Good Transfer Order - Transfer ko Policy/Guidelines/instructions ke taht kiya jaana chahiye, anyatha court dakhal de sakta hai -
The same law has been reiterated in Kendriya Vidyalaya Sanghthan Versus Damodar Prasad Pandey and Others 2004 (12) SCC 299 which has followed Abhonikanto Rai Versus State as well as noticed U.O.I. Versus S.L. Abbass. In Sarvesh Kumar Awasthi Ve U.P. Jal Nigam and others, 2003 Vol 11 SCC 740 , it was emphasized that transfer of officers is required to be effected on the basis of said norms and guidelines. Thus, taking the above law into account it cannot be said that if there is a violation of a published transfer policy/guidelines/instructions, the respondents can be allowed to justify the deviation by contending that the said policy not being statutory does not give any vested right or cause of action to the concerned employee
Central Administrative Tribunal - Allahabad
Original Application No.932 Of ... vs Union Of India on 21 May, 2015
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD
(THIS THE 21st DAY OF MAY, 2015)
Present
HONBLE MS. JASMINE AHMED, MEMBER (J)
Original Application No.932 OF 2013
(U/S 19, Administrative Tribunal Act, 1985)
Sanjeev Kumar Singh, aged about 32 years, son of Rabindra Singh, Presently posted as LDC in the office of G.E. Clement Town, Dehradun (Uttarakhand).
Applicant
V E R S U S
1. Union of India through Secretary, Ministry of Defence, New Delhi.
2. Engineer-in-Chiefs, Branch Army Head Quarter Kashmir House, P.O. New Delhi-11.
3. Chief Engineer, Head Quarter Central Command, Lucknow-2.
4. The Commander Works Engineer (MES), Dehradun.
5. Garrison Engineer, Clement Town, Dehradun (Uttarakhand).
..Respondents
Advocates for the Applicant:- Shri N.P. Singh
Advocate for the Respondents:- Shri Anil Kumar Singh
O R D E R
DELIVERED BY HONBLE MS. JASMINE AHMED, MEMBER (J) By way of this original application filed under section 19 of the Administrative Tribunals Act 1985 the applicant has prayed for the following reliefs:-
A.) To issue a writ order in nature of certiorari quashing the impugned transfer order dated 18.04.2013 and rejection order dated 08.07.2013 in respect of applicant (Annexure No.A-1 and Annexure No.A-14) of the original application passed by the respondent no.3.
B) Issue a direction in the nature of mandamus commanding the respondents not to interfere in the present working of the applicant as LDC GE Claimant Town, Dehradun and reconsider the matter in the light of latest transfer policy dated 27.08.2007 under the head of CML posting.
C) To issue any other writ order or direction as this Court may deem fit and proper in the facts and circumstances of the case.
D) To award cost to the applicant.
2. The brief facts of the case are that the applicant has been appointed as LDC with the respondents organization in the year 2007 and since then he is discharging his duties with the full satisfaction of his superior authorities. Suddenly the applicant has been transferred on 18.4.2013 from GE/CT Dehradun to CE Lucknow. This is the second round of litigation wherein this Tribunal by order dated 15.5.2013 in OA no.591 of 2013 (U) disposed of the OA with a direction to the respondents to decide the representation preferred by the applicant dated 11.3.2013 in the light of the rule position which is enumerated in the guidelines and also taking into consideration the personal problems of the applicant. It was also directed that the representation should be decided within a period of two months from the date of receipt of a certified copy of that order. The respondents by letter dated 8.7.2013 disposed of the representation of the applicant dated 11.3.2013 regretting his request but the reply given by the respondents reflects the contradiction with their own published rules and guidelines.
3. The applicant assailed this OA challenging the reply dated 8.7.2013. By order dated 26.7.2013 the applicant was granted interim protection by staying the transfer order dated 18.4.2013 which is continued till date. The applicant is challenging the transfer order dated 18.4.2013 and also the rejection order dated 8.7.2013 on various points. He states that the transfer is against the transfer posting guidelines issued by the Ministry of Defence. The applicant is challenging the CML i.e. Command Manning Level posting. He states that as per Rule 36(b) of the CML posting guidelines dated 27.8.2007 he would be liable for transfer only on completion of six years service from 24.3.2009. The clause 36(b) of CML Posting reads as under:-
CML Posting will be normally from executive to executive except to the Home station of the individual concerned provided employees executive tenure is not acceded beyond six years continuously. All postings under CML shall be issued by end of March every year keeping in view the academic session of children and will be implemented latest by 15th May each year.
