IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: July 25, 2017 Judgment delivered on: July 31, 2017 + W.P.(C) 9262/2016, [CASE NUMBER] NARENDRA SINGH Petitioner Through: Mr. [ENTITY], Sr. Adv. with Ms. [ENTITY] & Mr. [ENTITY], Advs. versus BUREAU OF INDIAN STANDARDS THROUGH: THE DIRECTOR GENERAL & ANR Respondent Through: Mr. [ENTITY], Mr. [ENTITY] & Mr. [ENTITY], Advs. CORAM: HON'BLE MR JUSTICE [ENTITY] JUDGMENT
[ENTITY], J
1. The present petition has been filed by the petitioner with the following prayers:-
"In the above mentioned facts and circumstances, it is most respectfully prayed that this Honble Court may graciously be pleased to pass appropriate orders:
a) Issue an order, direction in the nature of writ by invoking Article 226 of the Constitution of India so as to set aside and quash the impugned order of transferred issued by the respondent no.2 vide memorandum dated 30.8.2016 as it is violative of [SECTION] of the Placement Policy for Group A Scientific Cadre Officers which is issued and approved by the Bureau of India Standards vide office order dated 9.10.2015;
b) Issue an order, direction in the nature of writ by invoking Article 226 of the Constitution of India so as to set aside and quash the impugned order of transferred issued by the respondent No.2 vide memorandum dated 30.8.2016 as it is violative of Clause 7.2 of the Placement Policy for Group A Scientific Cadre Officers which is issued and approved by the Bureau of India Standards vide office order dated 9.10.2015;
c) Issue an order, direction in the nature of writ by invoking Article 226 of the Constitution of India so as to set aside and quash the impugned order of transferred issued by the respondent No.2 vide memorandum dated 30.8.2016 as it is violative of [SECTION] of the Placement Policy for Group A Scientific Cadre Officers which is issued and approved by the Bureau of India Standards vide office order dated 9.10.2015;
d) Pass an order or direction retaining the Petitioner on the post of Scientist E as Head (Electronics and IT) at the LITD, Head Quarters, Bureau of India Standards, New Delhi;
e) Pass such other order or orders as this Honble Court may deem fit in the facts and circumstances of the case."
2. The facts as noted from the writ petition are, the petitioner had joined the respondents on April 24, 1984 as Scientist 'B'. He got promotions till Scientist 'E'. While working as Scientist 'E' in April, 2013 he was transferred to the Western Regional Office (WRO), Mumbai and after working for two years in Mumbai, he sought his transfer back to Delhi on humanitarian grounds. The said request of the petitioner was accepted by the respondent No.2 and the petitioner was transferred from WRO, Mumbai to LITD, Head Quarters at New Delhi. On his transfer, the petitioner has been working on the post of Scientist 'E' as Head, LITD. On August 30, 2016, the petitioner was transferred to KKBO, Kolkata.
3. Mr. [ENTITY], learned Senior Counsel for the petitioner attack the impugned order of transfer on two grounds; (i) breach of Placement Policy issued vide office order dated October 9, 2015 and (ii) reasons for transfer to Kolkata are fallacious and not tenable.
4. Insofar as the submission at serial No. (i) above is concerned, he would draw my attention to the Placement Policy at page 40, more specifically clauses 5.1, 6.1 and 7.4, to contend (1) that Head LITD, is appointed on the basis of seniority, aptitude, competence etc. The petitioner being much higher in the seniority list than the incumbent appointed as Head LITD, the transfer order entails civil consequences and could not have been issued; (2) he could not have been transferred to a place outside Delhi, if his retirement is within two years; (3) that the petitioner's wife is working in Delhi and his daughter is studying in Class XII.
5. Insofar as the submission at serial No.(ii) above is concerned, he would draw my attention to the counter-affidavit filed by the respondents to state that the reasoning given by the respondents that he has been posted in Kolkata in view of the voluntary retirement taken by one Mr. [ENTITY] Scientist 'E', which rendered the post vacant and the petitioner was not found suitable to the post of Head, LITD as the same is an emerging field where a person with electronic background was required, are not tenable inasmuch as Mr. [ENTITY] was posted in Eastern Region Lab Kolkata and had taken voluntary retirement but the petitioner was transferred to the certification activity in Eastern Regional office under Kolkata Branch office (KKBO) Kolkata. They are two different offices headed by two different DDG's. The exigency of being posted at Kolkata is not more than the petitioner being retained as Head LITD. According to him, it is a malafide exercise, only to dislodge the petitioner from Headship. That apart, he would state the petitioner has been working on the ongoing initiatives of the Government and delivering results and the petitioner has been working as Head, LITD since his transfer from Mumbai in 2015. The plea of exigency and not fit to head LITD are contradictory stands. He would rely on the following judgments in support of his submissions:-
(i) (1999) 3 SCC 696 [ENTITY] and others v. State of Haryana and another;
(ii) (1983) 4 SCC 582 [ENTITY] v. Indian Statistical Institute and others;
(iii) (1993) 1 SCC 148 [ENTITY] v. Union of India and another;
(iv) (2007) 13 SCC 154 [ENTITY] and others v. Delhi Development Authority;
6. On the other hand, Mr. [ENTITY] would justify the transfer of the petitioner to Kolkata for the reasons stated in the counter affidavit. That apart, he states, no prejudice has been caused to the petitioner on his transfer to Kolkata as the status, emoluments drawn by the petitioner shall be maintained on his joining at Kolkata. That apart, he states, that the Electronics being an emerging field and also the fact that the petitioner has not initiated his APAR, the work as carried out by the petitioner could not be ascertained to judge his suitability to continue as Head LITD. In any case, it is a well known fact that the petitioner has not contributed to any scientific activity in the organization. It is expected of the petitioner to keep pace with the ongoing initiative of the Government which he has failed and administrative exigencies demanded that the petitioner be transferred to Kolkata and in his place a new incumbent be posted as Head LITD and there is no mala fide in the impugned action, the same needs to be upheld. Mr. [ENTITY] would rely upon the following judgments in support of his contention.
