Dharam Shah vs BHARAT SANCHAR NIGAM LIMITED on 12 October 2026

ORDER

Per: Hon’ble Shri Jayesh V Bhairavia, Member (J)

1. The grievance of the applicant in the instant OA is that the respondents, vide impugned Transfer Order dated 02.05.2025 bearing No. BSNLCO- PETS/13[11]/1/2025-PERS/1 (Annexure-A/1 refer), have transferred him from Gujarat Circle to Kerala Circle on the purported ground of “Long Stay”, despite the fact that the competent authority, vide Office Order dated 28.01.2025, had specifically granted him immunity from transfer and permitted his retention in Gujarat Circle upto 27.09.2026 by virtue of his position as an office bearer of the All India Graduate Engineers & Telecom Officers Association (in short „AIGETOA‟). Thus, the applicant contended that the impugned transfer order, insofar as it relates to the applicant whose name figures at Serial No.230 of Annexure-1 thereto, has been issued in blatant disregard of the subsisting transfer immunity granted to him and is consequently arbitrary, illegal and unsustainable in law.

2. Thus, by filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:- “A) The Hon'ble Tribunal be pleased to declare the impugned order dated 02.05.2025 No.BSNLCO-PETS/13[11]/1/2025-PERS/1 issued by the respondent no.2 at ANNEXURE-A/1,qua the applicant [sr.no 230], whereby the applicant is transferred from Gujarat Circle to Kerala circle in blatant violation of order dated 28.1.2025 as arbitrary, illegal, unjust and violative of Articles 14 and 16 of the Constitution of India and be pleased to quash and set aside the same and direct the respondents to restore back and allow the applicant to continue at present place. B) Be pleased to direct the respondents not to relieve the applicant pursuant to the impugned transfer order at Kerala Circle during the subsistence of his retention period and allow the applicant to continue in Gujarat Circle at till 24.09.2026 in light of the letter dated 28.01.2025. C) Any other relief this Hon‟ble Tribunal deem fit and proper, in interest of justice be granted.”

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3. Facts of the case in brief are that the applicant was appointed as Junior Telecom Officer (in short „JTO‟), Trainee, with effect from 27.07.1998 under the Department of Telecommunications (in short „DoT‟). Thereafter, vide letter dated 30.09.2002, the respondent No.2 confirmed the applicant as JTO with effect from 27.07.2000. 3.1 Upon constitution of Bharat Sanchar Nigam Limited (in short „BSNL‟) from the Department of Telecommunications (DoT) with effect from 01.10.2000, the applicant, being a Group-B officer of DoT, opted for permanent absorption in BSNL on 30.09.2003. Consequently, he was absorbed in BSNL with effect from 01.10.2000 and was posted at GMTD, Nadiad SSA. Subsequently, upon his promotion to the post of Sub-Divisional Engineer (SDE), the applicant was transferred from Nadiad SSA to Vadodara SSA vide order dated 11.12.2008. On completion of the prescribed tenure of three years, he was transferred back to Nadiad SSA in April 2011. 3.2 Thereafter, the applicant was promoted to the post of Assistant General Manager/Divisional Engineer (in short „AGM/DE‟) vide order dated 30.11.2022. At the relevant time, he was serving as Assistant General Manager, CFA Anand, Nadiad, under OA Ahmedabad BA. 3.3 On 28.09.2023, a new governing body of the All India Graduate Engineers & Telecom Officers Association (AIGETOA), Gujarat Circle, was constituted, wherein the applicant was appointed as Assistant District Secretary-I (ADS-I). The constitution of the newly formed governing body and the appointment of the applicant to the aforesaid post were communicated to the concerned authorities vide letter dated 19.10.2023 issued by the Circle Secretary (Annexure A/2 refer). 3.4 The applicant states that, for the purpose of transfer, the prescribed Circle tenure of AGMs/DEs was 25 years and that he had completed approximately 20 years of service in Gujarat Circle by 2024. Accordingly, he became liable to be considered for inter-Circle transfer P ANUKUMA

