Central Administrative Tribunal - Delhi
Dr. Adarsh Singh S/O Shardool Singh vs Union Of India Through on 29 October, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.218/2010 This the 29th day of October, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. Adarsh Singh S/O Shardool Singh, R/o SDM Quarter, Amarpur, South Tripura, Tripura. Applicant (By Shri A. K. Behera, Advocate ) Versus 1. Union of India through Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Government of India, North Block, New Delhi-110001. 2. Chief Secretary, State of Tripura, State Secretariat, Agartala. 3. Chief Secretary, State of Manipur, State Secretariat, Manipur. Respondents ( By Shri Pranab Prakash for Respondent No.2, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Dr. Adarsh Singh, the applicant herein, is an IAS officer of 2007 batch who has been allocated to the Manipur-Tripura joint cadre of the Service. On 30.12.2008 he married Ms. Sheetal Verma, also an IAS officer of the same batch, who was allocated to the Uttar Pradesh cadre. Making his marriage as the ground for change of cadre from Manipur-Tripura joint cadre to UP cadre, the applicant made representation for the same on 11.1.2009. The Government of UP gave no objection for the cadre transfer of the applicant to UP cadre on 13.3.2009. The Government of Tripura, however, sent a letter dated 20.2.2009 to the applicant asking him to continue in Tripura and instead ask his wife to apply for change of cadre to Tripura. When the representations made by the applicant against the letter aforesaid brought no tangible result, present Original Application has been filed to quash the same and in consequence thereof to direct the 2nd and 3rd respondents to accord their no objection for inter-cadre transfer of the applicant to the State of UP.
2. The applicant, as mentioned above, is a 2007 batch IAS officer allocated to the Manipur-Triupra joint cadre of the Service. He married Ms. Sheetal Verma, also a member of the Service, who was allocated to the UP cadre as an insider, UP being her home State. As per rule 5(2) of the IAS (Cadre) Rules, 1954 (hereinafter to be referred as the Rules of 1954), the Central Government may with the concurrence of the State Government concerned transfer a cadre officer from one cadre to another. Vide office memorandum dated 8.11.2004, keeping in view rule 5(2), the 1st respondent specifically provided for inter-cadre transfers on the ground of marriage to another member of the Service. Rule 5(2) of the Rules of 1954 and the memorandum referred to above, insofar as the same may be relevant, read as follows:
5(2) The Central Government may, with the concurrence of the State Governments concerned transfer a cadre officer from one cadre to another cadre.
2. In recent practice, this Rule has been invoked only in cases of marriage between the All India Service(s) officers. There have been cases where following marriage one officer has moved to the cadre of his or her spouse. There have also been cases where both spouses have moved to a third cadre. The policy in this matter has been reviewed in detail and a view taken, with the approval of the Prime Minister, as follows:
(i) Inter-cadre transfer shall continue to be permitted for members of All India Service officers on marriage to another member of an All India Service, where the officer or officers concerned have sought a change. Inter-cadre transfer shall also be permitted on grounds of extreme hardship in the rarest of cases.
(ii) Inter-cadre transfer shall not be permitted to the home State of the officer.
(iii) In cases of inter-cadre transfer on grounds of marriage, efforts should be made in the first instance to ensure that the cadre of one of the officers accepts his or her spouse.
(iv) Only in instances where both States have refused to accept the other spouse will the officers be considered for transfer by the Government of India to a third cadre subject to the consent of the Cadres concerned for such transfer.
(v) Inter-cadre transfer shall not be permitted to All India Service officers on marriage to an officer serving in a Central Service/State Service/Public Sector Undertaking/any other Organization. The memorandum aforesaid, it is stated, has been further reiterated by the 1st respondent vide office memorandum dated 30.9.2009. In the memorandum aforesaid with the caption Posting of husband and wife at the same station, it has inter alia been mentioned that in view of the utmost importance attached to the enhancement of womens status in all walks of life and to enable them to lead a normal family life as also to ensure the education and welfare of the children, guidelines were issued by DOP&T vide OMs dated 3.4.1986 and 12.6.1997 for posting of husband and wife who are in Government service, at the same station, and that on 23.8.2004 instructions had been issued to all Ministries/Departments to follow the above guidelines in letter and spirit. It is also mentioned that in the context of the need to make concerted efforts to increase representation of women in Central Government jobs, these guidelines had been reviewed to see whether the instructions could be made mandatory, and it had been decided that when both spouses are in same Central Service or working in same department, and if posts are available, they may mandatorily be posted at the same station. The consolidated guidelines that came to be issued by observing as above, and insofar as they may apply to the facts of the present case, the same read as follows:
(i) Where the spouses belong to the same All India Service or two of the All India Services, namely, IAS, IPS and Indian Forest Service (Group A);
The spouse may be transferred to the same cadre by providing for a cadre transfer of one spouse to the Cadre of the other spouse, on the request of the member of service subject to the member of service not being posted under this process to his/her home cadre. Postings within the cadre will, of course, fall within the purview of the State Govt. On the basis of the provisions contained in rule 5(2) of the Rules of 1954 as also office memoranda dated 8.11.2004 and 30.9.2009, the applicant made representation for change of his cadre from Manipur-Tripura joint cadre to UP cadre. The representation was sent to all the three respondents, duly forwarded by the Lal Bahadur Shastri National Academy of Administration, Mussoorie vide covering letter dated 11.2.2009. On the basis of the said representation, the Government of Uttar Pradesh gave no objection to accommodate the applicant in its cadre vide letter dated 13.3.2009. On 16.3.2009, however, the applicant was served with communication dated 20.2.2009 from the General Administration Department of the Government of Tripura requesting the applicant to continue in Tripura part of the joint cadre and to ask his wife to apply for a cadre change to Tripura part of the joint cadre. Aggrieved of the letter aforesaid, the applicant made several representations to the Government of Tripura for review of their decision, but when the same were cold shouldered, present Application was filed for the reliefs as already indicated above.
