Central Administrative Tribunal - Mumbai
Vijay Nhanu Warang vs M/O Law And Justice And Company Affairs on 26 July, 2017
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CENTRAL ADMINISTRATIVE TRIBUNAL I
MUMBAI BENCH, MUMBAI. I
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O.A.2l0/00260/2017 E
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Dated thisfiépvwagefitheihihe day of July, 2017.
Coram: Hon'ble Shri-Rrvind J. Rohee, Member (J) Hon'ble Ms.B..Bhamathi, Member (A).
Shri Vijay Nhanu Warang I i Working as Assistant Registrar, ITAT Pane Bench (Under Transfer) residing at A/2, 205, Borivli I Shyamkrupa CHS Ltd., Borivali (West), Mumbai e 400 091. o - . ..Applicant.
( By Advocate Shri S.V; Marne ).
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_Versus .
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. 1. Union of India, through the'Secretary I | Ministry of Law & Justice, Department of Legal Affairs, 'A' Wing, Shastri Bhavan, New Delhi ~ ll0 001.
2. The President, . ' Income Tax Appellate Tribunal, Pratishtha Bhavan, 3" & 4" Floors,- Q 101, Maharshi Karve Marg, l ' Mumbai ~ 400 020.' -- ~
3. The Registrar, Income Tax Appellate Tribunal, -. 'Pratishtha Bhavan, 3" & 4*-Floors, - l0l, Maharshi Karve Marg, | | Mumbai ~ 400 020. ..Respondents. E I ( By Advocate Shri V.S. Masurkar ). ' ' Order reserved on : 21.06.2017 O rder delivered on :i%@.07.20l7 ti' O R D E R ' -_ 11' Per : Arvind J. Rohee, Member (Judicial) ' The applicant who is presently working as e E I .%
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Assistant Registrar, Income Tax Appellate Tribunal (ITAT) Rune Bench approached this Tribunal under Section 1£3<of the Administrative Tribunals Act, 1985 since aggrieved by the impugned order of his transfer from present post to Cuttack Bench of ITAT in Odisha State .in time sane: capacity? and. seeks time following E Ii re1iefs:~ "a. This BcnTble 'Tribunal nmy' graciously be pleased.txn call for the records of the case from the '''":5_-7:"
_ Respondents and after examining the same quash and set aside the impugned transfer orders dated 31.03.2017 qua the applicant as wel1- as the order dated 24.04.2017 passed kg: Respondent ' No;2. ' ' b. Costs cu? the application. be provided for. ' 'h'H c. Any' other euwi further" order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed." ' . ,, .
2. The applicant was initially appointed as Lower Division Clerk (LDC) iii ITAT, Mumbai Bench on 17.07.1982. He secured promotion to the post of Upper ' n|MhrJ-uPF&IhLfH'MrQ|Iv Division Clerk (UDC), 'Assistant and then E |:
Superintendent in due course of time. Be was promoted as .Assistant Registrar CH1 adhoc ibasis iii th Inf.nJ-1-";|'~J|IH-l'fFfl|I(n"' e year [ II :
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E 2011. It is stated that afifl. the promotions to the
-I [ post cm? Assistant Registrar in.IUQ¥P are effected on E adhoc basis since the Recruitment Rules are yet to be finalized.
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3. The applicant inns retained at ZUUWT Mumbai
Bench on.1nes adhoc promotion ans.Assistant Registrar. E
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IU: is stated tfiun: the ITAT fun; formulated. transfer
policy dated 29.04;2011 (Annexure A-3) in respect of
the officers and staff. It provides that an
officer/official shall not] be transferred from. one
station to other, either within same uzone or" to
another zone unless" he/she completed 5 years of
service an: the present stationd' The President, ITAT
is authorized to relax the said tenure of 5 years. It
alSC>:pIOVid€S "that eni employee 'transferred infirm one
~station ix) another vnjj. not have sun: claim txn come
back to his / her own station.before completion of 5
years cxf service em: the rmmr station. It. is also
provided that the person with longest stay at a
station. should. ordinarily? be transferred first. A
provision inn: giving choice cif mininmril3 station is
also made where he can be preferably posted when due for transfer. - i l
4. _ The applicant has completed 5 years of tenure as Assistant Registrar am: Mumbai Bench 1J1 September, 2016 and hence was due for transfer in _terms of transfer policy; Respondent No.2, therefore, issued 1- _ ' order dated 16.02.2017 (Annexure A~4)-transferring-the applicant from Mumbai to Rune Bench and since then he is working there. By the same order one Smt.P.J. Nair E A"/"E < - -- T <1 1 ><>xn 4 - OA..260/2017 was transferred .from Pune to Mumbai in the same capacity as Assistant Registrar.- The applicant joined at Pune Bench on 07.03.2017 vice Smt.P.J. Nair.
5. '_The applicant was posted at Pune Bench after considering his request and the fact that his wife who has 75% Rfljfixfll disability ii: employed iii Mahanagar Telephone Nigam Limited (MTNL), Mumbai.
6. lt. is stated idem: the" former President of I #-
TTAT, Justice (Retd.) Devdarshan Sud demitted his office on 17.02.2017 and Shri G}D. Agarwal, Vice President of Mumbai and Delhi Zone .was placed to officiate as incharge' President, ITAT till regular appointment is made to the said post. The applicant was shocked when he received the impugned order dated 31.03.2017 (Annexure Ae1)_ by which' the incharge President (Respondent No.2) has transferred him from Pune IBench tx>_Cuttack. Bench »n111 immediate effect, although lus was not (hue for transfer run: asked for 1 transfer._ -By the same .order one Smt.Leen-a Var was transferred imxmi Mumbai ix: Pane Bench'jJi place of applicant. - - l
7. The applicant submitted a representation dated 03.04.2017 (Annexure A--5) against the impugned transfer order._ Since nothing was heard on the representation, the applicant approached this Tribunal in' the" previous O;A.227/2017. i Vide order dated if 1 ' ?"*'***E?
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05.04.2017 (Annexure Z¥%fi the said CLZL."was disposed'
off.with a direction to the Respondent No.2 t o dispose of ifius pending I€pIBSBfit&tiOD.(IE the applicant after giving him personal hearing and"to pass a reasoned and speaking order thereon within two weeks.
Interim protection was also granted to the applicant till disposal of the said representation to the effect that the impugned order shall not be"given effect to till then. Thereafter, the' Respondent No.2 passed the ' + impugned order which is subject matter of the present O.A. I P
8. It is stated that there was no immediate need for transfer of the applicant to Cuttack Bench, since Assistant Registrar who was posted th ere in September, 2016 was continued. However, within four months therefrom Ins was "transferred. The "transfer cmf the applicant to Cuttack Bench has absolutely7 no connection with the litigation before the Hon'ble High Court <mf Oris sa filed by the Bar Association which mainly relates to appointment of Judicial Member there and_ construction of an independent building for Cuttack Bench. The impugned order dated 2i.0é.2017 rejecting applicant's representation is challenged on the following grounds as nentioned in Eera.E5 of the O.AJ The seems are reproduced here ;n1 verbatmn for ready reference:--
my aav -_3-.-.-.\~.--.1»--ii------""""-""' *~""' "< W" m'"' \31"*W\ --zig.-=>*$§§5$§§@'%' r I. y 6 7 0A..260/2017 "(a) The impugned transfer. order dated 31.03.2017 and 24.04.2017 are ex--facie illegal, arbitrary, passed in colourable exercise of ppwers and _deserves to be quashed and set aside.
(b) The impugned transfer order dated 31.03.2017 is in gross violation of the provisions of the transfer policy. The para 5.2 of the transfer policy prohibits transfer of the officials from one station to another before completion of E5 years.
The Applicant had completed about 24 days o.f service at Pune Benches when the impugned order dated 31.03.2017 came to be passed.
(c) On account of transfer and posting of the Applicant at Pune Bench by order dated 16.02.2017, a fresh tenure for inns Applicant came ix) be generated_ an: Pune Bench enui_ the Applicant became entitled.ix> function at Pune Bench for a period of 5 years in terms cu?-Para"5.2 cxf the transfer policy. Therefore the Applicant ought not- to Tunes been. transferred. out =of Pune Bench before completion of tenure of 55 years} .-
(d) The :manner' in which the transfer of the Applicant is effected within a short duration shows that power "U3 transfer ani officer ie; not being used by Respondents No.2 for the purpose 1km: which same 1i3 conferred and 'there is colorable exercise of poser. A conscious decision was taken on 16.02.2017 to transfer and post the Applicant _ at Pune Bench. _Such conscious decision cannot be rescinded, .modified or cancelled within ea period cxf 1 & A2 months Iby posting time Applicant *Ua s1 different place.
