C.S. Dias JUDGMENT
C.S. Dias, J.
1. The petitioner has filed this writ petition seeking to set aside Ext P12 transfer order and to exempt him from rotational transfer on compassionate grounds.
2. The petitioner is an Officer in the Indian Railway Catering and Tourism Corporation (in short Corporation). He had joined the service of Corporation, as Assistant Manager, in July 2007.
3. It is the case of the petitioner that he is married to a Government employee in the Postal Department. They have two children in their wedlock. His older child suffers from mental illness combined with Autism Spectrum. The younger child is aged five years. His older son requires special attention and education.
4. According to the petitioner, during his tenure in the Corporation, he has complied with all the transfer orders. As the petitioner's wife is also employed, he had submitted Ext P4 representation before the second respondent seeking for exemption from rotational transfer. As there was no response to Ext P4, the petitioner submitted Ext P5 representation.
5. The petitioner relies on Ext P6 memorandum issued by the Government of India, granting exemption from routine exercise of transfer to Government employees, who have children with disability in conformity with the Rights of Persons with Disabilities Act 2016. The petitioner also relies on Ext P7 circular, ensuring that both the husband and wife are to be posted at the same station.
6. The petitioner has averred that as per Ext P8 order, he was promoted from the post of Deputy General Manager to Joint General Manager. As there was no response to Exts P4 and P5 representations, the petitioner filed WP(C) 17712/2019 before this Court. When the writ petition came up for hearing, the respondents assured before this Court that the grievance of the petitioner would be considered. Accordingly, the writ petition was dismissed as withdrawn.
7. Thereafter, on 18.6.2020, the petitioner has been served with Ext P9 order, transferring him to Bangalore with immediate effect. The petitioner immediately submitted Ext P10 representation before the second respondent and, thereafter, filed WP(C) 12805/2020. This Court by Ext P11 judgment dated 1.7.2020 directed the second respondent to consider the representation submitted by the petitioner with compassion and sympathy that it deserves. Although the second respondent considered the representation, the petitioner's request for cancellation of the transfer has been rejected. Hence, the petitioner seeks to quash Ext P12 and direct the respondents to exempt the petitioner from rotational transfer.
8. Heard Smt. Sandhya Raju, the learned counsel appearing for the petitioner and Smt. Asha Cherian, the learned Standing Counsel appearing for the respondents.
9. The learned counsel for the petitioner reiterated the contentions in the writ petition. She argued that the respondents have transferred the petitioner ignoring the directives in Exts P6 and P7. Moreover, the petitioner's son is a special need child and it is necessary that the petitioner continues to work at Ernakulam to take care of the needs and necessities of his son, especially because his wife is also employed. Now, since the petitioner's son is attending online classes, it has become necessary that one of the spouses be at their residence. In the said circumstances, Ext P12 order passed by the third respondent is arbitrary and illegal and in violation to Exts P6 and P7.
10. The learned Standing Counsel appearing for the respondents, on instructions, submitted that petitioner is working as a Joint General Manager. He is occupying a Managerial post. He has been working in Ernakulam for the last four years. In June 2019, when the petitioner was promoted as Joint General Manager and was transferred, he made a similar representation. The Corporation compassionately considered the representation, and permitted the petitioner to continue in Ernakulam for one more year. Now the incumbent who has been transferred to take the place of the petitioner has already been relieved from New Delhi on 17.7.2020 and he has joined Ernakulam on 20.7.2020. There is no other vacancy available in the Managerial cadre to accommodate the petitioner in Kerala. It is to meet the administrative exigencies of the Corporation, that the petitioner has been transferred to Bangalore. The transfer is an incident of service. Pursuant to the directions of this Court in Ext P11 judgment, the third respondent has considered the representation of the petitioner, after affording him an opportunity of being heard, and has passed Ext P12 order, which exhaustively gives reasons for the petitioner's transfer. The petitioner cannot have a vested legal right to perpetually continue in Ernakulam. There are suitable, if not better, educational and medical facilities in Bangalore. Hence this Court may not interfere with the transfer of the petitioner from Ernakulam to Bangalore, and the writ petition may be dismissed.
