Manjula Das, J. (Chairman)

1. As all these three OAs filed under Section 19 of the Administrative Tribunals Act, 1985 by the respective applicants, are inter-connected challenging the transfers of the applicants therein, who are DANICS officers, amongst various UT segments, they were heard together and are being disposed of by this common order, with the consent of learned counsel for the parties. However, for the sake of convenience, the facts are primarily taken from OA No. 2978/2021.

2. The applicants are aggrieved inasmuch as they are stated to have been transferred to extremely hard stations second time, in violation of the transfer policy dated 29.11.2016 (Annexure A-3), vide impugned orders dated 10.11.2021 (Annexure A-1) and 09.12.2021 (Annexure A-2). It is stated that the appointment to DANICS is governed by National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Services) Rules, 2003, as amended in 2009 [hereinafter referred to as DANICS Rules]. Rule 7(2)(a) of the Rules ibid envisages that 50% of the posts in the entry grade shall be filled up by direct recruitment and remaining 50% by promotion. It is stated that for each Union Territory [hereinafter referred to as UT], specific number of posts have been sanctioned to run the administration. It is averred that insofar as Lakshadweep is concerned, total 14 posts have been sanctioned, out of which only 1 sanctioned duty post is of Junior Administrative Grade [hereinafter referred to as JAG], and remaining 13 posts are of Entry/Selection Grade. However, any addition/alteration to the duty posts can be carried out by the Government under Rule 4(2) of the aforesaid rules. It is stated that all the aforesaid posts were filled up by issuing transfer orders as per the revised transfer/posting guidelines circulated vide letter dated 29.11.2016, which also makes it clear that in order to ensure transfer/posting to outlying segments in uniform manner, the respondent nos. 1 & 2 are required to prepare a common seniority list (grade-wise) of DANICS officers by taking into consideration the earlier postings, if any, to outlying segments. It is further submitted that as per para 2(i) of the transfer policy, direct recruit officers are required to serve in the outlying segments in two spells during their service as Entry Grade/Selection Grade, JAG-I & JAG-II, before their induction to IAS.

3. It is the case of the applicants that applicant nos. 2 to 5, who joined service at different points of time, have been subjected to transfer to outlying segments in accordance with the transfer policy. The transfer details of applicant nos. 2 to 4 are given as under:-

4. It is stated that all the applicants have completed their tenure in outlying segments and now they can be transferred to outlying segments only after completion of requisite tenure as per the station seniority. It is further stated that DANICS officers can be posted to outlying segments for 2nd time only as JAG-I+JAG-II taking into account their station seniority in the aforesaid Grades.

5. It is the case of the applicants that as per transfer policy, the respondents were required to transfer promotee officers also, however, they did not even fill up the prescribed 50% quota by making promotions timely, and at the same time allowed the said promotees to occupy the DANICS posts in Delhi, whereas the direct recruits like the applicants herein have been subjected to transfers to outlying segments frequently.

6. It is stated that when the respondents in 2012 under the garb of Rule 4(2) of the Rules ibid tried to attempt transfer Entry Grade/Selection Grade officers, the same was quashed by the Hon'ble High Court of Delhi vide its common decision dated 23.08.2013 in the case of Raj Kumar Jha & Ors vs. Union of India & Ors holding that a corresponding/equivalent duty post of the level of an officer who has been transferred must exist at the place of transfer. It is further submitted that in the aforesaid case, the applicants were JAG-I/II and there was no post in the said grade at the transferred place, therefore, the Hon'ble High Court quashed the said transfer order. It is stated that in accordance with the aforesaid decision, the respondents were required to ensure that the transfer orders are issued strictly as per the transfer policy dated 29.11.2016 but that was not followed by the respondents. Aggrieved by the transfer on 'pick and choose' basis, the very transfer policy was challenged before this Tribunal in OA No. 1373/2015. This Tribunal noticing glaring illegalities and favouritism in transfer of DANICS officers, vide order dated 29.05.2015, quashed the impugned transfer policy, in compliance whereof new transfer policy dated 29.11.2016, as referred to above, was formulated and notified, to ensure that there is no discrimination or favoritism in the matter of transfer of DANICS officers to outlying segments. It is further submitted that in the transfer policy now formulated, it is clearly provided that there shall be a common seniority list (grade-wise) and the officer will normally be posted to outlying segments on the basis of seniority keeping in view their earlier postings.

