Central Administrative Tribunal - Bangalore
N Chaitra vs Dpar on 26 August, 2022
1- O.A. No. 476/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH BENGALURU
Hearing by Video Conferencing
Original Application No.170/476/2020
Pronounced on: 26.08.2022
(Reserved on: 11.11.2021)
HON'BLE SH. SURESH KUMAR MONGA, MEMBER (J)
(Through video conference from Central Administrative Tribunal
Chandigarh Bench)
HON'BLE SH. RAKESH KUMAR GUPTA, MEMBER (A)
(Through video conference from Central Administrative Tribunal
Bangalore Bench)
Kum. N. Chaitra, IPS, aged 41 years, D/o Sri Narayan, Superintendent
of Police, (On deputation) Directorate of Civil Rights Enforcement,
Cauvery Bhavan, 2nd Floor, Bengaluru Region, Bengaluru-560009.
....Applicant
(By Advocate: Sh. Sh. P.A. Kulkarni)
Versus
1. Union of India to be represented by its Secretary to Government,
Ministry of Home Affairs, North Block, New Delhi - 110001.
2. State of Karnataka, to be represented by its Chief Secretary,
Vidhan Soudha, Dr. B.R. Ambedkar Veedhi, Bengaluru-560001.
3. State of Madhya Pradesh, to be represented by its Chief Secretary,
Mantralaya, Vallabh Bhawan, Bhopal-462001. Madhya Pradesh
State
4. Principal Chief Secretary, Department of Personnel &
Administrative Reforms (DPAR), government of Karnataka, Vidhan
Soudha, Bengaluru-560001.
5. Home Secretary, Department of Home, Mantralaya, Vallabh
Bhawan, Bhopal - 462001. Madhya Pradesh State
6. Director General & Inspector General of Police, Police Head
Quarters, Beside RBI Nrupathunga Road, Bengaluru-5600001.
... .Respondents
2- O.A. No. 476/2020
(By Advocate: Sh. M.V. Rao for Respondent No. 1
Sh. M.V. Ramesh Jois for Respondent No. 2 to 6)
ORDER
Per: SURESH KUMAR MONGA MEMBER (J):-
1. The applicant herein is a 2006 batch Madhya Pradesh Cadre Officer of the Indian Police Service. While working on deputation in the State of Karnataka, she had requested for inter cadre transfer from Madhya Pradesh Cadre to Karnataka Cadre. However, by way of an order dated 16.12.2019, her request was rejected by the Central Government which came to be questioned before this Tribunal by way of Original Application No. 170/1680/2019. While quashing the said order, this Tribunal directed the Central Government to consider the applicant's request afresh in the light of the observations made in its order dated 23.01.2020. Since the directions issued by this Tribunal were not carried out within the stipulated period of two months, therefore, alleging wilful disobedience of the said order, the applicant herein initiated the contempt proceedings by way of Contempt Petition No. 170/70/2020. The said Contempt Petition came up for preliminary hearing before this Tribunal on 28.09.2020 and the respondents were put to notice. It has further been pleaded that inspite of representations submitted by the applicant, when the Central Government failed to pass any order, she again approached this Tribunal by way of filing Original Application No. 170/452/2020 seeking therein the following relief:-
"Direct the Respondent-Government of India Ministry of Home Affairs to pass necessary orders allowing the applicant's request for Inter Cadre transfer from Madhya Pradesh Cadre to Karnataka Cadre in the light of Rule 5(2) of the IPS (Cadre) Rules read with DoP&T OM dated 08.11.2004 (Annexure A-8) and in terms of the directions issued by CAT Bangalore Bench in O.A. No. 1680/2019 on 23.01.2020 (Annexure A-14) filed by this applicant against Govt. of India and Others."3- O.A. No. 476/2020
2. However, during pendency of the aforesaid Original Application, the Central Govt. passed an order dated 14.10.2020 rejecting the applicant's request once again for inter cadre transfer from Madhya Pradesh Cadre to Karnataka Cadre.
