Central Administrative Tribunal - Mumbai
V Sivaprakasam vs M/O Defence on 9 August, 2019
i.
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAT BENCH, MUMBAI
ORIGINAL J APPLICATION No. 218/2018
Date of Decision:- o ath Aug age rely
CORAM: DR. BHAGWAN SA4HAI, MEMBER(A)
RAVINDER KAUR, MEMRER (J)
Ve 'Sivaprakasam, Age S2 years,
Rfo A-606, Sai Vihar Co- Op.
Hsq. Soc lety, Sector-15,
CBD Belapur,
Navi Mumbai - 400 614 « Applicant
(By Advocate Shri R. G. Walia alongwith Shri R.P. Saxena)
VERSUS
fa
Union of India,
through the Secretary
to the Govt. of India,
Ministry of Defence,
South Block,
New Delhi
j
L1O GO1
e
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{+
Or fy
The General Manages
Government of Indi
Ministry of Det ence,
Canteen Store epartment
ADELPHI 11s, MK. Road,
Mumbai - 400 020. uw Kespondents
(By Advocate Shri R. R. Shetty)
An
4
,
a
Reserved on: 07.01.2019
ORDER
| PER: RAVINDER KAUR, MEMBER()) This application has been filed under Section 15 of the Administrative Tribunals Act, 1985 claiming the fcllowing reliefs:
2"8.01 The Hon'ble Tribunal may be pleased to call for the record of the case and after examining the sare to hold and deciare that the applicant cannot be posted to the post of Manager which is lower in status than the post held by the applicant at the time of transfer, 8.02 The Hon'ble Tribunal may be pleased to hold and declare that the impugned transfer order dated 22/02/2018 annot be sustained In law and the same may be quashed and set-aside, 03 The Hon'ble Tribunal may be pleased to direct Respondent No. 2 to post the applicant against the vacant 'post of Deputy General Manager (MS) as Officer Ie. (M483 as the applicant is entitled to the similar treatment which has been given to similarly situated officers of the respondent-department,"
TO Ys ts
2. The applicant is a civilian employee of Canteen Stores Department (CSD) of Government of India, Ministry of Defence. He was appointed on the post of Manager Gr. ~ I(Group A Officer) wW.e.t, 26.08.1997 after sélection through UPSsc.
The application states that the hierarchy of Group A posts in the CSD is as under:
l.Manager Grade - I.
2.Assistant General Manager (AGM) /Manager selection Grade.
3.Deputy General Manager (Dy.GM} /Regional Manager.
(4&.doint General Manager ~ ii.
3. The applicant was promoted to the post of AGM on officiating basis vide order dated 30.01.2009 (Annex A-2}, THiS promotion was regularized vide order dated D8 .05.2009 (Annex A~ ad letter dated 26.05.2016 (Annex A-~4} directed the Fill up vacancies in the grade of Dy.GM by promotion of officers in feeder cadre of AGM én ad-hoc basis but no steps have been' taken in Enis regard till date, 4, Vide order dated 03.04.2017 {Annex A-5}, seniority list for the post of AGM/Manager Selection Grade was published wherein the name of applicant appears at Sr. No. 4.
int It is stated that Revised Posting Policy for Group-A Officers dt. 19.04.2017 was issued ms o hy ot iD by the General Manager, CSD. Para 4( said policy reads as follows:
""x} The posting of AGMs will be ordered to the depots having authorization of AGM/SGM as shown below, subject to availability of vacancy:
Jalandhar Chennai Dethi Ambala BD Bari Jaipur Srinagar Kolkata Ramgarh Rhadki Lucknow"
6. AS per the applicant, his substantive post is AGM/Selection Grade Manager whereas he is working on the post of Dy.GM being the senior most AGM. It is further claimed that out of 34 depots run by the CSD, the officers holding the posts of AGM can be posted in the lil depots as mentioned in para 4(%) of the order/policy dated
7. The applicant has claimed that vide impugned order dated 22.02.2018, he has been posted to Vishakhapatnam depot to the post of 1an £ reyes status £ ty jae 3 Area Manager, which is lowe post held by him as AGM/Dy.GM. Further that he has already been granted ees Financial Lie Ct {h Cy ey g G x ip + Reh 3 O% * oO CK NS Lat 4 wed Upgradation under MAC:
applicant has alleged that in these circumstances, the impugned transfer order is unfair, unjust and unwarrented.
