ORDER
A.V. Haridasan, Vice Chairman
1. The applicant an officer of the TES Group B officiating as Assistant General Manager (Administration) in the office of the General Manager, Telecommunications, Kerala Circle, Kannur has filed this application under Section 19 of the Administrative Tribunals Act challenging the validity of the impugned order Annexure A1 dated 27.9.2006 by which he was transferred from Kerala Telecom Circle to North East Telecom Circle with immediate effect.
2. The material allegations in the application can be briefly stated as follows.
3. The applicant who commenced his service as a telephone Operator in the year 1964 on account of his hard work and merit and passing competitive examinations climbed the ladders and reached the present position. As Assistant General Manager (Administration) the applicant has been dealing with transfers and postings of the staff under the Kannur SSA. The 4th respondent the Minister of State for Communications had recommended transfers of various staff in the SSA out of turn basis which the applicant had to turn down on many occasions. During February-March, the Genera! Manager, Kannur was addressed by the office of the Chief General Manager, Kerala Circle, Trivandrum enclosing a copy of D.O. letter from the Private Secretary to the Hon’ble Minister for Law, Justice and Company Affairs regarding regularisation of Shri Padmanabhan, a casual mazdoor on which no favourable action could be taken by the applicant. While so quite contrary to the practice a communication was received from the Deputy Director General (Personnel) of the 1st respondent to the Chief General Manager Telecom. Kerala (A2) dated 14.9.2000 calling for the details regarding tenure of posting of one Shri S.S. Thampi, DGM(A) and the applicant AGM(A) Kannur with the direction to furnish the requisite information by fax immediately to avoid adverse comments. A note of the PS to the 4th respondent calling for the details of the tenure of applicant and Shri Thampi as desired by the 4th respondent was attached with this communication. The above information was immediately furnished. Shri B. Sharma, Deputy Director (Personnel) in the office of the 1st respondent on 13.9.2000 wrote a D.O. letter to the Chief General Manager, Kerala Circle, Trivandrum enclosing a copy of a letter dated 3.6.2000 of Shri C.K. Padmanabhan, BJP leader Kerala addressed to the 4th respondent regarding transfer of one Smt. Preetha, TOA(G) from Manjeswar to Thaliparamba (Annexure-A3(a). In this letter Shri Padmanabhan had stated that “Smt. Preetha is an interested person of our party” and had requested to do the needful. A copy of the letter is Annexure-A3(b), On the basis of this letter the Chief General Manager wrote Annexure A3 letter to the Deputy General Manager (Administration), Telecom District Kannur requesting that a report after exploring the feasibility should be submitted at the earliest. As the applicant was incharge of the transfers by Annexure-A4 letter dated 26.9.2000 he replied stating that it was not possible to accede to the request of Smt. Preetha for transfer to Thaliparamba for the time being for want of vacancy and as number of seniors of the applicant who had requested for transfer to Thaliparamba were waiting. The very next day the impugned order Annexure-A1 transferring the applicant From Kerala Circle to North East Circle was issued. The applicant is neither the seniormost nor the juniormost among the officials of hisgrade and when there are many officials senior and junior the applicant who had never worked outside Kerala Circle like Shri K. Radhakrishnan Nair., AGM(PR) and Shri K.M. Sankaran DET, Kanhanbgad, the applicant who had already worked outside Kerala for nine years has been picked up for a transfer to North East in the midst of the academic year ignoring all norms regarding transfers. This action of the respondents in picking up the applicant in an extreme arbitrary fashion for transfer was vitiated by malafides on account of the illwill in the minds of the 4th respondent and owing to political influence. The applicant therefore prays that the impugned order may be set aside and the respondents be directed to allow the applicant to continue in Kerala Circle as the transfer during the midst of the academic session would put to the applicant who have three daughters studying in schools and colleges.
4. On behalf of respondents 1 to 3 a reply statement was filed by the Deputy General Manager (Administration) in the office of the Principal General Manager, Telecom, Ernakulam. The allegations of malafides are refuted. It is contended that the applicant who is a very senior hand and has the longest stay in Kerala Circle is required to man the North East Circle and the therefore his transfer being in public interest is unexceptionable. It is further contended that while ordering transfers it is not always necessary that the seniormost or the juniormost need be transferred and that the applicant who is holding a post which has got an All India transfer liability has no right to claim that he should be allowed to continue in Kerala Circle. They contend that the application which is devoid of any merit may be dismissed and that a similar application filed by Shri SS Thampi who was also transferred almost at the same time has been dismissed by the Tribunal vide its orders dated 10.10.2000 in O.A. 1063/2000.
