IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2011 CORAM: THE HONOURABLE MR. JUSTICE K.N.BASHA W.P.No.9614 of 2011 and M.P.Nos.2 & 3 of 2011 Mr.TVSK Reddy .. Petitioner Vs. 1.Union of India, Through The Secretary, Govt. of India, Ministry of Defence, New Delhi-110 011. 2.The Air Officer Commanding Air Force Record Office, Subrata Park, New Delhi-110 010. 3.The Commanding Officer, 8 BRD, Air Force Station Avadi, Chennai 600 055 ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus, calling for the entire records leading to the posting tenure of the petitioner and Impugned Order No.8BRD/2602/2/P3, dated 16th November 2010, passed by the 3rd respondent (with the authority No.RO/RDB/455, dated 04th November 2010 & RDB/451, dated 07th January 2011, passed by the 2nd respondent) and quash the impugned order passed by the 3rd respondent and direct the respondents not to post out the petitioner from the present until till petitioner's date of discharge i.e., on 31st May 2013, which falls within the normal posting tenure or the petitioner may be given discharge from service with immediate effect, with all consequential monetary benefits. For Petitioner : M/s.M.K.Sikdar For Respondents : Mr.M.Ravindran, Additional Solicitor General for Mr.M.Devendran for R1 to R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R Though this matter is posted for submitting arguments in respect of the vacate stay petition, by mutual consent of both the parties, the main writ petition itself is taken up for final hearing. 2. The petitioner has come forward with this petition seeking for the relief of quashing the Impugned Order No.8BRD/2602/2/P3, dated 16th November 2010, passed by the 3rd respondent (with the authority No.RO/RDB/455, dated 04th November 2010 & RDB/451, dated 07th January 2011, passed by the 2nd respondent) and quash the impugned order passed by the 3rd respondent and direct the respondents not to post out the petitioner from the present until till petitioner's date of discharge i.e., on 31st May 2013, which falls within the normal posting tenure or the petitioner may be given discharge from service with immediate effect, with all consequential monetary benefits. 3. The case of the petitioner is that he has joined Indian Air Force as an Airman on 22.02.1991 and he was posted at No.8, BRD, Air Force Station Avadi, Chennai under the third respondent herein with effect from 25.05.2009. He was promoted to the rank of Junior Warrant Officer on 01.06.2010. The petitioner was having unblemished record of service as a devoted, dedicated and loyal soldier. The petitioner was posted in different units of the respondents but he was never posted in his home town. He is having aged parents, wife and one minor girl child. He has also demolished his ancestral house and started new construction of house for his resettlement at Gudur, Andhra Pradesh State, with the hope that he would have his last posting tenure with the third respondent at No.8, BRD, Air Force Station Avadi, Chennai. 4. The petitioner was posted at No.331, TRU, Shahsitar, Jammu & Kashmir on 10.03.2008 for a limited tenure of 2 years as the said Unit of the respondents is classified as hard area. As per the Posting and Tenure Policy of the respondents, after a hard area posting, the petitioner was entitled for a choice of posting with a normal tenure for 4 to 5 years. The petitioner sustained grievous injuries in an accident on 25.10.2008 and he was admitted in a hospital with multiple fractures and underwent operations. The petitioner has not recovered fully and he has problem in his right knee and left wrist. The petitioner, as per his choice, was posted at No.8, BRD, Air Force Station, Avadi, Chennai. The petitioner was given promotion to the rank of Junior Warrant Officer on 01.06.2010 and re-posted at the same unit and subject to undertaking to serve 3 years from the date of promotion and the third respondent arbitrarily obtained signature from the petitioner with influence, as if he was willing to serve 3 years more from the date of his promotion to the rank of JWO. The petitioner is left with no other option, except to sign the printed papers of the respondents. https://hcservices.ecourts.gov.in/hcservices/ 5. The petitioner made a representation to the third respondent stating that posting tenure is a normal tenure for 4 to 5 years as he had came from hard area and as such, he should not been transferred on promotion. However, his representation was not accepted and the petitioner was posted at No.859 SU, Jaisalmer as per the impugned order No.8 BRD/2602/2/P3 dated 16.11.2010 passed by the third respondent. The petitioner made a representation for cancellation of the said order as per his application dated 11.11.2010. The second respondent considered the representation of the petitioner partially and modified the date of posting from 28.02.2011 to 02.05.2011, vide Signal No.RDB/451 dated 07.01.2011 and Signal No.RDB/961 dated 11.01.2011. The petitioner made further representation dated 18.01.2011. However, the said representation was also rejected on 25.03.2011. Being aggrieved against the said orders, the petitioner has come forward with this petition with the above said prayer. 