(e) No reasons arms cited ill the impugned order dated 31.03.2017 for transferring" the .Applicant from. Pune to Cuttack within a short duration of , 110 .5: . ¢~"' I E I I--
--..m--M~w".- mw:.~ 7 ' OA..260/2017' 24 days. i The reason cnf public
-interest is vaguely stated ignoring the fact that emmni the earlier order dated 16,02.2017 was issued in public intereste _ If" the reason of public interest is txn. be believed, the Respondents must demonstrate as to what public interest got created within ea period of' 3&4 days for abruptly transferring the Applicant from Pune im> Cuttack.- Tfius manner in which. the .Applicant is shunted from one place to another within short durations shows complete arbitrariness in which ' power to transfer the officers is exercised;
(f) It is run: that Pune Lhs home town cm? the Applicant rm: that ins had some vested. interest. to continue at Pune. The Applicant was recently transfer 'ix; Pune tn: order" dated 16.02.2017. Though time Applicant could run: canny his entire family at Pune, he had made private arrangements for 'his residence at Pune. ' The Applicant was - looking forward to complete his tenure at Enema In such circumstances the Respondents ought not ix; have- abrupt transfer 'the Applicant at far away places.
(g) The Applicant further submits that furs transfer anui posting ix; was ordered. specifically" taking" into* the fact that the Applicant's wife is employed at BHTHR It is as matter of-
knowledge to Respondent. Nos.2 and 3that the Applicantls wife is suffering fIOHL 'Retinitis Pigmentoso', on account of vdmrni her vision inns been severely impaired.- The- Applicantls wife is visually "impaired to the extent of almost 75% . A. copy* of Disability certificate in respect of the Applicant's wife is annexed hereto- and nerked an; Annexure Aw7. Looking into' this peculiar facts, the Applicant,' who was due for transfer was given nearest place of posting at Pune., In _these circumstances such , .......
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'conscious decision to post the Applicant at lhuua ought. not ix; have been -disturbed by Respondent No.2 without citing any reason.
(h) Transfer of posting of the Applicant at Cuttack Benches would cause severe prejudice to the Applicant" and his family; 'The Applicant has 2 children who are taking educationi On account of vision impairment to the extent of 75% for wife of the Applicant, she is not able to look after the daily needs of the family. The children of the Applicant require care and support in the crucial years rxf their education.
If the Applicant is carried as transfer to 'Cuttack, it would_ be virtually impossible for lmei to look after Ines family jll any'nenner. It takes more than 24 hours train journey to reach Cuttack. The Applicant would thus not" even meet his family for considerable period zxf time. Therefore :Ui case cMf_emergencies the Applicant will not be in a position to visit his family. .All these factors were taken into consideration while choosing Pune as place of transfer and posting of the Applicant. However within a period of 24 days of joining Pune iBench, Respondents No.2 has unfortunately taken as decision to transfer the Applicant. - , '
(i)- Though ixme Applicant irs not in any nenner concerned with the demitting the office by earlier President and taking over- charge of post by"txx2 Vice President, ixxa time of effectimg the transfer creates an impression that time same ndght-kxs-the reason for abrupt transfer of the Applicant. Tfius Applicant iii just an Assistant Registrar and has nothing to do with the changes happening at higher levels. All that the Applicant wants is turn: he should lxs ermitted P to work at Pune"in terms of the order dated 16.02.2017.
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' 9 OA..260/2017(j) The impugned transfer order dated 31.03.2017 would create several problems _for" Ixus Applicant. The earlier transfer order dated 16.02.2017 was issued taking into account the needs of the Applicant as well. as Smt.P.JL Nair. - Now "with .a view to fill up the vacancy likely to be created cni account cm? transfer of the Applicant to Cuttack, the Respondents was posted Smt.LeennVaz at Pune Benchi Smt. Leena lknz has been 'recently promoted to txxa post of Assistant Registrar and is yet to complete tenure of 5 years at Mumbaio Smt. Leena Vaz is .believed to be aggrieved by her transfer at Pune. Smt. Leena Vaz -was earlier granted promotion to the post of Assistant Registrar" out rxf Mumbai and sums was compelled ix; refuse ixxa promotion cni account rxf her domestic difficulties. Smt.Leena Thu: accepted promotion only when the same was offered at Mumbai. However" on "account of the impugned transfer order dated 31.03.2017 severe inconvenience would be caused to both Applicant as well as Smt.Leena Vaz.
' |- (l) The Applicant further submits
that though the post _of_ Assistant Registrar is a vacant at Cuttack, the Cuttack Bench Tuna not kxa functioning for quite sometime on account of only an Accountant Member being posted there. While the Applicant cannot comment nwuxe about time functional requirements at Cuttack, the Applicant submits that having taken conscious decision to post the Applicant at Pune, the same cannot be revoked or modified to" the detriment of the Applicant within extremely short span.
(m) The impugned order dated 24.04.2017 rejecting the representation of the Applicant is also illegal and void. I ' I'
(n) While rejecting - the : 1 K x 'Ti'; """"""'~"='~'€*F/Ei$FE?$§3=?§a.=@:.*~:~s:§"§s:eneerem;§.xna:s=e»x§§'i5§'§'§-§?§_5-7"W" I"? l *~ - --- - Ev? ---' 1 ' 10 0A..260/2017 representation -of 'the 'Applicant by impugned cnxkn: datedi 24.04.2017, the Respondent No.2 has not considered'the representation ans well as ixxs points urged during the course of hearing objectively enxi has rejected. the representation of the Applicant by citing* only"22 reasons "viz. (ij long tenure of Applicant at_Mumbai and (ii) orders passed kn; the Hon'ble Orissa High Court regarding building and functioning of ITAT Cuttack. The peculiar" situation. prevailing 1J1 the case of the Applicant 75%.blindness of his wife, though noted ill the order, has run; been taken IJHID consideration run: any finding recorded cni the said aspect by Respondent No.2. Respondent No_.2 has not given any reason as to why ixxs Applicant rmnm; carry"<mn: the transfer" at .Cuttack even though his wife has 75% blindness. '
(o) One of txma reasons cited kn? Respondent No.2 in Para 3 of the order dated 24.04.2017 is that the Applicant mostly remained posted at ITAT Mumbai Benches during his merely 34 years of service. While recording the said finding, Respondent No.2 has however completely ignored the :&nn: that the Applicant is .no longer working at Mumbai and has been transfer and posted an: Pune. ' Therefore the Applicant's tenure at Mumbai cannot be a relevant factor 111 determining whether"the Applicant could have been transferred cnn: of Pune cm: not. 'The only- relevant factor could be the tenure spent by the Applicant at Pune. The Respondent No.2 is conscious about the fact the Applicant came to be transferred and posted at Pune by- order dated 16.02.2017 .and has thus completed. merely 12 rpnths tenure em:
Pune. _Therefore after' completing substantial period ' of service at Mumbai, the Applicant has already been transferred out ' of Mumbai and therefore ixus tenure snxnn:-by lrun at Mumbai now becomes completely
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(P) The Respondent No.2 has cited the reason of order dated 12.07.2016 passed by the Hon'ble Orissa High Court in- Writ Petition NO.1l067 of 2016 for justifying the transfer of the Applicant. However Respondent No.2 has not recorded any reason as to "how there can be a cbnnection between the order passed in; the Hon'ble High Court in July 2016 and transfer of the Applicant ' effected on 31.03.2017. Furthermore, Respondent No.2 has conveniently ignored the fact that one Mr.Madhuraj Narwaria was' transferred from Agra Bench to Cuttack Bench in September 2016. However within 4 months cm? his posting am: Cuttack, he was_ transferred out to Cuttack and posted back at Agra; If there was any need of posting of Assistant Registrar towards compliance vnifii the order passed by the Hon'ble Orissa High Court on ,l2.07.2016, Respondent No.2 would not have transferred said MrQMadhuraj Narwaria out of Cuttack in January 2017. This shows that transfer of Assistant Registrar -at Cuttack Emma absolutely in) connection with the order dated 12.07.2016 passed by the Hon'ble Orissa High Court.
