Central Administrative Tribunal - Ernakulam
Smt Maggie Francis vs Union Of India Represented By on 11 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 802 and 803 of 2009
Thursday, this the 11th day of November, 2010.
CORAM
HON'BLE Ms. K NOORJEHAN, ADMINISTRATIVE MEMBER
HON'BLE DR K.B.SURESH, JUDICIAL MEMBER
O.A.802/2009
Smt Maggie Francis,
Junior Engineer(Civ),
O/o the Chief Engineer (Naval Works),
naval Base, Kochi-4. ....Applicant
(By Advocate Mr R.Sreeraj)
v.
1. Union of India represented by
Secretary to Government, of India,
Ministry of Defence,
New Delhi..
2. The Chief Engineer,
Military Engineer Service,
Southern Command, Pune.
3. The Chief Engineer (Naval Works),
Military Engineer Service,
Naval Base, Kochi-4. ....Respondents
(By Advocate Mr Sunil Jacob Jose, SCGSC )
O.A.803/2009
Rose Chandran V.P.,
Junior Engineer (Civil),
O/o the Garrison Engineer(I)(NW)
Fort Kochi. - Applicant
(By Advocate Mr R.Sreeraj)
v.
1. Union of India represented by
Secretary to Government, of India,
Ministry of Defence,
New Delhi..
2. The Chief Engineer,
Military Engineer Service,
Southern Command, Pune.
3. The Chief Engineer (Naval Works),
Military Engineer Service,
Naval Base, Kochi-4. ....Respondents
(By Advocate Mr Sunil Jacob Jose, SCGSC )
This application having been finally heard on 3.11.2010, the Tribunal on
11.11.2010 delivered the following:
O R D E R
HON'BLE DR K.B.SURESH, JUDICIAL MEMBER These two cases have came up for consideration together as the issue arising in the matter are similar in nature.
2. The matter relates to transfer of Junior Engineers. In order to rationalise the imbalance and to share the surpluses and deficiencies, the Command Manning Level postings are resorted to. The individuals with longest period of stay are moved from the station holding surplus to stations with manpower below far and deficient.
3. There are several stations termed as tenure stations due to peculiarities of geographical locations, hard climatic conditions, poor amenities and lack of availability of local man power. Therefore, by compulsion tenure posting is imposed on employees of various level so as to ensure smooth functioning of such stations. Applicant in O.A.802/2009 being a lady is not subjected at present to a tenure at a harsh locality. Vide Annexure A-1 it has been determined by the authorities that there is a surplus at Cochin and the surplus had to be accommodated elsewhere under CML and therefore, the applicants and three others were moved out, along with several others vide Annexure A-1 order.
4. The applicant challenges this on the ground that the transfer is arbitrary, malafide and without factual foundation. It is violative of Para 36(b) of Annexure A-2 transfer norms, the transfer being in the middle of academic year. Annexure A-4 representation is for seeking one year's deferment request for transfer till the end of academic year so as to enure to the benefit to her daughter who is studying at XIIth Standard.
5. The applicant in O.A. 803/2009 is also similarly aggrieved and has approached this Tribunal.
6. The respondents have filed a reply stating that as per Monthly Situation Report-May-09, Kochi Complex was surplus by five Junior Engineers and accordingly five Junior Engineers were considered for posting under Command Manning Level-09. It would appear that the applicants have resisted this order on the ground that one of the posts were immediately filled by transferring one Shri K.M.Abdull Kadir from Trivandrum to Cochin but the respondents would say that on repatriation from a tenure station at Port Blair where he had undergone terror and strains of tsunami, he had a right to be posted to a place of his choice and his choice of Kochi could not be acceded to at that time. Therefore, he was given Trivandrum. He had represented vide representation dated 27.7.2009 for changing his posting to Kochi. He had been accommodated only at Trivandrum and therefore in view of his situation he had to brought back to Kochi.
7. Vide a rejoinder, this is challenged by the applicant on the ground that while the Engineer-in-Chief's Branch letter No.A/93296/SC/2008-09/E2W(Est)/6 dated 12.8.2009 the revised subordinate establishment bifurcating civil and maint has been submitted to his HQ vide their letter No.120000/08-09/09- 10/139/E1B(S) dated 27.8.2009. In accordance with CWE organisation as sanctioned above will be raised immediately and the requirement of JEs are proposed to be catered to from the available resources initially. In the light of the actual requirement of JE(Civil) in CWE, Kochi, the decision conveyed vide HQ letter under reference is sought to be reviewed and deferment granted. Therefore, the applicants would claim that as on 22.3.2010 CWE(W), Kochi was raised and Therefore objections by the respondents against retention of the applicant at Kochi are not relevant as additional number of Jes are required at Kochi. The applicant would thus pray that this new development which happened in the interregnum of the application has also to be taken into consideration following the various Supreme Court judgments which indicate that in such case the reliefs have to be moulded in accordance with the circumstances of the case.
