Central Administrative Tribunal - Chandigarh
Sahi Ram vs Defence on 24 May, 2023
1- O.A. No. 1430/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/01430/2021
Chandigarh, this the 24th May 2023
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
MES No. 317352 Sahi Ram aged 32 years son of Sh. Bhagirath Ram,
VPO Riyan Tehsil Pipar City, Distt. Jodhpur, Rajasthan and presently
resident of H. No. 192/1 Camp Area Air Force Station Adampur-144103.
....Applicant
(By Advocate: Mr. Shailendra Sharma)
Versus
1. Union of India through Secretary, Ministry of Defence, South
Block Army HQ, New Delhi - 110001
2. The Engineer in Chief Ministry of Defence, Kashmir House, Rajaji
Marg, Army HQ New Delhi -110001.
3. The Chief Engineer Western Command, Chandimandir Cantt,
Distt. Panchkula (Haryana) - 134107.
4. Commander Works Engineer (AF) Air Port Road Chandigarh -
160003.
5. The Garrison Engineer (AF), Military Engineering Services
Adampur Distt. Jalandhar - 144103.
... .Respondents
(By Advocate: Mr. Sanjay Goyal, Sr. CGSC)
O R D E R(Oral)
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
(i) To quash movement order dated 29.10.2021 (Annexure A-
9) issued by respondent no. 5 whereby respondent no. 5 has relieved the applicant from its formation with further direction to 2- O.A. No. 1430/2021 report for duty at INS HANSA DABOLOM, GOA despite the fact that the representation of the applicant which was forwarded through proper channel is still pending as is clear from the perusal of the letter dated 26.08..2020 (Annexure A 8) written by respondent no. 5 himself and further the mutual transfer was not properly processed as is clear from the letter dated 19.1.2018 (Annexure A 5) written by respondent no. 3 as the action on the part of the respondents is totally illegal, arbitrary, discriminatory and volative of Article 14 of the constitution of India as well as principles of natural justice.
(ii) Issue further direction to the respondents to decide the representation of the applicant which is still pending till date"
2. The factual matrix of the case is that the applicant was appointed as Civilian Motor Driver in Military Engineering Services on 18.12.2012 in the office of Respondent No. 5 i.e. Garrison Engineer Air Force, Adampur. Vide order dated 23.05.2017 (Annexure A-2), the applicant was transferred to INS HANSA DABOLOM in Indian Navy on mutual basis vice Sh. Sanjeev Sharma. It has been pleaded that the order Annexure A-2 was not received in the office of respondent no. 5 and the applicant got a copy of the order Annexure A-2 through RTI on 05.05.2020 only.
3. When the other incumbent Sanjeev Sharma reported with movement order only, the applicant made a representation on 26.07.2017 (Annexure A-3) to respondent no. 5 for cancellation of his mutual transfer, followed by another representation dated 09.12.2017 (Annexure A-4), which was forwarded along with recommendation of 3- O.A. No. 1430/2021 respondent no. 5. The Respondent o. 3, after receipt of representation (Annexure A-4) wrote a letter dated 19.01.2018 (Annexure A-5) to the Addl. Director General of Manpower MP-4(Civ)(b) Adjutant General‟s Branch IHQ of MoD (Army) New Delhi regarding cancellation of the posting of the applicant. Pursuant thereto, the Respondent no. 3 issued letter dated 30.01.2018 (Annexure A-6) to respondent no. 5 to withhold the posting order of the applicant till his representation is decided by respondent no. 2. In compliance thereof, the applicant, who had earlier been relieved from the office of respondent no. 5 on 16.12.2017, was taken back in strength w.e.f. 08.02.2018 vide order dated 12.02.2018 (Annexure A-7). The respondent no. 5, vide letter dated 26.08.2020 (Annexure A-8), requested to respondent no. 4 that the matter regarding cancellation of transfer of the applicant be taken up with the higher authorities. The respondent no. 5 issued movement order of the applicant on 29.10.2021 (Annexure A-9) and relieved the applicant w.e.f. 08.11.2021.
4. The applicant has contended that without deciding his representation for cancellation of his transfer, the respondents issued movement order dated 29.10.2021, which is illegal.
5. The respondents have filed written statement contesting the case of the applicant. It has been submitted that the applicant, on his own request, has been transferred mutually with one Sanjeev Sharma, to INS Hansa Dabolin, Goa. The representation of cancellation of mutual posting cannot be considered as a matter of right. It has also been submitted that the request of the applicant for cancellation of posting was taken up by office of HQ Chief Engineer, Western Command, 4- O.A. No. 1430/2021 Chandimandir to Additional Director General Manpower MP-4 (city) (b) Adjutant General, Branch IHQ of MoD (Army) New Delhi in Jan, 2018 and no cancellation case was considered by Higher HQ.
