Central Administrative Tribunal - Mumbai
Bijendra Sharma vs Military Engineer Services (Mes) on 4 June, 2024
f OA No.465/2024
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI BENCH
af
ORIGINAL APPLICATION No.465 OF 2024
Dated this Tuesday, the oa" day of June, 2024
CORAM: MS. HARVINDER KAUR OBEROI, MEMBER (JUDICIAL)
SHRI RAJINDER KASHYAP, MEMBER (ADMINISTRATIVE)
Bijendra Sharma, Aged 35 years,
Working as Executive Engineer Military Engineer Services
Garrison Erigineer (NW), Vasco-Da-Gama Goa 403 802
Residing at 606 NOFRA 1 Dabolim, Vasco Gao 403 801.
. - Applicant
{By Advocate Ms. Priyarika Mefinidiratta)
VERSUS
1. The Union of IndiaThough DefenceSecretary,
Ministry of Defence, 101-A, South Block, New Delhi - 11.
2: The Director General ( Pers). Military Engineering Services,
Kashmir House, Rajaji Marg, New Delhi 110 011.
3. the Engineer-in-Chief's Branch, Director General (Pers),
Military Engineer Service CWE, Navy Vasca Da Gama Goa 403 802.
4, The CWE Navy Vasco Having address at Military Engineer Service
CWE Navy Vasco Da Gama Goa 403 802.
5. Sh. Jitendra Kumar Meena
(to be served through Respondent No.4). - Respondents
(By AdvocatesS/Shri R.R.Shetty for official respondents and Vicky A. Nagrani
for private respondent)
Reserved on 10.05.2024 |
Pronounced on 04.06.2024 |
|
Page Loaf 31
2 OA No.465/2024
ORDER
Per: Rajinder Kashyap, Member:(A) This OA is filed under Section 19 of the Administrative Tribunals Act, 1985. The following reliefs is. sought by the applicant in the present OA:
"8(a) This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the Same, quash and set aside the impugned orders dated 02.04.2024 (A-1) & 14.03.2024 (A.2) with all consequential benefits.
8(b) This Hon'ble Tribunal may further be pleased to direct the Respondents to allow the Applicant to resume his duties as Garrison Engineer at Vasco and set aside the transfer order dated 14.03.2024 in the interest of justice and fair play.
8(c) Any other arid further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed.
8(d} Cost of the Application be Provided for."
2. Brief facts of the case are that the applicant was appointed through the Union Public Service Commission (UPSC) as Assistant Engineer in the examination conducted for Indian Engineering Services (IES) in the year 2014 at Lucknow under the Ministry of Defence.
Page 2 of 31 3 OA No.465/20242(a). Applicant further states that the President of india issued the natification for general election or 16.03.2024 a ncbith this notification, the transfer, posting and relieving of the empioyees and officers who were. working under the State Government or Central Government or either the Union Public Service Commission or Public Service Commission of any State Election Commission, their transfer posting, promotion or reliving is not permissible without prior permission of the State Election Commission or Central Election Commission of India. 2(b).. The applicant who was working as Assistant Garrison Engineer at Kanpur having MES No.439215 received promotion-cum-posting order on 28.12.2020 from AEE to EEs by which he was transferred from GE Kanpur to GE (NW) Vasco as a GE. Movement order was issued on 01.06.2021. He stated that he received transfer and posting order via fax and on 01.07.2021, the PTO (Part Two Order} was issued/released in pursuant to the order dated 28.12.2020.
2(c}), He further stated that due to COVID-19, lockdown started and he physically reported and joined on 05.07.2021 and subsequently assumed the charge/commenced tenure only on 09.07.2021. However, Page 3 of 31 4 OA No.465/2024 it is crystal clear from the strength and transfer plan report of February, 2024 that the applicant's appointment on the piésent position is with effect from 09.07.2021. He states that while performing his duty honestly and sincerely, it was brought to his notice that one contractor of the Central Government Shri Umesh Salgaonkar who seemed as proprietor of the company/Firm Named M/s Super Construction has been involved in violation of cyber security in MES establishment misbehaving with the security check and snatching the documents from government record. Hence, the Office of Respondent No.4 sent a letter dated 05.08.2073 regarding the same to Applicant. Subsequently some correspondence between the said contractor and the Applicant in Capacity of GE of Respondent No.4 has taken place, That the Applicant wrote a letter to the proprietor of the M/s Super Construction MHN 284, Vasco, Dated 05.08.2023 about the violation of cyber security in MES Establishment.
