Central Administrative Tribunal - Mumbai
Unknown vs The Union Of India on 10 January, 2014
1 OA.213/13 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.213/2013. Dated this Friday the 10th Day of January, 2014. Coram:Hon'ble Shri A.J. Rohee, Member (Judicial). Anil Devdatta Gaikwad, Working as Postal Assistant, Solapur Division, Solapur-413001 Residing at 2/38, Umanagar, Old Mill Compound, Solapur 413 001. ..Applicant. ( By Ms.Priyanka Mehendiratta, Advocate ). Versus 1. The Union of India, through the Secretary, Department of Posts, Dak Bhavan, Sansad Marg, New Delhi 110 001. 2. The Chief Postmaster General, 2nd Floor, GPO Building, Mumbai 400 001. 3. The Senior Superintendent of Post Offices, Solapur Division, Railway Line, Solapur-413001. ..Respondents. ( By Shri V.S. Masurkar, Advocate ). O R D E R
This is the second round of litigation before this Tribunal after the previous one bearing O.A.No.430/2012 filed by the applicant was disposed of on 03.08.2012 with a direction to the Respondents to consider his pending representation for cancellation of his transfer 2 OA.213/13 order.
2. The applicant by this application under Section 19 of the Administrative Tribunals Act, 1985 has challenged the impugned order dated 22.02.2013 (Annexure A-1) passed by the Respondent No.2 rejecting his representation dated 19.06.2012 (Annexure A-7) for ccancellation of the transfer order dated 30.05.2012 (Annexure A-2) by which he was shifted from Head Post Office Solapur to Karajgi Post Office.
3. The facts of the case in nutshell may be stated as under:That the applicant was appointed as the Postal Assistant on 11.01.1988 and since then was serving at Solapur. The Respondent No.3, Sr. Superintendent of Post Offices, Solapur issued a circlar dated 01.02.2012 (Annexure A-6) for annual general/rotational transfer of the officials for the year 2012-13 calling choice/ preference of stations, who were due for transfer on completion of post and station tenure and also from the long stayed officials at Solapur. However, according to the applicant he was not due for transfer nor his willingness was sought and suddenly impugned transfer order (Annexure A2) was issued transferring him from Solapur to 3 OA.213/13 Karajgi as S.P.M. The applicant was also relieved on 16.06.2012 (Annexure A-7) to join his new place of posting. The applicant raised various grounds for cancellation of the impugned transfer order addressed to the Respondent No.1. After waiting for a few days since nothing has been heard from the Respondents, he filed previous O.A. seeking the same relief as claimed by him in the present O.A. As stated earlier the said O.A. was disposed of with a direction to the Respondents to decide the representation, which was rejected after giving personal hearing to the applicant.
4. The applicant has raised the following grounds challenging the impugned order Annexure A-1 and Annexure A-2:(
a) That the cadre of Postal Assistant is exempted from rotational transfer in the light fo the clarification dated 28.05.2012 issued by Respondent No.1.
(b) That the applicant was not due for transfer since two years back i.e. on 29.04.2010, he was transferred from Solapur Market Post Office, Solapur to Head Post Office, Solapur at his own cost and request.
(c) That in first transfer memo dated 4 OA.213/13 29.04.2010 (Annexure A-4) concerning 33 officials who were due for transfer on completion of tenure, the name of the applicant was not included and further that his willingness or choice of posting was not asked and he was abruptly transferred by the impugned order Annexure A-2 transferring 38 officials out of 60, who were reported to be having longest tenure at the headquarter.
(d) That the officials at sl.no.1,2,3,4,6,7,8 and 10 of the list circulated on 01.02.2012 were not transferred although they had longest stay at Solapur.
(e) That on spouse ground in pursuance of O.M. Dated 30.09.2009 issued by DOP&T, the applicant was not liable for transfer since his wife was serving at Central Railway Hospital, Solapur and his daughter was prosecuting her studies, especially when there is no Railway Hospital at Karajgi.
(f) That the applicant was victimised since he was looking after the activities of the Employees Union as its President and has questioned many actions of the Respondents for the welfare of the members.
