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O.P. Sharma v/s National Institute of Fashion Technology

    Civil Appeal No. 5522 of 2002

    Decided On, 29 October 2002

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE MADAN B. LOKUR

    For the Appearing Parties: Abhay K. Das, E.X. Joseph, Rajiv Nair, Vandana Khurana, Vibha Dutta Makhija, Advocates.



Judgment Text

MADAN B. LOKUR, J.


(1) THE Petitioner is aggrieved by his transfer to Mumbai by an order dated 16th August, 2002, Ordinarily, no Court should interfere with an order of transfer unless, as the Supreme Court says in State Bank of India v. Anjan sanyal and Ors. , (2001) 5 SCC 508 @ 514, "the Court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order. "


(2) THE Petitioner believes, and 1 think rightly, that his transfer to mumbai is a colourable exercise of power and, therefore, mala fide, But flrst, the canvas of facts.


(3) THE Petitioner was appointed as a Registrar on promotion in the Delhi center of the National Institute of Fashion Technology, that is Respondents no. 1 and 2 (hereinafter referred to as the Institute) with effect from 12 august, 1998. The Petitioner has been continuing as a Registrar with the institute in Delhi.


(4) THE Institute adopted a policy on 3rd May, 2000 "to deploy Registrars on integrated lines in the overall interest of the Institute instead of the current practice of compartmentalised approach". In terms of this policy, the services of Registrars were available for the institution as a whole and not for any particular center. The relevant clause of this policy is as follows:-


"when an (sic) Registrar does not want to accept promotion on transfer to center outside Delhi and from one center to another, he/she may make a written request that he/she may not be promoted and the request will be considered by the appointing Authority, taking relevant aspects into consideration. No fresh offer of appointment on promotion shall be made in such cases for a period of ONE YEAR from the date of first refusal. On eventual promotion to higher grade, such facility/ officer will lose seniority vis-a-vis his/her juniors promoted earlier. "


(5) RESPONDENT No. 3 who was working as a Deputy Registrar with the institute was transferred on promotion as a Registrar to Bangalore apparently sometime in July, 2000. He declined to accept his transfer and promotion and so, in accordance with the policy above mentioned, he continued to work as a Deputy Registrar in Delhi.


(6) SUBSEQUENTLY, by an order dated 3 2th October, 2001, Respondent No,3 was transferred on promotion to Mumbai There is nothing on the record to respondent No. 3 was promoted to die post of Registrar (Admissions) in Delhi The consequence of the order dated 16th August, 2002 was that the petitioner was laterally shifted from Delhi to Mumbai and Respondent No. 3 who had been transferred on promotion from Delhi to Mumbai in October, 2001 was now promoted in Delhi without his having joined the promotion post in Mumbai.


(7) FEELING aggrieved by his transfer to Mumbai and the adjustment of respondent No. 3 in Delhi, the Petitioner represented on 17th August, 2002 against the order dated 16th August, 2002. Immediately thereafter, an order was issued by the Institute on 19th August, 2002 to the effect that Respondent no. 3 had taken over charge in the post of Registrar in Delhi and the petitioner was relieved of his charge on the same date, that is, 16th August, 2002. A further representation by the Petitioner did not draw any favourable response from the Institute with the result that the Petitioner preferred a writ petition in this Court challenging his transfer to Mumbai.


(8) A counter affidavit was filed by the Respondents. No separate counter affidavit has been filed by Respondent No. 3.


(9) AMONG other things, it has been stated in the counter affidavit that the post of Registrar in Mtunbai was lying vacant since 1st October, 2001, The petitioner who is an experienced Registrar was preferred over other registrars and transferred to Mumbai in administrative interest. It is stated in the counter affidavit that the Petitioner was appointed with the Institute in delhi in 1986 and since then he has been working in Delhi despite the fact that tfie posts in the Institute were transferable to various centers. However, if Jias not been stated or alleged in the counter affidavit that the Petitioner was sought to be transferred out of Delhi on any earlier occasion or that he pal declined to be transferred out of Delhi. Consequently, the mere fact that the Petitioner has worked in Delhi since 1986 is of no relevance at all.


