Central Administrative Tribunal - Delhi
Subhash Chand Gautam vs Govt. Of Nct Of Delhi on 23 May, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1358/2013 Order reserved on 13th day of May 2013 Order pronounced on 23rd day of May 2013 Honble Shri A.K. Bhardwaj, Member (J) 1. Subhash Chand Gautam s/o Shri Surajmal Gautam r/o O-29/A5, Dilshad Garden, Delhi 2. Anil Kumar s/o Shri R N Verma r/o C-1, Sewa Kuteer, B B Marg Kingsway Camp, Delhi-9 3. Praveen Kumar s/o Shri K Rama r/o 877, Type 2, Ground Floor, Delhi Admn. Flats Gulabi Bagh, Delhi-97 4. R K Dhanwaria s/o Shri Ganpat Ram r/o 75/5581, R Pura, Karol Bagh, New Delhi-5 5. Dr. Ramvir Singh s/o Shri Dhal Singh r/o Flat No.3-II, Pocket E, GTB Enclave, Delhi-93 ..Applicants (By Advocate: Shri Yogesh Sharma) Versus 1. Govt. of NCT of Delhi Through the Chief Secretary New Secretariat, Players Building Near ITO, New Delhi 2. The Secretary Department of Social Welfare & Women & Child Development Department Govt. of NCT of Delhi, GLNS Complex Delhi Gate, New Delhi 3. The Director Women & Child Development Department Govt. of NCT of Delhi, GLNS Complex Delhi Gate, New Delhi 4. The Additional Director Women & Child Development Department Govt. of NCT of Delhi, GLNS Complex Delhi Gate, New Delhi ..Respondents (By Advocate: Shri Vijay Pandita) O R D E R
As has been alluded in the Original Application, the applicants were initially appointed as Welfare Officer in the Department of Social Welfare. In the year 2008-09, the Department was bifurcated into two Departments, i.e., Department of Social Welfare and Department of Women & Child Development in Govt. of NCT of Delhi. The applicants were posted in the Department of Women & Child Development. Subsequently, they were promoted as CDPO. In the Department of Women & Child Development, there are 6 Homes and more than 88 ICDS project. The CDPO posted in Homes are called Superintendent and those posted in ICDS are called CDPOs. By order dated 18.4.2013 (Annexure A/1), the applicants were transferred from ICDS Projects to Homes in the following manner:-
S.No. Name of the CDPOs Present Place of posting (ICDS Projects) Posted at /* Already posted
1. Sh. Anil Kumar Wazir Pur * Adhar Shila Observation Home for boys-II, Sewa Kutir, Kingsway camp
2. Sh. Dharamendra Prasad Budhpur * Phulwari Children Home for Boys-I, Alipur
3. Sh. R.K. Dhanwaria Nangli & Prem Nagar Place of Safety, Special Home, OHB (Annexe) Magzine road, Majnu ka Tila
4. Dr. Ram Vir Singh Sangam Vihar-I, Sangam Vihar-II & Khanpur SAB-I & II, Dilshad Garden
5. Sh. Subhash Gautam Seema Puri & Sunder Nagri * Bal Sadan (Boys), Timar Pur, Delhi
6. Sh. Parveen Kumar Sangam Park & Nimri CHB-II, Alipur Thus, they have filed the present Original Application praying therein:
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing order dated 18.4.2013 in respect of the applicants.
(ii) That the Honble Tribunal may graciously be pleased to pass an order declaring to the effect that he whole action of the respondents taking decision on the file, not to post any male CDPO in ICDS projects is illegal, arbitrary, discriminatory and against the R. Rules and consequently, pass an order directing the respondents to retain the applicants at the same places/ICDS projects where they are still working.
(iii) Any other relief which the Honble Tribunal may deem fit and proper may also be granted to the applicant with the cost of litigation.
