Central Administrative Tribunal - Bangalore
B Narayana vs Department Of Posts on 17 February, 2025
1
OA.No.170/00612/2024/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00612/2024
ORDER RESERVED ON: 05.02.2025
DATE OF ORDER: 17.02.2025
CORAM:
HON'BLE MR. JUSTICE B.K. SHRIVASTAVA, MEMBER(J)
B. Narayana,
S/o Sri. Boladevadiga,
Aged 57 years, working as
Superintendent of Post Offices,
Haveri Division, Haveri - 581 110,
Residing at C/o D.V. Gujjar,
Vidya Nagara, Haveri - 581 110. ... Applicant
(By Advocate Shri A.R. Holla)
Vs.
1. Union of India,
By Secretary, Department of Posts,
Ministry of Communications, Dak Bhavan,
New Delhi - 110 001.
2. Postmaster General,
North Karnataka Region,
Dharwad - 580 001.
3. Manjunath G. Hubballi,
SRM, RMS 'HB' Division,
mikasha mikasha suneja
CAT Bangalore
suneja 2025.02.24
09:45:59+05'30'
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OA.No.170/00612/2024/CAT/BANGALORE
Hubballi - 580 029. ...Respondents
(By Shri Vishnu Bhat, Sr. Panel Counsel for Respondents
No. 1 & 2; Respondent No.3 - ex-parte)
ORDER
PER: JUSTICE B.K. SHRIVASTAVA, MEMBER (J)
This OA has been filed on 23.10.2024 for quashment of the order dated 21.10.2024 (Annexure - A3) by which the applicant - B. Narayana has been transferred from the post of "SPOs Haveri Division" to the "SPOs Yadgiri Division". The reliefs claimed in para 8 of the OA are as under:-
"(i) To quash the Memo No. NKR/STA-2/310/2024 dated 21.10.2024, issued by the respondent No.2, Annexure - A3 and
(ii) Direct the respondents to continue the applicant in the present place till he completes the station tenure as per the transfer guidelines and
(iii) Grant such other relief deemed fit, having regard to the facts and circumstances of the case."
2. As per applicant, by order Annexure - A1, he assumed the charge of the post of SPOs Haveri on 26.12.2022 and submitted the charge report (Annexure - A2). Before completing his tenure of three years, he has been transferred as SPOs Yadgiri Division mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 3 OA.No.170/00612/2024/CAT/BANGALORE by the impugned order dated 21.10.2024 (Annexure - A3). According to the applicant, his wife is working as Assistant Administrative Officer, Department of Ayush, District Ayush Office, Haveri and his daughter is a student of College of Agriculture, Dharwad. The applicant is also not keeping in good health. Therefore, he submitted a representation dated 21.10.2024 (Annexure - A4) to cancel the impugned order.
3. The applicant challenged the impugned order (Annexure - A3) upon the ground that his transfer is premature and in violation of transfer guidelines. The order is arbitrary and contrary to the guidelines for transfer. Looking to the services of the wife of applicant and the study of daughter of applicant, before three years transfer should not be made. Therefore, the applicant seeks quashment of the aforesaid order (Annexure - A3) by filing this OA.
4. On the other side, the respondents opposed the aforesaid OA by filing the reply statement on 12.11.2024. It is submitted by the respondents in their reply that the aforesaid transfer order has been issued in the "interest of administration" and the applicant has been posted against the vacant post. The details have been mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 4 OA.No.170/00612/2024/CAT/BANGALORE mentioned in the reply for showing the administrative requirement. Therefore, it is requested by the respondents that the application should be dismissed.
5. When the case was listed on 11.12.2024 the Court observed that the representation (Annexure - A4) was submitted by the applicant. Therefore, direction was given to the respondents to file the result of the aforesaid representation. In compliance of the aforesaid order during final arguments the respondents drew attention towards Annexure - R1 dated 29.10.2024 by which the representation dated 21.10.2024 has been rejected. It is mentioned in the aforesaid order:-
"Subject: Request for cancellation of transfer order-Reg.
