Case BriefsSupreme Court

Supreme Court: The Bench comprising of R.F. Nariman and Indu Malhotra, JJ. dismissed writ petitions filed by army personnel — Major, Lieutenant, and Sepoy — against their transfer from Army Service Corps. to operational units.

The petitioners challenged the transfer as violative of their fundamental rights under Article 14 and 21. They relied on the Supreme Court decision in Union of India v. P.K. Choudhury, (2016) 4 SCC 236. They submitted that in the case mentioned, the Court held that ASC is a non-operational unit based on the stand taken by Union of India. While the respondent-Union of India and Military Secretary Branch — assailed the maintainability of the petition. Furthermore, it was contended that an employee has no legal right, much less a fundamental right, to be posted in a particular place or to be transferred to a place of his choice.

The Supreme Court gave due consideration to the submissions made by the parties. It referred to the composition of Army to understand the contextual matrix of the case. It was seen that the ASC is a vital stream primarily responsible for ensuring the provisioning, procurement, and distribution of supplies. The Court held that the petitioners had failed to show how their fundamental rights were violated. Posting and transfers are a necessary incident of service. The case of P.K. Choudhury was distinguished as it was concerned only with promotions and not transfer. The petitioners did not make any submission that the posting was in violation of any statutory rule, executive policy or instruction. Furthermore, the Court referred to the Oath administered to all army personnel alike at the time of commissioning the relevant portion of which reads — “I hereby solemnly swear that I will … go wherever ordered, by land, sea or air…”.  The Court thus held that army personnel are duty bound to serve wherever they are ordered to. In view of the above, the petitions were dismissed. [Amod Kumar v.  Union of India, 2018 SCC OnLine SC 1372, decided on 06-09-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Veerender Singh Siradhana, J. dismissed a civil writ petition filed by the petitioner against his transfer from Rajasthan State Consumer Dispute Redressal Commission, Jaipur to District Consumer Dispute Redressal Forum, Jaisalmer.

The petitioner was employed as a class IV employee in the Commission at Jaipur for last 24 years. By the impugned order, as many as six employees including the petitioner were transferred. Feeling aggrieved, the petitioner preferred an appeal before the Rajasthan Civil Services Appellate Tribunal who directed the Commission to consider the representation of the petitioner. However, the Commission declined his representation. Aggrieved, the petitioner approached the High Court.

The High Court, while perusing the record, noted that the only grievance put forth by the appellant was that he had a son and four daughters, who were of marriageable age, and therefore, he ought to have been retained at Jaipur. Placing reliance on the Supreme Court decision in Gobardhan Lal v. State of U.P., (2004) 11 SCC 402, which dealt with the scope and extent of judicial review in matters of transfer of an employee, the High Court observed, by a catena of judgments it is now well settled that transfer is an incident of service. Unless transfer is effected in violation of any mandatory statutory rule or having adverse consequences on conditions of service, the same is not to be interfered with by the Courts as an Appellate Authority. In light of the discussion as mentioned herein, the Court declined to interfere with the impugned transfer order as passed by the Competent Authority. The petition was thereby dismissed. [Vinod Kumar Bairwa v.  Rajasthan State Consumer Dispute Redressal Commission, 2018 SCC OnLine Raj 1358, dated 29-5-2018]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Bharati. H.Dangre, JJ., allowed a petition filed seeking a transfer from a medical college in Miraj to a college in Mumbai/Thane.

The petitioner was aggrieved by the rejection of her application for transfer from Government Medical College, Miraj to any Government Medical College in Mumbai or Thane. The petitioner sought transfer on the ground that she suffered from Allergic Bronchitis Bronchial Asthma and need to be treated in Mumbai. It was undisputed fact that one seat was vacant in Rajeev Gandhi Medical College, Thane (RGMC). It was also undisputed that she had obtained all the documents (no objection certificates) from concerned authorities. It was contended by the respondent State that the petitioner could not be granted migration as the seat in RGMC was not a clear vacancy as per the information brochure of the State Government since it arose due to the migration of a student from the said seat.

