Central Administrative Tribunal - Mumbai
Gobind Sharma vs D/O Atomic Energy on 30 May, 2023
SABO. 397 OF 2021 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI ORIGINAL APPLICATION No.357 of 202) CORAM : FTUSTICE M.G.SEWLIRAR, MEMBER (J) Shr Gobind Sharma, Ags oo years, Working as Technical Officer (C)} i "rehitect), posted at Heavy Water Board, \V.S.Bhavan, Anushakti Nagar, Mumbai. Residing at: 3, Duwara, Anushakti Nagar, oo Mambai 400 094. Contact No. $95919 Eamail : eecbicclasueeewslan (By Advocate Shri V.A.Nagranl) Versus \. The Union of India, Through the Secretary, Department of Atomic Energy, Government of India, Anushakn Bhavan, C\S.M. Marg, Apollo Bunder, Near Grateway of India, Murnbai-} Email: [email protected] 2. Shri S.K. Nayak Chairman & Chief Exeoutive, Heavy Water Board (CQO), 5® Bloor, V.S.Bhavan, Anushakti Nagar, Mumbai 460 G94. Email: ce@imunn iwh.gov.in 3 Nhre VOR. Nema Director (Tech, }, Heavy Water Board (CO}, ~ Applicant 5" Floor, V.S. Bhavan, Anushakti N avar, Mumbai 466 694. Email: vpnema@mem bwh.vowln 4, _ Assistant Personnel Officer, Recrivtment Section, Heavy Water Board (CO), 5" Floor, V.S.Bhavan, Anushakti Nagar, Mumbai 400 004, i Smt. Vuayalaxmi working as TO/DA & SEO, BARC, Mumbat. R/at: A-17, Kapil Vastu, Anushakti Nagar, Mumbai -- 94, Email: aporddimum hwh.govin ~ Respondents (By Advocate Shri R.R Shetty) ORDER
The applicant is seeking the relief of quashing and setting aside the orders dated 26" February, 2021, 31° March, 2021 and 07" May, 2022 and for a direction to reconsider the application dated 20° April, 2022 of the applicant for mutual transfer and to direct the Respondents to consider his posting in A & SED, BARC, Mumbai with all consequential benefits.
2. Facts in nutshell can be adumbrated thus < Board (HWB) in Mumbai on 15" December, 1999. The applicant was ee OA Ne. S87 OF 2027 promoted to the post of Technical Officer' (Architect) with effect from 61® July, 2009, On 24" November, 2020, the applicant submitted an application for mutual transfer fom HWB (CO) to A&SED, BARC . fee ae eee OS < een eee SE n : TEP Y eye pointing out that one Smt. Vieyalaxmi werking as TO/D is ready fa! ee mutual transfer and willing for her transfer to HWB(CO)}. On go"
December, 2026, Smt. K.Vilayalaxmi had given her consent through email, This email of Smt. K.Vilayalaxmi was forwarded to the Director (Technical) on 08° December, 2020. The applicant was transferred trom Drawing Office to Civil Section in the same office. Pending application for mutual transfer dated 24° November, 2020, applicant received an arder dated 26° February, 202] whereby the applicant was transferred from HWEB (CO) to Heavy Water Plant, Manuguru with immediate effect as Covi Engineer. The applicant made ; request to the Respondents by communication dated 01° March, 2021 to keep on hold his relieving on the ground that his application for mutual transfer was pending. By the communication dated 19" March, 2021, the request of the applicant was considered by the Competent Authority and his relieving was deferred 4] 21' May, 2021. On 19" March 2021 the applicant made one more representation thereby requesting to review and cancel his transfer order dated 26° February, 2021, Instead of considering the representation dated 19° March, 2021, the applicant was relieved on 31° March, 2021. The GA No. 357 OF 2021 applicant challenged this order by preferring OA No321 of 2021. This OA was withdrawn on account of submission made on behalf of the Respondents that the mutual transfer application of the applicant had been x rejected, On 10" May, 2021 the Respondents communicated the relection order. Hence the applicant has filed this OA seeking afore-mentioned reliefs. The applicant contended that the order rejecting application for mutual transfer was a cryptic order. The order dated 31" March, 202] was issued without approval of the Competent Authority, It is further contended that the applicant acquired higher qualification in the discipline of Architecture and under STPT promotional norms the applicant was considered for promotion to the post of Technical Officer'. There is no work of Architecture in HWB(CO) and the applicant's experience on acquiring higher qualification can be utilized in the other units of DAE Le Architectural Section Le A&SED, BARC. Therefore, the applicant himself applied for transfer to the said section in the interest of the organization. His application was made on the instructions of the Competent Authority for mutual transfer dated 24° November, 2020.
