Allowed

Union of India v. P K Shalini

Karnataka HC16 Jun 2021WP/5129/2020

Case brief

AI extract

What is this about?

In a writ petition, the High Court quashed the Administrative Tribunal's order staying a government employee's transfer from Bengaluru to Dholpur. The Court held that transfer is a service incidence and individual hardship does not justify interfering with the employer's decision unless malafides or violation of law are established.

What did the court decide?

Writ petition allowed; Tribunal order staying transfer set aside; Respondent's representation to be considered by employer independently.

Union of India Vs P K Shalini — Labour and Industrial Disputes | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 16^TH DAY OF JUNE, 2021

¶4

PRESENT

¶5

THE HON’BLE MR. JUSTICE ARAVIND KUMAR

¶6

AND

¶7

THE HON’BLE MR. JUSTICE N.S. SANJAY GOWDA

¶8

W.P. NO.5129/2020 (S-CAT)

¶9

BETWEEN:

¶10

UNION OF INDIA REP. BY ITS SECRETARY MINISTRY OF DEFENCE (MOD) SOUTH BLOCK, NEW DELHI - 110 011

¶11

DIRECTOR MT-7 (CIVIL) GOVERNMENT OF INDIA DIR. GENERAL OF MILITARY TRAINING MT-7 INTEGRATED HQR MOD (ARMY) GENERAL STAFF BRANCH, NEW DELHI - 110 001

¶12

DIRECTOR GENERAL OF MILITARY TRAINING MT-15, GENERAL STAFF BRANCH INTEGRATED HEAD QUARTERS OF MOD (ARMY) NEW DELHI - 100 001

¶13

THE PRINCIPAL RASHITRA MILITARY SCHOOL (RMS) BENGALURU - 560 025

¶14

...PETITIONERS

¶15

(BY SRI.MADANAN PILLAI R, ADVOCATE)

¶16

AND:

¶17

P.K.SHALINI W/O. SRI SUJAI SUKUMAR

¶18

¶19

AGED ABOUT 38 YEARS ASST. MASTER BIOLOGY RASHTRIYA MILITARY SCHOOL (RMS), OPP: JOHNSON MARKET BENGALURU - 560 025 RESIDING AT STAFF QTRS. RASHTRIYA MILITARY SCHOOL BENGALURU - 560 025

¶20

…RESPONDENT

¶21

(BY SRI.H.BASAVARAJU, ADVOCATE FOR C/R)

¶22

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD. 4.9.2019 PASSED BY THE TRIBUNAL IN OA NO.170/00756/2019 VIDE ANNEXURE-A.

¶23

THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ARAVIND KUMAR J, MADE THE FOLLOWING:

¶24

O R D E R

¶25

Order of the Tribunal dated 04.09.2019 passed in O.A.No.170/000756/2019 (Annexure-A) whereunder application filed by the respondent herein came to be allowed and order of transfer issued to the respondent dated 24.06.2019 (Annexure-A4) transferring her from Bengaluru to Dholpur, Rajasthan, has been set aside by observing that she can be transferred after three (3) years after her son completes 10th Standard.

¶26

¶27

Parties are referred to as per their rank in the tribunal.

¶28

BRIEF BACKGROUND OF THE CASE:

¶29

The applicant was appointed as Assistant Master in RMS School in the year 2007 and from the date of her appointment she has been working in the said school. In the year 2013 she was transferred to RMS, Chail (Himachal Pradesh) and questioning the said order, she filed an application in O.A.No.193/2013, which came to be allowed by order dated 28.03.2013 conditionally namely, with a rider as noted hereinbelow:

¶30

" but it is made clear that she may be considered for transfer in the next rotation ".

¶31

Said order of the Tribunal came to be

¶32

challenged by petitioner herein in W.P.Nos.3947/2015 & 3949/2015, which came to be dismissed by order dated 27.04.2015 with an observation that impugned order would not prevent the employer to pass suitable order of transfer. Applicant has continued thereafter at the same place namely, at RMS School, Bengaluru. By order dated

¶33

¶34

24.06.2019 (Anneuxre-A4) petitioner has now been transferred to Dholpur, Rajasthan, which again was challenged before the Tribunal by filing an application in O.A.No.170/00756/2019 and Tribunal has set aside the order of transfer for the reasons already indicated hereinabove. Hence, this writ petition.

¶35

Having heard Sri.Madanan Pillai R, learned counsel appearing for petitioner-Union of India and Sri.H.Basavaraju, learned counsel appearing for caveator/respondent, we would like to notice at this juncture itself that transfer is an incidence of service. Unless it is shown by the employee that transfer is vitiated by malafides or is made in violation of statutory provisions or contrary to existing guidelines, it would not be interfered by the Courts. For this proposition support can be had from the judgment of the Hon'ble Apex Court in the case of STATE OF U.P. AND ORS. vs GOBARDHAN LAL reported in AIR 2004 SC 2165 and

¶36

NATIONAL HYDROELECTRIC POWER CORPORATION

¶37

LTD. vs. SHRI BHAGWAN reported in AIR 2001 SC 3309 . In fact, even in the case where arbitrariness,

¶38

¶39

malafides or violation of any operative guidelines or rules are not made out, the Apex Court has held Court's interference with the order of transfer would not be called for. In the case of KENDRIYA VIDYALAYA SANGATHAN

¶40

vs DAMODAR PRASAD PANDEY AND ORS reported in (2004) 12 SCC 299 the Apex Court was examining the transfer of a teacher working in Kendriya Vidyalaya at Jabalpur for 17 years, which was also the place of posting of his wife and he had been transferred to Jammu & Kashmir and it was found that allegations of malafides was not established and transfer was not vitiated on any score.

