Mr.TVSK Reddy v. Union of India
Case at a glance
Provisions considered
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2011CORAM:THE HONOURABLE MR. JUSTICE K.N.BASHAW.P.No.9614 of 2011and M.P.Nos.2 & 3 of 2011Mr.TVSK Reddy.. PetitionerVs.
Union of India, Through The Secretary, Govt. of India, Ministry of Defence, New Delhi-110 011.
The Air Officer Commanding Air Force Record Office, Subrata Park, New Delhi-110 010.
The Commanding Officer, 8 BRD, Air Force Station Avadi, Chennai 600 055... RespondentsPRAYER: Writ petition filed under Article 226 of the Constitutionof India to issue a Writ of Certiorarified Mandamus, calling forthe entire records leading to the posting tenure of the petitionerand Impugned Order No.8BRD/2602/2/P3, dated 16th November 2010,passed by the 3rd respondent (with the authority No.RO/RDB/455,dated 04th November 2010 & RDB/451, dated 07th January 2011, passedby the 2nd respondent) and quash the impugned order passed by the 3rdrespondent and direct the respondents not to post out thepetitioner from the present until till petitioner's date ofdischarge i.e., on 31st May 2013, which falls within the normalposting tenure or the petitioner may be given discharge fromservice with immediate effect, with all consequential monetarybenefits. For Petitioner : M/s.M.K.SikdarFor Respondents :Mr.M.Ravindran, Additional Solicitor General for Mr.M.Devendran for R1 to R3 https://hcservices.ecourts.gov.in/hcservices/
O R D E RThough this matter is posted for submitting arguments inrespect of the vacate stay petition, by mutual consent of both theparties, the main writ petition itself is taken up for finalhearing. 2. The petitioner has come forward with this petition seekingfor the relief of quashing the Impugned Order No.8BRD/2602/2/P3,dated 16th November 2010, passed by the 3rd respondent (with theauthority No.RO/RDB/455, dated 04th November 2010 & RDB/451, dated07th January 2011, passed by the 2nd respondent) and quash theimpugned order passed by the 3rd respondent and direct therespondents not to post out the petitioner from the present untiltill petitioner's date of discharge i.e., on 31st May 2013, whichfalls within the normal posting tenure or the petitioner may begiven discharge from service with immediate effect, with allconsequential monetary benefits. 3. The case of the petitioner is that he has joined Indian AirForce as an Airman on 22.02.1991 and he was posted at No.8, BRD,Air Force Station Avadi, Chennai under the third respondent hereinwith effect from 25.05.2009. He was promoted to the rank of JuniorWarrant Officer on 01.06.2010. The petitioner was havingunblemished record of service as a devoted, dedicated and loyalsoldier. The petitioner was posted in different units of therespondents but he was never posted in his home town. He is havingaged parents, wife and one minor girl child. He has alsodemolished his ancestral house and started new construction ofhouse for his resettlement at Gudur, Andhra Pradesh State, with thehope that he would have his last posting tenure with the thirdrespondent at No.8, BRD, Air Force Station Avadi, Chennai.
The petitioner was posted at No.331, TRU, Shahsitar, Jammu& Kashmir on 10.03.2008 for a limited tenure of 2 years as the saidUnit of the respondents is classified as hard area. As per the Posting and Tenure Policy of the respondents, after a hard areaposting, the petitioner was entitled for a choice of posting with anormal tenure for 4 to 5 years. The petitioner sustained grievousinjuries in an accident on 25.10.2008 and he was admitted in ahospital with multiple fractures and underwent operations. Thepetitioner has not recovered fully and he has problem in his rightknee and left wrist. The petitioner, as per his choice, was postedat No.8, BRD, Air Force Station, Avadi, Chennai. The petitionerwas given promotion to the rank of Junior Warrant Officer on01.06.2010 and re-posted at the same unit and subject toundertaking to serve 3 years from the date of promotion and thethird respondent arbitrarily obtained signature from the petitionerwith influence, as if he was willing to serve 3 years more from thedate of his promotion to the rank of JWO. The petitioner is leftwith no other option, except to sign the printed papers of therespondents. https://hcservices.ecourts.gov.in/hcservices/
The petitioner made a representation to the thirdrespondent stating that posting tenure is a normal tenure for 4 to5 years as he had came from hard area and as such, he should notbeen transferred on promotion. However, his representation was notaccepted and the petitioner was posted at No.859 SU, Jaisalmer asper the impugned order No.8 BRD/2602/2/P3 dated 16.11.2010 passedby the third respondent. The petitioner made a representation forcancellation of the said order as per his application dated11.11.2010. The second respondent considered the representation ofthe petitioner partially and modified the date of posting from28.02.2011 to 02.05.2011, vide Signal No.RDB/451 dated 07.01.2011and Signal No.RDB/961 dated 11.01.2011. The petitioner made furtherrepresentation dated 18.01.2011. However, the said representationwas also rejected on 25.03.2011. Being aggrieved against the saidorders, the petitioner has come forward with this petition with theabove said prayer.
