Central Administrative Tribunal - Chandigarh
Shri Sanjay Ekbote vs Union Of India Through Secretary To ... on 8 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.No.805-PB-2013 Pronounced on: 08.08.2013
Reserved on : 01.08.2013
CORAM: HONBLE MR. RANBIR SINGH, MEMBER (A).
Shri Sanjay Ekbote, Superintending Engineer, O/o The Commander Works Engineer, Pathankot-145 001
.. Applicant
VERSUS
1. Union of India through Secretary to Govt. of India, Ministry of Defence, Room No 101, A South Block, New Delhi 110 011
2. The Director General (Personnel), Military Engineer Services, E-in-Cs Branch, Kashmir House, Rajaji Marg, New Delhi 110 011
3. The Chief Engineer, Pathankot Zone Pathankot-145 001
.. Respondents
Present: Mr. Rohiteshwar Singh, Advocate, counsel for
Mr. G.S. Sathi, Advocate, Counsel for the respondents.
Respondents
O R D E R
HONBLE RANBIR SINGH , MEMBER (A) The order impugned in this O.A. is No.70001/SE/46/2013 dated 29th May 2013 whereby the applicant while working as CWE Pathankot has been transferred to the post of CCE (Army) Missamari as SO-1.
2.The relief sought is as follows :-
The present OA may kindly be allowed in toto and the impugned Transferred/Posting order dated 29.05.2013 issued by the respondent no. 2 may kindly be quashed or set aside in toto;
3. The following grounds have been taken for the relief sought:-
(a) The whole action on the part of respondents in issuing the (a) The whole action on the part of the respondents in issuing the impugned transfer order is without following the provisions of law and on the lower post has caused inequality amongst equals and has also discriminated the applicant by infringement of Articles 14 and 16 of the Constitution of India.
(b) Respondent No. 1 had issued an order No PC-4(8)/06-D(Air-II) dated 09.11.2009 wherein it is mentioned that the project locations of CCE are considered as field area for the purpose of pay and allowances and other administrative purpose.
(c) In letter No A/93114/CCEP/E2W(Est)/94/D (Works-I) dated 27.01.2011 of Respondent No.1 the post of Director in the CCE is tenable by Col/equivalent. In MES, SEs are posted as Director in staff appointment at par with Col and in executive appointment both SEs and Cols are posted as Commander Works Engineers (CWE). While some SEs have been correctly posted against vacancy tenable by a Colonel as Director, the applicants posting is issued to lower level appointment as SO I. The post of the CWC, on which the applicant is presently working is equivalent to the post of Director but vide impugned order he has been transferred to a lower post (SO I).
(d) Vide Letter No. 6/14/2001/D(Wks) dated 17.11.2003, Civilian Group A officers working as SE in PB-4 (Rs.37,400 to Rs 67,000/-) with grade pay of Rs. 8700/- are designated as Director in all staff appointments. The present post of applicant is CWE, which is equivalent to that of Director and not SO I. Therefore, issuance of issuance of impugned order (A-1) as SO I in CCE (Army) is arbitrary and illegal, where establishment sanction already exists for the post of Director, in fact amounts to reversion and against all established norms.
(e) As per clause 17 (c) and (d) of Cadre Management of MES Civilian Officers Guidelines issued by Director General (Personnel), E-in-Cs Br, Integrated HQ of MoD (Army), New Delhi vide letter No. B/20000/Policy/E1B dated 31.12.2012, it is provided fir issuance of a warning list of all officers (rank-wise and cadre-wise) at least 4 to 6 months in advance for all those, who are due for posting to tenure/hard stations. No such warning list for seeking choice stations for posting to hard stations was ever issued or hosted on departmental website by the concerned authorities. The applicant made a representation dated 25.03.2013 that he had attained the age of 49-1/2 years and put in more than 25 years of continuous service and as such he is not eligible for any field service. He had requested that ht should be considered for posting to any station in the country, other than any field / modified field / tenure station but the same was ignored.
(f) The impugned order is a clear violation of the provisions of the Civilian in Defence Services (Field Service Liability) Rules 1957 (SRO-92) vide which it is specifically mentioned that Civilians officers in Defence Service are liable to serve in the Field Area up to the age of 45 years and/or not having completed 25 years of continuous service and hence shall not be posted in the Field Area after attaining the age of 45 years and completion of 25 years of continuous service without his willingness. More over the said Rules were framed in 1957 under Article 309 of the Constitution of India, which are not amended or modified and are still in force. In the present case the applicant is having age more than 49 = years and further having more than 25 years of regular service.
(g) The case of the applicant is securely covered by the judgment dated 14.11.2011 of the Co-ordinate Bench of this Tribunal at Madras in O.A.No. 1028/2011 (A-9) and also judgment dated 08.10.2012 passed by the Coordinate Bench of this Tribunal at Jodhpur Bench in O.A.No.404/2012.