The High Court perused the record and observed that the petitioner had all the required documents necessary under MCI Regulations and also Regulations issued by Vice Chancellor of the University. The Court noted the submission made by the respondent State but only to be rejected. The Court categorically observed, the brochure issued by the State Government at most could be an administrative instruction and could not have an overriding effect over the Regulations framed by MCI which were in nature of subordinate legislation. The Court found that the petitioner had complied with all the technical requirements as per MCI Regulations and the only question left for consideration was whether the transfer was sought by the petitioner on genuine grounds. The High Court was of the opinion that the petitioner had a genuine case for seeking a transfer as she was suffering from an ailment which required proper medical attention. Accordingly, the petition was allowed and the State was directed to approve petitioner’s case for transfer to RGMC, Thane. [Pankti M. Pancholi v.  State of Maharashtra,2018 SCC OnLine Bom 1178, dated 04-05-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Arun Bhansali J., dismissed a writ petition on the basis of unreasonable and baseless grounds placed in regard to the grievance.

The brief facts of the case are that the petitioner was a widow and had been appointed in the said category of “widow” as a grade three teacher and eventually she had been transferred to a few other schools one after the other.

The primary contention of the petitioner is that she being an appointee in the category of “widow” is aware of the fact that in accordance to Rule 7B of the Rajasthan Educational Service Rules, 1970, she can only be replaced with a widow in place of her, whereas there was a violation of a rule in which as she was replaced by some person named Sanwat Singh Rathore. She also placed further contention saying that, due to certain ailments she was restricted from any kind of movement. For the stated reasons she had filed the petition asking for quashing of transfer order.

The Hon’ble High Court, concluded its order by stating that the contentions posed by the petitioner in regard to manning of her position has been declared to be illegal, the point which talks about violation of provision 7B of the Rules of 1970, the Court stated that the rule only talks about the reservation of vacancies for women and not the transfers/postings made. Though the Court by dismissing the petition has been considerate about the physical condition of the petitioner but subsequently observed that this cannot be the ground for invalidating the said transfer order. [Rani Lamba v. State of Rajasthan, 2018 SCC OnLine Raj 1301, dated 24-05-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Arun Bhansali, J. declined to interfere with the transfer order of the petitioner which was challenged by him in the instant writ petition.

The petitioner worked as an Assistant Engineer in Drilling Division at Udaipur. He was transferred to the post of Assistant Engineer in Sub-Division at Buran. The petitioner laid threefold contention challenging his transfer order which were however dismissed by the High Court. The contentions as put forth by the petitioner and repelled by the High Court were as follows:

Contention: The petitioner held charge of nine sanctioned posts of Assistant Engineer in Udaipur Drilling Division. His transfer would render the Division without officer. Held: The Court repelled the contention observing that according to the respondents, the petitioner was transferred in the interest of government for administrative reasons. Further, one Vikram Singh Gurjar had already been posted to Udaipur awaiting posting order.

Contention: The petitioner all along worked in the Drilling Division and now his transfer in the Sub-Division was not justified. Held: The aspect of the petitioner having all along worked in the Drilling Division by itself could not be a reason to affect validity of transfer especially when he was eligible to be appointed in the Sub-Division.

Contention: The petitioner’s retirement was due in 2020 and his transfer at the far end of his career was not justified. Held: This ground could not invalidate the impugned order as in the cases of administrative exigencies; an officer can be transferred even when he is nearing retirement.

In light of the above, the High Court held that the impugned order did not call for any interference. [Niranjan Sharma v. State of Rajasthan, 2018 SCC OnLine Raj 1282, dated 21-5-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Single Judge Bench comprising of Ajay Mohan Goel, J. allowed the matrimonial proceedings to be transferred from the Court of Additional District Judge at Amb to the Court of Additional District Judge at Dehra.

Proceedings under Section 13 (1), (1-a) and (1-b) of the Hindu Marriage Act, 1955 were pending against the petitioner before the said Court at Amb. She prayed for transfer of proceedings to Circuit Court at Dehra as she was presently serving as an Assistant Professor (Economics) at the Government College, Kangra. Also, she had a minor school going daughter who was residing with her. According to her, it was difficult to contest the case at Amb.

