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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3RD DAY OF OCTOBER, 2012

PRESENT

THE HON’BLE MR. JUSTICE N.KUMAR

AND

THE HON’BLE MR.JUSTICE H.S.KEMPANNA

WRIT PETITION NO.19826/2010 (S-CAT)

BETWEEN:

1. The Chief General ManagerKarnataka Telecom CircleBharat Sanchar Nigam Ltd.No.1, Swamy Vivekananda RoadHalasuru, Bangalore - 560 008.

2. The Managing Director cum ChairmanBharat Sanchar Nigam Ltd.,Bharat Sanchar BhawanH.C.Mathur Lane, JanpathNew Delhi – 110 001.

3. The General Manager (Telecom)Bharat Sanchar Nigam Ltd.,Bellary.

… Petitioners

(By Sri. P.S.Rajagopal, Sr.Counsel, for

Sri. Vishnu Bhat, Adv.,)

AND:

D.V. KavithaD/o. Late V.Thimmappa

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Aged about 37 yearsWorking as Sub-Divisional Engineer (Assets)O/o. The General Manager TelecomBharat Sanchar Nigam Ltd., BellaryResidents of MIG-II-30, KHB ColonyNetaji Nagar, Vianney Vidyalaya Road

Bellary.…Respondent

(By Sri.T.R.Sridhar, C/R.)

This Writ Petition is filed under Articles 226 and227 of Constitution of India praying to quash the order

dated 4.3.2010 passed by the Central AdministrativeTribunal, Bangalore Bench, Bangalore, inO.A.No.421/2009 as per Annexure-G as the same isunjust, arbitrary and without authority of law andconsequently, dismiss O.A.No.421/2009 and etc.,

This petition coming on for orders this day, N.Kumar J., made the following:-

ORDER

This writ petition is filed challenging the order

passed by the Tribunal setting aside the order of

transfer of the respondent dated 30.5.2009 on the

ground that it is arbitrary, illegal and without any

rational.

2. For the purpose of convenience, the parties

are referred to as they are referred to in the original

application.

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3. The applicant was selected and appointed as

a Junior Telecom Officer in the pay scale of Rs.1640-

2900 w.e.f. 27.9.1997. After the formation of the Bharat

Sanchar Nigam Limited, she was absorbed in BSNL

w.e.f. 1.10.2000. In the month of May 2009, the

applicant was promoted on regular basis against 67%

seniority cum fitness quota to the cadre of SDE (T) vide

CGMT BG Office Letter No. Staff/3-2/RR/2009 dtd.

30.5.2009. The SDE is an executive with All India

Transfer Liability. In fact earlier to the said promotion

when options were called for local officiating

arrangement from JTO to TES Group B, the applicant

opted only for Bellary. When she was posted to TDM

Bidar, she declined the Local Officiating Promotion. She

sought for retention in Bellary. There were 13 promotees

from Bellary SSA. Infact, the applicant stood at serial

No.13 i.e., last in the list. At the time of issuing the

posting order i.e. on 30.5.2009, there were 8

JTO/proposed post to be filled up at Bellary and

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accordingly, as per the seniority list, postings were

done. Remaining five officers were posted out of Bellary

SSA including the applicant. However, immediately

after the issue of promotion/posting order dated

30.5.2009, two posts were rendered vacant as one of

the voluntarily requested posting to Bellary and another

one is at Hubli SSA. Accordingly, they were posted.

Those two newly vacant posts were filled up by other

two employees in the list of 13, who are above the

applicant. One N.B.Pawar, who was posted to Hassan

SSA declined the promotion and opted to continue as

JTO in Bellary and the said post was filled by one

Sri.C.Oblesh. The applicant opted for Bellary and

Bangalore though no options were called for besides

Tumkur, Mandya and Raichur in the order of preference

as per Annexure-A.5. She has stated in the said

representation that why she should be retained in

Bellary at the first instance. After the transfer she

approached the authorities as per Annexure-A.8 and

again requested for retention at Bellary. However, she

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was retained at Bellary for three months on her giving

an undertaking stating that she would join Bangalore

TD after three months as per Annexure-A.9. Instead of

joining at Bangalore she approached the Central

Administrative Tribunal in O.A.No.421/2009

challenging the order of transfer on the ground that it is

arbitrary, discriminatory and unjust and sought for

interim order of stay. Interim order of stay was granted.

