Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ. disposed off the petition directing the State Government to transfer all the stakeholders in the present case in order to deliver equitable justice.

The factual background of the case involves a transfer order issued by State Government to an English Lecturer in Government Senior Secondary School (GSSS), Sanjauli. Aggrieved by the same, she filed the instant petition to quash the said order.

Counsel for the petitioner Ram Murti Bisht submitted that the transfer is malafide as the same has been done to accommodate and adjust private Respondent 3 at her position who was transferred at GSSS Theog on her own written request made 6 months back and now demanded to be posted back at GSSS Sanjauli dislodging the petitioner.

Counsel Ashok Sharma, Ranjan, Vinod Thakur, Svaneel Jaswal and Vinod Chauhan represented the respondent’s side. They cited medical reasons for doing the same and submitted that the transfer is done on compassionate grounds.

The Court discussed the term “malafide” in detail citing various judgments important being B. Varadha Rao v. State of Karnataka, (1986) 4 SCC 131, Shilpi Bose v. State of Bihar 1991 Supp (2) SCC 659 and Rajendra Roy v. Union of India (1993) 1 SCC 148 and observed that the test for a malafide transfer is to check whether the transfer was done for real administrative exigency or not. The Court applying the test and the fact that no real proof of medical grounds being the reason for transfer has been shown and that the respondent has on its own asked for transfer to Theog and after a short stay of 6 months wants to be transferred back to Sanjauli. The act clearly shows no real administrative exigency but exercise of external influence to get transfer done.

The Court relied on a judgment titled New India Public School v. Huda, (1996) 5 SCC 510 and held that the concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Thus, Article 14 read with Article 16(1) of the Constitution accords right to equality or an equal treatment consistent with principles of natural justice. Therefore, any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly and reasonably.

The Court further observed that the Central Government, State Governments and likewise all public sector undertakings are expected to function like a model employer’.

A ‘model employer’ is under an obligation to conduct itself with high probity and is duty-bound to treat its employees equally and in appropriate manner so that the employees are not condemned to feel totally subservient to the situation. A model employer should not exploit the employees and take advantage of their helpless and misery.

 The Court observed that both the petitioner and the third respondent hold a State Cadre Post, yet they have never been posted outside the district and has rather served in and around Shimla within a radius of 35 kms – 45 kms in their entire service career which is not possible without the active support of external influence.

The Court citing an age-old adage “Hard cases make bad law” held that the act of transfer is malafide as it has been made in order to adjust the third respondent with no reasonable basis but even found the case of petitioner to not be justified entirely and hence directed the State to transfer both outside of the home district.

In view of the above, petition stands disposed off.[Sheela Suryavanshi v. State of H.P., 2020 SCC OnLine HP 1295, decided on 26-08-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal, Ernakulam: The Coram of P. Madhavan (Judicial Member) and K.V. Eapen (Administrative Member) disposed the application denying relief to the applicant finding no valid reason to interfere in Government’s order.

The applicant is an employee of the Indian Railways currently working as Chief Engineer Construction at Ernakulam. The applicant has claimed an out of the ordinary situation whereby he’s been subjected to frequent transfers without valid grounds. The applicant was deputed for 3 years to KRDC in 2017 and then he joined as Deputy Chief Engineer, Chennai on 09-05-2019. Later, he was promoted and posted as Chief Engineer Mangalore on 19-08-2019. Thereafter he was transferred to Ernakulam vide order dated 04-11-2019. The applicant has undergone 3 transfers within a period of one year which allegedly, is against Railway norms. The latest development is where he’s been transferred and posted as ADRM, Trivandrum (Annexure A1) in response to which he filed a representation but before deciding the same a transfer and posting order (Annexure A2) has been served to him. The applicant has claimed that the frequent transfers are arbitrary and against Railway transfer guidelines and has hence prayed for quashing of Annexure 1 & 2 and order for retention as Chief Engineer Ernakulam.

The applicant has contended that transfer to Trivandrum is a mutual one and that a minimum tenure of 2 years and maximum of 5 years at a posting is the usual practice in Railways.

Counsel for the respondent, Girija K. Kopal has stated in her reply that the applicant holds a transferable post and is obligated to be transferred to any place in the country. There’s no transgression of any statute or rule. It’s submitted that the applicant had no objections to his other transfers. All the transfers mentioned by the applicant are of routine nature resulting out of exigencies. No illegality or arbitrariness has been committed by the respondents.

