Central Administrative Tribunal - Bangalore
V R Datchna Moorthy vs M/O Defence on 28 August, 2017
OA.No.170/00230/2017/CAT/Bangalore Bench CENTRAL ADMINISTRATIVE TRIBUNAL BANGALORE BENCH ORIGINAL APPLICATION NO.170/00230/2017 ~ DATED THIS THE 281 DAY OF AUGUST, 2017 HON'BLE JUSTICE SHRI HARUN UL RASHID, MEMBER (J) . HON'BLE SHRI PRASANNA KUMAR PRADHAN, MEMBER (A) V.R.Datchna Moorthy S/o P.V.Raghavan Aged 55 years Working as JSO O/o ORDAQA (DGAQA-OH) Bangalore-560 017. _ Residing at No.461, 8" Main 6" Cross, Viveknagar . Bangalore-560 047. ...-Applicant (By Advocate Sri B. Veerabhadra) Vs. 4. The Directorate General of Aeronautical Quality Assurance Ministry of Defence H Block, New Delhi-110 0114. 2. The Secretary - ' Defence Production Ministry of Defence South Block, New Delhi-110 011. 3. The Additional Director General(SZ) DGAQA, Ministry of Defence Vimanapura Post Bangalore-17. | ....Respondents (By Advocate Sri. M.Vasudeva Rao, Sr.CGSC) ORDER
(PER HON'BLE SHRI PRASANNA KUMAR PRADHAN, MEMBER (ADMN) The applicant has filed the present OA seeking the following relief:
"Quash and set aside the provisions of para 6 of policy on deployment of Group A and Group B officers in DGAQA organization circulated under letter No.3598/DGAQA/Adm-I!_ dt.31/10/2016 (Annexure A4), which inter alia stipulates that the station tenure as per para 3 for the purpose of posting/transfer will be the period spent by an officer continuously at that Station in the present as weil as the lowest grade post covered under the OA.No.170/00230/2017/CAT/Bangalore Bench RTP. if any, and the posting and transfer effected vide F.No.3592/RTP/Gp B/17-18/DGAQA/Admn-| dated 07/04/2017 (Annexure AQ) issued by a office of the First Respondent, so far it relates to the applicant as arbitrary discriminatory and violative of provisions as specified in the OA.
2. According to the applicant, he was selected and appointed as JSA-II (re- designated as SA) w.e.f. 3.3.1992. In course of time, he was promoted as JSA-I, SSA-G and then promoted as JSO wef. 1.10.2015. He has not - completed the minimum tenure in JSO cadre. The 1° respondent issued a letter dated 16.12.2016 (Annexure-A6) wherein a list of Group 'B' officers who - have completed the prescribed tenure at their existing stations as on 1.1.2017 and thereby due for posting/transfer on rotations basis was uploaded in DGAQA website. It also asked the concerned officers to forward preferences of stations for their posting. The applicant submitted a representation along with necessary documents on 5.1.2017(Annexure-A7). In the said . representation, he pointed out that his widowed mother who is about 75 years old is suffering from heart ailments and she had undergone heart surgery and pace maker has been implanted. His wife is working as Sr. Accountant in the Dept. of Posts and holding a non-transferable job. Further his daughter who is only girl child is studying in 10" Std. in the academic year 2017-18 in ICSE syllabus. He also relied upon the DOPT OM dated 30.9.2009(Annexure-A8). However, without considering his representation, the respondents issued. the impugned transfer order dated 7.4.2017(Annexure-A9) whereby he was transferred to Nasik. The applicant submitted further reminders dated 8.4.2017(Annexure-A10) mainly on the ground of education which has not been considered. Hence, the present application. --
3. The applicant submits that 1° respondent issued a policy dated 5.10.2010 with regard to transfer(Annexure-A3) followed by a draft policy on posting/transfer of officers of Defence Aeronautical Quality Assurance Service(DAQAS) and other scientific & technical officers of DGAQA dated.
ry OA.No.170/00230/2017/CAT/Bangalore Bench 23.11.2015, Thereafter, the 1% respondent issued a letter dated 10.5.2016 with regard to the rotational transfer based on the policy dated 5.10.2010(Annexure-A5). He forwarded -- further communication dated 31.10.2016(Annexure-A6) relating to policy on deployment of Group 'A and Group 'B' officers in DGAQA organisation.