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on the ground of long stay. Pursuant thereto, the applicant exercised his option for inter-Circle transfer to Maharashtra Circle through the Online Transfer Portal (in short „OTP‟) vide application dated 06.03.2024 bearing No. 0000013409. The said option was duly approved by the competent authority. The online status reflecting the approval of the applicant's option wherein the applicant's name appears at Serial No.45 is at (Annexure A/3 refer). 3.5 Consequent upon the aforesaid approved option, the respondent No.2 issued an Inter-Circle Annual Transfer Order dated 11.06.2024, whereby the applicant was transferred from Gujarat Circle to Maharashtra Circle (Annexure A/5 refer). However, by virtue of his appointment as an office bearer, namely, Assistant District Secretary-I of AIGETOA, Gujarat Circle, the applicant claimed entitlement to immunity from transfer at the Circle/BA level in terms of the applicable instructions issued by the Corporate Office. In this regard, reliance has been placed upon the letters dated 21.07.2023 (Annexure A/4 refer) and 14.10.2022 issued by the Corporate Office (Annexure A/4 (Colly.) refer). 3.6 Considering the applicant's status as an office bearer of AIGETOA, the Corporate Office, BSNL, vide Office Order dated 28.01.2025, granted him retention in Gujarat Circle upto 27.09.2026. The said order further directed that the concerned executives were to be relieved to join their transferred Circle only upon expiry of the retention period. A copy of the Office Order dated 28.01.2025 is annexed with the OA and marked as Annexure A/6. 3.7 Notwithstanding the aforesaid Office Order dated 28.01.2025 granting the applicant retention in Gujarat Circle upto 27.09.2026, the respondent No.3, within about four months thereof and during the subsistence of the retention period, issued another Inter-Circle Annual Transfer Order dated 02.05.2025, whereby the applicant was transferred P ANUKUMA

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from Gujarat Circle to Kerala Circle. The reason recorded against the applicant in the said order was stated to be “Longest Stay”. 3.8 According to the applicant, the impugned Transfer Order dated 02.05.2025 was issued without taking into consideration the subsisting retention/immunity granted to him vide Office Order dated 28.01.2025 and without first cancelling or modifying the said order. The applicant further stated that his earlier transfer to Maharashtra Circle vide order dated 11.06.2024 had also not been cancelled, thereby resulting in a subsequent transfer order to Kerala Circle during the currency of the earlier transfer arrangement and the specific retention granted to him. 3.9 Aggrieved by the aforesaid action, the applicant submitted a representation dated 07.05.2025 (Annexure A/7 refer) before the respondent Nos.3 and 4, specifically pointing out that he had been granted immunity/retention on account of his holding the post of Assistant District Secretary-I of AIGETOA upto 27.09.2026 and that his earlier transfer order to Maharashtra Circle had not been cancelled. The applicant accordingly requested the authorities not to relieve him from Gujarat Circle pursuant to the impugned transfer order to Kerala Circle. 3.10 The applicant stated that, despite the aforesaid representation dated 07.05.2025, no decision thereon had been communicated to him. At the same time, there remained an apprehension that he could be relieved from Gujarat Circle at any time pursuant to the impugned Transfer Order dated 02.05.2025. 3.11 In these circumstances, the applicant has approached this Tribunal by filing the instant OA under Section 19 of the Administrative Tribunals Act, 1985, assailing the impugned Transfer Order dated 02.05.2025, principally on the ground that the same was issued during the subsistence of the specific retention/immunity granted to him upto 27.09.2026 and without consideration of the relevant orders and circumstances placed before the respondents. P ANUKUMA

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4. Pursuant to the notice issued by this Tribunal, the respondents have filed their reply opposing the claim of the applicant, to which the applicant has filed a rejoinder, controverting the averments made therein.

5. During the course of hearing, learned counsel for the applicant, Ms. Vilas Purani, submitted that the impugned Transfer Order dated 02.05.2025 (Annexure A/1 refer), whereby the applicant has been transferred from Gujarat Circle to Kerala Circle, is contrary to the transfer policy and the benefit of association immunity extended to him by the competent authority. 5.1 Learned counsel also submitted that, in terms of the transfer policy then in vogue, options were invited from employees for inter-Circle transfer. Accordingly, in March 2024, the applicant exercised his option for transfer from Gujarat Circle to Maharashtra Telecom Circle. The said option was duly approved by the competent authority, pursuant to which Transfer Order dated 11.06.2024 (Annexure A/4 refer) was issued transferring the applicant from Gujarat Circle to Maharashtra Circle. However, the applicant was not relieved and continued to serve in Gujarat Circle. 5.2 It is further submitted that the applicant had, in the meantime, been appointed as an office bearer and Assistant District Secretary-I of the newly constituted governing body of the AIGETOA, vide order dated 19.10.2023 (Annexure A/2 refer). By virtue of holding the said office, the applicant became entitled to the benefit of immunity from transfer in terms of the applicable instructions governing association office bearers, as noted in the preceding paras. 5.3 Learned counsel further submitted that the Corporate Office, BSNL, New Delhi, vide Office Order dated 28.01.2025 (Annexure A/6 refer), specifically notified the names of office bearers of the association working in different Circles for the purpose of their retention in their respective present Circles for the period indicated against their names or P ANUKUMA

