Central Administrative Tribunal - Mumbai
Sunita K Lungare vs D/O Post on 2 January, 2023
i.
Oo Central Administrative Tribunal Mumbai Bench, Mumbai ra ya a & % pn Me, ba > Bd t.
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J} Sunita kK Lungare, Age 32 years, working as Postal Assistant in the Office of Jintur S.O., Parbhani Division residing at: At Post Panbhosi, Taluka Kandhar, Dist Nanded, 4317 -
. Balaji A Ashok Wakale age 28 years in the Office of Pathri Postal As sistant, in th he * pifice of Palam S.O., Parbhani Division and Residing g at: At Post Andhori Taluka Ahmedpur, Dist- Latur~ Axjun R. Matore, age: 31 years, Worker g as Postal Assistant in the Office of Rar . >O., Parbhani Division and Residing at: Sadalapur, Taluka Falam, Dist Parbhani~ 431 720.
tte OAL No Aus/2o18 & OQsianss we eyes SOLD eres o. Wayanan M, Warharie, age <u ye 3 Naw? ™ | -- end be Day CBey ante ge Working as Post sistant im tn e Office « of Part Sy "4 Teer arar: ore mle, Parbhani Divisior: ane Residing at: Nhecduda, Taluka Pathri, Dist: Parbhani- 4 OG *, Dashrath Ganpatrao Warhade, Age 29 years Working as Postal 4 Ass sistant in 'the Office of Ashti S.0., Par bhani Divisk on and _ Residing at: At Bae ods ula, Post and Taluka Pathri, Pist: Parbhani-m 431 506.
. Applicants (By Mr. V.A. Nagrani, Advocate} Versus lo. The Union oF Ind a.
ho
3. The Superintendent of Post Office, Parbhani Division, Parbhani-431 401. 4, The Superintendent of Post Office, Jalgaon Division, Jalgaon-425 001.
3. The oupenint tendent of Post Office, Osmanabad Division, Osmanabad-413 501. » Respondents (By Mr. Rishi Ashok proxy for Mr. BK. Ashok, Tre applicants, who are seven in number have fled the present OA under Section 19 of the Administrative Tribunals following reliefs:-
"a. This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the impugned orders dated 62.05.2019 and 10.06.2019 to qua the Applicants, b. This Hon'ble Tribunal may further be pleased to direct the Respondents to retain the Applicants at Parbhani Division in their respective Post Offices and restore the order dated 26.10.2016 and 08.02.2018 qua the Applicants, c. ie be provided for, and circum: ta ces 'ofthe case be passed".
a. Brief facts leading to the filing of the present OA are that the applicants were initially appointed aS Postal . Assistants in Jalgaon Division/Osmanabad Division in the year 2007 and 2O1]) respectiv After completion of five years of wi ot 4 ae Y ons Fevens 5 Raped exe PEN ay ' ~ '1 amc posted in Jalgaon Division /Osmanabac Division, however, their native place is Parbhani. As aN a fee?
the Parbhat then, They" were "placed m the bottem of the completion of five years of service, they made applications for Intra Regional Transfer from Jalgaon/Osmarnabad Division to Parbhani Division on persenal/spouse grounds which were duly PAnei cia wore sic an ryy Stal by th x yy a4 ole = ri¢ci comsidered and approved by the respondents vide their order dated 26.10.2016 based on the seniority 4 of the waiting list number as they were fulfilling the requisite conditions for transfer under the said Rule. in the said order, it was also stated that a declaration be obtained by the officials that they will accept the seniority in the new unit on transfer under Rule 38 and that they will not have any claim to go back to the old unit, in response to which, they gave such. declarations. After being relieved from the Jalg: /Osmanabad Division, they j joined ion in May, 2017 and Feb, 2018 working in Parbhani Division since seniority in the cadre of Postal Assistant in 4 By es a bhani Division despite being senior as they had 4S given an pagename of losing their seniority. That , alter working for more than twe years on transfer in Parbhani Duvision, they were shocked to receive the +" 4 oy eo 78 ey 4 INE Pvt Yee eae a orders dated 02.05.2019 and 10.06.2019 whereby a fos tory " ', a nyo 4 eyed aye ~ 4 the Competent Authority has ordered to cancel the ae car) : $0 spay > eet wtieet eyo eyed Riule S8 and the transfer order issued vide order dated 26.10.2016 and03.05.2018 and following the said arder, the respondents have issued transier and posting orders transferring them back to their previous division without specifying any reason for cancelling the transfer arders ordered under Rule
38. Being aggrieved by the order of cancelling the Intra-Region Transfer under Rule o&, they approached this Tribunal by way of the present OA, wherein interim directions were issued and the applicants were protected during pendency.
