Central Administrative Tribunal - Delhi
Arsh Verma vs M/O Home Affairs on 26 October, 2021
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O.A. No.1187/2021
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1187/2021
M.A. No. 1664/2021
Order reserved on 05th October, 2021
Order pronounced on 26th October, 2021
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Arsh Verma, IPS (WB : 2017), Gp „A‟,
(Aged about 30 years)
S/o Sh. Ram Niwas Verma,
R/o H.No. 1, Govt. PG College Campus,
Sector - 1, Panchkula, Haryana,
presently posted as Additional Superintendent of Police,
Raiganj PD, West Bengal
...Applicant
(Mr. M K Bhardwaj, Advocate)
Versus
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
Govt. of India, North Block, Cabinet Secretariat,
Raisina Hill, New Delhi - 110001
2. Govt. of West Bengal,
Through its Chief Secretary,
Govt. of West Bengal,
Nabanna (13th Floor), 325, Sarat Chatterjee Road,
Shibpur, Howrah - 711102
3. State of Haryana
Through its Chief Secretary,
4th Floor, Haryana Civil Secretariat,
Sector - 1, Chandigarh.
...Respondents
(Mr. Hanu Bhaskar, Advocate for respondent No.1,
Ms. Madhumita Bhattacharjee, Advocate for respondent
No.2, and Mr. Shekhar Raj, Advocate for respondent No.3)
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O.A. No.1187/2021
ORDER
Ms. Manjula Das, Chairman:
The applicant is an IPS officer of 2017 batch and was allotted the West Bengal cadre. He was married to one Nikita Khattar, an IPS officer of 2018 batch of Haryana cadre. The home cadre of both the applicant and his wife is Arunachal Pradesh-Goa-Mizoram & Union Territory (AGMUT). On 12.07.2019, the applicant made an application, requesting to change his cadre from the State of West Bengal to that of the State of Haryana, on grounds of marriage. It is stated that vide letter dated 20.08.2019, the State of Haryana gave its „no objection‟ for the proposal. However, the State of West Bengal has not taken any decision in this regard. The applicant made detailed representation dated 13.12.2019 to the State of West Bengal to consider his case for cadre transfer on compassionate grounds as after the death of his father, there was no one to take care of his ailing mother. Since no decision was taken by the respondent No.2, the applicant filed the instant O.A. seeking the following reliefs:-
"(i) To declare the action of respondent no.2 in delaying the NOC and thereby delaying the joining of applicant in Haryana Cadre as illegal and issue appropriate directions as illegal and issue appropriate directions to Respondent No2 to issue NOC and relieve the applicant to join the Haryana Cadre.3 O.A. No.1187/2021
(ii) To direct the respondents to complete the requisite exercise of change of cadre of applicant from West Bengal to State of Haryana without any delay and by following the same analogy as followed in the case of Bhavna Gupta, Loganayagi Divya V. and Gandharva Rathore.
(iii) Such other and further order which their Lordships of this Hon‟ble Tribunal deem fit and proper may please be passed."
2. The applicant contended that the Government of India has framed the Rules and issued guidelines providing for transfer of officers of All India Service (AIS) from one cadre to another, in case they are married to officers of AIS from other cadres. He contended that there was absolutely no basis for the 2nd respondent for not taking decision on his request for cadre transfer. He has also pleaded that the shortage of officers is not a ground, in view of the judgements of the Hon‟ble Supreme Court.
3. Though the respondent No. 1 (Union of India) and respondent No.3 (State of Haryana) have not filed any counter affidavits, respondent No.2 (State of West Bengal) has filed its counter affidavit. While the respondent Nos.1 & 3 did not oppose the O.A., the respondent No.2 opposed the O.A., stating that though marriage of one AIS officer to another officer of different cadre, may constitute a ground for seeking inter-cadre transfer, much would depend upon the number of officers working in the cadre and the 4 O.A. No.1187/2021 administrative exigencies. Various contentions urged by the applicant are denied.
