ORDER
Mukesh Kumar Gupta, Member (J)
1. Validity of transfer and posting order dated 13.09.2006 is challenged in the present application.
2. Factual matrix is that applicant, initially appointed as Section Engineer in the year 1981, is presently working as Sr. Section Engineer (P. Way) Special, Northern Railway, Rohtak. He was transferred and posted as SSE (PW) TRT Rohtak vide DPO letter dated 12.08.2002. After completion of work at Rohtak, he was transferred to Baraut w.e.f. 20.05.2003. From Baraut, he was further transferred to Shamili w.e.f. 01.03.2004. Vide letter dated 10.06.2004, he was transferred back to Rohtak and joined duty on 10.12.2004. He was temporarily deputed to assist Sr. DEN/V and sent back to Rohtak on 18.1.2005. In the year 2004, Respondents decided to recover penal rent of Rs. 7,213/- per month, declaring him to be unauthorized occupant of Government accommodation and, therefore, he filed OA No. 3001/2004 before this Bench, which was allowed vide order dated 22.02.2005. The Railways filed Writ Petition No. 8671/2005 before Hon’ble Delhi High Court, wherein Rule DB was issued on 24.5.2006 and, in the meantime, the respondent (applicant herein) was directed to continue “to be in possession of the quarter occupied by him during his posting at Rohtak”, and to pay normal rent.
3. His grievance is that in order to counter blast aforesaid directions, he along with 8 others was transferred from Rohtak to Jind vide impugned order dated 13.09.2006 without any reason and justification. As per Railway’s own Policy, in the month of March/April they invited options from SSEs and JEs of 3 stations for their choice posting, but no such option was sought from him, as he had not completed 4 years of service at Rohtak, which period is prescribed for transfer in respect of persons holding supervisory posts. 8 other persons transferred were posted to their own choice stations as per their options as they had completed more than 4 years at the same station continuously or on promotion/upgradation. Persons at serial No. 7 & 8 were posted at the same station while person at serial No. 6 was promoted and posted at the same station. First five officials had since completed more than 5 years of continuous posting in a station were accordingly transferred. It is contended that he made a representation to Respondent No. 3 on 30.09.2006 through proper channel, but no action has been taken on the same. He has four children (3 daughters and a son) who are studying in MCA-2nd year, I.T.I., 11th Class (Medical) and 7th class in Central School at Rohtak. There is no Central School and MCA at Jind. Since his transfer has been effected in mid academic session and there being no compelling reasons, the same cannot be sustained in the eyes of law as laid down by the Hon’ble Supreme Court in ATC 1994 (28) 99 : 1994 Suppl (2) SCC 666 Director of Education, Madras v. O. Karuppa Thevan.
4. Shri Yogesh Sharma, learned Counsel for applicant contended that applicant has been posted vice M.L. Meena at Jind, who in turn also made representation against his transfer on the ground of mid academic session and further that he has not been relieved so far. Further reliance was placed on Dr. Ravi Shankar v. Union of India and Ors. 2005 (1) ATJ 104, to contend that non-disclosure of reasons in a transfer order is a fundamental defect and same cannot be supplemented by filing affidavits. The ruling of K.P. Prasad v. Union of India 2004 (3) ATJ 97 was pressed to contend that if authorities failed to show that there have been any administrative exigency in transferring the official or the reason to transfer had been taken in public interest after due application of mind to all relevant aspects, the order is liable to be quashed.
5. Respondents resisted the claim by filing reply affidavit as well as prayed for vacation of interim order passed on 06.10.2006, stating that there is no sanctioned post of SSE/SPL as such he was transferred from Rohtak to Jind on administrative interest as well as for public safety. Applicant is deemed to be spared for his new place of posting and his records have already been transferred to Jind before passing the interim directions. He avoided receiving official communications and knowingly took treatment from a private medical practitioner instead of going to Railway Hospital. His request for retention of Govt. accommodation at the previous place of posting can be considered as per extant rules to avoid inconvenience to family on education and medical grounds. It was contended that he had completed 6 years 7 months and 19 days service at Rohtak station and, therefore, he was liable to be transferred out in any case. As per orders passed by Hon’ble Delhi High Court, he can retain Govt. accommodation during his posting at Rohtak only. He has been transferred against permanent post where no pooled accommodation is provided to the incumbent of the post. Transfer during mid academic session can take effect, as it is in the administrative interest as well as public safety. There was no malafide intention on the part of Respondents. It has been ordered in the administrative interest for smooth running of Railway operations.