(h) The impugned transfer/posting order vide which the applicant has been transferred from Pathankot to Missamari (Counter-insurgency area) as SO-1, is a lower post then the post on which the applicant is presently working and further from one cadre to another cadre, which is a clear violation of the law settled by the Honble Supreme Court in a case 1977, SLR (Delhi) 176 - Ganga Prasad Sharma vs. Delhi High Court, according to which Unless there is a special provision in that behalf to the contrary, a civil servant is not liable to be transferred outside the cadre or the establishment except on deputation. He may, however, be transferred outside the cadre or establishment, otherwise than on deputation, by his consent. Such a transfer without his consent would ordinarily amount to unilateral change in the conditions of service and could be brought about only by statutory sanction.
4. Respondents have filed a reply statement in which it is contended that the applicant has not been transferred to field area. Under the classification, CCE (Army) No. 02, Missamari is a peace are as per HQ 4 Corps Notification No. 240/2012 dated 30th July, 2012 (Annexure R-1). The letter dated 14.1.1994 (Annexure R-2) apply to the TROOPS deployed in counter insurgency area. The applicant does not qualify for the conditions as Troops deployed for counter insurgency operations being a civilian officer. The duties rendered by an SE in a CE Zone as Director are same as that of SO-I i.e. as Section in-charge E1, E2, E3, E4 and E5 etc. The charter of responsibility of SO-I in the establishment of CCE is also the same. The re-designation of the civilian officers of MES was carried out vide Govt. of India MoD letter No. 6(14)/2011/D(Wks) dated 17th November, 2003. As per para No. 2 of the said letter, the re-designation of the posts does not involve any change in the existing charter of duties and responsibilities of the officers. Prior to re-designation of civilian officers, the post of Staff Officer Grade-I (SO-1) was tenable by SE. After re-designation, the post of SO-1 is termed as Director, which is to be tenanted by SE. The contention of the applicant hat the SE is not to be posted as SO-1 is incorrect. The posting of the officers ranking SE and above are issued after approval of respondent no.1. The applicant has been posted to a hard / tenure station since ha was due for hard / tenure station posting having done only one tenure station posting at Tezpur from 03.06.1992 to 03.06.1995 in AEE rank, whereas all officers are liable for posting at tenure station in each rank. The representation submitted by the applicant was devoid of merit. The applicant has not been posed to lower post. The applicant has been posted to an authorized MES establishment sanctioned by Govt. of India, MoD vide letter No. A/93114/CCEP/EWW(Est)/94/D (Works-I) dated 27.1.2011 Missamari is a peace area. Regarding reference to para 17 of the guidelines issued for Cadre management of MES Civilian Officers, it has been contended by the respondents that that para No. 28 of the same guidelines provides that the additional time of one year would be required for implementation of par a 17 due to administration reasons. The applicant does not become immune for hard / tenure station for want of advance slip being issued. No such list was being issued in the past and officers have been posted as and when due for turn over. The respondents have relied upon Notification No. 240/2012 dated 30.7.2012 issued by Headquarters 4 Corps relating to Special Compensatory (Counter Insurgency) Allowance (SCCIA) in peace/modified field / field area in which are Sr. No. 34, CCE (Army) No.2 Unit is mentioned with LOC as Missamari (Assam).
5. The applicant has filed a rejoinder in which it has been reiterated that the post of CWE on which the applicant is presently working is equivalent to the post of Director. However, respondent no. 2 vide impugned order has posted him on a lower post of SO I. Apart from reiterating reliance on the judgment dated 14.11.2011 passed by the Madras Bench of this Tribunal and judgment dated 08.10.2012 passed by the Jodhpur Bench of the Tribunal, reliance is also placed on decision of Honble High Court of Allahabad in a CWP No. 60610 of 2011 titled A. Arul Dhas Vs. Union of India and others in which similar impugned orders were quashed. In the rejoinder it has also been reiterated that the applicant had been recruited in the Military Engineer Services (MES) in 1995 and that too with the approval of the Union Public Service Commission (UPSC) as a Group A officer. As per rule 4(3) of SRO-95, the officers of the rank of SE cannot be posted as SO-I. Such posting are therefore vertically down in the hierarchy of service instead of a posting laterally. In support thereof a copy of SRO-95 dated 29.06.2004 issued by Respondent No. 1 has been filed which is known as the Indian Defence Service of Engineers (Recruitment and Conditions of Service) Rules, 2004.
6. I have heard the learned counsel for the parties and perused the pleadings.
7. The learned counsel for the respondents has placed reliance on 2006 SCC (L&S) 1890 S.C. Saxena Vs. Union of India & Others in which it has been stated that it is the duty of the Government servant to comply with a transfer order. He has also placed reliance on order dated 10.7.2013 of the Principal Bench of this Tribunal in O.A.No. 3031/2012 Rajiv Yadav Vs. Union of India & Others in which it was held that the declaration of the place of posting as a Peace Station cannot be questioned.
8. The applicant has filed a number of documents in support of his contention that (a) SE is to be posted as a Director and not as SO-I. Some of the documents filed by the applicant are noted below:
(a)Respondent No. 1 had issued letter dated 24.11.2003 (Annexure A-5) regarding Re-designation of Civilian Officers of MES vide which the existing post of Group A Superintending Engineer (Rs.14300-18300) was given revised designation of Commander Works Engineer in respect of the Executive appointments and revised designation of Director in Staff Appointments.