4. The counsel for the applicant states that as per these guidelines the applicant could not be transferred before completion of six years. He has also stated that while transferring the applicant respondents has followed pick and choose policy as employees are sitting at Dehradun since 10.5.2007 wherein the applicant was posted on 24.3.2009. He also states that as per clause 35 of CML Posting policy dated 27.8.2007 the transfer should be done between the command but not within the command meaning thereby the transfer should be inter command not intra command but here in this case the transfer order is intra command. The counsel for the applicant contends that even while transferring the applicant the respondents has violated the provision of 36(d) also as they have not asked the volunteers and newly recruited employees for opting transfer.
5. By the aforesaid contentions the applicant has emphasized that the transfer order passed by the respondent is based on pick and choose policy and against the published policy/guidelines/instructions. The respondents have violated their own guidelines with impunity and thus the said transfer order dated 18.4.2013 is liable to be quashed and set aside with all consequential benefits.
6. The respondents have filed their reply wherein they have stated that transfer is an incidence of service and also stated that no contravention of the guidelines dated 27.8.2007 has been made by the respondents. The respondents have stated that Central Command, Lucknow holding CML percentage of Civilian Clerical category was 63% as per which holding of Dehradun Complex was exceeding by 11 clerks. He also stated that as per para 36(a)and 36 (b) of the existing posting policy to maintain CML holding above command manning level percentage by Dehradun complex i.e. 11 individuals of Dehradun complex were require to be withdrawn and posted to other unit where deficiency existed to maintain informalities of CML. They have denied that any violation of policy dated 27.8.2007 has been committed by the respondents. The counsel for the respondents have further contented that the transfer under CML posting policy document/guidelines/instructions do not give any vested right to the applicant to challenge the impugned transfer order particularly when there is no statute on the question of transfer. The respondents have also contended that violation of transfer policy/guidelines/instructions does not vitiate the transfer order.
7. It is observed that there is no contradiction or dispute in the pleadings and arguments in the case that there exist a policy guidelines dated 27.8.2007. The only issue is where there is a published transfer policy/guidelines/instructions in existence and the transfer has been made in violation of the provisions of the same, can the respondents be allowed to justify the deviations by contending that the transfer policy/guidelines/instructions do not give any vested right to the applicant? Secondly, often the deviations from the published transfer policy/guidelines/instructions are sought to be justified on the ground of administrative requirement/exigency and in the interest of the organization or in public interest. Thus, the second issue that needs to be considered is what are the parameters for justifying the deviations on the ground of administrative requirement/exigency or in the interest of the organization or public interest.
8. It is seen that there is a very detailed and comprehensive transfer policy/guidelines/instructions for management of Group C and D Personnel of the MES issued and circulated on 27.8.2007 by the Directorate General(Personnel), Engineer-in-Chiefs Branch. The said policy/guidelines/instructions caters to very detailed and minute aspects of transfer and posting of the personnel of MES. The clauses and various provisions like clause 36(b) and 36(d) relied upon by the applicant as referred above clearly shows that the said provisions have been ignored by the respondent while transferring the applicant by the impugned order dated 18.4.2013.
