UMESH CHANDRA SINGH  Vs UNION OF INDIA & ORS.

WP(C) 9039/2020 Page 1 of 32
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 04.01.2021
+ W.P.(C) No.9039/2020 and CM No.29123/2020

UMESH CHANDRA SINGH ……PETITIONER
Through Mr. Santosh Kumar and Mr. Rajiv
Mishra, Advocates

versus

UNION OF INDIA & ORS. …..RESPON DENTS
Through Mr. Jaswinder Singh, Adv. for R-1
Mr. Tushar Mehta, Solicitor
General of India with Mr. Ashim
Vachher, Mr. Aadarsh Tripathi,
Mr. Anish Gupta and Mr. Nikhil
Kandpal, Advocates for R-2 & 3
CORAM:
HON’BLE MS. JUSTICE JYOTI SINGH

JYOTI SINGH, J. (ORAL)

1. Challenge in the present petition is to an order da ted 15.04.2020
passed by Respondent Nos. 2 and 3 (hereinafter refe rred to as NTPC)
whereby the representation of the Petitioner dated 18.02.2020 has been
rejected as well as to the Transfer Order dated 22. 10.2020 and Release
Order dated 28.10.2020 transferring the Petitioner to NTPC Kudgi,
Karnataka. A direction is also sought to NTPC to po st the Petitioner on
the post of ‘Scientist’ in Research and Development Department (R&D),
NETRA.
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2. Petitioner had challenged his earlier Transfer to KBUNL, Kanti,
Bihar, in a spate of litigation and although in the present petition the
challenge is to a Transfer Order, whereby the Petit ioner is transferred to
Kudgi, however, the grounds for challenge are more or less the same.
3. As narrated in the petition, the facts necessary to decide the
controversy involved in the present petition are th at the Petitioner, after
completing his M.Tech and having joined Bhabha Atom ic Research
Centre as a Scientist in the specialized area of Fr acture Mechanics, Creep
and Fatigue Analysis till 10.05.2005, responded to an Advertisement
issued on 30.10.2004 by NTPC for recruitment of two Scientists /
Technologists. In the Advertisement the minimum edu cational
qualifications stipulated were Masters Degree in Ch emical / Mechanical
Engineering with CGPA of 8.50 or equivalent, with a post qualification
experience, as mentioned in the advertisement.
4. Petitioner was selected for the post and an offer o f appointment to
the post of ‘Scientist’ at E4 level was issued on 2 2.03.2005. Petitioner
was accordingly appointed as ‘Scientist’ and posted at Energy
Technologies (ET) Department of NTPC. On 03.02.2009 , ET and the
then R&D Department were merged together to form a new Department
called NETRA (NTPC Energy Technology Research Allia nce), Greater
Noida.
5. On 26.02.2010 Petitioner was promoted to Level E5 w ith effect
from 01.01.2010, though according to him he should have been promoted
with effect from 01.01.2009. Vide Circular dated 21 .08.2012,
designations in NTPC were made generic and the Peti tioner was re-
designated as Senior Manager (NETRA) from Scientist E5 (NETRA).
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6. Vide order dated 14.07.2015, Petitioner was transfe rred to
Operations and Maintenance Department (Mechanical M aintenance)
KBUNL, Kanti, Bihar and the Petitioner protested ag ainst the Transfer
Order by making several representations. Getting no favourable response,
the Petitioner filed a petition in this Court being W.P.(C) No.738/2016
challenging the order amongst other reliefs. During the pendency of the
said petition, a Release Order was served on the Pe titioner on 29.01.2016,
preponing the date of joining at Kanti. As there wa s no interim protection
order and the Petitioner had joined the place of po sting, the petition to the
extent of the Transfer Order was disposed of as inf ructuous on
23.05.2016. LPA No.380/2016 filed against the said order was dismissed
on 03.06.2016 and the Petitioner was also unsuccess ful in challenging the
said order before the Supreme Court in SLP(C) No.20 295/2016 as the
same was dismissed on 05.08.2016.
7. Petitioner made another representation on 19.12.201 7 seeking
transfer to NETRA on the ground of his specialized recruitment in terms
of HR Policy dated 30.09.2017. Since there was no r esponse from NTPC,
Petitioner preferred W.P.(C) 11382/2018 before this Court challenging
the inaction of NTPC on his representation. Vide or der dated 22.10.2018,
the petition was disposed of directing NTPC to deci de the representation
within four weeks and granting liberty to the Petit ioner to challenge the
decision, if aggrieved.
8. NTPC rejected the representation vide order dated 2 1.11.2018, and
the Petitioner approached the Court by filing W.P.( C) No.1289/2019
praying for quashing the order dated 21.11.2018 and to restore his
position by transferring him back to NETRA. The pet ition was disposed
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of by the Court on 06.02.2020 directing the NTPC, t hat on the Petitioner
making a representation for being assigned the duti es, for which he was
appointed, the Management of NTPC shall consider th e representation
and take appropriate decision on his posting to any place in India as may
be required as also granting liberty to the Petitio ner to approach the
Court, if aggrieved by the decision.
9. NTPC vide the impugned order dated 15.04.2020 rejec ted the
representation made by the Petitioner on 18.02.2020 . Petitioner thereafter
made unsuccessful attempts requesting to cancel his posting to Bihar.
Petitioner also filed a Contempt Petition as accord ing to him the order of
the Court dated 06.02.2020 was flouted by the Respo ndents. During the
hearing of the Contempt petition, it was pointed ou t by the Respondents
that the representation had been decided in terms o f the order passed by
the Court on 06.02.2020 and that the Petitioner had the liberty vide the
said order to take recourse to appropriate remedy, if aggrieved, and thus
there was no ground for initiating contempt proceed ings. The petition was
thereafter dismissed as withdrawn, granting liberty to the Petitioner to file
a writ petition reserving all rights and contention s of the parties.
10. NTPC thereafter issued another Transfer Order dated 22.10.2020
transferring the Petitioner to Kudgi, Karnataka as Senior Manager
(Safety Department) followed by a Release Order dat ed 28.10.2020.
Petitioner protested against the said order and sen t a representation on
28.10.2020 to cancel the order. The order was not, however, cancelled,
and this led to the Petitioner approaching the Cour t by filing the present
petition.
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11. Learned counsel for the Petitioner has assailed the Transfer Order
on manifold grounds. It is urged that the appointm ent of the Petitioner
was a specialized recruitment as a Scientist with s pecific educational
qualifications and in a specialized domain of resea rch in Fracture
Mechanics, Stress Analysis, etc. but on transfer, t he Petitioner would be
required to carry out functions which have no relat ionship with the
qualifications, experience or job profile of a Scie ntist. There is no
sanctioned post of Scientist at Kudgi nor is there any R&D Setup. It is
incorrect to treat the Petitioner as an ordinary Me chanical Engineer since
he has acquired the M.Tech Degree in Computer aided Design and
Manufacturing – CAD / CAM and joined a World Class R&D Centre,
Bhabha Atomic Research Centre, wherein he was impar ted rigorous
scientific training and was duly trained for the sp ecialized area of
Fracture Mechanics and Creep, Fatigue and Stress An alysis. Petitioner
had responded to the advertisement issued by NTPC o nly because it
clearly indicated that the Petitioner would be requ ired to work in a
specialized domain and accordingly the appointment letter was issued.
Petitioner was not recruited nor can be forced into carrying out any other
functions such as House Keeping or Mechanical Maint enance or
Operation or such like jobs in the Safety Departmen t. Merely by changing
the nomenclature to a more generic one, the job pro file of the Petitioner
cannot be changed contrary to his qualifications an d experience and the
purpose for which he was recruited. There is no pro vision in the Transfer
Policy which empowers the NTPC to change the functi ons of a specialist
like the Petitioner.
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12. It is further contended that a Scientist cannot be assigned work of
Operations in Shifts in the Safety Department as it is barred under Rule
88A of The Karnataka Factory Rules, 1969. The pre-r equisite
qualifications for being appointed or transferred a s a Safety Officer are
laid down in the said Rule and therefore once the P etitioner does not
fulfill the said requirements, he cannot be posted in the Safety
Department, being ineligible, and moreover in the e vent of any mishap in
the Department he may be liable to be prosecuted un der the Statute for
not possessing the requisite qualifications. It is clearly laid down by the
Supreme Court in Rajendra Roy vs. UOI, (1993) 1 SCC 148 that a
transfer order made in violation of statutory rules is illegal. In Union of
India vs. S.L. Abbas, (1993) 4 SCC 357 the Apex Court has observed
that the Authority must keep in mind the Guidelines issued by the
Government while making transfers, and thus it is m andatory for the
NTPC to follow the mandate of the Karnataka Factory Rules before
effecting transfer of the Petitioner. Relevant part of the Rule relied upon
by the Petitioner is as follows :-
“88.-A. (1) Qualifications