. The applicant submits that the said transfer order so far as the applicant is concerned is liable to be quashed as it is opposed to the rules in force and the policy in vogue. Rule 6 of transfer policy which provides for definition of Station and station tenure does not seem to be fair as it intends to cover the period spent by an officer continuously at that station in the present as well as the lower grade posts. Rule 10 of the policy stipulates the exemption from RTP. Rule 13 empowers. the authorities to relax any of the provisions or contingencies. The policy indicates the list of stations furnished in the Annexure and perusal of which could indicate that station New Delhi and Ghaziabad which is located within the distance of 30 Kms as different station. Likewise, Lucknow and Kanpur are located within the distance of 70 Kms and it is being treated as different stations. If the distance is the criteria then ORDAQA, Bangalore is around 25 Kms from ALISDA, Bangalore. Thus the applicant is treated differently when. compared to others. There is no transparency in the said rules and the transfer will be affected according to whims and fancies of the respondents. More over the applicant is not holding any sensitive post. Therefore, the transfer of the applicant is not fair. He also pointed out that two to three persons have been retained which indicates that all the' employees have not been treated fairly. Therefore, he prays for granting the relief as sought for.
. The respondents have filed their reply statement in which they submitted that the Group 'B' officers of DGAQA are liable to be posted anywhere in India as OA.No.170/00230/2017/CAT/Bangalore Bench per the policy dated 31.10.2016. The applicant has completed 24 years at the present station i.e. Bangalore, including 10 years on the post of SSA (Group 'B') onwards as against 5-7 years prescribed for the station and thus due for transfer as per the policy. Further, the applicant when given a choice for preferential posting had opted for stations outside Bangalore and simultaneously submitted request for retention at the present station vide;
application dated 5.1.2017. The policy dated 31.10.2016 provides for retention on education ground of children for a specific period of one year, to be exercised only once in entire service. As the request for retention by the applicant was for not for definite period i.e. one year on education ground, he also failed to avail this option. Based on the recommendation of the Committee, the applicant has been transferred to OADG(Nasik) in the public interest. After issuance of the posting/transfer order dated 7.4.2017, the applicant made another request dated 8.4.2017 for retention at the present station on education ground of his daughter for a period of 1 year i.e. up to April, 2018. The same was considered by the respondents. However in view of the fact that postings/transfers of officers vide order dated 74.2017 have been decided based on service exigencies at various FES, it was not considered feasible to retain the applicant at Bangalore at this stage. The decision of the competent authority was _ conveyed vide letter F.No.3592/RTP/17-18/7/DGAQA/Adm-| dated 03 May 2017(Annexure R-1).
. The respondents submit that the applicant holds the post of Junior Scientific Officer(Group 'B' Gazetted) and have All India Service liability. As per the rotational transfer policy, the prescribed tenure at normal station is 5-7 years. Only the persons retiring from service within a period of 2 years or are likely to be promoted within 1 year can be temporarily exempted from the RTP for being transferred along with promotion. If they have completed the prescribed tenure at the existing station, the request of an officer for retention at a station OA.No.170/00230/2017/CAT/Bangalore Bench maximum by 1 year may be considered on ground of education of his/her -- children once in entire service career. The request from employees for posting on compassionate grounds may also be considered as per para 7(d) of the policy. Such request can be exercised only once in full service tenure, . The respondents submit that the Group 'B' officers due for rotational transfer along with their preference of stations for posting and request for compassionate postings, exemption from RTP in year 2017-18 were placed before the committee constituted in terms of para 2 of the policy dated 31.10.2016. After examining preferences of stations and other requests received from the officers and keeping in view the service exigencies at different Field Establishments, suitability of an officer for a particular project etc., the Committee made recommendations for posting/transfer of these officers. The order of posting/transfers were accordingly issued on the basis of recommendations of the Committee with due approval of the competent authority. The applicant has completed the regular tenure of 5-7 years prescribed for the present station and was due for transfer, He had also given a choice for preferential posting which has been considered.