9. Before going into the two specific issues identified above it would be appropriate to deal with one of the contentions of the respondents that the ordinary tenure of continuous six years mentioned in clause 36(b) of the said transfer policy/guidelines/instructions is only the maximum tenure and there is no bar of transferring an employee before the completion of the said tenure. The submission of the respondents must be examined from the point of view of the objective with which the said transfer policy/guideline/instruction has been issued. The very first paragraph of the said policy contends the objective of the policy. The same is quoted below:-
1. The Management of Group C & D of MES manpower rests with CEs of various Commands. There has to be uniformity in the policy, accordingly guidelines have been issued by this HQ letter No.79040/EIC (1) Dated 31 Aug 1994 and No.B/20148/PP/EIC(1) dated 16 April 2003 as amended from time to time. The said policy guidelines are uniformly applicable to all CEs Command irrespective of the their geographic spread and peculiarlties, number of Zones/complexes/station etc. There is need to consider the applicability and practical problems being faced by the employees in a particular Command and to draw out a comprehensive policy so as to suit the organizational need and Individual aspirations of Commands. The present policy has been evolved based on the experience gained through various representations received and interaction made with various employees unions and associations.
10. The very first paragraph, as quoted above is in the nature of preamble of the transfer policy it is clearly revealed that the transfer policy has been introduced with the view of bringing uniformity in transfers affected in various commands. While framing the policy, practical problems being faced by the employees have been given due consideration. Besides, it is also apparent that the policy is a comprehensive one dealing with almost every aspect of the transfer and has been evolved over a period of time based upon the difficulties mentioned in various representations in the past and interaction with employees unions and associations. Such a policy which has been evolved over a period of time based on the difficulties and problems faced by the employees and organizational needs cannot be construed as a mare piece of paper. When taking all the rival aspects into consideration, the competent authority has prescribed a continuous tenure of six years for an employee to be eligible for transfer then normally the said tenure must be adhered to unless there is an extra ordinary reason to curtail the tenure in any given case. The contention of the respondents that the same is only a maximum tenure cannot be accepted at its face value. In the context in which transfer policy has been framed and the objective behind the transfer policy, it must be held that the six years tenure prescribed in clause 36 (b) is both the maximum tenure as well as the normal tenure. If such an interpretation is not given, then the policy/guideline will loose its sanctity as an employee can be transferred at any time before the completion of his normal tenure. Thus the main objectives of the policy namely uniformity in all commands, the norms of transfer developed over a period of time by keeping individuals hardships and organizational needs will be reduced to a farce. It is not that in an emergency situation an employee cannot be transferred before the completion of his tenure. But any deviation from the said tenure has to be justified by the respondent case wise with reference to the material justifying a deviation. In the instant case, admittedly the applicant has not completed his normal and maximum tenure of six years nor any materials has been produced or pleaded to justify reduction of normal tenure in respect of the applicant.
11. Thus, as far as the first issue is concerned it may be noted here that the existence of a published transfer policy guidelines is not in dispute in this case at all. It is also not in dispute that as on date of issuance of the transfer order, the applicant had not completed his tenure of six years at GE/City Dehradun. But, the respondents contented that such policy/guidelines/instructions do not give any right to the applicant to challenge the transfer order, they being mare policy/guidelines/instructions and not statutory rules. The Honble Supreme Court in the case of Rajendra Roy Versus Union of India, 1993 (1) SCC 148, held as under:-
7.Unless such order is passed malafide or in violation of the rules of service and guidelines for transfer without any proper justification, the court and the tribunal should not interfere with the order of transfer.
12. Further, in the case of Abanikanta Ray Versus State of Orissa, 1995 Supp (4) SCC 169 the Honble Apex Court held as follows:-
10. It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principles governing the transfer.
13. The same law has been reiterated in Kendriya Vidyalaya Sanghthan Versus Damodar Prasad Pandey and Others 2004 (12) SCC 299 which has followed Abhonikanto Rai Versus State as well as noticed U.O.I. Versus S.L. Abbass. In Sarvesh Kumar Awasthi Ve U.P. Jal Nigam and others, 2003 Vol 11 SCC 740 , it was emphasized that transfer of officers is required to be effected on the basis of said norms and guidelines. Thus, taking the above law into account it cannot be said that if there is a violation of a published transfer policy/guidelines/instructions, the respondents can be allowed to justify the deviation by contending that the said policy not being statutory does not give any vested right or cause of action to the concerned employee.
