Central Administrative Tribunal - Ernakulam
P.K.Krishnakala vs Union Of India Represented By on 12 January, 2017
Author: P.Gopinath
Bench: P.Gopinath
Central Administrative Tribunal
Ernakulam Bench
OA/180/00503/2016
Thursday, the 12th day of January, 2017
CORAM
HON'BLE MR.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P.GOPINATH, ADMINISTRATIVE MEMBER
P.K.Krishnakala, aged 35 years
W/o C.Harikumar
Postal Assistant, Adoor HO
Residing at Krishna Bhavan, Kadika
Kaithapraambu B.O.
Enathu-691 526. Applicant
(By Advocate: Mr.V.Sajithkumar)
Versus
1. Union of India represented by
the Secretary to Government
Department of Posts
Ministry of Communications
Government of India
New Delhi-110 001.
2. The Chief Postmaster General
Kerala Circle,Trivandrum-695 033.
3. The Superintendent of Post Offices
Pathanamthitta Postal Division
Pathanamthitta-689 645. Respondents
(By Advocate: Mrs.Mini R.Menon, ACGSC)
The Original Application having been heard on 4/1/2017, the Tribunal
delivered the following order on 12th January, 2017:
ORDER
By N.K.Balakrishnan, Judicial Member Annexure A1 order dated 19.05.2016 qua the applicant is under challenge. The applicant figures at S.No.8 in Part-I by which the applicant who is now working as Postal Assistant at Adoor HO has been transferred to SPM Nedumon S.O. The applicant contends that his transfer is discriminatory and is vitiated by legal malafides. Applicant had not completed the minimum tenure of 4 years as provided in the transfer guidelines. As per the Guidelines, the transfer before expiry of completing the minimum tenure can only be on administrative interest, applicant contends. In Annexure A1, no such administrative interest or exigency is mentioned. Annexure A1 is seen to be only a general transfer order issued annually. No option was obtained from the applicant. She joined the present station on her request. All other officials who completed their tenure were given the option to select their choice as instructed by the Director General. Therefore, a person who has not completed the tenure can be shifted only on administrative reasons or exigency of service. But the transfer of the applicant was not made on such ground. There are officials who had already been granted MACP who can be posted as SPM Nedumon.
2. The respondents resist the petition contending that the transfer is an incidence of service. Transfer made on public interest or on administrative ground should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal. As the matrimonial home is near to Adoor, considering the request of the applicant, she was posted to Adoor HO after her marriage. Thus it is evident that the respondents have shown utmost consideration to the convenience of the applicant. An official can be transferred from a post in administrative interest or at the request of the official, provided the official has completed at least one year of service in the said post vide Annexure R1. A necessity arose to fill up the post of SPM, Nedumon due to the transfer of the incumbent who was even otherwise due to retire on superannuation on 30.11.2016. None of the officials expressed willingness to work in the said post. Hence decision was taken to transfer an official in the administrative interest. As per Annexure A3, only those officials who have completed maximum tenure in an office are eligible to give an option regarding their choice of the station. No official was willing to work as SPM Nedumon. Therefore, the 3rd respondent was compelled to find out a suitable official work in that post. Applicant has completed 10 years of service and is due for MACP. Her residence is just 5 km away from Nedumon Post Office and as such she was found suitable to be posted as SPM, Nedumon in the administrative interest. The contention that Nedumon is a lonely place is denied. The private bus point is just in front of the said office. It is situated in a residential area. Respondents contend that the application is liable to be dismissed.
3.
3. Rejoinder has been filed by the applicant contending that there were many MACP officials available to be posted as SPM, who had already completed their tenure, whereas the applicant was transferred before completing her tenure and she is yet to be granted MACP. She was not given an option to prefer choice before transferring her out from Adoor HO.
4. An additional reply has been filed contending that the transfer orders were issued in the best interest of the administration considering implementation of new technology in the department, suitability of the official to work in a post, convenience of staff to the maximum possible extent etc.
5. The point for consideration is whether the transfer order qua the applicant is liable to be interfered with.
6. The main plea raised by the applicant is that she has been ordered to be transferred before completion of tenure of 4 years, whereas, according to the applicant, other employees who are MACP officials (to mean, who were already granted MACP) are bound to accept the appointment as SPM. The applicant contends that she cannot be legally appointed as SPM as she has not been granted MACP benefit. But that ground cannot be projected since the respondents contend that the applicant is entitled to be granted the benefit of MACP.
