Om Prakash VII, J. (Member (J))

1. The present O.A. has been filed under Section 19 of the AT Act, with the following reliefs:-

a) This Hon'ble Tribunal may be pleased to quash the impugned transfer order dated 1.8.2022 passed by respondent No. 3 and relieving order of applicant No. 2 dated 24.8.2022 passed by respondent No. 4, being arbitrary and against the Transfer Policy 2021.

b) This Hon'ble Tribunal may be pleased to direct the respondents to allow the applicants to work at their present place of posting.

c) This Hon'ble Tribunal may very kindly be pleased to direct the respondents to follow the Transfer Policy 2021 dated 28.1.2022 either transfer the applicant No. 1 along with his spouse i.e. applicant No. 2 to Jawahar Navodaya Vidyalaya, Hapur where vacancies available their and required specialized medical facilities are available for the treatment of applicant No. 1 so that applicants may tide over the extenuating circumstances through which our family is going on.

d) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case may be given in favour of the applicants.

e) Award cost of this application to the applicants.

2. Facts in brief giving rise to the O.A. are that the applicant No. 1 was appointed on the post of Catering Assistant and joined Jawahar Navodaya Vidyalaya, Allahabad on 1.10.1993 and applicant No. 2 was appointed on the post of PET (Female) and joined Jawahar Navodaya Vidyalaya, Allahabad on 26.8.1991. Applicant No. 1 was transferred from Allahabad to Lalitpur on 4.7.1995 where he remained upto 16.7.1999. He was again transferred from Lalitpur to Gautam Budh Nagar on 17.7.1999. where he remained upto 10.7.2000 and on his spouse request, transferred from Gautam Budh Nagar to Jawahar Navodaya Vidyalaya, Bijnor on 11.7.2000 and since then he is posted at Bijnor.

2.1. Applicant No. 2 was transferred from Jawahar Navodaya Vidyalaya, Allahabad to Jawahar Navodaya Vidyalaya, Unnao on 4.7.1995. She was again transferred on 1.9.1998 from Jawahar Navodaya Vidyalaya, Unnao to Jawahar Navodaya Vidyalaya, Bulandsahar. On the ground of spouse posting, applicant No. 2 was transferred from Jawahar Navodaya Vidyalaya, Bulandsahar to Jawahar Navodaya Vidyalaya, Bijnor on 20.7.2000 and since then she is performing her duties at Jawahar Navodaya Vidyalaya, Bijnor.

2.2. Respondents have issued a final transfer list - ATD 2022 20.6.2022, by which so many Catering Assistants and other employees have been transferred and name of applicant No. 1 has been finds place at Sl. No. 36 and he was transferred from Jawahar Navodaya Vidyalaya, Bijnor to Jawahar Navodaya Vidyalaya, Sambhal and name of applicant No. 2 finds place at Sl. No. 69 by which, she was transferred from Jawahar Navodaya Vidyalaya, Bijnor to Jawahar Navodaya Vidyalaya, Deema (Hasao), Assam-Shillong. On 23.6.2022, another order was issued clarifying that the transfer list is provisional. Applicants submitted their representation dated 30.6.2022 and 24.5.2022 to modify or cancel the transfer of the applicants on the ground of old age and disability of spouse. Suddenly, on 1.8.2022, the respondents have issued a fresh transfer order by which applicant No. 1 has been transferred from Jawahar Navodaya Vidyalaya, Bijnor to Jawahar Navodaya Vidyalaya, Sambhal and applicant No. 2 has been transferred from Jawahar Navodaya Vidyalaya, Bijnor to Jawahar Navodaya Vidyalaya, Deema (Hasao), Assam, Shillong. Relieving order dated 24.8.2022 has also been issued by respondent No. 4. Applicants have challenged both the orders in the present O.A.

3. Learned counsel for the respondents has filed short Counter Affidavit, by which it is stated that applicant No. 1 was working in Jawahar Navodaya Vidyalaya, Bijnor w.e.f. 11.7.2000 and applicant No. 2 was working in Jawahar Navodaya Vidyalaya, Bijnor w.e.f. 20.7.2000 and the post of Catering Assistant as well as PET (F) was under "Deemed Vacant Category" in theD 2022, applicants have been transferred. Applicant applied for transfer to JNV, Sambhal in the first round of ATD 2022 under "spouse/single lady" category. He was allotted JNV, Sambhal on his own request. Since his first request was considered, hence he was debarred for 2nd round of ATD 2022, as per provision of transfer policy. Applicant No. 2 had applied for transfer to (i) JNV, Sambhal (ii) JNV, Meerut and (iii) JNV, Bijnor in the first round of ATD 2022. As her first choice of JNV Sambhal was allotted to Smt. Kavita (PET-F), her second choice JNV, Meerut was allotted to Smt. Manju Dubey, PET (F). Her third choice JNV, Bijnor, where the applicant is already working could not be considered.

