1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: Smt.Neena Tak Vs. Union of India & Ors. D.B.CIVIL WRIT PETITION NO.7449/2010 Date of Order :::: 9th August 2010. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR.JUSTICE C.M.TOTLA Mr.R.S.Saluja for the appellant. BY THE COURT: By way of this writ petition, the petitioner-applicant seeks to challenge the orders dated 27.04.2010 and 26.07.2010 whereby the Central Administrative Tribunal, Jodhpur Bench, Jodhpur ('the Tribunal') has dismissed respectively the original application (OA) No. 156/2009 and the review application No. 8/2010 filed by her essentially questioning the transfer order dated 10.07.2009. The relevant facts and background aspects of the matter are that the petitioner-applicant was appointed as Zoological Assistant on 26.11.1977; she was promoted on the post of Senior Zoological Assistant in the year 2001 and appears to have remained posted at Jodhpur. By the questioned order dated 10.07.2009, she was offered promotion to the post of Assistant Zoologist (Gazetted: Group 'B') at Headquarters Office, Zoological Survey of India, Kolkata. Aggrieved by her proposed transfer to Kolkata, the petitioner preferred the OA aforesaid with the submissions, inter alia, that the sanctioned 2 posts of Assistant Zoologist were lying vacant at Jodhpur; and that in the past, most of the staff/officers on promotion were retained in posting at Jodhpur only. The petitioner narrated the examples of five such persons including the respondent No.4. The petitioner submitted that there had been a dispute earlier in the year 2006 when she dared to raise voice in regard to the illegal action of the respondent No.4 in relation to the reimbursement of her medical bills and for that matter, there had been exchange of communications and correspondence, wherefor, according to the petitioner, the respondent No.4 persuaded the higher authorities to transfer her to a distant place like Kolkata. The petitioner submitted that the case of the respondent No.4 herself was the pertinent one when she remained posted at Jodhpur from the year 1978 and earned all the promotions at Jodhpur only. The petitioner contended that there was no administrative exigency for which she was to be posted at a distant place. It appears from the material placed on record that after considering the submissions made on behalf of the petitioner, the Tribunal, while entertaining the OA on 27.07.2009, proceeded to order stay over the operative portion of the impugned order dated 10.07.2009 insofar it related to the transfer. The respondents filed reply justifying their action in transferring the petitioner and alleged, inter alia, that she had been addressing communications with intemperate language; and that the medical reimbursement and transfer were the matters entirely different. It was also submitted that some officers were promoted to the next higher post and 3 accommodated with reference to the Flexible Complimentary Scheme ('FCS') on the basis of work assessment whereunder the officers promoted were not required to be transferred to any other place according to the norms laid down by the Ministry of Environment and Forest. It was submitted that the officers named by the petitioner got their promotions and posting through FCS. The petitioner filed a rejoinder maintaining that the transfer had been made mala fide and at the behest of respondent No.4; and there was no reason to transfer her to Kolkata despite two posts of Assistant Zoologist being available at Jodhpur itself. It was submitted that the discretion cannot be exercised in a discriminatory manner while retaining certain persons at the station and transferring the incumbent like herself. The Tribunal found no case for interference in the transfer order with the findings, inter alia, that the medical reimbursement dispute and transfer were two disjoint issues and that the petitioner had been writing letters/complaints over-zealously. It was also found that the applicant could be posted anywhere in India and the rules are followed on administrative exigency. The Tribunal further said,- “6. In so far as applicant's case is concerned, she is transferred on administrative exigency and utilization of her technical ability/skill at HQ, i.e. Kolkatta calls for no interference. There is definitely one post of Asstt Zoologist lying vacant at Jodhpur but that gives no right to her to be posted her at a particular place. She is promoted and posted at HQ, Kolkatta on administrative exigency, there appears to be no arbitrary action or malafide intent on official respondents' part. She cannot claim her new posting as a matter of right when her claims for her retention at Jodhpur stand vindicated. The applicant is not alleged to chose her own place of posting as narrated in apex court's dictum Govt. of A.P. vs. G.Venketratnam (2008) 9 SCC 345.” 4 The Tribunal, of course, took note of the fact that the officers were accommodated and posted at Jodhpur, courtesy FCS; and observed that the Department was unable to explain as to why the petitioner was not given the advantage under FCS. Hence, even while observing that the transfer of the petitioner was proper and justified, the Tribunal observed that the FCS was required to be minutely examined and action taken accordingly to ensure that no injustice is made out to the petitioner and similarly situated persons in the guise of FCS. The Tribunal observed,- “.......This complimentary scheme is evolved so as to shower mercy on some elite staff/officers. This flexible complimentary scheme needs to be minutely examined and action taken accordingly. The official respdts are directed to have fresh look on the merits & demerits of the flexible complimentary scheme and ensure that no injustice is made out to applicant and similarly situated persons in the guise of FCS. The officers including respdt 4 who have taken advantage under flexible complimentary scheme, are to be examined at utmost priority so that the discriminatory & dilatory tactics are not adopted to harass any employee/officer of concerned organization.” The Tribunal though proceeded to dismiss the OA finding no case for interference yet granted the petitioner further three months' time to join at Kolkata and directed the respondents to look into the FCS in the interregnum while saying,- “8. In the light of observations made above, no case is made out in applicant's favour. Thus, the present OA is hereby dismissed. But, in the circumstances stated above, we grant the applicant three months' time to be relieved and join at Calcutta. In the interngum the 1st and 2nd respondents shall look into the Flexibility Complimentary Scheme as any such scheme cannot have a personalized elasticity and be positively discriminatory within the same class within the next two months and pass consequential orders. OA is hereby dismissed without costs.” 