Central Administrative Tribunal - Delhi
Preeti Katiyar vs Railway on 13 September, 2023
1
OA No.785/2023
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.785/2023
Order reserved on: 18.08.2023
Order pronounced on: 13.09.2023
Hon'ble Mr. Manish Garg, Member (J)
Ms. Preeti Katiyar
D/o Late Shri Jang Bahadur Singh Katiyar
R/o 38, Officer‟s Transit Camp
State Entry Road,
Connaught Place,
New Delhi-110055.
...Applicant
(By Advocate: Mr. Vishwendra Verma)
Versus
1. Union of India
(Through Chairman & CEO, Railway Board)
Ministry of Railways,
Rail Bhawan, New Delhi-01.
2. The Railway Board,
(Through the Secretary)
Ministry of Railways,
Rail Bhawan, New Delhi-01.
3. The General Manager,
Northern Railway,
Baroda House ,
Copernicus Marg,
New Delhi-110001.
... Respondents
(By Advocate : Mr. S.N.Verma)
2
OA No.785/2023
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
"i) To set aside the impugned order 15.12.2022 alongwith impugned Notices dated 08.09.2022 and 14.09.2022 after treating the same as void ab-
initio in the eyes of law and also grant all consequential benefits (including pay and allowances for the period); (pg 130-134)
ii) to quash and set aside communication dated 15.09.2022 (pg 364) as issued without approval of "Finance Minister of India" and thus, non- maintainable and bad in law and issue strict directions against the Respondent(s) w.r.t over- reach of authority;
iii) to direct the Respondents to regularize the period b/w 27.09.2022 till 13.02.2023 as duty as per HRMS record till 13.02.2023 under Respondent No. 3 and continue on the said post as per the Transfer Policy dated 31.08.2015 in accordance with law with all related consequential benefits to the applicant;
iv) to condone any minor typographical errors if any, which are un-intentional;
v) To pass any other further orders as may be deemed fit and proper in the interest of justice."
2. The applicant is aggrieved by the impugned order dated 15.12.2022 and the impugned notices dated 08.09.2022 and 14.09.2022 issued by the 3 OA No.785/2023 respondents. She is seeking quashing and setting aside of Transfer Order dated 15.09.2022. As an interim relief, she is seeking direction to the respondents to allow her to continue on the present posting with Respondent No.3.
3. Learned counsel for the applicant submits that this is the second round of litigation. In terms of the orders passed in O.A. No. 2584/2022, the respondents have passed speaking order dated 15.12.2022 and rejected the representation of the applicant.
4. Learned counsel for the applicant draws reference to transfer policy while seeking the aforesaid reliefs. He relies upon clause (iv) of transfer policy dated 31.08.2015, which stipulates that transfers and postings will be done against clear vacancy of a "sanctioned post". He further draws strength to clause (viii) which reads as under:-
"(viii) Total stay at a stretch at a particular station should not be more than 10 years and the total 4 OA No.785/2023 cumulative stay (in broken spells) should not be more than 15 years. Deputation to PSUs and other Ministries will not be counted for this purpose. This will be implemented in a phased manner."
5. In the facts of the case, learned counsel for the applicant states that the applicant joined on the post of CPO on 18.02.2021. To further depict the position, he refers to point nos.19-23 which read as under:-
S. Period Designation Scale/PB/ Railway/Station No. / Level Grade 19 11.05.2015 Dy CPO/Hq 14300-400- NR-HQ/New Delhi till (Sel. Grade) 18300 7.06.2015 20 08.06.2015 Dy CPO (Sel. -do- On sanctioned leave till Grade) due to demise of 03.08.2015 Mother 21 04.08.2015 Dy -do- CAO/Const./ till CPO/Const. Kashmere Gate.
