Central Administrative Tribunal - Hyderabad
Rajveer vs M/O Defence on 30 September, 2022
OA No.20/1068/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/020/01068/2019
Reserved on: 22.09.2022
Pronounced on: 30.09.2022
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
1. Rajveer, S/o. Nopa Ram
(Deleted vide order dt. 25.08.2022)
2.Prempal Singh, S/o. Jaipal Singh,
Age-28years,Unit-INHSDHANVANTARI,
Pass NO.C661991, R/o Vill.-Jasua, Post-Payandapur,
Teh.-Iglash, Distt.-Aligarh, Uttar Pradesh-202123.
3.RaviKumar B, S/o SBiju,Age-28years,
O/o Unit-INSBAAZ,R/o House-18/783,Santhi Kunj,
V.P.AntonyRoad, Distt.-Ernakulam, Kerala-682006,
4. S.P.Nangare, S/o. Popat
(Deleted vide order dt. 25.08.2022)
5. Satish Kumar, S/o. Ramjilal, Age-30years,
O/o Unit-INSUTKRISHT,PassNO.-C666932,
R/o VPO-Asalwas,Teh-Bawal,
Distt.-Rewari,Haryana-123501.
6.Kishor Kumar, S/o. Prem Singh, Age-27years,
O/o Unit-INSKARDIP, Pass No.- C666933,
R/o Vill.-LAKHIMPUR,
Post-Barrod,Teh.-Mundawar, Distt.-Alwar, Rajasthan-301020.
7.Giri Raaj Singh Garer, S/o. Surender Kumar Garer,
Age-30 years, O/o Unit-INS UTKROSH, PassNo.-C666938,
R/o Vill.-Bhiraipura,Teh.-Amer, Post-Sirsali,
Distt.- Jaipur, Rajasthan-303702.
8.Chitrangathan.VR , s/o Rudrakishan,Age-30years,
O/o Unit-INSJARAWA, Pass No.- C667124,R/o H/No.-577,
Kizhakkekalam, Post-Thennilapuram,
Via-Anjumoorthy, Palakkad, Kerala-678682.
9.Narender Sharma, S/o. Seva Singh Age-29years,
O/o Unit-INSUTKROSH, Pass No.- 667133,
R/o VPO-Bhaiyapur (Ladhout),
Distt.&Teh.-Rohatak,Haryana-124001.
10.Shaik Moulali, S/o. Shaik Mahaboob Basha,Age-28years,
O/o Unit-INSUTKROSH, PassNo.C661975,
R/o H/No.-2-3-288,
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OA No.20/1068/2019
Krishna Nagar Colony, Macha Bolarum,
Secunderabad, Hyderabad-500010.
11.Vorsu Mallesh, S/o. Vorsu.Balaiah
(Deleted vide order dt. 25.08.2022)
12. K.Gopi, S/o. K.Kubendiran, Age-29years,
O/o Unit-INSJARAWA, Pass No.-C 666701,
R/o H/No-26/3Bajani Koil (ST),
MadurpuriKandger, Post-Asamandur, Teh.-
Arakkonam, Distt.-Tamilnadu-632502.
13. K.Srinu, S/o. Pydiraju, Age-29, Unit-INSJARAWA,
PassNo.-C662018, R/o D/No.-23- 40-12,
Dayalnagar (Lova),
B.C.Road, Gajuwaka,Visakhapatnam-531034.
14. Anil Kumar, S/o. Jainaryan
(Deleted vide order dt. 25.08.2022)
15. Ashish Baby, S/o. Baby K.P.Age-28years,
O/o Unit-INSUTKROSH,
PASSNO.-C 661988,R/o H.-Kakkattil, Kooznoor,
Post-Irapuram, Ernakulam, Kerala-683541.
16. Deepak K.Vijay, S/o.Vijayan.K
(Deleted vide order dt. 25.08.2022)
17. Sunil. S, S/o G.Sivadasan, Age-31years,
O/o Unit-INHSDHANVANTARI, Pass No.-C 662022,
R/o House-Sunil Nivas, Post-Piravan Tnoor,
Kollam, Kerala-689696.
18. Yenugula Jayaram, S/o. Yengula Nageshwar Rao,
Age-30 years, O/o Unit-BASE VICTUALLINGYARD,
PassNo.-C662016,
R/o Vill.-Ambativalasa, Mandal-Bondapalli,
Distt.-Vizianagaram, Andhra Pradesh-535003.
19. Chirki Hanumanth, S/o. Ramu,Age-28years,
O/o Unit-INSBAAZ, PassNo.-C662017,
R/o Vill.-Pachilavanipaleam,
Post-Chowduvada,
Teh-K.Kotapadu,Visakhapatnam, AndhraPradesh-531034.
20. Aneesh T.A., s/o AshokanT.D.,Age-31years,
O/o Unit-INSKARDIP,
Pass No.-C 661999, R/o H/No.-482, House-Thazhath,
Post-M.G.Kavu, Distt.-Thrissur, Kerala 680581.
