It is for the Competent Authority to decide the place of posting of an employee in exigency : Delhi High Court

IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: September 27 2021 W.P.(C) 14006 2019 CM Nos. 55947 2019 135 2020 4762 2020 SHRI SANJEEV KAPOOR NTPC LTD. AND ANR. Through: Mr. Om Prakash Gupta Adv. Petitioner Respondents Through: Mr. Sanjoy Ghose Sr. Adv. with Mr. Puneet Taneja Ms. Laxmi Kumari and Mr. Manmohan Singh Advs. for NTPC LTD. HON BLE MR. JUSTICE V. KAMESWAR RAO JUDGMENT V. KAMESWAR RAO J The present petition has been filed by the petitioner with the following prayers: “It is most respectfully prayed that in view of submissions made herein above this Hon ble Court may kindly be pleased to : i. Issue an appropriate writ order or direction to quash the transfer and release of Petitioner from NTPC Faridabad to RIO Chennai vide order No.319 2019 Date: 06.12.2019 Annexure PI). ii. Declare that Change of cadre of petitioner from Jr. Chemist to Jr. Officer EEMG) is illegal and malafide. iii. Cost of the present proceeding be awarded in the petitioner and against favour of respondents and W.P.(C) 14006 2019 iv. Pass such other and further orders directions as this Hon ble Court may deem fit and proper in the facts and circumstances of the present case.” The short issue that arises for consideration in the present petition is the transfer of the petitioner from the post of Jr. Chemist at NTPC Faridabad Haryana to the post of Jr. Officer Energy Efficiency Monitor Group at the Regional Inspection Office Chennai Tamil Nadu vide order no. 319 2019 dated December 6 2019 ‘impugned order’ hereinafter) is justified. The case of the petitioner is that the said transfer is actuated with malafides is vindictive and in violation of the transfer policy of the respondents. As per the averments made in the petition the case of the petitioner is that the transfer order which was received by the petitioner on December 11 2019 bypassed the existing company procedures such as the Whistle Blower Policy contrary to the recommendations of the Medical Board change of cadre i.e. from Jr. Chemist to Jr. Officer EEMG) which according to the petitioner does not exist at the RIO of the respondent company at Chennai. Before turning to the merits of the controversy I may first reproduce the factual background concerning the instant petition. a) The petitioner joined the respondent Company on July 15 1991 as an Assistant Chemistry Section at NTPC Anta Gas Power Project Rajasthan ‘NTPC Anta’ for short) through an open recruitment advertisement for vacancy at the Anta Gas Power Project. b) On promotion he was re designated as Jr. Chemist W.P.(C) 14006 2019 at NTPC Anta. The petitioner continued on that post from July 15 1991 to May 11 2012 after which he was transferred to the Commercial Office of the respondent No.1 at Jaipur. The petitioner was then again transferred to the Power Project in Faridabad Haryana w.e.f. December 31 2014 and has since been working there. As per the averments in the petition the petitioner was awarded for his long service of more than 25 years. Mr. Om Prakash Gupta learned counsel who appears for the petitioner stated that the impugned order is not based on any administrative requirement but has been effected for extraneous reasons. He stated that the respondents’ exercise of power in issuing transfer order is an example of malice in law. According to him the earlier two transfers of the petitioner were also motivated with malice. He stated that when the petitioner was posted at NTPC Anta the petitioner had served as General Secretary of Rashtriya Taap Vidyut Karamchari Sangathan ‘workers’ union’ for short) from the year 1999 onwards. Being an office bearer of the workers’ union he was involved in various issues concerning benefits of the employees and had initiated many litigations on behalf of the workers’ union. During his tenure he had also raised various issues concerning corruption and performance related payment issues before various fora. He stated that it was because of his functioning and taking part in the activities of the workers’ union petitioner’s activities were seen as problematic and it is for these reasons he was shifted from W.P.