Central Administrative Tribunal - Chandigarh
Rajesh Chaudhry vs Union Of India on 16 August, 2018
Author: P. Gopinath
Bench: P. Gopinath
1
O.A.060/00696/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Pronounced on : 16.08.2018
Reserved on : 06.08.2018
CORAM: HON'BLE MR.SANJEEV KAUSHIK, MEMBER(J)
HON'BLE MRS. P. GOPINATH, MEMBER(A)
OA No. 060/00696/2017
MAs No. 060/00653/2018 &
060/1105/2018
Rajesh Chaudhry, aged 50 years, son of Shri Jagdish Chander
Chaudhry, resident of 8, New Basant Nagar, Sodhal Road, Jalandhar
City, presently posted as Superintendent (Group B), Central Excise
Commissionerate, F Block, Rishi Nagar, Ludhiana.
...Applicant
BY ADVOCATE: Sh. G.S. Bal, Sr. Advocate with Sh. L.K. Brar,
Advocate
Versus
1. Union of India through Secretary to Govt. of India, Department
of Revenue, 128/A, North Block, New Delhi.
2. Chief Commissioner (Chandigarh Zone), Goods & Service Tax,
Central Revenue Building, Plot No. 19, Sector 17-C,
Chandigarh.
3. Commissioner, Central Excise & Service Tax Commissionerate,
F Block, Rishi Nagar, Ludhiana.
4. The Principal Commissioner, Customs Commissionerate, The
Mall, Amritsar.
...Respondents
BY ADVOCATE: Sh. Sanjay Goyal
2
O.A.060/00696/2017
ORDER
BY MRS. P. GOPINATH, MEMBER(A):-
Applicant joined service as Inspector in Central Excise and Customs Department and was promoted as Superintendent Group B. Applicant has completed a tenure of four years and three months in J&K.
2. In 2009, a transfer policy (Annexure A-9) was framed on the basis of which a draft roster for transfer was required to be prepared. Under this policy, the officers who have never been posted to J&K have been placed first in the roster followed by the officers who have remained posted in J&K earlier with the following categories:-
(a) tenure of less than 9 months
(b) tenure of 9 months or more but less than 1 year 9 months
(c) tenure of 1 year 9 months or more but less than 2 year 9 months, and so on
(d) within the above categories b & c, the officers have been placed in the descending order with respect to duration of time after their last posting in J&K.
3. This A-9 transfer policy of 2009 was replaced by A-5 transfer policy of February, 2015. In the 2015 transfer policy, if a person had spent over five years of service, as in the case of the applicant, in the remote past, he could again be transferred to J&K as compared to an employee having spent less than a year in the recent past, thereby, making the years of having served in J&K and not the years of having served as the criteria for transfer again to the State.
4. On the basis of A-5 transfer policy, a draft roster for posting to J&K was prepared to which the applicant submitted an 3 O.A.060/00696/2017 objection. Despite this, he was transferred to J&JK vide impugned order Annexure A-2. Applicant's representation (Annexure A-7) was also not decided.
5. Applicant has been granted an interim stay for maintenance of status quo. Applicant seeks reasons as to why a new A-5 transfer policy which works adversely against the applicant was framed superseding the 2009 transfer policy which was based on length of service rendered in the State of J&K as being the criteria for transfer. The prayer of the applicant in the OA is for quashing the new transfer policy and to prepare the roster on the basis of actual length of service in J&K. The applicant has not impugned the transfer policy and only wants that his transfer should be considered on the basis of earlier policy for posting in J&K.
6. The respondents in the written statement submit that the new transfer policy of 2015 visualizes a normal tenure in J&K to be of a duration of two years at a stretch in consonance. The applicant had served in J&K from March 1992 to June 1996 before the issue of transfer policy of 2009 and subsequent transfer policy of 10.02.2015. The respondents in Annexure A-1, issued in pursuance of Tribunal's order of 28.06.2017 in OA No. 696/2017, submit that though the roster for transfer placement was circulated, where the applicant was shown at Sr. No. 31, yet, no representation was received from him in this regard. After considering the representations received from others, the final roster was issued. Hence, applicant failed to avail the 4 O.A.060/00696/2017 opportunity of representation when transfer placement roster was circulated.
