IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.09.2009 Coram The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice T.S.SIVAGNANAM W.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, .. Petitioners Vs. 1. Jayashree Govindarajan, 2. The Central Administrative Tribunal, Chennai Bench, City Civil Court Buildings, Chennai-600 104. .. Respondents Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorari, calling for the records relating to the order passed by the second respondent Tribunal made in O.A.No.396 of 2006, dated 24.07.2006 and quash the same. 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 R The 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 order passed in O.A.No. 396 of 2006 dated 24.7.2006. The first respondent herein is the applicant before the Tribunal. 2. The applicant filed O.A.No.396 of 2006, for declaring the order passed by the third and fourth respondents dated 10.5.2006, insofar as the transfer of the applicant from Metropolitan Transport Project (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, malafide and violative of Article 14 and 16 of the Constitution of India and for a consequential relief to repost the applicant at Chennai as Senior Auditor with all consequential benefits. 3. The relevant service particulars of the applicant are that, the applicant joined the service in the Office of the Accountant General at Hyderabad in the year 1982 and thereafter on her request, she was transferred to the Metropolitan Transport Project Audit Office (MTP) during December 2003 and had been working in that Office when she was transferred to Trichy by the impugned order dated 10.5.2006. The applicant contended before the Tribunal that the order of transfer is contrary to Circular dated 17.11.1987, issued by the first petitioner herein. According to the Circular, no staff should normally be kept in the same wing for a period exceeding five years and rotation to another group within a shorter period or retention in a particular group beyond five years be allowed only in exceptional circumstance and with the specific order of the Accountant General/Director of Audit concerned. It is the case of the applicant that her case is not an exceptional one for rotation or transfer within five years and the transfer is not in public interest. 4. The applicant would further contend that frequent orders of transfer, more particularly the impugned order, is issued with malafide intention and it is violative of Articles 14 and 16 of the Constitution of India; that several persons working in the same seat and 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 4 herein, in targeting the applicant, is not only illegal, but malafide and colourable exercise of power. The applicant would further contend that the respondents have made it appear that it is a mass transfer, but purposely has included the applicant's name without transferring seniors or juniors who are working as Senior Auditor in a particular seat or place for several years. 5. 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 has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer. The learned counsel further relied upon the decision of the Hon'ble Supreme Court in 1993 (1) SCC page 148 [RAJENDRA ROY Vs. UNION OF INDIA AND ANOTHER], wherein it has been held that it may not be possible to establish malice in a straight cut manner and in an appropriate case, it is possible to draw reasonable inference of malafide action from the pleading of antecedents facts and circumstances of the case. On these grounds, the applicant contended that the order of transfer is illegal. 6. The respondents before the Tribunal, who are the petitioners herein, had filed a reply statement before the Tribunal, inter alia, contending that the impugned order of transfer is in public interest, considering the exigency of Government service and as such, there is no malafide intention in ordering the transfer. The Department, by placing reliance on the Comptroller and Auditor General Manual of Standing Orders (Administrative), more particularly, para 6.5.1, would contend that the instructions contained in the said paragraphs are only guidelines for the Administration to plan development of manpower in accordance with exigency of work. The intention is not to allow a particular staff to continue in any section or wing indefinitely, which will be detrimental to his/her career development and that nowhere it is stated that an opportunity may be allowed to continue in the same section for five years so as to develop a measure of experience and knowledge. Thus, the difficulties lies with the administrative authorities to utilise the manpower to the best advantage of Government interest. The Department also relied upon an earlier order passed by the Central Administrative Tribunal in O.A.No. 492 of 2001 filed by the applicant to demonstrate her conduct. It is stated, that the said Application was filed challenging her transfer from Training Section in Headquarters, Chennai to Constructions Audit Office at Egmore, which is 2 K.Ms away from the Headquarters Office. The Tribunal on considering the reply