(a) A person shall not be eligible for appointment as a
Safety Officer unless he –

(i) Possesses a recognised degree in any branch of
engineering or technology and has had practical
experience of working in a factory in a Supervisory
capacity for a period of not less than 2 years, or

a recognised degree in physics or chemistry and has
had practical experience of working in a factory in a
supervisory capacity for a period of not less than 5
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years, or a recognised diploma in any branch of
engineering or technology and has had practical
experience of working in a factory in a supervisory
capacity for a period not less than 5 years;

(ii) Possesses a degree or diploma in industrial sa fety
recognised by the State Government in this behalf; and

(iii) has adequate knowledge of the language spoken by
majority of the workers in the region in which the
factory where he is to be appointed is situated.

(b) Notwithstanding the provisions contained in cla use
(a), any person who

(i) possesses a recognised degree or diploma in
engineering or technology and has had experience of
not less than 5 years in a department of the Centra l or
State Government which deals with the administratio n
of the Factories Act, 1948, or the Indian Dock
Labourers Act, 1934, or

(ii) possesses a recognised degree or diploma in
engineering or technology and has had experience of
not less than 5 years, full time, on training, educ ation,
consultancy, or research in the field of accident
prevention in industry or in any institution;

shall also be eligible for appointment as a Safety
Officer:

Provided that the Chief Inspector may, subject to s uch
conditions as he may specify, grant exemption from the
requirements of this sub-rule, if in his opinion, s uitable
person possessing the necessary qualification and
experience is not available for appointment:

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Provided further that, in the case of a person who has
been working as a safety officer for a period not l ess
than 3 years on the date or commencement of this ru le,
the Chief Inspector may subject to such conditions as he
may specify relax all or any or the above said
qualifications.”

