M.S Sullar, Member:— The epitome of the facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant Original Application (OA), and emanating from the record, is that, applicant, Anil Kumar Sharma has been working as Manager (Group-B Non-Gazetted), since January, 2013, at Military Farm, Ambala. He was transferred from Military Farm, Ambala to Military Farm Kanpur, on the recommendations of Director, Military Farm, HQ, Central Command vide impugned order dated 25.11.2016 (Annexure A-1). He filed representation dated 17.12.2016 against his impugned transfer order, which was pending. Meanwhile, he filed O.A No. 060/00010/2017 to challenge the same impugned transfer order. The said O.A was disposed of, with a direction to respondents to decide his representation dated 17.12.2016, vide order dated 5.1.2017 by a coordinate Bench of this Tribunal.
2. As a consequence thereof, the representation filed by the applicant was rejected vide impugned speaking order dated 11.1.2017 (Annexure A-2) by the Competent Authority.
3. Aggrieved thereby, the applicant has again preferred the instant O.A, challenging the same impugned transfer order (Annexure A-1) and the order of rejection of his representation dated 11.1.2017 (Annexure A-2), by invoking provisions of Section 19 of the Administrative Tribunals Act, 1985.
4. The case set up by the applicant, in brief, insofar as, relevant is that, although as per transfer policy dated 2.6.2008, the tenure posting of an employee at one station is from 2 to 3 years, but it contains provision of extension in tenure posting upto 5 years. It was alleged that the Competent Authority has not considered the issue raised by him in his representation, with regard to his ailing wife, prospectus of marriage and education of his son at Ambala. Applicant is slated to retire in the month of October, 2020, on attaining the age of superannuation.
5. Leveling a variety of allegations, and narrating the sequence of events in detail, in all, the applicant claimed that impugned transfer order (Annexure A-1) has been passed in clear violation of transfer policy and by ignoring his pointed personal problems. On the strength of aforesaid grounds, the applicant has sought to quash the impugned transfer order (Annexure A-1) and order of rejection of his representation (Annexure A-2) in the manner indicated hereinabove.
6. Having heard the learned counsel for applicant, having gone through the record with his valuable help and after considering the entire matter, we are of the firm view that there is no merit, and instant O.A deserves to be dismissed for the reasons mentioned herein below.
7. What cannot possibly be disputed here is that the applicant has been working on the present post, since January, 2013, at Ambala i.e more than 4 years, whereas normal tenure of an employee at military farm is 3 years. He was transferred from military farm Ambala to military farm Kanpur, on the recommendations of Director, Military Farm, HQ, Central Command, on administrative ground and in public interest vide impugned order (Annexure A-1). All the issues raised by the applicant, in his representation dated 17.12.2016 (Annexure A-3) vis-a-vis transfer policy, were duly considered and negated vide impugned order dated 11.1.2017 (Annexure A-2) by the Competent Authority, which in substance is as under:
“1. WHEREAS Shri Anil Kumar Sharma (8061135) Manager s/o late Shri Ram Chander, who is Group ‘B’ Non Gazetted Officer of Military Farm Ambala was posted to Military Farm Kanpur vide OIC MF Records letter No. 306.Manager/A-4 dated 25 Nov 16 and the move was due to be completed by 05 Dec 16 on exigency of service at Military Farm Kanpur as OOC Kanpur was due to retire on 31 Dec 16. The posting order was issued in the public interest.
2. AND WHEREAS instead of moving on posting to Military Farm Kanpur, the said Shri Anil Kumar Sharma (8061135) Manager preferred to plead at Hon'ble CAT Chandigarh and filed O.A No. 060/00010/2017 against the OIC MF Records posting order quoting the Departmental SOP issued vide this Directorate letter No. 85013.P&T/Policy/Q/MF-1 dated 02 Jun 2008 which is applicable for Group ‘C’ and erstwhile Group ‘D’ staff but not applicable to Group ‘A’ and ‘B’ Officers. He has been posted after completion of tenure at Military Farm Ambala as per extent rules, on the subject.
3. AND WHEREAS Shri Anil Kumar Sharma (8061135) has been posted at Military Farm Ambala since 04 Dec. 2012 till date i.e more than 4 years his move was considered for Military Farm Kanpur as OIC for smooth functioning at Military Farm Kanpur as the then OIC was to retire on 31 Dec 16. Presently, there is no OIC at Military Farm Kanpur and day to day official work is suffering due to non availability of OIC.
4. AND WHREAS the OIC Military Farm Ambala and DMF HQ Western Command recommended for retention of Shri Anil Kumar Sharma (8061135) to Competent Authority. The Competent Authority after careful consideration rejected the request vide this Directorate latter No. 85710.MF-1 dated 28 Dec 16 and directed Dir MF HQ Western command to take further necessary action. The rejection order was communicated by Dir MF HQ Western Command to OIC Military Farm Ambala and also directed to relieve the applicant vide signal No. Q 3860 dated 29 Dec 16 to take over the charge as OIC Military Farm Kanpur. The Hon'ble Supreme Court has directed in the case of Union of India v. S.K Abbas of 1993, Section 357 that transfer is a matter for appropriate authority to decide and wheels of administration should be allowed to run smooth. The courts or tribunal are not expected to interdict the working of the administrative system in the matter of the officers to proper places.
