Central Administrative Tribunal - Gauhati
Sri Nabajit Das vs Ssb on 31 August, 2023
1
CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00109/2022
With
Misc. Application Nos. 48/22, 66/22, 10/23 & 11/23
HON'BLE DR. SUMEET JERATH, ADMINISTRATIVE MEMBER
Shri Nabajit Das
S/o Late Bhuram Das,
Assistant Engineer Grade-I,
O/o DIG, Sector Head Quarter,
SSB Rangia, Assam- 781354.
- Applicant
By Advocates: Sri M Chanda, Smt U Dutta & Ms R
Medhi
- Versus -
1. The Union of India,
Through The Secretary, Govt. of India,
Ministry of Home Affairs,
New Delhi - 110001.
2. The Director General,
Sashastra Seema Bal,
East Block -V, R. K. Puram,
New Delhi - 110066.
3. The Commandant (Pers. I)
Office of the Director General,
SSC, Govt. of India, Ministry of Home Affairs,
East Block-V, R. K. Puram,
New Delhi - 110066.
OA. 040/00109/2022 with
connected MAs.
2
--Respondents
By Advocates: Sri A Chakraborty, Addl. C.G.S.C.
Date of Hearing: 28.08.2023 Date of Order: 31.8.2023
ORDER
PER DR SUMEET JERATH, MEMBER (A):
The instant application has been filed by the applicant praying for following relief(s):-
"8.1 That the Hon'ble Tribunal be pleased to set aside and quashed the impugned transfer and posting order dated 08.04.2022 (Annexure A1) as well as rejection order dated 29.04.2022 (Annexure-A2).
OR ALTERNATIVELY 8.2. The Hon'ble Tribunal be pleased to direct the respondents to modify/cancel the impugned transfer and posting order dated 08.04.2022 and allow him to continue in the present place of posting at Rangia or reconsider the posting of the applicant either at Frontier Head Quarter Guwahati or Sector Head Quarter Bongaigaon in light of his representation dated 11.04.2022.
8.3. Costs of the application.
OA. 040/00109/2022 with connected MAs.3
8.4. Any other relief(s) to which the applicant is entitled as the Hon'ble Tribunal may deem fit and proper."
2. According to the applicant, since his joining as Sub Inspector (Pioneer) on 20.07.1991 at Group Centre, SSB, Jammu, he had carried out his transfers to different places and had served in the following stations:-
Sl. No. Joining Date Place of Posting Post On promotion as Rajouri Area(Jammu &
1. 12.02.1996 Assistant Engineer Kashmir) Grade-II G.C. Moukokchung,
2. 16.08.1997 same capacity Nagaland
3. 06.06.2002 G.C. Kohima, Nagaland same capacity
4. 24.03.2003 4th Battalion, Palia, U.P. same capacity same capacity
5. 11.04.2005 SHQ Bahraich, U.P. Promoted to
6. 20.12.2005 SHQ Bahraich, U.P. Grade-I SHQ Lakhimpur, Kheri, Assistant Engineer
7. 12.01.2007 U.P. Grade-I Assistant Engineer
8. 17.05.2007 Frontier HQ, Guwahati Grade-I Assistant Engineer
9. 30.06.2011 Frontier HQ, Siliguri Grade-I Assistant Engineer
10. 11.11.2013 SHQ, Gangtok Grade-I 22.07.2019 to Assistant Engineer
11. SHQ Rangia, Assam till date Grade-I OA. 040/00109/2022 with connected MAs.4
According to the applicant, as per para 5(b) of the Revised Transfer Guidelines for the SSB Personnel, the prescribed tenure for an employee in station formation is 3 years. Besides, para 7(a)(i) of the said guidelines also stipulates that Annual posting and transfer orders shall be issued by the competent authority by 31st January every year. However, in violation of the above provisions, the applicant has been transferred from SHQ, Rangia to SHQ, Almora, Uttarakhand before completion of his tenure at Rangia.
3. Applicant has also contended that CVC vide it's Circulars dated 15.04.1999, 02.11.2001, 01.05.2008 & 11.09.2013 has stipulated rotation of officials in the sensitive posts. According to the applicant, officials of the Engineering Cadre of SSB are also involved in public procurements and in settlement of bills worth of crores of rupees, therefore, these are OA. 040/00109/2022 with connected MAs.
