Central Administrative Tribunal - Delhi
Shri Ravindra Pal Malik vs Union Of India on 16 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.1936 of 2010
M.A. No. 1604/2010
New Delhi, this the 16th day of July, 2010
Honble Mrs. Meera Chhibber, Member (J)
Honble Mr. Shailendra Pandey, Member (A)
1. Shri Ravindra Pal Malik,
S/o Shri Lal Singh,
C-362, Sec-18,
Rohini, Delhi-85
AE M3314, Sanjay Gandhi Memorial Hospital
Mangolpur, Delhi.
2. Shri J.P. Shrivastava,
S/o Shri R.N.P. Shrivastava,
B-126, Brij Vihar,
Gzb. U.P.
AE (P) PWD Zone M-I, MSO Bldg. ITO.
3. Shri Yashpal Singh,
S/o Shri Chauhal Singh,
1/131 Vasundhra,
Gzb. U.P.
AE (P) Noida Central Division,
I.P. Bhawan, ITO, Delhi.
4. Shri Vivek Tiwari,
s/o Shri M.L. Tiwari,
A-50, AGCR Enclave,
Delhi-94.
Barelly C.D.
5. Shri Rakesh Chandra,
S/o late Shri Sarjoo Pd. Srivastav
AE, CCU
FRI Complex, Dehradun.
6. Shri Dalbir Singh,
S/o Shri Dharam Chand,
Dehradun Central Division,
C.P.W.D., Dehradun,
AE (Civil) CPWD, Dehradun.
7. Shri Suresh Chand,
S/o Shri Khushi Ram,
158/1, Mahender Vihar,
Ballnpour Road, Dehradun,
AE-V, DCD-II, CPWD, Dehradun.
8. Shri Raj Kumar,
S/o (late) Shri Lachhi Ram,
R/o F-127, Road No.3, Endrews Ganj,
New Delhi-49.
9. Shri Praveen Kumar Sharma,
S/o Shri S.R. Sharma,
R/o Qtr. No.1, Type-III, Sector-3, Andrews Ganj,
New Delhi.
10. Shri Rakesh Chand,
S/o (late) shri Murari Lal,
E-208, Kewal Kunj Aptts.
Sector-13, Rohini, Delhi-84.
11. Shri Raj Singh
S/o Shri Pyarelal,
Sarsava, Central Sub Division,
CPWD, Dehradun Central Division II,
Dehradun.
12. Shri Shashikant Verma,
S/o Shri Ramdeo Verma,
AE (E) ECD-5, CPWD, Pushpa Bhawan
New Delhi.
13. Shri Sanjay Mehta,
S/o Shri Vinod Kumar Mehta,
AE (E) ED-18 CPWD, I.P. Bhawan, ITO,
New Delhi.
14. Shri Vikram Singh Yadav,
s/o Shri Harikishan Yadav,
V & fo- Badshahpur, Gurgao,
AE (E) NZ-III, Vidhyadhar,
Ngr., Jaipur.
15. Shri V.K. Yadav,
s/o Shri Tejmal Yadav,
AE (E) Sub Division III
ECD-3 CPWD, CGO Complex,
Lodhi Road, New Delhi.
16. Shri Daya Ram Maurya,
S/o Shri Hari Bansh Maurya,
AE (E) Sub Division I
ECD-3 CPWD, CGO Complex,
Lodhi Road, New Delhi.
17. Shri Rajeshwar Prasad,
S/o Shri Rajendra Prasad,
AE (Civil) CCU,
Ministry of Environment & Forest,
CGO Complex, New Delhi.
18. Shri Rajesh Kumar,
S/o (late) Shri Prem Singh,
R/o H.No.A-18, Gali No.6,
Sheetla Enclave, Opp. Paradise Garden,
Gurgawo.
GCD, CPWD, Kadarpur.
