Judgment:
ORDER
Dinesh Maheshwari, J.
1. By way of this writ petition, the petitioner, working on the post of Assistant (C) with the respondent National Insurance Company Limited [hereinafter referred to as the 'respondent Company'] and having been transferred from Divisional Office, Jodhpur to Branch Office, Balotara, has challenged the transfer order dated 18.08.2006 (Annex.7) as being violative of statutory requirements.
2. Put in a nut-shell, the contentions of the petitioner are that a part of Transfer Policy as framed, and the consequential Administrative Instructions as issued by the respondent Company are not in conformity with the statutory Scheme related with such transfers; and that his transfer order has been issued by an officer who could not have been and has not been authorised to do so; and further that the transfer order has been issued even contrary to the terms of the Transfer Policy.
3. The petitioner has averred in the writ petition that he was appointed by the respondent Company as sub-staff on compassionate grounds by the order dated 01.12.1983 (Annex.1), he joined the services at Branch Office, Jodhpur on 19.12.1983, and he was confirmed on the post of sub-staff with effect from 19.06.1984; then, he was promoted as Record Clerk by the order dated 15.06.1989 (Annex.2) and joined as such on 27.06.1989; and then, he was promoted to the post of Assistant (C) by the order dated 22.09.2000 (Annex.3) and joined as such on 22.09.2000.
4. The petitioner has referred to the notification dated 21.12.2005 (Annex.4) whereby the Government of India issued General Insurance (Rationalisation and Revision of Pay Scale and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Second Amendment Scheme, 2005 [hereinafter referred to as 'the Amendment Scheme of 2005'] in order to amend, with effect from 01.08.2002, the General Insurance (Rationalisation and Revision of Pay Scale and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974 [hereinafter referred to as 'the Scheme of 1974']; and has pointed out that paragraph 18 of the Scheme of 1974 dealing with 'transfer and change of place of work' of the employees was substituted by the provisions contained in paragraph 11 of the Amendment Scheme of 2005 whereby the Company or Corporation may frame Transfer and Mobility Policy, as approved by its Board; and has averred that under the said provision, any employee of Supervisory, Clerical and Subordinate Staff may be transferred from one department to another in the same office, from one office to another in the same station or from one station to another only on the basis of requirement or need. [Sub-paragraph (1) of the said paragraph 18 as substituted by the Scheme of 2005 being of repeated occurrence in the discussion hereafter, has also been referred to as 'the paragraph 18(1) of the Scheme' and, similarly, sub-paragraph (2) thereof has also been referred to as 'the paragraph 18(2) of the Scheme'].
5. The petitioner has further pointed out that in pursuance to the said notification, i.e., the Amendment Scheme of 2005, the respondent Company issued a Transfer and Mobility Policy [hereinafter referred to as 'the Transfer Policy' or 'TMP'] for Supervisory, Clerical and Subordinate Staff on 17.05.2006 (Annex.5) and as per Sub-clause 5.5 of Clause 5 of TMP, the competent authority, if it considers necessary to do so to meet the office exigencies shall have discretion of restricting the number of transfers from a particular station to a maximum of 25% of the total classwise (Class III and IV separately) strength of the employees at that station and, as per subclause 5.6, a classwise list of employees for each station who have completed ten years of continuous stay at the particular station may be prepared and in the descending order of the length of stay, from the top of such list, a number equivalent to 25% may be taken out. Thus, according to the petitioner, an employee who is senior in the class shall be transferred in the first instance.
6. The petitioner has pointed out that by Clause 7 of TMP, General Manager (Personnel) of the Company is authorised to prescribe the competent authorities for issuance of various types of transfer orders under the said Transfer Policy besides framing the Administrative Instructions for implementation of various provisions of this Policy; and has averred that according the notification issued by the Central Government (i.e., the Amendment Scheme of 2005) the CMD was the only authorised person to transfer the services of the Supervisory, Clerical and Subordinate Staff and there is a provision that he may authorise any other officer in this behalf as competent authority; and has, therefore, stated the meaning that as per TMP issued by the respondent Company, he has authorised General Manager (Personnel) to make transfer order but the said General Manager has no authority to further delegate power to transfer any employee.
7. The petitioner has further averred that to his knowledge, the respondent Company has issued Administrative Instructions on the said Transfer Policy but being not in possession of such Instructions issued by the respondent Company, has placed on record as Annexure-6 a copy of the similar nature Instructions issued by another insurance company, namely, The New India Assurance Company Limited. It may be pointed out that during the course of submissions in this matter, Learned Counsel for the respondent has placed on record a copy of the Instructions so issued by the respondent Company and, as agreed, the same have been taken into consideration as substitute of the document Annexure-6. The petitioner has pointed out that the competent authority for issuance of transfer order has been prescribed in Clause 10 of such Administrative Instructions; and as per subclause (2) of Clause 10, for transfer from one office to the other within the same region, the prescribed authority is Chief Regional Manager at regional office.
8. Stating his case, the petitioner has submitted that the respondent No. 2 (the Regional Manager of the respondent Company at Jaipur) has, by the order dated 18.08.2006 (Annex.7), transferred his services from Divisional Office at Jodhpur to the Branch Office at Balotara; and, according to the petitioner, there was a stay order from Hon'ble Madras High Court wherefor the transfer order could not be put into effect. While maintaining that only the CMD or the General Manager were the competent authority to issue transfer order, the petitioner has contended that even as per Administrative Instructions, the Chief Regional Manager was the competent authority and the order issued by the Regional Manager remains unauthorised.
9. According to the petitioner, Smt. Sangeeta Vijay and Shri Ravindra Bohra were appointed as Assistant in the year 1985 at Jodhpur office and Shri Rajesh Dadhich was appointed as Assistant in the year 1987; and Smt. Sangeeta was promoted to the cadre of Senior Assistant in the month of September 2003 and she jointed her services on the promoted post at Jodhpur. The petitioner has suggested that himself having been appointed/promoted as Assistant only in the year 2000, the said three employees are senior to him in the cadre of Assistant by about 13 years and has made a comment that the said three persons 'are senior to petitioner by more than two years in the particular class'. The petitioner has given the nomenclature of the different posts in the respondent Company that are divided into four classes and has averred that being junior person he could not have been transferred. Stating himself being aggrieved by the transfer order dated 18.08.2006, the petitioner has preferred the writ petition and has taken the grounds in the manner that as per paragraph 11 of the Amendment Scheme of 2005, the CMD or any officer authorised by him may transfer an employee from one station to another and has drawn the meaning that the competent authority to transfer is CMD and he may delegate his power to any other officer and the CMD has delegated his powers to the General Manager (Personnel) but the transfer order having been issued by the Regional Manager remains unauthorised; that as per Clause 7 of TMP, the General Manager (Personnel) cannot further delegate his power to any other officer and as the authorities as prescribed under Clause 10 of the Administrative Instruction dated 15.06.2006 show that the said General Manager has further delegated his power to other officers that remains illegal and Clause 7 of TMP and Clause 10 of the Administrative Instructions dated 15.06.2006 deserve to be set aside; that as per Sub-clause 5.6, an employee in the clerical cadre Class III who is senior is required to be transferred and the petitioner having been appointed/promoted in the cadre of Assistant in the year 2000 and as Record Clerk in the year 1989 remains much junior to the aforesaid three persons and, therefore, the transfer order dated 18.08.2006 being in violation of TMP deserves to be quashed; that as per Administrative Instructions, the Chief Regional Manager at the regional office concerned may issue the transfer order but the transfer order has been issued by the Regional Manager who remains below the authority of Chief Regional Manager and, therefore, the impugned transfer order is without jurisdiction.
10. The petitioner has prayed, on the grounds aforesaid, that the impugned transfer order dated 18.08.2006 may be quashed and set aside, and Clause 7 of TMP and Clause 10 of the Administrative Instructions may be quashed and the respondents may be restrained from transferring him as per Sub-clause 5.6 of Clause 5 of TMP.
11. The respondents in their reply in the first place have stated preliminary objections that the TMP was framed with negotiations and interactions between the Managements of all the four General Insurance Companies on one hand and the respective unions of the Companies on the other; and, therefore, it was not open for the petitioner to challenge any part and/or Clause of TMP. The respondents have also contended that the policies framed by the Government, after taking into consideration all the relevant aspects, are not open to judicial review unless there be any violation of constitutional provisions or the statute; and that the petitioner has raised technical objections by misreading and misinterpreting the text of TMP and has otherwise failed to point out any infringement of constitutional or statutory provisions.