14. The second issue is about justifying a transfer order in violation of a published policy on the ground of administrative requirement or exigency or in the interest of the organization state or in public interest. As far as the present case is concerned, it may be noted here that though the respondents have mentioned in the counter affidavit that the transfer of the applicant has been effected in the interest of the state, no where the said interest of the state/organization has been explained. How the transfer of the applicant is in the interest of the state/organization? What administrative requirement or exigency compelled the respondents to transfer the applicant before the completion of his ordinary tenure of 6 years? Answers to these questions are not forthcoming either in the counter reply or in the oral submissions of the respondents.
15. The defence of administrative requirement/exigency or in the interest of state/organization or in public interest, in the context of transfer, mean only one and the same thing. These are various different words to describe an exigency in administration so as to justify a deviation from a professed norm. The word Exigency has been defined as follows in the New Lexicon Websters Dictionary:
a pressing need, the state or quality of being urgently needed. Blacks Law Dictionary, 8th Edition defines the same word as follows:
A state of urgency; a situation requiring immediate action Similarly, William C. Burtons Legal Thesaurus defines the word as follows:
Crisis, critical situation, difficulty, pressing necessity, pressure, urgent need.
16. Thus, from the above authentic definitions, it is clear that an administrative exigency is a very pressing necessity, a critical necessity and a situation of great urgency. Thus, normal situations or circumstances do not come under the purview of administrative exigency. If the situation is a routine situation or a normally prevalent situation, then the contention of administrative exigency/requirement etc. has to be rejected. Further, to invoke the defence of administrative exigency/requirement or its various synonyms like in the interest of the organization or in public interest, the pressing need, or the critical situation etc. must be demonstrated in the pleadings of the respondents duly supported by the office files on the basis of which such counter affidavits are prepared. Thus, to summarize, to advance the argument of administrative exigency or its various synonyms as noticed above, the pressing need, critical situation etc. must have been considered by the competent authority in the files and also must have been demonstrated in the counter affidavit. Conversely, in the absence of any pleadings containing details of pressing needs, urgent or difficult situation necessitating a deviation from the professed norms, the defence of administrative exigency and its various synonyms would not be available to the respondents.
17. In other words administrative requirement or exigency is not a mantra to be uttered by the respondents to get the benefit of the same, but has to be demonstrated by pleadings and supporting materials. In the instant case except for uttering the word in the interest of the State/organization as a mantra, nothing has been mentioned about any pressing need or difficult or critical situation etc. to justify a deviation from the published and professed norms in the form of policy/guidelines/instructions. Thus, in the facts of the case where there is no pleadings to justify any exigency, the contention of the respondents deserves to be rejected.
18. Clause 52 of the transfer guidelines dated 27.8.2007 states generally Group C And D employees should not normally be transferred from one station to another station except in very special circumstances like adjustment of surplus and deficiency, promotion, compassionate ground/mutual basis, exigencies of service on as an administrative requirement. The respondents in their rejection letter dated 8.7.2013 taken the plea of 11 numbers extra holding of CML and has stated longest stayees were required to be taken off from Dehradun complex and posted to where deficiency is existing as per CML. But it is found that there are employees who have been retained at Dehradun who were posted at Dehradun much before the applicant hence the contention of the respondents are proved to be incorrect as they have not followed the seniority position while dealing with CML posting which is contradiction of Clause 55 of the transfer guidelines dated 27.08.2007. It is also stated by the counsel for the applicant as well as by the representation of the applicant that in one hand the respondents are stating that there are surplus staffs in clerical cadre, on the other hand to cope up with clerical work, 5-6 industrial workers are deployed for clerical work. He also stated that the industrial workers are from different grades and are not expected to be shifted from their respective discipline to deal with clerical work. He states that the applicant in his representation took this categorical plea but the respondents did not reply anything on this point which clearly reflects that the plea of surplus and satisfaction level is very artificially manipulated just to harass the employees of lower starta, keeping in view their megre salary Government of India has time and again by its various orders prohibited the transfer of group C and D employees.
19. In view of the above discussion, the OA succeeds. The impugned transfer order under CML posting dated 18.4.2013 in respect of the applicant is quashed and set aside. Similarly the order dated 8.7.2013 rejecting the representation of the applicant is also quashed and set aside. The applicant would be entitled to all consequential benefits. However, in the facts of the case, the parties are left to bear their own costs.