13. It is next contended that by an order of transfer, the employer
cannot change the cadre of an employee or affect hi s status. It is evident
that the area of operation of duties, scope of work etc. that was earlier
assigned to the Petitioner at KBUNL, Kanti, Bihar w as in complete
derogation of the job profile as a Scientist, and n eedless to state that the
Petitioner would be required to perform the same fu nctions at Kudgi as
there is no work of Research and Development, NTPC Kudgi being a
Coal based Thermal Power Plant only, with no R&D Se tup. The Transfer
Order is illegal as it has resulted in degrading th e status of the Petitioner
as a Scientist and while the Petitioner cannot resi st a transfer order,
however, he can only be transferred to a post of eq uivalent status. It is
argued that the Supreme Court way back in 1974 in t he case of E.P.
Royappa vs. State of Tamil Nadu, 1974 (4) SCC 3 held that upon transfer
equivalence is to be seen not only in terms of pay scale but also the
attendant conditions of service. In other words, th e true criterion for
equivalence is the status and nature and responsibi lities of duties attached
to a post. Reliance is placed on the judgment in State of Mysore vs. H.
Papanna Gowda, 1970 (3) SCC 545 wherein Supreme Court held that
transfer of Government servant to a body Corporate resulted in extinction
of his status as a civil servant and would be inval id.
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14. The next contention is that the impugned order date d 15.04.2020 is
also in violation of order dated 06.02.2020 passed by this Court in
W.P.(C) 1289/2019 wherein it was observed by the Co urt that it would
hope and expect that the Management of NTPC conside rs the case of the
Petitioner in the spirit of getting the duties disc harged for which he was
appointed rather than being made to do jobs like ov erseeing the House
Keeping or the Safety Department, etc. The petition was disposed of
permitting the Petitioner to make an appropriate re presentation seeking to
be assigned duties commensurate to his appointment and qualifications,
but NTPC instead of implementing the order in its l etter and spirit has
rejected the representation mechanically and withou t dealing with the
issue of considering the transfer in accordance wit h the appointment of
the Petitioner. In the garb of giving an impression that the posting is to
enable the Petitioner to acquire multi-dimensional knowledge or skills,
NTPC is in fact destroying his career by taking him out of his cadre and
making him work in areas for which he has no qualif ication or
experience.
15. Another contention strenuously urged and labored up on by learned
counsel for the Petitioner is that the Transfer Ord er is in violation of
Clause 7 of the Job Rotation Policy dated 30.09.201 7, which
categorically excludes Scientists at NETRA from pro visions of job
rotation, due to their specialized qualifications a nd skills. Clause 7
provides a list of 13 functions which are excluded from job rotation and
despite the said stipulation, vide the impugned ord er NTPC has
erroneously excluded the Petitioner from deriving b enefit under the said
Policy, on the ground that Petitioner has been work ing at E5 level since
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01.01.2010 and the Policy does not apply at that le vel. This according to
the Petitioner is an incorrect reading and interpre tation of the policy, as
clearly the Policy applies upto E7 level, as on 30. 09.2017, the date it was
issued. In fact the Policy has been issued for the progress of the
Organization as well as the employees and there is no reason why the
NTPC should not adhere to its own Policy. Relevant portion relied upon
by the learned counsel is as follows :-
“4.0 Job Rotation Policy Applicability

The job rotation policy shall only be applicable to all
regular executives upto E7 level, on the rolls of t he
Company as well as those who are on secondment to
subsidiaries ; joint venture companies of NTPC. In case
of deputationists to other organizations, the perio d of
deputation shall not be considered as job rotation.

7.0 General Conditions

• The illustrative list of main functions, sub-
function clusters and sub-functions is given as
Annexure A.
• Job rotation movement shall take place across the
Main functions / sub-function clusters / sub-
functions.
• Every job rotation should be preceded by
compulsorily going through relevant modules
before embarking on the new role. Such trainings
shall be coordinated by PMI / RLI / EDC at CC /
Region / Unit respectively.
• In the event of a promotion being accompanied by
job rotation, the promotion shall be effective only
if the recommended rotation is accepted by the
executive.
• Job Rotation shall be done on completion of
specified period of 3 to 5 years at Sensitive Posts .
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• Executives who are due to superannuate within 5
years shall be exempt from job Rotation.
• The list of functions which are excluded from the
provision of job rotation are as under :

* Medical
* Legal
* Company Secretary
* NETRA (Scientists only)
* Geology
* Chemistry
* Mining (Recruited specifically for Mining)
* Safety (Qualified safety officers)
* PMI (Recruited as Faculty only)
* Corporate Communication / Public Relations
* Rajbhasha
* IT (Recruited specifically for ERP / Basis /
ABAP)
* Hydro (recruited specifically for Hydro)

• Such executives who are found to be non-
performing / not aligned in the existing function
an also be rotated to other function with an
objective to give a chance to do better and in
such cases rotation may be done even before the
minimum mandatory period.

• The procedural guidelines for policy
administration are enclosed at Annexure-B.

• Modification / cancellation / addition /
amendment to the list of Main functions; Sub-
function clusters and Sub-functions shall be done
by Corporate HR Department with approval of
Director (HR).

