- (1.) R. B. Misra, J. Heard Sri S. K. Pal, learned counsel for the petitioner as well as Sri R. D. Khare, learned counsel for the respondent.
(2.) IN this writ petitioner the order dated 20-11-1999 and 25-11- 1999 (Annexure Nos. 4 and 5) to the writ petition passed by the Managing Director of U. P. State Sugar Corporation and Executive Director of U. P. State Sugar Corporation respectively have been challenged. According to the petitioner he was working as workshop labourer in Ghatampur Sugar Co. Ltd. Kanpur Nagar for the last several years as a regular employee and having satisfactory service. According to him an application on 10-8- 1999 was submitted by him to pay his salary for the period 16-6- 1999 to 31-6-1999 which could not be considered by the Executive Director of Ghatampur Sugar Co. Ltd. Again the petitioner approached on 5/6-11-1999 for disbursement of salary and bonus and on the same day the petitioner was issued a show cause notice to explain the hindrance created by him in the disbursement of the salary to the workers of the respondent unit. Therefore, he was asked to explain the indiscipline created by him. Keeping in view of this reply and documents the petitioner's service has been transferred by an order dated 20-11-1999. According to the petitioner the service of the petitioner has been transferred mala fide in order to punish him. Counter-affidavit, rejoinder-affidavit, supplementary-affidavit and supplementary rejoinder affidavits have been filed. Sri R. D. Khare, learned counsel on behalf of the respondent submitted that the service of the petitioner was transferred in the interest of administration and not by way of punishment transferred from his present posting to Sugar Factory Nawabganj union on the same scale and same status. According to the respondent the petitioner cannot be punished as transfer is the exigency of service and in the interest of administration he could be shifted to other unit as the respondents empowered to transfer. According to para 5 of the counter-affidavit transfer of an employee/ workmen from one unit of the Corporation to the other has been decided by a Division Bench of this Court in special appeal No. 481 of 1993 wherein this Court considered the matter in great deal and had taken a view that transfer is an incident of service and both in view of Section 26 (2) of the U. P. Sugar Undertaking (Acquisition) Act, 1971 and U. P. State Sugar Corporation Ltd. General Service Rules, 1988, as well as Rule 27 the Corporation was competent to transfer even a workmen from one unit to the other. In B. Varadha Rao v. State of Karnataka and others, AIR 1986 Supreme Court 1955, their Lordships of the Apex Court laid down as follows (Paragraph 4 of the said AIR): " (4 ). . . . We agree with the view expressed by the learned Judges that transfer is always understood and construed as an incident of service. The words `or other conditions of service' in juxtaposition to the preceding words `denies or varies to his disadvantage his pay, allowances, pension' in Rule 19 (1) (a) must be construed ejusdem generis. Any alteration in the conditions of service must result in prejudice to the Government Servant and some disadvantage touching of his pay, allowances, pension, seniority, promotion, leave etc. It is well understood that transfer of a Government Servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service to his disadvantage. That a Government Servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government Servant can claim to remain in a particular place of in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. . . . " In Mrs. Shilpi Bose and others v. State of Bihar and others, AIR 1991 Supreme Court 532, their Lordships of the Supreme Court laid down as follows (Paragraph 4 of the said AIR): " (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 the 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. "
(3.) IN Union of INdia and another v. N. P. Thomas, AIR 1993 Supreme Court 1605, their Lordships of the Supreme Court laid down as follows (Paragraph 8 of the said AIR): " (8) IN the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory Rule or that the transfer order suffers on the ground of mala fide. The submissions of the respondent that some of his juniors are retained by Kerala Circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has no vested right to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that Circle even on promotion. " In Union of India and others v. S. L. Abbas, AIR 1993 Supreme Court 2444, their Lordships of the Supreme Court laid down as follows (Paragraphs 7 and 8 of the said AIR): " (7) Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere 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,1950 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 sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (Competent Authority ). ";