(g) That there are about 3 to 4 posts of 5 OA.213/13 Postal Assistant vacant at Solapur H.O. and that the Postal Assistant previously serving at Karajgi was not transferred to Solapur on his request, hence applicant could have been easily accommodated and retained at Solapur.
(h) That Karajgi P.O. does not have basic amenities like toilet and although this issue was not raised by the previous officials working there the same is very much concerned with the right of the applicant to live with dignity. This aspect was overlooked by the Respondents.
(i) That the Respondent No.3 was not competent to issue the transfer order since he was posted periodically as a stop gap arrangement only for more than 3 = years hence transfer order issued by an incompetent authority deserves to be quashed.
(j) That the impugned order Annexure A-1 on the representation was passed by the Respondent No.3 without appreciation of facts, application of mind and in a most casual manner and it cannot be said to be a speaking order. This amounts to violation of the order/direction issued by this Tribunal in the previous O.A.
5. On notice the Respondents appeared and resisted the application by common written 6 OA.213/13 statement dated 22.08.2013, denying all the adverse allegations and averments made therein. That the applicant was appointed in Postal Department in relaxation of normal Recruitment Rules as Postal Assistant Maindargi SO with effect from 11.01.1988 in Solapur Division. Subsequently he was transferred in the same capacity to Solapur H.O. With effect from 18.08.1988 and since then he is working there i.e. for the last 24 years. His name was, therefore, included at sl.no.14 in the second annexures to the letter dated 01.02.2012 (Annexure A-6) (Annexure R-1). The willingness and choice/performance of posting by the officials included in both the annexures attached to the said letter. Since the applicant failed to submit choice/preference of his posting within time prescribed under Annexure A-6 and since no request for transfer to Karajgi SO was made by any official due for transfer or by long stayed officials, the applicant was required to be transferred there in the interest of service/administrative exigency. Approval of Regional Office, Pune was sought to the transfer order Annexure A-2 and then only it was issued and the applicant was relieved. However, till 7 OA.213/13 today he failed to join or report at Karajgi SO in violation of CCS (Conduct) Rules, 1965. The representation dated 01.06.2012 submitted by the applicant to the Chief Post Master General, Maharashtra Circle, Mumbai was forwarded by the Respondent No.3 to the said authority with parawise comments on 11.06.2012. However, without waiting for a decision thereon the applicant hurriedly approached this Tribunal on earlier occasion.
6. That the transfer of the applicant was made strictly by following the guidelines for rotational transfer, which are applicable to all the officials including the cadre of Postal Assistant. That the applicant adopted different tactices to get personal benefits as office bearer of the Union, RTI activist and issuance of legal notices through Advocate. He has, therefore, not come with clean hands before this Tribunal.
7. That the Post Office at Karajgi is located in the rented premises of Grampanchayat and necessary sanitary facilities have been provided near the Post Office. As such there is no force in the contention that reasonable toilet facilities are not available at Karajgi and 8 OA.213/13 incorrect averments are made in this behalf without verifying the factual position.
8. That from 01.06.2012 to 12.04.2013, the applicant submitted number of representations to different authorities including Chief Post Master General, Mumbai, Secretary of Posts, etc.
9. That the law laid down by the Hon'ble Supreme Court on the issue of transfer of Government servant is very clear and no employee can seek retention as of right especially when the transfer order is made in the interest of service. Further no malafides are alleged or proved by the applicant in issuance of the transfer order.
10. That the willingness and choice/preference of posting was sought from the employees who were due for transfer on completion of post tenure/station tenure and also from others having longest stay at Solapur. The applicant's name was included in the second list. However, he had neither submitted willingness nor sought retention nor had given choice/preference of posting and hence he was transferred to Karajgi on administrative ground. It is clarified that the criteria of station tenure is not applicable to the cadre of Postal Assistants, 9 OA.213/13 except when the transfers are ordered in administrative interest and under exigencies of service. The applicant's case comes under this exception clause.