The tribunal on careful perusal of the facts and arguments advances observed, that the transfer orders of early postings were a result of administrative exigencies prevailing at that point. The contention of the applicant that the transfers are against norms and guidelines has been dismissed by the tribunal stating that it’s evident from the guidelines that there’s nothing preventing the transfers in case of administrative emergencies as the applicant is an ex-cadre employee.

The tribunal relied on the case of S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 holding that courts can interfere in transfers only if its the result of a malafide exercise of authority or violation of statutory or policy provisions or if it’s done as a punitive measure or if there’s a contravention of natural justice. It has been remarked that, an employee has no vested right to hold on to a particular post when he is transferred to another post.

In view of the above, the tribunal found no reason to interfere in the transfer order basis the lack of merit in contentions raised by the applicant’s counsel alleging the transfer to be arbitrary and malafide.

Resultantly the application was disposed of, permitting the applicant to file a fresh representation to the competent authority for transfer to a convenient place, if exercised. [P.T. Benny v. Union of India, 2020 SCC OnLine CAT 305, decided on 13-08-2020]

Appointments & TransfersNews

Collegium Statement

Supreme Court Collegium on 18th April, 2020 has recommended transfer of Mr Justice Mohammad Rafiq, Chief Justice, Meghalaya High Court to Orissa High Court.


Supreme Court Collegium

[Collegium Statement dt. 18-04-2020]


Justice Mohammad Rafiq

His Lordship, Mr. Justice Mohammad Rafiq, was administered the oath of office of Chief Justice of the High Court of Meghalaya on 13th November 2019 at Raj Bhavan by his Honour the Governor of Meghalaya Shri. Tathagata Roy.

        Prior to his appointment as Chief Justice, his Lordship served as a Judge at the High Court of Rajasthan where he was elevated as Judge on May 15th 2006.

        His Lordship had functioned as Acting Chief Justice of Rajasthan High Court twice on April 7th 2019 upto May 4th 2019 and September 23rd 2019 to October 5th 2019. His Lordship also worked as Executive Chairman of the Rajasthan State Legal Services Authority and Administrative Judge prior to elevation as Chief Justice.

        His Lordship was born on May 25th 1960 at Sujangarh in Churu district of Rajasthan. He completed his B.Com in 1980, LL.B in 1984 and M.Com in 1986 from University of Rajasthan.

        His Lordship later on joined the Bar and practised as Advocate since July 1984. His Lordship worked as Assistant Government Advocate for the State of Rajasthan from July 15th 1986 to December 21st 1987 and Deputy Government Advocate from December 22nd 1987 to June 29th 1990. He also represented the Union of India as Standing Counsel from 1992 to 2001 before the High Court.

        His Lordship was appointed Additional Advocate General for the State of Rajasthan on January 7th 1999 and worked as such till his Lordship’s elevation to the Bench.

        His Lordship practiced exclusively in Rajasthan High Court in almost all branches of law especially conducted constitutional matters, service matters, land acquisition cases, land revenue cases, preventive detention cases, customs & excise matters, railway claims cases, tax matters, company matters and criminal matters before the High Court.

(Taken from the Meghalaya High Court Website)


High court of Meghalaya

Case BriefsHigh Courts

Madhya Pradesh High Court: Vandana Kasrekar, J., stayed the operation of the impugned order and directed the respondents to decide the representation of the petitioner expeditiously. 

In the pertinent case, the petitioner moved the High Court challenging the transfer order, by which his services were transferred from Primary School, Bherupada to Primary School, Himmatkhedi.

The counsel for the petitioner challenged the transfer order on the ground that the transfer order has been issued during the mid-academic session. He further relied upon the judgment passed by the Supreme Court in the case of Director of School Education v.  O. Karuppa Thevan, 1994 Supp (2) SCC 666, in which it was held that the employee should not be transferred during the mid-academic session unless administrative exigency requires. He further submitted that in the present case, it has not been mentioned in the transfer order, for which administrative exigency, the petitioner has been transferred. 

