Central Administrative Tribunal - Delhi
Sh. Satbir Singh vs Union Of India on 7 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.1970 /2013
New Delhi, this the 7th day of March, 2014
CORAM:
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..
Sh. Satbir Singh,
Aged 51 years,
s/oSh.Fateh Singh,
r/o 817, Laxmibai Nagar,
New Delhi 110023
(working Assistant Director (Horticulture),
Horticulture Division-6,
C.P.W.D., I.P.Bhawan,
New Delhi) .. Applicant
Advocate for applicant- Shri R.N.Singh
Vrs.
1. Union of India,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi-110011
(Through its Secretary)
2. The Director General,
Central Public Works Department,
Nirman Bhawan,
New Delhi-110011
3. The Director of Horticulture (NDR),
Central Public Works Department,
I.P. Bhawan,
New Delhi-110002 . Respondents.
Advocate for respondents - Shri Rajesh Katyal ..
ORDER
Honble Shri Raj Vir Sharma, Member(J):
In this Original Application, applicant Shri Satbir Singh, Assistant Director (Horticulture), Horticulture Division No.VI, CPWD, I.P.Bhawan, New Delhi, has prayed for quashing the Office Order No.87/2013, dated 23.5.2013, issued by the Director (Administration), Directorate General, Central Public Works Department, transferring him from Delhi to Dehradun, vice Shri Satya Vir Singh, vide Sl.No.2 of the said Office Order.
2. Brief facts of the applicants case run thus: The applicant joined the service as Section Officer (Horticulture) on 1.8.1983. He was promoted to the post of Assistant Director (Horticulture) on 31.12.2010. He had worked at various places as and when so posted by the respondents. The O.M. No.88/2/2004-EC-III, dated 10.8.2004 (Annexure A-1), issued by respondent no.2, contains the guidelines for transfer/posting of Assistant Directors (Horticulture). The said O.M. dated 10.8.2004, vide clause 2, prescribes that officers posted in Delhi will generally be transferred to outstation on the basis of the longest stay in Delhi. In the list of longest stayee Assistant Directors (Horticulture) posted in Delhi as on 31.1.2013 (Annexure A-2), the name of the applicant appears at Sl.No.6. It is the applicants case that the persons at Sl.Nos.1 to 3 and 5 of the said list have not been transferred out of Delhi, whereas by adopting pick and choose policy and in violation of the said transfer guidelines, the respondent-Department has transferred him from Delhi to Dehradun. In paragraph 4(vii) of the O.A., the applicant has stated that at the time of issuance of the order of transfer, his son was studying MBA at N.P.T.I., Faridabad and would be completing the said course in May-June 2014. Because of non-availability of hostel accommodation or any other alternate accommodation, his son was residing with him at the Government accommodation and that his untimely displacement from Delhi would not only cause financial and other hardships, but also adversely affect the studies of his son. The representations made by the applicant having yielded no fruitful result, the present O.A. has been filed by him.
3. The respondents have filed a counter reply resisting the claim made by the applicant. It is stated that the transfer of the applicant has been ordered as per the transfer guidelines, vide O.M. dated 10.8.2004. It is also stated that while making such transfer, various other factors, such as, public interest, exigency of work, individual representation, etc., are also taken into consideration by the respondents. In reply to the applicants assertion regarding non-transfer of officers at sl.nos. 1 to 3 and 5 of the list of longest stayee Assistant Directors (Horticulture) circulated on 19.3.2013, it is stated that the officer mentioned at Sl.No.1 is working as Assistant Director (Horticulture) in the Lok Sabha Secretariat. Under the existing instructions issued by the Ministry of Urban Development dated 21.11.2005(Annexure R-2), prior concurrence of the Lok Sabha Secretariat is required to be taken for posting of CPWD officers up to the level of Superintending Engineer (including Horticulture Wing). A panel of officers was accordingly sent to the Lok Sabha Secretariat for selecting an officer. However, the Lok Sabha Secretariat extended the tenure of the said officer up to 30.9.2014. The Directorate General, C.P.W.D., however, took up the matter with the Secretary General, Lok Sabha Secretariat, to relieve the said officer immediately, he being the longest stayee officer, but no response was received. As regards the officers at sl.nos. 2 and 3 in the list of longest stayee Assistant Directors (Horticulture), it is stated by the respondents that the said two officers were posted at Prime Ministers Office and Prime Ministers Residence respectively. Under the existing instructions, consultation with Prime Minsters Office for making transfer/posting of the officers, who are assigned the responsibility of looking after the work of the P.M. House and P.M. Office, is necessary, vide instructions dated 18.7.2002 (Annexure R-5) issued by the Ministry of Urban Development. The panel of officers sent to the Prime Ministers Office for selecting suitable officer in place of the officer at sl.no.2 was returned by the Prime Ministers Office requesting that status quo may be maintained. However, the matter was again taken up with the Prime Ministers Office to relieve these officers immediately, vide letter dated 1.7.2013. As regards the officer mentioned at sl.no.5, the respondents have stated that the said officer submitted a representation for his retention at Delhi for one year on account of marriage of his daughter. His request was considered on a very sympathetic ground and he would be transferred as per norms in the year 2014. In view of the above, the respondents have prayed for dismissal of the O.A.
