Central Administrative Tribunal - Chandigarh
Rajinder Singh And Ors. vs Union Of India (Uoi) And Ors. on 9 November, 2001
ORDER Jasbir S. Dhaliwal, Member (J)
1. These are number of O.As filed by employees of Chandigarh Administration mainly from Engineering Department who have all been transferred to Municipal Corporation, Chandigarh. They have all challenged their transfer giving detailed facts of their joining service under Chandigarh Administration and the posts they had been holding in substantive, permanent, or other basis. Since identical questions of facts and law are involved, we are making reference to the facts as pleaded in the case of Rajinder Singh and Others, O.A. No. 488-CH-1996; Rakesh Kumar v. Union of India and Ors., O.A. No. 715-CH-1997; Indu Sharma v. Union of India and Ors., O.A. No. 732-CH-1997 and Labh Singh and Ors. v. Union of India and Ors., O.A. 263-CH-1997 with consent of learned Counsel for the parties. Even though in some of these O.As. vires of Section 428(2) of Municipal Corporation Act, Punjab, 1976 as extended to U.T. Chandigarh by Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994 have been challenged with a prayer to quash the same but today all the learned Counsel for applicants joined to say at the bar that the Tribunal may deal with the question of validity of transfer from Job under Union Territory, Chandigarh to a job under the Municipal Corporation wherein they will no longer will have status of Government servants but will be employees of independent entity, in the form of autonomous body of Municipal Corporation. They pleaded that they be given the liberty to challenge the vires after determination of the points raised by them by respondents in view of the opinion to be expressed by this Bench, if they arc still aggrieved. Accepting their plea for such liberty being given to them, we proceed to examine the questions of their transfer to Municipal Chandigarh.
2. Administrator to Union Territory, Chandigarh in exercise of powers vested in him under provisions of Punjab Municipal Corporation Act, 1976, as extended to U.T. Chandigarh by Act of 1994 mentioned above, had ordered transfer of some functions from Chandigarh Administration to Municipal Corporation vide notifications dated 28.9.1995 and 16.5.3996. Many of these functions so transferred to Corporation were previously performed by Public Health Wing of Engineering Department and after transfer of the same, respondent No. 3 issued notification dated 18.5.1996 and part of the same has been placed on record as Annexure A-1. Under it all employees including applicants have been transferred to the Corporation. They have given the sanctioned strength of their cadre of SDEs being 28 out of which 16 were manned by U.T. Cadre personnel working on regular/Adhoc basis; 5 were manned by SDEs on deputation from Punjab/Haryana and 4 by giving them current duty charge of Sectional Officers in their own pay scale in addition to their own duties. Three posts of SDEs were lying vacant. Thereafter they have mentioned the seniority inter se of the SDEs. Chandigarh Administration decided to retain 12 posts of SDEs in Public Health Wing and to transfer 16 posts to Municipal Corporation. Vide notification, Annexure A-l and A-2 12 SDEs including the applicants have been transferred and four vacant posts have also been transferred to the Corporation. An office order dated 13.5.1996, Annexure A-2 was issued mentioning that functions relating to Roads, Horticulture, Storm Water Drainage, Sewerage, Water Supply Distribution, Street Lighting etc. etc. were being transferred to the Corporation in addition to functions already introduced in September, 1995. Through this letter, options were invited from the officials working in their Wing for their transfers and posting to Municipal Corporation which were required to reach the office of the Chief Engineer by 10:00 A.M. on 15.5.1996. Options were also invited from the deputationists working with Chandigarh Administration also. It was mentioned that if no options are received by the time and dale fixed, it will be presumed that none is interested to exercise option for posting to the Corporation. Reading of this letter, Annexure A-2 indicates that these options were invited only from those employees who were working on the functions which were being transferred or are to be transferred and there is no specific detail of such functions. No Proforma for exercising option was mentioned. It was not mentioned that in case of posting to Corporation said employees will become employees of the Corporation. Press Note also appeared in Local Newspapers (The Tribune) on 15.5.1996 mentioning