Central Administrative Tribunal - Kolkata
Debraj Ghosh vs M/O Defence on 14 November, 2018
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1 o.a. 1661.2016
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CENTRAL ADMINISTRATIVE TRIBUNA
KOLKATA BENCH, KOLKATA
Date of order: 1^ ^34^Jh.T(
No. O.A. 1661 of 2016
Present Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member Debraj Ghosh (Father's Name : Dilip Kumar Ghosh), Address : 53 Doctor Lane, Taltala, Kolkata - 14 Employer: Department of Defence Production .. Applicant VERSUS-
(i) Union of India (Through the Defence Secretary) » 101-A South Block, Ministry of Defence > New Delhi -11.
(ii) The Secretary (Defence Production), 136 South Block, Ministry^fifDefence? * New Delhi; 11. ,;0 ' ✓rnrx 'i V \ 1 N ..^Respondents l 5 For the Applicant *'&**.•* i i ; 0 ?D For the Respondents ?
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Per Dr. Nandita Chatterifee.^A^ministrative',MembeJr:/ X X / s i I Aggrieved of not being pbstecl''at'':Kolka'tauun^er Rotational Transfer Policy \ the applicant has filed the instant Original Application seeking the following relief:-
i "Immediate transfer to Kolkata under RTP and also provision to go to the Court (as per my suitability), to pray compensation for losses, please."
t The applicant has also sought interim orders for full financial compensation t I for losses incurred by him and also due to the fact that he was without any :
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earnings from February, 2014.
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2. The applicant appears in person. The respondents were, represented by their Ld. Counsel. Both were heard, pleadings as well as documents were examined. The applicant has also furnished written notes of arguments in the context of this O.A. Lx :
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- 3. The applicant's case, as articulated by him in person, is that the applicant was working as AE (QA) under Department of Defence Production and that, on r? f-
I?- 23.12.2015, the Secretary (Defence Production), respondent No. 2, passed an order directing the applicant to submit an unconditional request for transfer.
That, both the Deputy Secretary (G-ll/Department of Defence Production) as well as the respondent No. 2 namely, the Secretary (Defence Production) had stated in writing that the applicant has completed 5 years at Bolangir (his present station) and has therefore completed his tenure therein.
That, the applicant was also undergoing treatment for Pulmonary Tuberculosis in 2007-2008 which the immediate superiors were aware of.
That, the applicant had been representing since 2009 for implementation of the Rotational Transfer PolicyJh :his ^cdntext but the respondents have been repeatedly insisting that th^appl|rG3rtr^^|d^sulmii^a^ unconditional transfer request to which the applicant V, h^V6ieqtedf.>^^l 0 \\ r That, the applicant had^ex!5aiste^>a1Khls departmental remedies by V /!-v' r ;7 ^ ' representing to concerned authdhties' thhobigh proper''channel and ultimately submitted his resignation(dn, Tf.8.2014 WhichvNw^s/not accepted by the \ \ .... / / \ respondents. V v ■-V The applicant has advanced, interaiiarthe following grounds in support of his claim namely
(i) That, he has been victim of administrative lapse and injustice; (<i) That, his posting back to Kolkata under Rotational Transfer Policy is nowhere associated with a direction to submit an unconditional request;
4. Per contra, the respondents have argued as follows;-
That, the recruitment for the post of JE (QA) (erstwhile CM-II) was carried out in 1998 by SQAE (A) Hastings Kolkata for 02 number of vacancies out of which one vacancy was earmarked for 'Ammunition' subject and another was for 'Weapon' subject respectively. The personnel selected for recruitment by SQAE(A) Hastings for Chargeman-ll (CM-II) was as under:-
Vji' . / 3 o.a. 1661.2016 /' SI Name Marks Obtained Total Remark No. Written Oral 1 Shri Debraj Ghosh 46 26 72 First 2 Sh. Gautam Duttamundi 49 23 72 Second That, Shi Debraj Ghosh was allotted Ammunition subject and Shri G Duttamundi was allotted Weapon subject. These subjects are having different seniority lists and accordingly promotional prospects as per availability of vacancies in their respective hierarchy.