[JASMINE AHMED] Member (J) /ns/
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The same law has been reiterated in Kendriya Vidyalaya Sanghthan Versus Damodar Prasad Pandey and Others 2004 (12) SCC 299 which has followed Abhonikanto Rai Versus State as well as noticed U.O.I. Versus S.L. Abbass. In Sarvesh Kumar Awasthi Ve U.P. Jal Nigam and others, 2003 Vol 11 SCC 740 , it was emphasized that transfer of officers is required to be effected on the basis of said norms and guidelines. Thus, taking the above law into account it cannot be said that if there is a violation of a published transfer policy/guidelines/instructions, the respondents can be allowed to justify the deviation by contending that the said policy not being statutory does not give any vested right or cause of action to the concerned employee
Central Administrative Tribunal - Allahabad
Original Application No.932 Of ... vs Union Of India on 21 May, 2015
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD
(THIS THE 21st DAY OF MAY, 2015)
Present
HONBLE MS. JASMINE AHMED, MEMBER (J)
Original Application No.932 OF 2013
(U/S 19, Administrative Tribunal Act, 1985)
Sanjeev Kumar Singh, aged about 32 years, son of Rabindra Singh, Presently posted as LDC in the office of G.E. Clement Town, Dehradun (Uttarakhand).
Applicant
V E R S U S
1. Union of India through Secretary, Ministry of Defence, New Delhi.
2. Engineer-in-Chiefs, Branch Army Head Quarter Kashmir House, P.O. New Delhi-11.
3. Chief Engineer, Head Quarter Central Command, Lucknow-2.
4. The Commander Works Engineer (MES), Dehradun.
5. Garrison Engineer, Clement Town, Dehradun (Uttarakhand).
..Respondents
Advocates for the Applicant:- Shri N.P. Singh
Advocate for the Respondents:- Shri Anil Kumar Singh
O R D E R
DELIVERED BY HONBLE MS. JASMINE AHMED, MEMBER (J) By way of this original application filed under section 19 of the Administrative Tribunals Act 1985 the applicant has prayed for the following reliefs:-
A.) To issue a writ order in nature of certiorari quashing the impugned transfer order dated 18.04.2013 and rejection order dated 08.07.2013 in respect of applicant (Annexure No.A-1 and Annexure No.A-14) of the original application passed by the respondent no.3.
B) Issue a direction in the nature of mandamus commanding the respondents not to interfere in the present working of the applicant as LDC GE Claimant Town, Dehradun and reconsider the matter in the light of latest transfer policy dated 27.08.2007 under the head of CML posting.
C) To issue any other writ order or direction as this Court may deem fit and proper in the facts and circumstances of the case.
D) To award cost to the applicant.
2. The brief facts of the case are that the applicant has been appointed as LDC with the respondents organization in the year 2007 and since then he is discharging his duties with the full satisfaction of his superior authorities. Suddenly the applicant has been transferred on 18.4.2013 from GE/CT Dehradun to CE Lucknow. This is the second round of litigation wherein this Tribunal by order dated 15.5.2013 in OA no.591 of 2013 (U) disposed of the OA with a direction to the respondents to decide the representation preferred by the applicant dated 11.3.2013 in the light of the rule position which is enumerated in the guidelines and also taking into consideration the personal problems of the applicant. It was also directed that the representation should be decided within a period of two months from the date of receipt of a certified copy of that order. The respondents by letter dated 8.7.2013 disposed of the representation of the applicant dated 11.3.2013 regretting his request but the reply given by the respondents reflects the contradiction with their own published rules and guidelines.
3. The applicant assailed this OA challenging the reply dated 8.7.2013. By order dated 26.7.2013 the applicant was granted interim protection by staying the transfer order dated 18.4.2013 which is continued till date. The applicant is challenging the transfer order dated 18.4.2013 and also the rejection order dated 8.7.2013 on various points. He states that the transfer is against the transfer posting guidelines issued by the Ministry of Defence. The applicant is challenging the CML i.e. Command Manning Level posting. He states that as per Rule 36(b) of the CML posting guidelines dated 27.8.2007 he would be liable for transfer only on completion of six years service from 24.3.2009. The clause 36(b) of CML Posting reads as under:-
CML Posting will be normally from executive to executive except to the Home station of the individual concerned provided employees executive tenure is not acceded beyond six years continuously. All postings under CML shall be issued by end of March every year keeping in view the academic session of children and will be implemented latest by 15th May each year.