that employees in Engineering Department, Chandigarh-are to be transferred to the Corporation by 23.5.1996 for discharging the functions transferred to the Corporation. It was mentioned that employees who are junior in the cadre will be sent to the Corporation for Maintenance and Operation of the services. Person who is senior employee could give his option if he so desires. The time for such option was mentioned to be by 5.00 PM on 15.5.1996, positively. Here also it was not mentioned that they will become permanent employees of the Municipal Corporation. Applicants No. 2 and 3 had given in writing that they arc not willing to go to the Municipal Corporation. Applicant No. 1 had not given any option for joining corporation. They also served a notice, Annexure A-5 dated 17.5.1996 with a request that they should be retained in the Engineering Department and should not be sent to the Corporation. They however, came to know about notification dated 18.5.1996, Annexure A-1 by which present applicants had been ordered to be transferred to the Corporation with mention that their transfer shall make them employees of the Corporation with immediate effect. Respondents retained five deputationists and three current duty charge SDEs. They challenged the action of the respondents on the grounds that they were regular U.T. Cadre Officers appointed through UPSC, they had expressed their desire not to join the Corporation. Their transfer on permanent basis to Corporation is against their consent and thus illegal. When certain posts or officials are transferred to some other institution, under the norms laid down by Government of India, persons who are rendered surplus are to be adjusted and in the present case to be transferred to the Corporation starting from bottom of the seniority. Respondents have not honoured even this principle. Sanctioned strength of SDEs that continues with Chandigarh Administration is 12 and present applicants figure in the first 12 SDEs and have not opted for joining the Corporation. They have thus prayed for setting aside the order dated 18.5.1996 (A-l) to the extent it transfer the applicants to the Municipal Corporation, Chandigarh and to direct the respondents to retain them on the posts held by them befope such order of transfer.
3. At the time of issuing notice to respondents, vide orders dated 20.5.1996, operation of the impugned order Annexure A-1 was suspended qua the applicants. However two of them had joined their duties in the Municipal Corporation as conveyed to the Bench on the next date of hearing on 24.5.1996.
4. In the case of Indu Slianna, plea taken is that she had infact given consent for joining service in the Municipal Corporation on 15.5,1996, Annexure A-5, to her Controlling Officer. Despite that her option was not accepted on the grounds that it had been received late by the competent authority which was to consider transfer to Corporation. She claims that action of respondents is illegal and arbitrary and has placed reliance on the judgment, Annexure A-7 in the case of Pyare Lal decided on 30.9.1996.
5. In the case of Rakesh Kumar, it is pleaded that he was on sanctioned leave from 13.5.1996 to 26.5.1996 during which period options were called from officials in his department. He pleads that vide letter Annexure A-3 dated 13.5.1996, while inviting options, no sufficient time was given to the employees as options were to be received by 10.00AM in the office of Chief Engineer whereas Annexure A-3 was signed on 13.5.1996. Respondents have failed to honour their policy of transferring out the junior first, in his case as he was at Sr. No. 50 in the seniority list while his juniors were at Seriatem 64.92 etc. i.e. private respondents in the O.A. have been retained by Chandigarh Administration while transferring him out to the Corporation.
6. In the case of Labli Singh and Ors., facts pleaded are similar to the facts in the case of Rajinder Singh and Ors. (supra). It is pleaded that there were 113 posts in the cadre of SOs/JEs out of which 13 had been left vacant. 57 Posts had been transferred to the Corporation while 43 had been retained. On the 43 retained posts, 16 were deputalionists. Punjab Government from which these deputationist had come had given their consent for transfer of their employees on deputation with Chandigarh Administration to the Corporation, Annexure A-4. Retaining these deputalionists, applicants have been transferred to the Corporation by orders dated 18.5.1996. Respondents have recruited four persons vide Annexure A-2 dated 11.11.1996 against 13 vacancies. He pleads that this amounts to retention of juniors while he has been wrongly transferred.
