Central Administrative Tribunal - Allahabad
Balak Ram Maurya vs Union Of India Through The Secretary on 30 November, 2012
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD
(THIS THE 30TH DAY OF November, 2012)
PRESENT:
HONBLE MR. D.C.LAKHA, MEMBER-A
ORIGINAL APPLICATION No. 993 OF 2012
(U/s, 19 Administrative Tribunal Act.1985)
Balak Ram Maurya, aged about 54 years, S/o Late Mirai Lal, AGE B/R-I, C/GE(I) B/R, Chakeri, Kanpur.
. . . . . . . .Applicant
By Advocate: Shri Pankaj Srivastava
Versus
1. Union of India through the Secretary, Ministry of Defence, Kashmir House, New Delhi.
2. The Directorate General (Personnel) EIB, Military Engineer Services, Engineer-in-Chief Branch, Integrated HQ of MOD (Army), Kashmir House, New Delhi.
3. The Executive Engineer (SG), Joint Director Personnel (M), O/o the Director General (Personnel), Military Engineer Services, Engineer-in-Chief Branch, Integrated HQ of MOD (Army), Kashmir House, New Delhi.
4. The Chief Engineer, Headquarters Southern Command, Pune (Maharashtra).
5. The Garrison Engineer (I) B/R Chakeri, Kanpur.
. . . . . . . . . Respondents
By Advocate: Shri Firoz Ahmad/ Dr. K.P. Bajpai
O R D E R
(DELIVERED BY:- HONBLE MR. D.C.LAKHA, MEMBER-A This application has been instituted for the following relief(s) :-
(i) That this Honble Court may graciously be pleased to quash and set aside the impugned order of posting dated 29.12.2011 qua to the applicant and subsequent order dated 26 June, 2012 (Annexure-A-1 and A-2 with Compilation No. 1) passed on behalf of Respondent No. 2.
(ii) That this Honble Court may graciously be pleased to direct the respondents to permit the applicant to continue on his post till the stipulated period give him choice posting.
2. Facts in brief, as stated in the O.A. are that the applicant who joined the service as a Junior Engineer, in the year 2000, suffered the paralytic attack and became physically handicapped more than 65% and now he is not in position to move a single pace without any assistance. Copy of handicapped certificate and concession certificate are at Annexure A-3 and A-4. On being transferred from Bangdubbi, the applicant, vide impugned order dated 29th December, 2011 was posted to Lucknow Zone. It is stated that the wife of the applicant underwent a major stomach operation and was advised six months bed rest. Besides, the daughter and the sons of the applicant are student of class 11th and his posting out of Kanpur will create hindrance in their studies. Vide representation dated 18th June, 2012 the applicant requested for keeping his posting in abeyance for one year in terms of policy decision of the Government with regard to handicapped persons (Annexure A-5). On query made by the respondents by letter dated 3/19.04.2012 the applicant stated that he is having physical problem to move and is handicapped more than 65%, therefore, he requested for posting adjacent to his native place. The applicant having no response, filed OA No. 827/12, which was disposed of with the direction to dispose of the representation of the applicant by passing a reasoned and speaking order in accordance with rules, but the said representation was rejected stating that handicapped certificate is not genuine. As per policy guidelines of the government of India dated 13th March, 2002 (Annexure A-8), requests from physically handicapped employee for posting to or near their native places may be given preference, but the respondents have ignored the said guidelines and have posted the applicant to Lucknow, which is far away from his native place Mainpuri. Hence, the OA.
3. On notice, the respondents have filed the counter in which the averments made in the OA have been denied. It is stated that the applicant has not produced any certificate before the department for the publication in Part II order and for recording in the service documents. Moreover, at the time of submission of particulars by the applicant duly signed by him in the column of physically handicapped the applicant put dash (-) and has not shown himself as handicapped. By movement order dated 03.07.2012 the applicant was struck off the strength on 07.07.2012, therefore, he is no more on the strength of respondents. It is further stated that the applicants posting at Lucknow will be beneficial for him, inasmuch as he would avail best medical facilities at Lucknow for himself and his wife and also for studies of his children, while, on the other hand his choice station like Fatehgarh or Agra are located at more distance than Lucknow. The physically handicapped certificate submitted by the applicant is neither in the prescribed form nor does it indicate that the applicant was examined by an orthopedic surgeon. The representation of the applicant was disposed of by passing a speaking order against which the applicant filed Writ Petition No. 32876/12 before the Honble High Court at Allahabad which was dismissed by order dated 10.07.2012. It is also submitted that the applicant had been posted in Bangdubbi from 2005 to 2008 and he never complained while serving in Bangdubbi which is far away from his native place. The OA lacks merit and is liable to be dismissed. The respondents have also filed Supplementary counter affidavit reiterating their stand taken in the CA.
