Colonel Rajeev Mannali v. Minitary Secretary’s Branch Integrated Head Quarters of Ministry f Defense (Army) & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.07.2008CORAMTHE HONOURABLE Mr.JUSTICE S. NAGAMUTHUW.P.No.14758 of 2008andM.P.Nos.2 & 3 of 2008Colonel Rajeev Mannali .. Petitioner-Vs.-1.The Minitary Secretary’s BranchIntegrated Head Quarters ofMinistry f Defense (Army)New Delhi – 110001.2.General Officer Commanding,ATNK&K AREA, Chennai 600 009. .. RespondentsPRAYER: Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a Writ of Certiorarified mandamus,calling for all the records of the respondents in respect of the sidestepping order of transfer No.380660/MS-1D dt 06.06.2008 passed bythe first respondent for side stepping (transferring) the petitionerCol.Rajeev Manali and quash the same. For Petitioner : Mr.K.P.Ashok For Respondents : Mr.M.Ravindran, ASG Assisted by Mr.D.Sreenivasan,AGPORDERThough the miscellaneous petition is listed today, by consentof the learned counsel for both sides, the writ petition itself istaken up for final disposal.2.At the outset, I am constrained to state that the petitioner,a very responsible Army Officer, who is expected to shoulder heavyresponsibilities in the interest of the nation tries to shy away fromhis responsibilities by challenging the order of side stepping https://hcservices.ecourts.gov.in/hcservices/ (transfer) when he is transferred from a post with lesserresponsibilities to a post with higher responsibilities.3.The petitioner has been serving as Administrative Commandantin Station Head Quarters, Chennai from 01.05.2007. On therecommendation of the second respondent who is the General OfficerCommanding, ATNK&K AREA, Chennai, the first respondent has issuedside stepping order dated 06.06.2008 vide signal No.380660/MS 1Dthereby side stepping him as Colonel Administration (Discipline &Vigilance) at Chennai. The petitioner challenges the said order ofside stepping on the ground of mala fides. According to him, he wasthe Estate Officer as per the public Premises Eviction Act and inthat capacity, he initiated steps to evict the encroachers who havebeen occupying the lands belonging to the Army in and around Chennai.The encroachers were aggrieved over the aggressive manner in whichthe petitioner took stern action. It is further contended thatbecause of the same, political pressure was also exerted on thesecond respondent who in turn has made the recommendation to thefirst respondent by creating an impression as if the petitioner gaveconcurrence for such transfer. It is further stated that on suchrecommendation, the first respondent has passed the impugned order oftransfer which is vitiated by mala fides. It is further contendedthat normally an Army Officer is allowed to serve in a particularpost for two to three years unless due to emergency his service isrequired in a different post or he is found to be incompetent orinefficient. When the petitioner is about to retire from service onattaining the age of supperannuation on.31.01.2009, he has beentransferred only due to mala fides and therefore, the impugned orderis vitiated, it is contended by the petitioner.4.A detailed counter has been filed by the second respondentwherein the allegations of mala fides are denied. It is stated thatthe second respondent had recommended for side stepping thepetitioner to the Head Quarters ATNK&K AREA, as ColonalAdministrative Officer (Discipline & Vigilance) as he was consideredto be suitable to shoulder higher responsibilities. It is furthercontended that as Colonal Administration (Discipline & Vigilance) ofHead Quarters, the petitioner is given more responsibilities as he islooking after the Discipline and Vigilance activities of all thetroops in four States of Southern India and the cases filed in theHigh Courts and Lower Courts in these states involving the armyincluding the land cases. It is further stated that it was never madeto the first respondent by the second respondent that the petitionerhad concurred for such transfer. It is further stated that evictionproceedings were of course initiated by the petitioner as against theencroachers but the same was done as per the instructions given bythe higher authorities. There are several communications from the https://hcservices.ecourts.gov.in/hcservices/ higher authorities instructing the petitioner to evict theencroachers by due process of law. It is only in accordance with thesame, the petitioner has initiated proceedings and therefore, hecannot take full credit for eviction, it is contended. It is furtherstated that there is nothing uncommon or special on his part alone ininitiating such proceedings for eviction, as, such proceedings havebeen initiated in other places also by other Estate Officers, likethe petitioner. It is further submitted in the counter that theimpugned transfer neither reduces the petitioner’s pay and allowancenor cause any discomfort to him and he will continue to enjoy thesame status but he has to shoulder higher responsibilities in thetransferred post. There is no mala fides at all in the order oftransfer and so, the writ petition is liable to be dismissed, it iscontended.5. I have heard the learned counsel for the petitioner and thelearned Additional Solicitor General of India appearing for therespondents and also perused the records.6. Transfer is one of the conditions of service. Even in thematter of employees working in civl services or in public sectorundertakings, the Hon'ble Supreme Court has time and again held thatsince the orders of transfer are incidence