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till they continued to hold the post in the association, whichever was earlier, and until further orders. The name of the applicant appears at Serial No.1 of the said order and, against his name, the period of retention in Gujarat Circle has been specifically mentioned as 27.09.2026. 5.4 Learned counsel drew attention to the further stipulation contained in the aforesaid Office Order dated 28.01.2025, whereby the CGM concerned was requested to relieve the concerned executives to join their transferred Circles only upon expiry of the retention period, without awaiting any further correspondence from the Corporate Office. According to learned counsel, the aforesaid order clearly conferred upon the applicant a specific protection from transfer and permitted his retention in Gujarat Circle upto 27.09.2026. 5.5 Learned counsel vehemently contended that despite the aforesaid specific order granting retention to the applicant upto 27.09.2026, the respondents, without considering or taking into account the subsisting association immunity, issued the impugned Transfer Order dated 02.05.2025 transferring the applicant from Gujarat Circle to Kerala Circle. It is submitted that the impugned order is, therefore, contrary to and inconsistent with the earlier Office Order dated 28.01.2025 issued by the Corporate Office itself. 5.6 Learned counsel further submitted that the reasons recorded against the applicant in the impugned Transfer Order are also unsustainable. While the column relating to “reason” mentions “Un-implemented Transfer Order”, the “remarks” column records “Long Stay”. According to learned counsel, neither of these reasons can override the specific protection granted to the applicant under the Office Order dated 28.01.2025, whereby he had been permitted to remain in Gujarat Circle upto 27.09.2026 on account of his association office. 5.7 Learned counsel submitted that immediately upon receipt of the impugned Transfer Order, the applicant submitted a representation P ANUKUMA

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dated 07.05.2025 before the competent authority, specifically bringing to its notice the Office Order dated 28.01.2025 and the retention granted thereunder upto 27.09.2026. The applicant requested the competent authority to cancel the impugned transfer order qua him in view of the subsisting association immunity. 5.8 It is further submitted that, as on the date of filing of the OA, the applicant had not been relieved from Gujarat Circle. However, in view of the directions contained in paragraphs 3, 6 and 10 of the impugned Transfer Order dated 02.05.2025 requiring immediate relieving of the employees covered by the said order, there was a reasonable apprehension that the applicant could be relieved at any time. The applicant's name figures at Serial No.230 of the impugned Transfer

Order.

5.9 Learned counsel, therefore, submitted that the applicant could not be expected to await his actual relieving and thereby render the challenge to the impugned order infructuous. In the aforesaid circumstances, the applicant had no other efficacious remedy except to approach this Tribunal under Section 19 of the Administrative Tribunals Act, 1985. This Tribunal vide order dated 14.5.2025, as an interim relief, restrained the respondents to implement the impugned transfer order dated 02.05.2025 qua the applicant herein as also the respondents are directed to consider and decide the pending representation of the applicant dated 07.05.2025 and any decision taken thereon.

6. Per contra; learned counsel appearing for the respondents, Ms. R.R. Patel by referring to the reply, contended that the impugned transfer order dated 02.05.2025 has been issued strictly in accordance with the BSNL Transfer Policy dated 07.05.2008, as amended from time to time, and in the normal course of the annual inter-Circle transfer exercise. According to the respondents, the transfer was necessitated by administrative exigencies and organisational requirements. The respondents have submitted that transfer is an incidence of service and P ANUKUMA

