Central Administrative Tribunal - Delhi
Captain P.K. Bakshi, Nautical Officer, ... vs Union Of India (Uoi) Through (The ... on 1 November, 2006
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought quashing and setting aside of the order of respondents dated 25.11.2005 whereby he was transferred and posted to Marine Engineering and Research Institute, Kolkata (MERI, for short) along with the post in public interest (Annexure A-1). He has also sought direction to the Government of India to formulate policy/guidelines for new service conditions, including promotional avenues, of Nautical Officers like the applicant, who continued to be on deemed deputation to IIMS since 2002.
2. The brief facts of the case are that on 27.03.1999 the respondents issued an advertisement for recruitment of six Nautical Officers in Lal Bahadur Shastri College of Advanced Maritime Studies and Research (LBS CAMSAR, for short) and T.S. Chanakya (TSC, for short) under the Directorate General of Shipping, Ministry of Surface Transport, Government of India. The applicant responded to the advertisement. After interview, the UPSC recommended his candidature for the post of Nautical Officer in LBS CAMSAR and TSC to the Secretary, Government of India, Ministry of Surface Transport, Directorate General of Shipping. The applicant was given an offer of appointment dated 15.02.2000 by respondent No. 3 as Nautical Officer at LBS CAMSAR. He joined at LBS CAMSAR on 17.04.2000 on receipt of the Memo of the same date (Annexure A-28).
3. On 06.06.2002, the respondents registered Indian Institute of Maritime Studies (IIMS, for short) as a Society under the Societies Registration Act, 1860. Thereafter, by O.M. dated 29.10.2002, they placed within the domain of IIMS their four maritime training institutions, namely, LBS CAMSAR, TSC and MERI located at Kolkata, along with its branch at Mumbai, which were, at that point of time, being run as Government Institutions under the control of Ministry of Shipping and Transport. Consequent upon conversion of above named four institutes as part of an autonomous body (IIMS), employees posted in those four institutes, were transferred to IIMS along with their posts, on existing terms and conditions on as is where is basis. It was also provided that the deemed deputation of these employees shall continue till their final absorption in the Ministry or otherwise. It was further stated that the employees will be finally absorbed by the Ministry after the exercise of their option. The employee shall have the option to revert back to Government from Foreign Service and seek re-deployment through Surplus Cell, in case the employee considered that his absorption in the Society will be detrimental to his/her interest. The transfer of the employees to the Ministry was in terms of Rule 37A of CCS (Pension) Rules, 1972. Till the time of their absorption, the employees are subject to all rules and regulations as applicable to Government servants and their pay and allowances will be governed by the existing rules and regulations and orders of the Government. On 25.11.2005, the impugned order was issued, which has been challenged in the present OA.
4. During the pendency of the OA, this Tribunal issued an interim order dated 05.01.2006, which is reproduced below:
Shri K.K. Sharma, learned Counsel for respondents states that applicant has not exhausted the alternative remedy by way of representation against the impugned order dated 25.11.2005. Shri A.K. Bakshi along with Shri G.S. Lobana, learned Counsel for applicant contends that there is no statutory requirement to make such a representation. It is stated that the applicant is on medical leave till 06.1.2006.
Upon consideration of the matter for the purpose of interim relief, as prayed, I am of the view that since the applicant has not made any representation statutory or otherwise, he be directed to approach the respondent No. 1 as well as respondent No. 3 to highlight his grievances. If such a representation is made within three days from today, the said respondents are directed to consider the same and pass a reasoned & speaking order within a week thereafter. Till then status-quo as of today be maintained.
As a result thereof, the applicant filed a representation to the Hon'ble Union Minister for Shipping, Road Transport and Highways dated 07.01.2006 (Annexure A-30, in M.A. 166/2006). This was disposed of by respondent No. 3 in his capacity as Director General of Shipping and Secretary to Government of India and Chairman, Managing Committee, IIMS, by an order dated 06.02.2006 (Annexure R-1, in counter reply to M.A. 166/2006).
5. The applicant has argued that after UPSC selection, he was appointed to LBS CAMSAR, Mumbai as Nautical Officer, which post is non-transferable since the applicant had been treated as a permanent employee of LBS CAMSAR. In this context, he has stated that the original advertisement, to which he had responded, did not mention any all-India transfer liability. As per well settled law, the initial terms & conditions of service of the applicant cannot be changed subsequently to his disadvantage. Being a permanent employee of LBS CAMSAR, he is on deemed deputation with IIMS since June, 2002 on `as is where is basis, till the final absorption in IIMS, that too after the exercise of option by the applicant in the matter. Respondent No. 3, therefore, has no authority to order applicant's transfer out of Mumbai i.e. out of LBS CAMSAR/TSC. Admittedly, till date the IIMS has not framed new Recruitment Rules and terms & conditions of service in the matter of deemed permanent deputation of the applicant and other Nautical Officers selected through UPSC. Till date, the applicant has also not been asked for any option in the matter regarding his willingness for final absorption in IIMS or for transfer to any other department. In their letter dated 05.07.2003 (Annexure A-23), the respondents have stated as follows:
In background of this it is clarified that consequent upon conversion of 4 institutes into autonomous body named IIMS, the officers and staff shall continue to be governed by the rules and regulations as applicable to Government servant including CCS (CCA) Rules till such time as they are given option to be absorbed in IIMS.
It is therefore, clear that till option is given to the employees and same is exercised by the employees, they shall continue to be Government employees.
6.The applicant has further stated that in 2003 one Capt. K. Sundram, Nautical Officer in TSC, made a representation dated 02.01.2003 giving his option of not being transferred to IIMS. He was informed by respondent No. 3 that till such time the IIMS finalises the service conditions, pay etc., the present status of officers remained un-altered. Once the guidelines were finalised, the Government officers would be asked to exercise their option on whether they would like to continue with the Government. Similarly, in 2004 respondent Nos. 8 and 9 sought transfer to another department in view of formation of IIMS. However, it was clarified that since neither the Recruitment Rules for Nautical Officers working with IIMS had been framed nor any option had become available for transfer to Government service, the request of respondent Nos. 8 and 9 for their transfer to the office of D.G. Shipping was not feasible (Annexure A-8).
7. The applicant has also invited attention to a letter dated 27.05.2003 (Annexure A-7) through which the Ministry of Shipping had communicated to the Secretary, Board of Governors, IIMS, certain observations of the Parliamentary Standing Committee in respect of IIMS as follows:
The Committee appreciates the Ministry for taking a decision to include in the objective of the Society a clause for establishment of Indian Maritime University. The Committee, however, recommends that the Ministry should go for establishing the University by an Act of Parliament so as to provide considerable operational freedom and a qualitatively boost to the Maritime training in the country. The Committee, however, notes with concern that the terms and conditions of services are being changed against the interest of the employees. The Committee recommends that before taking any action with regard to the terms and conditions of the service of employees of erstwhile Maritime Institutes, the unions of the employees be consulted and it should be ensured that the terms and conditions of service of employees who have been transferred on deemed deputation to IIMS remain unchanged. Also, the interests of employees particularly relating to pension, CGHS facilities and retention of government accommodation should be safeguarded.
8. The applicant has further stated that he had opted for Mumbai post in 2000 in view of his age (49 years) and likely settlement in Mumbai after retirement. Higher post like Vice Principal, Deputy Principal and Senior Nautical Officer in LBS CAMSAR have been lying vacant for last three years or more due to non-availability of Recruitment Rules and criteria for such Nautical Officers on permanent deputation with IIMS. The said vacant posts are not likely to be filled up in the future due to non-availability of new Recruitment Rules (for officers like the applicant who are deemed to be on foreign deputation since 2002), which are yet to be framed. The applicant has a son (5 years old), who is suffering from AOUTISM (sic) and is under the treatment for last 3 years under Dr. Dinay Wadia (Speech Therapist & Special Educator) and for occupational therapy under Dr. Silver Kumar from Nair Hospital, Mumbai. The applicant's post is non-transferable from Mumbai and no option as yet, had been taken from the applicant regarding his willingness for permanent absorption in IIMS or reversion to any other Government department.
