Union of India v. The Principal Director of Audit,Southern Railway, Park Town,Chennai-600 003

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.09.2009 CoramThe Honourable Mr.Justice ELIPE DHARMA RAOandThe Honourable Mr.Justice T.S.SIVAGNANAMW.P. No.46692 of 2006 1. Union of India, rep. by its Principal Director (Staff)Office of the Comptroller &Auditor General of India, No.10, Bahadur Shah Zafar Marg, Indraprastha Head Post Office, New Delhi-110 002,2.The Principal Director of Audit, Southern Railway, Park Town, Chennai-600 003.3.The Director (Administration),Office of the Principal Director of Audit Southern Railway, Park Town, Chennai-600 003,4.The Senior Audit Officer/Administration, Office of the Principal Director of Audit, Southern Railway, Park Town, Chennai-600 003,.. PetitionersVs.

Jayashree Govindarajan,2.The Central Administrative Tribunal, Chennai Bench, City Civil Court Buildings, Chennai-600 104... RespondentsPetition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari, calling for therecords relating to the order passed by the second respondentTribunal made in O.A.No.396 of 2006, dated 24.07.2006 and quash thesame. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.V.T.Gopalan, Sr. Counsel for Mr.T.Ravikumar, ACGSC For Respondents : Mr. N.G.R.Prasad – R1 for M/s Row & Reddy : Tribunal - R2*****

O R D E RThe above Writ Petition has been filed by the Union of India, represented by its Principal Director (Staff), Office of the Comptroller and Auditor General of India, challenging the orderpassed in O.A.No. 396 of 2006 dated 24.7.2006. The first respondentherein is the applicant before the Tribunal.

The applicant filed O.A.No.396 of 2006, for declaring theorder passed by the third and fourth respondents dated 10.5.2006,insofar as the transfer of the applicant from Metropolitan TransportProject (Railways), Chennai, to workshop and stores, Golden Rock, Trichy, as being illegal, contrary to the Circular dated 17.11.1987,a colourable exercise of power, discriminatory, arbitrary, malafideand violative of Article 14 and 16 of the Constitution of India andfor a consequential relief to repost the applicant at Chennai as Senior Auditor with all consequential benefits.

The relevant service particulars of the applicant are that, the applicant joined the service in the Office of the AccountantGeneral at Hyderabad in the year 1982 and thereafter on her request, she was transferred to the Metropolitan Transport Project AuditOffice (MTP) during December 2003 and had been working in that Officewhen she was transferred to Trichy by the impugned order dated10.5.2006. The applicant contended before the Tribunal that theorder of transfer is contrary to Circular dated 17.11.1987, issued bythe first petitioner herein. According to the Circular, no staffshould normally be kept in the same wing for a period exceeding fiveyears and rotation to another group within a shorter period orretention in a particular group beyond five years be allowed only inexceptional circumstance and with the specific order of the Accountant General/Director of Audit concerned. It is the case ofthe applicant that her case is not an exceptional one for rotation ortransfer within five years and the transfer is not in publicinterest.

The applicant would further contend that frequent orders oftransfer, more particularly the impugned order, is issued withmalafide intention and it is violative of Articles 14 and 16 of the Constitution of India; that several persons working in the same seatand place, who are seniors and juniors to the applicant have not been https://hcservices.ecourts.gov.in/hcservices/ disturbed for several years and the action of the petitioners 3 and 4herein, in targeting the applicant, is not only illegal, butmalafide and colourable exercise of power. The applicant wouldfurther contend that the respondents have made it appear that it isa mass transfer, but purposely has included the applicant's namewithout transferring seniors or juniors who are working as SeniorAuditor in a particular seat or place for several years.

The applicant would place reliance on the decision of the Kerala High Court reported in 1979 (I) LLJ 139 [P.PUSHPAKARAN Vs.COIR BOARD AND ANOTHER] for the proposition that the Court hasnecessarily to tear the veil of deceptive innocuousness and see whatexactly motivated the transfer. The learned counsel further reliedupon the decision of the Hon'ble Supreme Court in 1993 (1) SCC page148 [RAJENDRA ROY Vs. UNION OF INDIA AND ANOTHER], wherein it hasbeen held that it may not be possible to establish malice in astraight cut manner and in an appropriate case, it is possible todraw reasonable inference of malafide action from the pleading ofantecedents facts and circumstances of the case. On these grounds, the applicant contended that the order of transfer is illegal.