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8. | It is further stated that he ha transferr "ed Lo the post of Manager, CSD depot at Vishakhapatnam due to closure of CSD Bass Depot, Mumbai where he was sosted as Offic i/e(Base) as Dy.GM(Base}). It is claimed that when the pests of Dy.GM are vacant at Mumbai, he could have been posted there. instead of being transferred to Vishakhapatnam to a lower post.
He has cited the case of three officers namalv tay Ms. Shandhya Kujur who as per inter-se seniority of AGM/Managers (Selection Grade} are carrying eut higher responsibilities of the post of Deputy Manager/Regional Manager designated T/e.
He claims that his name comes. after Ms. Sandhya Kujur and since the post of Deputy Join \ t Manager {MS}. is vacant at Mumbsi, he should be accommodated thereon. He has alleged that denial of his posting on the post of Dy.GM as Officer I/e is a ry bitrary, capricious and discriminatory as well as violative of Article 14 and 16 of the Constitution of India, in view of the fact that when similarly situated persons have been working as Officer I/e on thea higher post of Dy.GM/Regional Manager.
tted his
9. The applicant. submi representation dated 23.92.2018 against the impugned order dated 22.02.2018. However, he did jo 5 not receive any reply from the respondents. Hence he filed the present OA challenging the propriety, legality and validity of the impugned order.
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19. The respondents have filed etailed ey affidavit in reply wherein it is stated that the respondent department under the Ministry 0 ih wt Defence is an All India Service. ~The applicant being Group A Officer is having all India transfer liability and thus, can be transferred anywnere in the country in the organizational made to transfer policy dated 19.04. 2017 to the etfect that the posting of Group "A' officers is made keeping in view the Administrative rh interests of the organization and py Y s he right to relax any of the provisions of the policy on the basis of the exigencies of the service v c th b 6.3 fy with the General Manager, CSD. It is submitted that the applicant was transferred from csp, Mumbai to Visakhapatnam as a routine along with other officers li. tt is further stated by the respondents th that the applicant has been working in CSD, Mumbai since June 2016 and will be completing Cr th hh iD iW two years in June 2018. AS per 1@ rar > on policy in vogue, an officer is liable to be pew transferred from one installation to another on completion of two years at one station.
'Regardin a the representations of the applicant 10} mated 23.02.2018 against the posting order dated 22.02.2018, if is stated that thea same was replied vide letter d&ted 23.03.2018 ie, Annex Red (during tae pencency of the present proceedings.).
12. Regarding the contention Of the applicant that there is no post of Area Manager in CSD and his transfer tos Visakhapatnam is oa bet rt oP a lower than his status, it is sts oe rt o ed respondents that the substantive post of the < 5 applicant is of AGM, though he was holding the CG tharge of Dy.GM as Officer I/e on stop gap f pu rrangement due to shortage of regular incumbent My to ensure uninterrupted service to the customers o£ esteemed armed forces. Further, ik is 1cy of the 'G G ied jee submitted that as per th:
department, AGM having Grade Pay of Rs. 6600 and Manager .Gr.-I having Grade Pay of Rs. 5400(6™ CPC) are posted at Area Depots of the respondent department and are designated as Area Manager and Manager respectively. Further, there are about 10 AGMs having the same Grade Pay and status as that of the applicant and many of them have the same seniority as of the applicant, posted in the area depots as Area Managers. Lt is further stated that the applicant was bb promoted as AGN w.s.F. 01.02.2006 and he ha also held the post of Arsa Manager at Mumbai,
13. That the despot at YVisak MRapatnam at
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process of acquiring defence land for constructing the depot at am approximate expenditure of Rs. 50-100 cr. Since massive construction and acquisition of assets etc. will window period cf next three years, the competent a authorit derided ¢ Oo post @ seasoned senior officer in the rank of AGM and consequent ly, the applicant has been transferred ts the said place.