9. The applicant has argued at length that respondent Nos. 2, 3, 4/6, 5/7, 8 & 9 have a bias against the applicant and have joined hands against him for his complaints/legal notices sent during 2004-05. In support of this argument, he has cited the following instances:
The pay of respondent Nos. 8 and 9, who are junior to the applicant, was fixed at a higher stage. The applicant, therefore, made a representation dated 02.04.2004 (Annexure A-9) in this regard and followed it up with a legal notice dated 26.05.2004 (Annexure A-10), whereupon their higher pay was reduced. Respondent Nos. 8 & 9 then approached the Mumbai Bench of this Tribunal, vide OA Nos. 620/2004 and 621/2004 and they, with the tacit support of respondent No. 2 (who went against the Government stand in the matter), succeeded in getting favourable orders from CAT (Mumbai Bench). Since the applicant had represented against the higher pay of respondent Nos. 8 & 9, after the favourable order from CAT, Mumbai Bench, respondent Nos. 2, 8 & 9 got biased against the applicant and tried to show him in bad light with the tacit approval of respondent Nos. 3, 4, 5, 6 & 7.
Due to the legal notice of the applicant sent in 2004, respondent Nos. 2 to 9 got biased against the applicant. Respondent No. 4 ensured that the applicant did not clear his Extra Master's dissertation and failed the applicant in his presentation for the said examination in January, 2005, although the applicant's guide had cleared the said dissertation. The applicant later cleared his Extra Master's examination on 12.05.2005.
The applicant had made a complaint to respondent No. 3 about violation of statutory/mandatory requirements on the part of respondent Nos. 8 & 9 for the purpose of grant of Extra Master's Certificates to them. In this context, the applicant sent a legal notice dated 11.06.2005 (Annexure A-15) against grant of illegal Extra Master's Certification of respondent Nos. 8 & 9, which was followed up with supplementary legal notice dated 29.06.2005. In spite of the above notices, respondent No. 3, with the approval and connivance of respondent Nos. 2, 4, 5, 6 & 7, did not order any formal departmental enquiry in the matter and directed that respondent Nos. 8 & 9 be issued Extra Master's Certificate in violation of provisions of law on the subject.
On 12.09.2005, the applicant was medically unfit and had been advised 5 days bed rest by the Government doctor. The applicant informed respondent No. 5/7 about his medical condition yet the applicant was given a 'warning' for being absent from duty, leveling false allegations of dereliction of duty on the part of the applicant. Feeling aggrieved by such vindictive action on the part of respondent No. 5/7, the applicant sent a legal notice dated 17.09.2005 seeking withdrawal of the said warning letter dated 12.09.2005. The legal notice of the applicant was acknowledged by respondent No. 3 but no reply has been received by the applicant till date. The applicant was on medical rest from 28.11.2005 to 02.12.2005. He was again put on medical rest on 03.12.2005 till 01.01.2006. On 02.12.2005, while the applicant was on medical rest, a copy of the impugned order dated 25.11.2005 issued by respondent No. 3 and approved by respondent No. 2, was served on the applicant. This order was served upon the applicant by way of local courier under the instructions of respondent No. 8, who was acting under the directions of respondent No. 5/7.
On 14.10.2005, the applicant applied for the higher post of Director (Admn.) in National Water Development Agency, Delhi (NWDA, for short) on deputation basis. However, as the applicant's application was not received by NWDA through proper channel, NWDA approached respondent No. 3 for forwarding the application of the applicant. Non-forwarding of the application of the applicant was a mala fide act on the part of respondent No. 3. The applicant had applied for Delhi post due to its being a higher post and also in the context of his own and his son's medical problems which would have got better attention due to close proximity of his doctor brother in Delhi.
10. During the pendency of the OA, the applicant has filed the following Miscellaneous Applications:
M.A. No. Relief Sought 2427/2005 dated 20.12.2005 For placing on record certain documents, namely, Annexure A-27, Annexure A-28 and Annexure A-29.
166/2006 dated 20.01.2006 To allow the applicant to resume regular duty with immediate effect and consider him on duty since 09.01.2006 when the applicant reported for duty at LBS CAMSAR after his medical leave. It also included Annexure A-30/A-31, a representation dated 07.01.2006 addressed to the Hon'ble Minister of Shipping, Road Transport and Highways, and certain other supporting documents (Annexures A-32 to A-36).
831/2006 dated 08.05.2006 Seeking direction to respondent No. 3 to place on record written authority in respect of Capt. Harish Khatri, who had signed and verified the counter reply in the OA.
832/2006 dated 08.05.2006 Seeking production of six documents by the respondents and also a direction to Capt. Harish Khatri to file an affidavit and appear for cross-examination.
1126/2006 dated 03.08.2006 Seeking release of his pay from the month of December, 2005 onward.
11. Respondent Nos. 1, 3, 4, 5, 10 & 11 are official respondents. Respondent Nos. 2, 6 & 7 are same as respondent Nos. 3, 4 & 5, having been impleaded in their personal capacity. Respondent Nos. 8 & 9 are employees of LBS CAMSAR and have been impleaded in their personal capacity.
12. In the counter reply filed on behalf of the respondents, the various points raised by the applicant have been rebutted as follows:
As regards the transfer of the applicant to Kolkata, it has been pointed out that in para 2(iii) of the Memo dated 15.02.2000, through which the terms and conditions of appointment of the applicant were notified, it was clearly stated that, "The appointee will be required to serve in any part of India." Having accepted the said terms and conditions, he cannot claim any immunity from a transfer ordered in public interest. MERI, Kolkata is a part of IIMS and since the applicant's services are required there, he has been transferred.
In accordance with the Office Memorandum dated 29.10.2002, the four maritime training institutions, namely, the Lal Bahadur Shastri College of Advanced Maritime Studies and Research, Mumbai; Training Ship Chanakya, Navi Mumbai; Marine Engineering and Research Institutes, Kolkata with its branch at Mumbai, have been placed under the functional control of the IIMS. The posts under the IIMS have All-India Transfer Liability within the four component Institutes and the Government, though it is fully seized with the personal problems of the applicant, in exigencies of service, has to put the public service in the forefront, in the interest of the Engineer Cadets of MERI, Kolkata, so as to make them competitive at par with the contemporary Marine Engineers in the rest of the world. The transfer order is within the training institutes of IIMS and, therefore, the contention of the applicant that he has a right to continue in LBS CAMSAR is not acceptable.
The Government is in the process of forming Indian Maritime University and a 'Bill' is being finalized for placing it in the Parliament. Till such time, the University is actually accorded approval by the Parliament and it is formally functional, all Government employees have been placed on deputation to IIMS so that these training institutes continue to function smoothly. The terms and conditions, including pay and allowances, CGHS facilities, retention of Government accommodation etc. have remain unchanged for such employees.
The Recruitment Rules for various posts in the Training institutes were sent to the Ministry for obtaining approval of the DOPT and UPSC. It has been stated therein that as per Cabinet decision dated 28.12.2001, the IIMS has been registered under Societies Registrations Act, 1860 on 06.06.2002. It is an autonomous body and all the existing maritime training institutes have come within the purview of IIMS. The Board of Governors of IIMS shall make appointments and prescribe emoluments and terms and conditions of employment to all posts of the training institutes, including all administrative and technical posts under the society. Therefore, all proposals relating to framing amendments to Recruitment Rules in respect of all the posts in the training institutes mentioned above have been treated as withdrawn. It is for the Board of Governors of IIMS to decide whether to fill up the vacant posts of the training institutes or not. Therefore, it is not correct to say on the part of the applicant that the posts are not likely to be filled up in future due to non-availability of new Recruitment Rules or transfer within the training institutes of IIMS is not permitted by Respondent No. 1 (Union of India). The existing Recruitment Rules for all the Technical posts are currently in force.