19. Shri Vivek Kumar Gupta
S/o Shri M.C. Gupta,
R/o E-3, Mitradweep Aptts.,
I.P. Extension, Patparganj, Delhi,
AE (P) PWD M-113, Delhi.
20. shri Raj Pal Chopra,
S/o (late) Shri D.L. Chopra,
E-44, First Floor, Moti Nagar,
Delhi-15.
AE (E) ACD IV, CPWD, Vidyut Bhawan,
Cannaught Place, New Delhi.
21. Shri H.P. Maurya,
S/o Shri R.S. Maurya,
H.No.370, Sec. 3, R.K. Puram, New Delhi
AE CW 112, CPWD, New Delhi.
22. Shri Bijendra Singh,
S/o Shri Khajan Singh,
R/o V-580, JP Nagar,
Ghonda, Shahadra,
Delhi-32.
AE ED XV, Delhi.
23. Shri Rishi Pal Saini,
S/o Shri Gyan Singh Saini,
R/o 1164-F Sector 7B, Chandigarh,
AE Project Electrical Division,
Kendriya Sadan, Sector 9 A,
Chandigarh.
24. Shri Umesh Ku. Goel,
S/o Shri Salek Chand Goel,
R/o C-11/163, Yamuna Vihar,
Delhi-53.
AE (E) CVO, CPWD,
Nirman Bhawan, New Delhi.
25. Shri Paramjit Singh,
S/o Shri Rulda Ram,
67/10 Sector I, Pushp Vihar,
MB Road, New Delhi.
AE (P) PWD CWC-M-11,
MSO Building, New Delhi.
26. Shri Teja Singh,
S/o Shri Mukhtiar Singh,
H-530, Sarojini Nagar,
New Delhi.
AE (P) PWD CWC-M-11,
MSO Building, New Delhi.
27. Shri Naib Chand,
S/o Shri Surjan Singh,
81-C, CPWD, Colony,
Vasant Vihar,
New Delhi.
AE (P) PWD CWC-M-11,
MSO Building, New Delhi.
28. Kailash Pati Singh,
S/o Shri Ranjeet Singh,
D-45, CPWD Training,
Institute, Kamla Nehru Nagar,
Hapur Road, Ghaziabad, U.P.
AE (E) Planning,
O/o Chief Engineer (Elect),
DR, CPWD, Vidyut Bhawan, New Delhi.
29. Shri Pardeep Kumar,
s/o Shri Lal Singh,
C-4C/312, Pk. 14,
DDA Flat, Janakpuri,
New Delhi-58.
AE S-Div, R.K. Puram,
New Delhi.
30. Jagmohan Singh Rawat,
s/o Mukand Singh Rawat,
Qtr. No.7, Type III, CPWD Colony,
Jaipur Road, Bikaner,
Org. Add. AE (E), CPWD, BSF (Campus),
Gate No.6, Bikaner (Raj).
31. Bal Krishna Garg,
s/o Shri Harcharan Lal Garg
A-147, Arjun Park,
Nangli Dairy, Najafgarh,
New Delhi-43.
32. Sanjay Kumar Gupta,
s/o Shri S.P. Gupta,
C-III/360, Lodhi Colony,
New Delhi-03.
33. Mukesh Tiwari,
S/o Shri Suresh Tiwari,
H.No.1531, Gate No.5,
Block-C, Dabua,
Faridabad.
34. Devendra Singh,
s/o Late Shri Bal Chand Saini,
R/o H-2/119, Mahavir Enclave,
New Delhi-110045.
..Applicants
(By Advocate : Shri M.K. Bhardwaj)
Versus
Union of India,
Through Secretary
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
Director General (Works)
CPWD, Nirman Bhawan,
New Delhi.
The Secretary,
Department of Personnel & Training,
North Block,
New Delhi. Respondents.
(By Advocate: Shri D.S. Mahendru with Shri A.K. Trivedi, Additional
D.G. (W), CPWD).