2(d}. The Applicant states that, one Mr. Sandeep Kumar Sutar who is working with the office of Respondent No.4 as FGM SK wrote letter to local Police Inspector to register an offence against the said Umesh Page 4 of 31 5 CA No.465/2024 Salgaonker for mishandling and tampering of Government of India Office documents and files which was serious Offence and action was required to be taken, He states that he wrote an intimation Jetter to the cwe Navy Vasce about the incidence of Mr. Umesh Salgaonkar who has misbehaved with Sandeep Kumar Sutar and snatched some papers from Governmentrecord by tampering the same, the copy was sent to AGE B/R-ll Vasco on 12.09.2023.The Applicant states that further letter was written on 18.07.2023 to the M/S Super Construction about the special repair dated 18.07.2023.
2fe). The Applicant states that he sent a letter on 12.09.2023 about M/s Bev Copa Electric Hardware and requested to confirm the authenticity of the vouchers either by making endorsement in this letter with signature and office seal or to. send a separate authenticity letter duly signed 'and affixing office seal. He again states that letter was written by Jitesh K about the verification of the purchase vouchers, the AA-M sent a letter that while he has undergone verification of the 'genuineness of paid vouchers and a reply was given by him that "we were doing our official duty as directed by the department" and he Page 5of 32 6 OA No.465/2024 threatened that they are going to lodge police compliant against the undersigned and other member wha participated in the verification process. He states that the authorities about the verification of the purchase vouchers sénit @ letter addressing that the concerned firm could not be verified due to non-cooperation and non-disclosure of dacument by the firm, therefore, further enquiry is proposed in the matter by the relevant competent authority as deemed fit.
2{f). The Applicant states that in October 2023, a letter was sent to M/s Super Construction by Applicant about denial of extra payment for doubling bill to the concerned authorities. He states that the applicant has been constantly working hard for the department, handled various cases before this Tribunal and got success in the same against contractors such as M/s. Shri Sai Labour Cooperative Society Ltd. The CWE Col. Bhupender Singh who is a higher official of the Applicant started quarreling and threatening him for getting success in the court matter, it was shocking and surprising when the Applicant got threats to get transferred before the cutoff date and scheduled transfer from his own 'senior officials after getting success in cases against the Page 6 of 31 7 OA No.465/27024 department. The events of such harassment and threats took place on several occasians and later on when the complaint against the said Umesh Salgaonker was informed, Col. Bhupender Singh CWE [NAVY} Vasco again threatened the applicant that he will transfer him before due date if he continues to expose his linked contractors.
2) The applicant further states that when he received threats from Senior Official Col. Bhupender Singh, he narrated all the incidences of 'threats, links with the contractors, incidences of corruption by Col. Bhupender Singh & others to Shri. P. C. Meena, IDSE CE HQ, CE(NAVY) Mumbai vide his Jetter dated 13.09.2023 for taking action against harassment by Col. Bhuperder Singh against the applicant. He states that subsequently incident réports of Joint Inspection of Site under GE(NW) Vasco due to threat and unethical behavior of Shri Umesh Salgdonkar was prepared on 12.09.2023 and intimated through letter dated 16.09.2023 by the Applicant. He states that a report was submitted by the proper authorities after completing inspection and it was recommended by the team to take up the matter and should Page 7 of 31 8 OA No.465/2024 proceeded under Sections 188, 353, 504, 506 and 341 of IPC to take sae action by aporopriate authority.
2(h}. The applicant states that he has submitted various letters to authorities about the corrupt practices and involvement of higher authorities but these authorities in place of proper enquiry transferred the applicant vide impugned order dated 14.03.2024. He states that he has taken stand against senior officer for women, person from SC and ST community which has resulted into harassment, humiliation and at the last transfer before due cutoff date. The Respondent No.2 has passed impugned order dated 14.03.2024 bearing No.MES/03/2024/EIB which is though promotion-cum-posting order under Normal Turnover vide which 'the applicant has to leave the post as Soon as Respondent No.5 reports the office of Respondent No.4, 2{i), The applicant states that on being aggrieved and dissatisfied by the said impugned order dated 14.03.2024 the Applicant preferred Fepresentation dated 14.03.2024, a copy whereof is produced and marked herewith at Annexure A-7 to Respondent No. 1 stating grievances against the revengeful posting by his Senior Officer Col.