7. The other ground that has been very much pressed into service is that the applicant was not given an option to prefer choice before transferring her out from Adoor HO. The learned counsel for the applicant submits that going by Annexure A1, there can be no doubt that Annexure A1 is a general transfer and posting order which are shown in 3 parts. The applicant comes under Part-I where the total number of employees transferred are seen to be
24. Therefore, the applicant contends that her transfer from Adoor HO to SPM Nedumon is not on administrative reason. But the respondents would assert that the applicant was transferred in public interest and that there was no malafide in it. In support of that contention, the learned counsel for the respondents would submit that earlier the request made by the applicant was favourably considered, and was posted near her matrimonial home at Adoor. According to the respondents, there is no rule or instruction restraining the competent authority from transferring an official before completion of four years of tenure at an office. But according to the applicant, such a transfer can be made only on administrative reason or exigency of service. No such rule has been shown to us.
8. It is contended that no other official had expressed willingness to be transferred to SPM Nedumon. The applicant would contend that only because no other person had expressed willingness, the applicant cannot be transferred especially when she has not completed the tenure of 4 years. But the fact remains that the applicant had completed 10 years of service. The contention that she was not liable to be transferred at all cannot be accepted for a moment. Annexure R1 is the transfer policy issued on 31.1.2014. Though the applicant would contend that the respondents had acted in a biased or malafide manner, there is nothing on record to show that the respondents had acted in a biased or prejudiced manner. On the other hand, it can be seen that the applicant was earlier granted posting of her choice immediately after her marriage. The reply given to the applicant would show that her request would be considered favourably as and when occasion arises.
9. It is further contended that the applicant was informed that her request will be given priority and her grievance will be redressed as and when suitable chance arises. This has been projected by the respondents to contend that the competent authority was always anxious and eager to help her but that has not been appreciated by the applicant in the correct perspective. Since the applicant had already completed 10 years, the contention that she cannot be transferred as SPM Nedumon cannot be accepted. The applicant has mentioned about so many other employees who, according the applicant, were given favourable orders with regard to the transfer. No comparative assessment with regard to the transfer given to the other persons can be made in this OA, since those persons are not before this Tribunal. The contention that even juniors like Anjali and Athira who had completed tenure were available for transfer, but they were not disturbed but the applicant alone was picked out for a transfer and thus it is malafide is also found to be not acceptable. The respondents maintained that the transfer was issued in the best interest of the administration considering implementation of new technology in the department, suitability of the officials to work in a post, convenience of staff to the maximum possible extent etc. It is also stated that the applicant was posted as SPO Nedumon considering the length of service of the applicant, as well as the short distance of her residence from Nedumon. Though the applicant wanted to project some practical difficulty, it is found to be not reasonable. According to the respondents, the distance from her present place of residence to SPM Nedumon is only 5 km. Whether it is 5 km or 7 km, the fact remains that it is not a far away place. According to the respondents, the bus stop at Nedumon is near the post office itself and there would be no difficulty for her to reach from her residence. It appears that the main grievance of the applicant is that there were some complaints of irregularities and illegalities having been committed earlier in that office at Nedumon and if she is transferred to that place she may have to shoulder the responsibility of so many such illegalities. That also may not be a reason to avert the order of transfer. The applicant contends that she has some gynecology problems for which a certificate issued by the gynecologist has been referred to. It is stated that the applicant has been suffering from an ailment termed Menorrhagia with anemia and so she is under treatment. The respondents would contend that since the distance is only about 5 or 6 km from her residence and since the applicant is now travelling more than 10 kms from her place of posting to her residence, that is not a legitimate ground at all to avert the order of transfer.
10. We take note of the fact that Annexure A1 order was issued on 19/5/2016. It was a general transfer order. On the strength of an interim order, the applicant still continues in Adoor HO. There would be only three or four months to have the next general transfer. Considering the totality of the circumstances, we are not inclined to accept the plea raised by the applicant against the order of transfer but still we hold that the applicant should be permitted to continue in the present station till the next general transfer, by which time tenure of 4 years may be completed. The applicant can be given an option to make a representation during the ensuing general transfer of persons who have completed tenure. The same will be considered by the respondents in accordance with law. This OA is disposed of as above. No order as to costs.
(P. Gopinath) (N.K.Balakrishnan) Administrative Member Judicial Member aa.