5. The 4th respondent has filed a reply statement refuting the allegations of malafides stating that Annexure-A4 dated 26.9.2000 could not have been seen at Delhi while passing Annexure-A1 order dated 27.9.2000 and that he had absolutely no personal interest in the transfer of Smt. Preetha nor had he any malafides against the applicant,
6. In the rejoinder filed by the applicant, the applicant had stated that had the transfer of the applicant been a routine one on completion of tenure it would not have been in the midst of the academic session, that the fact that the 4th respondent had enquired the tenure of posting of the applicant a Group B official itself shows the special interest and malafides and that the stand taken that the service of a senior hand in North East is required is found to be untrue because the Deputy General Manager (Administration) Office of the Chief General Manager, North East Telecom Circle had written to the Assistant Director General BSNL on 16.10.2000 (A14) that there was no vacant post available then in the North East Circle to accommodate Shri Thampi, that from Annexure-A13 D.O. letter or Deputy Director General Addressed to the Hon’ble Minister of Communication from Shri O. Rajagopal, Minister of State of Law Justice and Company Affairs regarding the grievance of Bharatiya Telecom Administrative Employees Union Class III and IV and the Annexures thereto would establish that the union was pressurising for transfer of some officers like Shri SS. Thampi DGM (Administration) out of Kerala Circle and that all these circumstances would show that the transfer of the applicant to North East Circle in the guise of exigencies of service is a camouflage for the punitive transfer of the applicant on account of political reasons.
7. The 4th respondent has filed an additional affidavit in which it is stated that all the averments made against him are unsustainable, that in view of the observations of Apex Court in A. Sanjeevi Naidu v. State of Madras, 1970(1) SCC 443 the respondent as Minister of State for Communications is competent to direct transfer of officers, that the allegations of malafides which are vague and non specific have only to be rejected as has been held by the Apex Court in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. (2001) 1 SCC 182 and State of Punjab v. V.K. Khanna and Ors. (2001) 2 SCC 330=2001(3) SLJ 402 (SC).
8. The file which led to the transfer of the applicant was made available for our perusal by the learned Counsel who appeared for the respondents when the matter was heard on the question of interim relief.
9. We have carefully gone through the pleadings and all the materials brought on record and have heard the arguments of Mr. Shafik MA, learned Counsel of the applicant and Mr. C. Rajendran, learned SCGSC who appeared for all the respondents. The short question that calls for answer in this application is whether the transfer of the applicant has been made in the exigencies of service bonafide or whether it is vitiated by malafides and arbitrariness.
10. Mr. Shafik, learned Counsel of the applicant vehemently argued that the fact that the 4th respondent desired to know the tenure posting of only two officers namely one SS Thampi and the applicant while the 4th respondent being the Minister and not the cadre controlling authority of the applicant, that the impugned order of transfer was issued the very next day when in reply to the A3 letter the applicant stated that it was not possible to accede to the request of Smt. Preetha, TOA for transfer to Thaliparamba in preference to her seniors waiting for such transfer, that the applicant is neither the seniormost nor the juniormost for being identified for transfer to North East, that officers who had never worked outside Kerala were spread and that there was no real requirement in North East of senior officials as is seen from Annexure-A 14 would expose the hollowness of the case of the respondents that the transfer of the applicant during the midst of the academic session was on account of administrative exigencies and make it evident that the order is vitiated by malafides and arbitrariness. Shri Shafik inviting our attention to the averments in Ground B of the application that many persons senior to the applicant having longer stay in Kerala State who have never been posted out of Kerala Circle and that the applicant has been chosen for transfer without any criteria is arbitrary and motivated by political considerations and to the affidavit filed in reply wherein this case of the applicant has not been specifically countered and argued that total arbitrariness and bias is established beyond any doubt. If service of senior official was required in North East Circle why persons who are more senior, more experienced and had never had an opportunity to serve anywhere outside Kerala Circle were not considered for transfer has not been made clear in the reply statement, argued that learned Counsel. He further invited our attention to Annexure-A14 letter dated 16.10.2000 from the Office of the Chief General Manager, North East Telecom Circle addressed to Assistant Director General, BSNL, New Delhi wherein it has been stated that there was no vacant post to accommodate Shri S.S. Thampi in the North East Circle. Transfer of Shri S.S. Thampi and the applicant were directed by the 4th respondent in one order. Learned Counsel argued that Annexure-A 14 would show that there was no such requirement of manning the North East Circle with senior hands and this would very clearly show that the transfer of the applicant was not made either in public interest or in the exigencies of service or bonafide. The action on the part of the 4th respondent specifically calling for details regarding the postings of the applicant as also Shri Thampi in Kerala Circle according to the learned Counsel was motivated by political considerations at the behest of the Union owing allegiance to the BJP. He invited our attention to the copy of letter addressed to Shri Ram Vilas Paswan, the Hon’ble Minister of Communications by the Circle Secretary of the Bharatiya Telecom Administrative Offices Employees Union Class III and IV. Kerala Telecom Circle (Annexure-A13(2) wherein the Minister was requested to do the needful to transfer Shri S.A. Thomas, G.M. (O) and Shri S.S. Thampi ADM out of the Kerala Circle to ensure harmonious union/ administrative relationship. Although this does not directly relate to the case of the applicant, Counsel argued that the fact that SS Thampi was transferred would show that the orders of transfer of officials was also made at the behest of the unions. If as a matter of fact the transfer of the applicant was because he completed his tenure and his transfer to North East Circle was due such transfer should have been made during the midst of the academic session and that all these aspects put together would clearly establish that the transfer has not been made on administrative grounds bonafide, argued the learned Counsel.