(b)Another letter is dated 27.1.2011 (Annexure R-2) of respondent no. 1 relating to Strengthening of MES and in-principle approval for Go-ahead sanction for infrastructure development in Eastern Command Establishment of 3 X CCEs for infrastructure development in Eastern Command has been sanctioned. At Sr. No. 2 post of Director (Col/Equivalent) has been mentioned. Blow that at Sr. No. 3 is Staff Officer-I/II.
(c)Another Letter is dated 30.7.2012 (A-14) which is on Court Case No. CMWP No. 60610/2011 it was stated that Col/SE/Director should be tenated as Senior PM. In Army Order No. A/85 regarding Designation of Appointments at the Army Headquarters. The rank of Col. Has been designated as Director (Dir). In the Engineers-in-Chiefs Branch Col. Has been shown as Director Personnel (MES), Lt. Col. Has been shown as SO (I). In the Engineers in Chief Branch in respect of Additional Director General of Engineer (Personnel) Co. has been shown as Director Personnel (Prs) and Lt. Col., has been shown as Director Pers (MES). In the Additional Directorate General of Engineering (personnel) Col,. Has been shown as Director Pers (MES) and Ld. Col. Has been shown as So I Engrs (Pers). In Work-study Directorate (Engrs) (WS Dte Engrs) Col. Has been shown as Dir WS (Engr) and Lt. Col., as SO 1 WS (Engrs). In Additional Directorate General lf Engrs. Stores and Plant, Col., has been shown as Dir-EsP and Lt. Col. As SO 1 (ESP 1, ESP 2 ). In Deputy Directorate General of Works (P&C), Lt., Col. Has been shown as SO I Wks (P&C1, P&C2).
(d)In letter dated 21.12.2004 (Annexure A-16) regarding restraining of the officers cadre of the Army issued by respondent no. 1 the existing appointment of SO 2 has been given the re-assigned appointment as SO I in Engineers in Chiefs Branch/CE-4. Corps at Sr. No. 830. SO I has been given the re-assigned appointment of SO I in Engineer-in-Chiefs Branch/Comd HQ/CE Zone/SWAC/CE Project (BRO)/HQ DGHR (BRO)/HQ DGAR at Sr. No. 829.
(e)In order dated 26.10.2010 (Annexure A-17) of the Military Secretarys Branch (MS-12A), Lt.Col. has been posted as SO (I).
(f)In letter dated 26.11.2008 of respondent no. 1 Director (SE) has been shown at Sr. No. 4 of the civilian cadre.
9. We also note that in O.A.No. 83/2011 decided on 15.2.2012 by the Principal Bench of this Tribunal it was held that the post of Lt. Col. could not be equated with that of SE. Further in the counter reply filed on behalf of respondent No. 1 by Smt Alka Joshi, Under Secretary, Ministry of Defence in O.A.No. 496/09 in the Coordinate Bench of this Tribunal at Lucknow it was stated that according to MOD notification dated 5.12.2008, Col. and SE should be posted in such a way that they are in separate lines reporting so that no SE is required to report to a Col. And vice versa and thereby holding SE equal to Col. It was further stated that as per the MES establishment sanction of 25.11.2008, the appointment of Director is tenable by Col. From the Army side and SE from the civilian side thus establishing the equivalence between Col and SE.
9. The applicant has also relied upon SRO No. 92 dated 26.2.1957 (A-3) containing the Civilians in Defence Service (Field Services Liability Rules, 1957, which provides that the Central Govt may if it is satisfied that a Civilian Govt. Servant who has completed twenty five years continuous service or who has obtained the age of forty-four years is willing to undertake the liability of field service, permit such servants to undertake such liability subject to the condition that such servant on the basis of medical examination is placed in General 1. We note that the Co-ordinate Bench of this Tribunal at Madras had in O.A.No. 1028 of 2011 Sanjay Sharma Vs. UOI etc. vide orders dated 14.11.2011 quashed transfer order which was in violation of SRO No. 92 dated 26.2.1957. Moreover, the coordinate Bench of this Tribunal at Jodhpur in O.A.No. 404/2012 Rameshwar Vs. UOI etc. decided on 8.10.2012 had held that SRO No. 92 dated 26.2.1957 was framed under Article 309 of the Constitution. The Honble Allahabad High Court in CWP No. 60619 of 2011 A. Arul Dhas Vs. Union of India etc.) had held vide orders dated 30.11.2011 that Missamari falls under counter insurgency area. The counter insurgency area would be field area and a person working on the post of Superintending Engineer could not be transferred to such an area in violation of the provisions of SRO No. 92.
10. In view of the aforesaid discussion, I find that while on the one hand the applicant has been transferred to a post lower than his present posting, on the other hand it is against the provisions of SRO No. 92 dated 26.2.1957 containing the Civilians in Defence Services (Field Services Liability) Rules, 1957. Therefore, the impugned order is quashed and set aside. No costs.
(RANBIR SINGH) MEMBER(A) Place: Chandigarh Dated:
HC*