12.02.2016 (Sel. Grade) Delhi-05 22 15.02.2016 Director (L- (L-13/L-14 Deputation to GoI till 13/L-14- under Next under Central 14.02.2021 Next Below Below Rule) Staffing Scheme Rule) 23 18.02.2021 CPO (in Level-14 NR-Hqr/New Delhi till filing of SAG/L-14 OA 2584 of since 2022 on 21.06.2019) 15.09.2022
6. The applicant has been transferred twenty three times in a total span of her career of 23 years. Learned counsel for the applicant would contend 5 OA No.785/2023 that the applicant was on deputation from 15.02.2016 to 14.02.2021. Therefore, the deputation period shall not be counted for the purpose of transfer in terms of clause (viii) of the transfer policy. The same is sacrosanct and binding upon both the parties. He further draws a reference to the impugned order dated 08.09.2022. There was no clear cut vacancy qua the post of CPO which clearly reflects that sanction was to be accorded separately. The said post she would have carried from Allahabad to PLW. Learned counsel submitted that the tenure of five years has not expired and the applicant had been posted in 2021 and, therefore, the same is contrary to clause (v) of the transfer policy, as the required tenure for the particular post is five years. He further draws reference to an order dated 11.10.2022, which is reproduced as under:-
"No. E(O)III-2022/TR/341 (.) Refer to Boards order of even number dated 08.09.2022, transferring and posting Ms. Preeti Katiyar, SAG/IRPS/ Northern Railway to PLW. As PCPO by utilizing an SAG/IRPS post of NC Railway(.) the post code of 6 OA No.785/2023 the post to be utilized should be corrected to read as "PC: 07NC4P001" in place of PC:07NC4P003 (.)"
7. Learned counsel would contend that initially order dated 08.09.2022 was passed without even seeing the fact that the said post was never in existence which was rectified by virtue of order dated 11.10.2022 and, therefore, the order dated 08.09.2022 has been issued. He would contend that the applicant has never been relieved. Learned counsel for the applicant would argue that if no post was in existence, there is no question of administrative exigencies, what has been narrated in para 2 of the impugned order dated 15.12.2022. He would contend that para 3 of the impugned order runs contrary to clause (v) of the transfer policy, where minimum tenure has to be five years. Therefore, the impugned order has wrongly counted the deputation period against the policy clause
(viii). Learned counsel for the applicant would contend that there is no public interest as there was no vacancy in existence. Learned counsel 7 OA No.785/2023 would contend that the medical condition of her brother as well as the applicant being an unmarried lady and other attending circumstances have been totally ignored by the Competent Authority while passing a reasoned and speaking order. He further contends that the averments made in para 7 of impugned order is arbitrary, irrational and illogical. When a more suitable person Mr. Rajiv Bajaj was available for the said post, who had also asked for a transfer on his own request, the question of placing applicant at a higher pedestal and posting thereto does not arise. Admittedly, the applicant joined the place of transfer on 28.03.2023 under protest. He also relies upon the directions passed by the Hon'ble High Court on 27.09.2022 and 11.10.2022. Further, he would contend that this Tribunal had directed to dispose of the representation in the matter which had not been dealt with. He would further contend that as per the DoP&T OM dated 20.07.2016 regarding the clarification of the 8 OA No.785/2023 Definition of "Members of family" in the context of Rule 4, para 2 of the clarification reads as under:-
"2. As per rule 2 of the CCS (Conduct) Rules, 1964, the definition of "Members of Family" may differ from that given in the rule 2, sub clause (c) in the context of a rule. For removal of doubts it is clarified that in the context of rule 4(1) and 4(3) "Members of family" in relation to a Government servant include the wife or husband, son or daughter, parents, brothers or sisters or any person related to any of them by blood or marriage, whether they are dependent on the Government servant or not."
