Central Administrative Tribunal - Ernakulam
K.N. Santhakumar vs Union Of India Represented By on 15 December, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No. 180/01020/2016
Thursday, this the 15th day of December, 2016.
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
K.N. Santhakumar,
S/o. K.M. Narayanan,
Senior Superintendent,
Regional Passport Office, Kochi - 682 036.
Residing at : Regional Passport Office
Staff Quarters Site - 2,
Type-III/9, Perumanoor (P.O),
Kochi - 682 015. - Applicant
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India represented by
The Secretary to the Government of India,
Ministry of External Affairs,
New Delhi - 110 001.
2. The Joint Secretary (PV) &
Chief Passport Officer,
Ministry of External Affairs.
(CPV Division),
Patiala House Annexe, Tilak Marg,
New Delhi - 110 001.
3. The Deputy Passport Officer (Cadre),
Ministry of External Affairs,
(CPV Division), Patiala House Annexe,
Tilak Marg, New Delhi - 110 001.
4. The Regional Passport Officer,
Regional Passport Office,
Kochi - 682 036. - Respondents
[By Advocates : Mr. N. Anilkumar, Senior PCGC (R)]
The application having been heard on 08.12.2016, the Tribunal
on 15.12.2016 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The applicant is working as Senior Superintendent in the Regional Passport Office, Kochi under the 4th respondent. The applicant is aggrieved by Annexure A-1 Office Order bearing No. CDR.II/584/04/2016 dated 04.11.2016 issued by the 3 rd respondent, transferring the applicant from Regional Passport Office, Kochi to Passport Office, Ahmedabad during the middle of the academic year. In O.A. No. 991/2016 the direction was to the 2 nd respondent to dispose of Annexure A-3 with a reasoned order. Applicant argues that Annexure A-9 is disposed of only by the third respondent. Moreover, the contention of the applicant that his child is studying in third standard and that the transfer of the applicant during the middle of the academic year is against Annexure A-7 judgment of the Apex Court has not been considered at all.
2. The applicant was initially appointed as a Lower Division Clerk under the respondents on 26.02.1993 and posted to Trivandrum. Thereafter, the applicant was transferred to Kochi where he joined on 01.11.1996. Promoted from time to time, the applicant has now become a Senior Superintendent since April 2015. The applicantb�s wife is employed in the Kerala State Electricity Board at Fort Kochi as an Assistant Engineer. The applicant has a child of 9 years studying in the III Std. at Kendriya Vidyalaya, KV No.1, Naval Base, Kochi.
3. The applicant submits that the transfer policy of the respondent organization has been circulated under Annexure A-2 No. CDR.II/584/1/2015 dated 30.03.2015. Paragraph V of Annexure A-2 transfer guidelines, 'Representations, through proper channel with specific recommendations of the RPO concerned, shall be invited from all those officials who have problems in proceeding on transfer, especially because of critical medical reasons, for submitting the same before the Board. After the representation is disposed of, the official shall be kept informed accordingly well in time.' Highlighting the applicantb�s grievances, the applicant submitted a representation dated 08.11.2016 addressed to the 2 nd respondent, the competent authority, praying for cancellation of the order of transfer and for retention at Kochi. The applicant also submits that in terms of Para V(iii), 'DoPT guidelines regarding welfare measures while considering transfers of employees will be kept in view subject to administrative exigencies.' In terms of Para V(iv), 'Transfer shall be effected strictly based on the length of stay of the official at a station.' The applicant submits that in terms of the Government of India, Department of Personnel & Training Office Memorandum bearing No. 28034/2/97-Estt.(A) dated 12.06.1997 the husband and wife shall as far as possible be posted in the same station.
4. In Annexure A-5 Station Seniority List the applicantb�s name is at Sl. No. 4 and Sl. No.3 Shri Sethukumar is senior to the applicant as per the station seniority. The applicant submits that the posts of Senior Superintendents and Superintendents are interchangeable and they discharge identical duties and responsibilities.