ORDER
By Honble Mrs. Meera Chhibber, Member (J) 34 Assistant Engineers, working in the Central Public Works Department have filed this OA seeking the following relief:-
(a) Quash and set aside the order dated 28.5.2010 whereby process of transferring the applicants has been initiated.
(b) Quash and set aside the O.M. dated 1.4.2010 and corrigendum dated 27.4.2010 (A-1/1) being illegal and violative of CPWD Manual and Article 14 and 16 of the Constitution of India.
(c) Declare all the action taken in pursuance of Annexure A-1 and A-1/1 be also declared as illegal, arbitrary, unconstitutional and not in consonance with the provisions of Article 14 and 16 of the Constitution of India.
2. It is stated by the counsel for the applicants that initially guidelines for regionalization of transfer/posting of Assistant Engineers (hereinafter referred to as AE) (Civil) & (Electrical) in CPWD were issued on 27.2.1998 (page 150) wherein it was made clear in para 3.8.1.4 at page 154 that the AEs who have completed 55 years of age shall not normally be posted to hard areas. The said OM was superseded by O.M. issued on 19.1.2009 (page 156 at 157) wherein the age of 55 years was maintained. However, respondents issued Corrigendum on 13.4.2009 (page 160) whereby the age was arbitrarily reduced to 50 years from 55 years. This was objected to by the AEs, whereupon another guideline was issued in September, 2009 (page 165) and once again it was made clear that the AEs who are below 55 years of age would be posted outside their regions irrespective of the length of their stay in the region/station. This was in consonance with the manual of CPWD also, but at the instance of some interested persons, respondents have issued yet another OM on 1.4.2010 (page 108E) and in para 2.2. (iii) the age has again been reduced to 50 years. For ready reference it reads as under:-
2.2. (iii) A list of Assistant Engineers with age less than 50 years as on Ist of January of each year/5th April for year 2010 shall be prepared by concerned SE (Coord.). The name of all Assistant Engineers, who have still not completed 10 years after successful return from hard areas or the inter-regional transfer as on Ist of January of each year/5th of April for year 2010, shall be shown as exempted from Inter-regional transfer. This list will be made public and shall be forwarded to Directorate General on or before 31st January of each year/10 to 15th April for 2010. This will be sorted out in ascending order of age and will be the basis of inter-regional transfer (in order of ascending order of age).
3. Applicants are aggrieved by the clause, whereby the age of AEs has been reduced from 55 to 50 years for inter-regional postings. It is submitted that the age has been reduced at the instance of some interested persons but interest of those AEs has not been taken into consideration by the respondents, who are in the age group of 45 to 50 years. It is stated by the learned counsel for the applicants that the AEs who are in the age group of 45 to 50 years have greater liabilities as they have school going children, therefore, it is all the more necessary to retain them at Delhi instead of transferring them to other regions. In fact, persons above the age of 50 years are free from this liability as their children are by and large settled. Therefore, there is no justification to reduce the age of AEs from 55 to 50 years to exempt them from inter-regional transfers. He further stated that the age has only been reduced for the AEs from 55 to 50 years for inter-regional transfer and no policy has been issued for other ranks on these lines which itself is discriminatory and arbitrary, therefore, the guidelines dated 1.4.2010 are liable to be quashed on this ground alone.
4. Learned counsel for the applicants further stated that respondents have not even passed any orders in compliance of the orders dated 10.5.2001 passed by the Tribunal in OA 1533/2010. Even the applicants herein had given representations which are annexed at pages 203 onwards, but without deciding their representations, respondents started calling the options from the applicants vide OM dated 28.5.2010 (page 104), therefore, they had to approach the court for the relief, as mentioned above.
5. Counsel for the applicants also submitted that 80% of the AEs are in the age group of 50 and above and it is only 20% of the AEs who are below the age of 50 years, therefore, if this transfer policy is allowed to remain, only 20% of the AEs would be transferred from one region to the other while 80% of the AEs would remain posted in one region which itself would amount to discrimination. He also submitted that options could not have been called from the applicants, without deciding their representations. He thus prayed that the OA may be allowed.
