Central Administrative Tribunal - Jaipur
Dinesh Singh vs M/O Defence on 14 May, 2019
Central Administrative Tribunal
Jaipur Bench, Jaipur
O.A. No. 189/2019
Reserved on: 01.05.2019
Pronounced on:14.05.2019
Hon'ble Mr. Suresh Kumar Monga, Member (J)
Hon'ble Mr. A. Mukhopadhaya, Member (A)
Dinesh Singh S/o Shri Sukhdev Singh, aged about 55 years,
resident of 2/VI, NirmanVihar 2, Sector 2, Vidyadhar Nagar,
Jaipur, presently posted as IFA (SWC), Jaipur.
...Applicant.
(By Advocate: Shri Banwari Sharma)
Versus
1. The Union of India throughthe Secretary,Ministry of
Defence, Government of India, South Block, New Delhi-
110001.
2. Financial Advisor Defence Services, Ministry of Defence,
Government of India, South Block, New Delhi-110001.
3. Shri R.K.Nayak IDAS, Addl. CGDA holding Charge of
Controller General of Defence Accounts, Ulan Batar
Road, Palam, Delhi Cantt.110010.
4. The Senior Joint Controller of Defence Accounts
(Administration), Ulan Batar Road, Palam, Delhi
Cantt.110010.
5. The Senior Assistant Controller of Defence Accounts
(Administration), Ulan Batar Road, Palam, Delhi
Cantt.110010.
6. Shri Himanshu Shankar, IDAS, presently posted as IFA
(SWC), Jaipur with Additional Charge of IFA 12 Corps,
Jodhpur.
...Respondents.
(By Advocate: Shri Anand Sharma for R-1 to R-5 and
None for R-6)
(OA No.189/2019)
(2)
ORDER
Per: A.Mukhopadhaya, Member (A):
This Original Application, (OA), arises from the transfer of the applicant from the office of Integrated Financial Adviser, (IFA), South Western Command, (SWC), Jaipur to the office of IFA Headquarter 2 Corps, Ambala with the additional charge of IFA HQ 11 Corps, Jalandhar vide order dated 20.02.2019, (Annexure A/1), along with related relieving order and notification dated 03.04.2019; (Annexures A/2 and A/3).
2. The applicant, in sum and substance, contends that the aforementioned transfer has been caused as a result of his expressing his professional view in certain matters; (Annexures A-6, A/7 and A/8 refer). The views cited by him, which are based, he claims, entirely on rules and instructions relevant in this regard, were not found convenient by the respondents. The applicant states that he had submitted a detailed representation to the respondents stating his personal difficulties in complying with the transfer order dated 20.02.2019, (Annexure A/1), and brought it to their notice that his daughter, who is 22 years old, is suffering from Panic Disorder, (Episodic Paroxysmal Anxiety), for the last several years. She has been under regular medication for the same and needs constants supervision. She is prone to getting panic attacks in new places/environment. He further (OA No.189/2019) (3) states that in the course of pursuing her studies towards an MBA, (Finance), his daughter was required to undergo summer training/internship in a financial institution/bank etc. for a period of two and a half months. The said internship had been arranged in Jaipur with Kotak Mahendra Bank from the beginning of April till mid-June 2019. In view of her medical condition, his daughter is required to be closely monitored by him and his wife. This internship thus necessitates their stay in Jaipur till July of this year. Vide a representation dated 25.02.2019, (Annexure A/5), the applicant had brought the above-mentioned personal difficulties to the notice of the respondents. He had also pointed out that since a review of the inspection carried out of his office was to be undertaken by the Controller General of Defence Accounts, (CGDA), during March/April 2019, he should be allowed to continue in office during the period of review as the period of the inspection being reviewed related very largely to his tenure at Jaipur. However, the respondents chose to relieve him of his present charge vide relieving order and related notification of 03.04.2019 (Annexures R-2 and R-3); hence this OA seeking the following relief:
i) The impugned order dated 20.02.2019 (Annexure - A/1)and consequent relieving orders No. AN-I/1201/xxxiv/dated 03.04.2019 and order No.Part-II No.23 dated 03.04.2019 be quashed and set aside qua the applicant with further directions to allow the applicant to continue at the (OA No.189/2019) (4) present assignment till the end of December, 2019.
ii) To call for all relevant documents and file notings relevant to this transfer case.
iii) Award costs of this Original Application
iv) Grant such other and further relief which is deemed just and expedient in the facts and circumstances of the case.
3. The applicant contends that the impugned transfer is at variance with the transfer policy related to Indian Defence Accounts Service, (IDAS), Officers, 2017, (hereinafter called "transfer policy"), (Annexure A/4), the relevant portion of which reads thus:
4. Tenures:
(c) "Overall tenure in a station including one deputation may be 15 years / and 10 years excluding all deputations".
4. The official respondents in their reply point out that while the applicant has claimed his personal hardship and the malafide intention of the respondents as the reasons for approaching this Tribunal, the only private party he has impleaded is Respondent No.6 who was transferred to Jaipur in place of the applicant vide the impugned order of 20.02.2019 itself and joined at Jaipur station on 26.03.2019, i.e. before this OA was filed on 08.04.2019. They further point out that the applicant never stated anything about malafide in his representation dated 25.02.2019, (Annexure A/5), to the respondents although he was (OA No.189/2019) (5) aware of Respondent No.6 coming to Jaipur to relieve him to his charge on the issue of the order dated 20.02.2019 itself. They contend that although the said respondent had joined duties on 26.03.2019, the applicant deliberately did not hand over charge to Respondent No.6 thus creating a problem in the smooth running of the office administration. When this fact was pointed out by Respondent No.6 on 29.03.2019, (Annexure R-4), seeking necessary direction to the applicant to hand over charge to him in compliance of the impugned order dated 20.02.2019, (Annexure A/1), it was only then that the applicant's relieving order and related notification dated 03.04.2019, (Annexures A/2 and A/3), were issued.