¶41

In the matter of GUJARAT ELECTRICITY

¶42

BOARD & ANR vs ATMARAM SUNGOMAL POSHANI reported in (1989) 2 SCC 602 the Apex Court has held mere pendency of a representation before the competent authority or the difficulties experienced by the employee would not be a ground for the order of transfer being interjected by courts.

¶43

¶44

Keeping these salutary principles in mind when we examine the facts on hand it would clearly indicate that from 2007 i.e., from the date of her appointment applicant has been working in RMS, Bengaluru i.e., for the past 14 years. In the year 2013 i.e., after a period of 6 years, she came to be transferred to RMS, Chail (Himachal Pradesh) and as already noticed hereinabove, said order was set aside and it was observed by the Tribunal itself that she can be considered for transfer in the next rotation. However, for the reasons best known she was not transferred in the year 2016 and has been retained in the rotation. However, in the year 2019, she came to be transferred to Dholpur, Rajasthan. Challenging the said order she had approached the Tribunal by filing application in O.A.No.170/00756/2019 and the prayer sought for in the said application was to the following effect:

¶45

"(a) direct the Respondent-2 to retain the Applicant in Bangalore for another one tenure or one year by quashing the impugned Order No.530103/Transfer/ RMS/GS/MT-7/ (vi) dt.24.06.2019 at

¶46

¶47

ANNEXURE-A4 issued by the Respondent-2 to the extent of the Applicant concerned as unjust, unfair, arbitrary and passed with malafides intention."

¶48

A perusal of above prayer would clearly

¶49

indicate that applicant herself had sought for retention at Bengaluru for one (1) year apart from seeking retention of another tenure. This prayer of retention of one (1) year has also lapsed. In fact, two (2) years have lapsed from the date of her claim and yet, on the ground that applicant's father is stricken with cancer and her son, who is in 7th standard is an asthmatic patient, she is challenging her transfer. In this background, Tribunal has ordered for impugned transfer order being kept in abeyance for another three (3) years till her son completes 10th standard by observing the kind of educational facilities available in Bangalore cannot be

¶50

held to be available in Dholpur, Rajasthan. It is not for the Tribunal to sit in the judgment over the wisdom of employer, who would have taken a decision depending

¶51

upon the work exigencies to transfer an employee. As noticed hereinabove, transfer being an incidence of

¶52

¶53

service and applicant having continued in Bengaluru for the past 14 years, impugned order of transfer could not have been interfered by the Tribunal and same is erroneous and same is liable to be set aside. In fact, individual hardship if any can be brought to the notice of the employer by submitting a representation, which would definitely be considered by the employer namely, petitioners herein. However, on account of either pendency of the said representation or hardship i.e., likely to be faced by the petitioner if transfer order is implemented, the impugned transfer cannot be kept in abeyance. Respondent has no right to claim posting at a particular place of her choice. This view is also fortified by the dicta laid down by Hon'ble Apex Court in the case

¶54

of UNION OF INDIA vs. DEEPAK NIRANJAN NATH PANDIT reported in AIR 2020 SC 1492 whereunder it has been held:

¶55

"4. The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at Mumbai and even if he is to be suspended, his headquarters will continue to remain at

¶56

¶57

Mumbai. The second reason, which has weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. However, we are categorically of the view that the impugned order of the High Court interfering with the order of transfer was in excess of jurisdiction and an improper exercise of judicial power. We are constrained to observe that the impugned order has been passed in breach of the settled principles and precedents which have consistently been enunciated and followed by this Court. The manner in which judicial power has been exercised by the High Court to stall a lawful order of transfer is disquieting. We express our disapproval."

¶58

In the light of aforesaid discussion, we are of

¶59

the considered view that order of Tribunal cannot be sustained. Resultantly, we proceed to pass the following:

¶60

¶61

ORDER

¶62

(i) Writ petition is allowed.

¶63

(ii) Order dated 04.09.2019 passed in O.A.No.170/00756/2019 by Central Administrative Tribunal, Bangalore Bench, vide Annexure-A, is set aside and O.A.No.193/2013 is dismissed.

¶64

(iii) Representation, if any, submitted by the applicant i.e., respondent herein, same shall be considered by the petitioners independently without being influenced by any observations made either by the Tribunal or by this Court.

(iii) No costs.

SD/JUDGE

SD/JUDGE

Union of India v. P K Shalini

Case brief

What is this about?

What did the court decide?

Union of India v. P K Shalini

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Sampada Enterprises Vs M/S Tgs Construction Private Limited

Karan Kalra Vs Esha Kalra (Nee Esha Sapra)

Sri Narasimha Swamy Vs Sri Pramod

Sri Anjinappa Vs Smt Venkatamma

Sri John David Vs State Bank of India

Sri Rosaiah Alias Rosappa Vs Sri Anjum Parwez, I a S