Central Administrative Tribunal - Mumbai
Kailash Bihari Arora vs M/O Defence on 5 September, 2018
1 OA No. 630/2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.630 of 2017
Date Of Decision: 05th September, 2018.
CORAM: HON'BLE SHRI. R. VIJAYKUMAR, MEMBER (A).
HON'BLE SHRI. R.N.SINGH, MEMBER (J).
Kailash Bihari Arora,
S/o Shri Jaswant Ram Arora,
D.O.B.: 27.07.1965,
Age: 52 years 03 months,
A.G.E.B/R(Group 'B' Post),
under Garrison Engineer(South),
Potinger Road, Ahmednagar- 414 001.
And residing at:
P-10, Type IV Quarters, CQAV,
Aurangabad Road, Ahmednagar,
District- Ahmednagar,
Maharashtra- 414 001.
....Applicant.
(Applicant by Advocate Shri R G Walia)
Versus
1. Union of India,
Through: The Directorate(Personnel),
Military Engineer Services,
Engineer-in-Chief's Branch,
Integrated Hqs of MoD(Army),
Kashmir House, New Delhi- 110 011.
2. The Directorate(Pers)E1,
Military Engineer Services,
Engineer-in-Chief's Branch,
Integrated Hqs of MoD(Army),
Kashmir House, New Delhi- 110 011.
3. HQ SE Southern Command
Pin 411 001.
C/o 56 APO
4. Engineer-in-Chief, CE Southern Command,
HQ Southern Command,
Engineering Branch,
Pin 908541.
2 OA No. 630/2017
5. Dy. Directorate (Pers)(C&M),
Pin 411 001,
D/o 56 APO.
6. Capt. Jayant Chavan,
Through: Dy. Directorate(Pers)(C&M),
Pin 411 001,
D/o 56 APO.
....Respondents.
(Respondents by Advocate Shri D.A. Dube)
Reserved On : 09.08.2018.
Pronounced on: 05.09.2018
ORDER
PER:- R. VIJAYKUMAR, MEMBER (A).
This application was filed on 17.10.2017 under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"a) This Hon'ble Tribunal will be pleased to call for the records which led to the passing the impugned orders dated 01.11.2016, 05.01.2017 and 29.03.2017 i.e. (Annex. "A1" and "A2" hereto) and after going through its propriety, legality and constitutional validity be pleased to quash and set aside the same.
b) This Hon'ble Tribunal will be pleased to order and direct the Respondents to continue the Applicant as A.G.E. B/R Ahmednagar.
c) Any other and further orders
as this Hon'ble Tribunal may
3 OA No. 630/2017
deem fit, proper and necessary in the facts and circumstances of the case.
d) Costs of this Original Application be provided for."
2. The applicant joined as Assistant Engineer(B/R) in Garrison Engineer(s), Ahmednagar in July 2013 and as per Transfer Policy for sensitive posts and for serving in at least one tenure/hard station in each rank and considering the rules applicable to rank posts, he was transferred from Ahmednagar to Avantipur near Srinagar in Posting Orders reference No. MES/87/2016 dt. 01.11.2016 which involved 72 such officers. Prior to this, the applicant had filed a representation on 04.10.2016(A-4) in which he had stated that his son was studying in 12 th Standard and was preparing for the NEET entrance exam for admission in MBBS in year 2017. Therefore, he requested transfer to a nearby station in anticipation of orders to be issued and in response to a Circular No. A/13/DG(Pers)/Policy-I/2016 dt. 16.05.2016 of respondents. In later letter dt. 24.11.2016, 4 OA No. 630/2017 where he notes his transfer to Avantipur, he cites the following reasons:-
"b) Sir, my parents are residing at Alwar(Raj) with my family. My father is 85 year old and is suffering from high BP and acute orthopaedic disease. My mother is also 78 years old and suffering from high BP, Diabetics, Asthma, Retinal problems, Orthopaedic problems and she also hard of hearing(more than 90%).
c) Sir, physical condition of my parents is very serious and they are not in position to carry out their daily routine work at their own and require 24 hr personal care/assistance and time to time medical consultations/hospitalization is also required.
d) Sir, in this situation, my wife being alone is not in position to look after my parents and other house hold works.
e) Sir, due to above mentioned problems, I am feeling very much depressed and mentally upset as I will not be able to give any assistance to my wife and parents from Avantipur in case of any emergency.