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that an employee has no vested or indefeasible right to remain posted at a particular place. 6.1 Learned counsel also submitted that the applicant has been serving in Gujarat Circle since 27.07.1998 and has, therefore, completed more than 26 years in the said Circle. As per Para II of the Transfer Policy, the maximum permissible Circle tenure for TES Grade-B/JTS or equivalent cadre is stated to be 18 years. The applicant had thus exceeded the prescribed tenure and was liable to be transferred. 6.2 Learned counsel also pointed out that the applicant himself submitted an online request dated 06.03.2024 seeking inter-Circle transfer to Maharashtra Circle. The said request was considered by the respondents and the applicant was transferred to Maharashtra Circle vide order dated 11.06.2024. However, on the applicant's own request for immunity, the said transfer was not implemented and he was retained in Gujarat Circle. Subsequently, during the annual transfer exercise, and having regard to his long stay in Gujarat Circle, he was transferred to Kerala Circle vide order dated 02.05.2025. 6.3 Learned counsel further submitted that the applicant was granted immunity from transfer and was retained in Gujarat Circle up to 24.09.2026. Vide order dated 30.06.2025, his retention was extended up to 24.09.2026, and he is required to join Kerala Circle on 25.09.2026 upon completion of the immunity period. Thus, according to the respondents, the applicant has already been granted the benefit of immunity and has been permitted to continue at his present place of posting for the prescribed period. 6.4 Learned counsel also submitted that BSNL, being a pan-India telecom service provider, is required to deploy its officers in accordance with operational and administrative requirements. The impugned transfer formed part of a comprehensive annual transfer and posting exercise covering 839 executives across Telecom, Finance, Civil and Electrical cadres, undertaken to balance manpower, address long-stay cases and P ANUKUMA

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meet administrative requirements. She further submitted that following implementation of VRS-2019, under which approximately 78,500 employees retired, BSNL has been facing manpower shortages in various Circles, necessitating rationalization and deployment of officers according to organizational requirements. 6.5 In support of the claim of the respondents, learned counsel placed reliance upon a catena of judgments of the Hon'ble Supreme Court to contend that transfer is an incidence of service and that an employee has no legal right to insist upon posting at a particular place. According to the respondents, unless a transfer order is shown to be vitiated by mala fides or passed in violation of statutory provisions, the same is not amenable to judicial interference. In support of the aforesaid contention, reliance has been placed upon Union of India v. S.L. Abbas, reported in (1993) 4 SCC 357, wherein it has been held that: "An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that „the President may transfer a government servant from one post to another‟. That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order, though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later.”

It was further held that:

“Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline P ANUKUMA

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however does not confer upon the government employee a legally enforceable right.” 6.6 Reliance has also been placed upon Shilpi Bose v. State of Bihar, reported in AIR 1991 SC 532, wherein it was held that:

"the Courts should not interfere with transfer order which is made in public interest and for administrative reason 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 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 the affected party should approach the higher authorities in the Department. If the 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 conductive to public interest." 6.7 The respondents‟ counsel has further relied upon Gujarat Electricity Board v. Atmaram Sungomall Poshani, reported in AIR 1989 SC 1433, wherein it was held that:

"Transfer of a Government servant appointed to a particular cadre of transferable posts to the other is an incident of service. No Government servant or employee of Public undertaking has legal right for being posted at any particular place. Transfer from one place to another is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other." 6.8 Reliance has also been placed upon State of M.P. v. S.S. Kourav, reported in AIR 1995 SC 1056, wherein it was held: P ANUKUMA

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"The courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation. When, as in this case, the transfer order is issued on administrative grounds the Court cannot go into the expediency of posting an officer at a particular place." 6.9 Lastly, reliance has been placed upon Namrata Verma v. The State of Uttar Pradesh, SLP (C) No. 36717/2017, decided on 06.09.2021, wherein it has been held:

"It is not for the employee to insist to transfer him/her and/or not to transfer him/her at a particular place. It is for the employer to transfer an employee considering the requirement." 6.10 On the strength of the aforesaid judgments, the respondents‟ counsel argued that the Courts/Tribunals ought not to interfere with transfer orders passed in public interest or administrative exigency unless the same are shown to be mala fide or contrary to statutory provisions. 6.11 Learned counsel specifically relied upon Clause 3 of the BSNL Transfer Policy dated 07.05.2008, as amended from time to time, which, according to them, confers upon the management the power to transfer employees in accordance with business requirements and special needs. The relevant provision has been quoted in the reply as under:

"Clause 3: The management has the right to move or not to move employee(s) from one post/ job to another, to different locations, to different shifts, temporarily or permanently, as per business requirements and special needs."