Her main ground of attack of the transfer order is; her

seniors have been retained at Bellary. They are working

at Bellary from the day they joined the duties in the

lower post. They have been at Bellary for more than 30

years. Therefore, transferring from Bellary to Bangalore

is contrary to the transfer policy in the Department.

Therefore, she contended that it is arbitrary and illegal.

4. Accepting her case the Tribunal by an

impugned order held that the guidelines of transfer

would equally apply to all whether of the transfer under

general policy or transfer indicated on promotion. The

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transfer guidelines having been specifically stated that

senior most should be transferred in the first instance

seems to be rational and logical since transfer

guidelines available is a well defined document

canvassing the views of the transfers and also the need

and methodology of implementing it. The rationale of

divergence to it cannot be explained by the respondents.

Therefore, the impugned decision seems to be marred

by arbitrariness, illegality and lack of proper rationale.

It is also substantially against the professed guidelines

of transfer issued by the respondents. Since such

violation had caused a severed prejudice to the

applicant, it is to be termed as violation of principles of

non-discrimination because as a class the employees

are to be treated alike and measured with the same

yardstick. Therefore, the order of transfer was set aside

and direction was given to the authorities to re-examine

her case and pass appropriate orders.

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5. Aggrieved by the said order, the Department

has preferred this writ petition.

6. Learned senior counsel appearing for the

petitioner contends that it is not a case of transfer, it is

the case of promotion. On promotion she was posted

from Bellary to Bangalore and therefore, the transfer

guidelines on which reliance is placed is not applicable

to the facts of this case. Secondly, he contended that

among 13 persons, who are eligible for promotion, the

persons who are senior most are retained at Bellary and

posted against eight posts which were vacant and it is

only juniors who have been sent out of Bellary. All the

eight persons, who are accommodated at Bellary are all

promotees, whereas the applicant is a direct recruitee.

She being young, still has number of years of service, it

is in public interest to transfer such person, so that

they will have exposure. There is no arbitrariness in

posting outside Bellary i.e. to Bangalore. He also

contended that after the order of transfer, the applicant

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requested for retention at Bellary. When it was declined,

she requested the authority permitting her to stay at

Bellary for three months, which prayer was also

granted. But, in concession of three months she

approached the Tribunal obtained an interim order of

stay and thus, she has not obeyed the order of

promotion. The Tribunal has only confused itself with

the transfer policy and it has interfered with the

transfer order. For that the tribunal has no jurisdiction.

There is no arbitrariness in the action of the petitioner

and therefore, the impugned order passed is contrary to

law and requires to be set aside.

7. Per contra, learned counsel appearing for the

applicant submitted that the transfer policy applies

equally to transfers to the same post and also transfer

to a promoted post. The transfer policy makes it very

clear that in respect of the cadre, in which she is

working, persons who are at a particular place for more

number of years should be transferred first when

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compared to persons who are at a place for lesser

period. That principle has been violated in the first

instance. The applicant has been discriminated. The

applicant has set out in her representation the various

family problems she is facing and therefore, the order of

transfer is arbitrary, legal and the tribunal has rightly

set aside the order. Therefore, he submits no case for

interference is made out.

8. Reliance is placed on the clause in the

transfer policy.

BSNL’s Employees Transfer Policy

5. Basis for transfer:

Transfer shall not be purely based ontenure decided by the transfer policy.Transfers shall also be based oncompetencies and skills required to executethe work or to provide an opportunity toemployees to develop competencies as per job

rotation requirement. Transfer shall be basedon:(a) Vacancies created due to promotions,

creation of posts and retirement.

(b) Job rotation requirement in

synchronization with period specified forPost, station/and circle tenure.

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(c) Past experience in various functions andnature of jobs handled.

(d) Surplus and/or shortages at any location.

9. Section B, deals with additional guidelines

specifically to transfer of executive employees with all

India transfer liability.

(a) Transfer tenure:

Annual proof of qualifying employees eligible for

transfer shall be drawn on the basis of following tenure;

Sl.No.