In light of the above, the Court stayed the operation of the transfer order and directed the respondent to consider and decide the representation of the petitioner in accordance with the law, within a period of one month from the date of receipt of a certified copy of this order. [Kailash Chand Aak v. State of M.P., 2019 SCC OnLine MP 3982, decided on 18-12-2019]

Amendments to existing lawsLegislation Updates

President grants assent to the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019.

It is an Act to provide special provisions for the National Capital Territory of Delhi for recognising the property rights of resident in unauthorised colonies by securing the rights of ownership or transfer or mortgage in favour of the residents of such colonies who are possessing properties on the basis of Power of Attorney, Agreement to Sale, Will, possession letter or any other documents including documents evidencing payment of consideration and for the matters connected therewith or incidental thereto.

It is expedient to have a law to recognise and confer rights of ownership or transfer or mortgage to the residents of unauthorised colonies as one time special measure.

** Please read the Act here: The National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019


Ministry of Law and Justice

[Notification dt. 12-12-2019]

Appointments & TransfersNews

President with the consultation of the Chief Justice of India transfers, Chief Justice of Patna High Court as the Chief Justice Madras High Court.

He has been directed to assume the charge of the office on or before 13-11-2019.


Ministry of Law and Justice

[Notification dt. 30-10-2019]

Appointments & TransfersNews

Reconsideration of the proposal of transfer of Justice Amit Rawal, Judge, Punjab & Haryana High Court.

Collegium, vide Minutes dated 28-08-2019 recommended transfer of Justice Amit Rawal, Judge, Punjab & Haryana High Court, in the interest of better administration of justice, to Kerala High Court.

Upon being requested to send his response in terms of the Memorandum of Procedure, Justice Amit Rawal vide representation dated 2-09-2019, for reasons stated therein, has requested for reconsideration of his proposed transfer to Kerala High Court.

On reconsideration, the Collegium is of the considered view that it is not possible to accede to his request. The Collegium, accordingly, reiterates its recommendation dated 28-09-2019 for transfer of Justice Amit Rawal to Kerala High Court.


[Collegium Resolution dt. 03-09-2019]

Supreme Court of India

Appointments & TransfersNews

Proposal for transfer of Justice V.K. Tahilramani to Meghalaya High Court.

Office of the Chief Justice of the Meghalaya High Court would be falling vacant shortly consequent upon transfer of Justice A.K. Mittal, Chief Justice of that High Court to Madras High Court.

Collegium resolves to recommend that Justice V.K. Tahilramani, Chief Justice, Madras High Court [PHC: Bombay], be transferred, in the interest of better administration of justice, to Meghalaya High Court.

Upon being requested to send her response in terms of the Memorandum of Procedure, Justice V.K. Tahilramani vide
representation dated 2-09-2019, for reasons stated therein, has requested to reconsider her proposal for transfer to Meghalaya High Court.

On reconsideration, the Collegium is of the considered view that it is not possible to accede to her request. The Collegium, accordingly, reiterates its recommendation dated 28th August, 2019 for transfer of Justice V.K. Tahilramani to Meghalaya High Court.


[Resolution of Collegium dt. 03-09-2019]

Supreme Court of India

Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde, N.V. Ramana, Arun Mishra and R.F. Nariman, JJ.  resolves to recommend that Mr. Justice P.V. Sanjay Kumar, Judge, Telangana High Court, be transferred, in the interest of better administration of justice, to Punjab & Haryana High Court.


[Collegium Resolution dt. 28-08-2019]

Supreme Court of India

Legislation UpdatesRules & Regulations

G.S.R. 571(E).—In exercise of the powers conferred under sub-sections (1), (2), (3), (4), (8), (9), (10) and (11) of Section 125 and sub-section (6) of Section 124 read with Section 469 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following rules, further to amend the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Rules, 2016, namely –

1. (1) These rules may be called the Investor Education and Protection FundAuthority (Accounting, Audit, Transfer and Refund)Second Amendment Rules, 2019.

(2) The provisions of these rules, Other than rule 6 (i), 6 (iv), 6 (v), 6(vi), 6(vii) and 6 (viii), shall come into force with effect from the 20th day of August, 2019.

(3) The provisions of rule 6 (i), 6 (iv), 6 (v), 6(vi), 6(vii) and 6 (viii), shall come into force with effect from the 20th day of September, 2019.