(C) 14006 2019 NTPC Anta to the Office at Jaipur through spot transfer i.e. the petitioner was issued the transfer and release order on the same date. The transfer to NTPC Faridabad was also in violation of the transfer policy relating to non executive employees. According to Mr. Gupta when the petitioner sought information through an RTI application regarding his transfer from NTPC Anta to NTPC Jaipur the reply received by him stated that the respondent had constituted a Medical Board upon the petitioner’s demand for accommodation of his ailing parents at Jaipur. The Medical Board gave its finding and stated that the parents of the petitioner required constant medical attention and it would be best if the petitioner were to stay with his parents at Jaipur. Mr. Gupta has stated that not only was this transfer motivated through malice but the respondent also went against the finding of its own Medical Board and further transferred the petitioner to NTPC Faridabad. He stated that the impugned order is also for the activities of the petitioner as member of the workers’ union and in spite of the vacancy and requirement of a Chemist in NTPC Faridabad he was again arbitrarily transferred to RIO Chennai on a post which does not belong to his cadre. In this regard he has placed reliance on the judgment in the case of Kavi Raj & Ors. v. State of Jammu and Kashmir & Ors.3 SCC 526 to state that in cases of inter cadre posting or transfer the same cannot be done unless the employee is transferred to a post for which he she was selected and it is the duty of the principal employer to ensure that there are statutory rules to govern such transfers. He has also relied on the judgments of V. W.P.(C) 14006 2019 Jagannadha Rao & Ors. v. State of A.P. & Ors.10 SCC 401 and a judgment of the Central Administrative Tribunal in the case of Sanjeet Sharma & Ors. v. Union of India & Ors. O.A. No. 060 00140 2017. Mr. Gupta stated that there is no EEMG department at RIO NTPC Chennai. He stated that the post to which he has been transferred i.e. Jr. Officerdoes not exist even in any official record of NTPC and the same is also not reflected on the website of NTPC and the Company website. He has made a reference to the reply by the Central Public Information Officer NTPC to contend that no such post exists at RIO NTPC Chennai. He stated not only the petitioner has been transferred but the cadre of the petitioner has also been changed by the respondents without consent. This action is in violation of Rules 2.1(i) 2.1 iv) 2.2 and 2.6 of the NTPC Transfer Policy for Workmen of the respondents and is aimed at injuring the career growth of the petitioner. As per the petitioner he was selected in the Chemistry Section within the workman cadre with prerequisite qualifications pertaining to the field of Chemistry and the petitioner wishes to advance his career in the field of Chemistry. Mr. Gupta stated that as per the recent advertisement taken out by the respondents for the post of Assistant Chemist it has been clearly mentioned that the said post requires experience on the post of Chemist. The advertisement also contains recruitment for other posts as well which are different from the post of Chemist which is contrary to the stand taken by the respondents in their pleadings by stating W.P.(C) 14006 2019 that the petitioner’s job is not specific. The petitioner has stated that there is clearly a scarcity of manpower in the Chemistry Department at NTPC Faridabad despite which he has been transferred to a non existing post at RIO NTPC Chennai. Mr. Gupta submits that the respondents have 16 RIOs however none of the existing RIOs have a post for a Jr. Officerof the respondent at Greater Noida. In this regard Mr. Gupta placed reliance on the judgment of the Madras High Court in the case of Dr. A. Jayachitra v. The Principal Secretary Member Secretary Sports Development Authority of Tamil Nadu W.P.No.12252 of 2020 decided on December 11 2020 in support of his submission on the aspect of administrative requirement. He has relied on the letter dated February 27 2016 numbered as 6320 O&M G Chem 4 2016 to state that there is shortage of executive manpower in his existing cadre. 10. Mr. Gupta would contend that the petitioner has been transferred three times in the last seven years which is clearly against the Transfer Policy. He stated that the petitioner has worked diligently and has discharged all duties assigned to him W.P.(C) 14006 2019 and has also made significant developments in the functioning of the NTPC plant at Faridabad. The impugned order stated that the transfer is based on multi tasking work to which Mr. Gupta has argued that the work assigned outside the cadre would have aspects for which the petitioner does not have the qualifications and that the impugned order seeks to effect a transfer to a different stream altogether. He makes a reference to Rule 2.6 of the Transfer Policy which stated “Workmen being promoted laterally appointed from the grade of workman to supervisor may be transferred within the Region”. In the case of the petitioner Mr. Gupta stated that there was no occasion for promotion to the executive supervisor level. The said transfer has been issued in violation of Articles 14 and 16 of the Constitution of India. 