Central Administrative Tribunal - Kolkata
Arun Kumar Biswas vs M/O Defence on 9 October, 2018
11 o.a. 1712 of 2017 CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTFA BENCH, KOLKATA L B RAk] No. O.A.1712 of 2017 Coram : Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. Nandita Chatterjee, Administrative Member Arun Kumar Biswas, Son of Late Amulya Charan Biswas, Aged about 57 years, Working as Senior Scientific Officer-Il, Office of the Directorate of Quality Assurance (Metals &Epis Xest a11n 743 &/kAwL\ nt.
nce, on, mentof I Ministryt1J'Thënce, Nirman Bhawan, Delhi --110011.
The Additional Director General Quality Assurance, Directorate of Quality Assurance (Metals& Explosives), P.O. - Icha pore - Nawabganj, Dsit. - North 24 Parganas, West Bengal, Pin : 743 144.
Shri L. R. Sankla, Senior Scientific Officer-Il, Directorate of Quality Assurance (Naval), 2 o.a. 1712 of 2017 West Block-5, R.K. Puram, Sector-I, New Delhi --110066.
Respondercts.
For the applicant Mr. S.K. Datta, Counsel Ms. A. Roy, Counsel For the respondents Mr. A.K. Chattopa.d:hyay, Counsel Reserved on : 09.08.2018 Date of Order : Cfl0 Q92018
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Bidisha Banerjee,JudicialMember 1
Aggrieved(vJthis transe tQ I?à lo Ne.w b 1 at is end of
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service, 4iitF1ss than icant aSnior.S entific
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Office rlI in -D.GQA has fi-led
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"8.( .:An order qiasl "or st4iiigasid tderdated:31.8. l7so .:-*-
far he aiLa: es pCñdënt'N o7 bncerned.
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:n order qu i'osetig a e purporte lion of
the prayer of the. a .or -+retèntjn-- @pore as we made
against the .trãnsfer :oAn-the corn ication
dated 7 122017 and th coñnica1
n dated
7.12.2017. -' :F
An order directing the bffici-al Rspopdents to lfow the applicant to continue at lchpore in view of theprayer (a) and (b tabo An order directirig.-the r_espondents toproduce/ cause production of all relevant records •-....
Any other order or further order/ orders as to this Hon'ble Tribunal may seem fit and proper."
2. The transfer order was stayed by this Tribunal with the following order:
"Mr. S.K. Datta, Id. counsel appearing on behalf of the applicant submits that at present the applicant is working as Senior Scientific Officer (S.S.O.) Gr.11 at lchhapore and vide order dated 31.08.2017 the applicant has been transferred from lchhapore to Delhi. Mr. Datta further submits that in pursuance of the cadre review in respect of Group 'B' and 'C' DGQA Organisation, the applicant was redesignated as SSO 11- in the pay
3 o.a. 1712 of 2017 scale of Rs. 15600-39100 (Grade Pay Rs. 5400/-) in PB-3. However, the applicant was intimated by the respondent authorities that the. financial benefits could not be granted to him till now as the matter has not yet been finalized or concurred by the DOPT/Ministry of Finance. Mr. Datta submits that although the applicant is being treated as SSO-ll, the facilities in terms of the Group 'A' post have not been given to him, but the transfer order has been issued as per the policy for Group 'A' employees. As per Mr. Datta, if the financial benefits are counted, the applicant does not fall under the Group 'A' category and if the applicant is considered as Group 'A' then the provisions of Clause 10 (a) and (d) of "POSTING/TRANSFER POLICY IN RESPECT OF GROUP 'A' (DQAS & PSSO CADRE) OFFICERS OF DGQA"
dated 24.11.2016 (Annexure A-3) should have been followed while issuing the order of transfer which was not done in case of the applicant, therefore, the transfer order dated3108.2O17 (so far as the present applicant is concerned) has tbee1 'isued yiolfiithe provisions of the Posting and Tansfer1?OIi, fo àu nsq IDGQA., therefore, the transfer order3b2h7 (in case of the app c(n Le'hl y)i.bad in law and is liable to be setaide. Mr. Qattaftther-submits thate1ng aggrieved by the I transfer ordedated 31.08:20i7 the abIicnt made a repréentation to the authorities concer.néd.. on .7.O2.-'201 nnexure ~ -44 _ piaying for reonsidation offlifs ce fir Riseiiort iftapur foie yar on the goundf his sos çt Jbcaii r?dfdkilIIss!ut his Fhs been ..f -... _ ,reJeLd. Finding no thraIternativtt.heppticant has - tome to this Tribunal seekinffl ri IWO
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-•- . F • .lssue notice to .th-e- espondapt.s returnable within 4weeK. The rL I respondents are ganted4 we:ksftnne tôfileepty. The appiiant may file 4 rejöindér, if any, within'2 \f F Mr. SDatta ld.0 prays for an I interim p5otectioandstay of thWtrhsfer 9der aed31 08 207 (in case of the .. . .,...