Ref : Your office e-mail dated 21.10.2024 and letter No. HVR/B1/172/Dlgs/2024 dated 21.10.2024.
******* With reference to the above subject, request dated 21.10.2024 of Shri B. Narayana, Supdt. Of Post Offices, Haveri Division, Haveri for cancellation of transfer ordered from Haveri Division to Yadgiri Division has not been considered by the Competent Authority as transfer order is issued on administrative ground / in the interest of service.
The Officer may be informed accordingly."
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6. Arguments of both parties were heard on 05.02.2025. It is submitted by the applicant counsel that the transfer order is completely in violation of the transfer policy. Copy of the "transfer policy" has been submitted by the applicant which is Annexure - A5 dated 20.02.2024. The counsel draws attention towards the various provisions of the aforesaid policy. It is submitted by the learned counsel for the applicant that as per Clause B of the policy, the tenure shall be three years which shall be counted from the date of assumption of the charge. The applicant was earlier transferred by order Annexure - A1 dated 05.12.2022 and assumed the charge by Annexure - A2 dated 26.12.2022 therefore, his tenure of three years was not completed. He also draws attention towards sub- clause 4 of para F and submitted that the posting of a spouse should also be considered. It is also provided that the question of medical needs of the differently-abled children and the education needs of the children studying in 10th or 12th grade should also be considered.
7. On the other side, it is submitted by the learned counsel for the respondents that as per aforesaid policy, a Transfer Placement Committee (TPC) is authorised to recommend the mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 6 OA.No.170/00612/2024/CAT/BANGALORE transfer and in the present case, the committee also recommended the transfer of the applicant in the "interest of administration". Therefore, no interference is required in this case.
8. If we see the law laid down by the Apex Court in the following cases:-
[1] E.P. Royappa v. State of T.N., (1974) 4 SCC 3 = 1974 SCC (L&S) 165 = 1973 SCC OnLine SC 363, [2] Union of India v. H.N. Kirtania, (1989) 3 SCC 445 = 1989 SCC (L&S) 481 = 1989 SCC OnLine SC 220, [3] Shilpi Bose (Mrs) v. State of Bihar, 1991 Supp (2) SCC 659 = 1992 SCC (L&S) 127, [4] Chief General Manager, (Telecom) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee, (1995) 2 SCC 532 = 1995 SCC (L&S) 533 = (1995) 29 ATC 379, [5] State of M.P. v. S.S. Kourav, (1995) 3 SCC 270 = 1995 SCC (L&S) 666 = (1995) 29 ATC 553, [6] Union of India v. Ganesh Dass Singh, 1995 Supp (3) SCC 214 = 1995 SCC (L&S) 1142 = (1995) 30 ATC 629, [7] Abani Kanta Ray v. State of Orissa, 1995 Supp (4) SCC 169 = 1996 SCC (L&S) 175, mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 7 OA.No.170/00612/2024/CAT/BANGALORE [8] National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574 = 2002 SCC (L&S) 21 = 2001 SCC OnLine SC 1086, [9] Union of India v. Janardhan Debanath, (2004) 4 SCC 245 = 2004 SCC (L&S) 631 = 2004 SCC OnLine SC 212, [10] State of U.P. v. Siya Ram, (2004) 7 SCC 405 = 2004 SCC (L&S) 1009 = 2004 SCC OnLine SC 807, [11] State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 = 2005 SCC (L&S) 55 = 2004 SCC OnLine SC 368, [12] Somesh Tiwari v. Union of India, (2009) 2 SCC 592 = (2009) 1 SCC (L&S) 411 = 2008 SCC OnLine SC 1876, [13] Union of India v. Muralidhara Menon, (2009) 9 SCC 304 = (2009) 2 SCC (L&S) 597 = 2009 SCC OnLine SC 1432, [14] Rajendra Singh v. State of U.P., (2009) 15 SCC 178 = (2010) 1 SCC (L&S) 503 = 2009 SCC OnLine SC 1408, [15] State of Haryana v. Kashmir Singh, (2010) 13 SCC 306 = (2011) 1 SCC (L&S) 376 = 2010 SCC OnLine SC 1132, [16] Union of India v. SL Abbas, (1993) 4 SCC 357, then the conclusion may be summarized as follows:
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(a) Transfer is a condition of service.