3. 'Respondents have fled their reply. They contend that the applicant entered in the Government service on 18° December, 1999, and since then he has been serving in Mumbai only. The transfer can be set asic Ws OA No. 357 OF 2021 by judicial forum only ifthe transfer js against the Policy / Rule, transfer is affected with malice and transfer is passed by the meompetent authority. Since none of these ingredients are present in this case, the Yetbunal bas no jurisdiction to interfere with the wansfer order fh is further contended that the applicant cannot claim mutual transfer as a mutter of right. Mutual transfer can be effected only if the transfer meets the administrative requirements. The applicant's transfer on account of administrative grounds in HWP Manusuru relating to maintenance of large residential colony with [919 a quasters and toe carry out lot of civil ae BPRS warks through contractor (5) im the residential colony and Plant site. it is further contended that the applicant did not make any representation against his relieving order dated 31" March, 2021 to the competent authority for consideration. The applicant being Group-A officer is able to serve in any part of India in any of the constituent of the DAK. An employes holding a transferrable post cannot claim any vested right te work at a particular place. The transfer committee met on 76% April, 2021 and 28" April, 2021 and request of the applicant for mutual transfer was placed before the Committee along with 4§ applications for consideration of transfer. The transfer Commities alter detailed de liberations did not recommend the mutual transfer of the applicant. Accordingly, its decision was communicated to the applicant vide communication dated 07° May,
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OA No. 387 OF 2021 2021. It is. further contended that the applicant himself sought accommodation only upto May, 2021 and he is therefore estopped from seeking relief on transfer order. The applicant has been transferred in public interest. The applicant vide his email dated 31° March, 2021 requested for leave from O1° April, 2021 to 30° April, 2021 due to bis health problem and personal exigencies. The applicant applied for extension of leave on the ground of medical problems of his wife from O01 May, 2021 to 28" May, 2023. The spplicant has experience in Drawing / Civil works for more than twenty one years and consequent on. his promotion to the grade of Technical Officer'C, his services have been consider ed essential in the Plants related to various Civil Engincering related works. Accordingly, HWB has approved the transier of the applicant from HWB to HWP, Manueuru in the interest of the organization vide Office Order dated 26" February, 202]. There was no malice in transfer of the applicant. It is further contended that there is a Committee constituted to examine the transfer requests received tom various Plants. The Committee examines the transfer requests based on merits and other fimetional requirements and makes its recommendations to the Competent Authority for approval. Mutual transfer application of the applicant was placed before the transfer committee on 26" April, 2021 and 28" April, 2021 for consideration. The Committee noted that the & OA We. SAP OF 2021 person to be posted is required to move from plant to colony and also to interact with various plant authorities. Further, since the plant is handling hazardous chemical, the person supervising inside the plant of Hydrogen Sulphide @as environment she ofemergency. After detailed deliberations, taking into account the nature of duties Involved in the post, the Committee found Smt. Viayalaxmi who x is physically challenged, not suitable to the plant requirement and hence % the Committee did not recommend her mutual transfer request with th applicant. Accordingly this bas been intimated to the applicant vide HWB's note dated 07" May, 2021 through email dated OF" May, 2021, The applicant's request for his retention all 21" May, 2021] was accepted. However in the meanwhile there was an urgent requirement of officer in Civil Section of HWPM to supervise the township maintenance, site activity and to execute various civil works spread aver large area of RAWVEM site and colony. Owing to unforeseen development in ihe HWEM, Competent Authority approved for relieving of the saplicaint fram AWB, Mumbai with effect from 31° March, 2021 wide Office Order dated 31° March, 2021. The Respondents contend that the order date 31" March, 2021 was issued with the approval of the Competent Authority. The matter was put up before the higher aut thorities through © otfice and the same was approved by the Competent Authority in e-offic wad OA Na. 337 OF 2021 On these allegations, Respondents sought dismissal of the application.