12. The respondents have also pointed out that such Transfer and Mobility Policy was subjected to challenge before the Hon'ble Madras High Court and an order passed by the said Hon'ble High Court on 25.09.2006 has been annexed as Annexure-R/1 whereby the Court declined to interfere in extraordinary writ jurisdiction at the instance of Chennai Region General Insurance Employees' Association but of course directed the concerned Chief Labour Commissioner to proceed with the conciliation proceedings expeditiously. The respondents have further pointed out that another writ petition was filed before the Hon'ble Bombay High Court that was disposed of by the order dated 10.12.2006, particularly for the same having not been pressed in view of the order aforesaid as passed by the Madras High Court; however, certain directions were issued confined to the employees belonging to the Scheduled Castes and Scheduled Tribes.
13. The respondents have further stated that TMP has been framed with care and caution and after considering the weightage of administrative exigencies; that in the Government service, a person does not carry right to remain posted only at one place and the petitioner cannot claim his right to remain at Jodhpur only for all the times to come; and his transfer to nearby place Balotra in view of the administrative exigency and in consonance with TMP within a radius of 110 kms. cannot be questioned in the writ petition.
14. The respondents have further averred that the contention on want of authority was not correct because the Notification dated 21.12.2005 (the Amendment Scheme of 2005- Annex.4) read with TMP dated 17.05.2006 (Annex.5) perfectly empowered the respondent No. 2, i.e., the Regional Manager at Jaipur to pass the transfer order. It has also been suggested that it being a matter relating to industrial dispute and the petitioner having efficacious alternative remedy, the writ petition is liable to be rejected; and that the petitioner having failed to implead the aforesaid three persons as parties, the grievance as stated in their relation cannot be considered.
15. The respondents in their paragraph-wise reply have not denied the facts relating to the petitioner's appointment in the year 1983 and of his other promotions but have maintained that throughout his service, the petitioner has remained posted only at Jodhpur. Issuance of the Amendment Scheme of 2005 being not in dispute, the respondents have reproduced its Clause 11 whereby paragraph 18 of the Scheme of 1974 was substituted. The respondents have averred that the CMD or any other officer authorised by him in this behalf may transfer an employee and have questioned the interpretation put by the petitioner that the authority to transfer cannot be delegated further.
16. The respondents have further submitted that the TMP and Administrative Instructions are unambiguous and clear; and have reproduced Clause 7 of TMP with the submissions that the said Clause authorises the General Manager (Personnel) to prescribe the competent authorities for issuance of transfer orders. It is submitted that every General Insurance Company like the respondent Company having a huge administrative domain, even when having Head Office at a particular place, is having different Regional Offices in the other States in the country and likewise the Regional Office for the State of Rajasthan is situated at Jaipur and is headed administratively by the Regional Manager; and, therefore, the Regional Manager has been authorised to pass the transfer order. The respondents have also reproduced Clause 10 of the Administrative Instructions dated 15.06.2006 and submitted that such instructions were issued to implement the transfer policy; and in the entire channel of hierarchy right from Head Office to Branch Office, such delegation of powers for transferring the employee was an absolute necessity and such aspects cannot be questioned before the Constitutional Courts. With reference to the averment of the petitioner about stay order passed by the Hon'ble Madras High Court, it has been pointed out that such stay order had been vacated. Concerning the three persons claimed to be senior to the petitioner, it has been questioned, again, that the petitioner has not impleaded them as parties; and it has further been averred that earlier promotions of these three persons cannot create any legal right in favour of the petitioner so as to claim stay on his transfer order.
17. The respondents have, thus, contended that on every ground, the writ petition remains deficient enough and deserves to be dismissed.
18. The petitioner has proceeded to file rejoinder to the reply with the submissions that he has only challenged Clause 7 of TMP and Clause 10 of Administrative Instructions that are, according to him, contrary to the notification issued by the Central Government. The petitioner has denied that there was any consent of the employees' union on TMP. It has further been submitted that in the case before the Hon'ble Madras High Court, the petitioner had already availed of the alternative remedy before the Industrial Tribunal and, therefore, the petition was dismissed; however, the petitioner has maintained that in the matters of the present nature, Industrial Disputes Act is not applicable. The petitioner has reiterated that he has challenged his transfer order as being without jurisdiction, contrary to the notification and having been issued by the authority not competent to do so and, therefore, remedy under Article 226 of the Constitution of India is available to him. The petitioner has further pointed out that he has not claimed any relief against the aforesaid three persons and his only submission had been that they are senior to him; and has denied the allegation on his intention to remain at Jodhpur with the submissions that the transfer should be made in accordance with law and that the impugned transfer order was not issued by the competent authority.
19. In relation to paragraph 3 of the paragraph-wise reply, the petitioner has pointed out that it would require no rejoinder; that the respondents themselves have admitted that the CMD or any other officer authorised in this behalf may transfer an employee; and has averred that as per Clause 7 of TMP, the General Manager (Personnel) was authorised by the CMD to transfer and there could be no further delegation of powers to transfer by the delegated authority; and hence, the petitioner maintains, the transfer order issued by the Regional Manager is without jurisdiction.
20. The petitioner has reiterated the submissions that even if for the sake of arguments it be assumed that the General Manager may delegate his powers to transfer, yet by the Instructions (Annex.6) he has delegated the power of transfer from one office to another within the same region to the Chief Regional Manager but, the impugned transfer order has been issued by the Regional Manager, who is below in rank to the Chief Regional Manager, and as such only by an incompetent authority.
21. It may be pointed out that in this writ petition, show cause notice was issued on 03.10.2006 and by way of interim order it was directed that the petitioner shall not be relieved from the post of Assistant in the office of Senior Divisional Manager of the respondent Company at Jodhpur, if not already relieved. The respondents submitted a reply to the writ petition on 02.03.2007 and also moved an application under Article 226(3) of the Constitution of India that was considered and rejected on 17.04.2007 finding a prima facie case in favour of the petitioner; and the matter was ordered to be listed for admission. The respondents preferred an intra-court appeal against the aforesaid order dated 17.04.2007, being SAW No. 548/2007, that was decided on 22.05.2007. The Hon'ble Division Bench noticed the submissions on behalf of the Company that the case would be governed by the aforesaid paragraph 18 (1) of the Scheme and noticed that the petitioner has urged that his case was governed by subparagraph 2 of paragraph 18. The Hon'ble Division Bench pointed out that the learned Single Judge had expressed no opinion on merits of the case and while considering the application under Article 226 (3) of the Constitution of India, the learned Single Judge had only expressed prima facie opinion. The appeal was of course dismissed but with the observations that request may be made for hearing of the writ petition at an early date.
22. Thereafter, on 29.05.2007, the respondent Company moved an application for early hearing of the writ petition and while filing a copy of the order dated 22.05.2007 as passed by toe Hon'ble Division Bench in SAW No. 548/2007, also annexed as Annexure-R/4 a copy of the circular dated 14.08.2006 that was issued for implementation of the Transfer Policy. It may also be pointed out that during the course of submissions in this writ petition, the Learned Counsel for the respondents has placed for perusal two lists of Class III employees prepared by the respondent Company in the years 2006 and 2007 for carrying out the exercise under the Transfer Policy; and the same have been taken on record as agreed.
23. Learned Counsel for the petitioner has referred to the Amendment Scheme of 2005, the TMP, the Administrative Instructions, the impugned order, and the facts as stated in the writ petition and submitted that the impugned transfer order remains wholly unauthorised and without jurisdiction. Learned Counsel submitted that TMP (Annex.5) remains a part and parcel of paragraph 18(1) as inserted by the Amendment Scheme of 2005 and hence is statutory in character; and any transfer made in violation thereof suffers from the vice of violation of mandatory statutory provision and cannot be sustained. Learned Counsel emphasized that as per TMP, 25% of the employees are to be transferred on seniority basis; and when the fact that the three persons named by the petitioner are senior to him amongst class III employees at Jodhpur has not been denied, obviously the transfer has been ordered in contravention of the very terms of the Transfer Policy. Learned Counsel submitted that TMP being that of mandatory statutory rules, no transfer in its violation could be ordered and the petitioner's transfer deserves to be quashed on this count alone.
24. Learned Counsel further submitted that the order as issued by the Regional Manager remains wholly unauthorised, he being the officer who could not have been authorised to issue any such transfer order. Learned Counsel submitted that under the TMP when there has been a delegation of powers to the General Manager (Personnel), he could not have delegated further; and sub-delegation as made by him under Clause 10 of the Administrative Instructions remains illegal; and Clause 7 in TMP to the extent it permits such subdelegation remains invalid, being contrary to the provision as contained in paragraph 18 of the Scheme.