That, Shri Debraj Ghosh, on recruitment as Chargeman Gd-ll in ammunition subject, joined SQAE(A) Hastings as Chargeman Gd-ll on 29.04.1998, He was promoted insitu as Chargeman-grade-l wef 11.06.2004 at SQAE(A) Hastings Kolkata.
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o o \s due for posting from
That, as per Rotation'll Trarfsferj pdlicv, he w*' • \ sensitive establishment after cornpIotjbMo^Q^yeafs as-dhdrgeman-l in 2009. His t"-'""' '-- " "Ip \ posting was consideredounderlRbtatiohaioTrafrsfer policy Ito SQAE(A) Badmal \ c, i Bolangir, which is the nearest statifonlto.. Hi^hbifTe-town ie Kblkata, as no vacancy /y/'N"- ■ . ■' / was available in Kolkata region: '. ., .; ' >• / That, while serving in SQAE^At-Hastihgs^Kolkata, he remained absent from duty for 321 days from 11 Aug 2007 to 26 June 2008. His leave for 321 days was regularized by granting 163 Half Pay Leave and 158 Extra Ordinary Leave again taking a lenient view. He joined his new establishment i.e. SQAE(A) Badmal on 26 Dec, 2009.
That, while being posted at SQAE(A) Badmal, Bolangir, Shri Debraj Ghosh had availed of leave in his credit. Since Dec 2009, he was on EOL for a total period of 337 days out which 186 days was on continuous leave 19.02.2014 .to 23.08.2014. The same was sanctioned as EOL on his request as no other leave was available in his credit and that, he was absent from duty w.e.f. 24 Aug 2014 to till date after expiry of his sanctioned EOL of 186 days without any intimation.
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! That, the SQAE(A) Badmal, Bolangir had advised him repeatedly to join
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his duties but the applicant did not respond to the letters issued to him. In the mean time, he was promoted as Asstt Foreman (now AE(QA) wef 08.02.13 insitu at SQAE(A) Badmal Bolangir, though he had requested for posting back to Kolkata region on promotion but no vacancy was available in Kolkata at that time. That, the applicant was also advised either to join his duties immediately or to submit unconditional resignation, if he so desired, as he was absent from his duties since 24 Aug 2014. The applicant was also advised to submit the application for compassionate posting.
That, as directed by JS(LS) on 11 May 2016, Shri Debraj Ghosh was advised to report HQ DQA(A) ON 24 May 2016 at 09:30 hrs to attend a meeting ;
with the JS(LS) at 11:00 ^hrs. Subseqci'ently,, a.s intimated by US(QA) fi \ telephonically, the scheduled meeting on 2*Utf'ay 16 was Cancelled and intimated \ tc Shri Debraj Ghosh vide L/N.§:^/.1l1'65fi'?rP/'D,GQA/'Arrii-1 dated 23 May 16.
tif However, the individualOreported^dn^ scheauled^time at:'HQ DQA(A). That, as v; :'h\y -w directed by JS(LS), Shri DebrajfT3l5dsh^was'raga}n;Galled on 08 Aug 16 at 09:00 . {//, N,-- T./ / / hrs to HQ DQA(A) through'\SQAE(A) Badmal, Bolangir vide L/No. PER/360/I ' x ' ' ' dated 03 Aug 2016 but he failedsto attendJhe postponed meetings.
That, as per Para 10 of the, policy issued vide letter No. A /96995/ RTP/ DGQA/Adm-7B dated 20 May 2011, the persons posted in hard station can apply for posting to a station of their choice on completion of 3 years service in hard station. However, the applicant had never applied for posting in spite of being advised by ADGQA (A) while counselling him on 16 Feb 2016.That, as per RTP policy No. A/96995/ RTP/ DGQA/ Adm-7B dated 20 May 2011, the applicant was not under the purview of RTP as he has not completed 10 years at his station and could not be transferred without his request.
