1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 324/2009 KASHINATH JAIRAM SHETYE, major, Indian National, currently serving as Junior Engineer (Civil) Division XV, Electricity Department, Government of Goa, Patto, Panaji, Goa. And r/o. Babino Building, Alto Fondem, Ribandar, Tiswadi, Goa. ........ Petitioner. V/s. 1. The State of Goa, through the Chief Secretary, having his office at the Secretariat, Porvorim, Bardez, Goa. 2. The Chief Electrical Engineer, Department of Electricity, Government of Goa, having his office at Vidyut Bhavan, Panaji, Goa. ......... Respondents. Mr. Nigel Costa Frias, Advocate for the petitioner. Mr. S. S. Kantak, Advocate General with Mr. P. Talaulikar, Addl. Govt. Advocate for the respondents. CORAM :- SMT. V.K. TAHILRAMANI & N.A. BRITTO, JJ. Date of reserving Judgment : 17.11.2009 Date of pronouncing Judgment : 30.11.2009 2 J U D G M E N T : (Per SMT. V.K. TAHILRAMANI, J.) 1. Heard learned Counsel for the respective parties. Rule, returnable forthwith. Mr. Talaulikar waives notice for the respondents. The matter is heard finally by consent. 2. The petitioner has challenged the transfer order dated 12th/13th January, 2009, whereby he came to be transferred from the Office of the Executive Engineer (Elect) Div. IX, Tivim, to the Office of the Sub-Divisional Engineer (Civil), Sub-Division III, Xeldem. 3. The petitioner was appointed as a Junior Engineer (Civil) by Order No.CEE/Estt-1-1-83(JE)(C)/1815 dated 19.9.1991, as per the recommendations of the Departmental Selection Committee. In pursuance of the said appointment, the petitioner was posted in the Office of the Executive Engineer (Elect.) Division – I, Panaji. The petitioner continued to work in the Office of the Executive Engineer (Elect.) Division – I, Panaji from 1991 till 1998. Thereafter, for the first time, the petitioner was transferred by transfer Order dated 23.9.1998 from the Office of Executive Engineer, Div. I, Panaji to Division XIII 3 at Kadamba. Thereafter, the petitioner was transferred by order dated 6.2.2001 from Kadamba to Elect. Div. IX at Tivim in Bardez Taluka. In the year 2002, by Order dated 31.10.2002, the petitioner was transferred in Div. VI, Mapusa where he was deployed by order dated 31.8.2001 from Div. IX Tivim. By transfer order dated 19.5.2005, the petitioner was transferred from Div. VI, Mapusa to the O/o Exe. Engineer, Tivim. Thereafter, the impugned transfer orders came to be passed. Order dated 12.1.09 states that the petitioner is transferred from O/o the Executive Engineer (Civil), Div. XV, Patto Plaza, Panaji to O/o. Sub-Divisional Engineer (Civil), Sub-Div-III, Xeldem. However, in the said order, there was an error in column No.3 in relation to the present place of working of the petitioner which was shown as O/o Exe. Engineer, Civil, Div.XV, Patto Plaza, Panaji, instead of O/o Exe. Engineer, Div.IX Tivim. The said mistake was corrected by issuing another Order dated 13.1.2009 in supersession of the earlier order correcting the said mistake in column No.3. 4. The transfer order has been mainly assailed on the ground of alleged malafides. Learned Counsel for the petitioner submitted that the impugned order has been issued in colourable exercise of power. 4 The case of the petitioner is that in February, 2007, the Government revised pay scales pertaining to Engineering posts in the Department and extended benefit thereof only to the Engineering posts on the electrical side and the benefit was not extended to Civil Engineers of Division XV of the Department. Due to this, the petitioner and some other identically situated Junior Engineers filed Writ Petition No.149/2007 before this Court. By order dated 2.4.2007, this Court granted Rule in the said matter and it is pending for final hearing. Thus, the petitioner's case is that on account of the aforementioned efforts of the petitioner in relation to the discriminatory manner in which the Civil Engineers were treated and the petitioner's refusal to abandon the writ petition, that the impugned order came to be passed against the petitioner in order to pressurise, victimise, intimidate the petitioner and to compel him to abandon his efforts in relation to the discrimination that the Civil Engineers of the Department have been subjected to. 5. According to the learned Counsel for the petitioner, though the order purports to have been made in public interest, the same has not been done in public interest and has been issued for malafide 5 reasons and for achieving oblique motives. As far as malafides are concerned, it is noticed that when the petition was filed in May, 2009, there was no allegation against any specific person/s. No person was named in the petition, nor was it alleged that the said person had the power to influence any decision in relation to the transfer of the petitioner. We find that there was conspicuous absence of any such statement in the writ petition in relation to the identity of the person who is against the petitioner. Even till the arguments were concluded on 17.11.2009, any such person was not made party to the petition. Moreover, the writ petition filed by the petitioner was filed in the year 2007 in which Rule has been issued on 2.4.2007, whereas the transfer order has been passed only on 12th/13th January, 2009. The learned Counsel for the petitioner failed to show any nexus between the writ petition filed in the year 2007 and the transfer order which came to be passed against him in the year 2009. 