11. That the applicant had enjoyed the spouse ground facility at Solapur for the last 24 years and he informed the Respondents that he is residing separate from his wife at some other place, when a notice was issued to him for withdrawal of HRA on the ground that his wife was alloted a Government accommodation. The applicant is, therefore, estopped from claiming the benefit of spouse ground. The period of local transfer will not be counted for station tenure and the applicant's case was considered being a longest stay official at Solapur station and hence he was transferred by following due process and by virtue of the transfer policy. As such there is no violation of any condition of transfer policy.
12. That the maximum number of officials having longest stay at Solapur from the list were transferred and the request for retention made by the lady employees was considered on personal grounds. Since the applicant did not seek retention on personal ground nor had given choice of 3 stations for posting on transfer and since 10 OA.213/13 no request for transfer at Karajgi SO was made by any official due for transfer or from the list of officials having longest stay, the applicant was transferred there in administrative exigency. That the female employees in the list have been exempted from transfer.
13. That the contention of the applicant that there is no Railway Hospital at Karajgi SO to accommodate his wife is irrelevant and on this count alone he cannot be retained at Solapur.
14. That Karajgi is a small village having population around 10,000 and it is just 30 kms. away from Solapur. A care was taken to see that the applicant was posted at the convenient place. As such the applicant should not have any grievance for his transfer order.
15. That the Respondent No.3 was fully competent to issue the transfer order with the approval of the Regional Office and as such although he was posted periodically on adhoc basis he was empowered to issue the transfer order.
16. That the Respondent No.2 has carefully considered the representation of the applicant and his predecessor had given a personal hearing to him, although he could not pass the order on 11 OA.213/13 the said representation before he is shifted from Branch. His successor, however, considered it and applied his mind to the facts and material brought on record and also all the grounds raised by the applicant in the representation and then only rejected the same. It, therefore, cannot be said that the impugned order Annexure A-1 or the transfer order Annexure A-2 are liable to be set aside.
17. On the above grounds it is prayed to dismiss the application.
18. The applicant on 08.10.2013 submitted a rejoinder denying all the adverse allegations and averments made in the written statement.
19. On 19.12.2013, when the matter was called on for final hearing, heard the oral submissions of Ms.Priyanka Mehendiratta, learned Advocate for the applicant and Shri V.S. Masurkar, learned Advocate for the Respondents. I have carefully gone through the pleadings of the parties and the material placed on record in support of their rival contentions.
20. The only point that arises for my consideration is whether the impugned transfer order Annexure A-2 and the impugned order Annexure A-1 rejecting the representation of the 12 OA.213/13 applicant for cancellation of the transfer order are liable to be set aside or quashed on the grounds raised by the applicant? I record my finding in the negative for the following reasons.
Reasons
21. Before proceeding to consider the rival contentions of the parties, I would like to mention here that the law laid down by the Hon'ble Apex Court on the issue of transfer of Government employees is well settled. So far as scope and power of judicial review vested in this Tribunal to consider any challenge to the transfer order of a Government employee issued by the competent authority is concerned, it has been held in a case of Union of India Vs. S.L. Abbas, AIR 1993 SC 2444 and in N.K. Singh Vs. Union of India, (1994) 28 ATC 246 that there can be no interference with the transfer order unless malafides or infraction of any professed norms or principle of transfer policy is established.
22. In another case of State of Madhya Pradesh and others Vs. S.S. Kourav and others, JT 1995 (2) SC 498, it is held that the Courts or Tribunals are not appellate forums to decide on transfers of officers on 13 OA.213/13 administrative grounds. The wheels of administration should be allowed to run smoothly and the Court 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 malafides or by any extraneous consideration without any factual background foundation.
23. Lastly, in a case of State Bank of India Vs. Anjan Sanyal and others, 2001(3) SCC 436, it was held that the order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a Court of Law in exercise of its discretionary jurisdiction unless the Court finds that either the order is malafide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the same.
