1. By this O.A. the applicant has challenged the transfer order dated 7.6.2002 (Annexure A-4) by which he has been transferred on same station from one section to the other on the ground that he is being transferred on a lower post of PWI from scale 7500-10000 to 6500-10500 to frustrate the interim order passed by the Tribunal in O.A. 58/2002 and in order to accommodate Shri D.K. Gupta.
2. The brief facts as narrated by applicant are that he joined as PWI in 1979 and got his promotions from time to time and was lastly promoted as CPWI vide order dated 10.6.99 (Annexure A). He was given regular promotion vide order dated 1.12.99 and he resumed the duties as CPWI in the scale of 7500- 11500 now redesignated as Sr. Sec. Eng.
Permanent Way. He has submitted that Mehsana is divided in two Sections (1) South Section which covers from Mehsana to Ahmedabad and (2) North Section which covers Mehsana to Palanpur. He submits there are only two sanctioned posts of Sr. Sec. Eng. One is held by him and the other by Shri H.J. Patel however in order to accommodate one Shri G.K. Gupta who was undergoing penalty in 1999 they wanted to cancel the promotion order of applicant. At that stage applicant approached the Tribunal by filing O.A. 58/2002 and Tribunal was pleased to restrain the respondents from reverting the applicant from the post of CPWI (Annexure A-3). It is alleged by applicant that under pressure from Shri G.K. Gupta the respondent No. 2 has issued the order dated 7.8.2002 (Annexure A-4) inspite of interim order in his favour to the applicant's detriment by posting him in a lower post against Shri S.N.Shakil in the scale of 6500-10500 under Sr. Sec. Eng. P way Mehsana (North) and in place of applicant Shri G.K. Gupta is to be promoted.
Thus indirectly the order passed by the Tribunal is violated as he has been posted on a lower post which amounts to contempt of Court. He has also submitted the duties of CPWI and PWI are different and he would have no power of CPWI apart from the fact that he cannot be posted under the same ranked officer therefore according to him the transfer order is arbitrary, illegal, misuse of power and violative of Articles 14 and 16 of the Constitution. He has further submitted that creation of post can only be done by the General Manager and DRM has no power to create the post. He has thus sought following relief(s): (A) The Hon. Tribunal be pleased to declare the impugned order issued by the respondent No. 2 for posting the applicant under Sr.
Section Engineer Mehsana (N) and disturbing the applicant from the post of Sr. Section Engineer Mehsana (S) as illegal, unjust, arbitrary and in violation of Articles 14 and 16 of the Constitution of India and be pleased to quash and set aside the same and direct the respondents to continue the applicant on the post of Sr. Section Engineer (S) Mehsana and allow to discharge all the powers and duties of Sr. Section Engineer.
(B) Be pleased to declare that the respondent No. 2 has intentionally acted contrary to the interim order passed by the Hon.
Tribunal and therefore, initiated the proceeding suo moto to punish him under the provisions of Contempt of Court Act.
(C) Be pleased to declare that the respondent No. 2 has exercised the power malafide and direct to pay the special cost and compensation to the applicant for the present litigation and further direct the respondent No. 1 to take appropriate actions against respondent No. 1 for misuse of public ex-chequer money and recover the amount from the personal pay of respondent No. 2.
(D) Any other relief to which the Hon. Tribunal deems fit and proper in interest of justice.
3. When the applicant approached this Tribunal he was given an ad interim ex parte order dated 21.6.2002 directing the respondents not to implement the order as far as applicant is concerned. The respondents Counsel filed his reply opposing the O.A. on 14.8.2002 after serving copy of same on Shri M.M. Parmar said to be (junior to Mr. Pathak Counsel for the applicant). Simultaneously the respondents also filed an application for vacating the interim order on 14,8.2002 after serving a copy of same on said Shri Parmar. The said M.A. was listed on 20.8.2002 Mr. Pathak's junior Miss. Mona Mehta informed us that Mr.
Pathak is not likely to come so sought adjournment. The matter was adjourned to 23rd August, 2002 at her request. However, later Shri Pathak came and submitted that he has to file reply therefore little longer date be given. The prayer was opposed by the Counsel for respondents Mr. Shevde but since we felt applicant should be given a fair chance to file reply to the M.A. We postponed the date from 23rd August to 28th August. Today when the matter came up for hearing very heated arguments took place between both the Counsel. Mr. Shevde was pressing for vacating the interim order on the ground that applicant has been posted under CPWI (North) as he is due to retire on 31.8.2002 and on this route there are certain tracks where derailment takes place frequently so it was necessary for the next incumbent to get acquainted with those points so that they could be attended to immediately as CPWI is safety category post and once Shri H.J. Patel retires he would not know about such problems in this Section.
