1 S.B. CIVIL WRIT PETITION NO.191/2008 (R.P.Gupta Vs. Ajmer Vidyut Vitaran Nigam Ltd. Date of Order :: 11th January 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.M.Mridul, Senior Advocate assisted by Ms. Vandana Bhansali, for the petitioner By way of this writ petition, the petitioner, working on the post of Accounts Officer with the respondent-Ajmer Vidyut Vitaran Nigam Ltd., seeks to challenge the order dated 03.01.2008 (Annex.6) transferring him from the present place of posting at Rajsamand to the new place of posting at Ajmer. The petitioner has averred that by the order dated 30.09.2004 (Annex.1) he was transferred from the post of Accounts Officer (IA), Udaipur to the post of Accounts Officer (UC), Udaipur; that about ten months thereafter, he was transferred from Udaipur to Chittorgarh under the order dated 14.07.2005 (Annex.2); and that six months later he was transferred to Rajsamand by the order dated 31.01.2006 (Annex.3). The petitioner has pointed out that while being posted at Rajsamand as Accounts Officer, he was offered promotion as Senior Accounts Officer under the order dated 11.05.2007 (Annex.4) but, for his adverse family conditions, he gave up the promotion by his representation dated 2 14.05.2007 (Annex.5) and as such a person junior to him was promoted. The petitioner has further averred that since then he remained posted at Rajsamand but now, within less than seven months, he has been transferred from Rajsamand to Ajmer by the order dated 03.01.2008 (Annex.6). In his challenge to the aforesaid order dated 03.01.2008, the petitioner submits that he had to forego the promotion because of illness of his wife who is under regular treatment at Udaipur; that from the year 2004 he has been transferred from one place to another within short intervals; and that he is now due to retire on 31.10.2009. The petitioner contends that the impugned transfer in that scenario is nothing but malice in law. The petitioner refers to and relies upon the decision of this Court in D.B. Special Appeal No.1430/1999: Smt. Pushpa Mehta Vs. Rajasthan Civil Services Appellate Tribunal and others, decided on 16.12.1999 [reported in 2000 (2) WLC 725]. It is contended that the case of the petitioner is fully covered by the aforesaid decision and the order of transfer is nothing but mala fide inasmuch as he has been transferred from one place to another within short intervals and now is sought to be transferred from Rajsamand to Ajmer at a stage when he is to retire in the month of October 2009. It is also contended that the impugned order dated 03.01.2008 3 transferring the petitioner from Rajsamand to Ajmer is not justified particularly in view of his family conditions wherefor did he not avail of the promotion. Having heard learned Senior Counsel appearing for the petitioner and having examined the material placed on record with reference to the law applicable, this Court is clearly of opinion that this writ petition remains bereft of substance and does not merit admission. So far the argument regarding approaching date of retirement with reference to the decision of this Court in Dr. (Smt.) Pushpa Mehta's case (supra) is concerned, it may be noticed that the appellant in the said case, Dr. (Smt.) Pushpa Mehta, working as professor in the Department of Micro- Biology was transferred from Kota to Udaipur and the second respondent Dr.(Smt.) Shanta Dubey was transferred in her place from Udaipur to Kota. The second respondent challenged the order of transfer before the Rajasthan Civil Services Appellate Tribunal (‘the Tribunal’) on the grounds that she was on the verge of retirement; that she was suffering from cancer; that her husband had expired about a year back; and that her younger son was studying at Udaipur. The Tribunal found that the policy of the Government has been that the employees, who are on the verge of retirement, should not ordinarily be disturbed. The Tribunal also found 4 that there was no administrative reason to transfer Dr. Dubey from Udaipur to Kota except to accommodate Dr. Mehta and, thus, set the order of transfer aside. The Hon'ble Division Bench noticed that the State chose not to challenge the order made by the Tribunal and only Dr. Mehta challenged the same by way of a writ petition that was rejected by the learned Single Judge. In the back drop of such a fact situation, the Hon'ble Division Bench considered the submissions made on behalf of the writ petitioner-appellant about the limited grounds on which order of transfer could be challenged and the Hon'ble Division Bench, after noticing the decisions of the Hon'ble Supreme Court cited before it, observed,- “The propositions of law laid down in all the three cases cannot be disputed. It is well settled that ordinarily, the Tribunals and the Courts are not to interfere with the order of transfer unless it is challenged on the ground of malafide or the transfer is effected for extraneous considerations than the administrative reasons”. Thereafter the Hon'ble Division Bench noticed that the second respondent was due to retire in the month of January 2001 (the said Division Bench appeal was decided on 16.12.1999); and that the appellant (Dr. Mehta) had long to go in service. It was also noticed that though the Tribunal observed regarding policy of the Government of not disturbing the employees on the verge of retirement and set aside the 5 transfer order, the State Government did not challenge the order made by the Tribunal; thus showing that the Government was satisfied with the reasoning of the Tribunal; and it was only the appellant who was interested in being posted at Udaipur who preferred to challenge the order of the Tribunal. The Hon'ble Division Bench again observed that in the opinion of the Tribunal, the order of transfer suffered from malafide for having been passed only in order