On this basis, the respondents‟ counsel contended that transfer is an essential administrative tool for addressing manpower deficits, ensuring equitable deployment and meeting the evolving requirements of the organisation. 6.12 The respondents‟ counsel also contended that the applicant has no indefeasible or vested right to obtain transfer to a place of his choice. P ANUKUMA

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Although the applicant was initially transferred to Maharashtra Circle pursuant to his own request, the said transfer could not be implemented owing to the immunity granted to him. Consequently, in accordance with organizational requirements, his transfer Circle was modified to Kerala Circle, stated to be a Circle having greater manpower shortage in the AGM/IT cadre. 6.13 The respondents‟ counsel denied that the applicant was entitled to a hearing before issuance of the transfer order. It has been submitted that there is no provision requiring an employee to be heard before issuance of a transfer/posting order. According to the respondents, since the applicant's retention on immunity grounds continued up to 24.09.2026 and he was not required to join Kerala Circle until completion of the immunity period, no prejudice was caused to him. 6.14 The respondents‟ counsel argued that the applicant's aforesaid representation was duly considered by the competent authority and that, in fact, the applicant was granted immunity and retained in Gujarat Circle up to 24.09.2026. Thus, according to the respondents, there was no failure on the part of the competent authority to consider the applicant's request. The transfer order dated 11.06.2024 in favour of Maharashtra Circle was not implemented on account of the immunity granted to the applicant. Consequently, the subsequent transfer order dated 02.05.2025 was issued in accordance with organizational requirements and contained the remark of an "unimplemented transfer order". Thus, subsequent transfer order was issued before implementation of an earlier transfer order supersedes the earlier order. 6.15 The respondents‟ counsel has also denied the allegation of violation of Articles 14 and 16 of the Constitution of India. She submitted that the applicant, being an AGM-level officer having all-India transfer liability, cannot claim a right to remain posted in the same Circle throughout his service career. The respondents maintained that the impugned transfer P ANUKUMA

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order has been made in accordance with the applicable policy and organizational requirements. 6.16 Lastly, learned counsel submitted that the impugned transfer order dated 02.05.2025 is in accordance with the BSNL Transfer Policy, administrative requirements and public interest; that the applicant has failed to establish any mala fide, statutory violation or infringement of his legal rights; and that he has already been granted immunity up to 24.09.2026. Accordingly, the respondents have prayed that the instant OA be dismissed and the validity and enforceability of the impugned transfer order dated 02.05.2025 be upheld. 7.1 In rebuttal, besides reiterating the submissions as noted above, learned counsel for the applicant has submitted that the respondents have failed to appreciate the material circumstance that, after taking into consideration the relevant factors, the competent authority had granted him immunity from transfer and permitted his retention in Gujarat Circle till 27.09.2026 on account of his status as an office bearer of a recognised association. He contended that the said order continued to hold the field and was never cancelled, modified or withdrawn by the competent authority. Consequently, the respondents could not have issued the impugned transfer order dated 02.05.2025 during the currency of the subsisting immunity without first dealing with or cancelling the earlier retention order. 7.2 The applicant‟s counsel has further contended that the respondents‟ reliance upon his long stay of more than 26 years in Gujarat Circle does not, by itself, answer the grievance raised in the OA. The issue in this case is not whether the respondents ordinarily possess the power to transfer an employee on account of administrative requirements or long stay, but whether such power could validly be exercised in the facts of the present case when a specific order granting immunity and retention up to 27.09.2026 was already in operation. According to the applicant, once the competent authority had granted such immunity under the P ANUKUMA

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applicable policy, the same could not be disregarded or rendered ineffective by the subsequent issuance of a transfer order without any formal order cancelling or modifying the immunity. 7.3 The applicant‟s learned counsel has also disputed the respondents‟ contention that the earlier transfer order dated 11.06.2024 in favour of Maharashtra Circle was merely an “unimplemented” order and, therefore, could be automatically superseded by the impugned transfer order. The applicant has explained that the earlier transfer to Maharashtra was not implemented because, subsequent thereto, the competent authority granted him immunity and retention in Gujarat Circle till 27.09.2026. Thus, according to the applicant, non- implementation of the earlier order was itself a consequence of the subsequent grant of immunity and could not subsequently be relied upon by the respondents as a justification for changing the transfer destination from Maharashtra to Kerala. 7.4 Learned counsel also urged that the subsequent transfer order could not automatically obliterate or supersede a subsisting administrative order without the competent authority first considering the effect of the earlier order and passing an appropriate order cancelling, modifying or reviewing the same. The applicant has specifically asserted that no such order cancelling the retention/immunity granted till 27.09.2026 has been placed on record by the respondents. The grievance, therefore, is not founded upon any alleged vested right of the applicant to remain posted at a particular station, but upon the alleged arbitrary manner in which the respondents exercised their administrative power in disregard of a subsisting order. 7.5 As regards the respondents‟ reliance upon the general principle that transfer is an incidence of service and that the courts ordinarily exercise restraint in matters of transfer, the applicant has not disputed the said proposition. His contention, however, is that the present case falls within the recognized exceptions to the general rule, inasmuch as the P ANUKUMA