As regards the observation of the Parliamentary Standing Committee, it has been stated that the terms and conditions, including their pay and allowances, CGHS facilities and retention of Government accommodation have not been changed for any of the government employees now placed on deputation to IIMS. While the pay structure etc. are being finalized for the newly formed IIMS, the applicant continues to enjoy his present pay and allowances.
Capt. S.C. Panigrahy & Capt. Ravindra Sagar, Nautical Officers, had filed O.A. Nos. 620/2004 and 621/2004 in the Hon'ble Central Administrative Tribunal, Mumbai Bench, for the protection of their pay, taking into account the service rendered by them in the Shipping Corporation of India, a Public Sector Undertaking under the Government of India. The Hon'ble CAT, Mumbai Bench, has given a judgment in favour of Capt. S.C. Panigrahy & Capt. Revindra Sagar, Nautical Officers, in respect of their pay protection. On the basis of the order of the Hon'ble CAT, Mumbai Bench, the pay of Capt. S.C. Panigrahy & Capt. Ravindra Sagar, Nautical Officers, was fixed at the maximum in the pay scale of Rs. 12000-375-16500. The Judgment delivered by the Hon'ble CAT, Mumbai Bench, in respect of Capt. S.C. Panigrahy & Capt. Ravindra Sagar, Nautical Officers, on a case to case basis does not provide a cause of action for the applicant. The applicant has the right to approach a court or the Central Administrative Tribunal under Articles 32 and 226 of the Constitution or the CAT Act, 1985, as the case may be. But there is no provision in the rules that mandates Government's response to a Lawyer's Notice. In view of the above no action is proposed by the Directorate General of Shipping against legal notice sent by Capt. P.K. Bakshi in the matter.
No prejudice is found to have been caused to Capt. Bakshi in terms of alleged non-acceptance of his dissertation, which shall be deemed to have been completed only after a presentation by the candidate followed up by a question-answer session by the Board of Examiners. The applicant faired poorly and was not able to answer many questions put to him by the examiners and was, therefore, declared unsuccessful. The applicant was given a second chance by Capt. M.M. Saggi, Nautical Advisor to the Government of India and the Chief Examiner of Master & Mates, availing which the applicant again presented the dissertation and was awarded the Extra Master's Certificate on 12.05.2005.
As regards the alleged irregularities relating to illegal Extra Master's Certification granted to respondent Nos. 8 & 9, the issue has been examined by the Chief Examiner of Master and Mates, DGS, Mumbai and no irregularity has been found.
As regards the warning issued to the applicant for his absence from duty, it has been stated that the applicant was absent on 12.09.2005. Earlier, the applicant himself had scheduled OLIC (Hindi quarterly) meeting & workshop on 13.09.2005 and Hindi Pakhwada from 14.09.2005 through his Office Notes dated 29.08.2005 and 30.08.2005. There was, therefore, need for the applicant, the OL Officer, to be present. In view of above, Principal, LBS College intimated the applicant, through a letter dated 12.09.2005, to report for duty. This letter was sent to help organize and thus fulfill the requirements of Official Language Manual in the best possible manner. All offices organize Hindi Day every year on 14th September and Hindi week beginning from that day in accordance with the guidelines issued by the Department of Official Language. Subsequently, the applicant had requested for Medical Leave by fax. On receiving the fax, Principal, LBS College sanctioned his medical leave. With respect to the Legal Notice dated 17.09.2005, as already stated, there is no legal requirement to respond to it.
With regard to the allegation of the applicant relating to non-forwarding of his application for deputation to NWDA, the respondents have stated that it has no relevance to the issue of his transfer.
Regarding the validity of the impugned order, the respondents have stated that the impugned order dated 25.11.2005 has been issued by respondent No. 3, who is the Chairman of the Managing Committee of IIMS, which has the power and authority to effect transfers of all the staff at all levels working in IIMS and its component institutes.
13. Respondent No. 10, namely UPSC, has filed a separate counter in which it has been stated that UPSC has no role to play in the matter of transfer of employees of the respondents. The only role which the Commission plays is to recommend the candidates for appointment.
14. The private respondent Nos. 8 and 9 have not filed any counter.
15. In his rejoinder to the counter reply filed by the respondents, the applicant, apart from reiterating the various arguments advanced by him in the OA, has made the following additional points:
The counter reply cannot be treated as the reply on behalf of all the respondents (official/private) as well as UPSC (R-10).
The counter reply has been signed and verified by Capt. Harish Khatri, who does not belong to the office of DG, Shipping. Further LSB CAMSAR is a separate entity by itself and Capt. Khatri could not have been authorized by it to represent its officials presently working under IIMS, a non government body.
It is well settled law that a government employee cannot be sent on deputation without his consent.
The Central Government does not have a post of Nautical Officer in MERI, Kolkata and the transfer of the applicant from Government to Non-Government post is not only illegal and arbitrary but also amounts to creating a new government post of Nautical Officer at Kolkata, for which the approval of UPSC should have been obtained and other formalities should have been completed.
During the presentation of his dissertation in respect of Extra Master's Certificate, many out of syllabus questions were asked by the Chief Examiner, which even the applicant's Guide could not answer. The applicant was then asked to resubmit his dissertation with new topics/issues. The said act of the Chief Examiner (R-4/6) was biased and arbitrary and against all norms.
The impugned order dated 25.11.2005 was not issued by the office of IIMS. It is also beyond the jurisdiction of IIMS.
16. In his rejoinder to the counter reply filed by respondent No. 10, the applicant has reiterated some of the arguments advanced by him in the OA and in his rejoinder to the counter filed by the respondents.
17. In the course of protracted arguments, the learned Counsel for the applicant has cited the following rulings:
State of Punjab and Ors. v. Inder Singh and Ors. etc. 1998 (1) ATJ 200 (SC);
S. Mitra v. Union of India 1995 (2) ATJ 123 CAT, Bombay Bench;
I.S. Talekar v. The Administrator of U.T. of Daman and Diu and Anr. 1996 (2) ATJ 274 (CAT, Mumbai Bench); and Jawaharlal Nehru University v. Dr. K.S. Jawatker and Ors 1989 Supp (1) SCC 679.
to argue that an employee cannot be sent on deputation or transferred to a third party or sent from one deputation to another deputation on an analogous post without his consent.
18. The learned Counsel for the applicant has argued that by bringing LBSC CAMSAR under a society (IIMS) the respondents have transferred the applicant to a non-government organization. A society, even if run by Government is an independent entity and not a government department or establishment Hindustan Steel Works Construction Ltd. v. State of Kerala and Ors. ; and Steel Authority of India Ltd. v. Shri Ambica Mills Ltd. and Ors. AIR 1998 SC 418. Against this backdrop, the learned Counsel for the applicant has questioned the competence of the respondents to transfer the applicant, who was recruited as a government servant, to a society. The applicant is protected by Article 309, read with Articles 14 and 16. It has been further averred that since transferring the applicant to Marine Engineering and Research Institute Kolkata, along with his post, amounts to creation of a post, the UPSC should have been consulted. He has further challenged the competence of DG Shipping to transfer him, since the impugned order dated 25.11.2005 was issued under his approval. It has been averred that only Secretary, Ministry of Shipping, is competent to transfer him.