6. It is the petitioner's case that he has been victimised and he has been frequently transferred, however, we find that the petitioner has been appointed on 19.9.1991 and thereafter, for the first time he came to be transferred by transfer Order dated 23.9.1998, that too after almost 6 7 years. Thereafter, the petitioner was transferred in the year 2001. Prior to this transfer, the petitioner was transferred on 19.5.2005. Thus, it cannot be said that he has been victimised and he has been frequently transferred. Moreover, we have already observed that not only the petitioner came to be transferred, but along with him a large number of similarly situated Engineers have been transferred. None of these engineers have raised any grievance. 7. It is not as if it was only the petitioner who came to be transferred, but along with the petitioner, a large number of Junior Engineers came to be transferred. From the affidavit of respondent No.2, it is seen that in the year 2008, Government decided to make general transfers of Junior Engineers working in the Electricity Department and accordingly, by Order dated 25.7.2008, 31 Junior Engineer (Elect.) were transferred. Thereafter, by Order dated 19.9.2008, the Government again transferred 31 Junior Engineers (Elect) from the Electricity Department to various divisions/sub- divisions. As part of further general transfer, the Government decided to transfer Junior Engineers (Civil) working in the Electricity Department and accordingly by Order dated 12.1.2009, issued transfer 7 orders of 10 Junior Engineers (Civil), including the petitioner, transferring them to various divisions/sub-divisions. Out of 10 transfers, 5 transfers were to places beyond nearby Talukas. As these transfers were to places beyond nearby Talukas, as per transfer guidelines under O.M. Dated 16.3.1998, the prior approval of the concerned Minister was obtained before issuing these transfer orders. 8. As stated earlier, in the transfer order dated 12.1.2009, due to error present place of working in column 3, in relation to the petitioner, was shown as O/o the Executive Engineer (Civil) Div. XV, Patto Plaza, Panaji, the mistake was corrected by issuing another order dated 13.1.2009, in supersession of the earlier order, correcting the said mistake in column No.3, thereby showing it as working arrangement in the O/o. The Exe. Engineer (Elect) Div.IX, Tivim. 9. The petitioner had challenged the transfer order dated 12.1.2009 by filing Writ Petition No.55/09 before this Court. However, during the course of hearing, the petitioner sought leave of the Court to withdraw the said petition in order to enable him to make a representation to the concerned Authority, highlighting his difficulties 8 in connection with the transfer orders. Accordingly, the said petition came to be disposed off, granting aforesaid liberty. The petitioner joined the transferred place immediately, thereafter. The petitioner, thereafter, filed a representation dated 6.2.2009 before the Chief Electrical Engineer, requesting to transfer and/or repost him to any other post of Junior Engineer (Civil) in the Department situated in North Goa. The petitioner's representation was considered by the Government/concerned Minister and rejected on 13.4.2009. This was informed to the petitioner by Memorandum dated 17.4.2009. 10. The petitioner raised a grievance that only respondent No.2 the Chief Electrical Engineer could have issued the transfer order, whereas the transfer order has been issued by the Minister for Power, who had no authority or power to do so. Similar grievance is made in respect of the representation dated 6.2.2009 preferred by him, against his transfer order that the representation ought to have been decided by respondent No.2 i.e. the Chief Electrical Engineer and not the Minister for Power. In support of his contention, he has placed reliance on some OMs. However, it is seen that the said OMs have been superseded by OM dated 16.3.1998. As per OM dated 16.3.1998, transfer of Group 9 “C” employees will be limited within the Taluka of their present posting, whenever possible or to the nearby Taluka. The said OM further provides that transfer of Groups “C” and “D” employees will be done by the respective Heads of Departments and exceptions, if any, may be done with the approval of the Minister concerned. In view of OM dated 16.3.1998, as the petitioner's case fell under exception in Clause VIII of the OM, the petitioner's representation was forwarded to the concerned Minister for consideration. From the said OM it is seen that the Authority to take final decision in exceptional cases is the concerned Minister. Admittedly, the petitioner was not transferred in the Taluka or even a nearby Taluka, hence his case and that of similarly situated four persons were exceptions, hence approval of the concerned Minister i.e. the Minister for Power was very much necessary for transfer. Moreover, as the original transfer order was placed before the concerned Minister for approval, in such case, it would be necessary to place the petitioner's representation in relation to the transfer, before the concerned Minister. Hence, we do not find any merit in the contention of the petitioner that his transfer order could not have been issued by the Minister for Power, or that his representation could not have been decided by the Minister for Power. 