Central Administrative Tribunal - Kolkata
Dr Swapan Kr Biswas vs Education on 17 September, 2019
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IN THE CENTRTAL ADMINISTRATIVE TRIBUNAL, CALCUTTA BENCH, CALCUTTA Application under section 19 of the Administrative Tribunal Act, 1985 Title of the Case :
O.A. No. 351/ 000 2 t ^ of 2018
In the matter of :
Dr. S.K. Biswas, son of Late K.R. Biswas, aged about 56 years, residing at Shadipur, Ward No. 14, District - South Andaman, Port Blair, Pin - 744106 working as Associate Professor in Jawaharlal Nehru Rajkeeya Mahavidyalaya, Port Blair, which is the Government College under Andaman & Nicobar Administration at Port Blair.-^y/og.
Applicant
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1. Union of India through the Secretary, Ministry of Human Resources Development, Government of India, Sashtri Bhawan, New Delhi-110001.
2. The Lieutenant Governor, Andaman & Nicobar Islands, Raj Niwas, Port Blair, Pin - 744101.
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3. The Chief Secretary, Andaman & Nicobar m
Administration, Secretariat, Port Blair, ii1 iS'5» l Pin-744101.
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4. The Secretary, Higher Education, Andaman & I Nicobar Administration, Secretariat, Port Blair, Pin-744101.
5. The Deputy Secretary (Higher Education), .1 I Andaman & Nicobar Administration, Secretariat, Port Blair, Pin - 7441101. m m t ■;
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6. The Principal, Jawaharlal Nehru Rajkeeya ml Mahavidyalaya, Port Blair, Pin - 744101.
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7. Dr. R.V.R. Murthi, Associate Professor «&• (Political Science), Mahatma Gandhi Government College, Mayabunder, District - North and Middle •IMS m Andaman, Pin-- i?
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0. A.No.351/814/2018 Date of Order: t ^ Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member SWAPAN KUMAR BISWAS VS.
UNION OF INDIA & OTHERS [EDUCATION(A&N)] For the applicant : Mr. P.C. Das, counsel C. T /' -
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For the respondents R. Haider, couhsef^ \
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Bidisha Baneriee; Memtier-(J) j? 3
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The applicant in this^fA.fhas^ou^gh^forthe following reliefs:
ffvu \ i \ ,.^r..... i "(i) To quash and/or sefyside the impugned order, of transfer being order no.1656 dated 2$>p5.20i8'jnjespect of,the applicant whose name appeared in serial no,5 ahd Hthohadfteen transferredfrom6aw0harbl Nehru Rajkeeya Mohovidyalaya, ^Pqn^Blqir 16* Mahdima-^Qapdhi Government College, Mayabunder which is'absoluiely-aga/hsTthprules and also against the views taken by the Administration a'ppearinQ'Th'Annexure A-ll of this O.A.;
(77/ To declare that transfer of the applicant from Jawohorlal Nehru Rajkeeya Mahavidyalaya, Port Blair to Mahatma Gandhi Government College, Mayabunder is otherwise bad in law and illegal because the Jawaharlal Nehru Rajkeeya Mahavidyalaya, Port Blair and Mahatma Gandhi Government College, Mayabunder are 2 different establishments and there is no inter-transfer liability between the 2 colleges and also it is against the condition of the appointment order which has been issued by the Administration in favour of the applicant being Annexure A-3 of this O.A.;
(Hi) To pass an appropriate order directing upon the respondents authority to retain the applicant at Port Blair in Jawaharlal Nehru Rajkeeya Mahavidyalaya after setting aside the order of transfer and as there is no inter-transfer liability between the 2 colleges, therefore, under any circumstances the post of the applicant is not transferable."
2. He has contended that he was appointed to the post of Lecturer in Jawaharlal Nehru Rajkeeya Mahavidyalaya (JNRM) vide appointment order No.2433 dated 29.07.1995 and granted regular appointment vide order No.3048 dated 26.08.1999 to the said post of Lecturer w.e.f.
