Central Administrative Tribunal - Allahabad
Shyam Charan Chauhan vs M/O Communications on 12 October, 2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
(This the 12th Day of October, 2018)
Hon'ble Mr. Justice Bharat Bhushan, Member (Judicial)
Hon'ble Mr. Mohd Jamshed, Member (Administrative)
Original Application No.330/111/2014
(U/S 19, Administrative Tribunal Act, 1985)
Shyam Charan Chauhan, Son of Late Shri of Late Shri Antu Chauhan,
Resident of Lohanpur Post office Kharihani, District Azamgarh.
................ Applicant
By Advocate: Ms. Saraswati Rai
Versus
1. Union of India through Ministry of Communication Department of Pos
and Dock Bhawan Sansad Marg, New Delhi.
2. P.M.g. Gorakhpur, (P.O.).
3. Senior Superintendent (P.O.), Azamgarh.
4. Sub divisional Inspector, P.O. Lal Ganj, Azamgarh.
.. ............. Respondents
By Advocate: Shri L.P. Tiwari
ORDER
Delivered by Hon'ble Mr. Justice Bharat Bhushan, Member (Judicial) Applicant, Shyam Charan Chauhan, a Gramin Dak Sevak (G.D.S.) has filed his 5th Original Application (OA) seeking his transfer to the particular place. This time he has sought transfer from Kamarpur to Mohali Tarwa, District Azamgarh, though, earlier litigations were perhaps for different places.
2. Present OA claims that applicant was initially engaged as G.D.S. M.C./M.D. Kharihani District Azamgarh in the year 1984. It is stated that Page No. 2 in the year 1991 the applicant was asked to do work at Kamarpur. On 07.08.1998, he was given charge of Village-Post-Man (V.P.M.) Lalganj, Azamgarh.
3. It is, further, stated that in 1997 one Shri S.P. Maurya was appointed/substituted on the post of Kamarpur in place of applicant due to ad hoc arrangement.
4. That impelled the applicant to file OA No.803 of 1998 (Shyam Charan Chauha vs. Union of India & Ors).
5. Apparently, Sankatha Prasad Maurya (S.P.Maurya) also filed OA No.731 of 1998. A division Bench of Tribunal concluded that both OAs were interrelated, therefore, they were decided by common order dated 22.04.2002 wherein following directions were passed:-
"6. For the reasons stated above, both the O.As are disposed of finally with the following directions:-
i. The applicant - S.C. Chauhan shall be allowed to join as EDMP, Kamarpur, without any delay within a period of one month from the date of communication of this order.
ii. The applicant S.C. Chauhan shall be deemed to be continued in service and shall be entitled to 50% of back wages for the period the applicant was not allowed to work on the post.
iii. The applicant S.P. Maurya shall be adjusted against some other vacant post at nearby post office within a period of six months from the date of communication of this order.
There shall be no order as to costs."
6. It is stated that opposite party obtained interim order from Hon'ble High Court of Allahabad which was vacated on 28.2.2004 thereafter, the applicant joined duty at Kamarpur District Azamgarh.
Since then he has been serving at Kamarpur.
Page No. 3
7. Applicant claims that Kamarpur is almost 60 Km. away from the native place of applicant. He claims to have requested the respondents to transfer/adjust him near to his native place because he is suffering from several difficulties. No heed was paid, therefore, applicant moved another OA No.691 of 2010 (Shyam Charan Chauhan vs. Union of India & Ors) which was dismissed with the directions that opposite party can adjust him at their own convenience, however, respondents did not adjust him in spite of availability of vacant post near to his house.
8. Applicant says that several other G.D.S. had been adjusted near their native places. As one post of G.D.S. M.C./M.D. at Mohali B.O. Tarwa, Azamgarh is vacant therefore, he moved a formal application for transfer on 05.07.2013. He also moved a corrected application. Yet nothing was done, therefore, he has been compelled to file the present OA for following relief(s):-
" i. to issue the order or direction to the opposite party No.2, 3 to adjust the applicant from Kamarpur B.O. to Mohali Tarwa, District Azamgarh.
ii. to allow the application with cost."
9. The respondents have filed counter reply, wherein they have denied the claims of applicant. The counter reply states that applicant was appointed as E.D.M.P., Kamarpur (Thekma) Azamgarh on the basis of retrench employee vide memo No.A/Kamarpur dated 08.06.1992.