3. Aggrieved by the said order, the applicant has invoked the jurisdiction of this Tribunal by way of filing the instant Original Application making therein a prayer to quash the said order and to issue a direction to the Central Government to re-consider her request for inter cadre transfer from Madhya Pradesh Cadre to Karnataka Cadre.
4. Respondent No. 1 while filing its reply statement, in order to oppose the applicant's prayer, has stated that the Cadre Allocation Policy 2017 has no bearing on the case in hand, as it is a matter of inter cadre transfer of an All India Service Officer. The Cadre Allocation is made as per the prevalent guidelines during the Civil Services Examination of a particular year. The applicant belongs to 2006 batch and the policy dated 05.09.2017 was not in existence at that time. It has further been averred that the inter cadre transfer of an officer of the Indian Police Service is governed by Rule 5(2) of the Indian Police Service (Cadre) Rules, 1954 read with DoP&T guidelines issued vide OM No. 13017/16/2003-AIS(1) dated 08.11.2004. It has been stated that generally no inter cadre transfer is permitted on medical grounds/personal reasons. However, for extreme hardship cases, a set criteria is applied by the Central Government before considering and deciding the request for change of cadre. It has been asserted that pursuant to this Tribunal's order dated 23.01.2020, a reasoned order dated 14.10.2020 has been issued strictly in consonance with the 4- O.A. No. 476/2020 aforesaid guidelines. The applicant has completed the period of tenure of inter-cadre deputation to Karnataka State and accordingly the Govt. of Karnataka issued an order dated 27.10.2020 relieving her from the services of Karnataka Cadre, with a direction to report her parent cadre i.e. Madhya Pradesh Cadre. Since the applicant has already joined her parent cadre, therefore, the original application itself has become infructuous.
5. By way of filing an additional reply, it has further been asserted by Respondent No. 1 that the cadre allocation is generally based on the position available at the time of cadre allocation. Any development after cadre allocation cannot be allowed to disturb the cadre allocation already done as otherwise cadre allotment would become a never ending process. No candidate reserves a right to be allocated to a cadre of his choice or to his home State. Allotment of cadre is an incidence of service, and a member of an All India Service bears liability to serve in any part of India. However, the insider and outsider vacancies in a cadre are determined on the basis of the insider- outsider roster points.
6. Respondents No. 2 and 4 by way of filing their joint reply statement have also opposed the applicant's claim. It has been stated that as per the directions issued by this Tribunal, the Ministry of Home Affairs has re-examined the applicant's case and her request was found to be devoid of any merit by way of an order dated 14.10.2020. The applicant has now been relieved enabling her to join her parent cadre in the State of Madhya Pradesh. It has further been averred that time and again the applicant has been approaching this Tribunal for the similar relief. The maintainability of the Original Application itself has been 5- O.A. No. 476/2020 disputed on this ground. The respondents have, thus, prayed for dismissal of the Original Application.
7. Heard learned counsels for the parties.
8. Sh. P.A. Kulkarni, learned counsel for the applicant submitted that in terms of Rule 5(2) of the Indian Police Service (Cadre) Rules, 1954 the Central Govt. after getting concurrence from both the State Governments can make transfer of an officer from one cadre to another cadre. Learned counsel submitted that since both the State Governments i.e. the Govt. of Karnataka and the Govt. of Madhya Pradesh have given their concurrence, therefore, there was no logic or reason with the Central Govt. to reject the applicant's request for inter cadre transfer. The Central Govt. has exercised its powers whimsically and autocratically while passing the impugned order which is liable to be interfered with by this Tribunal.
9. Sh. Kulkarni still further submitted that the applicant is the eldest unmarried daughter in the family and, therefore, she has a moral responsibility to serve her ailing parents who are the permanent residents of Bangalore in the State of Karnataka. The extreme hardship suffered by the applicant has not been considered in correct perspective by the Central Govt. and, therefore, the order dated 14.10.2020 deserves to be quashed.