19. As regards the period of applicant's medical leave, it has been alleged that the respondents have changed their stand. Their pleadings are hit by the ruling of Hon'ble Supreme Court in Mohinder Singh Gill and Anr. v. The Chief Election Commission, New Delhi and Ors. , wherein it was held that validity of an order has to be judged by the reasons mentioned therein, and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
20. The learned Counsel for the applicant has cited the judgment of Hon'ble Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. and S.P. Dubey v. Madhya Pradesh State Road Transport Corporation and Anr. 1991 Supp (1) SCC 426 to argue that service conditions of public servants must be certain and secured and not vague and whimsical and that the service conditions of the employees cannot be altered to their disadvantage.
21. In the context of the fact that the advertisement in response to which the applicant was recruited did not mention the condition to serve in any part of India and that it was introduced only in the Offer of Appointment, the learned Counsel has cited the ruling of the Hon'ble Supreme Court in Dr. Vinay Rampal v. The State of Jammu and Kashmir and Ors. 1983 (3) SLR 293 and N.T. Bevin Katti etc. v. Karnataka Public Service Commission and Ors. to argue that the authority issuing an advertisement is bound by the terms and conditions mentioned in it.
22. The learned Counsel for the applicant has cited the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd., New Delhi v. Jugal Kishore and Ors. and Shri M.L. Sethi v. Shri R.P. Kapur to argue that it is the duty of the party in possession of a document to produce the said document to serve the ends of justice.
23. In the context of the averments of the learned Counsel for the applicants that the respondents, on account of their bias and with mala fide intentions, have misrepresented the facts to justify his illegal transfer, he has cited the judgments of the Hon'ble Supreme Court in Ranjit Thakur v. Union of India and Ors. , which lays down the test of bias; S.P. Chengalvaraya Naidu (dead) by L.R.s v. Jagannath (dead) by L.R.s and Ors. , which states that a person whose case is based on falsehood has no right to approach the court. He has also cited the Order of Lucknow Bench of this Tribunal in B.B. Biswas v. Union of India and Ors. 2003 (3) ATJ 36, which, on the one hand, states that the reply filed on behalf of official respondents cannot be taken into account on behalf of respondents who have been impleaded in their personal capacity, and, on the other, that transfer to a post with lower responsibility and status smacks of bias. He has again cited the ruling of the Lucknow Bench of this Tribunal in Dr. Ravi Shanker v. Union of India and Ors. to argue that transfer of an employee whose post does not have all India transfer liability is prima facie mala fide.
24. The learned Counsel for the applicant has finally cited the judgments of the Hon'ble Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India and Anr. JT 2004 Supp (1) SC 475 and Navinchandra N. Majithia v. State of Maharashtra and Ors. to establish that there is a definite cause of action in the case of the applicant.
25. The learned Counsel for the respondents opened his arguments by stating that the learned Counsel for the applicant has argued much beyond the scope of the relief sought in the OA, which is mainly concerned with setting aside the order dated 25.11.2005 (supra), i.e. his transfer to MERI, Kolkata, along with the post, in public interest. He supplied a set of documents relating the establishment of IIMS, which inter alia include copies of the following:
Certificate of registration of IIMS as a society under the Societies Registration Act, 1860.
OM No. A-33025/17/2002-MT dated 29.10.2002 regarding transfer of employees of the four Government Maritime Training Institute to IIMS (already available in the Order Book as Annexures R-9 and A-29).
Order No. A-33025/17/2001-MT dt. 25.10.2002 regarding composition of the Society of IIMS.
Order No. A-33025/17/2001-MT dt. 25.10.2002 regarding composition of Board of Governors of the Society.
Resolution No. A-33025/17/2001-MT dt. 24.06.2002 spelling out the reasons for establishment of IIMS (perhaps issued in fulfillment of a requirement for registration of the Society).
26. The learned Counsel has averred that four training institutes, which were earlier part of the Ministry of Shipping have been en bloc transferred to IIMS. He further stated that the applicant has not challenged Rule 37A of Central Civil Services (Pension) Rules 1972, relating to conversion of a Government Department into a Central Autonomous Body or a Public Sector Undertaking, which was upheld in the order of this Tribunal in Indian Telecom Service Association and Ors. etc. etc. v. Union of India and Ors. etc. etc. OA No. 1963/2005 et al decided on 31.10.2005. It was held that Government have a clear power to create or abolish a post in view of a catena of judgment of the Hon'ble Supreme Court. He invited particular attention to Sub-rule (5) and (6) of Rule 37A Rules ibid. which reads as follows:
(5) Upon absorption of Government servants in the Public Sector or Autonomous Body, the posts which they were holding in the Government before such absorption shall stand abolished.
(6)The employees who opt to revert to Government service shall be re-deployed through the surplus cell of the Government.
27. With reference to the ruling of Hon'ble Supreme Court in Jawaharlal Nehru University v. Dr. K.S. Jawatkar and Ors. (supra), that an employee cannot be transferred from one autonomous body to another without his consent, the learned Counsel for the respondents argued that the consent could be express of implicit. In the present case, the transfer took place on 29.10.2002 (Annexure A-29/R-9), when by virtue of the OM of that date, all employees of the four institutes stood transferred to IIMS in terms of Rule 37A of the Rules ibid. The applicant did not object to the transfer so long as he was retained in Mumbai. He has woken up to challenge the transfer only after his services were sought to be deployed in Kolkata through the impugned order dated 25.11.2005, i.e. after more than three years. The applicant has ceased to be a government servant by virtue of the OM dated 29.10.2002, which was never challenged.
28. As regards the averment of the applicant that the terms and conditions mentioned in the advertisement cannot be altered, the learned Counsel for the respondents argued that in the letter of the UPSC dated 03.02.2000 (Annexure A-4) sent to the applicant, it was clearly mentioned: "The offer of appointment will also be subject to such conditions as applicable to all such appointments under the Central Government". This was followed up with the letter of appointment dated 15.02.2000 (Annexure R-4) which clearly spelt out all India transfer liability in para 2 (iii) of the terms and conditions of appointment. It was not challenged by the applicant, who expressly accepted the offer of appointment and took up the assignment. He was posted, not appointed, to LBS CAMSAR. His present transfer from Mumbai to Kolkata does not amount to sending him from one deputation to another but it is a transfer from one office to another within the same organization. In any case, under IIMS, there are only 4 institutes where he can be transferred to; three of them are in Mumbai and one is located in Kolkata. The applicant has no record to prove that he is a permanent holder of a post at LBS CAMSAR and, therefore, could not have been transferred out of it.
29. The learned Counsel of the respondent cited a catena of case to establish that transfer is not only an incident but a condition of government service. A power to appoint includes a power to make an appointment by transfer. Who should be transferred is a matter for the appropriate authority to decide and the courts cannot interfere unless the order of transfer is vitiated by mala fide or is made in violation of any statutory provisions State of U.P. and Ors. v. Gobardhan Lal et al ; State of U.P. and Anr. v. Siyaram and Anr. ; Union of India and Ors. v. Janardhan Debanath and Anr. ; Public Services Tribunal Bar Association v. State of U.P. and Anr. ; State of Rajasthan and Ors. v. Anand Prakash Solanki ; State Bank of India v. Anjan Sanyal and Ors. ; National Hydroelectric Power Corporation Ltd. v. 1. Shri Bhagwan 2. Shiv Prakash ; Punjab National Bank and Ors. v. All India New Bank of India Employees Federation and Ors. ; N.K. Singh v. Union of India and Ors. ; State of Madhya Pradesh and Ors. v. Sri S.S. Kourav and Ors. ; Union of India and Ors. v. S.L. Abbas .; Mrs. Shilpi Bose and Ors. State of Bihar and Ors. ; Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani 1989 (3) AISLJ 68; and State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. etc. etc. .
30. The learned Counsel for the respondent finally closed his arguments with the statement that applicant has taken several pleas, such as grant of higher pay to R8 & R9, non-clearance of his Extra Master's dissertation in the first instance, grant of illegal Extra Master's Certification to R8 & R9, non-forwarding of his application for the post of Director (Admn.) in NWDA etc., which have no bearing on the case at hand.