14, Further, at present three officers senior to the applicant on the pest of AGM have been given the responsibility in the rank of Dy.GM-and no officer junior to the applicant has been pasted in the post normally occupied. by DGM. It as admitted 'that until recently, the applicant was occupying the post of Dy.GM but on account of exigencies, the respondents decided ¢ to post him at Visakhapatnam. It is once again reiterated that the applicant has not been promoted to the post of Dy.GM though on account pgradation under the MACP scheme, he oe of second u is drawing salary in the rank of Dy.GM. Ls. It a5 also submitted that on posting as_ S, the Grade o Area Manager in a depot, the stat Pay or the promotional aspects of the applicant will net be affected adversely and he will also continue to hold the same eniority in his supstantive post. It is submitted that in catena of judgments, the Hon'ble Apex Court has held that transfer is an incidence of service and courts should not interfere with the purely administrative matters except when absolutely necessary on acecunt of violation of any fundamental or other legal right of the employee. The respondents have prayed that the be oe i to b i OA being without merits is li * Lé. The applicant filed rejoinder whereby he has reiterated that the impugned transfer ordar of the applicant from Mumbai to Visakhapatnam has not been issued as a. routine but the applica ie ba bs wm o @ be ing transferred arbitrarily and discriminately on the post which is lower in 3 1 3 an} YR kw: rs om Ae eee :
Status than the one held by him SupSsStantively.
_ og , i?. hearned counsel fear the applicant has argued that presently the applicant is working on the post of Oy.GM and also drawing the salary for the sai post whereas the post at fishakhapatnam on which he has been presently transferred vide impugned order, is lower in fespondents have violated the terms of the Revised Transfer Policy for Group 'A! officers dated 19.04.2017, AS per this policy, he could only be transferred to the dapots mentioned in is. Ie is further argued that cespite directions from the M/o Defence vide IB datad ft 26.05.2016 to the DDG, Canteen Services, to fil up the vacancies in the Grade of Dy.GM by promotion of eligible officers in feeder grade o£ AGM on ad-hoc basis, no steps have been taken so far. A post of Ov.GM iS vacant in Mumbai Ed an eo ' wade Whedbee ay +h. 4 ext Th 3 directed to withdraw the ampugned order and accommodate the applicant in Mumbai itself.
s & Ors in o.A. No. 1479/2013 by Central. Administrative Tribunal, Calcutta Bench.
b) Ms. Sandhya Kujur ws Union of India & Ors in OA. No. 1489 /PB/2013 by | central Administrative Tribunal, Chandigarh Banch.
cc} Shri Ajay Kumar Nagar vs Union of India §& Ors in O.A. No. 292/277/2017 by Central Administrative Tribunal, Jaipur Bench.
20. On the other hand, learned counsel for the respondents has argued that on account of shortage of officers in the rank of Dy.GM, the fh responsibiliti D & Oo the said post have been delegated to AGM/s to function as Officer in Charge (O/I}, which otherwise does not confer any right for promotion or financial benefits. The "applicanh too has been dele gated the powers of. Ife (Base) which is) equivalent to the post of Dy.GM but he has not been promoted to the said post as the substantive post of the applicant is AGM.
