2020 (4) TMI 771 - HC - Indian Laws

Territorial Jurisdiction - transfer of subordinate officers from Shillong to Itanagar - power of judicial review - case of respondent is that the impugned order of transfer has been issued in clear breach of the declared Transfer Policy and is mala fide - HELD THAT - Transfer or posting of an employee is an incident of service. He cannot insist on his transfer at a place of his choice by raising the argument of discrimination by citing the example of others. Moreover, in the present case, the respondent has throughout his service career of 30 years remained in Shillong or nearby areas. Therefore, such argument of discrimination, even otherwise has no force. The Tribunal has quashed the order of transfer singularly on consideration of the fact that the petitioner was due to retire after a period of about 2 years. However, as per record, date of birth of the petitioner being 30.05.1962, he was due to retire on 30.05.2022. Counting from the date of the order of transfer dated 14.08.2019, the respondent was left with over 2 years and 9 months before retirement. The stipulation of the policy that employees who were left with 2 years or less service should normally be considered for being given a choice posting, would therefore not be attracted to the case of the respondent. In view of the law enunciated by the Supreme Court by catena of judicial pronouncements, the power of judicial review even in the matter of transfer, can be exercised by the High Court or the Tribunal within the defined parameters. We may in this connection cite the decided case law of the Supreme Court as to what are the limitations on the scope of interference of the Supreme Court in the matters of transfer of a Government employee. The Central Administrative Tribunal, while interfering with the order of transfer in the present case, has exceeded its jurisdiction, and erred in law in quashing the order of transfer - Petition allowed.

Summary

Issues Involved:
1. Legality of the transfer order dated 14.08.2019.
2. Application of the Department of Personnel and Training (DoPT) guidelines regarding officers nearing superannuation.
3. Tribunal's jurisdiction and scope of judicial review in transfer matters.
4. Allegations of discrimination and violation of natural justice.

Detailed Analysis:

1. Legality of the Transfer Order Dated 14.08.2019:
The transfer order dated 14.08.2019, challenged by the respondent, was issued as part of an Annual General Transfer overdue due to pending litigation (WP(C) No. 58 of 2019). The respondent argued that the transfer breached the New Transfer Policy dated 05.03.2015, which mandates transfers to be completed by 31st October each year. The Department contended the transfer was in administrative exigencies and routine, affecting 94 officers, not just the respondent. The High Court noted that the transfer was delayed due to the pending litigation and was part of a larger administrative necessity.

2. Application of DoPT Guidelines Regarding Officers Nearing Superannuation:
The respondent, aged 57 years and 8 months at the time of transfer, cited DoPT guidelines stating officers with 2 years or less from superannuation should be given their desired posting. The Tribunal initially supported this view, emphasizing the welfare objective behind such guidelines. However, the High Court clarified that since the respondent had over 2 years and 9 months before retirement, the guidelines did not apply. The High Court emphasized that while guidelines should be considered, they do not confer a legally enforceable right.

3. Tribunal's Jurisdiction and Scope of Judicial Review in Transfer Matters:
The High Court scrutinized the Tribunal's jurisdiction, referencing the Supreme Court's stance that transfer orders are an incident of service and generally not subject to judicial interference unless vitiated by mala fides or statutory violations. The High Court cited several precedents, including Union of India v. S.L. Abbas and State of U.P. v. Siya Ram, reinforcing that judicial review in transfer matters is limited. The High Court concluded that the Tribunal overstepped its jurisdiction by quashing the transfer order based on non-statutory guidelines.

4. Allegations of Discrimination and Violation of Natural Justice:
The respondent alleged discrimination, claiming other officers were favorably adjusted. However, the High Court found no such pleadings before the Tribunal and noted the respondent's long tenure in Shillong, undermining the discrimination claim. The High Court reiterated that transfer is an administrative matter, and citing examples of others does not establish a right to a particular posting. The High Court dismissed the argument of discrimination, emphasizing the respondent's extensive service in the same location.

Conclusion:
The High Court allowed the writ petition, setting aside the Tribunal's judgment and dismissing the respondent's Original Application. The Court upheld the Department's transfer order, emphasizing administrative exigency and the limited scope of judicial review in such matters. The decision underscores the principle that transfer policies and guidelines, while important, do not override administrative discretion unless statutory provisions are violated or transfers are mala fide.