Central Administrative Tribunal - Delhi
Virendra Kumar Awasthi S/O Shanker Lal ... vs Union Of India Through Secretary on 2 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.409 of 2011 This the 2nd day of February, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Virendra Kumar Awasthi S/o Shanker Lal Sant, R/o Flat No.33A, Pocket-B, Mayur Vihar, Phase-II, Delhi-110091. Applicant ( By Shri Ajesh Luthra, Advocate ) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Joint Secretary (UT), Ministry of Home Affairs, North Block, New Delhi. 3. Chief Secretary, Government of NCT of Delhi, Delhi Secretariat, Players Building, IP Estate, New Delhi. 4. Secretary, Services Department, Government of NCT of Delhi, Delhi Secretariat, Players Building, IP Estate, New Delhi. Respondents ( By Ms. Pratima Gupta, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Virendra Kumar Awasthi, the applicant herein, was appointed by way of promotion to the entry grade of Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu, Dadra & Nagar Haveli Civil Services (DANICS) by the Ministry of Home Affairs on 12.3.2010. He has been transferred and ordered to be posted with Diu Daman & Dadra Nagar Haveli Administration, vide order dated 14.6.2010. It is this order which has been called in question by the applicant in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. The facts as set out in the Original Application reveal that the applicant was appointed as Grade II in Delhi Administration Subordinate Services (DASS) by way of direct recruitment in the year 1980, and promoted to Grade I of the said service on regular basis in 1989. As mentioned above, he was appointed by way of promotion to the entry grade of DANICS on 12.3.2010. It is the case of the applicant that since his transfer to the other segment of the service on promotion was imminent, but inasmuch as his family circumstances would not allow him to move out of Delhi, anticipating his transfer outside Delhi, he made a request to the Ministry of Home Affairs on 10.6.2010 so as not to transfer him out of Delhi, but on 14.6.2010 he was transferred, as mentioned above. The applicant made representations for postponing his transfer at least for one year, and if this was not possible, then he be allowed to forego his appointment/promotion. His representations were rejected vide order dated 8.12.2010. Constrained thus, the applicant filed OA No.4242/2010, which, after notice to the respondents, was disposed of vide order dated 20.12.2010 with direction to the respondents to consider the request of the applicant foregoing promotion, and further that he may not be transferred till such time fresh order on his representation was to be passed. Pursuant to the direction issued by this Tribunal, the respondents have now passed the impugned order dated 13.1.2011, once again rejecting the representation of the applicant. It is the case of the applicant that his family circumstances are such that it would not be possible for him to move out of Delhi. In that regard, it is pleaded that the mother of the applicant, who is 74 years old, had been operated for fracture neck of femur left on 18.7.2009 and steel rod was implanted at Mool Chand Hospital, and that she had already suffered with right basal ganglia haeomotoma (brain haeomorsage), and further that she is bed-ridden since 17.7.2009, and there is no body at home to look after her, except the applicants father, who too is 80 years old and is suffering from age related ailments, who too is not in a position to take proper care of himself and his wife. It is further pleaded that both the parents of the applicant are living with him, and, therefore, his continuous presence at Delhi in required. The applicant has no child, and his wife would not take care of his old and ailing parents. The applicant pleads that the issue of attending to and taking care of his parents has been a battleground in the family, which ultimately led the applicant to have a separate living from his wife, and thus in June, 2010 he had to move to government accommodation, leaving his wife to stay at their earlier accommodation. Due to family circumstances, anticipating transfer/posting outside Delhi to another segment of the service, the applicant made representations to the MHA, with the result as already indicated above.
3. We have heard Shri Ajesh Luthra, learned counsel representing the applicant, and with his assistance examined the records of the case. Pursuant to directions issued by this Tribunal in OA No.4242/2010, as mentioned above, the respondents have passed order dated 13.1.2011, which is detailed and speaking one. It has inter alia been stated in the order aforesaid that DANICS officers are generally transferred/posted from Government of NCT of Delhi to the outlying segments. A list of officers who have not served outside Delhi is maintained by the Ministry of Home Affairs in order of their seniority, grade-wise, and officers who have three and more years of service, are generally posted at their turn to the outlying segments. They replace officers who are due for posting out on completion of their tenure in the outlying segments. This is done to ensure that the onus of serving in the outlying segments is equally shared by the officers. It is further stated that the tenure of three years has since been reduced to two years, in order to encourage such officers to serve in the outlying segments, and further that in the entire career of an officer, he has to serve only for two years outside Delhi, and that the Ministry is still finding it difficult to fill vacant posts in the outlying segments, as officers invariably represent on medical/personal grounds to avoid serving in the outlying segments. As regards the family circumstances of the applicant, and in particular, the aging and ailing condition of his parents, it is mentioned that the Union Territory of Daman & Dieu and Dadra & Nagar Haveli has the best of medical facilities among the outlying segments to take care of them. As regards cancellation or postponing of his transfer, it is stated that at this stage the applicant cannot be allowed to forego his promotion and that if he was not willing for promotion, he should have mentioned it at the time of promotion.