5unequivocally sensitive post. As such, employees who are continuing for a much longer period of time than the applicant and posted at the same place of posting are required to be rotated first. According to the applicant, all the Engineers who have completed three years tenure at their place of posting were not considered for transfer but the applicant has been picked up for transfer to a far off place and that too before completion of his tenure at SHQ, Rangia and when he had already served for more than six years at hard station Gangtok, Sikkim.
4. Applicant also contended that his mother, who is a senior citizen aged about 75 years had been suffering from various ailments and under constant medical surveillance. Besides, his wife is also an asthma patient. Therefore, it is difficult for him to move from SHQ, Rangia to SHQ, Almora, Uttarakhand in the middle of such medical treatments.
OA. 040/00109/2022 with connected MAs.
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5. The applicant has also contended that in his representation dated 11.04.2022 against the transfer order dated 08.04.2022, he has prayed to be accommodated either at FHQ, Guwahati or SHQ, Bongaigaon against the available vacancies but his said request was rejected by the impugned order dated 29.04.2022.
6. Respondents in their written statement justified the transfer of the applicant by submitting that during his 32 years of service the applicant had already served about 18 years in NE Region including Sikkim and about seven years in Assam - his Home State. According to the respondents, the transfer of the applicant from SHQ, Rangia to SHQ, Almora, Uttarakhand was issued based on the recommendation of the Departmental Transfer Committee (DTC) and approval of DG, SSB, The said DTC, constituted with senior officers as Board OA. 040/00109/2022 with connected MAs.
7Members and chaired by ADG, SSB, after due deliberation and consideration of functional requirement of the Force, recommended applicant's transfer to SHQ, Almora as there were two vacancies there and no officers were posted at SHQ Almora to look after the ongoing works.
7. With regard to the applicant's claim of violation of the transfer guidelines in transferring the applicant, the respondents by relying on para 26 of the said transfer guidelines contended that power to relax any of the condition/criteria of the transfer guidelines is vested with the Director General and the said authority is competent to transfer any officer of the Force, if so necessary, in public interest and in the interest of discipline, morale and functioning of the Force. According to the respondents, transfer of the applicant had been issued in April, 2022 due to administrative reason with the approval of the OA. 040/00109/2022 with connected MAs.
8Director General, SSB who is competent to relax any of the conditions/criteria laid down in the transfer guidelines.
8. As regards violation of the CVC circulars which stipulates periodical rotation of officials holding sensitive posts, the respondents clarified that transfer of all officers who have completed their tenure have been made during the Annual Transfer 2022 except such officer whose retention is required on functional needs of the force, considering compassionate ground, non availability of vacancies in other units & terminal posting ground etc, therefore, there is no violation of CVC guidelines.
9. According to the respondents, applicant in his representation dated 11.04.2022 had not requested for his retention at SHQ, Rangia but requested to be accommodated either at FHQ, SSB, Guwahati or SHQ, SSB, Bongaigaon. Respondents had OA. 040/00109/2022 with connected MAs.
9averred that his representation was considered but as sufficient officers of Engineering Cadre are already available in FHQ, SSB, Guwahati and SHQ Bongaigaon, and on the other hand, no officers of Engineering Cadre is posted in SHQ, Almora, his prayer could not be considered.
10. Further, according to the respondents, applicant requested for change of his posting on medical ground of his mother and wife in his representation, however did not annexe any supporting evidence to substantiate his claim. Further, as per the respondents, there was no record of any illness of his mother or wife available in SHQ, Rangia. Respondents have therefore claimed that it was not possible to appreciate the authenticity of the medical ground. Besides, according to the respondents, Almora being District Headquarters has good medical facilities available.
OA. 040/00109/2022 with connected MAs.
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11. Applicant submitted his rejoinder reiterating his submissions made in the OA. In addition to annexing medical documents of his wife in support of medical ground of his wife, applicant had also submitted in the rejoinder that during the pendency of the OA, his mother has already expired.