5 The petitioner-applicant filed a review application before the Tribunal with the submissions that her case of mala fide on the part of respondent No.4 has not been considered. The Tribunal examined the review application by circulation and rejected the same while observing that much latitude had already been given to the petitioner. The Tribunal said,- “3. The applicant is given promotion vide order dated 10.7.2009. She wants to remain at Jodhpur but at the same time wants promotion at this place. The transfer is made on administrative exigency and the stay is operating for one year. She has filed review application, under the circumstances, stay of earlier transfer dated 10.7.2009 from Jodhpur to Kolkata should not be given. The matter has been widely discussed and the Division Bench of this Tribunal has taken pains to go into the details in O.A. 156/2009. After serious deliberations, the final order dated 27.4.2010 was passed. There is a scheme called Flexible Complimentary Scheme (FCS) to favour some officers/employees of the department. The reasonability and validity of FCS has also been questioned, the respondent – 1 & 2 are asked to look into the Flexible Complimentary Scheme as any such scheme cannot have a personalised elasticity and is apparently discriminatory. 4. No new grounds are narrated by the applicant in this application. All the grounds, legal aspects and documents are in O.A. 156/2009 were gone through at length, and order dated 27.4.2010 was passed. There is no justification to entertain the present review application, as being a transfer case; the Tribunal has a limited scope to intervene in such matters. Already much latitude has been given to the applicant, there exists no further factual ground in the matter to peep into. Therefore, this review application filed by the applicant should not be entertained at the outset. In our opinion, the present review application filed by the applicant be treated as closed and stands rejected. Consequently, the M.A. No.94/2010 also stands disposed of.” After taking us through the pleadings and the other material on record, the learned counsel for the petitioner vehemently argued that the present one is clearly a case of transfer having been made for extraneous reasons and 6 actuated by mala fide particularly when the petitioner raised a voice in relation to the medical reimbursement; and unnecessarily the allegations about objectionable language were levelled against her while she did not use any. The learned counsel further submitted that FCS has been used by the Department at its own whims and only in order to accommodate the favoured persons and else, there was no reason that the petitioner was not accommodated at Jodhpur. The learned counsel further submitted that the present one has been a case of hostile discrimination; and the suggestions as made by the respondents about keeping one post vacant at Jodhpur or abolishing one post Jodhpur or the requirements at Kolkata are all fanciful and only of an eyewash. It has also been indicated that one incumbent at Kolkata has also been given accommodation and transferred to her native place. Having given a thoughtful consideration to the submissions made and having scanned through the material placed on record, we are unable to find any reason to show interference in this writ petition. The petitioner essentially seeks to question her transfer order that has been made only consequent to her promotion to the post of Assistant Zoologist. It remains trite that a transfer order could be considered for interference by the Courts only on the ground of violation of statutory rule or on a clear case of mala fide. It has not been shown if the transfer as ordered in the present case suffers from violation of any statutory rule. In relation to mala fide, the petitioner has suggested the respondent No.4 to be unfavourably poised towards her and 7 has particularly referred to the unfriendly correspondence and the dispute regarding medical reimbursement. In our opinion, the Tribunal has rightly commented that the two issues, of medical reimbursement and transfer, are disjoint and distinct. It is also noticed that the so-called dispute regarding medical bills relates to the year 2006 and the referred correspondence was exchanged in the years 2007-2008. It is very difficult to co-relate such matters of past with the order dated 10.07.2009 that has been issued by the Department offering promotion to the petitioner on the recommendation of DPC. It is also too remote and rather baseless to suggest that the respondent No.4, the Officer-Incharge of Desert Regional Centre at Jodhpur, would have prevailed on the Department to transfer the petitioner to Kolkata. Mere suggestion of some dispute in the past with some officer is hardly making out a clear case of mala fide. So far accommodation of certain persons in FCS is concerned, the Tribunal has consciously taken note of the said scheme and directed the respondents to look into the same and to guard against discrimination. During the course of submissions, the learned counsel submitted that even after the order so passed by the Tribunal, the Department has attempted to justify its action under the FCS by its communication dated 25.06.2010 (Annex.16). In our opinion, in the matters of transfer and posting, the question of operation of a particular scheme of the Department cannot be stretched to the extent that every transfer could be questioned and examined on its touchstone. This apart, we find no reason 8 to consider taking up of an enquiry in this writ petition into the validity or otherwise of the said communication dated 25.06.2010 (Annex.16), which was not the subject matter of consideration before the Tribunal. We are clearly of the view that the questions as to how various posts are to be manned and in what manner are ultimately for the Department to consider. We are unable to agree that the transfer order of the petitioner could be challenged only with reference to such FCS. Moreover, it is noticed that the impugned transfer order was made as back as on 10.07.2009. The Tribunal has rightly commented while rejecting the review application that much latitude had already been shown to the petitioner. As noticed, an interim order was passed by the Tribunal that remained in operation until 27.04.2010. Then, even while rejecting the OA, the Tribunal granted further three months' time to the petitioner to join at Kolkata. The suggestion about some incumbent at Kolkata having been transferred to her native place is, again, hardly making out a case of mala fide qua the petitioner so as to warrant interference by this Court in the considered order passed by the Tribunal. Accordingly, and in view of what has been discussed above, the writ petition fails and is, therefore, dismissed. (C.M.TOTLA),J. (DINESH MAHESHWARI),J. MK