filed by the Department, dismissed O.A.No.492 of 2001 by order order dated 13.6.2001. It is further contended by the Department that the applicant has putforward the very same allegation in the present Original Application. While answering the allegations made by the applicant regarding the https://hcservices.ecourts.gov.in/hcservices/ retention of 22 non gazetted senior Auditors in the same Unit/Building/adjacent Building, within Chennai, the Department pointed out that the applicant had joined the Office on unilateral transfer during May 1986 and had put in more than twenty years of service in Chennai only. It is mentioned that 13 out of the 22 persons, alleged by the applicant, have served in branch Offices outside Chennai, atleast on one occasion and two and are on the verge of retirement. While making transfer outside a particular place or locality, various factors are taken into consideration having regard to the exigencies of administration, availability of vacancies, guidelines etc. It is further stated that it was proposed to reduce the staff strength in Metropolitan Transport Project office to one Assistant Audit Officer and one Senior Auditor and accordingly, after one Assistant Audit Officer, it was proposed to shift one Senior Auditor from that Unit. Therefore, the applicant was shifted from Metropolitan Transport Project Office and there are no vacancies available in Chennai, and vacancies are available only in Branch Offices outside Chennai in the States of Tamilnadu and Kerala, the Administration was considerate enough in not posting her to Stations like, Palghat, Trivandrum or Madurai, posted her to Trichy. By raising the above mentioned contentions, the Department prays for dismissal of the Original Application. 7. The Applicant filed a rejoinder affidavit raising various factual contentions. The Department filed their reply statement to the rejoinder affidavit repudiating the same. The case of discrimination initially raised in the Original Application was also rebutted by the Department in their reply at paragraph No. 12 and a tabulated statement has been shown to establish their contention that there is no discrimination. A further reply affidavit is also seen to this filed by the applicant. 8. The Tribunal after considering the contentions raised on either side, while accepting that it is a settled legal principle law that Court cannot interfere in matters like transfer except in instances where malafide is established, proceeded to consider the case as to whether any malafide had been established. The Tribunal came to a conclusion that the applicant has been subjected to frequent shifts in her place of work within the City, itself several time and now by the impugned order, she has been transferred from Chennai to Trichy. The Tribunal further held that the memos calling upon the explanation were issued on 4.5.2006 and 5.5.2006 before the impugned order of transfer dated 10.5.2006 would indicate that the applicant has not been keeping 'good' relations with the respondents. The Tribunal further came to a conclusion that it is established through various submissions of the applicant that though she 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 the respondents has not been able to satisfactorily explain with regard to the preference and the yardstick applied in such transfer. Thereafter, the Tribunal proceeded to rely upon the various factual details given in the reply and rejoinder statement and ultimately held that the order of transfer is one of colourable exercise of power emanated out of malafide intention. 9. Aggrieved by the said order, the Department has filed the above Writ Petition contending that the Tribunal erred in granting the relief in a matter of transfer, where Courts normally do not interfere; that the applicant had approached the Tribunal without exhausting the alternate remedy available to her especially when her representation dated 13.5.2006 was received only after obtaining the said order from the Tribunal. The Department would contend that the Tribunal has misunderstood the fact and law regarding the continuation of staff as envisaged in paragraph No. 6.5.1. of the Circular dated 17.11.1987. The Department would further contend that the transfer has resulted on account of the reduction of staff in the Audit Office of Metropolitan Transport Project and the Tribunal erroneously failed to appreciate the said fact. On the above grounds, the Department sought for quashing the order passed by the Tribunal. 10. We have heard Mr. V.T.Gopalan, learned Senior Advocate for petitioners, and Mr.N.G.R.Prasad, learned counsel for the first respondent/Applicant and perused the materials on record. 