* Please follow the link to read the detailed amendments notified by the Government: NOTIFICATION


Ministry of Corporate Affairs

[Notification dt. 14-08-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Arun Bhansali, J., allowed a petition filed for transfer on ‘working couple ground’.

This writ petition was filed by the petitioner seeking a direction to the respondents to consider the inter-zonal transfer of petitioner on the basis of the ‘working couple ground’ as per Directive-32 (Addendum) to Government of India Ministry of Railways (Railways Board). It was contended in the writ petition that petitioner was fully eligible for transfer in terms of the provisions of Addendum which provides for transfer on working couple ground before completion of 10 years of service.

The Court on this basis directed the respondents to decide the representation/application made by the petitioner seeking a transfer in terms of the extant provisions expeditiously. The petition thus stood disposed of with the above direction. [Shyam Singh Lakhawat v. Union of India, 2019 SCC OnLine Raj 301, Order dated 04-04-2019]

Legislation UpdatesNotifications

G.S.R.282(E) — In exercise of the powers conferred by sub-sections (1) and (2) of Section 3 of the Repatriation of Prisoners Act, 2003 (49 of 2003), the Central Government hereby directs that the provisions of the said Act shall apply to the Federal Republic of Brazil. The full text of the Agreement on Transfer of Sentenced Persons signed by the Republic of India and the Federal Republic of Brazil on 15.10.2013 is given below. The Agreement was ratified by the Republic of India on 1.1.2014 and by the Federal Republic of Brazil on 24.10.2018. The Instruments of Ratification were exchanged on 24.1.2019.

AGREEMENT BETWEEN THE REPUBLIC OF INDIA AND FEDERAL REPUBLIC OF BRAZIL ON THE TRANSFER OF SENTENCED PERSONS

The Republic of India and the Federative Republic of Brazil hereinafter referred to as the Contracting States;

Desiring to facilitate the social rehabilitation of sentenced persons into their own countries; and

Considering that this objective should be fulfilled by giving foreigners, who have been convicted and sentenced as a result of their commission of a criminal offence, the opportunity to serve their sentences within their own society;

Have agreed as follows:

ARTICLE 1

Definitions

For the purpose of this Agreement:
(a) “Judgment” means a decision or order of a court or tribunal imposing a sentence;
(b) “Receiving State” means a State to which the sentenced person may be, or has been, transferred in order to serve his sentence;
(c) “Sentence” means any punishment or measure involving deprivation of liberty ordered by a court or tribunal for a determinate period of time, in the exercise of its criminal jurisdiction;
(d) “Sentenced person” means a person who is serving a definitive and enforceable sentence in the transferring State under a judgment passed by a criminal court in the Contracting States;
(e) “Transferring State” means the State in which the sentence was imposed on the person who may be, or has been transferred.

Note: Please follow the link for detailed notification – Notification

[Notification dt. 02-04-2019]

Ministry of Home Affairs

Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde, N.V. Ramana, Arun Mishra and R.F. Nariman JJ.  resolves to recommend that Mr Justice Pradeep Nandrajog, Chief Justice, Rajasthan High Court [PHC: Delhi], be transferred, in the interest of better administration of justice, to Bombay High Court.

[Dated: 28-03-2019]

Collegium Resolutions

Appointments & TransfersNews

Justice Thottathil Bhaskaran Nair Radhakrishnan, Chief Justice of the Telangana High Court transferred as Chief Justice of Calcutta High Court and directed to assume charge of the office of the Chief Justice of the Calcutta High Court on or before 06-04-2019.

[Order dt. 23-03-2019]

Ministry of Law and Justice

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Ali Mohammad Magrey, J., allowed the writ petition filed seeking a direction to the respondents to transfer the petitioner from District Kupwara to District Srinagar on health grounds.

The petitioner claimed to be working as a teacher and was posted at Upper Primary School, Kabamarg, zone Trehgam. She submitted that she was suffering from acute ailment relating to her Bone-Degeneration for which she needed proper medical care round the clock in a State Hospital at Srinagar. It was further submitted that on the advice of the doctors, the petitioner had undergone physiotherapy exercise on a daily basis from a reputed Government hospital, which facility was only available in Srinagar because no such hospital was available in District Kupwara. She also contended that on the advice of the doctors at Apollo Hospital, Delhi, she was asked to take injections which were not available in District Hospital, Kupwara, and instead, they are only available in Srinagar. The petitioner in this regard had placed on record the medical prescriptions and advice regarding her ailment and treatment thereto.

