• Transfer of public servant

I am group A officer  (Deputy Director) under Govt of India. Recently on 19-01-2015 I applied for transfer from New Delhi to Guwahati giving options for two post.(1) Against one vacant post (2) Against a post for which the incumbent name appeared on the list of longest stayer for staying continuously 10 years at Guwahati published by the department. My request was rejected by the Department on 11-3-2015 and subsequent representation through proper channel was also rejected on 21-4-2015. when I called for records of making such decision through RTI it was revealed from file noting that my request was not considered due to one Assistant Director who was expected to get promoted as Deputy Director was recommended for that post. The file noting does not mention any administrative exigency for declining my request. The officer got promoted on 11-05-2015 after approval of the Ministry and he was posted to my request place (1) stated above. The longest stayee was not touched. Now please provide me legal opinion regarding  the legal validity of the above decision-
(A) whether it was appropriate to reject the genuine request of an already  eligible officer for accommodating another officer who was yet to become eligible for that post before promotion ?
(B) The longest stayee was not removed whereas her counterparts in other parts of country was removed for staying 4/5 years continuously at a single station.
Asked 1 year ago in Constitutional Law from New Delhi, Delhi
1) supreme court has held that An  order  of transfer  is  an  incidence  of Government  servie.   Who should be transferred where  is  a matter for the appropriate authority to decide.	 Unless	 theorder  of  transfer is vitiated by malafides or is  made  in violation   of	statutory  provisions,	the   Court   cannot interfere  with it.  There is no doubt that, while  ordering
the transfer 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 

2) in your case representations made for transfer were rejected .

3) the SC has further held that  The jurisdiction of the Central Administrative Tribunal
is akin to the jurisdiction of the High Court under  Article
226  of the Constitution of India in service matters, as  is
evident	 from  Article	323-A  of  the	Constitution.	 The
constraints  and norms which the High Court  observes  while
exercising  the	 said  jurisdiction  apply  equally  to	 the
Tribunal  created  under Article  323A.	 The  Administrative
Tribunal  is not an Appellate Authority sitting in  judgment
over  the order; of transfer.  It cannot substitute its	 own
judgment  for that of the authority competent  to  transfer.
[430-H,431 -A]
2.2. In	 the instant case, the Tribunal has dearly  exceeded
its jurisdiction in interfering with the order of  transfer.
The  order  of the Tribunal reads as if it were	 sifting  in
appeal	over  the  order  of transfer  made  by	 the  Senior
Administrative Officer (competent authority). [431-B]
Bank  of India v. Jagjit Singh Mehta, [1992] 1	S.C.C.	306,
explained.


4) the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions.

5) as per govt guidelines no Group A officer shall remain in post for more than 5 years . your request for second post should have been considered if another officer in violation of norms remained posted in Guwahati for 10 years or so . 
Ajay Sethi
Advocate, Mumbai
23087 Answers
1212 Consultations
5.0 on 5.0
Hi
The  violation of the guidelines of the government policy regarding the transfers as per the service rules if happened it has to be challenged,
Your option is to file a writ in the High court Delhi to challenge  transfer and the action of the officers concerned .
There is no justification why your request had been turned down and did not even considered.
A)\It was not appropriate to reject the genuine request of an already  eligible officer in order to accommodate other for the reasons stated in the RTI report.
B) the answer to your question that, "The longest stayee was not removed whereas her counterparts in other parts of country was removed for staying 4/5 years continuously at a single station". is not correct according to the policy of the department and guidelines issued  by the Government, so this means , the policies an guidelines have been twisted and rules violated  to bend according to the other employee's request. It is unchallengeable 
Thresiamma G. Mathew
Advocate, Mumbai
1315 Answers
85 Consultations
5.0 on 5.0

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