3. Respondents have filed their counter affidavit and submitted that Regional Office (RO), Aurangabad. had approved Intra-Regional Transfer | under Rule 3 ostal Manual i im. respect of 20 ; officials vide Mem No.AR/StafflV /RULE-38/INTRA 7 26.10. 2016 and further ins als "vide Memo No. AR/Staff 2018 dated 03.05.2018 with | ling the required conditions,.
ns will issue posting orders and communicate to the concerned for further relieving by ensuring the instructions/conditions mentioned below:-
ee g r shall be issued as per waiting lis! t position wat. availability of VACAMCY by the Heson and subject to availability of Category wise vacancies in the inward Division. _ i. fromo case the posting /relief should Recs a TP eter Say sf a be affected "out af turn' wey Pt A EET Ee Sy ey ae hy os ~ Wi. The officials can be accomiocated without disparbing the vacancy position iv. The officials may be relieved only after receipt of _ pes ing order from the Division concern vy. A declaration to the effect that he accepts the seniority in the new Unit on transfer under Rule 38 and that, he will not have any claim to go back to old unt, should be obtained before an official is transferred under this rule and kept in his/her service book".
In accordance with the abovementioned Memos dated 26.10.2016 and 03.05.2018, concerned Divisions issued transfer /posting orders. Out of 42 officials, 27 officials joined in the new Divisions and 1S officials yet to join in new Division.
4. it is further submitted that Recruitment Section, Circle Office Mumbai deals the issue of Division-wise allotment of selected candidates of Direct Recruitment of Postal Assistant/Sorting Assistant for the year 20138 and 2014. While finalising the position of unfilled vacancies of the 3% te aa ees eye 43 nal recruliment to all waithsted candidates, the 3 4 ae ae ees y 3 eit 2 ; Fad os Regions/ Unite were asked to submit imal position x tet reeves OES on ary ony fes vide Circle Ofhice Mumbai & Letter No. Rectt/2-1 /PA-SA/13-14/WL/2018/0 ata peced Yo EF IP eS e epee ee ~ teyer RP dated USAF 2018. [kk was informed by RQ, Aurangabad that they have excess vacancies due to abolition of posts and adjustment of transfer und ler : 4 Qo . J ewig ste te ye " a fT At cpeaar Rule 38 and therefore requested not to allot any a candidates to Nanded and Parbhani Division from I waiting Hst. Meanwhile, Supdt. of Post Offices Parbhari and Nanded Division had intimated RO, Aurangabad that there were no vacancies for direct recruitment candidates for the years 2013 & 2014 as candidates transferred under Rule 38 had joined in the Division. Hees the matter was taken up IIl/Rectt/PA-SA/2-13-14 dated 28.08.2018. The RO, Aur rangabad informed Circle Office, Mumbai.
that they have eXCess. vacancies due to abolition of posts and adjustment of transfer under Rule 38 and therefore requ sted not to allot any candidates to Nanded and Pal hani Division from waiting list.
The said proposal. of Aurangabad Region was examined at Circle Office and it was noticed that Aurangabad Region has approved transfer under Rule 38 after imtimating the vacancies for recruitment of Postal Assistant. Transfers under $+ - co aentr res ty x o y cs Rule 38 against the already reported vacancies were epee et rs " aN Pe + open} s ANY ren ct mot in order. Hence, Aurangabad Region was cancellation of transfer orcer, the officials whe joined in their new place of posting have to be reverted/accormmodated to their parent divisions from where they had been transferred, but it is noticed that sufficient vacancies to accernmmodate the officials are not available in their parent Divisions as reported by the Divisions, and also to arrive the anticipated vacancies to accommodate the officials was called for from the Divisions. After ascertaining the exact vacancy position frorn the Divisions, the cancellation memo was issued by RO, Aurangabad on 02.05.2019, Subsequently, respondent No.3, ie. SPOs Parbhani Division, issued order dated 10.06.2019 transferring them to their parent Divisions.