12. This Tribunal while issuing notice to the respondents vide order dated 20.05.2022, directed the respondents to maintain status quo till the next date prima facie on the ground that applicant had not completed his tenure at SHQ Rangia as per provisions of 5(b)(i) as well as para 7(a)(i) of the transfer guidelines.
13. From the perusal of record it is seen that subsequently, applicant filed MA.48/2022 challenging his relieving order dated 20.05.2022 with a further prayer to allow him to continue at SHQ, Rangia till disposal of the OA. Respondents had filed written OA. 040/00109/2022 with connected MAs.
11objection in the said MA stating that before the receipt of the order dated 20.05.2022, the applicant had already been relieved 20.05.2022. It may be mentioned here that at that relevant point of time, there was no regular Hon'ble Member of the Tribunal. Even though the matter was listed before the Mrs. Bidisha Banerjee, Hon'ble Judicial Member of Kolkata Bench of this Tribunal through virtually, due to paucity of time matter could not be taken up.
14. When the matter could not be taken up due to non-availability of regular Bench of this Tribunal, the respondents vide order dated 08.08.2022 directed the applicant to assume the duties at Almora immediately. Challenging the said order, applicant filed another MA.66/2022.
15. In the meantime, the respondents preferred WP(C) No.5852/2022 before the Hon'ble Gauhati High Court challenging the status quo order dated OA. 040/00109/2022 with connected MAs.
1220.05.2022 passed in this OA. It was submitted before the Hon'ble High Court that respondent (applicant herein) had already been released and that though matter was listed for further hearing on 11.07.2022 but no court was available in this Bench. However, vide judgment and order dated 07.09.2022 the Hon'ble High Court disposed of the said WPC without interfering with the order of this Tribunal giving liberty to the respondents to approach this Tribunal either for vacation of the interim relief or for early hearing of the matter.
16. When the matter finally came up before regular Bench on 16.12.2022, learned counsel for the respondents by placing one communication dated 09.11.2022, submitted that applicant had already joined in his new place of posting at Almora which was stoutly denied by the learned counsel for the applicant. Therefore, respondents were directed to OA. 040/00109/2022 with connected MAs.
13place the joining report of the applicant on the next date of hearing fixed on 03.01.2013.
17. On 03.01.2023, learned counsel for the respondents submitted that he was wrongly instructed that the applicant had already joined his new place of posting. However, learned counsel further submitted that as the applicant was relieved in the morning of 20.05.2022 and the Hon'ble Court passed status quo order in the afternoon of 20.05.2022, the respondents did not allow the applicant to join at SHQ, Rangia. This court after hearing both sides, had passed following further orders on 03.01.2023:-
"....
3. Heard Learned Counsels on both sides and perused the records.
4. It is noted that as per the respondents, they have passed the relieving order in the morning of 20.05.2022. However, it is an admitted fact that the application was received by Learned Addl. CGSC on 18.05.2022. More so, if the respondents have relieved the applicant in the morning on 20.05.2022, they ought to have OA. 040/00109/2022 with connected MAs.14
served a copy of the relieving order to the applicant on that day or at least to apprise this Court, which sat on that day in the afternoon of 20.05.2022.
5. .....
6. Since the pleadings are complete in this matter, let the matter be listed for hearing on 14.02.2023.
7. In the interim, since stay order was already granted on 20.05.2022, and the respondents have neither communicated the relieving order to the applicant nor has apprised this Court on that day, therefore, the respondents are directed to allow the applicant to join at SHQ SSB, Rangia till the disposal of the O.A. (emphasis supplied)
18. Pursuant to the above order, the respondents vide order dated 13.01.2023 allowed the applicant to join at SHQ, Rangia w.e.f. 09.01.2023. However, the respondents have filed MA.11/2023 on 13.02.2023 seeking vacation of the order dated 03.01.2023. In the meantime, the applicant had also filed another MA.10/2023 on 17.01.2023 praying for correction of para 5 of order dated 03.01.2023 wherein it was recorded that applicant was served with the copy of OA. 040/00109/2022 with connected MAs.
15the relieving order only on 27.05.2022, when he had gone to join the office at Rangia. According to the applicant, on receipt of the information of status quo order on 20.05.2022, the respondents very cleverly and hurriedly issued the impugned relieving order in the afternoon and served the applicant in the evening only to frustrate the order passed by the Tribunal on 20.05.2022.