25. Learned Counsel yet further submitted that in any case the Regional Manager has never been authorised to issue any such transfer order; and even if the Administrative Instructions be held valid, only the Chief Regional Manager has been authorised thereunder to issue the transfer orders like the present one; and, therefore, according to the Learned Counsel, the impugned order remains unauthorised nevertheless. Per contra, Learned Counsel for the respondents submitted that the scope of interference in transfer matters remains narrow and limited only in the cases where mandatory statutory is said to be violated or if there be a case of mala fide. No case of mala fide has been alleged and so far statutory provisions are concerned, according to the Learned Counsel for the respondents, only Section 17A of the General Insurance Business (Nationalisation) Act, 1972 ['the Act of 1972'] and the Amendment Scheme of 2005 issued thereunder are of statutory character and rest all has been left by the legislature to be worked out by the Company and the authorities concerned to determine the manner in which the transfer is to be effected; and, Learned Counsel contended, there being no violation of any of the relevant statutory provisions, the challenge to the transfer order remains fundamentally baseless.
26. Learned Counsel for the respondents submitted that the Transfer Policy (Annex.5) is essentially an administrative order and not statutory in character and by the said Transfer Policy none of the legal rights of the petitioner are affected, transfer being an incident of service; and contended that the petitioner has remained posted at Jodhpur ever since his appointment and being the person with longest stay, has rightly been ordered to be transferred.
27. Learned Counsel further submitted that the arguments regarding the designation of the authority issuing the transfer order remains baseless because in the designation of Class-I officer of the respondent Company, the person belonging to the cadre of Chief Manager, when posted at Head Office, is designated as 'Chief Manager'; and when posted at Regional Officer, is known as Chief Regional Manager but when posted at Regional Office other than incharge, he is designated as 'Regional Manager'; and essentially it is the same authority whom the Administrative Instructions refer that has issued the impugned transfer order. Learned Counsel for the respondent further endeavored to draw support from the scheme of Article 166 of the Constitution of India to submit that the argument regarding want of authority with the Regional Manager to issue transfer orders is not correct. Learned Counsel also pointed out from the Administrative Instructions (Annex.6) and so also further Instructions (Annex. R/4) that the exercise of transfer has been carried out in accordance with law and after thorough consideration of every aspect of the matter and with adherence to the terms of the Policy.
28. Learned Counsel for the respondents yet further submitted that if there was any another grievance or doubt, in terms of Clause 8 of TMP, the petitioner ought to have approached the Board of the Company who is competent to decide on any question about the interpretation of any of the provisions of TMP; and in any case the petitioner is not entitled to invoke extra-ordinary writ jurisdiction in this matter. Learned Counsel for the petitioner rejoined with the contentions that the submissions as made on behalf of the respondents particularly those contrary to or beyond their pleadings cannot be accepted; that the petitioner remaining junior to the other incumbents in the class concerned is a fact undisputed and hence, there remains a violation of the Transfer Policy itself. Learned Counsel further submitted that the Chief Regional Manager even when belonging to the same cadre remains a specific authority to whom the powers have been delegated and he is different than the Regional Manager who is not incharge of the Regional Office and therefore, according to the Learned Counsel, the order of transfer has been issued by an authority not competent to do so. Learned Counsel further contended that the document Annex. R/4 as referred by the respondents is again unauthorised inasmuch as the same had been issued by the Deputy General Manager who has not been authorised by anybody anywhere to issue any such direction. Learned Counsel for the parties have referred to and relied upon several of the decided cases that shall be referred hereafter at the relevant places.
29. Having given a thoughtful consideration to the entire matter, This Court is clearly of opinion that this writ petition remains totally bereft of substance and deserves to be dismissed with costs.
30. The submissions as made by the Learned Counsel for the petitioner about the respondents being not entitled to raise the grounds not taken in the pleading or contrary to their pleading; or want of any specific pleading remain totally devoid of merit and deserve to be rejected at the outset. The issue as raised by the petitioner on interpretation of the relevant clause of the Amendment Scheme of 2005 is a pure question of law and ambiguity, if any, in the pleading of the respondents on such interpretation could hardly have a material bearing on the correct interpretation of the relevant provision; and so far the length of stay of the petitioner and the other named incumbents is concerned, even when the respondents have not very precisely stated a reply to the relevant paragraph of the writ petition, from the very averments taken by the petitioner, his length of stay being clear, again, the averments or want of them on the part of the respondents is of no bearing or consequence. The decisions as cited by the Learned Counsel in this regard have no application whatsoever to the fact situation of the present case.
31. In the case of Chimajirao Kanhojirao Shirke and Anr. v. Oriental Fire & General Insurance Co. Ltd. : AIR2000SC2532 , the question was about meaning and implication of the term 'unlimited personal injury' in an insurance policy. It was found that the insured had paid extra premium and the policy was issued stating coverage of 'unlimited personal injury and property damage upto Rs. 10,00,000/-'. In the claim for compensation made by the parents of the victim, owner of the vehicle involved in accident, it was alleged by the claimants that for having taken such extra premium the insurer was liable on the life of the insured as well. The insurance company took the stand in the written statement that such words 'unlimited personal injury' were wrongly recorded and such noting was redundant. The Trial Court did not agree on such assertion with the observation that there was no evidence to prove that such words were wrongly or mistakenly shown in the policy. In appeal, however, the High Court took the view that such extra premium was paid for covering the risk in excess of the statutory liability in regard to third party risks and not the personal injury or death of the insured. The Hon'ble Supreme Court held that the High Court had been in error in setting aside the findings of the Trial Court. The Hon'ble Supreme Court noticed again the submissions on the part of the insurer that the words 'unlimited personal injury' qualified the liability for death and injury of a third party and pointed out that such submission even when prima facie plausible, could not be accepted for the plea taken in the written statement where the only stand of the insurance company was that due to oversight or mistake the words 'unlimited personal injury' were typed; and it had not been the case of the insurance company that notwithstanding the use of such expression, its liability would be limited towards a third party. The Hon'ble Supreme Court pointed out that once a stand in fact is taken, such fact cannot be controverted by any legal proposition. Being a matter of contract between the insurer and the insured, the term of an insurance policy, particularly on the risks sought to be covered therein, remains essentially a matter of fact. The present one is not a case where any stand on facts is sought to be controverted by the respondents. The decision in Chimajirao (supra) has no application to the present case.
32. The other two decisions cited by the Learned Counsel for the petitioner in this regard, i.e., the cases of Secretary to the Government and Anr. v. M. Senthil Kumar 2005 AIR SCW 1269; and Union of India and Ors. v. Indian Jute Mills Associations and Ors. 2005 AIR SCW 2723 have got no relevance even to the very question as posed by the petitioner. In M. Senthil Kumar (supra), an unsuccessful candidate for selection to the post of Police Constable wherein 10% posts were reserved for legal heirs of the serving or invalidated personnel, filed an Original Application before the Central Administrative Tribunal; and the Tribunal held that the applicant was not found successful as he did not fair well in the written and physical tests and was, therefore, held not qualified for selection. The Tribunal also observed that he was not entitled for any preferential treatment. The applicant, however, had never challenged the said policy of reservation as the applicant himself wanted to avail benefits under the policy. The applicant filed a writ petition against the order passed by the Tribunal to the High Court; and the Hon'ble Madras High Court, though dismissed the writ petition on the ground that the applicant had not been successful in the tests, but at the same time observed that the preference that was being sought on the ground of descent was prohibited by the Constitution and the Tribunal was right in holding that such reservation was unconstitutional. Only the aforesaid observations as made by the High Court on the validity of the reservation policy were the subject matter of challenge before the Hon'ble Supreme Court; and the Hon'ble Supreme Court found that there was no challenge to the policy decision by the applicant nor the Tribunal had expressed any specific view regarding the validity of the policy and, therefore, such part of the order of High Court was set aside. Similarly, in the case of Indian Jute Mills Associations (supra), the question was regarding extent of power of Advisory Committee constituted under Jute Packaging Materials (Compulsory Use in Packing Commodities) Act, 1987 to make its recommendations to the Central Government for formulation of road map for progressive dilution; and the question regarding power of the Central Government to pass any order in regard to progressive dilution of protection of jute packaging material was neither challenged nor the said point arose from the pleadings; and the observations made by the Division Bench in relation to the said powers that the Central Government cannot act contrary to legislative policy were held obiter in nature and contrary to pleadings and were, therefore, set aside. This Court is unable to appreciate that the decisions in M. Senthil Kumar and Indian Jute Mills Associations having no co-relation to the present matter have at all been cited. Be that as it may, the extreme hyper-technical argument on behalf of the petitioner regarding pleadings remains absolutely baseless in the fact situation of the present case and is, therefore, rejected.
