Sambit Kumar Parida vs NATIONAL ALUMINIUM COMPANY LIMITED on 4 November 2026

O R D E R

PRAMOD KUMAR DAS, MEMBER (A):

The order No. CHRD/RR/0014.1/453/2022 dated 28.03.2022, transferring and posting the applicant to Regional Office, Chennai has been challenged in this OA, among other, on the grounds that such transfer and posting is against non-existent post, de hors the rules, and, thus, actuated with malice and mala fide exercise of power. His prayer in this OA is to quash the said order No. CHRD/RR/0014.1/453/2022 dated 28.03.2022 and the order No. CHRD/RR/0014.1/1651/2023 dated 11.09.2023; withdrawing the order No. CHRD/RR/014.1/883/2023 dated 29.04.2023 keeping his transfer order dated 28.03.2022 in abeyance. According to him, his substantive post was General Manager (HR & Administration)/E-7 grade in NALCO, Bhubaneswar. The Chennai Regional Office is exclusively RAVI KUMAR

a Marketing Establishment, where no post in E-7 grade within the HR cadre had ever been created, sanctioned, or deemed necessary since its inception, and the sole available E-7 grade position, belonging to the Commercial/Marketing Management Cadre, was already filled up by Mr. K. Nimma, GM (Marketing), vide transfer order dated 07.10.2022 thereby leaving no vacancy whatsoever at RO, Chennai. He submitted representation on 04.04.2022 against his transfer. The order of transfer was palpably illegal, arbitrary, an explicit abuse of power, void ab initio, for the same being passed in violation of the NALCO's Transfer Policy and Recruitment Rules as well as the settled position of law enunciated by the Hon'ble Apex Court that transfer must strictly preserve the equivalence of status, grade, and cadre. Against the said order of transfer, the Govt. of India, Ministry of Mines, vide its letter No. 9/4/2022- RAVI KUMAR

Met.1 dated 12.04.2023 instructed to post the applicant in a suitable position as General Manager (H&A), NALCO, BBSR since “no office of equivalent seniority from HR department had been posted in the Chennai Office at least for last 20 years”. The functions of the office at Chennai pertains to marketing and posting of a Sr. HR official cannot be justified since there is no post in E-7 grade in HR cadre available at Chennai. The NALCO never found it fit to have a senior HR Executive in Chennai otherwise the position at Chennai could have been created. Apart from the above, it is noticed that the total strength of the Regional Office is only seven (Executives and Staff) and, thus, the posting of a senior HR Executive at Regional Office is not justified. It is stated that the Director (HR) moved the file on 28.04.2023 stating therein that there is no sanctioned strength of GM (H&A) at Chennai. Sri Parida being the RAVI KUMAR

senior most GM(H&A), will be declared as HoD and both the GM (H&A), i.e. Sri Himansu Sekhar Pradhan and Sri Saroj Kumar Patra shall report to Sri Parida with immediate effect but the then CMD, who was so biased, instead of cancelling his order of transfer to a non- cadre/non-existent post at Chennai, ordered to keep his order of transfer in abeyance till the order of transfer is revoked. Accordingly, order No. CHRD/ RR/014.1/883/ 2023 dated 29.04.2023 was issued keeping his order of transfer in abeyance and, subsequently, without any reason, much less to speak sufficient justification, illegally/arbitrarily/malafidely and unilaterally withdrawn the abeyance order vide order No. CHRD/RR/0014.1/1651/2023 dated 11.09.2023, which is not sustainable in the eyes of law.

2. In sum and substance, the case of the Respondents- NALCO in their counter is that the applicant was RAVI KUMAR

transferred from BBSR to Chennai as per the requirement of the NALCO. It did not contravene any rules or policy of the Company. The applicant was holding the post of General Manager (Human Resources and Administration) in E-7 Cadre and, as per the terms and conditions of his appointment, he is liable to serve at any place where his service needs by the Company. Therefore, the allegation of the applicant that there is no post of GM (H&A) at Chennai and his transfer is actuated with malice and mala fide is baseless. Accordingly, respondents have prayed that this OA being devoid of any merit is liable to be dismissed.

3. No separate counter has been filed on behalf of the Union of India.

4. Heard.

5. Ld. Counsel for the applicant to bolster his stand RAVI KUMAR

has placed the relevant portions of the decisions as under:

(a) The Hon’ble High Court of Bombay in the case of Dr. Sunil Shrirang Bawaskar v. Dr. Punjabrao Deshmukh Krishi Vidyapeeth (WP No: 677 of 2010 dated: 09-03-2010) :

“3. The respondent Punjab rao Krishi Vidyapeeth seems to have resorted to this peculiar maneuver since admittedly there is no post of Assistant Professor (Veterinary Science) at Akola. In fact, since there is no post, it is clear that no employee can be transferred to a non-existent post."