8. He further contends that the respondents had adopted pick and choose policy. He would further contend that the persons junior or senior to the applicant have not been given similar treatment and she has been arbitrarily transferred. In support of his arguments, learned counsel for the applicant relies upon the judgment of Patna Bench in O.A. No. 050/00323/2020 decided on 15.12.2020. Relevant part of thereof reads as under:-
"5. After filing of aforesaid two MAs, as hart reply, by way of written statements and reserving liberty to file detailed reply was filed by respondents on 24/09/2020. Alongwith Reply an MA No.122/2020 for vacating of stay has also been 9 OA No.785/2023 filed. It has been pleaded by the respondents therein that a letter dated 22.09.2020 (copy Annexure P/2) has been issued by the Deputy Secretary /Estt (SPL), Railway Board, informing that in partial modification of transferring order dated 16.09.2020 Ministry of Railways have now, with the approval of the president has decided that Shri Shubhranshu HAG/IRSME, CAO RWP/Bela, should be posted as PCME [PLG] [PHOD]/East Central Railway, reporting directly to GM/ECR, by utilizing the HAG/IRSME post [PC:05AF3P001] transferred to ECR vide Board's order No.2020E[GC]12-72[73] dated 18.09.2020. It has also been pleaded that neither the transfer order is punitive in nature nor it amounts to reduction in rank and it was issued in administrative exigencies and that PCME [PLG) is also an HAG post. That raising of Issue of appointment to the post of General Manager & equivalent in the Zonal Railways for the year 2019-20 is not just and proper as the same is subject matter of different OA, OA No 251/2020 filed by the applicant. That the substantive capacity of the applicant is only in HAG of IRSME and he was never in the grade of GM/equivalent. That in terms of Rule 226 of the Indian Railway Establishment Code Vol-1, the President, in exigencies of services can transfer any Railway Servant to any Railway or Unit inside or outside India and in terms of Appendix-VI of IREC (Vol.1) Rule 103(2) Railway Board enjoys full power in inter Railway transfer/posting of officer of SAG and above. That instructions contained in Railway Board's letter dated 10.06.2014 are for the Zonal Railway/production Units for setting in place a mechanism for transfer of officers within their jurisdiction, and however, inter-railway transfer of Group-A Railway officers are governed by instructions contained in Railway Board's Comprehensive Transfer Policy dated 31.08.2015. That being a Government servant it was his duty to first report for work where he has been transferred and make representation thereafter and that tendency to not reporting at the place of posting and indulging in litigation needs to be curbed.
xxx xxx xxx 10 OA No.785/2023
20. It can be inferred from the impugned order itself that at the time of issuance of this order post of CME/PLG may not be HAG post. Second part of the order reflects that at the time of issuance of this order vacant IAG post of CAO/IROAF has not been transferred. The order clearly speaks that that the Sanction for transfer of HAG post of CAO/IROAF to East Central Railway will be issued separately.
xxx xxx xxx
22. Further it can be said, without any hesitation that the post of CME/PLG to which applicant was transferred on 16/9/2020 is a lower grade post and had it not been so the respondent would not have issued modification order dated 22/9/16. Modification order dated 22.09.2020 reveals that with the approval of the President it has been decided that Shri Shubhranshu HAG/IRSME, CAO RWP/Bela, should be posted as PCME [PLG] [PHODY/East Central Railway, reporting directly to GM/ECR. by utilizing the HAG/IRSME post [PC:05AF3P001] transferred to ECR vide Board's order No.2020E[GC]12-72[73] dated 18.09.2020.
xxx xxx xxx
24. It is not disputed that CME/PCME (P) PHOD is an officer of Mechanical Department, there can only be one Principle Head of the Department and said Head of the Department is Sri Ashok Kumar Mishra It is also admitted case that the applicant is an officer of IRSME 1983 batch, enjoying HAG grade and Shri Ashok Mishra, is of 1986 batch and has been granted HA grade on 13/12/2018 on non functional basis only. Mere re-designation of post of CME (pig) as Principle CME (plg) may not change its role and this submission of learned counsel that vide this transfer applicant has to work under his junior cannot be said to be [without substance nor the respondent has been able to wash out] F completely, the shrouded mist of legal malice.
25. In view of factual and legal scenario discussed above, unerringly it can be said that impugned transfer order is suffering from inherent lacunas and legal infirmities, no post against which 11 OA No.785/2023 applicant was transferred, vb in fact was existing at Hazipur at the time when the transfer was made. Even after modification of transfer order still some infirmities, anted above, do remains. The impugned transfer order of applicant dated 16/9/2020 and its modification order dated 22/09/2020 to the extent as it relates to posting/transfer of the applicant, thus deserve setting aside and hence are set aside and are quashed."
9. He also relies upon the judgment of Jabalpur Bench in Writ Petition No. 21175/2019 decided on 03.12.2019 titled as Sanjay Upadhyay vs. The State of Madhya Pradesh and the judgment of Hon'ble High Court of Karnataka at Bengaluru in WP No. 14860 of 2022 decided on 18.08.2022 titled as Murthy vs. The State of Karnataka & Ors.
10. We heard the learned counsel for the parties and perused the pleadings on record.
11. Analysis:
11.1 In the detailed facts and circumstances, as narrated herein above, what can be observed is as under:12 OA No.785/2023
11.1.1 As regards availability/non-availability of post at PLW/Patiala is concerned, it is submitted that PLW/Patiala always had a sanctioned post of Principal Chief Personnel Officer (PCPO), which was operated in HAG (Level-15) till 31.08.2022, the date when the incumbent officer superannuated.