33. Coming to the merits of the case, it is noticed that the Regional Manager has issued the impugned transfer order (Annex.7) under the authority said to be available with him as per the Administrative Instructions (Annex.6), which have been issued per Clause 7 of the Transfer Policy (Annex.5) that has, in turn, been framed by the Board of the Company in exercise of the powers vested in it by paragraph 18 of the Scheme of 1974 as substituted by the Amendment Scheme of 2005; and the said Amendment Scheme of 2005 has been framed by the Central Government in exercise of powers conferred by Section 17A of the General Insurance Business (Nationalisation) Act, 1972. It shall, therefore, be worthwhile to notice the relevant provisions of Act of 1972 and the said Schemes; and the relevant parts of the Transfer and Mobility Policy and the Administrative Instructions, in that sequence. Section 17A of the Act of 1972 reads as under:
17-A. Power to Central Government to regulate the terms and conditions of service of officers and other employees.- (1) The Central Government may, by notification in the Official Gazette, frame one or more schemes for regulating the pay scales and other terms and conditions of service of officers and other employees of the Corporation or of any acquiring company.
(2) A scheme framed under Sub-section (1) may add to, amend or vary any scheme framed under Section 16 [including any addition, amendment or variation made therein by notification under Sub-section (6) of Section 16] with respect to rationalisation or revision of pay scales and other terms and conditions of service of officers and other employees of the Corporation or of any acquiring company, to provide for further rationalisation or revision of such pay scales and other terms and conditions of service notwithstanding that such further rationalisation or revision is unrelated to, or unconnected with, the amalgamation of insurance companies or merger consequent on nationalisation of general insurance business.
(3) The Central Government may, by notification, add to, amend or vary any scheme framed under this section.
(4) The power to frame a scheme under Sub-section (1), and the power conferred by Sub-section (3) to add to, amend or vary any scheme framed under this section, shall include the power to frame such scheme, or, as the case may be, to make such addition, amendment or variation in any scheme framed under this section, with retrospective effect from a date not earlier than the appointed day.
(5) A copy of every scheme, and every amendment thereto, framed under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
(6) The provisions of this section and of any scheme framed under it shall have effect notwithstanding anything to the contrary contained in any other law or any agreement, award or other instrument for the time being in force.
35. The aforesaid provision was inserted to the Act of 1972 by the Amendment Act No. 3 of 1985. Prior to that, the Central Government had framed the Scheme of 1974 under Section 16(1) of the Act of 1972, and thereunder made provisions for categorisation of employees, pay and allowances and the methods of fixation, increments, working hours, leave, provident fund, retirement, gratuity, various allowances and transfer and change of place of work etc. The relevant part pertaining to transfer and change of place of work as contained in paragraph 18 of the Scheme of 1974 read as under:
18. Transfer and change of place of work.- The Custodian or the Managing Director or any other officer authorised in this behalf by the Custodian or the Managing Director may transfer an employee from one department to another or from one office of any company or Corporation to another office of that company or any other company or the Corporation.
36. The aforesaid paragraph in the Scheme of 1974 has, admittedly, been substituted by the following as ordained by the Amendment Scheme of 2005, framed by the Central Government under the Notification dated 21.12.2005 (Annex.4):
18. Transfer and change of place of work-
(1) Every employee shall be liable to be transferred from one department to another in the same office, from one office to another office in the same station and to meet the requirement or need of the Company or the Corporation, as the case may be, from one station to another in terms of the Transfer and Mobility Policy as approved by the Board of the Company or Corporation, and amended from time to time, which shall, inter alia, provide for the following:
(a) any such transfer from one station to another will be restricted to a radius of 150 kms;
(b) an employee so transferred to another station may be considered for transfer to the original station of posting, or a place of his choice, after a period of three years, subject to availability of vacancies;
(c) an employee so transferred from one station to another - shall be paid an allowance, called the Disturbance Allowance, at the rate of Rs. 400/- per month during the period of posting on such transfer (not being request transfer, nor posting on promotion). Besides, House Rent Allowance and/or City Compensatory Allowance, which the employee was drawing before such transfer, shall be protected during the period of transfer.
(2) Notwithstanding anything contained in subparagraph (1), the Chairman-cum-Managing Director, or any other officer authorised in this behalf by him, may transfer an employee from one department to another in the same office or from one office of the Company or the Corporation as the case may be, to another office of that Company or the Corporation, respectively, in the same station or different station with or without the benefit provided for under Clause (c) of sub-paragraph (1).
37. As required by the aforesaid paragraph 18 inserted by the Amendment Scheme of 2005, the Board of the respondent Company has proceeded to frame the Job Rotation, Transfer and Mobility Policy for Supervisory, Clerical and Subordinate Staff (Annex.5). Transfer from one station to another is dealt with by Clause 5 of the said Transfer Policy which is, for ready reference, reproduced in extenso hereunder:
5. Transfer from one station to another:
5.1 The Chairman-cum-Managing Director of the Company is empowered to determine the requirement and need of the Company in its various offices at various stations from time to time.
5.2 Transfer from one station to another shall to begin with, be resorted to for the purpose of fulfilling the need of the Company in workforce at various stations as determined vide Para 5.1 and achieving a judicious deployment of the same.
5.3 Every employee in the cadre of Senior Assistant, Stenographer, Assistant and Record Clerk, who has completed 10 years of continuous stay at a particular station, shall be liable to transfer to another station in terms of the Policy:
Provided that, in respect of employees in the cadre of Record Clerk, the Competent Authority shall have the discretion to relax or dispense with the provisions of the Policy to an extent considered necessary to meet the office exigencies:
Provided further that, in situations involving relocation of an Office, employees in the cadre of Sub-staff besides employees in other cadres in that office, irrespective of their length of stay, shall also be subject to transfer from one station to another in terms of the Policy.
5.4 'Continuous stay' for the purpose of para 5.3 above shall mean the stay of an employee at a particular station in his existing cadre and that in the previous cadre (s) in Supervisory, Clerical and Subordinate Staff taken together.
5.5 The 'Competent Authority', if it considers necessary so to do to meet the office exigencies shall have the discretion of restricting the number of transfers from a particular station to a maximum of 25% of the total classwise (Class-III and IV separately) strength of employees at that station.
5.6 In situations where limitation of 25% as indicated in Para 5.5 is to be applied, a class-wise list of employees for each station, who have completed 10 years of continuous stay at that station may be prepared in descending order of length of stay and from the top of such list a number equivalent to such 25% may be taken out.
5.7 Transfer of an employee from one station to another shall ordinarily be restricted to a radius of 150 kms from his present station of posting:
Provided that where, for the purpose of fulfilling organizational requirements, the Competent Authority considers it absolutely necessary to transfer employees between two stations, say 'A' and 'B' located beyond a distance of 150 kms., such transfer shall be effected by involving an intermediary stations (s), say 'C' i.e. one employee transferred from 'A' to 'C' and then another employee transferred from 'C' to 'B' so as to ensure that the distance between 'A' and 'C' and also between 'C' and 'B' is not more than 150 kms.5.8 An employee transferred under the Policy from one station to another may be considered for transfer back to his previous station of posting (except in the case of transfer resulting from relocation of office), or any other place of his choice (the number of such choices being limited to three), subject to availability of vacancy after completion of a minimum period of 3 years at the station of his transfer.
Provided that the Chairman-cum-Managing Director on being satisfied on the basis of documentary evidence may relax the minimum period of 3 years, if so requested by the employee on grounds of the sickness of the employee himself or spouse or any of the dependent children from any of the major diseases.
5.9 An employee transferred under the Policy (excluding request transfer and/or posting on promotion) shall be entitled to the benefits as provided for under subparagraph (1) of paragraph 18 of the Scheme, in addition to the transfer benefits as per TE Rules Provided that, no other benefit other than these benefits shall be available to him.
38. Another relevant aspect in the said Policy is about Competent Authority and Administrative Instructions as contained in Clause 7 that reads as under:
7. Competent Authority and Administrative Instructions:
The General Manager (Personnel) of the Company is authorized to prescribe the Competent Authorities for issuance of various types of transfer orders under this Policy, besides framing the Administrative instructions for implementation of various provisions of this Policy.
