M.S. SULLAR, MEMBER (J)
1. The challenge in this Original Application (O.A.), filed by applicant Ms. Manju Dehal, is to the impugned order dated 30.01.2017 (Annexure A-1), whereby she was transferred from F.F. Nangal to Ropar H.O., in the interest of service, with immediate effect, and on administrative grounds, by the competent authority.
2. The crux of the facts, which needs a necessary mention, for deciding the core controversy, involved in the instant O.A., and emanated from the record, is that the applicant was posted as Postal Assistant at Nangal, in the year 2004. It was alleged that she is running on the last leg of her posting and has only 14 months of service. She is also undergoing treatment for cancer, in Fortis Hospital, Mohali. The impugned transfer was stated to have been effected on account of one incident occurred on 20.01.2017, where in a meeting, chaired by Smt. Manisha Bansal Badal, Director, Postal Services, some senior officers rebuked the employees, for their poor performance. As soon as the applicant explained the matter, then immediately she was scolded by the Postal Officer, in the said meeting. She asked that she will fight for honour. This infuriated the respondents, and she was transferred by the respondents.
3. Aggrieved thereby, the applicant has preferred the instant O.A., challenging the impugned transfer order, mainly on the grounds that her transfer is the result of pointed incident, in the meeting aforementioned and her treatment in Fortis Hospital, Mohali. She has termed the impugned transfer order as arbitrary, smeared with malice and illegal. On the strength of the aforesaid grounds, she seeks to quash the impugned transfer order (Annexure A-1), in the manner, indicated hereinabove.
4. Having heard the learned counsel for the applicant, having gone through the record, with his valuable help, and after considering the entire matter and legal position, we are of the firm view that there is no merit, and the present O.A. deserves to be dismissed, for the reasons mentioned herein-below.
5. Ex-facie, the arguments of learned counsel that, the applicant was illegally transferred by the respondents, on account of malice and the aforementioned incident occurred in the meeting on 20.01.2017, and since she has only 14 months of her service, and under treatment of cancer in Fortis Hospital, Mohali, so the impugned transfer order is illegal and liable to be set aside, are not only devoid of merit but misplaced as well.
6. As is evident from the record that the applicant was lastly posted, as Postal Assistant at Nangal, in the year 2004. Since then, she is working there for a long period of more than 12 years, at the same station. She has now been transferred from Nangal to Ropar, on administrative grounds and public interest. The main plea, pressed into service, by the applicant that she has only 14 months of her service, is not a ground much less cogent, to cancel the impugned transfer order, particularly when no such rule or transfer policy has been placed on record, by her. As regards, her treatment in Fortis Hospital is concerned, in this regard, it may be added that Fortis Hospital, Mohali is even very nearer to Ropar, her present place of posting, than to Nangal, her previous station. Therefore, she would be rather benefitted by her transfer to Ropar, being nearer to Fortis Hospital, Mohali.
7. Meaning thereby, the applicant was transferred on administrative grounds and in public interest, after a long period of 12 years of her service, at one station Nangal. She has miserably failed to prove as to how and in what manner, the impugned transfer order is illegal. Moreover, she has miserably failed to specifically plead and substantiate the allegations of malice against any particular individual except bald pointed incident, which is not sufficient in this regard. It is now well settled principle of law that mala fide is very easy to allege but difficult to prove as the onus to prove mala fide lies on the person who alleges it. The Hon’ble Apex Court in the case State of Punjab & Another Vs. Gurdial Singh & Others (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, 6 OA No.100/3709/2015 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.'
The same view was reiterated by this Tribunal in T.M. Sampath Vs. Union of India, [OA No. 188/2012 decided on 30.08.2013] and Naresh Wadhwa Vs. Union of India [OA No. 810/2013 decided on 29.10.2013].
8. Meaning thereby, the Competent Authority has transferred the applicant from Nangal to Ropar, 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-to-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.
9. An identical question came to be decided by Hon’ble Supreme Court in case Shilpi Bose Vs. State of Bihar 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.'
10. In the same manner, 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.
11. Sequelly, a three-Judge Bench of Hon’ble Supreme Court in cases Major General J.K. Bansal Vs. Union of India & Ors. (2005) 7 SCC 227 and in another case State of M.P. and Another Vs. S.S. Kourav and Others (1995) 3 SCC 20 has observed that the Courts or Tribunals are not appellate forums to decide on transfer 8 OA No.100/3709/2015 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 S.C. Saxena Vs. U.O.I. & Others (2206) 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.
12. Again the same view was reiterated by Hon’ble Supreme Court State of U.P. Vs. 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
Please Login To View The Full Judgment!
for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.' 13. Therefore, it is held that the transfer of the applicant was in public interest, on administrative grounds, and in her own interest, as regards her treatment for cancer in Fortis Hospital, Mohali, is concerned. Such transfer order, issued in public interest, indeed, legally could not and should not be interfered with, on the basis of wishful thinking of the applicant and on speculative grounds. 14. As indicated hereinabove, once it is held that the competent authority has transferred the applicant from Nangal to Ropar, on administrative grounds and in public interest, in that eventuality, the impugned transfer order is not open to judicial review. Therefore, the contrary arguments of the learned counsel for the applicant, stricto sensu deserve 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. 15. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 16. In the light of the aforesaid reasons, as there is no merit, so the instant O.A. is hereby dismissed as such, with no order as to costs.