Page 8 of 31 9 OA No.465/2024Bhupender Singh CWE (NAVY) Vasco, and further requested to re- consider the promoticn and posting order dated 103.2024. He further states that when no reply was received on his Representation and on being aggrieved by impugned order dated 14.03.2024 passed by Respondent No.2, he approached this Tribunal vide Original Application No.300/2024 and after hearing, the Tribunal passed order dated 19.03.2024 (Arinexuré A-8}, directing the Respondent No.2 to take final decision on the representation of Applicant within four weeks from the date of receipt of order and accordingly the said QA is disposed of by 'granting status Quo order in the said matter.
2{j}. The Applicant states that even otherwise also the impugned order is violative of MES. Cadre Management Policy Approved by MOD/CVC Guidelines /DOPT Guidelines dated 09.10.2015 {Annexure A-9}. The Applicant relies on clause 24(c} and Clause 30 (a} to (f) of the said Transparency provisions which are clearly violated by Respondents before issuing the impugned orders at A-1 and A-2. He submits that it is pertinent to mention here that Respondent No.S is relative of Raspondent No.2. Respondent No. 2 was earlier holding the office of rage 9of31 10 OA No.465/2024 Respondent No.4 and Respondent No.5 herein is son in law of his close associate. That Is the reason why Respondents Nees took the Movement order on 20.03.2024(A/N). He arrived physically in CWE(N} Vasco Guest House subsequently on 28.03.2024. Despite his arrival on 28.03.2024, he reported to office of Garrison Engineer only on 03.04.2024 and gave icifiing report unilaterally, without the charge being handed over to him.
2(k). The Applicant states that this entire exercise was carried out with pre-determined mindset so as to grant undue favours to Respondents No.5 who has been brought in to Vasco-da-Gama to shield the illegal activities of Respondents which were exposed by the Applicant. Otherwise, it is beyond the comprehension of a prudent man as to why the Official Respondents demonstrated scant respect to the Orders of Hon'ble Tribunal dated 19.03.2024 vide which this Hon'ble Tribunal was pleased to grant status quo with regard to the posting of Applicant at Vasco and with further directions to Respondents to consider the Representation dated 14.03.2024 of the Applicant and pass a reasoned and speaking order. The Respondents having shown no regard to the orders of this Hon'ble Tribunal, issued Movement order of Respondent Page 10 of 31 41 OA No.465/2024 No.5 and. allowed him to take unilateral charge when the representation ; + of the applicant was still pending consideration With Respondents. The ioining report was returned un-actioned by office of GE(NW} Vasco on 93.04.2024, with copy to Headquarter CWE (N} VASCO on 04.04.2024, a copy whereof is produced and marked herewith at Annexure A-10, 2{). The Applicant states that as an offshoot of returning the unilateral taking over Charge Report of Respondent No.5, Respondent No. 2 issued an order on 04.04.2024 with back date of 02.04.2024 and rejected the plea of Applicant without considering the facts and circumstances of the casé arid passed the impugned order dated 02.04.2024 whereby the Representation dated 14.03.2024 has been rejected with a predetermined and biased mindset. The Applicant is not in receipt of Physical copy of the order which is received by him only on watsapp on 04.04.2024, despite directions of this Hon'ble Tribunal to communicate the same to Applicant within one week. This is not sustainable in the eyes of law.
2(r). The applicant further states that he was suffering from critical cervical medical issue Since 29.09.2022, and was admitted to Central rage LI of 31 12 OA No.465/2024 Railway Hospital, Byculla, Mumbai based on reference of medical advice given on 05.04.2024. He further submits that 004.2024 was declared as Adm Day (Holiday) based on office order issued on 01.04.2024 by Head of Department. Before proceeding on emergency medical leave, Applicant intimated his controlling officer ie. CWE{(N} Vasco telephonically on 06™and 07" April, 2024, Subsequently did officiating arrangement. as per RMES (Regulations of Military Engineer Services) and delegation of power as per DWP (Defense warks Procedure) and same was forwarded to HQ CWE(N) Vasco by AAO of GE (NW) Vasco office vide letter 08.04.2024 which was already been refiected in illegal order issued by CWE(N) Vasco on 09.04.2024 (by hand) (Annexure A-11).