11. The first contention raised by the learned Senior counsel for the petitioner is that much hype has been created by the Tribunal in interfering with the innocuous order of transfer served on the first respondent and the Tribunal committed a serious error in interfering with such an order and deserves interference at the hands of this Court. The learned Senior counsel took us through the factual contentions as regards the plea of discrimination raised by the applicant i.e. that there are several seniors and juniors who are working in the same Station for a much longer period and that the applicant has been singled out for reasons best known and as such her transfer is tainted with malafide. The learned Senior counsel by placing reliance upon the averment in the reply statement filed in O.A.No. 396 of 2006, stated that 13 out of the 22 persons had already served in Branch Offices outside Chennai at least on one occasion, 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 Chennai Units since 1986. The applicant has also listed 36 Senior Auditors and Auditors who have not been shifted from their place of working and that of 25 Officers working as Gazetted Officers who were retained at Chennai, after promotion. It is further stated that 14 https://hcservices.ecourts.gov.in/hcservices/ out of the 25 Officers have served in some capacity in places outside Chennai, on at lease one occasion and that there can be no end to such allegations. Even if those allegations are satisfactorily explained to the Tribunal, the respondents have no reason to believe that the applicant would not come out with more such allegations. The respondents have no bias against or in favour of any of their Officers and employees. If there is an administrative exigencies, each one is liable to be posted to the required Unit/Station. Administration should have that prerogative in that regard. Original Applications of this kind and their outcome should not hamper the prerogative of Administration. If the said Original Applications are allowed, it would be cited in any case of transfer and open up the flood gates and thus hamper the Administration. Incidentally, the Applicant may not be aware of the facts when she states in paragraph No.25 of here rejoinder affidavit that 'no ladies have been transferred from Chennai (from the post of Clerk to the post of Senior Audit Officer) except on request'. It is submitted that the various lady Officers and staff were transferred to outside their normal places of working depending on administrative feasibility. 12. The learned Senior counsel also would contend that there is no violation of the Circular dated 17.11.1987 and there is no bar in the said Circular, which contains general guidelines regarding rotation of personnel in various wings of Audit – Central Office or Field of Inspection like Civil, Public Works, etc. and there is enough discretion vested with administrative authorities to utilize their 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 quoting of the Circular is out of context. 13. The learned Senior Counsel would then invite our attention to Ground D and G in the Original Applications filed by the applicant and submit that mere use of the word "malafide is not sufficient to cannote a malafide action. In support of his contentions, he would place reliance upon the decision of the Hon'ble Supreme Court in (2000) 5 Supreme Court Cases 630 [PRABODH SAGAR Vs. PUNJAB STATE ELECTRICITY BOARD AND OTHERS], wherein the Hon'ble Supreme Court was considering the validity of an order of premature retirement which was challenged on two grounds. The first being on the issue that is tainted with malafide. In the said circumstances, in paragraph No.13, it is held as follows: "13. ........ Mere user of the word "mala fide" by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration has been noted in https://hcservices.ecourts.gov.in/hcservices/ this judgment in extenso. Tampering of the annual confidential rolls has been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the court to come to a conclusion of mala fide without there being any basic evidence being made available to the Court. 14. The Punjab State Electricity Board Services (Premature Retirement) Regulations, 1982, has been taken recourse to by the Board and in particular, Regulation 3 (i)(e) which, in fact, provides an authority to the Board with an absolute right to retire an employee on the date on which he completes 25 years of service or attains 50 years of age upon however, proper notice to that effect. The Board has, thus, an absolute power to retire an employee prematurely though, however, upon following the procedure set out in the Rules and the same having been done, can it be said that the legal right of the petitioner stands violated-the answer cannot but be in the negative. The next question that automatically crops up is as to whether the formation of an opinion has been in accordance with public interest or not-the facts noted above depict evidence galore as regards the justification of the formation of such an opinion." Therefore, the learned Senior counsel would contend that except for the word 'malafide' mentioned in two places in the Original Application, there is no other allegations to substantiate the applicant's claim and as such the Tribunal ought not to have interfered with the order of transfer. 14. The learned Senior counsel further contended that pursuant to the interim order which was granted by this Court by an order dated 22.12.2006, the applicant is still continuing at Chennai and as on date, there are no vacancies in Chennai. Therefore, the learned Senior counsel prayed for setting aside the order of transfer. 