2. The grounds raised by the applicants to question the aforementioned order of transfer are:
the action of the respondents in taking a decision not to post any male CDPO in ICDS Projects is totally wholly unjustified, discriminatory and violative of principles of natural justice and Articles 14 & 16 of the Constitution, respondent Nos. 3 & 4 have no authority and power to amend or change the recruitment rules, thus the decision taken by them is totally arbitrary, in the recruitment rules, no posts have been specified for the male or female and since the inception of the Department, the male CDPOs are always posted in ICDS Projects; and it is well settled principle of law that right to be considered for promotion on fair and equitable basis without discrimination is a legal and fundamental right guaranteed under Articles 14 & 16 of the Constitution as held by the Honble Supreme Court in the case of Dwarka Prasad v. Union of India & others, 2004 (1) ATJ (SC) 591.
3. In the counter reply filed on behalf of the respondents, it is explained that recently the Department received a complaint of female anganwari workers against a male CDPO of sexual harassment. The Department of Women & Child Development constituted a departmental complaints committee for prevention of sexual harassment of women at workplace vide Order No. F.60/70/DSW/ ADWW/ SCC/2006-07/3843-3922 dated 16.5.2011. The complaint was referred to the said committee in view of the directions of the Honble Supreme Court in Vishaka & others v. State of Rajasthan & others, (1997) 6 SCC 241. The said committee submitted its report to the competent authority and recommended thus:-
Therefore, a policy decision has been taken by the Govt. of NCT of Delhi that all Anganwari Workers/helpers/ beneficiaries being women it is appropriate and in public interest that the CDPOs posted in various offices/district needs to be necessarily female officers.
4. It is the plea of the respondents that in view of law declared by the Honble Supreme Court, the Tribunal should not interfere and it should left to the authorities to decide as to who is to be posted where. Paragraphs 2 to 6 of the reply read as under:-
2. That the Honble Supreme Court has repeatedly held that Tribunal should not interfere in matters of transfer in a routine manner and it should be left to the authorities to decide as to who is to be posted where in State of M.P. Vs Sh. S.S. Kourav & Ors reported in 1995 (3) SCC 270), it was held by Honble Supreme Court.
The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds it is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous considerations without any factual background foundation.
3. That in the case of Shilpi Bose (Mrs.) Vs State of Bihar, 1991 Supp (2) SCC 659, at page 661 held that:
4. In our opinion, the courts should not interfere with a transfer order which are 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. If the courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders.
4. In the case of Union of India v. S.L. Abbas 1993, Vol.3, SCC 357 at p. 359, 7. Who should be transferred where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of statutory provisions, the Court cannot interfere with it. There is no doubt that, while ordering the transfer 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. The guidelines say that as far as possible, the husband and the wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally enforceable right.
5. That the similar view has been taken in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, 2001 Vol. 8 SCC page 574, wherein it has been held that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the Appellate Authorities substituting their own decision for that of the management.
6. That in the case of Union of India v. H.N. Kirtania, (1989) 3 SCC 445 held that:-
5. After hearing learned counsel for the parties we do not find any valid justification for the High court for entertaining a writ petition against the order of transfer made against an employee of the central government holding transferable post. Further there was no valid justification for issuing injunction order against the central government. The respondent being a central government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondents transfer.