11. Mr. Gupta has contended that 178 workmen have already been transferred during the period 2017 19 due to the closure of the Badarpur Thermal Power Station Delhi in 2018 in such a scenario all the workmen were justifiably transferred on account of closure of plant and not on administrative grounds. Even in that case the management failed to answer the fact that many of the employees were transferred inter region and intra region to places such as Anta Jaipur Faridabad and the petitioner was the only employee who was from NTPC Anta. Additionally the petitioner has also been arbitrarily denied timely promotions whereas the juniors of the petitioner were promoted. It is the submission of Mr. Gupta that the petitioner has filed Writ Petitions being CWP 547 2015 and CWP 1246 2015 before the Jaipur Bench of the Rajasthan High Court wherein the issue W.P.(C) 14006 2019 regarding seniority vis à vis his juniors is pending adjudication. He also stated that the issue regarding misconduct of the petitioner as alleged by the respondents only depicts the ill will harboured by the management against the petitioner. 12. Mr. Gupta argued that the impugned order has been passed without procuring the pre requisite written consent from the Section Head who has himself been recently transferred from NTPC Tanda to NTPC Faridabad and another requirement of seeking approval of Head of Department Head of Business Unit and General Manager NTPC Faridabad who is the appointing authority of the petitioner. He stated that even the AGM and Managerof the Faridabad Administration of NTPC are unaware of the petitioner’s transfer. As per Mr. Gupta at the time of promotion from the workman grade to an executive grade the respondent as per their own Transfer Policy is supposed to give an option for a new place of posting. Upon joining the said posting if the concerned employee were to seek a transfer to any other place within three years of his her joining the case of the said employee would also be considered for transfer subject to reversion to pre promoted post grade w.e.f. the date of promotion i.e. placement within the E 1 grade. In this regard he has relied on one such promotion order dated July 6 2017 containing the aforementioned clause. He stated that the petitioner at the time of transfer was not given any option for posting transfer. At present the petitioner is said to be handling all the Chemistry related activities at NTPC Faridabad as there is no other W.P.(C) 14006 2019 workman in the Chemistry division and NTPC Faridabad too is in requirement of personnel in the Chemistry division. Mr. Gupta stated that such a transfer that too when NTPC Faridabad requires workmen in the Chemistry division i.e. detrimental to operations of plant only goes to show the arbitrariness of the transfer. 14. Mr. Gupta argued that the bone of contention of the respondents against the petitioner is rooted in the fact that the petitioner has acted as a whistle blower and has written a letter highlighting the irregularities and excess payments relating to profits. He stated that the petitioner is entitled for protection under the Whistle Blower Policy. The petitioner has made representations dated December 12 2019 and December 14 2019 to the respondents which have gone unheard. As per the averments in the petition the Board of Directors of the respondent Company are only empowered to re designate an employee. In the case of the petitioner an approval was required to be taken from the Board of Directors and this procedure has been bypassed by the respondents just out of personal vendetta. 16. Mr. Sanjoy Ghose learned Senior Counsel appeared along with Mr. Puneet Taneja on behalf of the respondents and stated that an appeal was preferred against the order dated January 06 2020 which was disposed of with a request that this Court either hear the matter finally or take up the CM 4762 2020 filed on behalf of the respondents for vacation of stay. It was thereafter that the respondents offered the petitioner various W.P.(C) 14006 2019 options for posting nearer to Jaipur which were all turned down by the petitioner. 