39. The said Transfer Policy has been given over-riding effect over anything to the contrary contained in any rules or policy framed by the Company per Clause 9; and as per Clause 8, in case of any doubt or difficulty about interpretation of any of the provision of the Policy, the same is to be referred to the Board of Company whose decision shall be final. The General Manager (Personnel) of the respondent Company has issued the Administrative Instructions on 15.06.2006 in pursuance of the said Transfer Policy; and the same are also reproduced in extenso as under:
NATIONAL INSURANCE COMPANY LIMITED HEAD OFFICE, KOLKATA
Re: Administrative instructions on Job Rotation, Transfer and Mobility Policy for Supervisory, Clerical and Subordinate Staff
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In exercise of the authority vested with the undersigned vide Para 7 of the Job Rotation, Transfer and Mobility Policy (hereinafter called 'the Policy') for Supervisory, Clerical and Subordinate Staff approved by the Board of the Company, the following Administrative Instructions are hereby issued for smooth implementation of various provisions of the Policy:
(1) These instructions shall apply to transfers falling within the purview of the Policy.
(2) 'Station' as referred to in Para 2.8 of the Policy shall mean a city or town including its Urban Agglomeration as per the latest Census classification.
(3) This being the first year of implementation of the Policy, transfers under Para 4 & Para 5, shall be completed by 31.07.2006. From next year onwards, the Exercise shall be conducted and completed, as far as possible by, 30th April.
(4) For the purpose of reckoning the period of three years prior to retirement under Para 3.3 of the Policy, for this year, the cut-off date may be taken as 30th June, 2006, while for future Exercises, the cut-off date shall be 30th of April of the year under consideration.
(5) For the purpose of satisfaction of the Competent Authority as to Physical Handicap of an employee under Para 3.4 of the Policy, a documentary evidence admissible for the purpose of grant of Conveyance Allowance as per the rules of the Company, shall suffice for the purpose of the Policy.
(6) For the purpose of dispensation under Para 3.5 of the Policy, the procedure as adopted for grant of Special Sick Leave as per the rules of the Company and the documentary evidence admissible thereunder, shall be sufficient for the purpose of the Policy.
(7) It is clarified that employees in Class-IV cadres are not to be considered for transfer from one station to another except under the Second Proviso to Para 5.3 of the Policy i.e. in situations involving relocation of an Office.
(8) As long as the distance limitation of 150 kms. in terms of Para 5.7 of the Policy is maintained, transfer under the Policy need not be confined within a particular region.
(9) Similarly, all those transfer requests which are pending as on date of introduction of the Policy, shall be dealt with in accordance with the provisions of the Policy only.
(10) The Competent Authorities for issuance of various types of Transfer Orders under this Policy are as under:Sl. Nature of Transfer AuthorityNo. 1. Placement within the same Office Officer-in-Charge of the Office on account of Job Rotation concerned. For HO, Chief Manager,HO, Pers. Deptt.2. Transfer from one Office to another Chief Manager/Regional Chief at within the same Region Regional Office concerned.3. Transfer from one Region to another Chief Manager, Personnel Deptt.,on request or otherwise Head Office.4. Transfers on promotion Promoting Authority specified inthe Promotion Policy.
40. Before dilating on the contentions relating to operation, effect and purport of the aforesaid Section 17A of the Act of 1972, the Scheme framed under such provision, the Policy framed under the Scheme, and the Instructions issued under the Policy, it shall be worthwhile to notice that the grievance voiced in the present petition relates to transfer of the petitioner from one station to another by the respondent Company. It is not in dispute that the petitioner holds a transferable post but the contention of the petitioner is that his transfer is sought to be brought about in violation of the statutory requirements. The different provisions as referred and the arguments as advanced shall be required to be examined keeping in view the nature of the administrative action and kind of the right whose infringement is alleged. Learned Counsel for the respondents has rightly referred to the decision in Ghisu Lal v. The Union of India 1981 RLW 659 wherein This Court has pointed out that the matter of transfer of Government servant stands on a different footing from other executive or administrative orders and instructions.
41. The principles of law remain settled with catena of decisions of the Hon'ble Supreme Court that transfer of an employee is a normal incident of service and no Government servant or employee of a public undertaking has any right to be posted forever to a place of his choice. The scope of judicial intervention in the matter of transfer of such employees is also limited. Suffice it shall be to notice that the Hon'ble Supreme Court in the case of State of U.P. and Anr. v. Siya Ram and Anr. : AIR2004SC4121 has been pleased to reiterate the position of law stated in the case of National Hydroelectric Power Corporation Limited v. Shri Bhagwan and Anr. : (2001)IILLJ1243SC that,-
It is by now well settled and often reiterated by This Court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned.
42. Then, significant it is to notice that even if a transfer order is said to have been made in violation of any administrative instruction or order, the Courts ordinarily do not interfere, leaving the party to approach the higher authorities. In the case of Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. : (1991)IILLJ591SC as cited by the Learned Counsel for the respondents, the Hon'ble Supreme Court has been pleased to lay down the principles in no uncertain terms,-
In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department.
43. Thus, it does not call for much discussion that the scope of judicial intervention in the matters of transfer remains narrow and limited only to the specific cases of mala fide or violation of mandatory statutory rule; and even in cases of violation of executive instructions, the Courts ordinarily would not interfere.
44. Having taken the entire matter into comprehension, This Court is unable to find any basis wherefor the Transfer and Mobility Policy and the Administrative Instructions issued thereunder could at all be regarded as being of mandatory statutory provision. The fundamental statutory provision related with the matter is Section 17A of the Act of 1972 that authorises the Central Government to frame one or more Schemes for regulating the pay-scales and other terms and conditions of service of officers and other employees of any of the Companies covered under the Act of 1972 including the respondent Company; and thereunder, the Central Government has of course framed the Amendment Scheme of 2005 by publication in official gazette. Obviously, the Scheme framed by the Central Government has all the trappings of a delegated legislation and, therefore, paragraph 18 of the Scheme as relevant for the present purpose, could of course be treated to be laying down the statutory requirements by way of delegated legislation, although it is difficult to put all the aspects of the said paragraph 18 into the category of a 'mandatory' statutory provision. However, leaving aside the question if all the aspects dealt with by the said paragraph 18 could be termed mandatory or not, This Court is clearly of opinion that apart from the provisions of the statute, the things of statutory character in the present case are confined to paragraph 18 of the Scheme and do not extend to the Transfer Policy (TMP) and the Instructions issued thereafter. The said paragraph 18 of the Scheme contemplates that every employee is liable to be transferred from one department to another, one office to another, or from one station to another in terms of the Transfer and Mobility Policy as approved by the Board of the concerned Company. As per the requirements of the said paragraph 18, such Transfer Policy has to provide - (a) that the transfer from one station to another would be restricted to a radius of 150 kms.; (b) the employee so transferred to another station could be considered for transfer to the original station or place of his choice after a period of three years subject to availability of vacancies; and (c) on transfer from one station to another, the employee is to be paid disturbance allowance at the rate of Rs. 400 per month with other provisions including protection of allowances drawn by the employee before transfer. An overriding power has of course been vested in the Chairmancum- Managing Director or any other officer authorised by him in that behalf to effect transfer of an employee with or without the benefit provided under Clause (c) of sub-paragraph (1) and thus, the CMD or the officer authorised by him could issue transfer order notwithstanding any other requirement. Coming to the aspect related with CMD later, in the set up of the related provisions, it is but evident that the statutory requirements emanating from the said paragraph 18 of the Scheme is that an employee like the petitioner could be transferred from one station to another and such transfer could be brought about in terms of the Policy to be approved by the Board of the Company but has to conform to the requirements about the distance, about giving of choice after three years, and grant of disturbance allowance with protection of the allowances drawn before transfer by the employee concerned. If any of such requirements spelt out by paragraph 18 regarding distance, allowances etc. are violated, it could be said to be a case of violation of statutory requirement. It is not the case of the petitioner that any such requirement stands violated. Contrarily, the transfer order (Annex.7) itself states that the petitioner would be entitled to the benefits as provided under paragraph 18 (1) of the Scheme in addition to the transfer benefits. No case of violation of any mandatory statutory requirement is made out at all.