4. In the rejoinder reply, the applicant has refuted the stand taken by the respondents. The applicant has stated that it is for the respondents to ensure that the transfer policy is strictly implemented, and that the respondents cannot take shelter of the pretext that they are not getting concurrence/clearance from the Lok Sabha Secretariat or the Prime Ministers Officer. It is submitted by the applicant that the respondents cannot create two groups in the cadre to which the applicant and the officers named at sl.nos.1 to 3 and 5 of the list of longest stayee Assistant Directors (Horticulture) belong. That is to say, one group would remain posted to the Lok Sabha Secretariat and the P.M.O, and the other group would be posted to the places as per the whims and fancy of the respondents. The applicant has stated that no prior concurrence or approval was taken by the respondents from the Lok Sabha Secretariat or the P.M.Office for posting of officers at sl.nos.1,2 and 3 of the list of longest stayee Assistant Directors (Hort.).
5. The applicant has also filed an additional affidavit along with the following documents:
i) Government of India, Central Vigilance Commissions letters dated 15.4.1999, 1.5.2008, 11.9.2013 regarding rotation of officials working in sensitive posts.
ii) Directorate General, CPWDs circular dated August 2013.
Government of India, Directorate General, CPWD, letter dated 19.11.2013 granting recognition to CPWD Horticulture Officers Association.
CPWD Horticulture Officers Associations letter intimating the names of office bearers of the Association to the respondent no.2.
CPWD Horticulture Officers Associations letter dated 2.12.2013 claiming transfer of the applicant as General Secretary to the headquarters.
O.M. No.27/3/69-Estt.(B) dated 8.4.1969 of Government of India, Ministry of Home Affairs, regarding facilities for recognized Unions/Associations of the Central Government employees.
Referring to the aforesaid documents, the applicant has submitted that the respondents should have effected rotational transfer of officers working in sensitive posts and that he being the General Secretary of the Association is entitled to certain benefits including his posting to the headquarters at Delhi.
6. On 7.6.2013, the Tribunal passed an interim order staying the operation of the impugned order of transfer. The said interim order is still continuing.
7. I have perused the records and heard the learned counsel appearing for the parties.
8. Shri R.N.Singh, the learned counsel for the applicant, vehemently submitted that the impugned order transferring the applicant from Delhi is in clear violation of the transfer guidelines in as much as the officers, who are named at sl.nos.1 to 3 of the list of longest stayee Assistant Directors (Horticulture), have been allowed to continue in Delhi, whereas the applicant, who is at sl.no.6 of the said list, has been transferred from Delhi. The reasons assigned by the respondents for not transferring the said officers are untenable because at the time of their posting to work as Assistant Directors (Horticulture) at the Lok Sabha Secretariat or at the P.M.Office/P.M. Residence, no prior concurrence was obtained by the respondents and therefore, their transfer from Delhi did not require such prior concurrence. It was also submitted by the learned counsel that if the said three officers have been posted to work in sensitive posts, the respondents should have transferred the said three officers and posted other officers in their places by rotation in terms of the Central Vigilance Commissions instructions cited by the applicant in his additional affidavit. Besides, the learned counsel submitted that the applicant being the General Secretary of the CPWD Horticulture Officers Association is entitled to continue in Delhi as per the O.M. dated 8.4.1969 issued by the Ministry of Home Affairs.