4. Today, we heard Mr. M K Bhardwaj, learned counsel for applicant, Mr. Hanu Bhaskar, learned counsel for respondent No. 1, Ms. Madhumati Bhattacharjee, learned counsel for respondent No. 2 and Mr. Shekhar Raj, learned counsel for respondent No.3, in detail.
5. The allocation of officers of the AIS takes place at the threshold of their career. Since most of the candidates are selected and appointed when they are relatively young, they may get married after entering into service. In case, both the spouses remain at the same or proximate places, it would be easier for them to manage their careers and households simultaneously. However, if the spouse of such officer hails from a different cadre, its impact would naturally be felt on the quality of service rendered by such officers. Obviously, for that reason, the Government of India framed a policy in 2009 providing for change of cadre of officers of AIS, in case he or she is married to an officer of AIS, belonging to a different cadre.
6. The issue pertaining to transfer of AIS officers from one cadre to another is governed by Rule 5 (2) of IAS 5 O.A. No.1187/2021 (Cadre) Rules, 1954. The guidelines were also issued in this behalf in the year 2004. The only condition is that the marriage of an officer of AIS of a particular cadre must be with another officer of AIS belonging to another cadre. In other words, the transfer of cadre cannot be permitted, if the marriage is to a person, who does not belong to AIS.
7. At the threshold of his career itself, the applicant married an IPS officer of 2018 batch, but of Haryana cadre. The guidelines provide for permission to seek change of his cadre. The applicant submitted a representation to the authorities. Though the State of Haryana, vide its letter dated 20.08.2019, gave its „no objection‟ for the proposal, the State of West Bengal did not take any decision on the application. The stand taken by the latter in its counter affidavit reads as under:-
"4. That it is humbly submitted that the State of West Bengal is currently facing an acute shortage of trained IPS Officers, and in spite of taking steps to fill the required sanctioned strength, the State sill needs sizeable strength for proper administration and for ensuring the maintenance of the law and order in the State. That the present shortage is evident from the fact that the cadre strength of IPS officers in State of West Bengal is 347, while the actual number of officers in position is 276 only.
5. That it is humbly submitted that, the Applicant herein could not be considered for inter-cadre transfer from West Bengal cadre to Haryana Cadre due to Administrative reason only. That there is no deliberate intention of the department to stay the grant of 6 O.A. No.1187/2021 NOC/relieving letter of the Applicant, but due to the reason that new officers having joined the West Bengal cadre in the 2019 batch, need time to develop their skills in discharging their duties and therefore till such time, the State is constrained to hold back the NOC/release of the existing trained officers presently posted in the State.
6. That the Respondent, on the other hand, is also not oblivious to the fact that the present situation is demanding on the family life of the Applicant and to ensure the well-being of the applicant, the Respondent is willing to agree to the application, if any, made by the spouse of the Applicant herein seeking inter-cadre transfer to the State of West Bengal."
8. Across the Bar, Ms. Madhumati Bhattacharjee, learned counsel for respondent No.2 submitted that there is acute shortage of IPS officers in the State of West Bengal. Even if it is true, the Hon‟ble Supreme Court held that the shortage of officers does not constitute a ground to deny the request of an officer.
9. Further argument of Ms. Madhumati Bhattacharjee, learned counsel for respondent No.2 is that the word „may‟ is used in Rule 5 (2) and it confers discretion upon the concerned State in the context of granting „no objection‟. It is true that the word „may‟ is used. However, there are many instances where the word „may‟ is to be taken as „shall‟ and the Hon‟ble Supreme Court has already interpreted the provision and held that the State Government has no alternative except to grant „no objection‟. 7 O.A. No.1187/2021
10. Recently in Lakshmi Bhavya Tanneeru v. Union of India & others (O.A. No.1299/2020) decided on 02.02.2021, this Tribunal dealt with the issue in some detail. The instances of similar requests for transfer being denied by the State of West Bengal were taken note of and it was observed as under:
"10. It is relevant to mention that at one stage the request made by as many as 05 IAS officers of cadre viz., (1) Ms. Nidhi, 2013 batch, (2) Ms. Reena Nirajan, of 2013 batch, (3) Ms. Kritika Sharma, of 2014 batch, (4) Ms. Laxmi Bhavya Taneeru of 2015 batch, (the applicant herein) and (5) Ms. R. Alic Vaz of 2005 batch, were pending with the Government of West Bengal including of those of the applicant.