6. Applicant filed his rejoinder reiterating his contentions raised vide OA and controverting plea raised by Respondents that he had completed 6 years 7 months and 19 days posting at Rohtak. It was further reiterated that Shri M.L. Meena has still not been relieved and said Shri Meena has also made representation against his transfer in mid academic session. Not only this, vide DRM Office order dated 30.05.2006, option forms were given to other officials, who completed more than 4 years at one post at the same place, which benefit has not been extended to him, without any justification. Moreover, vide order dated 26.10.2006, Respondents allowed him to continue in same capacity at Rohtak till decision in the present proceedings.
7. I have heard learned Counsel for the parties and perused pleadings on record carefully.
8. Shri Saba Rahman, learned Counsel for applicant, at the outset, relied upon 4 judgments, namely order dated 10.08.2004 in Special Appeal No. 939 of 2004 of Hon’ble Allahabad High Court in Prathama Bank and Ors. v. Jaspal Singh to contend that transfer made in exigency of service should not ordinarily be interfered. The mere fact that petitioner’s children are studying, transfer in mid academic session is not a ground for interference. Reliance was also placed on said Court decision reported in 2004 (4) SLR 167 Constable Hirendra Kumar Singh v. State of U.P. and Ors. as well as 2005 (7) SLR 183 Shesh Nath Singh Yadav v. Mukesh Singh on the same aspect. Further reliance was placed on 1982 (1) SLR 278 Ram Pratap v. State of Rajasthan and Ors. to contend that it is not necessary that transfer order should be a speaking order unless the statute so provides. Shri Yogesh Sharma, learned Counsel strenuously urged that said judgments are not applicable and clearly distinguishable in the facts and circumstances of present case and the Tribunal is bound to follow the law as laid down in O. Karuppa Thevan (supra) wherein it has been observed by the Hon’ble Supreme Court that when children are studying in school, transfer should not have been effected during mid academic session.
9. On bestowing my careful consideration to all aspects of case, I observe that Respondents have not denied that their own policy requires calling for options from SSEs/SEs/JEs for their choice posting of 3 stations, which facility had not been extended to applicant. A specific contention raised under para 4.5 to the aforesaid aspect was rather “partly admitted”. The only plea raised had been that there was no sanctioned post of SSE/SPL and the post in question was a safety post. Respondents have also not denied that similar treatment had been accorded to one Shri R.K. Behal, JE by DRM Office, New Delhi on 30.05.2006 (page 49 of the paper book). It is also not in dispute that applicant had been transferred vice Shri M.L. Meena, who has not been relieved so far and has also submitted a representation against his transfer. Applicant contends that he has hardly completed two years of service at Rohtak, as he has been transferred frequently, as noticed hereinabove, though Respondents’ contention is that he had completed a total period of 6 years 7 months and 19 days at same station. There remains some element of doubt & confusion about its calculation. Learned Counsel for applicant makes a statement on instructions from applicant, who is present in Court, that he is not averse to comply with the transfer order if same is kept in abeyance and he is granted time upto 30.04.2006, which would in turn facilitate his children to complete their current academic year. Learned Counsel further contended that applicant had submitted a representation on the above aspect, which remains unconsidered till date. It is not the case of Respondents that said request of applicant had been considered and rejected. The Hon’ble Supreme Court in O. Karuppa Thevan (supra) has observed that when children are studying in schools, transfer should not be effected during mid academic term unless exigencies of service are urgent. In my considered view, said law of the Hon’ble Supreme Court is binding on this Tribunal. Following the same, I find justification in applicant’s contention that Respondents should have first of all allowed him necessary option or in any case should have accepted his representation to defer the transfer order till the academic year comes to an end. As we are already in middle of November 2006 and extension of few months further will not make much difference. In the circumstances, OA is allowed to the limited extent that the impugned transfer order will not be given effect to till 30.04.2007, as applicant is willing to comply with the aforesaid order thereafter. Ordered accordingly. No costs.