31. We have heard the learned Counsel for the parties at great length and given thoughtful and judicious consideration to their arguments as well as the material on record. We have also perused the various judgments cited by the learned Counsels.
MA No. 2427/200532. In this MA the applicant had sought the permission of this Tribunal to place certain additional documents on record. The MA was allowed by this Tribunal vide order dated 25.04.2006.
MA No. 166/200633. In this MA the applicant has sought direction of this Tribunal to respondents to allow the applicant to resume regular duty with immediate effect and consider him to have been on duty since 09.01.2006, when the applicant reported for duty at LSB CAMSAR after his medical leave. MA also enclosed a representation of the applicant to Hon'ble Union Minister, Shipping, Road Transport and Highways along with certain supporting documents (Annexures A-30 to A-36).
34. During the course of the arguments, the learned Counsel or the applicant has stated that at the end of his medical leave the applicant reported at LSB CAMSAR but he was told that he stood relieved. Thereupon he approached the Tribunal and in its order dated 05.01.2006, he was directed to make a statutory representation to respondent Nos. 1 and 3 to highlight his grievances. The Tribunal also directed the respondents to consider his representation and pass a reasoned and speaking order. It was further directed that till then status quo as of that day shall be maintained. The applicant accordingly submitted his representation dated 07.01.2006 (Annexure A-30) which was disposed of by the respondents by their order dated 06.02.2006 (Annexure R-1).
35. Learned Counsel for the applicant has argued that letter dated 02.01.2006 (mentioned in Annexure R-1), through which he was ostensibly relieved of his duty, has been manufactured later on insofar as during the hearing before this Tribunal on 05.01.2006 the respondents did not mention anything about that order.
36. In their counter to the MA, the respondents have stated that the applicant's representation dated 07.01.2006 was forwarded to the Ministry, along with parawise comments, on 13.01.2006. On the said representation the President of India passed an order dated 06.02.2006 (Annexure R-1). The respondents have further stated that the applicant remained on medical leave from 28.11.2005 to 02.12.2005 and thereafter on extended spell of medical leave for 30 days from 03.12.2005 to 01.01.2006. The applicant, thereafter, stood relieved by the Principal of LSB CAMSAR, i.e., his Controlling Officer, on the expiry of his leave on 01.01.2006 (Annexure R-2).
37. In his rejoinder, the applicant has doubted the veracity of his representation having been at all placed before the Hon'ble Minister. He has further stated that the order has been passed by Chairman, IIMS, whereas the representation was never addressed to him. He has again reiterated his basic plea that he being a government servant and not a member of staff of IIMS, his transfer to a non-government post is without jurisdiction. It has been further averred that the order dated 02.01.2006 (supra), alleged to have been issued relieving him from LSB CAMSAR and directing him to report to MERI, Kolkata, was not communicated to him nor was it brought to the notice of this Tribunal during its proceedings held on 05.01.2006. He has further stated that his medical leave had continued till 06.01.2006 as fitness certificate was granted to him only on 07.01.2006.
38. The order of this Tribunal in this OA (No. 2776/2005) will address the averments of both the parties in this MA.
MA No. 831/200639. Through this MA the applicant sought direction of this Tribunal to respondent No. 3 to place on record the written authority in terms of Rule 12 of the CAT (Procedure) Rules, 1987 authorizing Capt. Harish Khatri to sign and verify the counter reply on behalf of all the respondents in the OA.
40. In their counter, the respondents have submitted the copies of the letters purporting to be 'Letters of Authority' on behalf of all the respondents.
41. In the rejoinder, the applicant has stated that Capt. Harish Khatri has no authority to represent private respondent Nos. 6, 7, 8 and 9. Further, there is no specific authorization on behalf of respondent Nos. 2, 10 and 11.
42. The applicant has enclosed a copy of the DoPT O.M. dated 06.10.1978 (Annexure A-39) relating to provision of legal assistance to Government employees for proceedings in respect of their official duty or position by another Government employee, to argue that legal assistance cannot be granted to government employees who are impleaded as co-respondents by other government employees in suits against the Government in regard to conditions of service, such as seniority etc. The applicant has further averred that this Tribunal in its proceedings dated 10.05.2006 had recorded that the counter reply was purported to have been filed on behalf of all the respondents i.e. official as well as private respondents, which did not seem to be correct.
43. In order to dispose of this MA, we shall start with the averment of the applicant regarding the order of this Tribunal dated 10.05.2006, which reads as follows:
On perusal of the facts it appears that respondents No. 6 to 9 are private respondents and the notice are sent to them by Speed Post but there is no AD of the receipt of notice. Counsel for applicant has pointed out that counter reply is purported to have been filed on behalf of all the respondents which means it is filed by the official respondents, respondents No. 4 & 5 as well as respondent No. 10 UPSC, respondent No. 11 and the private respondents No. 6 to 9 which does not seem correct. Counsel for respondents has submitted that he has already sought clarification from the department, therefore, he has requested for renotifying the matter on 6.7.2006.
44. In terms of this order of the Tribunal, the learned Counsel for the respondents has failed to report to the Tribunal the clarification received by him from the department. However, the counter reply of respondents to the MA was filed thereafter on 24.07.2006 providing the necessary details.
45. In this context, the applicant has also cited DoPT O.M. dated 06.10.1978, which, inter alia, reads as follows:
Government have had occasion to consider whether Government should undertake the defence of a Government employee against whom a case is filed by another Government employee or reimburse the reasonable cost incurred by the former for his defence if such cases are in respect of the matters connected with the former's official position or duties. It has been decided that, where on a consideration of the facts and circumstances of the case, it is considered that it would be in public interest to defend a Government employee in a case filed against him by another Government employee in respect of matters connected with the former's official duties or position, the latter may be treated as a 'private party' and assistance given to the former in terms of Paragraph 2(c) of the Office Memorandum referred to above. But this will not apply to cases in which the Government employee (s) has/have been impleaded as co-respondent (s) by other Government employee (s) in suits against the Government in regard to conditions of service, such as seniority, etc.
46. In our view the O.M. covers the so-called private respondent Nos. 2, 6 & 7 that leaves us with private respondent Nos. 8 & 9, who have been impleaded because, even though they were junior to him in seniority, their pay was fixed at a higher level by giving them weightage of past service in the Shipping Corporation of India on the basis of the order of the Mumbai Bench of this Tribunal. The Government has to defend its decision in this regard more than the need for the private respondents to defend their pay fixation. As regards respondent No. 10, a separate counter reply, in the main OA, has been filed on 04.08.2006, signed and verified by Shri Sachin Das Baijal, Deputy Secretary, UPSC and not Capt. Harish Khatri. As regards the remaining respondent No. 11 i.e. the Chief Controller of Accounts, Ministry of Road Transport Highways and Shipping, we do not agree with the contention of the applicant that it is an independent entity. It is very much a part of the Union, the first respondent. As regards the authorisation letters on behalf of R1 to R10 in favour of Capt. Harish Khatri, we find that R/A to counter reply covers R1, R3 to R5 and R11. Authorisation in respect of R6 to R9 have also been filed as Annexure R/B (Colly.). Thus, at the most, R2 (i.e. Secretary, Ministry of Shipping in his personal capacity) has gone unrepresented. The MA is disposed of accordingly.MA No. 832/2006
47. In this MA the applicant has sought production of six documents by respondent Nos. 1, 3, 4 and 5. He has also sought direction to Capt. Harish Khatri tofile evidence by way of an affidavit and to summon him for purposes of cross-examination on behalf of the applicant.
