Central Administrative Tribunal - Delhi
Shri Pankaj Kumar Pal vs Union Of India Through on 30 August, 2011
Central Administrative Tribunal
Principal Bench
OA No.3921/2010
New Delhi, this the 30th day of August, 2011
Honble Mr. Justice V. K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Shri Pankaj Kumar Pal, IAS,
S/o Dr. Lala Ram Pal,
Chairman
Bridge Construction Corporation,
Patna,
Bihar.
Applicant
(By Advocate : Shri Rakesh Tikku)
Versus
1. Union of India through
Secretary,
Ministry of Personnel, Public Grievances and Pension,
Department of Personnel and Training,
North Block, New Delhi.
2. State of Manipur,
Through : Chief Secretary,
Imphal,
Manipur,
3. The Chief Secretary,
Govt. of Tripura,
Agartala.
Respondents
(By Advocates : Shri Hilal Haider for respondent No.1
Shri Rajeev Kumar for respondents No.2&3)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
Shri Pankaj Kumar Pal, an IAS Officer of Manipur Tripura cadre of 2002 batch, the applicant herein, has come to this Tribunal seeking direction of the Tribunal to the respondents to quash /modify the impugned order dated 02.06.2010 (Annexure-A1) by which he has been allowed inter cadre deputation from Manipur-Tripura Cadre to Bihar cadre for a period of three years from the date of assumption of charge, and has also sought a direction to the respondents to sanction him inter cadre transfer on permanent basis either to the State of Bihar or any other State except the States in North-Eastern Region.
2. Brief facts of the case would reveal that applicant having joined the Indian Administrative Service (IAS) in the year 2002 was allotted Manipur-Tripura cadre, where he served in different capacities and his last posting being as Deputy Commissioner, Ukhrul District, Manipur. While working in the said post, on 13.02.2009, a Sub-Divisional Officer and two of his staff were abducted and were found brutally murdered. Their dead bodies were recovered on 17.02.2009. It is stated that the NSCN (IM) militants claimed the responsibility for such abduction and murder. At that time the situation in and around Imphal Valley was so tense that curfew was clamped for more than two weeks to avoid any clashes between the Nagas and Meitei Communities. Members of the deceased family also joined the campaign against the Government. The applicant was placed under suspension on 19.02.2009, as there was adverse public opinion generated against him. It is the case of the applicant that there has been apparent security threat to him as well as to his family members. His family comprises of wife, a daughter and a son. It is stated that threats and attacks were undertaken by one of the ethnic groups and one NGO demanding that the Government should hand over the applicant to them physically so that they could take revenge of the murder of three officials. A set of Press clipping are at Annxure-A2 colly. In these circumstances, the Government of Manipur provided him safe place for stay at the BSF Battallian headquarters at Churachandpur in Manipur where he stayed under heavy security cover till 19.03.2009. Due to the security threat perception on him, he was not permitted to move around and during his travel, he was provided with bullet proof vehicle with heavy BSF convey. He left Ukhrul on 18.09.2009 with the fear of danger to his and his familys life. He submitted a representation dated 24.07.2009 (Annexure A3) to respondent No.1 through 2nd and 3rd respondents seeking his inter cadre transfer to any State in the Country except Manipur-Tripura cadre or any other State in the North-Eastern Region. Further, Chief Minister of Manipur wrote to Union Minister of State, Ministry of Personnel, Public Grievances and Pensions vide his letter dated 07.08.2009 (Annexure-A4) informing the Government of India about the extreme hardship faced by the applicant and his family Members in view of the facts narrated above. It was further requested in the said letter to facilitate applicants inter cadre transfer to a State out side North-Eastern Region and his cadre conveyed its No Objection for such an Inter State Cadre Transfer. In the meantime, an Inquiry Committee which probed into the incident which occurred in February, 2009 gave clean chit to the applicant and his suspension was revoked. A letter dated 13.10.2009 (Annexure-A6) was sent to the Cabinet Secretary, Govt. of India from the Chief Secretary, Manipur requesting to facilitate inter cadre transfer of the applicant to a State outside North-Eastern Region. It is the case of the applicant that 1st respondent processed for inter state cadre transfer and requested three State Governments (Kerala, MP and Bihar) for permanent cadre transfer. Government of Bihar conveyed its no objection vide its letter dated 29.10.2009. However, on consideration of the said requests, the 1st respondent