SCA/965520/2008 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9655 OF 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the Civil Judge ? ====================================== DAXA VAGHELA - Petitioner(s) Versus DIRECTOR GENERAL & ANR. - Respondent(s) ====================================== Appearance : Mr. M. S. Trivedi for Petitioner(s). Mr. K. M. Patel, Sr. Counsel with Mr. Varun K. Patel for Respondent(s) ====================================== CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 01/09/2008 ORAL JUDGMENT Rule. Mr. Varun K. Patel, learned Advocate, appears and waives SCA/965520/2008 2/14 JUDGMENT service of Rule on behalf of the respondents. Having regard to the facts of the case, the petition is taken up for hearing today with the consent of both the sides. 2. The present petition has been filed by the petitioner challenging the impugned order of transfer dated 21st July, 2008 at Annexure-B, by which the petitioner, who has been serving as a Research Assistant, National Institute of Fashion Technology, Gandhinagar, is transferred to National Institute of Fashion Technology, Coonor Centre (State: Karnakata). 3. The facts of the case briefly stated are that the petitioner was appointed by the respondent-Institute by the appointment order dated 15th February, 2008 at Annexure-A subject to the terms and conditions mentioned therein and was posted on duty at Gandhinagar Center and since then, she has been working there. However, the respondent-Institute passed the impugned order dated 21st July, 2008 and transferred the petitioner from Gandhinagar Centre to Coonoor Centre. It has been specifically contended that a fashion show was organised and arranged by the respondent – Institute at Karnavati Club, S. G. Highway, Ahmedabad and for the purpose of the said fashion show, invitation cards were to be distributed to the guests and high dignitaries. SCA/965520/2008 3/14 JUDGMENT During the preparation and distribution of the cards, inadvertently the protocol was not properly observed and maintained while writing the names of the dignitaries. It has been contended that on account of the said incident, the petitioner has been transferred from the present posting by the impugned order. It has been also contended that since the petitioner is a divorcee and is having the liability of looking after the old parents, the impugned transfer is too harsh and therefore, the present petition has been filed. 4. Mr. M. S. Trivedi, learned Advocate for the petitioner, has submitted that normally, the Courts would be slow in interfering with the order of transfer, but, the present order of transfer is punitive and therefore, it has been challenged in the present petition on the grounds inter alia mentioned therein, which include the aforesaid incident which has the basis for passing of the impugned order of transfer. He has also referred to the pleadings and affidavit-in-sur rejoinder filed by the respondent-Institute with Annexure-AA. Mr. K. M. Patel, learned Senior Counsel, had made a submission that the institute is having one or two centres in each State and therefore, the service is transferable on all India basis, for which an annexure is also produced with the rejoinder. However, Mr. Trivedi referred to the circular dated 6th May, 2008 and tried to emphasis that as can be seen from the said circular, there are SCA/965520/2008 4/14 JUDGMENT new centres proposed to be opened at Coonoor, Shillong, Patna and Bhopal and therefore, the names of the willing staff were called for who were willing to join the new centres. He, therefore, submitted that it cannot be said that the transfer is made on all India basis in a routine manner. He has also submitted that even if a new centre is opened, for which the staff is required, then, the petitioner, who is only the Research Assistant doing the clerical work, cannot be transferred as a high ranked officer would be required to be posted for setting up of a new centre. Same work can be attended by any other staff. He has also submitted that there are other twenty Research Assistants working in the respondent-Institute at Gandhinagar and the petitioner is only chosen and transferred, which speaks of mala fide intention of the respondent- Institute for the reasons stated above. He has, therefore, submitted that the respondent cannot adopt the policy of pick and choose. It is also submitted that the respondents have not explained any administrative exigencies though in the affidavit in reply it has been sought to be explained or contended. He submitted that since the transfer is punitive, the impugned order has been challenged in the present petition. 5. Mr. K. M. Patel, learned Senior Counsel for the respondent- Institute, has referred to the pleadings and affidavit-in-reply filed on behalf of the Institute. He has pointedly referred to the fact that it has SCA/965520/2008 5/14 JUDGMENT been denied that the transfer is made on account of alleged mistake of not observing and maintaining the protocol while preparing and distributing the invitation cards in respect of the fashion show organised at Karnavati Club, Ahmedabad. It has been specifically contended that the said incident has nothing to do with the transfer and the apprehension of the petitioner is misconceived. He has also referred to the appointment order at Annexure-A and relying upon Condition No.2 therein, he emphasised that at the time of the appointment also, it has been made clear that the services can be transferred to any other centres based on the administrative exigencies. He, therefore, submitted that since a new centre is set up at Coonoor, some staff would be necessary and therefore, the petitioner has been transferred by the impugned order. 