4. Having regard to the circumstances of the case, we hold that the petitioner cannot be transferred to a non-existent post in Akola and continued to be paid from Nagpur.

(b) The Hon’ble Apex Court in the case of B. Varadha Rao v. State of Karnataka & Ors, (1986) 4 SCC 131,:

4. Any alternation in the conditions of service must result in prejudice to the government servant and some disadvantage touching his pay, RAVI KUMAR

allowances, pension, seniority, promotion, leave, etc.

5. It's no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. "If the power is exercised malafied, then the order of the transfer is liable to be struck down. If the exercise of power is based on extraneous consideration or for achieving an alien purpose an oblique, it would amount to be malafied and colorable exercise of power.

(c) The Hon’ble High Court in the case of Tsering Norbu v. The State of Arunachal Pradesh & 3 Ors [Case No: WP(C)/624/2024 dated 12- 06-2025] :

6. Jumtum Tato vs. State of Arunachal Pradesh and Ors reported in 2019 3GLR

and Sunil Shrirang Bawaska (Dr.) vs. Dr. Punjab rao Deshmukh Krishi Vidyapeeth, passed by the Division Bench of Bombay High Court in WP(C) No 677 of 2010, reported in 2010(4) Mh.L.J 384, to submit that no employee can be transferred to a non-existent post.

9. Normally, the employee should be transferred and posted to a substantive post in a particular Office RAVI KUMAR

and it would not be permissible to transfer an employee to a non- existent post.

12. This court held that transfer order to be fraud with illegality and without sanction of law to a non-sanctioned and non-existent post.

13. Since there was no post, it has been held that no employee can be transferred to a non-existent post.

(d) The Hon’ble High Court in the case of Dr. K Jayaprasad vs The Central University of Kerala & Ors [ WP(C) No: 2020(B) dated 03- 02-2021]:

5. In the absence of a post of professor at Thiruvananthapuram, the action taken to transfer the petitioner to Thiruvananthapuram, especially in view of the fact that transfer is said to be only till a regular Professor is appointed at Thiruvananthapuram, is completely unjustified and unstainable. In the result, the writ petition is allowed. Ext.P4 order of transfer to a non- existent post is set aside.

(e) The Hon’ble High Court in the case of Santosh Jatav vs The State of Madhya Pradesh & Ors [ WP(C) No: 7367 of 2024 dated 22-03- 2024]; RAVI KUMAR

4. However, attachment to the place, where there is no post cannot be said to be legally sustainable. Ref: Pratap Singh Mandeliya vs State of M.P reported in ILR 2014 MP 2792. Consequently, orders are set aside.

(f) The Hon’ble High Court in the case of Shri Jumtum Tato vs The State of Arunachal Pradesh WP(C) No: 73(AP) of 2017 dated 19- 04-2017]:

3. Moreover, transfer cannot be made from one cadre to another cadre unless the permission is obtained from the incumbent. Accordingly, it is the case petitioner the respondent authority has acted arbitrarily, whimsically and unreasonably by posting the petitioner as OSD(Special Project) against non- sanctioned post and there is no such special project necessitated the authority to issue such illegal order.

12. The transfer order cannot be effected without the consent of the transferee, the learned counsel for the petitioner has referred the decision of 2002(3) GLT 646(R Thansangavs State of Mizoram and ORS); 2008(2) GLT718(T.Thovia Singh vsSate of Manipur &Ors) and 2013(1) GLT 267(M Imomacha Singh vs State of Manipur and Ors." RAVI KUMAR

13. Sarvesh Kumar AugustyvsJal Nigam(20023)

SCC

and 1993(4) SCC 357wherein it has been held that the transfer orders required to be affected on the basis of set norms of guidelines. The power of transferring and officer cannot be wielded arbitrarily, malafide or an exercise against efficient and independent officer or at the instance of politician."

21. The Apex Court by a constitutional Bench in 1974(4) SCC3 (E.P.Royappavs State of T.N & Ors) held that Article 14 & 16 strikes at arbitrariness of the state action and to ensure fairness, the state must be based on valid and relevant principles which are all applicable alike to all similarity situated and it must not be guided by extraneous and irrelevant consideration.

23. The instant write petition therefore succeeds. Resultantly, the impugned transfers order, dated 17.02.2027, is hereby quashed and set aside. The petitioner will continue his substantive post he holds in the cadre and at the place he is presently continuing.