4. The counsel for the applicant states that as per these guidelines the applicant could not be transferred before completion of six years. He has also stated that while transferring the applicant respondents has followed pick and choose policy as employees are sitting at Dehradun since 10.5.2007 wherein the applicant was posted on 24.3.2009. He also states that as per clause 35 of CML Posting policy dated 27.8.2007 the transfer should be done between the command but not within the command meaning thereby the transfer should be inter command not intra command but here in this case the transfer order is intra command. The counsel for the applicant contends that even while transferring the applicant the respondents has violated the provision of 36(d) also as they have not asked the volunteers and newly recruited employees for opting transfer.
5. By the aforesaid contentions the applicant has emphasized that the transfer order passed by the respondent is based on pick and choose policy and against the published policy/guidelines/instructions. The respondents have violated their own guidelines with impunity and thus the said transfer order dated 18.4.2013 is liable to be quashed and set aside with all consequential benefits.
6. The respondents have filed their reply wherein they have stated that transfer is an incidence of service and also stated that no contravention of the guidelines dated 27.8.2007 has been made by the respondents. The respondents have stated that Central Command, Lucknow holding CML percentage of Civilian Clerical category was 63% as per which holding of Dehradun Complex was exceeding by 11 clerks. He also stated that as per para 36(a)and 36 (b) of the existing posting policy to maintain CML holding above command manning level percentage by Dehradun complex i.e. 11 individuals of Dehradun complex were require to be withdrawn and posted to other unit where deficiency existed to maintain informalities of CML. They have denied that any violation of policy dated 27.8.2007 has been committed by the respondents. The counsel for the respondents have further contented that the transfer under CML posting policy document/guidelines/instructions do not give any vested right to the applicant to challenge the impugned transfer order particularly when there is no statute on the question of transfer. The respondents have also contended that violation of transfer policy/guidelines/instructions does not vitiate the transfer order.
7. It is observed that there is no contradiction or dispute in the pleadings and arguments in the case that there exist a policy guidelines dated 27.8.2007. The only issue is where there is a published transfer policy/guidelines/instructions in existence and the transfer has been made in violation of the provisions of the same, can the respondents be allowed to justify the deviations by contending that the transfer policy/guidelines/instructions do not give any vested right to the applicant? Secondly, often the deviations from the published transfer policy/guidelines/instructions are sought to be justified on the ground of administrative requirement/exigency and in the interest of the organization or in public interest. Thus, the second issue that needs to be considered is what are the parameters for justifying the deviations on the ground of administrative requirement/exigency or in the interest of the organization or public interest.
8. It is seen that there is a very detailed and comprehensive transfer policy/guidelines/instructions for management of Group C and D Personnel of the MES issued and circulated on 27.8.2007 by the Directorate General(Personnel), Engineer-in-Chiefs Branch. The said policy/guidelines/instructions caters to very detailed and minute aspects of transfer and posting of the personnel of MES. The clauses and various provisions like clause 36(b) and 36(d) relied upon by the applicant as referred above clearly shows that the said provisions have been ignored by the respondent while transferring the applicant by the impugned order dated 18.4.2013.
9. Before going into the two specific issues identified above it would be appropriate to deal with one of the contentions of the respondents that the ordinary tenure of continuous six years mentioned in clause 36(b) of the said transfer policy/guidelines/instructions is only the maximum tenure and there is no bar of transferring an employee before the completion of the said tenure. The submission of the respondents must be examined from the point of view of the objective with which the said transfer policy/guideline/instruction has been issued. The very first paragraph of the said policy contends the objective of the policy. The same is quoted below:-
1. The Management of Group C & D of MES manpower rests with CEs of various Commands. There has to be uniformity in the policy, accordingly guidelines have been issued by this HQ letter No.79040/EIC (1) Dated 31 Aug 1994 and No.B/20148/PP/EIC(1) dated 16 April 2003 as amended from time to time. The said policy guidelines are uniformly applicable to all CEs Command irrespective of the their geographic spread and peculiarlties, number of Zones/complexes/station etc. There is need to consider the applicability and practical problems being faced by the employees in a particular Command and to draw out a comprehensive policy so as to suit the organizational need and Individual aspirations of Commands. The present policy has been evolved based on the experience gained through various representations received and interaction made with various employees unions and associations.