The respondents before the Tribunal, who are thepetitioners herein, had filed a reply statement before the Tribunal, inter alia, contending that the impugned order of transfer is inpublic interest, considering the exigency of Government service andas such, there is no malafide intention in ordering the transfer. The Department, by placing reliance on the Comptroller and AuditorGeneral Manual of Standing Orders (Administrative), moreparticularly, para 6.5.1, would contend that the instructionscontained in the said paragraphs are only guidelines for the Administration to plan development of manpower in accordance withexigency of work. The intention is not to allow a particular staffto continue in any section or wing indefinitely, which will bedetrimental to his/her career development and that nowhere it isstated that an opportunity may be allowed to continue in the samesection for five years so as to develop a measure of experience andknowledge.

The Applicant filed a rejoinder affidavit raising variousfactual contentions. The Department filed their reply statement tothe rejoinder affidavit repudiating the same. The case ofdiscrimination initially raised in the Original Application was alsorebutted by the Department in their reply at paragraph No. 12 and atabulated statement has been shown to establish their contention thatthere is no discrimination. A further reply affidavit is also seento this filed by the applicant.

The Tribunal after considering the contentions raised oneither side, while accepting that it is a settled legal principlelaw that Court cannot interfere in matters like transfer except ininstances where malafide is established, proceeded to consider thecase as to whether any malafide had been established. The Tribunalcame to a conclusion that the applicant has been subjected tofrequent shifts in her place of work within the City, itselfseveral time and now by the impugned order, she has been transferredfrom Chennai to Trichy. The Tribunal further held that the memoscalling upon the explanation were issued on 4.5.2006 and 5.5.2006before the impugned order of transfer dated 10.5.2006 would indicatethat the applicant has not been keeping 'good' relations with therespondents. The Tribunal further came to a conclusion that it isestablished through various submissions of the applicant that thoughshe had stayed in Chennai for twenty years, there are still others https://hcservices.ecourts.gov.in/hcservices/ who have also been in Chennai for more than twenty years and therespondents has not been able to satisfactorily explain with regardto the preference and the yardstick applied in such transfer. Thereafter, the Tribunal proceeded to rely upon the various factualdetails given in the reply and rejoinder statement and ultimatelyheld that the order of transfer is one of colourable exercise ofpower emanated out of malafide intention.

Aggrieved by the said order, the Department has filedthe above Writ Petition contending that the Tribunal erred ingranting the relief in a matter of transfer, where Courts normallydo not interfere; that the applicant had approached the Tribunalwithout exhausting the alternate remedy available to her especiallywhen her representation dated 13.5.2006 was received only afterobtaining the said order from the Tribunal. The Department wouldcontend that the Tribunal has misunderstood the fact and lawregarding the continuation of staff as envisaged in paragraph No.6.5.1. of the Circular dated 17.11.1987. The Department wouldfurther contend that the transfer has resulted on account of thereduction of staff in the Audit Office of Metropolitan TransportProject and the Tribunal erroneously failed to appreciate the saidfact. On the above grounds, the Department sought for quashing theorder passed by the Tribunal.

We have heard Mr. V.T.Gopalan, learned Senior Advocate forpetitioners, and Mr.N.G.R.Prasad, learned counsel for the firstrespondent/Applicant and perused the materials on record.

The first contention raised by the learned Senior counselfor the petitioner is that much hype has been created by the Tribunalin interfering with the innocuous order of transfer served on thefirst respondent and the Tribunal committed a serious error ininterfering with such an order and deserves interference at the handsof this Court. The learned Senior counsel took us through thefactual contentions as regards the plea of discrimination raised bythe applicant i.e. that there are several seniors and juniors who areworking in the same Station for a much longer period and that theapplicant has been singled out for reasons best known and as such hertransfer is tainted with malafide. The learned Senior counsel byplacing reliance upon the averment in the reply statement filed inO.A.No. 396 of 2006, stated that 13 out of the 22 persons hadalready served in Branch Offices outside Chennai at least on oneoccasion, as pointed out in paragraph No.18 of the reply statement, whereas, for the applicant, the impugned transfer is first occasion, posting out of Chennai, in her twenty years of service in ChennaiUnits since 1986.

The learned Senior counsel also would contend that there isno violation of the Circular dated 17.11.1987 and there is no bar inthe said Circular, which contains general guidelines regardingrotation of personnel in various wings of Audit – Central Office or Field of Inspection like Civil, Public Works, etc. and there isenough discretion vested with administrative authorities to utilizetheir manpower to the best advantage of Government interest, particularly with the Approval of the Head of the Department. Therefore, the learned Senior Counsel would contend that the quotingof the Circular is out of context.