21. It 1s further submitted that the as wa applicant held the post as O/I(Base) as Long the kase depot establishment was in full operation but now with the decision to wind uD the operation of the base depot at Mumbai, the requirement of Officer in Charge has become applicant has been posted as Dy.GM. Therefore, 4 Ne, cannot be posted as Dy.GM as a matter of officers is in the form of guidelines to he administrative exigencies and ¥for justifiable reasons, the authorities can deviate from those guidelines,
22. Learned counsel for the respondents has brought. te our notice that the present transfer Ih OL the applicant to Vishakhapatnam is due to administrative requirement as at csp Depot, Vishakhapatnam, some Major infrastructural development, including taking over the Defence land is in progress, which 'needs to ha supervised through effective. monitoring by an experianced officer -- and it is in these circumstances, the applicant has been transferred to Vishakhapatnam vide impugned order, fered bas oe
23. it is abserved that the ap rejoinder has not denied the administrative exigencies pointed out by learned counsel for respondents. His concern tha vt he will be posted o bh on a lower post too is n & O Q ry i ree ne] tS oO rs C3 ( Sus th > though presently he is working as Officer in Charge Dy.GM but his substantive post is of AGM, 'pt .S explained by the respondents on his transfer Cf = as Area Manager, Vishakhapatnam depct, there would be no change in his status, the Grade Pay Or 6 salary and promotional aspects. He will also continue to hold the same seniority in his ubstantive post as AGM. Moreover, the post of ae Area Manager to which the applicant has been transferred, is just a change of designation and nono manner it is lower than the status of post poe * of AGM, presently heid by the applicant in substantive capacity. The respondents have brought to our notice that there are several officers with the rank of AGM who are posted at vea Depots and designated as Area Managers.
24, His other concern is that his prospects oF promotion will be effected, however, we find no Merit in this contention as this posting will transfer order, however, he has failed to point wey ED % an Be < Be en » oat uy out any malafide on the part of the issuing
25. The Hon'ble Apex Court in the following Judgments has held that the Courts should not interfere with the transfer erder which is made hh im public interest and FOL administrative reasons unless the transfer orders are made in violation of any. Statutory rules or on the ground of malafide.
ft 3 +n G.d. Fernandez Vs. State of Mysore x > eld that admin in {1867} 3 SCR 636, it was strative ~ instructions issued under the executive power have RO statutory force and they de not confer any right o pi 2 S. @) Shs y amd nobody can Claim any rights on the basia of such administrative instructions.
(ii) In Shilpi Bose {(Mrs.) and others Vs. State of Bihar and others, {1991} 2 Supp. 659, the Apex Court observed that -
"In our opinion the Court should not interfere with the transfer order which is made in public interest and for administrative reasons unless the transfer orders ere made in violation of any statutery rulé or on the settee ground..of mala ofide. & Government Servant holding a transferable post has no vested right to remain posted at one place or 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 passed in violation of executive instructions interfere with the order anc instead aifected party sheuld . 5 : .
proach the higher authorities in if the Courts continue to interfere with day-to-day transfer orders issued by the - Savyernment and Lis subordinate s BOs ir the admini authorities, there will be complete S si would not ve conducive to public inte Ss n interfering with the the case of Bank of India vs. Jagjit pe we fete fon Ms Singh Mehta (1992) ILLd 329 and: Union of India vs §. BL. Abbas AIR (1993) scc 444, it has been heid that guidelines on instructions do not confer any rights on the amploeyee to challenge the transfer order on the ground of their violation. Merely because the guidelines are se violated is not sufficient to quash the order of transfer as malafide. Order of transfer on x AAMINLSTrAative 2, wo "4 iD 3 tli be pas se a , grounds in 4 Us ma uc fF it if in viclation of such guidelines which f-
have no statutory post.