10. The very first paragraph, as quoted above is in the nature of preamble of the transfer policy it is clearly revealed that the transfer policy has been introduced with the view of bringing uniformity in transfers affected in various commands. While framing the policy, practical problems being faced by the employees have been given due consideration. Besides, it is also apparent that the policy is a comprehensive one dealing with almost every aspect of the transfer and has been evolved over a period of time based upon the difficulties mentioned in various representations in the past and interaction with employees unions and associations. Such a policy which has been evolved over a period of time based on the difficulties and problems faced by the employees and organizational needs cannot be construed as a mare piece of paper. When taking all the rival aspects into consideration, the competent authority has prescribed a continuous tenure of six years for an employee to be eligible for transfer then normally the said tenure must be adhered to unless there is an extra ordinary reason to curtail the tenure in any given case. The contention of the respondents that the same is only a maximum tenure cannot be accepted at its face value. In the context in which transfer policy has been framed and the objective behind the transfer policy, it must be held that the six years tenure prescribed in clause 36 (b) is both the maximum tenure as well as the normal tenure. If such an interpretation is not given, then the policy/guideline will loose its sanctity as an employee can be transferred at any time before the completion of his normal tenure. Thus the main objectives of the policy namely uniformity in all commands, the norms of transfer developed over a period of time by keeping individuals hardships and organizational needs will be reduced to a farce. It is not that in an emergency situation an employee cannot be transferred before the completion of his tenure. But any deviation from the said tenure has to be justified by the respondent case wise with reference to the material justifying a deviation. In the instant case, admittedly the applicant has not completed his normal and maximum tenure of six years nor any materials has been produced or pleaded to justify reduction of normal tenure in respect of the applicant.
11. Thus, as far as the first issue is concerned it may be noted here that the existence of a published transfer policy guidelines is not in dispute in this case at all. It is also not in dispute that as on date of issuance of the transfer order, the applicant had not completed his tenure of six years at GE/City Dehradun. But, the respondents contented that such policy/guidelines/instructions do not give any right to the applicant to challenge the transfer order, they being mare policy/guidelines/instructions and not statutory rules. The Honble Supreme Court in the case of Rajendra Roy Versus Union of India, 1993 (1) SCC 148, held as under:-
7.Unless such order is passed malafide or in violation of the rules of service and guidelines for transfer without any proper justification, the court and the tribunal should not interfere with the order of transfer.
12. Further, in the case of Abanikanta Ray Versus State of Orissa, 1995 Supp (4) SCC 169 the Honble Apex Court held as follows:-
10. It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principles governing the transfer.
13. The same law has been reiterated in Kendriya Vidyalaya Sanghthan Versus Damodar Prasad Pandey and Others 2004 (12) SCC 299 which has followed Abhonikanto Rai Versus State as well as noticed U.O.I. Versus S.L. Abbass. In Sarvesh Kumar Awasthi Ve U.P. Jal Nigam and others, 2003 Vol 11 SCC 740 , it was emphasized that transfer of officers is required to be effected on the basis of said norms and guidelines. Thus, taking the above law into account it cannot be said that if there is a violation of a published transfer policy/guidelines/instructions, the respondents can be allowed to justify the deviation by contending that the said policy not being statutory does not give any vested right or cause of action to the concerned employee.
14. The second issue is about justifying a transfer order in violation of a published policy on the ground of administrative requirement or exigency or in the interest of the organization state or in public interest. As far as the present case is concerned, it may be noted here that though the respondents have mentioned in the counter affidavit that the transfer of the applicant has been effected in the interest of the state, no where the said interest of the state/organization has been explained. How the transfer of the applicant is in the interest of the state/organization? What administrative requirement or exigency compelled the respondents to transfer the applicant before the completion of his ordinary tenure of 6 years? Answers to these questions are not forthcoming either in the counter reply or in the oral submissions of the respondents.
