuation and vague suggestion. To challenge an order of transfer on the ground of mala-fide, nature of evidence to establish mala-fide has to be strong and convincing. We do not find that the applicant has been able to establish that the impugned transfer order has been issued in mala-fide exercise of power. That apart the applicant has not impleaded any respondent by name. As such, no opportunity to deal with the allegations of mala-fide was given to him or them. On this ground only, his challenge fails.
7. However, I am of the view that the impugned communication failed to address all the issues raised by the applicant in his representation particularly with regard to the
two officers, who were promoted as Directors Safety within last two years and who, have been working at Mumbai for more than 20 years.
8. In State of U.P. and others Vs. Gobardhan Lal, 2004 (3) Scale 574 : 2005 SCC (LandS) 55, the Hon'ble Apex Court has held that
âa challenge to an order of transfer should normally be eschewed and should not be countenance by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the necessity of the administrative needs and requirements of the situation concerned. This is for the reason that the Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the State and even allegations of malafide when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out conjuctures or submerses and except for strong and convincing reasons, no interference could ordinarily be made with an order of transferâ.
9. The applicant has repeatedly mentioned in his representation as well as in this OA, that he is due to retire in January, 2015 i.e. within less than fourteen months from now. The DOPT guidelines contained in office memorandum dated 08.04.2010 says about the rotational transfer policy of CSS officers (Central Secretariat Service Officers). In the said revised policy, the DOPT has laid down that if the CSS officer has two years of service to retire, he will not come under the Rotational Transfer Policy. DoPT being the nodel Ministry, in various other departments and offices DoPT's guidelines are followed. The officers having less than two years of service before superannuation are considered for posting as per their choice as far as possible. Rule 56 of the CCS (Pension) Rules says that every Head of the Department needs to have a list prepared every six months, who are due to retire within the next 24 to 30 months on that date. A copy of every such list shall be supplied to the Accounts Officer concerned. In 58 of the said Rule, it is provided that every Head of Offices shall undertake the work of preparation of pension papers in Form 7 two years before the date on which a Government servant is due to retire on superannuation, or on that date on which he proceeds to leave preparatory to retirement, whichever is earlier. These provisions are incorporated in service rule so as to facilitate the retirement of an officer peacefully and calmly so that he can plan his future accordingly. Unless, there are compelling reasons ordinarily he may not be disturbed or posted to far away place on the verge of retirement. This can be legitimate expectation of an employee, who has served the department for the major part of his life.
10. In the instant case, the order of transfer was issued on 09.08.2012 and the applicant was due to retire in January, 2015. But presently, the applicant has less than two years of service prior to his retirement. Very recently, the Principal Bench in Ram Swaroop Meena's case (Ram Swaroop Meena Vs. Union of India and Another reported in 2013 (2) (CAT) AISLJ 323) has quashed the order of transfer dated 07.06.2012 on the ground that the applicant was due to retire in July, 2014.
11. It is borne out in the records that there is one vacant post of Director Safety at Chennai. The function of the Kanpur, RLI Institute is being taken care of by an officer posted at Faridabad. By virtue of the interim orders passed by this Tribunal, the applicant has been serving in Mumbai as Director Safety for more than one year and now only 15 months are left before his retirement. Under these circumstances, the respondents are required to consider retention of the applicant in the post of Director Safety either at Mumbai or posting him to Chennai, which is nearer to his native place.
12. I, therefore, direct the respondents to reconsider the transfer order of the applicant taking into consideration the DoPT guidelines regarding Transfer/posting of an officer, who has less than two years of service for his retirement and take a decision within six weeks from the date of the receipt of the copy of the order.
13. With the above directions, the Original Application is disposed of. No order as to costs.