4. Heard the learned counsel for the parties.

5. Applicant had filed writ petition before the Hon'ble High Court Writ A No. 16822 of 2022, which was decided by the Hon'ble Court vide order dated 18.10.2022, by which Hon'ble High Court observed that there appears to be some substance in the submissions of the learned counsel for the petitioners in view of the facts of the case and transfer policy issued by notification dated 28.1.2022 and quashed the impugned order dated 16.9.2022 passed by this Tribunal and directed the CAT, Allahabad to decide the aforesaid O.A. No. 778 of 2022 very expeditiously, preferably within six weeks from the date of submission of certified copy of this order.

6. Medical certificate dated 9.5.2022 issued by the Chief Medical Officer, Bijnor shows that applicant No. 1 is 70% disabled. Applicant No. 1 applied for transfer to JNV, Sambhal in the first round of ATD 2022 under "spouse/single lady" category and his request was considered and he was allotted JNV, Sambhal. Since first request of applicant No. 1 was considered, hence he was debarred for 2nd round of ATD 2022, as per provision of transfer policy. Applicant No. 2 had applied for transfer to (i) JNV, Sambhal (ii) JNV, Meerut and (iii) JNV, Bijnor in the first round of ATD 2022. As her first choice of JDV Sambhal was allotted to Smt. Kavita (PET-F), her second choice JNV, Meerut was allotted to Smt. Manju Dubey, PET (F) and her third choice JNV, Bijnor, where the applicant is already working could not be considered, hence she has been transferred to Jawahar Navodaya Vidyalaya, Deema (Hasao), Assam-Shillong.

7. Para 4.1(c) of Navodaya Vidyalaya Samiti (Transfer Policy 2021) relates to Administrative Transfer, which is reproduced below:-

"The transfer which is effected by the Samiti suo moto in the exigencies of service and administration as well as in public interest. Through such transfer NVS shall ordinarily:

i) Redeploy surplus staff at a location against sanctioned vacancies or due to abolition of post at that location. Such redeployment shall be effected in the very first instance against the available vacancies within in the region and in case no vacancy is available within the same Region then in adjoining Regions. While redeploying the surplus staff, administrative/academic requirement and proper utilization of the human resource shall, above all, be the predominant criteria.

ii) Redeploy an employee from his present station to any other station in public interest in exigency of the services as may deem fit by competent authority of NVS.

iii) Transfer of an employee whose continuation at particular station is a not conducive from administrative point of view. Such transfer may be executed based on certain enquiry (preliminary/detailed) as considered deemed fit in the case and after recording reasons of such transfer. Therefore, such transfer shall be of two types:

a) Administrative Transfer with Disciplinary Proceedings.

b) Administrative transfer without Disciplinary Proceedings.

[Refer to provision of cumulative tenure count for securing eligibility of employee on administrative transfers - Clause No. 4.7]."

8. Learned counsel for both the parties were granted one week time to file written submission. Learned counsel for respondents has filed written submission but learned counsel for applicant has not filed any written submission even after lapse of one week.

9. In the written submission, learned counsel for the respondents has reiterated the facts as stated in the Counter Affidavit.

10. I have considered the rival submissions and have gone through the entire record.

11. The law relating to transfer of a Government servant is well settled. The Hon'ble Supreme Court, in a catena of judgments, has laid down the guidelines, which may be summarized as under:-

i. Transfer is a condition of service.

ii. It does not adversely affect the status or emoluments or seniority of the employee.

iii. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.

iv. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required.

v. Transfer order should be passed in public interest or administrative exigency and not arbitrary or for extraneous consideration or for victimization of neither the employee nor it should be passed under political pressure.

vi. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or mala fides are established.

vii. In case of mala fides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.

viii. The person against whom allegations of mala fide is made should be impleaded as a party by name.

ix. Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Departmental personnel.

x. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer.

12. Hon'ble Apex Court in the case of Rajendra Singh Vs. State of U.P. reported in (2009) 15 SCC 178 [LQ/SC/2009/1587] has observed that "A Government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at a place of his choice or the other. He is liable to be transferred in the administrative exigency from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Govt. can function if the Govt. servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires"

13. Hon'ble Apex Court in the case of Shilpi Bose (Mrs.) and others Vs. State of Bihar reported in AIR 1991 SC 532 [LQ/SC/1990/734] has held that "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. 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."

14. Hon'ble Apex Court in the case of Union of India v. S.L. Abbas reported in 1994 SCC (L&S) 230 pleased to observe as under:-

"An order of transfer is an incident of Government service. 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. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force."