(10) JUSTIFYING the transfer of the Petitioner to Mumbai, it has been stated in the counter affidavit that :-


". . . . . . in view of the fact that the Petitioner has served for more than 4 years on the post of registrar, and the post in Mumbai has been vacant for a long time, and also the fact that the term of appointment of the Director, NIPT, Mumbai has expired and is functioning only on an extension, are the factors which were considered while transfeiting the Petitioner to Mumbai centre at the post of Registrar. "


(11) LEARNED counsel for the parties made their submissions on 25* october, 2002 when judgement was reserved.


(12) THE primary contention of learned counsel for the Petitioner is that the transfer of the Petitioner to Mumbai is a colourable exercise of power and has been effected only to accommodate Respondent No. 3. It is submitted that Respondent No. 3 was transferred to Mumbai in October, 2001 but did not join there for almost ten months. There is nothing on the record to suggest that any disciplinary action has been taken against Respondent No. 3 for his insubordination. To make it worse, Respondent No. 3 has been adjusted in Delhi and also given a promotion contrary to the policy dated 3rd may, 2000. It is submitted that the actions of the Institute have to be transparent and absolutely fair as is expected of the State. It is submitted that the actions of the Institute not only lack fairness but are mala fide.


(13) LEARNED counsel for the Respondents, on the other hand, has sought to justify the transfer on me ground that the Petitioner has been working in delhi since 1986 and that there was a vacancy in Mumbai since October, 2001 in the post of Registrar which was required to be filled up. Now, even the Director who is in Mumbai has superannuated and is continuing on an extension. Since the Petitioner was relatively senior' and experienced, it was decided to send him to Mumbai where his services could be better utilized. As regards the transfer policy dated 3rd May, 2000, it was submitted that a promotion could be denied to Respondent No. 3 only once and that too for sine year only. This had been done and so it was not possible to withhold the promotion of Respondent No, 3 because he did not join the promotion post in mumbai. Respondent No. 3 had paid the penalty for not accepting the transfer to Bangalore and lie could not be penalized again for an identical refusal,


(14) THE transfer policy dated 3rd May, 2000 makes it clear that if a person is transferred on promotion and does not accept the transfer, then from the date of his (first) refusal, he will not be offered a promotion for one year. What is the consequence if he refuses to accept a second transfer? The institute construes its policy to mean is even when an employee refuses the second transfer, he cannot be compelled to accept it. Nevertheless, the institute would be obliged to promote him in the center from which he refuses to get transferred out. This appears to be a rather anomalous and strained interpretation to the transfer policy dated 3rd May, 2000. To my mind, the policy lias to be given a meaningful interpretation and not an interpretation which renders it-nugatory.


(15) IF the interpretation given by the Institute is accepted, then it will mean that an employee may, after the first refusal of a transfer, consistently refuse to accept subsequent transfers and yet claim promotions in the same place of posting. This renders the policy toothless. This interpretation also makes the policy inapplicable after the first refusal of a transfer and promotion, which could certainly not have been the intention while framing the policy. The policy has to be given a workable interpretation and to make it workable, it must be construed so as to mean that whenever an employee is transferred out from 'die center in which he is working on promotion to some other center, and he declines to accept the transfer, he will not be offered a promotion for a period of one year from the date of his (first) refusal to accept the transfer. This may happen more than once and every time an employee is transferred out from his center.


(16) HOW does all this impact on the transfer of the Petitioner? All that this discussion on the interpretation of the transfer policy means is that respondent No. 3 could not have been promoted as a Registrar in Delhi. Consequently, the Institute could have insisted on giving effect to the transfer of Respondent No. 3 to Mumbai as a Registrar or it could have permitted Respondent No. 3 to remain in Delhi, but only in the post of a deputy Registrar, which he was holding. Unfortunately, the Institute exercised neither of these options - instead they adopted a hybrid policy. The institute did not insist on giving effect to the transfer of Respondent No. 3 to mumbai and also gave him a promotion in Demi. This is what is objectionable.


