Kerala High Court
Aswani Kumar P.M vs Union Of India on 9 September, 2016
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938
OP (CAT).No. 261 of 2016 (Z)
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AGAINST THE ORDER IN OA 491/2016 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 9.9.2016
PETITIONER(S):
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ASWANI KUMAR P.M.
S/O. P.M.PADMANABHAN (LATE), AGED 43 YEARS,
NOW WORKING AS ASSISTANT DIRECTOR OF CENSUS
OPERATIONS (TECHNICAL), DIRECTORATE OF CENSUS
OPERATIONS, KERALA, POONKULAM, THIRUVANANTHAPURAM,
PIN - 695 522 AND RESIDING AT T.C 1/889,
AISWARYA, STATION KADAVU P.O., KAZHAKOOTAM, THIRUVANANTHAPURAM - 695 582.
BY ADVS.SRI.N.UNNIKRISHNAN
SRI.PAULACHAN IYPE
SRI.K.U.VIVEK
SMT.R.PREETHA
RESPONDENT(S):
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1. UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
MINISTRY OF HOME AFFAIRS, NORTH BLOCK,
CENTRAL SECRETARIAT,NEW DELHI - 110 001.
2. THE REGISTRAR GENERAL & CENSUS COMMISSIONER OF INDIA
OFFICE OF THE REGISTRAR GENERAL OF INDIA,
2/A, MAN SINGH ROAD, NEW DELHI - 110 011.
3. THE JOINT DIRECTOR
DIRECTORATE OF CENSUS OPERATIONS, KERALA, POONKULAM, CENTRAL
GOVERNMENT OFFICE COMPLEX, THIRUVANANTHAPURAM - 695 522.
R1-R3 BY ADV. SRI.A.R.GANGADAS, CGC
R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 23-02-2017, ALONG WITH OP
(CAT) 264/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 261 of 2016 (Z)
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APPENDIX
PETITIONER'S EXHIBITS
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P1 ATRUE COPY OF ORIGINAL APPLICATION NO. 491/2016 WITH ANNEXURES.
P2 ATRUE COPY OF INTERIM ORDER DATED 27.6.2016 IN OA NO. 491/2016.
P3 ATRUE COPY OF SHORT REPLY DATED 7.7.2016 ALONG WITH ANNEXURES.
P4 ATRUE COPY OF THE REJOINDER DATED 14.7.2016 WITH ANNEXURES.
P5 TRUE COPY OF THE ORDER DATED 09.9.2016 PASSED BY THE HON'BLE
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO. 491/2016.
P6 ATRUE COPY OF ORGANIZATIONAL STRUCTURE OF ISRO DOWNLOADED
FROM THE WEBSITE.
P7 ATRUE COPY OF SENIORITY LIST PUBLISHED THROUGH THE LETTER NO.
VSSC/EST/C/SL/2015 DATED 12.6.2015.
P8 ATRUE COPY OF ORDER F.NO.1/8/2008-AD-III/755 DATED 20.7.2016.
P9 ATRUE COPY OF LETTER F.NO. A-26022/19/2016-AD-III/1009 DATED 26.8.2016.
P10 A TRUE COPY OF ORDER NO.1/23/2014-AD.III/194 5.3.2015
P11 TRUE COPY OF MEMORANDUM SCL/HRD/2006/06/30-1 DATED 16.62006
P12 A TRUE COPY OF LETTER DATED 7.11.2016 ADDRESSED TO THE 1ST
RESPONDENT BY THE COUNSEL FOR THE PETITIONER
RESPONDENT(S)' EXHIBITS
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R1(A) TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER BY THE COMPETENT
AUTHORITY DATED 29.9.2016
R1(B) TRUE COPY OF DOP&T'S O.M. DATED 30.9.2009
R1(C) TRUE COPY OF THE LIST OF BRANCH OFFICES OF ISRO IN INDIA
R1(D) TRUE COPY OF THE LIST OF IN-POSITION OF ADCO(T) IN ORGI AS WELL AS
DCOS AS ON 26.5.2016
R1(E) TRUE COPY OF THE GUIDELINES FOR TRANSFER/POSTING IN CPWD DATED
19.5.2014
//True copy//
P.A. TO JUDGE
SHG/
C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.