#, The applicant filed rejoinder. The applicant contended that the Committee on its own presumed that Smt. Vijavalaxmi will be posted inside the Plant. The applicant is posted in the residential colony and has nothing to do with the Plant which is 10 kms away from the residential colony. He contended that Respondent No.2 had not spent a single day in Plants, joined in SO/C at HWR Mumbai and retired from HWB Mumbai on 31" July, 2021. The applicant contended that the applicant ought to have been transferred pending his application for mutual transfer, The Respondents misled the Court stating that application for mutual transfer of the applicant had been rejected by the Competent Authority. However, the noting makes it crystal clear that till 24" May, 2021, the mututal transfer was not at all approved by the Competent Authority, Tt is further contended that applicant acquired qualification in the discipline of Architecture and not in the discipline of Civil Engineering and the requirement of HWP Manueuru is for Civil Engineer and not for Architect. The applicant is not competent to do any work related to Civil Engineering. The applicant is transferred to protect and favour a Civil Engineer Shri Manish R. Rondekar, TO/E (Civil) for specific reasons, whe is 5" number junior in HWB and Plants. The Respondents have kept fA ho. 357 OF 202) the :
the transfer of two Civil Engineers by the name of S/Shri TS. Reddy and Ranjit Singh on hold and the applicant who is not a Civil Engineer is transierred where there is categorical requirement for Civil Engineer He further contends thai the application for mutual transfer had been rejected 2021 for redressal of his grievance.
3. Respondents Qled their reply to rejoinder. In the reply the Respondents deny that the note on the mutual transfer was not approved by the Competent Authority. They contended that the competent authori ity approved the minutes of the meeting held on OS" Jame, 2621. The Respondents have na malafide intention nor any personal grudge against the applicant. No other point was raised in the reply.
é | have heard learned counsel for the applicant Shri Nagrani and learned counsel for the Respondents Shri R.R Shetty. Shri Nagrani submitted that the transfer was actuated with malice. Ne submitted that the applicant had preferred GA challe engine his transfer order dated 26° February, 2021. It was contended in the application that the application for mutual transfer of the applicant was pending. This . application was dismissed as withdrawn by the order dated O07" May, 2021 by the Bench OANA. 357 OF 2024 of this Tribunal. The Tribunal dismissed the application as withdrawn on the basis of the statement made by the learned counsel for the Respondents that the applicant's representation for mutual transier had already been rejected by the Competent Authority of the Respondents. He submits that this statement is a false statement. This itself shows that the transfer order was actuated with malice. He further contended that the applicant has acquired qualification in Architecture. He has no knowledge of Civil Engineering and still he has been transferred to HWP Manugura where the applicant is required to do the werk related to Civil Engineering. He submitted that the work allotted to him pertains to Civil Engineering. The applicant being an Architect cannot handle this work. He submits that transfer of two Civil Engineers by the name of S/Shri TS. Reddy and Ranjit Singh have been kept on hold for unknown reasons. He submitted that the services of Civil Engineers are required at HWE Manuguru. Therefore S/Shri T.S Reddy and Ranjit Singh who were Civil Engineers were the persons competent to handle the job. Instead of transferring them, the applicant had been transferred who does not have even basic knowledge of Civil Engineering.