(g) The Hon’ble High Court in the case of Miss Seema Hvs The State of Karnataka &Ors[ WP(C) No: 48499/2026(S-KAT) dated 16-09- 2016]:

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6: So long as there is no vacancy at the original place, the question of posting is without any foundation. Hence, the said transfer can be said to be with the exercise of legal malafied.

7. One the transfer order of the petitioner is found to be illegal, the necessary consequence posting of the petitioner will have to be restored at the original place.

10. In view of the aforesaid observations and discussion, the impugned order passed by the Tribunal as well as the transfer order for transferring the petitioner from the post of is set aside.

(h) The Hon’ble High Court in the case of U Keshavavs The Managing Director, Karnataka Power Transmission Corporation & Ors. [ WP(C) No: 104143 of 2023 (STR) dated 19-07-2023]:

10. The division bench of this court in the case of Miss Seema H. D/O. HK Marswamy Vs. The State of Karnataka and Others in W.P. No: 48499/2016 disposed of on 16.09.2026 as held that any transfer order without giving a posting to the transfer candidate cannot be sustained. In the paragraph no: 6 of the said order, it has observed as follows; ..... So long as there is no vacancy at the original place, the RAVI KUMAR

question of posting is without any foundation. Hence, the said transfer order can be said to be with the exercise of legal malafide.

11. The Division Bench in said case has observed that unless there is vacancy, there cannot be a transfer to the said post.

12. When there was no vacant of the post, the respondent no: 4 could not have transferred to the said post by respondent no: 2. Therefore, on this short ground, the impugned order of transfer insofar as it relates to transferring respondent no;4 to the post of petitioner requires to be quashed and subsequently the petitioner is required to be continued in the post which he was holding as on the date of transfer.

(i) The Hon’ble Apex Court in the case of Tej shree Ghang etc. etc vs Prakash Parashuram Patil and Ors. etc.etc[ Civil Appeal No 2697 of 20027(arising out of SLP(C) No. 11276 of 20026 dated 17-05- 2007]:

15. …. Executive power can only be exercised in term of the extant rules. ...It is not a case where an order of transfer was passed by way of change of place of employment within an organization simpliciter. RAVI KUMAR

An order of transfer should be in terms of the existing Rules. Transfer may even be incidental to the condition of service, but thereby nobody can be deprived of his existing right... An executive order passed for unauthorized purpose would amount to malice in law. An order of transfer cannot prejudicially affect the status of an employee. If orders of transfer substantially affect the status of an employee, the same would be violative of the conditions of services and thus, illegal. The transfer must be made to an equivalent post [Ramadhar Pandey v sate of U.P and Others (1993)Supp (3) SCC 35; Hussain Sasan Saheb Kaladgi v. State of Maharashtra, (1988) 4 SCC 168 and P.C. Wadhwa v. Union of India and Anr. 1964(4) SCR 598].

6. Accordingly, Ld .Counsel for the applicant summarized his submission to the extent that the applicant was initially transferred to the Regional Office at Chennai (which is a Marketing Office) vide order dated 28.03.2022 (A/2), which was kept in abeyance by order RAVI KUMAR

dated 29.04.2023 and the subsequent revocation of the said abeyance order reviving the transfer order dated 11.09.2023 (A/8) are illegal, arbitrary, and explicit abuse of power, thus, void ab initio being violative of NALCO's Transfer Policy and Recruitment Rules as well as the settled position of law that a transfer must strictly preserve the equivalence of status, grade, and cadre so also against an existing post. In the instant case, undisputedly, the Chennai Regional Office is exclusively a Marketing Establishment, where no E-7 grade post within the HR cadre has ever been created, sanctioned, or deemed necessary since its inception, and the sole available E-7 grade position (belonging to the Commercial/Marketing Management Cadre) was already duly filled by posting Mr. K. Nimma, GM (Marketing), vide transfer order dated 07.10.2022, leaving no vacancy whatsoever at the relevant time of the Applicant's RAVI KUMAR

renewed transfer vide order dated 11.09.2023. It is stated that the main thrust of argument of the NALCO that E-7 & E-8 grade is a composite cadre of Marketing and HR is bereft of Clause 3 and 4 of Annexure-D appended to NALCO's Recruitment and Promotion Rules for Executives, 2017 (A/17) wherein it is clearly provided that the Human Resources and Personnel Administration constitute a distinct cadre separate from Commercial Management (which encompasses Marketing), precluding any interchangeable adjustment of an HR Executive against a Marketing post. This factual and legal position stands conclusively reinforced by the Govt. of India, Ministry of Mines, New Delhi, having overall statutory control on NALCO vide letter dated 12.04.2023 inter alia stating that posting a senior HR executive at a Marketing office is wholly unjustified and explicitly requested the Applicant's immediate RAVI KUMAR