2. In view of above, I humbly request your goodself to change my posting to any station within the radius of 300km from my home town i.e. Alwar(Raj), so that I can attend my parents in case of any emergency/hospitalization."
3. To this letter, respondents had replied covering all the new issues raised in 5 OA No. 630/2017 his request dt. 24.11.2016 as below:-
"3. The case of the officer has not been agreed on the following grounds:
(a) The reasons mentioned by the officer are generic in nature.
(b) The officer in his earlier application dated 04 Oct, 2016 before issue of posting had given different reasons for posting to stations near Alwar and had mentioned nothing about the grounds enumerated in the present application.
(c) The officer is Group 'B' officer with All India Service Liability. Posting to a specific appointment or specific station shall not be a matter of right but is based on organizational requirement. "In any organization, there will be times when organizational requirement and individual's aspirations do not coincide, however the organizational interest and requirement will be paramount".
4. The applicant again wrote to the respondents on 07.02.2017 reiterating his mother's medical condition, the poor road connectivity between Avantipur and Srinagar and air connectivity to Delhi/Jaipur and reiterated these grounds in his further letters dt. 17.02.2017, 11.05.2017 & 07.09.2017. Meanwhile, the respondents had also replied to his representations, in their 6 OA No. 630/2017 letter No. B/19002/Engr/5307/E1B(P&T-II) dt. 29.03.2017 with regard to medical grounds of his parents that he had raised, in the following manner:-
"3. The case of the officer has not been agreed on the following grounds:
a) The earlier representation of the officer has already been rejected vide this HQ Letter referred at para(b). As per para 4(e) of the posting policy dt. 09 Oct 2015, second representation to the next higher authority can be forwarded only after implementation of the move.
b) The officer has not done tenure posting. The officer was posted to GE(AF), Avantipur as there is requirement of AGE(B/R) in the station.
c) Avantipur is approximately 30km from Srinagar and there is air connectivity between Srinagar and Delhi.
d) The officer is Group 'B' officer with All India Service Liability. Posting to a specific appointment or specific station shall not be a matter of right but is based on organizational requirement. "In any organization, there will be times when organizational requirement and individual's aspirations do not coincide, however the organizational interest and requirement will be paramount".7 OA No. 630/2017
4. So, his case for change of posting is not agreed to by the competent auth and application of the officer dated 07 Feb 2017 addressed to Director General, E- in-Cs Branch, New Delhi has been disposed off through this letter. The officer may be instructed to move as per the posting order."
5. Following this correspondence, a movement order had been given to one Capt. Jayant Charan by which he was relieved on 11.10.2017 and reported, to replace the applicant, at Ahmednagar station on 12.10.2017. The applicant was also given a movement order relieving him on 17.10.2017, but respondents have stated that the applicant had gone on leave and these orders could not be served on him. Further, the applicant obtained interim orders staying his transfer from this Tribunal on 18.10.2017 and therefore, rendered the relieving order infructuous although his substitute had already reported in his place. Subsequent to the interim stay orders of this Tribunal and its receipt on 27.10.2017, respondents cancelled the movement order to avoid being 8 OA No. 630/2017 held in contempt.
6. The applicant states that in accordance with the guidelines, he had given three station options so that he could reach his hometown Alwar in the shortest possible time. However, he had been posted at Avantipur which is stated to be 30 km from Srinagar Airport and which is 1000 km from Delhi/Jaipur. According to him, there is no seniority list in respect of postings to hard tenure stations and postings are being effected on pick-and-choose basis and there is no application of mind.
7. The respondents state that by the time the applicant had approached this Tribunal, his movement order had already been issued but he had evaded receipt by going on leave and later by obtaining ex-parte interim orders from this Tribunal on 18.10.2017 well after date of issue of movement orders. They state that the applicant was working in a sensitive post and as per the rules for MES Civilian Officers, the tenure was only three years whereas he had spent more than four 9 OA No. 630/2017 years. They also state that his representations were considered on several occasions and the last decision was communicated to him in March, 2017 and only when his successor reported on 12 Oct, he began to agitate matters before this Tribunal which is several months after a final decision was taken on this matter. The Rules also make it clear that the officer should be prepared to move out immediately if his representation is not accepted and no delay in implementation would be accepted. They also mention that his present station, Ahmednagar, is 1500 km away from his hometown whereas by his own admission, Avantipur is only 1000 km to his hometown which shows his contradictory stands. They also point out that the original reason given in his application of 04.10.2016 was only in relation to his son but he altered this in his later applications to claim that he needed to be retained or posted to a convenient station based on his mother's ill health and to be close to her at her 10 OA No. 630/2017 residence in Alwar.