16. Last but not the least, it is argued that none of t he Scientists in
NTPC have been treated like the Petitioner and assi gned the job of non-
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Scientists, and the Transfer Order is a result of m alafide, discrimination
and vindictiveness. Repeated postings of the Petiti oner first to Bihar and
then to Karnataka, allocating to departments like m echanical and
operations and safety, wholly unconnected to his qu alifications and job
profile as also requiring the Petitioner to report to his juniors, reflects that
there is no requirement of the Petitioner to be tra nsferred and thus no
administrative exigency can be pleaded by NTPC.
17. Per contra , Mr. Tushar Mehta, learned Solicitor General of In dia
appearing for the NTPC supporting the Transfer Orde r argued that the
Transfer Order impugned in the petition is in conso nance with the
Appointment order of the Petitioner and the Service Rules of NTPC.
Clause 8 of the Appointment Order clearly stipulate s that the designation
could be changed depending on the work assigned to the Petitioner from
time to time. Attention is also drawn to Clause 9 o f the Appointment
Order, according to which the Company reserves the right to post the
Petitioner at any of its Offices / Projects / Subsi diaries / Joint Ventures or
any Government Department / Statutory Body / Public Sector
Undertaking, anywhere in India or abroad. According to Mr. Mehta, the
job of the Petitioner carries a transfer liability both in India and abroad
and he does not have any right to contend that he m ust continue to be
posted at one place only. Genesis of the Appointmen t Letter is in the
Service Rules of the Company which are to the same effect.
18. It is contended that Petitioner was appointed as E4 level Executive.
The standard terms and conditions of appointment we re duly enclosed
with the Appointment Order and are binding on the P etitioner. Keeping in
view the terms and conditions, the Petitioner was p romoted from E4 to
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E5 level on 26.02.2010 with similarly placed employ ees. After a span of
almost ten years, Petitioner was for the first time transferred from
NETRA to Kanti, Bihar to work in a Subsidiary of NT PC Ltd. and has
been recently transferred to Kudgi Project as he is required to work in the
said Project, based on his educational qualificatio ns and experience.
19. The next contention of Mr. Mehta is that the issue of
transferability of the Petitioner in the background of his being a Scientist
has already attained finality in view of the orders passed by the Courts in
the previous round of litigations between the parti es. His initial order of
transfer to Bihar was unsuccessfully challenged by the Petitioner in a writ
petition being W.P.(C) No.738/2016. LPA as well as the SLP against the
said order were dismissed by the Division Bench of this Court and the
Supreme Court, respectively. Writ Petition seeking direction for being
transferred to NETRA in view of the Job Rotation Po licy dated
30.09.2017 was dismissed vide order dated 22.10.201 8. In writ petition
W.P. (C) No.1289/2019, Petitioner again sought dire ctions to be
transferred to NETRA and the grounds raised covered the aspect that
Petitioner being a Scientist could not have been tr ansferred. This petition
was also dismissed by order dated 06.02.2020 and th e Contempt Petition
alleging violation of the said order was dismissed as withdrawn. In view
of these orders, it is not open to the Petitioner t o assail the impugned
order on the same grounds, yet again.
20. Pleading administrative exigency, Mr. Mehta contend s that the
impugned Transfer Order to Kudgi has been issued pu rely on
administrative grounds, as the earlier Officer who was required to join at
Kudgi, on promotion, gave up promotion and did not join. The post
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cannot be left vacant and is required to be manned by an experienced
officer such as the Petitioner. It is also argued t hat a wrong impression is
being given by the Petitioner that his work profile or status would be
adversely affected by the present transfer. Petitio ner was appointed along
with several other B.Tech or Engineering employees who have been
working at similar positions across the Company and have been posted as
per the job requirement. There is no change of the service conditions of
the Petitioner, which will continue to be the same. Petitioner is presently
working in the Safety Department, which requires a particular set of skills
as upkeeping Safety of a Thermal Plant is a high te chnical task that needs
trained and experienced persons since it includes s afety, cleaning and
maintenance of boilers, switches, gas, etc. Any min or negligence or error
may result in mishaps and/or unwarranted accidents. Further, similar
transfers have been effected in the past with respe ct to other Scientists,
and the list of such transfers was placed alongwith the additional affidavit
in the earlier round of litigation and is on record of this Court.
21. In so far as the argument of malafide by the Petiti oner is
concerned, it is argued by Mr. Mehta that the Petit ioner has only made
vague allegations of malafides without any actual i ncidents or material on
record to prove and establish the same. In N.K. Singh vs. Union of India
& Ors. (1994) 6 SCC 98 Supreme Court has held that there has to be very
strong and convincing evidence to establish the all egations of malafide,
and vague allegations without supporting material c annot help the
Petitioner.
22. It is next contended that the scope of judicial rev iew of this Court
in a petition under Article 226 of the Constitution to interfere in
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administrative transfers is extremely limited. This issue has been
considered time and again by the Courts and is well settled by a catena of
decisions that it is entirely for the Competent Aut hority to decide when
and where a public servant is to be transferred. Tr ansfer is not only an
incident but an essential condition of service and cannot be said to
adversely affect a service condition of an employee . No employee can
claim a vested right to remain posted at a particul ar place. It is the domain
and the prerogative of an employer to decide the pl ace of posting, and the
Court should not interfere in the administrative de cisions as it also lacks
the expertise to decide how an employee is to be ut ilized for carrying out
the job assigned against a post at a particular pla ce of posting.
23. Countering the submissions of Mr. Mehta, learned co unsel for the
Petitioner Mr. Mishra, in rejoinder, sought to reit erate that under the garb
of administrative transfer, Petitioner cannot be as signed jobs which are