15. Per contra, Mr.N.G.R.Prasad, learned counsel for the applicant would strenuously contend that the order of the Tribunal calls for no interference; that the Tribunal had exercised its jurisdiction in a proper and reasonable manner and after extensively considering the various contentions raised and after thoroughly analysing 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 of malafide intention and therefore, the learned counsel would contend that the order calls for no interference. The learned counsel would also reiterate the submissions made before the Tribunal and contend that the applicant is a lady Officer and if she is transferred outside Chennai, she would be put to irreparable hardships. The learned counsel would also reiterate that several of the applicant's seniors are still continuing in Chennai for over twenty years and they have not been transferred, the applicant has been singled out, the plea regarding the retention of post itself is an incorrect statement and the order of transfer of camouflaged. Under such plea, the Tribunal has rightly set aside the impugned order of transfer. 16. The learned counsel placed reliance on the decision of the Hon'ble Supreme Court in AIR 1986 SC 1955 [B.BHARADHA RAO Vs. STATE OF KARNATAKA AND OTHERS], wherein the Hon'ble Supreme Court held that the transfer is always understood and considered as an incidence of service 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 to desperation and that it disrupts the education of his children and leads to numerous other complications. 17. We have carefully, considered the submissions made by the counsel on either side and carefully perused the material available on records. 18. The impugned order of transfer is sought to be assailed by the applicant on three grounds viz. i) that it is in violation of the policy Circular issued by the respondent organisation; ii) that the order of transfer is discriminatory, since several other persons who have worked for more than twenty years have been retained and it is a malafide exercise of power; and iii) the plea that the post has been surrendered is not tenable and has been made only for the purpose of shifting the applicant. 19. We have in the earlier paragraphs stated about the Circular issued by the respondent organisation. On perusal of the said Circular dated 17.11.1987, it is to be noted that it does not place an embargo on the administration from transferring an incumbent. It is to be seen that the discretion lies with the authority and such discretion has to be exercised to the best advantage of the Government's interest. Therefore, we hold that the impugned order of transfer cannot be stated to be in violation of the circular. We are satisfied with the reasons assigned by the Administration for effecting such transfer. https://hcservices.ecourts.gov.in/hcservices/ 20. In fact, an additional typed set of papers have been filed. The vacancy position filed in the additional typed set clearly shows that various activities/ projects in Metropolitan Transport Project has been completed and this has lead to the Unit having excess of one Assistant Auditor and one Senior Auditor and therefore, the Administration decided to shift one Assistant Auditor and one Senior Auditor to the Units where vacancy existed and therefore, the applicant had been posted to Trichy. 21. As could be seen from the vacancy position of Auditors/Senior Auditors as on 1.7.2009, there is excess strength in the Chennai area. Further, as seen from the explanation given in pararagraph No. 12 of the reply statement before the Tribunal, we find that there is no discrimination in the order of transfer and except the petitioner, other Officers have served on the same capacity in places outside Chennai on atleast one occasion. Therefore, the plea raised regarding the discrimination is also not substantiated. 22. Coming to the next question regarding allegation of malafide, as rightly contended by Mr.V.T.Gopalan, learned Senior counsel, except for expression "malafides" used in a few places in the Original Application, there is no other proof or material placed for the purpose of establishing malafides. As held by the Hon'ble Supreme Court in (2000) 5 Supreme Court Cases 630 referred supra, mere use of word 'malafide' by the applicant would not by itself make the order of transfer being tainted with malafide. Therefore, we hold that the applicant has not established any malafides on the part of the Department while issuing the order of transfer. 23. Further, the Hon'ble Supreme Court in State of U.P and Others Vs. Gobardhan Lal reported in (2004) 11 Supreme Court Cases 402, while construing the power of the inference of orders of transfer, held as follows: "7. ......... Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a malafide exercise of power of violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to https://hcservices.ecourts.gov.in/hcservices/ approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order