2(n). The Applicant states that he forwarded few medical documents along with. Part - { order to next higher officer of GE(NW) on 10.04.2024 and also exercised his inherent power of Garrison Engineer in accordance with Gazette Notification of GO| (Govt of India} that supersedes all orders to the extent. The emergency jeave of Applicant was forwarded to Respondent No.4 on 08.04.2024 (Annexure A-12). He states that based on the orders issued by CWE(N) Vasco on 09.04.2024, Page 12 of 31 13 OA No.465/2024 respondent No.5 'assumed the charge on 12.04.2024 (F/N} without handing/taking over in an illegal manner afte?" breaking open the Chambers of Garrison Engineer after 6pm on 12.04.2024 ie. after working hours and in the absence of Office Superintendent and also robbed personal belongings. including Confidential files of corruption racket of CWE and all GE's as whistle blower (Annexure A-13}.
2(0}. The Applicant states that officiating arrangements ordered by him as per guidelines dated 27.03.2019 (Afinexure A-14) issued in this regard, as Garrison Engineer are compromised by -- illegal actions/rabbery/impugned order dated 02.04.2024/ manipulating official records/ giving financial benefits to corrupt officials and Contractors and misusing inherent power vested still with the Applicant. The Charge of pawer vested as per Gazette Notification is still in force. It is pertinent to mention here that delegation of power for officiating arrangement by applicant has nét been cancelled/ challenged/ suspended or otherwise declared as illegal in order dated 09.04.2024{Annexure A-12). Apropos, it is deemed to be sustained and valid and still in force.
Page 13 of 34 14 OA No.465/20242{p). The Applicant states that the impugned speaking order passed by Respondent No.2 herein. is nothing but misuse 4nd abuse of official powers in order to plant his own relative at Vasco so as to shield the illegal activities prevalent there. This Hon'ble Tribunal had directed the Respondents to decide the Representation of the Applicant and till then maintain Status quo. The representation of the Applicant has been rejected by a cryptic and non-speaking order. The Respondents have contended that they are yet to receive the representation of the Applicant and in the same breath they have rejected it. The Respondents have granted undue benefits to Respondent No.5 whose movement has been issued even before the representation of the Applicant has been decided as per the orders of status quo to be maintained by this Hon'ble Tribunal and he has been brought to Goa fram New Delhi and allowed to take unilateral charge. The Respondents have thrawn caution to the wind and have demonstrated scant respect to: the Orders of this Hon'ble Tribunal. Hence, aggrieved by the inaction on the part of the respondents, the applicant has approached this Tribunal by filing the present Original Application.
Page 14 of 31 45 OA No.465/20243. Reply has been filed by the respondents on 09.05.2024 {t js submitted by the respondents that the part II ord nas been issued as Taken on Strength (TOS) as oh 28.06.2021 as per the physical reporting to the unit & station (Annexure R-1). The applicant has maliciously modified the part Il Order showing TOS 05.07.2021 (Annexure R-2) at later stage after his posting was issued on 15.03.2024 as the posting was issued-on 14.03.2024. The original part-ll Order for taken on strength is 28.06.2021 and officer has assumed the Promotion from 28.06.2021 along with placement in the Higher scale and the subsequent financial benefits, The applicant has modified the record at the later stage with malafide intention with abuse of power being head of the unit. For the above act.of the applicant, the competent authority has directed to take disciplinary action in the matter as per the fetter No B/17004/EE/2327/E1B(P&T-I) dated 04 April 2024 (Annexure R-3}. 3(a). The respondents submit the following:
(a) the respondent has circulated the turn over list in advance vide letter No B/20000/Policy/E1B dt 05 Jan 2024 {Annexure R-4) with intention to turn over of the officers, The officers those doing the GE tenure, the. cut off TOS date was 30.06.2021 for planning of the posting, Accordingly, all the | | Page 15 of 31 16 OA No.465/2024 officers have been turned over vide order No MES/03/2024/E18 dated 14.03.2024 (Annexure R-5), this also include the posting of similarly placed offigérs. The applicant Was tenanting the executive and sensitive tenure which is maximum O38 years for such appointment as per the posting policy of the department and CVC guidelines. it also submitted that posting to a staff/executive appointment shall not be the matter of the right but based on the organizational requirement as per the para 14(a) of the posting policy (Annexure R-6).