6. The learned counsel for the petitioner mainly contended that the impugned order of transfer was passed against the writ petitioner to the effect of violation of choice of the petitioner to chose a place after serving at the hard area. It is contended by the learned counsel for the petitioner that the petitioner had already rendered enough service in the hard area and due to medical grounds, he has been transferred to Chennai and now through the impugned order, the petitioner has been again transferred to a hard area. The learned counsel for the petitioner also submitted that the petitioner's signature was arbitrarily obtained by the third respondent at the time of promoting the petitioner on 01.06.2010. It is further submitted that now the petitioner having shifted to Chennai, Air Force Station, Avadi, is entitled to complete the tenure of 4 to 5 years and as on date, nearly about 2 years of tenure, the promotion is offered. Therefore, it is contended that the impugned order is liable to be set aside. In support of this contentions, learned counsel for the petitioner placed reliance on the decision of the Hon'ble Apex Court in Dharam Pal Singh v. Union of India reported in AIR 2004 SC 611. The learned counsel for the petitioner without prejudice to his earlier contentions would also submit that in the event of not accepting the above said contentions, the petitioner may be granted some breathing time for joining duty in the transferred post on the ground of his personal difficulties, namely, he has to make arrangements for taking care of his aged parents and to attend the construction work of his house at Gudur, Andhra Pradesh State. 7. Per contra, Mr.M.Raveendran, learned Additional Solicitor General contended that there is no infirmity or illegality in the impugned order of transfer. It is contended that only on the basis of the undertaking given by the petitioner to the effect that he is ready and willing to serve in the promoted post for a period of three years, he has been promoted from the post of Airman to the post of JWO (Junior Warrant Officer). The learned Additional Solicitor General would further contend that the petitioner has been medically certified to be fit and only thereafter, he has been https://hcservices.ecourts.gov.in/hcservices/ promoted and posted at No.859 SU, Jaisalmer through the impugned order. It is pointed out that the petitioner in his application dated 20.01.2009 had given an undertaking that the posting on compassionate grounds will have a tenure of two years only. It is further contended that the transfer orders are liable to be challenged only on two grounds namely mala fide exercise of power and violation of statutory rules. The learned Additional Solicitor General also contended that if the petitioner is ready and willing to forego the promotional post, the transfer order would be called back. It is contended that the order of interim stay granted in favour of the petitioner caused great hardship to the department namely Air Force, as they require competent person in the promoted post and the petitioner has been promoted only after certifying that he was medically fit. In support of his contentions, the learned Additional Solicitor General, placed reliance on the following decisions: (i) M.Sankaranarayanan, IAS v. State of Karnataka and Others reported in (1993) 1 SCC 54 (ii) State of U.P. and Another v. Siya Ram and Another reported in (2004) 7 SCC 405 (iii) State of U.P. and Others v. Gobardhan Lal with D.B.Singh v. D.K.Shukla and Others reported in (2004) 11 SCC 402 (iv) Unreported order of this Court dated 09.08.2011 in W.P.No.18609/2011. 8. This Court considered the rival contentions put forward by either side and perused the entire materials available on record including the impugned order. 