The learned Senior Counsel would then invite our attentionto Ground D and G in the Original Applications filed by the applicantand submit that mere use of the word "malafide is not sufficient tocannote a malafide action. In support of his contentions, he wouldplace reliance upon the decision of the Hon'ble Supreme Court in(2000) 5 Supreme Court Cases 630 [PRABODH SAGAR Vs. PUNJAB STATEELECTRICITY BOARD AND OTHERS], wherein the Hon'ble Supreme Court wasconsidering the validity of an order of premature retirement whichwas challenged on two grounds. The first being on the issue that istainted with malafide. In the said circumstances, in paragraphNo.13, it is held as follows: "13. ........ Mere user of the word "mala fide" by the petitionerwould not by itself make the petition entertainable. TheCourt must scan the factual aspect and come to its ownconclusion i.e. exactly what the High Court has done andthat is the reason why the narration has been noted in https://hcservices.ecourts.gov.in/hcservices/ this judgment in extenso. Tampering of the annualconfidential rolls has been alleged but there is noevidence in regard thereto or even to link up the twoprivate respondents therewith. While it is true that theearlier relationship between an employer and employee orbetween the employees was that of mutual trust, confidenceor welfare, presently the situation in general standspolluted and may be even one degree higher than thepollution of the environment, but that does not howeverclothe the court to come to a conclusion of mala fidewithout there being any basic evidence being madeavailable to the Court.

The Punjab State Electricity Board Services(Premature Retirement) Regulations, 1982, has been takenrecourse to by the Board and in particular, Regulation 3(i)(e) which, in fact, provides an authority to the Boardwith an absolute right to retire an employee on the dateon which he completes 25 years of service or attains 50years of age upon however, proper notice to that effect. The Board has, thus, an absolute power to retire anemployee prematurely though, however, upon following theprocedure set out in the Rules and the same having beendone, can it be said that the legal right of thepetitioner stands violated-the answer cannot but be in thenegative. The next question that automatically crops upis as to whether the formation of an opinion has been inaccordance with public interest or not-the facts notedabove depict evidence galore as regards the justificationof the formation of such an opinion. "Therefore, the learned Senior counsel would contend that except forthe word 'malafide' mentioned in two places in the OriginalApplication, there is no other allegations to substantiate theapplicant's claim and as such the Tribunal ought not to haveinterfered with the order of transfer. 14. The learned Senior counsel further contended that pursuantto the interim order which was granted by this Court by an orderdated 22.12.2006, the applicant is still continuing at Chennai and ason date, there are no vacancies in Chennai. Therefore, the learnedSenior counsel prayed for setting aside the order of transfer.

Per contra, Mr.N.G.R.Prasad, learned counsel for theapplicant would strenuously contend that the order of the Tribunalcalls for no interference; that the Tribunal had exercised itsjurisdiction in a proper and reasonable manner and after extensivelyconsidering the various contentions raised and after thoroughlyanalysing the legal principles, came to a conclusion that the order https://hcservices.ecourts.gov.in/hcservices/ of transfer is one of colourable exercise of power emanated out ofmalafide intention and therefore, the learned counsel would contendthat the order calls for no interference. The learned counsel wouldalso reiterate the submissions made before the Tribunal and contendthat the applicant is a lady Officer and if she is transferredoutside Chennai, she would be put to irreparable hardships. Thelearned counsel would also reiterate that several of the applicant'sseniors are still continuing in Chennai for over twenty years andthey have not been transferred, the applicant has been singled out, the plea regarding the retention of post itself is an incorrectstatement and the order of transfer of camouflaged. Under such plea, the Tribunal has rightly set aside the impugned order of transfer.

The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in AIR 1986 SC 1955 [B.BHARADHA RAO Vs. STATEOF KARNATAKA AND OTHERS], wherein the Hon'ble Supreme Court held thatthe transfer is always understood and considered as an incidence ofservice and while doing so also deprecated that frequent, unscheduled, and unreasonable transfers as it can uproot a family, cause irreparable harm to a Government servant and and drive him todesperation and that it disrupts the education of his children andleads to numerous other complications.

We have carefully, considered the submissions made by thecounsel on either side and carefully perused the material availableon records.

The impugned order of transfer is sought to be assailed bythe applicant on three grounds viz.i)that it is in violation of the policy Circular issued bythe respondent organisation; ii)that the order of transfer is discriminatory, since severalother persons who have worked for more than twenty years have beenretained and it is a malafide exercise of power; and iii)the plea that the post has been surrendered is not tenableand has been made only for the purpose of shifting the applicant.

