Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through Secretary To ... on 17 November, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(orders reserved on 7.11.2014 ).
O.A.NO. 060/00505/2014 Date of order:- November 17, 2014.
Coram: Honble Mr. Sanjeev Kaushik, Member (J)
Honble Mr. Uday Kumar Varma, Member (A).
Daya Nand s/o Sh. Tej Bhan, working as Inspector in the office of Central Excise Division-II, Range V, Commisionerate, Ludhiana.
Applicant.
(By Advocate: - Mr. D.R.Sharma)
Versus
1. Union of India through Secretary to Government of India, Ministry of Finance, Department of Revenue, New Delhi.
2. The Chief Commissioner, Customs & Central Excise, Central Revenue Building, Pot No.19, Sector 17-C, Chandigarh-160017.
3. Additional Commissioner, Office of the Chief Commissioner, Customs & Central Excise, Central Revenue Building, Plot No.19, Sector 17-C, Chandigarh-160017.
4. The Commissioner, Customs & Central Excise Commisionerate, Rishi Nagar, Ludhiana.
Respondents
(By Advocate: Mr. Sanjay Goyal).
O R D E R
Honble Mr. Uday Kumar Varma, Member (A):
Applicant Daya Nand has filed the present Original Application praying for the following reliefs:-
i) That impugned transfer order dated 9.5.2014 (A-1) qua applicant be quashed and set aside being illegal and against the provisions of transfer policy (A-2);
ii) That the respondents be directed to consider the case of the applicant as per transfer policy dated 9.2.2009(A-2);
iii) That the respondents be directed to allow the applicant to continue at the present station;
or The respondents be directed to consider the case of the applicant for transfer to any other native station of his home town i.e. Bhiwani.
2. Facts of the case are that the applicant was appointed as UDC on 4.10.1993 in the respondent department and he was promoted as Inspector on 6.2.2002. The respondents have issued the draft roster of posting of Inspectors to J&K Commissionerate for the year 2014 on 20.2.2014 wherein the name of the applicant was at sr.no.10. Against the said draft roster of posting, the applicant submitted a representation dated 13.3.2014 with a request that he be exempted from transfer and be allowed to continue at the present station. However, without considering the representation of the applicant, the applicant along with others have been ordered to be posted to J & K Commissionerate.
3. The applicant has alleged that respondent no.2 has issued the transfer policy dated 9.2.2009 for Group B Officers (Superintendents and Inspectors ) of Chandigarh zone, wherein in para 4(d)(ii) of the policy that in the absence of willingness/request from Superintendents of the age of 55 years and above, they shall not be considered for posting to J&K Commissionerate, whereas in the case of the applicant who is 57 years of age, the respondents have not considered the said provision of the transfer policy. The applicant has also relied upon para 4(g) of the said policy wherein it has been clearly mentioned that no Inspector of the age of 45 years and above shall be posted to Nyoma in Commissionerate in the J&K Commissioner and Shiplkila in Amritsar. The applicant has also stated that his old age parents do not keep good health and require regular medical check- up/treatment. Hence the Original Application.
4. The Tribunal, while issuing notice of motion to the respondents on 10.6.2014 had stayed the implementation of the impugned transfer order dated 9.5.2014 qua the applicant and this interim order has been extended from time to time.
5. On notice, the respondents have filed written statement wherein they have stated that as per transfer policy dated 10.2.2009, there is no provision that the officer who has crossed the age limit of 55 years and above shall not be considered for posting to J&K Commissionerate. It has further been clarified in para 4(d)(ii) of the transfer policy that in the absence of willingness/request from Superintendent of the age of 55 years and above, they shall not be considered for posting to J&K Commissionerate. The said guidelines are only in the case of Superintendents and not in the case of the applicant as he is working as Inspector. They have further stated that the transfer is an incidence of service. The employer has a right to transfer an employee keeping in view the policy guidelines and the administrative exigency of service and the same should not be normally interfered by the Courts unless and until the same is vitiated with malafides or has been issued in violation of the statutory rules. The respondents have relied upon the following judgments passed by the Honble Apex Court:-
i) Union of India & Ors. vs. H.N.Kirtania ( 1989(3) S.C.C. Page 455;
ii) Gujarat Electricity Board & Another versus Atmaram Sungomall POshani (A.I.R. 1989 S.C. Page 1433);
iii) Shilpi Bose (Mrs.) and Ors. vs. State of Bihar & Ors. (1991(2) Supp. 659;
iv) Union of India & Ors. vs. S.L.Abbas ( 1993(4) S.C.C. Page 357);
v) State of Madhya Pradesh & Another versus S.S.Kourav & Ors. (A.I.R. 1995 S.C. Page 1056);
vi) Laxmi Narain Mehar versus Union of India & Ors. (1997(2) S.L.R. Page 38);
vii) State of U.P. & Ors. versus Gobardhan Lal ( 21004(11) S.C.C. Page 402).