not in keeping with his qualifications, experience and initial recruitment.
Reliance on two paras 8 and 9 of the Appointment Le tter by NTPC is
misconceived. Alongwith the offer of appointment, N TPC had appended
a two-page ‘standard terms and conditions of appoin tment’ containing 12
paras, which were verbatim same for all types of Ex ecutives, whether
generalists or specialists or from the Engineering / Chemistry / HR /
Medical / Mining or Geology Stream. Being standard terms, they cannot
be relied upon by the NTPC in the case of a special ist like the Petitioner.
The terms would have to be read with the nature of appointment and the
job profile of the post in question. By changing th e nomenclature of the
designation, the nature of work of the Petitioner c annot be changed by
non-contextual interpretation of para 8, and likewi se as per para 9, only
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posting is transferrable and not the nature of work . Careful reading of
para 8 of the Service Rules shows that it relates o nly to transfer and not
the nature of work.
24. In so far as the list of employees given by the NTP C in the
additional affidavit filed in the Contempt Petition , it is argued by Mr.
Mishra that none of the persons named in the said a ffidavits dated
14.09.2020 and 23.09.2020 were having the qualifica tion and R&D
Training or experience of a Scientist, and the list is thus irrelevant.
25. As far as the argument that the issue of transfer o f the Petitioner as
a Scientist has attained finality in the earlier ro unds of litigations is
concerned, learned counsel for the Petitioner stren uously argued that the
stand of NTPC is totally unsustainable. W.P.(C) No. 738/2016 was not
decided on merits and was disposed of as infructuou s as the Release
Order had been passed during the pendency of the pe tition, in the absence
of an interim order of stay. Division Bench in the appeal dismissed the
same as not maintainable and in so far as the SLP i s concerned, the same
was dismissed ‘in limine’ and therefore there is no affirmation of the
orders passed by the Courts. In W.P.(C) No.11382/20 18, this Court
directed the NTPC Management to decide the represen tation dated
19.12.2017 made by the Petitioner while dealing wit h the issues raised by
him. Representation was, however, rejected by erron eously observing that
the Job Rotation Policy was applicable only up to E 4 level and by co-
relating the same incorrectly with Clause 4.2 of th e Career Development
and Succession Policy whereas the relevant clause i s Clause 4.3. W.P(C)
No.1289/2019 was disposed of by directing NTPC to d ecide the
representation as and when made by the Petitioner, which the Petitioner
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did on 18.02.2020. Contempt Petition was withdrawn solely on the
ground that the Contempt jurisdiction is limited in its nature and the
appropriate remedy was to file a writ petition. Thu s, it cannot be argued
by the Respondents that the issue of transferabilit y of the Petitioner in the
background of his being a Scientist has attained fi nality in the earlier
rounds of litigation.
26. I have heard the learned counsel for the Petitioner and learned
Solicitor General of India for the NTPC as well as counsel for the Union
of India.
27. The facts that emerge from the narrative above are that the
Petitioner was appointed at the E4 level pursuant t o an Employment
Notice dated 30.10.2004. It is undisputed that he w as recruited against an
advertisement which had prescribed specific qualifi cations and post
qualification experience related to Mechanical / Ch emical Engineering. It
is also undisputed that the Petitioner was working at NETRA for over ten
years until he was transferred on 29.01.2016 and po sted at Kanti, Bihar,
firstly in Operations (General) and then in Operati ons (Shift), followed by
Operations (House Keeping) and then in the Safety D epartment.
Petitioner had initially challenged his Transfer Or der dated 14.07.2015 in
W.P.(C) 738/2016 but was unsuccessful in getting an order quashing the
Transfer Order. The order of the Single Judge was u pheld by the Division
Bench of this Court and finally by the Supreme Cour t when the SLP(C)
was dismissed vide order dated 05.08.2016. Subseque nt thereto, the
Petitioner made a representation dated 19.12.2017 s eeking transfer back
to NETRA on the basis of a Corporate Circular No. 8 41 of 2017 dated
30.09.2017 which was a Job Rotation Policy. On the representation being
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rejected, Petitioner filed a writ petition before t his Court being W.P.(C)
1289/2019 which was disposed of on 06.02.2020.
28. Pursuant to the liberty granted by the Court vide o rder dated
06.02.2020, the Petitioner made a representation wh ich was rejected by
NTPC vide order dated 15.04.2020 and which is impug ned in the present
petition. Subsequently, the Petitioner was transfer red vide order dated
22.10.2020 to NTPC, Kudgi as Senior Manager in Safe ty Department and
the said order is the substantive order challenged in the present petition.
29. The fulcrum of the arguments of the Petitioner is t hat he was
appointed as a Scientist (R&D) with special educati onal qualifications
and specialization in the field of Engineering and can only be deployed at
such Establishments of NTPC where he can be utilize d to work as a
Scientist, and therefore transferring him to the Sa fety Department at
Kudgi is violative of his very appointment and spec ialization. Added to
this is the argument that the Petitioner is governe d by the Job Rotation
Policy dated 30.09.2017 and the Scientists, NETRA a re categorically
excluded from job rotation by virtue of Clause 7 of the Policy, and hence
the impugned Transfer Order is contrary to and viol ative of the said
policy. The argument is elaborated by contending th at a Scientist cannot
be made to work against non-scientific posts, and w orking in the Safety
Department is changing the entire nature of work of the Petitioner
including his status and is derogatory in terms of job profile.
30. There is no doubt that as per the advertisement the educational
qualifications required were in the field of Mechan ical/Chemical
Engineering and the Petitioner, as indicated from t he appointment letter,
was appointed to the post of ‘Scientist’ at E4 leve l. However, as rightly
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contended by Mr. Mehta, it was clearly stipulated i n Clause 8 of the
Standard Terms and Conditions of Appointment, appen ded to the
appointment letter that the designation of the Peti tioner could be changed
depending on the work assigned from time to time. R elevant clause is as
under :-
“8. Your designation upon joining the Company will be
as already mentioned, however, it can be changed
depending on work assigned to you from time to time .”