3. All the respondents in the OA have been served, but appearance has been put in only by the State of Tripura, the 2nd respondent arrayed in the OA. Before we may, however, refer to the counter reply filed on behalf of the said respondent, we may mention that Manipur segment of the combined Manipur-Triupra cadre has also given its consent for change of cadre of the applicant to UP cadre vide letter dated 20.8.2009. In the reply filed on behalf of the 2nd respondent, it has inter alia been pleaded that the applicant appears to be basing his submissions on the OM dated 30.9.2009 issued by the Government of India, according to which the spouses are to be mandatorily posted at the same station. Such OMs, it is pleaded, can only supplement the rules and cannot override the statutory regulations which mandatorily require concurrence of the State. It is also pleaded that the applicant has challenged the Government of Tripuras letter dated 28.2.2009, which would indicate that it was only a request to the applicant, which can hardly be deemed as an order to be challenged as envisaged under Section 19 of the Administrative Tribunals Act, 1985. It is the case of the respondent that the applicant, in view of the cadre position, has only been suggested that his wife could apply for change of cadre to Tripura part of the joint Manipur-Tripura cadre. Tripura State is said to be facing shortage of IAS officers and many of the cadre posts are stated to be remaining unmanned for this reason. There would be no need to further refer to the pleadings made in the written statement as the main plea on which the cause of the applicant is being contested is the shortage of IAS officers in the State of Tripura. When this matter came up for hearing on 17.9.2010, learned counsel for the parties sought time to place on records some more documents. They have indeed done so. We may only make reference to some of the documents placed on records by the applicant, as the documents placed by the respondents have not been adverted to during the course of arguments. The applicant sought information under the Right to Information Act. He required to know as to how many officers of the IAS had sought change of cadre on marital grounds since 1970; how many of them had been accepted, how many had been rejected and how many were pending. He also required to know the grounds of rejection and pendency. The information given to the applicant on the queries as mentioned above is as follows:
As per available records of the Department, 9 (nine) Direct Recruit IAS Officers have sought change of cadre on marital ground since 1970 till date. Out of them, applications for cadre change of 7 (seven) officers have been accepted and applications of 2 (two) officers are under consideration of the Govt. at present.