(q) _ Even otherwise the order dated 12.07.2016 passed by the Hon'ble Orissa High Court does not mandate that -a Assistant Registrar must be posted an: Cuttack Bench. 2% copy of' order dated l2.07.2016i in Writ Petition_ (C) No. 11067 of 2016 is annexed hereto and marked as Annexure A~8. In para 2 of the said order the Hon'ble High Court merely recorded assurances ix; the "Registrar cm? ITAT that Members of the Tribunal were taking utmost steps for permanent appointment of Members at ITAT Cuttack Benchd The other aspects were regarding allotment of land and 5 5 ;.;:_:;-1~T:< "
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Subsequently by order dated 02.08.2016 the Registrar was directed to file an affidavit regarding the developments about relocation of land. .A copy of the said order dated '02.0B.2016 is annexed hereto and marked as Annexure A-9. Till 17.04.2017 such affidavit was not filed by the Registrar. Be that as if nnqn- The order passed by the Hon'ble Orissa High Court records assurances of the Registrar in respect of 2 areas (i) appointment of Members and '(ii) allotment of land and construction (Hf building. 5&3 far as appointment of Members at Cmttack Bench is concerned, the assurances given. to time Hon'ble Efirni Court ihas been violated with impunity. Shri Barth Sarathi Choudhari, Judicial Member was posted at Cuttack since 05.10.2015 and lma was transferred at Cuttack :&xnn Mumbai "as inn: his request. Thereafter Dr.Meetha Lal Meena, Accountant Member was posted at TTAT ' Cuttack by_ order dated 12.07.2016. However Dr.Meetha Lal Meena came to be" transferred out of Cuttack Bench and posted at ITAT Agra on. 23.09.2016. Thereafter" Mr.Partha Sarathi Choudhary was transferred from ITAT Cuttack to ITAT Jodhpur vide order dated 27.09.2016. Despite Mr.Partha Sarathi Choudhary requesting for _his transfer back at Cuttack Bench, he was not transferred.back at Cuttack: Bench. Thereafter" Mr.Sanjay Garg, Judicial Member was sought to be transferred at Cuttack Bench by order dated 26.10.2016. This Hon'ble :
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Tribunal was pleased to stay his E transfer_iJ1 his Original. Application No.739- of 2016 filed by -Mr.Sanjay Garg. The transfer of Mr.Sanjay Garg was sought to "be defended by the Respondents 'under the pretext of compliance of the order passed_by the Hon'ble Orissa High Court. However after rejection <nf- Misc. Petition filed by the Respondents for vacation of interim. "order in Original 5 ..-é ~------- 4______h .___,..,. H H '_::1:::¥_ .._,_._.J_.;:,,.._...... --.--- _ ___, fix.-__-I-:.,:_,:\-\_.:._._. xi-»;;_-=;;-_- - ~ - - , . . . >\ z § ~'*<\>- --1 .... '''" ------\-- ,--;;-- \ 1------ """"'rs"'inns:4rsweswaiasvesraessianai4irissif%i%sa><*>\\< : .. :- :r'.-_ :'- -;'- . . - \ K' ~ y 1,33 3 0.4.260/20147 I Application of Mr.Sanjay Garg, Respondent-No;2 npdified tees transfer order tn; transferring* Mr.Sanjay" Garg to ITAT, Chandigarh by order dated E E 08.03.2017. Thus after recording of assurance by the Hon'ble Orissa High Court on. 12.07.2016 transfers of 3 :
members have been modified from i :
E Cuttack Bench by Respondent No.2. Though the Applicant has absolutely .nothing' to (R3 with the 'transfer" and posting zmf Members. <mf ITAT, the Applicant wishes to submit that the order passed by the Hon'ble High Court cannot be cited as " pretext for justifying his transfer at Cuttack E E Bench. Copy cmf interim runner dated 28.10.2016 as well as order dated 07.03.2017 passed in inns case of Mr.Sanjay Garg sums annexed hereto enmi marked as Annexure A--l0.
(r) "- The Applicant further submits that En: far" as time second. assurance about -allotment of _ land and construction <Mf building ies recorded by inns Hon'ble <0rissa ifirfli Court is concerned, 'the same has absolutely nothing to do with the posting of Applicant am: Cuttack;.Bench. Tn; the year 2015 the State Government has allotted land for construction of building of ITAT at Cuttack. However, since 2015 till today no building has been censtructed kn; the CPWD _on account of 'non+grant of concurrence and non--allotment of funds by the Central Government. Construction. of building would be cerried.cnn: by CPWD and ITAT would not be involved in-the matter of construction of building. So far .as innwhang is concerned, the dame has again jll the realm- of Respondent Nos.2 enui 3 onui they have been - pursuing the matter with Respondent. No.1 for_ allotment of funds. Till rnnv funds lemma not been allotted. As a matter fact the Ministry' has not' even issued concurrence for construction of a building. The question. of sanction 1 ,2........................................ -. ------ ~~-- """RT"'"Tn-€@n§iissiissiitefiieiiiniieiifiiisiifiR%$F?§'5"*'<>Y%?'T>*>'?*'?*'f>?'$*§iii E 1. .3 14 V i 014.260/2017.
and release <n5 funds would.<nnma much later. Assistant Registrar. has
-absolutely run connection vmifii the proposed construction <n§ the building as time matter cnf seeking" concurrence and sanctioned. cxf funds' :ma being looked after by the Principal Bench at Mumbai. Therefore ' Applicant's transfer cannot be connected with the order passed by the Hon'ble Orissa High Court.
(s) Even otherwise Cuttack Bench has 'not been functioning" for _ a substantial period of tine rni account of frequent transfer"<mf members. As of now there is only an Accountant Member" functioning an: CUtt&Ckl Bench. Except inns period of éi months during September 2016 to January 2017, no Assistant Registrar has been posted at Cuttack Bench since the year 2015,
(t) The transfer of the Applicant from. Mumbai Bench to Pune Bench is also issued by Respondent No.2, though by predecessor of- the current President of ITAT. _ Current . of President of_ ITAT must honour the decision taken by his predecessor. The current President is merely officiating cni the pest cxf President after retirement of the regular President 1J1 February 2017. In such circumstances the current President ought run: to change time postings decided by the regular President.
(u) In para- 5 of the impugned transfer, 'Respondent No.2 has given details about sanctioned posts of Assistant Registrar which has absolutely nothing to do with~ the Applicant's transfer. "While referring to the transfer policy Respondent No.3 has not given any reason as to why he was .deviating from para 5 of the transfer policy. The impugned order thus suffers from complete non-
application of mind. .
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(v) Respondent No.2 has not at
all considered specific reason of disability of Applicant's wife stated in the representation as well urged during the course of personal hearing. Respondent Pkrii has rmn: recorded any findings that despite peculiar difficulties faced tn: the .Applicant, administrative exigencies are-<xf such a negnitude iflmm: Applicant's transfer at Cuttack is inevitable. Respondent No.2 has merely recorded ground of Applicant's disability in para 1 and 2 of the order but has failed to record his own finding on the same.
< (w) The DoPT has issued OM dated 06.06.2014 granting special protection to government employees -who 'have differently abled defendants. The said (E4 direct that ea government servant who is giving care to disabled child may be exempted from routine transfer/rotational transfer; ~ The word disabled includes blindness or low vision.' Though the word child has been "used ill Para l3 of5 the CBL the subject of the said OM reads 'posting of" government employees who have differently abled dependants~reg.' Thus- the spirit jbehind "the (N4.dated 06.06.2014 would. be fully applicable in the case of Applicant whose wife is suffering from 75% tdind. ,A copy of the said CB4 dated. 06.06.2014" is annexed hereto and marked as Amnexure A--11. " '
(x) It appears that_ the current President ITAT had made it a policy to cancel / revoke every possible decision cm? the previous regular President. Tn addition 11> modifying inns-Applicant's transfer, time present President has inodified the transfers- of 2? Assistant Registrars. The then President. TTAT had transferred Shri Vikrani But, .Assistant Registrar TTAT Delhi and Shri Manoj Kashyap Assistant- Registrar ITAT Jaipur to ITAT chooooi and Lucknow respectively. However §€x i? %fie@??