24. It is, thus, obvious from the above discussion that the scope for interference with any transfer order is limited and normally the same are not quashed, unless it is established that the same are tainted with malafide or passed in violation of any provisions of transfer policy or are issued by the authority not competent to do so. Keeping in view the above principle of 14 OA.213/13 law, I shall now turn to consider the rival contentions of the parties.
25. So far as the first contention of the applicant that the cadre of Postal Assistant is exempted from being considered for the rotational transfer, it is obvious from record that Annexure A-5 (Annexure R-3) is the rotational transfer policy and guidelines dated 02.04.2012 for the year 2012-2013 issued by the Director (Staff), Government of India, Ministry of Communications, Department of Posts, New Delhi. It is obvious that the same is applicable to all cadres including the Private Secretaries/Stenographers and NMMS in the Department of Posts, except Indian Postal Service Group 'A' employees. It clearly prescribes post tenure of four years and station tenure of six years for consideration of rotational transfer, unless otherwise specially specified. It is, thus, obvious that practically for all cadres the post tenure of four years and station tenure of six years is prescribed and after completion of this period the concerned employee comes in zone of consideration for rotational transfer. Of course such employee can ask for retention on personal grounds, for consideration of the Competent Authority. On the 15 OA.213/13 basis of this policy it was tried to contend by the learned Advocate for the applicant that the cadre of Postal Assistants is exempted. However, it is not so since we have to consider the clarification dated 28.05.2012 issued by the same authority i.e. Director (Staff) vide Annexure A-3 on record, which says that station tenure of six years is not applicable to Postal Assistants / Sorting Assistants in the rotational transfer guidelines, except when transfers are ordered in administrative interest and under exigency of services. It is, thus, obvious that under the saving clause the Postal Assistants and Sorting Assistants are liable to rotational transfer on completion of station tenure if the administrative interest or exigency of services so required. The impugned transfer order clearly says that the same has been issued in the interest of service especially when the applicant had 24 years long standing tenure at Solapur H.O. This being so, it cannot be said that the Postal Assistants were not liable for rotational transfer or are totally exempted from transfer from a particular station. I, therefore, reject this contention of the applicant.
26. It is obvious from record that on 16 OA.213/13 29.04.2010, on a request made by the applicant he was transferred locally from Market Post Office, Solapur to H.O. Solapur and as such according to him he has neither completed the post tenure or station tenure and hence was not liable to be transferred. It can only be said that this submission is devoid of any substance or merit especially when number of Post Offices are located at Solapur HO and transfer from one place to another cannot be said to be counted as the separate period of post tenure or station tenure. This is so because while considering the issue of transfer, the total length of service undergone by the employee at the station headquarter is considered and not at the last such local office where before issuance of the transfer memo he was working. Even otherwise, considering the undisputed fact that the applicant was working at Solapur HO itself from 18.08.1988 it is immaterial that prior to two years of issuance of the transfer order Annexure A-2 he was locally transferred from Market Post Office Solapur to the Head Office Solapur. I am not at all impressed with this ground raised by the applicant as a challenge to the transfer order.
27. It is obvious from record that 17 OA.213/13 Respondent No.3 vide office order dated 01.02.2012 Annexure A-6 initiated the process of rotational transfer for both the officials due for transfer on completion of post/station tenure and the officials having longest stay at the headquarters their willingness was also called by 15.02.2012 regarding choice/preference of posting. It is not disputed that the name of the applicant was included at Sr.No.14 in the second list of officials having longest stay at Solapur. It appears that the applicant misread the office order Annexure A-6 and has perhaps overlooked the second Annexure attached to it in which his name admittedly stands at Sr.No.14. It is also specifically mentioned in Annexure A-6 that long stayed officials who completed tenure in Solapur Town as per the second annexure may be transferred out of Solapur to accommodate the request of incoming officials for Solapur Town. It is obvious that the applicant did not submit choice/preference of posting nor applied for retention on personal grounds, (inspite of his long stay at Solapur). This being the position, it cannot be said that the applicant was not liable to be considered by the authority for rotational transfer in the year 2012-13 as 18 OA.213/13 alleged by him. Had the applicant been given any choice/preference of posting he might have been considered for posting at any of place of his choice, if it was feasible to do so. However, since neither the retention was sought nor any choice/preference of posting was given, it was well within the discretion of the Respondent No.3 to transfer the applicant any where as per the office exigency and accordingly he was transferred to Karajgi. Hence no adverse inference can be drawn against the Respondents.
