Central Administrative Tribunal - Kolkata
Deepak Sharma vs M/O Youth Affairs &Amp; Sports on 16 August, 2018
V ~or [7 L1,B RA I IT w aff 1 CENTRAL A MINISTRATIVE TRIBUNAL oa 759of2018 CALCU1TA BENCH, KOLKATA O.A.759 of 2018 Coram : Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. Nandita Chatterjee, Administrative Member Deepak Sharma, Son of Shri Phaniridra Sharma, Presently residing at Quarter No. 475, IC-Block, Salt Lake, Sector-3, Kolkata 700 106,
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Permaneflt4reid1tiOf I.' VIIjagei Baratiguri Pogniri,1 isfrict: Biswanath Chariali; !# iC ''' LcM secy-ya he Direetor - - / \. kEi réc5torate.of Natiäh'a.I :Sérvice4Sch
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4 -c,4 f'}' '\ 12/1IJahiNaga?House 1 F .:Dacnss Regional Directorate of NSS-Kolkata, Government of India, Ministry of Youth Affairs & Sports, Department of Youth Affairs, 3, Church Lane, Kolkata 700 001.
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Email: [email protected] Regional Directorate of NSS-Guwahati, Government of India, Ministry of Youth Affairs & Sports, Department of Youth Affairs, 4 ;
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"Chakralaya" Hari Mandir Road, House No.4, Bye Lane No.4, Mathuranagar, Police Station : Dispur, Guwahati - 781006.
Email: [email protected]
5. Dipak Kumar, Service through: TheRegional Director, Regional Directorate of NSS, Patna, Government of India, Ministry of Youth Affairs & Sports, Kela Bgan, Phulwari Sharif,
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Patna-8015~
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Respondents
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For the applicant. : MrSKi-Bhat•tacharyya Con~el , .
For the repondehts
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:. . Mr. P.M.ikherjéê, Gb•nsel .••.
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Reserved on :
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4Date.o1 Order. ..
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Per: Bidisha Banerlee, JudicualMember . ...
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The applica has soughrfor the 4f416ir riiefs: J
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11 8(a) To dèclare" th at thë'orderj\Jo .-P4Jo A .
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12(115 / I. / 16 I NSS,
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Government 6fIndia,{Mihistry;'of Youth-Aff1.r. and&portsDepartment of Ii .grr ' . t1 A1. .
Youth.Affairs, Shastri Bhaah;DrR. P:'Road, rJe7 DeIhi- 110 001, Shastri Bhawan, !rn May.208 eingyA1nexure "A-5" herein followed by OfficOrder No. Admn-1 NSS / KOL / 2018-19 / R.
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196001966, Governmenf 6f di1s1iistry of Youth Affairs & Sports, Department of Youth Affairs, Regional Directorate of NSS, 3 Churc Lane, Kolkata --700 001 dated the 30th May 2018 being Annexure "A-8" herein in respect of the Applicant herein and the Respondent No.5 herein are Ibad in law and not sustainable in the eye of law and;
(b) To hold and pass an order that the Office Order No. F. No. ADMN.1 / RD / NSS / KOL /2018-2019 / 1926 dated 07.05.2018 issued by the Regional Directorate at Kolkata to be directed to be implemented in respect of the Applicant herein in consonance with the clause 3.3 of the Rotational Transfer Policy for Group A and Group B Officers of National Srvice Scheme-reg vide Order No. A. 12015 / 1 / 2013-NSS, Government oflndia, Ministry of Youth Affairs & Sports (NSS Section), Shastri Bhawan,I New Delhi, Dated the 28th January, 2014;
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3 o.a. 759 of 2018
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Such further order or orders, direction / ciirections as tnis Lerneu Tribunal may deem fit and proper in accordance with law."
2. The service particulars of the applicant can summarised as under:
(i) Joined the National Service Scheme at Guwahati to the post of a 28th September 1987 as his first appointment.