5. Applicants hat we filed their rejoinder and reiterated the "submissions already made in the Original Application. In rebuttal of the rejoinder, respondents have also filed their sur-rejoinder.
6. Counsel for the applicants submits that all the conditions stfpulated by the respondents under Rule S38 are strictly adhered to by respondent No.2 before issuing the relieving orders to the applicants % t Eaeicd aaa . . . neh wae mici the said conditions are stipulated in the order rad itself Even SSSR: for the sake of arguments 3 i ih lw ae ; te ap Shy et the applicants, it is settled principle of law that no x Seas ry Pon beg apt yxenopyieny oye es? hd Gi ates are gt % hy Men can take advantage of his gum wrong. In the Present LASS there iS THO TUsi SE IPE SS ntaty "ey chy heer Aes t} yeaet ad 4 hy faa oh eaviek tise:
WHATSOOVer Or tne part of the Applicants and they canriot be made to suffer for no fault on their part at al. It is purely the fault of the respondents, and in fact, the same cannot be constrned as fault alsa. Be that as it may, the respondents are only concerned about the positing of direct recruits whose vacancies were intimated to directorate for direct recruitment quota on which the applicants have been posted. However, it is not at all the case of the respondents that they are in excess of vacancies appointed and they are to be discontinued from. service. The selection which is "conducted under dir ct recruitment quota can be ~ posted at the pla rom where the applicants are transferred as posting is not guarariteed in the same Divis direct recruitment, Once they are selecte: 5¢ posted at any place within the Circle. Fu tF crystal clear that only two applicants are posted from the order of relieving, it is ee 5 gainst vacant post and all others are transferred * nce sore other Postal Assistant and not against att vacant posts and on this sole ground too, the cancellation order deserves to be quashed and set aside, ay Ms eat os, i on vy cba + 4 a ae an Counse: for the respondents submits that cep 24 > wae hn beng we Ly nw : tye ANP SNe Whe ISS8Lumg Ine trensfer orders, the Divisional CLA. No.dQae 2019 Head did not take into consideration the point No.1 of Rule S8 which states that 'Posting order shal . 7 a . +. we . * oe 2 2 no issued as per iwartting list position wrt. ava dabilty x Yoo af vacancy by the division and subjest te availability af Category wise vacancies in the tuvard Division' and issued orders without observing vacancy Position in their respective Divisions. Hence, the issue of non-availability of vacancies to direct recruited candidates selected through Staff Selection Commission has arisen in Parbhani Division, Counsel for the respondents relies upon the Hon'ble Supreme Court Judgment in the case of Shilpi Bose & Ors. Vs State of Bihar & Ors., AIR 1991 SC532, 1991 Supp (2) SCC 659.