10.05.1999 with the approval of UPSC. He has resisted his transfer to Mahatma Gandhi Government College(MGGC), Mayabunder on the ground that Department of Higher Education has introduced the policy of preparation of common cadre of the Lecturers of the two colleges and, therefore, the Lecturers of the colleges were not inter-
transferable. In support-^f1 his contention,th'at he had no transfer AV- ' S. liability to MGGC, Mayabunder,\he would place^the, decision of this ^ //'K \ \ i / / -a 4 \ Tribunal in O.A.No.75/A,N/'20iKrerideretJ*on<j30.04v'201'2 in respect of c EI one, M. Seleyam'Of MGGC,^Mayabunaer^and submit^th^at pursuant to vu V^/!\\y the order a sneaking order wasJssued^bn^H.OS.2012 clarifying that ' ~ / MGGC and JNRM wefe^two'different.esfablisfunents and seniority of '' / Lecturers of two coHeges' were_not_maintained separately in their respective institutions. He would further refer to a decision rendered in O.A.No.351/53/2014 where he was one of the applicants and had challenged the common cadre of both the colleges, but the contention was rejected vide speaking order dated 12.09.2017.
By an order dated 25.05.2018 he was sought to be transferred from JNRM, Port Blair to MGGC, Mayabunder allegedly in violation of the Recruitment Rules and the observations made by the Andaman & Nicobar(ASiN) Administration regarding both the colleges. His . ---^1 / •/ f l ■ V/ / / representation dated 05.06.2018 yielded no fruitful result. The ■ / / / applicant wouid cite the observation made by A&N Administration that / / both the colleges were separate establishments. ¥/ y
3. Per contra the respondents while refuting the claim that the Lecturers of two colleges have no inter-transfer liability would submit that a common cadre for both the colleges was formed for optimum utilisation of human resources in higher education in the Islands. When MGGC, Mayabunder had a sanctioned strength of Lecturers as 21 ,the actual strength was 9, which was not conducive for the pursuit of academic excellence, ...hefice; !with"1approval of the Hon'ble ■'.•Bp S Lieutenant Goverpor^a common^ cadre^ias formed vide order dated v s/% \ n / / ^ \ l1',. ;-li >. ^ f /^% 12.12.2000. Since thepJformcifio!fiv^f^!fcomifion cadre\ no claims or i objections were1 received until/20T2: ^Aftef implementation of the .,-v / ' \ %/'#' ^ i common cadre a provisionai'seoibrityllist'bf^teaching staff of JNRM and N. / MGGC was issuedvOn^22V10.20-12/ as no.objectibhs we're received in that ' • '\. -■■■ s s ■■■. y regard. However, as soon as the provisional seniority list was issued Sri .r'"
! M. Selvem, Assistant Professor of MGGC, Mayabunder filed O.A.No.75/AN/2002 requesting his transfer from MGGC, Mayabunder to JNRM, Port Blair. The O.A. was disposed of with a direction to transfer him from MGGC, Mayabunder to JNRM, Port Blair which order when assailed before the Hon'ble High Court was dismissed. After the transfer of Sri M. Selvem, Assistant Professor from MGGC, Mayabunder to JNRM, Port Blair, 5 Assistant/Associate Professors of MGCC, Mayabunder filed O.A seeking transfer to JNRM, Port Blair. The said 4 ./£ '3 ■v/ O.A. was disposed of with a direction upon the respondents to consider their transfer to JNRM, Port Blair. In compliance of the directions of the =. t t Tribunal, vide orders dated 27.08.2012 and 20.11.2013, the transfers i were effected.
The respondents would further contend that the applicant was appointed as Lecturer in JNRM w.e.f. 10.05.1999 with the approval of the UPSC vide order No.3048 dated 26.08.1999 with a clear stipulation that in respect of matters not specified, he would be governed by the relevant rules/orders in force from time to time in respect of Government servants of ihis^ categofyc?serying%under Andaman & >i * S-*v' 0 Nicobar Administration. Since at that-tlme the transfer policy issued v vide order No.2140 dated 23.04;'1983'-existed , the ^applicant was i:
governed by the^said trahsfefVp'o'KcyT'Vfhe. re'spondehtstwould further ■ //r-\vv^:; I submit that common .Recr.uWmenf:..Bule?for^the post" of Lecturer in //• JNRM, Port Blair and MGGC, Mayabundeiv was notified vide / f /■ notifications dated ' 08.03-.2005(Annexufe xR-2 to reply) and 17.08.2012(Annexure R-3 to reply) The respondents would reiterate that common cadre order was issued on 12.12.2000 and the draft inter se seniority list of the Lecturers of both JNRM as well as MGGC were formulated and circulated vide letter dated 22.10.2012. They would further contend that in terms of directions in O.A.No.351/53/2014 the applicant's representation dated 10.03.2014 was disposed of with a speaking order dated 12.09.2017 and that the transfer order was issued 7r7 '1 in compliance of the directions of this Tribunal dated 27.08.2012 and
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20.11.2013.