45. In the scheme of things, it is also apparent that once the Central Government framed the Scheme and left it for the Company through its Board to work out the terms of transfer policy, everything done thereafter is required to be treated as administrative in nature and not of statutory character. The Transfer Policy itself remains nothing more than a policy and its violation cannot by itself be called a violation of mandatory statutory requirement unless such of its provision that has reference to the statutory requirement per paragraph 18 of the Scheme, as noticed above, could be said to be violated. Even taking the Transfer and Mobility Policy to be having the statutory force because of the phraseology used in paragraph 18 of the Scheme aforesaid that the transfer could be brought about 'in terms of Transfer and Mobility Policy' yet, This Court is unable to find anything that vitiates the transfer order.
46. In order to allege violation of the terms of Transfer Policy, the petitioner has chosen to suggest that the persons with longer stay have been retained at Jodhpur and he has been subjected to transfer contrary to the norms set down in the Transfer Policy. The suggestion is fundamentally incorrect. It is noticed from Clause 5.3 of the Transfer Policy that 'continuous stay' at the station of a particular person is taken into consideration and the persons at the top of the list are to be transferred out; and it is significantly noticed from Clause 5.4 that 'continuous stay' means stay of an employee at a particular station 'in his existing cadre and that in the previous cadre/s in Supervisory, Clerical and Subordinate staff taken together'. The very basic submissions of the petitioner remains hollow and spineless when it is noticed that the total stay in the existing and previous cadres is to be taken together to reckon the period of stay at a particular station. From the documents supplied during the course of submissions, it is noticed that the petitioner, working on the post of Assistant, has been at Jodhpur for the longest, he being there since 19.12.1983. Such a fact is rather borne out from the averments of the petitioner himself that he joined the service on 19.12.1983. The other persons named by him are having lesser period of stay than himself at the station concerned.
47. The suggestion that his period of stay is required to be reckoned with reference to his date of promotion into the cadre concerned cannot be countenanced for being not supported by the statutory requirement and rather being contrary to the relevant clause in the Transfer Policy. The claim of the petitioner that there had been any violation of the Transfer Policy also turns out to be fundamentally incorrect. Further, even when the Transfer Policy of the present nature is treated to be having some semblance of statutory character, it sounds rather unreasonable to suggest that the Administrative Instructions issued under the Transfer Policy be also treated as statutory in character.
48. Such administrative instructions are nothing but departmental instructions for the purpose of carrying out the objects of the Transfer Policy and to have it implemented. Yet further, even if the suggestion on the part of the petitioner on the extreme hyper-technical level that under the Administrative Instructions the transfer order could have been issued by the Chief Regional Manager and, therefore, the impugned transfer order (Annex.7) issued by the Regional Manager suffers from want of authority is taken into consideration, such suggestion only leads to a contention concerning violation of some administrative instruction; and not of want of statutory authority. As observed by the Hon'ble Supreme Court in Shilpi Bose, if the transfer order is in violation of some executive instructions, the petitioner should have approached the authorities concerned. The present one appears to be least a matter for interference in writ jurisdiction of This Court. Even in relation to the power and authority of the Regional Manager, it has been clarified during the course of submissions that there exists one cadre of Managers and it is only when more than one Regional Managers are posted in the Regional Office that the person incharge is called the Chief Regional Manager. It has also been pointed out during the course of submissions with reference to the document Annex. R/4 that all transfer orders from one station to another were to be issued on 18.08.2006 under the signatures of the Chief Regional Manager or the Regional Manager in the Regional Office. It has been contended on behalf of the petitioner that even the document Annex. R/4 is unauthorised as the Deputy General Manager issuing the said order had not been authorised by anybody. The submissions are again bereft of substance. All such instructions emanating from the Transfer Policy and issued for the purpose of implementation of such Policy are purely administrative in character and the petitioner cannot be conceded a right to question such administrative orders.
49. The order in question has been issued by the Regional Manager at Jaipur Regional Office. The requirement of Clause 10 of the Administrative Instructions is that the order of the present nature would be issued by the 'Regional Chief' at the Regional Office concerned. It is not the case of the petitioner that there was any other officer available at Jaipur Regional Office answering to the description of 'Regional Chief' and it is also not the case of the petitioner that he was not governed by said Regional Office. It hardly remains available to the petitioner to contend that the order was unauthorised.
50. The expanded submissions of Learned Counsel for the petitioner in relation to the binding nature of the administrative instructions/guidelines are totally misplaced when it is noticed that the present case is relating to an order of transfer and nothing else. The decisions as cited by the Learned Counsel for the petitioner in the cases of Sant Ram Sharma v. State of Rajasthan and Anr. 1967 SLR 906; Ex. Cap. K. Balasubramanian v. The State of Tamil Nadu and Anr. 1992 (3) SLR 112; and M. Srinivasa Prasad and Ors. v. Comptroller & Auditor General of India and Ors. 2007 AIR SCW 2788 related basically to the question of seniority and promotion of the incumbents concerned in their respective services. It was held in Sant Ram Sharma (supra) that in the absence of any rule, the Government can issue administrative instructions relating to the principles to be followed in promotions; and it was pointed out that though the Government cannot amend or supersede the statutory rules but if the rules are silent on any particular point, the Government can fill-up the gap and supplement the rules and issue instructions not inconsistent with the rules already framed. The decision in Sant Ram Sharma has been followed in K. Balasubramanian and M. Srinivasa Prasad. The ratio of said decisions has no corelation with the present case related with transfer of the incumbent.
51. Another decision cited by the Learned Counsel for the petitioner in the case of Prof. (Mrs.) Sheel Kanta Asopa v. The University of Rajasthan and Ors. 1991 (2) RLR 36 related to a case where the norms fixed by the Syndicate of the University concerned conferred a right on the senior most Professor and Reader to be considered for appointment as Head of Department; and it was held that even when such guidelines were treated as administrative, the University is bound to follow the same strictly and in case of any arbitrary departure, the action would be invalidated. In the present case, as pointed out, mere allegation of violation of any administrative guidelines is not enough for the matter being related to transfer; and furthermore, This Court is unable to find any departure what to say of arbitrary departure by the respondent Company from its Transfer Policy and Administrative Instructions so far the transfer of the petitioner is concerned. The decision in Prof. (Mrs.) Sheel Kanta Asopa is of no help to the petitioner. Then, another decision cited by the Learned Counsel for the petitioner of the case of Dr. B.M. Bohra v. State of Rajasthan 1991 (1) RLR 383 related to a matter of suspension of an employee; and it was held that the power to suspend has to be exercised sparingly and with due care; and further, that the competent authority must objectively apply mind to the nature, gravity and seriousness of allegation and likely impact on service or public interest of alleged act of delinquency. In that context, it was observed that the guidelines relating to suspension could not be ignored in totality. For the very nature of the administrative action having an impact on the legal status of the employee concerned, the said case stands at a different footing. Furthermore, in the said case essentially it was found that the petitioner was on the verge of retirement and the allegations were of supervisory negligence hardly furnishing basis for concluding a grave misconduct. The said case, again, is of no support to the petitioner.
52. In relation to the administrative instructions and guidelines, only the case of Prabir Banerjee v. Union of India and Ors. 2007 AIR SCW 6708 as cited by the Learned Counsel for the petitioner had been a matter of transfer but therein, the aspect relating to the administrative instructions has been referred in an entirely different context where inter-zonal transfer of the incumbent holding the post of Suprerintendant was ordered from Indore to Nagpur by the Chief Commissioner as Cadre Controlling Authority of common cadre of Superintendents of Bhopal Zone and Nagpur Zone and it was found, inter alia, that though the statutory jurisdiction of the Chief Commissioner under the provisions of the Central Excise Act, 1944 and the rules framed thereunder was defined but such statutory jurisdiction was distinct from his jurisdiction as Cadre Controlling Authority; and because the jurisdiction as Cadre Controlling Authority was not defined, it was held that the administrative instructions issued from time to time would have to be followed; and the transfer order so issued was upheld by the Hon'ble Supreme Court. The said decision, related with an entirely different fact situation and involving different issue firstly, has no application to the question at hands; and secondly, on principles operates rather against the petitioner because following administrative instructions in relation to the matters not provided by the statutory rules is held to be in accord with law.