6. Respondents have opposed this OA. They have taken preliminary objection to the maintainability of the OA on the ground that some of the AEs had filed OA No. 1533/2010. That was held to be premature as applicants therein had not exhausted the remedy of making representation to the authorities. In the instant case also, applicants had given representations but without waiting for the outcome of same, they have filed this OA, therefore, this OA is liable to be dismissed as premature.
7. On merits they have stated, the guidelines have been issued after due application of mind and after long deliberations keeping in view the requirement of AEs in other regions, therefore, it may be allowed to be implemented and applied uniformly, so that the department may complete its pending projects. They have further stated that the guidelines cannot be said to be based on extraneous considerations nor are they discriminatory, arbitrary or for favouring one group as alleged by the applicants, because the decision to reduce the age from 55 to 50 years has been taken on the basis of representations given by the associations of AEs themselves, which are recognized by the CPWD. In any case the policy decision cannot be challenged in a judicial review.
8. Even otherwise transfer is not only an incidence of service but is a condition of service and who should be transferred and where is for the appropriate authority to decide as held by the Honble Supreme Court in the case of Mrs. Shilpi Bose and Others Vs. State of Bihar and Others reported in AIR 1991 SC 532. In the case of State of M.P. Vs. Sri. S.S. Kaurav and Others reported in 1995 (3) SCC 270 it was held by the Honble Supreme Court as under:-
The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation.
9. Counsel for the respondents submitted that it has repeatedly been held by the Honble Supreme Court that a Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is stated to have been passed on the basis of some executive instructions, the courts should not ordinarily interfere with the order instead the affected party should approach the higher authorities in the department at the first instance. Transfer can be interfered with only if it is vitiated by mala fides or is issued by an authority who is not competent to issue the same, which is not the case of the applicants. It is also settled law that Government has right to fix the cut-off date. In any case none of the applicants have been transferred so far, therefore, they have no cause of action to approach the Tribunal. It is only stated in the order that the persons mentioned in the list are likely to be transferred, therefore, the OA is premature.
10. Counsel for the respondents also submitted that though counsel for the applicants is stating that only 20% of the AEs are in the age group of below 50 years and 80% of the AEs are above 50 years but no such averment has been made by the applicant in the OA, therefore, they had no occasion to respond to this contention. Similarly there is no averment to the effect that the policy is being issued only for the AEs and not for other ranks hence they are being victimized or the policy has been issued due to any mala fides on the part of the officers of CPWD, therefore, these arguments may not be taken into consideration.
11. Counsel for the respondents also invited our attention to orders dated 10.5.2010 and 26.4.2010 to show that orders have already been passed in compliance with the judgment given by the Chandigarh Bench in OA 456/CH/2009 and OA No. 1601/2009.
12. It was stated by the Additional DG, who appeared in person that even the representations given by the applicants herein would be decided shortly most probably within 2 weeks. The respondents counsel thus prayed that in view of the facts, as explained by them, the interim orders passed by the Tribunal may kindly be vacated and the OA may be dismissed.
13. We have heard both the counsel as well as the Additional DG, CPWD. At the outset we would like to note that even though counsel for the applicants had stated that only 20% of the AEs below the age of 50 would be left for inter-regional transfer no averment to this effect has been made by them in the OA. Similarly there is no averment to the effect that this policy is only for AEs and not for other ranks, therefore, respondents had no occasion to meet this argument, as such these averments cannot be taken into consideration at this stage.