7. Respondents contest the case of the applicants in all the above mentioned cases, pleading that under Section 428(a}(3), Administrator U.T. Chandigarh has framed the policy to transfer U.T. Cadre employees to the Municipal Corporation who opt for the same and thereafter persons are chosen for such transfer from the common cadre of seniority starting from the junior most. Notification was issued on 13.1.1992 in the Gazette in which conditions of service of employees of Punjab have been extended to employees of Chandigarh Administration. PCS Rules have been made applicable to U.T. Chandigarh Employees. They plead that since applicants are challenging the statutory rules, their appointment made under the same rules would become void in the eyes of law. They can engage persons on deputation, as per the FRSRs and also PCS Rules Volume I, Part I. Options were called through Annexure A-2 for their transfer to Municipal Corporation. If not received by 15.5.1996, it was to be presumed that they are not interested to exercise their option. Applicants have been permanently transferred to the Corporation and applicants No. 1 and 2 have already joined on 22.5.1996. In view of this, stay granted was vacated on 19.7.1996 by this Bench. Order of transfer, however, was made subject to the final decision in the O.A. Even persons holding current duty charge have been transferred to Corporation as shown in Annexure A-2. This is as per their option. They plead that transfers are in accordance with the rules. These are also in accordance with the policy framed by the Chandigarh Administration under the powers vested in him under Section 428-A (2)(h) of Punjab Municipal Corporation Act, 1976 as extended to U.T. Chandigarh.
8. Similar pleas have been taken by applicants in other O.As, and replied to by the official respondents on identical line. We have heard all the learned Counsel for the parties.
9. As mentioned above we are not going into the vires of the Section 428(2)(h) or 428(a)(3). First question which we are addressing ourselves is as to whether transfer of employees of Chandigarh Administration to the Municipal Corporation on permanent basis, without consent is legal. This aspect has been addressed by various Courts in a number of judgments many of which have been rendered by the Hon'ble Supreme Court. We are making reference to the same as under:
(i) Aroor Chand and Others v. State of Punjab and Others, 1991(4) SLR 1. Hon'ble High Court of Punjab and Haryana had considered challenge to transfer of employees of Punjab Roadways to Municipal Corporations. It was held that the employees could not be transferred by the Stale to Municipal Corporations since their consent had not been obtained and neither they had been found guilty of misconduct or inefficiency. Reliance was placed on the judgment in the case of Stale of Punjab and Ors. v. Avtar Singh of Hon'ble Supreme Court in Civil Appeal No. 1219/84 dated 3.1.1989.
(ii) A Constitution Bench of the Hon'ble Supreme Court in the case of Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36, had considered the doctrine of pleasure of President as provided under Article 310 during which only a Government servant can hold a Civil Post/Office. It has been held that two qualifications required for putting an end to the status of holder of the Civil post under the Government will restrict the operation of Article 310. In other words, provisions of Article 311 operate as a proviso to Article 310(1). Thus in the absence of any such contract, a substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in prescribed number of years of service or the post is abolished, It was further held that the service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper inquiry after due notice.
(iii) The above question was further considered by a Constitution Bench of 7 Judges in the case of Mali Ram Deka and Ors. v. General Manager, North East Frontier Railway and Others, AIR 1964 SC 600. The question raised here was termination of service of a permanent Railway Servant as provided under Rule 148 and 149 of Railway Establishment Code, 1951 Volume I, Validity of the rules was also considered. Per majority in this case it was held that where a person holds a post under the Government substantively, he has a right to hold it till he reaches the age of superannuation or until he is compulsorily retired. If for any other reason that right is invaded and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must per se amount to his removal within the meaning of Article 311 of the Constitution. They considered the provisions of Rules 148 and 149 which provided the power of termination of such service after notice. Negating the contention that the Railway Servants who have entered service with the full knowledge of these rules and as such could not complain against removal from service on grounds of provisions of Article 311, it was held that such explanation could not be made. They amounted to violation of Constitutional guarantee given under Article 311(2). For the minority view, Hon'ble Justice Shah made a distinction between the persons who have joined service when the rules existed and the persons who were already in service and the rule was framed subsequently for such termination. It was held that a person who had been appointed to a substantive post and was entitled to continue until he attains the age of superannuation till the rule was amended providing for termination under Rule 149(3), a termination of service under this rule would per se amount to dismissal or removal which would be inconsistent with the Article 311. , It is not dispute before us that by transfer from service of U.T. Chandigarh Administration to the Municipal Corporation on permanent basis, the applicants in all these O.As. no longer remain holders of civil posts under U.T. Chandigarh Government. They become permanent employees under Municipal Corporation which is an independent and distinct entity. They lose their status of being Government servants.