7. It is the case of the applicants that respondents have not followed the aforesaid policy while issuing impugned transfer orders dated 10.11.2021 and 09.12.2021 transferring the applicants. It is alleged that the applicants have been transferred on 'pick and choose', violating the statutory rules of 2003/2009 and transfer policy dated 29.11.2016. Vide the impugned transfer order dated 10.11.2021, three applicants, namely, Sandeep Kumar Mishra, Sravan Bagaria and Shailendra Singh Parihar have been transferred to Lakshadweep, allegedly without considering that the said officers are in JAG, and there is only one post of JAG-II/I in Lakshadweep, which has already been occupied by the officer of the level of JAG. Moreover, the remaining posts in Lakshadweep are of Entry/Selection Grade and officers of the same level are required to be transferred to hold the said post and not the applicants, who are of JAG level officers. Therefore, the action of the respondents in transferring JAG officers to Lakshadweep without there being any post of the level of JAG-I/II is stated to be violative of the Rules. In support of this contention, learned counsel for the applicants has relied upon the decision of the Hon'ble Supreme Court in the case of Rama Dhar Pandey Vs. State of UP & Ors. [1003 Supp (3) SCC 35] wherein it has been held that an officer cannot be transferred against a post of lower level. The applicants further submit that the impugned transfer order is also violative of the transfer policy, as number of senior officers have been permitted to stay in Delhi for a longer period vis-à-vis the applicants.

8. The applicants further stated that in an identical case of Vivek Aggarwal vs. Union of India & Ors. [OA No. 404/2021 decided by this Tribunal on 08.07.2021], the respondents, in their reply, had given details of DANICS officers, who have undergone outlying postings, and on the basis of the said reply, it is clear that none of the four applicants, as mentioned above, are due for outlying posting, whereas there are 20 more senior officers who are due for outlying posting. It is the case of the applicants that the officers with longest stay have been allowed to continue at the same place of posting, whereas the officers with lesser stay in Delhi have been subjected to frequent outlying segment transfers. It is further submitted that there is no requirement of aforesaid four applicants at the transferred place whereas their services are more required in Delhi due to shortage of officers. It is stated that once the ratio of total sanctioned posts at particular station and active strength is taken into consideration, it would be clear that in Delhi only 40% duty posts are filled up whereas DANICS officers posted in outlying segments are in excess of the sanctioned strength. It is accordingly stated that the impugned transfer order transferring the applicants to the outlying segments is violative of transfer policy, Rules on the subject as also judicial pronouncements. Hence, the applicants have filed the present OA seeking to quash the transfer orders dated 10.11.2021 and 09.12.2021 respectively.

9. The respondents have filed their counter affidavit stating that officers of the Service are posted in outlying UT segments as per the revised guidelines for transfer/posting policy for DANICS/DANIPS issued on 29.11.2016. It is stated that the officers, who are allocated DANICS cadre are fully aware about the service conditions, and they are required to serve in all the segments manned by DANICS cadre. The UT segments other than Delhi are called outlying segments. It is further stated that as per DANICS Rules, 50% of the Entry Grade posts are filled up through induction/promotion from feeder cadres, and 50% by direct recruitment through UPSC. It is further stated that the applicants are directly recruited and applicant nos. 2 to 5 were transferred from Delhi to UT of Lakshadweep, vide order dated 10.11.2021. The respondents have given the total number of identified posts and number of officers presently posted in each UT segment, which are extracted in the following table:-

10. The respondents further submitted that the transfer and posting of officers are generally made as per the provision of the transfer policy, para 2 (vi) of which categorizes the Union Territories as under:-

"Delhi, Daman & Diu and Dadra & Nagar Haveli will be considered as soft areas, while Andaman & Nicobar and Lakshadweep shall be considered as hard areas."

11. It is further stated that the transfer policy may not be read in isolation with respect to a single provision but should be read in totality. It is the case of the respondents that the impugned transfer order has been issued owing to functional requirements and administrative exigencies in the UT of Lakshadweep, which required the transfer of senior DANICS officers, who had prior experience of working in the outlying segments, which has arisen in view of developmental programmes/schemes/projects being implemented in the UT of Lakshadweep. Hence, the transfer of the applicants is stated to be purely on administrative grounds and in compliance of the transfer/posting guidelines and without any mala fide intention.

12. Sh. Vikramjit Banerjee, Learned ASG assisted by Sh. R.K. Jain, SCGSC, appearing on behalf of the respondents argued that no government servant or employee of a public undertaking has any legal right to be posted forever at any particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service, necessary too in public interest and efficiency in the public administration. The learned ASG also argued that a government servant holding a transferable post has no vested right to remain posted at a particular place, and he is liable to be transferred from one place to another.