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O.P.(CAT)Nos.261 & 264 of 2016
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Dated this the 23rd day of February, 2017
J U D G M E N T
Jyothindranath, J.
Both these original petitions are filed under Article 227 of the Constitution of India against a common order dated 09.09.2016 of the Central Administrative Tribunal, Ernakulam Bench in O.A.Nos. 491/2016 and 494/2016. The common grievance of the petitioners in these petitions is that they are transferred from Trivandrum.
2. The petitioner in O.P.(CAT)No.261/2016 (O.A.No.491/16) was originally posted as Statistical Investigator Gr.I. at Chennai. His wife is working as a Senior Assistant in Vikram Sarabhai Space Centre, Thiruvananthapuram. It is the case of the petitioner that on the basis of the benefits ordered by the Central Government to post the husband and wife in the same station, a request was made by the petitioner for a transfer from Chennai to Thiruvananthapuram. The said request was granted and now the petitioner is working at Thiruvananthapuram. He joined duty at Thiruvananthapuram on 9.11.2009. It is the O.P.(CAT)Nos.261 & 264 of 2016 2 case of the petitioner that he got two children who are studying in 4th and 7th standard in Jyothis Central School, Kazhakoottam, Thiruvananthapuram. The petitioner was promoted as Assistant Director of Census Operations (Technical) (in short ADCO (T)) on ad-hoc basis. Thereafter by a common order dated 26.5.2016, he was promoted on regular basis as ADCO (T). He was transferred from Thiruvananthapuram to Punjab against an existing vacancy. Against the said transfer he moved O.A.No.491/2016 before the Central Administrative Tribunal, Ernakulam Bench. His grievance is that there are five sanctioned posts for ADCO (T) in Kerala and even after the transfer there are two vacancies. Moreover, two persons are already working for last 16 and 7 years respectively at Thiruvananthapuram. They are not transferred. They are Smt. Ajitha and Smt. Lakshmikutty. It is also the case of the petitioner that the above said Ajitha has born in service in Thiruvananthapuram and she continues there. Smt.Lakshmikutty stands promoted alongwith the O.P.(CAT)Nos.261 & 264 of 2016 3 petitioner. The above said persons never served outside Kerala and both of them have no special reason to be retained at Thiruvananthapuram as against the petitioner. It is the positive case of the petitioner that the children of the petitioner are below 18 years and that also was not considered by the authorities. Further, his wife holds a Clerical post in Central Government Service and there is no possibility for her to get a transfer from Thiruvananthapuram. Hence, it is stated that the transfer is against the norms.
3. The petitioner in O.P.(CAT)No.264/16 joined as Statistical Investigator Gr.I., originally at New Delhi after a selection process by Union Public Service Commission. In the light of the policy decision of the Government to post the husband and wife in the same station, a request was made by the petitioner for a transfer from New Delhi to Thiruvananthapuram. The request was accepted and he was transferred as per order dated 20.6.2011 and joined at Thiruvananthapuram on 4.7.2011. It is the case of the O.P.(CAT)Nos.261 & 264 of 2016 4 petitioner that his wife Smt. K.S. Hema is working as an Assistant Manager in Central Bank of India, Nesamony Transport Corporation Branch, Nagercoil. It is a Public Sector Undertaking. It is almost 72 kms. away from Thiruvananthapuram. It is the further case of the petitioner that he was promoted as ADCO (T) on ad-hoc basis and thereafter promoted on regular basis and stands transferred from Thiruvananthapuram to Jammu and Kashmir. It is the case of the petitioner that juniors and seniors are retained at Thiruvananthapuram and he was transferred to Jammu and Kashmir. It is also the case of the petitioner that 2 vacancies of ADCO (T) are available at Thiruvananthapuram even after accommodating those who have been promoted. As in the earlier case, it is stated by the petitioner that there are five sanctioned posts of ADCO (T) in Kerala and two persons working for last 16 and 7 years at Trivandrum, have never worked outside Kerala. It is also the case of the petitioner that the wife of petitioner is working in a Public Sector Undertaking (Central Bank of O.P.(CAT)Nos.261 & 264 of 2016 5 India) with restrictions to get transfer outside southern region. She will get a chance to go beyond southern region only after promotion to the next post, Scale II Officer in the bank. Hence there is no possibility of getting transfer from Nagarcoil to Jammu and Kashmir.