Youth Assistant Gr-Il on Served at Delhi from 23:03.1990 to 07.07.1991 as Youth Assistaçt Gr-
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Served at Guwahatiiron 08 07 1991to I 3O 041999 initially as Youth
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Assistant Gr-ll and thë1reafter promoted tc5Youth aV Assistant4Gr-I Served atKolkata frorn.0305999...to 19.06.2Q&1 as YQuth Assistant G r- if \ 4r S'ed at Gd,ahàti fb.rh26.O.2O0.i* bO8:.08.20i4initipll ,as Youth Is s i s t AC' G r - I andr 2008' 41 ~ gig 444erved rd7'Youth Ofcer viy-
[ He is- due to retireon28 ;Febrary':-2020~on attaining;the age of , 1•.r \4 superannution. f 4
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3. A RotationaiTr-ansfer Rolicy for Group A an G.roup:BOmcers of National Service Scheme .as itroduce?videOrdP No.A 1201 I if, 2013-NSS, c / Government of India, Ministry of Youth Affairs & SpOrts (IJSS Section), Shastri .-
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Delhi, dated -the28 January 2014and has been in vogue since then in the respondent organisation. It explicitly and unambiguously spells out the following:
"3.3. Officer having less than two years of service before superannuation may be considered for posting at a place of their choice, subject to availability of vacancies. Such officers shall not be subjected to Rotational Transfers as stipulated inPara 7 2 of this Policy."
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4 o.a. 759 of 2018
4 A Circular Dated May 04, 2018, being a Friday, was issued by the
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Respondent No.2 desirous of compliance within Sunday, the day of Ma1y 2018.
Since the applicant was left with near about a year and a half of his service1 tenure in terms of clause 3.3 of Transfers on Compassionate Grounds under the Rotational Transfer Policy. He sought for posting at Guwahati'at his native place, yet vide Transfer order dated 25.05.2018 (Annexure-5) he was transferred to Patna. His representation dated 29.05.2018 was turned down in 29.05.298 itself ' IA ...
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5. The Ld. CounsRfgr the applicant would vociferotiiya,rgué-that the entire I ' / exercise was, to deprive th1applicant of hiS ,.Pightful conside.rätin 9: odér to i •, , • # ../.
It I f f a v o u r respondent N o.5withpoiting of hi1dhoice c I 0 I. founsel where ona ry ;r .
wasi' exer Fra, nd ther':9.e was
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In the Rotaf1:n.al TF:nsjer Policy for Group .ñd B.$fflcers of thel NSS, it has been clearly m notwithstanding anything contained in the Policy, the Government may, in public interest, transfer or post any officer to any station. The contention of the applicant that he was less than two years of service before superannuation is not a validround since such'cases come under 'consideration' clause and such considration clause does not come under the purview of any mandatory provision. Be that as it may, it is the established legal position that a Government Servant I 'H
-- ._-, / has no vested right to remain posted at a place of his choice nor can he insist tnat ne must ue posteU CL O"v.1JI 1 ..' ...'.. nthpr. He is liable to be thp transferred in the administrative exigencies from one place to the other.
7. The respondents have averred that Shri Deepak Kumar, Assistant Programme Advisor in the RD, Patna has been transferred to RD, Guwahati, since he is senior to Shri Deepak Sh ar ma and...the.j sdiction of RD, Guwahati is wider than that of RD Patna It i anadmIts&atiedeClSI6fltaken by the Ministry keeping in view thshbftage of officers in the LA"'r tia"zilOd to bijng balance or :.
Xl conformity in th&smooth •fthtiorngbf the RD'sand as many.a1six officers .....
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including Sh.Deepak Sr haebee t sfe.
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.red •r.om one RD..tøanot,.her.
ate to the
Guwahati
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needs of th'entire North Be.ngiRegibn. hic •CO prise.s of seven Stats whereas
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Deepak-ShLarma, the
RD Patna looks after onlBihar ahd 1 applicaft has bee.rrn v7p5elthfts in RD, Kilkata he 1- tJrAbuthiOfficer and had been\vorkrng&uh as the compaaive d n6 Guwahati are concerned, there wit since both distances are almost the same.
9. The respondents have, still further, submitted that Shri Deepak Sharma has served more than 23 years at Guwahati itself out of his total service of 30 years and 8 months till now and served at Kolkata and at Delhi for the total period of only seven years, taken together, in both the above places and that apart the applicant vide his representation dated 29.05.2018 requested the Ministry for posting him at RD, Guwahati and if that he was possible to allow him to remain o.a.759of2O.S 6 posted in Kolkata for rest of his 1 year and 9 months service and wjthoutwaiting for the reply he rushed to this Tribunal. The O.A. is therefore, liabI to be
- the fact dismissed not only for the reason that it is devoid of merit, but also for that the application of the applicant before this Tribunal is premature.