5. I have heard the learned counsels for the parties and perused the records.
6. As can be gathered from the brief facts of the case stated in the reply, vide letter No.4-5/90-NT(WBP) dated 4.10.1993, the Govt. of India, Ministry of Human Resources Development, New Delhi decided that the posts of CDPO and ACDPO shall be filled up by women. Thus vide Office Note dated 26.3.2013 issued by the Minister for Women & Child Development, a direction was given to ensure that all CDPOs posted are female officers. All the applicants in the present Original Application are recently promoted on ad hoc basis to the post of Superintendent / CDPO vide order dated 13.12.2010. There is no dispute that the posts of Superintendent and CDPO are one and the same. It is the case of the respondents that the transfer of the applicants is purely an administrative exercise carried according to the needs of the Department and there is no violation of Articles 14 & 16 of the Constitution. The decision to post only female CDPOs in all the ICDS Projects, which are exclusively filled by female worker dealing with pregnant and lactating women is based on the recommendations of an expert committee. The portion of the paragraph 4.7 of the reply is reproduced hereinbelow:-
The departmental Complaints Committee has recommended in their report to post only female CDPOs in all the ICDS Projects, which are exclusively filled by female worker dealing with pregnant & lactating Women. The target beneficiaries with whom the Child Development Project Officers (CDPOs) are required to serve are children below 06 years of age, pregnant and lactating women. Simultaneously they are supposed to interact with Adolescent Girls under the Scheme implemented through ICDS platform. The services of ICDS Scheme are being provided through a focal point of delivery i.e. Anganwadi Centres in the concerned community area. The manpower who are responsible at the project level for providing the services are CDPOs, Supervisors, Anganwadi Workers and Anganwadi Helpers. The staff from the level of Anganwadi Helpers up to Supervisors are all female and CPPOs are suppose to coordinate with these functionaries for implementing the scheme. For discharging their duties every CDPO is required to coordinate with the community as well as with the functionaries in order to generate we-feeling amongst the community / target group/
7. As has been contended by learned counsel for respondents, it is settled position of law that the government employee has no legal right to insist for his posting at a particular place or to hold a particular post. As far as the contention of the applicant that the transfer of applicant is against the recruitment rules is concerned, same cannot be countenanced for the simple reason that the recruitment rules regulate the provisions and procedure regarding appointment/induction in a service and not the transfer and posting of the incumbents of such post. In order to regulate the transfer and posting of particular set of employees, it is not necessary to amend the rules in terms of which they are appointed. Once the posts of Superintendent and CDPO are one and the same, it is for the concerned authority to utilize the services of the incumbents keeping in view the various factors, including the subject to be dealt with by them. In Vishakas case (supra), the Honble Supreme Court ruled that all employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the steps, which included appropriate work conditions and avoidance of hostile environment towards women at work places. For easy reference, relevant excerpt of the judgment reads as under:-
3. Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right to Life and Liberty'. It is a clear violation of the rights under Arts. 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Art. 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'. Such violations, therefore, attract the remedy under Art. 32 for the enforcement of these fundamental rights of women. This class action under Art. 32 of the Constitution is for this reason. A writ of mandamus in such a situation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a "safe" working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Arts. 14, 19 and 21 are brought before us for redress under Art. 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum. xx xx xx xx xx 3. Preventive Steps :
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment. Accordingly, I do not find any force in the plea of gender bias (discrimination) raised by the applicants.
8. In Dattatraya Motiram More v. State of Bombay, AIR 1953 Bombay 311 (Vol.40, C.N.98), the Honble High Court of Bombay viewed that if there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations be- sides the fact that the persons belonging to that class are of a particular sex. If the Government have discriminated in favour of women in reserving seats for them, it is not only on the ground that they are women, but there are various other considerations. There could be certain facilities which can be given to women without those, facilities resulting in discrimination against men. There are certain facilities which only women can enjoy, thus can be made available to them only and any action in this regard cannot be called discriminatory. An illustration maternity homes can be quoted as an example for the purpose. For easy reference, paragraphs 7 to 12 of the judgment read as under:-