4. Rejoinder Affidavit is filed by the applicant, wherein the averments made in the OA have been repeated. It is further stated that the handicapped certificate was submitted by the applicant to the department in the year 2000 and since then he is getting the transportation allowance at double rates which is provided only to handicapped persons. In the year 2008 at the time of his posting at Bangdubbi he again submitted his transfer/posting application enclosing handicapped certificate which was forwarded by Garrison Engineer Bangdubbi to the higher authority vide order dated 25.03.2008.
5. I have heard the learned counsels for the parties and have also perused their pleadings submitted in the OA, including Counter, Supplementary Counter and Rejoinder. The learned counsel for the applicant, while arguing his case submitted that the applicant was more than 65% physically handicapped and this fact he brought to the notice of the department while posted at Bangdubbi in his representation for transfer which was forwarded by the Senior Officers. The respondents have wrongly rejected the physically handicapped certificate only on a technical ground that the medical certificate issued by the CMO Fatehgarh was not in the prescribed proforma and it was not issued by an orthopedic surgeon. The respondents have been paying the transportation allowance at double the rate which is applicable to physically handicapped persons. The applicant, being a handicapped person, as per policy guidelines of government of India has every right to be posted at the station nearest to his native place i.e. Kanpur, Fatehgarh or Agra. In support of his argument he has placed reliance on the following Judgments:-
1. Shyamal Bhattacharyya Vs. Union of India and others reported in ( SLR) 1989 (6) in OA No.843 of 1988.
2. V.K. Bhasin Vs. State Bank of Patiala And Ors. (Delhi High Court).
6. The learned counsel for the respondents, on the other hand has argued that the physically handicapped certificate issued by the CMO Fatehgarh is not in the prescribed proforma therefore, the applicant cannot be treated as physically handicapped person, and is not entitled to take the benefit of the policy decision meant for physically handicapped persons. The applicant has All India transfer liability and the transfer being incidence of service the applicant cannot be granted any relief as per the spirit of various Judgments of Honble Supreme Court and Honble High Court which are as under:-
1. Gulzar Singh Son of Late Sohan Vs. State of U.P. (Allahabad High Court)
2. R.R. Sharma, aged about 57 Years, Vs. Union of India (Central Administrative Tribunal, Lucknow)
3. Union of India and Ors Vs. S.L. Abbas (Supreme Court of India)
7. I have given thoughtful consideration to rival contention and perused the pleadings of the parties. The relevant part of the O.M. dated 10th May, 1990 provides as under:-
.However, in the case of holders of Group C or Group D poss who have been recruited on regional basis and who are physically handicapped, such persons may be given posting, as far as possible, subject to administrative constraints, near their native places within the region.
8. Even if, for the sake or argument it is presumed that the applicant belongs is physically handicapped, the O.M. in this regard provides the posting at native place as far as possible, subject to administrative constraints, and thus, the applicant has no indefeasible right to be posted near his native places within the region. Moreover, the scope for intervention by the Tribunal/court in transfer orders is very very limited and there exists no ground at all to challenge the impugned orders as held in the following judgments of Hon. Supreme Court.
(i) State of U.P. Vs. Gobardhan Lal (2004) 11 SCC402.
(ii) Shilpi Bose Vs. State of Bihar AIR 1991 SC 532.
(iii) Union of India Vs. S.L. Abbas (1993) 4 SCC 357.
9. Relevant portion of Para 7 of Gobardhan Lal (Supra) is reproduced as under :-
..........Unless the order of transfer is shown to be an outcome of a malafide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made......
10. Thus, As per the law of the land settled in the cases of transfer matters, it has been settled in more than one judgments by the Honble Supreme Court that the transfer is an incidence of service and the Tribunal and Courts have very very limited scope (only where the substantiated bias is alleged) to interfere in such matters. As held by the Hon. Supreme Court in the case of State of U.P. and others vs. Gobardhan Lal (2004) 11 SCC, 402 (supra), the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, shown to be vitiated by malafides or is made in violation of any statutory provision. It is amply clear that in this case the applicant has failed to make out case in his favour. Hence the case is found lacking in merit and is accordingly dismissed. However, the respondents are at liberty to sympathetically consider the request of applicant for postponement of his transfer order dated 29.12.2011 for at least one year made vide his request dated 18.1.2012 (A-5). No costs.
Member (A) s.a.
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