21.Sunil Kumar B. , s/o Babulal, Age-30years,
O/o Unit-INHSDHANVANTARI,
R/o House Vijayavilasam,
Post-Puthiyavila, Pattoli Market,
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OA No.20/1068/2019
Distt.-Alappuzha, Kerala-690531.
22.Chavan Dattatray Ashok, s/o Ashok Jagganath Chavan,
Age-30 years, O/o Unit-INS BAAZ,
PassNo.-662020,
R/o VPO.-Bholi Takeh.-Khandala,
Distt.-Satara, Maharashtra-415526.
23. Dharamender, S/o. Krishan, age-27years,
O/o Unit-HQNAVC/NAVALTRANSPORT POOL,
PassNo.C662002,
R/o Vill.-Maham,Teh.-Rohatak,
Distt.-Rohatak, Haryana 124112.
.....Applicants
(By Advocate: Mr. Anita Swain)
Vs.
1. The union of India, Rep by its secretary,
Ministry of Defence, South Block, New Delhi,110011.
2. The Chief of Naval Staff,
For Directorate of Civilian Personnel Services
Integrated Head quarter, MOD (Navy)
Room No. 10, Tlkotara Annexe Building,
New Delhi,110011.
3. Flag Officer- Commanding In Chief,
Head Quarter, Eastern Naval Command ,
Naval Base, Visakhapatnam.
4. The Naval Component Commander,
For CSO (L A &P)Head Quarter,
Andaman & Nicobar Command,
C/o Navy Office, Port Blair-744102,
....Respondents
(By Advocate: Mrs. K. Rajitha, Sr. PC for CG)
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OA No.20/1068/2019
ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The applicants filed the OA challenging the action of the respondents for not transferring them upon completion of their tenure from Andaman & Nicobar Command (for short "ANC") to any other Naval unit under Eastern Naval Command, Visakhapatnam (for short "ENC").
2. The applicants filed MA 27/2020 in regard to the same prayer and the said MA was disposed of by this Tribunal vide order dt. 09.01.2020 by directing the respondents to consider the cases of the applicants for transfer to VSKP or to main land or any other unit under ENC, Visakhapantam, as per the policy, subject to the administrative exigencies/ flexibilities, as the public interest is the paramount, by issuing a speaking and well-reasoned order.
3. In compliance of the order of this Tribunal in MA 27/2020 supra, the HQ ANC, Port Blair passed order dt. 24.07.2020 rejecting the request of the applicants for transfer from units under ANC to Visakhapatnam or any other unit under ENC. Thereafter, the applicants amended the prayer in the OA by filing MA 512/2020 challenging the said rejection order dt. 24.07.2020 and the amendment was permitted by this Tribunal on 08.01.2021.
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OA No.20/1068/2019
4. It is the case of the applicants that they were appointed in 2015 as Civilian Motor Driver (OG) & Fire Engine Driver under Naval Component Commander, ANC, Port Blair pursuant to the Advt. No. 01/2014 dt. 26 - July to 01-August 2014. Their cadre controlling authority is ENC, Visakhapatnam. They are governed by transfer policy guidelines dt. 11.08.2015 issued by the respondents. Normal tenure of posting in case of routine transfer is 5 years, whereas the tenure of posting at a remote station like Port Blair is 2 years. Since the employees working at hard station are facing difficulties, the HQ ENC revised the transfer guidelines on 10.05.2016 and as per the same, posting of personnel to the stations including Port Blair will be in the sequence, vis-à-vis their seniority in the roster on the principle of junior most will move to the farthest station from Visakhapatnam and hence, should be transferred as per the sequence on completion of 3 years tenure. The applicants submit that after the appointments, the respondents notified vacancies in 2015 and 2018 and therefore, on completion of their tenure, they need to be brought back to the mainland by posting the next junior most employee from the cadre as per the revised policy. If any employee is specifically recruited for ANC, they should be treated separately with special pay and should have separate seniority roster.
5. The applicants contend that their representation was rejected vide the impugned order dt. 24.07.2020 citing the guidelines of 2018, contrary to the guidelines of Naval HQs of 2015 and ENC transfer policy of 2016, which were issued by the superior authorities. It is their further contention that the Page 5 of 9 OA No.20/1068/2019 guidelines which were in vogue at the time of their appointment are to be taken into consideration, and not the guidelines subsequently framed and cited judgment of the Hon'ble Supreme Court in B. Vardha Rao v. State of Karnakata & Ors [1986 (4) SCC 131] in support of their contention.
