IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.11190 of 2009 Date of Decision: 4.11.2009 Union of India and others. ....... Petitioners through Ms.Renu Bala Sharma, Advocate. Versus Tarsem Lal and another. ....... Respondent no.1 in person. None for respondent no.2. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The petitioners have questioned the legality and validity of judgment dated 3.7.2009 (Annexure P4) passed by the Central Administrative Tribunal, Chandigarh Bench (hereinafter described as `the Tribunal') vide which Original Application No.359/PB/2009 filed by respondent no.1 was disposed of while setting aside the order of cancellation of his transfer from Amritsar to Pathankot, consequently permitting him to remain posted at Pathankot. Respondent no.1, who belongs to Indian Revenue Service and is working as Assistant Commissioner of Income Tax, was transferred from Amritsar to Pathankot as Assistant Commissioner of Income Tax (OSD) C.W.P.No.11190 of 2009 -2- .... vide order dated 23.4.2009. It, however, transpired that he had remained posted at Pathankot on an earlier occasion and had, by his conduct, not endeared himself to the members of the Bar Association at Pathankot, who had expressed their reservations regarding the posting of respondent no.1 on having come to know about his transfer to Pathankot and taking note thereof, his transfer was cancelled vide order 7.5.2009 which led to the filing of the application by respondent no.1 assailing the validity thereof. As noticed above, the Tribunal has accepted the application of respondent no.1 and has set aside the order of cancellation by the impugned judgment. While passing the impugned order, the Tribunal has also observed that setting aside of the order of cancellation of transfer of respondent no.1 shall not preclude the petitioners from conducting an enquiry against him on the complaint made by the Bar Association, Pathankot and if some truth is found in the same which may be established during the course of enquiry, then in such an eventuality, they were free to take any action as permissible under the guidelines for transfer. It has been stated in the instant petition and contended before us that the order of transfer is merely an incidence of service and the Tribunal has patently gone wrong in interfering with the same. Some material was also placed before us during the course of hearing of the petition which showed that an enquiry had been conducted by the Joint Commissioner, Income Tax, Range-VI, Pathankot regarding the resolution passed by the Taxation Bar Association, Pathankot in accordance C.W.P.No.11190 of 2009 -3- .... with the directions given by the Tribunal. The enquiry officer, while recording his conclusions, had also associated respondent no.1 with the proceedings and as per his findings, the allegations against him in the resolution preferred by the Bar Association, prima facie, stood established. While referring to the allegations regarding acrimonious relations between the Bar and respondent no.1, the enquiry officer had concluded that the relations between the two were, indeed, severely strained. He also concluded that a Trust by the name of “Gandhian Visionary Foundation” has been running a College at Pathankot and respondent no.1 was the managing trustee thereof. On the basis of the above mentioned material, learned counsel for the petitioners contended that apart from the fact that the Tribunal had gone wrong in interfering with a purely administrative order pertaining to the transfer of respondent no.1, the subsequent enquiry also justified the order of cancellation of his transfer to Pathankot. It was, thus, contended that on the basis of the above, the impugned order of the Tribunal deserves to be set aside. Respondent no.1 has appeared in person. He has pleaded that the only reason why he is interested in going to Pathankot is the fact that his daughter had met with an accident and is bed-ridden and requires complete parental care. He submitted that the cancellation of the order of transfer has resulted in serious prejudice to him on account of the circumstances that he was placed in. He also submitted that his work and C.W.P.No.11190 of 2009 -4- .... conduct had been satisfactory all throughout and he was a meritorious officer. He sought to justify the order of the Tribunal on the premise that the same was perfectly in conformity with the law and did not warrant any interference by this Court. We have heard the learned counsel for the petitioners and the respondent in person at some length. The precise question before us is as to whether the Tribunal was justified in interfering with a purely administrative order cancelling the transfer earlier ordered by the petitioners or not. In B.Varadha Rao Versus State of Karnataka and others, AIR 1986 S.C. 1955, the Supreme Court observed as under:- “We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words `or other conditions of service' in juxtaposition to the preceding words `denies or varies to his disadvantage his pay, allowances, pension' in R.19(1)(a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government servant and some disadvantage touching his pay, allowances, pension, seniority, promotion, leave etc. It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to C.W.P.No.11190 of 2009 -5- .... another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. As the learned Judges rightly observe: `The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants.' ” In Mrs. Shilpi Bose and others Versus State of Bihar and others, AIR 1991 S.C. 532, their Lordships of the Apex Court laid down as under:- “The Courts should not interfere with transfer orders which are 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 C.W.P.No.11190 of 2009 -6- .... 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.” In Union of India and others Versus S.L.Abbas, AIR 1993 S.C. 2444, the Supreme Court held as under:- “Guidelines issued by Government – Transfer of Government employee – Order made without following guidelines – cannot be interfered with by Courts unless it is vitiated by mala fides or is made in violation of statutory provision. While ordering the transfer of Government employee, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject,but the said guidelines do not confer upon the Government employee a legally enforceable right. Who should be transferred where, is a matter for the appropriate authority 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. xx xx xx xx xx xx C.W.P.No.11190 of 2009 -7- .... The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art.226 of the Constitution of India in service matters. This is evident from a perusal of Art.323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art.323- A. The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitutes its own judgment for that of the authority competent to transfer.” The above mentioned law has been consistently reiterated by the Apex Court in the subsequent judgments as well. A few of them are as follows:- 1. Chief General Manager (Telecom),N.e. Telecom Circle and another Versus Rajendra Ch.Bhattacharjee and others, AIR 1995 S.C. 813; 2. State of Madhya Pradesh and another Versus S.S.Kourav and others, AIR 1995 S.C. 1056; 3. State of U.P. and others Versus Gobardhan Lal, (2004) 11 S.C.C. 402; and 4. Mohd. Masood Ahmad Versus State of U.P. And others, (2007) 8 S.C.C. 150. The above position of law leaves no manner of doubt that the Tribunal has erred in interfering in an order which was purely administrative C.W.P.No.11190 of 2009 -8- .... in nature and passing of which was within the domain of the petitioners. We cannot persuade ourselves to agree with the respondent that the impugned order was justified in the given set of circumstances, more-so when there are no allegations of mala fide or the same being not as a measure of administrative exigencies. Hardship cannot be construed to be a legitimate ground warranting judicial interference in an administrative order when it does not smack of arbitrariness or malice on the part of the authority passing such an order. Hardship is a matter that ought to be left to the employer/ competent authority to consider; in case a representation to that effect is made to it. We are, however, not commenting on the contents of the enquiry report which has been brought to our notice during the course of proceedings and the conclusions contained therein, lest it may prejudice the case of respondent no.1. Consequently, the writ petition is allowed and the impugned order set aside. We, however, grant liberty to respondent no.1 to make a representation to the competent authority in the administrative hierarchy highlighting his difficulties which representation the competent authority shall look into for taking a decision that he may consider appropriate in the circumstances. (T.S.Thakur ) ( Mahesh Grover ) Chief Justice Judge November 4,2009 “SCM”