48. The following table provides the list of documents and the arguments for and against their production furnished by the applicant and the respondents:
Sl. No.Details of documents Its relevancy according to applicant Respondents counter Applicant's rejoinder
(i)File/papers/ Correspondence relating to grant of Extra Master Certificate to respondent No. 8 & 9 and internal investigation conducted by respondent No. 4/6 on the basis of complaint by the applicant. Applicant made complaint against grant of Extra Master Certificate to respondent Nos. 8 & 9 by illegal action of respondent Nos. 3, 4, 5, 6 & 7 due to which the applicant has been subjected to present illegal and biased transfer order by respondent No. 3. The internal investigation was conducted by respondent No. 4/6, without calling the applicant/complainant. It is not relevant but can be produced, if desired. The contents of the counter reply are denied.
(ii)File/papers/ correspondence relating to initiation, recommendation and approval of issue of impugned transfer order dated 25-11-2005 issued from the office of respondent No. 3.
The impugned transfer order was issued from the office of Respondent No. 3 who now is claiming, through rejoinder, that the said order was issued in a different capacity and therefore the need to ascertain the truth. The transfer order was issued by the competent authority and can be produced, if required. The contents of the counter reply are wrong and misleading for the reasons mentioned in the rejoinder.
(iii)Record showing number of U.P.S.C. selected and Govt. appointed post of Nautical Officers in India (L.B.S. CAMSAR) since 1984, till date and reductions if any. The respondent/s have not specifically given out the directly related information to applicant's permanent non-transferable post in L.B.S. CAMSAR and therefore the need to ascertain the entire facts. In view of the terms and conditions of his appointment order, he was required to serve anywhere in India. Now after formation of IIMS, he is transferable only among four institutes.
The contents of the counter reply are wrong and misleading for the reasons mentioned in the rejoinder.
(iv)Transfer policy of U.P.S.C. selected and Govt. appointed Nautical Officers. The applicant's post is non-transferable but the respondent No. 3 is claiming that applicant can be transferred outside Mumbai and therefore the need to ascertain fairness and non-arbitrariness on the part of authorities. -do- The contents of the counter reply are wrong and misleading for the reasons mentioned in the rejoinder.
(v)Files/papers/corres - pondence relating to higher pay of respondent Nos. 8 & 9 who were given higher initial pay in 2000 by the then D.G. Shipping vis-a-vis the applicant who is senior to them and had made representation. The authorities suppressed relevant facts and favoured respondent Nos. 8 & 9 who were junior to the applicant and therefore the need to know the entire truth.Pay protection to respondent Nos. 8 & 9 was initially given in terms of DoPT O.M. dated 10.07.1978. Later, it was re-fixed and reduced. Respondent Nos. 8 & 9 then filed OAs before the Mumbai Bench of this Tribunal (OA Nos. 620/2004 & 621/2004) and were restored their original pay protection by virtue of the order dated 09.03.2005 of the Tribunal.
The contents of the counter reply are wrong and misleading for the reasons mentioned in the rejoinder.
(vi)File containing notes relating to applicant's representation dt. 07.01.2006 addressed to the Hon'ble Union Minister for Shipping, Road Transport and Highways, New Delhi in terms of Order dated 05.01.2006 of this Hon'ble Tribunal. The counter reply does not specifically state that the applicant's representation dated 07.01.2006 was disposed of by respondent No. 1 by reasoned and speaking order. A speaking order dated 06.02.2006 (Annexure R-1) was passed, based on the advice of respondent No. 1.The contents of the counter reply are wrong and misleading for the reasons mentioned in the rejoinder.
49. In his rejoinder, the applicant has further provided details of the cadre structure of Nautical Officers in LSB CAMSAR and repeated some of the pleas advanced in his OA as well as certain other MAs. He has referred to the interlocutory order dated 22.02.2005 passed by this Tribunal in OA No. 2294/2002 in the case of Mrs. Mukesh Lata Gautam v. Union of India and Ors. to argue that copies of documents in possession of the respondents need to be provided in advance to the applicant. He has further referred to the order in the said OA, wherein the selection of one S.C. Sharma was quashed. Thereupon, he allegedly approached the Hon'ble High Court of Delhi, which was pleased to grant status quo as of date to the aggrieved person. He has also cited a catena of cases, which have already been discussed earlier, except that of Hon'ble High Court of Himachal Pradesh in CW (P) No. 304/2004 titled Shob Ram v. State of Himachal Pradesh, wherein it was held that mere fact that the transfer order had been implemented or the person concerned had been relieved from the post could not be a ground for refusing to stay the operation of the transfer order.
50. In this MA, the applicant has taken several pleadings, which are extraneous to the main issue of production of certain documents. These pleas would be addressed in the course of our considering the main OA. However, as far as this MA is concerned, we find no merit in it upon taking into consideration the arguments advanced by the respondents in their counter. In particular, we would like to mention that we are not interested in conducting a rowing enquiry, based simply on the allegation of the mala fides made by the applicant, into matters that are largely outside the scope of the main framework of the OA. This MA is, therefore, disposed of accordingly.
MA No. 1126/200651. In this MA the applicant has sought release of his pay from December 2005 onwards.
52. In their counter reply, the respondents have drawn attention to the order of this Tribunal dated 05.01.2006 wherein they were required to maintain status quo as of that date. It has been stated that the applicant was on medical leave from 28.11.2005 to 2.12.2005 and thereafter on extended spell of medical leave for thirty days from 3.12.2005 to 1.1.2006. The applicant, however, stood relieved w.e.f. 2.1.2006 by the Principal, LBS, CAMSAR, i.e. his controlling officer, on expiry of leave on 1.1.2006 (Annexure R-2 in MA 166/2006) vide letter dated 2.1.2006 in accordance with the Departmental Order No. P&A/G.O.(96)/282 dated 22.12.2005 (Annexure R-3, in MA 166/2006) with a direction to report to the Director, MERI, Kolkata with Medical Fitness Certificate. According to the respondents, since the transfer order had already been issued prior to 5.1.2006, the applicant was required to report to Kolkata. Status quo, therefore, in this case, was to maintain the status as was before 05.01.2006. The status quo could not be taken to mean that the order of transfer already issued was to be set aside. However, contrary to the Departmental Order dated 22.12.2005, the applicant neither reported at MERI, Kolkata nor reported back for duty at LBS CAMSAR, Mumbai.
53. The Directorate General of Shipping vide letter dated 21.06.2006 (Annexure R/B) has directed the Secretary, IIMS, Mumbai to release his salary and credit the same in the applicant's personal bank account immediately. However, the Secretary, IIMS vide his letter dated 29.06.2006 (Annexure R/C) intimated that the period of absence of the applicant from 28.11.2005 to 1.1.2006 ( i.e. the date of his relief from LBS College) could not be regularized as no medical leave was available to his credit. DG (Shipping), vide letter dated 30.06.2006 (Annexure R/D), has instructed the Secretary, IIMS, Mumbai to release his duty pay and leave salary to the extent of leave available to the applicant. Since the applicant did not join his duties and availed leave/remained absent from duty without approval of the competent authority, the respondent No. 5/7 is not in a position to draw his salary. To enable release of his salary, the applicant has to apply for leave and get regularization of leave to the extent of leave at his credit. Accordingly, a letter has been issued to the applicant by the respondent 5/7.
54. In his rejoinder, the applicant has stated that the submissions made in the counter reply are wrong and misleading and denied. Admittedly, respondent No. 5/7 did not permit the applicant to carry out his duties when the applicant had reported for duty to LBS CAMSAR after getting fitness certificate. The applicant had reported back for duty at LBS CAMSAR on 09.01.2006, but he was not permitted to be on duty, for which the applicant filed M.A. 166/2006. The applicant has drawn attention of his various averments in the O.A., various M.As, counter replies and rejoinders, which, according to him, expose the mala fides, contradictory and illegal, misleading stands taken by various respondents. There is no correspondence on record from MERI, Kolkata. Respondent No. 7 (Shri J.K. Dhar) is now making correspondence as Secretary, IIMS, which is not a Government post, yet surprisingly he is still approaching respondent No. 3 regarding applicant's pay although IIMS, being the borrowing institution, appears to be responsible for release of pay of the applicant. The applicant is entitled to pay till date as he had joined duty on 09.01.2006 but the answering respondent has cleverly not stated anything about the applicant's service period after 09.01.2006. The answering respondent and other concerned respondents are liable for contempt of this Hon'ble Tribunal as well as liable to departmental enquiry on the issue of making false reports that the applicant had not reported for duty to LBS CAMSAR on 09.01.2006.
