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Ramesh Kumar v/s Bharat Sanchar Nigam Limited & Others

    O.A.No. 63/00138 of 2015

    Decided On, 24 September 2015

    At, Central Administrative Tribunal Chandigarh Bench

    By, MEMBER (A)

    For the Applicant: Neel Kamal Sharma, Advocates. For the Respondents: None.

Judgment Text

Order (Oral): (Sanjeev Kaushik, Member (J)).

1. The applicant has filed this Original Application challenging the action of respondents in not transferring him from Sunni to proper Shimla as he has already served hard / remote areas etc.

2. The facts which led to filing of the instant Original Application are that the applicant was initially appointed as Temporary Status Mazdoor in 1994 at Shimla. He was regularized as Mazdoor in 1997. In 2000, he was promoted as Telephone Mechanic and posted at Rohru (Lower Koti) which qualifies as a hard station as one has to walk on foot for

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about 25 kms. The applicant served there for 8 years. Prior thereto, the applicant made requests for posting him at Shimla but to no avail forcing him to file CWP No. 1868 of 2008 which was transferred to this Tribunal and registered as T.A.No. 79-HP-2008 Mujeev Rehman & Others Vs. BSNL etc. in which applicant was at Sr. No.3. Consequent upon filing of the case, he was transferred to Shimla. Then the applicant was promoted as Telephone Technical Assistant on 30.8.2012 and was promoted at Telephone Exchange, Pooh, District Kinnaur H.P. The applicant made a request on 4.1.2013 to post him at proper Shimla as his wife is not well and getting treatment in IGMC, Shimla and that he had already served at Rohru for 10 years, a hard station. However, the applicant was posted to Telephone Exchange, Sunni, District Shimla on 3.6.2014 and not proper Shimla, despite assurance given in that regard. As per transfer guidelines (Annexure A-5) employees are to be transferred out rotation wise from one station to another so that all of them get opportunity to serve all type of stations. Number of persons is working at Shimla for quite long time but they have not been touched. Thus, he has challenged the action of respondents being in violation of Article 21 of the Constitution of India and highly unjust, arbitrary, unreasonable and in violation of the principles of natural justice. There is discrimination qua him vis-a-vis other employees who have not been touched though they are working at Shimla for quite long time. The policy of pick and choose should not be followed by the respondents After serving at a hard / difficult station one is given choice station which has been denied to the applicant.

3. We have heard learned counsel for the applicant at length and have also examined the pleadings on record.

4. It is not in dispute that the applicant had initially joined Shimla and remained there for quite some and was transferred out twice only on promotion. He made a request for posting him at proper Shimla but he has been posted at Sunni in Shimla. This is the cause of complaint for the applicant on the ground that others serving at Shimla have not been shifted out which is discrimination and he deserves to be posted at Shimla proper.

5. It is by now well settled law that transfer is an exigency and incidence of service and is an administrative discretion and interference by the Tribunal/Courts with transfer orders can be in very rare cases. In several decisions of the Honble Apex Court like Mysore Paper Mills Ltd., Bangalore Verus Mysore Paper Mills Officers Association, Bhadravati and Another [1999 (6) SLR 77] B. Varadha Rao versus State of Karnataka (AIR 1986 SC 1955), Shilpi Bose Versus State of Bihar (AIR 1991 SC 532), Union of India versus S. L. Abbas (AIR 1993 SC 2444) and Airport Authority of India Versus Rajeev Ratan Pandey [JT 2009 (10) SC 472], Rajendra Singh Versus State of UP and Others [2010-1-SLR-632]. In these cases it has been held that in the transfer matter of a Government employee, scope of judicial review under Article 226 of the constitution is limited. The Tribunal and High Court should not interfere with an order of transfer lightly, be it at the interim stage or final hearing, as the Courts do not substitute their own decision and as the Courts and Tribunals are not appellate authority in such matters of transfer.

6. It has been held that interference by the Courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions, transfer is an exigency of service. We may refer to the decisions of Apex Court in B. Varadha Rao vs. State of Karnataka AIR 1986 SC 1955, Shilpi Bose vs. State of Bihar AIR 1991 SC 532, Union of India Vs. N.P. Thomas AIR 1993 SC 1605, Union of India vs. S.L. Abbas AIR 1993 SC 2444 on the issue. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Apex Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748).

7. It has been settled that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless 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 orders, were not competent to pass the orders. We do not find existence of any such grounds in the instant case. In the case of S.L. Abbas (supra) it has been held that The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters, as is evident from Article 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A. The Administrative Tribunal is not an Appellate Authority sitting in judgment over the order; of transfer. It cannot substitute its own judgment for that of the authority competent to transfer.

8. In view of the factual and legal position discussed above, this Original Application is dismissed.

9. No costs.