19. Be that as it may, since entire matter is heard, no further order(s) is/are required to be passed in the MAs filed by the applicant/respondents.
20. In the meantime, the respondents filed another WP(C) No.3004/2023 before the Hon'ble High Court assailing the order dated 03.01.2023 of this Tribunal. The Hon'ble High Court after hearing learned counsel for the petitioners (respondents in the present OA) disposed of the same vide judgment and order dated 29.05.2023 with the following orders:-
OA. 040/00109/2022 with connected MAs.16
"3. By the present writ petition, the petitioners are aggrieved by the order dated 03.01.2023 passed by the learned Tribunal in OA No.109/2022 whereby the petitioners are directed to allow the respondent to join the SHQ SSB, Rangia till disposal of the said OA.
4. It is the case of the petitioners that when OA No.109/2022 was taken up on 20.05.2022, the learned Tribunal passed an order directing the parties to maintain status quo till the next date of hearing. However, prior to passing of the status quo order on 20.05.2022, the petitioners herein had already relieved the respondent in the afternoon of 20.05.2022 with a direction to report to the Commandant (Admn), SHQ SSB, Almora on transfer. Therefore, learned counsel for the petitioners submits that by the order dated 03.01.2023, the petitioners are required to allow the respondent to join back in Rangia despite the relieve order being issued prior to issuance of the order dated 20.05.2022.
It is also submitted by the learned counsel for the petitioners that the petitioners had filed M.A. No.11/2023 before the learned Tribunal praying for vacation of the interim order dated 03.01.2023 but the same is yet to be considered till date. It is also submitted that the OA No.109/2022 is fixed on 12.06.2023 for final disposal.
5. After hearing learned counsel for the petitioners and on consideration of the fact that OA No.109/2022 is in the hearing stage and is fixed on 12.06.2023, we dispose of this writ petition without entering into the merits by requesting the learned Tribunal to finally hear OA. 040/00109/2022 with connected MAs.
17and dispose of OA No.109/2022 on the date fixed for hearing, i.e., 12.06.2023.
6. With the above observations, this writ petition is disposed of.
(emphasis supplied)
21. On 12.06.2023, the matter could not be taken up due to paucity of time as the matter was listed towards the end of hearing list in the chronological order of year of filing. Accordingly, in presence of the both sides, case was adjourned to 29.08.2023 i.e., today.
22. Surprisingly, the Registry of this Tribunal received a letter from Ms. Rita Devi, learned CGC on 23.08.2023 enclosing therein a judgment and order dated 11.08.2023 passed by the Hon'ble High Court in I.A(C) No.2273/2023. On perusal of the same, it is found that the respondents had once again filed the said IA alleging that this Tribunal, without assigning any reason, adjourned the matter to 29.08.2023 in OA. 040/00109/2022 with connected MAs.
18violation of the direction of the Hon'ble High Court contained in order dated 29.05.2023 in WP(C) No.3004/2023, as quoted above. For better elucidation, relevant portion of the judgment and order dated 11.08.2023 passed by the Hon'ble High Court is extracted as under:-
"6. As the learned CGC has submitted that the certified copy of the order dated 29.05.2023 was submitted before the Central Administrative Tribunal, Guwahati Bench, Guwahati, the adjournment of O.A. No. 109/2022 by an order dated 12.06.2023, merely by stating- "Adjourned to 29.08.2023" ex facie appear to be contemptuous. If the learned Central Administrative Tribunal, Guwahati Bench, Guwahati had any compelling reasons to adjourn the matter, this Court would have appreciated it if some reason was assigned to adjourn the matter. As no reason has been assigned to adjourn the matter to 29.08.2023, despite the order of this Court dated 29.05.2023 in the connected WP(C)/3004/2023, to adjourn the proceeding of O.A. No. 109/2022 on the drop of a hat is not at all appreciated, rather, the order appears to be contemptuous.