^4' I • 5 o.a. 1661.2016 ISSUE r i-
5. The point of determination in this O.A. is whether the applicant was entitled to be posted at Kolkata by virtue of the rotational transfer policy of the Respondents and whether the applicant was bound to prefer a representation praying for such transfer.
FINDINGS
6. The rotational transfer policy. of JTO]JTO(S), Technical Scientific Officer/Staff of DGQA organization dated 20.05.2011 (Annexure-R/4 to the Reply) is the relevant policy to be examined in this context. The said policy is reproduced below:
STfr Government of India
- ^^Q.eptt oTDefence Production 1 i / Ministry of ^Defence z4 >.
.; J ■•yDfeJG'eneral'bf\Quality Assurance ■ _________ \ ti A/96995/RTP/DGQA/Adm|7'B ' J20 May?2011 X r . l •T All DGQA Establishments /■ / (as per DGQA StandaVyUsT)., Less Gp 'E' & 'F' V V''■ v ROTATIONAL TRAN'SFER.R.QUGY JJOs. TECHNICAL/ SCIENTIFIC STAFF FQR.DGQA"'ORGANISATlON
1. Reference Ministry of Defence letters No. 6(2)/88/D(lnspection) dated 07 Mar 1988 as amended by letter No 6(2)/88/D(lnspection) dated 18 May 1990.
2. The Rotational Transfer Policy of JTO, JTO(S), Technical and Scientific Officer/Staff of DGQA cadre has been reviewed, in view of the merger, restructuring of various posts/cadres and the existing state of manpower vis-a-vis the existing and the envisaged workload commitments. The revised Rotational Transfer Policy is given in succeeding paragraphs.
3. All Tech/Scientific Officer/Staff occupying sensitive appointments will be rotated within the Station on completion of five years service. If it is not possible to rotate within the Station they will be posted to nearest station where vacancy exists.
4. Ail directly recruited Technical and Scientific cadre personnel (JTO, JTO(S), Chargeman and Scientific staff) will be rotated on completion of 5 years of intial posting to a new station for grooming and multi-skilling La:
6 o.a. 1661.2016 in domain of diverse technology product/equipment to create wherewithal in the Organisation to deal with State of Art Tech equipment. No application for compassionate posting will be entertained under ordinary circumstances during this tenure of 5 years. F r 5. Subject to para 3 & 4 above, Technical and Scientific cadre personnel will be rotated from one station to another on completion of 10 years service in the station as on 1st Jan of the year in which rotation is due. The total continuous service from the grade of erstwhile CM-I and SA-I i will be counted for reckoning 10 years service in the station.
6. An employee having his son/daughter in Class X, XI or XII may be considered, on request, for retention at the same station. The retention in a station will be considered for a maximum period of two years. An employee however, may opt for premature transfer in case he/she anticipates retention beyond two years on account of education of more than one son/daughter.
7. Orders for rotational transfer will normally be issued by Mar each year.
8. Persons having less than five years service for superannuation as on 01 Jan of the year are exempted from rotational transfer.
9. There will, be a compulsory tenure of 3 years in the following hard stations
0) Bolangir
(ii) Itarsi Str,
(iii) Chandrapur
(iv) Ma'chhalipatha^T*^,.
(V) Bhandara , I 1/ ■,
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If an individbsil has no^seryed^imt.^ hard st^tipn he will be posted to a hard station % rdt&iSn ,pf>?fi''fst. promotion irrespective of vacancies available at the station where he is'serving.
10. . Persons postedjira hard/statibn cah apply for posting to a station of their choice on cbmpIetion-oM'years service in the hard station. Such persons will get priority'for'pbsting to their choice station on all other categories including promotion in situ. Application to be prioritized based on the length of service at the hard station, for determining choice.
11. Notwithstanding all the above provisions, if an individual is to be transferred out from a station or retained in the same station at any time on. account of technological requirements, specialized training or administrative reasons the same will be submitted for personal of DGQA, who will accord his approval only after he is fully satisfied about the circumstances of the case. The DGQA shall submit an annual return to the Ministry in the month of Jun listing ail such cases.
