ORDER
K. Ramamoorthy, J.
1. The petitioner has challenged in this writ petition the transfer order dated 22.08.1998 transferring the petitioner as Sr.Manager Engineering on promotion to a place called Arvi in the state of Maharashtra. The petitioner is now a Senior Manager Engineering. The main ground urged by the petitioner is that the order of transfer is against the Policy of Transfer issued by the respondent on 03.01.1996. Mr. Vipin Sanghi, the learned counsel for the petitioner submitted that as per the transfer policy an officer who had undergone three transfers shall not normally be transferred. If on promotion inspite of three transfers an officer shall not be transferred and if there is a vacancy in the promotion post in the place where he is serving at the time of promotion. The learned counsel for the petitioner Mr. Vipin Sanghi submitted the fact that the petitioner has undergone three transfers is not disputed. While transferring the petitioner on promotion as Senior Manager Engineering, the learned counsel Mr. Vipin Sanghi submitted that the juniors to the petitioner who are also promoted along with the petitioner are retained in Delhi and this act of the respondent is contrary to the transfer policy. The learned counsel for the respondent Mr. Harvinder Singh submitted that the petitioner had worked in the Northern Region for more than 23 years, he was promoted as Senior Manager and as per his request he was given about a year time to go to the transferred place and therefore, as Senior Manager Engineering, he was transferred to Arvi w.e.f. 01.04.1998. The petitioner made representation on 10.02.1998 for being retained in Delhi. The learned counsel for the respondent Mr. Harvinder Singh submitted that for the first time having regard to the exigencies of service and for giving sufficient experience to the officer, the petitioner was transferred to Arvi station. The respondent had acted in accordance with the Transfer Policy. The learned counsel Mr. Harvinder Singh relied upon the judgement of the Supreme Court and submitted that the petitioner cannot seek to enforce the transfer policy, which had been issued just for the purpose of guidance and it is not enforceable. The learned counsel Mr. Harvinder Singh referred to Union of India & others Vs. H.N. Kirtania , Shilpi Bose (Mrs.) and others Vs. State of Bihar and ors. 1991 Supp (2) S 659 and Union of India & Ors. Vs. S.L. Abbas . The learned counsel for the respondent also referred to the judgment of Division Bench of this court reported in Union of India and another Vs. Col. D.B. Bhide 1997 LAB. I.C. 2838. The learned counsel also relied upon the of Gujarat High Court reported in Jayantilal Purshottamdas Panchat Vs. Commissioner of Motor Transport 1997 LLR 918.
2. The learned counsel for the petitioner Mr. Vipin Sanghi submitted that the petitioner is an officer in the Union of Officers and it is because of that the respondent had transferred the petitioner out of Delhi retaining in Delhi the juniors who are also promoted along with him.
3. The learned counsel for the respondent Mr. Harvinder Singh submitted that no doubt juniors are retained in Delhi but all those juniors have served in Delhi and the Northern Region in less number of years than the petitioner. According to the learned counsel for the respondent in the interests of administration taking into account the period of service of the officers, the transfer of the petitioner was ordered.
4. Mr. Vipin Sanghi, the learned counsel for the petitioner referred to the Transfer Policy wherein it is stated ” a need was therefore felt to evolve a transfer policy in VSNI, taking into account the present work, culture, so that the same could be uniformly applied while effecting transfers in various cadres.” According to Mr. Vipin Sanghi, the learned counsel for the petitioner, the Transfer Policy approved by the competent authority. Referring to page 20 in the typed set Mr. Vipin Sanghi, the learned counsel submitted that the transfer policy ” is aimed at bringing about uniformity in decision making career planning of employees, and for meeting the overall objectives of the Organisation and individual employees”.
5. The learned counsel referred to clause 4(b) at page 21 of the typed set where it is stated that “the transfer of an employee should result in an average of 3 transers during the service period, except the transfers made on request.” Mr. Vipin Sanghi the learned counsel also referred to para 5 at page 21 of the typed set that one of the points to be taken into consideration while processing the cases of transfer is an occasion of transfers undergone during the employee’s tenure in service as on date, whether it is own request, interest of service, on promotion/up gradation or with any other reason to be stipulated with details. According to the learned counsel the respondent has not considered this point.
6. Referring to page 24, the learned counsel referred to “justifications to be given while putting up the transfer cases, whether the organisation’s interest will be affected due to his transfer or his transfer will affect the day-to-day working of the particular system for which he is working/trained at the Region/Union.
7. The learned counsel for the petitioner referred to paras 7(c) and 7(i) which are as under:
7(c) – The employees in the Engineering and other cadres should not have continuous stay in one Region/Union for more than 10 years. However, their transfers would be effected based on requirement in various Regions and need-based.
7(i) If the transfer is unavoidable on promotion or otherwise due to exigencies of service, an employee with longer stay at the station and who had minimum number of transfers will be considered first for such transfers.
8. The learned counsel for the petitioner also referred to para 8(a) which reads as under:
8 Maximum Transfers:
(a) An employee who has earlier undergone 3 transfers will not be disturbed on account of 10 years rule stated as above. However, he could be transferred on account of promotion if the vacancy does not exist at the same place or if it is tied with the training. For the purpose of arriving at number of transfers an employee has undergone, following shall not be counted:
i) Transfers during training period.
ii) Transfers effected based on employees’ own request.
iii) Transfers related to deputation.