15. The defence of administrative requirement/exigency or in the interest of state/organization or in public interest, in the context of transfer, mean only one and the same thing. These are various different words to describe an exigency in administration so as to justify a deviation from a professed norm. The word Exigency has been defined as follows in the New Lexicon Websters Dictionary:
a pressing need, the state or quality of being urgently needed. Blacks Law Dictionary, 8th Edition defines the same word as follows:
A state of urgency; a situation requiring immediate action Similarly, William C. Burtons Legal Thesaurus defines the word as follows:
Crisis, critical situation, difficulty, pressing necessity, pressure, urgent need.
16. Thus, from the above authentic definitions, it is clear that an administrative exigency is a very pressing necessity, a critical necessity and a situation of great urgency. Thus, normal situations or circumstances do not come under the purview of administrative exigency. If the situation is a routine situation or a normally prevalent situation, then the contention of administrative exigency/requirement etc. has to be rejected. Further, to invoke the defence of administrative exigency/requirement or its various synonyms like in the interest of the organization or in public interest, the pressing need, or the critical situation etc. must be demonstrated in the pleadings of the respondents duly supported by the office files on the basis of which such counter affidavits are prepared. Thus, to summarize, to advance the argument of administrative exigency or its various synonyms as noticed above, the pressing need, critical situation etc. must have been considered by the competent authority in the files and also must have been demonstrated in the counter affidavit. Conversely, in the absence of any pleadings containing details of pressing needs, urgent or difficult situation necessitating a deviation from the professed norms, the defence of administrative exigency and its various synonyms would not be available to the respondents.
17. In other words administrative requirement or exigency is not a mantra to be uttered by the respondents to get the benefit of the same, but has to be demonstrated by pleadings and supporting materials. In the instant case except for uttering the word in the interest of the State/organization as a mantra, nothing has been mentioned about any pressing need or difficult or critical situation etc. to justify a deviation from the published and professed norms in the form of policy/guidelines/instructions. Thus, in the facts of the case where there is no pleadings to justify any exigency, the contention of the respondents deserves to be rejected.
18. Clause 52 of the transfer guidelines dated 27.8.2007 states generally Group C And D employees should not normally be transferred from one station to another station except in very special circumstances like adjustment of surplus and deficiency, promotion, compassionate ground/mutual basis, exigencies of service on as an administrative requirement. The respondents in their rejection letter dated 8.7.2013 taken the plea of 11 numbers extra holding of CML and has stated longest stayees were required to be taken off from Dehradun complex and posted to where deficiency is existing as per CML. But it is found that there are employees who have been retained at Dehradun who were posted at Dehradun much before the applicant hence the contention of the respondents are proved to be incorrect as they have not followed the seniority position while dealing with CML posting which is contradiction of Clause 55 of the transfer guidelines dated 27.08.2007. It is also stated by the counsel for the applicant as well as by the representation of the applicant that in one hand the respondents are stating that there are surplus staffs in clerical cadre, on the other hand to cope up with clerical work, 5-6 industrial workers are deployed for clerical work. He also stated that the industrial workers are from different grades and are not expected to be shifted from their respective discipline to deal with clerical work. He states that the applicant in his representation took this categorical plea but the respondents did not reply anything on this point which clearly reflects that the plea of surplus and satisfaction level is very artificially manipulated just to harass the employees of lower starta, keeping in view their megre salary Government of India has time and again by its various orders prohibited the transfer of group C and D employees.
19. In view of the above discussion, the OA succeeds. The impugned transfer order under CML posting dated 18.4.2013 in respect of the applicant is quashed and set aside. Similarly the order dated 8.7.2013 rejecting the representation of the applicant is also quashed and set aside. The applicant would be entitled to all consequential benefits. However, in the facts of the case, the parties are left to bear their own costs.
[JASMINE AHMED] Member (J) /ns/
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