8. The respondents have also stated that Srinagar is well connected to Delhi and the road from Avantipur to Srinagar Airport is by the main highway and the distance is only 30 km and the road is also never closed due to any climatic conditions as claimed by the applicant. They also mention that the representations of the applicant have been carefully considered and rejected and that a majority of the officers are in the age(50-60 years) and have common problems and therefore, the officer cannot make out a special case in the manner that he has done. Further, the applicant had not mentioned the medical problems of his parents prior to issue of posting orders despite being given the opportunity. They also mention that the applicant has not done any posting in a tenure station after promotion to the Assistant Engineer(AE) rank and therefore, the posting was in order.
9. The private respondent No.6, who is posted as the successor of the applicant has 11 OA No. 630/2017 also filed a reply pointing out that the applicant has only harassed him by not vacating his posting at Ahmednagar.
10. In his rejoinder, the applicant has denied that he was avoiding a field or hard tenure posting by raising a new issue about the medical problems of his parents that he had not raised in his initial letter. He emphasizes that it was incumbent on the official respondents to have prepared a seniority list in respect of the officers who were due for tenure posting and thereafter, by obtaining the options of the officers for their choice of three tenure stations. He refers to four officers who are also Assistant Engineers and senior to him but who have been ignored for tenure posting.
11. In their reply to these new specific allegations, respondents have recorded the reasons in respect of these four officers as below:
"i)MES-192880 Sh. Anil Chouhan:- The officer's name is on S.No. 622 as per the All India Seniority List(AISL).
He was posted to Dehradun vide this HQ Posting Order No. MES/45/2017 12 OA No. 630/2017 dated 13 Oct 2017 (copy attached). After completion of his stipulated time period in Gurgaon. The Officer had atained 55 years of age at the time of posting and could not be posted to (field) tenure station as per policy.
ii)MES-168636 Sh. Rakesh Gaur:- The Officer's name is on Ser No. 526 as per AISL. The officer was posted to Suratgarh vide this HQ posting order No. ME/79/2015 dated 09 Oct 2015(copy attached). The officer had attained 53 years and 07 months of age at the time of posting.
iii)MES-167041 Sh. Shivkumar:- The Officer's name is on Sr.No. 365 as per the AISL. The officer had requested to post him to Jaipur on last lag before issue of posting order. His retirement was due on 30 Jun 2018 and could not be posted to tenure station as he had attained to the age of 57 years at the time of posting. Thus, he was posted to Jaipur vide this HQ posting order MES/79/2015 dated 09 Oct 2015.
iv)MES-315166 Sh. Rajan:- The Officer's name is on S.No. 1402 as per the AISL. The officer vide his application dated 30 Jun 2016 submitted before issue of posting had requested for posting to Delhi on the education ground of his son and on the health ground of his mother. His father had expired recently. Copy of the application is enclosed. Though the officer was due to tenure posting, his application was considered by the competent authority and he was posted to Delhi on staff appointment vide this HQ Posting Order MES/87/2016 dated 01 Nov 2016. His posting to a tenure (Hard) station will now considered in next turnover."
13 OA No. 630/2017
12. They also state that the posting orders have been issued according to the provisions of the posting policy of the respondents and they claim that the transfer is in order.
13. In rejoinder, applicant has taken new grounds without specifically amending the original application and without filing Miscellaneous Application seeking the permission of this Tribunal to make new averments. The specific averment is contained in Para-5 of the rejoinder which essentially contends that the transfer order is in breach of the SRO No. 92 dt. 26.02.1957 containing Civilian in Defence Service(Field Service Liability Rules) 1957 and that since the applicant was above 50 years of age on the date of the impugned transfer order on 01.11.2016 and he had spent more than 27 years in service, and further, Avantipur where he was posted is a counter insurgency operational area and is therefore, a field area, it attracts the above rules. The respondents could not have transferred him to 14 OA No. 630/2017 that location. He refers to the decision of the Coordinate Bench of this Tribunal at Chandigarh in Shri Sanjay Ekbote Vs. Union of India & Ors. in OA No. 805/2013 decided on 08.08.2013, in which the civilian applicant who was working as CWE, Pathankot, was transferred as CCE(Army) Missamari as SO-I when he was 49½ years old and had to his credit, more than 25 years of continuous service. That judgment noted the decision of the Hon'ble High Court of Allahabad in CWP No. 60619 of 2011(A. Aul Dhas Vs. Union of India etc.) in orders dt. 30.11.2011 that Missamari was a counter insurgency area and would be a field area. The applicant has not provided any specific order of the respondents which classifies Avantipur as a field area. The above decision of this Tribunal at Chandigarh is also upheld by the Hon'ble High Court of Punjab & Haryana in CWP No. 26974 of 2013 dt. 09.12.2013 by reference to the fact that the judgment of the Hon'ble High Court of Allahabad referred above had attained finality.