Thereafter, the HAG post of PCPO (Post Code:07RC3P001) of PLW was transferred to North Central Railway (NCR) vide Order dated 15.09.2022 issued by the Ministry of Railways, for effecting the promotion of another IRPS officer empanelled for promotion in Level 15. Since, PCPO post at PLW is required, it being a HOD level post, an SAG/IRPS post (Post Code:07NC4P001) (which was erroneously mentioned as Post Code:07NC4P003 in the impugned order dated 08.09.1022) from NCR was transferred to PLW. It was a mutual upgradation and downgradation of posts of PCPO at NCR and PLW respectively and to say that no post of PCPO ever existed at PLW, is factually 13 OA No.785/2023 incorrect and is an attempt on the part of the applicant to mislead this Tribunal. 11.1.2 The applicant belongs to a Central Group „A‟ Service having All India transfer liability in terms of Rule 226 of the Indian Railway Establishment Code, Vol-I, it shall be open for the President to transfer her to any other Railway or department of any Project in or out of India. Moreover, it is trite law that transfer is an incidence of service in public service. It is also an implied condition of service where appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilize the services of its employees. As admitted by the applicant herself, some of her transfers over the period of 17½ years since her joining the Indian Railways had also been on her promotion from the entry grade of Junior Scale to the present grade of Senior Administrative Grade (Level 14) and for most of her service career she has been posted within the jurisdiction of Northern 14 OA No.785/2023 Railway itself though at various places, which were due to administrative constraints and requirements.
11.1.3 Applicant‟s brother cannot said to be dependent under any extant rules/procedure and the medical condition of her family member, though unfortunate, is also common with many other Senior officers belonging to her own Service and this cannot be a ground to refuse to carry out her transfer order which has been ordered in administrative exigency/requirement. Attention is drawn to Rule 103(17) of the Indian Railway Establishment Code, which reads as under:
"(17) Family means a railway servant's wife / husband, legitimate children and stepchildren residing with and wholly dependent upon him / her. It also includes parents, sisters and minor brothers residing with and wholly dependent upon him/her."
11.1.4 Attention is also drawn to Rule 6 of the Indian Railway Medical Manual which reads as under:
15OA No.785/2023
"(6) "Beneficiary" is defined as a Railway employee or his/her family member or a dependent relative as defined in the Pass Rules which inter alia stipulate that dependent relative in relation to a railway servant, whose father is not alive means:-
(iii) brother/step brother under 21 years of age provide he resides with an is wholly dependent on the railway servant, and
(iv) Invalid brother of any age."
11.2 Applicant has been posted as Head of Department being a Group „A‟ officer and is liable to be posted at any place.
12. Hon‟ble Apex Court in Director of School Education Madras and others vs. O.Kauppa Thevan, 1994 SC Supl. (2) 666 held that "the Tribunal has erred in law in holding that the respondents employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration."
13. The Doctrine of Legitimate Expectation or principle of promissory estoppel cannot be applied in the matter of transfer/posting.
16OA No.785/2023
14. In National Hydroelectric Power Corporation vs. Shri Bhagwan & Others, (2001) 8 SCC 574, the Hon'ble Supreme Court held as under:
"No government servant or employee of a public undertaking has any legal right to be posted forever in any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident but a condition of service necessary too in public interest and efficiency in the public administration Unless an order of 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 tribunals cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned."
15. Now coming to the law on the subject, in the light of the principle laid down in judicial pronouncement, it is well settled law that the transfer/posting in public interest is not liable to be interfered with unless and until it is established that the same is made by way of malafide or punishment. The Hon‟ble High Court of Uttarakhand in the case of Dr. Parveen vs. 17 OA No.785/2023 Director General, WP (C) No.99/2019 held as under:
"27. Questions, as to whether the transfers effected are in public interest or not, are normally not examined as this would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at one particular place or to a place of his choice 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 in public interest and efficiency in public administration. Except, in exceptional circumstances, Courts or the Tribunals do not, normally, interfere with such orders as if they were appellate authorities substituting their own decision, for that of the employer/management, with respect to such orders passed in administrative exigencies. (National Hydroelectric Power Corpn. Ltd. and Siya Ram).
