Central Administrative Tribunal - Delhi
Yashoda Nandan vs Information And Broadcasting on 16 October, 2024
Item no.03(C-6) OA/3974/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA/3974/2024
NEW DELHI, this the 16th day of October, 2024
HON'BLE MR. AJAY PRATAP SINGH, JUDICIAL MEMBER
Yashoda Nandan, Aged 53 Years, Group 'A',
Working As Director (Engg.), S/O Shri Babu Lal Prasad,
R/O 702, Tower-3, Shanker Greens, Taaj Nagri, Phase-2,
Agra, : Uttar Pradesh: 282001.
...Applicant.
-Versus-
1. Union Of India
Through It's Secretary, Ministry Of Information And
Broadcasting, Shastri Bhawan, New Delhi-110001.
2. Parsar Bharati, Through Its Chief Executive Officer,
Parsar Bharati House, Copernicus Marg, New Delhi-110001.
...Respondents
__________________________________________________________
For Applicant:- (i) Mr. Asish Nischal, Advocate.
For Respondents:- (i) Mr. R K Jain, Sr. CGSC with Ms. Nidhi Jain,
advocate, for Respondent no.1.
(ii) Mr. SM Arif, Sr. Panel Counsel for Respondent
no.2.
___________________________________________________________
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Page 1 of 9
Item no.03(C-6) OA/3974/2024
ORDER (ORAL)
Per Mr. Ajay Pratap Singh, Member (Judicial):-
Heard the learned counsel for the respective parties with consent at the admission stage.
2. By way of the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following relief(s) (as extracted from the OA):
"i). Quash and set aside Impugned Order dated 09.10.2024, limited to the extent of transferring the applicant, from Akashvani Agra to Director General Akashvani Delhi;
ii). Respondents be directed to transfer the applicant to Panaji (Goa), as per his first choice of posting;
iii). Pass any order/relief/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant."
3. Issue notice to the respondents. Mr. R K Jain, learned Sr. CGSC with Ms. Nidhi Jain, advocate, for Respondent no.1 and Mr. S M Arif, Sr. Panel Counsel for Respondent no.2, appear on advance service and accept notice. Service of notice is waived off.
4. Shri Asish Nischal, learned counsel appearing for the applicant, contended and can be summarized as:-
(i). The applicant joined the department as Assistant Director (Engineering) in the year 1995 and is presently holding the post of Director Page 2 of 9 Item no.03(C-6) OA/3974/2024 Engineering at Agra. The respondents, vide order dated 15.04.2024, have promoted the applicant to the post of Deputy Director General, Junior Administrative Grade in PB-4, Grade Pay 8700/- Level 13, and the said promotion shall be given effect on the date of assumption of charge and the applicant is presently working on the post of Director Engineering at Agra and has not been relieved till date.
(ii). The applicant has submitted three choice stations for posting on promotion and three choice stations of preference:-
1. Panji (Goa),
2. Dehradun (Uttarakhand) and
3. Shimla (Himachal Pradesh).
So also requested the respondents to consider the first choice, i.e., Panji (Goa) as his son is differently abled and therefore he will be able to be a caregiver at Panji (Goa).
(iii). According to the policy of the respondents, a caregiver has to be given special consideration for choice stations. So also submits that at present at Panji (Goa) there is a clear cut vacancy w.e.f. 13.10.2024. The applicant also submitted representations to the respondents dated 18.06.2024 and 28.07.2024. However, without considering the pending representations of the applicant, respondents have issued the said impugned order dated 09.10.2024 by transferring the applicant on promotion from Agra to Delhi.
(iv) The respondents have acted dehors the circulars and transfer policy dated 26.03.2021 and under Clause 9 of the said Page 3 of 9 Item no.03(C-6) OA/3974/2024 policy, once options have been sought, respondents were under obligation to follow their own transfer policy dated 26.03.2021 and if request preference stations were not accepted, respondents could have minimum shown indulgence to record reasons for not considering the request in spite of available vacancies at Panji (Goa).