17. Mr. Ghose has taken a stand that no cause of action has arisen within the jurisdiction of this Court as the petitioner is himself residing and working in the State of Haryana and has been transferred to the State of Tamil Nadu which has no nexus with the jurisdiction of this Court. He has also argued that the petitioner being a workman under the Industrial Disputes Act 1947 should exhaust alternative remedies available to him. 18. With regard to the representation dated December 12 2020 the respondents had through a letter dated January 28 2020 disposed of the same by giving detailed reasons. The argument that the representation of the petitioner was not adequately dealt with or heard ought not to be accepted. Mr. Ghose has argued that apart from bald averments and unsubstantiated allegations the petitioner has not been able to show in any manner the violation of any policy through the impugned order. It is the case put forth by Mr. Ghose that the power sector has undergone a sea of change in India. The respondents are facing immense challenges and have to cope up with the changing markets as well as the changing means of the organisation. The macro level restructuring has resulted in cost cutting and optimum utilisation of manpower. It is stated that in the period between the years 2017 19 the respondents have transferred approximately 178 employees from the category of workman 115 out of these transfers have been incidents of inter W.P.(C) 14006 2019 region transfer whereas 63 out of these 178 workmen have been transferred intra regionally. Subsequently a total of 4 252 employees in the executive category have also been transferred during the same period out of these transfers 1 623 have been intra region transfers and 2 629 have been inter region transfers. 20. Mr. Ghose has pointed to the terms and conditions of the petitioner’s appointment letter dated June 20 1991 and the respondents’ Service Rules to state that the petitioner’s employment is of a transferable nature. As per clause 9 of the said appointment letter it has been stated that although the initial posting of the petitioner would be at Anta however the discretion would lie with the respondents to change the place of service to any unit or office belonging to the respondents or any other government run industrial establishment in India or abroad. He has also referred to clause 8 of the appointment letter to state that the petitioner is bound by the extant Service Rules Policies etc. of the respondent Company. He has stated that at the time of appointment the qualification of the petitioner was B.Sc. with Chemistry and any other additional qualification have been acquired thereafter. Additionally Mr. Ghose pointed to the Memorandum of Settlement dated October 26 2018between the respondents and their workmen workers’ union where in clauses 12.1 and 13.2 it is mentioned that the management and the unions have agreed to improve utilisation of human resources as well as material resources for optimum performance of the respondent Company and it is the prerogative of the respondent Company to reorganize and redeploy its W.P.(C) 14006 2019 employees to meet its macro restructuring goals. Mr. Ghose argued that neither the consent of the Head of Project is required nor the consent of the employee is required to be obtained before effecting transfers in terms of the NTPC Service Rules MoS appointment letter and applicable policies. On the issue regarding the charge sheet dated October 28 2014 which culminated in the establishment of guilt of the petitioner Mr. Ghose stated still the petitioner was shown leniency and was issued a warning letter and no serious punishment was awarded. According to him there is no relation between the impugned transfer order which was issued in 2019 and the chargesheet which was issued in 2014 followed by a warning letter in 2016. He has also stated that the defamation proceedings pending before District and Sessions Court at Jaipur have no bearing on the present issue. He stated that the other writ petitions pending before the High Court of Rajasthan pertain to the issue of promotion and are also not connected to the matter at hand. As per Mr. Ghose the petitioner has deliberately attempted to reagitate the already settled issues in order to put up a smokescreen and divert the attention of this Court from the real issue at hand. 22. Mr. Ghose contended that there can be no argument regarding the promotion of the petitioner. The petitioner has been promoted on January 01 1996 January 01 2000 July 01 2004 and January 01 2009. And the last promotion of the petitioner was as recent as April 01 2019. It is the case of the respondents and so contended by Mr. Ghose that the present W.P.(C) 14006 2019 transfer is only the third transfer in the 30 years’ service period of the petitioner. 23. Mr. Ghose has responded to the various grounds raised by the petitioner and has stated that as per rule 2.6 of the NTPC Transfer Policy which prohibits the transfer of the workmen on promotion but in the case in hand it is only transfer and not promotion hence reliance cannot be placed by the petitioner on this rule. He stated that there is no breach of NTPC Equal Opportunity Policy and NTPC Human Rights Policy. In terms of clause 8.7 of the NTPC Travelling Allowance Rules bachelor employees are usually provided with bachelor accommodation and not provided with a Transfer Grant. Mr. Ghose has taken a stand that there is no violation of Delegation of Powers 2018 Section IV Delegation of Powers Applicable to Human Resources Administrative and Miscellaneous Powers in Regions Projects Generating Stations and Corporate Centre) in terms of clause 5(iii) 14006 2019 transfer has been effected to meet the demands of the respondents Company. According to him for the reasons mentioned above it cannot be stated that the petitioner is being victimised or that the impugned order is motivated with malafides. 