12. These instructions will take effect from the year 2011. The Govt letters mentioned in Para 1 are superseded.
13. This issues in supersession of our letter of even No. dated 30 Mar 2011.
14. This has the approval of Ministry of Defence.
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(SN Singh) Add!. DGQA(Adm) For Dir Gen Quality Assurance"
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7 o.a. 1661.2016 Following are inferred from the said policy:
(i) All Technical/Scientific Officer/Staff occupying sensitive appointments r'~ will be rotated within the Station on completion of five years' service. If it is not possible to rotate within the station then they will be posted to nearest station where vacancy exists.
(ii) There will be a compulsory tenure of three years in eight hard stations including Bolangir.
Examined in this background, we find that the applicant had been recruited as Chargeman Gr-ll in ammunition subject and had joined SQAE(A), Hastgings as Chargeman Gr-ll on 29.04.1998 and was promoted in situ as Chargeman Gr-I w.e.f, 11.06.2004 at SQAE(A), Hastings,j.Kolkata. Respondents have further stated that as per rotational transfer policy.,^he was due for rotational posting on X account of his sensitive^appdintm'enit!/afterlcompletibn of five years as af- i Chargeman-I in 2009. His rotational;p^d|tjng"ho\yever,uwas made in SQAE(A), *• ~ s' Badmal, Bolangir, which is the neares't/stati:oh\td*his home/town, i.e. Kolkata, as i.
no vacancy was available at'Kdkata.
r Para 3 of the Rotational Transfer Policy says thSt the concerned staff will be rotated within the station on completion of five years' service. Hence going by the policy guidelines, the applicant should have been posted in a non sensitive post at Kolkata itself after expiry of 5 years' service. According to the Respondents, as there was no vacancy in Kolkata, he was posted at Badmal,Bolangir, which is nearest to his home station, i.e. Kolkata. It is also laid down in para 9 of the said policy that there will be a compulsory tenure of 3 years in Bolangir. Going by this logic, the applicant who had joined at Bolangir on 26.12.2009 ought to have been moved back to Kolkata as per RTP in December 2012 itself as Kolkata was the relevant station with reference to the applicant. Such transfer policy, however, was not implemented in his case.
Ca 8 o.a. 1661.2016 The fact that he was repeatedly instructed to request for compassionate posting is not supported by RTF guidelines because the application for r compassionate posting only is relevant if a candidate seeks relaxation of the transfer policy. In this case, the applicant was well within his rights to be transferred back to Kolkata in terms of RTF and the scope of his representing for compassionate posting did not arise. The applicant was, therefore, correct in insisting that he should have been posted back to Kolkata as per RTF and this decision should have been taken by the Respondent authorities way back in 2012.
Despite the fact that the applicant was on leave /EOL for a considerable period, the Respondents deemed it fit to promote him as an \ s It "■ Assistant Foreman (AE & (AjJ^on BA2.20f34 and although the applicant had s TV-
requested for being posted/back^to ^ojkafa/again denied him such transfer on the ground that there was^no vacancy: jSffc L"
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The Respondents1 failed to^implemdnt/the'RTP imcontext of the applicant w M \ V-:
even if the period for whictvh.e was on EOL isTaken into account while posted at / Bolangir. On each occasion,'^.© was. denied his right/to be transferred back to v Kolkata on grounds of non-availabilffy^of^-vacancy although rightfully, the respondents ought to have taken step to repost him at Kolkata whenever a vacancy arose therein. It is significant to note that, as per RTF, the applicant was to be posted in a non-sensitive post in the same station. Hence, not posting him to Kolkata (the same station) at the earliest availability of vacancy was a violation of the transfer policy. On the other hand, the respondents repeatedly pressurized ..him to submit a representation when none was called for.