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4. At hearing, in support of their contentions Id. counsel for the respondents would invite our attention to the order No.2140 dated 23.04.1983 issued in supersession of all previous orders in order to introduce a uniform general transfer policy which clearly mentioned that the concerned Head of Departments should maintain lists of all persons who have been in the particular posts for more than three years. Ld. counsel would, therefore, contend that the Lecturers of « ■: \ l X ^ JNRM have no vested righHoVemain af PortfBliir for ever. The order \ <> ;:Z-
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reads as under:- >-\ "(1) In al) cotes the dncef^?Mi^rmg,authorityfshuld generally try to ensure that7robody ^emainstintaf$^cuiar-trpnsferrqble^post (including a particular desk in the\aseqpi^i^^n^l^8ff}ibr mortthan three years.
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The concerned Heads o%Debartmen ts/Offices should "'maintain lists of all persons who have^be^^ii^'he^.odnticu1ar,Ddsts^for morehhan three years. Copies of 'these/Ijsts^stibuld be sent tdrffhi*nexhsuperior authority, viz. concerned Secretary/Chi€fSecretary or^Lieutenant Governor as the case may be and updated evefy^udrier. Whe'never dnyJtransfers are made in respect of the relei......\fnqt legible) caiegoryrpersons should not be retained on this list without being fransferred'^excepCfor special reasons....... (not legible) the prior approvai'ldf'themexf'superior authority. This need not, however, be applied to personal staff or to drivers of vehicles etc. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) A fair rotation should be attempted in regard to outstation posting. Persons should be sent to outstation preferably on first posting or on promotion. No one should normally be required to stay in an outstation for more than three years even if he is willing to continue, he should not be retained in the outstation without (except where Lt. Governor is the transferring authority) the approval of the Chief Secretary.
Further, whenever a posting is to be made to an outstation, persons who are at Port Blair should be considered first in the order of their duration of stay at Port Blair. However, there should not normally be any objection to a person being transferred from one outstation to another in a different island, rather than coming back to Port Blair, if he has no objection and if his conduct was good."
/ 6 1.0 i Ld. counsel would further refer to the Recruitment Rules Issued on 08.03.2005 to contend that the common Recruitment Rules govern the recruitment to Group A gazetted non-ministerial posts of Lecturer of various discipline in the two establishments of JNRM, Port Blair and MGGC, Mayabunder. Ld. counsel would further place Recruitment Rules issued on 17.08,2012 which governed the two colleges and a notice dated 22.10.2012(Annexure R-4 to reply) inviting claims and objections from the Assistant/Associate Professors of JNRM & MGGC against common seniority list for the purpose of promotion to the \ y\ \ ^ L ^ posts of Lecturer. The Idsfeounsel wduld.fhext place the order dated .V-v r.> 28.03.2017 in 0^^0.351/000^3/20X4 di.re'cting disposal of representations fivej(applicants,^dludintg thevpr^sent applicant • r™ |1 C 1 iVr* against the common senioritylrstr B { Cj \G %y// /
5. By way of rejoinderlhe^applicants^ftaye-placed the*following:-
(i) An order da'tedMo'jOS.lOl^issued^pursUant tp^the directions in v \ V </•?'* J If-** S/ O.A.No.37/AN/2013 in-cas^e'of Dr. Sainaba vs. Education, where the answering respondent being Secretary, Education had emphatically declared as under:-
"1. That, JNRM College. Port Blair and MGG College. Mavabunder are two different establishments having their own sanctioned strength and the posts are filled by UPSC separately os per the roster prepared by the respective Institutions as per their own sanctioned strength.