Having gone through the averments made in the petition, the High Court was of the view that transferring the said proceedings from Amb to Dehra would be in the interest of justice. The Court relied on a Supreme Court decision in Sumita Singh v. Kumar Sanjay, (2001) 10 SCC 41, wherein it was held, “in matrimonial proceedings, it is the wife’s convenience which must be looked into.” While delivering the judgment, the High Court was alive to the fact that such applications are not to be allowed in each and every case; however, in the facts and circumstances of the instant case, the Court transferred the proceedings pending against the wife under Section 13 of Hindu Marriage Act from the Courts at Amb to Dehra. The petition was accordingly allowed. [Monika Sharma v. Manish Kumar, 2018 SCC OnLine HP 631, dated 24-05-2018]

Case BriefsHigh Courts

Allahabad High Court: The petitioner challenged his transfer order in State Government’s Department of Medical and Health alleging the order to be illegal and arbitrary passed against him on extraneous considerations as well as without application of mind. The petitioner prayed for a relief in the nature of writ of mandamus to direct the respondent to let him work continually on his earlier post.

The petitioner further alleged that order of posting is legally not sustainable in view that he is currently working as level-III Medical Officer and by that, he is legally entitled to be posted as Superintendent at Community Health Centre as per the 2016 government order whereas the petitioner is transferred out of his cadre. The petitioner also alleged that he was not posted because of any administrative exigency. On the other hand, the counsel for the respondent argued that the petitioner had various complaints against him of not behaving well with fellow officers and subordinate staff as well as allegation of bribery.

The Division Bench consisting of Narayan Shukla,J. and Virendra Kumar-II, J. after taking into account all the evidence came to the conclusion that the petitioner vide impugned transfer order has been posted at Headquarter on administrative exigency and after observations of his defective way of working and conduct of indiscipline. The Court held that petitioner has no enforceable right to remain posted at any particular post and moreover, in this case, it observed that he has moreover been transferred on administrative grounds. Accordingly, the petition was dismissed. [Dr. Manoj Kumar Gupta v. State of U.P.,  2017 SCC OnLine All 2400, decided on 1.09.2017]

Case BriefsSupreme Court

Supreme Court: Stating that ‘transfer’ and ‘recruitment by transfer’ are entirely two different concepts, the Court said that no doubt transfer can be from one category to another category or within the class if the rule permits interchangeability of the categories within a class but any other transfer both intra category and inter category are in fact, under law is a selection and appointment by way of a transfer from one category to another or from one class to another class or from one service to another.

Explaining further, the Court said that transfer in relation to service simply means a change of a place of employment within an organization. Such transfer being to a similar post in the same cadre and therefore, obviously such a transfer does not result in the termination of his lien in the parent cadre but recruitment by transfer is a different service concept altogether. Once an employee undergoes a transfer by way of a recruitment to a different cadre or to a different service, the employee loses his lien in the parent cadre/service. In that process, there is an induction to a new cadre and sometimes with a different type of duty. Such induction has distinct consequence on the career of the employee different from what would have been the normal course had he continued in the parent service.

The bench of Kurian Joseph and R. Banumathi, JJ also explained the difference between ‘Seniority’ and ‘eligibility’ and said that as far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion. It was held that merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors. [Palure Bhaskar Rao v. P. Ramaseshaiah, 2017 SCC OnLine SC 388, decided on 12.04.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to whether after transfer of a disciplinary proceeding, as per the mandate enshrined under Section 36B(1) of the Advocates Act, 1961 to the Bar Council of India (BCI) from the State Bar Council, can the BCI, instead of enquiring into the complaint and adjudicating thereon, send it back to the State Bar Council with the direction to decide the controversy within a stipulated time, the Court held that the legislature never intended a complaint made against an Advocate either from the perspective of the complainant or from the delinquent to be transferred to BCI, again to be sent back. It was held that BCI, while exercising original jurisdiction on transfer of a complaint, cannot exercise the appellate jurisdiction.

The Court, however, took note of the fact that on many occasions disciplinary authority of the State Bar Council does not dispose of the complaint within the stipulated period, as a consequence of which the proceeding stands transferred to the BCI. Looking down upon such practice, the Court said that once a complaint is made by a litigant, it has to follow a definite procedure and is required to be dealt with as per the command of the Act to conclude the disciplinary proceeding within a period of one year from the date of receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council. Not to do something what one is required to do, tantamount to irresponsibility and the prestige of an institution or a statutory body inheres in carrying out the responsibility.

