Central Administrative Tribunal - Ernakulam
P.M. Babu vs Union Of India on 11 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 778 of 2012
Wednesday, this the 11th day of December, 2013
CORAM:
Hon'ble Mr. Justice A.K. Basheer, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
P.M. Babu, aged 55 years, S/o. Mathai, Senior Naval Store Officer, Material
Organisation (Kochi), (Head Quarters, Southern Naval Command), Naval
Base, Kochi - 682 004, residing at : Plamoottil House, Asamannoor P.O.,
Cherukunnam, Perumbavoor, Ernakulam District. ..... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
V e r s u s
1. Union of India, represented by the Secretary, to the Government of
India, Ministry of Defence (Navy), New Delhi - 110 001.
2. The Chief of Naval Staff, Integrated Head quarters,
Ministry of Defence (Navy), New Delhi - 110 001.
3. The Chief of Logistics, Ministry of Defence (Navy),
Integrated Head Quarters, New Delhi - 110 001.
4. The Deputy Director (G), Integrated Head Quarters,
Ministry of Defence (Navy), New Delhi - 110 001.
5. The Flag Officer Commanding in Chief, Head Quarters, Southern Naval
Command, Naval Base, Kochi - 4.
6. The Material Superintendent, Material Organisation,
Head Quarters, Southern Naval Command, Naval Base, Kochi-4.
7. Shri Vijay Shankar, Senior Naval Store Officer,
Head Quarters, Advanced Technology Vessel Project,
Ministry of Defence (Navy), Krishna Menon Marg,
New Delhi - 110 001. ..... Respondents
[By Advocate - Mr. Sunil Jacob Jose, SCGSC (R1-6)]
This application having been heard on 29.11.2013, the Tribunal on
11.12.2013 day delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member-
The applicant who is presently working as Senior Naval Store Officer (SNSO) in the Material Organization, Kochi of Southern Naval Command was posted to Kochi while he was a Naval Store Officer (NSO) on request in the year 2008. The 7th respondent who is a SNSO is working against the lower post of NSO in the Advanced Technology Vessel Project (ATVP), Ministry of Defence, New Delhi against overall vacancy left by the applicant at Kochi. The 4th respondent who is not the competent authority according to the applicant has transferred him, before he had completed his normal tenure of 5 years at Kochi, to DQA(N), New Delhi in the capacity of SNSO vice the 7th respondent who was transferred from Headquarter, ATVP to DQA(N) vide IHQ letter of even number dated 16th December, 2011. His retention at Headquarter ATVP is against overall vacancy, vide Annexure A1 order dated 23.8.2012. Aggrieved the applicant has filed this OA for the following reliefs:-
"(i) Call for the records leading to the issuance of Annexure-A1 and quash the same and direct the respondents to allow the applicant to continue at Kochi itself as if Annexure-A1 had not been issued at all;
(ii) Award costs of and incidental to this petition;
(iii) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case."
2. The applicant contended that the impugned order has been issued by the 4th respondent, Deputy Director (G), who is neither the cadre controlling authority nor the appointing authority of the applicant. There is no public interest warranting the applicant's transfer during the middle of the academic year. The order of transfer in respect of 7th respondent from Headquarter ATVP to DQA(N), New Delhi was issued as early as in December, 2011 has now been cancelled to post the applicant against him. The applicant's parents are aged and will be subjected to substantial hardship if the applicant is relieved from his present post. The applicant is being shifted from Kochi for the reason that he had recommended in his capacity as Controller of Warehousing, a Board of Inquiry in the matter of purchase of rat repellents resulting in a loss of about Rs. 5 Lakhs. He relied on Annexure A7 communication issued by the Commander and Joint Director of Quality Assurance (Naval), New Delhi dated 14.9.2012 to show that his transfer is not in accordance with the procedures for issuance of the same. Annexure R3 transfer guidelines ensure a minimum tenure of 5 years and not a maximum tenure of 5 years. Station seniority means seniority in a particular station and not seniority of stay vis-a-vis various other stations. The transfer of the applicant was not as per the transfer guidelines and not for any functional requirement of the organization.
3. Per contra, the respondents contended that the applicant has not availed the opportunity to make a representation to highlight his personal problems on receipt of transfer order to the Department through proper channel. The posting of the applicant was planned against the vacancy on promotion of Shri K.C. Sharma, SNSO at DQA(N) and accordingly the transfer order was issued vide Annexure A1. However, DQA(N) intimated vide Annexure A7 that there was no vacancy of SNSO in the Directorate as they were temporarily utilizing the services of another officer of non-technical cadre in the said vacancy. Vide letter dated 13.3.2013 they have intimated that a Joint Director rank officer posted in the Directorate has been transferred and the vacancy of SNSO rank officer is now available. The transfer of the applicant was issued strictly as per transfer policy and functional requirement of the organization and the applicant has not been discriminated. The Deputy Director (G) is a senior Group-A officer who has been delegated the authority to handle transfers, promotions etc. in respect of civilian gazetted officers in the Indian Navy. He is empowered to pass on the decisions taken by his superiors/cadre controlling authority by way of written orders. The normal minimum tenure of 5 years is subject to other conditions and parameters like station seniority and residual service etc. The procurement of rat repellents has no relevance with the transfer of the applicant.
4. We have heard the learned counsel for the parties and perused the records carefully. The impugned transfer order is extracted as under:-
"Tele: 23010914 Integrated Headquarters
Ministry of Defence (Navy)
New Delhi - 110 011.
CP(G)/4008/NSO 23 Aug 2012
The Flag Officer Commanding in Chief
Headquarters (for CSO (P&A))
Southern Naval Command
Kochi
POSTING / TRANSFER : NAVAL STORE OFFICERS CADRE
1. Shri PM Babu, SNSO is hereby posted from MO(K) to DQA(N), New Delhi in the same capacity against existing vacancy in the grade.