Executive Level PostTenure

Station/SSA tenure

Circletenure

1 SAG equivalent or 4 6 8

2 JAG equivalent or 4 8 12

3 STS equivalent or 4 10 15

4TES Gr.B/JTS orEquivalent

410 18

(b) Minimum period of three years at a

location shall be maintained as far as possible in

order to avoid hardship to the employees.

(c) Tenure at a particular location shall be

include consecutive postings in different field

units in the same location.

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(d) For counting State/SSA tenure, the

period of service rendered in the previous cadre

(s)/grade(s) would be counted. For inter circle

transfer, stay will be counted from the date of

regular promotion/recruitment into the grade of

JTO/JAO and others equivalent to the first level

of Executive Hierarchy. Inter circle tenure based

transfer in respect of Executives will continue to

be restricted for SDE/Other equivalent levels

and above. However, the number of officers

transferred out of Circle at any time would not

generally exceed 10% of the sanctioned strength

in the Circle for officers upto STS level.

Transfer/Posting history of DOT employment

shall be taken into account for the ex-DOT

absorbed employees in BSNL. Service period of 2

years or more will only be recognised while

computing post/station/SSA/Circle tenure. For

Territorial Circle Executives, while computing

Station/SSA/Circle tenure, any stay in non-

territorial Circle within the territorial jurisdiction

of the Circle shall also be counted. Similarly, for

non-territorial Circle executives, stay of territorial

circle shall be counted while computing

Station/SSA/Circle tenure.

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(f) For considering executives for tenure posting

on transfer, the executives with longest stay in a

particular circle would be considered first. Female

executives would also be encouraged to serve in

tenure postings. However, posting of unwilling

female executives to hard tenure stations would be

avoided. Due recognition to female executives who

have served in hard tenure locations shall be given

in their ACRs.

Section C deals with Additional guidelines specific

to executives with circle service liability.

12. While the transfers on Administrative

grounds and Request transfers shall be

governed by Rule 7 and Rules 8 & 9 above

respectively, following guidelines shall also

be applicable for transfer of executives within

recruiting Circle;

(i) Such of those executives who

have completed 4 years of stay on a post or

10 years of stay in a station/SSA may be

transferred to another post/another

station/SSA within the Circle’s jurisdiction.

For intra-Circle transfers, total stay of the

executives shall be counted including that

belonging to previous cadre (s)/grade(s)

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irrespective of category (non-

executive/executive). In case of executives of

non-territorial cricles, posting within territorial

jurisdiction of recruiting circle shall be

counted towards stay tenure purpose.

10. Reliance was also placed on the meaning of

the word ‘transfer’. In the FRSR Rules, transfer means;

the movement of a Government servant one headquarter

station in which he is employed from to another such

station either;

a) to take up duties of a new post or;

b) in consequence of change of his headquarter.

11. The Apex Court in the case of State of Assam

Vs. Ranga Muhammad and Others reported in AIR 1967

SC 903 explaining the meaning of the word ‘posting’ at

para 9 held as under;

9. In its ordinary dictionary meaning the

word ‘to post’ may denote either (a) to station

some one at a place, or (b) to assign someone

to a post, ie., a position or a job, especially

one to which a person is appointed. See

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Webster’s New World Dictionary (1962). The

dispute in this case has arisen because the

State Government applies the first of the two

meanings and the High Court the second. In

Art, 233 the word ‘posting’ clearly bears the

second meaning. This word occurs in

association with the words ‘appointment’ and

‘promotion’ and takes its colour from them.

These words indicate the stage when a

person first gets a position or job and

‘posting’ by association means the

assignment of an appointee or promotee to a

position in the cadre of District Judges. That a

special meaning may be given to a word

because of the collocation of words in which it

figures, is a well-recognised canon of

construction. Maxdwell (“On Interpretation of

Statues”, 11th Edn., p.321 and the following

pages) gives numerous examples of the

application of this principle, from which one

may be given here. The words ‘places of

public resort’ assume a very different

meaning when coupled with ‘roads and

streets’ from that which the same words

would have if they were coupled with

‘houses’. In the same way the word ‘posting’

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cannot be understood in the sense of

‘transfer’ when the idea of appointment and

promotion is involved in the combination. In

fact this meaning is quite of place because

‘transfer’ operates at a stage beyond

appointment and promotion. If ‘posting’ was

intended to mean ‘transfer’ the draftman

would have hardly chosen to place it between

“appointment” and “promotion” and could

have easily used the word ‘transfer’……..