11. The sole question that emerges for consideration in this writ petition is whether the transfer and posting of the petitioner from Ernakulam to Bangalore is justifiable or not.
12. The scope of judicial review, in matters relating to transfer and posting of employees under Article 226 of the Constitution of India, is well settled in a host of judicial pronouncements by the Hon'ble Supreme Court.
13. The Hon'ble Supreme Court in Shilpi Bose and Others v. State of Bihar and Others [MANU/SC/0147/1991 : (1991) Supp 2 SCC 659] the Hon'ble Supreme Court observed as follows:
"4. In our opinion, the courts should not interfere with a transfer order which are 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 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. If the courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."
14. The above legal proposition has been reiterated by the Hon'ble Supreme Court in State of M.P. and Another v. S.S. Kourav and others [MANU/SC/0202/1995 : (1995) 3 SCC 270], wherein, it is laid down thus:
"4 .............................................................. The Courts or Tribunals are not appellate forums to decide on transfer 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............................................................. ................................................................ "
15. Again, in Somesh Tiwari v. Union of India and Others [MANU/SC/8494/2008 : (2009) 2 SCC 592], the Hon'ble Supreme Court observed as follows:
"20. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide is of two kinds-one malice in fact and the second malice in law."
16. The trump card of the petitioner's contention is that his son is a special need's child, as evidenced by Exts P1 to P3, who need's special attention, and therefore it is necessary that the petitioner continues to be posted in Ernakulam to look after the necessities of his son.
17. It is an undisputed fact that the petitioner has been working in Ernakulam for the last four years. He holds a Managerial post in the Corporation. It is also admitted that in the last year, when the petitioner was promoted and transferred, on the basis of the petitioner's representation the Corporation reconsidered his transfer and permitted the petitioner to continue at Ernakulam.
18. Going by the reasons assigned by the third respondent in Ext P12, it is seen that the petitioner has been transferred to Bangalore to handle special trains, to boost the tourism products of the Corporation in the present situation. The petitioner being a senior employee of the Corporation has the responsibility towards his job assignment as well. The petitioner was permitted to work in Ernakulam for the year four years. Merely because the petitioner's son is a special need's child, that is not a ground for the petitioner to perpetually continue in Ernakulam. The respondents have shown utmost leniency and compassion in favour of the petitioner during his tenure of service. The petitioner has been transferred to Bangalore to meet the administrative exigencies of the Corporation. It is not for this Court to step in and substitute the wisdom of the Corporation, in its administration. Exts P6 and P7 are only guidelines/directives to be broadly followed by the Corporation. As rightly pointed out by the respondents, there are better educational and medical facilities at Bangalore, where the petitioner can admit his son. If not, it is for the petitioner to make alternative arrangements rather than resisting the transfer, on the ground of the illness of his son. True, sympathies are there with the petitioner, but that cannot override administrative exigencies, particularly when he holds a senior managerial post.
19. The Hon'ble Supreme Court in a recent decision reported in Union of India and another vs. Deepak Niranjan Nath Pandit [MANU/SC/0149/2020 : (2020) 3 SCC 404] has held thus:
"3. 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 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.
(emphasis given)
20. The petitioner does not have a case that there is any malice or statutory infraction in the order of transfer. Moreover, he has enjoyed the benefit of promotion also. The respondents have, as directed by this Court, considered the representation of the petitioner and felt that the petitioner has to join the Corporation office at Bangalore, for the better interest of the Corporation. It is not for this Court to say that the said decision is wrong. There is no scope for judicial review in such administrative matters.
21. On a cumulative appreciation of the facts of the case and the law declared by the Hon'ble Supreme Court in the aforecited precedents, I am of the considered opinion that there is no illegality in Ext P12 order passed by the third respondent, which is purely an incident of service. Hence, I do not find any grounds warranting interference by this Court, in exercise of its powers under Article 226 of the Constitution of India, to set aside Ext P12 order and to direct that the petitioner be exempted from rotational transfer.
Resultantly, this writ petition is dismissed.
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