4. However Mr. Pathak Counsel for the applicant submitted that he has not been supplied the copy of reply or application which was vehemently opposed by Mr. Shevde, who stated that he had handed over copies to Mr.
M.M. Parmar on 14.8.2002 itself who is also Mr. Pathak's junior therefore, it is wrong to say that copies are not supplied. Moreover on 20th August also when Miss. Mona Mehta another junior to Mr. Pathak appeared and later Mr. Pathak appeared, they never stated that the copy is not supplied otherwise he could have given another copy. Thus it is only a delaying tactics and nothing else which should not be permitted.
Mr. Shevde got so worked up due to the attitude of applicant's Counsel that he offered to argue the matter on the basis of applicant's O.A.itself. We have mentioned all this because these kind of things must be brought to an end. We were rather pained to see how the elete class of Advocate could behave in such fashion. We must say that the show was not at all in good taste and once Mr. Pathak admitted that Mr. Parmar is his junior in High Court he could not have denied having been served a copy of the reply and M.A. In case his junior did not inform him, he should take his junior to task instead of blaming the respondents' Counsel that he has not served a copy to him. We had specifically asked Mr. Pathak whether Mr. M.M. Parmar is his junior or not. He stated yes but only for High Court. If that be the position then according to us he cannot deny having been served a copy. Moreover if applicant had not been served the copy he or her junior should have mentioned it on 20th August itself that they do not have a copy. On the contrary when Mr.
Pathak got the date extended from 23rd to 28th August it was done specifically for filing reply to the M.A. so it is clear that unnecessary and uncalled for scene was created in the Court to get the matter delayed. We deprecate such practice. Nothing more than this be said. We only hope such incidents will not take place again.
5. Coining to the present case Counsel for the respondents submitted that the Tribunal in its ex parte order dated January 2002 passed in O.A. No. 58/2002 has restrained the respondents from reverting the applicant from the post of CPWI and as per the order dated 7.6.2002 the applicant has been posted as Sr. Sec. Eng. In the scale of 7400-11500 on the same station from one section to another and Sr. Sec. Eng., is the rcdesignation of CPWI so there is no violation of Tribunal's order.
The transfer neither changes his status nor pay scale. He has been posted in North section against a vacancy as Shri H.J. Patel the CPWI is due to retire on 31.8.2002 and there is some problem on that track.
It was with this fact in mind that applicant was posted in north section so that he may get acquainted with that section's problems and attend to them after Shri H.J. Patel retires, therefore his posting to North section was due to administrative reasons and it involves public safety. He further submitted that the applicant cannot dictate terms as to where he should be posted. He is liable to be transferred anywhere.
He has further explained that once he assumes the post he would be assigned the duties as well therefore to say today that he will not be allowed to discharge the duties of CPWI is totally misconceived. He has stated that he would be performing the duties of CPWI and he can have any such complaints only after he assumes the post that too if he is not allowed to perform the duty. He cannot insist before joining the post to be informed which staff he will supervise and what powers will be given to him. He further submitted that prior to 1999 this post was controlled by headquarter but after 1999 it is controlled by the division so DRM is the competent authority to decide where the services of an individual are required and since the transfer is on same station from one section to another that too without affecting his status or pay scale the O.A. should be dismissed in view of Supreme Court's judgment as scope of interference in transfer matters is very limited either when the order is malafide or contrary to instructions. The Counsel for respondents has submitted that neither the applicant has alleged any mala/ides against any officer nor impleadcd anyone by name nor he has shown any violation of instructions thus the interim order may be vacated in the interest of smooth administration and public safety and O.A. be dismissed.
6. None of the parties referred to any judgments at the time of arguments but after the arguments were over applicant's Counsel gave a list of citation he is relying on AIR 1991 SC 537, AIR 1980 SC 319 and 1993(3) SCC 259, 1997(1) SC SLJ 460 etc.
7. We have heard both the Counsel and considered their rival contentions. At the outset we may refer to some of the judgments decided by Hon'ble Supreme Court on the question of transfer which make it abundantly clear that the scope of interference by Tribunal in transfer matters is very limited and in normal course the Hon'ble Supreme Court has repeatedly held that Tribunals should not interfere and who is to be posted where is best to be left to authorities as in every kind of transfer cases if the Courts start interfering the wheels of administration will come to a halt.Gujarat State Electricity Board v. A. Sungomal Poshain's case reported in AIR 1989 SC 1433=1989(3) SLJ 68 (SC) the Hon'ble Supreme Court has held that transfer is a condition of service and whenever a public servant has been transferred he must comply with order and in case of genuine difficulty make representation to the competent authority for stay, modification or cancellation of the order and if not stayed must comply with the order. Similarly in H.N.Kirtania's case it was held by Hon'ble Supreme Court that transfer in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on grounds of malafides. In Union of India v. S.L. Abbas case the Hon'ble Supreme Court held who should be transferred where is a matter for the appropriate authority to decide.