5.1 The learned Senior Counsel, Mr. Patel, has referred to and relied upon a judgement of the Honourable Apex Court in the case of State of U.P. & Ors. vs. Gobardhan Lal, reported in (2004) 11 SCC 402, and submitted that normally, the Court should not interfere with the transfer order as it is the prerogative of the authority concerned, except if it falls within the grounds mentioned in the exceptional circumstances. He submitted that in the facts of the present case, there is no averment or material to suggest or even prima facie establish the mala SCA/965520/2008 6/14 JUDGMENT fides on the part of the respondent-Institute. It was submitted that mere allegations or averments would not be sufficient and therefore, it would not be traversed or dealt with in absence of any specific material. 5.2 Mr. Patel next referred to and relied upon a judgement of the Honourable Apex Court in the case of State of U.P. & Anr. vs. Siya Ram & Anr., reported in (2004) 7 SCC 405 and also the observations made therein with regard to the personal difficulties. He submitted that even for such personal difficulties, the Honourable Apex Court has observed that at the most, a representation could be made. He has emphasised the observations made in paragraph 5, which read as under: “No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned.” He emphasised that it should be left with the respondent- Institute to consider the need for transfer and suitability of the staff who could be posted for the new centre. SCA/965520/2008 7/14 JUDGMENT 5.3 Mr. Patel again referred to the observations made in paragraph 7 and 8 in the judgement in the case of Gobardhan Lal (supra), which read as under: “... Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision 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......” Further, he again emphasised on the following observations: “...... officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant...” He submitted that even if it is in transgression of the administrative guidelines, the impugned order cannot also be interfered with. He strenuously submitted that in absence of any specific allegation or material alleging mala fides that the transfer is made keeping in mind a particular incident, it cannot be easily accepted. He also submitted that unless there are specific allegations, the same cannot be met with and it is for the party, who alleges mala fides, has to establish the same. In support thereof, Mr. Patel again referred to and relied upon a judgement of this Court in the case of J. S. Kalal vs. Gujarat Mineral Development Corporation & Anr., reported in 1991(1) G.L.H. 232 and submitted that as observed in that judgement, even the family or personal SCA/965520/2008 8/14 JUDGMENT circumstances would not be a ground to interfere with such order of transfer in exercise of the jurisdiction under Article 226 of the Constitution of India and therefore, he submitted that the present petition may be dismissed or at the most, the petitioner may be directed to make a representation to the respondents. 6. In view of the rival submissions made by the learned Advocates for the parties, it is required to be considered as to whether the impugned order of transfer at Annexure-B can be interfered with in exercise of power under Article 226 of the Constitution of India. There is no quarrel with the proposition of law canvassed and emphasised by the learned Senior Counsel, Mr. Patel, that normally, the Court should not interfere with the order of transfer and it should be left to the discretion of the management. However, the submissions based on this are required to be appreciated in light of the factual background in the present case. The contention is that the basis for the impugned order of transfer is the mistake committed by the petitioner of not maintaining and observing the protocol while preparing and distributing the invitation cards of guests and high dignitaries and committing the mistake. Though the said aspect has been denied in the affidavit-in-reply, however, one is required to consider that if that was not the reason and the order of transfer is not punitive or by way of punishment, then, the administrative exigency SCA/965520/2008 9/14 JUDGMENT ought to have been explained. It is required to be appreciated that the administrative exigency is not a magic word or a phrase which could cover any decision in the guise of administrative exigency. The Honourable Apex Court also, while considering this aspect, has made the observation that the order itself must show the administrative exigency and it cannot be permitted to be explained subsequently by way of an affidavit. Even assuming that administrative exigency cannot be explained in any straight-jacket formula or grounds may not be comprehended and it involves a complex process of making a decision in which number of factors are required to be considered by the management, it must appear fair and reasonable. 7. There is no quarrel on this aspect that for administrative exigencies, transfer can be made. However, administrative exigency per se cannot be readily accepted in every case and therefore, while examining the given set of facts, the Court is required to consider whether the order is punitive or whether it is mala fide or whether it is really passed in administrative exigency. Therefore, again, it has a reference to the given set of facts and background and circumstances in which the order of transfer is passed. 