{"id":88837,"date":"1998-08-05T00:00:00","date_gmt":"1998-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-k-johar-vs-videsh-sanchar-nigam-ltd-on-5-august-1998"},"modified":"2015-04-22T06:31:03","modified_gmt":"2015-04-22T01:01:03","slug":"s-k-johar-vs-videsh-sanchar-nigam-ltd-on-5-august-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-k-johar-vs-videsh-sanchar-nigam-ltd-on-5-august-1998","title":{"rendered":"S.K. Johar vs Videsh Sanchar Nigam Ltd. on 5 August, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
S.K. Johar vs Videsh Sanchar Nigam Ltd. on 5 August, 1998<\/div>\n
Equivalent citations: 1998 VAD Delhi 465, 74 (1998) DLT 858<\/div>\n
Author: K Ramamoorthy<\/div>\n
Bench: K Ramamoorthy<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
K. Ramamoorthy, J. <\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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”.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
7.   The learned counsel for the petitioner referred to paras 7(c) and 7(i) which are as under:\n<\/p>\n
     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.\n<\/p>\n
     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.\n<\/p>\n
8.   The  learned  counsel for the petitioner also referred  to  para  8(a) which reads as under:\n<\/p>\n
     8 Maximum Transfers:\n<\/p><\/blockquote>\n
     (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:\n<\/p><\/blockquote>\n
    i) Transfers during training period.\n<\/p><\/blockquote>\n
     ii) Transfers effected based on employees’ own request.\n<\/p><\/blockquote>\n
     iii) Transfers related to deputation.\n<\/p><\/blockquote>\n
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:\n<\/p>\n
     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.\n<\/p>\n
10.  In Shilpi Bose (Mrs.) and others Vs. State of Bihar and others  (1991) 2 Supp. S 659 the Supreme Court had observed:\n<\/p>\n
     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.\n<\/p>\n
     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.\n<\/p>\n
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:\n<\/p>\n
     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.”\n<\/p>\n
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:\n<\/p>\n
    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).\n<\/p>\n
      “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”.\n<\/p>\n
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:\n<\/p>\n
     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.\n<\/p>\n
14.  The Division Bench in order to clarify the position observed:\n<\/p>\n
     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:\n<\/p><\/blockquote>\n
     “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.\n<\/p><\/blockquote>\n
     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”.\n<\/p><\/blockquote>\n
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:\n<\/p>\n
     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
\nunder 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.\n<\/p>\n
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.\n<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court S.K. Johar vs Videsh Sanchar Nigam Ltd. on 5 August, 1998 Equivalent citations: 1998 VAD Delhi 465, 74 (1998) DLT 858 Author: K Ramamoorthy Bench: K Ramamoorthy 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-88837","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nS.K. 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