10. The respondents say that Central Administrative Tribunal, (C.A.T.) Allahabad vide its order dated 22.04.2002 passed combined order in Page No. 4 OA No.731 of 1998 (Sankatha Prasad Maurya vs. Union of India & Ors.) and OA No.803 of 1998 (Shyam Charan Chauhan vs. Union of India & Ors.) and had given certain directions. In compliance of those directions applicant was allowed to join as E.D.M.P. Kamarpur.
11. The respondents have stated that applicant has had filed several earlier OAs No.1230 of 2006, OA No.966 of 2009 and OA No.691 of 2010 virtually on same ground for transfer and adjustment for particular places.
12. In OANo.691 of 2010 (Shyam Charan Chauhan vs. Union of India & Ors) following observations were made:-
"9. For the reasons mentioned above I am of the opinion that there is no policy of transfer of the G.D.S. employee and no such direction can be given to the respondents to accommodate the applicant at his native place or nearby his residence and it is for the respondents to consider his posting nearby his native place. In my opinion O.A. lacks merits and liable to be dismissed.
10. O.A. is dismissed. However, it is provided that if still there is a vacancy at Mehnagar and applicant expressed his willingness then if possible he may be accommodated. No order as to costs."
13. The respondents have, further, stated that the G.D.S. have limited right of transfer. They can be transferred/ adjusted only once in entire period of service that too only on the grounds mentioned in the prevailing rules. In fact, even the grounds mentioned in the Rules have to be tested on the anvil of "Public Interest". The respondents have drawn the attention of the Tribunal that the only ground mentioned by applicant is that he would be comfortable in Tarwa, which cannot be considered under the prevailing rules.
Page No. 5
14. The applicant, thereafter, filed Rejoinder wherein he has denied that he has been engaged as a retrench employee. The applicant has also reiterated other grounds taken in the OA.
15. Heard Ms. Saraswati Rai, counsel for the applicant and Shri L.P. Tiwari, counsel for the respondents.
16. Gramin Dak Sevaks are not Government Servant in the strict sense of term. Rule 3-A of G.D.S. (Conduct and Engagement) Rules hereinafter referred to as 'G.D.S. Rules' clearly say that a G.D.S. shall be outside the civil service of union and that they cannot claim to be at par with the Central Government Employee. A G.D.S. is not required to perform the duty beyond the maximum period of 05 hours in a day. He is also required to have an independent other avocation besides the job of Sevak. (iii) of Rule 3-A of G.D.S. Rules contemplates that a Sevak shall have to give an undertaking that he has other sources of income besides the allowances paid or to be paid by Government for adequate means of livelihood for himself and his family. We think that the Rule 3-A of G.D.S. Rules needs to be reproduced as follows:-
"3-A Terms and Conditions of Engagement
(i) A Sevak shall not be required to perform duty beyond a maximum period of 5 hours in a day;
(ii) A Sevak shall not be retained beyond 65 years of age;
(iii) A Sevak shall have to give an undertaking that he has other sources of income besides the allowances paid or to be paid by the Government for adequate means of livelihood for himself and his family;
(iv) A Sevak can be transferred from one post/unit to another post/unit in public interest;Page No. 6
(v) A Sevak shall be outside the Civil Service of the Union;
(vi) A Sevak shall not claim to be at par with the Central Government employees;
(vii) Residence in post village/delivery jurisdiction of the Post Office within one month after selection but before engagement shall be mandatory for a Sevak.
Failure to reside in place of duty for GDS BPM and within delivery jurisdiction of the Post office for other categories of Gramin Dak Sevaks after engagement shall be treated as violative of conditions of engagement and liable for disciplinary action under Rule 10 of the Conduct Rules, requiring removal/dismissal;
(viii) Post Office shall be located in the accommodation to be provided by Gramin Dak Sevak Branch Postmaster suitable for use as Post Office premises;
(ix) Combination of duties of a Sevak shall be permissible;"
17. The Rule-6 of same rules provides that a Sevak shall not be entitled to any pension. It is, further, clear that prevailing rules for conduct and engagement of G.D.S. have to be interpreted strictly because Gramin Dak Sevaks are engaged in addition to their other work and they are engaged for five hours and less during single day.
18. In terms of Amendment Rule - 3 of G.D.S. Rules, 2001, a G.D.S. is not eligible for transfer in any case from one post/unit to another post/unit except in 'Public Interest'. In order to provide uniform criteria a limited transfer facility was allowed to G.D.S. from a post/unit to another under the Rules of following grounds:-
" I. A GDS who is posted at a distant place on redeployment in the event of abolition of the post.