7. Be that as it may, in terms of the order passed on 29.05.2023, passed in WP(C)/ 3004/2023, we once again request the learned Central Administrative Tribunal, Guwahati Bench, Guwahati to hear and dispose of the O.A. No. 109/2022 on 29.08.2023, the date fixed by the OA. 040/00109/2022 with connected MAs.19
order dated 12.06.2023, without adjourning the matter any further.
8. At this stage, the learned CGC has submitted that the respondent herein was transferred to Almora where there is an urgent requirement of personnel and therefore, the administration in Sashastra Seema Bal is adversely effected due to lack of personnel at Almora.
9. We hope and trust that the learned Central Administrative Tribunal, Guwahati Bench, Guwahati shall take into consideration the said submission and hear and dispose the O.A. No. 109/2022 on 29.08.2023 i.e., the date fixed."
23. On perusal of the above order, it is clear that the learned counsel for the petitioners (respondents herein) submitted before the Hon'ble High Court that the order dated 12.06.2023 adjourning the matter to 29.08.2023 without assigning any reason despite the order of this Court dated 29.05.2023 in the connected WP(C)/3004/2023 is contemptuous. In this regard, as already explained in para 21 above, it is reiterated that the matter was listed towards the end of hearing list in the chronological order of year of filing (item No.21 of the Cause List) and by the time this matter OA. 040/00109/2022 with connected MAs.
20came up, the Court was about to rise. Therefore, there was no option but to adjourn the matter to the next date in presence of both the sides. However, due to inadvertence, no reason was recorded while adjourning the matter.
24. During the course of hearing, Smt U. Dutta, learned counsel for the applicant emphasized that since the impugned transfer has been made in violation of the transfer guidelines, as mentioned above, the transfer order is not sustainable and liable to be set aside. In support of her contention, learned counsel relied on the decision of the Hon'ble Supreme Court in the case of Sarvesh Kumar Awasthi vs U.P.Jal Nigam & Ors reported in (2003) 11 SCC 740 wherein it is held that transfer of officer is required to be effected on the basis of set norms and guidelines. Per contra, Sri A Chakraborty, learned counsel for the respondents submitted that transfer of the applicant OA. 040/00109/2022 with connected MAs.
21has been recommended by a duly constituted DTC and approved by the DG, SSB who is competent to relax any of the conditions/criteria laid down in the transfer policy in public interest. Besides, the applicant had now already completed the tenure of 3 years at SHQ, Rangia to which learned counsel for the applicant admitted that applicant had completed three years tenure by now. According to the respondents, a government servant cannot continue in a particular place of posting as long as he desires as transfer is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service. In support of his contention, learned counsel relied on the decision of the Hon'ble Supreme Court in the case of State of U.P. & Others vs Gobardhan Lal, reported in (2004) 11 SCC 402.
25. It is clear from the records that even though impugned transfer order was issued before OA. 040/00109/2022 with connected MAs.
22completion of three years, it is an admitted fact that, by now, the applicant had already completed his three years' tenure at SHQ, SSB, Rangia pursuant to the interim order passed by this Tribunal. Therefore, as the applicant is transferred from SHQ, Rangia to SHQ, Almora in public interest as two vacancies were available there and nobody to supervise the ongoing works, I am not inclined to interfere in this matter any further. Accordingly, respondents are at liberty to issue appropriate orders afresh as regards relieving the applicant. At his stage, learned counsel for the applicant prayed that since the applicant had submitted representation afresh on 25.08.2023, this OA may be disposed of with direction to the respondents to consider and dispose of the same as per rules. I am not inclined to pass any such order at this stage. If the applicant desires to ventilate his grievances if any, he is at liberty to do the same after reporting to his OA. 040/00109/2022 with connected MAs.
23transferred place of posting at SHQ, Almora, Uttarakhand as per law laid down in S.C.Saxena vs. Union of India & Others (reported in 2006 (9) SCC 586. Respondents are further directed to regularise the period from 21.05.2022 to 08.01.2023(FN), i.e., prior to re-joining at SHQ, Rangia, as per rules.
26. With the above observations and directions, OA is disposed of with no order as to costs. Consequently, all the MAs are also disposed of.
(DR. SUMEET JERATH) MEMBER (A) /bb/ OA. 040/00109/2022 with connected MAs.