24. Mr. Ghose has placed reliance on the judgments of the Supreme Court in the following cases: i. Rajendra Roy v. Union of India & Anr. 1 SCC 148 ii. National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan & Anr. 8 SCC 574 iii. State Bank of India v. Anjan Sanyal & Ors. 5 iv. State of U.P. & Ors. v. Gobardhan Lal 11 v. Union of India & Ors. v. S.L. Abbas AIR 1993 SC SCC 508 SCC 402 and These judgments primarily relate to the law that transfer is an incident of service and a part of service conditions of an employee and it is for the appropriate authority to decide who should be transferred and where. The Courts although being appellate authorities against such orders should not ordinarily interfere with routine transfer orders in exercise of powers under Article 226 of the Constitution unless there is a finding of malafide or is there is a prohibition on such transfer under the service rules and or if the issuing authority was not competent to pass such orders. In a case where the transfer order has been shown to be a result of malafide exercise of power in such a case the administrative guidelines for regulating transfers or containing Transfer Policies may at best afford the opportunity to the W.P.(C) 14006 2019 transferred employee to approach the higher authorities however the employer cannot be deprived of the power to transfer an employee in the interest of the establishment so long as the official status and career prospects are not adversely impacted. In this regard Mr. Ghose has relied on State of State of U.P. & Ors. v. Gobardhan Lal & Ors. vs. State of Bihar & Ors. 1991 Supp.SCC 659 State of M.P. & Anr. v. S.S. Kourav & Ors. 3 SCC 270 and Rajendra Singh & Ors. v. State of Uttar Pradesh & Ors. 15 SCC 178 to state that the public interest and administrative exigencies outweigh the personal interests of any employee. The Courts ought not to interfere in cases challenging transfer orders just because it causes personal difficulty such as dislocation of family of the transferee if such transfers are common in the area of service must be taken to be free from any malafides as per Rajendra Roy14006 2019 provided all documents pertaining to the impugned orders including the administrative reasons. As per Mr. Gupta the health condition of the petitioner’s parents has since deteriorated and they require much more care and such a transfer at this juncture would only be to the detriment of the petitioner’s family. He argued that the interim order dated January 6 2020 has been passed after hearing the parties on merits and the Court has taken the view after considering the sum total of facts and circumstances in the present petition. It is for these reasons he prays that the interim order be made absolute. Having heard the learned counsel for the parties the only issue which arises for consideration is whether the transfer of the petitioner from NTPC Faridabad to RIO Chennai is justified. The challenge of the petitioner to the transfer order is primarily for the following reasons: The impugned transfer order is arbitrary in changing the petitioner’s cadre without willingness inasmuch as he is appointed in the Chemist Cadre and could not have been posted outside the Chemist Cadre. The transfer order is in violation of Rule 2.6 of the Transfer Policy which states that workmen being promoted laterally appointed from the grade of workman to supervisor may be transferred within the Region. The impugned order is in violation of principles of Equal Opportunity Policy and Human W.P.(C) 14006 2019 Rights Policy of NTPC ignoring conditions of his physically challenged dependent parents who are living in Jaipur. The impugned order is in violation of NTPC’s delegation of power inasmuch as a worker can be transferred within the region by Executive There is no vacancy of his cadre in RIO Before issuing the impugned order there is no consent of the Second Head and the approval of the Head of the Department i.e. General Manager The petitioner is handling all the Chemistry related activities as there is no other workman in Chemistry Division at Faridabad Plant there exists a requirement of Chemistry personnel at NTPC Faridabad. vii) The petitioner has vide his email dated October 17 2019 highlighted the irregularities and excess payment of Profit Related Payment and acted as a whistle blower. Thus the petitioner has been issued impugned transfer order against the Transfer Policy Promotion Policy Whistle Blower Policy with malafide intentions. At the outset I must state that during the hearing on August 25 2021 I had asked Mr. Ghose whether the NTPC is ready to consider the posting of the petitioner to a place nearer to W.P.