12. Therefore, if we look into the entire transfer

policy, it does not deal with the case of promotion. It

deals only with a case where a person after appointment

is continued in service for a particular period and

thereafter transferred to the very same post or

equivalent post to a different place. In the instant case,

it is not a case of transfer. It is a case of promotion. On

promotion, the applicant is sent to the higher post at a

different place and therefore, the principles which

govern the transfer of employees that the persons who

have put in more years of service at a place should be

transferred in the first instance when compared to the

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persons who have completed less service has no

application. It is not in dispute that 13 persons who

were working in Bellary were found eligible for

promotion. The applicant is a direct recruitee whereas

others are all promotees. Among the 13 persons, the

applicant stands at 13th place. As others are all nearing

the age of superannuation, the authorities thought it fit

to accommodate those persons in Bellary itself. That is

how 8 persons, on promotion were posted at Bellary and

remaining five persons were posted out of Bellary. As

two among eight sought for transfer to a place of their

choice, it was granted and among five, who were

transferred out two were accommodated at Bellary. Yet

another person forgone the promotion and continued to

work at Bellary in the lower cadre. Therefore, out of five

persons three are accommodated at Bellary. Remaining

two are transferred out of Bellary. It is not in dispute

that from the date the applicant was appointed by way

of direct recruitment, she is working at Bellary. She has

completed 11 years. Now because she was promoted to

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the next higher cadre, she has been posted to

Bangalore. In fact at that juncture there was no

question of asking for options. Still the petitioner made

a representation giving her options. Her first option was

Bellary and if that is not possible Bangalore and

thereafter she has given three other places of option.

When she could not be accommodated at Bellary at her

request she was posted to Bangalore. When she

represented her difficulties requesting permission to

continue in Bellary, her request was considered and

three months time was granted to continue in Bellary.

Thereafter, instead of reporting to duty at Bangalore,

she went to CAT and obtained an order of stay. It is

contended that the letter was obtained by coercion and

duress and not at her own free will. We have gone

through the entire petition before the Tribunal. There is

no whisper about the duress or coercion practiced by

any one in giving that letter. In that letter she has

stated that she has an aged mother who is suffering

from serious health problems and therefore, she

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requires some time to make arrangements. Now she is

not only causing problems to the authorities who

accommodated her for three months but also contends

that, that letter is obtained by coercion and duress,

which fact is not supported by any legal evidence on

record.

13. Insofar as her right to challenge the transfer

order is concerned, reliance was placed on the judgment

of the Andhra Pradesh High Court in the case of Bharat

Sanchar Nigam Limited .vs. N. Rajaiah

(WA.792,795 and 796/08). The dispute therein was

regarding calculating the period of service in the lower

cadres. Is it permissible? In answer to the said

question, the Division Bench has held as under:-

“13. The contention of the writ

petitioners that there was a

classification among the employees who

were promoted from Category “C” to

Category “B” and the direct recruits who

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have directly joined Category “B” posts,

and the said classification is not

rational having no nexus or bearing to

the purpose and the objectives of the

Transfer Policy, is untenable. Firstly,

the employees who were promoted from

Category “C” to Category “B” totally

stand on different footing from the direct

recruits who were recruited to the posts

in Category “B”. There was no question

of the direct recruits to Category “B”

posts having any tenure of service in

any lesser cadre because they were

direct recruits to Category “B” post only.

They become liable for transfer after

completion of minimum period of three

years in the said post pertaining to

category “B”. So far as the other

employees like the writ petitioners who

are promoted from Category “C” to

Category “B” are concerned, they joined

the Organisation in Category “C” and

they have put in long years of service in

Category “C” and subsequently they

were promoted to Category “B” and in

that category also, they have put in a

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couple of years in the present station

and their total tenure in both Category

“C” and Category “B” was clubbed for

the limited purpose of ascertaining the

length of stay at a particular station in

the context of making the transfer,

which has nothing to do with the inter

se seniority among Category “B”

employees between the promotees and

direct recruits. The clubbing of the

tenure of services in Category “C” with

that of Category “B” is only for the

limited purpose of effecting transfers on

account of the length of service in a

particular station and therefore, it

cannot be said that the said clubbing of

service in Category “B” and Category

“C” is either irrational or irrelevant.