II. GDS appointed on compassionate grounds and posted at distant place.
III. Woman GDS on her marriage/remarriage.
IV. Where the GDS himself/herself suffers from extreme
hardship due to a disease and for medical
attention/treatment, such transfer may be allowed on Page No. 7 production of a valid medical certificate from the medical officer of a Government hospital.
V. Where the GDS is looking after the welfare of a physically
handicapped/ mentally handicapped
person/dependant and he/she requires to move to different places to give support to such physically/mentally challenged person/dependent."
19. The rules for transfer/adjustment are very specific and we believe no variation is permissible in consideration of transfer/adjustment of any applicant. The limited transfer facility is also subject to fulfilment of certain conditions. Those conditions have also been specified by the Department. The G.D.S. will normally be eligible for only one transfer during the entire career as has been mentioned earlier. Such request for transfer will only be considered against the future vacancies of G.D.S. and that too after examining the possibility of recombination of duties of G.D.S. These conditions are delineated thus:-
"(i) A GDS will normally be eligible for only one transfer during the entire career.
(ii) Request for such transfer will be considered against the future vacancies of GDS and that too after examining the possibility of recombination of duties of GDS.
(iii) TRCA of the new post shall be fixed after assessment of the actual workload of the post measured with respect to the cycle beat in respect of GDS MD/MC/Packer/Mail messenger in terms of Directorate Letter No.14-11/97-
PAP, dated 1.10.1987.
(iv) Past Service of the GDS will be counted for assessing the eligibility for appearing in departmental examination. GDS will not have any claim to go back to the previous recruitment unit/division. When a GDS is transferred at his own request and the transfer is approved by the competent authority irrespective of the length of service, he/she will rank junior in the seniority list of the new unit to all the GDS of that unit who exist in the seniority list on the date on which the transfer is ordered. A declaration to the effect that he/she accepts the seniority on transfer in accordance with this should be obtained before a GDS is transferred.
Page No. 8
(v) Transfer will be at the cost and expenditure of GDS. No expenditure whatsoever on this account will be borne by the Department under any circumstances.
(vi) Request for transfer of the GDS will be confined to transfer within the same Circle.
(vii) No transfer request will be entertained within 3 years of initial recruitment."
20. It is true that subsequently, the Woman Gramin Dak Sevaks have been given some extra facility. It is provided that Woman G.D.S., who had availed the transfer facility on account of extreme hardship due to disease and for medical attention/treatment before their marriage, can avail the facility for second time in the event of their marriage/re- marriage. But, it is pertinent to mention that all the five grounds stipulated for allowing the transfer of G.D.S. in Para-2 of letter No.19- 10/2004-GDS, dated 17.7.2006 have been retained, meaning thereby that as for as the Male G.D.S. are concerned; they cannot seek transfer/adjustment any other ground other then, the five grounds mentioned earlier.
21. The application moved by applicant for transfer indicates that he is seeking his transfer to Tarwa on the ground of comfort. Copy of his application is available on record (Annexure A-1) at page 10 to 13 of compilation-II. Surprisingly, in the initial application/questionnaire in column No.(vi) it was asked that whether Cost and Expenditure on transfer will be borne by G.D.S. seeking transfer, the same was filled by applicant by saying 'No'. As we have discussed earlier that the Cost and Expenditure of any transfer made on the request of G.D.S. has to be borne by him/her. Department could have rejected this request for transfer only on this ground. However, it is also required to be Page No. 9 mentioned that subsequently a declaration was made by applicant saying that Cost and Expenditure will be borne by him. To that extent he made a correction in his request.
22. The record reveals that applicant has been seeking transfer by filing various OAs. Admittedly, he was posted at Kamarpur in pursuance of order dated 22.4.2002 passed in common order of OA No.803 of 1998 (Shyam Charan Chauhan vs. Union of India & Ors) and OA No.731/1998 (S.P. Maurya and Ors. Vs. Union of India & Ors), wherein a direction was given to the Department to allow him to join as E.D.M.P. Kamarpur. Other OAs (OA Nos. 1230/2008, 966/2009 and 691/2010) were also filed by applicant allegedly on same grounds. The pleadings of earlier OAs and orders passed thereon except the order of OA No.691 of 2010 are not available on record, but record indicates that all the OAs were filed for transfer to one place to other.