14. The only point which has been taken in the petition by the applicants is, that the decision to reduce the age from 55 years to 50 years has been taken by the respondents at the instance of some interested persons. We do not find any force in this contention because the guidelines have not been issued overnight. The Additional D.G., CPWD, Shri A.K. Trivedi took the pains to explain the background in which the guidelines dated 1.4.2010 were issued. He explained that the total strength of the AEs in CPWD including projects is around 2895. The AEs are to be distributed in different regions of CPWD as per their functional needs. CPWD is divided into four regions, namely, Northern, Eastern, Western and Southern under respective ADGs. These regions have fixed sanctioned strength of all the posts, i.e., JEs, AEs, EEs, SEs and CEs to meet the functional need of the department. The occupancy position of AEs (Civil) & (Electrical) in various regions are as under:-
A.E. (Civil) Name of region Sanctioned strength Available Vacancies Average of vacancy NR 1253 1210 43 3% WR 67 240 17 7% ER 242 171 71 29% SR 380 232 148 39% Total 2132 1853 279 13% A.E. (Electrical) Name of region Sanctioned strength Available Vacancies Average of vacancies NR 496 456 40 9% SR 81 60 21 25.9% WR 78 47 31 39.74% ER 115 53 62 53.91% Total 763 561 202 26%
15. Keeping in view the vacancy position in all regions, it was felt necessary to minimize the imbalances in this working strength in the regions, therefore, inter-regional transfers were unavoidable to keep the department working efficiently. It was keeping these facts in view that guidelines for inter-regional transfers were finally issued on 1.4.2010. 16. He further explained that a meeting of Inter-Regional Transfer Committee was scheduled to be held on 11.6.2009 to consider the case of longest stayee AEs (Civil & Electrical) but it could not be concluded due to rude behaviour of members of the CPWD Engineers Association as they did not want transfer of any of the AEs from Northern Region to any other region. The meeting had to be postponed. Not only this, whenever any process for inter-regional transfer is initiated by the department, AEs stop the process by filing court cases in different benches of the CAT to stall their transfers or implementation of the policy decision taken by the department and also misbehave with the officers. Ultimately, meeting was held on 24.6.2009 in the presence of office bearers of the CPWD and All India Engineers Association, CPWD Engineers Association and other Senior Officers of CPWD, chaired by the DG. In the said meeting, both the associations agreed to modify the guidelines of inter-regional transfers to the effect that AEs of more than 50 years of age should not be sent to other regions through inter regional transfers. Even though the AEs had agreed, still before issuing the inter regional transfer guidelines, in October, 2009, comments/suggestions in respect of draft guidelines were called for, from the Additional DGs of all the regions and the recognized Associations. In the draft guidelines in para 2.13 it was mentioned that the AEs, who have completed 55 years of age shall neither be posted to hard area nor will be transferred out of the regions. After obtaining the comments from the senior officers and both the Associations, the position was analyzed and it was decided that instead of 55 years, the age should be reduced to 50 years for inter-regional transfers and postings at the instance of the recognized Associations. Accordingly, the guidelines for inter-regional transfer was issued on 1.4.2010.
17. The above facts as supported by the documents on record clearly establish that long deliberations had taken place, the views of Sr. Officers and recognized Associations were called before issuing the guidelines. It is further relevant to note that the department had initially kept the age for inter-regional transfer at 55 years and below but it was at the request of recognized Associations only, that the age was reduced from 55 to 50 years for inter-regional transfer, therefore, it cannot be stated that the guidelines have been issued arbitrarily.
18. We had asked a specific question to the counsel for the applicants whether the applicants in the OA are members of the All India CPWD Engineers Association or not. Admittedly, all the applicants are members of these Associations and both the Associations are recognized and registered Associations. It goes without saying that the Association represents all the AEs, therefore, if some changes are made in the policy, on their request, department has only accepted the requests of applicants through their representatives, therefore, they cannot find fault with the respondents. If they feel, the Association is not looking after their interests, they have to take up the matter with the office bearers of the Association. Definitely it cannot be stated that the department has introduced the policy at the instance of some interested persons. By no stretch of imagination can it be stated that the guidelines are based on extraneous considerations or are vitiated due to mala fides. Perusal of the chart quoted above shows that in comparison to the Northern Region, the average vacancy position in other regions is much much more, therefore, naturally it can be adjusted only by resorting to inter-regional transfer, therefore, they have no valid ground to challenge the transfer policy. Even otherwise Honble Supreme Court has repeatedly held that transfer is not only an incidence of service but a condition of service.