4. When the petition came up for hearing, the learned counsel brought our attention to the transfer order dated 26.5.2016. It is submitted that the transfer order itself will show that the petitioners were transferred against the existing vacancies. Petitioners were serial Nos.30 & 41 respectively in the transfer order. It is the case of the petitioners that as per Ext.A6 (in Ext.P1 in O.P. (CAT) No.261/2016) it can be seen that Ministry of Personnel, P.G. & Pensions Department of Personnel & Training, Government of India, issued an office memorandum in respect of posting of husband and wife at the same station. As per clauses (iv) and (vi) in the said O.M., it is stated thus:
"(iv) Where the spouse belongs to one Central Service and the other spouse belongs to another Central Service:-
O.P.(CAT)Nos.261 & 264 of 2016 6 The spouse with the longer service at a station may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station, or if there is no post in that station to the State where the other spouse belonging to the other Central Service is posted.
(v) x x x x
(vi) Where one spouse belongs to a Central service and the other spouse belongs to PSU :
The spouse employed under the PSU may apply to the competent authority and the said authority may post the officer to the station or if there is no post under the PSU in that station, to the State where the other spouse is posted. If, however, the request cannot be granted because the PSU has no post in the said station/State, then the spouse belonging to the Central Services may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station, to the state where the spouse employed under PSU is posted."
In this aspect, this O.M. was not adhered to by the transferring authority. Even though a representation was made in this regard by the petitioners herein the said representations were dismissed by the authority. It is also brought to our notice that originally there was an office memorandum dated 12.06.1997 whereby the husband and O.P.(CAT)Nos.261 & 264 of 2016 7 wife may invariably be posted together in order to enable them to lead a normal family life and look after the welfare of the children, especially till the children are 10 years of age. Thereafter the age of the children is extended till 18 years by an O.M. dated 30.9.2009. All these directions were violated.
5. In support of the submission that there were five substantial posts at Kerala, the learned counsel also brought our attention to Annexure A11 (in Ext.P1 in O.P. (CAT)No.261/2016) wherein in serial No.15 it is stated that in Kerala there are five clear posts for ADCO (T). Thus, the case projected before us is that even though there were five vacancies for ADCO (T) in Kerala i.e. at Thiruvananthapuram and even though there were only 3 persons posted and two clear vacancies are therein, the petitioners were posted outside Kerala without adhering to the above O.M.s., in passing the transfer order.
6. In this case it can be seen that it is a promotion and transfer. The case of the petitioners is that there were O.P.(CAT)Nos.261 & 264 of 2016 8 other persons who were never worked outside Kerala are retained at Thiruvananthapuram itself, even though promoted. The two cases highlighted by the petitioners are in respect of two women. As per Ext.A6 O.M., the reasons for issuing such an O.M. is detailed in paragraph 2 wherein it is stated that the Government of India have given the utmost importance to the enhancement of women's status in all sectors and all walks of life. Strategies and policies are being formulated and implemented by different Ministries of the Central Government to achieve this end. It is also considered necessary to have a policy which can enable women employed under the Government and the Public Sector undertakings to discharge their responsibilities as wife/mother on the one hand and productive workers on the other, more effectively. It is the policy of the Government that as far as possible and within the constraints of administrative feasibility, the husband and wife should be posted at the same station to enable them to lead a normal family life and to ensure the education and welfare of their O.P.(CAT)Nos.261 & 264 of 2016 9 children. Naturally, when two persons who are admittedly women and retained at Thiruvananthapuram itself cannot be found fault with in the light of the above policy decision of the Government on which the above O.M. is seen issued. At this juncture it is to be said that being a bachelor is not a sin. Expecting to be at native place to get married, also cannot be found fault with. If an employee is found to be fit to be posted at a particular post at a station, considering his ability and other plus points or achievements in his career, the transferring authority cannot be found fault with, if a transfer is effected on the said basis. Superior officers will be knowing an employee better than any other person.