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E E immediately after taking-charge of the ITAT' on officiating -basis," the current President cancelled. the said transfer order of Shri Vikram Dut and Shri Manoj Kashyap and reinstated them at their original- posts at Delhi & Jaipur respectively. Shri M.P. i E Narayanan, who was_ appointed as Assistant Registrar en: Vishakapatanam in January 2016 by the then President was transferred by .the current President to ITAT Chennai-after taking over" officiating" charge. Sindlarly, Shri JLK. lxnnme was transferred from Ahmedabad to Kolkatta in January 2017. E E After representation tn: Shri J.K. Lodha,.the then President changed his posting to Rajkot. However immediately after taking the charge of the post, the current President transferred Shri J.K§ Lodha and posted him en: TTAT Mumbai Eng posting tune as Assistant Registrar against the post of Deputy Registrar. Smt.L.A. Var, Head Clerk was promoted on adéhoc basis by then President and posted in January 2017. On' earlier occasion, promotion.enne granted ix: Smt.L.A. Var outside Mumbai _was refused by. her. She accepted the promotion to the post of Assistant__Registrar only -because sane "was ill Mumbai. However, after taking over the _charge, the current President transferred EmnmlnZL"Vaz to Pune Bench inn: the purpose ref moving the Applicant to Cuttack Bench. This shows that the 'current President is not only "rescinding time decisions taken by the earlier regular President in a wholesale manner but is effecting transfers as per his whims and caprices.and in an arbitrary manner. -
(y) It appears that Smt.L.A. Vaz, who'ije transferred an: Pune iflmme the Applicant is also not-willing to join at Pune and - has submitted representation. against. here transfer.
Smt. Var was not willing to accept promotion as Assistant Registrar if given. out cm? Mumbai. and. had. refused_ W _______ i E .....l..__.__ ~.,as; ez "*"-- --"-"*"'
->_.*§?-E-'-fsi.ee¥?>{e§s?r-i-?§i?s?§"=.="-?-s.=?-?-"?§§¥3<??*?_..5:5%, *€e'
-- -
i 17 _ OA..260/2017 such promotion on the earlier occasion. She accepted time promotion only becauee the same emme offered at Mumbai. Smt.Vaz has therefore gone on :
leave from the date of passing of E transfer order and.:Me making efforts for cancellation of the same."
In the O.A. the applicant has sought the following interim relief:-- l Ta) Pending the hearing and final disposal of"this.Original Application, operation, implementation and effect of the transfer order dated 31.03.2017 qua time Applicant lma stayed emni the Applicant be permitted to work as Assistant. Registrar em: Pune- Bench <of ITAT. i
b) Adminterim orders in terms of prayer clause (a) above may be granted." ' d - -
This Tribunal- while issuing notice tin the respondents vide order dated 02.05.2017 passed. the following adointerim order:--
1.1 "5. After hearing learned Advocate _for the applicant and considering the material on record, we are of the considered view that a prima facie case is made out for grant of ad--interim relief to stay the impugned order. In view (Hf this the effect, operation and implementation of the impugned order dated 31.03.2017 '(Annexure A-1) e passed. by the respondent No.2 by which the applicant :
E is transferred from Pune to Cuttack is hereby stayed, till the next date of hearing. _
6. Notice to .be issued. to the respondent- Nos.1 to I3 for filing reply.$1\ 5
E ______________________.__.____,_,_,, yW s \ 2"""'"'MT3""'"*"'5-5-E"?5????'f?-.e?3"3§5o-,e_.,_-\.-W.;.. .":"»~'<~>"**""'"'=It'=e--iti?-'=~.-it-:-"-:-fr-zsee..>.*-:>.-.'-:-"-.e=..~?.-e";eee'="?-.F-es.-ee-.-t>=.=-"-.=.-.-:n . .. .. : ,.. __, _ . _ _ _ _ _ _ .
1--.Imnlvuw nvulfir vlwmnu 18 ' .OA..260/2017
7. List the matter before Hon'ble Vacation Judge on 15.05.2017.
Dasti . " '
ll. The respondents 'appeared and .by a common
reply dated 12.05.2017 resisted the (met Iby denying
all _the adverse averments, 'contentions and grounds
raised therein. It is stated that the impugned order
dated 24.04.2017 is strictly in compliance of the
. directions issued by the Tribunal in the previous O.A.
-anui"while effecting applicant's transfer there is rm> violation of provisions of transfer policy or service 1' rules governing time service conditions <xf the II | a I applicant. Hence the O.A. is liable to be dismissed.
12. The following decisions rendered by Hon'ble Supreme Court on the law relating to transfer' of Government employee are referred viz.:--
(i) State Bank of India Vs. Anjan Sanyal & Orst, 2001(3) SCC .436 in_ which it has been held that transfer _of one employee ime a part <nf the service condition enmi such order cuf"transfer ime not required"
'H ti: be interfered with lightly by ae Court of law ire exercise of its discretionary jurisdiction, unless it is found -that the order "is malafide' or that the service rules prohibit such transfer or that the authorities, who issued the order,' had not. the "
't e:--2 ________ _ 3 _, yE 1. .r-
I. 19 OA..260/2017 competence to pass the order.
(ii) _ State of Madhya Pradesh and others Vs. S.S. I Kourav & others, JT 1995(2)" SC 498, in which it has been held that the Courts. or' Tribunals are not appellate forums to decide on transfers of o fficers on administrative grounds. The wheels of administration .should ime allowed to inui smoothly enmi the Court or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. 5 l I' .
E
(iii) N.K. Singh Vs. Union of India, (i994) 28 ATC Z
-I 246, in which it has been held that power of judicial review in the matter of transfer can be exercised only in cases cxf malafide tn: infraction tn? any professed norm or principle. ' u '
(iv) S.C.' Saxena. Vs. "Union of India. & Others, (2006) 9 SCC_ 583 in which it has been held that the Government servant cannot disobey the transfer by not reporting am: the place cm? posting enmi then"tn> to a Court to ventilate his grievances." It is his duty to |-
first report for work where he is transferred and make a representation as to what may be his personal problems. Such.tendency of not reporting at the place cm? posting anmi indulging ill litigatitmi needs tin be ' In curbed.
(v) Rajendra Singh Vs. State of Uttar Pradesh,
+ ' |
igtfg
'V I
y 1
r
- 20 OAI-'I260f2017
2010 (1) SLR.(SC) 633, in which it has been.held that
the Government servant has no vested right to remain
posted at a place of his choice nor.can be insist that he must be posted at one place of the other. He is liable tie be transferred iii the administrativ E2 exigencies- from time place tmn other. 'Transfer cm? an employee is not only an incident inherent in the terms _of appointment but also implicit as an essential
-0 condition (If service iii the absence tn? any specific indication to the contrary. .
13. Cne merit, iirw is stated. that iii the applicant's representation dated 03.04.2017 for cancellation tmf transfer order,"1ue deliberately and with ulterior motive did not disclose that his wife is working ems permanent employee iii MTNL amui attending the office regularly. Raising a ground of her illness is, therefore, rmn: justified tin: cancellation.<xf the order, there being suppression of neterial fact. Tn this respect reliance was placed on the decision rendered kn? Hon'ble Efinnmmme Court 1J1 case cm? S,P. Chingalvaraya Vs. Jagannath, AIR 1994 SC 853, in which it has been held that the Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. Thus, the person whose case is based on falsehood has no right' to approach the Court. In this respect reliance was r \ Be} kl.at ................................. >: < \ 17 21 OAH260/2017.
als to placed cni another decision rendered kn; Hon'ble
Supreme Court in Vijay Syal Vs. State of Punjab,
(2003) 9 SCC- 401, in which it has been held that
concealment of material fact from the _Co
urt or
indulged iii misrepresentation emist tme ready tme face
consequences that emij. follow cue account tn? his own
making. in
14. It-Jme stated that ans per time provisions of
Section 5(6) of the Administrative Tribunals Act, 1985
and notification framed "thereunder, the transfer
matters are to be dealt by a Division Bench. However
I
Single Bench has passed ad--interim order granting stay to the impugned transfer order, which is illegal and hence the said_order is liable to be set aside. _
15. It is stated that -the applicant made allegations regarding favouratism against Smt.Leena Vaz. However, she "was not impleaded as party respondent in the O.A. and for this reason the O.A; is liable to be dismissed. l
16. It is stated that the applicant is not justified iii heavily relying tmmii the cese cmf Shri Sanjay. Garg" in O.A.739/2016 and comparing the applicant s case with him, who happened to be Judicial Member and was initially transferred to Cuttack Bench.
The applicantis case is totally distinct since he is working as Assistant Registrar and to run the office 1 .