4. Shri Luthra would contend that considering the age and poor health of the parents of the applicant, who have to be looked after only by the applicant, as his wife has declined to do so, due to which he has even preferred to live in a separate accommodation, the respondents ought to have considered favourably his request so as not to transfer him out of Delhi. We do not find any merit in the contention aforesaid of the learned counsel. It is often seen, and has been observed in the impugned order as well, that most of the officers are not willing to serve outside Delhi, and quite often they resort to making representations on variety of grounds, like education of children, ailing condition of their parents etc. No doubt, displacement from a place for long years is bound to cause some problems for everyone, but if such inconveniences are to be taken into consideration so as not to transfer an officer, perhaps everyone shall have to be kept at Delhi, which will create administrative chaos. Further, it is categorically mentioned in the impugned order that the segment where the applicant is transferred has the best of medical facilities among the outlying segments to take care of the ailing parents of the applicants, which fact has not been disputed during the course of arguments.
5. Shri Luthra would then contend that the transfer ought to have been made as per seniority, and that the request of one Ms. Kamlesh Hatta, who is immediate senior to the applicant and was also promoted along with the applicant, so as not to be posted out of Delhi has been accepted, and that there were no reasons for the respondents to have accepted the request of Ms. Kamlesh Hatta who was senior to the applicant. The order accepting the request of Ms. Kamlesh Hatta has been annexed with the OA as Annexure A/14, which was passed on 14.6.2010. The representation of Ms. Hatta dated 19.5.2010 was under consideration which was addressed to Additional Secretary (UT), MHA, wherein she had stated that she has a daughter studying in 12th standard who had to appear for board examination, and, therefore, she could not accompany her to her new place of posting. Subsequently, Ms. Hatta also gave an undertaking dated 9.6.2010 stating therein that she would abide by the said transfer order and would proceed to join her assignment in DD&DNH Administration on 1.4.2011, after her daughters board examination. Her transfer has only been deferred till 31.3.2011, and she has been directed to report for duty to the segment where she has been transferred from 1.4.2011, failing which she is to stand relieved automatically. It may not be permissible for this Tribunal in the judicial review to express its opinion as to whether circumstances in which Ms. Hatta was placed were more compelling for deferring her transfer than that of the applicant. It is for the employer to make a decision in that regard. That apart, Ms. Hatta has given an undertaking that immediately on culmination of her daughters board examination she would join at the place where she has been posted, and an order has been passed that if she may fail to report for duty at the place of her posting on 1.4.2011, she will stand automatically relieved. The circumstances on which the applicant seeks cancellation of his transfer are such that he shall not be able to go out of Delhi till such time his parents may live. We may not delve on this aspect any further.
6. Shri Luthra would also contend that once, the applicant is prepared to forego his promotion, he may not be compelled to join at the segment where he has been transferred. It may be recalled that the case of the applicant himself is that on promotion, transfers are made, and that he had anticipated that he would be transferred. If the circumstances were so compelling for the applicant that he could possibly never go out of Delhi till such time his parents may be alive, he ought to have made a request to forego his promotion when his case for promotion was under consideration. It may be difficult at this stage for the respondents to re-adjust the things.
7. We may also mention that the learned counsel has placed reliance upon the judgment of a Single Bench of the High Court of Andhra Pradesh in S. Rama Gangi Reddy v Government of A.P. & others [1992 LAB. L.C. 1113 (Writ Petition No.14314/91 decided on 25.11.1991)], and a Division Bench judgment of the Bombay High Court in Sheshrao Nagarao Umap v State of Maharashtra & others [1984 (2) SLR 328]. In the first judgment, the power of transfer was used for collateral purposes or as an instrument of harassment or for punishing an employee. Surely, in such circumstances, different parameters, as held by the High Court, would prevail. In Sheshrao Nagarao Umap (supra), it was held that power to transfer must be exercised honestly, bona fide and reasonably, and if the same is exercised for achieving an alien purpose or an oblique motive, it would amount to mala fide and colourable exercise of power. Fraud and mala fides vitiate everything, and the settled law that transfer is an incidence of service and, therefore, the same cannot be questioned, would not apply in transfers, which may be colourable and tainted with fraud and mala fides. There is no parity on facts of the case in hand to the facts of the two judicial precedents cited by the learned counsel.
8. Before we may part with this order, we may only mention that we asked the learned counsel representing the applicant as to whether the applicant has ever been posted all through his service out of Delhi; the reply of the learned counsel is that the applicant has come to occupy the new service now and his earlier stay at Delhi would be of no meaning and consequence. It is, however, admitted that the applicant has all through remained posted at Delhi.
9. Finding no merit in this Original Application, we dismiss the same in limine.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/