UNION OF INDIA Vs. CENTRAL ADMINISTRATIVE TRIBUNAL

JUDGEMENT

(1.) Challenge in this writ petition is to the order dated December 3, 2002 passed by the Central Administrative Tribunal (for short 'The Tribunal') whereby the Original Application filed by the second respondent was allowed and his transfer on promotion from Cochin to Silliguri quashed.

(2.) Respondent No. 2 is working as an Assistant Accounts Officer in the Pay and Accounts Office, Ministry of Agriculture and is posted in Cochin. He became due for promotion to the post of Pay and Accounts Officer. He is a Group B gazetted officer and is liable to be posted anywhere in India. In terms of the instructions issued by the Department he was asked to exercise his option indicating the stations where he would like to be posted. Silliguri in the State of Assam was one of the stations for which he exercised his option. The Office of the Controller General of Accounts, Ministry of Finance, New Delhi, which is the cadre controlling authority, issued an order dated 18.1.2002 approving the second respondent's promotion as Pay and Accounts Officer and posted him ar Silliguri station as Finance Officer in the Central Public Works Department. After the aforesaid order had been issued, respondent No. 2 sent a representation dated 18.2.2002 to the Controller General of Accounts, New Delhi stating that his option for posting him at Silliguri station on promotion be treated as cancelled as his wife had developed hypertension and vertigo requiring continuous medical treatment. The representation was rejected and a formal order of promotion was issued by the Senior Accounts Officer (Admn) on 27.3.2002. Thereafter the second respondent was relieved of his duties on 1.4.2002 with instructions to report for duty to the Chief Engineer at Silliguri. Instead of proceeding to Silliguri, the second respondent filed O. A. No. 247 of 2002 before the Tribunal. During the course of the hearing in the case, this respondent made a grievance that he was relieved from his duties on 1.4.2002 even before the promotion order dated 27.3.2002 had been served on him and therefore he had been deprived of an opportunity of making a representation against his promotion and posting at Silliguri. It appears that the petitioners made a statement before the Tribunal through their counsel that they would give an opportunity to the second respondent to make a representation to the cadre controlling authority and the Original Application was disposed of accordingly on 7.8.2002. The second respondent made another representation dated 29.8.2002 stating that he was unable to go to Silliguri on account of the medical treatment of his wife and he was willing to forego his promotion. This was considered by the competent authority and the same was rejected and a reply was sent to him on 7.10.2002, copy of which is Ext. P9 with the writ petition. Feeling aggrieved by this order, he again filed a petition before the Tribunal out of which the present Writ Petition has arisen. The petition was allowed and the order of transfer by way of promotion cancelled.

(3.) We have heard Mr. Gopinath, the learned counsel for the petitioner and the second respondent in person and perused the records of the case. The Tribunal found that the first petitioner had taken the decision in rejecting the representation of the second respondent in a callous and mechanical manner without application of mind and that the reasons given in the order rejecting his representation are flimsy and hyper technical. It had further observed that since the second respondent was willing to forego his promotion, the Department should have accepted his request and not having done so its action stood vitiated. We are unable to agree with the findings of the Tribunal. It has to be clearly understood that the Administrative Tribunal is not an appellate authority sitting in judgment over the orders of transfer. The post which the second respondent was holding and one to which he had been promoted is a Group B Gazetted post making him liable to be posted anywhere in India. Since the post is transferable it follows that an employee has no vested right to remain at the place of his original posting and it is the prerogative of the employer to transfer him to a place where it is thought that he is best suited. The second respondent cannot claim a right to remain posted at Cochin. Who is to be transferred and where is a matter for the appropriate authority to decide. It is true that the second respondent offered to give up his promotion only to stay back at Cochin but this cannot be a ground for the Department not to post him at Silliguri. The office at Silliguri has been recently encadered and it appears that it is not a popular station for posting and if every employee were to forego his promotion to avoid being posted at Silliguri the work of the Department would suffer. Moreover, continued posting at one station or in one Department is not conducive to good administration and such continued posting may create a vested interest which has to be avoided. The second respondent has remained at Cochin for the last more than 4 years and if he is now being sent to Silliguri on promotion there can be no objection to such a posting. Transfer being an incident of service and an implied condition thereof it was open to the Department to transfer him to Silliguri as the appointing authority has a wide discretion in the matter. The Department was the best judge to decide how to distribute and utilise the services of its employees. We are conscious of the fact that this power, through wide and discretionary, has to be exercised keeping in view the exigencies of service and not for any extraneous reasons or for any oblique motive. In the present case no malafides have been alleged and therefore we are clearly of the view that the Tribunal was not justified in interfering with the transfer of the second respondent which had been made on promotion. Again the illness of his wife was a factor which the Department took into account when it considered the representation filed by the second respondent and this also could not be a ground for the Department not to transfer him when exigencies of service require that an officer has to be posted at Silliguri. Moreover, the wife of the second respondent was suffering from hypertension and vertigo and this illness was not that serious and therefore the Tribunal should not have interfered with the order of transfer. The second respondent had himself opted for being posted at Silliguri and merely because h had withdrawn his option after he had been proposed for the posting does not mean that the Department was bound to retain him at Cochin ignoring the exigencies of service.