(b) It does not adversely affect the status or emoluments or seniority of the employee.
(c) The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.
(d) It is within the exclusive domain of the employer to determine at what place and for how long the services of a particular employee are required.
(e) Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor should it be passed under political pressure. There is a very little scope of judicial review by Courts /Tribunals against
(f) The transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
(g) In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 9 OA.No.170/00612/2024/CAT/BANGALORE
(h) The person against whom allegations of malafides is made should be impleaded as party by name.
(i) Transfer policy or guidelines issued by State or employer does not have any statutory force as it merely provides for guidelines for the under- standing of the Department personnel.
(j) The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children.
(k) If the transfer order is made in mid-academic session of the children of the employee, the Court /Tribunal cannot interfere. It is for the employer to consider such a personal grievance.
9. In the case of SK Nausad Rahaman & Ors. Vs. Union of India and Ors., (2022) 12 SCC 1 : 2022 SCC OnLine SC 297 the Supreme court said that certain basic precepts of service jurisprudence must be borne in mind:-
"24. First and foremost, transfer in an all-India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 10 OA.No.170/00612/2024/CAT/BANGALORE has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
25. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.
26. Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration. In this context, J.S. Verma, J. (as the learned Chief Justice then was) speaking for a three-Judge Bench of this Court in Bank of India v. Jagjit Singh Mehta, (1992) 1 SCC 306 :
1992 SCC (L&S) 268] held : (SCC pp. 308-09, para 5) "5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-
India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 11 OA.No.170/00612/2024/CAT/BANGALORE hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. ... No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
27. The above principle was cited with approval in Union of India v. S.L. Abbas, (1993) 4 SCC 357 : 1994 SCC (L&S) 230 wherein the Court held that transfer is an incident of service : (SCC p. 359, para 7) "7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 12 OA.No.170/00612/2024/CAT/BANGALORE 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 however does not confer upon the government employee a legally enforceable right."
28. Fourth, norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulated in:
(i) A law enacted by the competent legislature;
(ii) Rules made under the proviso to Article 309 of the Constitution; and
(iii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of civil services under the States.
29. Fifth, where there is a conflict between executive instructions and Rules framed under Article 309, the rules must prevail. In the event of a conflict between the Rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules. [Union of India v. Somasundaram Viswanath, (1989) 1 SCC 175, para 6 : 1989 SCC (L&S) 150] mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 13 OA.No.170/00612/2024/CAT/BANGALORE
30. Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the Rules under the proviso to Article 309 of the Constitution. [State of Orissa v. Prasana Kumar Sahoo, (2007) 15 SCC 129, para 12 :
(2010) 2 SCC (L&S) 765].
10. Recently the Delhi High court in Nirmala Devi Vs. U.O.I. Through its Secretary & Ors.W.P.(C) 8899/2023 & CM. APPLS. 33633-34/2023 [03.10.2023] said that Transfer and posting is an incidence of service. Competent authority is empowered to take a decision with regard to posting of individual in the interest of the concerned Department.
