Central Administrative Tribunal - Delhi
Jitender Kumar vs Union Of India & Ors. Through on 16 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 2119/2014 M.A. No.2622/2014 Reserved on : 29.01.2015 Pronounced on : 16.02.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) 1. Jitender Kumar, Appraiser Aged about 43 years S/o Sh. Ishwar Singh R/o D-7, Surbhi CGHS, GH-10 Sec-43, Gurgaon Haryana. 2. Rohtas Dalal, Appraiser Aged about 47 years S/o Sh. Kartar Singh R/o Flat No.504, Gandhi Ashram Panchsheel Society Sec-10, Dwarka Delhi. 3. Shyam Lal, Appraiser Aged about 44 years S/o Sh. Parkash Chand R/o 12, 1st Floor, Tarun Enclave Pitam Pura Delhi 110 034. .. Applicants (By Advocate : Shri M.K. Bhardwaj) Versus Union of India & Ors. through: 1. Secretary Ministry of Finance Department of Revenue North Block, New Delhi. 2. The Chairperson CBEC North Block, New Delhi. 3. The Chief Commissioner of Customs (DZ) New Custom House New Delhi. 4. The Commissioner of Customs (General) New Customs House Ballard Estate Mumbai 400 001. .. Respondents (By Advocate : Shri Rajeev Kumar) ORDER
This joint Original Application has been filed by three of the Appraisers working under the Respondents aggrieved by their order dated 02.04.2014 transferring them from Delhi to Mumbai.
2. The facts of the case in brief are that the Applicant Nos. 1, 2 and 3 were initially appointed as Examiners/Preventive Officers in the Mumbai Customs Commissionerate on their having selected by the Staff Selection Commission in the year 1996, 1991 and 1992 respectively. Later, they were promoted as Appraisers and posted in the same Commissionerate. In the year 2003, there was a cadre restructuring and on the basis of recommendation of the Committee, the Respondents, vide order dated 15.09.2003, reallocated the posts of Appraisers in different Custom Houses/Commissionerate. Accordingly, the Commissionerates in Calcutta, Mumbai, Chennai and Delhi were allocated 135, 335, 228 and 52 Appraisers respectively. The Commissionerates in Mumbai, Calcutta and Chennai were also allowed to have Appraisers on transfer basis without deputation allowance from their own officers. As Delhi Commissionerate was not having its own cadre of Appraisers, the Ministry of Finance, vide their aforesaid letter dated 15.09.2003, directed the Commissionerate of Mumbai, Calcutta and Chennai to provide 32, 10 and 10 Appraisers respectively to it. As Delhi Commissionerate required more officers to meet the exigency of work, the Commissionerate of Customs (DZ), New Delhi, vide their letter dated 16.03.2011 requested all the Chief Commissioners of Customs to send names of Appraisers. In terms of the aforesaid letter, the names of Applicant No.1 was considered and finally he was posted in Delhi Commissionerate vide order dated 01.03.2012. The Applicant Nos.2 and 3 also joined the Delhi Commissionerate in similar manner. However, on 02.04.2014, the Mumbai Commissionerate issued the impugned order dated 02.04.2014 posting a number of Appraisers including the Applicants to different stations. The Applicant No.1, Shri Jitender Kumar and Applicant No.3, Shri Shyam Lal were transferred from Delhi to Zone-I and II respectively in Mumbai Customs. However, Applicant No.2, Shri Rohtas Dalal was transferred from Delhi to Zone-II in Mumbai Customs for a period of one year. Their Controlling Officers were also directed to relieve them on or before 11.04.2014 with the direction to join at the new place of posting. The Applicants made representations against the aforesaid transfer orders. Shri Jitender Kumar in his representation dated 15.04.2014 informed the Commissioner of Customs (Gen) Mumbai that his posting to Delhi Customs was on the basis of reallocation of the post of Appraisers created as a result of cadre restructuring of Customs and Central Excise, as per Ministry of Finance letter dated 15.09.2003 and the Delhi Customs letter dated 26.04.2005. On the basis of the aforesaid letters, he has given his willingness for transfer to Delhi Customs as his parents were having old age related health problems. He has also pointed out that a number of posts of Appraisers from Mumbai Customs are still vacant in Delhi as provided in the aforesaid letter of the Ministry, some officers from Mumbai Customs are ordered to be transferred to Delhi vide Order dated 02.04.2014 and he also came to know that, due to family reasons, some of them were allowed to remain posted in Mumbai itself. He has, therefore, requested for mutual transfer against the Appraisers in Mumbai who are willing to work in Mumbai. Similar application has been made by the Applicant No.3, Shri Shyam Lal. He has also stated that his children are school going and his mother is about 85 years of age and suffering from various ailments and his daughter is in the 1st year of examination of C.A. He has also pointed out that earlier the Respondents have cancelled his transfer on the ground that there was shortage of Appraisers in Delhi Commissionerate. They have also filed a copy of the Mumbai Commissionerates letter dated 19.06.2014 accepting the requests of some appraisers, namely, Shri Rajesh Kamble, Shashikant Y. Mane, Sarvendu Chaubey and Pankaj Jha posted in said Commissionerate for retaining them in the present places of posting during the academic year 2014-15 on educational ground of their children.