2. In pursuant to the UPSC's recommendation vide its letter No. F.4/12(2)/98-ADT.3 dated 10.05.1999, Dr. Sainaba Goldar was appointed to the cost of Lecturer (Hindi) on regular basis with the approval of the Competent Authority out of the sanctioned strength of Lecturer (Hindi) in Mahatma Gandhi Government College. Mavabunder. As such. Dr. Sainaba Goldar has become the permanent employee of the said Institution (MGG College. Mavabunder).
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7. Since, the JNRM College, Port Blair and MGG College, Mayabunder are two different establishments having their own sanctioned strength, as such the posts of each College is being filled-up separately through the UPSC as per the roster prepared by the respective Institutions according to their own sanctioned strength. The transfer policy dated 30.07.2007 is meant for those employees who are recruited to common cadre through common recruitment process like Amalgamated Clerical Cadre, Departmental staff like Agriculture, Fisheries etc. It does not and cannot be made applicable to employees recruited and appointed for specific institutions. The attempt of applicant concerned to bring herself in ambit of this transfer policy is therefore misleading.
xxx xxx xxx xxxxxxxxxxxxxxxx it is hereby informed to Dr. Sainaba Goidar, Assistant Professor (Hindi), Mayabunder that her request for transfer her from MGG College, Mayabunder to JNRM, Port Blair cannot be acceded to in the public interest, especially in view of the fact that both the faculty members have applied for transfer which will amount to closure of Hindi department in the MGG College. Mayabunder and future of approximately 300 students who II have opted for the course wilibe at Stake.
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(ii) An order datedO19.03.2pi8^4nnexu%R-3vto the rejoinder) providing information un^erRTI^et/ J:h.af eJSrwjuc \r\rr i * -f#-\ r tnn rt + i Art k ffipws rir% rip.rrsm common seniority rvi r\ CQnir*ri+w IT* % ih-
list was prepared-after c
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(iii) There Was a .proposal jriitiated 0^27.1.1.2000 for merging the two cadres when the Secretary'cdm DE observedlhat'A. J 1\ X. I*-
>\XV / \ '••• ■ / /• r' "xxxxxxxxxxxxxxxxxx,, Thete-.'Was no r commonality between these two institutions and the.present problems Has stdrte(Jebecause of the two actions as SI.No.18t 2 above. '^The^probleffnffunhergoing to be complicated as in future there would be intenseliiigafion for determining the inter-se-seniority among teachers, if these teachers join JNRM college, Port Blair. This will adversely affect the academic atmosphere in M.G. College, Mayabunder as well as JNRM Port Blair. Only handful of ligating teachers stands to gain at the cost of thousands of students who stand to loose tremendously. The social impact of the only undergraduate college in that part of island not performing to its full potential will be tremendous, It will not be exaggeration that if we allow this to continue we may ultimately loose M.G. College, Mayabunder."
(iv) The relevant Office notes that read thus:-
"xxxxxxxxxxxxxxxx On the basis of the common cadre order, a draft common seniority list was published for inviting objections on 12.10.2012, but it was never finalised."
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s-/ "Finally, the Administration with the approval of the Hon'ble Lt.
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t- .. Governor(Administrator), A&N Administration has transferred Shri M.
Selvem, Assistant Professor from MGG College, Mayabunder to JNRM College, Port Blair in compliance of the Hon'ble CAT & Hon'ble High Court Order. The Hon'ble Lt. Governor has approved the case of Shri M. Selvem only and further desired that "this should not set a precedence"(kindly see para 81/n on page 27/N)."
XXX XXX XXX "The Hon'ble High Court, Calcutta Bench at Port Blair adjudicated the direction of Ld. Tribunal relying on:
• The length of service of the respondent which is not true.
• Common Cadre which has not been enforced in terms of transfer. The same is in existence in terms of promotion and Recruitment Rules as per UGC norms that are mandatory for all UG and PG College.
• Common,Transfer policy circular which is not applicable to the teadfing faculty gfjhe colleges'under-Andaman and Nicobar v % Administration'. -T } -vr S,.7
ThiisHt is a^fcqs^fb^goln^gffpf^SLPjn the Hon'ble Supreme Court.