6. The respondents filed a supplementary affidavit stating therein that a Board of Officer (BOO) is constituted by the competent authority and based upon recommendations of the BOO, the Mutual Postings are ordered by the competent authority and once the "Mutual transfer" is ordered, there is no provision under the posting policy to review/cancel the Mutual Posting. In the present case, the competent authority, as per the recommendations of the BOO and after adopting the requisite procedure and considering merits of the case, issued the Transfer Order dated 23.05.2017 and the said order was in the knowledge of the applicant. In reply of para 4 of Annexure A-5, it has been submitted that according to joint application for Mutual transfer (Annexure A-1) was signed by Sahi Ram (1st Individual) on 08.10.2016 and the same was duly countersigned by GE(AF) Adampur. So the contention raised in para no. 4 of Annexure A-5 is not correct as the same was duly countersigned by the concerned authority. It has been further submitted that the applicant submitted applications dated 26.07.2017 and 09.12.2017 addressed to GE(AF) Adampur requesting for cancellation of his mutual transfer. It has been further submitted that the order passed by Respondent no. 3 is beyond the jurisdiction as CE WCC Chandimandir i.e. Respondent No. 3 is not the competent authority to withhold the move of the individual, as in the present case the competent authority is Addl. Dt. General of Manpower, MP-4 (Civ)(b), Adjutant General‟s Branch, IHQ of MoD (Army), New Delhi to withhold the move of the applicant. In the present case, the competent authority is not impleaded 5- O.A. No. 1430/2021 as a party respondent. it has been further submitted that numerous correspondence were made with the higher HQs for cancellation of the transfer order of Shri Sahi Ram, applicant, but his transfer order was never cancelled by the competent authority and the same holds good.
7. I have gone through the pleadings, heard learned counsel and considered the contentions of both the sides.
8. The question to be considered herein is as to whether the issuance of movement order of the applicant without deciding the representation of the applicant for cancellation of mutual transfer is illegal.
9. Admittedly, pursuant to application dated 08.10.2016 made for mutual transfer jointly by the applicant and Sh. Sanjeev Sharma, the transfer order dated 23.05.2017 was issued by the respondents, transferring the applicant to Goa and Sh. Sanjeev Sharma to Adampur. Pursuant thereto, Sh. Sanjeev Sharma was relieved from his duty on 13.07.2017 and he joined duty at Adampur on 17.07.2017. It was thereafter only that the applicant made a request dated 26.07.2017 for cancellation of his transfer order. Prior thereto, no request has been made by the applicant for not pressing his request for transfer. An application for mutual transfer involves voluntary consent of two persons for their transfer vice versa and once it has been considered, accepted and transfer order issued, the request for its cancellation made individually by either of them could not be entertained. The mutual transfer is not like an ordinary transfer. As pleaded by the respondents, to consider the cases of mutual transfer, a Board of Officer is constituted by the competent authority, which gives its recommendations after 6- O.A. No. 1430/2021 examining the genuineness/merits of the case and based thereon, the order of mutual transfer is issued by the competent authority. It has been pleaded that once the Mutual Transfer is ordered, there is no provision under the posting policy to review/cancel the mutual posting. The applicant has not filed any rejoinder to controvert the averment made by the respondents. In these facts of the case, I am of the opinion that the application filed jointly for mutual transfer could not be withdrawn unilaterally as it would affect the other person who consented for mutual transfer and joined the duties pursuant to the transfer order issued by the competent authority.
10. A Coordinate Bench of Allahabad has also considered the identical issue in the case of Sachchidanand Vs. General Manager N C Rly (1549/2015 decided on 10.05.2019) and dismissed the Original Application with the following observations:-
"It is to be noted that the aforementioned circulars of 2006 and 2009 issued by the railways was only to avoid a situation of the present nature as has happened in the present case. The said Circular in categorical terms prohibits any such withdrawal of the consent for mutual transfer. It is not in dispute that mutual transfer is a scheme and once an employee seeks to take benefit of the scheme, the terms and conditions of such scheme cannot be said to be conditions in terrorem or conditions opposed to contract or conditions opposed to freedom of contract. There was no compulsion on either party to agree to a mutual transfer inter se. They voluntarily on his own given consent for mutual transfer and in terms of the Circulars referred to above, it was not open 7- O.A. No. 1430/2021 for either party to resile from the conditions stipulated therein. It was therefore not open for the applicant to withdraw his consent by his representation since the order for mutual transfer had already been passed prior to the submission of the representation."
11. The mutual transfer order dated 23.05.2017 was issued by the Competent Authority I.e. Addl. Dt. General of manpower, MP-4(Civ)(b), Adjutent General‟s Branch, IHQ of MoD (Army) . Pursuant thereto, the movement order of the applicant ought to have been issued forthwith by Respondent No. 5. However, the respondent no. 3 withheld the movement of the applicant without the approval of the competent authority, to await the fate of representation made by the applicant, which is not proper. The respondents also pleaded in written statement that the transfer order was withheld by Respondent no. 3 beyond jurisdiction as the competent authority to take a view regarding transfer or withholding of transfer is the Addl. Dt. General of manpower, MP- 4(Civ)(b), Adjutent General‟s Branch, IHQ of MoD (Army). Any representation made against the transfer order cannot be made a basis to keep the implementation of transfer order in abeyance without the approval of the competent authority. The action of respondent no. 3 in keeping the transfer order in abeyance and non-issuance of movement order was in deference to transfer order dated 23.05.2017 issued by the competent authority and more so, because the other public servant has joined at the station vice applicant, pursuant to the mutual transfer order.
8- O.A. No. 1430/2021
12. Though the representation for cancellation of transfer of the applicant was recommended by Respondent No. 5 and forwarded to the Competent Authority, but, no response whatsoever has been received on the representation. The Competent Authority is not bound to entertain every application made against the transfer order especially when it is mutual transfer requested by the individuals concerned and has been effected after recommendations made by the Board of Officers constituted for the purpose. I find force in the argument of respondents that since there is no provision under the posting policy to review/cancel the mutual posting, the competent authority did not review the mutual transfer order despite the representation of the applicant and I do not find any illegality in it.
13. In view of the above, the Original Application lacks merit and is accordingly dismissed. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