13. The learned ASG further argued that the transfer policy may not be read in isolation with respect to a single provision but should be read in totality. Particular emphasis is laid on para 2(xv) of the transfer policy of 2016, which reads as under:-

"Notwithstanding anything contained in the policy, Ministry of Home Affairs has the absolute right, if necessary, to transfer or post any officer to any constituent at any time on administrative grounds/in public interest."

[emphasis added)

14. In support of his contentions, the learned ASG relied upon the following judgments of the Hon'ble Apex Court:-

i) Shilpi Bose (Mrs.) & Ors. vs. State of Bihar & Ors.  1991 (2) SCC 659];

ii) Union of India & Others vs. S.L. Abbas  : 1993 (4) SCC 357];

iii) State Bank of India Vs. Anjan Sanyal & Ors : 2001 (5) SCC 508];

iv) National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Anr.  : 2001 (8) SCC 574];

v) State of UP & Ors. vs. Gobardhan Lal  : 2004 (11) SCC 402]; and

vi) Rajendra Singh vs. State of U.O.I. [2010 (1) SCC (L&S) 503].

15. The applicants have filed their rejoinder denying the contention of the respondents and reiterating the averments made in the OA.

16. We have heard Mr. M.K. Bhardwaj, learned counsel for the applicants and Mr. Vikaramjit Banerjee, learned ASG assisted by Mr. R.K. Jain, Senior Central Government Standing Counsel; Sh. Amit Anand and Sh. Amit Yadav, learned counsel for the respondents, and carefully gone through the pleadings on record as also the judicial pronouncements relied upon by the parties.

17. It is seen that DANICS consists of four grades, viz., JAG-I, JAG-II, Selection Grade and Entry Grade. The Ministry of Home Affairs, who is the Cadre Controlling Authority for the Service, has issued the Revised Guidelines for transfer/posting of DANICS/DANIPS Officers vide order dated 29.11.2016. The salient features of these guidelines are as under:-

"i) The tenure of the DANICS/DANIPS in the "outlying segments' will be as follows:-

"Direct recruit officers are required to serve in the outlying segments in two spells - the first spell will be of minimum two years in Andaman and Nicobar/Lakshadweep or minimum three years and Daman & Diu/Dadra Nagar Haveli and the second spell will of minimum three years in Daman & Diu/Dadra & Nagar Haveli or minimum two years in Andaman and Nicobar/Lakshadweep.

Promotee DANICS/DANIPS officers will have to serve in one of the outlying segments for a minimum 2 years in Andaman and Nicobar/Lakshadweep or minimum 3 years in Daman & Diu/Dadar and Nagar Haveli.

However, the number of stints and duration in outlying segments may very subject to availability of suitable officers.

Provided that if an officer, posted in outlying segments is transferred to Delhi on his/her own request or otherwise and he/she have not completed his/her minimum required tenure, he may be posted again in any outlying segments to complete his remaining period of that tenure."

xxx xxx xxx

(iii) The transfer and postings of DANICS/DANIPS officer would be decided with the approval of the Joint Secretary (UT), MHA.

(iv) There shall be a common seniority list (grade-wise). Officers, normally, will be posted to the outlying segments on the basis of seniority; however, their earlier posting shall be taken into account.

xxx xxx xxx

(vii) Primary consideration for inter-constituent transfer would be to ensure availability of the officers in outlying constituents in adequate numbers.

xxx xxx xxx

(xiv) Transfer orders once issued after due consideration will be strictly enforced. Disciplinary action may be initiated against those officers who bring extraneous pressures for cancellation of the transfer orders. Moreover, in each case, a record shall be kept in the ACR dossier of the officer concerned to this effect.

(xv) Notwithstanding anything contained in the policy, Ministry of Home Affairs has absolute right, if necessary, to transfer or post any officer to any constituent at any time on administrative grounds/in public interest."

[Emphasis added]

18. It is clear from clause (xv) of the above guidelines that the Ministry of Home Affairs has the absolute right, if necessary, to transfer or post any officer to any constituent at any time on administrative grounds/in public interest. Moreover, it is also the settled proposition of law that a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to the court to ventilate his grievances. It is his duty to first report at the place where he is transferred and then to make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation has been seriously viewed by the Hon'ble Supreme Court in the case of S.C. Saxena vs. Union of India : 2006 SCC (L&S) 1890].

