Central Administrative Tribunal - Delhi
Sundeep Saggu vs Drdo on 10 July, 2023
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Item No. 35/ C-6 OA No. 3793/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 3793/2022
M.A. No. 3857/2022
Reserved on 10.07.2023
Pronounced on ...07.2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
SH. SUNDEEP SAGGU AGED ABOUT 37 YRS, S/O
SH. JAIVIR SINGH, DESIGNATION - PRESENTLY
WORKING AS SCIENTIST-E (GROUP-A) at DIT&CS,
DRDO Hqr., DELHI, MINISTRY OF DEFENCE, GOVT.
OF INDIA.
...Applicant
(By Advocate : Mr. Varun Mudgil)
Versus
1. UNION OF INDIA, THROUGH IT'S SECRETARY,
DEPARTMENT OF DEFENCE RESEARCH &
DEVELOPMENT (DRDO), MINISTRY OF DEFENCE,
DRDO BHAWAN, RAJAJI MARG,
NEW DELHI-110011 EMAIL ID: [email protected],
[email protected]
2. DIRECTOR, DIRECTORATE OF INFORMATION
TECHNOLOGY & CYBER SECURITY (DIT&CS), DRDO
BHAWAN, RAJAJI MARG,
NEW DELHI-110011 EMAIL ID: [email protected],
director_dites @ hqr.drdo.in
...Respondents
(By Advocate: Mr. Pradeep Kr. Sharma)
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Item No. 35/ C-6 OA No. 3793/2022
ORDER (ORAL)
The present application has been filed by the applicant against the transfer order dated 21.04.2022 vide which he has been transferred from Delhi to Pune and subsequent relieving order dated 18.07.2022.
2. The brief facts of the case are that the applicant is working as Scientist (E) in Delhi office of DRDO. He joined service as Scientist (B) on 21.05.2008 and since then he has been posted at Delhi. The present OA has been filed by the applicant seeking the following reliefs:-
"a. PASS an order/direction in the nature of certiorari directing the Respondents to quash the impugned Posting/Transfer Order of the Applicant issued by the Respondents No.1 i.e. DOP (DRDS III), DRDO, Ministry of Defence, GOI vide Order No. DOP/05 (DRDS-
III)/53162/HG/DIT&CS/M/02, Dated:
21/04/2022;
b. PASS an order/direction in the nature of certiorari directing the Respondents to quash Relieving Order /Movement Order of the Applicant issued by Respondent No. 2, i.e., DIT & CS, DRDO, Ministry of Defence, GOI, vide Order No. DIT & CS/09-007/P&T/M/I, Dated:
18/07/2022;
c. PASS an order/direction in the nature of certiorari directing the Respondents to quash the Orders issued against the Applicant by the Respondents, i.e., DOP, DRDO, Ministry of Defence, GOI vide Order No. 3 Item No. 35/ C-6 OA No. 3793/2022 DOP/08/87455/M/01, Dated: 16/09/2022 and Order No. DOP/08/87445/M/01, Dated: 22/09/2022, for claiming TA/DA and CTG from the lab in which the Applicant has been illegally, hastily, malafidely transferred in the garb of public interest;
d. PASS an order/direction in the nature of certiorari directing the Respondents to quash the Order issued against the Applicant by the Respondents, i.e., DOP, DRDO, Ministry of Defence, GOI vide Order No. DOP/08/87455/M/01, Dated: 05/12/2022 passed by the respondents in compliance of the Hon'ble Tribunal Order dt. 15.11.2022 in OA- 3317/2022, titled as Sundeep Saggu vs UOI & Anr. being non-speaking, non-reasoned, arbitrary, vindictive, malafide & not in light of Rights of Persons with Disabilities (RPWD) Act, 2016 and DoP&T, GOI OM No. F.No.42011/3/2014-Estt. (Reg.), dt. 08/10/2018; e. PASS an order/direction in the nature of mandamus directing the Respondents to allow the Applicant to continue to the Post of Scientist-E in the O/o DIT&CS, DRDO Hqr, Delhi where there is existing vacancy of Scientist as per letter Dt. 15.11.2022 of the Respondents; f. PASS an order/direction to the Respondents to quash the Relieving order of Struck of Strength dated 18/07/2022 passed suddenly, illegally, unilaterally, clandestinely, improperly in haste by the Respondent No. 2 against the Applicant without completing the Respondents obligatory and statutory duty of the issuance of No- dues/NOC clearance certificate before relieving the applicant and consequently direct the Respondents to release the full salary, allowances, all the consequential benefits including arrears of salary of the Applicant w.e.f. Aug' 2022 along with the interest for delay on non-payment and deposit license fees to Directorate of Estates (DoE) in respect of Applicant Govt. GPRA Accommodation w.e.f. Aug' 2022;4
Item No. 35/ C-6 OA No. 3793/2022 g. CALL for the entire records of the respondents with respect to the malafide, illegal, arbitrary transfer/posting and subsequent forced, unilateral, clandestine, improper, illegal, haste relieving of the applicant done without following mandatory office procedure of No-dues/NOC clearance.
h. PASS any such other and further order which is necessary in the interest of justice & award cost of the litigation to the Applicant."
