JUDGMENT D. K. Seth, J.
1. The petitioner has been transferred from Narora to Tarapur by an order dated March 23. 1999 contained in Annexure-6 and pursuant thereto the petitioner was relieved from his duties from Narora by an office order dated 24th March. 1999 contained in Annexurc-8. These two orders have been challenged by Mr. L. C. Srivastava learned counsel for the petitioner on the ground that the order of transfer is mala fide and that on the terms and conditions of service, the petitioner is not liable to be transferred from Narora to Tarapur. He has elaborated the grounds of mala fide with the facts of union rivalry as well as certain complaints. He further contends that the transfer order is a mid-session transfer and that though order of transfer has been dressed as an administrative exigency but in effect, it was not an administrative exigency. In the certified Standing Order, there is no provision for transferring an employee from one unit to another. On this ground, Mr. Srivastava had assailed the order of transfer and the consequent order of release. He had also pointed out that the other persons who had already been transferred have not been released and that many others who could have been transferred and working long time in the unit have not been transferred.
2. Mr. Chandra Sekhar Singh, learned counsel for the respondents contends that the alleged union rivalry or the complaint has no relation with the transfer order. The rivalry or the complaint may be between the two workers of the union but the Management has nothing to do with it and it cannot be dragged to such dispute between two workers or two unions if there be any. He further contends that the order of transfer has been made exclusively on administrative necessity and it is not a single order of transfer. Several orders of transfer have been issued and many of them have joined the transferred post. He had pointed out that the transfer is an incidence of service. He refers to the offer of absorption in Nuclear Power Corporation of India Ltd. (N.P.C.I.L.). In explanatory clarifications, points 1.2.6 at page 23 of the booklet. Liability for service has been prescribed to the extent that those on the rolls of N.P.C.I.L., will be liable to serve anywhere in India. From Annexure-RA-1 to the rejoinder-affidavit, it appears that the petitioner had exercised his option for absorption in N.P.C.I.L. on 15th January, 1999 stating that he had gone through the terms of absorption in N.P.C.I.L. and had fully understood them. Thus, admittedly, as it appears that the condition of service of the petitioner is that he is liable to be transferred anywhere in India and as such, the transfer is an incidence of service. He further contends that allegation of mala fide does not find support from the materials produced. On these grounds, he prays that the writ petition be dismissed.
3. Mr. Srivastava had relied on the decision in the case of Air Gases Mazdoor Sangh and others v. Indian Air Gases Limited and others. LIC 1977 II) 575, and in the case of Nabi Ahmad Khan v. State of V. P. and others, (1996) 2 UPLBEC !202 and an unreported judgment of this Court in Ciuil Misc. Writ Petition No. 44706 of 1998, M. C. Goel and another v. Union of India, in support of his contention that by reason of the said decision, the petitioner cannot be transferred.
4. I have heard both the counsel at length.
5. It is apparent from the offer of absorption in N.P.C.I.L. which appears to be dated December 24, 1997 that conditions were prescribed for absorption in N.P.C.I.L. In page 23 of the booklet, the Explanatory Clarification in paras 1, 2. 6 prescribes the liability of service as those rolls of N.P.C.I.L. would be liable to serve anywhere in India. The petitioner had accepted the said service condition while exercising his option to be absorbed in the N.P.C.I.L, by signing the above form contained in Annexure-RA-I to the rejoinder-affidavit. Thus, the transfer is an incidence of service which fact is apparent from the face of the record.
6. The petitioner has alleged mala fide on the ground of union rivalry and certain complaints made by one of his co-worker. This has been dealt with in the counter-affidavit in paragraphs 6 and 9 respectively. In the said counter-affidavit, it has been pointed out that those facts are wholly unrelated to the transfer. The Management is in no way concerned either with the union rivalry or with the individual rift between two workers. There is nothing to indicate that these are related to transfer.
7. This is a disputed question of fact. There is nothing on record for this Court to conclude that there is any mala fide on the face of the disputed question of fact. In view of the disputed question of fact, this Court sitting in writ Jurisdiction cannot enter into determining such disputed question of fact and come to a conclusion that there is a mala fide on fact. Then again, it is apparent from the record, as it appears from various annexures that there are several persons who have been transferred from one unit to other. It is alleged that the same has been done in administrative exigency. Whether one has been released or not on one ground or other is a question which is relevant with each individual but there are certain cases where persons have been relieved. It is contended by the respondents that in case, the petitioner has been in any difficulty, he may approach the authority who may consider the difficulties and take appropriate steps. It is further submitted that if it is a mid-session transfer, in that event the respondent would not force the petitioner/or his family to vacate the quarter till the session is over.
8. Thus, it appears that there is nothing which can show that the order of transfer is mala fide or beyond the rules. On the other hand, the question that there is no provision for transfer In the certified Standing Order does not help the petitioner. Inasmuch as the Industrial Employment [Standing order) Act does not include transfer in its schedule in respect whereof Standing Orders are framed. The very after of absorption itself contains a condition of transfer. Therefore, whether it is contained in the certified Standing Order or not is immaterial.
9. The decision in the case of Air Gas Mazdoor Sangh (supra) does not help the petitioner. Inasmuch as. in the said case it was held that the certified Standing Order cannot include any condition of transfer since transfer is not Included in the schedule appended to the Industrial Employment (Standing Order) Act and therefore, such condition in the certified Standing Order cannot be certified by the authority and as such the condition in the certified Standing Order with regard to the transfer cannot be upheld. In the present case, admittedly, there is no condition of transfer in the certified Standing Order. Since the certified Standing Order cannot contain any such condition and the petitioner having accepted the offer with his eyes open, he cannot now say that he cannot be transferred from one unit to other.
10. The decision in the case of Nabi Ahmad Khan (supra), also does not help the petitioner. Inasmuch as in the said case, the transfer on the ground 'of complaint was held to be invalid. In the present case, the respondents' had assailed that the-transfer was not on the ground of complaint, I have not been able to come to a conclusion on the basis of the material on record that the transfer was made on the ground of complaint as observed earlier. Therefore, the decision in the case of Nabi Ahmad Khan (supra) also does not help.
11. The decision in the case of M. C. Goel (supra) also cannot be attracted since in the said case, the petitioners therein did not opt to be absorbed in the Corporation but had opted for their parent department. Therefore, the petitioners therein having not opted to be absorbed were not subject to the incidence of service of transfer of N.P.C.I.L. as indicated here-in-before. Thus, on facts, this case is distinguishable from those involved in the case of M. C. Goel and others (supra), and therefore, that decision does not help the petitioner.
12. For all these grounds, I am not inclined to interfere with the order of transfer. The writ petition therefore, fails and is accordingly dismissed.
However, this order will not prevent the petitioner from making any representation before the concerned respondent. In case any representation made by the petitioner, the respondents may consider the same within a period of four weeks from the date of making such representation in accordance with law. The petitioner may retain the accommodation till the educational session is over and till such time the respondents may allow whichever is later.