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impugned transfer is alleged to have been issued contrary to a subsisting immunity/retention order and in breach of the applicable policy governing transfer immunity available to office bearers of recognised associations. The applicant‟s counsel has, therefore, submitted that the question before the Tribunal is not whether the respondents possess the power of transfer, but whether such power has been exercised arbitrarily and without due regard to the binding administrative decision already taken in his favour. 7.6 The applicant has also questioned the respondents‟ attempt to completely dissociate the impugned transfer from the disciplinary proceedings initiated against him. It has been pointed out that the impugned transfer order dated 02.05.2025 preceded the service of the charge-sheet dated 24.04.2025 upon the applicant, which was admittedly served upon him only on 07.05.2025. According to the applicant, the close proximity of these events, when considered along with the other circumstances pleaded in the OA, gives rise to a legitimate apprehension that the transfer was not merely a routine administrative measure but was actuated by considerations other than ordinary administrative exigency. The applicant has accordingly characterised the action as a colourable exercise of power. 7.7 The applicant‟s counsel has further refuted the objection that the OA was premature on account of his representation allegedly being pending consideration. It has been submitted that once the impugned transfer order had been passed and the applicant was faced with the imminent possibility of being relieved, the mere pendency of a representation could not deprive him of the right to seek judicial protection against an order which, according to him, was contrary to the subsisting immunity granted by the competent authority. An important subsequent development, which also finds mention in the rejoinder, is the interim order dated 14.05.2025 passed by this Tribunal, whereby the operation and implementation of the impugned transfer order transferring the applicant to Kerala Circle was stayed. The applicant has specifically P ANUKUMA

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brought on record that, notwithstanding the subsistence of the aforesaid interim protection, the respondents subsequently issued an order dated 30.06.2025 making the applicant‟s retention in Gujarat Circle conditional upon his furnishing an undertaking that he would join Kerala Circle immediately after 24.09.2026 and further providing that, in the event of failure to do so, he could be relieved within one week. 7.8 According to the applicant, the aforesaid order dated 30.06.2025 amounts to an attempt to circumvent or dilute the interim protection granted by this Tribunal. Learned counsel contended that, once the implementation of the impugned transfer order stood stayed, the respondents could not, during the pendency of the proceedings, impose conditions which effectively sought to secure the very implementation of the stayed transfer order upon expiry of the immunity period. The applicant has accordingly prayed that the subsequent action of the respondents be viewed in the light of the subsisting judicial protection and not be permitted to defeat the subject matter of the present proceedings. 7.9 The applicant‟s counsel has reiterated that the applicant does not claim an indefeasible or vested right to be posted at Gujarat Circle or at any station of his choice. His grievance is confined to the manner in which the respondents have altered the transfer destination from Maharashtra Circle to Kerala Circle while the order granting him immunity and retention up to 27.09.2026 continued to subsist. According to him, the respondents have neither demonstrated that the said immunity was validly withdrawn nor disclosed any compelling administrative circumstance which necessitated the issuance of the impugned order during the currency of such immunity. 7.10 Thus, the substance of the applicant‟s rebuttal is that the respondents‟ reliance upon the general power of transfer and the doctrine that transfer is an incidence of service does not, by itself, resolve the specific controversy arising in the present OA. The applicant‟s counsel P ANUKUMA

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contended that the impugned order has to be examined in the context of the subsisting retention/immunity order, the earlier transfer order issued in his favour pursuant to his option for Maharashtra Circle, the absence of any formal order cancelling or modifying the immunity, and the subsequent order dated 30.06.2025 issued during the pendency of the proceedings and after the interim protection granted by this Tribunal. 7.11 Lastly, applicant‟s counsel has prayed that the contentions raised by the respondents be rejected and that the impugned transfer order dated 02.05.2025, together with the subsequent action founded thereon, be set aside as being arbitrary, contrary to the subsisting order granting immunity/retention, and vitiated by non-application of mind.