(iv) A Constitution bench (Five Judges) of Hon' ble Supreme Court in the case of State of Mysore v. H. Papanna Gowda and Anr., 1971(2) SCR 831 had considered the question as to whether compulsory transfer from Government service operates as removal from service. In this case University of Agricultural Sciences Act, 1963 had been passed by Mysore Stale Legislature establishing the University. Under Section 7(4) of the Act the control and management of such research institutions of the department of Agricultural, as the State Government might by order specify, were to be transferred to the University as and from the date specified and under Sub-section (5) every person employed in such an institution, were, as from the specified date, to become an employee of the University on such terms and conditions as might be determined by the State Government in consultation with the Board of Regents of the university. Shri Papanna had been holding a Civil Post under the State Government, having been appointed as a chemical assistant in the Agricultural Research Institute, Mandya, in the department of Agriculture of the Slate which was transferred to the University, by a notification under the Act. Hon'ble Supreme Court held that this amounted to removal of Shri Papanna from the civil post which was violative of Article 311. As to whether prospects of service for him were or nol prejudicially affected was held to be irrelevant. Since the nolificalion resulted in extinction of his status as a civil servant, such compulsory transfer lo Ihe University was held to be void. On reading of this judgment we find similarly between Section 7(4) and 7(5) of the University of Agricultural Sciences Act, 1963 and provisions of Section 428(2)(h) of the Punjab Municipal Corporation Act, as extended to U.T. Chandigarh through 1994 Act. This view has been further affirmed and followed by the Hon'ble Supreme Court in the case of S.K. Saha v. Prem Prakash Agganval and Ors., AIR 1994 SC 745=1994(1) SLJ 100 (SC), in para 9 and para 10 of the judgment.
(v) There is yet one more case of Jawaharlal Nehru University v. Dr. K.S. Jawalkar and Ors., 1989(3) SLR 730=1989(3) S.LJ 48 (SC) where also a similar question was adjudicated by the Hon'ble Supreme Court. It has been held that no employee can be transferred without his consent from one employer to another. Concerned person in this case was employee of one University i.e. Jawahar Lal Nehru University at one Centre of Post Graduate Studies University at Imphal. Proceedings were taken to transfer Imphal Centre from Jawahar Lal University to Manipur University by enactment of law by the Manipur Legislature known as Manipur University Act, 1980. Thereafter Government of Manipur had passed orders that members of Faculties of Jawahar Lal Nehru University, Centre of Imphal, would, on and from 1.4.1981 become members of the State of Manipur University on the same terms and conditions of service as they were entitled to immediately before that date. Such decision has been held to be illegal. It was held that, there is no doubt that employee could not be transferred by the Jawahar Lal Nehru University to Manipur University without the consent of the concerned Teacher Shri K.S. Jawalkar notwithstanding any statutory provisions to that effect. If a provision is made in an Act for such transfer, it must be construed as a provision enabling such transfer of employee but only on the assumption that the employee concerned is a consenting party to such transfer.
We hold that the provisions under Section 428 of Municipal Corporation Act, 1976 as amended by 1994 Act, has to be construed as enabling provision for such transfer subject to the condition that the employee gives consent for transfer to the Corporation. Similar view was expressed by the Hon'ble Supreme Court in the case of Orissa Electrical Engineers Service Association v. State of Orissa and Others, AIR 1998 SC 760.