2. The officer is entitled for TA/DA and joining time under the existing rules. The move of the officer is to be completed by end of Sep 2012.
3. Shri Vijay Shankar, SNSO, who was transferred from HQATVP to DQA(N) vide our IHQ letter of even number dated 16 Dec 2011, is retained at HQATVP against overall vacancy.
4. The charge assumption / relinquishment reports be forwarded to this Headquarters and all concerned.
Sd/-
(UP Mohanan) Deputy Director (G) Copy to :
MO(K) DQA(N) HQATVP DLS DCPS(P&P)"
5. The above order is issued by Deputy Director (G) who according to the respondents has been delegated the authority to handle transfers, promotions etc. in respect of civilian gazetted officers in the Indian Navy. But the respondents have not submitted any evidence of such delegation of authority to Deputy Director (G). There is nothing in the above order which indicates that the decision to transfer the applicant is taken by the competent authority. Therefore, the contentions of the applicant that the impugned order is issued by Deputy Director (G) who is not competent authority to transfer him has some force.
6. As per the say of the respondents posting of the applicant was done against a vacancy of SNSO in DQA(N) which arose on the promotion of Shri K.C. Sharma and accordingly transfer order was issued vide Annexure A1 dated 23.8.2012. But in the vacancy of DQA an officer was functioning. DQA (N) vide their Annexure A7 letter dated 14.9.2012 sought cancellation of the transfer of the applicant to DQA(N). The said letter is reproduced as under:-
"Tele: 26162961 Government of India
Ministry of Defence (DGQA)
Dte of Quality Assurance (Naval)
West Block-V, R.K Puram
New Delhi - 110 066.
No. 1079/P&T/DQAN/ADM 14 Sep 2012
Integrated Headquarters
Ministry of Defence (Navy)
(for DCP(G))
New Delhi 110011
POSTING / TRANSFER : NAVAL STORE OFFICERS CADRE
1. Refer to your letter CP(G) 4008/NSO dated 23 Aug 2012.
2. The posting/transfer order in respect of Sh. PM Babu, SNSO to this Dte is considered in appropriate in view of the following:-
(a) As the PE of this Dte 07 Commanders have been authorized and presently borne. SNSO/SCSO/NASO may be borne in lieu of the Commander, IN depending on service requirement and the discretion of ADGQA(N). In the instant case approval of ADGQA(N) has not been obtained.
(b) At present no vacancy of the Commander exists as per MP-
11 in the Dte. Therefore positioning of officer in excess to complement is not in order.
(c) This Dte is part of DGQA organization and detailed procedure exists for posting of non-DQAS officer. The Proposal along with service details are submitted for approval of DGQA through DQA (N) Prior posting of officers.
(d) The responsibility of indigenization has been transferred to IHQ MoD(N)/DOI, therefore, requirement of such a highly experienced officer does not exist in the Dte.
3. In view of the above it is requested that transfer of Shri PM Babu, SNSO to this Dte be cancelled forthwith.
4. It is further requested that prior approval of ADGQA(N) and DGQA as highlighted above be taken prior posting of officers to this Dte in future.
5. This has the approval of ADGQA(N).
Sd/-
(MS Rajput) Cdr JDQAN/ADM Copy to :-
The Material Superintendent Material Organisation Naval Base, Kochi-682 004.
IHQ/MOD(N)/DLS"
7. The above letter shows that approval of ADGQA(N) has not been obtained for posting the applicant to ADGQA(N) and that there is no vacancy of SNSO and that detailed procedure exists for posting of non- DQAS officers which apparently has not been followed by the respondents. Posting of the applicant as SNSO in DQA(N) vide order dated 23.8.2012 was against non-available vacancy. The relevant fact of non-availability of vacancy does not appear to have been considered in the so called planned order of transfer. The necessity of SNSO rank officer at DQA(N) was not approved by the DQA(N) at the relevant time. The very fact that DQA(N) sought cancellation of the posting of the applicant as DQA(N) is an eloquent testimony of the hollowness of the contention of the respondents that the applicant's transfer was in public interest. Vide letter dated 13.3.2013 (Annexure R14) DQA(N) conveyed that the vacancy of SNSO rank official has arisen and sought dossier of the concerned officer for processing the appointment. This letter seeks the dossiers of the concerned officer for processing only for appointment in a vacancy in the year 2013. This letter cannot camouflage the arbitrariness of the transfer of the applicant as per Annexure A1 order.
8. Paragraph (a) of the revised guidelines for transfer for Naval Store Cadre Officers as per Annexure R3 dated 6.6.1996 reads as follows:-
"(a) It will be the endeavour to keep an officer in a station for at least 5 years, subject to the guidelines in sub paras (b) to (g) below."
9. In the instant case the sub paras (b) to (g) do not come in the way of the applicant completing the minimum tenure of 5 years at Kochi. Besides no endeavour to keep him at Kochi for at least five years is conspicuous by its absence. When these aspects of the transfer order of the applicant are placed in the backdrop of purchase of defective rat repellents in which the applicant could not be got involved, one can smell a rat.
10. We also note that the applicant has not exhausted the remedy of representing to the competent authority to redress his grievance.
11. In the result we direct respondent No. 2 to consider the grievance of the applicant taking into account all relevant factors and in accordance with law and on merit and to take a judicious decision and to convey the same to the applicant within a period of four months from the date of receipt of a copy of this order. The interim order dated 31.8.2012 to the effect that the applicant shall not be relieved will continue till decision of the respondent No. 2 is communicated to the applicant.
12. Original Application is partially allowed as above. No costs.
(K. GEORGE JOSEPH) (JUSTICE A.K. BASHEER) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"