19. In this regard, the learned ASG placed particular reliance on the decision of the Hon'ble Supreme Court in S.L. Abbas (supra), wherein it is observed as under:-

"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in 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."
After taking into consideration the earlier judgment of the Apex Court in Bank of India Vs. Jagjit Singh Mehta  1992 (1) SCC 306] and noting that executive instructions/guidelines issued by the Government in this behalf do not have any statutory force, Their Lordships held as under:-

"9. Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta : [1992] 1 S.C.C. 306 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:

"There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the 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 requires the two spouses to he 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."

(emphasis added)

10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefore. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterized as mala fide for that reason. To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions."

20. This Tribunal, in an identical batch of matters titled Sanjeev Ahuja vs. Union of India & Ors [OA No. 2732/2016 & batch decided on 05.10.2016] dealt with similar issue, and held that the transfer orders have been issued in true spirit of the transfer guidelines, the aforesaid OAs were dismissed finding no merit. While coming to this conclusion, the Tribunal placed reliance on various precedents of the Hon'ble Supreme Court, including that of S.L. Abbas (supra) and S.C. Saxena (supra).

21. Learned counsel for the applicants has mainly raised the following points - that the applicants have completed their tenure in outlying segments and now they can be transferred to outlying segments only after completion of requisite tenure as per their station seniority; that DANICS officers can be posted to outlying segments for second time only as JAG-I/II taking into account their station seniority in the aforesaid grades; corresponding/equivalent duty post of the level of an officer, who has been transferred, must exist at the place of transfer; that the respondents have not followed the transfer policy in true spirit while issuing the impugned transfer orders; and no reason for issuing the transfer orders has been given.

22. Insofar as the above contentions of the learned counsel for the applicants are concerned, it is the settled proposition of law that a government servant cannot disobey the transfer order by not reporting at the place of posting and then go to the court to ventilate his grievances. It is his duty to first report for work where he is transferred and to make a representation subsequently as to what may be his personal problems, which has admittedly not been done in the instant case. Moreover, no government servant has any legal right to be posted at any particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service, necessary too in public interest and efficiency in the public administration.

23. It is true that the transfer policy is required to keep in mind the guidelines/instructions issued by the Government on the subject, but such instructions/guidelines having no statutory force are not compulsorily binding on the authority as it is the authority, who, after taking into consideration the administrative exigencies of service, has to decide 'who should be transferred where'. This view has consistently been held by the courts. It is also provided in para (xv) of the transfer policy of 2016 that notwithstanding anything contained in the policy, Ministry of Home Affairs has absolute right, if necessary, to transfer or post any officer to any constituent at any time on administrative grounds/in public interest. Therefore, it cannot be said that the applicants have been arbitrarily picked up for transfer to outlying segments.

24. Insofar as the contention of the applicants regarding continuance of senior offices in Delhi for a longer period vis-à-vis the applicants is concerned, the need for transfer of applicants arose as they admittedly have had prior experience of outlying segments and also in view of developmental programmes/schemes/projects being implemented in the UT of Lakshadweep. Hence, the transfer of the applicants can be said to be purely on administrative grounds, keeping in view the transfer policy, which needs no interference from this Tribunal.

25. Insofar as the contention regarding there being no reason for transfer is concerned, we are of the view that it is not necessary to give reason in the transfer order itself. However, on query from the Tribunal, Ld. ASG has informed us that the transfer order was issued in exigencies of service/public interest. Learned ASG has also placed on record a communication bearing F. No. 12/02/2021-Services dated 18.04.2022 from Director (Services), Government of India, Lakshadweep Administration, Kavaratti Island addressed to the Under Secretary (UTS-II), Ministry of Home Affairs, New Delhi, which reveals that as many as five posts have been held on additional charge basis due to acute shortage of officers in the UTL Administration, which necessitated transfer of DANICS officers for smooth functioning of the UTL Administration, as three JAG officers posted there have been transferred to other segments. Scan of the aforesaid communication is pasted hereunder:-

From the aforesaid communication produced by the respondents, it is amply clear that the transfer of the applicants has been necessitated on account of the developments noted therein, and the transfer cannot be termed as one without reason.

26. In view of the above discussion, we find no merit in these OAs and the same are accordingly dismissed. All the interim orders passed in these OAs stand vacated. Pending MAs, if any, are also disposed of.

27. There shall be no order as to costs.