9. At the outset, it is to be stated that the petitioner has been transferred from an hard area to No.8, BRD, Airforce Station, Avadi, Chennai as per his application dated 20.01.2009 on medical and compassionate grounds and the perusal of the said application makes it abundantly clear that he is well aware that the said posting is for a tenure of 2 years and he has also undertaken not to seek cancellation or for any change. It is pertinent to note that in the affidavit, the petitioner has stated that when he was given promotion to the rank of Junior Warrant Officer on 01.06.2010, he was forced to give an undertaking to serve for a period of 3 years and the third respondent arbitrarily obtained his signature. I am unable to countenance such claim and contention of the petitioner for the simple reason that he has not retracted the undertaking immediately and he has not made any further representation withdrawing such undertaking and only now before this Court, he has come forward with such a claim. It is pertinent to note that earlier the petitioner was shifted to Chennai on medical grounds and now after the petitioner has been medically certified to be fit and after the petitioner undertaking to serve for a period of three years to the transferred place, he has been https://hcservices.ecourts.gov.in/hcservices/ promoted. Therefore, it is crystal clear that the impugned order is not an outcome of any mala fide exercise of power or in violation of any statutory rules. It is needless to state that the petitioner is rendering service in Air Force which is an essential service and as such, he cannot challenge the transfer order on untenable grounds. It is also needless to state that an order of transfer is an administrative order and a transfer is ordinarily an incident of service. As far as the case on hand is concerned, the petitioner has not made out any case of mala fide exercise of power or the transfer order was passed in violation of any statutory rule. 7. At this juncture, it is relevant to refer the following decisions of the Hon'ble Apex Court in respect of the power of this Court to interfere in an order of transfer. 7.1. The Hon'ble Apex Court in State of U.P. v. Gobardhan Lal reported in 2004 (11) SCC 402 has held as follows : “It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. 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 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 mala fide exercise of power or 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 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.” https://hcservices.ecourts.gov.in/hcservices/ 7.2. The Hon'ble Apex Court in Shilpi Bose v. State of Bihar reported in 1991 Supp. (2) SCC 659, has held as follows : “The courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order ; instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be compete chaos in the administration which would not be conducive to public interest. 7.3. In yet another decision in Somesh Tiwari v. Union of India and Others reported in (2009) 3 MLJ 727 (SC), the Hon'ble Apex Court has held as hereunder: “Indisputably, an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds – one malice in fact and the second malice in law.” The principles laid down by the Hon'ble Apex Court in the decisions cited supra is squarely applicable to the facts of the instant case as in this case the petitioner has not made out a case of mala fide exercise of power or the impugned order was passed in violation of statutory rules. Therefore, this Court has no hesitation to hold that the petitioner has not made out any ground warranting interference of this Court in the impugned order of transfer. 8. However, considering the plea made by the petitioner to the effect of seeking the relief of some breathing time for joining the duty, this Court is of the considered view that no prejudice would be caused to the respondents in the event of considering such request, as the petitioner has stated that he has to make arrangements to take care of his aged parents and he has to make arrangements for construction of his house at Gudur, Andhra Pradesh State. 9. Considering the above said factors, this Court is inclined to grant the relief of direction to the respondents herein to keep the impugned order of transfer in abeyance for a period of eight weeks from the date of receipt of a copy of this order enabling the https://hcservices.ecourts.gov.in/hcservices/ petitioner to meet the above said contingencies. It is made clear that after the expiry of eight weeks, the petitioner shall join the transferred post without any failure. 10. With the above direction, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed. jvm/gg Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The Secretary, Union of India, Govt. of India, Ministry of Defence, New Delhi-110 011. 2.The Air Officer Commanding Air Force Record Office, Subrata Park, New Delhi-110 010. 3.The Commanding Officer, 8 BRD, Air Force Station Avadi, Chennai 600 055 +1cc to Mr.M.K.Sikdar Advocate sr.61945 +1cc to Mr.M.Devendran Advocate Sr.61374 W.P.No.9614 of 2011 and M.P.Nos.2 & 3 of 2011 RJ(CO) rvr 20/10/2011 https://hcservices.ecourts.gov.in/hcservices/