28. Courts or tribunals are not appellate forums to decide on transfer of employees on administrative grounds. Wheels of administration should be allowed to run smoothly and Courts/ tribunals are not expected to interdict the working of the administrative system by transferring officers to places it considers proper. It is for the administration to take appropriate decisions, and such decisions shall stand unless they are vitiated either by malice or extraneous considerations. (S.S. Kourav). Orders of transfer should not be interfered with lightly by a Court of law in the exercise of its discretionary jurisdiction. (Anjan Sanyal). Courts or Tribunals cannot substitute their own decisions, in the matter of transfer, for that of the competent authorities. (Gobardhan Lal; Kendriya Vidyalaya Sangathan; Janardhan Debanath; National Hydroelectric Power Corpn. Ltd.; S.L. Abbas; B.C. Chaturvedi; National Hydroelectric Power Corpn. Ltd.; Major General J.K. Bansal).18 OA No.785/2023
29. Since the petitioner's claim, of the transfer order being illegal, is primarily based on the ground that it is vitiated by malafides, it is necessary to take note of the circumstances under which a transfer order can be set aside on this score. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an "alien"
purpose, other than the one for which the power is conferred, is malafide use of that power. Same is the position when an order is made for a purpose, other than that which finds place in the order. (Express Newspapers (P) Ltd.). Allegations of malafides, when made, must inspire confidence in the Court and should be based on concrete material. Such allegations ought not to be entertained on the mere making of it, or on considerations borne out of conjectures or surmises. (Gobardhan Lal). While a reasonable inference of malafide action can be drawn from the pleadings, and antecedent facts and circumstances, there must be firm foundation of facts pleaded and established, and such inference cannot be drawn on the basis of insinuations and vague suggestions. (Rajendra Roy). Vague insinuations in the application filed before the Tribunal, or in the affidavit filed in support of the Writ Petition filed before this Court, would not suffice to hold that an order of transfer is vitiated by malafides.
30. Except for a bald averment, no material has been placed by the petitioner before this Court to support the allegations of malafides. Mere use of the word "malafide" would not, by itself, justifying acceptance of such a plea. (Prabodh Sagar). Allegations of malafides essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite material are not on record, the court would not make a "fishing" or a "roving" inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be malafide. It must be demonstrated by facts. Moreover, the burden of proving malafides is on the person levelling such allegations and the burden is "very heavy". The charge of malafide is more easily 19 OA No.785/2023 made than made out. It is the last refuge of a losing litigant (E.P. Royappa; Gulam Mustafa; Ajit Kumar Nag; and Dhampur Sugar (Kashipur) Ltd.). Vague allegations of malafides are not enough to dislodge the burden resting on the person who makes the same, though what is required in this connection is not proof to the hilt. The abuse of authority must appear to be reasonably probable. (Express Newspapers (P) Ltd.). There has to be strong and convincing evidence to establish allegations of malafides specifically and definitely alleged in the petition. The presumption under law is in favour of the bonafides of the order unless contradicted by acceptable material. (Chandra Prakash Singh; Nirodhi Prakash Gangoli).
31. While exercising the power of judicial review, the High Court should not readily accept the charge of malus animus laid against the State and its functionaries. The burden to prove the charge of malafides is always on the person who moves the court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to malafides. The Court should resist the temptation of drawing dubious inferences of malafides or bad faith on the basis of vague and bald allegations or inchoate pleadings. (Jasbir Singh Chhabra).
32. Where a case is almost entirely based on mala fides, the person alleging malice should furnish the necessary particulars for the allegation, and should prove malus animus indicating that the respondent was actuated either by spite or ill will against him or by indirect or improper motives, failing which it is not obligatory for the respondents to deal with it in detail in their reply. Both direct and circumstantial evidence, as well as the respondents' admission and the surrounding circumstances of the case, are admissible to establish lack of bona-fides, or bad faith. (Kedar Nath Bahl). It is for the person seeking to invalidate an order to establish the charge of bad faith. Such a charge may be made easily or without a sense of responsibility, and that is why it is necessary for Courts to examine it with care and attention. (S. Pratap Singh; Kedar Nath Bahl).