in the letter dated 04.01.2010 (Annexure A-6A) informed 2nd and 3rd respondent that it was decided to consider inter cadre deputation for a period of three years under Rule 6 (1) of the IAS cadre Rules, 1954 and requested the 3rd and 4th respondent to get the consent of the applicant. It was the case of the applicant that at that time he was staying in Delhi and finding no other option gave his consent on 12.01.2010 (Annexure-A7) for such Inter cadre transfer/deputation. Respondent No.2 informed about the no-objection vide its letter dated 19.01.2010 (Annexure-A8). In the meantime, the applicants stay outside the State was treated as compulsory wait and period of suspension was treated as duty vide order dated 24.05.2010. The State Government wrote a letter again to the 1st respondent requesting for his inter cadre transfer. However, the 1st respondent issued a notification dated 02.06.2010 conveying the approval of the Government of India for Inter Cadre deputation of the applicant from Manipur-Tripura cadre to Bihar cadre for a period of three years. In the background of the above sanction, the applicant finding no other option but joined the Bihar Government as Joint Secretary, Department of Rural Development. He informed the concerned respondents that such joining is without prejudice to his rights to claim the inter state cadre transfer. It is the applicants case that his case is fully covered by Rule 5(2) of the IAS (Cadre) rules and the change of Cadre of All India Service Officers Policy. But, the 1st respondent instead of considering for cadre transfer permanently decided his case for cadre deputation. In this background, the applicant has come to this Tribunal seeking redressal of his service grievance.
3. Highlighting the background of the threat on the life of the applicant and his family still continuing in the State of Manipur, Shri Rakesh Tikku, learned counsel for the applicant would contend that the applicants request to the first respondent was to consider his inter cadre transfer under Rule 5(2) of the Indian Administrative Service (cadre) Rules. The first respondent instead of allowing the cadre transfer has allowed deputation of the applicant which he would term as non-consideration of his case in an objective, fair and reasonable manner. He drew our attention to the letter written by the Chief Minister of Manipur to the Government of India wherein the circumstances of a threat perception on the officer was so palpable that it would be extremely difficult for the applicant to function not only in Manipur but also in the entire North Eastern Region as the under ground groups were operating in the State and also functional in the entire North East. It is further contended that there is difference between the inter cadre deputation and inter cadre transfer. The applicants case is for the inter cadre transfer and not for deputation. The inter cadre transfer is normally for the extreme hardship arising for external circumstances whereas the inter cadre deputation is basically on the ground of meeting personal difficulties. Therefore, he submits that as per the policy of the Govt. of India for inter cadre transfer the extreme hardship in the rarest of cases is admissible. In this context he drew our attention to the case of Shri Abdul Gani Mir, an IPS officer belonging to Jharkhand Cadre was transferred to J&K Cadre by the Government of India in relaxation of the existing guidelines in view of the special circumstances of J&K and the request of Chief Minister received by the Govt. of India and the same was indicated not to be treated as precedent while dealing with similar cases of inter cadre transfer. The counsel for applicant further referred to the rejoinder to submit that permanent inter cadre transfers were sanctioned in the case of (i) Shri R. Kamlahar, IFS of 2006 UP cadre transferred from UP to Kerala cadre on the ground of the request of the consent of the State, (ii) Shri Pankaj Darar, IPS transferred from State of J&K to Bihar on the grounds of personal hardship permanently, (iii) Shri Surender Yadav, IPS transferred from Assam-Meghalay to AGMUT and (iv) Shri P. Ulaganathan transferred from West Bengal Cadre to Nagaland Cadre on the ground of personal hardship. It is, therefore, contended that the applicant has been discriminated in a hostile manner by not granting him the inter cadre transfer on the other hand sending him on a deputation to Bihar only for a period of three years. It is submitted that in the recent past there are unfortunate instances of assassination of General Vaidya, Vandana Malik [IPS of 1989 Batch of MT (Cadre)], and Dasarath Prasad (IAS 1994 MT Cadre] by the militant groups. In this background, Shri Rakesh Tikku would submit that the OA should be allowed with appropriate directions to the respondents.