repatriation to the Corporate Office at Bhubaneswar. Consequently, given that no employee can be legally transferred to a non-existent post or outside their respective cadre, both impugned transfer orders dated 28-03-2022 and 11-09-2023 are legally unsustainable and liable to be quashed and set aside in the interest of justice. In stating so, Ld. Counsel for the applicant has stated that since the entire exercise made by the then CMD, NALCO de hors the rules, it can safely be concluded to have been made in exercise of malice and mala fide power and the applicant is a victim to an order which is void ab initio and per se illegal, thus, leading judicial interference by allowing the relief sought in the OA.

7. Per contra, Ld. Sr. Counsel Mr. M. Mishra, assisted by Mr. D.K.Patnaik, Ld. Counsel for NALCO, taken us through their pleadings and summarized the arguments by stating that There are 4 regions/regional offices of RAVI KUMAR

NALCO i.e. at Delhi, Chennai, Mumbai and Kolkata. As per the terms of the order appointment dated 27-05- 1997, Applicant will be liable to serve in any part of India and perform duties as may be assigned from time to time and shall be subject to the service rules and regulations including the conduct rules as well as the administrative orders of the Company in force from time to time and shall obey all such orders and directions as he may receive from his superiors. The Applicant was working in a senior position i.e. in E-7 Grade as GM (H & A) and, thus, can be posted in any region where the Company needs his service. Therefore, the allegations that his order of transfer is actuated with malice and mala fide exercise of power is not correct.

7.1. The Applicant was appointed on 30.06.1997. During the period of 26 years of services, he continued for more than 24 years at Corporate Office, Bhubaneswar RAVI KUMAR

except a brief period of 09 (nine) months at Angul. Based on functional and administrative requirement, transfer order was issued vide Office

Order

Ref. No: CHRD/RR/0014.1/453/2022 dated 28.03.2022 wherein Applicant, GM(H&A), P. No: 06786 along with other Executives have been transferred to different locations of NALCO. The transfer of employees from one Unit/Office to another Unit/Office becomes necessary to meet the organizational needs as well as employee developmental and personal needs. Hence, this Original Application is grossly barred by limitation as per the section 21 of the Administrative Tribunal Act 1985.

7.2. The Order of transfer was passed within the ambit of the Transfer Policy. The Authority has exercised his power in transferring the Applicant from Bhubaneswar to RO, Chennai by exercising the ambit and scope of the RAVI KUMAR

Transfer Policy of the Company. The clause 1.15.2.0 (vii) of the NALCO Transfer Policy carves out exceptional situation of organizational requirement, under which the Applicant was transferred. 7.3 At Chennai Regional Office, E-7 Sanctioned Post is available, and the said posting, being of a senior management level post, is not fixed for any particular discipline like HR or Marketing or any other discipline, therefore the Applicant's arguments that he was unable to join at Chennai because no sanctioned post of HR of E- 7 grade is available at Chennai is totally false and baseless. The senior management level executives are given cross functional roles and posting, and the Applicant being from the HR discipline, is well aware of this fact. There have been various transfers at senior level where Executives were given cross functional roles. RAVI KUMAR

It is an admitted fact that HR Executives of E-7 grade have also worked as Regional Managers at Kolkata and Delhi offices. The Order of transfer has been passed by the competent Authority i.e. CMD, NALCO as per the recommendations of the then Director (HR).

7.4. At Chennai Regional Office, E7 Sanctioned Post is available, therefore the Applicant’s argument that no sanctioned post of E7 is available at Chennai is false and baseless. From the Annexure-A/23 of Affidavit filed on 15.10.2023, it will be evident that there is one sanctioned post in E7 grade. Said documents make the position clear that there is a sanctioned post of E7 and E8 grade. So far as these two grades are concerned, no particular category of post, such as Marketing, Finance, Materials, etc., is earmarked. So far as the E0 to E4 sanctioned positions in the said Chennai office are concerned, there are three posts of Marketing, two posts RAVI KUMAR

of Marketing-Finance, one post of Materials and one post of System/ERP. Therefore, it is obvious and crystal clear that, so far as executives in the E0 to E4 grades are concerned, there are sanctioned positions against particular disciplines. So far as the E7 and E8 grades are concerned, it is not limited to any discipline. In other words, executives of E7 and E8 grades from any discipline can be posted at the Chennai Regional Office (R.O.). 7.5 The Director (HR)’s notings at Note 15 of Annexure A-7 would clearly indicate that there was political influence. Therefore, the recommendation emanating from the said notings, for modification of transfer of the Applicant was not bound to be considered by CMD NALCO, as transfer orders were already issued by that time and the Applicant was relieved by that date. RAVI KUMAR

