• Transfer of public servant

I am group A officer (Deputy Director) under Govt of India. Recently on [deleted] 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 [deleted] 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 9 years ago in Constitutional Law

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2 Answers

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
94692 Answers
7527 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
1642 Answers
212 Consultations

5.0 on 5.0

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