The bench of Dipak Misra and A.M. Khanwilkar, JJ, hence, directed the State Bar Councils to take a periodical stock of cases in each meeting with regard to the progress of the Disciplinary Committee, find out the cause of delay and guide themselves to act with expediency so that the Council, as a statutory body, does its duty as commanded under the Act. [Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat, 2017 SCC OnLine SC 351, decided on 06.04.2017]

Case BriefsSupreme Court

Supreme Court: In the matter relating to Journalist Rajdev Ranjan’s murder, where counsel appearing for the petitioners had argued that Md. Shahabuddin, who was spotted with one of the accused persons who was absconding after the crime, should be transferred from Siwan Jail to Tihar Jail as he has been successfully instrumental in committing the crime while in jail or while he is out from jail even for a minimum period of time, the Bench of Dipak Misra and Amitava Roy, JJ issued notice to Md. Shahabuddin in this regard and listed the matter to be taken up on 28.11.2016.

It was brought into the notice of the Court that Md. Shahabuddin is facing 45 criminal cases which are pending for trial and it is the admitted position that 44 trials are pending in the State of Bihar and one in the State of Jharkhand and if he is allowed to be a catalyst or a motivator in the crimes by operating from jail, the justice for which the victims in 45 cases are crying would face incurable hazard and jeopardy. It was argued that when a person goes beyond the bounds of law and becomes a history-sheeter, the Court is required to pass appropriate orders, regard being had to the societal necessity. It was further added by Dushyant Dave, appearing for the petioners, that the trial can be held through video-conferencing so that the rights of an under trial are not affected.

The transfer was sought as one Chandrakeshwar Prasad had preferred the writ petition under Article 32 of the Constitution of India that his two sons were abducted and murdered for which Md. Shahabuddin was convicted and sentenced to imprisonment for life and that the appeal against the said conviction and sentence is pending before the High Court. He also submitted that his third son was also done to death two days prior to giving evidence in court in respect of trial of his other two brothers. The counsel appearing for the petitioners submitted that if such a history-sheeter is allowed to remain in the jail of Siwan Jail, the distress and the agony of the family of the petitioners would know no bound. [Asha Ranjan v. State of Bihar, 2016 SCC OnLine SC 1167, decided on 24.10.2016]

Appointments & Transfers

On 13-04-2015, President of India after consultation with the Chief Justice of India, transferred Shri Justice Rajiv Sharma, Judge of the Allahabad High Court, as a Judge of the Calcutta High Court and directed him to assume charge of his office in the Calcutta High Court on or before 27-04-2015. 

 

-Ministry of Law & Justice

Appointments & Transfers

On 13-04-2015, President of India after consultation with the Chief Justice of India, transferred Shri Justice Dhirendra Hiralal Waghela, Chief Justice of the Karnataka High Court, as the Chief Justice of the Orissa High Court and directed him to assume charge of the office of the Chief Justice of the Orissa High Court within two months from the date of this notification. 

                                                                                                                           

-Ministry of Law & Justice

Appointments & Transfers

On 06-02-2015, the President of India after consultation with the Chief Justice of India transferred Shri Justice Bawa Singh Walia, additional Judge of the Punjab and Haryana High Court as a Judge of the Jammu and Kashmir High Court and directed him to assume charge of his office in the Jammu and Kashmir High Court on or before 17th February, 2015. 

-Ministry of Law & Justice

Appointments & Transfers

On 05-02-2015, the President of India after consultation with the Chief Justice of India transferred Shri Justice Huluvadi Gangadharappa Ramesh, Judge of the Karnataka High Court, as a Judge of the Allahabad High Court and directed him to assume charge of his office in the Allahabad High Court on or before 18th February, 2015. 

-Ministry of Law and Justice.

Appointments & Transfers

On 05-02-2015, the President of India after consultation with the Chief Justice of India transferred Shri Justice Vineet Saran, Judge of the Allahabad High Court, as a Judge of the Karnataka High Court and directed him to assume charge of his office in the Karnataka High Court on or before 18th February, 2015.

-Ministry of Law & Justice