(C) 14006 2019 Jaipur where the parents of the petitioner are residing alone. At the request of Mr. Ghose to take instructions I re notified the matter on September 01 2021. On September 01 2021 Mr. Ghose had taken instructions from the respondents who are agreeable to post the petitioner any of the following places namely to Trichy Mumbai Bangalore Ranipet Bhopal and Haridwar. I had also noted Bhopal and Haridwar are nearer to Jaipur as compared to Chennai. Mr. Gupta sought a day’s time to take instructions from the petitioner for choosing any of the places. On September 02 2021 Mr. Gupta conveyed to the Court that the petitioner is not agreeable to the options given including for being posted at Bhopal or Haridwar. Accordingly I proceeded to hear the learned counsel for the parties on the merits of the challenge. The petitioner was appointed in the NTPC in terms of appointment letter dated June 20 1991 which contains a stipulation that he is initially deployed at Anta Gas Power Project but he will be bound to serve anywhere in India or abroad in any office project unit or any industrial institute under the administrative control of Government of India as per the decision of the management. The aforesaid stipulation is wide enough to include not only the project but also regional office or any other institute not only of NTPC but even those which are under the administrative control of Government of India. Concedingly the petitioner was appointed on the post of Assistant Grade IV which according to the petitioner was in the workman category. It follows that an employee appointed in W.P.(C) 14006 2019 workman category can also to be posted anywhere in India abroad. The case of the respondents in the counter affidavit is that there is a sea change in the demand of electricity inasmuch as the demand is lesser than electricity produced by the power companies. Moreover companies like NTPC are now moving towards solar and other forms of renewable energy. The roadmap has been released by the Government of India to achieve 175 GW capacity in renewable energy by 2022 which includes 100 GW of solar power and 60 GW of wind power. The Plant Load Factor in the thermal segment has edged down drastically not only low Plant Load Factor there is two shift operations of coal based plants and peaking operating gas stations will be the future mode of operation with the changing needs of the organisation cost cutting and optimum utilisation of manpower and their skill sets have become quite significant. Pursuant thereto NTPC has over the last two years been in the process of a macro level restructuring across India to achieve such ambitious targets. The case of NTPC is also that the petitioner is not the only employee who has been transferred. The statistics given by NTPC suggest that in the last two years itself approximately 178 employees from the workman category out of which 115 such workmen have been transferred outside the region while 63 workmen have been transferred intra regionally. That apart as part of the macro level restructuring NTPC transferred approximately 4 252 employees from executive category which includes 1 623 intra region transfers and 2 629 inter region transfers. W.P.(C) 14006 2019 Having said so I find that the impugned order itself depicts that the petitioner while working as Junior Chemist Grade III W9 has been transferred as Junior Officer 14006 2019 such clause of the NTPC Transfer Policy need to be posted within the region. In fact the terms of appointment coupled with the Clause 8 of the NTPC Service Rules which stipulates liability of an employee to serve any part of the country or abroad is a sufficient indication that the petitioner can be transferred to Chennai also. It is a conceded position that the petitioner was initially appointed at a project site at Anta and thereafter transferred to NTPC Jaipur Commercial Office and from there to Faridabad. At least nothing has been brought to my notice that there is any challenge laid by the petitioner to such transfers in any Court of law. The present transfer is a third transfer in a period of around 30 years. The plea of Mr. Gupta that the impugned order has not been issued by the Competent Authority i.e. General Manager Faridabad is also not appealing as the transfer in question of the petitioner is an inter regional transfer. Surely the General Manager Faridabad cannot transfer a person beyond his territorial It is the case of the NTPC that General Manageris competent to make inter region transfer. I find that the impugned order has been issued under the signatures of Managerwith the approval of the Competent Authority. The transfer order cannot be faulted on that ground. 