5. Mr. Asish Nischal, learned counsel appearing for the applicant further draws attention to the order of Co-ordinate Bench of this Tribunal at Guwahati dated 01.10.2024 in OA/19/2024, which reads as under:
"Admittedly, applicant had completed his tenure posting at Air Force Station, Dinjan and the respondents had considered him for posting to his second and third options. Since the applicant did not agree with posting at Sulur (2nd Option) or at Bangalore (his home town), the respondents posted the applicant to his third option, however, no reasoning has been assigned as to why his case was not considered for posting to his first option - Delhi despite availability of clear vacancies. In view of the above, in the interest of justice, the respondents are hereby directed to reconsider the matter afresh for his posting in order of preference. If upon such reconsideration, it is not possible to post the applicant in his first option despite available of clear vacancies, the respondents should divulge the reasons for such decision. The exercise shall be completed as expeditiously as possible but not later than two months' from the date of receipt of a copy of this Order. Till such time, status quo order dated 25.01.2024, extended from time to time, shall be maintained.
18. The OA is disposed of as per the above terms. Consequently, MA No.040/00051/2024 is also disposed of."
6. Mr. Asish Nischal, learned counsel appearing for the applicant further draws attention to the order of Hon'ble High Court of Judicature at Allahabad, Lucknow Bench in Writ-A No.3793 of 2022, in the case of Neeraj Chaturvedi Vs. Central Bank of India, vide judgment dated 09.06.2022 held that if any employee has been Page 4 of 9 Item no.03(C-6) OA/3974/2024 protected from any beneficial or compassionate policy, the same may not be ignored unless there is any administrative reason to transfer such person from one zone to another. Their Lordship was seisin with transfer order and relieving order of officer of Central Bank of India. The relevant paragraphs' of the said judgment is reproduced herein below:-
"6. Since one memorandum of DOPT dated 08.10.2018 has been referred in the aforesaid guideline of the Bank so Sri Kumar has demonstrated such office memorandum being issued by the DOPT dated 08.10.2018 which has been annexed as Annexure No.5 to the writ petition. He has drawn attention of this Court towards para-3 (i) & (iii) of the aforesaid office memorandum of DOPT dated 08.10.2018, which read as under:-
"(i) A Government employee who is a care-giver of dependent daughter/son/parents/ spouse/ brother/ sister with Specified Disability, as certified by the certifying authority as a Person with Benchmark Disability as defined under Section 2 (r) of the Rights of Persons with Disabilities Act, 2016 may be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints.
(iii) The term 'Specified Disability' as defined herein is applicable as grounds only for the purpose of seeking exemption from routine transfers/ rotational transfer by the Government employee, who is a care-giver of dependent daughter/son/parents/ spouse/ brother/ sister as stated in para-3
(i) above."
7. Sri Shireesh Kumar, learned counsel for the petitioner has submitted that so as to understand the meaning of 'care-giver', 'benchmark disability' and 'permanent disability', the relevant provision of Rights of Persons with Disabilities Act, 2016 (here-in-after referred to as the "Act, 2016") may be perused. Section 2 (d) of the Act, 2016 defines 'care-giver', Section 2 (r) defines 'benchmark disability' and Section 2
(s) defines 'person with disability', for convenience, Section 2 (d), (r) &
(s) are being reproduced here-in-below:-
"2 (d) "care-giver" means any person including parents and other family Members who with or without payment provides care, support or assistance to a person with disability;
(r) "person with benchmark disability" means a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority;Page 5 of 9
Item no.03(C-6) OA/3974/2024
(s) "person with disability" means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others."
7. Mr. Asish Nischal, learned counsel appearing for the applicant also submits that the said impugned order dated 09.10.2024 is arbitrary and misuse of discretion and without assigning reasons is contrary to law laid down by Hon'ble Supreme Court in case of Kranti Associates Private Limited & Another Vs Masood Ahmed Khan (2010) 9 SCC 496, Mohinder Singh Gill Vs. The Chief Election Commissioner, AIR 1978 SC 851. The Hon'ble Supreme Court in Para-47 of Kranti Associates (supra) has summarized and has specifically held that trend in India always has been to record reasons even in administrative reasons if such decision affects anyone prejudicially.