5. The applicant submits that the direction in Annexure A-9 is to the second respondent to dispose of the Annexure A-3 representation with a reasoned order. There is no direction to the 3 rd respondent to dispose of the representation. The 3 rd respondent, is far lower in rank than the second respondent and he is the person who issued Annexure A- 1 order. We note that there is a recital in Annexure A-9, 'This issues with the approval of the Joint Secretaryb�&.'
6. Relief sought by applicant is for quashing Annexure A-1 transfer order.
7. Respondent in reply statement submits that the Joint Secretary (PSP) and Chief Passport Officer is the competent appointing authority of Central Passport Organization. Annexure A-9 order No. CDR.II/441/14/16 dated 05.12.2016 has been issued with the approval of the Joint Secretary (PSP) & Chief Passport Officer. The applicant is continuing at Regional Passport Office, Cochin since 01.11.1996. He has not been transferred for the past 20 years. Now on Administrative Exigency he has been transferred to Passport Office, Ahmedabad for 2 years only. The Superintendent and Senior Superintendent are in two different grades with different pay scales. Senior Superintendent is the next promotional grade of Superintendent. Both the grades have different sanctioned strength in Passport Offices and their station seniority list is also prepared separately in all the Passport Offices for the purpose of transfer. Transfer among Passport Offices has been made on the basis of (i) grade wise sanctioned strength of each office and (ii) Transfer Policy Guidelines 2015. Accordingly, Shri K.N. Santhakumar, Senior Superintendent has been transferred to Passport Office, Ahmedabad. Moreover, 14 other Superintendents have also been transferred from Passport Office, Cochin to other Passport Offices on this basis.
8. Regarding contention of Superintendents continuing from the year 1992, these persons joined the Passport Office as Casual Labourers on various dates in the year 1992 and after becoming successful in the Special Qualifying Examination conducted by Staff Selection Commission held in 1993, they were subsequently regularized as LDCs on 06.10.1994. Consequent to this Tribunalb�s order in O.A no. 1557/1998 they were granted notional fixation from the date of initial engagement. No monetary benefits or seniority for the said period was granted to them hence the casual period has not been treated for calculating length of stay. Moreover, this Tribunal vide order dated 05.11.2007 in O.A No. 586/07 and 587/07 filed by Smt A.G. Geetha and Smt K. Suseeladevi, former officials of Passport Office, Cochin found that state wise seniority of such persons will be counted from the date of regularization only. Hence, the applicant is senior to them as he joined service on 26.02.1993 as an LDC where the others were regularized as LDCs from 06.10.1994 only. The transfer was an administrative decision taken by the Transfer Board Meeting as per guidelines prescribed for this purpose. Moreover, the applicant is now a Senior Superintendent which is a different grade with different scale of pay and he is the senior most in terms of station seniority.
9. Respondent would argue that 14 similarly placed Superintendents have also been transferred based on station seniority in the cadre of Superintendents, out of which 13 Superintendents have been relieved and the remaining Superintendent will be relieved shortly. All 13 Superintendents who are relieved on 05.12.2016 are ladies. So it would an injustice to all those Superintendents who are already relieved if Shri K.N. Santhakumar is afforded any kind of relief. Shri S. Senthukumar Senior Superintendent who had joined the station on 16.01.1993 is senior to him based on the length of stay. However, Shri S. Sethukumar is a physically challenged person. As per the DoPT O.M. No. 36035/3/2013-Estt.(Res) dated 31.03.2014 the persons with disabilities are exempted from the rotational transfer policy/transfer and are allowed to continue in the same job, where they would have achieved the desired performance.