31. While the Petitioner has sought to argue that these are standard
terms and conditions which are appended alongwith a ppointment letters
of employees belonging to various cadres such as Me dical, etc., but it
cannot be overlooked that the terms and conditions were part of the
appointment conditions and were accepted by the Pet itioner with open
eyes and without any demur or protest. No objection has been raised to
these terms and conditions by the Petitioner throug h his earlier years of
service and were well known to him and understood b y him while
accepting the appointment. Mr. Mehta is also right in his contention that
the job of the Petitioner carries not only an All I ndia Service Liability but
he can even be posted abroad, if so required on acc ount of administrative
exigency. By virtue of Clause 9 of the terms of app ointment, the
Petitioner was well informed that the postings in N TPC were
transferrable and the company reserved the right to post him at any Office
/ Projects / Subsidiary / Joint Venture or any othe r Government
Department, etc. in India or abroad. Clause 9 is as follows :
“9. Since the postings in the Company are transfera ble,
the Company reserves the right to post you at any o f its
Offices/Projects/Subsidiaries/Joint Ventures or any
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Government department/statutory body/public sector
undertaking anywhere in India or abroad.”

32. This term of the service condition was also clearly known to the
Petitioner when the appointment letter was issued a nd was accepted by
him. Petitioner cannot therefore claim that he has a right to remain posted
at a particular place, as his terms and conditions of appointment enable
NTPC to post him as per the administrative exigenci es and/or
requirements. Transfer is therefore an incident of service of the Petitioner.
33. In so far as the argument that the Petitioner canno t be transferred
against a post which carries non-scientific functio ns is concerned, while
there cannot be a doubt that an employee must be de ployed against posts
where his educational qualifications and experience as well as expertise
can be best utilized, however, it is equally settle d in law that it is the
prerogative and the domain of an employer to decide as to where and how
an employee has to be transferred and deployed as p er the administrative
requirements and exigencies. It is neither the role of a Court nor its
expertise to substitute its own decision or wisdom in deciding the place of
posting of an employee, unless the transfer is mala fide or violative of a
Policy or a Statutory Rule. Petitioner was initiall y deployed at NETRA
where his services were utilized for over ten years but eventually the
NTPC transferred the Petitioner to Bihar to utilize him in the Operations
& Maintenance Department and thereafter in the Safe ty Department. By
the impugned Transfer Order, the Petitioner stands transferred to
Karnataka in the Safety Department. The Respondents have sought to
explain during the arguments as well as in the Writ ten Submissions that
the transfer of the Petitioner was initially done t o KBUNL, Bihar as there
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was a requirement in that place as also to enable t he Petitioner to acquire
multi dimensional knowledge and skills for self dev elopment, to shoulder
higher managerial responsibility and provide opport unity in diversified
geographic and operational environment. As far as t he present transfer is
concerned, it is the categorical stand of NTPC that it is on account of pure
administrative exigency, as the earlier Officer who was to join on
promotion did not join and also gave up promotion. It is also explained
that there has been no degradation of the work prof ile or cadre or service
condition of the Petitioner, and that similarly pla ced employees with
Engineering Degrees have been posted across the Pla nts of the Company
depending on the requirement of the officer at a gi ven place.
34. Mr. Mehta has during his arguments specifically tak en a stand on
instructions that the Petitioner is giving an impre ssion as if the work of
House Keeping or such like work in the Safety Depar tment is akin to the
job of House Keeping in Hotels and that the nature of work is far from a
job requiring Engineering skills, but this is incor rect. It is clarified that
the work in a Safety Department requires a special Engineering skill as it
involves safety of a Thermal Power Plant, which can only be executed by
a trained and experienced person as it includes saf ety, cleaning and
maintenance of boilers, switches, gas, etc. and any minor negligence or
error can result in mishappening and do require eng ineering knowledge
and skill. It is beyond a doubt that it is for the NTPC to decide as to how
the Petitioner has to be best utilized keeping in v iew his qualifications
and experience. If the Competent Authority has take n a considered
decision to utilize the skills and expertise of the Petitioner in the Safety
Department, keeping in view the technical nature of the work executed
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therein, there is no reason for the Court to interv ene and substitute its
decision, more particularly when the Court has no e xpertise to decide
how an Engineer can be utilized by the employer. Th ese are decisions
best left to the employer and are beyond the limite d scope of interference
in transfer matters while exercising power of judic ial review.
35. Petitioner has placed heavy reliance on the Job Rot ation Policy to
contend that Scientist, NETRA are excluded from the said Policy and
therefore the transfer of a Scientist working in NE TRA cannot be made
on account of job rotation. The argument of the NTP C per contra is that
the said Policy does not apply to the Petitioner as he is not in the E4 level
as also that the NTPC has a separate Transfer Polic y under which the
impugned transfer has been effected. While I do fin d force in the
contention of the Petitioner that the Job Rotation Policy applies to
Executives at the E5 level as well and it is wrong for the NTPC to
contend that it is only applicable at E4 level, how ever, this argument
would still not inure to the advantage of the Petit ioner, for two reasons.
First and foremost, the issue that the NTPC has a s eparate Transfer Policy
is no longer res integra. In the earlier round of l itigation in W.P.(C)
1289/2019 Petitioner had raised an identical ground while challenging his
transfer to Bihar. The contention raised was record ed in para 3 of the
Order dated 06.02.2020 which is as follows :-
“3. In the submissions of ld. counsel for the petit ioner,
the said job rotation policy excludes any job rotat ion
movement inter alia of scientists and therefore, in his
submissions, as per the extant job rotation policy, the
petitioner was required to be transferred back to
NETRA, where, the scientists amongst others exclude d
thereby, are to be retained as per the policy. Adve rting
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to the diverse provisions of the said Job Rotation Policy
and Career Development Succession Planning Policy
dated 03.10.2017 -which form part of the paper book ,
ld. counsel for the petitioner strenuously contends that
the job profile of the petitioner required the disc harge
of functions attached to the post of Scientist only , but,
the petitioner on his transfer, was being made to
discharge functions, which had no relation to the p ost of
the Scientist. In support of his such submissions, the ld.
counsel for the petitioner has very ably taken the Court
to the various office orders that came to be passed on
his joining KBUNL. It emerges from the record that on
his transfer to KBUNL and his joining there, he was
issued the joining order no. 159/2016 dated 08.02.2 016,
and, thereby, he was posted as Sr.Manager
(Mech.Maint.). Then, he was issued office order dat ed
10.03.2016, and, thereby, posted to Operation
Department with immediate effect. Thereafter, he wa s
issued another officer order dated 16.04.2016, and,
thereby, posted for the shift operation with immedi ate
effect. Thereafter, he was issued another office or der
dated 29.11.2017, and, thereby, assigned to oversee
housekeeping work – interestingly, a Scientist depu ted to
oversee housekeeping work. Then, another office ord er
dated 28.02.2018 followed, and, thereby, the petiti oner
came to be posted to Safety Department. During the
course of hearing, on being queried, ld. counsel fo r the
petitioner states that as yet, the petitioner conti nues to
remain posted with Safety department. In the given
factual conspectus, ld. counsel for the petitioner
strenuously seeks quashing of the impugned decision
taken by NTPC, whereby, the representation made by
the petitioner for being posted back to NETRA was
refused to be entertained.”

36. NTPC had opposed the said contention and the argume nts as
recorded in para 4 of the said order are as follows :-
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“4. Mr. Sangal, ld. senior counsel for NTPC on his part
strenuously contends that either of the policies re lied
upon by the petitioner was of no consequence for th e
relief sought by the petitioner. In his submissions , either
of the two policies, was meant for affording
opportunities to the Executives to enable continuou s
capability building as well as equip them with the
requisite knowledge and for assuming higher
responsibilities in future and that, such policies were
distinct from the transfer policy of NTPC.”