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iihmitc th u1J1JIlaa,. uio iuii.t yei ueeri reIesed frofntOa h.e psent place of gtig M>t h# drawn my attentiOn t&Claue 10 a) '?.Q$TING/TJNS;ER POLICY IN RESPECTOF GROUP 'ADAS-& OF DGQA"
dated 24 11a2016 (Annexure A-3) which read asfilows "10. Exemi5tion.from . transfer underR-TP Officers (other than SAG and above) having 02 years or less service for superannuation will be exempted from rotational transfer;
Request of an officerfor retention at a station maximum by 01 year may be considered on grounds of education of his/her children once in entire service career."
According to Mr. Datta, the respondents have not taken into consideration the aforesaid clause while issuing the transfer order against the applicant, therefore, the transfer order dated 3108.2017 (in respect of the applicant) should be quashed. He further submits that if the transfer order is not stayed, the applicant will face irreparable loss and injury which cannot be compensated.
4 o.a. 1712 of 2017 On the other hand, Mr. A.K. Chattopadhyay, Id. Counsel for the respondents argued that there was no question of malafide againt the applicant and the transfer order has been issued to him by following the relevant rules and guidelines in force, therefore, no interim protection should be given to the applicant. In support ofhis statement he relied upon a decision of the Central Administrative Tribunal, Kolkata Bench dated 08.09.2017 passed in O.A. 350/675/2017 and submits that the applicant's case is not sustainable in the eye of law in view of the said decision. He furth'er relied on Clause 6 of "POSTING/TRANSFER POLICY IN RESPECT OF GROUP 'A' (DQAS & PSSO CADRE) OFFICERS OF DGQA" dated 24.11.2016 (Annexure A-3) which read as follows:-
"6. The total cumulative tenure of any officer in the same station shall not exceed 12 yearsin entire service career. Further, no officer should be postd..hack to the same s t a t i o n within next 03 years of his transfer I periaiofthe "POSTING/TRANFER S J Y .RESPECT OF GROUP 'A' (DQAS & PSSO çADE) OFFICERSOF qGQA" dated 24 11 2016..(Annexure A-3)l find that hl HS ing the transfer order dated 31 08 2017 againsthe a3'plicant , therespdndents did not consider the Clause10 (a) and () and stescec' onIyon Clause 6,of the same c C-onsiderir 0 the-facts ind-t-ircustaices'6fjhe case,M- d hat fair
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play on the part'of the respondçhtánot_been4posed wh issuing the transfer order dated.. 31 082O17-,aginst -the aIicant I find th,t the applicant has prayed fur is tentionat lchhapur on the groundof his son's education arfd wife s illness 1óreovej9he is on verge of retirement In my viiiit ... is a primafaie fiq,âe to entertain..by granting .
interim protectipn, othêtWise the appliGaiWWill.-face f1 ç irreparable lbss and injury which- cannot be con ñsate'dThe,bIancftbf,,convenie.nce is in A-
)ur of (
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Accdçdingl'ç. th"-i.rppugned :J or1et .dated/31.08.2017
(Annexure A/7) so far as tIi.pIiant cern ./and,fhe impugned
communication dated 07.' Or7 (A3i i0).sFII be kept in
abeyance till the next date The respond re g(iF liberty to pray for
vacation/mod ifition/variity/tantëIij :helnterim order, if they so
desire. List the matter & - 27:03.2018.....
3 The applicant has claimed that he is notenjoying the status of a Groups 'A' officer or SSO II and therefore Rotational Transfer Policy (RTI in short) shall not apply to him.
4. Per contra the respondents have submitted in their reply as under:
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5 o.a. 1712 of 2017 "(i) Rotational Transfer Policy has been existing in DGQA Organization since long and DQAS officers of the organization are routinely transferred under this policy. The aim of the policy is to avoid development of nexus of the officers concerned with unscrupulous elements in the environment and, simultaneously, expose them to multifarious aspects of working in the organization. In the best interest of the organization some small changes have to be incorporated in the Rotational Transfer Policy from time to time.
Erstwhile Rotational Transfer Policy in respect of Group - 'A' Officers alongwith iSO, of DGQA was issued vide DGQA HQ Letter No. 6(5)199/ D(QA) dated 291h October, 1999 which was revised by Ministry of Defence vide its Order No.43(1)/D(QA)/DGQA/ Adrn-7B/ 2016 dated 24th Nov., 2016. In the revised Policy, there was no mention about iSOs since on cadre review, the post of iSOs were already merged with SSO-ll, the entry grade for Group - 'A' (The letter dated 29:10:99and 24.11.2016 are annexed hereto and marked with lette r R-i collectivjy
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(u) On merger of the posts of iSO and 'S'O-II th autorization of the post ofSSO-lIâsbeen increased ..whereas the aU oizat1cn for iSO have become oJicy is now applicable only to GropA offker Inlud)ng SShO-ll who w.ee earlier JSOs of I - -' DGQA The revisedtransferpolic isrlegallynd 1ministratrvely sund and r _,* .
has the prior appjoval of the crnpetnt iuthorityof Government of India Accor'dingly, the'RotationaLTransfer Poli is-applitable to"-'aII)Grobp - 'A'
-r Z., irrespet'ive ofwh'thrtheywe}e recruited at the entry of SSO-ll or upgraded froTh ISO to SSO II' lhe pc5licy isreasoiabIe and"cogent1 within the frame work of maintaiiiiri0 organizätio'nal interê.t) I • ..