1_ ____ .. .,___,. .,_:_._._: . . . . . . . . . . v _ \ X' _ _ . , _ _ __ . ii?-EFa;:::_j:,5EE5:..fi_;._:t,_>:E.:_,::._i::_=:.--.... __ 4 *' 9" \' _.._=:__/._\:.: _ : .. __ _ .- -- _ ._ _ .1-=7.-.=~=.=--..¢r:.
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. ' -. eaeeeeseeeee:
L""""7';'='=-"Ts: ='_';__"-'T1 Q? -J:-_-5 - ' I' I. |.
_ 22 0A..2o0/201? at Cuttack Bench,_ he was transferred there on administrative: ground snnnme was found rmmm: suitable person. Hence it chri not netter tmnie although the applicant has not cempleted the nunimum tenure of 5" years an: Pune. Since iime-applicant's "transfer tes been cnnme strictly iii compliance vmiii the provisions of transfer policy, there is no scope for interference with the impugned transfer order" in any manner whatsoever. No malafides or incompetencyl of the
respondent No.2 to issue transfer order are proved.
17. It is stated that reliance .placed. by the applicant cue the_ DoP&T (B4 dated 06.06.2014 is misplaced, which" clearly" deals with. the jposting" of Governnmin; employees tmnmimg disatflee dependents. The applicant is not covered by the said OM since his wife is earning member of the family working with M.T.N.L. and attending tmn: duties regularly. As snmii she is not dependent on the applicant. I The .O.A. is, therefore, liable to be dismissed.
18. It is stated that the impugned transfer order specifically states.that definitely his request will _ -I be kept in mind as and when occasion arises in future.
Hence it was obligatory for the applicant to join at
new destination and his request for transfer back to
I' .
Pune or Mumbai will be considered at appropriate time.
Hence there is no substance in the present O.A. "
it :
E
:
i
i
:
2
E
_____ __ 1 e '9'"
3 \ I *4
I252 55 5 1
I'1
T 23 OA..260/2017
19. It is stated that the applicant's transfer to Cuttack jBench lmne been. effected iii public interest since Hon'ble High Court of Orissa in Writ Petition, in which the Registrar ITAT submitted an undertaking that necessary steps will be taken for smooth running of ITAT, Cuttack Bench._ It 'is stated that the applicant has served 34 years at Mumbai before he was transferred to Pune and hence he was again shifted on administrative grounds eme"well as iii public interest
-to Cuttack although he has not completed his minimum tenure of 5 years at Pune. _lt is his contention that all promotions to the post of Assistant Registrar in TTAT are effected on adhoc basis for non--finalization "of Recruitment Rules. As a matter of fact the existing Recruitment Rules inn: 1975 are iii force on the basis of' which time promotions to time post of.
Assistant Registrars are made. The last promotion on regular basis to the post of Assistant Registrar was 1' effected in the year 2007 through DPC from the feeder E cadre. The applicant is, therefore, misleading this Tribunal by saying that all promotions to the post of Assistant Registrar in ITAT are effected on adhoc basis for_non--finalization of Recruitment Rules. _
20. It is stated that the appiioaht joihoo ITAT as LDC. He was promoted as UDC and served in the said :
:
E capacity in the ITAT, Indore Bench in the year 1993~94 :
:
:
:
i E :
E :
E
....... _ __ _ -- _
............................................................................................ < ten s
.. _. .
y y 24 OA..260/2017
only for_six months. Thereafter from 1994 onwards he
I
got _ 3 promotions u to _the post of "Assistant
I
Superintendent-and Assistant Registrar on adhoc basis and since last 22--23 years the applicant was never transferred cnn: cu? Mumbai. It. is. stated that In;
transfer policy can override the Government of India's 'instructions regarding transfer on public interest and administrative exigency. Hence it is not open for the applicant ix: say" that ins was illegally" transferred within-six months frsm Pune to Cuttack.
21. It is stated that the former President,-ITAT has issued the applicantts impugned. transfer order from Mumbai to Pune on 16.02.2017 i.e. on the previous date of his retirement and.hence issuance of any such order of -transfer by outgoing -President was an exercise for accommodative transfer with Vsense of favour. However, time in--charge IPresident fill public interest anmi considering inns administrative exigency was again required to transfer the applicant from Pune tx>.Cuttack. Hence inns contention.<sf time applicant 'F .
that impugned transfer order. should not have. been issuedi within. a rmnnfii is incorrect, since the in-
charge President has the same power of regular w President to 'effect transfer -of_ employees working 1 - '3:
under him. s
22. it-is stated that respondent No.2 has passed ******* 3' ~f i 2, > . Q W J X ..
\< _ ._ .
I:
!.
4-1
25 OA..260/2017
reasoned and speaking order rejecting the applicant's representation and justifying his transfer from Pune I I to_ Cuttack inmrfli calls for run interference ll} the I I I I i I i limited jurisdiction vested in this Tribunal. The 1 personal problems _of the applicant cannot be considered for cancellatrmi of his transfer or established inwni it inns effected ill public interest and under office 'exigency. None of the grounds \-
"raised tqi"Uma applicant in the CLZt..are made out for cancellation of the impugned transfer order, since post of Assistant .Registrar at Cuttack "Bench is vacant, the applicant has been rightly transferred there to run the office smoothly. ' 1
23. . It is stated that the personal _problems raised Iby- time applicant _cannot i overshadow" "the.
administrative exigency and in case _of conflict between. personal. problems"imUfi1 public: interests _the latter will' always prevail. The applicant has unnecessarily raised the allegations against Shri Lodha, inns Assistant Registrar working"eM: Mumbai who has no role to play in effecting the transfer order.
The fact of 75% blindness of the applicant's wife was considered while rejecting the representation.
However, the applicant is using his wife's blindness as a shield and to"protect him from transfer.
24." It is further stated that relying on the |' .
i E ...................................................................... ..
4 - >'*"*{" 1 } E
F
<»- '-#1''
y t 26 s s 0s..260/2017 s
decision rendered. by the Hon'ble Supreme Court in
State of U.P. Vs. Gobardhan Lal, 2004(2) SCSLJ 42, it
has been held. that" the Courts or Tribunals "cannot
substitute their own decisions in the matter of
i
:
EE
transfer or that of competent authority. In the l E
:
:
present case, Respondent. No.2 stmmmwg the Competent
Authority tum; "passed ifims impugned; ~order after I
I
I
i
considering all the relevant _factors and
administrative exigency snmi public interest. Hence
the same is not liable to be set aside. The O.A. is,
therefore, liable to be dismissed. _
25. The applicant then filed rejoinder on
06.06;20l7 amni denied"all inns adverse averments and
contentions made in_the replyu The grounds raised in
the (REL for challenging tins impugned transfer order
are reiterated.
26. On 21.06.2017 when ifimsimatter was taken up
for final hearing; we have heard. Shri S.V} Marne,
learned' Advocate for "the applicant and the 'reply" §
§
:
E
i
arguments of Shri V.S. Masurkar, learned Advocate for
the respondents. --
27. We ehave carefully gone through the entire
°_ _
case record. including time pleadings (ME parties and
documents produced (n1 record tn; them. '%Ms have also
given thoughtful consideration" to the submissions
E
advanced before us. l l
i --»~ ~> "'' 1 " F'
r-
|
|
27 OA..260/2017
FINDINGS
E
28. The only controversy involved for resolution :
{IE this Tribunal iii the present (Lit is whether the
4. |
impugned order of transfer dated 31.03.2017 and the
order dated 24.04.20l7 pasami by Respondent No.2 on
applicant's representation for cancellation of his
transfer" are arbitrary, illegal Qor "improper cni the i
i
i
i
E
grounds raised by the applicant and hence are liable E
to be set aside. -
29. Before proceeding to consider -the rival
2
2
contentions tn? the parties it rmmy be nentioned here
E
s
that. law laid down' by the Hon'ble Supreme Court i
:
:
E
:
:
:
i
:
i
i
through. catena cxf judicial pronouncements regarding :
E
. :-
transfer of the Government employees is well settled.
-G ' ' In fact number of such decisions_are referred by the I respondents- in their reply titself which are also i considered and stated in this order.