40. The plea of Mr. Gupta that the impugned order has been issued without the consent of the Head of the Project. I am afraid such an argument cannot be accepted. The Competent Authority W.P.(C) 14006 2019 being General Managerthe Head of the Department cannot have a say on such a decision taken by General Managerfor transfer. Moreover it is not the case of Head of the Project that the transfer order of the petitioner need to be recalled. The plea of Mr. Gupta that the impugned order has resulted in change of job function conditions of service. I am afraid such a submission is unmerited more so in view of the terms of appointment clause 8 of the NTPC Rules and also MoS stipulating that the services of an employee are transferable to any part of the country abroad. That apart Mr. Ghose during the course of his submission has stated that no service conditions including the promotion avenues pay of the petitioner seniority have been effected because of the transfer to Chennai. The submission of Mr. Gupta that there is no vacancy for Junior Officer in RIO Chennai is also unmerited. Surely it is not for the employee to state that there is no vacancy or that no work exists at the place where he is being transferred. It is for the Competent Authority to decide the place of posting of an employee in exigency. The plea that there is no other person available to look after the work as being performed by him in Faridabad cannot be the perspective of the petitioner. In fact the respondent NTPC has taken stand that the department is under the supervision of the Manager who is in a position in terms of the administrative assessment of the Management to effectively discharge all functions with the aid of out sourced manpower. If that be so surely neither the petitioner nor this Court can sit over the decision of the W.P.(C) 14006 2019 authorities in that regard. The plea of the petitioner that he has made a complaint dated October 17 2019 highlighting the alleged excess payment and irregularities with regard to PRP and as such he has acted as a whistle blower is also unmerited. I have seen the complaint dated October 17 2019 of the petitioner. The plea in that regard of the petitioner is that the grant of PRP to Executive is discriminatory as the profits are not shared among all the employees. Moreover it is the case of NTPC that the said representation has no connection with the transfer of the petitioner to Chennai. In fact it is matter of record that the non executives have also filed a petition in this Court for grant of similar benefit to them. I also agree with the plea of Mr. Ghose that the petitioner’s is not a solitary case of transfer in NTPC. The statistics already given above show that the transfers are in conformity with the policy decision taken by NTPC for optimum utilisation of manpower. The reliance placed by Mr. Gupta on the judgment of the Supreme Court in the case of Kavi Raj & Ors.in support of his submission that an employee cannot be transferred outside the cadre is not applicable to the facts of this case. I find the initial appointment of the petitioner was as an Assistant Grade IV while working in NTPC Anta. The petitioner was transferred to NTPC Jaipur Commercial Office and while in Faridabad he was working in Chemistry Department all three designations of the petitioner are not similar. The petitioner has not challenged the said transfers. I may state here if an employee is transferred outside the cadre effecting his seniority promotion W.P.(C) 14006 2019 pay etc. the same can be interfered with by the Court. It is not such a case here moreover Mr. Ghose has stated neither the pay seniority promotion of the petitioner shall be effected on his transfer to Chennai. Hence the said judgment is distinguishable. Similarly insofar as the judgment of the Madras High Court in the case of Dr. A. Jayachitrais concerned the Court on perusing files of the respondent found that there was no administrative requirement or exigency for transferring the employee to the transferred place. Suffice to state the judgment of Madras High Court was peculiar to the facts of that case. Insofar as the judgment relied upon by Mr. Gupta in the case of V. Jagannadha Rao & Ors.wherein it was held that a transfer is an incident of service and that a government servant is liable to the transferred to a similar post in the same cadre. The judgment has no applicability in view of my conclusion in paragraph 44 above. The judgment of the Central Administrative Tribunal Chandigarh in the case of Sanjeet Sharma & Ors.relied upon by Mr. Gupta is concerned the case of inter cadre transfer was held to be bad being in violation of the judgments of the Supreme Court including Kavi Raj & Ors. and V. Jagannadha Rao & Ors.wherein the Supreme Court has in para 4 & 6 has held as under: W.P.