The learned counsel for the petitioner mainly contendedthat the impugned order of transfer was passed against the writpetitioner to the effect of violation of choice of the petitionerto chose a place after serving at the hard area. It is contendedby the learned counsel for the petitioner that the petitioner hadalready rendered enough service in the hard area and due to medicalgrounds, he has been transferred to Chennai and now through theimpugned order, the petitioner has been again transferred to a hardarea. The learned counsel for the petitioner also submitted thatthe petitioner's signature was arbitrarily obtained by the thirdrespondent at the time of promoting the petitioner on 01.06.2010.It is further submitted that now the petitioner having shifted to Chennai, Air Force Station, Avadi, is entitled to complete thetenure of 4 to 5 years and as on date, nearly about 2 years oftenure, the promotion is offered. Therefore, it is contended thatthe impugned order is liable to be set aside. In support of thiscontentions, learned counsel for the petitioner placed reliance onthe decision of the Hon'ble Apex Court in Dharam Pal Singh v. Unionof India reported in AIR 2004 SC 611. The learned counsel for thepetitioner without prejudice to his earlier contentions would alsosubmit that in the event of not accepting the above saidcontentions, the petitioner may be granted some breathing time forjoining duty in the transferred post on the ground of his personaldifficulties, namely, he has to make arrangements for taking careof his aged parents and to attend the construction work of hishouse at Gudur, Andhra Pradesh State.
Per contra, Mr.M.Raveendran, learned Additional SolicitorGeneral contended that there is no infirmity or illegality in theimpugned order of transfer. It is contended that only on the basisof the undertaking given by the petitioner to the effect that he isready and willing to serve in the promoted post for a period ofthree years, he has been promoted from the post of Airman to thepost of JWO (Junior Warrant Officer). The learned AdditionalSolicitor General would further contend that the petitioner hasbeen medically certified to be fit and only thereafter, he has been https://hcservices.ecourts.gov.in/hcservices/ promoted and posted at No.859 SU, Jaisalmer through the impugnedorder. It is pointed out that the petitioner in his applicationdated 20.01.2009 had given an undertaking that the posting oncompassionate grounds will have a tenure of two years only. It isfurther contended that the transfer orders are liable to bechallenged only on two grounds namely mala fide exercise of powerand violation of statutory rules. The learned Additional SolicitorGeneral also contended that if the petitioner is ready and willingto forego the promotional post, the transfer order would be calledback. It is contended that the order of interim stay granted infavour of the petitioner caused great hardship to the departmentnamely Air Force, as they require competent person in the promotedpost and the petitioner has been promoted only after certifyingthat he was medically fit. In support of his contentions, thelearned Additional Solicitor General, placed reliance on thefollowing decisions: (i) M.Sankaranarayanan, IAS v. State of Karnataka and Others reported in (1993) 1 SCC 54(ii) State of U.P. and Another v. Siya Ram and Anotherreported in (2004) 7 SCC 405(iii) State of U.P. and Others v. Gobardhan Lal withD.B.Singh v. D.K.Shukla and Others reported in (2004) 11SCC 402(iv) Unreported order of this Court dated 09.08.2011 inW.P.No.18609/2011.
This Court considered the rival contentions put forward byeither side and perused the entire materials available on recordincluding the impugned order. 9. At the outset, it is to be stated that the petitioner hasbeen transferred from an hard area to No.8, BRD, Airforce Station, Avadi, Chennai as per his application dated 20.01.2009 on medicaland compassionate grounds and the perusal of the said applicationmakes it abundantly clear that he is well aware that the saidposting is for a tenure of 2 years and he has also undertaken notto seek cancellation or for any change. It is pertinent to notethat in the affidavit, the petitioner has stated that when he wasgiven promotion to the rank of Junior Warrant Officer on01.06.2010, he was forced to give an undertaking to serve for aperiod of 3 years and the third respondent arbitrarily obtained hissignature. I am unable to countenance such claim and contention ofthe petitioner for the simple reason that he has not retracted theundertaking immediately and he has not made any furtherrepresentation withdrawing such undertaking and only now beforethis Court, he has come forward with such a claim.
It is pertinentto note that earlier the petitioner was shifted to Chennai onmedical grounds and now after the petitioner has been medicallycertified to be fit and after the petitioner undertaking to servefor a period of three years to the transferred place, he has been https://hcservices.ecourts.gov.in/hcservices/ promoted. Therefore, it is crystal clear that the impugned orderis not an outcome of any mala fide exercise of power or inviolation of any statutory rules. It is needless to state that thepetitioner is rendering service in Air Force which is an essentialservice and as such, he cannot challenge the transfer order onuntenable grounds. It is also needless to state that an order oftransfer is an administrative order and a transfer is ordinarily anincident of service. As far as the case on hand is concerned, thepetitioner has not made out any case of mala fide exercise of poweror the transfer order was passed in violation of any statutoryrule.