5. The respondents state that the "transfer policy"(Annexure R/1), relied upon by both parties specifically provides in para 4(b) that "a minimum tenure of an officer at anoffice will be two years and will be three years at a particular station". The respondents point out that the applicant has already completed four and a half years of service in both the office of IFA, (SWC), Jaipur as well as in Jaipur station. They state that the applicant's transfer to Ambala has been approved at the level of the Hon'ble Defence Minister, and being close to his hometown Chandigarh, cannot be said to be an inconsiderate posting. Denying any kind of malafide, the official respondents state that Respondent No.6 was serving at the Bhaba Atomic Research Centre, (BARC), (OA No.189/2019) (6) Mumbai under the Department of Atomic Energy and his transfer/placement at Jaipur in place of the applicant occurred on his return to the Department after completing his deputation strictly as per administrative requirements and the public interest and in accordance with the "transfer policy". Further, the respondents point out that the applicant, instead of pursuing his grievance, if any, with the department, has chosen to place sensitive documents related to procurement plans of the Indian Army in the public domain when filing this OA and as such his action amounts to gross misconduct. As regards the representation dated 25.02.2019, (Annexure A/5), given by the applicant, the respondents contend that the "transfer policy"
only provides for special consideration for retention at a station in the case of officers with children in class 10 and class 12. In such cases, retention at a particular station can be considered till July of the calendar year in question. They point out that the children of the applicant, who are pursuing their MBA and appearing in the Civil Services examinations, do not qualify for such consideration. They further state that the emails related to applicant's LTC claim clearly show that his daughter has been studying for MBA (Finance), at the Symbiosis Institute of International Business, Symbiosis International, (Deemed University), in Pune while the applicant has been posted at Jaipur. Thus, seeking the relief of retention at his old duty station on grounds of his childrens' (OA No.189/2019) (7) education at Jaipur is unjustified. Finally, the respondents reiterate that the Respondent No.6 has already joined and taken charge of the office of IFA, (SWC), earlier held by the applicant and therefore this OA becomes infructuous.
6. Learned counsels for the parties were heard and the material available on record was perused.
7. The facts of the stay in Jaipur well beyond the three years maximum tenure prescribed for a station is not in dispute. The overall tenure of 10 years and 15 years referred to by the applicant very clearly relates to the total of tenure that an officer may serve at a given station during his entire career and not to a single tenure and thus is not relevant here. While the learned counsels for both parties reiterated the pleadings and arguments in the OA and the reply to the same respectively, learned counsel for the respondents also placed on record an extract of the Delegation of Financial Powers of the Defence Services, (DFPDS), 2016, (Annexure C/1), and drew attention to Para 10(1) of the same which provides as follows:
At any stage of procurement, the CFA can overrule the advice of the IFA by a written order giving reasons for overruling the IFA's advice on file....
........................................................................ CFA can agree with IFA's advice or overrule the advice of the IFA by a written order giving reasons for overruling the IFA's advice on file at Expenditure Sanction Stage.............
(OA No.189/2019) (8) ........................................................................
A quarterly report will be submitted by the IFAs through CGDA to MoD (Fin) on such overruling cases. There will be no requirement for CFA to report the over-ruling cases to next higher CFA/IFA.
Citing the above provision, he argued that in this case, the overruling of the applicant by the CFA, (Controller of Finance & Accounts), is expressly provided for in the departmental instructions and thus does not constitute any kind of malafide or even a departure from prescribed procedure. Given the departmental instructions on DFPDS brought on record by learned counsel for the respondents, (Annexure C/1), which allows for the views of the IFA, (such as the applicant), to be overruled by the CFA, there remains no substantive case whatsoever for alleging that such overruling is indicative of any kind of malice or malafide on the part of the respondents. The impugned transfer order is also found to be one where the applicant has been shifted from his present station to a station near his hometown and therefore it cannot be said to be harsh or vindictive in any way. The applicant has also not been able to refute the respondents' earlier described contentions with regard to the inadmissibility of the reasons pleaded by him for staying his transfer in terms of the "transfer policy" that he himself has relied upon. In sum therefore, being an officer of the Central Services, (IDAS), with an all-India transfer liability, there remains no compelling (OA No.189/2019) (9) argument for this Tribunal to intervene with the impugned transfer order which, in any case, appears to lie fully within the parameters set by the respondents' "transfer policy". In a catena of cases, the higher courts and the Apex Court have repeatedly ruled that an employee whose basic condition of service includes the liability of transfer cannot lay claim to posting or retention at a particular station as a matter of right and that the courts should not intervene in such transfers unless they are clearly shown to be arbitrary or malafide. This is clearly not the case here.
8. In the result, we find no merit or force in this OA which is accordingly dismissed.
9. There will be no order on costs.
(A.Mukhopadhaya) (Suresh Kumar Monga) Member (A) Member (J) /kdr/