(7) Reliance is then placed on Article 15(1). That article is intended to prevent the State from discriminating against any citizens on grounds only of religion, race, caste, sex, place of birth or any of them, and the contention put forward is that in reserving seats for women the State has discriminated in favour of women on the ground of sex. It must always be borne in mind that the discrimination which is not permissible under Article 15(1) is a discrimination which is only on one of the grounds mentioned in Article 15(1). If there is a discrimination in favour of a particular sex, that discrimination would be permissible pro- vided it is not only on the ground of sex, or, in other words, the classification on the ground of sax is permissible provided that classification is the result of other considerations besides the fact that the persons belonging to that class aro of a particular sex, and there is force in the Advocate General's argument that if Government have discriminated in favour of women in reserving seats for them, it is not only on the ground that they are women, but there are various other considerations which have come into play. It is said that even today women are more backward than men. It is the duty of the State to raise the position of women to that of men. It is rightly urged that it would be very difficult for women to be elected if there was no reservation in their favour, and Government may well take the view that women are very necessary in local authorities because the point of view of women must be placed before the councillors before they decide any question affecting the Municipality. But the clear answer to Article 15(1) is Art 15(3) and that provides that nothing in this article shall prevent the State from making any special provision for women and children. Mr. Kotwal says that Article 15(3) must not be read as a proviso to Article 15(1), because if it is read as a proviso, then it would completely nullify one of the important ingredients e,f Article 15(1). It is said that discrimination on the ground of sex is not permissible under Article 15(1) and the object of enacting Article 15(3) could not possibly be to make that discrimination possible by permitting special provision for women. It is, therefore, argued that Article 15(3) must be read to mean that only those special provisions for women are permissible which do not result in discrimination against men. It is said that there can be certain facilities which can be given to women without those, facilities resulting in discrimination against men. It is said that here are certain facilities which only women can enjoy, and to the extent that those facilities can only be enjoyed by women, provision can be made for those facilities, and with regard to this provision it could not possibly be said that this provision discriminated against men. An illustration is given with regard to maternity homes. It is said that (if?) this is a facility given to women, special provision can be made for that right or privilege, and it could never be urged that if the State did so the State was discriminating against men. In our opinion, if that was the object of enacting Article 15(3), then Article 15(3) need not have been enacted at all, because if the special provisions for women contemplated by Article 15(3) were only those provisions which did not discriminate against men, then no proviso to Article 15(1) was necessary. Article 15(3) is obviously a proviso to art. 15(1) and proper effect must be given to the proviso. It is true that in construing a proviso one must not nullify the section itself. A proviso merely carves out something from the section itself, but it does not and cannot destroy the whole section. The proper way to construe Article 15(3), in our opinion, is that whereas under Article 15(1) discrimination in favour of men only on the ground of sex is not permissible, by reason of Article 15(3) discrimination in favour of women is permissible, and when the Stale docs discriminate in favour of women, it does not offend against Article 15(1). Therefore, as a result of the Joint operation of Article 15(1) and Article 15(3) the State may discriminate in favour of women against men, but it may not - discriminate in favour of men against women. In this particular case, even if in making special provision for women by giving them reserved seats the State has discriminated against men, by reason of Article 15(3) the Constitution has permitted the Slate to do so even though the provision may result in discrimination only on the ground of sex. Therefore, in our opinion, the legislation we are considering does not offend against Art 15(1) by reason of Article 15(3).
(8) An argument was advanced by Mr. Patol that Article 15(3) only applies to future legislation, and that as far as all laws in force before the commencement of the Constitution were concerned, those laws can only be tested by Article 15(1) and not by Article 15(1) read with Article 15(3). Mr. Patel contends that Article 15(3) permits the State in future to make a special provision for women and children, but to the extent the laws in force are concerned Article 15(1) applies, and if the laws in force are inconsistent with Article 15(1), those laws must be held to be void. Turning to Article 13(1), it provides:
"All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."
Therefore, before a law in force can be declared to be void it must be found to be inconsistent with one of the provisions of Part III which deals with Fundamental Rights, and the fundamental right which is secured to the citizen under Article 15 is not the unlimited right under Article 15(1) but the right under Article 15(1) Qualified by Article 15(3). It is impossible to argue that the Constitution did not permit laws to have special provision for women if the laws were passed before the Constitution came into force, but permitted the Legislature to pass laws in favour of women after the Constitution was enacted. If a law discriminating in favour of women is opposed to the fundamental rights of citizens, there is no reason why such law should continue to remain on the statute book. The whole scheme of Article 13 is to make laws, which are inconsistent with Part III, void, not only if they were in force before the commencement of the Constitution, but also if they were enacted after the Constitution came into force. Mr. Patel relies on the various provisos to Article 39 and he says that in all those provisos special mention is made to existing laws and also to the State making laws in future. Now, the scheme of Article 19 is different from the scheme of Article 15. Provisos to Article 19 in terms deal with law whether existing or to be made in future by the State, whereas Article 15(3) does not merely deal with laws but deals generally with any special provision for women and children, and therefore it was not necessary in Article 15(3) to mention both existing laws and laws to be made in future. But the exception made to Article 15(1) by Article 15(3) is an exception which applies both to existing laws and to laws which the State may make in future.
