1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 3250 of 2008 UNION OF INDIA & ORS V/S RAM SINGH & ANR Mr. VINIT KUMAR MATHUR, for the appellant / petitioner Mr. RS CHOUDHARY for Mr. GR PUNIA, for the respondent Date of Order : 4.9.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- The matter comes up for admission. However, at the request of the learned counsel for the parties, the matter has been finally heard. The petitioner seeks to challenge the order of the learned Tribunal dated 7.5.2008 allowing the original application filed under Section 19 of the Administrative Tribunals Act, 1985, and quashing the order dt. 28.9.2007 Annexure-A1. By the order dt. 28.9.2007 the employee respondent was transferred from Sri Ganganagar to Banswara. The private respondent filed original application before the learned Tribunal seeking to challenge the transfer on the grounds interalia that it is the general policy that staff should not be transferred 2 when the school session is running, and the applicant had deposited the necessary college fee of his children, and would suffer financial loss. Details of the education being pursued by the kids was given, and thus the transfer was claimed to be against the policy and the judgments given by the Apex Court as well as High Court. The other ground given was that the applicant is transferred from Barmer to Jodhpur in the month of March, 2006, and there is only one year time that he has been again transferred to Banswara, while the transfer if made must be judicious keeping all circumstances and difficulties of the applicant. We may observe here that in March, 2006 the applicant was not transferred from Barmer to Jodhpur but on promotion he was posted at Sri Ganganagar. The next ground given is that the applicant had been transferred from Sri Ganganagar to Banswara but no person has been posted vice the applicant. Thus, the transfer is harsh to him in mid session. Thus, the action was claimed to be arbitrary and against the principle of service law and service rules. Then, again transfer policy was invoked on the anvil of different facts. The application was contested by filing a reply, and in the reply reliance was placed on various judgments of the Hon'ble Supreme court including that in Union of India Vs. Janardhan Dev & Ors reported in 2004(4) SCC-245. It appears on the day when the matter was finally heard, on 26.2.2008, an application was filed by the applicant praying that the respondents (present writ petitioner) be 3 directed to produce certain documents mentioned therein for the sake of justice. It may be observed that according to the writ petitioner on this application no order was passed requisitioning the documents. The learned Tribunal found that the transfer is in violation of guidelines/transfer policy as normally the tenure is of 4 years which may be extended to 6 years, and that the respondents therein have failed to produce a single exceptional circumstance to justify the transfer in question, and that the respondent therein have come with a case that the applicant committed serious irregularities, and they have complaints against him. It was found that the respondents failed to demonstrate how such transfer could improve 'administration', and if the applicant was guilty of alleged 'irregularities' the applicant ought to have been subjected to 'investigation' and 'inquiry' carried to logical end. Thus, the transfer was found to be punitive in nature passed in violation of principles of natural justice, and thus it has been quashed. It is contended by the learned counsel for the petitioner that in view of the judgment of Hon'ble the Supreme Court in Janardhan Dev's case, even if the administration felt that the employee is guilty of certain irregularity, de-hors the entitlement of the employer to initiate enquiry, and taking disciplinary action he could 4 very well be transferred, and such transfer cannot be interferred with by the Court. It was also contended that no order has been passed by the Tribunal calling upon the respondents to produce any document, still adverse inference has been drawn which is bad. Then, it was contended that the transfer policy and guidelines are merely guidelines and are not to be interpreted as words of statute, so as to render the transfer order justiciable on the touch stone of every such guideline, and thus the Tribunal was in error in interferring with the order. Learned counsel for the respondent, on the other hand, supported the impugned order, and contended that the employee has been subjected to frequent transfers inasmuch as within a period of five years he has been transferred six times, and the transfer is malafide. We have considered the submissions. It would suffice to say that a look at the original application filed before the Tribunal does show that therein none of these grounds were taken to challenge the transfer viz. that he has been subjected to frequent transfers, or that the transfer is malafide. In that view of the matter a new case cannot be allowed to be set up before this Court in this writ petition by the employee respondent. It is a different story that even according to the contentions taken in the reply to the writ petition, 5 the stand of the employee having been transferred six times during five years stands belied, inasmuch as in para c of the reply it has been pleaded that on 12.7.2002 he was transferred from Bandikui to Sri Ganganagar, and within 13 days of that transfer he was again transferred to Bikaner. At that same time Shri H.R.Jakhar was transferred from Bikaner to Sri Ganganagar, and Shri Jakhar challenged the order of transfer which challenge was accepted, and consequently the employee was again transferred back to Sri Ganganagar where he joined on 7.10.2002. Then, he was transferred to Barmer on 21.4.2005 wherefrom he was promoted on the post of A.S.P.O., and was transferred, rather posted on 24.3.2006 at Sri Ganganagar, where he joined the duty. Thus, all that it comes to is, that he was transferred from Bandikui to Sri Ganganagar, and then from Sri Ganganagar to Barmer wherefrom he was promoted, and now he has been transferred from Sri Ganganagar. Apart from the above, in our view, on the face of the judgments of the Hon'ble Supreme Court relied upon by the present petitioner before the learned Tribunal, including that in Janardhan Dev's case, it was not open to the learned Tribunal to interfere with the order of transfer, for the grounds and reasons given. Consequently, the writ petition is allowed. The impugned order of the learned Tribunal dt. 7.3.2008 is set 6 aside, and the order of transfer dt. 28.9.2007 stands restored. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/