3. Learned counsel for the applicant has taken the following grounds for seeking the aforementioned reliefs:-
(a) The applicant himself is suffering from severe back pain.
(b) His parents are disabled to the extent that his father is suffering from Alzheimer's disease and there is a certificate that he is infact 75% disabled of his mental faculty. Similarly, his mother is also suffering from Hard of Hearing and there is a certificate that she is disabled to the extent of 50% of hearing.
(c) The transfer order dated 21.04.2022 is against the Transfer policy dated 12.04.2019 of the respondents.
Para 2, 3 and 4 of the said Transfer Policy read as under:-
"2. The Lab proposing the transfer after obtaining the recommendation of the Cluster DG would forward the case to DOP, who would process the case further for the 5 Item No. 35/ C-6 OA No. 3793/2022 acceptance of proposed Lab/DG before submitting to Chairman DRDO and Secretary, DD R&D through DG (HR) for approval.
3. All Labs may process the transfer cases according to this modified process.
4. It is also reiterated that for uploading the vacancies (all cadres) on DRONA, letter No.DOP/DS/004/M dated 27 Mar 2018 may be followed."
4. Learned counsel for the applicant submits that respondents have not uploaded the vacancies nor the process mentioned in the aforementioned OM has been followed. He further drew attention to Annexure A-15, OM dated 08.10.2018 issued by DOPT according to which the following instructions have been issued "(i) A Government employee who is a care-giver of dependent daughter/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,
(ii) The term "Specified Disability" as defined in the Schedule to the Rights of Persons with Disabilities Act, 2016, covers (1) Locomotor disability including leprosy cured person, cerebral palsy, dwarfism, muscular dystrophy and Acid attack victims (ii) Blindness (ii) Low-vision (iv) Deaf (v) Hard of hearing
(vi) Speech and language disabilities (vii) Intellectual disability including specific learning disabilities and autism spectrum disorder (viii) Mental illness (ix) Disability caused due to: (a) Neurological conditions such as Multiple sclerosis and Parkinson's disease 6 Item No. 35/ C-6 OA No. 3793/2022
(b) Blood disorder- Haemophilia, Thalassemia and Sickle cell- disease and (x) Multiple disabilities (more than one of the above specified disabilities) including deaf blindness and any other category of disabilities as may be notified by the Central Government.
(i) The term 'Specified Disability' as defined herein is applicable as grounds only for the purpose of seeking exemption from routine transfer/ rotational transfer by a Government employee, who is a care-giver of dependent daughter / son / parents / spouse / brother / sister as stated in Para 3(1) above."
5. Learned counsel for the applicant further averred that in the instant case the respondents have not taken into consideration the disability of the parents of the applicant and hence they have violated the provisions of the said OM dated 08.10.2018 as well as the provisions of the Rights of Persons with Disabilities Act, 2016.
6. In support of his argument, learned counsel for the applicant referred to the order of this Tribunal in OA No. 2233/2017 along with OA No. 2236/2017. This Tribunal vide order dated 08.02.2018 has given benefits of the exemption of routine transfer to the applicants therein because the applicants' parents were suffering from severe disability. He further referred to a judgment of the Hon'ble Delhi High Court in W.P.(C) No. 7927/2020, Anju Mehra Vs. Canara Bank & Ors., where the benefits of disability 7 Item No. 35/ C-6 OA No. 3793/2022 act has been given to the applicant/petitioner therein who are themselves disabled.
7. Per contra, learned counsel for respondents stated that the present applicant is serving the office of DRDO from the last fifteen years. He is serving as Scientist (E) which is an all India transferable job and he is supposed to serve anywhere in India. Moreover, the present applicant has availed EL of 78 days w.e.f. 22.04.2022 to 08.07.2022 on medical grounds and he rejoined office on 11.07.2022. Thereafter, he remained absent from 18.07.2022 onwards for which he has been issued a show cause notice. Against the said Show Cause Notice the applicant has filed OA No. 3317/2022 wherein this Tribunal vide order dated 15.11.2022 directed the respondents-department to consider the representation of the applicant and passed a reasoned and speaking order within a period of three weeks from date of receipt of a copy of that order. Para 6 of the said order reads as under:-
"6. In view of the limited prayer made by the learned. counsel for the applicant stated hereinabove without going into the merits of the case, the O.A. is disposed of with a direction to the respondents to treat this O.A. as a comprehensive representation and dispose of the same by passing an appropriate reasoned 8 Item No. 35/ C-6 OA No. 3793/2022 and speaking order, in the light of the extant rules and the O.Ms. on the subject, expeditiously as possible and within a period of three weeks from the date of receipt of a copy of this Order."