20OA No.785/2023
xxx xxx xxx
46. No rule which requires an employee to be put on notice, before a transfer order is passed, has also been brought to our notice. The Tribunal has examined the matter in great detail, and has held that the manner in which an organization should be run is for those, at the helm of its affairs, to decide; and Courts/Tribunals lack expertise in such matters. The view taken by the Tribunal cannot be said to be a view which could not have been taken at all, for it is only then would this Court be justified in exercising its certiorari jurisdiction, under Article 226 of the Constitution of India, to interfere."
16. In a recent judgment passed by the Hon‟ble High Court of Delhi in Amarjeet Singh Dagar vs. Union of India and others, WP (C) No.6311/2020 decided on 07.03.2022, it is held as under:
"23. At the outset, it must be emphasised that an employee in a transferable job has no vested right to remain posted at one place. The Courts should not readily interfere with the transfer order which is made in the public interest and for administrative reasons, unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead, the affected party should approach the higher authorities in the concerned department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and/or its subordinate Authorities, there will be complete chaos in the administration which would not be conducive to the public interest. Interference under Article 226 of the Constitution of India is permitted only where the Court finds either the transfer order is mala fide or that the 21 OA No.785/2023 service rules prohibit such transfer or that the Authorities issuing the order were not competent to pass the same. It must be remembered that transfer ordinarily is an incidence of service and must be left to the discretion of the Authorities concerned, which are in the best position to assess the necessities of the administrative requirements of the situation. The Courts must maintain judicial restraint in such matters. {Refer: Shilpi Bose (Mrs.) & Ors. vs. State of Bihar & Ors., 1991 Supp. (2) SCC 659; Mohd. Masood Ahmad vs. State of Uttar Pradesh & Ors., (2007) 8 SCC 150; State of Haryana vs. Kashmir Singh & Anr., (2010) 13 SCC 306; and Major Amod Kumar vs. Union of India, (2018) 18 SCC 478)}.
24. In Punjab and Sind Bank & Ors. vs. Durgesh Kuwar, 2020 SCC OnLine SC 774, the Supreme Court summarised the principles applicable to transfer orders, as under:
"17. We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law."
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17. Conclusion:
17.1 It is not in dispute that the applicant had already joined the place of posting. The law provides that applicant has to first join the place of posting, thereafter it is always open to her to make a representation seeking recall of the transfer order. Only aspect now to be examined is qua the treatment of the period for October and November 2022 beyond 20.11.2022 till the date of her joining i.e. 28.03.2023. We may highlight that this Tribunal had passed order dated 21.11.2022, relevant part of which reads as under:
"10. ....... I am also not inclined to grant her leave any further beyond 20.11.22 and failure to report at PLW following this speaking order will be viewed seriously. However, keeping in view the directions of the Hon'ble Tribunal contained in its order dated 21.11.2022 and the fact that salary and allowances for October and November 2022 paid by PLW, GM/PLW, as her competent authority, may like to consider grant of leave as requested by her beyond 20.11.22 till her date of joining and a decision taken in this regard be conveyed to the officer as also to Board's office.
This order may be suitably conveyed to Ms. Preeti Katiyar, IRPS."
17.2 The said order is passed without assigning any reason and without following due procedure of 23 OA No.785/2023 law qua the leave beyond 20.11.2022. It is apparent that the said order has been passed without issuing any show cause notice under the relevant rules for treatment of the said period, more particularly when it is not in dispute that the applicant was agitating her grievance in the present litigation as well as in the earlier round of litigation. Therefore, in so far as the decision not to grant leave is concerned, it is liable to be set aside. 17.3 In view of the above, present OA is partly allowed to the aforesaid extent thereby directing the Competent Authority to revisit and re-consider the issue of non-grant of leave after following due procedure and principle of law and rules thereto, more particularly in view of the fact that applicant has been agitating her grievance by way of legal remedy, which cannot be construed to be an embargo in her way to deny the legitimate benefits. 17.4 In other words, merely because the applicant had approached appropriate legal forum for ventilating her grievance, it cannot be a ground for 24 OA No.785/2023 denial of salary and allowances over the said particular period. The respondents shall carry out the above exercise as early as possible and preferably within a period of two months from the date of receipt of a copy of this order. The OA is partly allowed in the aforesaid terms.
18. No order as to costs.
(Manish Garg) Member (J) /SD/