53. The petitioner has further suggested that Clause 7 of the Transfer and Mobility Policy is illegal and bad as the General Manager (Personnel) of the Company has been authorised to delegate his powers to other officers; and it has also been contended simultaneously that Clause 10 of the Administrative Instructions issued on 15.06.2006 whereby different authorities have been designated to issue transfer orders remains authorised. The submissions are bereft of logic and substance. Once the Amendment Scheme of 2005 has authorised the transfer to be made in terms of the Transfer and Mobility Policy; and certain aspects as spelt out in paragraph 18 of the Scheme were to be provided in the Transfer Policy, the other terms and stipulations were of course required to be spelt out in the Policy only and when the statutory provision did not contemplate a particular authority who could issue transfer order, there cannot be any question when such a provision has been made in the Transfer Policy. Rather, such provisions like the aforesaid Clause 7 of the Transfer and Mobility Policy was necessary to make the Policy meaningful and operational. The Board of Company was absolutely within its competence to prescribe any particular officer of the Company to be the competent one for issuance of various types of transfer orders and to frame Administrative Instructions and delegation of such task to the General Manager (Personnel) of the Company remains unexceptionable. By Clause (7) of TMP, the General Manager (Personnel) has been authorised by the Company to prescribe the competent authorities for issuance of various types of transfer orders besides framing Administrative Instructions. The very powers that have been vested in General Manager are to prescribe the authorities for issuance of transfer orders and such powers were indeed required to be conferred on some authority for the purpose of practical implementation of the Transfer Policy of the respondent Company that has wide spread area of operation throughout the country. Delegation of powers to General Manager under Clause (7) of TMP does not suffer from any illegality or unconstitutionality. As noticed, the delegation to the said General Manager has not been to issue the transfer orders himself but to prescribe the authorities to do so and also to issue necessary Administrative Instructions.
54. The General Manager has, in turn, issued the Administrative Instructions dated 15.06.2006 and has prescribed different authorities for job rotation, for transfer from one office to another, and for transfers on promotions. For the very function that is sought to be carried out i.e., of job rotation and transfer of employees to meet the requirements or the need of the Company, issuance of such and other administrative instructions are requisite and remain unexceptionable. The Administrative Instructions (Annex.6) as issued by the General Manager (Personnel) do not suffer from any want of authority nor from any vice of sub-delegation.
55. Further, the Administrative Instructions as issued by the said General Manager on 15.06.2006 are perfectly in accord with the authority vested in him and the task entrusted to him for implementation of the provisions of the Transfer Policy. The said General Manager has not provided anything that could have only been provided by the Company in the Transfer Policy nor is there anything in the said Administrative Instructions that runs contrary to the terms of TMP. The said Administrative Instructions merely provide as to how a Station would be understood for the purpose of Clause 2.8 of the Transfer Policy, as to by what time the exercise of transfers would be carried out, as to how a particular period is to be reckoned and the matters of the like nature that are essential for the purpose of providing the guidelines as to how the requirements of the provisions in the TMP would be carried out and completed.
56. In Clause 10 of the same Administrative Instructions, the General Manager has specified the competent authorities for issuance of various types of transfer orders under the Transfer Policy. The said clause is perfectly in accord with the powers granted to and the task entrusted to the General Manager (Personnel) whereby he was supposed to prescribe the authorities for the purpose of issuance of transfer orders. This Court is unable to find anything illegal or even irregular in making of such provisions in the Transfer Policy and then, in issuance of instructions by the General Manager (Personnel).
57. The specious arguments regarding the competence of the authorities and the questions on delegation and subdelegation as raised by the petitioner are fundamentally incorrect where, to start with, it is assumed that under the said paragraph 18 of the Scheme it is the CMD or an officer authorised by him who could issue an order of transfer and there cannot be further delegation of powers. Such submissions seems to have been built around sub-paragraph (2) of paragraph 18 of the Scheme whereby the CMD or an officer authorised by him have been given separate powers notwithstanding anything contained in sub-paragraph (1) to transfer an employee with or without the benefit provided under Clause (c) of sub-paragraph (1) i.e., regarding disturbance allowance and protection of the house rent and city allowances etc. Such powers of CMD or the officer authorised by him, are distinct and over and above the ordinary powers of transfer that would be exercised under subparagraph (1) of paragraph 18. The present case relates to sub-paragraph (1) and not sub-paragraph (2) of paragraph 18 of the Scheme. The petition as framed is replete with the basically misconceived submissions that the General Manager (Personnel) has been delegated the powers to issue transfer order and he could not have delegated further. The Company while framing the Transfer Policy has delegated the defined powers to the General Manager (Personnel) precisely in consonance with the operation of paragraph 18 of the Scheme whereby a Transfer and Mobility Policy is envisaged to be framed by the Company and the employees are to be transferred in terms thereof. Such Transfer Policy is the TMP (Annex.5) with which we concerned in this petition. The said General Manager has not been delegated such powers by the CMD; and sub-paragraph (2) of paragraph 18 has nothing to do with such delegation of powers to the General Manager (Personnel).
58. The decisions as cited by Learned Counsel for the petitioner on the aspect of sub-delegation, again, have no bearing on the present case. The said decisions essentially deal with such matters where the statutory provision itself envisaged a thing to be done in a particular manner and subdelegation was excluded either expressly or by necessary implication. In the case of Ganpati Singhji v. State of Ajmer and Anr. AIR 1955 SC 188, Section 40 of the Ajmer Laws Regulations of 1877 empowered the Chief Commissioner to make rules, inter alia, for maintenance of watch and ward, and for establishment of a system of conservancy and sanitation at fairs and other large public assemblies. However, the rules as framed by the Chief Commissioner prohibited holding of fair except under a permit issued by the District Magistrate and the District Magistrate was further empowered to satisfy himself before issuing permit that the applicant was in a position to establish a proper system of conservancy, sanitation and watch and ward at the fair and to revoke any permit without assigning any reason. The Hon'ble Supreme Court said that the Regulations empowered the Chief Commissioner to make rules for establishment of system of conservancy and sanitation and this he could have done by bringing a system into existence and incorporating it in the rules so that all concerned could know about it; but when the rules left the matter to the District Magistrate to see that persons desiring to hold a fair are in a position to establish a proper system of conservancy etc., the delegation to that extent where District Magistrate could have made his own system was ultra vires. When the statutory regulations required the Chief Commissioner to make rules about a particular thing, such aspect could not have been left to be provided by delegate. In the present case, statutory provision [paragraph 18(1) of the Scheme] itself says that the employees would be transferred in terms of Transfer and Mobility Policy. The employee is of course being transferred in terms of Transfer and Mobility Policy framed by the respondent Company; however, as to how the Policy itself is to be implemented, is definitely required to be provided with reference to certain personnel who would be putting into effect the policy and issuing necessary orders and instructions. The present one is not a case of excessive delegation. The General Manager (Personnel) has not been empowered by the Company to provide any term of Transfer Policy; and then, the General Manager in his Administrative Instructions has not provided anything that would be a substantive term of the Transfer Policy; and whatever the said General Manager has provided in the Administrative Instructions are the matters of procedure simplicitor.
59. The decision in A.K. Roy and Anr. v. State of Punjab and Ors. : 1986CriLJ2037 had been a matter under Prevention and Food Adulteration Act, 1954 where the power to initiate prosecution for the offence under the said Act is conferred by Section 20(1) on the Central and the State Government or the person authorised in this behalf by such Government and it was found that the prosecution was launched by the Food Inspector who was authorised by the Food (Health) Authority and not by the State Government. The Hon'ble Supreme Court observed that there would not have been a problem if the State Government would have issued notification under Section 20(1) of the said Act conferring powers on the Food Inspector and it was held that Section 20(1) of the Act did not postulate further delegation by the person so authorised by the Government. Likewise, in the case of the Management of Delhi Transport Undertaking v. Shri B.B.L. Hajelay and Anr. 1972 SLR (SC) 787, the Hon'ble Supreme Court found that under the Delhi Municipal Corporation Act, 1956, in the matters of appointment and removal, status and rank of the employee and the status and rank of the authority taking action were involved; and proviso to Sub-section (1) of Section 95 laid down that an officer and employee shall not be dismissed by an authority subordinate to that which appointed him; and hence, removal of the respondent No. 2 by the Assistant General Manager (Transport) who was not the appointing authority was held to be illegal. Again, it was a case of statutory provision itself prescribing a particular authority to do a particular thing. In the case of M/s Sahni Silk Mills (P) Ltd. and Anr. v. Employees State Insurance Corporation 1995 (2) SLR 81, the aspects of sub-delegation have been considered by the Hon'ble Apex Court in relation to Section 85B of the Employees State Insurance Act, 1948 whereby the Corporation could recover damages from an employer if he fails to pay the amount due in respect of any contribution or any other amount payable under the Act; and under Section 94A, the Corporation is authorised to delegate any of its powers to any officer or authority subordinate. The problem was that in exercise of powers under Section 94A, the Corporation delegated its powers by resolution dated 28.02.1976 upon the Director General or any other officer authorised by him. The phrase 'any other officer authorised by him' in such resolution was found to be a matter of subdelegation and such sub-delegation, being not envisaged by Section 94-A, was held to be illegal and the proceedings adopted by the Regional Directors upon such delegation from Director General were held to be invalid. However, the Hon'ble Supreme Court pointed out,-.From Section 94-A it does not appear that Parliament vested power in Corporation to delegate its power on any of officer or authority subordinate to the Corporation, and also vested power in the Corporation to empower such officer or authority, to authorise any other officer to exercise the said power under Section 85- B(i). If Section 94-A had a provision enabling the Corporation not only to delegate its power to any other officer or authority subordinate to the Corporation, but also to empower such officer or authority in its own turn to authorise any other officer to exercise that power, the resolution could have been sustained on the principle indicated in the cases Harishankar Bagla v. State of Madhya Pradesh (supra) and Bargum Chemicals Ltd. v. Company Law Board (supra). As such it has to be held that the part of the resolution dated 28.2.1976, which authorises the Director General to permit any other officer to exercise the power under Section 85-B (i) of the Act is ultra vires Section 94-A.