8. The respondents have filed additional reply statement and would claim that according to paragraph 30 of guidelines, individuals under repatriation should get their choice station and therefore a choice posting was given to Shri Abdul Khadir as he was entitled to it. They also pointed out that out of the five individuals who have been posted out except these two applicants all had moved out to their respective units. They would also say that the applicant (in O.A.802/2009) being a lady is not liable for tenure posting. Therefore, the merits and demerits of her employment cannot be compared with that of Shri Abdul Khadir who had to serve in tenure stations. The applicant has an all India service liability. It is also pointed out by the authorities that in her entire service of 25 years, she has moved out of her state only once on organisational requirement in 1991-93 to Goa Vasco. Both the applicants have completed more than 3 years at the station and as for the applicant in O.A.802/2009, her posting from Kochi to Trivandrum was as per her choice only and for the past 17 years, applicant was in her state and mostly in Kochi. They would point out that at present, she has longest stay of over 5 1/2 years at Kochi behind her. Therefore, the respondents would canvass a view that it would be unjust if the applicants are allowed to stay in Kochi as both of them had overstayed their requirements at Kochi. To the Annexure R-4(2) produced by the respondents, the applicants would in Paragraph 36(b) indicate that all postings under CML shall be issued by end of March every year keeping in view the academic session of children and will be implemented latest by 15 May each year.
9. The applicant in O.A.802/2009 has filed additional rejoinder in which she pointed out that in opposition to the guidelines, 3 persons who are newly recruited, viz, M/s Anusha K.A, Deepa M.S. and Swapna Gopi were posted at Kochi in violation of Para 36(b) of Annexure A-2 guidelines. The respondents in answer, in reply statement would say that the aforementioned individuals were appointed through Staff Selection Commission and they have joined the department in October, 2009. The applicant would then point out that if three people could be accommodated there, then it is indicative of the fact that vacancy exist at that place even now and the surplus theory put out by the respondents may not be factually correct. The respondents would say that the posting order of the applicant issued in July 2009 is based on vacancy of MSR of 2010. They would say that over an year vacancy position of a station being dynamic keep changing depending on various parameters like VRS, retirement, death, promotions and other postings on work load. It is to be understood in this connection that Kochi have been raised and the requirement of Jes has substantively gone up. Therefore, the question of public interest involved in sending out the applicant may not be very relevant, submits the applicant. But at the same time, the question of requirement of the applicant at their receiving stations may be a fact to be borne in mind. The applicants would claim that the receiving stations also are not deficient as of now. But these points does not seem to have been effectively canvassed and objected to by the respondents.
10. But transfer is an incident of service and some times require in public interest. Even if no specific ground existed is a valid features of government service. Transfers have to be effected as otherwise a process of empire building sets in and each person who occupies a post acquires a vested interest in it which is compounded by efflux of time and this by itself is detrimental to the interest of any organization. The substantive dynamism required in any organisation can be effected by moving around personnel so that at every stage substantive change in outlook and transfer can be brought about. Therefore, retention of employees is also a must.
11. But after having gone through the pleadings and examined the documents, we are of the view that by over sight or otherwise, the respondents have failed to take any of the actual situation arising from the rising level of Kochi, the posting of Shri Abdul Khadir despite the gap of 4 = years, the posting of three newly recruits to a station even though under the CML guidelines they would first posted to difficult areas and the cumulative effect is that the rationale and validity of Annexure A-1 order is to be doubted. Even though the respondents have canvassed a view that most of these developments had arising based on Annexure A-1 order and during the pendency of the litigation. It is to be noted that even though in July, the applicants were sought to be moved out on ground of surplussage of staff, it was found necessary to bring in Shri Abdul Khadir. The process of appointment of the new recruits in October, 2009 would have been in process for quite some time and therefore, the question remains as to how and why these were not taken note of in July, 2009. This is not the turning a blind eye to the fact that the applicants have had a long tenure at Kochi and to ensure dynamism in the organization an appropriate number of people should be moved out to prevent empire building. But the requirements that an employee should be rotated cannot be taken as giving a new lease of life to Annexure A-1 order in so far as the applicants are concerned. We therefore, having found that, Annexure A-1 order is not based on actual situations, quash Annexure A-1 order but at the same time we reserve to the respondents the right and power to redetermine the employee situation and the requirements at Kochi in accordance with the CML and other rationale deployment systems as at present. They shall take into account the service rendered by the applicants and its different length at each station in comparison with similarly situated others and shall pass a speaking order within three months next.
12. But in accordance with the indications in the CML, the transfer if any to the applicants shall be effected only in March 2011 according to guidelines and till then they have to have an undisturbed tenure at Kochi. After having looked into the matter, the respondents are at liberty to pass appropriate speaking order and shall serve it on their applicants within the aforesaid period of three months next. While doing so, rotation of employees between stations is a required must to ensure the integrity of the system which is to be borne in mind by the respondents. But at the same time, rational and transparent policies must permeate into the decision making policies so that heart burn among the employees can also be avoided. We permit the applicants to be in stations till March 2011 before which appropriate decision would be taken by the respondents regarding posting of the applicants keeping in mind the observations made above.
13. The Original Applications are allowed to the extent indicated above. There shall be no order as to costs.
DR K.B.SURESH K NOORJEHAN JUDICIAL MEMBER ADMINISTRATIVE MEMBER