8. Learned counsel for the respondents further averred that the parents of the applicant have not residing with him. He further stated that the medical condition of the parents of the applicants do not warrant his stay at Delhi because Pune is established Station where all medical facilities are available from the defence forces as well the civilian side.
9. In support of his arguments, Learned counsel for the respondents draws attention to the judgment of Hon'ble Delhi High Court in W.P.(C) No. 6206/2021, Laxman Singh Rawat Vs. Union of India & Ors. wherein the applicant has himself having medical situation and the Hon'ble High Court had declined to interfere in the transfer order. He further cited judgment of the Hon'ble Delhi High Court in W.P.(C) No. 6927/2020 in Karmveer Vs. Union of India & Ors., wherein the applicant's son was suffering from 100% disability, still the Court had declined the vacation of transfer order thereof.
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Item No. 35/ C-6 OA No. 3793/2022
9. He further draws strength from the judgment dated 01.11.2012 in W.P.(C) No. 423/2022 in Bidul Goswami Vs. North Eastern Electric Power Corporation Ltd. (NEEPCO) & Ors. of High Court of Meghalaya, wherein the disability of mother was also not taken in to consideration and the Hon'ble High Court of Meghalaya had declined to interfere into the transfer order.
10. In rejoinder, learned counsel for the applicant stated that the address of Najafgarh of the parents are permanent address, however, the parents are staying with the applicant at Hudco Palace.
11. I have heard both the counsels carefully and gone through the records of the case thoroughly.
12. In the instant case, the applicant is seeking cancellation of the impugned transfer order dated 21.04.2022 on the ground that his parents are handicapped and they need medical treatment only at Delhi. This contention is not tenable in the sense that the treatment for such disabilities is available in all major cities including the Pune to which the present applicant has been transferred. The judgment quoted by the applicant Anju 10 Item No. 35/ C-6 OA No. 3793/2022 Mehra (supra) is not applicable in the instant case, as in that case the applicant himself was handicapped. The Rights of Persons Disability Act, 2016 was squarely applicable in case of the applicant in Anju Mehra (supra) case. In the instant case, it is the parents who need care. The facts and circumstances of OA No. 2233/2017, as well as OA No. 2236/2017, are significantly different from the facts and circumstances of the present case. In the aforesaid OAs, applicant's son were having various disabilities but in the instant case the applicant' father is suffering from old age problem like Alzheimer's disease and the mother is suffering from hard of hearing which does not require any location specific health care. The applicant is Scientist (E) as he has availed the benefits of posting in Delhi since 2008, almost for 15 years at the present place of posting. The transfer to a location like Pune is not a difficult one which warrants special treatment for the applicant.
13. In the instant case, the behavior of the applicant who is serving as Scientist (E) is quite appalling because after availing the medical leave he has not joined his new place of posting since 11.07.2022. There are catena of 11 Item No. 35/ C-6 OA No. 3793/2022 judgments by the Hon'ble Supreme Court which states that the Government servant should join at the place of posting and after joining they can make a representation regarding their personal difficulties to the concerned authorities for favourable and sympathetic consideration.
14. Personal hardships, family circumstances, education of children, health issues of self and dependant family members are matters for consideration for the competent administrative authority but not for the Courts/ Tribunals to decide the matter as an Appellate Authority. The decision of the Administrative Authorities after considering these personal difficulties is considered final.
15. When the courts interfere in the administrative functioning of a department by entertaining the petitions against transfer orders, it creates administrative complexitities for the authorities. The Apex court in State Of Haryana & Ors Vs Kashmir Singh &Ors on 6 October, 2010[ CIVIL APPEAL NOS. 8690-8701 OF 2010] has clearly advised the courts /tribunals to desist from interfering in those matters. It has been held as under:-
"16. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High 12 Item No. 35/ C-6 OA No. 3793/2022 Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.
18. For the foregoing reasons, these appeals succeed and are hereby allowed. The impugned judgment of the High court is set aside and the writ petitions before the High Court stand dismissed. No costs."
16. Here, even the transgression of the transfer guidelines has not been allowed to be interfered by the court. This has been further reiterated by the Apex Court in Airport Authority of India Vs Rajeev Ratan Pandey and Ors CA No 5550 of 2009. Para 10 of the judgment states that even if the transfer order is violative of transfer policy, the court should not interfere. It has been held that:
"In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any 13 Item No. 35/ C-6 OA No. 3793/2022 contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut"
17. Similar view has been echoed in Rajendra Singh &Ors Vs State of Uttar Pradesh &Ors CA No.4975 of 2009 decided on 31.7.2009.
18. In view of above, the present OA lacks merit and hence the same is dismissed. Pending MA also stands disposed of accordingly. No costs.
(Dr. Chhabilendra Roul) Member (A) /daya/