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(iv) In case of State of M.P, and others Vs. 5.5. Kourav and others, 1993(3) sec 270, it was held th ato~ "The Courts or tribunals are not appellate Forums ko decide on transfer OF officers. on:
administrative grounds. it is for the administration te take appropriate decision arc Such cecisions shall stand unless they are vitiated either by mala fides or ny extraneous considerations without any factual background foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the court."
tt iv} nN case of Ekta Shakti Poundation Vs. Govt. of NCT of Delhi, BIR 2006 sc 2609, it has been held that -
"Whil exercising the pewer of judicial vreviaw of action, the Court appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or + Sermonize any matter which an Constitution lies of the Legislature or 3 rg "te sy ® oct ft Q the executive, provided these authorities do not transgress thelyz eonstitutional t limits or state a power. {See Asnif Hamid v. State of J.é K. (BIR 1989 SC 2899), Shri Sitaram Sugar €o. v. Union of India (ATR 2999 8¢ L277). The scope of Judicial enguiry is confined to the question whether the decision taken by the Government is against any Statutory provisions or is violative of the fundamental rights of the citizens or iS opposed to the previsions of the Gonstitution. Thus, the an position is that ayen. £ the } BS OO oer et " pa 'ECLSLoOM taken by the Government Uh ke Q Om Oo Cr ee = hos net appear to Lt ce Court, ar "t fet od In &. ©. Saxena vs Union of India & Ors. (2006) 9 SCC 583, it has been held that a Govt.
"Servant .cannot disobey the transfer order by not reporting at the place of posting and then go to ~ a Court to ventilate his grievance. It is his + duty to first report for work where he is i oe or ti) 137 i a * ry oO #3) @ m ct pu ct be a oO! rs oy ts oO Ss ct transferred and then nis personal problems. such tendency of not reporting atk the place of posting and indulging | x, in litigation needs to be curbed.
26. Admittedly, the respondent department is under the M/o Defence having coverye all over the country. The applicant is Group 'A't Officer and kha in transfer liability to any of its establishments. He can be transferred te any of Lon and G bet them in the . interest of organizat acministration. The perusal of impugned order shows that slong with applicant, several other officers have also been transferred from CSd, Mombad . in these circumstances, 'oniy the applicant has not been singled out due to some ulterior motives or he was the only officer Mee 1g chosen to be transferred ont of Mumbai.
above in para 4. However, the objective of the transfer as per this policy is to enable the planned movement of Group 'A' officers from. one station to another to mest the operational department from time to -time as well as to enable the officers acquire multi-dimensional yeh rotation and exposure to the diversified geographic and operational areas Of the department.
28... Para 4(x) of these guidelines is to be read in harmony with the obtectives of the = rae , " 5 wé . om fe transfer. We are of the view that service ih exigencies w poe ill always take precedence and all the guidelines issued from time to time are i a
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i " 4 ~§ . }. rt 4s wg 4 os 3 re Ext Qo 4 Mf op 3) Ho ® 9 Os "_ feos! the representation dated 22.02.2018 moved by the applicant against the impugned order was However, Lt is observed that the applicant did mot challenge this order in the present OA by- way of amendment. This order has been brought £O Our notice by the respondants along. with their reply as Annex R-1l. Para 2 of the said fwd follows:
ca letter is relevant and is reproduced a "2. You are holding the substantive post of AGM. As per existing palicy, AGMs are either posting in HO or command designated Depots. Moreover keeping in view the upcoming construction werk at Vishakhapatnam, a senior and experienced officer is required to be posted to progress the case in a time bound manner."
The perusal of the above order clearly shows ¥ a + that keeping in visw the construction work at Vishakhapatnam, a senior and experienced officer is required to be posted to ensure the progres Ks of the project in a time bound manner and vide this order, the attention of ths applicant was also invited to para 7b of the Transfer Policy for Group 'A' officers circulated vide letter dated 19.04.2017. It is strange that the applicant has not challenged 'this order in t "present proceedings.
33. in the facts and circumstances of the "3 valid justify intervention "OR gm.
is (Ravinder Kaur) Member (J) nsfer order. The My "i deveid of "werits » Ly dismissed. MA No. 2857/2018 be no order as ts (Dr. Bhagwan Sahai) Member (A)