to accommodate the appellant; and the finding got confirmed from the fact that the State Government chose not to challenge the order of the Tribunal. The Hon'ble Division Bench thereafter observed and held as follows (the passage placed reliance upon by the petitioner):- ''We are of the view that unless there are compelling reasons, ordinarily, an employee should not be disturbed from the place of his/her posting, when he/she is at the verge of retirement. An employee should be given sufficient time, which may be of two years or so to plan peacefully his/her post retirement life. This can be the legitimate expectation of an employee who has served the Department for major part of his/her life. In exceptional case, if the transfer in such case is felt necessary in the public interest, it must be kept in mind while giving the fresh posting that minimum inconvenience is caused to the concerned employee. Any transfer contrary to aforesaid principle will lead to interference that the order is mala fide.'' The aforesaid observations of the Hon'ble Division Bench, of ordinary desirability of not disturbing an employee 6 approaching the date of retirement and to be given sufficient time of two years or so to plan peacefully his post retirement life and putting him to minimum inconvenience, even when referred as that of legitimate expectation of an employee, and the observations that any transfer contrary to aforesaid would lead to inference of it being mala fide, are required to be read in the context of and in conjunction with the fact situation of the said case and with the significant aspects that (a) when the Tribunal set aside the transfer order, the State Government chose not to challenge the order made by the Tribunal; and (b) that the Tribunal found that there had been policy of the Government that employees who were on the verge of retirement should not ordinarily be disturbed; and (c) that in the said case, the employee on the verge of retirement was sought to be disturbed only for the purpose of accommodating the appellant before the court. The aforesaid observations of the Hon'ble Division Bench, thus, cannot be read as laying down a rule of universal application in mandatory form that an employee on the verge of retirement cannot at all be transferred by his employer; and cannot be applied in abstract for every employment as if in no case an employee could be transferred by his employer if he is approaching the date of retirement. 7 In any case, there are several facts and factors wherefor the aforesaid observations in Dr. Pushpa Mehta’s case cannot be directly applied to the case of the petitioner. It is noteworthy that the petitioner has not even averred about any such policy of the employer i.e. the respondent – Ajmer Vidyut Vitran Nigam Ltd. that enjoined upon them a requirement of not transferring an employee within a particular period before retirement. Further significant aspect of the matter remains that it is not the case of the petitioner that he has been transferred in order to accommodate any other incumbent. Then, the imminent retirement of the petitioner is about 22 months away. Noteworthy further it is that the petitioner has not taken any specific ground of any specific inconvenience being caused to him for his transfer from Rajsamand to Ajmer. The petitioner's cursory suggestion that the reasons relevant for his giving up promotion apply for his present grievance too cannot be accepted because it is noticed that in the representation Annexure-5, while waiving his promotion, the petitioner stated difficulty in taking care of his family (said to be stationed at Udaipur) from the suggested place of posting at Jhunjhunu, about 600 kms. away. It is difficult to accept that such facts could be directly applied in relation to his transfer from Rajsamand to Ajmer also. Even assuming for the sake of 8 arguments that the petitioner has some personal inconvenience, it is not borne out from the record that the petitioner made any representation to the employer stating his grievance; and it cannot be assumed that if the petitioner would have made a representation with necessary material, the authorities would have turned a blind eye to the same. The petitioner has chosen to question the transfer order by way of this writ petition even without stating a representation to the authorities concerned and for this reason alone, the petition is required to be rejected. The suggestion about frequency of transfers is also without substance nor makes out any case for interference. It is noticed that the petitioner was posted at Rajsamand by the order dated 31.01.2006 and has been shifted only by way of impugned transfer order dated 03.01.2008 i.e., after about two years of posting. Prior to that, the petitioner was of course offered promotion that he declined but nothing turns open that so far the length of his posting at Rajsamand is concerned. The orders issued prior to his posting at Rajsamand also do not make out a case of frequent transfers, particularly of displacement from stations. The order dated 30.09.2004 (Annex.1) had only been of his adjustment at Udaipur from the post of Accounts Officer (IA) to the post of Accounts Officer (UC). Then, from his posting at Chittorgarh and thereafter at 9 Rajsamand the indications, if any, are that the employer has been considerate towards the petitioner and has attempted to balance his convenience with administrative exigencies. In an overall comprehension of the facts and circumstances of this case, this Court is unable to find any reason to consider any interference in the order of transfer at the instance of the petitioner more particularly for the reason that the petitioner has not even submitted a representation to the authorities concerned. The petition fails and is, therefore, rejected. (DINESH MAHESHWARI),J. MK