Central Administrative Tribunal - Hyderabad
S Krishna Kishore vs Principal Controller Of Defence ... on 26 March, 2024
OA/489/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/21/489/2023
HYDERABAD, this the 26th day of March, 2024
Hon'ble Dr. Lata Baswaraj Patne, Judicial Member
S. Krishna Kishore S/o. S. Narasimha Murthy Aged about 50 years,
Occ: Accounts Officer in the Office of the Integrated Financial Advisor,
43/44, ED Air force Station, Hakimpet, Secunderabad,
R/o. D. No. 2-1/25, Narasimha Mani Nilayam, Near Pochamma Temple
Cheeryal Village, Keesara Mandal, Hyderabad-501301.
...Applicant
(By Advocate: Mr. K. Srikanth)
Vs.
1. Union of India Rep. by the Secretary to Government,
South Block, Ministry Defence, New Delhi 110011.
2. The Controller General of Defence Accounts, Ulan Batar Road,
Palam, Delhi Cantonment - 110 010.
3. The Controller of Defence Accounts, Secunderabad.
4. The Integrated Financial Advisor (IFA),
O/o. IFA (Air Force) 43/44 ED, Secunderabad - 500 014.
(under the administrative control of IFA HQ MC Nagpur).
5. The Area Accounts Office, Navy, Goa
(Under the Administrative Control of PCDA (N) Mumbai).
...Respondents
(By Advocate: Mrs. B. Gayatri Varma, Sr. CGSC)
----
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OA/489/2023
ORAL ORDER
(As per Hon'ble Dr. Lata Baswaraj Patne, Judicial Member) By this OA, the applicant sought the following relief:
"i) Call for all the connected and relevant records relating to the Office Order tenure/2023/TR-10 No. dt. AN/II/2153/Trf-
posting/Hard. 04/07/2023 and consequential proceedings no. AN/11/2153/Trf-Posting/Rep/Vol-XI/2023 dt. 11/08/2023, both issued by respondent no.2 and quash or set aside the same in so far the Applicant concerned being arbitrary, illegal, without application of mind and violative of Articles 14 and 21 of the Constitution of India;
ii. Consequently, direct the Respondents to retain the Applicant at Hyderabad and permit him to continue to discharge his duties as an Accounts officer and pass such other and further order or orders as are deemed fit and proper by this Hon'ble Tribunal under the circumstances of the case."
2. Brief facts of the case are that the applicant was appointed as Auditor on 01/07/1998 in the organisation of the Controller of Defence Accounts, Secunderabad in the office of the Pay & Accounts office (ORS), Electrical & Mechanical Engineering (EME), Secunderabad. The applicant was further promoted to the rank of Senior Auditor on 01/03/2004 and to the rank of Asst. Accounts officer on 28/12/2007 and presently as Accounts officer w.e.f. 01/09/2021 and since then, the applicant is carrying out his duties at various places and finally, at the present station w.e.f. 11/08/2020 on repatriation from a hard tenure station by name Varangaon (Maharastra State) without any complaint and to the satisfaction of his superior authorities.
It is further submitted that the Respondent No. 2 issued the impugned transfer order dated 04/07/2023 transferring the applicant from the present place of posting i.e. Secunderabad to Area Accounts Office, Navy, Goa, and directed the concerned to relieve the incumbents immediately. Hence, the applicant immediately submitted a representation to the 2nd respondent on Page 2 of 8 OA/489/2023 04/07/2023 and also on 13/07/2023 stating inter-alia that the applicant was repatriated to Secunderabad after serving a hard tenure of 2 years and 2 months i.e. from 9/5/2018 to 31/7/2020 in Accounts Office, Ordnance Factory, Varagaon and further on repatriation, the applicant joined the 3rd respondent herein on 11/08/2020 and as such, he had not completed even three years of stay in the present station i.e. Secunderabad.
The applicant submitted in the representation that more than 20 to 25 officials with station seniority of 5 to 8 years are still serving in the station, undisturbed as of today whereas he has been picked up for transfer, out of station, bypassing all the seniors for the reasons not known to him. As regards to command seniority, the applicant has been transferred from CDA, Secunderabad to IFA Hakimpet on 23/06/2022.
It is further submitted that the applicant's father is aged about 76 years and he is suffering and undergoing treatment for Alzhiemer's disease at Secunderabad and his mother is immobile as she is suffering and undergoing treatment for Sciatica and both of them are directly dependent upon him for their day to day physical and medical needs and therefore he requested to cancel the transfer order.
It is further stated in the representation dated 13/07/2023, that if the above request for cancellation of transfer order is not feasible, at least to consider his case for posting at any of the hard stations i.e. LEH, Ladakh, Portblair, Pine Grove Arunachal Pradesh or Kalimpong of Arunachal Pradesh. The last date for applying for hard tenure stations i.e. 16/6/2023 was over, and therefore the applicant expressed his willingness to reconsider his transfer to hard tenure station as he was not physically present before the cut off date to Page 3 of 8 OA/489/2023 make such application. The applicant's intention is that he could rejoin his parents after serving the tenure at hard station which is not quite possible if posted to a non-tenure station like Goa. The representations of the applicant dated 04/07/2023 and 13/7/2023 were rejected and the Respondent No.2 again issued a Circular dated 11/8/2023 stating that request for transfer of various incumbents is not acceded to, and further directed to relieve them and submit compliance of charge hand over /take over. Feeling aggrieved, he approached this Tribunal.