6. Per contra, the respondents submit that the naval civilians employed through Direct Recruitment are being posted against the sanctioned strength of HQ ANC and its allied units only. The all India transfer liability clause mentioned in the advertisement keeping in view the service exigencies, but it does not give any right to any individual to seek transfer at his/ her own will. The transfers are regulated by HQ ANC transfer policy dt. 28.05.2018 and with the promulgation of the said policy, the transfer policy of HQENC and the transfer guidelines issued by IHQ/MOD (N) are no longer applicable. The cadre controlling authority of CMDs and Firefighting Staff is HQ ENC, which deals with maintenance of seniority roster, promotion, MACP, etc. They point out that Advt. No. 01/2014, per clause 5(j) makes it clear that the vacancies notified were in the Naval Units in A & N Islands under Headquarters, Andaman and Nicobar Command, but the selected candidates are liable to serve at Naval Units anywhere in India. They further submit that in the call letter and the offer of appointment given to the applicants, it is clearly stated that their posting will be in the Naval units in A&N Islands and also carries All India service liability. Thus, the recruitment was made exclusively for ANC and all India service liability cannot be construed as a matter of right for the applicants or commitment from the respondents. The applicants were well aware that their selection Page 6 of 9 OA No.20/1068/2019 and posting was for units under ANC. The applications of the applicants were duly examined at the HQ ANC and then forwarded to HQ ENC being the cadre controlling authority and the same was turned down by the latter to process the applications without seeking reliever. The applications were also forwarded to Commanding Officers of the concerned units, but due to paucity and shortage of employees, inability was expressed to recommend transfer of individuals without positioning a reliever. These applicants were appointed pursuant to the Advt. No.01/2014 published by HQ ANC whereas vacancies in 2018, referred to by the applicants, were notified by the HQ ENC and both cannot be combined nor compared. Requests of four similar CMDs were considered for transfer to other units only on ascertaining the medical condition of family etc. As per the policy of the Government, a Special Package of Allowances is being provided to the applicants and all the employees posted in ANC are eligible for medical reimbursement facilities as per CSMA Rules. The respondents state that Port Blair is not a hard station and their action is in accordance with law and the applicants are not entitled for any relief.
7. Heard Mrs. Anita Swain, learned counsel for the applicants and Mrs. K. Rajitha, learned Senior Panel Counsel for the respondents and perused the records placed on the file as well as the written arguments filed by the applicants.
8. The main grievance of the applicants is that they are not transferred from ANC to any other Naval unit under ENC, Visakhapatnam. The respondents' case is that the applicants were appointed exclusively against Page 7 of 9 OA No.20/1068/2019 the vacancies at ANC and therefore, the revised transfer policy framed by HQ ANC dt. 28.05.2018 is applicable to the applicants. The important document to adjudicate the issue is the Advt. No. 01/2014, Clause 6(j) of which reads that "The vacancies are for Naval Units in A & N Islands under Headquarters, Andaman and Nicobar Command. However, selected candidates on appointment are liable to serve at Naval Units anywhere in India" Further, clause 8 of the call letter for recruitment issued to one of the applicants dt.22.12.2014 (Annexure A-2) reads that: "If you are selected, the place of initial posting will be at Naval Units in A & N Islands under the administrative control of Andaman & Nicobar Command, subject to All India Transfer Liability." Further, clause (p) of the offer of appointment issued to one of the applicants dt. 24.09.2015 (Annexure A-3) reads that: "(p) You are liable to serve in various units under A & N Command. However, the post carries All India Service Liability and you can be posted to any Naval Units as per service exigencies."
9. Thus, the Advt. No. 01/2014 pursuant to which the applicants were appointed was issued to fill up the vacancies in Naval Units under HQ ANC and the applicants were aware of the said fact. Further, in the call letter and the offer of appointment cited it was made clear that they will be posted at various units under ANC. The applicants joined the service having accepted the terms and conditions of the notification and the offer appointment. Therefore, as contended by the respondents, the applicants are governed by the transfer policy framed by the HQ ANC in 2018, but not the transfer policy of the HQ ENC. No doubt, the applicants have all India transfer liability and the same has to be invoked by the respondents as per Page 8 of 9 OA No.20/1068/2019 administrative exigencies, but the applicants cannot harp on that condition for seeking their transfer from ANC to any other Naval unit under ENC. Admittedly, the transfer guidelines are not statutory in nature. The requests of the applicants were duly forwarded to the HQ ENC and the Commanding Officers at ANC, but due to shortage of staff and owing to administrative exigencies, they could not be transferred.
10. It is well settled that transfer is not a matter of right of an employee. Recently, the Hon'ble Supreme Court in SK Nausad Rahaman & Ors. v. Union of India & Ors, in Civil Appeal No. 1243 of 2022, vide judgment dt. March 10, 2022, reported in 2022 (4) SCALE 626 has held as under:
"24 First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.
11. In view of the above position and under the facts and circumstances of the case, this Tribunal is of the view that the OA is devoid of merit and the same is accordingly dismissed. There shall no order as to costs.
(SUDHI RANJAN MISHRA) JUDICIAL MEMBER //evr// Page 9 of 9