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]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J. stated that the transfer in a Paramilitary force was the discretion of the respective authority.

 The petitioner was an Assistant Sub Inspector in Sashatra Seema Bal who has been ordered to be transferred to West Bengal for which he submitted a representation through his counsel Peeyush Verma as to defer his transfer order for six months on the ground of his ailing wife who was suffering from Chronic Mental Disorder for the last thirteen years being treated in Shimla and Delhi. The request of the petitioner has been denied for which the present appeal has been preferred.

The Court was of the view that even though transfer was an incidence of service and the petitioner being a member of the disciplined Para Military Forces rarely be permitted to agitate against his posting anywhere throughout the country but respondents on sympathetic grounds could consider the mitigating circumstances highlighted by the petitioner and transfer him to a place which was in close proximity to either Delhi or Shimla. Accordingly, the petition was disposed of by stating that the final call for transfer was the discretion of the respondent. [Bharat Singh v. Union of India, 2018 SCC OnLine HP 1838, decided on 27-12-2018]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Shivaji Pandey, J. dismissed a writ petition for transfer owing to financial inconvenience and remaining superannuation period of the petitioner.

In this case, the petitioner through his counsel Kedar Jha has challenged his transfer order wherein it was stated that the petitioner has worked at Darbhanga for a very long time and now the respondents want to uproot him and plant him at Patna thereby causing great financial inconvenience to him as the cost of living was higher which would cause difficulties in running his families. It was also added that as per policy of the authorities class-III employees shall be treated as District Cadre Level employees in order to erode their difficulties.

The Court was of the view that it does not stand to the reason as to why the petitioner has been sent to Patna and thus Darbhanga district was convenient for the petitioner. Further as more than a year was left for his superannuation and that allows him to be given the choice of his workplace. Accordingly, this writ petition was allowed.[Wasi Ahmad v. State of Bihar, 2018 SCC OnLine Pat 2269, decided on 21-12-2018]

Case BriefsHigh Courts

Hyderabad High Court: A Division Bench comprising of Thottathil B. Radhakrishnan, CJ. and Ramesh Ranganathan, J., declared that to be transferred, even while covered by disciplinary proceedings, was not a matter of choice to be made by the government servant concerned.

The petitioner who was a Motor Vehicles Inspector had challenged the rejection of his request for inter-State transfer.  He was rejected the transfer owing to the pending disciplinary proceedings against him, which he claimed to be in violation of Articles 14 and 16 of the Constitution of India. On the contrary, the respondent claimed that deputation could not be allowed to employees against whom any disciplinary proceedings were pending as this right rests upon the employer for fundamental reasons. 

The High Court observed that the employer, who has initiated disciplinary proceedings, should have control over the employment of the delinquent concerned for continuing the disciplinary proceedings.  This is the fundamental principle on which disciplinary proceedings are permitted to continue, although regulated, even after retirement; and for post retiral benefits and post retiral purposes of certain categories as are contemplated to apply in service jurisprudence. In the light of the aforementioned, the Court stated that the employee cannot claim a legal entitlement over the service when undergoing the said proceedings and any decision to grant inter-State transfer to an employee covered by disciplinary proceedings could be made, only at the volition of the employer. Accordingly, the petition stood dismissed.[P. Ramesh Babu v. State of A.P.,2018 SCC OnLine Hyd 181, order dated 09-07-2018]  

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur and Deepak Gupta, JJ., while delivering an order in concerning the extremely disturbing “Bihar Shelter Home Rape case” highlighted few significant pointers to be noted by the CBI in their investigation along with the removal of blanket ban on media in regard to the reporting of the case.

The Bench on considering the status report filed by CBI in the Patna High Court, placed down a few pointers which needed to be looked upon carefully, which were as follows:

  • Mr Brajesh Kumar Thakur who is the in charge of Sewa Sankalp Evam Vikas Samiti is a very influential person and that is the reason people in the neighborhood are scared to complain against him. CBI needs to look into the antecedents, connections, and influence of the person concerned.
  • Sewa Sankalp Evam Vikas Samiti has received for about 4.5 Crores from the State of Bihar over a period of ten years for their activities. It is necessary that the IT department should look into the income and assets of Mr Brajesh Thakur and indeed of the NGO.
  • The next pointer to the list was that the Status report states the transfer of some girls by the Social Welfare Department from the Shelter Home. The transfer indicates that the Social Welfare Department was aware of the unsavoury activities in the Shelter Home and that may have been the reason for the transfer of the victims. Therefore, in this regard, CBI should seize the record of the said department and further carry out the investigation. Court asked the State of Bihar to file an affidavit stating the reason for the transfer of those girls.

Further, the Court while removing the blanket ban order passed by the Patna High Court in regard to the media reporting stated that “Entire issue needs to be balanced and looked at in the broader view of the criminal justice and freedom of the press.” Therefore, the Court asked for the assistance of Press Council of India, News Broadcasting Standards Authority, Editors Guild and the Indian Broadcasting Federation.

Concluding the order, the bench stated that in the interest of all the victims of sexual abuse and violence, we restrain the electronic media from telecasting or broadcasting the images of the victims in morphed or blurred form also the victims should not be interviewed. The matter is listed for 04-10-2018. [Nivedita Jha v. State of Bihar, 2018 SCC OnLine SC 1616, order dated 20-09-2018]

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]