8. Having regard to the pleadings and the submissions advanced by learned counsel for the parties, in our considered view, the following principal issue arises for our consideration:

(i) Whether the impugned Transfer Order dated 02.05.2025, transferring the applicant from Gujarat Circle to Kerala Circle on the ground of long stay, is sustainable in law when, on the date of its issuance, the applicant was already covered by the specific Office Order dated 28.01.2025 granting him immunity from transfer and retention in Gujarat Circle upto 27.09.2026?

9. We have considered the rival submissions of learned counsel for the parties and have carefully perused the material placed on record.

10. It is not in dispute that the applicant had been transferred earlier from Gujarat Circle to Maharashtra Circle pursuant to the transfer order dated 11.06.2024. It is also not in dispute that subsequently, taking into consideration his status as an office bearer of the recognised association, the competent authority issued Office Order dated 28.01.2025 granting him retention in Gujarat Circle upto 27.09.2026. The said order specifically contemplated that the concerned executives would be relieved to join their transferred Circles only upon expiry of P ANUKUMA

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the retention period. The applicant's name finds mention in the said order with the retention period extending upto 27.09.2026.

11. Thus, the material circumstance which, in our considered view, goes to the very root of the controversy is that when the impugned Transfer Order dated 02.05.2025 was issued, the applicant was already under a subsisting order of retention/immunity upto 27.09.2026. The impugned order was consequently issued approximately four months after the specific retention order and during the currency of the protection expressly granted by the competent authority. The record itself shows that the impugned order dated 02.05.2025 transferred the applicant to Kerala Circle and recorded “Longest Stay” as the reason/remark against him.

12. We are conscious of the well-settled proposition relied upon by learned counsel for the respondents that transfer is ordinarily an incidence of service and that an employee has no vested right to remain posted at a particular place. The judgments relied upon by the respondents, including Union of India v. S.L. Abbas (supra), Shilpi Bose v. State of Bihar (supra), Gujarat Electricity Board v. Atmaram Sungomall Poshani (supra), State of M.P. v. S.S. Kourav (supra) and Namrata Verma v. State of U.P. (supra), undoubtedly lay down the general principle that the choice of posting ordinarily belongs to the employer and that Courts/Tribunals should exercise restraint in interfering with orders of transfer passed in administrative exigencies. However, the aforesaid principle does not, in our view, conclude the controversy before us. The applicant is not claiming an absolute or indefeasible right to remain posted at Gujarat Circle. His challenge is directed against the exercise of the power of transfer during the subsistence of a specific immunity/retention order already granted by the competent authority. The distinction is material. The question is not whether the respondents possess the general power to transfer the applicant, but whether such power could be exercised in the particular manner in which it has been P ANUKUMA

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exercised in the present case, without first dealing with the subsisting order dated 28.01.2025.

13. The respondents seek to meet this objection by contending that the applicant had already enjoyed the benefit of immunity and that, vide subsequent order dated 30.06.2025, his retention was permitted upto 24.09.2026, after which he was required to join Kerala Circle. According to the respondents, therefore, no prejudice has been caused to the applicant. We are unable to accept this submission as an answer to the legality of the impugned order dated 02.05.2025.

14. The validity of an administrative order has to be tested with reference to the circumstances and reasons existing on the date on which the order was passed. In Mohinder Singh Gill & Anr. v. Chief Election Commissioner, New Delhi & Ors., reported in (1978) 1 SCC 405, the Constitution Bench of the Hon'ble Supreme Court held that when a statutory functionary makes an order on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. The Hon‟ble Supreme Court cautioned that an order which was bad at its inception cannot subsequently be validated by additional grounds brought forward when the order is challenged.

15. Applying the aforesaid principle to the facts before us, the respondents cannot derive assistance from the subsequent order dated 30.06.2025 to justify the legality of the impugned order dated 02.05.2025. Whatever may have been the administrative rationale subsequently advanced by the respondents, the fact remains that on 02.05.2025 the applicant was already covered by the Office Order dated 28.01.2025 granting retention/immunity upto 27.09.2026. If the respondents intended to alter, withdraw, modify or otherwise depart from that specific protection, it was incumbent upon them to take an appropriate decision in that regard in accordance with the applicable policy and thereafter pass an order consistent with such decision. Merely issuing a fresh P ANUKUMA

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transfer order during the currency of the subsisting immunity, without first dealing with its legal effect, cannot be sustained.