28. It is true that as stated by the applicant few officials from the second annexure having longest stay at Solapur were not transferred. Plausible reasons for the same was also given by the Respondents to the effect that all the female officials were not transferred and no pick and choose policy was applied by the Respondents in retaining them. It is true that some of the officials mentioned in second annexure attached to Annexure A-6 have longer stay than that of the applicant. However, it cannot be said that the applicant was deliberately chosen for transfer from Solapur. The second Annexure to Annexure A-6 shows that in all six officials at Sr.No.9 to 14 including the 19 OA.213/13 applicant were staying at Solapur from the year 1988 and some of them are transferred, including the others having lesser stay. The transfer order Annexure A-2 also shows that out of 38 officials, 10 were transferred locally, some at their own cost and 16 including the applicant in the interest of service. This being the position on record, the learned Advocate for the Respondents is justified in saying that it is not that the applicant alone was transferred and the other long stayed officials were retained. It cannot be said that while issuing the transfer order Annexure A-2 in such circumstances there was any malafides on the part of the Respondent No.3, especially when in fact no allegations about malafides are ever made by the applicant.
29. So far as the retention on the spouse ground as contemplated in OM dated 30.09.2009 is concerned, it is not disputed that the applicant's wife is serving in Central Government Hospital at Solapur. However, it is obvious that the applicant availed/enjoyed the facility of spouse ground since last 24 years as he was not transferred from Solapur prior to 30.05.2012. It cannot be gathered from the provisions of the said O.M. dated 30.09.2009 that no official whose 20 OA.213/13 spouse is serving in the same department or in any other department of Government are not subject to transfer at any time. In fact once the prescribed post tenure or station tenure is completed by any such official, he will be due for transfer, although he may ask for retention on the spouse ground. As stated earlier, the applicant has enjoyed the fruits of the said facility for 24 long years and now it is not open for him to allege and claim again the benefit of the said ground for his further retention by challenging the transfer order. Further, in this behalf the malafides on the part of the applicant are brought to my notice through his reply letter dated 27.05.2008 to the Respondent No.3 in response to the office letter dated 23.05.2008 by which he was called upon to explain as to why the HRA should not be withdrawn and previous dues recovered from him, since his wife was allotted a Government accommodation and he was residing there. In the said reply letter the applicant has specifically averted that he is not staying with his wife in the said Railway Quarter and is staying in Bapuji Nagar separately. This falsifies his case for claiming retention on spouse ground, since the said ground contemplates 21 OA.213/13 and presupposes that the official should cohabit/reside with his spouse at a particular station. In any case, the applicant cannot claim any benefit of this ground and the same has been rightly rejected by the Respondent No.2 while considering his representation. For the above reasons, it is immaterial that there is no Railway Hospital at Karajgi to accommodate the applicant's wife there, in case the transfer order is not cancelled.
30. It is obvious from record that the applicant is the President (Divisional) of Indian Postal Employees Union Group 'C' in Solapur Division. By virtue of this post he is bound to take reasonable steps for grant and enforcement of genuine demands of the employees. However, from this circumstance alone, it cannot be said that he was victimised or made a scapegoat with a view to punish him by issuing his transfer order. He can still proceed with the activities of the employees union from the transferred station also, which is undisputably located at a reasonably short distance of 30 kms. from the headquarter. This being so, it cannot be said that simply because the applicant was active in agitating the demands as President of the 22 OA.213/13 employees union or that he has sought official information by resorting to RTI Act, it cannot be said that on this sole ground his transfer from Solapur is liable to be cancelled.