11. Taking exception to the inaction on the part of the government of West Bengal, Government of India, addressed a letter dated 28.09.2017. The text of the letter is as under:
"As you are aware, five IAS officers of West Bengal cadre namely Ms. Nidhi, IAS (WB:2013), Ms. Reena Nirajan, IAS (WB:2013), Ms. Kritika Sharma, IAS (WB:2014), Ms. Lakshmi Bhavua Taneeru, IAS (WB:2015) and Ms. R. Alice Vaz, IAS (WB:2005) have sought transfer of cadre to AGMUT, Uttarakhand, Uttar Pradesh, Tamil Nadu and AGMUT respectively on grounds of marriage to members of All India Services. However, the Government of West Bengal has regretted grant of no objection for transfer of these officers. The details are annexed to this letter.
2. As per guidelines contained in this Department‟s O.M. No.13017/16/2003 AIS-I dated 08.11.2004, All India Service officers who are married to All India Service officers are allowed to move to cadre of one of the spouses which they choose subject to the condition that 8 O.A. No.1187/2021 the cadre is willing to accept the officer on transfer. This policy is made to ensure that the family of the AIS Officer is not disturbed and they are able to service in the same state.
3. In the cases mentioned above, the cadres to which these officers have sought transfer have already given their NOCs for cadre transfer on grounds of marriage except in respect of Ms. R. Alilce Vaz, IAS, in whose case NOC from the Ministry of Home Affairs is yet to be sought by this Department. 4. Taking into account the hardship currently being faced by these officers, I would request you to kindly reconsider the matter and issue "No objection" for inter cadre transfer of these five IAS officers."
12. After the said letter was addressed, the 2nd respondent gave its consent in favour of Ms. R. Alice Vaz on 05.03.2018. It is important to mention that while in respect of all other four officers, the States to which they sought change of cadre, gave consent, such a consent did not exist in favour of Ms. R. Alice Vaz. Still the 2nd respondent has chosen to give consent in her favour, while denying it in case of others.
13. Ms. Kritika Sharma, one of the five IAS officers, mentioned above, filed OA.No.995/2020, before this Tribunal citing the relevant reasons. The OA was allowed, vide order dated 22.12.2020. The same situation obtains in this OA also."
The said O.A. was allowed and direction was issued to the respondents to give consent for the change of cadre of the applicant therein.
11. In Gandharva Rathore v. Union of India & others (O.A. No.3579/2019) decided on 04.12.2020, this Tribunal took note of the delay being caused in giving consent and thereafter relieving the officers. After taking various aspects into account, the Tribunal directed that the 9 O.A. No.1187/2021 applicant therein shall be deemed to have been relieved. It is brought to our notice that in W.P. (C) No.4048/2021 filed against the said order was dismissed by the Hon‟ble High Court of Delhi and SLP (C) No.7986/2021 was also rejected by the Hon‟ble Supreme Court in the recent past.
12. Having regard to the facts and circumstances, we allow the O.A. and direct the 2nd respondent (State of West Bengal) to consider the request of the applicant for issuance of „no objection‟, keeping in view the guidelines issued by the Government and the judgments rendered so far by the Tribunal, Hon‟ble High Court and the Hon‟ble Supreme Court in the similar cases, within two months from the date of receipt of a copy of this order.
There shall be no order as to costs.
( Mohd. Jamshed ) ( Manjula Das ) Member (A) Chairman /sunil/