The case of the applicant is indeed tragic. The respondents have averred that the applicant stood first in the recruitment examination. The applicant has inter alia, ventilated his frustration at not been allotted his preferred subject which according to him, would have exposed him to better scope for promotion TT-
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9 o.a. 1661.2016 and a flexible transfer policy. APRs annexed in the O.A. reveal that his seniors have held him to be a meritorious and competent official whose integrity was beyond doubt. It is hence tragic that an officer of his standards was compelled to run from pillar to post representing before various authorities in vain. He even offered to resign from his job despite many years left in service and finally approached this Tribunal for adjudication since 2016. It is equally sad that being thoroughly demoralized, the applicant refrained from attending his duties w.e.f. August, 2014. The JS, despite a pre fixed appointment, failed to meet him on the appointed date and time and it was unjust to expect the officer to travel at his own costs to meet the senior official for postponed appointments.
The Respondent authorities compulsorily retired him in February, 2018. Its a conundrum that if the applicant was posted:at Kolkata as part of RTF in 2012 o itself, the scope of furtherjifigatiori' 'resigr/atidh or compulsory retirement would ' v '■ i / / y \ £ not have arisen.
* Herein, we rely on'the foirowing/judicial pronouncements. Admittedly, the f V ih .-*• ' / hyrjPftggSi'--'' RTF dated 20h May, 20-11 are in-the form of Administrative instructions.
In Un/on of India & ors. v. S.L. Abbas, 1993 AIR SC 2445, the Hon'ble Apex Court had observed that, while ordering the transfer, the authority must keep in mind the guidelines issued by the Government on the subject.
In Krishna Kanto Roy v. Director of Primary Education, 1990 (1) CLJ 310, the Hon'ble High Court, Calcutta had held that a transfer in violation of executive instructions will be bad.
In Ramana Dayaram Shetty v. International Airport Authority of India AIR 1979 SC 1628 the Hon'ble Apex Court stated that, "well settled rule of administrative-law that an executive authority must be rigorously held to the standards by which it profuses its action to be judged and it must scrupulously observe those standards on the pain of invalidation of an act in violation of them."
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10 o.a. 1661.2016 The binding nature of administrative instructions has been further f > reiterated in Union of India v. Maratidhara Menon (2009) 9 SCC 304.
in Ranjit Basu v. State of West Bengal 1982 (3) SLR 447 (Cat) it was observed that if the effect of the order of transfer is to bring about an illegality then the order will be illegal.
7. This matter reminds us of the essentials of a Greek tragedy. An admittedly meritorious and .competent officer with unquestioned integrity is reduced to such a demoralized state by force of circumstances that his career is cut short with penalty of compulsory retirement. The circumstances being non-adherence to the RTF dated 20lh May, 2011 in its true spirit that mandated postings at the same station and that the applicant was repeatedly deprived on grounds of no vacancy ii ■ at Kolkata. is'.
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Itis reported ^hatytfie-bffic^f.^as been compulsorily retired w.e.f.
- . ' ' 18.02.2018 and the applicant aclmitted^rihg' hearing that such penalty order is ' ^ V'^JVV- ;; ■ not under challenge.
We, therefore, have no other option but to refer this matter back to Respondent No.2, who is thes Secretary,/Defence Production, Govt, of India to examine the repeated representations made by the applicant with reference to applicability of RTF and his subsequent posting at Kolkata, particularly, in the light of the Rotational Transfer Policy guidelines dated 20.05.2011 and to conclude as how to best compensate the applicant concerned who was unjustly not allowed to be posted back to' Kolkata on RTF. The decision of the Respondent No.2 should be reasoned and speaking and issued in accordance with Rules/Circulars/Administrative Instructions governing the field and shall communicated to the applicant within a period of twelve weeks from the date of receipt of copy of this order.
8. With these directions, the O.A. is disposed of.
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We also impose costs of Rs. 10,000/- (Rupees Ten thousand only) on the r- ' respondents payable to the applicant to defray his costs of litigation.
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(Dr. Nandita Chatterjee) (Bidisha Banerjee)
Administrative Member Judicial Member
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