We have in the earlier paragraphs stated about the Circularissued by the respondent organisation. On perusal of the saidCircular dated 17.11.1987, it is to be noted that it does not placean embargo on the administration from transferring an incumbent. Itis to be seen that the discretion lies with the authority and suchdiscretion has to be exercised to the best advantage of the Government's interest. Therefore, we hold that the impugned order oftransfer cannot be stated to be in violation of the circular. We aresatisfied with the reasons assigned by the Administration foreffecting such transfer. https://hcservices.ecourts.gov.in/hcservices/

In fact, an additional typed set of papers have been filed. The vacancy position filed in the additional typed set clearly showsthat various activities/ projects in Metropolitan Transport Projecthas been completed and this has lead to the Unit having excess ofone Assistant Auditor and one Senior Auditor and therefore, the Administration decided to shift one Assistant Auditor and one SeniorAuditor to the Units where vacancy existed and therefore, theapplicant had been posted to Trichy.

As could be seen from the vacancy position of Auditors/Senior Auditors as on 1.7.2009, there is excess strength inthe Chennai area. Further, as seen from the explanation given inpararagraph No. 12 of the reply statement before the Tribunal, wefind that there is no discrimination in the order of transfer andexcept the petitioner, other Officers have served on the samecapacity in places outside Chennai on atleast one occasion. Therefore, the plea raised regarding the discrimination is also notsubstantiated.

Coming to the next question regarding allegation ofmalafide, as rightly contended by Mr.V.T.Gopalan, learned Seniorcounsel, except for expression "malafides" used in a few places inthe Original Application, there is no other proof or material placedfor the purpose of establishing malafides. As held by the Hon'bleSupreme Court in (2000) 5 Supreme Court Cases 630 referred supra, mere use of word 'malafide' by the applicant would not by itself makethe order of transfer being tainted with malafide. Therefore, wehold that the applicant has not established any malafides on the partof the Department while issuing the order of transfer.

Further, the Hon'ble Supreme Court in State of U.P and Others Vs. Gobardhan Lal reported in (2004) 11 Supreme Court Cases402, while construing the power of the inference of orders oftransfer, held as follows: "7. ......... Transfer of an employee is not only anincident inherent in the terms of appointment but alsoimplicit as an 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 malafideexercise of power of violative of any statutory provision(an Act or rule) or passed by an authority not competentto do so, an order of transfer cannot lightly beinterfered with as a matter of course or routine for anyor 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 to https://hcservices.ecourts.gov.in/hcservices/ approach their higher authorities for redress but cannothave the consequence of depriving or denying the competentauthority to transfer a particular officer/servant to anyplace in public interest and as is found necessitated byexigencies of service as long as the official status isnot affected adversely and there is no infraction of anycareer prospects such as seniority, scale of pay andsecured emoluments.

At this juncutre, we also feel it apt to quote a latestjudgment of the Hon'ble Apex Court delivered in AIRPORTS AUTHORITY OFINDIA Vs. RAJEEV RATAN PANDEY & OTHERS [2009 (6) SUPREME 133],wherein it has been held: "No allegations of mala-fides had been pleaded in writpetition. It was only by way of a supplementary affidavitthat allegations of mala-fides had been put forth by Respondent No.1 but even such allegations were notsupported by any material whatsoever. In a matter whereplea of mala-fides was made for the first time in asupplementary affidavit which too was not supported by anyconvincing and cogent material, the plea of mala-fideshardly deserved acceptance, prima facie, justifying stay ofoperation of a transfer order. In a matter of transfer ofa government employee, scope of judicial review is limitedand High Court would nto interfere with an order oftransfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their owndecision in the matter fo transfer..." https://hcservices.ecourts.gov.in/hcservices/

In the case on hand also, as has been pointed out by ussupra, except for expression 'malafides' used at some places in the Original Application, the said plea has neither been proved norestablished in any other manner by the applicant. Therefore, wehold that the order of transfer impugned before the Tribunal does notcontravene the Policy Circular issued by the Department, in fact the Circular contains sufficient discretion with the Department. Further, the plea of discrimination has not been established, inview of the detailed explanation offered by the Department inparagraph No.12 of the Reply Statement. The Applicant has notpleaded any malafide action except for use of such expression in the Original Application and the Department has satisfactorily explainedthe circumstances which lead to surrender of posts and we find novalid ground to find fault in such an administrative order. 25. Therefore, for all the above reason, we find that the orderof Tribunal is not sustainable and calls for interference. Accordingly, the Writ Petition is allowed and the order passed by the Tribunal is set aside. No costs. rpasd/-Asst. Registrar/ true copy /Sub Asst. RegistrarTo1. The Central Administrative Tribunal, Chennai Bench, City Civil Court Buildings, Chennai-600 104.+ 1CC M/s Row & Reddy, Advocate(SR.No. 46353) W.P. No.46692 of 2006KSJ (CO)ss (05.10.2009)