Central Administrative Tribunal - Delhi
Union Of India vs State Of Bihar Reported In Air 1991 Sc ... on 19 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI
OA No.2730/2013
Reserved on 31.03.2014
Pronounced on 19.05.2014
HONBLE SHRI A.K.BHARDWAJ, MEMBER (J)
Shri Anil Kumar Gupta
S/o Late Shri K.K.Gupta,
R/o Flat No.D-17, Type-IV,
Delhi Administration Flats,
Karkardooma, Delhi-92.
(By advocate: Shri Ajesh Luthra)
VERSUS
1. Union of India,
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. Govt. of N.C.T. of Delhi,
Through the Chief Secretary,
5th Floor, Delhi Sachivalaya,
New Delhi.
3. The Principal Secretary
(Services)
GNCT of Delhi,
7th Level, B Wing,
Delhi Secretariat, I.P.Estate,
New Delhi.
4. The Directorate of Education,
Through its Secretary,
Govt. of N.C.T. of Delhi,
Old Sectt. Delhi. Respondents.
(By advocate: Shri R.N.Singh and Ms.Ritika Chawla)
ORDER
The applicant has filed the present OA against the Order No.14020/01/2013 UTS-II dated 23rd July, 2013, whereby he has been transferred from GNCTD to Lakshadweep on the following grounds:
A Because the impugned transfer order is highly unjustified and arbitrary.
B. Because despite best efforts, the applicant is not in a position to undertake journey in order to join at Lakshadweep Islands due to his physical conditions aggravated by other health problems.
C. Because the aeroplanes do not have such seats on which applicant be accommodated.
2. In the counter reply filed on behalf of the respondents, it is explained that as per the extent DANICS Rules in force, any promotee officer of DANICS is liable to serve at least for a minimum tenure of two years in any of the outlying UT segments under the administrative control of the respondents. According to them, an application dated 31.07.2013 submitted by the applicant for deferment of his posting for a period of one year has been considered and rejected. The respondents have relied upon a catena of judgments of the Honble Supreme Court i.e. Mrs.Shilpi Bose & Ors. Vs. State of Bihar reported in AIR 1991 SC 532; State of UP & Ors. Vs. S.L.Abbas reported in (1993) 4 SCC 337; State of UP & Ors. Vs. Goverdhan Lal reported in 2004 (3) SLJ 244 SC; as well by the Honble High Court of Delhi in Sujata Kohli vs. High Court of Delhi reported in 148 (2008) DLT 17 (DB). They have further averred that the Court should not interfere with the transfer orders and also placed reliance the judgments of the Honble Apex Court in S.C.Saxena vs. Union of India & Anr. reported in 2006 SCC (L&S) 1980 and in Sukhdev Sidhu vs. State of Punjab reported in 2003 (4) SLR 12. According to them, once an order of transfer has been issued by the competent authority, it is incumbent upon the transferee to abide by the same and join at the place of posting.
3. In the rejoinder, the applicant has pleaded that the respondents themselves have deferred the transfer orders in respect of two officers i.e. Shri J.P.Aggarwal and Shri Jai Bhagwan, while order of transfer of Shri Narender Singh has been cancelled. It has also been mentioned in the rejoinder that one Shri Rajender Prasad, Entry Grade Officer, was also transferred from GNCT of Delhi to Lakshdweep, but since he is a heart patient, the respondents have cancelled his transfer. According to the applicant, the transfer of Mrs. Satnam Dhamija was also cancelled on account of medical ground. It is also submitted in the rejoinder that the applicant is a case of coronary artery disease and has undergone coronary artery bypass surgery on 27.11.2013.
4. During the course of the arguments, learned counsel for the applicant submitted that the applicant has been advised to take regular medications and follow general instructions given to him about physiotherapy and other exercises. According to him, the applicant has been advised to stay in a city where facilities for cardiac treatment are available. Relevant excerpt of the prescription reads as under:
He has been advised to stay in a city where facilities for cardiac treatment are available. Sd/-12.022013 Dr.ZS Meharwal, Director & Coordinator, Deptt. Of Cardiovascular Surgery, Fortis Escorts Heart Institute, Okhla Road, New Delhi.