55. Our order in the main OA shall also address the issues raised in this MA.
OA No. 2776/200556. To recapitulate the averments of the applicant and his learned Counsel relying on various authorities and judicial pronouncements, he has sought quashing of the impugned order transferring him to MERI, Kolkata primarily on the following grounds:
The advertisement, to which he had responded, did not mention anything about having to serve anywhere in India. The authority issuing the advertisement is bound by the terms and condition mentioned in it. His service conditions cannot subsequently be changed to his disadvantage.
He was recruited to work permanently in LBS CAMSAR.
Having been recruited as a Government servant, he cannot be sent on deputation or transferred to a third party or sent from one deputation to another deputation on an analogous post without his consent, particularly when he was on deemed deputation to IIMS on 'as is where is' basis.
Being a Government servant, his postings and transfers have to be decided and ordered by the Government and not by the authorities with whom he is serving on deputation or any one else, except Secretary, Ministry of shipping.
Since transferring to MERI, Kolkata along with the posts, amounts to creation of a post in the said institution, UPSC should have been consulted.
57. The applicant has further alleged mala fide on the part of the respondents, particularly respondent Nos. 2/3, 4/6 and 5/7 for the following reasons:
fixation of pay of his juniors (R8 & R9) at a higher stage in the pay scale than his own;
non-clearance of his Extra Master's dissertation, in the first instance;
issue of Extra Master's Certificates to respondent Nos. 8 & 9 in violation of law;
prevarications in respect of grant of medical leave to him from time to time, including later denial of stand taken earlier;
not forwarding his application for deputation on the higher post of Director (Admn.) in NWDA;
transferring him to MERI, Kolkata, even in the absence of an assignment there to match his expertise and experience as Nautical Officer; and bias arising on account of various representations and legal notices sent by him.
58. The rebutment of these arguments, provided in various counter replies of the respondents and the averments of the learned Counsel for the respondents, could be summarized as follows:
As regards the transfer liability of the applicant, even though it was not specifically stated in the advertisement, in the first place, the letter sent by the UPSC dated 03.02.2000 (Annexure A-4) stated:
The offer of appointment will also be subject to such conditions as applicable to all such appointments under the Central Government.
Moreover, in Memo dated 15.02.2000, though which an offer of appointment was made to the applicant, para 2(iii) clearly stated: "The appointee will be required to serve in any part of India." Thus having taken up the assignment on 17.04.2000 at LBS CAMSAR, based on these terms and conditions, it is not open to the applicant to challenge them now.
The applicant had no doubt responded to an advertisement relating to the vacancies available, at that point of time in LBS CAMSAR and TCS. However, even at that point of time, four institutions, namely, LBS CAMSAR, TCS, MERI, Kolkata and its branch at Mumbai were under the purview of Director General of Shipping, who had recruited him. The only difference now is that these four institutes have been constituted into a Society (IIMS). Further, the recommendations of the Parliamentary Standing Committee (Annexure A-7), to set up a University by an Act of Parliament is being processed. Pending statutory constitution of the University, the applicant has the original liability of being transferred only among the four institutes listed above.
Further, in terms of the recommendations of the Parliamentary Standing Committee, the terms and conditions of service of the applicant and other government employees of the institutes, including their pay and allowances, CGHS facilities and retention of Government accommodation have not been changed.
59. As regards the allegation of mala fide, the respondents have made the following rebutments:
The higher pay for respondent Nos. 8 & 9 was ultimately fixed in the light of the order of CAT (Mumbai Bench).
Non-acceptance of the dissertation of the applicant for award of the Extra Master's Certificate was on account of his poor performance.
As regards alleged irregularities in the grant of Extra Master's Certificate to respondent Nos. 8 & 9 the issue was examined by the Chief Examiner of Master and Mates and no irregularity was found.
Non-forwarding of applicant's application to NWDA has no relevance to the issue of his transfer, which has been challenged in this OA.
The applicant was transferred to MERI, Kolkata in the interest of the Engineering Cadets there, so as to make them competitive at par with the contemporary Marine Engineers in the rest of the world.
60. As regards the main issue of transfer of the applicant from LBS CAMSAR to MERI, Kolkata along with his post, we find that the respondents have clearly established that the applicant had been adequately advised regarding his liability for all-India transfer. If he had any grouse regarding change in the terms and conditions of his appointment vis-a-vis the advertisement, he should have agitated it on receiving the letter of appointment dated 15.02.2000. In fact, admittedly, he joined LBS CAMSAR on 17.04.2000, the same day on which he received the letter of appointment (Annexure A-28), which clearly stated that his appointment was as per the terms and conditions mentioned in the OM dated 15.02.2000, which included all-India transfer liability. As a matter of fact, the UPSC had recommended him for the posts advertised in respect of LBS CAMSAR and TSC. He was then offered an appointment at LBS CAMSAR by the respondents. We fail to find any merit in the argument that having been appointed against a vacancy in LBS CAMSAR he has a right to continue there. Moreover, even as per the original arrangement, Director General of Shipping had the four training institutes under his charge and, depending upon the exigencies of work, he could have been transferred to any one of them. The Parliamentary Standing Committee too made a recommendation for not changing the terms and conditions of service of the employees of 'erstwhile Maritime Institutes', implying, thereby, that the 4 institutes are one entity. Moreover, the institutional restructuring resulting in the setting up of IIMS in 2002, was not immediately challenged by the applicant. It is only when his services were sought to be placed at the disposal of MERI, Kolkata, that he challenged various decisions and orders of the respondents. We agree with the learned Counsel for the respondents that the consent of the applicant to various rearrangements was, therefore, implicit. We also do not find any merit in the technical plea that being a government servant he cannot be transferred by IIMS authorities, because the so-called IIMS authorities are none else than the Principal of LBS CAMSAR, Director General of Shipping, Secretary, Ministry of Shipping and the Minister of Shipping, as per the composition of the Society of IIMS and its Board of Governors notified vide orders dated 25.10.2002. The restructuring of the maritime training institute of DG (Shipping) has been done under Rule 37A of the CCS (Pension) Rules, 1972, which has not been challenged. The respondents have also given adequate justification for applicant's transfer to MERI, Kolkata. We do not find any merit in applicant's argument that insofar as his transfer to MERI, Kolkata with the post amounts to creation of a post, UPSC should have been consulted. There is no such requirement for creation of posts in Government of India, since the competent authority has the power to create or abolish posts.
61. From the catena of cases cited by the learned Counsel for the respondents to establish that transfer is not only an incident but a condition of government service, we would like to quote the following ruling of the Hon'ble Supreme Court in Gujarat Electricity Board asnd Anr. v. Atmaram Sungomal Poshani (supra):
Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident and a condition of service. It is necessary in public interst and efficiency in public administration. No government servant or employee of public undertaking has legal right for being posted at any particular place. Whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. He has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case.