The NALCO 1.15.8.0 of the NALCO transfer policy as well as Rule 20 of the Nalco Conduct, Discipline and Appeal (Rules) clearly prohibits outside influence in case of transfer and the Applicant wanted modification of posting by bringing outside influence. The transfer of the Applicant was made as per the transfer rules of the company due to organizational requirements and there was no violation of any service rule even while issuance of the kept in abeyance order and the withdrawal of the kept in abeyance order, both of which were issued as per the approval of the competent authority. The Applicant's conduct by not joining the transferred place even after rejection of interim prayer by this Hon'ble Tribunal, clearly shows that he was all along delinquent and has the tendency to defy the orders, if not issued as per his wishes. The conduct itself acknowledges that the baseless pleas taken by the Applicant to challenge his RAVI KUMAR

transfer is not tenable in the eye of law. As per the settled law laid down by the Hon'ble Supreme court, the Applicant was supposed to join at the transferred place first and then request for re-posting or challenge the same before any judicial forum. 7.6 The Applicant has relied on office noting of the Ministry to show that the Chennai office is a Marketing office, there is no post for GM (HR). The said noting is based on the Applicant's own request before the Hon'ble М.Р., on whose instance and influence these notings were made. The Regional Offices cater to different kinds of work, including liasioning, etc. The GM (HR) has also been posted in other Regional Offices. It is for the competent authority/ management to take a call as to which officer is to be posted at which place. The concerned employee has no choice but to obey the order passed by the competent authority. Therefore, even RAVI KUMAR

assuming, though not conceding, that there is no sanctioned post of E7 grade at the Chennai office, the Applicant has no locus standi to challenge the transfer order on the same ground, nor does the competent Court have any authority to quash the transfer on the same ground. The decisions relied on by the Applicant are of different High Courts and are clearly distinguishable on facts. In the transfer order there is no mention as to which category he is posted. Therefore, the argument advanced by the Applicant that there is no post is fallacious and is an after-thought argument, without any justification. According to Applicant, his order of transfer is actuated with malice, mala fide exercise of power and by way of vindictiveness but did not place any such evidence to support the said allegation and even the persons against whom such allegation is raised has not been made as party in this OA. According to RAVI KUMAR

Respondents/ Respondents’ Counsel meanwhile disciplinary proceedings were initiated against him like

(i) unauthorized absence due to non-joining at the place of posting pursuant to the order of transfer, (ii) for obtaining the official documents which he has no access and (iii) for bringing outside/political influence to cancel the order of transfer in which he has been removed from service vide order dated 19.08.2026. Hence there remains nothing further to be adjudicated in this OA and the same is liable to be dismissed as infructuous. In stated above, Learned Senior Counsel appearing for the NALCO, in the circumstances stated above and that the order of transfer has been made in public/administrative interest, judicial interference is warranted, placed reliance on the decisions as under: RAVI KUMAR

[i] Ratnagiri Gas and Poer Pvt Ltd vs RDS Projects limited and ors, (2013)1Supreme Court Cases 524 [ii] Satish Kumar

Vrs State of UP. 2011SCCOnLineHP4472 [iii] Pravati Nayak –Vrs State of Odisha & Anr.

Order

Dt. 27.07.2017 in W.P.(C).No. 21022of 2016 [iv] Commissioner, Corporation of Chennai vs R. Sivasankara Mehta & Anr, (2011)13 Supreme Court Cases 285; [iv] Gujarat Electricity Board & Ors. –Vrs Atmaram Sungomal Poshani, MANU/SC/0200/1989; [v] State of U.P.& Ors. –Vrs Gobardhan Lal & Ors. MANU/SC/0281/2004 [vi] Union of India & Anr. –Vrs- Deepak Niranjan Nath Pandit (2020) 3 Supreme Court Cases 404 [vii] State of UP& Ors. –Vrs- Dr. Manoj Kumar Sharma (2021) 7 SCC; [viii] S.C.Saxena –Vrs- Union of India & Ors. (2006)9 Supreme Court Cases 583; [ix] SK Naushad Rahaman & Ors. –Vrs- Union of India & Ors. 2022 LiveLaw(SC) 266; [x] Prasanna Kumar Acharya & Ors. –Vrs State of Orissa & Ors. MANU/OR/0158/2015; [xi] State of Punjab & Ors. - Vrs – Joginder Singh Bhatt MANU/SC/0388/ 1993; RAVI KUMAR

[xii] Prabhat Mallick - Vrs – NALCO & Ors. W.A.No.674of 2019; [xiii] Namrata Verma Vrs The State of UP & Ors.