30. It its needless ix: say tmuus transfer :ms an E inherent incident tn? service especially when ans per E I :
:
:
E :
service conditions of the-employee, he/she is liable :
E "Us be transferred anywhere in Indian However, scope for interference by the Courts or Tribunals with the i E :
:
:
i i :
i E transfer order issued kn; the Competent Authority is limited, inasmuch as the same cannot be quashed unless it is established that the transfer was effected by an :-
incompetent authority or that it is against any I i I I I I I I Qs. :
i i
----------------------------"--'.:1:.'.1r.T."'1:_ _ _ _ , s .. . _ ,--- , , K - - » - - -- Q é s t , < ~.-------~e-ei--~ie"ise."i-iri-. -. -- -- -- - -
.~ . -W.
y 23 |-
l;- 0A..260/2017 7
express provision of the. Transfer
Policy/Guidelines/Rules or that it suffers from malice or bias. On all other aspects, normally the transfer order" cannot ins lightly' interfered insless inns above | + grounds"are established.
E 31; Keeping jll mind inns above referred settled E legal position, we shall now turn to _consider the rival contentions of the parties. ' E
32. It is inn; disputed. that inns applicant "was recently transferred from ITAT Mumbai Bench to Pune Bench vide order dated 16.02.2017 issued by the.former President IUUHT (predecessor cnf Respondent No.2), on E :
previous day of his retirement on superannuation. The E E |.
present Respondent No.2 is not regular President but is working as Vice President and officiating as President by holding charge of inns sand post of the President, ITAT inns. the said rnnn: is filled ins on regular basis by the Government. It is also obvious "Umit prior ini 16.02.2017 inns applicant rendered tms services an: Mumbai Bench ill different capacities and out of 34 years of his total service, he was posted at E Mumbai for about 30 years. As such as per the provisions of the Transfer Policy he was overdue for transfer at the time when the previous order was r issued transferring him from. Mumbai to Pune. It :
§ :
:
E appears that the applicant has specifically asked for E § § :
E § i i i W E2 i r .\ s ' FI.
I. WE'-. _ 29 . OA..260/2017
his transfer to Pune which is near to Mumbai, mainly |-
on the ground that his wife who is also MTNL employee is suffering innnn visual impairment ins the extent tn?
uv- ' I
75%. As such the applicant's spouse although is
earning" member" of the family, she needs some help
while :moving" out <nf house. (N1 this ground ii; is
obvious that inns applicant inns sought transfer from
Mumbai to Pune, which request was favourably
considered by the former President, ITAT and
accordingly ins joined an: Pune ins his- transfer :fimnn
'|' 4
Mumbai on 7" March, 2017. However, before completion
of one rmnnni of service there inns impugned transfer 5
i
5
order dated 31.03.2017 was issued' by the present E
E
E
officiating President alleging public interest and E
EE
E
EE
'| . L
1
office exigencies.
I .-
33. It is thus obvious that" within extremely
short. span, inns applicant inns shifted :imnn Pune inn
E
Cuttack under the pretext of public interest by the i
E
in--charge President. It is needless to say that since :
:
i
E
:
the applicant was transferred from Mumbai to Pune vide order dated 16.02.2017 and he_ joined there in E i pursuance thereof, ins was not chns for transfer from Pune, since obviously had not completed normal tenure § i § :
:
E E of E5 years there, ans required inf the pmovisions of E E Para 5.2 cxf the 'Transfer Policy. However, kn; the :
E E subsequent impugned order, applicant's representation
-- ---.; .:.-.-.;.-.-.-.-.::::::.-.-.-.-;-_-_5:.5.:.:.;.:_.-_-;-_-;-;-_-:g_._. _.-_;:._.:._.::._._;_-t ,-_;; - \ _ _ , , ..
y §\ ' " 1 X
-N.
30 _ OA..260/2017
was rejected neinly"<n1 the ground that ins served at
E
Mumbai for more than 29 years, overlooking the fact i
that tns"was transferred ins Pune ;&mnn'Mumbai rung; on E
:
E
16.02.2017 by the previous order. It is stated that
2
2
E
the jprevious order inns also jpassed. considering" the
public .interest. 'As such inn>_transfer' orders- have
been. issued. one tn; the outgoing" President inni the
z
other by the incoming officiating President in quick
:
E
succession alleging the same ground. E
:
34. It is true" that during the course of
arguments the learned Advocate for the respondents has rightly pointed out that although minimum tenure of 5 years is prescribed under Transfer Policy before shifting ans employee from cnns station ix: the other, E :
still the employer reserves right to transfer any employee an: any time 111 acute office exigency or"id1 E E public interest, even before completion of the minimum E prescribed tenure. The same has been done so far as the applicant ill the present case ins concerned. Ae such inns burden. lies ans the respondents ins justify E their action of transferring the applicant from Pune E E to Cuttack within a month or so, although specific reasons constituting public interest are not mentioned 1- :
E 1J1 the impugned. transfer' order dated 31.03.2017 by E which applicant is transferred to Cuttack. The same are, however, incorporated in the subsequent impugned :
E W E § __ N __ _ ....................._ , , ,...... »- ---- -- . " ' .. ._ . _ . . __ . _ .. . .
F. E E :31 1 ~OA..260/2017
:
E E order dated 24.04J2017, by which the applicant's E representation-inns rejected, in: justify inns impugned order. effected 1M1 publie interest. The following reasons are quoted by the Respondent No.2 in the E E impugned order:--
"4. Ens a netter cnf"record, Hon'ble Orissa High Court .at Cuttack vide its :
E E :
E E _ order dated 12.07.2016 and subsequent orders -in WPC No.11067 of 2016, has issued following directions to the Income Tax Appellate Tribunal and Ministry of E Law &_ Justice, resultantly, Shri V.N. E Warang has been transferred to ITAT E Cuttack Bench, Cuttack:-- ' E E
(i) To finalize the pending proposals ans that inns building cxf ITAT, Cuttack Bench cnni.be constructed en: the land. allotted 'kni the Government of Orissa, at the earliest.possible.
E
(ii). Registrar on behalf of ITAT has . given inns undertaking ans 129* July, 2016 E E before Hon'ble Orissa High Court at Cuttack that permanent appointment of the Members. at ITAT ifiuttack. Bench shall be done shortly. _ -
(iii) .Registrar; ITAT .is ins file an affidavit of all such developments, as directed by Hon'ble Orissa High Court at Cuttack.
(iv) The Secretary, Department of E Law & Justice, Government of India has E E since been directed to file . an E E affidavit on or before 17" April, 2017, indicating as to whether necessary funds have been allocated E for the purpose of-settimg up of the i permanent bench of the Income Tax Appellate Tribunal, an: Cuttack lll the State of Odisha.
5... ~ ' .
6. Shri Kilt Narang inns joined the ITAT as a Lower Division Clerk - (rnc) on 17.07.1982 at Mumbai.' Since, E i E ....... .. E" ............................-._ "~*~>"" " " > § ' *e,.,~E~>.»; <'<§<';==$ ~E __ " " "' ' ' 1 M I \ \\ E §
- 32 OA-01260/201? \ the date of his initial appointment in 1' the year 1982, till his next promotion \\ as REX} he remained posted.em: Mumbai only, barring a short spell of 7~8 Z'I'H.l7;7 months when he was promoted as UDC and posted at ITAT Indore Bench during the E period.:fiown 02.07.1993 ix) 28.02.1994.
i Since "March, 1994, he continuously remained posted at ITAT Mumbai till 6" ~ E1 !\:| iii March, 20l7.- ' EL;
ii ii ii iii il ! I11! ii
7. Shri V.N. Warang has 'been 51 5 !\;| i transferred to ITAT Cuttack due to administration exigency in.iMrnv of on going . proceedings and directions passed by the Hon'ble Odisa High Court T at Cuttack.- The Tribunal "is in' process to get constructed its own building through CPWD, Cuttack."