62. A charge of mala fides, it is said, is easy to make but difficult to prove. Weighing the grounds for this charge listed by the applicant against the rebuttals provided by the respondents, we do not find any substance in them. The argument that the respondents did not properly defend the case relating to grant of higher stage in the pay scale to respondent Nos. 8 & 9 before Mumbai Bench of CAT, falls barely short of doubting the judicial competence and sagacity of CAT. We, therefore, do not find any merit in it. The argument that rejection of his dissertation, in the first instance, exemplified mala fides on the part of the respondents is also not worthy of consideration because, admittedly, his dissertation was accepted, albeit on the second attempt. The respondents have also given satisfactory explanation for the so-called illegal grant of Extra Master's Certificate to respondent Nos. 8 & 9. In any case, the applicant has not argued that the rejection of his dissertation, in the first instance, and the grant of the alleged illegal Extra Master's Certificate to the respondent Nos. 8 & 9 has, in any way, led to the impugned order or, even otherwise, has marred his career prospects. The applicant's transfer to MERI, Kolkata, even in the alleged absence of a suitable position in that institute, has also been adequately explained by the respondents, in their counter reply as well as in the order dated 06.02.2006. The arguments in respect of mala fides relating to non-forwarding of his application to NWDA and due to submission of representations and legal notices by him are also too weak to merit consideration. As a matter of fact, one of the documents (Annexure A-26) the applicant has filed to establish that he is a permanent employee of LBS CAMSAR, is actually a letter forwarding one of his earlier requests for deputation to Inland Waterways Authority of India. The allegation of issue of 'warning' to him when he was medically unfit and was advised five days bed rest in the context of observance of Hindi Pakhwada has also been adequately explained by the respondents.
63. This leaves us with the issue of medical leave applied for by the applicant and the impugned order of the respondents transferring him to MERI, Kolkata, during its pendency, raised not only in this OA, but also in MA 166/2006. To recapitulate, the applicant initially applied for medical leave from 28.11.2005 to 02.12.2005 and thereafter sought its extension from 03.12.2005 to 01.01.2006. He allegedly went to Government doctor on 02.01.2006 to obtain medical certificate and was advised a further five days rest till 06.01.2006. He appeared before the Government doctor on 07.01.2006 accordingly and was declared fit enough. He kept LBS CAMSAR informed about these developments and, after the weekend, reported to duty on 09.01.2006, but was not permitted to join. According to the applicant the order dated 02.01.2006 relieving him from duty allegedly at the end of his leave on 01.01.2006 has been manufactured later. We do not find any merit in this line of argument. There is nothing that prevents the competent authority to issue an order of transfer of an employee, during the period when he is on leave, asking him to report to another station, after obtaining the requisite medical certificate. As a matter of fact, as early as on 22 December 2005 the respondents had issued a Department Order (Annexure R-3, in counter to MA 166/2006) directing the applicant to report to MERI, Kolkata on 02.01.2006 upon expiry of leave and submit the required Medical Fitness Certificate from the competent authority on his reporting to Director, MERI, Kolkata. This, in turn, was in compliance of the impugned order of R 3 dated 25.11.2005. Thus the order dated 02.01.2006 was not a sudden or after-thought as alleged by the applicant. It had been in the making for quite some time. The right course of action for the applicant, therefore, would have been to report to MERI, Kolkata after obtaining the Medical Fitness Certificate on 07.01.2006. In this context we would again like to quote the following observation of the Hon'ble Supreme Court in Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani (supra) as follows:
No government servant or employee of any public undertaking has a right to be absent from duty without sanction of leave, merely on account of pendency of representation against the order of transfer.
In this context it is not material that applicant reported to Principal, LBS CAMSAR but was not allowed to join. He should have reported at MERI, Kolkata. This also permits us to answer the prayer of the applicant in MA 1126/2006 for release of pay from December, 2005, partly in the negative. He is entitled to be paid his full pay and allowances up to 01.01.2006, subject to completion of requisite formalities.
64. The applicant has annexed a copy of Office Order No. 129 dated 31.10.2003 (Annexure A-6) whereby he was ordered to look after the current charge of Principal, LBS CAMSAR as well as Secretary, IIMS and Secretary, Management Committees with effect from 10.11.2003 until further orders. At the same time, in his representation dated 07.01.2006 (supra) in compliance of the order of this Tribunal dated 05.01.2006, he has stated:
33. On 31st October, 2003, the then Principal LBS CAMSAR, Shri A.K. Sehgal (Engineer) was to retire. However, he proceeded on leave from 15th October, 2003 and I being the senior most present was asked to take charge of the duties of Principal LBS CAMSAR.
After the retirement of Sh. A.K. Sehgal on 31st October 2003, I formally took over the charge of Principal LBS CAMSAR, w.e.f. 31.10.2003 AN as per D.G. Shipping Officer order No. 129 dated 31.10.,2003. On 1st January 2004, while I was on leave, I was surprised to learn that Sh. J.K. Dhar had come to LBS CAMSAR and had taken over the charge of the duties of Principal without any prior intimation to me from anyone including Sh. J.K. Dhar himself. Shri J.K. Dhar did not take over formal charge of Principal LBS CAMSAR from me even subsequently as per the office procedure but has continued performing duties of Principal LBS CAMSAR ever since. Till date the said handing/taking over of the charge of Principal LBS CAMSAR between myself and Sh. J.K. Dhar remains incomplete as per the Govt. procedure.
65. We consider this statement as a prime example of running with the hare and hunting with the hound. If the respondents reposed enough confidence in the applicant to appoint him as in-charge Principal of LBS CAMSAR, the charge of mala fides against them is prima facie unsustainable. At the same time, having assumed current charge as Secretary, IIMS and Secretary, Management Committee for about two months without demur, now to question the setting up of IIMS and the authority of its officials to transfer him smacks of duplicity, to say the least.
66. In the ultimate analysis, therefore, for the foregoing reasons, we do not find any merit in the allegation of mala fide by the applicant against the respondents.
67. There is also this issue of the applicant having made representation dated 07.01.2006 (supra) as per the direction of this Tribunal dated 05.01.2006 (supra) and the order thereon issued by the respondents dated 06.02.2006 (supra). We find that the applicant's representation dated 07.01.2006 was adequately responded to by their order dated 06.02.2006. We find no merit in the allegation of the applicant that his representation addressed to the Minister of Shipping was never placed before him. What is important to note is the fact that the respondents order dated 06.02.2006 was issued in the name of the President, which has not been questioned by the applicant. In any case, insofar as the applicant, admittedly, is a government servant, an order issued in the name of the President should suffice. It may also not be out of place to mention that the order dated 06.02.2006 has not been challenged in this OA.
68. In view of our findings above, we also reject the request for production of certain documents made in MA 832/2006 as not relevant.
69. As regards the applicant's prayer for formulation of policy guidelines for new service conditions of Nautical Officer, we are sure the respondents are seized of the matter and would address this issue in the aftermath of the pending legislation.
70. Taking the totality of facts and circumstances as well as the averments of the parties and the arguments of their counsel into consideration, we come to the conclusion that there is no illegality in the transfer of the applicant from LBS CAMSAR to MERI, Kolkata. The allegations of mala fides in this regard have also not been established. The representation of the applicant, in compliance of the order of this Tribunal dated 05.01.2006 has been adequately responded to by the respondents vide their order dated 06.02.2006.
71. In the result, therefore, we find that the OA is without any merit and it is, accordingly, dismissed. The interim order dated 05.01.2006 stands vacated. There will be no order as to costs.
72. Before parting with the case, however, we would, on the one hand, like the applicant to appreciate the virtue of patience. At the present juncture, the status of the concerned organisations is in a state of flux. Once the proposed Bill becomes an Act of Parliament, there will follow a sequence of decisions, which will clear the fog relating to the anxieties expressed by the applicant about his status. On the other hand, we would also like the respondents to take note of the plight of the applicant relating to his family situation, at the present juncture, and adopt a humanistic approach.
73. We would like to place on record our appreciation of the excellent support provided to us by Shri A.K. Bakshi along with Shri G.S. Lobana, learned Counsels for the applicant and Shri T.C. Gupta along with Shri Rajeev Bansal and Shri Asish Nischal, learned Counsel for the respondents.