. The respondents referred to various orders of the Hon'ble Apex Court saying | that the Courts should not interfere with the transfer orders which is made in _public interest or administrative reasons unless the transfer orders as made in violation of any mandatory Statutory rule or on the ground of mala fide. In this case, the transfer order has been issued Strictly in terms of transfer policy and - hence there is no reason for any interference. In regard to the two cases mentioned by the applicant in the OA they submit that Sri Depak Kumar Das, JSO has not completed maximum tenure of 7 years and his retention is within the transfer policy. The other JSO Sri Nagappa Yelubenchi is in the zone of the promotion and hence was not transferred. Therefore, they submit that
9. OA.No.170/00230/2017/CAT/Bangalore Bench there is no merit in the contentions made by the applicant.
The applicant has filed rejoinder in which he has practically reiterated the points made in the OA. The respondents have also filed additional reply to the rejoinder reiterating the submissions made in the main reply statement.
10. Earlier, an interim order was granted by this Tribunal staying the operation of ;
11. the transfer order so far as the applicant is concerned. The respondents have filed ari MA seeking vacation of interim order to which objection has been filed by the applicant. Since the matter has been taken up for final disposal, the MA for vacating stay is no longer relevant.
Heard the Learned Counsel for the parties. The Learned Counsel for the applicant while reiterating different aspects mentioned in the OA submitted that as per the policy, a specific committee has to consider the rotational transfer postings. However, there is no document to prove that such a committee has considered the rotational transfer postings. He further referred to transfer policy and submits that Rule 6 provides the definition of station and Station tenure does not seem to be justified. According to policy, the period spent by an officer continuously at that station in the present as well as the lower grade post covered under RTP, if any which is not appropriate. It should refer to the current tenure only and not include the earlier tenure. He also referred to para-10 of the said policy which exempts certain category officers from transfer on rotational basis. Para-10(iii) indicates that the tenure based RTP shall not be applicable to Group 'B' officers/staff of cadres other than Scientific and Technical cadres. This, according to him, is unjustified and there should not be any differential treatment. He further mentioned that there is no transparency in the transfer policy. The ground of retention of some officers has not been specified by the respondents in the order. The applicant's daughter is studying 10" Std. and hence on ground of education, OA.No.170/00230/2017/CAT/Bangalore Bench his representation should have been considered and his transfer should have been deferred. When the policy itself makes provision for considering deferment of transfer on the. ground of child's education, excluding the applicant from such benefit is therefore, illogical. The Counsel submits that. the transfer policy should be applied uniformly to all officials. But the respondents have applied the same to some persons only and not all. Some ' persons have been exempted as being under promotional zone though no DPC has been held so far. When others have been retained, the applicant has been transferred. Therefore, it is the clear case of discrimination.