6. They have further stated that with an objective of ensuring smooth administration and equitable distribution of manpower resources in respect of Customs & Central Excise Commissionerate, Jammu & Kashmir, the respondents in consultation with the Staff Associations had prepared the roaster of the officers as per their seniority for posting them to J & K. As per the agreed norms, some Inspectors from top and some Inspectors from bottom from the said seniority roaster and who have never been posted to J&K earlier, are posted to J&K till vacancies in this grade are filled up. The normal tenure in all other Commissionerate is fixed for six years whereas the normal tenure of officers posted to J&K Commissionerate is fixed for one year and after completion of which the officer is normally posted back to the Commissionerate from which he was posted out. Since the applicant is due for transfer to J&K Commissionerate, he has rightly been posted in view of transfer policy. They have thus prayed for dismissal of the OA.
7. The applicant has filed a rejoinder by generally reiterating the averments made in the OA.
8. We have given our thoughtful consideration to the entire matter and perused the pleadings available on record with the able assistance of the learned counsel for the parties.
9. As has been stated earlier, the applicants main ground for seeking relief is violation of Transfer Guidelines in respect of group B Executive officer (Superintendents and Inspectors) of the Chandigarh Zone, specifically 4(d) (ii) of the guidelines which provides as under:-
In the absence of willingness/request from Superintendents of the age of 5 years & above, they shall not be considered for posting to the J&K Commissionerate. On perusal of the Guidelines, we note that this provision has been mentioned under the sub-heading of Specific Guidelines, which is subject to the General Guidelines, mentioned in Para 3 above. Para 3 reads as follows: -
3. General Guidelines:
The following guidelines in supersession of earlier guidelines shall govern matters relating to transfers and postings of the executive officers in the Chandigarh Zone:
a) The inter Commissionerate transfer and postings shall be decided by the Chief Commissioner;
b) The transfer and postings within a particular Commissionerate shall be decided by the concerned Commissioner. The Commissioners of Central Excise shall also decide transfer/postings for the encadred posts of the Superintendents & Inspectors in the Special Economic Zones falling within their jurisdiction. The postings in the CCU and in the offices of the Commissioner (Appeals) shall be decided by the concerned Commissioner with the prior approval of the Chief Commissioner;
c) An executive officer shall not be transferred from ne station to another if left with service of two years or less before superannuation from the government service unless required on administrative exigencies or compelling grounds, to be enforced only with the prior approval of the Chief Commissioner.
In this case, the provision mentioned in 3(c) may be relevant.
10. The instant case of transfer of the applicant has to be considered under 4(d)(ii) of Specific Guidelines read with Para 3(c) of the General Guidelines. The position that emerges in this case in the light of the above is that a Superintendent who is 55 years and above and has not given his willingness /request to be transferred to J&K Commissionerate, should not normally be transferred to J&K Commissionerate. Likewise, any executive officer i.e. any Superintendent or Inspector shall not be transferred from one station to another if left with service of two years or less before superannuation from the government service unless required on administrative exigencies or compelling grounds, to be enforced only with the prior approval of the Chief Commissioner.
11. If the above two criteria are applied, the applicant cannot get the protection of 4(d)(ii) of the guidelines as he is not a Superintendent but he can get the protection of Para 3(c) if he is left with only two years of government service.
12. A reference has been made by the applicant to para 4(g) of the said policy wherein it has been mentioned that no Inspector of the age of 45 years and above shall be posted to Nyoma in J&K Commissionerate and Shiplkila in Amritsar. While there is no denying the existence of this provision, it only implies that the applicant cannot be posted in Nyoma in J&K Commissionerate. However, he can be posted anywhere else in J&K. This plea therefore, does not help the applicant.
13. The other argument advanced by the applicant that similarly situated persons have been accommodated has some merit provided the applicant is able to establish conclusively citing specific cases. We are afraid we have not been able to locate in the pleadings any specific instance of this discrimination apart from a general assertion to this effect. This situation does not help the applicant.
14. Our view finds support from the law laid down by the Honble Supreme Court in the cases of Shilpi Bose and others. Vs. State of Bihar and others, (1991) 2 SCC(Supp.) 659); State of Madhya Pradesh and another vs. Shri S.S.Kourav & Ors (1995(3) S.C.C. Page 270); National Hydro Electric Power Corporation Ltd. Vs. Shri Bhagwan & Another (2001(8) S.C.C. Page 574) and Kendriya Vidyalaya Sangathan versus Damodar Prasad Pandey and others (2005(1) R.S.J. Page 328). Again, the Honble Apex Court has again reiterated in the case of State of Haryana & Others versus Kashmir Singh & Another (2010(4) R.S.J. Page 766) that transfer ordinarily is an incidence of service, and the Courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal.
15. In view of the above discussion, we find no legal infirmity in the impugned order. There is no need for any interference in this matter. Accordingly, the OA is dismissed. Interim order granted on 10.6.2014 automatically stands vacated. There is no order as regards costs.
(UDAY KUMAR VARMA) (SANJEEV KAUSHIK) MEMBER (A). MEMBER (J) Dated:- November 17, 2014. Kks 2 9 ( O.A.NO. 060/00505/2014 ) (Daya Nand vs. UOI & Ors.). (O.A.No.060/00505/2014) 1 (Daya Nand vs. UOI & Ors.)