7% Learned counsel for the Respondents Shri R.R. Shetty Subraitted that the order of transfer was approved by the Competent Authority on OA No, 357 OF 202) OS" Jame, 2021. Therefore the order is passed by the Competent Authority. e submitted that the application for mutual transfer was rejected on the ground that Smith. Vilavalasmi, being a handicapped person camnnot ancie this job as the officer handling this job is required to travel 4 lot af the site. Because of her disability, she may not be able to take prbper decision. Therefore application for mutual transfer was rejected. He submitted that the applicant was appointed in BARC, Pune in the year 1990 end since then he has been working there for fw enty Ons VEArs. Nobody can claim a vested right to work at a particular olace. The applicant being a Central Government employee, is liable to be transierred across India. Ne submitted that there is no malice on the mart af the Respondents to transfer the applicant. The application is therefo devoid of any substance. He further submitted that the appicant is an Architect and TOC, The nature of duties of Civil Engineer and Architecture are more or less similar He subnitted that Ho is the tive of the employer to decide as to which job has to be assigned to which employee. He therefore submitted that the application deserves Vs. Vinay Mohan Lal & Ors (WP (Lodging) No.1636 of 2005) on the ile of Hivh Court of "Bombay OA No. 357 OF 2021 & | have given thoughtful consideration to the submissions made on both sides.
oy & Transfer is an incident of service. Nobody has a right to be posted at a particular place of his choice. In para-[l, in the case of State of Maharashtra Vs. Vinay Mohan Lal & Ors (supra), it has been observed thus:
"{1. The learned Advocate General placed reliance on the leading case of the Apex Court, Public Services Tribunal Bar Association Vs. State of UP and another (2003) 4 SCC 104] and has particularly drawn our attention to paragraphs 37 and 38 of the judgment in which Their Lordships of the Supreme Court have observed that "transfer is an incident of service and is made according to the administrative exigencies.
Normally it is not to be interfered with by the Court. This Court consistently has been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner'. The Court further held in paragraph 38 that the Apex Court has "consistently been of the view that by way of an interim order, the order of suspension, termination, dismissal and transfer etc., should not be stayed during the pendency of the proceedings in the Court."
In paras {4 and 15 of the said judgement, it has been further observed that the case of the applicant will have to be assessed based on the principles laid down by the Hon'ble Supreme Court. All the allegations of malafide are made. It is easy to make allegations of malafide but it is very difficull owe Ro fo prove 1. But this is a case an exception. In this case, there is a clear proofol malice. For this purpase some admitted facts will have to be looked into.
26 "PA os exeven ds ' a " stad Gel Pakeu AG3 £& (he applicant was transferred vide carder dated 26" February, 2021.
He made an application for retention till the end of May, 2021 which was ie approved and he was permitted to work at HWE Mumbai (C0) all 21° May, 2021. The applicant made an application dated 19" March, 2021 requesting to review and cancel his transfer order dated 21° May, 2021.
This application was rejected and he was directed to be relieved on 31° March, 2021. This arder was challenged by the applicant by preferring OA No.320 of 2021. OA No.320 of 2021 was disposed of by this Bench of the Tribunal by its order dated (7° May, 2021, by making following observations :
"a. Shri Shetty submits that the applicant's representation for mutual transfer has already been rejected by the Competent Authority of the respondents and although based on his request to delay his relieving ful 21.05 2021 was agreed but because of urgent
-- ulrement of services of the applicant at the Heavy fater Plant, Manuguro, the Potnpeient Authority has Su ubsec quently approved bis relieving from 31.03.2021. Therefore, the applicant has no case new and he has to be eh eved so that he can iain at the earliest at the Heavy Vater Plant, Manuguru.
5. Shri Nagrani contends that he has not yet been communicated the subsequent orders of the competent Authority aboul rejection of his request for orotual cas OA No. 357 OF 2021 -
transfer and for relieving him on 31.03.2021.
6. In response to it, Shri Shetty assures that the order of rejection of his request for mutual transfer as well as approval of the Competent Authority for relieving him by 31,03.2021 would be sent to the applicant or his counsel during the next week.
7 In view of these submissions, the applicant's counsel requests for withdrawal of this OA. The OA is, thus, dismissed as withdrawn."
ii. From the extracts of the order dated 07" May, 2021, it is clear that a statement was made by the learned counsel for the Respondents that the representation for mutual transfer of the applicant has already been SK rejected by the Competent Authority of the Respondents. Learned counsel for the Respondents assured that the order of rejection of the applicant's request for mutual transfer as well as approval of the competent authority for relieving the applicant by 31° March, 2021 would be sent to the applicant or his counsel during the next week.