12.The Learned Counsel for the respondents referred to various aspects highlighted in the reply statement and submitted that rotational transfer was _ taken up by the Committee constituted for that purpose as specified in their reply and the contention of the Learned Counsel for the applicant is wrong. The model transfer policy has been formulated by the respondents keeping in view the interest of all employees and there is nothing wrong or discrimination in the policy which include various provisions which will be applicable to all employees. Hence, the contention made by the applicant regarding transfer policy itself does not stand to any reason. He also refers to the order of the Principal Bench dismissing the OA against the transfer policy imposing cost to the applicant. He also submitted several judgments of Hon'ble Supreme Court viz., Rajendra Singh & Ors. v. State of Uttar Pradesh & Ors [(2010) 1 SCC (L&S) 503], Union of India & Ors v. S.L.Abbas [1993 INDLAW SC 1106), Shilpi Bose(Mrs) & Ors. v. State of Bihar & Ors [ (1991) 17 ATC 935] etc. and submits that it is prerogative of the authority to effect transfer in terms of the laid down policy. He further mentioned that the applicant is in Group-B service and has Alll India Service liability. Therefore, he cannot demand for retention _ at the same place. The representation of the applicant for retention at the present station on the ground of his daughter's education was considered by OA.No.170/00230/2017/CAT/Bangalore Bench the respondents but based on service exigencies in various units, it was not considered feasible to retain him at Bangalore at present. The entire transfer has been carried out in terms of transfer policy and there is nothing to indicate the transfer is discriminatory. The persons who are in the zone of consideration and are likely to be promoted have been retained so that they can be transferred subsequently on their promotional posts. Therefore, he :
submits that there is no ground of any interference in the said transfer order.
13.We have carefully considered the facts of the case and submission made by either side. The applicant in the present OA has challenged para-6 of the transfer policy and also his own transfer order. As regards the transfer policy is concerned, we note that the respondents brought out a draft transfer policy in 2010 and the final transfer policy has been circulated by communication dtd.31.10.2016. We have gone through the policy and note that the said policy touched upon all aspects viz., sensitive posting, definition of station and station tenure and posting & promotion and preference for posting etc. This is .a comprehensive policy and is applicable to both Group-A and Group-B officers in the organisation. It also provided the constitution of committees to consider posting/transfer of officers of DGAQA officers as well as other officers. Para-6 of the transfer policy which has been agitated by the applicant reads as follows: a |
6. Definition of Station and Station Tenure: The list of stations where DGAQA Filed Estts/Units are located is at Annexure. The station tenure as per Para 3 for the purpose of posting/transfer will be the period spent by an officer continuously at that station in the present as well as the lower grade posts covered under the RTP, if any. The transfer from one Field Estt/Unit to another at the same station will be considered as a single tenure for that station.
Any transfer before completing the minimum tenure and stay beyond the maximum tenure shall be with the approval of the authority empowered to approve posting/transfer, based on the recommendations of the Committee.
14.As per the above provision, the entire period spend by an officer in the station shall be counted as station tenure. This appears to us as logical. Otherwise a + OA.No.170/00230/2017/CAT/Bangalore Bench person continuing at the same place for a very long time can be promoted to a promotional post and claim that in that particular rank he has not completed prescribed tenure. The definition of station and station tenure as defined in the policy appears to us as justified. We are therefore of the view that there is no merit in the contention made by the applicant against this provision.
15. The Learned Counsel for the applicant had also referred to para-10(iii) of the ; policy which reads as follows:
10(ii/) The tenure-based RTP shall not be applicable.to Group 'B' officers/staff of cadres other than Scientific and Technical cadres i.e. RTP in Group 'B is applicable only for officers holding the post of Junior Scientific Officer, Foreman, Senior Scientific Assistant, Scientific Assistant and Chargeman.