5. NOW THEREFORE in compliance of Hon'ble CAT Chandigarh order dated 05 Jan 2017 in O.A No. 060/00010/2017, it is stated that the posting order issued by OIC MF Records vide letter No. 306.Manager/A-4 dated 25 Nov 16 will hold good as Managers are Group ‘B’ Non Gazetted Officer (not Group C as mentioned by Applicant) and exigency of service exists at Military Farm Kanpur.
8. Possibly no one can dispute with regard to the observations of Hon'ble Apex Court in Case of Home Secretary, U.T Chandigarh v. Darshjot Singh Grewal, JT 993 (4) SC 387, Rajendra Roy v. Union of India, 1993 (1) SLR 126 SC, Dina Nath Arora v. State of Punjab, 1987 (2) SLR 19 and Union of India v. H. N Kirtania, 1989 (4) SLR 10 SC relied on behalf of the applicant that all the relevant factors and transfer policy should be taken into consideration at the time of transfer of an employee by the Competent Authority, but same would not come to the rescue of the applicant in the present controversy.
9. As indicated herein above, all the relevant personal grounds and factors relatable to the transfer policy, have already been duly considered vis-a-vis by the Competent Authority in impugned order dated 11.1.2017 (Annexure A-2). Above all the pleas of personal problem projected by the applicant are common in nature, which otherwise remained unsubstantiated.
10. Meaning thereby, the applicant was transferred on administrative ground and in public interest after more than 4 years of his present posting. He has miserably failed to prove as to how and in what manner impugned transfer order is illegal. Moreover, he has failed to specifically plead and substantiate the specific allegations, of malafide against any individual. It is now well settled principle of law that malafide is very easy to allege, but difficult to prove as the onus to prove mala fide lies on the person who alleges it.
11. The Hon'ble Apex Court in the case State of Punjab v. Gurdial Singh (1980) 2 SCC 471 has ruled as under:—
“9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. “I repeat….. That all power is a trust-that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist.” Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.”
12. The same view was reiterated by this Tribunal in T.M Sampath v. Union of India, [O.A No. 188/2012 decided on 30.08.2013] and Naresh Wadhwa v. Union of India [O.A No. 810/2013 decided on 29.10.2013].
13. As indicated herein above, the Competent Authority has transferred the applicant from Ambala to Kanpur, on administrative ground and in public interest. Indeed such transfer order cannot and should not be interfered with by the Courts. A Government servant holding a transferable post is liable to be transferred and he has no right to remain posted at one place or the other. Such transfer orders issued by the Competent Authority do not violate any legal right. If the Courts continue to interfere with day-do-day transfer orders issued by Government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to the public interest. This matter is no more res integra and is now well settled.
14. An identical question came to be decided by Hon'ble Supreme Court in case Shilpi Bose v. State of Bihar 1991 Supp (2) SCC 659 : AIR 1991 SC 532. Having considered the scope of judicial interference in transfer matter, the Apex Court has observed as under:—
“4. In our opinion, the Courts should not interfere with a transfer order which is 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 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.”
15. Like-wise, it was also held by Hon'ble Supreme Court in case Union of India v. S.L Abbas (1993) 4 SCC 357 that 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.
16. Sequelly, a three-Judge Bench of Hon'ble Supreme Court in cases Major General J.K Bansal v. Union of India (2005) 7 SCC 227 and in another case State of M.P v. S.S Kourav (1995) 3 SCC 270 has observed that the Courts or Tribunals are not appellate forums to decide on transfer 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 case of S.C Saxena v. U.O.I (2006) 9 SCC 583, it was held by Hon'ble Apex Court that a Government servant cannot disobey a transfer order by not reporting back at the place of posting and then go to a court to ventilate his grievances. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.
17. Again the same view was reiterated by Hon'ble Supreme Court State of U.P v. Gobardhan Lal (2004) 11 SCC 402 wherein it was ruled as under:—
“7. 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. 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 absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power off 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 grievances sought to be made. Even administrative guidelines for regulating transfer or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have thee consequence of depriving or denying the Competent Authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This 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, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as 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 and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.”
18. Thus, it is held that the applicant was transferred from Ambala to Kanpur after more than 4 years, on administrative grounds and in public interest. Such transfer order cannot be interfered with, on the basis of wishful thinking of the applicant and on speculative grounds, particularly when the Competent Authority has already considered his projected personal problems.
19. Therefore, once it is proved on record that the competent authority has transferred the applicant for exigency of administration and in public interest, on recommendation of Director, Military Farm, HQ Central Command, in that eventuality, such transfer is not open to judicial review. Thus the contrary arguments of the learned counsel for the applicant, stricto sensu deserves to be and are hereby repelled. The ratio of law laid down in the indicated judgments is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand.
20. No other point, worth consideration, has either been urged or pressed by the learned counsel for the applicant.
21. In the light of the aforesaid reasons, as there is no merit, the instant O.A is hereby dismissed with no order to the costs.