(b} The representation preferred by the applicant has been disposed off by the competent authority ie. respondent No 2 'as per the power vested in him as Per posting policy Appendix-L Para 2. The representation to MOD/Defence secretary as mentioned in para 24(c} of posting policy is applicable for the rank of officer of SE & above. Second representation to the next higher authority can be forwarded only after the implementation of the move as pér para 24 (e) of the posting policy, (c} Para 30 of the posting policy are re-produced herewith as under: -
"TRANSPARENCY PROVISION - As part of the administrative effort to introduce more transparency in the management system, the following new measures will be Introduced as part of the policy: -
(a} Two to three months prior to undertaking of normal turnover posting exercise, cut off dates for turn over shall be uploaded on MES websites, to facilitate officers to prepare for the move and submit any exceptional personal issues in advance rather than reacting after issue of posting order. Mere projection of an exceptional personal issue will not necessarily.Page 16 of 31
(b) 17 OA No.465/2024 guarantee acceptance, but will be taken as one input, besides others. 4 iy Gificers are allowed to write DO letters to DG (pers)/DDG (Pers}(M), prior to their anticipated posting indicating their preferences for posting with reas6n thereof. Pers directorate shal endeavour to consider such request, except in cases of tenure -- station postings or executive/sensitive assignments. These DOs shali not be considered representation from individual. A copy of these DO letters will need to be endorsed to the chain of command i.e. CE Zone and CE Comd.
(c} No personal /informal meetings with the staff dealing with posting in the Directorate General Personnel, E-in- C's Branch, are permitted and any such attempt will be viewed seriously. Any such meeting can only be sought through a formal written request for an interview with the DG (Pers)/DDG Pers (M}, the record of (@) The respondent has com which will be maintained in the file of the officer, duly signed by the interviewing official.
All representations, through Proper channel,' shall be redressed by accepting Or rejecting it at the appropriate level in the E-in-C's Branch, and decision conveyed to the individual officer, with reason.
All posting orders shall be uploaded on MES Web site within three to four days of issue".
\ Page 17 of 31 : plied all the provision of the _ above paragraphs of the policy. However, the applicant has not preferred any written request prior to issue of the posting order as desired by the policy despite respondent has made it 18 OA No.465/2024 clear in advance by circulating the TOS cut off dates in advance as per Annexure R-4. . a .
(el) The respondent has complied the. order of Hon'ble Tribunal in OA No 3200/2024 by serving the reasoned speaking order to the applicant vide fetter No.B/17004/EE/2327/E1B (P&T-If) dated 02,04.2024 and was. delivered to the respondent by mail on 04,04.2024 at his personal Government mail id [email protected] physical copy was served in the erstwhile office of the applicant ie. GE (NW) Vasco on 05.04.2024. The respondent No.05 has assumed the charge of the GE (NW) Vasco vide GE (NW) Vasco Part -1 Order No 28 dated 12.04.2024(Annexure R-7) after the applicant has denied the handing over of the charge and gone on indefinite leave without approval of the competent authority. The status-quo was maintained as per order of Hon'ble Tribunal til! speaking order was served to the applicant. Once the respondent No.05 has already arrived in the Station, the charge of GE was required to be handed over to the respondent No.05 by the applicant. The declaration of the unauthorized Adm day without. approval of the competent Auth on 05.04.2024 and subsequent leave taken by the applicant was to divert the issue and deliberate attempt to not to give charge of GE to the respondent No.5. Therefore, after denial of the charge by the applicant to respondent No.5, the respondent No.5 has assumed the appointment of GE as per posting order.
In view of the aforesaid explanation the applicant is not entitled for any relief and OA has to be dismissed accordingly.
3(b). Reply has been filed by the respondent No.5 on 09.05.2024 wherein learned counsel fer the respondent No.5 denies the contention and submissions of the applicant and submits that the present Original Page 18 of 31 19 OA No.465/2024 Application is not maintainable for the reason that the applicant has alleged personal mala fide against Respondent hos.2 & 4. However, unless and until the said Respondents are impleaded in a personal capacity the personal mala fide cannot be agitated and On this sole ground, the GA deserves to be dismissect. Furthermore, the Applicant is relying on the Cadre Management Guidelines of MES / Civilian Officers, more particularly Para 24 and 30 of the said guidelines dated @9.10.2015. However, an incomplete copy is enclosed, therefore unless and until the entire capy is enclosed matter cannot be heard on merits.
3(c). It is submitted that theapplicant has not approached this Tribunal with clean hands and Had in fact maliciously modified the Part-ll order showirig TOS 05.07.2021 which is done at the later stage i.e. on 15.03.2024, which is post order dated 14.03.2024. This Clearly shows that the applicant has not only attempted to Manipulate the record but he has actually manipulated the same and had produced it before the Court of Law and on this sole ground the Applicant had approached with unclean hands, the Original Application is not only dismissed but the Same is. required to be dismissed with exemplary costs. He also submits Page 19 of 31 20 OA No.465/2024 that the Ministry of Defence is not bound by any model code of conduct and, therefore. the contention of the Applicant dese rves to be rejected.
3(d). Further, the learned counsel for the respondent No.5 submits that the applicant was promoted to the post of Executive Engineer vide order dated 28.12.2020 and in pursuance of the said Promotion Order, he was posted at GE (NW), Vasco. Since there was an outbreak of COVID-19, the movement was restricted, however once the restrictions were relaxed, the movements were carried out and in the present case, the Applicant had undisputedty joined the post at Vasco on 28.06.2021 as per his own PTO- Part-l enclosed at Page No. 22. On his arrival w.e.f. 28.06.2021 afternoon, he is drawing the salary of the Promotional post, meaning thereby he has assumed the cha rge w.e.f, 28.06.2021.
3le). The learned counsel for the respondent No.5 again submits that as per his awn document at Page 34, it is categorically mentioned that for Commission /seniority / initial appointment, the date is specified as 28.06.2021. Thus, it is crystal clear that the applicant is required to be considered or holding the said Post w.e.f. 28.06.2021. The Applicant is aise drawing the salary. of Executive Engineer w.e.f. 28.06.2021and the Page 20 of 31 21 OA No.465/2024 same can be verified by the Applicant himself. Once he is drawing the salary w.e.f. 28.06.2021 then his tenure is requited to be considered wef, 28.06.2024. There can be no doubt with regard to that. He submits * that the personal allegations are totally vague and not Supported with any documentary evidence. Thus, none of the conteritions are required to be Considered unless and until they are supported with documentary evidence to that effect.
3(f). Learned counsel for the respondent No.S submits that the respondents vide order dated 05.01.2024 (Annexure PR-2} on the basis of Para 12 (e) of the Policy / Guidelines referred to by the Applicant also had issued Turnover List in respect of MES Civilian Officers due for pasting in April 2024 and in that as per the said guidelines, the duration of tenure of each cadre for each rank has been Specified and the cut-off date for April, 2024 for various rank is also specified. So far as the present case is concerned, the post in question is GE First and Second tenure Le. Column Cand the cut-off date is 30.06.2021. In short, GE appointed before 30.06.2021 is due for posting / transfer in April 2024.
Since the Applicant is appointed w.e.f. 28.06:2021, he is within the cut-
Page 21 of 31 22 OA No.465/2024off date and, theréfore, the applicant is transferred vide order dated 14.03.2024. The said transfer order is not of restricted to the Applicant but the same is promotion cum posting (AEE to EE) and in that some of the employees are transferred on completion of tenure and some of them are posted on the basis of their promotion. So far as the Résbondent No. 5 is cancerned, he is promoted from the post of AEE to EE and accordingly, he is posted to GE (NW) Vasco from CE (AF) (WAC), Palam. Respondent No.5 case is promotion cum posting and whereas the Applicant's case is transfer on completion of tenure considering the cut-off date as 30.06.2071.
3{g). It is submitted by the respondent No.Sthat on 14.03.2024 itself the Applicant preferred representation and had approached the Tribunal by filing OA No.300/2024, As per the rules, the representation is. rei ifed to be prepe red to the Competent Authority through proper channel, however, the Applicant had preferred directly to the Secreta ry, which is not permissible as per the rules. The Competent Authority is Respondent Nos.2 and 3 that too through Proper channel. Therefore, the allegations made by the applicant are in personal capacity: and | Page 22 of 31 23 OA No.465/2024 without impleading the Respondents in the personal capacity, the same cannot be considered by this Hon'ble Tribuna! arf on this sole ground Original Application deserves to be rejected. In fact, the averment that the Respendent No. 5 is son-in-law of Respondent No.2 is factually incerrect and to support the said connection, the Respondent No.5 can produce his Matriage certificate if so required by this Hon'ble Tribunal at the time of hearing.
3(h). Further, respondent No.3 submits that the proper procedure of Assumption of Charge ts carried out and the Board proceedings to that effect are also enclosed for the ready reference. The Applicant had assumed the charge as per the direction of Higher Head quarter. Thus, the contention of the Applicant is totally vague and requires to be rejected. It is further submitted that the Respandents in pursuance of the order passed by the Tribunal had Passed the Speaking Order dated 02.04.2024 and still the Applicant had stated that the same is a cryptic order, which is totally incorrect.
3(ij). Respondent No.5 submits that after the order of Promotion-cum- Posting was issued by the Respondents on 14.03.2024, the Applicant | Page 23 of 31 34 OA No.465/2024 had manipulated/modified his PTO Part-ll Order on 15.03.2024 at 12.00 noon and the same is evidently clear as he has boned on 15.03.2024. This itself shows that the Applicant had created the document to show that he has assumed the charge on 05.07.2021 ie. after cut-off date. Creating the document after the order of Promotion/Posting is issued itself proves that the applicant has fabricated the official documents and on this sole ground, the Original Application deserves to be dismissed with exemplary costs.
3(j). Resirandent No.5 further states that no case is made out by the Applicant for grant of main relief or interim relief per contra the Applicant has approached this Tribunal with. unclean hands by manipulating/ modifying the official documents and on this sole ground the Original Application deserves to be dismissed not only on merits and also on the ground of approaching the Tribunal with unclean hands by fabricating the decuments. In Para 5 (0), the Applicant had pleaded the joining report of Respondent No.5 be returned Un-actioned, meaning thereby Respondent No.5 be demoted to the post of AEE. This is not permissible at all as per the Rules. Respondent No.5 had, in fact, joined \.
Page 24 of 34 25 OA No.465/2024and the same is acknowledged. by the cancerned authorities / competent authority. Copy of joising report is"annexed hereto and marked as Annexure PR-6.Therefore, he prays that the OA be dismissed by imposing the exemplary costs on the Applicant.
4.. Heard the learned counsel for the applicant and the learned counsels for the official and the private respondents at length and perused the pleadings and documents available on record and after hearing 'the arguments of both the sides, matter was reserved.
5. It is stated by the applicant that COVID-19, lockdown started and he physically reported and joined on 05.07.2021 and subsequently assumed the charge/commenced tenure only on 09.07.2021. However, in the reply filed by the respondents on 09.05.2024, it was submitted that the part Tl order has been issued as Taken on Strength (TOS} as on 28.06.2021 as per the physical reporting to the Unit and Station. The applicant has maliciously modified the part If Order showing ToS 05.07.2021 at later stage after his posting was issued on 15.03.2024 as the posting was issued on 14.03.2024. The original Part-l] Order for taken on strength is 28.06.2021 and officer has assumed the promotion Page 25 of 31 6 OA No.465/2024 from 28:06.2021 along with placement in the higher scale and the subsequent financial benefits. it is alleged that the applicant has Modified the record at the later stage with mala fide intention with abuse. of power being head of the unit. For the above act of the applicant, the competent authority has directed to take disciplinary action in the matter.
6. It would be relevant to quote pata 8 to 12{a} dealing with periodicity of posting and tenure station posting under the Cadre Management of MES Civilian Officers: Guidelines dated 9"
Octobéer,2015: ~ "F.No.6(12)/2015/D(Works {I} Government of India Ministry of Defence Sena Bhawan, New Delhi Dated 9" October 2015 Office Memorandum Sub: Revised policies with regard to MES Civilian Officers -- Reg.
The undersigned is directed to refer to E-in-C branch letter No. B/20000/Policy/E18-dated 1° May 2015 forwarding Guidelines for draft policy ort Cadre Management of MES Civilian Officers. The policy on Cadre Management has been comprehensively examined in the Ministry of Defence. The following revised policies in respect of MES Civilian Officers duly approved by the Ministry are forwarded herewith for promulgation until further orders.
| | Page 26 of 31
2...
To, 37 OA No.465/2024 I Cadre Management of MES Civilian Officers Guidelines. fl. Policy an processing cases of Dégutation/Permanent absorption/study leave/sponsored course of officers of the rank of EE and above.
These policies may. also be woloaded.in MES website.
Encl: As above _ Sd/-
(Kamal Kishore) DS (Works)
1. DG Pers/E-in-C Branch."
"2 The purpose of career planning and prospects is to pravide each officer timely promotion, opportunities for professional 'develapment, balanced exposure in staff and executive appointments and adequate training epportunities in order to draw maximum job satisfaction. These objectives can best be achieved with the willing cooperation of the individuals themselves without compromising the functional needs of the organization, which remain paramount at all times. Essential features of career planning are developmental training through organized and self-study, systematic selection and placement, a sensitive personnel appraisal system, efficient ediministration | of policies: and presenting opportunities to auidelines to , achieve the element of systematic placement and thereby achieving organizational objective of having motivated personnel by creating a healthy and congenial environment of work. It is also expected from the officers that they shall act in @ responsible manner in the interest of the department. \ 4 \ Page 27 of 31 28 OA No.465/2024
9. Career prospects are directly related to the sanctioned establishment in the respective cadres, selection criteria fixed under various policy guidelines, individual officer's own merit and disciplinary background, if any. Promotional orogression is linked to the availability of vacancies and the recruitment rules of the respective cadre as per DOP&T policies. It may, however, undergo change due to subsequent cadre reviews, fluctuation in wastage: vacancies, deputation, courses, ex- cadre vacancies etc. _ 10. TYPES OF POSTINGS/ TRANSFERS (PERMANENT). There are following situations when posting transfer exercise js undertaken: -
(a) induction level posting/ placement {b) Pasting an prometion
(c) Turn-over from Staff to Executive and vice-versa and Staff to Staff
(d) Tenure station turn over.
(c) Compassionate posting {f} Last leg Posting (g} Pasting on long Course and Study Leave fh} Posting to:other Organizations on Deputation or CSS.
(i) Administrative Posting. (Administrative postings are those, which are ordered due to changes in establishment, on promotion, on grounds of unsatisfactory performance and other administrative exigencies. Natwithstanding the guide lines enunciated in this letter, officers can be posted out on administrative grounds without completing their normal tenures).
However, the administrative postings shall be approved by the appropriate Board of Officers (BOO), as per para 31, ahd in case of SEs and above, the postings shail be done with the approval af Mop. -
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7. 23 OA No.465/2024 72, PERIODICITY OF POSTINGS -- Physical turnover wiii be undertaken twice a year during Apr ahd Oct to match with end of/mid of academic sessions. Accoréingly, posting orders will be issued 45 days in advance. However, bulk of the posting shall be done during Apr. These turn avers will also include cases of compassionate, tenure stations turnover, last leg and posting due to changes in establishment etc. However, essential postings in the interest of the organisation can bé ordered at. gay time of the year. Generally, foflowing time period shall be allowed in each station:
(a) Tenure Station Posting. Three Yrs for service less than ten yrs and two yrs for service aver ten yrs. The service yard stick will be seen at the time of issue of posting.
However, a request of the individual or on account of non-
availability of vacancy in any of the three choice stations for repatriation, extension ef tenure beyond this normal period could be considered.
As could be seen from the above Guidelines, no where it is mentioned that. the periodicity of tenure will be counted from the date on which an officer is Taken ori Strength (ToS), The fact of signing Charge Report for taking over Charge vis-a-vis action on Taken on Strength (ToS) were deliberated upon while arguing the matter orally by the learned counsels for the applicant and respondents. In so far as crucial date to work out tenure is. concerned, the leaned Counsels for the. respondents while placing oral argument stated that for certain cases date on which Chatge Report has been signed as crucial date for \ Page 29 of 31 30 OA No.465/2024 calculating tenure, while in the case of applicant, they struck to the stand that the crucial date for him is the date ontWhich he is Taken on Strength. (ToS). It could be said that there is no uniform parameter adopted by the respondents to calculate and work out tenure for the individual employees. The applicant has stated that he has taken Charge on 05.07 .2021 ad therefore; his tenure started from that date. Respondents did ot produce a copy of Charge Report of the Applicant $6 as to bring clarity on the date of his joining. On this point, we tend to agree with the argument and pleadings of the applicant.
8. As mentioned in above para, the transfer Guidelines mentioned supra do not state that the date of Taken on Strength (ToS) will be the:
crucial date from which tenure. of the officers will be counted, therefore, stating that the applicant has been taken on Taken on Stren gth (ToS) on 28.06.2021, hence, he completes is tenure in the stipulated period for which transfer orders could be processed and issued in the month of Mareh of a particular year is illogical, unfair and arbitrary.
9. It is to state that the applicant has taken Charge on 05.07.2021, his tenure will start from the date he has taken Charge. Therefore, he \ Page 30 of 31 3t OA No.465/2024 will net be completing the tenure in June, hence,is not eligible for transfer in the month of March. The transfer"srder in the case of applicant is not only illegal but also manipulative liable to be set aside.
$0. In view of above, the following orders are issued: -
{a} Original Application is allowed. The impugned orders dated 02.04.2024 {A-2) and 14.03.2024 {A-2) are quash and set aside.
The Réspondents are directed to allow the Applicant to resume his duties as Garrison Engineer at Vasco.
(b) Pending MA, if any, stands closed. No cost.
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| (Rajinder Kashyap) (Harvindér Kaur Oberoi) Member (A) Member (J) kmg* Page 31 of 31