Order

dt. 06/09/2021 SLP(C) No. 36717/2017 [xiv] Itishree Nath Para –vs-S.Bank of Baroda & Ors. W.A.No.2970 of 2024; [xv] ADDISONSPAINTS & CHEMICA LTD. –Vrs WORKMEN REPRESENTED BY THE SECRETARY, (2001) 2 Supreme Court Cases

[xvi] SripubilombiI –Vrs The State of Arunachal Pradesh & 13 ors. Civil Appeal No.4129 of 2024; [xvii] Union of India & Ors. Vs S.L.Abbas (1993) 4 SCC 357; [xviii] Pubi Lombi Vs. State of Arunachal Pradesh & Others (2024) 12 SCC 292; [xix] Tushar D. Bhatt Vs. State of Gujrat & anr., (2009)11 SCC 678.

8. We have considered the arguments advanced by the parties with reference to their respective pleadings and documents placed in support thereof so also decisions relied thereon. RAVI KUMAR

9. It is not in dispute that transfer of an employee from one place to another is an incident of service and it is completely within the domain of the authorities to decide such transfer and posting of the employees. Judicial interference in the routine order of transfer is limited but not absolutely excluded especially when the order of transfer is made by way of punishment, allegation, by an authority not competent to do so, where transfer depletes salary and allowances, the employee is holding non-transferable post and/or in that matter the transfer is to a place where the post is not in existence.

10. The respondents questioned the maintainability of this OA being suffered from delay and laches/limitation. But, even from microscopic scrutiny of the matter in its entirety, we do not see as to how this OA is suffered from RAVI KUMAR

the law of limitation. Hence, this plea of the respondents is hereby overruled.

11. The respondents have further led emphasis on the point that in absence of any interim order staying the transfer of the applicant, he did not join at RO, Chennai and remained absent unauthorizedly for which, disciplinary proceedings were initiated against him and finally he was removed from service. Since, he has been removed from service, this OA rendered infructuous. This submission was seriously contested by the Led Counsel for the applicant on various grounds including invoking the provision of Section 19(4) of the AT Act, 1985 where in it is provided that “where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject-matter RAVI KUMAR

of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules”. This OA was admitted on 06.10.2023 giving opportunity to the respondents to file their counter. The respondents delayed the mater in filing the counter at one hand and, on the other hand, though they are very much aware that the order of transfer is under challenge for which the applicant did not report, at RO Chennai, in absence of any such post available there, they would not have proceeded against the applicant and removed him from service without taking any leave from this Bench. The applicant has also challenged the said order of removal in a separate OA, which is pending before this Bench. Therefore, in view of the special provision of Section 19(4) and the fact that applicant’s transfer to RO, RAVI KUMAR

Chennai is against a non-existence post, it cannot be said that this OA has become infructuous. Hence, this submission of the respondents also is hereby rejected.

12. In the instant case, it is the specific case of the applicant that GM (H&A) and GM (Marketing) are of two different cadres and one cannot encroach to the place and position of the other. In other words, the posts are not interchangeable as per rules and law. Despite the fact that no officer of equivalent seniority from the HR department has been posted in the RO, Chennai at least for last 20 years, the functions of the RO, Chennai pertains to Marketing and posting of a senior HR officer is not justified especially in absence of any such sanctioned post of GM (H&A)/E-7 at RO, Chennai, his posting is an abuse of power by the CMD, NALCO, BBSR, in a broader sense, an act of malice and mala fide RAVI KUMAR

exercise of power. More evidently, when another person, namely Mr. K. Nimma, GM (Marketing) was already posted as GM (Marketing) vide transfer order dated 07.10.2022. The applicant in support of the above stand placed reliance on the letter dated 12.04.2023 issued by the Govt. of India, Ministry of Mines, New Delhi, instructing the CMD for restoring the posting and position of the applicant at NALCO, BBSR. According to the respondents, even if the functions of the office at Chennai pertains to Marketing, the authority concerned is not precluded from posting a senior HR official at RO, Chennai, for the interest of the Company. However, the respondents did not place any record to show that the GM (H&A) and GM (Marketing) are of one cadre and they are interchangeable in the matter of transfer and posting. The respondents did not produce any such evidence to unjustify the stand taken by the Govt. of RAVI KUMAR

India, Ministry of Mines in letter dated 12.04.2023 that there is no such GM (H&A)/E-7 grade post is available in Chennai nor did they dispute the subsequent posting of Mr. K. Nimma, GM (Marketing) in RO, Chennai vide transfer order dated 07.10.2022.