10 11. Thus the learned Counsel for the petitioner tried to contend that it was only respondent No.2 the Chief Electrical Engineer who could have passed the orders of transfer and the Chief Electrical Engineer was the only Authority who could have considered his representation. However, on going through the relevant OM, it is seen that in cases like those of the petitioner, the transfer has to be done with the approval of the Minister concerned. Thus, the contention that the Minister did not have the power to transfer or consider the representation and it was only the Head of the Department i.e. respondent No.2 Chief Electrical Engineer who could have transferred the petitioner or considered his representation, is without substance. When power is delegated for better administration, one who delegates the power does not lose his power. Hence, it cannot be said that the Minister did not have power to issue the transfer order or to consider the representation. It may be stated that before us no contention was raised that the principles of natural justice were not followed and the only 2 grounds on which the transfer order is assailed before us are the ground of alleged malafides and that the Minister did not have the power to issue the transfer order. 11 12. As far as malafides are concerned, we have already observed that when the writ petition was filed, no person or authority was named who was against the petitioner and hence was instrumental in passing the order of transfer. Thereafter, the writ petition was amended on 6.8.2009 and allegations were made that the Minister for Power had a personal interest in getting the petitioner transferred. However, he was not added as a party even till conclusion of arguments. The very fact that he has been named belatedly i.e. only in August, 2009, shows that false allegations have been made belatedly by the petitioner by way of an afterthought. No explanation is forthcoming as to why in the first instance no allegations were made against him. Nor any reason whatsoever has been stated by the petitioner for the Minister to have a personal grudge against the petitioner or any personal interest in getting the petitioner transferred. Moreover, it is seen that the Minister who has issued the transfer order and considered the representation of the petitioner was not holding the said portfolio in 2007 when Writ Petition No. 149/2007 came to be filed by the petitioner in this Court. We have already observed that we find no nexus between filing of the said writ petition and the transfer order 12 which has been passed 2 years thereafter. 13. The learned Advocate General submitted that the allegations of malafides are too vague and they are not based on any concrete material. On the other hand, the allegations are only based on surmises and conjectures and as such, no case is made out for any interference. In support of his contention, he has placed reliance on the decision of the Supreme Court in the case of State of U.P. and ors., vs. Gobardhan Lal, (2004) 11 SCC 402 wherein it is observed that unless allegations are based on any concrete material, the petition ought not to be entertained. Thus, the learned Advocate General has submitted that no concrete material has been pointed out by the petitioner in relation to his allegation of malafides and in such case no interference is called for by this Court. So far as the case in hand is concerned, we find much merit in the submission made by the learned Advocate General. We find that the allegations of malafides made by the petitioner are not such as to inspire confidence of the Court. 14. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as 13 though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State. 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. The Supreme 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, it is shown to be vitiated by mala fides or is made in violation of any statutory provision. 15. 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. The 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 14 absence of any specific indication to the contra, in the law governing or conditions of service. 16. 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 would not 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. This position was highlighted by the Supreme Court in its Judgment in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574. 17. No Government servant or employee of a public undertaking has any legal right to be posted for ever 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 public administration. 15 Further, we find that the allegations of malafides have not been established and the transfer is not vitiated on that score or for that matter on any score. 18. The writ petition is, accordingly, dismissed. Rule is discharged. There shall be no order as to costs. SMT. V.K. TAHILRAMANI, J. N.A. BRITTO, J. ssm.