Central Administrative Tribunal - Ernakulam
S. Sobhan vs The Senior Post Master on 26 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH Original Application No. 701 of 2008 Thursday, this the 26th day of February, 2009 C O R A M: HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER S. Sobhan, Postal Assistant, SBCO GPO, Thiruvananthapuram, On orders of transfer to SBCO, Kottarakara H.O., Kottarakara. ... Applicant. (By Advocate Mr. Vishnu S. Chempazhanthiyil) v e r s u s 1. The Senior Post Master, Thiruvananthapuram GPO. 2. The Senior Superintendent of Post Offices, Kollam Postal Division, Kollam. 3. The Director of Postal Services (HQ), Kerala Circle, Thiruvananthapuram. 4. The Union of India, represented by the Chief Postmaster General, Department of Posts, Kerala Circle, Thiruvananthapuram - 33 5. Shimna, Postal Assistant, SBCO, GPO, Thiruvananthapuram. ... Respondents. (By Advocate Mr. S. Abhilash, ACGSC (R1-4) O R D E R
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER This is the second round of litigation. In the earlier round, as the direction of the Tribunal was to have the pending representation of the applicant against his transfer vide Impugned order dated 16-09-2008 vide order dated 20th October 2008 in OA No. 595/2008 at Annexure A-7 disposed of, Respondent No. 4 has, by Annexure A-12 order dated 10th November, 2008 considered the said pending representation but rejected on the grounds of service exigencies. Hence this O.A.
2. Briefly stated, the applicant is functioning as Postal Assistant working at the Savings bank Control Organization (SBCO) in the postal Department. According to him, while the tenure in a station is four years, before completing even two years, he was transferred from Trivandraum to Kottarakara, vide Annexure A-2 order dated 16th September 2008. The applicant was on leave from 19th September 2008 to 30th September 2008, vide Annexure A-4. He is stated to have applied for extension of the same, vide Annexure A-5. According to the applicant his name was not originally included for transfer in the Memo dated 6th June 2008. On his representing against the transfer as there was no response, he had filed OA No. 595/2008, which, as aforesaid, was disposed of with the direction to the respondents to dispose of the pending representation. Initially, the Asst.
Postmaster General had rejected the case vide order dated 30th October 2008 ( Annexure A-8) and when the applicant pointed out that the said order did not refer to the pending representation, another order, this time by the Chief Postmaster General, had been passed vide Annexure A-12. The reasons for rejection of the representation of the applicant as contained in the said order are as under:
(a) There is acute shortage of staff in all the units of Savings Bank Control Organization (SBCO) and many units are functioning with one or two Postal Assistant. Trivandrum is the only station, where there are three staff members.
(b) On the retirement of the incumbent to the post in SBCO Punalur on 31st May 2008, the one posted at Kottarakara had been transferred there and in the vacancy at Kottarakara the applicant had been posted. This has been done purely in the interest of the service.
(c) The ground that the applicant is handicapped and hence cannot be able to commute everyday to Kottarakara is not sustainable as it is not expected that the applicant should commute everyday between Neyyattinkara and Kottarakara.
(d) The applicant applied for leave only upto 30th September 2008, and he has not applied for further extension.
3. The applicant has come up with the present (amended) OA against the above transfer orders and rejection of his representation. The main ground raised was that when the tenure at a station is four years, the applicant has been shifted even within two years. Another ground was that the applicant could have been transferred to nearby Thycaud HO, instead of Kottarakara as vacancy exists there also and the same would be more convenient to the applicant who is physically handicapped.
4. Respondents have contested the O.A. According to them, the tenure prescribed is maximum and does not restrict the authorities to transfer an individual before the expiry of the said tenure due to exigencies of service.
Posting at Thycaud was not possible as administrative exigencies dictated that the lone vacancy post at Kottarakara HO has to be filled up in preference to the vacancy post at Thycaud HO where there was one more postal Assistant available.
5. Applicant filed his rejoinder stating that it is not true that Trivandrum has three hands in SBCO, whereas, there are only two hands. Again, it has been contended in the rejoinder that there are a number of officials who have been rotating within Trivandrum from one office to another and in at least one case the total station tenure is about 18 years and thus, transfer of the applicant without considering such persons with the longest station seniority is violative of the professed norms.
6. When earlier the counsel for the applicant submitted that at Trivandrum one post was abolished and thus there are only two posts, certain details were called for vide order dated 5th December 2008. The requisite information has been made available which shows that no post at Trivandrum was abolished; that the applicant was not transferred on account of surplus as alleged. Since the lone post at Kottarakara became vacant on account of transfer of the incumbent to the said post to Punalur where vacancy arose due to retirement of the incumbent therein on 31st May 2008, the applicant had been transferred to Kottarakara.
7. Counsel for the applicant submitted that the authorities had not considered the fact that a number of officials have been rotating within Trivandrum area for more than a decade whereas the applicant who had entered Trivandrum just two years ago has been shifted. He has also submitted that posting of the applicant to Thycaud would be more appropriate taking into account the fact that he is a physically handicapped person.
8. Counsel for the respondent submitted that as contained in the reply, service exigencies dictated the respondents to have the transfer order passed.
9. Arguments were heard and documents perused. True the applicant would have been posted to Trivandrum only recently. However, when service exigencies warrant posting of a person to a particular place, personal conveniences take a rear seat giving way to the exigencies of service. In this regard, the decision by the Apex Court in the case of State of U.P. v. Gobardhan Lal,(2004) 11 SCC 402, at page 407 refers, wherein the Apex Court has held as under:
"7. 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 and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. 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. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
10. Thus, in so far as filling up of the post at Kottarakara is concerned, there cannot be a better justification for the department. However, the question is whether it is a fact that there are persons with more station seniority than the applicant. In other words, is it a fact that many persons are rotated within a few offices at Trivandrum area and the applicant has been transferred leaving them.
This is for the authorities to consider and justify. Nevertheless, this aspect should for the time being be de-linked from the transfer order as it may take some time for the authorities to verify the same. Hence, interest of justice would be met if the following directions are issued:
(a) The applicant has to move first to Kottarakara where there is none to man the lone post in SBCO.
(b) Respondent No. 2 and 3 shall undertake an exercise of verifying the fact as to whether there are persons working in Trivandrum District for a substantial period as alleged by the applicant vide para 2 of the rejoinder and if the authorities are convinced that such local rotation should also be taken into account as a part of station tenure, consider shifting of such persons with longest station seniority. In that event the applicant could well be brought back to Trivandrum Dist. taking into account the fact that he has been transferred within two years o so at Trivandrum. If such a transfer of the applicant back to Trivandrum takes place within a period of six months, for future transfer, his earlier stay at Trivandrum would also be accounted for.
11. OA is disposed of on the above terms. No costs.
(Dated, the 26th February, 2009) Dr. K B S RAJAN JUDICIAL MEMBER cvr.