| 16.As per this provision, the tenure based RTP will be applicable only for the officer holding the post to some categories including Junior Scientific Officer. it will not be applicable to Group-B officers other than Scientific and Technical cadre which means officers in those cadres can be transferred before the mentioned tenure. This provision only protects the scientific officers like: the applicant and hence there is no ground for any grievance in this regard. The applicant had also referred .to the list of stations furnished in the annexure and stated that when stations in New Delhi and Ghaziabad which are located within the distance of 30 kms are treated as different stations, then the ORDAQA, Bangalore which is around 25 Kms away from ALISDA, Bangalore should also be considered as different station. We do not think there is any _ logic in 'such an argument. The stations which have been specified are _ different locations. Besides Bangalore, in Hyderabad, Jabalpur, Kanpur, Calcutta and Lucknow there are more than one unit and.all units located at one city/town have been taken as one station. The station should logically be City/town based and not unit wise. 'Therefore, the list of stations of the DGAQA furnished in the Annexure to the policy appears to us justified as there is no merit in this contention of the applicant also.10
OA.No.170/00230/2017/CAT/Bangalore Bench
17.As far the transfer order dated 7.4.2017 is concerned, there is no doubt that the applicant had completed the station tenure and is eligible for rotational transfer. However, he had represented for retention on educational ground saying that his daughter is studying 10" Std. in ICSE syllabus and hence on that ground he should be retained. It also appears from the reply of the i respondents that even if a person is completed the prescribed tenure at the Station, the request of an officer for retention at the station maximum by one year may be considered on the ground of education of his/her children once in an entire service career. Since the policy has come only recently and the daughter of the applicant is studying in Class 10" it would be illogical to say that the applicant has availed all those benefits on an earlier occasion. The applicant had cited the case of Shri Dipak Kumar saying that he has been retained on the educational ground. Though the respondents havé submitted that he has not completed his total tenure, the fact remains that Shri Dipak's name was included in the list for rotational transfer as he has completed 6 years tenure at the present place. We are not sure whether Shri Dipak's representation was considered on the ground of child's education or not.
Nevertheless, there is provision for considering the retention of an officer for one year on the ground of child's education.
18. itis a fact that the applicant has All India Transfer liability and cannot demand continuation in the same place indefinitely. Various orders of the Hon'ble Apex Court have also held that a government servant has no vested right to remain posted at a place of his own choice. Who should be transferred where is the matter for the appropriate authority to decide. However, the fact remains that the policy itself provides a scope for considering representation of an employee for retention on the education of his/her child. tn this case, as submitted by the applicant, he has only girl child who is studying 10" Std. in Ips/ _ order as to costs.
4OA.No.170/00230/2017/CAT/Bangalore Bench academic year 2017-2018 in ICSE syllabus. Therefore, in terms of policy, his Case requires consideration. Simply rejecting his case saying that he cannot be retained at the station on service exigencies would not be desirable. If any other person has been considered for retention for one year on the ground of children's education, then the applicant's case also merits consideration.
19.Under the circumstances of the case, we are of the view that the | representation of the applicant for retention for one more year on the ground of his daughter's education who is studying 10" Std. be reconsidered by the respondents. Therefore, we direct the respondent No.1 to reconsider the
-Tepresentation of the applicant once again and give him opportunity of hearing if considered necessary for an appropriate decision and passing a reasoned order. Till such decision is taken, the applicant shall be retained to continue in the present station.
20.The OA is accordingly, disposed of in terms of the aforesaid direction: No ae | | | a MEMBER (A) | . MEMBER (J)
12. 'OA.No.170/00230/2017/CAT/Bangalore Bench Annexures referred to by the applicant in the OA.170/00230/2017 Annexure-A1: Transfer Policy dt.05.10.2010 Annexure-A2: Draft Policy No.3598/DGAQA/Adm-| dtd.23.11 .2015 Annexure-A3: Policy dtd.10.5.2016 .
Annexure-A4: Letter dtd.31.10.2016 Annexure-A5: Letter dtd.9.11.2016 Annexure-A6: Letter dtd.16.12.2016
- Annexure-A7: Representation dtd.5.1.2017 Annexure-A8: OM dtd.30.9.2009 Annexure-A9: Transfer/Posting Letter dtd.7.4.2017 Annexure-A10: Reminder dtd.8.4.2017 Annexure-A11: SRO 10 Annexure-A12: SC Judgment Annexure-A13: Letter dtd.31.3.2017 Annexure-A14: Letter dtd.10.4.2017 Annexure-A15: Maintenance and Welfare of Parents and Sr.Citizens Act.
t Annexures with reply statement:
Annexure-R1: Order dtd.25.4.2017 in OA.1339/2017 passed by Principal Bench of the Tribunal Annexure-R2: The Gazette of India: August 25, 2007 CK