37. The Court had categorically observed that NTPC main tains a
separate Transfer Policy for Executives and had fou nd merit to this extent
in the arguments of the counsels for NTPC. Relevant part of para 5 of the
Order dated 06.02.2020 is as follows :-
“5. During the course of hearing it does transpire that
NTPC maintains a separate transfer policy for
Executives, and, it is the petitioner only, who has placed
on record a copy thereof along with the rejoinder a s
Annexure P-1(colly). Taking note of the submissions of
Mr. Sangal and the transfer policy for Executives b eing
already in place, the submissions of Mr. Sangal,ld.
senior counsel are found well merited. In view ther eof,
the Court does not consider it necessary to get int o the
merits of the basis on which NTPC issued the impugn ed
letter dated 21.11.2018 rejecting the petitioner’s
representation. Then, suffice it would be to observ e, the
posting of the petitioner to KBUNL having attained
finality, which got the approval of the Court vide its
order dated 23.05.2016 passed in W.P.(C) 738/2016,
the only recourse available to the petitioner is to seek
his transfer/posting as per the applicable transfer
policy. Mr. Sangal, ld. senior counsel on his part
submits, for the purpose, the petitioner is require d to
make a representation and any such representation c an
be made to the Management of NTPC. At this stage, l d.
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counsel for the petitioner comes forward to say tha t he
has instructions to not to press the petition any f urther
and that the petitioner shall make a representation to
the Management of NTPC for his posting/transfer to
any place in India for discharging the duties for w hich
he was appointed. The Court considers it to be very fair
and it is hoped that the Management of NTPC conside rs
the case of the petitioner in the spirit of getting the
duties discharged by the petitioner for which he wa s
appointed rather than being made to do other jobs l ike
overseeing the housekeeping or safety department et c.
etc. etc.”

38. Once the Court has already observed that there is a separate
Transfer Policy, the Petitioner cannot rely on the Job Rotation Policy out
of context to challenge the Transfer Order based on a clause of the latter
Policy. Additionally, if one was to peruse the said Policy dated
30.09.2017, it is evident by a bare reading that th e Policy was brought in
to provide diverse on-the-job learning opportunitie s to Executives to
enable continuous capability building and to equip them with knowledge
and skills for assuming higher responsibilities in future and for career
growth. Clauses 2.0 and 3.0 would shed light on the rationale behind the
Job Rotation Policy and are as follows :-
“2.0 With the aforementioned objectives the existin g
Job Rotation Policy has been revisited to make it m ore
effective and in tune with individual and business
requirements. The revised Job Rotation Policy is pl aced
at Annexure-I.

3.0 This policy supersedes the earlier scheme of Jo b
Rotation and Career Growth Path and all other
communications with regard to Job Rotation.”

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39. It is in this context that Clause 7, heavily relied upon by the
Petitioner, laid down general conditions of Job Rot ation and includes the
list of functions which are excluded from the provi sion of job rotation and
this list includes NETRA (Scientist) only. It is th us clear that the
objective of the Policy is completely distinct from the Transfer Policy
where transfers are made on different consideration s. In fact it is crucial
to note at this stage that in LPA 380/2016, one of the contentions raised
before the Division Bench was that given the nature and purpose of the
Transfer Policy, Petitioner’s posting to a non-scie ntific post was legal
malice. Relying on the Transfer Policy, especially paras 1.2 and 1.4, it
was contended that keeping in view the mandate to o ptimally utilize
every personnel’s capacity, posting to a non-scient ific position i.e., in
Operations and Maintenance, was unwarranted. The Di vision Bench
taking note of the argument observed that Petitione r as a public employee
was on notice of the conditions of his employment, that not only was he
entering a transferrable service but also that he c ould be moved out atleast
once after ten years, and therefore the question of appropriateness of the
posting would hardly be subject matter of scrutiny in judicial review. The
conclusion that one draws from the order of the Div ision Bench is that the
Court did not agree with the argument of the Petiti oner that he could not
be posted against a non-scientific post being appoi nted as a Scientist.
Therefore this argument of the Petitioner cannot be sustained in the
present petition. Relevant para of the Order dated 03.06.2016 is as
follows :-
“2. The Single Judge’s rejection of the appellant’s writ
petition is the subject matter of these proceedings . Two
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grievances were articulated during the course of th e
proceedings. First that given the nature and purpos e of
the transfer policy, the appellant’s posting to ano n-
scientific position in essence is legal malice and two,
that denial of the relevant PACE forms and
Normalisation/ Moderation recorded relevant to the
petitioner’s consideration for promotion to E-6 pos ition
was wrongful. With respect to the first submission, Mr.
V.K Garg, learned counsel for the appellant relied upon
the transfer policy-especially in paras 1.2 and 1.4 and
highlighted that keeping in view the organisational
mandate to optimally utilise every personnel’s capa city,
the impugned posting to a non-scientific position i .e.
one entailing operation and maintenance was
unwarranted. According to him, this amounted to leg al
malice and therefore was unsustainable in law. The
petitioner, as a public employee was on notice of t he
conditions of his employment that not only was he
entering transferable service but also that he coul d be
moved out at least once after 10 years. In these
circumstances, the question of the appropriateness of
the posting could hardly be the subject matter of
scrutiny in judicial review given the entirety of t he
circumstances.”