Year-wise details thereof:
Year No. of Officers sought for change of cadre Accepted Pending 1970-1991 Nil Nil Nil 1992 1 1 -
2001 1 1 -
2003 1 1 -
2005 2 2 -
2006 2 2 -
2009 2 - 2 TOTAL 9 7 2 We are told during the course of arguments that the two cases pending are of the applicant himself and one is of Shri Shashak Mishra, who too filed a similar Application bearing OA No.2/2010 before the Guwahti Bench of the Tribunal, which has since been allowed vide order dated 29.4.2010. The applicant has also brought on record the cadre strength as on 1.1.2010, in a tabular form, which would show the cadre strength in each of the State in the country and the shortage thereof, if any. It would be seen from the chart aforesaid that there is shortage in the combined cadre strength of direct and promotee officers in almost every State. The combined cadre strength of Manipur-Triupra is 198, whereas officers positioned in the State are 154.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Change of cadre on the basis of marriage is governed by rule 5(2) of the Rules of 1954 and the instructions that have been issued in that regard from time to time, and in particular the instructions dated 8.11.2004 and 30.9.2009. Rule 5(2) and the relevant part of the instructions have since already been reproduced above. The only embargo in the change of cadre is that either of the spouse cannot, by marriage, shift to his/her home cadre. Once, shortage of officers in a particular cadre is not a ground to refuse the request of an officer for change of cadre, in our considered view the respondents cannot refuse permission sought for change of cadre. We would have further delved on the issue, but we find that a similar controversy came to be debated and adjudicated by the Tribunal at Guwahati Bench in OA No.2/2010 in the matter of Shashank Mishra v Union of India & others, decided on 29.4.2010. The facts of the case in hand and the one subject matter of decision before the Guwahati Bench are absolutely identical, with the only difference that whereas the applicant is seeking change of cadre from Manipur-Triupra joint cadre to UP, the applicant in OA aforesaid, after his marriage to Ms. Ruchika Srivastava, was wanting change of cadre from the joint Manipur-Tripura cadre to Madhya Pradesh. As to whether the State could impose a condition as has been imposed in the present case, i.e., the wife of the applicant rather shifting to the Manipur-Tripura joint cadre, the Honble Bench observed as follows:
Another corollary issue which would require determination is whether the State concerned could impose a condition which is not circumscribed in the policy governing the field. In our considered view cumulative reading of policy for change of cadre read along with IAS (Cadre) Rules, 1954 do not leave any scope or field for the State Govt. to introduce a condition as prescribed vide impugned communication. Rules as well as Policy did not give liberty to the State requiring an All India Officer, who has applied for change of cadre, to either suggest or insist upon his/her spouse to apply for a cadre change to said State. If such a situation is allowed to happen, it would give an arbitrary, illegal & unjustified power to a State to deny such consent on pick & choose policy for no cogent reasons. On the issue as regards shortage of officers in the States of Manipur and Tripura, the Bench observed as follows:
11. The basic plank of objection as we understand for opposing the relief as prayed by the applicant is that: there is shortage of IAS officers and many of cadre posts are remaining unmanned. In our considered opinion, when the policy makers in their wisdom provided for change of cadre on the ground of marriage to an officer of All India Service, any attempt on the part of State Government to whittle down the same on the specious plea of shortage of IAS officers and many posts remaining unmanned etc. would be contrary to the avowed object of said policy framed by the competent authority. The aforesaid policy is erected on the edifice of sociological norms which are based on the Biblical dictum: What god hath joined together man cannot caste asunder. Conformably with this dictum cognition is accorded to this policy, by the issuance of O.M.s on the subject, irrespective of the class and group to which the govt. servant belongs to.
The question of shortage of IAS officers and many cadre posts remaining unmanned, first of all would have been foreseen by the maker of said policy and in any case such issue is in the realm of cadre management of the particular cadre, and there are many ways prescribed under the concerned regulations to cater such needs & the manner in which such eventualities should be addressed. When the particular concerned State has not been vigilant to address such aspects of cadre management, its negative consequences cannot be thrust upon the officer who had no role to play in the said aspect of cadre management. We cannot overlook another significant aspect of the matter namely that no objection has been granted by another segment of the Joint Cadre as well as State of Madhya Pradesh, where he has sought cadge change. On the face of aforementioned facts as well as the legal provisions as discussed above, the impugned communication of the State of Tripura clearly seems to be an exhibition of utter defiance of the avowed policy of the Central Government. There is no virtually no cogent & legal reason assigned by the State. Rather the Respondents Nos. 2 & 4 have innovated novel method to undermine not only the humane aspects but also negated the mandate of the policy on the said subject. Law is well settled that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question & the decision or conclusion arrived at. {see: (2003) 4 SCC 364, Chairman & M.D. United Commercial Bank & Ors. v. P.C.Kakkar}. So called justification provided is no just and valid reasons. In our considered opinion no proper or just reasons have been assigned & therefore the mandate of law as laid down in P.C.Kakkar (supra) have been violated with impunity. We are in respectful agreement with the view taken by the Guwahati Bench in OA No.2/2010. We may only add that OM dated 30.9.2009 further strengthens the case of the applicant. The guidelines contained in the memorandum aforesaid have come about after taking into consideration the need of posting of husband and wife who are in same Central service, at the same station.
5. Before parting with this order, we may only say that once, change of cadre is permissible and it is open to either of the spouse, it is but natural that the application for change of cadre would come from the spouse who may not be very happy with the allocation of his/her cadre and/or where the allocation of the other spouse may be in a better State, but once, it is permissible for either of the spouse to make a request for change of cadre irrespective of favourable, more favourable or still more favourable State, no distinction can be made on that count.
6. Finding considerable merit in the present Original Application, we allow the same. Consequently, we direct the 2nd respondent to accord permission to the applicant to change his cadre from Manipur-Tribura joint cadre to UP cadre, as expeditiously as possible and definitely within a period of three weeks from receipt of certified copy of this order. The applicant, it may be recalled, had made request for change of cadre on 11.1.2009, and thus a considerable period has already gone by. The justified demand of the applicant has been sought to be negated in an indirect manner for a period of more than one and a half year. Thus, time bound directions, as mentioned above.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/