19. On the question of interference with policy decisions also, the law is well settled that if a policy decision is taken by the authorities in the larger interest of the organization, courts cannot sit in appeal over such a decision. In State of Punjab Vs. Ram Lubhya Bagga & Others reported in 1998 (2) JT page 136 it was held by the Honble Supreme Court that Govt. can change its policy from time to time under the changing circumstances. Similarly in the case of Technical Executive (Anti Pollution) Welfare Association Vs. Commissioner of Transport Department & Another reported in 1997 (1) SCSLJ page 633 and 1997 (4) JT page 172 Honble Supreme Court had held it is a matter within the purview of the appropriate Govt. to issue direction to lay down the policy. In the case of Indian Railway Service of Mechanical Engineering Association & Others Vs. Indian Railway Traffic Service Association & Another reported in 1993 (3) JT page 424 it was held by the Honble Supreme Court that it is well-settled in law that the Government has got a right to notify the scheme. It has equally a right to issue amendments. Therefore, it could amend the scheme including the provisions relating to the predominant factor from 6 to 37.5%. This is a matter of policy. In Union of India Vs. Tejram Parashramji Bombhate (1991 (3) SCC 11) Honble Supreme Court had held that no court or Tribunal could compel the Government to change its policy involving expenditure. Again in Asif Hameed Vs. State of Jammu and Kashmir (AIR 1989 Supreme Court 1899), in paragraph 19, page 1906 Honble Supreme Court observed thus:-
When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a co-ordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.
Unfortunately, the Tribunal has transgressed its limits while questioning the correctness of a policy.
20. From above judgments, it is clear that in judicial review court cannot sit in appeal over the policy decision or question the correctness of policy decision as this is within the domain of executive. We can only examine whether that the policy decisions has been taken arbitrarily or are actuated by malice. In the instant case, both these grounds are missing. On the contrary, it has already been explained above that the guidelines were issued after long deliberations, consultations with the Sr. Officers of CPWD and the recognized Associations, therefore, the guidelines have been issued after due application of mind, as such it calls for no interference.
21. Counsel for the applicant had submitted that generally the children of officers between the age group of 45 to 50 years are school going, therefore, they should not be disturbed from Northern Region. Such cases cannot be decided by making general statements. We are sure, if any officer is being posted to other region during the mid-session of his school going child and the officer gives a representation, the respondents would consider his request for deferring the transfer till the end of the session so that the education of child does not suffer.
22. In fact perusal of the guidelines dated 1.4.2010 shows that the department has taken care of the officers e.g. such officers or their family members who are suffering from terminal illness would be considered for exemption from inter-regional transfer. The officers likely to be sent on inter-regional transfer shall be given option of three regions of their choice. Choice would be considered depending on the availability of vacancy. The officers who have still not completed 10 years after successful return from hard areas as on Ist of January of each year/5th April, 2010, shall be exempted from inter-regional transfer. It is also clarified that the list will be made public. All these clauses of the guidelines show transparency on the part of the department and that they will take care of officers in genuine cases.
23. Keeping in view all the facts as explained above, we find no illegality in the guidelines dated 1.4.2010 followed by Corrigendum dated 27.4.2010, therefore, the OA is dismissed. Before parting, we place on record our appreciation for Shri A.K. Trivedi, the Additional D.G., CPWD for his assistance rendered in the court. No costs.
(Shailendra Pandey) (Mrs. Meera Chhibber)
Member (A) Member (J)
Rakesh