12 On perusal of the record produced in this application, it is evident that this statement was a false statement. Both the applicant and the Respondents have produced the notings of the Transfer Commitice Meeting held on 26" April, 2021 and 28" April, 2021. These notmgs show that the Transfer Committee Meeting had not taken any decision on i yer the application for mutual transfer of the applicant and other transier applications in Note No. #4 dated 24° May, 2021 at 5.01 pm. reads thus:
Ge eterna at Seare tae cae tbbens ae? ae N he SESS Of Transier COMMIES meeline nist be Baas N e x < ~ bar suggoried Sy afl relevant backup papers including application, which were rel ferred by the commilies in arriving at the decision. [t Is therefore instructed that the complete physical file / papers must be put up for approval. This e-file is incomplete and may be closed.
ASHIRANT K NAYAK SEY RMAN & CHIEF EXECUTIVE)' (CHAL This noting clearly shews that, on & {® May, 2021 the minutes of Transter Committee Meeting had not been approved. The same was approved on Og® June, 2021. Thus the Competent Authority had taken decision on 08"
June, 2021, which means the decision on application for mutual transfer was taken only on OB" June, 2021. The question then arises as to how a gintement was made on O7° May, 2021, that the application for mutual transfer of the applicant was rejected on or before 31° March, 2021 ont. ys that day even meeting of transfer Con smittes was not held which is evident from Note No. | of Annexure A-18. Note No.l indicates thet mimates of the Transfer Committee Meeting held on © 26" April 2021 and 28° April, 2021 were placed for approval. This note is dated O7" May, O21. When the Meeiing of Transfer Committee was not he Ad an 318 Tee March, 2021, i is not explained as to how a statement was made on O7* May, 2021 that the application for transfer of the applicant was rejected an ar before 31" March, 2021.
i The aforesaid developments clearly show that the application for mutual transfer of the applicant and Smt.K. Vijayalaxmi was pending on 26" February, 2021 Le the date on which the applicant was transferred from Mumbai to Munuguru. It is true that no one can claim mutual transfer as a matter of right but when an application was made for mutual transfer and it was under consideration, Respondents ought not to have transferred the applicant to HWP Munuguru without first deciding the application for mutual transfer. As indicated above, this application for mutual transfer was pending on 26" February, 2021. These develupments clearly indicates that there was malice on the part of the Respondents in transferring the applicant from HWB (CO) to HWP Munuguru and for effecting transfer, a false statement was made before the Cowt Le "representation for mutual transfer had already been rejected by the Competent Authority of the respondents...' when the same had not even been placed before the Transfer Committee. The Transfer Committee meeting was held on 26" April, 2021 and 28" April, 2021. So far as the other aspects are concerned, | do not find any merit in those contentions.
It is the case of the applicant that, he is not capable of handling the job of te OA Ne, 387 OF 2021 Civil Engineering as he is an Architect.. The jab profile of an Architect and Civil Engineer are placed on recard. They indicate that the nature of duties af Architect and Civil Engineer are more or less same. Moreover it is the prerogative of the employer io decide which job is to be entrusted 4 to which employee. Courts are not supposed to Interfere in the discretion >.
ofthe employer unless the discretion is exercised in an arbitrary manner. For example, a Civil Engineer is asked to do the job of an Accountant or vioe-versa, In such a situation, eaurt can interfere with such an arbitrary action of the employer.
ig In view of the above, the order of the transfer has to be interfered with aS fois actuated with malice. Therefore the order dated 26"
February, 2021, 31° March, 2021 and 07° May, 2021 are quashed and set aside, The Respondents are directed to consider pasting of the applicant mAcSED, BARC, Mumbai, iS Accordingly the Original Application is allawed with no order as to costs. Pending MLAs, if any, stands disposed off (Justice VLG. Sewlikar) Member (3) Dated : 36% Max, 2623.
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