Allowed

The Commissioner, v. Smt. M. Jyothi Nirmala

Telangana HC24 Apr 2014WP/6451/2013

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the quashing of a teacher's transfer order by the Central Administrative Tribunal. Rejecting reliance on malafide, the Court observed that staff not implicated in internal inquiries are duty-bound to obey transfers, allowing the writ to be permitted while reserving the right for the employee to seek a new transfer.

What did the court decide?

Writ permitted; respondent is at liberty to apply for transfer to Andhra Pradesh subject to entitlement and availability.

The Commissioner, Vs Smt. M. Jyothi Nirmala — Service and Employment | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.6451 OF 2013

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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This writ petition is filed challenging the order, dated 21.2.2013, in O.A.No.1343 of 2012 on the file of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad.

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2. Respondent herein/applicant filed the aforementioned Original Application before the Tribunal to declare the transfer order, dated 11.4.2012, issued by petitioner No.3 herein as illegal and arbitrary, and consequently, direct the petitioners herein to retain her in the existing vacancy at Kendriya Vidyalaya, Gooty, Ananthapur District, Andhra Pradesh by setting aside the transfer proceedings.

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3. The Tribunal, upon considering the material on record, allowed the Original Application quashing the transfer order, dated 11.4.2012, issued by petitioner No.3 herein on the ground that the petitioners herein failed to substantiate that the stay of the applicant at Kendriya Vidyalaya Sangathan (for short, “K.V.S.”), Gooty, Ananthapur District has become prejudicial to the interest of the organization and that there are no justifiable grounds to invoke para No.7(e) of the Transfer Guidelines of Kendriya Vidyalaya Sangathan (for short, “the Guidelines”) to transfer her from Ananthapur District to Behrampur, Orissa State. Challenging the same, Government filed the present Writ Petition.

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4. Learned Standing Counsel for Kendriya Vidyalaya Sangathan contended that the acts of the respondent are prejudicial to the interests of the organization and hence, the transfer was effected; that

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it is neither a case of violation of the Rules nor suffering with vice of mala fides and therefore, he prays to set aside the same.

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5. Learned counsel for the respondent/applicant contended that for invoking para No.7(e) of the Guidelines, no enquiry was conducted and the enquiry was conducted behind the back of the respondent; that as she made complaint against the Principal, he got prejudiced and effected the transfer and therefore, he prays to sustain the impugned order.

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6. Transfer of an employee is an incidence of service and the employee is bound to go to the place where he is posted. At the same time, the employer cannot transfer an employee at his whims and fancies. Unless the transfer is vitiated by vices of mala fides or contrary to the Rules, or the person, who issued the transfer order, lacks jurisdiction, ordinarily, this Court would not interfere with the transfer. As seen from the Original Application, there was no factual foundation with regard to anyone of the above three aspects.

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7. Learned Standing Counsel for the petitioners placed reliance on a decision reported in Union of India and others v. Janardhan Debanath and anothe r^[1] wherein it is held at para No.9 as under:

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“A bare reading of Rule 37 shows that officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers were not to be ordered except when advisable in the interests of public service. The transfers can be made subject to conditions laid down in FRs 15 and 22. The appellant has indicated as to why and under what circumstances the transfers were thought proper in the interests of public service. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident,

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but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan[ (2001) 8 SCC 574 : 2002 SCC (L&S) 21].

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8. Similarly, learned Standing Counsel placed reliance on a decision reported in P. Shaikshavali vs. Superintendent of Police, Ananthapur and others^[2] wherein it is held at para No.6 as under:

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“….. Transfer of public servant made on administrative grounds of public interest should not be interfered with by the Courts unless there is strong and pressing grounds rendering the transfer order illegal on the ground of violation of some mandatory statutory rules or on the ground of mala fide or on the ground of lack of authority. The Court or the Tribunals cannot sit as appellate Court over the orders of the transfers made on administrative grounds. The reason for this self-imposed restraint is that the wheels of administration should be allowed to run smoothly and the Courts or the Tribunals are not expected to interdict the administrative system.”

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In view of the above decisions, it is clear that unless the transfer is effected by anyone of the three grounds mentioned above, ordinarily, this Court would not interfere with the same. Para No.7(e) of the Guidelines provides that an employee can be transferred from a location if the employee’s stay has become prejudicial to the interest of the organization.

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9. According to the learned Standing Counsel for the petitioners, the transfer of the respondent has been effected because the Principal of the Kendriya Vidyala addressed a letter to the Deputy Commissioner, K.V.S., Secunderabad alleging that the respondent and her husband, being the locals of Ananthapur, threatened the Principals, teachers and staff of other states with dire consequences; that many complaints were received from the parents about the

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partiality shown by her towards the students studying in IX and X suppressing the talented children in CCE; that she was hampering the peaceful atmosphere of the Vidyalaya by frequently quarrelling with staff and parents; that she misplaced the answer script of SA-1 to down grade Mr. Srikanth of Class IX and discouraged the student and that in spite of several advisory notes/warnings, she remained absent from duty without prior permission. For that, a departmental enquiry was conducted to initiate the departmental proceedings. These alleged acts will come within the meaning of para No.7(e) of the Guidelines. Therefore, the Tribunal ought not to have interfered with the transfer order. In the facts and circumstances of the case, the impugned order is set aside.

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10. Accordingly, the Writ Petition is allowed. However, the respondent is at liberty to file an application before the competent authority for transfer and her case shall be considered sympathetically subject to entitlement and availability of the post in the State of Andhra Pradesh. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C.BHANU

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JUSTICE ANIS Date: 24.4.2014 AMD

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THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.6451 OF 2013

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DATE: 24.4.2014

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AMD