8. The learned counsel appearing for the applicant after arguing at length submits that in view of the above submissions, since the applicant has challenged the transfer order on the basis of violation of transfer policy as laid down by Hon'ble High Court of Madhya Pradesh in the case of R.S. Choudhary Vs. State of MP 2007 SSC Online MP 762, the competent authority may be directed to consider and decide the representation of the applicant by passing a reasoned and speaking order.
9. The learned counsel appearing for respondent no.2 on oral instructions vehemently contended that the present Original Page 6 of 9 Item no.03(C-6) OA/3974/2024 Application suffers from non-joinder of necessary parties and in the present circumstances the cadre controlling authority, the Director General, All India Radio, ought to have been arrayed as respondents. The applicant has been posted and continued on the post of Director Engineering for more than two years at Agra and he has not any vested right to continue at a place of his own choice. The learned counsel for the respondents further vociferously canvassed that the applicant has been transferred on promotion to the post of Deputy Director General at Delhi and also submits on oral instructions that there is no vacancy available at Panji (Goa), Dehradun (Uttarakhand) and Shimla (Himachal Pradesh), the places on which the applicant has given preference choices. So far as the contention of the applicant for being a caregiver and seeking transfer to Panji (Goa) has not substantiated the claim by filing a disability certificate or by any document.
10. Mr. S M Arif, learned Senior Panel Counsel for respondents, further contended that the facts and circumstances and the policy applicable to in the case and the order of Co-ordinate Bench of this Tribunal at Guwahati dated 01.10.2024 in OA/19/2024 is not applicable in the present case.
11. The learned counsel for the respondents further draws attention to para 4 of the order of Co-ordinate Bench of this Tribunal at Guwahati dated 01.10.2024 in OA/19/2024, which reads as under:-
"4. As per Sri Adil Ahmed, learned counsel for the applicant, posting of the applicant at Garrison Engineer (Air Force) Page 7 of 9 Item no.03(C-6) OA/3974/2024 Mohanbari, Assam is a Tenure Station and in terms of para (g) of Office Memorandum, Cadre Management of MES Civilian Officers bearing F. No.6(12)/2015/D(Works II) dated 09.10.2015, after completion of tenure, applicant submitted his Repatriation Proforma on 24.07.2023 to the Director General (Personnel), MES, Engineer- in-Chief Branch, New Delhi through Headquarter Commander Works Engineer (Air Force) Jorhat before completion of his Hard Tenure Posting at Dinjan, Assam by giving 3 (three) places of choice posting, which are as follows:
(i) Delhi, (ii) Sulur & (iii) Arakonam."
The applicant has not served at a hard station and Agra is also not a hard station. Hence, the said order in the OA is not applicable in the present case and strongly opposed the prayer for grant of any protection.
12. Mr. S M Arif, learned Senior Panel Counsel appearing for respondent no.2, fairly submits that the pending representations (Annexure A6) of the applicant shall be considered, if not already considered till date, in accordance with law.
13. Heard learned counsels for the parties with consent. In view of the above submissions. This Tribunal has considered the matter and it is the admitted fact that the applicant has all India transfer liability and has been transferred on promotion vide impugned order, seeking redressal of his grievances solely based on violation of the Transfer Policy dated 26.03.2021 and representations Annexure A6 is still pending.
14. This Tribunal is of the considered opinion that principles of natural justice will be met and in view of the law laid down by the Hon'ble High Court of Madhya Pradesh in the case of R.S. Page 8 of 9 Item no.03(C-6) OA/3974/2024 Chaudhary (supra), the competent authority may be directed to consider and decide the representation of the applicant by passing a reasoned and speaking order.
15. In view whereof, this Original Application is disposed of at this stage itself with the following directions to the respondents:-
(i). Respondent no.2 is hereby directed to consider each contention of the applicant raised in the pending representations dated 18.06.2024 and 28.07.2024 Annexure A-6 by passing a reasoned and speaking order as early as possible.
(ii). The applicant is already continuing on the post of Director (Engineering), Akashvani, Agra and it is directed that status quo shall be maintained as on today and the applicant shall be allowed to continue at Agra till representation is decided, by passing a reasoned and speaking order.
16. With the above observations and directions indicated hereinabove, the Original Application is disposed of at the admission stage itself. There shall be no order as to costs.
(AJAY PRATAP SINGH) JUDICIAL MEMBER /suraj/ Page 9 of 9