(i) [CASE NUMBER] decided on December 03, 2015;
(ii) [PRECEDENT];
(iii) [PRECEDENT] [PRECEDENT].
7. Having heard the learned counsel for the parties, what is need to be decided is whether the transfer of the petitioner to Kolkata is justified. Before, I deal with the rival contentions, I must determine the scope of this petition. I note, the petitioner has made a prayer for retaining him as Head LITD. Such a prayer can be considered, only if the incumbent posted as Head LITD is made a party in this petition. The petitioner having not made her a party, the petition with regard to that prayer is not maintainable. Mr. [ENTITY] fairly concedes to that position and states, the said prayer is not pressed. If that be so, the reliance placed on [SECTION] of the Placement Policy is inconsequential. Now, insofar as the submissions of Mr. [ENTITY] attacking the impugned order are concerned, it is necessary to reproduce two clauses of the Policy being 6.1 and 7.4:-
6. Eligibility for ROTATIONAL TRANSFERS 6.1 An officer will become due for periodic rotational transfer after nine years of his service at one station.
7. REQUEST TRANSFERS:
7.4 Officers may request for a posting to a certain station where she/he wishes to settle down after superannuation, 2 years prior to such superannuation, which may be considered subject to the past records of postings at the station, as well as administrative reasons."
8. The plea, the transfer order violates [SECTION], which stipulates an officer will become due for periodical rotational transfer after nine years of his service at one station, is appealing on a first blush but on a deeper consideration it is noted, the petitioner has been a beneficiary of a transfer, in violation of [SECTION] inasmuch as, the petitioner was transferred back to Delhi within two years of his transfer there. If exigencies require, a transfer before 9 years, the same can be made. This plea of Mr. [ENTITY] is not convincing and needs to be rejected.
9. Insofar as the exigencies pleaded by the respondents, which according to Mr. [ENTITY] are fallacious are concerned, suffice to state, this Court cannot substitute the opinion of the employer determining exigencies. Even otherwise, the plea of Mr. [ENTITY] that Mr. [ENTITY] had retired from ERO which is a different office from KKBO, is concerned, the same is a disputed question of fact, and cannot be gone into in writ jurisdiction. That apart, the petitioner does not deny Mr. [ENTITY] is also from the Electrical field, which is the field of the petitioner and was Scientist 'E' and was working in Kolkata, the place where the petitioner has been transferred. As held above, it is for the employer to decide the place of posting of an officer and Courts would be reluctant to interfere with the same, unless malafide alleged and are proved, which would vitiate the same. That apart, Mr. [ENTITY]'s submission that the status, emoluments etc shall not be effected in Kolkata, is appealing.
So, this submission of Mr. [ENTITY] is also liable to be rejected.
10. Insofar as the plea of Mr. [ENTITY] by relying upon [SECTION] of the Placement Policy, is concerned the same does have some weightage. On a closer look at [SECTION], it is seen that if an officer wishes to settle down at a station, he is required to make such a request two years before the superannuation, which shall be considered by the employer i.e the respondents herein, subject to past records of postings at the station as well as the administrative reasons. It is also noted that the petitioner had on August 30, 2016 submitted a representation to the respondents for reconsideration of the transfer. He, in his representation, did mention about his retirement in the month of January, 2018, which I note is six months away. The representation also refers to the fact his wife is working in Delhi and he has a School going daughter studying in Class XII. These aspects would have some bearing on the transfer of the petitioner but these factors need to be considered by the employer. Unfortunately, the representation has not been considered. In these circumstances, rejecting the other contentions of Mr. [ENTITY], the only relief that can be granted to the petitioner is, to call upon the respondents i.e the Competent Authority to consider the representation dated August 30, 2016 of the petitioner in proper perspective and pass appropriate orders on the same within a period of four weeks from the receipt of copy of this order. Till such time, an order is passed, interim order dated October 07, 2016 shall continue. Insofar as the judgments relied upon by Mr. [ENTITY] are concerned, the same are to the effect:-
(i) Inference of mala fide must be based on firm foundation of facts pleaded and established and not merely on insinuation and vague allegations. It was also held when the post is transferable and no representation against the transfer on the ground of personal hardship is made, it was held by the Supreme Court challenge to transfer on the basis of some vague allegation of mala fide is not sustainable. The said judgment is of no help to Mr. [ENTITY]. [Ref. [ENTITY] (supra)]
(ii) Administrative authority bound to adhere to the procedural standards fixed by it to avoid arbitrariness failing which the action taken by it could be invalid [Ref. [ENTITY] (supra)]
(iii) Policy decision held is binding if not contrary to the Rules [Ref. [ENTITY] (supra) and [ENTITY] and others (supra)].
11. None of the judgments have any applicability to the facts of this case and also in view of my finding/conclusion above. The writ petition is disposed of. No orders as to costs.
[CASE NUMBER] (for stay) Dismissed as infructuous.
[ENTITY], J JULY 31, 2017 ak