Further, while securing second opinion from our Government Hospital, GB Pant Hospital, New Delhi, on 13.02.2014 there the Medical Exerpt has advised me as under:
Avoid undue exertion. Needs regular follow up in Cardiology OPD.
5. The learned counsel also placed reliance an order of the Tribunal passed in OA 2657/2013. Relevant excerpts of the order read as under:
5. In the aforesaid circumstances, in my considered view, the general principles of transfer cannot be applied in his case in a mechanical manner. When the Respondents are well aware of the condition of the Applicant, they cannot just ignore it in an unconcerned manner. After all, humanitarian considerations are not excluded in the cases of transfers and postings. It is also not the case of the Respondents that the presence of the Applicant in DD&DNH is unavoidable.
6. I, therefore, allow this OA and quash and set aside the impugned letter dated 21.01.2013 transferring the Applicant to DD&DNH as well as the Respondents letter dated 28.2.2013 advising the Respondent No.2 to relieve him to join there. I also direct that the Respondents shall not transfer the Applicant to any such far flung stations against the medical advise and in the absence of a certificate from a competent medical authority that he is able to undertake journeys involved in such transfer and enough medical facilities for the treatment of the disease being suffered by him are available at whichever place he is posted.
6. With the above directions, this OA stands disposed of. There shall be no order as to costs.
6. Learned counsel for the respondents reiterated the submission made in the counter reply that the applicant has no legal right to remain posted at any particular place.
7. I have heard the learned counsel for the parties and perused the records. The respondents are correct in making the submission that the transfer is an incidence of service and an employee working on transferable post has no legal right to remain at any particular place. However, the plea raised by the applicant in the rejoinder could not be rebutted by the respondents and no request was made on behalf of the respondents to file sur rejoinder to meet the stand taken in the rejoinder. In the absence of any plea on behalf of the respondents regarding the submissions made in the rejoinder (ibid), it is difficult to record a finding regarding the correctness of the same. In OA 2657/2013 decided 0n 04.10.2013, this Tribunal viewed that all humanitarian considerations are not excluded in the case of transfers and postings.
8. In the present OA, when the applicant himself stated in para 4.11 that he needs to stay at Delhi only for one year and in the rejoinder he has set up a case of coronary artery disease, noticed hereinabove, i.e. a ground not taken in the OA, the respondents could not get an opportunity to rebut the same. Had the aforesaid stand been taken in the original application, the respondents could have an opportunity to rebut the same. In the event of non-rebuttal of the same I could have accepted it and taken a final view in the matter. The pleas taken by the applicant in the rejoinder cannot be given such credence as those taken in the original application. In normal course, even the rejoinder cannot be filed as a matter of practice.
9. In the circumstances, I dispose of this OA with a direction to the respondents to examine the plea regarding his ailment taken by the applicant in the rejoinder, as also the pleas regarding retention of other employees and cancellation of certain transfer on medical ground and to re-consider the transfer of the applicant, as directed in terms of the impugned order dated 23rd July, 2013. It would be open to them to arrive at their own conclusion about his physical and medical condition by subjecting him to medical examination while reconsidering the order of transfer. In case the plea raised by the applicant in the rejoinder is found correct, the respondents would post him only at such place, where sufficient medical facilities for the patients like him is there. Normally, first an employee should join at the place of posting and then espouse his difficulty at the new place of posting for consideration of the competent authority in the Department, but since in the present case the difficulty expressed by the applicant pertains to his travel between Kochi to Agaiti on account of physical and medical condition, till a decision is taken by them and communicated to the applicant, the respondents would maintain the status quo regarding his posting at the present place of posting.
10. The OA stands disposed of. No costs.
(A.K.Bhardwaj) Member (J) /kdr/