9. Per contra, Shri Rajesh Katyal, the learned counsel appearing for the respondents, submitted that the transfer of the applicant has been ordered as per the transfer guidelines and that while making such transfer, various other factors, such as, public interest, exigency of work, individual representations, etc. are considered by the respondents. The non-transfer of the officers at sl.nos.1 to 3 for the administrative reasons assigned in the counter will not give a right to the applicant to continue in Delhi, more particularly when he has completed the tenure. It was also submitted by the learned counsel that the other grounds urged by the applicant to continue in Delhi are unsustainable in as much as the CVCs instructions are not applicable to the facts and circumstances of the case, and the applicants becoming General Secretary of the Association is an event subsequent to the issuance of the order of transfer and filing of the Original Application.
10. Before proceeding to consider the merits of the rival contentions urged by the learned counsel for the parties, it is necessary to bear in mind the law regarding the scope of interference in judicial review assailing the order of transfer.
11. In Shilpi Bose v. State of Bihar, 1991 Supp.(2) SCC 659, the Honble Supreme Court, at page 661, para 4, observed thus:
4. In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order. Instead affected party should approach the higher authorities in the department.
12. In Union of India v. S.L.Abbas, (1993) 4 SCC 357, at page 359, Para 7, the Honble Supreme Court observed that:
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration.
13. A three-Judge Bench of the Honble Supreme Court in Major General J.K.Bansal v. Unon of India and others, (2005) 7 SCC 227, has also adopted the aforesaid view.
14. In State of M.P. and another v. S.S.Kourav and others, 1995(2) SLJ 109 (SC): (1995) 3 SCC 20, the Honble Supreme Court observed:
The Courts or Tribunals are not the appellate forums to decide on transfer of officers on administrative grounds; the wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places; it is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fide or by extraneous consideration without any factual background foundation.
15. Again, the Honble Supreme Court in State of U.P. and Another v. Siya Ram and another, 2005 (1) SLJ 54 (SC): (2004) 7 SCC 405, where the respondents therein were transferred on administrative grounds, the Honble Supreme Court observed thus:
5. The High Court while exercising jurisdiction under Articles 226 and 22 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No Government servant or employee of a public undertaking has any legal right to be posted for ever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to the other is not only incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or Tribunals normally cannot interfere with such orders as a matter of routine, as though they were Appellate Authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan.
6. The above position was recently highlighted in Union of India v. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest.
16. Again, the Honble Supreme Court in State of U.P. v.
Gobardhan Lal, 2004 (3) SLJ 244(SC): (2004) 11 SCC 402, in paragraphs 7 and 8 observed thus:
7. It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfer or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the Competent Authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the state and even allegations of mala fides when made must be as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
17. There are no two opinions that transfer is an incident of service where the Government employee holds a transferable post. It is a normal feature and the order of transfer is not ordinarily liable to be interfered with on the judicial side provided it is not without jurisdiction; it is not passed in violation of any statutory rule; it is not motivated by malice of fact or law; and it is otherwise not punitive in nature. It is also settled that the Government is the best judge to utilize the services of its employees and to place and post them at its discretion and such posting does not infringe any of the legal rights of the employees in as much as no employee has any right to remain posted at one place or to insist for a particular posting.
18. In the instant case, certainly none of the above grounds have been pressed into motion and the only point which has been canvassed is that the Respondents having framed a policy on transfer and having published the same are supposed to abide by such a policy and any action in violation of the same cannot stand the approval of Articles 14 and 16 of the Constitution of India.
19. The O.M. No.88/2/2004-EC-III, dated 10.08.2004, issued by the Government of India, Directorate General of Works, Central Public Works Department, reads thus:
Sub: Transfer guidelines for Assistant Director of Horticulture in C.P.W.D. The undersigned is directed to say that the existing transfer policy in the grade of Assistant Director of Horticulture in CPWD has been reviewed and the Director General of Works is pleased to decide that future transfer s be made on the following guidelines:
A tenure of five years in Delhi and three years outside Delhi would normally be allowed.
Officers posted in Delhi will generally be transferred to outstation on the basis of the longest stay in Delhi except in the case of a hard station where the tenure will be for a period of two years in the normal course.
Officers who are within two years of retirement may not be shifted to outstation or another station provided they make such a request.
In case of promotion as Assistant Director (Hort.), they shall move to available vacancy at outstation provided two years or more have been spent in Delhi. This, however, does not preclude the competent authority from ordering the transfer/posting on promotion of such an officer to outstation if it is considered necessary in public interest and on grounds of administrative exigencies.
