- (1.) THE respondent No. 2 herein, who has been serving as a Chowkidar in Military at Dehradun (Central Command) right 1'rom September 2,1991, successfully assailed an order of his trans fer passed on 16- 11-1995. transferring him from Dehradun to Lansdown before the Central Administrative Tribunal, Al lahabad Bench. THE petitioner has come up before this Court assailing the validity of the Order dated 24-9-1997 passed by the CAT appending its copy as Annexure-7.
(2.) WHILE admitting this writ petition on 10-3-1998, the Division Bench had passed the following order: "heard Sri Sdtish Chaturvedi for the petitioner and Sri K. R Singh for the respon dents. Admit Issue notice. Operation of the impugned order dated 24-9-97 passed by respondent No. 1 in Original Application No. 1101 of 1996 shall remain stayed until further orders of this Court. tearing of the writ petition is expedited. " We find on record an application filed by respondent No. 2 for vacating the order of stay for the reasons mentioned in the counter-affidavit which was listed once on 6-6-9. 8 and thereafter it remained on disposed of. Now this writ petition has been listed before us. Firstly the facts. 4. 1. The order of transfer of respon dent No. 2 passed on 16-11 -1995 has been appended as Annexure- 1. Its perusal shows that he was transferred from Deh radun C. W. E. No. 1 to AGE. (1) Lansdown C. W. E. No. II Dehradun on ac count of administrative requirement at the expense of the State, which has approval of the appropriate authority of the Head Quarters. Annexure-3 is his repre sentation dated 16- 3-1996. From a perusal of this document, it appears that he al leged that his posting order was issued suddenly probably under some misunderstanding or some wrong infor mation and thus requires immediate review. A comment was called for and sub-milted on 8-4-1996 videanncxurc-4 slat ing that his posting has been ordered by higher authorities and his movement has not taken place as he is on sick leave, respondent No. 2 made yet another repre sentation dated 19-7-1996. Again a com ment was called for. Again a comment was submitted copy of which is Annexure-5. Thereafter yet another order for transfer was passed on July 18, 1996 (copy ap pended as Annexure 2), in substance reiterating earlier posting, respondent No. 2 moved the CAT assailing the Order dated 16-11-1995 (Annexure-1) and the consequential Movement Order dated 18-7-1996. He alleged to this effect, inter alia, that although the order was purportedly issued on administrative ground, no such ground is known to the office in which he is working and thus it is arbitrary, uncalled for and liable to be set aside. 4. 2. Annexure-CA. 2 shows that by order dated 18-10-1996 the CATditected to maintain status-quo 4. 3. A counter-affidavit was filed by the petitioner before the CAT staling, inter alia, therein that he was transferred purely on administrative grounds because his stay in the office of the Garrison Engineer was not in the public interest that he was creating administrative problems and in discipline amongst other employees : that the competent authority had passed order of transfer after reviewing the situation prevailing in the office: that he was served with the Movement Order and even then he did not join his place of posting: that he had been transferred with in zone without mala fide intention and on administra tive ground: that he has failed to make out any case; that on 27-1 -1995 he had abused and manhandled Sri C. P. Bhatt, Senior Auditor of AAO-GE Dehradun and on complaint matter was investigated and he was held responsible and found guilty ; that as laid down by the Hon'ble Supreme Court in Bose v. State of Bihar,1992 SCC I (Lands) 127, even if transfer order was passed in violation of executive in structions, the Court ordinarily should not interfere with the order ; that the aforesaid order was not passed on the ad vice of Sri S. S. Mishra as alleged by him ; and that the petition deserves to be dis missed. 4. 4. respondent No. 2 filed rejoinder stating, inter alia, that in the investigating report the dispute with Sri Bhatt was pure ly personal in which both had abused each other and in the absence of evidence of the witnesses, it could not be decided. This report has been attended as Annexure-C. A. 1.
(3.) EVEN though the learned Additional Member, CAT noted that transfer is an incidence of service yet he proceeded to quash the order of transfer on the ground that from the counter-affidavit it appears that it was passed on the ground that he was creating indiscipline amongst employees and administrative problems and the incident of misconduct with Sri Bhatt in the investigation has been found that both had abused each other and as there was no evidence, no decision could be arrived at as stated in the rejoinder-af fidavit which was not controverted by the respondents. EVEN assuming that he was guilty of misconduct, the proper course was to proceed departmentally. The learned Member also noted that the office in which he was working was not aware of the reasons for his transfer on administra tive grounds. Sri Satish Chaturvedi, learned Counsel appearing in support of the writ petition, contended that no other reason of transfer of respondent No. 2 was not correctly mentioned in the order except that he was being transferred on ad ministrative grounds. The transfer being an incidence of service, the respondent No. 2 had no right to stay at Dehradun for more than normal period of three years, whereas he had remained there by then for about five years. On the investigating report Respondent 2 had used abusive words to Mr. Bhatt. Non-awareness of the office of the reasons of transfer by the higher authority was no ground to record a finding against the order of transfer passed by the competent higher authority and this was completely lost sight of the CAT. There was neither any case nor was any material on the record that the transfer order was passed at instance of Mr. Bhatt or on the advice of Sri S. S. Mishra as al leged in his application before the CAT by respondent No. 2 nor such a finding has been recorded by the CAT The finding that the proper course was to proceed departmentally and thus the transfer was punitive was not correct. In any view of the matter, the CAT which should not have exercised its discretionary jurisdiction Accordingly, the impugned order of the CAT be set aside.;