10. On the other hand, Sh. M.V. Rao, learned counsel representing the Respondent No. 1 submitted that the applicant's case was duly considered by the Central Govt. as per the directions issued by this Tribunal in Original Application No. 1680/2019. The Central Govt. after considering the whole issue in the light of Office Memorandum dated 6- O.A. No. 476/2020 08.11.2004 found that since the applicant is not suffering from any extreme hardship, therefore, she is not entitled to get the transfer from Madhya Pradesh Cadre to Karnataka Cadre.
11. We have considered the rival contentions of learned counsels for the parties and perused the records.
12. The record reveals that the applicant herein was recruited in the Indian Police Service through Civil Services Examination 2005. She was allocated to Madhya Pradesh Cadre as per the cadre allocation policy in vogue at that time. She was, however, sent to State of Karnataka on inter cadre deputation for a period of five years on 15.10.2015. During the tenure of her deputation, she had submitted representations dated 11.09.2019 and 02.12.2019 for her inter cadre transfer from Madhya Pradesh Cadre to Karnataka Cadre on the ground of extreme personal hardship. The said representations were considered by the Ministry of Home Affairs in the light of the policy guidelines dated 08.11.2004 and her request was rejected by an order dated 16.12.2019. The said order became the subject matter of challenge before this Tribunal in Original Application No. 1680/2019 which came to be disposed of on 23.01.2020 with a direction to the Central Govt. to deal with the matter equitably and equally as both the State Governments have granted their consent and recommended for inter cadre transfer of the applicant herein. Pursuant to said directions issued by this Tribunal, the Central Govt. took up the matter once again and passed an order dated 14.10.2020 vide which the applicant's request for inter cadre transfer has been declined.
7- O.A. No. 476/2020
13. It requires to be noticed here that the change of cadre of the officers of Indian Police Service is governed by Rule 5(2) of the Indian Police Service (Cadre) Rules, 1954 read with the DOP&T policy guidelines issued vide O.M. No. 13017/16/2003-AIS (1) dated 08.11.2004.
14. The Indian Police Service (Cadre) Rules, 1954 have been promulgated by the Central Govt. while deriving its powers from Section 3(1) of the All India Services Act, 1951 after consultation with the Governments of the States concerned. Rule 5(2) of the '1954 Rules' makes a provision that the Central Govt. may, with the concurrence of the State Governments concerned, transfer a cadre officer from one cadre to another. In order to give effect to the provisions of Rule 5(2) of the '1954 Rules' the Ministry of Personnel Public Grievances and Pension has issued the detailed guidelines vide O.M. dated 08.11.2004 which reads thus:-
"2(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.
2(ii) Inter-cadre transfer shall not be permitted to the Home State of the officer.
2(iii) In cases of inter transfer on grounds of marriage, efforts should be made in the first instance to ensure that the cadre of one officer accepts his or her spouse.
2(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.
2(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.8- O.A. No. 476/2020
2(vi) Extreme hardship for purposes of inter-cadre transfer should be defined to include:
(a) Threat to the life of the officer or his immediate family and
(b) Severe health problems to the officer of his immediate due to climate or environment of the State to which he is allotted.
2(vii) in case of request on grounds of threat or health, the Central government shall have the genuineness of the request assessed by an independent Central agency or group of at least two independent experts.
2(viii) if a request on grounds of threat or health is found to be genuine, the Central Government may initially send the officer on a three years deputation to a State of its choice. The situation may be re-assessed after the three years period. If the situation so warrants, the Central Government may permanently transfer the officer to that State."
15. On perusal of the aforesaid office memorandum, we find that the Central Govt. has drawn the criteria in order to examine and decide the request of an officer for change of cadre in the cases of extreme hardship. The nature of hardship has to be assessed by the Central Government in each case on merits. The term extreme hardship for the purpose of inter cadre transfer has also been defined under Clause 2(vi) of the said memorandum which enumerates that if the officer or his immediate family member is facing a threat to life or there is a severe health problem due to climate or environment in the State where he is posted after allocation of cadre, the genuineness of the request shall be got assessed through an independent agency or group of at least two experts.