8. I have heard both the counsel for the parties and perused the material placed on record. Counsel for the applicant veher rently argued that applicants on completion of five year 's of regular service as per rules had the right to apply for transfer on personal grounds. 'Their applications were considered by the competent authority and on finding merit in their applications, as per their turn, they were transferred to their desired divisions and on logs of seniority and with « cencdition that hencefarth they pat . ont as iL * et ; Teyreay Shall not ask for transfer to the parent division or
4 : me x ae v een? Pat tarete te ey NY ise yes 3 4 eens ne apolic ants Were Baik cage transfe:
Hare tregee tha reemnamAents Kave Hisoatikes camceiies two years, the respondents have llegally cancelled th cso x ia Fey xt xet "diss QQ. EEK cler Ws qe 3 £ Ween i WAS SaQu tramrmster orclersS EIFiGe Yr ARR 6S OF WEES ER os 4 * & sy _ be Manual Vol IV, and passed orders of reversion ta parent division. On the other hancl, counsel for the respondents submuts that it is on the direction of the Circle office that the impugned orders had to be passed as it came to light that the vacancies meant for direct recruitment had, by mistake, got filled by transfers. That respondents have merely tried to correct that mistake as fresh recruits meant for the Parbahni Division -- for the years 2013 & 2014 cannot join for want of vacancies. Respondents 'have relied up: purest of the apex court in the eet Order which are interest and for Or ders" are eae m violation of any mandatory statutory Rule or on the ground of mala ce. A Government servant holding a transferable post has no vested right to remain nagted at one place or the © other, he ig Hable to be tranciorved f from one place to the other. Transfer Orders issu ved by the competent authority do mot violate amy of his legal ri ghts. Even if a transfer Order is passed in vislation of & ecutive instruction or Orders, the Courts ron 'dinarity should not interfere with the we
2) Le oy ¢ 'Blee SES SRL EE CRA. No Osea to yy etsy ed wa oPex 4 * ne Greer insteaci afte cted pe arty should ' t ae coe approach the ries im the Department. of tl re Courts wortinue te interfere with day- to-day transfer Orders issued by the Government and its Subordinate authorities, there will be omplete chaos in the Administration which would not be conducive to public interest. The High Court aver looked these aspects im interfering with the transfer Orders ~ o. We accordingly allow the appeal, set aside the Order of the High Court and dismiss the petition filed by the respondents. The appellants should be posted to the places to which they had been transferred under the Orders impugned before the High Court, There will be no Order as to costs."
9. It is trite that transfer orders should not nor. mally be interfered with by courts of law as it is.
he 'exigencies of work. In the : (supra) the Court considered whether a taney made by a competent authority on the request of Government servants should be interfered with by the Court £0. In the case of Shilpi Bose (supra), the appellant before the Supreme Court and a another Person sought a mutual transfer. The autho ity o SP Aas 2 et eee it 7 ae es eh .
SCCeprea Ihe representations of the employees and 4 vv 7 et : & 3 rrp? + ; eofa hd eran bh ogee + held that the establishment was not em wwowerec to No FOS S019 transfer primary school teachers on their request.
WT pase: thy, St * iy eh ht eh ee DOO Wever, TD SFL DPrcre Court comchided that there ~ Was TO justification for this inference drawn by the a High Court that, transters cannot be made with a view to accommodate employees. Ho is im these circumstances that the Supreme Court held that wher a competent authority issues a transfer order With a view to avoid hardship to a public servant, it should not be interfered with by the Court merely because the transfer order was passed on the request of the employees concerned. Mr Ashok counsel for the respondents sought to press this judgement into service by submitting that the Supreme Court has held that once transfer orders ~ are passed the courts should not interfere in them.
11. I am unable to see the relevance of the judgement in SI ipi Bose's case (supra) in the facts and circurnstances of the present case. In the said judgment, the "appellant had been transferred on the basis of a mutual transfer and the High Court had found that this was not in accordance with law. The Supreme Court in these circumstances had held that since both the employees wanted a mutual transier, courts should not question the he: present case the applcants had xercised their right as accrued to them under Rule x 68S oof Postal Man ual Vol [V and the respondenis : Pec j 3 pb yet 4 = oye mre fp ede. had afer considering all aspects passed they xe Cita "SOR OT AS apy ey GAL No gOS E079 TYaMSIer orders ane inmplemented aise, Now after a FE END tte ca ed Perey, eee ae ey eet haN ¢ thyn+ bey te ey we umpuagned transfer order reverting them to the parent divisions and cancelled their earlier order ye a ~ Ty 20 "aare de mm eheniteasiese passecl under Rule 38. There is no similarity between Shilpi Bose's case (supra) and the present case. Appheants' transfers were not mutual! transfers rather it was an exercise of their right under certain conditions, like less of seniority ete, The same cannot be equated in these circumstances with a transfer made in order to accommodate another employee, on his/her request.
12. In view of the facts and circumstances as discussed above, | allow the present OA and quash and set aside the orders dated 02.05.2019 and 10.06.2019 and direct the respondents to continue to treat the apphcants as a Postal Assistants of Parbhani Division and allow the consequential tA ervice benefits as per law. There will be no order as fo costs, (Harvinder Kaur Oberoi) Member (J)