31. It may be that even on transfer of the applicant and after accommodating some other officials to Solapur City, still some vacancies in the cadre of Postal Assistants is available there. However, this cannot be a ground for cancellation / revocation of his transfer order. Further, Karajgi where the applicant is transferred, was previously manned by Shri S.S. Dhale, who submitted voluntary resignation and hence the said post fell vacant with effect from 14.10.2011. The Respondent No.3 was, however, managing the affairs of Karajgi Post Office by making temporary arrangement and deputing junior Postal Assistant there to perform the duties of Post Master. For this reason there is no force in the contention of the applicant that the official working at Karajgi did not make a request for his transfer and posting at the Headquarter and hence the applicant should be reposted to Solapur. It is true that Karajgi is a small village having Grampanchayat. It is very difficult for any administrative authority to run 23 OA.213/13 a public office at such a small place. However, somebody has to be posted there to continue the Post Office, which cannot be closed or discontinued and as such the Respondent No.3 found the applicant most suitable senior Postal Assistant to be transferred to the said place as Sr. Post Master. In such circumstances, it cannot be said that the applicant has made out any case for cancellation of his transfer order which has been rightly rejected by the Respondent No.2.
32. The applicant raised the issue of lack of basic amenities like toilet at Karajgi. However, in this behalf it is made clear by the Respondents that some temporary arrangement besides the building of Grampanchayat has been made. The Post Office itself is located in the rented premises having some limitations. It is true that previous officials posted at Karajgi did not appear to have made any grievance of lack of toilet facility there. However, it can only be said that they have any how managed and overcome the said difficulty. The Respondent No.3 is justified in saying that this issue can be dealt with separately although there were no complaints regarding lack of these amenities from 24 OA.213/13 the previous officials. It can safely be said that lack of independent toilet facility can be raised as a ground for quashing the transfer order, although the applicant may face some inconvenience in going to urinal and answering call of nature. In any case, some alternate arrangement has now been made by the Respondents and hence I am not inclined to grant any relief to the applicant on this ground.
33. The competence of Respondent No.3 in issuing the transfer order is challenged. However, it is obvious that the impugned order was issued with due approval of the Regional Office. Although the post of Respondent No.3 is transferable periodically, it cannot be said that he was not competent to issue the transfer order.
34. Lastly, so far as challenge to the impugned order Annexure A-1 is concerned, its bare perusal shows that in Para 2 to 7 each ground was separately dealt with and considered by the Respondent No.3. The only issue that the previous Chief Post Master General had given personal hearing to the applicant on his representation and the impugned order Annexure A1 was passed by his successor, it cannot be said to have any relevance in this case. This fact 25 OA.213/13 was specifically stated by the Respondent No.2 in the order Annexure A-1. He has also stated that he has carefully examined the matter and carefully considered the relevant record and the points raised by the applicant in the personal hearing and then dealt with each point separately. This being so, it cannot be said that the impugned order Annexure A-1 has been passed in violation of the principles of natural justice. In fact the learned Advocate for the Respondents is justified in saying that while considering the representation for cancellation of the transfer order personal hearing is not imperative, like the one in the departmental inquiry or any other administrative matter.
35. In any case, from perusal of the record, it cannot be said that impugned transfer order or the impugned order rejecting the representation for cancellation of the transfer order are arbitrary, illegal or tainted with malice or in violation of any transfer policy or that the impugned transfer order is issued by incompetent officer. This being so the applicant is not entitled to any relief. It is stated that in spite of the transfer order the applicant failed to report or join Karajgi Post Office. It 26 OA.213/13 is pointed out by the applicant in his rejoinder that his application Annexure A-11 dated 26.11.2012 for grant of Earned Leave of 7 days was not considered by the Respondent No.3 vide letter Annexure A-12 dated 16/20.08.2013 directing him to join duty at once and this was in pursuance of his previous letter dated 14.06.2013 for grant of extra ordinary leave to him. In any case, since the applicant does not appear to have joined the new place of his posting the necessary consequences shall follow, although he is still at liberty to resume the duties immediately in order to avoid unpleasant consequences.
36. In the result, the application stands dismissed. However, with no order as to costs. Mumbai. ( A.J. Rohee ) Dated 10.1.2014. Member (J).
H.