10. The respondent argues that the representation made by the applicant to the Chief Passport Officer on 08.11.2016 was disposed of vide Ministryb�s order No. CDR.II/441/14/16 dated 05.12.2016 after carefully considering the facts mentioned in the O.A No. 991/2016. The applicant was on duty on 05.12.2016 at Passport Office, Cochin and received the Ministryb�s reply. However, he refused to accept the relieving order. Hence, the relieving order has been sent to the applicant at his residential address and also to his e-mail [email protected]. The applicant is already relieved of his duties on 05.12.2016.
11. Heard the learned counsel for the applicant and respondent and perused the written submissions. We note that as per Tribunal's order in O.A No. 991/2016 applicant has been given a chance to submit a representation and the same was considered and reply furnished. Hence, para V of Annexure A-2 transfer guidelines stand covered. Further para V of Annexure A-2 states that representation can be made by persons who have critical medical conditions. Applicant in the O.A does not make any arguments on this ground and is not covered by Para V.
12. The applicantb�s wife is an employee of State Government and so she cannot be expected to be employed outside the State of Kerala. On this ground applicant, who is in a transferable job, cannot expect the respondent to retain him in Kerala State for the entire 35 and odd years of his career. We also observe the use of the phrase in the GOI order that husband and wife shall ' as far as possible be posted in the same station'. This consideration has been extended by respondent for 20 years, under the GOI orders of husband and wife posting together. Such a consideration was extended to the applicant since 26.02.1993 by posting in Trivandrum and since 01.11.1996 till date in Kochi. The applicant has been given the benefit of this order for 20 years and so he cannot expect stretching of this concession for his entire career. Further the respondents also bring to our notice that 13 Superintendents similarly placed, who are ladies and covered by the same transfer order as applicants, have been relieved on 05.12.2016 to join their new place of posting. Hence a different consideration and treatment cannot be given to applicant. The applicantb�s child is studying in Class III in Kendriya Vidyalaya. The KV schooling system was created so that transferable employees can educate their children in any KV located in any part of the country, as the schools will be following the same syllabus. Applicant has not made out a case that there is no KV in the place of his posting or that the KV syllabus is different in the place of posting.
13. The Apex Court has in UOI and others V. Muralidhara Menon and another (2009) 9 SCC 304 held that transfer is a well known incidence of service and an employee has no right to be posted in a particular place. In this case applicant has spent over 20 years in Kerala State. In various other O.Ab�s filed by applicants from the Passport office before the Bench, we notice that approximately 70 persons have been transferred out from Kerala to various places, in the interest of service. Hence, there cannot be any argument of discrimination or malafide on the part of the respondent in respect of applicant. Transfer guidelines are for guidance. It does not confer upon an employee any enforceable right or immunity from transfer, specially since there is no doubt that he has spent an extraordinary length of time in Kerala State, may be on account of his wife being in Kerala State service. But this would not confer on him a right for permanent posting throughout his career in Kerala State.
14. Who should be transferred and where should be transferred is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafide or in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the respondent should keep in mind the guidelines issued by the government. But having availed the facility of such guidelines for 20 years, applicant cannot be expected to seek the facility in perpetuity. A government servant belonging to a service which is prevalent all over the country, has no vested right to remain posted at a place of his choice. He is liable to be transferred in administrative exigencies from one place to the other. In this case, the administrative exigency is being exercised out of the state for the first time in twenty years of his service. In Rajendra Singh v. State of UP (2009) 15 SCC 178 the Apex Court has held that :
'transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as conclusion of service, in the absence of any specific indication to the contrary. No government can function if a government servant insists that, once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. This would not be conducive to public interest.'
15. Any competent authority would have to distribute available manpower among the offices under him, firstly to man those offices, and secondly to ensure that no person works for such a long time that he develops a vested interest. Further, moving among different offices will also help to spread the best practices in the office to other offices and learn the best practices of the transferred office. Applicant has not brought to our notice any violation of statutory provision or anything to indicate malafides. Hence we do not see any merit in this O.A.
16. Original Application is dismissed. No order as to costs.
(Dated, this the 15th day of December, 2016.)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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