10. Learned Counsel for the respondents has attempted to counter the contentions raised by the Counsel for the applicants as expressed in the discussion above. He has referred to the case of Electricity Employment Union v. Union of India, 2000(2) SCSLJ (SC) 309. In this case erstwhile State of Punjab was organized. Allocation of service of employees of erstwhile PSEB among the Successor States was to be made. They were being treated on deputation and were to be considered for absorption in the new states which had come into existence including for UT Chandigarh. In this case, staff is Electricity Board from Punjab posted in Chandigarh were allowed to continue on the available posts on deputation basis. The opinion expressed by the Hon'ble Apex Court is that allocation of these employees could be done under Section 67(3) of the Punjab Re-organisation Act. The element of consent in this case was not an issue. The other judgment relied is in the case of Madhya Pradesh Electricity Board v. 5.5. Modh and Ors., 1997(2) SCSLJ Page 440. In this case the issue was also not what has been argued by the applicants. Employees of a project on being transferred to a Board were given option to accept service of the Electricity Board and to serve in accordance with the Board's Service Regulations. One of the employees had infact exercised that option and had claimed a right for absorption on the post of Assistant Engineer without possessing the requisite qualification. In these circumstances, it was held that if the employee is not possessed of the requisite qualification he cannot claim absorption merely on the exercise of his option. 3rd Judgment relied upon by the respondents is in the case of State of Punjab and Ors. v. Gursharan Singh and Others, 1997(1) SCSLJ Page 614. In this case Government Engineering College, Bhatinda has been handed over to a Society, an autonomous body. On abolition of the posts, some of the employees/teachers of the College had been absorbed apparently with their consent and without any objection from them. Some of those who had been left out had claimed absorption in Government service. On the facts and circumstances of that case a direction was given to consider their absorption on alternative jobs subject to availability of posts and fulfillment of necessary conditions. We find absolutely no point of comparison with the facts and legal issues raised before us in the present O.As.
11. Both sides have very strenuously argued that respondents had declared a policy that if there is any exercise of option by the sufficient number of employees for their transfer to the Corporation, they will transfer the persons who were junior most starting from the bottom of the relevant seniority list and the respondents claim that they have followed such policy. On the other hand grievance of some of the applicants before us is that respondents have adopted the policy of pick and choose and retained the juniors while seniors have been transferred to the Corporation even without option. However, such a quarrel between them has no relevance as far as position under the law is concerned. In view of law as discussed above, transfer from a job held under Chandigarh Administration with the status of a Government servant to the Municipal Corporation without consent of the concerned employees has to be declared to be illegal irrespective of the fact whether such person was junior most or his senior. We thus declare all those transfer orders, which have been passed by respondents without consent of the concerned employees from Chandigarh Administration to Municipal Corporation, Chandigarh to be illegal irrespective of the fact whether they are juniors or seniors as per their respective seniority lists. However, this will have no effect on those orders of transfer where due consent has been given by the concerned employee or accepted otherwise.
12. We have also considered relevant letter dated 13.5.1996, Annexure A-2 under which options were invited from the employees of Chandigarh Administration for their transfer to Municipal Corporation as well as Press Note dated 15.5.1996 in which a stipulation was made that in case no option is received by 10.00AM on 15.5.1996 (as per Annexure A-2 dated 13.5.1996) and upto 5.00 P.M. on 15.5.1996, ii will be presumed that they do not want to exercise option and transfers will be ordered as per the policy of sending out the junior persons. The time given to the employees was so short that it cannot be held to be proper opportunity to them to think over and make up their minds and thereafter exercise their right of option. We thus declare such letters of option to be insufficient notice to the employees. The presumption raised on non exercise of option or on account of the facts that some options were received after the time given in Annexure A-2 and the Press Note date 15.5.1996 and thus not accepted is declared to be illegal. We diced that fresh chances be given to all the employees for exercise of such option for their permanent transfer and absorption to Municipal Corporation, Chandigarh if they do desire with sufficient time of notice, which should be not be less than 30 days from the issuance of such notice. It may also be conveyed in such notice that if after exercise of option by the employees it is found that more employees remain with Chandigarh Administration than posts available in the relevant cadres, they will be rendered surplus and shall be liable to (a) retrenched from service in case provisions of Industrial Disputes Act or other Industrial Laws are applicable to those categories; or (b) that they are likely to lose their jobs due to the fact that the posts on which they were working are no longer available with the Administration, under the relevant service rules applicable to them. Here respondents Administration can apply the principles of 'Last come first go'.