Hence, ifxapproved we rrhgySbtaJif( theiconsidered views/suggestion from the Law Department of this'Administraiiphhgf^ also from the Govt. Pleader in legal pointpfviewih^peji^si'lnstdn'ce:" /f-y/""
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6. Ld. counsel'for'theTespondents-ori the 'ebntrartf, would invite our \ % / / attention to a decision bf4he";Hon'ble ,HigH Cpuft in WPCT No.738/2012 about inter transferability of the teachers of MGGC and JNRM. The order is extracted hereunder with emphasis for clarity:-
"It is true that the Policy Guidelines for transfer are directory and not mandatory, and cannot be legally enforced. However, arbitrariness strikes at the root of Article 14 of the Constitution, Arbiratriness and discrimination warrants judicial interference. If exigencies require, an employee may be transferred earlier or kept in a particular place of posting for a longer period. However, posting one person at the same college for 17 years is arbitrary and cannot be justified under any circumstances. The respondent has been discriminated against and kept posted in Zone-B notwithstanding his personal difficulties, including serious ailments of his aged mother, which require specialized treatment.
We agree with the finding of the learned Tribunal that the service of the teachers of the two institutions are inter transferable. Transfer of the respondent has wrongfully been declined on the erroneous premises that he r. i >:;
n j 9 .V is a permanent employee of MGGC even through employees of MGGC and JNRM constitute a common cadre.
The earlier order dated 30th April, 2012 of the learned Tribunal having assumed finality, the writ petitioners were bound to consider the prayer of the respondent as per the transfer policy. The prayer of the respondent could not have, at this stage, been rejected on the ground of the respondent's posting being permanent."
7. Having heard the Id. counsel for the parties and having perused the materials on record and the findings of the Hon'ble High Court which has set right the dispute whether the Lecturers of the JNRM & MGGC "are inter transferable" which binds us as a decision of a superior forum, we have no pther alternative but to hold that the claim of the present applicant^tiW dup!:to,h]^ppoihl;meh\at JNRM,. Port Blair .X07X "
he cannot be transferred1'fbi MGGc/May&bunder,- \is not tenable.
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Therefore, the claim failsr!-^^^^"*| M
8. is However,fwe note that^n^receht^past^roposaTlias^een initiated ...
'i / 'I \ 'M# i on 29.01.2019\ to . canceT the Common"Gadre, Order No.4688 of \ V' / \ j-
/ 12.12.2000. It is nbt fbrthc^ing'5?Rethe;f^the>prqiPOsaI has been given 'X 'V X /' <n,. _jnf a final shape by the competent juth'qrjty^The merits and demerits of Common Cadre have been divulged as under:-
"Demerits of Common Cadre :
1. Reduction in workforce ofMGG College Mayabunder;
2. Increase in students inflow in Port Blair;
3. Discontent among the population of N&M Andaman due to semi functional institution;
4. Closure of several course in MGG College leading to withdrawal of affiliation for these courses by Pondichery University;
5. Increase litigation among teaching staff for determining inter-se-
seniority;
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6. Encourage other group of employees to seek their transfer to Port Blair.
f Merits of withdrawal of Common Codre Order:
1. Availability of fully functional college in northern part of the island with enable population;
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2. Save JNRM, Port Blair from further crowding;
3. Discharging the social obligation of providing education need in catchment area;
4. Stop constant litigation from teachers for posting.in Port Blair 'i
5. It will reduce overcrowding of students at JNRM, Port Blair;
6. It will also put full stop to rampart litigation filed by the Lecturers of MGG . College, Mayabunder for transfer from MGG College, Mayabunder to 1 JNRM, Port Blair;
7. Affiliation of the MGG college will be withdrawn, in the absence of sufficient number of regular teaching staff."
t ' Therefore, before we part, ^we4W,quid also direct the respondent
- \ i/ ■« authorities to issue^appropri^t^ad.ingijstratiyB order to clarify their rt stand in regard to't'ransfetrCli'a'bilijVbf/helilturers.foflNRM, Port Blair and MGGC, MayabundelirtiraiijgfflWffBrdetision of thte Hon'ble High i ® ^ I Court, as enumerated supf^apS^^ViS^fiquent administrative order, to put an end t6. the/neyer, ending dispute*and en^dlessilitigations of the i- ,;.s \%'''^ 7 j : Lecturers of these tv^o sGoHe'ge;s^asswell^a§t6 g\\/e ^quietus to the issue.
i No costs.
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> (Bidisha Bar/erjee)
(Dr.Nandita Chatterjee)
Administrative Member Judicial Member
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