15. In the case of S.C. Saxena Vs. Union of India and others reported in (2006) 9 SCC 583, [LQ/SC/2006/140] Hon'ble Supreme Court has held that "A government servant cannot disobey a transfer order by not reporting at the place of posting and to go to a court to ventilate his grievance. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. It has also been held that this tendency of not reporting at the place of posting and indulging in litigation to be curbed."

16. In the case of State of U.P. Vs. Siya Ram and others reported in AIR 2004 SC 4121 [LQ/SC/2004/825] , the Hon'ble Apex Court observed that "No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Unless an order of transfer as shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine."

17. In the case of State of U.P. Vs. Govardhan Lal reported in : 2004 11 SCC 402, [LQ/SC/2004/417] it is once again observed by the Hon'ble Apex Court that "transfer of employee is purely discretion of the authority and court should not interfere in it except:-

i) mala fide is shown

ii) in violation of statutory rules;

iii) passed by authority not competent"

18. Apart from this, Hon'ble Apex Court in the case of Aravali Gold Club Vs. Chander Hass reported in (2008) 1 SCC 683 [LQ/SC/2007/1494] and in the case of Common cause Vs. Union of India reported in (2008) 5 SCC 511, [LQ/SC/2008/903] has observed that "judges must observe judicial restraint and must not ordinarily encroach into the domain of the legislature or the executive. Undoubtedly, the transfer is domain of an executive and it should only be interfered with where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. The State administration cannot function with its hands tied by judiciary behind its back."

19. In the present case, applicant No. 1, on his spouse request was earlier transferred from Gautam Budh Nagar to Jawahar Navodaya Vidyalaya, Bijnor on 11.7.2000 and since then he is posted at Bijnor and Applicant No. 2 on spouse ground was earlier transferred from Jawahar Navodaya Vidyalaya, Bulandsahar to Jawahar Navodaya Vidyalaya, Bijnor on 20.7.2000 and since then she is performing her duties at Jawahar Navodaya Vidyalaya, Bijnor. Meaning thereby, husband and wife are posted at JNV, Bijnor from July, 2000 and completed more than 22 years at Bijnor together. Applicant No. 1 is 70% disabled and on his first choice, he was transferred to JNV, Sambhal. Applicant No. 2 had applied for transfer to (i) JNV, Sambhal (ii) JNV, Meerut and (iii) JNV, Bijnor in the first round of ATD 2022. As her first choice of JDV Sambhal was allotted to Smt. Kavita (PET-F), her second choice JNV, Meerut was allotted to Smt. Manju Dubey, PET (F) and on her third choice JNV, Bijnor, where she is already posted is not possible to allot, hence she could not be given her choice posting and was transferred from Jawahar Navodaya Vidyalaya, Deema (Hasao), Assam-Shillong. Transfer of the applicants have been made as per list of Varshik Sthanantran Abhiyan 2022, by which so many employees have been transferred. Applicant No. 2 has already been relieved vide order dated 24.8.2022. Transfer of the applicants have not been made with any mala fide intention nor has been passed by any incompetent authority. The grievance of the applicants are that both husband and wife could be posted at the same place.

20. It is also worthwhile to mention that the transfer is not only an incident but a condition of service and it should not be interfered with unless shown to be an outcome of mala fide exercise of power or violative of any statutory provisions otherwise transfer order is not subject matter of judicial interference as a matter of routine. No Government servant or employee or public undertaking has any legal right to be posted for long at any one particular place. The policy of transfer as to who should be transferred where is a matter for appropriate authority to decide and unless the order of transfer is vitiated by mala fides or is made in violation of statutory provisions, the court cannot interfere in the said transfer. So far as the transfer policy is concerned, i.e. merely a guidelines and not to adhere in case of normal transfer. While in case of exigency, transfer can be made pre-maturely. By the impugned order, many employees have been transferred from one place to another which is a routine chain of transfer done under Varshik Sthanantran Abhiyan 2022 and in case one particular person is shifted, the whole chain will be disturbed. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force.

21. In view of well settled legal position, there does not appear any good ground to interfere in the impugned orders. Since the applicant No. 2 has already been relieved vide order dated 24.8.2022, she should first go and join at new place of posting and then she can prefer a representation ventilating all his grievances relating to his family problems.

22. Accordingly, the O.A. is disposed off, with certain directions to both the parties:-

i) Both the applicants are granted a time of 15 days to go and join at their new place of postings.

ii) The respondents are directed that if the applicants go and join at new place of postings within a period of 15 days from today and then move a representation ventilating their grievances about their family problems, the department will consider it and dispose it off by a reasoned and speaking order in accordance with law and transfer policy, within a period of 3 months, under intimation to the applicants.

23. No order as to costs.