16. Though the consent of the State Governments is a pre-requisite condition to consider the case of cadre transfer on the ground of extreme hardship but it is not the only condition for considering such a request. The Central Govt., after receiving concurrence from both the State Governments, is still required to consider the individual case in the 9- O.A. No. 476/2020 light of the facts and circumstance brought before it by the concerned officer and only then it can arrive at a conclusion that the officer is facing extreme hardship in his allocated cadre.
17. A bare perusal of the order dated 14.10.2020 issued by the Central Govt. reveals that the applicant failed to produce any supporting documents in connection with the severe health problem of her parents directly attributable to climate of the State of Madhya Pradesh. In the absence of any such documentary evidence, the Central Govt. could not even got assessed the genuineness of the applicant's request through an independent Central agency or a group comprising of at least two independent experts.
18. We even cannot ignore the fact that the applicant is seeking cadre transfer to her home State i.e. the State of Karnataka which is not permissible under the policy guidelines circulated vide Office Memorandum dated 08.11.2004 and, therefore, we do not see any fallacy in the order impugned herein.
19. On further perusal of the order impugned herein, we find that the Central Govt. also examined the issue in the light of DoP&T cadre allocation policy dated 05.09.2017 which prescribes that all the Cadre Controlling Authorities of All India Services shall determine the vacancies including the break-up into Insider/outsider vacancies for each of the cadres as per the established procedure. The procedure as laid down in the DoP&T's Cadre Allocation Policy dated 10.04.2008 prescribes that the Insider and Outsider vacancies in a cadre are required to be determined on the basis of insider/outsider roster so as to facilitate the maintenance of the ratio of 1:2 between the insiders and 10- O.A. No. 476/2020 the outsiders. Under the said policy, not more than 1/3 of the members of the All India services in a State Cadre can be from inside the State and if the inter cadre transfer to a Home State of any IPS officer is permitted, then the balance of 1:2 will be diluted and the cadre allocation policy will, thus, be violated.
20. In the given facts and circumstances, we cannot substitute the Central Govt's view with our judgment as the Central Govt. in its order dated 14.10.2020 has categorically recorded that the applicant has failed to produce any supporting documents in connection with the severe health problem of her parents directly attributable to the climate or environment of the State of Madhya Pradesh.
21. In the case of Dr. Jitender Gupta Vs. Dr. C. Chandramouli (Civil Appeal No. 3298 of 2020 decided on 25.09.2020), the Hon'ble Supreme Court has held that there is no doubt that it is the Central Govt. which is the authority competent to transfer the officer from one cadre to another. However, the officer cannot insist that he should be transferred as the State Govt. has conveyed its concurrence for such a transfer.
22. In the case of Union of India and Others Vs. V. Rajiv Yadav, it has been ruled by the Hon'ble Supreme Court that a candidate has no right to be allocated to a cadre of his choice or to his Home State.
23. We find that after considering all the afore-stated principles, the Central Govt. also considered the case of Union of India & Others Vs. Dr. Mrs. Beela Rajesh (Civil Appeal No. 11223 of 2011 decided on 02.03.2013) in order to assess the whole issue on the question of equity and equality and while issuing the order dated 14.10.2020, both the 11- O.A. No. 476/2020 cases have rightly been distinguished. Dr. (Mrs.) Beela Rajesh had sought inter cadre transfer on the ground of her marriage as per para 2(i) (iii) (iv) & (v) of DoP&T Office Memorandum dated 08.11.2004 and whereas, the applicant herein has a different ground claiming herself to be in extreme hardship and requested for her inter cadre transfer in terms of para 2(vi) (vii) & (viii) of the said office memorandum.
24. In the conspectus of discussions made herein above, we do not find any infirmity in the order dated 14.10.2020 issued by the Central Govt. and, therefore, the Original Application deserves to be dismissed.
25. Accordingly, the Original Application is hereby dismissed being devoid of any merit. However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA) MEMBER (A) MEMBER (J) 'mw'