The period on deputation in any particular station in India will be treated as period of stay at that station. However, the period of deputation spent outside India will be the period spent on the station from where the officer proceeded on deputation abroad.
Notwithstanding anything stipulated in any of the clauses given in these guidelines, the DG (W) shall have the discretion to waive any or all of the conditions and make transfer/postings as deemed fit, taking into consideration the administrative and other exigencies.
The officers who have been transferred to a station reachable in a day time or involves a journey within five hundred KM radius shall be transferred next time to a station reachable beyond overnight journey/more than five hundred KM radius as far as possible.
The competent authority may allow extension of tenure in any office or at a station beyond the normal tenure if sufficient grounds for doing so exist.
In the absence of options, officers with longest stay shall be considered for posting outside Delhi.
No direct recruit shall be posted in a Horticulture Sub Division functioning independently for a period of two years.
Permission for study outside office hours will not be a ground for retention at a particular station.
The posting in any of the satellite towns around Delhi will be stated as the posting in Delhi.
The transfer guidelines now finalized are brought to the notice of all the concerned for information.
20. In the present case, it is found from the list of longest stayee Assistant Directors (Horticulture) prepared as on 31.1.2013 that the applicant had been posted to Delhi on 11.6.2004. He had thus completed the tenure of five years in Delhi on 10.6.2009. The impugned order transferring him from Delhi to Dehradun was issued on 23.5.2013, i.e., after about nine years of his stay in Delhi and also after about four years of his completing the tenure of posting to Delhi. Therefore, he cannot be said to have been ordered to be transferred in violation of the transfer guidelines. As regards the continuance of the officers at sl.nos. 1 to 3 of the list of longest stayee Assistant Directors (Horticulture) in Delhi, the respondents have placed on record materials showing reasons for not transferring the said officers from Delhi, as earlier noted. It is not that the respondents have allowed the said officers to continue in Delhi without rhyme or reason. It is nowhere laid down in the transfer guidelines that if any longest stayee Assistant Director (Horticulture) at a particular place is not transferred, the same will entitle the other officers to continue at the same station even though they have completed the tenure of posting there. In terms of the transfer guidelines also, the officers who complete the tenure of their posting outside Delhi and at hard station are also entitled to be transferred from those places. Therefore, it cannot be said that the respondents have deviated from the transfer guidelines in transferring the applicant from Delhi and in not transferring the said officers at sl.nos.1 to 3 without any administrative exigency. Clause 6 of the transfer guidelines dated 10.8.2004 (ibid) stipulates that notwithstanding anything contained in any of the clauses given in the guidelines, the Director General (Works) shall have the discretion to waive any or all of the conditions and make transfer/postings as deemed fit, taking into consideration the administrative and other exigencies. Viewed from this angle also, the transfer order in respect of the applicant cannot be faulted on the grounds of non-transfer of the said officers at sl.nos. 1 to 3 of the list of longest stayee Assistant Directors (Horticulture) in Delhi.
21. The reference made by the applicant to the instructions issued by the Central Vigilance Commission is inapt in the present case in as much as the said instructions speak about the rotational posting and transfer of officers to/from sensitive posts in the Department. The said instructions are not laid down on the subject of posting and transfer of officers in Departments to different places in terms of the transfer policy guidelines. Even assuming for a moment that those instructions have any relevance, yet the same do not help the case of the applicant because he has been continuing in Delhi since last about 10 years.
22. As regards the applicants claim to continue in Delhi as he is the General Secretary of the CPWD Horticulture Officers Association, it is found from the materials available on record that the applicant was nominated as General Secretary of the Association on 25.11.2013, i.e., much after the impugned order of transfer dated 23.5.2013 was issued by the respondents. Therefore, his being the General Secretary of the Association, the impugned transfer order cannot be faulted. Besides, the O.M. dated 8.4.1969 issued by the Ministry of Home Affairs inter alia provides that the General Secretary may be brought on transfer to the headquarters of the appropriate head of administration as far as possible. It is thus clear that the O.M. dated 8.4.1969 (ibid) does not lay down that the General Secretary or the Chief Executive of an Association of employees/officers shall necessarily be posted to the headquarters. Therefore, the applicant cannot be said to have an indefeasible right to continue in Delhi by virtue of his being the General Secretary of the Association.
23. In the light of the above discussions, I hold that the Original Application is devoid of merit. Accordingly, the Original Application is dismissed. The interim order dated 7.6.2013 passed by the Tribunal stands vacated. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN