Central Administrative Tribunal - Delhi
Subhash Pandey S/O Shri P.N. Pandey, ... vs Union Of India (Uoi) Through Its ... on 1 May, 2007
ORDER Neena Ranjan, Member (A)
MA No. 1365/2006
1. By virtue of this MA applicant seeks permission to prosecute Shri S.N. Das, Chief Soil Survey Officer under Section 197 of the Code of Criminal Procedure before the appropriate Metropolitan Magistrate, Delhi.
2. Heard.
3. The applicant, no doubt, cannot ask for this prayer, though it is his prerogative to challenge any particular order in an appropriate forum. This Tribunal is not the appropriate forum to seek permission under Section 197 of the Code of Criminal Procedure. As such, this MA has no merit and is dismissed.
OA No. 1787/20054. By virtue of this OA the applicant impugns order dated 10.8.2005 whereby he was transferred from Regional Centre (North), All India Soil and Land Use Survey Organisation (AISLUSO) to Regional Centre, Bangalore and order dated 11.8.2005 whereby he was transferred along with the post on administrative grounds.
5. The facts in brief are that applicant was appointed as Lower Division Clerk (LDC) in AISLUSO w.e.f. 30.4.1975 and confirmed in that grade and later promoted as UDC. On the recommendation of DPC, applicant was offered post of Senior Accountant in scale of Rs. 4500-7000 on 25.5.2004. Vide para 2 of the offer of appointment, applicant was asked to give his acceptance and report for duty to the Soil Survey Officer (Headquarters), Noida within 30 days. Shri S.N. Das, Chief Soil Survey Officer, AISLUSO issued an Office Order temporarily transferring applicant from H.O. of AISLUSO, till further orders. Without acknowledging receipt of representation, respondents issued a relieving order dated 11.3.2005 directing him to join at Regional Centre (North), Noida, which he did on 30.11.2004. Thereafter, Shri Das circulated a seniority list of Senior Accountant, Group 'C' on 31.12.2004 wherein it was mentioned that the post of Senior Accountant is an isolated lone post, meant for Headquarters, New Delhi.
6. Applicant also contends that on complaints of misappropriation of Government money and financial misconduct, Shri Das in July, 2005 passed an order ordering recovery of Rs. 30,000/-. Applicant, now working in Noida Office, got into the bad books of two officers, Shri D.R. Singh, Assistant Soil Survey Officer and Shri S.S. Mishra, Soil Survey Officer, Regional Centre (North), Noida. Shri Das then made a vigilance complaint and punished applicant by transferring him to Bangalore, along with his post (against rules since the CSSO is not competent to effect such a transfer from Headquarters/Noida to Bangalore).
7. Shri D.R. Singh, Assistant Soil Survey Officer, issued another order date 11.8.2005 proposing to relieve applicant from his duties on 19.8.2005 (A/N) and applicant was instructed to handover his charges to two other officials. Applicant also contends that this transfer order was made in contravention of Transfer Policy of 1999, formulated by the Ministry of Agriculture, in respect of Group 'B', 'C' and 'D' posts wherein no compulsory transfer can be effected in these categories of posts.
8. The next limb of argument is that there was no sanctioned post of Senior Accountant at Regional Centre, Bangalore as per the staff position issued on 7.3.2005 and the post of Senior Accountant was sanctioned only at Headquarters Office, New Delhi. In support of his case applicant has relied upon the judgment of the Supreme Court in Union of India and Ors. v. H.N. Kirtania and submitted that as he was transferred in violation of prevailing rules, the order deserves to be set aside. He also submits that respondents have not yet disposed of his representations and prayed for the following reliefs:
(i) To quash and set aside the impugned Annexures 'A' and 'B' as being in violation of the principles laid down by the Hon'ble Supreme Court of India in H.N. Kirtania's case in 1989 and also the transfer order being punitive and without showing as to how the applicant was responsible for the recovery ordered by Shri S.N. Das.
(ii) To allow applicant to continue his service peacefully at Headquarters.
9. In their counter, the respondents rebut the allegations and submit that it has been decided by the Hon'ble Apex Court that courts should not interfere with transfers, which is the prerogative of the executive authorities.
10. They also submit that since applicant has already been relieved from Regional Centre (North) of ALSLUSO on 19.8.2005, the present OA is not maintainable. The averment of the applicant that the post of Senior Accountant is an isolated one, meant for Headquarters Office, New Delhi has no leg to stand upon, because this post is within the hierarchy that comprises of LDC, UDC, Senior Accountant and Superintendent (Accounts). This contention is hence denied and it is submitted that the post of Sr. Accountant is transferable on administrative grounds, anywhere in India, due to exigencies of Government work. At present, there is no need of Sr. Accountant at Headquarters office due to the presence of OS (Accounts) whereas in Bangalore Regional Centre, one post of Assistant is lying vacant which is equivalent to Senior Accountant.
11. The respondents next contend that Ministry of Agriculture vide Notification dated 13.1.03 has declared the Chief Soil Survey Officer as Appellate Authority for Group 'C' and 'D' posts of AISLUSO. Accordingly, Shri S.N. Das, Sr. SSO acted as Head of Department on 13.10.1995. It is also submitted that it was due to confidentiality of the letter dated 26.7.2005, that the same was not provided to the applicant.
12. We have heard the learned Counsel for the parties and perused the judgments and other records.
13. Transfer, no doubt, is the prerogative of the administrative authority and Courts/Tribunals cannot interfere with the same. It is is clearly laid down in State of U.P. and Ors. v. Gobardhan Lal that 'a challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned.' In that same judgment, it is further argued that:
It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. 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 specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest.
14. The next judgment relied upon by respondents is the case of S.C. Saxena v. Union of India and Ors. 2006 (9) SCC 583 wherein it is also held that:
A government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems.
15. We are also in agreement with the decision given by the Tribunal in the case of OA No. 2776/2005 in the case of Captain P.K. Bakshi v. Union of India and Ors. wherein also transfer orders passed by the respondent was challenged and it was held that the transfer order cannot be interfered with unless the same is issued with a mala fide intention and further relied on the following cases (State of U.P. and Ors. v. Siyaram and Anr. ; Gujarat Electricity Board and Anr. v. Atmaram Sugomal Poshani 1989 (3) AISLJ 68).
16. In view of the above, OA is dismissed. No costs.