(C) 14006 2019 “4. .The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore we cannot go into the expediency of posting an officer at a particular place. 6. …..This Court cannot go into that question of relative hardship. It would be for the administration to consider the facts of a given case and mitigate the real interest of good and efficient administration. If there is any such hardship it would be open to the respondent to make a representation to the Government and it is for the Government to consider and take appropriate decision in that behalf.” xxx In view of my above discussion I do not see any reason to interfere with the impugned transfer order dated December 6 2019 the writ petition is dismissed. No costs. CM Nos. 55947 2019 135 2020 & 4762 2020 The prayer in these applications pertain to interim stay since I have finally decided the petition these applications are dismissed as infructuous. SEPTEMBER 27 2021 jg aky V. KAMESWAR RAO J W.P.(C) 14006 2019 

Summary: As much as inconvenient a transfer could be, the terms of the transfer can only be validated by competent authorities and if they find it to be just, then it requires no interference of the court. This was held in the judgment passed by a single judge bench comprising HON’BLE MR. JUSTICE V. KAMESWAR RAO, in the matter SHRI SANJEEV KAPOOR v. NTPC LTD. AND ANR [W.P.(C) 14006/2019, CM Nos. 55947/2019, 135/2020, 4762/2020], dealt with an issue where the petitioner filed a petition challenging the transfer of the petitioner from the post of Jr. Chemist at NTPC, Faridabad, Haryana to the post of Jr. Officer, Energy Efficiency Monitor Group (‘at the Regional Inspection Office, Chennai, Tamil Nadu as vindictive and in violation of the transfer policy of the respondents. The transfer order which was received by the petitioner on December 11, 2019 bypassed the existing company procedures such as the Whistle Blower Policy; contrary to the recommendations of the Medical Board, change of cadre, i.e., from Jr. Chemist to Jr. Officer (EEMG) which according to the petitioner does not exist at the RIO of the respondent company at Chennai. The petitioner joined the respondent Company on July 15, 1991 as an Assistant (DM Plant) Chemistry Section at NTPC, Anta Gas Power Project, Rajasthan through an open recruitment advertisement for vacancy at the Anta Gas Power Project. On promotion he was re-designated as Jr. Chemist. Counsel who appeared for the petitioner stated that the impugned order is not based on any administrative requirement but has been effected for extraneous reasons. He stated that the respondents’ exercise of power in issuing transfer order is an example of malice in law. According to him the earlier two transfers of the petitioner were also motivated with malice. He stated that when the petitioner was posted at NTPC, Anta, the petitioner had served as General Secretary of Rashtriya Taap Vidyut Karamchari Sangathan (‘workers’ union’) from the year 1999 onwards. Being an office bearer of the workers’ union, he was involved in various issues concerning benefits of the employees and had initiated many litigations on behalf of the workers’ union. During his tenure he had also raised various issues concerning corruption and performance related payment issues before various fora. He stated that it was because of his functioning and taking part in the activities of the workers’ union, petitioner’s activities were seen as problematic and it is for these reasons, he was shifted to the new post. Counsel for the respondent stated that that the respondents offered the petitioner various options for posting nearer to Jaipur which were all turned down by the petitioner. Mr. Ghose has taken a stand that no cause of action has arisen within the jurisdiction of this Court, as the petitioner is himself residing and working in the State of Haryana and has been transferred to the State of Tamil Nadu which has no nexus with the jurisdiction of this Court. He has also argued that the petitioner being a workman under the Industrial Disputes Act, 1947 should exhaust alternative remedies available to him. After hearing both the parties The Hon’ble Delhi High Court dismissed the petition and held that it is not for the employee to state that there is no vacancy or that no work exists at the place where he is being transferred. Click here to view judgement Judgement reviewed by – Vaishnavi Raman