4. Shri Hilal Haider, learned counsel for the 1st respondent submits that the applicants case has been approved initially for inter cadre deputation on the grounds of extreme hardship i.e. threat perception and the period of deputation being three years, the situation of threat will be reassessed after three years and if the situation so warrants, 1st respondent may consider permanent transfer of the applicant to that State. However, he hastened to add that Manipur-Tripura Cadre had shortage of IAS Officers and Cadre transfers would be resorted to in the rarest of the cases. He clarified that on the basis of intelligence input received, the 1st respondent acted immediately and granted the applicant urgent relief by inter cadre deputation and presently little more than 2 years of his deputation remained during which period the case of the applicant would be considered again to decide in the light of the facts and circumstances that would be prevalent to grant him inter cadre transfer or not.
5. On behalf of 2nd and 3rd respondents, Shri Rajeev Kumar, learned counsel submits that the Manipur-Tripura Cadre authority has no objection for the cadre transfer of the applicant to Bihar or any other cadre outside North Eastern States as the threat perception on the applicant and his family still exists. In support of this contention, he referred to the latest report shown to us in the court during the hearing which corroborated his submissions. His further contention is that if the present deputation is converted/modified as cadre transfer, the no objection of the cadre will be conveyed.
6. It is appreciative that the 1st respondent acted in a responsive manner by granting him immediate relief by deputing him to Bihar Cadre for three years. However, the applicants claim was for inter state cadre transfer. The extant Rule and Policy guidelines in respect of IAS and All India Service Officers are extracted below for better appreciation of the case:-
I. Rule 5 (2) of the Indian Administrative Service (Cadre) Rules, 1954 reads as follows:
(2) The Central Government may, with the concurrence of the State Governments concerned transfer a cadre officer from one cadre to another cadre. II. Para 2 of the Change of Cadre of All India Service Officers. Policy 2004 which covers the present issue is extracted below:
2. In recent practice, this Rule has been invoked only in cases of marriage between the All India Service (s) officers. There have been cases where following marriage one officer has moved to the cadre of his or her spouse. There have also been cases where both spouses have moved to a third cadre. The policy in this matter has been reviewed in detail and a view taken, with the approval of Prime Minister as follows:
(i) Inter cadre transfer shall continue to be permitted for members of All India Service Officers on marriage to another member of an All India Service, where the officer or officers concerned have sought a change.
Inter cadre transfer shall also be permitted on grounds of extreme hardship in the rarest of cases.
(ii) Inter cadre transfer shall not be permitted to the home State of the Officer.
(iii) In cases of inter cadre transfer on grounds of marriage, the cadre of one of the officers accepts his or her spouse.
(iv) Only after ensuring that both States, for genuine reasons are not in position to accept the other spouse, will the officers be considered for transfer by the Government of India to a third cadre subject to the consent of the Cadres concerned for such transfer.
(v) Inter cadre transfer shall not be permitted to All India Service Officers on marriage to an officer serving in a Central Service/State Service/Public Sector/Undertaking/any other organization.
(vi) Extreme hardship for purposes of inter cadre transfer, should be defined to include (a) threat to the life of the officer or his/her immediate family and (b) severe health problems to the officer or his immediate due to the climate or environment of the State to which he is allotted.
(vii) In cases of request on grounds of threat or health, the Central Government shall have the genuineness of the request assessed by an independent Central agency or group of at least two independent experts.