9. Having regard to the facts and circumstances of the case, I am of the view that the petitioner had been transferred by the respondent to Arvi for administrative reasons and he had also worked in the Northern Regions for a long number of years. In Union of India and others Vs. H.N. Kirtania (1989)3 S 445 the Supreme Court had an occasion to consider a similar point and the Supreme Court had observed:
After hearing learned counsel for the parties we do not find any valid justification for the High Court for entertaining a writ petition against the order of transfer made against an employee of the Central Government holding transferable post. Further there was no valid justification for issuing injunction order against the Central Government. The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent’s transfer.
10. In Shilpi Bose (Mrs.) and others Vs. State of Bihar and others (1991) 2 Supp. S 659 the Supreme Court had observed:
In our opinion, the courts should not interfere with a transfer order which is 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 overlooked these aspects in interfering with the transfer orders.
11. In Union of India and others Vs. S.L. Abbas (1993) 4 S 357 the Supreme Court laid down that “an order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide.” The Supreme Court held:
Unless the order of transfer is vitiated by mala fides or is made 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.”
12. In the instant case the petitioner being an Engineer officer was transferred to Arvi station and the respondent taking into account all aspects of his career had issued order of transfer. In this case the Supreme Court further observed:
Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India Vs. Jagjit Singh Mehta rendered by a Bench of which one of us (J.S. Verma, J) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein: (S pp. 308-09, para 5: ATC pp. 530-31, para 5).
“There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at he same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other’s posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places …. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees”.
13. The Division Bench of this court in Union of India and another Vs. Col. D.B. Bhide (1997) Lab.I.C. 2838, after considering the judgment of the Supreme Court, observed:
It is not the function or within the jurisdiction of this Court to question the decision on transfers and posting or to evaluate the comparative merits of the officers who could have been posted or considered, which falls exclusively within the domain of the concerned authorities. This is so since transfer and posting is an incidence of service and unless the same is vitiated by mala fides or is on totally extraneous considerations, this Court would not interfere with the transfer or posting made.
14. The Division Bench in order to clarify the position observed:
Reference may also be usefully made to the decision of the Supreme Court in the case N.K. Singh Vs. Union of India, 1994(6)S 98: (1994 AIR SCW 4636). The Apex Court in this case laid down that while challenging the order of transfer on the ground of being prejudicial to public interest, the petitioner claiming so must plead and establish that the transfer was avoidable and that the successor was not suitable. This was a case where the Joint Director, Central Bureau of Investigation, had been posted as Inspector-General of Police in the Border Security Force. The question of posting being prejudicial to public interest does not arise in the present case, however, the following observations of the Apex Court may be usefully noted at page 4645: of AIR SCW:
“23…… Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration.
Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject, limited judicial scrutiny indicated”.
15. In Jayantilal Purshottamdas Panchat Vs. Commissioner of Motor Transport, Gujarat State 1997 LLR 918 the learned Single Judge of the Gujarat High Court had observed:
Every employee has aged and ailing parents and school going children, but transfer being an incident of service an employee who opts for Government service has to face these difficulties. It is for the department concerned to consider all these aspects but not for this Court sitting under Article 226 of the Constitution of India. The Courts have no jurisdiction to interfere with the order of transfer of public servants because it is entirely for the employer to decide when where and at what point of time a public servant is to be transferred from his present place of posting. As held by the apex Court in the case of Union of India Vs. S.L. Abbas (1993) Lab IC 1311) (Supra), this Court can interfere with the order of transfer only when it is vitiated with mala fides and or made in violation of some statutory rules, regulation etc. which is not the case of the petitioner here. The ground that it is midterm transfer in also not of any relevance for this Court under Article 226 of the Constitution. If the petitioner has some personal difficulties at Rajkot may be because of his ailment or the ailment of his mother, the proper court would have been to approach the authorities rather than to file petition before this Court
under Article 226 of the Constitution of India more particularly, when the petitioner has not challenged the order of transfer on the ground of malafides or violation of statutory provisions in making thereof. If such a representation is made, the authority has to consider the same as it comes out from the decision of the apex court in the case of Union of India Vs. S.L. Abbas 1993 Lab IC 1311 (Supra). In the result this writ petition fails and the same is dismissed.
16. Mr. Vipin Sanghi, the learned counsel for the petitioner submitted that the ratio laid down by the Supreme Court would not apply to the instant case that there can be no statutory rule in the respondent organisation because it is a Company though owned by the Government and therefore, according to the learned counsel, there is no question of the petitioner relying upon any statutory rule. According to the learned counsel for the petitioner, having regard to the language of the policy, it is enforceable. As pointed out by the Supreme Court the respondent no doubt is bound to follow the guidelines but the petitioner has failed to make out any case against the respondent that the respondent had violated the policy issued by the respondent itself.
17. I do not find any merit in the writ petition, in the light of the principles laid down by the Supreme Court and the Division Bench of this Court. Accordingly, the writ petition is dismissed. There shall be no order as to costs.