The Court while allowing the petition stated that transfer/ posting is an exigency of service and is solely within the powers of the Government authorities. Ordinarily, the Courts should not interfere with the policy of the Government directing posting/ transfers of the Government employees, but in exceptional cases, where the transfer/posting is made by an incompetent authority or is against the rules or is a result of malafides, the Courts can interfere. It further stated that the Government employee suffering from any hardship on account of his/her transfer/posting, should approach the authorities concerned for seeking redressal of his/her grievances as the Courts cannot issue any mandamus directing the authorities to transfer/posting of a Government employee. It is solely for the authorities to consider the claim of the petitioner on the strength of the documentary evidence, including the medical prescriptions/advice, available with the petitioner for such transfer.

In the above situation, the Court felt satisfied in disposing of the petition with a direction to the respondents to decide the representation of the petitioner and pass appropriate orders concerning her transfer. [Ishrat Dilshad v. State of J&K, 2019 SCC OnLine J&K 223, Order dated 08-03-2019]

Appointments & TransfersNews

The President, after consultation with the Chief Justice of India, is pleased to transfer Shri Justice Sarasa Venkatanarayana Bhatti, Judge of the Andhra Pradesh High Court, as a Judge of the Kerala High Court and to direct him to assume charge of his office in the Kerala High Court on or before 19th March, 2019.

[Notification dt. 05-03-2019]

Ministry of Law and Justice

Appointments & TransfersNews

The President, after consultation with the Chief Justice of India, has transferred Shri Justice Dama Seshadri Naidu (Judge of the Kerala High Court), as a Judge of the Bombay High Court and directed him to assume charge of his office in the Bombay High Court on or before 20-03-2019.

[Notification dt. 06-03-2019]

Ministry of Law and Justice

Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and A.K. Sikri, S.A. Bobde, N.V. Ramana and Arun Mishra resolves to reiterate its recommendation dated 10th January, 2019 for transfer of Justice T.B. Radhakrishnan, CJ of Telangana High Court to Calcutta High Court.

[Dated: 19-02-2019]

Supreme Court of India

Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and A.K. Sikri, S.A. Bobde, N.V. Ramana and Arun Mishra, JJ., reiterates its recommendation dated 15th January, 2019 for transfer of Mr Justice S. Venkatanarayana Bhatti of Andhra Pradesh High Court to Kerala High Court.

[Dated: 19-02-2019]

Supreme Court of India

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Ali Mohammad Magrey, J. disposed of the writ petition with the direction that no further order should be issued for transfer considering that the grievance of the petitioner had already been addressed.

The facts of the case are the petitioner, in accordance to an order came to be transferred from ICDS Project, Iddgah and posted in ICDS Project, Kunzer. Aggrieved thereby, the petitioner approached the Court challenging the said order of her transfer, besides other grounds, on the ground that the son of the petitioner was suffering from mental disability and, therefore, required immediate care of her mother, i.e. the petitioner herein. The petitioner also averred that since she was left with only six months of service before reaching the age of superannuation her transfer, at this fag end of her service carrier, would be detrimental to her rights and interests. In pursuance of the order dated 29-1-2019 of the Court, the respondents transferred another person awaiting orders of his posting, as CDPO, Kunzer, in place of the petitioner with a further stipulation that the petitioner shall report to Deputy Director, ICDS, Kashmir, for further duties. Seemingly, the grievance of the petitioner with reference to her continuation in her home town, i.e. Srinagar, for the purpose of attending her ailing son and for preparing her pensionary papers has been redressed and she has been directed to report to the office of the Deputy Director, ICDS, Kashmir, for further duties. The contention of the petitioner submitted was that there was apprehension that she may be, again, transferred to some place other than her home town.

The Court disposed of this petition stating that the grievance of the petitioner had been redressed. It was, however, made clear that in case of exigency, the respondents shall be free to make posting of the petitioner as per their requirement keeping in view the ailing health condition of the son of the petitioner and also the fact that the petitioner is scheduled to attain the age of superannuation in near future. [Shamshada Akhtar v. State of J&K, 2019 SCC OnLine J&K 94, Order dated 04-02-2019]