Mere delay in pay fixat'cn cduld notIbconsiderd as a sustainable round forestabIishing thatnc applicant does otçome under Group - 'A' Since the date of p reverences a Gp-
A officer is discharging 1igher re'phsibility ptSSO;ll' \
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5 That apart the responderts haveem5Fati;alIy adrnied asunder
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"The pay proposal irepectof the arnirper PB-3+GP 5400/- was forwarded. However the p orTseen accorded by the audit authority to the applicant, as yet, and applicant is being paid as per PB-2 with 5400/- as granted earlier under MACP. It is a time consuming process as it is a case of merger and therefore a special one."
Nevertheless, they have also averred that-
"On the ground of delay in fixation the conferment of benefits of Gp-A service can not be denied by the applicant as officer is enjoying all the benefits of Gp-A cadre since the merger such as medical facilities, CGEGIS etc. Hence the averments made by the applicant are irrational not tenable."
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6 o.a. 1712 of 2017
Further, as far as applicability of exemption under educational ground of
6. daughter of the applicant is concerned respondents have pointed out that-
"At the time of considering the cases of RTS with relevant facts and figures the empowered Committee noticed that as per his claim his son would appear in the Class X Exam 2017 (CBSE), therefore by the time posting/transfer orders are issued he would have even cleared the board exam. Under such circumstances the education ground of son did not have enough merit't-o postpone the RTS."
7. The respondents have further averred Cz I -
"Para-5 of the.postin. order dated 31St A'uut#2Pi7 m it amply clear that no change%j posting order on any grounUqu entertained.14
hoffrs ere required completed
Further th emovem
within onmonth Hu 'ter afterconfirrningthe availab )acancy the
officer has asked about thedate Qf SOS bt ii€ lurnishe redl. Instead
he rushed to this Hnri'bleTribunal"
- - • I ' ••• In retard to the applicant s daim thRt because of nori"fixation of .--, • . •. •;.F- -.
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appropriate pay he doesnotcorne tinder the purvie'N of Gro'ip the
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respondents have averred tha
a
AM-
jr ias.;nbt tenable in the êól if it was
"S ch co,iten
assumed thaf )Ias'1bt.placed a Gp- 'A'.officer, 0-Il then
surel would--, e been a JSO (under Gp- a merger,
ill would havè .been- gérned bIicy ot Gp- 'A'
resultantly he
officers that v' invogue under the earlier RJ.S X gg."
The respondents have alleged that the applicant has made an "irrational attempt to mislead the Hon'ble Tribunal", Since "upon cadre review the posts of iSO have merged. with SSO-lI increasing the number of posts of SSO-KK while bearing no post of iSOs, and thereafter is no scope to consider the applicant as .a Group 'A' officer. Either way he is well within the ambit of RTS".
Further All 7 o.a. 1712 012017 "As per existing Rotational Transfer Policy in respect of Group- 'A' officers along with iSO's of DGQA, the maximum period of service rendered in the same station is 12 years, while the applicant is stationed more than 25 years in support at the same place. Copy of service details (R-3) has been used."
9. Lastly they have banked upon the decision of Hon'ble third Member in O.A. 675/17 as extracted hereunder:
"3. The terms of reference including difference of opinion between Hon'ble Members of Division Bëñch"cornprising of Hon'ble Mr. A.K. Patniak, Judicial Member and Eon'bleMsJa,,)Paifi as Guta, Administrative Member on which Hon'ble rMembr ! of thre'a,d Bench expressed their difference of opinip, i cj'uoted herein below E
(i) ëther a nyrii dp.o.n a tranfr shoCild be passed : •,. •11.
when it -. is snot extreinely .wr.gent wItpu getting the . instruoft'o from theirep9rdentUthorities .sper section 24 r ofAdmInlstrativerTribunalTAc19S5 Wheethe. :t. n anexeorder cut of L ' ' trae.t has reeatedly p laid MEN do nthat owerjudici -.ievi no .
inte'rfeié&e in the'sfer order*., i?td"be made ui'1ëss --(l) itis . / passe1by an.approprrnte authoritll) it smak s of malafide and (llli)it Is?agnst any stitut' i ,a• f 10 Hnng considered the' ri ya l contention in the4for&said bckdrop we are of •F ( . .ç.
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the considred o'piniotcthat thapplicant ho'has. alrecy ayecat the same Im '-'' .•. A na station for25 years''does not aser've a'ny further b'nedic'6on impelled by extraneous considerati&Q.A. isTPef5?flnissedcosts
11. However, before we part we would acid in haste that the applicant may immediately join his place of transfer and with less than two years to retire he may seek his transfer back to facilitate early clearance of his retiral benefits and to settle down peacefully on his retirement.
(Dr. Nandita Chatterjee) (Bidisha Banerjee) Administrative Member Judicial Member