7. At this juncture, it is relevant to refer the followingdecisions of the Hon'ble Apex Court in respect of the power of this Court to interfere in an order of transfer. 7.1. The Hon'ble Apex Court in State of U.P. v. Gobardhan Lalreported in 2004 (11) SCC 402 has held as follows :“It is too late in the day for any governmentservant to contend that once appointed or posted in aparticular place or position, he should continue in suchplace or position as long as he desires. Transfer of anemployee is not only an incident inherent in the termsof appointment but also implicit as an essentialcondition of service in the absence of any specificindication to the essential condition of service in theabsence of any specific indication to the contra, in thelaw governing or conditions of service. Unless the orderof transfer is shown to be an outcome of a mala fideexercise of power or violative of any statutoryprovision (an Act or Rule) or passed by an authority notcompetent to do so, an order of transfer cannot lightlybe interfered with as a matter of course or routine forany or every type of grievance sought to be made.
Evenadministrative guidelines for regulating transfers orcontaining transfer policies at best may afford anopportunity to the officer or servant concerned toapproach their higher authorities for redress but cannothave the consequence of depriving or denying thecompetent authority to transfer a particularofficer/servant to any place in public interest and asis found necessitated by exigencies of service as longas the official status is not affected adversely andthere is no infraction of any career prospects such asseniority, scale of pay and secured emoluments. ThisCourt has often reiterated that the order of transfermade even in transgression of administrative guidelinescannot also be interfered with, as they do not conferany legally enforceable rights, unless, as noticedsupra, shown to be vitiated by mala fides or is made inviolation of any statutory provision.” https://hcservices.ecourts.gov.in/hcservices/
7.2. The Hon'ble Apex Court in Shilpi Bose v. State of Biharreported in 1991 Supp. (2) SCC 659, has held as follows :“The courts should not interfere with a transferorder which is made in public interest and foradministrative reasons unless the transfer orders aremade in violation of any mandatory statutory rule or onthe ground of mala fide. A government servant holding atransferable post has no vested right to remain posted atone place or the other, he is liable to be transferredfrom one place to the other. Transfer orders issued bythe competent authority do not violate any of his legalrights. Even if a transfer order is passed in violationof executive instructions or orders, the courtsordinarily should not interfere with the order ; insteadaffected party should approach the higher authorities inthe department. If the courts continue to interfere withday-to-day transfer orders issued by the government andits subordinate authorities, there will be compete chaosin the administration which would not be conducive topublic interest.7.3.
In yet another decision in Somesh Tiwari v. Union of India and Others reported in (2009) 3 MLJ 727 (SC), the Hon'bleApex Court has held as hereunder:
Indisputably, an order of transfer is anadministrative order. There cannot be any doubtwhatsoever that transfer, which is ordinarily anincident of service should not be interfered with, savein cases where inter alia mala fide on the part of theauthority is proved. Mala fide is of two kinds – onemalice in fact and the second malice in law.
The principles laid down by the Hon'ble Apex Court in the decisionscited supra is squarely applicable to the facts of the instant caseas in this case the petitioner has not made out a case of mala fideexercise of power or the impugned order was passed in violation ofstatutory rules. Therefore, this Court has no hesitation to holdthat the petitioner has not made out any ground warrantinginterference of this Court in the impugned order of transfer.
8. However, considering the plea made by the petitioner to theeffect of seeking the relief of some breathing time for joining theduty, this Court is of the considered view that no prejudice wouldbe caused to the respondents in the event of considering suchrequest, as the petitioner has stated that he has to makearrangements to take care of his aged parents and he has to makearrangements for construction of his house at Gudur, Andhra PradeshState.
Considering the above said factors, this Court is inclinedto grant the relief of direction to the respondents herein to keepthe impugned order of transfer in abeyance for a period of eightweeks from the date of receipt of a copy of this order enabling the https://hcservices.ecourts.gov.in/hcservices/ petitioner to meet the above said contingencies. It is made clearthat after the expiry of eight weeks, the petitioner shall join thetransferred post without any failure.
With the above direction, the writ petition is disposedof. No costs. Consequently, connected miscellaneous petitions areclosed.jvm/gg Sd/ Assistant Registrar/True Copy/ Sub Assistant RegistrarTo1.The Secretary, Union of India, Govt. of India, Ministry of Defence, New Delhi-110 011.2.The Air Officer Commanding Air Force Record Office, Subrata Park, New Delhi-110 010.3.The Commanding Officer, 8 BRD, Air Force Station Avadi, Chennai 600 055+1cc to Mr.M.K.Sikdar Advocate sr.61945+1cc to Mr.M.Devendran Advocate Sr.61374W.P.No.9614 of 2011and M.P.Nos.2 & 3 of 2011RJ(CO)rvr20/10/2011
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