TMI Blog2020 (4) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... policy that employees who were left with 2 years or less service should normally be considered for being given a choice posting, would therefore not be attracted to the case of the respondent. In view of the law enunciated by the Supreme Court by catena of judicial pronouncements, the power of judicial review even in the matter of transfer, can be exercised by the High Court or the Tribunal within the defined parameters. We may in this connection cite the decided case law of the Supreme Court as to what are the limitations on the scope of interference of the Supreme Court in the matters of transfer of a Government employee. The Central Administrative Tribunal, while interfering with the order of transfer in the present case, has exceeded its jurisdiction, and erred in law in quashing the order of transfer - Petition allowed. - WP(C) No. 48 of 2020 - - - Dated:- 2-3-2020 - Hon ble Mr. Justice Mohammad Rafiq, Chief Justice Hon ble Mr. Justice W. Diengdoh, Judge Appearance: For the Petitioner/Appellant(s) : Dr. N. Mozika, Sr. Adv. With Ms. T. Sutnga, Adv. For the Respondent(s) : Mr. N. Dasgupta, Adv. Per Mohammad Rafiq, CJ, 1. This writ petition has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the respondent in the middle of the year from Shillong to a faraway place like Itanagar, has caused serious setback as the respondent is ailing from grave eye problem and his whole body is afflicted by a serious skin condition known as psoriasis and also that his father is about 90 years old. The respondent submitted representation to the Chief Commissioner to retain him at Shillong either in Customs Preventive Commissionerate in Shillong CGST Commissionerate. 3. The Department contested the Original Application filed by the respondent by contending that transfer has been made in the administrative exigencies of service in the routine, along with 93 other officers and further that date of birth of the respondent being 30.05.1962, his age is 57 years 8 months. Therefore, DoPT guidelines that officers with 2 years or less service from superannuation should be given their desired place of posting, is not attracted to the present case. 4. The Tribunal set aside the order of transfer dated 14.08.2019 by the impugned judgment while allowing the Original Application by holding that the power of judicial review could very well be excised by a court of law if such transfer indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Hydroelectric Power... vs. Shri Bhagwan on 11th September, 2001. v) N.K. Singh vs. Union of India on 25th August, 1994. vi) Mrs. Shilpi Bose and Ors. vs. State of Bihar and Ors. on 19th November, 1990. vii) Gujarat Electricity Board Anr. vs. Atmaram Sungomal Poshani on 31st March, 1989. viii) The State of Assam vs. Shri Dilip Kumar Sarma Ors. on 1st September, 2011. ix) Donger Singh Thakur vs. State of Chhattisgarh on 9th October, 2018. x) M. Sankaranarayan-IAS vs. State of Karnataka Ors. on 11th November, 1992. 8. Mr. N. Dasgupta, learned counsel for the respondent opposed this writ petition and submitted that the learned Tribunal was fully justified in setting aside the order of the transfer. In doing so, the Tribunal has relied on the judgment of the Gauhati High Court in Union of India v. Dr. Umesh Kumar Mishra: WA No. (SH) 17/12 wherein, it was held that when a policy has been laid down, the same may be deviated from only if there is any reason to do so. Reliance was also placed on another judgment of the Gauhati High Court in the case of Narayan Choudhury v. State of Tripura Ors. : WP(C) No. 239/1999 reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in the case of Radhey Shyam Anr. The Supreme Court in that case was dealing with a reference upon doubt being raised about the correctness of the law laid down in Surya Dev Rai v. Ram Chander Rai Ors: (2003) 6 SCC 675 . The Central Administrative Tribunal being a Tribunal set up under Article 22(3) (f) of the Administrative Tribunals Act, 1985 cannot be in that sense construed to be a civil court. Judgments of the Tribunal as per law enunciated by Constitutional Bench of the Supreme Court in the case of L. Chandra Kumar v. Union of India Ors. : (1997) SC 1125 are amenable directly before Division Bench of the High Court. 12. The respondent has in the additional affidavit directly filed before this Court has sought to expand the scope of the case. No such pleadings with reference to those 18 persons were made before the Tribunal, with regard to whom now it is alleged by him that they have been given favourable treatment and therefore he has been discriminated against. Transfer or posting of an employee is an incident of service. He cannot insist on his transfer at a place of his choice by raising the argument of discrimination by citing the example of others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other is not only an incident, 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 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 : 2001 SCC (L S) 21. 16. In the case of Bank of India v. Jagjit Singh Mehta : (1992) 1 SCC 306 , the Supreme Court held that the guidelines for posting husband and wife at one station, even if their employers be different, has to be follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right. 8. 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. This is evident from a perusal of 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 323-A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative Tribunal is not an appellate authority sittin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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