13. It is also the case of the respondents that E-7 and E- 8 grades constitute an integrated allied cadre permitting the adjustment of the Applicant against the vacancy of Marketing post. The applicant opposed he said stand of the respondents by stating that Clause 3 and 4 of Annexure-D appended to Recruitment and Promotion Rules for Executives,

(A/17) explicitly distinguishes the integrated cadre of Commercial Management (encompassing Materials, Marketing, Dispatch, Excise, Traffic, Shipping, and Transport) from the distinct integrated cadre of Human Resources and RAVI KUMAR

Personnel Administration (encompassing Training, HRD, PR, Corporate Communication, and Law) and, therefore, the stand of the respondents that HR Executive can be interchangeable and adjusted against a Commercial/Marketing cadre post cannot stand in scrutiny of law being opposed to the statutory provision of Recruitment and Promotion Rules for Executives, 2017 of NALCO. The respondents failed to produce any evidence contrary to the provision made in clause 3 and 4 of the RRs; nor is it the case of the respondents that the above provision has been rescinded/modified/amended making the GM (H&A) and GM (Marketing) interchangeable. Law is well settled that the authorities are duty bound to act strictly in accordance with the statutory provision/law. We have examined clause 3 and 4 of the RRs. In the said rules, integrated allied cadre [E-7 and E-8 Grades] provides RAVI KUMAR

that Commercial Management encompasses Materials, Marketing, Dispatch, Excise, Traffic, Shipping, and Transport and Human Resource, Personal Administration, Management encompasses Training, HRD, PR, Corporate Communication, and Law. Thus, it is abundantly clear that the stand of the respondents that GM (H&A)/E-7 can be posted in Commercial Management, Marketing (HR Marketing)/E-7 is contrary to the statutory provisions of the NALCO. Hence, this stand of the respondents is not acceptable in the eyes of law and it is clearly established that the posting of the applicant to RO, Chennai is against a non-existent post in absence of any such evidence being produced by the NALCO establishing availability of GM (H&A)/E-7 post at RO, Chennai.

14. It is needless to state that the key takeaway in the matter of malice and mala fide exercise of power is that a RAVI KUMAR

public authority cannot defend a wrongful or unlawful decision by simply proving they had no personal hatred toward the aggrieved party. If the action violates the spirit and letter of the law, the absence of personal malice is irrelevant, and the court is duty-bound to interfere to uphold the rule of law. Judiciary would certainly step in and overturn an administrative or executive decision based on malice in law where decision was based on factors that the governing statute never intended to be considered; the power was exercised to achieve an objective foreign to the scope and object of the legislation (a "colorable exercise of power"); the authority willfully shut its eyes to facts or evidence that it was legally bound to consider and the decision is so unreasonable or perverse that no reasonable authority, properly directing itself to the law, could have ever arrived at it (Wednesbury RAVI KUMAR

unreasonableness). Thus, an act where the decision- maker may have no personal grudge, but they willfully disregard the law, abuses their discretion, or act on irrelevant considerations, it is objective and inferred from the action itself. Passing an order for unauthorized purpose de hors the rules constitutes malice in law. Malice in law simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts. Malice in law means an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite, or a desire to injure another. Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. RAVI KUMAR

15. The Hon’ble Apex Court in the case of Smt. S. R. Venkataraman vs Union Of India & Anr, 1979 AIR 49, held that a person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently. Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause. Further, it was held that the influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a RAVI KUMAR

manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the ''public interest", to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist roust therefore be held to be infected with an abuse of power.

16. We find that in none of the decisions relied on by the respondents, the challenge of the order of transfer were upheld even though the transferee was posted against non-existent post despite existence of the order of the concerned Ministry of Govt. of India like in the present case. Rather, we find that the decisions relied on by the applicant dealt with on the specific point where in the Hon’ble Court quashed the order of transfer. We have also come across some of the decision, which are dealt RAVI KUMAR

below in which the Hon’ble Courts were pleased to quash the order of transfer for the same being made to a non-existent post:

17. The Hon'ble High Court of Madhya Pradesh in Ashok Kumar Tiwari v. State of Madhya Pradesh, Writ Petition No. 5734/2000 decided on 20.10.2000 (2001

(1) MPWN 217), quashed the order of transfer for the same since applicant was posted n a non existent post of his category.