7. It can be further seen that it is the case of the petitioners that they were transferred to the existing vacancies. It is also the case that even in an earlier occasion, those posts were not seen filled by the authorities. At this juncture it is to be said that it is an administrative decision taken by the transferring authority taking into account how long a post has to be kept vacant or at what O.P.(CAT)Nos.261 & 264 of 2016 10 point of time it has to be filled up. It cannot be said that only because two posts are vacant at Thiruvananthapuram, the petitioners are entitled to be posted at Thiruvananthapuram. Even though the Government is to be a modal employer, that will not be a hurdle while taking decision by the concerned authorities in respect of which post has to be kept vacant and how long it has to kept vacant. Only because there are two vacant posts available at Thiruvananthapuram, it cannot be said that the petitioners can be posted at Thiruvananthapuram alone. In short, when the competent authority took a decision considering the existing exigencies, this court is not expected to interfere with it.
8. We have perused the impugned order to see whether all these aspects were considered by the Tribunal. On going through the order, it can be seen that in paragraph 21 of the order it is considered by the Tribunal as follows:
" 21. In the instant cases respondents have O.P.(CAT)Nos.261 & 264 of 2016 11 stated the reasons in an adequate manner as to why the services of the applicant in these cases are required in other places. Respondents have also stated that the applicants have a fairly long period of stay in the DCO Kerala. The respondents have explained that lady officers were not transferred/posted out side the State in order to ensure that minimum inconvenience is caused to the promoted officials. Therefore, this Tribunal is of the view that respondents have stated convincing reasons and need for transferring/posting the applicants outside the Kerala DCO."
9. It is also highlighted by the Tribunal that the O.M. is not conferring a vested right upon the petitioners to be posted at the very same station and the Tribunal also pointed out that it is a transfer on promotion. It is also highlighted that the reasons highlighted by the respondents is that the Department have a judicious mix of both promoted and direct recruit officials and therefore the Tribunal accepted the stand of the Department in stating that even though there are vacancies available in States like Telungana, the posts of ADCOs cannot be filled up by the O.P.(CAT)Nos.261 & 264 of 2016 12 promoted ADCOs alone.
10. The grievance of the petitioners is that even though the persons from Telengana or erstwhile Andra Pradesh were retained at the home station, the petitioners were picked and chosen with malice and therefore, what was done is a malafide exercise of power cannot be upheld as long as those aspects are not shown positively before this court or the Tribunal. It can be only said that when administrative exigencies exist and decisions are taken by the Department it will be unreal and impracticable to expect a scrupulous adherence to guidelines in all situations. Therefore, even if in a case there is violation of the guidelines that by itself cannot be a ground for interference with the order of transfer. Unless the decision is vitiated by malafides or the order is punitive the fact that the order of transfer causes inconveniences or hardships incidental to the transfer by itself cannot be a reason for this court to interfere with the transfer order. But, certainly when the power of transfer is exercised malafide or O.P.(CAT)Nos.261 & 264 of 2016 13 otherwised abused, this court will interfere with the transfer order. There are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. When the matter is viewed in this angle, no illegality or error is committed by the Tribunal. Under such circumstances, these original petitions lack merit and accordingly they are dismissed. It is made clear that we maintain the liberty granted by the Tribunal to the petitioners to make representation to the authority competent requesting for a convenient posting and also the consequential direction to dispose of such representations, if filed, even while dismissing the Original Petitions.
C.T. RAVIKUMAR JUDGE K.P. JYOTHINDRANATH JUDGE shg/