23. The order dated 26.08.2011 passed in OA No.691 of 2010 (Shyam Charan Chauhan vs. Union of India & Ors) indicates that he has been seeking transfer to several places. In the present OA, he wants transfer to Tarwa, but earlier he was seeking transfer to Kamharia. The order indicates that he was given option for his posting at Mehnagar, Sub Post Office which is only 10 Km. away from Kamharia, but applicant only wanted to be adjusted at Kamharia, despite the fact that there was no vacant post at Kamharia.
24. It is pertinent to point out that his present place of posting i.e. Kamarpur was also gained by the order of this Tribunal. Now, the Page No. 10 applicant is unhappy even at Kamarpur. Subsequently, he sought transfer to Kamharia.
25. We fail to understand the insistence of applicant to repeatedly seek transfer to various different places at different periods of time. He had been adjusted on account of earlier order of this Tribunal. The Department tried to adjust him at Mehnagar which is said to be merely 10 Km. away from his stated native place. He again sought transfer to Kamharia. Now he is seeking transfer to Tarwa which is altogether a different place.
26. It appears that applicant is consistently ignoring the rules of Department wherein only one transfer is possible in entire career that too on the specific ground mentioned in the Rules (supra) and in 'Public Interest'. The stated comfort of applicant is not one of the grounds mentioned in the Rules. It is also clear that applicant is not sure about his choice of place of posting. He has been seeking transfer of various places in different period of time which is not permissible under the Rules.
27. We have carefully examined all the Rules in this connection. The Rules indicate that the G.D.S. have no automatic right of transfer/adjustment despite their case falling within the 05 or 06 specified rules, inasmuch as, even transfer on the above grounds under rules has to be made in 'Public Interest' and only on availability of future vacancies and that too after examining the possibility of recombination of duties of G.D.S., meaning thereby that merely because the case of some G.D.S. falls within the specified grounds of Page No. 11 transfer that by itself would not necessitate his transfer simply on the request of applicant. 'Public Interest', availability of vacant post, etc. will have to be examined by the Competent Authority.
28. In the present case, the case of applicant does not fall within the ground specified in prevailing rules. He has been repeatedly, seeking transfer on various places at different periods of time. The competent authority did not find any 'Public Interest' and vacant post for applicant. We cannot substitute the opinion of competent authority with our own especially in absence of any satisfactory material.
29. Rules clearly indicate that they are enabling provisions but they do not provide any right to any G.D.S. for transfer/adjustment. We do not appreciate the conduct of applicant in invoking jurisdiction of this Tribunal again and again virtually on same ground.
30. Before parting with the order, we would like to mention that there are several discrepancies in the present OA. i. In Para 4.5, it is mentioned that applicant moved transfer application through formal application on 05.07.2013. In Para 4.6, it is said that some mistake occurred in the application, therefore, the opposite party returned the application to the applicant which was received on 04.07.2013. It is, further, said in Para 4.7 that applicant sent application with correction on 05.07.2013. We are surprised that if application for transfer was sent on 05.07.2013 then how can the opposite party return the Page No. 12 application to the applicant on 04.07.2013 and then, further, how was it possible to return the application after correction on 05.07.2013. Obviously, these are typographical mistakes or some other kind of mistakes but these have not been corrected by applicant.
ii. It is also pertinent to point out that this is the 5th OA of applicant but applicant in his pleadings has mentioned only one OA i.e. OA No. 961 of 2010. He did not mention the details of other earlier OAs. He did not provide any orders of earlier OAs. Respondents have given details of two earlier OAs i.e. OA No.803 of 1998 and OA No.691 of 2010. It was the duty of applicant to give the details of earlier OA Nos. 1230 of 2008, 966 of 2010 and 691 of 2010 and combined order passed in OA No.803 of 1998.
iii. A brief reference was made about the order of OA No.803/1998 but without mentioning the number of OA. A reference was also made about the OA No.691 of 2010 but the pleadings and orders were not delineated. Other OAs No.1230 of 2008 and 966 of 2009 have not been mentioned by applicant at all. iv. The respondents mentioned these OAs in counter reply, even then the applicant did not provide the details of other OAs in his rejoinder.
31. We do not appreciate the conduct of applicant in concealing the details of these earlier OAs. We also thing that applicant cannot be encouraged to file repeated OAs for same relief on similar grounds Page No. 13 again and again. Therefore, we believe that cost should be imposed upon the applicant.
32. Considering all the facts and circumstances, this OA is not sustainable and is liable to be dismissed. Accordingly, OA No.111 of 2014 is dismissed with cost which is quantified at Rs.1000/-.
(Mohd. Jamshed) (Justice Bharat Bhushan)
Member (A) Member (J)
Sushil