of service, the scope ofjudicial review is very limited. It has been well settled that unlessthe transfer is stated to be in violation of any statutory provisionsor the same has been made out of mala fides, the Courts should notinterfere with the same. In respect of the army men, the scope ofjudicial review is all the more limited. The responsibilities of armyofficers are more onerous and highly sensitive as they areresponsible for the safety and security of the nation. No officer ofthe defence service should even think of shying away from higherresponsibilities. If an army man challenges his posting in the lineof control on the ground that his life is at high risk and if theCourt proceeds to review the same, then, the result would bedisastrous. That is why in Major General J.K.Bansal v. Union of India(2005 (7) SCC 227) the Hon'ble Supreme Court, while dealing with thescope of judicial review in the matter of transfer of members ofarmed forces has held as follows:-"12.It will be noticed that these decisionshave been rendered in the case of civilianemployees or those who are working in publicsector undertakings. The scope of interference bythe courts in regard to members of armed forces isfar more limited and narrow. It is for the higherauthorities to decide when and where a member ofthe armed forces should be posted. The courts https://hcservices.ecourts.gov.in/hcservices/ should be extremely slow in interfering with anorder of transfer of such category of persons andunless an exceptionally strong case is made out,no interference should be made.7.In Union of India v. S.L.Abbas (AIR 1993 SC 2444) theHon'ble Supreme Court has held as follows:-"Who should be transferred where, is amatter for the appropriate authrotiy to decide.Unless the order of transfer is vitiated by malafides or is made in violation of any statutoryprovisions the court cannot interfere with it.While ordering the transfer, there is no doubt,the authority must keep in mind the guidelinesissued by the Government on the subject. Similarlyif a person makes any representation with respectto his trnafer, the appropriate authority mustconsider the same having regard to the exigenciesof administration. The guidelines say that as faras possible, husband and wife must be posted atthe same place. The said guideline however doesnot confer upon the government employee a legallyenforceable right."8.Applying the above dictum laid down by the Hon'ble SupremeCourt, if the contentions of the petitioner are analysed, I am atloss to find any material to make out a case much less exceptionallya strong case so as to interfere with the impugned order of transfer.Though it is alleged that the impugned order has been issued out ofmala fides, except making such vague allegation in the affidavit, thepetitioner is not able to produce any material even to make out aprima facie case of mala fides. Initiating proceedings for evictionof encroachers is part and parcel of the duty of the petitioner as anarmy officer for which the petitioner cannot claim any specialcredit. There are several communications produced for inspection ofthis Court from the higher authorities of the petitioner instructinghim to initiate proceedings to see that the encroachers are evicted.It is in compliance with the same and in discharge of his duties hehad taken steps to evict the encroachers. It may be true that he hadinitiated steps to evict the encroachers, but there are no materialseven to have a slightest doubt that because of the said proceedingsinitiated by the petitioner which according to him was moreaggressive that the second respondent was influenced by any politicalpressure. The second respondent has stated in the counter thatconsidering his capabilities and since his service is required toshoulder higher responsibilities, he has been transferred. The said https://hcservices.ecourts.gov.in/hcservices/ statement deserves to be accepted. As held by the Hon'ble SupremeCourt, in the judgments cited supra, it is for the higher authoritiesto decide as to where to post a particular Subordinate officer in theinterest of the organisation. There is no denial of the fact that thePost to which the petitioner has been transferred attaches moreresponsibilities and having vast jurisdiction spreading over to morethan one state. In respect of the comforts, he does not loose anyfacilities and he can discharge his duties in the transferred postefficiently. It is the time for the petitioner to take prides that hehas been given higher responsibilities in his service that too at theverge of his retirement. As stated in the counter, It is a credit forhim. Instead of understanding the impugned order in a right sense,the petitioner has approached this Court as if the transfer is theresult of mala fides. As I have already held, I do not find anysemblance of materials to make out even a prima facie case of malafides on the part of the second respondent in making therecommendation for transfer and on the part of the first respondentin side stepping the petitioner. 10.Thus, I find no merit in the writ petition. In the result,the writ petition is dismissed. No costs. Consequently, connectedmiscellaneous petitions are closed. Sd/Asst. Registrar /true copy/Sub Asst. RegistrarjbmTo1.The Military Secretary’s Branch Integrated Head Quarters of Ministry f Defense (Army) New Delhi – 110001.2.General Officer Commanding, ATNK&K AREA, Chennai 600 009. +1 cc to Mr.K.P.Ashok, Advocate, SR.No.35087+1 cc to Mr.D.Sreenivasan, Advocate, SR.No.34919Order made in W.P.No.14758 of 2008SCD (CO)SMK/15.7.08