7. The respondents also contend that the applicant did not submit any representation against the final transfer roster issued. After the final roster was issued, applicant submitted a representation giving reasons of his ailing father, advocate wife, college going son and daughter as reasons for averting his transfer to J&K. Applicant also submitted that since he had already done a tenure of almost four years in J&K, those with lesser tenure be considered for transfer to the State.
8. The respondents while discussing the applicant's representation, recorded that ailments and aging father are general grounds applicable to most officers like the applicant who were over 50 years of age. If all such cases of ailments were taken into consideration, no officer would be available to serve in J&K.
9. The respondents, based on experience, drew up a transfer policy in the best interest of service and considering the administrative exigencies. The fact that they have drafted a policy for J&K, would show that the respondents were facing difficulty in ensuring that the posts in J&K are suitably manned. There is no doubt about the fact that J&K is a part of India and it is necessary to post officers in the State, so as to ensure that respondents' service and duties are duly carried out. This is not a policy made only to cause inconvenience to the applicant. It is a policy uniformly applicable to all persons serving in the department. 5
O.A.060/00696/2017
10. The applicant has not made out a case that the respondents have no power to draft or revise a transfer policy based on the requirement of service. Once a policy has been drafted, it would be necessary to implement it in letter and spirit, except under extenuating circumstances. The circumstances framed by the applicant for non-transfer are grounds which would occur to everyone of his age where one's parents get older and children would be in the midst of college education etc. The applicant's representation against the transfer has been disposed off by a detailed reply (Annexure A-1) considering all his contentions. The transfer policy was issued in 2015 and the applicant did not challenge the same. He deems it fit to challenge the transfer policy only when he becomes the affected party, and that also three years after the policy is issued. We are also disturbed by the fact that the applicant objects to a transfer to J&K State, where the respondent is duty bound to serve and render service. The transfer policy has been formulated on administrative exigency and we do not note any malafide in the same.
11. The Apex Court in Rajendra Singh Vs. State of UP, (2009) 15 SCC 178, has correctly opined in Para 5 that a Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any 6 O.A.060/00696/2017 specific indication to the contrary. No government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. In Shilpi Bose Vs. State of Bihar (AIR 1991 SC 532), the Apex Court has held that 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 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 conductive to public interest.
12. In N.K. Singh Vs. UOI, 1994 SCC(6) 98, the Apex Court has held that the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision. We find that both are not attracted in this case.
13. Transfer or posting is not a matter which the applicant can claim as a matter of right. It is neither legal nor proper for the Tribunal to issue directions or advisory summons to the executive as to which post should be occupied by which officer in the Cadre. This is an administrative decision and the Tribunal cannot sit in judgement as to who would best fit in a particular post. Unless an order of transfer is shown to be an outcome of malafide exercise of power, or 7 O.A.060/00696/2017 in violation of statutory provision prohibiting any such transfer, it would not be proper for the Tribunal to interfere with transfer orders as a matter of routine. The competent authority is vested with the right to distribute available man power in exigencies of administration. The appellate jurisdiction of the Tribunal in the matter of transfer is extremely limited. Who should be transferred, where and when, is a matter for the appropriate authority to decide and the Tribunal cannot take on this responsibility.
14. For the foregoing discussion and the Supreme Court law prevailing on the point of limited interference in transfer matters, we feel ourselves constrained to offer any relief to the applicant. OA, being devoid of merit is dismissed. MA pending, if any, is also disposed of accordingly. No costs.
(P. GOPINATH) MEMBER (A) (SANJEEV KAUSHIK) MEMBER (J) Dated:
ND*