16. We also find substance in the submission of learned counsel for the applicant that the respondents' reliance upon the applicant's long stay in Gujarat Circle does not, by itself, answer the issue. Long stay may undoubtedly constitute a relevant consideration under the transfer policy. However, that consideration had to be examined in the context of the applicant's subsequently granted immunity. Once the competent authority had considered the applicant's entitlement as an office bearer of the recognised association and specifically permitted his retention upto 27.09.2026, the respondents could not simply proceed as though such order did not exist.

17. The respondents have also sought to justify the impugned order by describing the earlier Maharashtra transfer as an “unimplemented transfer order” and by contending that the subsequent order transferring the applicant to Kerala Circle superseded the earlier order. Even assuming that the earlier Maharashtra transfer had not been implemented, that circumstance does not resolve the more fundamental issue arising in the present case, namely, the effect of the specific retention/immunity order dated 28.01.2025, which was subsisting when the impugned transfer order dated 02.05.2025 came to be issued.

18. In this regard, we may usefully reiterate that the respondents themselves do not dispute the existence of the immunity/retention granted to the applicant. Their case, as noticed above, is essentially that the applicant was ultimately permitted to remain in Gujarat Circle until the expiry of the immunity period and that he would thereafter join Kerala Circle. Thus, the controversy is not about the existence of the immunity but about the respondents' competence to issue the impugned transfer order during the currency thereof.

19. In our considered view, there is a significant distinction between (i) granting an employee retention/immunity from transfer upto a specified P ANUKUMA

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date and thereafter transferring him upon expiry of such period, and (ii) issuing a transfer order during the subsistence of the immunity while simultaneously permitting the employee to remain at the existing station until the immunity expires. The latter course necessarily has the effect of rendering the subsisting immunity substantially meaningless and creates uncertainty as to the employee's status during the very period for which the competent authority had granted protection.

20. The subsequent order dated 30.06.2025, therefore, cannot retrospectively validate the impugned order dated 02.05.2025. The principle enunciated in Mohinder Singh Gill (supra) assumes significance in this context: an administrative order must stand or fall on the basis of the reasons and circumstances which existed when it was made and cannot be improved subsequently by supplying a justification which was not the basis of the original decision.

21. We are, therefore, of the considered view that although the respondents undoubtedly possess the administrative power to transfer their employees and although long stay may constitute a legitimate consideration for such transfer, the exercise of that power in the present case was required to take account of the specific and subsisting immunity granted to the applicant by the competent authority itself. The respondents have not demonstrated that, prior to issuance of the impugned order dated 02.05.2025, the Office Order dated 28.01.2025 had been cancelled, modified or withdrawn. In the absence thereof, the impugned transfer order, insofar as it sought to transfer the applicant during the currency of the retention granted upto 27.09.2026, cannot be sustained.

22. We accordingly hold that the general principle that transfer is an incidence of service cannot be invoked to sustain an order which, on the date of its issuance, was inconsistent with a specific and subsisting administrative protection granted to the employee by the competent authority. The present case is thus not one of interference merely P ANUKUMA

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because the applicant is aggrieved by his place of posting; rather, it concerns the legality of the exercise of the power of transfer in disregard of a subsisting order of immunity.

23. In view of the foregoing discussion, the OA deserves to be allowed. According the same is allowed in the following terms:-

(i) The impugned Transfer Order dated 02.05.2025 (Annexure A/1), insofar as it relates to the applicant and transfers him from Gujarat Circle to Kerala Circle, is hereby quashed and set aside. The respondents shall give effect to the Office Order dated 28.01.2025 granting the applicant retention/immunity in Gujarat Circle upto 27.09.2026, subject, of course, to the terms and conditions contained therein.

24. It is clarified that we have not held that the applicant has any vested right to remain posted at Gujarat Circle beyond the period of immunity or that the respondents are forever precluded from transferring him. The respondents shall remain at liberty to take an appropriate decision regarding his posting/transfer after expiry of the period of immunity at Mumbai Circle, originally transferred to that circle, in accordance with the applicable policy and administrative requirements;

25. If the applicant cannot be posted at Mumbai Circle at this point of time, he will be given an option for transfer in accordance with the existing transfer policy and thereafter proceed in the matter in accordance with provisions of the applicable rules and law on the subject.

26. The OA stands allowed in the aforesaid terms.

27. Pending MA(s), if any, shall also stand disposed of.

28. There shall be no order as to costs.

(Sanjiv Kumar)

(Jayesh V. Bhairavia) Member (A)

Member (J) nk P ANUKUMA