In 1995(3) SCC 270=1995(2) SLJ 109 (SC) in the case of State of M.P. v.S.S. Kaurav and Ors. it was held--The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to indict the working of the administrative system by transferring the officers to proper places.
9. In this background now let us see whether the order dated 7.6.2002 can be said to be malafide or contrary to any statutory rules or instructions. The applicant has annexed the order dated 10.6.99 to show that he was promoted as CPWI but perusal of this order shows the applicant was provisionally promoted to officiate as CPWI from the scale of 6500-10500 to 7450-11500. No other order is annexed by the applicant though referred to so we do not know what are the contents of those orders. Any way applicant has himself stated that respondents had sought to cancel his promotion but he approached the Court and got a stay order. We have seen the said order. It was an ex parte order and restrained the respondents from reverting the applicant from the post of CPWI till next date. Whether cancellation of his promotion is right or wrong is subject matter of the other O. A. which shall be adjudicated upon when that matter is heard so the status of applicant will be decided in that case after hearing the other side. The respondents while issuing the impugned order were fully aware of the said order they have therefore specifically stated that due to Court's order Shri D.F. Yadav is continued as SSE (P. Way) in the scale of 7450-11500 but it is provisional till the final outcome of O.A. No.58/2002. The respondents' Counsel also made a statement that so long the Court's order continues the applicant would work as CPWI in the scale of 7450-11500 therefore it cannot be said that the Court's order passed in O.A. No. 58/2002 is violated as they have posted him as CPWI which according to applicant's own averment is now redesignated as Sr.
Sec. Eng. In the scale of 7450-11500 therefore neither his status nor pay scale has been changed. Now what duties are assigned to him would be known only after he assumes the charge. It is only apprehension of applicant that he will have no power or will not be allowed to function as CPWI. In view of the categorical statement made by respondents' Counsel we have no doubt that once the applicant joins he would be allowed to function as CPWI. Moreover what is important is the administrative exigency due to which he has been posted there, what are the problems of a particular section in Railways would only be known to the administration. Sitting here in Court we cannot even visualise the problems which administration may be facing e.g. the defect in track resulting in frequent derailment. It is definitely a serious matter and involves public safety and to ensure or to acquaint the applicant with such problems if he is posted for some time under a person of same rank who is due to retire in next few days time, we do not think it can be said to be malafide or arbitrary. After all where his services are needed and can be best utilised is to be decided by the authorities and not by us. Since the ground given is reasonable, plausible and in the interest of public safety we do not think it would be proper for us to interfere in the transfer matter specifically when the respondents have protected the status and pay scale both and he is being transferred on the same station from one section to another. The questions he will not have power or staff to supervise is secondary when it is compared to public safety and after all let us see how many days are left. Today is already 28th August 2002 and Shri H.J. Patel has to retire on 31st August, 2002 so in three days how much supervision one can do or exercise the power is hardly any consideration.
10. In fact it goes without saying that whenever a transfer comes in takes little time to get settled in a new place/office to understand the problems and it is only after one understands the new set up, one starts actual working so the contention of applicant that he would have no staff to supervise or power is untenable and rejected in the circumstances of the case. The contention only shows how power hungry the man is. He can have grievance only if he is not allowed to exercise the power we do not know whether respondents are going to distribute the duties or make some other arrangements. All that will be known only after the applicant joins as Sr. Sec. Eng. North under Shri H.J. Patel.
After all he is going to retire on 31st August i.e., three days hereafter so we find no substance in the applicant's argument and since the transfer is issued in administrative exigency and keeping in view public safety we do not think the interim order can be continued any longer. Accordingly the interim order passed on 21.6.2002 is vacated.
11. It is seen that applicant is alleging motives to respondents that his transfer has been carried out to accommodate Shri G.K. Gupta who could not have been promoted according to the applicant but since neither his promotion has been challenged nor he is impleaded as a party we are not called upon to adjudicate on this issue at all. As far as malafides are concerned, applicant has not alleged malafides against any particular officer nor has impleaded any body by name nor has laid down any foundation as to why the DRM would be prejudiced against him or would pass any order due to malafide reason. Therefore, it is neither a case of malafides on facts nor on law as we are fully convinced with the explanation given by respondents' Counsel. The applicant's Counsel had submitted his client is being posted on a lower post but since the respondent's Counsel made a statement that he is posted as CPWI and would be assigned the duties also of CPWI. We have no reason to doubt their statement. Since applicant's status and pay scale is protected we find no reason to interfere in the matter. The O.A. is accordingly dismissed with no order as to costs and M.A. No.576/2002 is allowed. The interim order dated 21.6.2002 is hereby vacated.