14. As otherwise, if the contention

of the learned counsel for the writ

petitioners is to be accepted, it may lead

to a far reaching proposition wherein no

employee can be transferred irrespective

of his length of service in a particular

station except on administrative

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grounds and the Transfer policy which

enunciated the purposes and objectives

of the transfers, which are extracted

above would be defeated. When the

transfers are proposed to be effected for

achieving the avowed objectives of the

Transfer policy, the writ petitioners have

no right to question the same on the

ground that their transfers are arbitrary.

In fact, there is no element of

arbitrariness either in the Transfer

Policy or in the relevant clauses, which

are under challenge because the interest

of the employees is also duly taken care

of by providing that a minimum period

of three years at a location shall be

maintained as far as possible in order to

avoid hardship to the employees. When

the transfer is sought to be effected for

the purpose of rotational redeployment

of the personnel from sensitive posts or

over other grounds and also to provide

opportunities to work in different

disciplines and also due to requirements

of filling up of posts, meeting staff

requirements at tenure/hard

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tenur/unpopular/difficult stations and

also for matching employee’s skills with

job requirement, it cannot be contended

that the Transfer Policy is vitiated by

any arbitrariness or unreasonableness.

15. It is well settled that transfer of

an employee is an incidence of service,

as pointed out by the learned single

Judge himself and it is not the case of

the writ petitioners that they were

arbitrarily picked out for effecting

transfers. It is well settled that when

the Transfer Policy is evolved to achieve

certain avowed objectives as stated in

the policy itself, the employees cannot

question the same unless it is

demonstrably shown that there are

mala fides or lack of jurisdiction or

apparent arbitrariness, which would

cause hardship to the employees. None

of the said elements is existing in the

present case and it is not shown by the

writ petitioners that the proposed

transfer in pursuance of the guidelines

contained in the Transfer policy caused

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any prejudice or hardship to any one of

them, or that the proposed transfers are

being effected on account of any mala

fides on the part of the Organisation.

The tagging of tenure of service in

Category “C” with the tenure of service

in Category “B” cannot therefore be

found fault with, inasmuch as, such

clubbing is intended to serve the stated

purpose and objections of the Transfer

Policy. The fact that the service of

Category “B” employees is not tagged

on to any other service in the lesser

category does not simply arise because

Category “B” employees are directly

recruited to the posts in the said

category and therefore, the question of

their serving in any lesser category does

not simply arise. The writ petitions

cannot therefore seek to compare

themselves with the direct recruits of

Category “B”.

14. From the aforesaid judgment it is very clear

that it has been observed that the writ petitioners

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cannot therefore seek to compare themselves with the

direct recruits of Category “B”. Therefore, direct recruits

form a category by themselves and the promotees by

lower cadre form a different category. The Apex Court

in the case of B. Varadha Rao .vs. State of

Karnataka and others [(1986) 4 SCC 131] dealing

with the transfer has held as under:-

“6. One cannot but deprecate that

frequent, unscheduled and

unreasonable transfers can uproot a

family, cause irreparable harm to a

Government servant and drive him to

desperation. It disrupts the education of

his children and leads to numerous

other complications and problems and

results in hardship and demoralisation.

It therefore follows that the policy of

transfer should be reasonable and fair

and should apply to everybody equally.

But, at the same time, it cannot be

forgotten that so far as superior or more

responsible posts are concerned,

continued posting at one station or in

one department of the Government is

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not conductive to good administration. It

creates vested interest and therefore we

find that even from the British times the

general policy has been to restrict the

period of posting for a definite period.

We wish to add that the position of

Class III and Class IV employees stand

on a different footing. We trust that the

Government will keep these

considerations in view while making an

order of transfer.”

15. According to the transfer guidelines set out

above these conditions have been taken note of. In the

table set out above they have prescribed the number of

years one employee has to complete before he could be

transferred and Clause 11(b) makes it amply clear that

minimum period of three years at a location shall be

maintained as far as possible in order to avoid hardship

to the employees. In the instant case, the applicant

from the date of appointment is working at Bellary and

she has completed eleven years of service i.e. more than

three years prescribed under the said transfer policy.