\ T \
35. In this respect, it has been rightly pointed out by learned Advocate for the applicant that ITAT i Cuttack Bar Association has approached. the Hon'ble ii High' Court of Orissa at Cuttack in Writ Petition No.ll067/2016 :making" grievance regarding "vacancy in the post of Judicial Member there and lack of its own "E \ infrastructure for snmxnfli administration <xf Cuttack Bench. This was favourably considered by the Hon'ble i ii 5;!:,| High Court on the undertaking given by the Registrar, H! HI:
iii;
ii! E1 ! FF ii!I'l ITAT that adequate steps will be taken by the office Hll \ \ ¥ of Respondent Nb.2 ins fill Lu: the pbst'cMf Judicial \ \ \ Member_and to move the State Government for allotment 1 of land to build for raising a structure thereon for
-*5 :11 Cuttack Bench. Further Office Order was issued regarding transfer of one Shri Sanjay Garg, Judicial 'I i
-H' |1;| '11?
ii ill iii :i1n| .... ---------------------------------------------------- """§*<'--<Y¥IYI'i" ;-'$5.?-.-<,. .-.-.; -_-_-; f --,=---------x i H y I 33 I .OA1.260/2017 Member Mumbai to Cuttack. There is nothing on record I to show that the issue regarding transfer and posting of the Assistant Registrar who is of the lowest rank I 1 ill the hierarchy cu? officer" grade was involved. or 1 1 agitated.before Tina Hon'b1e Efirni Court. Inspite of I I 5 this fact it is for the President, ITAT to take appropriate steps to ensure that atleast one Assistant Registrar is posted at every Bench of ITAT throughout the country where such Benches are established. "It is E stated that :flnv days pmior ix) applicant's impugned 1 T transfer 11> Cuttack, inn; incumbent vnmflchug there as I Assistant Registrar was shifted by the in--charge E I President. It is not known as .to under "what circumstances and for what reasons the said incumbent was shifted elsewhere and to fill up the said vacancy, the applicant was preferred for being posted there.5
36. In this respect it is stated in the impugned E order that there are 38 sanctioned posts of Assistant 2 Registrar ixi ITAT across time country anwi at present 5 only 9 Assistant Registrars of Senior Grade are ii Eji Ei i available and out of them one Assistant Registrar will' ii 11I1, 5% be retiring on 30.04.2017. It is also stated that to fill up that gap, _ITAT has' appointed 12 junior i officials as Assistant-Registrars on adhoc basis for ensuring smooth functioning of ITAT Benches at various stations. The applicant being time senior Assistant 1 I _ - --------v Q E*»"*¢a%%">/"\ 1 I i 34 OA..260/2017 3 Registrar having"E5 years standing ix: his credit was 3 A preferred to manage the affairs of the ITAT Bench at E Cuttack. It is Inn: disputed that time applicant was 3 I s . ., -
initially _promotedi as Assistant Registrar on adhoc 1 5 basis in the year 2011 and' thereafter he was E confirmed. In such circumstances of the case, it can safely be said that when the applicant was transferred from Mumbai to Pune he had just 5 years of experience 1 I
-.u to his crediti .As such there may be Jmany other § Assistant Registrars who are senior to applicant, more experienced in the field and having longer tenure at a l :1 :T111 =1 1% Ii Station than the applicant. However, the Respondent i No.2 has not shifted any of such officers. On guery 1 2
-r made, it was pointed out that there is only one i sanctioned post of Assistant Registrar' at ITAT, Cuttack Bench and that there is only one Bench of ITAT 1 2 in entire Orissa State at Cuttack. However, there is 1 i nothing on record to show that any attempt was made by 1 E Respondent No.2 to identify any other Assistant Registrar from any other Bench who has completed minimum tenure tn? 5 years there :flm: his transfer to 1
-1| Cuttack. It was pbinted out by learned Advocate for 5. the applicant that there are few such Assistant 5. Registrars. However, ii: appears ifinn: ignoring them E Ii the applicant was deliberately preferred, for the simple reason that he secured favourable order of his 'I-.
*i*\$i1'> :§\£€i'<i11 __ /<7'; 1 £5 I i ' 35 O.A..260/2017 transfer from Mumbai to Pune by convincing the former President. *
37. During the course of arguments we were surprised to rnnxa the submission tn? learned Advocate for the respondents that former President was not authorised if competent_ix> transfer time applicant, a day before ins demitted time office cni superannuation.
It appears that learned Advocate for the respondents had forgotten that the former President was holding fullfledge charge of time said post cna regular basis and the Respondent No.2 who is his successor is posted i :
E only cni officiating basis inn: holding time additional charge of said post, awaiting the posting of regular E President by the Gmvernment. Normally the inecharge _--.A.\ President is expected to look. after the urgent administrative work_ only and should refrain from taking major policy decisions. However, it was pointed out by learned Advocate for the applicant that after taking over the charge as in--charge President of 9 ITAT on' retirement of the former President, the Respondent ERJJZ has effected changes kn; transferring many staff members at different Stations. As stated earlier since the applicant was not due for transfer from Pune, since joined there just a month ago, he should not have been considered for transfer therefrom to Cuttack. ' ' \, E \%
-- ____ .................H._ :3?-T-~EEEFE-I-Ii-3;-.===>zq.-5-.-iiE5-g;fi=§.j=§$i¥=Ei"'"T555:'"'i'§~*773§{~E"'i"iY"*3?"§'f'''' em -.-_»_~_~_._»_1=3~__ -_-;- *1~dens}'+.-'-'*':'-':'--§f'-'W?'1."-.' ' ' ' ' ' ' ' ' ' ' ' ' ' "5""; ' ' '§' % ' ' " '- L. ft: ' 11" - ?-36 OA..260/2017
1 +
38. Durimg the course of arguments, the learned Advocate: for the .respondents submitted. that iJ1 the representation the applicant has -raised only two grounds for cancellation- of his" transfer namely disability"cxf his wife anui education.<mf his college going children. jIt is also pointed out that in the representation tins applicant omitted.ix> mention that his wife Jha MTNL employee anni according ixn hmn this was deliberate suppression cm? material fact, just ix;
gain sympathy and to.get inpression that applicant's
wife is dependent on him, with a view to get transfer
order cancelled on the ground of her physical
disability. However, things remain that the applicant
HI .
has' an earning spouse and on the' ground of her
disability and other grounds he succeeded in securing his transfer from Mumbai to Pune, which is convenient posting for any* employee whose family" members are staying at Mumbai. .It is obvious that by working at Pune lime applicant rnni conveniently Ihxflc after tds family vnn4n1 is staying" em: Mumbai. In such circumstances of the case, it cannot be said that the transfer of applicant .from 'Mumbai_ to Pune by_ the former President was arbitrary or that it is tainted with favouratimn as alleged by the 'respondents themselves. We, therefore, do not find any just and cogent reason for effecting applicant's transfer under it
-
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. 37 " - OA-il260l201? the garb of public interest from Pune to Cuttack. It can safely be said"that_while effecting the impugned transfer, provisions of Para 5.2 of the Transfer Policy were violatedi .As such time applicant should
not have been transferred from Pune to Cuttack within short span.cmf one nmnth anui hence it rmmi safely be said that impugned transfer order is nothing but arbitrary exercise of tmmer kn; the Respondent No.2, although it was tried to justify under the pretext of the order passed by the Hon'ble High Court of Orissa to ensure smooth administration of Cuttack Bench.
39. During the course of"arguments it.was pointed + |-
out by learned Advocate for the applicant that Pune is not native place of the applicant and hence it is not that he has any vested interest to continue at Pune.
He, however, opted for Pune since he was over due for transfer ifixnn Mumbai enui since 3U: was ea convenient
-1| |-
place ix: look after his family, vflfiifil is admittedly staying am: Mumbai anui the applicant got fins desired relief from "the former President. - In such circumstances of time case, iig_cannot ins said. that former President should not -have transferred the applicant to Ihnua just a cnnr before demitting" the office of the President. It is not known for effecting transfer ix) Cuttack, office rxf Respondent No.2 sought willingness from the Assistant Registrars """" 2 *~ * > asisiR?5%I§i%???i?>R%%%Ri§?*ii?5Pii§ii5%i§>'****'*'i*t'R'i*'g"I'?It'§Pgkw 38 OA..260/2017 for being posted there. In such circumstances of the case, choosing the applicant alone for the said transfer who was not due and as such it can safely be sabd that applicant was arbitrarily shifted, thereby resulting in violation of the Transfer Policy. We are aware of time fact that issue of causing hardship to the_ family members of employee on account of his transfer cannot be raised for its cancellation, unless it is shown that the dependent family members suffer fIOHL extreme jphysical disability' and. are "unable to take care and on this count the employee is exempted from rotational transfer on the strength of DoP&Ts OM, administrative instructions, circular.rn: guidelines.