13. Grievance has been raised by some of the applicants that after transfer of fixed number of posts to the Municipal Corporation and Transfer of employees for manning those posts, respondents have retained deputationists on the posts with the Chandigarh Administration while compelled their regular employees to join service under the Municipal Corporation. In our opinion there is valid force in the objection raised by the applicants. Deputationists can never be compared with regular holders of posts as they are in the nature of invited guests whose service have been borrowed from their parent department for fixed terms. Deputation normally is always with a condition that it can be ended at any point of time. If after going through the exercise mentioned above, it is found that there are not sufficient persons for manning the posts transferred to Municipal Corporation, Chandigarh Administration and Corporation will be at liberty to fill up those on temporary basis from any of the methods, including taking persons on deputation from any where if the rules do not prohibit it and in case persons do not give their consent for transfer to the Municipal Corporation, Chandigarh and regular incumbents of the posts and holders of posts under Chandigarh Administration remain, considering the total strength of posts with them, they have a preferential right to man the posts in Chandigarh Administration. In such circumstances, deputationists shall have to make place for regular employees and Chandigarh Administration shall be under an obligation to repatriate them prematurely to their parent department.
14. The findings recorded above and the directions given in preceding paragraphs shall apply to cases before us. However, since we are aware that this order is likely to have effect on the working of number of jobs as mentioned in Annexure A-2 and may have a disturbing effect on extending the services to the citizens of U.T. Chandigarh, we order that our present orders and directions shall come into effect w.e.f. 1.4.2002 only. We expect the respondent Administration to resort to options given to them in the directions mentioned above, for completing the exercise of inviting options from employees afresh and preparing the lists and thereafter issue orders of transfer for absorption on permanent basis in Municipal Corporation, Chandigarh which may be made effective on or after 1.4.2002.
15. In the case of Indu Sharma, her option dated 15.5.1996 Annexure A-5 shall be reconsidered for her transfer to Municipal Corporation afresh particularly in view of the judgment, Annexure A-7 dated 13.9.1996 along with other employees after they have also exercised their options as per our directions above. If found entitled, her request for transfer to Municipal Corporation shall be considered and acted upon,
16. Applicant Rakesh Kumarin O,A. No. 715-CH-97 may also be indicated amongst persons with offer of exercise of option with others and his case be also considered along with other employees as mentioned above.
17. Considering the facts of the case of Labh Singh and Ors., we do not find any merit in their case as far as it relates to recruitment of four persons against 13 vacancies existing, vide Annexure A-2 dated 11.11.1996. Such recruitment came much after the cut off date for transfer to Municipal Corporation, Chandigarh which had been finalized by 23.5.1996. Since however, a fresh option has to be given to all the employees, applicants in this O,A. will also be given liberty to exercise option as mentioned above. We have already expressed opinion that transfer of a Government Employees to Municipal Corporation without there being their consent, even if they are juniors, would be illegal.
18. Considering the peculiar facts and circumstances in the case before us we order that transfers to be decided or ordered afresh will be deemed to be within the period of limitation under the law and under provisions of Punjab Municipal Corporation Act, 1976 as extended by 1994 Act and shall not be questioned on this ground. After fresh exercise of option by employees in case some transfer are ordered either to the Municipal Corporation or of the persons who stood already transferred to the Municipal Corporation to Chandigarh Administration, their inter se seniority under these two organizations vis-a-vis their earlier colleagues shall not be altered and they shall all be assigned their seniority position as per their earlier position before their transfer or not being transferred to Municipal Corporation.
19. During the course of arguments, we were informed by Counsel for respondents that Central Government, on the recommendations of the Chandigarh Administration is thinking of treating the persons transferred to Municipal Corporation on deputation. Our orders mentioned above and observations recorded are not to have any adverse effect if such decision is taken by the competent authority/Government.