IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.07.2008 CORAM THE HONOURABLE Mr.JUSTICE S. NAGAMUTHU W.P.No.14758 of 2008 and M.P.Nos.2 & 3 of 2008 Colonel Rajeev Mannali .. Petitioner -Vs.- 1.The Minitary Secretary’s Branch Integrated Head Quarters of Ministry f Defense (Army) New Delhi – 110001. 2.General Officer Commanding, ATNK&K AREA, Chennai 600 009. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified mandamus, calling for all the records of the respondents in respect of the side stepping order of transfer No.380660/MS-1D dt 06.06.2008 passed by the first respondent for side stepping (transferring) the petitioner Col.Rajeev Manali and quash the same. For Petitioner : Mr.K.P.Ashok For Respondents : Mr.M.Ravindran, ASG Assisted by Mr.D.Sreenivasan,AGP ORDER Though the miscellaneous petition is listed today, by consent of the learned counsel for both sides, the writ petition itself is taken 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 heavy responsibilities in the interest of the nation tries to shy away from his responsibilities by challenging the order of side stepping https://hcservices.ecourts.gov.in/hcservices/ (transfer) when he is transferred from a post with lesser responsibilities to a post with higher responsibilities. 3.The petitioner has been serving as Administrative Commandant in Station Head Quarters, Chennai from 01.05.2007. On the recommendation of the second respondent who is the General Officer Commanding, ATNK&K AREA, Chennai, the first respondent has issued side stepping order dated 06.06.2008 vide signal No.380660/MS 1D thereby side stepping him as Colonel Administration (Discipline & Vigilance) at Chennai. The petitioner challenges the said order of side stepping on the ground of mala fides. According to him, he was the Estate Officer as per the public Premises Eviction Act and in that capacity, he initiated steps to evict the encroachers who have been occupying the lands belonging to the Army in and around Chennai. The encroachers were aggrieved over the aggressive manner in which the petitioner took stern action. It is further contended that because of the same, political pressure was also exerted on the second respondent who in turn has made the recommendation to the first respondent by creating an impression as if the petitioner gave concurrence for such transfer. It is further stated that on such recommendation, the first respondent has passed the impugned order of transfer which is vitiated by mala fides. It is further contended that normally an Army Officer is allowed to serve in a particular post for two to three years unless due to emergency his service is required in a different post or he is found to be incompetent or inefficient. When the petitioner is about to retire from service on attaining the age of supperannuation on.31.01.2009, he has been transferred only due to mala fides and therefore, the impugned order is vitiated, it is contended by the petitioner. 4.A detailed counter has been filed by the second respondent wherein the allegations of mala fides are denied. It is stated that the second respondent had recommended for side stepping the petitioner to the Head Quarters ATNK&K AREA, as Colonal Administrative Officer (Discipline & Vigilance) as he was considered to be suitable to shoulder higher responsibilities. It is further contended that as Colonal Administration (Discipline & Vigilance) of Head Quarters, the petitioner is given more responsibilities as he is looking after the Discipline and Vigilance activities of all the troops in four States of Southern India and the cases filed in the High Courts and Lower Courts in these states involving the army including the land cases. It is further stated that it was never made to the first respondent by the second respondent that the petitioner had concurred for such transfer. It is further stated that eviction proceedings were of course initiated by the petitioner as against the encroachers but the same was done as per the instructions given by the higher authorities. There are several communications from the https://hcservices.ecourts.gov.in/hcservices/ higher authorities instructing the petitioner to evict the encroachers by due process of law. It is only in accordance with the same, the petitioner has initiated proceedings and therefore, he cannot take full credit for eviction, it is contended. It is further stated that there is nothing uncommon or special on his part alone in initiating such proceedings for eviction, as, such proceedings have been initiated in other places also by other Estate Officers, like the petitioner. It is further submitted in the counter that the impugned transfer neither reduces the petitioner’s pay and allowance nor cause any discomfort to him and he will continue to enjoy the same status but he has to shoulder higher responsibilities in the transferred post. There is no mala fides at all in the order of transfer and so, the writ petition is liable to be dismissed, it is contended. 5. I have heard the learned counsel for the petitioner and the learned Additional Solicitor General of India appearing for the respondents and also perused the records. 6. Transfer is one of the conditions of service. Even in the matter of employees working in civl services or in public sector undertakings, the Hon'ble Supreme Court has time and again held that since the orders of transfer are incidence of service, the scope of judicial review is very limited. It has been well settled that unless the transfer is stated to be in violation of any statutory provisions or the same has been made out of mala fides, the Courts should not interfere with the same. In respect of the army men, the scope of judicial review is all the more limited. The responsibilities of army officers are more onerous and highly sensitive as they are responsible for the safety and security of the nation. No officer of the defence service should even think of shying away from higher responsibilities. If an army man challenges his posting in the line of control on the ground that his life is at high risk and if the Court proceeds to review the same, then, the result would be disastrous. 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 the scope of judicial review in the matter of transfer of members of armed forces has held as follows:- "12.It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings. The scope of interference by the courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The courts https://hcservices.ecourts.gov.in/hcservices/ should be extremely slow in interfering with an order of transfer of such category of persons and unless 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) the Hon'ble Supreme Court has held as follows:- "Who should be transferred where, is a matter for the appropriate authrotiy to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his trnafer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right." 8.Applying the above dictum laid down by the Hon'ble Supreme Court, if the contentions of the petitioner are analysed, I am at loss to find any material to make out a case much less exceptionally a strong case so as to interfere with the impugned order of transfer. Though it is alleged that the impugned order has been issued out of mala fides, except making such vague allegation in the affidavit, the petitioner is not able to produce any material even to make out a prima facie case of mala fides. Initiating proceedings for eviction of encroachers is part and parcel of the duty of the petitioner as an army officer for which the petitioner cannot claim any special credit. There are several communications produced for inspection of this Court from the higher authorities of the petitioner instructing him to initiate proceedings to see that the encroachers are evicted. It is in compliance with the same and in discharge of his duties he had taken steps to evict the encroachers. It may be true that he had initiated steps to evict the encroachers, but there are no materials even to have a slightest doubt that because of the said proceedings initiated by the petitioner which according to him was more aggressive that the second respondent was influenced by any political pressure. The second respondent has stated in the counter that considering his capabilities and since his service is required to shoulder 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 Supreme Court, in the judgments cited supra, it is for the higher authorities to decide as to where to post a particular Subordinate officer in the interest of the organisation. There is no denial of the fact that the Post to which the petitioner has been transferred attaches more responsibilities and having vast jurisdiction spreading over to more than one state. In respect of the comforts, he does not loose any facilities and he can discharge his duties in the transferred post efficiently. It is the time for the petitioner to take prides that he has been given higher responsibilities in his service that too at the verge of his retirement. As stated in the counter, It is a credit for him. Instead of understanding the impugned order in a right sense, the petitioner has approached this Court as if the transfer is the result of mala fides. As I have already held, I do not find any semblance of materials to make out even a prima facie case of mala fides on the part of the second respondent in making the recommendation for transfer and on the part of the first respondent in 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, connected miscellaneous petitions are closed. Sd/ Asst. Registrar /true copy/ Sub Asst. Registrar jbm To 1.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.34919 Order made in W.P.No.14758 of 2008 SCD (CO) SMK/15.7.08 https://hcservices.ecourts.gov.in/hcservices/