3. The Applicants have, therefore, challenged the impugned order dated 02.04.2014 transferring them to Mumbai Commissionerate stating that they could not have been transferred during the middle of the academic year as the education of their children would be affected. They have also stated that the Respondents could not have included their names in the order dated 02.04.2014 as they were posted in Delhi to meet the shortage of officers. In this regard, they have referred to the Respondents letter dated 16.03.2011 according to which, before posting the Appraisers out of Mumbai Commissionerate, a panel of willing officers was prepared and, as per the requirement, the Appraisers whose names were existing in the panel were posted to Delhi Commissionerate. However, no such panel was prepared before posting the Applicants to Mumbai Commissionerate. They have also stated that the Respondents have failed to consider the fact that they were posted to Delhi Commissionerate with clear stipulation that they would remain posted in Delhi Commissionerate in view of shortage of Appraisers in Delhi Commissionerate. For the same reason, none of the Appraisers posted in Delhi Commissionerate have been sent back to the parent Commissionerate, except on request. They have also referred to the names of similarly placed persons, Shri Birender Singh, Sunil Kumar, S.K. Mishra, Mohit Kumar and Ms. Smita Tripathi, who were posted in Delhi Commissionerate way back in the year 2005 and are allowed to continue in Delhi itself.
4. The Respondents in their reply have submitted that in the case of Shri Rajender Singh, he had submitted his representation requesting to retain him at the present place of posting on the ground that his son is a student of 12th standard in the Academic Year 2014-15 much before the transfer order of 2014. However, the Applicants did not submit any such representations before April, 2014. They have also submitted that the Applicants were due for transfer and submission of their representation after issuance of transfer order dated 02.04.2014 is deliberate attempt to subvert the process of transfer and posting undertaken by the Respondents. They have stated that four officers who have been transferred vide order dated 19.06.2014 have their children in 10th or 12th standards and they have been transferred temporarily during the Academic Year 2014-15 and they were posted outside Mumbai to complete their remaining period of outstation posting tenure.
5. I have heard Shri M.K. Bhardwaj, the learned counsel for the Applicant and Shri Rajeev Kumar, the learned counsel for the Respondents. I have also perused the pleadings on record. It is seen that the Applicants have made representations against their transfer order issued by the Respondents dated 02.04.2014 on different grounds. As per the representation dated 15.04.2014 of the Applicant No.1, viz. Shri Jitender Kumar, his posting to Delhi Commissionerate was on the basis of reallocation of the post of Appraisers based on cadre restructuring in Customs and Central Excise as per Ministrys letter dated 15.09.2003 and Delhi Customs letter dated 26.04.2005. He gave his willingness for transfer to Delhi Customs on the ground that his parents were of old age and having old age related health problems. His further contention was that a number of posts of Appraisers in Delhi Commissioneate are still vacant as provided in the Ministrys aforesaid letter and again he has stated that some of the officers who have been transferred to Delhi vide order dated 02.04.2014 have been retained due to family reasons. He has given the specific case of Shri Gurcharan Singh, Appraiser. In the representation dated 15.04.2014, the Applicant No.3, Shri Shyam Lal, has also cited his personal problems that his Mother is 85 years old and suffering from various ailments. His elder daughter is appearing in the 1st year Examination of C.A. after clearing the CPC Entrance Test and requires utmost care and guidance and his other children are studying in 8th and 6th standards respectively.
6. The Honble Apex Court in the case of State of M.P. & Another Vs. S.S. Kourav & Others, (1995) 3 SCC 270, held that the Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds and the wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. The relevant part of the said Judgement is as under:
4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no justification to transfer him again to Jagdalpur. We cannot appreciate these grounds. The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
7. Again, the Honble Apex Court in the case of Mohd. Masood Ahmad Vs. State of U.P. & Others, (2007) 8 SCC 150, held that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. The relevant part of the said Judgement reads as under:
7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkar Nath Tiwari vs. Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
8. As held by the Apex Court in the aforesaid judgments, transfer is an incident of service and where and when an employee is to be transferred and posted is to be decided by the competent authorities of the Department. There is not much scope for the Tribunals and Courts to interfere in such matters. It is seen that considering the submissions made by the Applicants, this Tribunal had stayed the impugned order dated 02.04.2014 vide this Tribunals order dated 27.06.2014. Now the Respondents have filed their reply stating that the Applicants were due for transfer. At the same time, the Respondents have also stated that in some cases, the requests of the Appraisers concerned were considered and they were allowed to retain for one year on educational ground.
9. In the above facts and circumstances, I dispose of the OA with the direction to the Respondents to allow the Applicants to continue in Delhi Commissionerate till the academic session 2014-15 is over. I also direct that the Applicants shall report to the respective places of posting on or before 31.05.2015. There shall be no order as to costs.
(G. George Paracken) Member (J) /Jyoti/