The respondents have clarified that the. Ministry vide their letter F No
10. 4th May 2018 instructed all the employes of all Admn 23/ NSS/DTh/2018 dated in various the Regional Directorate for giving three.choicS for their posting Regional Directorates, andir 4r rtebut ,I uT- y t he p.lçant opted1 only for ;r ,i!
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Guwahati ' I
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11. Furthethat the resondents I at a plac hichoice, less than twoears to asit was no'tamarkiatory may be considered, subject provision and therefore;did;flOt base..othedeaiSIoNCQflfer any right;
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12. The respondentshavetOntradIcted existence oLsufictent personal-ground of the applicantfto seek tçansjer to Guwahati alrdy,cOns!tkCte~d his 2wn house , /1/ .' at Guwahati Besides tFiat he lias_two_broths who'c % an Idok after1 his aged
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or Public
parents at his tc
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of any nature w1atsoever"
Interest, is "liable to
and that he has already been struck off the strength from the office of the Regional Director, Kolkata and as such, he is not entitled to any interim order.
13. The respondents have reminded this Tribunal of the folloing legal propositions:
In the case of Rajendra Singh vs. State of U.P & ors. (2009) JNSC 1351 (31.7.2009), the Hon'ble Supreme Court has been pleased to hold, inter alia, that "a Government Servant has not vested right to remain posted at a
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o.a.759Of2Ol8 7 place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also imp'icit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place orposition as long as he desires.
In State of U.P. vs. Gobardhafl Lal (2004) 11 SCC 402 it has been held by the Hon'ble Apex Court "that the courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from malafide.
The landmark Judgment of the, on'blS.M.preme Court in Shilpi Bose , IR 1991SCC 532, wherein at & orcA (Mrs) & ors vs State of Bih 'Iti udg paragraph 4 of theim t HnC dh t ld 4 irciir opinion, thecourtsshould nottnthrfere with a transfer
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orderwhich is made:impubliC inte.restand for administrative reasons AX, unless the trfefi. orier m de#Violat1Ofl ofhymandatorY stutory ruloron h e 'rgrur 'd f nide A govnmeM servant , I. rL"-. ii ;' to reiiaIn psted at
- holding a by th competent It one pl ace 7 authority do notwioIat'nY ofhis..legaLrightiEVefl if a7nsfrF order I;xM _'.*.•i'._-_ It ,.js passed in v..Lolationof1 eXeCutve instructions or orders thekourts ?
\ hrthe order, instead affected party f ordinarily houldV. ntnterfer .- thecourts , should approach te h igherauthq1 ityfl t 4departmen t.continue to ordersissuecby the govern m? th to i ' i - here will be cmplete it, ga r o public le Q o; tbe _o intrestThe4tlI!jcOUrt overlooked these aspct,,s in interering with the t/anf3r ordrs '\ f / ln N K Singh vs U iion olii& otheFs
4. 2, thisIourtdeiterated that the scope 'of judicihr.eièWiin"Th'atters0f tr4nsferdf a Government
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Servantto an'eqyalent post j ou athierseonsequenCe on the service or arer p ro tsis yIimibing confined only to the grounds ofspecific provision."
We heard the Ld. Counsels, considered their rival contentions and perused the materials in record.
We noted that the applicant is due to retire on 23th February, 2020 i.e. he has less than two years to retire. He is a resident of Assam.
Fa` I! 8 o.a. 759 of 2018 AS per the transfer policy in vogue he deserves to be considered for his posting at a place of his choice.
He has exercised his choice and opted for Guwahati, to settle down at the fag and of his service.
He is entitled to be considered in terms of para 3.3 of the RTP which lays down policy onTransfers on Compassionate Grounds and specifies that "officers, having less than two years ofservice befor êiánnuation" may be considered Ik s;I -M for posting at a place of tFieichoice subjict tôäilability of vacancy, and that . VIL I' •.--• .
such officers shall n0~~te subjectedftoRotational Transfers-as stipulated in para 2 I 4. of this Policy -Para-. 2 of the;poiIcylays l .i / down the following: i.