(9) Finally, reliance is also placed on Article 14. It is difficult to understand how Article 14 has any application to the question that we are considering. Article 14 requires that all laws should be equally applied and every citizen is entitled to equal protection of the law. The Municipal Boroughs Act is applied equally to all citizens and whatever protection that law gives is given equally to all citizens, and therefore Article 14 really has no application whatever to the question that we are considering.
(10) There is one final argument which has been forcefully advanced by Mr. Kotwal to which attention might be drawn. It is urged by Mr. Kotwal that if we were to give this interpretation to Article 16(1) and 16(2) and if we were io hold that these two Sub-clauses of Article 16 only apply to offices to which persons are appointed or in which they are employed, it would result in the State Legislature being given a 'carte blanche' to legislate with regard to elections of local authorities and to make reservations in favour of various sections of the community. If our interpretation of Article 16 were to lead to that result, we must undoubtedly pause and consider whether we are fight in giving that construction to Article 16, but the answer to the question posed by Mr. Kotwal is in our opinion simple. If Article 16 deals only with matters of public employment, it does not mean that the State Legislature has the right to discriminate between one citizen and another in matters of election. What would prevent the State Legislature would not be Article 16 but Article 15, because apart from the special provision which the Legislature can make for women and children, the State Legislature would have no authority to discriminate as between one citizen and another on grounds of religion, race, sex, caste or place of birth. From this point of view the scheme of Article 16 and Article 15 becomes clear. Article 16 deals with a limited subject, the subject of employment or appointment by the State, "the State" used in the wide sense in which Article 12 defines that expression and art. 1C emphasises that the State in appointing or jn employing persons shall give equal opportunity to all citizens and will not make any person ineligible to hold an office or discriminate against him in respect of that office on ground of religion, race, caste, sex or place of birth. Article 15 is more general in its application and it deals with all cases of discrimination which do not fall expressly under Article 16. Our Constitution does not permit any discrimination at all, subject to, as has been pointed out, what is provided for women and children, and therefore although a case of discrimination may not fall under Article 16, it may still fall under Article 15(1) if it is not saved under Article 15(3).
(11) in our opinion, therefore, the provision made in the Municipal Boroughs Act for reservation of seats and the rules made by Government with regard to the reservation of seats for election to the Jalgaon Municipality are 'intra vires' and they do not offend against any provision of the Constitution.
(12) The other two petitions before us, C. A. 1855 and C. A. 1917 of 1952, raise the same question with regard to the Islampur Municipality and the Anand Municipality. Both those Municipalities are governed by the District Municipal Act and the provisions of that Act are identical with the provisions of the Municipal Boroughs Act, and the petitioners in these two petitions have also challenged the provisions of law with regard to reservation of seats for women on the same grounds on which the petitioner in the petition we have just disposed of has challenged similar provisions. (emphasis supplied)
9. The posting of the applicant out of ICDS Projects to avoid embarrassment to females may not be considered violation of Article 15 (1) of the Constitution of India on gender discrimination in any manner. However, such transfer may not be considered as stigmatic. It is only a step to create congenial atmosphere for the women in ICDS. Respondents may consider reviewing their such decisions in future, keeping in view the prevalent attitude in the system. Unlike conventional indicators, which capture inequality in outcomes like education and employment, the OECDs Social Institutions Gender Index (SIGI) evaluates the underlying drivers of such outcomes, comparing factors such as violence against women. It may be so that distance creates gap and may result into hostility but these are again the issues need to be addressed by the experts and required to be dealt with at the ground level.
10. Subject to aforementioned observations, O.A. is dismissed. No costs.
( A.K. Bhardwaj ) Member (J) /sunil/