60. It is apparent that the decisions aforesaid were in such class of matters where the statute itself required a thing to be done in a particular manner; and delegation or sub-delegation as involved was beyond the statutory powers; and then, noticeable it is that all the cases aforesaid were of such kind of delegated functions that had direct bearing on the substantive rights of the persons concerned.
61. In the present case, noticeable it is that it the transfer and job rotation that is being dealt with is not a matter otherwise having any implication on the legal status of the employee concerned. It per force gets reiterated that in view of the very nature of the administrative action, of transfer of an employee from one Office to another, the delegation by the Company to several of the authorities is intrinsic and inherent in the aforesaid paragraph 18 of the Scheme itself; and the Company has rightly provided in Clause (7) of TMP that the General Manager (Personnel) shall prescribe the competent authorities and issue Administrative Instructions to carry out and implement the policy. In fact, substantive part of the matter is covered in other clauses of the Transfer Policy and the General Manager has been authorised to proceed with its implementation. This Court is unable to find anything wrong or illegal in such delegation of powers; rather such delegation by necessary implication is provided by the said paragraph 18(1) itself.
62. The decisions as cited by the Learned Counsel for the petitioner in the cases of V.C., Banaras Hindu University and Ors. v. Shrikant 2006 AIR SCW 2952; Ashok Kumar Sahu v. Union of India and Ors. 2006 AIR SCW 3980; Chairman and Managing Director, Andhra Bank and Ors. v. Ramoo Ramesh and Anr. 1998 SCC (L&S;) 257; and Union of India and Ors. v. Harish Chandra Goswami 1999 SCC (L&S;) 877 about the order being vitiated for having been issued by incompetent authority, again, have no application to the issues involved in the present case. None of the cases aforesaid related to the order of transfer; and, as noticed, the nature of right and nature of administrative action has got a relevance on the question of want of authority. In the case of Shrikant (supra), the order passed by the Vice Chancellor terminating the services of the employee on the declaration that the services were abandoned was found to be without jurisdiction and nullity because the statute and the ordinance concerned provided that an order of termination of services could be passed only by the Executive Council; and the purported approval by the Executive Council was held not of curing the defect. In the case of Ashok Kumar Sahu (supra), it was noticed that an offer of retirement made by a member of the concerned service required acceptance by the Central Government and not by the State Government. The member, who was placed under suspension had opted for voluntary retirement and the Government of Assam forwarded his request for approval by the Ministry of Home Affairs. The Central Government referred the matter to the Joint Cadre Authority which agreed to accept the request of the incumbent for voluntary retirement but without prejudice to the existing disciplinary proceedings. The Central Government communicated its approval to the State Government and directed to issue necessary orders. The Hon'ble Supreme Court found that the authorities proceeded on the basis of the Rule as existing prior to amendment dated 01.07.1988; and that after the amendment, the offer was required to be accepted by the Government of India and not by the Joint Cadre Authority and it was held that cessation of a contract of employment or status in law would be completed in terms of the provisions of Rules when the competent authority would pass appropriate orders; and that the action could be taken in terms of the Rules by the prescribed authority alone. In the case of Ramoo Ramesh (supra), it was found that the concerned regulations made distinction between the punishing authority and suspending authority, who was to be nominated; and in the absence of such nomination, it was held that the punishing authority could not ipso facto be treated to be competent to suspend the delinquent during departmental inquiry. The case of Harish Chandra Goswami (supra) related to Court-martial proceedings where the incumbent concerned had been awarded the sentence 'to be Cashiered' and to suffer R.I. for two years and it was found that there was no record whatsoever to show that the personnel of the Courtmartial was appointed or nominated by and had the approval of the Commanding Officer, i.e., the Lieutenant General. The Hon'ble Supreme Court held that the constitution of the Courtmartial by an officer other than the Commanding Officer violated Rule 37(3) of the Army Rules, 1954 and that there was want of application of mind of the competent authority, i.e., the Lieutenant General.
63. It is at once evident that in the aforesaid cases, the impugned action had a direct bearing on the legal status of the incumbent concerned or had been of inflicting penalty and such cases stand at entirely different footing apart from the further fundamental difference that in all the aforesaid cases, there was noticed a direct violation of statutory requirement. The cases aforesaid are of no help to the submissions made on behalf of the petitioner in challenge to an ordinary transfer order where there is no violation of any statutory requirement. Of course, the case of Dr. Ramesh Chandra Tyagi v. Union of India and Ors. 1994 (1) SLR 838 had been of a matter relating to transfer but had its own peculiar facts where the petitioner, a man of high achievement and distinction, was offered a supernumerary post by the Government of India in the year 1971 and was appointed Temporary Principal Scientific Officer subject to approval of UPSC and was regularised in the year 1972 on the post of Principal Scientific Officer Solid Physics. On 29.02.1977, he was directed to hand over charge of his activities to other incumbents and to join at the Institute of Armament Technology, Pune on a post which presumably carried the same salary but which, according to the Director of Pune Institute, was neither suitable nor proper for the appellant. The appellant approached the High Court in writ jurisdiction but withdrew in view of 42nd Amendment to the Constitution and approached Civil Court but when no injunction was granted and a meeting with the concerned Secretary brought out chances of amicable solution, he withdrew the suit and was permitted to remain at Delhi, was put on deputation for one year, and was directed to join I.I.T., Delhi. The appellant though joined but was not satisfied and again approached the Civil Court seeking declaration that the transfer order was not only motivated but was unauthorised too for having not been passed by Secretary, who alone was competent to transfer him; however, when his deputation at I.I.T. came to an end, he was directed to join at Pune.
64. Then, there had been a spate of litigation and the respondents in their written statement in the suit defended the transfer order on the plea that the competent authority approved the order passed by the Director General. The appellant challenged such stand of the respondents and upon his application, record was summoned but the department failed to produce it; and the stand of the department was inconsistent about the authority competent to issue the transfer order. In the meantime, the department started disciplinary proceedings against the appellant for his not complying with the order passed in the year 1980 for joining at Pune; and such proceedings terminated ex parte whereby he was dismissed from service.
65. So far the validity of transfer order was concerned, the Hon'ble Supreme Court observed that it was undisputed that the competent authority to transfer was the Secretary whereas the order was passed by the Director General and no such alleged order of delegation was produced and then, the counsel appearing for the Union of India conceded that there was no such order of delegation on record. It was noticed that subsequently the Secretary had delegated the powers; and it was also noticed that the respondents failed to substantiate their case that the transfer order was approved. In this situation, the Hon'ble Supreme Court held that the person who alone was competent to do so did not pass the transfer order. Apart that it had the peculiar facts and surrounding circumstances, the aforesaid case of Dr. Ramesh Chandra Tyagi apparently stands in the category of the cases that make out violation of mandatory statutory requirement in relation to the transfer order and then, the transfer order had its own implications on the subsequent proceedings that resulted in termination of services of the appellant. The present one is not a case of absolute want of authority with the Regional Manager to issue the transfer order and there is no violation of statutory requirements. Hence, Dr. Ramesh Chandra Tyagi's case does not lend support to the case of the petitioner. Viewed from any angle, this writ petition remains totally bereft of substance and deserves to be dismissed with costs.
66. The writ petition is, therefore, dismissed with costs quantified at Rs. 5,500/-.