40. I also agree with the contention of Mr. Mehta that the scope of
interference in transfer matters is extremely limit ed, and ordinarily the
Court should not interfere unless malafides are est ablished or there are
violations of statutory Policies or Rules. It is eq ually settled that no
employee has a vested right to be posted at a parti cular place. In this
regard, I may allude to the judgment of the Supreme Court in N.K. Singh
(supra) wherein the Supreme Court observed that per sonnel management
of Government departments must be left to departmen t Heads as Courts
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lack necessary expertise of management except to th e extent of limited
judicial scrutiny. Relevant part of the judgement i s as under :-
“4. There are two aspects of transfer of a public s ervant
holding a sensitive and important post. One aspect
relates to the private rights of the public servant as an
individual pertaining only to his service career. T he
other is concerned with prejudice to public interes t
irrespective of the individual interest. The elemen t of
prejudice to public interest can be involved only i n
transfers from sensitive and important public offic es
and not in all transfers. Mere suspicion or likelih ood of
some prejudice to public interest is not enough and
there must be strong unimpeachable evidence to prov e
definite substantial prejudice to public interest t o make
it a vitiating factor in an appropriate case unless it is
justified on the ground of larger public interest a nd
exigencies of administration. Such cases would be r are
and this factor as a vitiating element must be acce pted
with great caution and circumspection.

xxx

23. ………The tendency of anyone to consider himself
indispensable is undemocratic and unhealthy.
Assessment of worth must be left to the bona fide
decision of the superiors in service and their hone st
assessment accepted as a part of service discipline .
Transfer of a government servant in a transferable
service is a necessary incident of the service care er.
Assessment of the quality of men is to be made by t he
superiors taking into account several factors inclu ding
suitability of the person for a particular post and
exigencies of administration. Several imponderables
requiring formation of a subjective opinion in that
sphere may be involved, at times. The only realisti c
approach is to leave it to the wisdom of that
hierarchical superiors to make that decision. Unles s the
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decision is vitiated by mala fides or infraction of any
professed norm or principle governing the transfer,
which alone can be scrutinised judicially, there ar e no
judicially manageable standards for scrutinising al l
transfers and the courts lack the necessary experti se for
personnel management of all government departments.
This must be left, in public interest, to the depar tmental
heads subject to the limited judicial scrutiny indi cated.”

41. In so far as the allegations of malafides are conce rned, Mr. Mehta
is right in his contention that there is hardly any pleading to support the
allegations of legal malice. The judgement of the S upreme Court in
Airports Authority of India v. Rajeev Ratan Pandey, (2009) 8 SCC 337
is apposite in this context. The Court observed:
“7. In State of U.P. v. Gobardhan Lal [(2004) 11 SCC
402 : 2005 SCC (L&S) 55] , while dealing with a mat ter
of transfer, this Court observed that allegations o f mala
fides must inspire confidence of the Court and ough t not
to be entertained on the mere asking of it or on
consideration borne out of conjectures or surmises and
except for strong and convincing reasons, no
interference would ordinarily be made with an order of
transfer. That the burden of proving mala fides is on a
person levelling such allegations and the burden is
heavy, admits of no legal ambiguity. Mere assertion or
bald statement is not enough to discharge the heavy
burden that the law imposes upon the person levelli ng
allegations of mala fides; it must be supported by
requisite materials.

8. In the present case, as noticed above, at the
threshold, no allegations of mala fides have been
pleaded in the writ petition. It is only by way of a
supplementary affidavit that allegations of mala fi des
have been put forth by Respondent 1 but even such
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allegations are not supported by any material
whatsoever. In a matter such as the present one whe re
plea of mala fides is not made in the writ petition and
the assertion of mala fides is made for the first t ime in a
supplementary affidavit which too is not supported by
any convincing and cogent material, the plea of mal a
fides hardly deserved acceptance, prima facie, just ifying
stay of operation of a transfer order.

xxx

10. In the writ petition, the transfer order has been
assailed by the present Respondent 1 on the sole gr ound
that it was violative of transfer policy framed by the
appellant. The High Court, did not even find any
contravention of transfer policy in transferring
Respondent 1 from Lucknow to Calicut. In a matter o f
transfer of a government employee, scope of judicia l
review is limited and the High Court would not inte rfere
with an order of transfer lightly, be it at interim stage or
final hearing. This is so because the courts do not
substitute their own decision in the matter of tran sfer.”

42. In Somesh Tiwari v. Union of India, (2009) 2 SCC 592 , the
Supreme Court delineated the scope of the Court’s i nterference in the
context of malice as follows:

“16. Indisputably an order of transfer is an
administrative order. There cannot be any doubt
whatsoever that transfer, which is ordinarily an in cident
of service should not be interfered with, save in c ases
where inter alia mala fide on the part of the autho rity is
proved. Mala fide is of two kinds—one malice in fac t
and the second malice in law. The order in question
would attract the principle of malice in law as it was not
based on any factor germane for passing an order of
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transfer and based on an irrelevant ground i.e. on the
allegations made against the appellant in the
anonymous complaint. It is one thing to say that th e
employer is entitled to pass an order of transfer i n
administrative exigencies but it is another thing t o say
that the order of transfer is passed by way of or i n lieu
of punishment. When an order of transfer is passed in
lieu of punishment, the same is liable to be set as ide
being wholly illegal.”

43. From the conspectus of the arguments made and the p leadings, this
Court is of the opinion that the impugned transfer is a routine transfer
made purely in the interest of administrative exige ncies and there is
nothing unusual or malafide. While this Court has n o doubt about the
technical qualifications, experience, expertise and calibre and credential
of the Petitioner yet it can only be observed that it is for the NTPC to
decide how to best utilise the services of the Peti tioner. The Courts have
been repeatedly observing that in the absence of ma lfides or policy
violations or a detrimental effect on the career of the employee, the
challenge to the Transfer Order must be eschewed an d interference
should be minimal.
44. For the aforesaid reasons, the Court does not find this to be a fit
case to interfere in the impugned transfer order. T he Petitioner is granted
a joining period of two weeks from today to join th e place of posting. It is
relevant to note that during the pendency of the pr esent petition, the Court
had directed the Respondents not to insist on the P etitioner joining the
new place of posting as the matter was subjudice. T hus the period for
which the petition was pending before this Court, i ncluding the period of
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two weeks within which the Petitioner has been perm itted to join at
Kudgi, Karnataka shall be treated on duty by NTPC f or all purposes.
45. Petition is hereby dismissed along with pending app lication.

JYOTI SINGH, J
JANUARY 04, 2021
yg

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