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"2 RotationaI Transfer
• .2.1, Group-A G..azetted . Officersshal!b.e hable tçtransferredto another
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;lstati.on on completion eul
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i2.2 .Group-B transferredto another
statioron completi? 6f 7jeas i
5.: Fu rther4à tiitãtesunder:
1. X I-/ i X. .?r X & L4fr .- I \ 5.2 - Officerswho are duejor. r-•as pr Rtatpnal Transfer requirementtipulatd inP.ara-2 sha 6askedjtb indiate 5 places of ' 'r? F7 i their choice.and éffort shalIbe r rnac at. them within their :cornnThd Ir places of choiè:subjérto_availabiIit The provisions although not mandatory, cannot be given a complete go bye for it lays down the guidelines for effecting transfer, considering and acceding to the requests of employees on compassionate ground etc. A bare perusal of the policy would exemplify and demonstrate that the applicant's case fell under para 3.3 of the policy and therefore he was not o.a. 759 of 2018 required to opt for 3 or 5 places as choice postings in term of para 5.2 of the policy as extracted supra.
Therefore while expecting three choices from the applicant, to consider his request in terms of 3.3 of the RIP the authorities have misjudged the provisions and misdirected themselves.
16. Ld. Counsel for the applicant has therefore legitimately voiced his concern in regard to malice in law.
r 'rL He has cited t.hedecision reported in (1979)2$3J •rem.Court Cases 491 with regard to\SMT. S. R. 4VENKATARAMANVersus UNION iOF;INDlA AND AN0THER (alb4it in a 1 f /fP f o e$here
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ppellant ' had alleged-malice in ilawrHon'bleApexCourfeIuGidfed its implications in the :
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follov'ing (Nords
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~ ~-Mfalielb in law is, hweir, quit different Viscc5ffnt Haldane'decribed it as
folloWs in Shearer v Shields (1914) C 808.
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A person ho) inficts aninjuryupon anothej.perso.n .•.- in contravention
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of the..Iw inotä.11owed to say that hdido /ith an inno:ent mind; 1& ' he istake'ni t o koi the law, and he m, ust actwtthThthe Jiw He may, 'therefore lie althougt, sc?far the state of his :,i.. '4....
mind is onceried,..beac-ts.ignorantl,an'd in that sense innocently.
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Thus malice in its Iegaksense means malice such ani"ay be assumed from the doing of a wrongful act inTeñt(dFVIly but with'but just cause or excuse, or for want of reasonaböro.bablecaiir
6. It is however, not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard. C.J., in Pulling v. Abergele Urban District Council (1950) 1 KB 636 (1950) 1 All ER 76, where a duty to determine a question is conferred on an authority which state their reasons for the decision, and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought 10 o.a. 759 of 2018 to have taken into account, the court to which an appeal lies can and V ought to adjudicate on the matter.
7. The principle which is applicable in such cases has thus been stated by Lord Esher, M. R. In The queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras (1890) 24 Q BD 871, 375 : 62 IT 440:
If people who have to exercise a public duty, by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.
This view has been followed in Sadler v. Sheffield Corporation (1924) 1 Ch
483.
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It is equally true that ther viIlbe 'anror of faiwhen apublic body is F: 'I !! r prompted by a nistaken belief in the exiten ff a non-existing fact or circumstance Thi is so clearly unreasonable tha1r}at is done under such a mistãkehbeIièf might almo?: 'iZItb;have beeri'Td e inbad faith ; and ' '9" 1.
in actual experience,andas things go, thesmay well sido run into one another.
9. ,The influence u ndouted1 rethe authity makin ce. It vl14her ore be a gross abuse rOfl( Nhich 4s huseful .proiision only intjie Nholly uriwarra edby 7 iit, nd to arrivejt n adminiitiv korder 'whkhis based ont must thefore ?e held 76 'tobei ñfected with
18. Sch bein pondent at the hearing, were a / )indiGa'e availability of vacar irê, in Kia 'I They indic s u n di TJ.
"There are twoNsof SanctiOtdPosts ojGThup B (Gazetted) in the Regional Directorate Out of that Ms. Santa Patel, Youth Officer is holding one post and the other post is lying vacant w.e.f 30.05.2018 (AN) after relieving of Shri Deepak Sharma Youth Officer from Regional Directorate of NSS, Kolkata to join at Regional Directorate of NSS, Patna as Ministry of Youth Affairs & Sports Order No A12015/1/16-NSS dated 25.05.2018"
19. in view of the aforesaid admitted position, we feel it appropriate to dispose of the O.A. with a direction upon the respondents to allow the applicant to 1 11 o.a. 759 of 2018 7 :
continue at Kolkata till his superannuation, in case they are unable to adjust him fr, at Guwahati as per his exercised choice.