8. The judgements, which have been referred to and SCA/965520/2008 10/14 JUDGMENT emphasised by Mr. Patel, also clearly refer to this aspect that normally the Court should not interfere with the order of transfer. In the judgement of the Honourable Apex Court in the case of Gobardhan Lal (supra), it has been held that transfer is prerogative of the authorities concerned and court should not normally interfere therewith except when (i) transfer order shown to be vitiated by mala fides, or (ii) in violation of any statutory provision, or (iii) having been passed by an authority not competent to pass such an order. Thus, it is settled that though normally the Court should not lightly interfere with the order of transfer, but, if it falls within any of the above grounds, then, the Court may interfere in a given set of facts. Therefore, it depends upon the facts of a given case. Here, in the present case, the aspect as to whether the transfer is punitive decision or is made due to administrative exigency, has to be considered in the background of the facts and one cannot overlook the hard realities of life and has to read between the lines. There may not be anything expressly stated and no files are shown and the decision could be taken for the very purpose though it might ostensibly appear to be an administrative order, but, in fact, its basis or foundation could be the incident of not maintaining and observing the protocol while preparing and distributing the invitation cards. 9. Another facet of the argument with regard to the SCA/965520/2008 11/14 JUDGMENT administrative exigency again is required to be considered. Assuming that the impugned order of transfer is not punitive and is not based on particular mistake or incident, as stated hereinabove, then also, the affidavit should have explained or justification ought to have come forth as to what was the need of transferring the petitioner, who is a Class-II employee working as Research Assistant. One can understand that if a person is in the senior position, then, he may be required to be transferred for heading a new centre, which is being established, so that his experience and capabilities would be useful in the establishment of the new centre. However, a person like the present petitioner, who is merely a Research Assistant under Category B, would not be at the helm of the affairs of the newly established centre, doing the clerical work. Therefore, there is no justification or need to explain for transferring the petitioner from Gandhinagar to Coonoor. It is also required to be mentioned that even in Government services or organisations like bank, normally, for transfer of services of Class II or Class III employee, there are guidelines that they may not be transferred outside a particular circle and particular region so as to avoid hardships. Therefore, there is no justification or explanation for transferring the petitioner from Gandhinagar to Coonor (State: Karnataka). Moreover, as stated above, there are about twenty such other persons like the petitioner and why the petitioner is only transferred, is not explained and it is in these SCA/965520/2008 12/14 JUDGMENT circumstances, the Court is required to appreciate the submission. Further, even the circular annexed with the affidavit-in-sur rejoinder, by which the willingness is asked from the staff persons for transfer to other centre outside the State, itself suggests that in such circumstances, willingness is asked and proposals are invited. Therefore, if the services it was on all India basis, as sought to be contended by the learned Senior Counsel, Mr. Patel, then, there was no need for inviting the proposal as per the circular at annexure to the affidavit-in-sur rejoinder. Further, though relying upon Annexure-AA filed with sur- rejoinder by the respondents, it was submitted that there is one or two centre/s in each State and transfer is made on all India basis even for clerical or Category-B employees, the same has also to be considered in light of the circular dated 6th May, 2008 produced by the learned Advocate for the petitioner, which clearly refers to the fact that names of the willing staff members, who can join the new centres at Coonoor, Shillong, Patna and Bhopal, have been called for. It appears that it is in response to the said circular that the staff members have been given the option. Moreover, if the respondents by their own circular are calling upon the staff to give the option, who are willing to join the new centres, and pursuant to such option given voluntarily, if the transfer was made, then, it will stand on a different footing. Therefore, it cannot be said that SCA/965520/2008 13/14 JUDGMENT the staff is transferred on all India basis. In this connection, a useful reference can be made to the observations of the Hon'ble Apex Court in the case of M.P. Gangadharan v. State of Kerala reported in (2006) 6 SCC 162. It has been observed as under: “The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality. But in a case of this nature, the doctrine of proportionality must also be applied having regard to the purport and object for which the Act was enacted.” 10. In the facts and circumstances of the present case and in view of the above, this Court is of the opinion that the impugned order, though ostensibly passed in so-called administrative exigency, is, in fact, punitive and therefore, it deserves to be quashed and set aside. The impugned order of transfer dated 21st July, 2008 at Annexure-B is hereby quashed and set aside. The petition is allowed. 11. However, the respondent-Institute is also given liberty to SCA/965520/2008 14/14 JUDGMENT consider that for whatever reason if they do not desire to keep the petitioner at Gandhinagar, the petitioner may be accommodated in Vadodara, Surat or nearby centre in the State. The petitioner shall make a representation to the respondent-Institute and the respondent-Institute will consider the same in proper spirit within a week thereafter for posting her at any other centre within the State, i.e. Vadodara or Surat, if they so desire for administrative reason. It goes without saying that these observations may not be construed as if the Court has suggested to transfer the petitioner from outside Gandhinagar and the petitioner may be continued if the respondent so desire. Rule is made absolute. [Rajesh H. Shukla, J.] kamlesh*