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Now she is not transferred out of Bellary to hold the

same post at a different place. She is transferred out

because of promotion. The very transfer policy makes it

clear that transfer shall not be purely based on tenure

decided by the transfer policy. Transfers shall also be

based on competencies and skills required to execute

the work or to provide an opportunity to employees to

develop competencies as per job rotation requirement.

In the instant case, the applicant being a direct

recruitee she is still young. She has a bright future in

the department. She is expected to hold more

responsible posts in times to come and she may be

exposed at different places towards different

responsibilities. Therefore, keeping in mind those

principles this direct recruitee has been posted to

Bangalore to acquire requisite experience whereas

persons who are at the verge of retirement have been

retained at Bellary. It cannot be said that this principle

is arbitrary or illegal. Further, the Apex Court in the

case of Union of India and another .vs. N.P. Thomas

27

[1993 Supp (1) SCC 704] dealing with the right of an

employee to challenge the order of transfer approved its

earlier judgment in Shilpi Bose(Mrs) .vs. State of

Bihar [1991 Supp(2) SCC 659] wherein it has been

held as under:-

“In our opinion, the courts should not

interfere with a transfer order which is

made in public interest and for

administrative reasons unless the

transfer orders are made in violation of

any mandatory statutory rule or on the

ground of mala fide. A government

servant holding a transferable post has

no vested right to remain posted at one

place or the other, he is liable to be

transferred from one place to the other.

Transfer orders issued by the competent

authority do not violate any of his legal

rights. 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

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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.”

16. In Kendriya Vidyalaya Sangathan .vs.

Damodar Prasad Pandey and others [(2007) 2 SCC

(L & S) 596] at paragraph 4, the Apex Court has held

as follows:-

“Transfer which is an incidence of

service is not to be interfered with by

the Courts unless it is shown to be

clearly arbitrary or visited by malafide

or infraction of any prescribed norms of

principles governing the transfer (see

Ambani Kanta Ray v. State of Orissa,

1995 (Suppl) 4 SCC 169). Unless the

order of transfer is visited by malafide

or is made in violation of operative

guidelines, the Court cannot interfere

with it. Who should be transferred and

posted where is a matter for the

administrative authority to decide.

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Unless the order of transfer is vitiated

by malafide or is made in violation of

operative any guidelines or rules the

courts should not ordinarily interfere

with it.”

17. From the aforesaid judgments it is clear that

transfer is an incidence of service. Unless the transfer

is by way of punishment or on account of malafides or

contrary to any statutory provisions or guidelines which

has the effect of law, the Court should not interfere with

such transfer orders. As stated above, instant case is

not a case of transfer. Even if the guidelines governing

transfer is held to be applicable within three years the

applicant could not have been transferred. The

applicant has completed 11 years of service at one

place. If persons who have put in more years of service

should be transferred first compared to persons who

have put in less service is concerned as held by a

Division Bench of the Andhra Pradesh High Court, the

promotee from the lower cadre to higher cadre

30

constitute a group by themselves. They cannot be

equated with persons who are direct recruitees. Others

in the instant case were appointed in the lower cadre for

the last thirty years. They have been promoted from the

lower cadre to the higher cadre and because they are

nearing the age of superannuation they are continued in

the very same post having regard to the policy decision

to retain elders at the same place and transfer the

young ones out of Bellary. The applicant being a direct

recruitee she has got number of years of service during

which period she can achieve higher place in the

administration and when she is transferred out of

Bellary on promotion to the promoted post it cannot be

said that the guidelines of transfer has been violated

and therefore, the order of transfer is liable to be set

aside. The Tribunal has misread the guidelines

misconstrued the facts of the case and has not kept in

mind the settled legal position governing transfers as

declared by the Apex Court and has lightly interfered

31

with the order of transfer. Therefore, the same cannot

be sustained.

18. Hence, we proceed to pass the following:-

ORDER

The writ petition is allowed. The

impugned order passed by the Tribunal

is set aside and the order of transfer is

restored.

Sd/-

JUDGE.

Sd/-

JUDGE.

SA/*alb/-.