(viii) If a request on grounds of threat or health is found to be genuine, the Central Government may initially send the officer on a three year deputation to a State of its choice. The situation may be re-assessed after the three years period. If the situation so warrant, the Central Government may permanently transfer the officer to that state.
The State Governments shall consider all the requests for inter cadre transfer of All India Service(s) officers in accordance with the above policy and send only those requests, which are covered under the above guidelines, for consideration of the Government of India. The requests which are not covered under the above guidelines are liable to be rejected at State Level itself.
7. In view of the above provisions, we have examined the case of the applicant. There is no doubt that the applicant has been the target of extremist Group. In the year, 2009 he not only remained under constant fear of the extremist attack but was protected fully. For months together neither he could work nor the State could get meaningful service of the applicant. Further, till he was sent on deputation to Bihar, he stayed at Delhi for long period. The Government of Manipur has assessed the situation of threat perception and recommended applicants cadre transfer. As much the applicant wants to protect himself and his family from the wrath of the militant groups, so much also the State Government desire to protect life of senior officer and his family. It is not a case of lame excuse to get a cadre transfer for personal or family reasons. The applicant worked there from the year 2002 for a period of 7 years and his request for cadre transfer had come due to the peculiar militant groups threat for his life. This, in our considered opinion, is extreme hardship for which his case needs to be re-examined under Rule 5 (2) of the above cited Rules and Policy framed for the All India Service Officers cadre changes. Deputation outside the Manipur-Tripura Cadre for a short period is no solution. Permanent arrangement for him will not only provide safety for him but also the comfort to the State Government/Cadre where he has to work. Cases of this nature not only needs to be handled in a responsive manner but also in a sensitive and sympathetic way.
8. Hostile discrimination has been contended as a ground by the applicant. Respondent No.1 has not rebutted the inter State Cadre transfers cited in the rejoinder even during the hearing. If the request of a Chief Minister for inter state cadre transfer could be allowed by relaxing the rules though putting a rider that the case should not be cited as a precedent, why the applicant cannot be considered for inter state cadre transfer which is within the rules and needs no relaxation for the same. Undoubtedly, the legitimate and legally admissible cadre transfer is denied when there is enough evidence to show that there exist extreme hardship for the applicant. In the absence of clear rebuttal on the allegation of hostile discrimination from the 1st respondent, we get the feeling that Pick and Choose Policy gives rise to the suspicion of arbitrariness. Be that as it may, we are of the firm opinion that the applicants case deserves reconsideration by the 1st respondent.
9. Further, in the maters of militants and extremist groups operating in a State or a region and targeting a small section of Government Officers for whatever be the reason, such officers continue to remain in constant fear as targets. In the present case, threat perception is based on the murder of some officials by one group for which the other ethnic extremist groups held or suspected to hold the applicant as responsible. In matters like this, time of three years may not obliterate and erase the memory of the incident from the minds of such aggrieved extremists. This analysis has been supported by the report shown to us in the hearing by the counsel for the 2nd and 3rd respondents.
10. Sufficient material is available on records of the case which lends credence to the plea of extreme hardship and threat perception for the applicant, which may be perennial. The respondents, it appears, have not taken into consideration the facts which may merit inter state transfer of the applicant. That being so, we direct the 1st respondent to revisit the plea of the applicant for inter state transfer in the light of our observations as made above. Let the exercise as ordained above be done as expeditiously as possible and definitely within a period of three months from today. Respondents may consider inter state cadre transfer from Tripura to Bihar or any other state but outside the North East States. Insofar as consent of the States is concerned, in the present case the parent State of the applicant and the Bihar State have already given their consent and if the applicant may be accommodated in the State of Bihar, no further consultation may be required. The same would not be also required from the parent State of the applicant. If the order that may now be passed, may not redress the grievance of the applicant, it goes without saying that it shall always be open for him to reagitate the matter by filing a fresh OA.
11. For the reasons stated above, the OA is allowed in terms of our observations and directions within. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/