18. Dr. K.Jayaprasad –vs- Central University of Kerala, Feb, 3, 2021 in WP ( C) No. 26812/2020 quashed the order of transfer being made to a non existent post.

19. Shri Bhavesh Ajitkumar Motiani vs Union of India and others in OA No. 404 of 2014 dated 31st August, 2015 quashed the order of transfer being made to a non existent post. RAVI KUMAR

20. The CAT, PB, New Delhi by placing reliance on various decisions of the Hon‘ble Apex Court in the matter of transfer, in the case of Omprakash Lakhwani vs Employees State Insurance Corporation (ECIC) in OA No. 4310 of 2024 dated 06.01.2025 quashed the order of transfer of the applicant being made to an nonexistent post.

21. Jumtum Tato vs State of Arunachal Pradesh & Others, 2019 3 GLR 324, dated 19.04.2017 in WP ( C) No. 73 (AP) 2017 quashed the order of transfer effected to nonexistent post.

22. The CAT, Calcutta Bench in the case of Dharam Pal Singh vs UOI and others dated 8.9.1989 in TA No. 961 of 1986 quashed the order of transfer of applicant by holding that transfer to a place wherein no such cadre post available there was arbitrary and thus not RAVI KUMAR

sustainable in the eyes of law. The said view has also been reiterated in OA No. 2705 of 2012 dated 20 October 2013 in the case of Dr. Madhu Dalela vs Union of India and others.

23. The High Court of Telegana in the case of Sri V.Madhava Reddy vs State of Telegana and others in WP No. 35068 of 2025 dated 25.05.2026 quashed the order of transferred being effected against non existent post.

24. The Hon’ble High Court of Bombay in the case of Dr. Sunil S/O Shrirang Bawaskar vs Dr. Punjabrao Deshmukh Krishi ... on 9 March, 2010 in Writ Petition No. 677 of 2010 held that the authority is denude from Transferring an employee to a non-existent post in the guise of public interest.

25. The Hon'ble High Court of Andhra Pradesh in the case of M. Venkateswara Rao SK, J Vs. State of Andhra Pradesh in WP ( C) No. 1281 of 2021 dated 20.01.2021 RAVI KUMAR

have also quashed the order of transfer and posting of the applicant therein by holding passing such an order circumventing the rules is a serious illegality and thereby the same is liable to be set aside.

26. The relevant part of the decisions made in the case of Governing Body v St. Anthony College, Shillong and others vs Rev. Fr. Paul Petta of Shilong East Khasi Hills, AIR 1988 SC 205, says that in cases where transfer of an employee seriously affects his status, prior opportunity of hearing is required to be given.

27. Somesh Tiwari vs Union of India and others, 2009

(2) SCC 592 the Hon’ble Apex Court held that while transfer in administrative exigencies ought not to be interfered with by the Courts, transfer as mala fide exercise of power cannot be allowed to be sustained.

28. In the case of E.P.Royappa vs State of Tamil Nadu and another, AIR 1974 SC 55 also says that transfer RAVI KUMAR

based on extra administrative considerations having no relevant to the question of transfer cannot be permitted.

29. The High Court of Bombay in the case of Shrirang Bawaskar (Dr.) vs Dr.Punjabrao Deshmukh Krishi Vidyapeeth, 2010 (4) Mh.L.J 384, WP ( C) No. 677 of 2010 held that no employee can be transferred to a non- existent post.

30. On examination of the factual matrix discussed above, with reference to the law, we do not have any hesitation and iota of doubt in our mind that the transfer of the applicant to RO Chennai was made to a non- existent post, de hors the rules and law, the same was rightly kept in abeyance on receipt of the letter of the concerned Ministry of Govt. of India, dated 12.04.2023 but despite the posting of Mr. K. Nimma, GM (Marketing) at RT, Chennai vide transfer order dated 07.10.2022, the order of transfer was reinforced by the then CMD, RAVI KUMAR

NALCO, which shows without paying any heed to the letter dated 12.04.2023 and order dated 07.10.2022 smacks legal malice rendering the order of transfer as a nullity in the eyes of law. Accordingly, the Order Nos. CHRD/RR/0014.1/453/2022 dated 28.03.2022 and CHRD/RR/0014.1/1651/2023 dated 11.09.2023, impugned in this OA, are hereby declared void ab initio, per se illegal and arbitrary and are accordingly quashed. Respondents are directed to take further follow up action in accordance with law.

31. In the result, the OA stands allowed to the extent stated above. Pending MA, if any, stands disposed of. Costs made easy. (Pramod Kumar Das)

(Sudhi Ranjan Mishra) Member (Admn.)

Member (Judl.)

RK/PS

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