In the present case, although it cannot be said that cancellation of the applicant's transfer on the ground 1. of disability of his earning spouse is not justified, still on other ground as stated"and discussed above, the impugned transfer order is liable to be guashed, being arbitrary and unreasonable. -
40. During idua course <xf arguments learned Advocate for Tina applicant. submitted ifinn: Smt.Leena Vaz who was transferred from Mumbai to Pune vice the applicant is ennui not willing to jcdm1_at Pune, since she ji3 yet ix) complete E5 years cw? her tenure jil the promotion cadre of Assistant Registrar at Mumbai. It
-1| .-
appears that Smt.Leena Vaz has not challenged the a M. {P-'I. ' H I Pf"
< "E 'W 1 39 _ OA..260/2017 impugned order tn? her transfer Jminn Mumbai ti: Pune. This is perhaps for the reason that in case_ the applicant. succeeds iii getting time impugned."transfer order snm: aside, she vndd. be indirectly tenefitted. This is en) because "unless time applicant iae shifted front Pune to t3uttack, ii; will Jnot tie possible for + Smt.Leena Var to take" over at Pune in place of applicant. It appears that' there is only one sanctioned. post <nf Assistant» Registrar tn; Pune and 1- hence an; will run; be pbssible :&m: Smt.Leena_Vaz ti) join .at Pune in place of applicant unless he is
shifted there from on failing to establish the grounds for challenging' his transfer. However, since the impugned_ order of- transfer of applicant is being
- e quashed as'arbitrary and unreasonable being not in acute administrative exigency, transfer of EmmHLeena Vaz front Mumbai to lhnue would. automatically" stands cancelled. It will however be cmmni for the respondents to consider and transfer Smt.Leena Var to any other place, if so required. d
41. From the above discussion it is obvious that both time grounds recorded Eng Respondent ERLZE while rejecting the applicant's representation cannot be
-\ | said to be proper and justified for effecting transfer of applicant from Pune to Cuttack. ' Ii -|
42. During tine course cxf arguments, time learned
-I-1 . . . . > -- .. .. -- . "'-=-I-I-1*"'-111I-"""'""'"'R?-'Z'""'""='-*-*-*-===-"-'"*'-='-==-"-wt="=te:-:I\ere """""" E '''" IIIIII,:_ TI: -3?""""§_ Ea i 40 OA..260/2017 Advocate for the respondents tried to impress upon us + that in the representation the ' applicant has suppressed the fact that his wife is earning member of the family"enui sought cancellation rue the ground of her physical disability. This negtkne a lapse on his parta " .Howeverq in. his reminder the applicant has stated about his earning spouse and hence no adverse inference cine be drawn; simply because Iue failed to t=-
mention this fact in the representation.
. ' :-
43. During the course of arguments, 'learned
Advocate for time respondents submitted. that iii the
representation the applicant has raised personal
grounds cuflq; for cancellation cm? his transfer order,
however, lll the CLA. lne has raised rnnmmmr of other
.-
|
grounds "which is run: permissible according tin him.
However, iii this respect 3U: can safely tne said that
while challenging time impugned "transfer cninnf under
Section l£3=of the Administrative Tribunals Act, 1985
it is open or permissible for the applicant to raise
number of grounds on which he desires to challenge the said order. Such grounds are raised by the applicant in the O.A. Further in this respect it_ may be mentioned here that "in the impugned order the Respondent No.2 tried to justify the decision of transfer of the applicant by explaining the administrative exigency. The applicant in the O.A.,
-- ,§ , . . . . , . . . . . . . . . . . . ___.... . \.... ............-
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-_i W I 41 _ OA..260/2017 therefore, has denied the existence of any administrative exigency" and in that connection? has raised number'<xf grounds ti; justify tmas contention.
:-
In such circumstances of the case it cannot be said .1 that simply because the personal _grounds only _are raised in the representation, the O.A. should also.be restricted to personal grounds only while challenging the inmmgned tiansfer order. We, therefore, reject the contention advanced by time learned Advocate for the respondents. . "
44. During the cxnmime of arguments, the learned Advocate for _the respondents submitted that the applicant has run; shown bonafides tut first reporting to Cuttack in pursuance of the impugned transfer order and. then. subndt; a representation§ and. approach "this Tribunal for iiie cancellation. This submission; is made on.tiue strength cdftiue decision rendered by the Hon'ble Surpeme Court in S.C. Saxena's case referred earlier.. However, it was rightly pointed out by :1 learned Advocate for the applicant that if the transfer order is effected in violation of the express provisions of _the Transfer Policy, then -employee cannot be insisted to join the new posting first and then to submit representation for cancellation of transfer and tinni to approach time appropriate forum + for redressal txf his grievance. It'ji3 also pointed 1111 .»-"
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- 42 OAH260/2017out that observations made by Hon'ble Supreme Court in the above referred S.C. Saxena's case that employee should first -join at the new destination of "his transfer iii obedience {of tine order" and tiuni should submit a representation for its cancellation on personal grounds, cannot be made applicable to present case since those observations were made in the order concerning a disciplinary proceedings, in which it is alleged that. the applicant. was transferred when disciplinary proceedings for unauthorized absence was initiated against .him and he failed to report at transferred station. Hence, solely cne the basis of decision in S.C. Saxena's case, it cannot be said that
- a 1- the impugned orders are not liable to be quashed.
45. It is true that the allegations of malafides or incompetency are not made by the applicant against Respondent. No.2. However, an; stated enui discussed earlier, it is found that the applicant has been arbitrarily transferred in violation of the provisions of 'Transfer" Policy enxi' without considering .if Assistant Registrars " having longer tenure than applicant emxe available en; other" stations iku: being transferred to Cuttack Bench. As stated earlier since the Respondent No.2 was appointed on officiating basis to hold the charge of the post of President, ITAT, in the' said capacity he was competent to effect the
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3"'%I09" Paw'\§';;§K {ti 43 OA...260/2017 transfers inf the employees. However, as stated and discussed "earlier it is not made clear _why the applicant. alone tame-chosen. ignoring rflium: Assistant Registrars inn: have cmmmdeted IMIUB than E5 years txf tenure at a particular station. Hence, we do not find any force ill the contenthmi of learned Advocate for the respondents that the impugned orders are liable to be confirmed. _ _ I
46. It is also submitted by learned Advocate for the respondents that Respondent No.2 was kind enough to mention in the impugned~ order itself. that the applicant's request for re--transfer to Pune or Mumbai will be considered as and when vacancy arises_ in future"and hence it was obligatory for the applicant to QMMJ1 at Cuttack. 'He are cm? the considered view that there is tun force in giving such type of vague and uncertain assurance to the applicant and to compel him tie join am: the runv destination, especially when the impugned transfer order is held to be arbitrary, improper enui unreasonable iii the peculiar facts and circumstances cm? the case. As zmnii giving aunt such assurance is immaterial and devoid of any substance.
47. We also do not find any force in the contention of learned .Advocate for the respondents that time previous transfer cnihnr was issued int the former President only to accommodate applicant and to
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_ 44 OA..260/2017 .
show favour to him. This is so because so far as the
applicant is concerned, he has already rendered about
'0 " I
.-
30 years of service in Mumbai and hence he was liable to be transferred, even otherwise and hence his request for transfer to Pune on the ground of physical disability txf his earning vnixi is accepted kn? the former President, which cannot be faulted or blamed on any ground whatsoever.
48; It is true that the personal problems raised by tine employees txnuxn; override time administrative exigency and.:U1 case there Jhe conflict between the two, public interest shall always prevail. However, in time present. case time impugned "transfer" order".is found.tie be arbitrary and is timing set aside not on personal grounds raised by applicant but for various other grounds stated and discussed earlier. For the '4 I ' I above .reasons, ii: cannot kme said."that time impugned orders are justified. As such it cannot be said that impugned orders are not liable to be interfered with by" exercising tine limited. power cm? judicial review vested in this Tribunal. We are of the view that this is ani exceptional case iii which ii: is necessary for this Tribunal to interfere"with the impugned orders.
The same are, therefore, liable to be set aside.
49. Front the above discussion, we are of the considered -view that the applicant 'succeeds in _§ ______ ..... .. .... .K__ . .... U....,.... -------------- . """""""""" 1 _ _E _ _ - 45 OA..260/2017 establishing few grounds raised by him for challenging the impugned transfer order. As such both the :-
impugned orders cannot sustain. -The same are accordingly quashed. Consequently the applicant will .
.be entitled.tie-continue ti) work at JXEUT Pune Bench, .
. till he is shifted there from in accordance with law.
i _ 50. -The O.A. is, therefore, allowed. Consequently the interim order dated 02.05.2017 staying the impugned fiflfififif stands confirmed, since :U: merged in this final order.
51. lie the facts anxi circumstances {If the case the parties are, however, directed to bear their respective cost of-this O.A. y it y W 1>W....,.-
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(Ms.B. Bhamathi) ~(Arvind€fi. Rohee) b Member'(A) ~ M5/mberr (J). .
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