(17) SINCE Respondent No. 3 was transferred to Mumbai by the order dated 12th October, 2001 it must be assumed that he was competent to hold the post of Registrar in Mumbai. It is not the case of the Institute that respondent No. 3 was found wanting in any manner or otherwise not suitable to hold the post of a Registrar in Mumbai and mat is why his transfer was not given effect to. However, for reasons, which have not been placed on record, respondent No. 3 did not join as Registrar in Mumbai in October, 2001. In fact, he has not joined till date. Yet, the Institute has turned a Nelson's eye to his insubordination and has taken no disciplinary action against him.


(18) ONE can understand that if, for some valid reason, Respondent No. 3 refused to join as a Registrar in Mumbai, then the Institute would have sent a replacement. But for ten long months they did not send anybody. Eventually, the Petitioner was chosen to go as a replacement to Mumbai. If the Institute had left if at that, perhaps it could be said that the transfer of the petitioner to Mumbai was in the exigency of service and was necessary because the post of Registrar had been lying vacant for ten months and needed to be filled up. But, what the Institute did was not only transfer the petitioner to Mumbai but promote Respondent No. 3 to the post of Registrar in Delhi, for which there is no apparent reason, nor has any justification been proffered. If Respondent No. 3 is competent enough to hold the post of registrar in Demi, he is competent enough to hold the post of Registrar in mumbai. The Institute has not explained the mystery behind its not insisting on Respondent No. 3 joining at Mumbai and instead sending the Petitioner to mumbai. The facts of the case have to be considered in their totality.


(19) THE counter affidavit filed by the Respondents is blissfully silent on three material aspects: (1) If, as it is now being suggested, Respondent No. 3 was not the most appropriate person to be transferred to Mumbai in October, 2001, why was he transferred in preference over the allegedly more experienced petitioner. (2) Why is it that no disciplinary action has been taken against Respondent no. 3 despite his failure to join his duties in Mumbai for almost a year, an act which appears to be nothing short of insubordination. (3) The need to promote Respondent No. 3 to the post of Registrar (Admissions) in Delhi despite the policy dated 3rd May, 2000.


(20) THE sequence of events and the silence of the Institute on matters of moment lead me to only one conclusion, which is that the entire exercise was intended to accommodate Respondent No. 3 as a Registrar in Delhi. Quite clearly, Respondent No. 3 did not want to go to Mumbai as a Registrar and the Institute decided to accommodate his wishes. To make matters worse, the Institute did not implement its transfer policy dated 3rd May, 2000 in respect of Respondent No. 3 and gave him a promotion* to the post of registrar in Delhi making it imperative for someone else to be transferred to mumbai. Unfortunately, that someone happened to be the Petitioner wh

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o became a victim of the scheme of arrangement and had to be transferred to mumbai. In the light of all this, I am of the view that the Institute has used its power of transfer in a colourable manner to accommodate Respondent no,3 at the expense of the Petitioner. The actions of the Institute being mala flde, there is no option but to strike them down. (21) ROBERT Burns says: the best laid schemes o mice and men often go astray. And so it is in this case. (22) LEARNED counsel for the Respondents relied upon All India Bank of baroda Officers' Federation and Ors, v. Bank of Baroda and Anr. . 95 (2002) DLT 345 (DB) but I see no relevance of that decision to the facts of the present case. In Bank of Baroda, 900 employees were transferred by an order dated 2/3rd July, 1999. Two of the employees did not accept the transfer on the ground that it was without any rational basis. The contention of the two employees was rejected in view of the fact that no mala fides or arbitrariness had been made out in the transfer of those two employees and that there was no reason to conclude that the transfer of those two employees out of 900 similarly placed persons was irrational. (23) THE writ petition is allowed. The transfer of the Petitioner to Mumbai in terms of the order dated 16th August, 2002 is quashed. The Petitioner will be entitled to costs of Rs. 5,000/-
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