3. After Notice, respondents have appeared through their counsel and filed reply opposing the relief on the ground that since there is excess staff at Hyderabad/Secunderabad Station, whereas there is a deficiency in Goa station amongst some other stations and the applicant is one of the eligible station seniors at Secunderabad station, he has been transferred to Goa on administrative exigency to meet the urgent requirement. Learned counsel for the respondents further contended that transfer order has been effected looking into the administrative exigency, as there is acute shortage, at the transferred place.
4. Learned counsel for the respondents further contended that the competent authority has given exemption from transfer on station seniority basis for certain categories of employees like self and dependent family members are differently abled, on self and family members who are suffering from serious ailments such as Cancer, Polio, blindness, mental / psychiatric disorder, paralysis etc. or is differently-abled and the PCs DA / CsDA may at their discretion grant exemption from transfers for a specific/limited period provided the disease is certified by the authorized specialist and supported by Page 4 of 8 OA/489/2023 medical documents/papers and the case will be reviewed before the period of exemption is over.
5. Learned counsel for the applicant filed rejoinder stating that the applicant had been allowed to continue for 18 years in Secunderabad Station since the applicant had worked in Andaman and Nocobar Islands (2 years and 2 months), Suryalanka (2 years and 8 months) and Varangaon (2 years and 2 months) and all the three stations are either hard or tenure stations and he had been repatriated in the month of August, 2020. Thus, the applicant did not put up 18 years service in the station Secunderabad continuously.
It is further submitted that the respondents have not mentioned any specific administrative grounds nor any public interest which is involved in the case. It is nothing but a colorable exercise of vested power in the respondents in the transfer. The applicant has completed 25 years of service with unblemished record.
6. Heard learned counsel for the parties and perused the record.
7. Learned counsel for the applicant strongly argued on the ground that in the policy there is an exemption from transfers in case where an employee or a member of his family is suffering from serious ailments such as Cancer, Polio, blindness, mental/psychiatric disorder, paralysis etc. or is differently- abled and in such cases, PCs DA/Cs DA, may at their discretion grant exemption from transfers for a specific/limited period provided the disease is certified by the authorized specialist, supported by medical evidence.
Thereby, learned counsel for the applicant relies upon the certificate issued by the Gandhi Hospital, which is a Government Hospital Doctor, dated 12.09.2023, who has certified that Mr. S. Narasimha Murthy, aged 76 years, Page 5 of 8 OA/489/2023 Male who is under doctors treatment, suffering from Alzheimer's disease and he cannot do his regular activities on his own and he has to depend on his family members to take medications regularly. The learned counsel for the applicant submitted that if the applicant has been posted at transferred place, it is not possible for him to visit treatment and take care of his old age parents. It is also not possible to take care of his wife. Hence, the applicant is requesting for hard station posting with a hope that at least after completion of 8-10 months, he will be there for two months' vacation, thereby he take care of his old aged parents. The said request has been rejected. If at all the competent authority among the respondents are ready to consider the request of the applicant, the applicant can make another representation relying upon the said policy wherein the exemption from transfer has been considered in such circumstances.
8. Learned counsel for the respondents to support her contention relies upon the Hon'ble Supreme Court in the matter of Union of India vs. S.L. Abbas (1993) 4 SCC 357) wherein it is observed that the authorities are not required to justify the transfer by giving reasons and the only condition for a valid transfer order are that the order must not be a mala fide one, which must be supported by concrete evidence and a firm factual foundation, it must not be based on insinuations and vague allegations.
9. Learned counsel for the respondents further relies upon the Hon'ble Supreme Court in the matter of T.S.R. Subrahmanyam & others Vs. Union of India & Others and argued that while transferring the applicant, his case has been considered by the DAPB, and the competent authority decides/ approves the place/ office of posting of officer and staff. In view of the excess staff in Page 6 of 8 OA/489/2023 Hyderabad and looking into the administrative exigency, the applicant transferred from present place at Secunderabad to Goa.
It is also to be noted that it is up to the employer how to adjust the staff looking into their needs and exigency. Normally, the transfer order has to be implemented and the employee cannot question such a transfers. If at all any grievances are there, the employee first has to report to the transferred place rather than approaching the court and he has to pursue the grievance with genuine difficulty. However, it is also to be noted that when policy gives certain exemption while transferring the employees on the ground of suffering from serious ailments such as Cancer, Polio, blindness, mental/psychiatric disorder, paralysis etc. or is differently-abled, PCs DA/CsDA can grant exemption from transfers for a specific/limited period, provided the disease is certified by the authorized specialist, supported by medical evidence.
It is also to be noted that as observed by the Hon'ble Supreme Court in their pronouncements that the Courts cannot interfere in the transfer order in a routine manner. It is up to the employer, that looking into the administrative exigencies, the administration can utilize their services that are under obligation of transfer liability. However, in view of the policy when there is an exemption, the competent authority among the respondents must have to give reasons when they have rejected the request and in the instant case, the respondents' authority have not quoted any reason. Hence, the applicant is at liberty to submit his detailed comprehensive representation placing reliance for the exemption clause under the said transfer policy, supported by the medical evidence as to the treatment of his father and mother to the competent authority, within two weeks' from the date of receipt of a copy of the order. Page 7 of 8
OA/489/2023 Thereupon, the competent authority among the respondents is directed to consider the same within four weeks' thereafter and pass a reasoned and speaking order, followed with the said policy exemption. Till then impugned transfer order kept in abeyance in so far the applicant is concerned.
10. In view of the same, the OA is disposed of and MA/341/2023 stands closed. No order as to costs.
(DR. LATA BASWARAJ PATNE) JUDICIAL MEMBER /al/ Page 8 of 8