11. In the light of the aforesaid settled law, if we examine the present case then it appears that the wife of applicant named Smt. Shobha V Devadiga is the permanent employee of the Department of Ayush and working as Assistant Administrative Officer, District Ayush Office, Haveri. For this purpose, the applicant submitted a certificate dated 21.10.2024. It is not stated in the aforesaid certificate that from which date the wife of the applicant is posted at the same place. A spouse ground is available not only for the husband but the aforesaid ground is also available to the mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 14 OA.No.170/00612/2024/CAT/BANGALORE wife. The wife of applicant may also seek her transfer to the place of husband posting. The daughter of the applicant is not the student at Haveri. As per pleadings of the applicant, she is studying in the College of Agriculture, Dharwad. The class of education is not mentioned in the pleadings. As per transfer guidelines the weightage may be given if the children are the students of 10th or 12th grade.
12. It is argued by the learned counsel for the applicant that the request has been rejected by Annexure - R1 dated 29.10.2024 but any details are not mentioned in the aforesaid letter. The request was submitted for cancellation of transfer. The transfer order was issued on administrative ground in the interest of service. This fact is mentioned in the aforesaid letter. It is not expected from the respondents that all internal correspondence and the consideration should be mentioned in the letter of rejecting the request of cancellation.
13. In this regard, the detailed reply has been filed by the respondents in which the reasons are mentioned in detail. It appears that on the administrative ground the transfer order has been issued in good faith.
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14. It is mentioned by the respondents that the Yadgiri Postal Division was newly formed on 01.04.2022 after bifurcation of Kalaburagi Division and was holding the additional charge of the new division Yadgiri and subsequently, it was managed by SPO Raichur division under additional charge. The list of the officers who were holding the additional charge along with the dates is also mentioned in the pleadings of the respondents.
15. For showing the justification it is mentioned by the respondents that the division was newly formed however only 68 staff was working. All the basic records are to be created and maintained. The office assistants working in the division were new to the work in the administrative office and they require guidance and handholding to provide postal services to the general public of Yadgiri district. As no officer was continuously working either in the post of Divisional Head or ASP (HQ), therefore, it was difficult to manage the routine work of the administrative unit. The division is currently experiencing a significant manpower shortage, which is adversely affecting the efficiency and reliability of services. In absence of a regular divisional head has led to mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 16 OA.No.170/00612/2024/CAT/BANGALORE inadequate monitoring and oversight, therefore, hampering service delivery to the public.
16. Another reason was also mentioned in the pleadings. It is submitted that during annual inspection by the Postmaster General, North Karnataka Region on 06.07.2023, the lapses on the part of divisional administration in maintenance of basic records, monitoring investigation and disciplinary cases, business development and other aspects were discussed in length and the result of the inspection was not satisfactory. Number of frauds and misappropriation of public money cases came to light in the division and the amount involved in the cases was very huge. In the aforesaid situation, there was an urgent necessity of regular and competent officer to be posted as divisional head to manage the investigation, recovery of loss of government money and other important aspects apart from managing the routine work. It is also mentioned that due to frequent change of officers, the progress in respect of investigation was not up to the expected level and thereby restoring the public money was getting delayed. The list of cases related to fraud of huge amounts is also mentioned at page 5 of the reply.
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17. As per guidelines, the Transfer and Placement Committee has been constituted which consists of Director Postal Services (Chairperson), Assistant Director-II and Accounts Officer, Office of the Postmaster General, N.K. Region. It is submitted by the respondents that the aforesaid committee held the meeting on 21.10.2024 and examined the suitability of the officers in PS Group B cadre working in North Karnataka Region for posting as SPOs Yadgiri Division upon which the Committee took the decision, the respondents also mentioned the following facts at page 7 of the reply:-
"The committee considered the applicant Sri B. Narayana, SPOs Haveri as the most suitable and hence recommended his posting as SP Yadgiri. The applicant had managed sensitive divisions as Divisional Head and had vast experience working in various postal divisions in various capacities. He had a very good field experience in handling investigation and disciplinary matters which was the required element for managing Yadgiri division in the present scenario. The resultant vacancy of SPOs Haveri was also examined by the committee and decided to post Sri M.G. Hubballi, SRM, RMS 'HB' Division, Hubballi and Sri R.Y. Madhusagar, Senior Postmaster, Hubballi Head Post office as SRM, RMS 'HB' Division, Hubballi. It was felt by the committee that the post of Senior Postmaster Hubballi Head Post office could be managed under the office arrangement without posting a regular Group B officer. Accordingly, the order was issued vide memo no.
mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 18 OA.No.170/00612/2024/CAT/BANGALORE NKR/STA-2/310/2024 dated 21.10.2024. The posting order was issued with a bonafide intention to manage the work of Yadgiri division in an effective manner. There was no other intention in selecting the applicant to be posted as SP, Yadgiri. However, his transfer was considered keeping the immediate requirements of the division and the capabilities of the officer under consideration."
18. Again at page 8 of the reply statement, the respondents also mentioned the details for supporting the administrative action. The respondents mentioned:-
"Action of the applicant in challenging the Respondent- 2 memo no. NKR/STA-2/310/2024 dated 21.10.2024 in unfounded. It is submitted that, keeping in view of the urgent necessity of posting of regular and competent officer as divisional head of Yadgiri Division to manage the investigation, recovery of loss of Government money and other important aspects apart from managing the routine work, the TPC was formed by the PMG, N.K. Region, Dharwad. The Transfer and Placement Committee consisting of Director Postal Services (Chairperson), Assistant Director-II, and Accounts Officer, office of the Postmaster General, N.K. Region met on 21.10.2024 and examined the suitability of officers in PS Group B cadre working in North Karnataka Region for posting as Supdt., of Post offices, Yadgiri division. The committee considered the applicant Sri B. Narayana, SPOs Haveri as the most suitable and hence recommended his posting as SP Yadgiri. The applicant had managed sensitive divisions as Divisional Head and had vast experience working in various postal divisions in various capacities. He had a mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 19 OA.No.170/00612/2024/CAT/BANGALORE very good field experience in handling investigation and disciplinary matters, which was the required element for managing Yadgiri division in the present scenario. The resultant vacancy of SPOs Haveri was also examined by the committee and decided to post Sri M.G. Hubballi, SRM, RMS 'HB' Division, Hubballi and Sri R.Y. Madhusagar, Senior Postmaster, Hubballi Head Post office as SRM, RMS 'HB' Division, Hubballi. It was felt by the committee that the post of Senior Postmaster Hubballi, Head Post Office could be managed under the office arrangement without posting a regular Group B officer. Accordingly, the transfer order was issued vide memo no. NKR/STA-2/310/2024 dated 21.10.2024. The posting order was issued with a bonafide intention to manage the work of Yadgiri division in an effective manner. There was no other intention in selecting the applicant to be posted as SP, Yadgiri. However, his transfer was considered keeping the immediate requirements of the division and the capabilities of the officer into consideration. The grounds raised by the applicant that he has not completed the post tenure and that his spouse is working in the station cannot be considered as the applicant, being in PS Group B cadre, is liable to be transferred anywhere in India and he cannot claim the spouse case for times. Hence, the OA is ill founded. Hon'ble Tribunal is requested to dismiss the OA in the interest of justice and equity."
19. Therefore, it appears that sufficient grounds were available for transfer / posting the applicant at the new place. This is not a punishment transfer. Looking to the good conduct and employee services of the applicant, he has been transferred to mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30' 20 OA.No.170/00612/2024/CAT/BANGALORE manage the new division. The Department thinks that the applicant has sufficient experience and will be competent to hold the charge of the new division and for better administration of the aforesaid new division.
20. In view of this Tribunal, looking to the aforesaid circumstances, no interference is required in the impugned order dated 21.10.2024 (Annexure - A3).
21. Therefore, OA is dismissed.
22. The interim order dated 24.10.2024 is vacated with immediate effect.
No order as to costs.
Sd/-
(JUSTICE B.K. SHRIVASTAVA) MEMBER (J) /ms/ mikasha mikasha suneja CAT Bangalore suneja 2025.02.24 09:45:59+05'30'