11. Mr. Rajendran, learned SCGSC appearing for all the respondents on the other hand argued that there was nothing wrong in the Minister calling for the details regarding the posting of officials nor is there anything wrong in the Minister directing transfer of officials in public interest. In support of this contention, learned Counsel invited our attention to the observations of the Apex Court in A. Sanjeevi Naidu v. State of Madras and Anr., (supra). Regarding the averment that Private Secretaries of Ministers used to forward letters recommending transfer of officials, regularisation etc. learned Counsel argued that when representations are received it is only natural that the Minister sent them to the respective departments for necessary action and that this does not amount to malafides or would not show that the Minister concerned had any personal interest in the matter. Mr. Rajendran, therefore, argued that the applicant has not been able to establish that the 4th respondent had any illwill against the applicant or motive to transfer the applicant and that therefore the impugned order does not suffer from any vitiating factors.
12. We have no doubt in our mind that the Minister of State for Communication can call for and ascertain the detail regarding postings of officials and that the Minister can give directions in regard to the transaction of business in the department as has been held by the Apex Court in A. Sanjeevi Naidu v. State of Madras and Anr. (supra). However, if the foundation of direction given by the Minister in such matters is really not public interest, and the power has been used to achieve some other objective the action becomes tainted and vitiated. It is evident from Annexure-A11 letter of the Deputy Director General (Personnel) addressed to Chief General Manager, Kerala Circle dated 28.10.99. A12 letter of the Chief General Manager to the Dy. General Manager, Kannur that the Minister of State for Communications had already sought and obtained the service particulars of all SAG, Jag, SGS, ITS and SDE officials in Kerala Circle. Even though these details were available with the Minister, it is seen that by letter dated 21.8.2000 the Private Secretary of the 4th respondent sought the details of postings of Shri SS Thampi, DGM and the applicant particularly. On a comparison of the details furnished in reply to Annexure-A2, with the service particulars of officers available with the Minister it would not have been difficult for the Minister to see that there were officials with longer stay and senior to the applicant in Kerala who had never been posted out of Kerala. However, the applicant has been picked up for transfer to North East while many persons senior to him having more length of service in Kerala Circle had never been transferred out of Kerala Circle were available. Why persons with longer stay in Kerala Circle and senior to the applicant were saved from the transfer is not made explicit in either of the two reply affidavits filed by the 4th respondent or in the reply affidavit filed by the remaining respondents. The case of the respondents 1 to 3 appears to be that for transfer seniority or juniority is not the criteria. What then is the criteria is not made clear in the reply. The method of picking and choosing without any criteria is nothing but arbitrary. From the files produced for our perusal by the learned Counsel for the respondents leading to the order of transfer of the applicant and Mr. S.S. Thampi, it is seen that the 4th respondent directed the transfer of the applicant and Shri Thampi. From the file it is not discernible that the transfer of the applicant was directed because there was death of officials of his level in the North East or that the service of the applicant was considered essential in public interest in the North East circle, The transfer of an officer of the level of the applicant is a routine administrative matter which does not require the direction or approval of the Minister. It not being a policy matter, the argument of the learned Counsel of the applicant that the arbitrary transfer of the applicant not being the seniormost or the juniormost immediately after he had occasion to decline to grant transfer of Smt. Preetha a person in whom according to the letter of BJP leader Shri C.K, Padmanabhan the party is interested is motivated by malafides cannot be brushed aside. While the transfer of the applicant is sought to be justified on the ground that service of senior officer was needed in the North East from Annexure-A14 it is evident that there was no berth for a senior officer to be accommodated in the North East. It is therefore, evident that the 4th respondent directed the transfer of Shri SS Thampi also the applicant without ascertaining whether the North East Circle had vacancies to accommodate these two officers. This shows that the transfer of the applicant was not ordered really because his services were needed in public interest at North East. We are aware of the ruling of the Apex Court in 2001 (1) SCC 182 and 2001(2) SCC 330 wherein it had been held that allegations of malafides should be established by cogent evidence. Since the materials brought on record show that the case of the respondents that transfer of the applicant was essential to meet the requirement of service of North East Circle is not true, that the 4th respondent had directed the transfer or the applicant not being apprised of any immediate requirement in North East Circle, that the applicant is neither the seniormost nor the juniormost in Kerala Circle and that officers with longer stay in Kerala and who had never been posted outside Kerala Circle have been spared without any reasonable explanation even in the additional affidavit, we have no hesitation to conclude that the power vested in the 4th respondent to pass any order concerning the business of the department has been used to transfer the applicant out of Kerala Circle to North East Circle, to see that the applicant is removed from Kerala Circle rather than meeting any exigencies of service. The action from the conclusion stated above is seen to be highly arbitrary, The fourth respondent may not have any personal ill feeling against the applicant who is only a Group B Employee. But it appears that arbitrary choosing of the applicant for transfer was motivated by political considerations rather than public interest. The Tribunal in our view is not only perfectly justified in intervening but is also bound to interfere and do justice.
13. In the result in the light of the forgoing discussions we allow the application in part and set aside the impugned order. There is no order as to costs.