15 OA No. 630/2017
14. During arguments, learned counsel for applicant also cites the decision of the Principal Bench of this Tribunal in OA No. 57 of 2014 in V.S. Bhartiya Vs. Union of India & Anr. decided on 30.05.2014 which related to the Garrison at Khumbhathang, 25 km south of Kargil and that this was a field area to which, postings would attract SRO 92(supra). On the specific new grounds raised by the applicant, the respondents were silent nor has the learned counsel for respondents argued anything in contrary to reference to SRO 92 above. However, learned counsel for respondents referred to the other cases by which Tribunals and Courts were limited in their capacity to intervene in transfer matters, that transfer is an incidence in service vide S.S. Chawla Vs. Union of India & Ors.[2017(1)SLR 412(CAT: New Delhi) decided by the Principal Bench of this Tribunal on 09.05.2016 and for supporting his argument on transfer being the prerogative of the authorities, he also cited the Hon'ble Apex Court decision in State of U.P. & Ors. Vs. 16 OA No. 630/2017 Gobardhan Lal in C.A. No. 408 of 2004 decided on 23.03.2004.
15. We have gone through the O.A. alongwith Annexures A-1 to A-5, Rejoinder filed on behalf of the applicants.
16. We have also gone through the reply, Reply to Rejoinder along with Annexures R1 to R4, filed on behalf of the respondents.
17. We have heard the learned counsel for the applicant and the learned counsel for the respondents and carefully considered the facts and circumstances, law points and rival contentions in the case.
18. On the substantive issue of transfer as a general matter affecting persons in Government service, there is a catena of judgments that limit the capacity for intervention by Courts and Tribunals in such matters.
19. The law on judicial intervention into matters of transfer is well settled through a catena of decisions by the Apex Court in, B. Varadha Rao V. State of Karnataka, AIR 1986 SC 1955, Shilpi Bose V. State of Bihar, AIR 17 OA No. 630/2017 1991 SC 532, Union of India V. S.L. Abbas, AIR 1993 SC 2444, Union of India Vs. N.P. Thomas, AIR 1993 SC 1605; Rajender Roy Vs. Union of India, AIR 1993 SC 1236; Ramadhar Pandey Vs. State of U.P. & Ors., 1993 Supp (3) SCC 35; N.K. Singh Vs. Union of India & Ors., (1994) 6 SCC 98 & AIR (1995) SC 423; Chief General Manager (Tel.) N.E. Telecom Circle Vs. Rajendra Ch. Bhattacharjee, AIR 1995 SC 813; State of U.P. Vs. Dr. R.N. Prasad, 1995 (Supp) 2 SCC 151; Union of India & Ors. Vs. Ganesh Dass Singh, 1995 (Supp) 3 SCC 214; Abani Kante Ray Vs. State of Orissa, 1995 (Supp) 4 SCC 169; Laxmi Narain Mehar Vs. Union of India, AIR 1997 SC 1347; State of U.P. Vs. Ashok Kumar Saxena, AIR 1998 SC 925; Mysore Paper Mills Ltd., Bangalore V. Mysore Paper Mills Officer Association, Bhadravati and another, 1999 6 SLR 77, National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan, (2001) 8 SCC 574; Public Services Tribunal Bar Association Vs. State of U.P. & Ors., AIR 2003 SC 1115; State of U.P. Vs. Siya Ram, AIR 2004 SC 4121; State of 18 OA No. 630/2017 U.P. V. Gobardhan Lal, (2004) 11 SCC 405; Kendriya Vidyalaya Sangathan V. Damodar Prasad Pandey, (2004) 12 SCC 299; Union of India Vs. Janardhan Debanath, (2004) 4 SCC 245, Masood Ahmad V. State of U.P., 2007(6) SLR 469 (SC), Airports Authority of India V. Rajeev Ratan Pandey, JT 2009 (10) SC 472 and Rajendra Singh V. State of UP and others, 2010 1 SLR 632.
20. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner. The scope of judicial review in these matters is very limited. The employee, "... a Government servant does not have nay vested right to remain posted at a place of his choice, nor can he insist that he must be posted at one place or the other because no Government can function in such manner," as noted in Rajendra Singh & Anr. V. State of 19 OA No. 630/2017 Uttar Pradesh & Ors. (2009) supra. As was also held I Shilpi Bose (1991) supra:
"In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest."
21. The Hon'ble Apex Court in Airports Authority of India v. Rajiv Ratan Pandey & Ors (2009) supra held in para 10 that "... scope of judicial review is limited and High /court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer."
20 OA No. 630/2017
22. In National Hydroelectric Power Corporation21. Ltd. v. Shri Bhagwan (supra), it was held that: "No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned. "This aspect has been reiterated in the decisions of the Hon'ble Apex Court in 21 OA No. 630/2017 Siya Ram (2004), KVS v. Damodar Prasad Pandey (2004) and N.K. Singh (2004) supra. In the decision on Gobardhan Lal (2004) supra, the Hon'ble Apex Court also emphasised "that transfer is prerogative of the authorities concerned and court should not normally interfere therewith, except when an order of transfer is shown to be vitiated by mala fides, or is in violation of any statutory provision, or has been passed by an authority not competent to pass such an order.... No Government can function if the Government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires."
23. On the aspect of the application of transfer guidelines, the Hon'ble Apex Court considered the matter in the case of UOI v. S.L. Abbas (1993) supra and held (as in abstract): "An order of transfer is an incidence of Government service. Who should be transferred where is a matter for the appropriate authority to decide. Unless the 22 OA No. 630/2017 order of transfer is vitiated by malafides or is made in violation of statutory provisions, the Court cannot interfere with it. There is no doubt that, while ordering the transfer the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration."
24. In the present case, the applicant's several representations including that which he first made on 04.10.2016 have been fully considered by the authorities. The transfer guidelines make it clear and the applicant also recognizes that he cannot remain in a sensitive post for more than three years and which he has managed to do with the help of interim stay granted by this Tribunal. Further, the applicant is also aware and accepts that he can be transferred to another location although he has sought to specify various locations to which he would consent 23 OA No. 630/2017 to be transferred and which clearly fall within the prerogative of the authorities concerned. It is also apparent from his petitions that what he has stated in his letter dt. 04.10.2016 related only to his son's education which was completed before movement orders were passed in October, 2017. Subsequently, he altered his ground and it is evident that he is estopped from making such alteration since he was not able to convince the authorities concerned that he had a genuine case to propose. However, the authorities have also considered all these grounds and have rejected his request. Therefore, from the aspect of the general issue of transfer, the applicant has no merits whatsoever to resist the transfer from his present station.
25. However, the applicant has raised a new issue by invoking provisions of the SRO 92 in his rejoinder and which did not receive specific attention of this Tribunal for which the applicant should have filed a specific Miscellaneous Application seeking the 24 OA No. 630/2017 addition of fresh grounds. However, the grounds that he has invoked relate to statutory provisions as contained in the rules. Therefore, it is not impermissible for him to raise this issue although it could have been done in proper order. The respondents have failed to even refer to this matter in their reply to rejoinder nor has the learned counsel for respondents sought to discuss this issue. Further, the applicant has not given any specific list or document which suggests that the specific place of posting, Avantipur, is a field area which attracts SRO 92. The stations for which he has cited judgments are first, for Missamari which has been held to be a field area by virtue of the decision of the Hon'ble High Court of Allahabad which has attained finality. The second area cited, Khumbhathang, is close to Kargil and far north of Avantipur and could well be a field area for which reference has been made to Appendix-A of Ministry of Defence letter dt. 13.01.1994 in which the areas of the Northern 25 OA No. 630/2017 Command falling in the State of Jammu & Kashmir are mentioned. The applicant has not provided any evidence to support his bald statement that Avantipur is a field area.
26. In the circumstances, while upholding the prerogative of the authorities to transfer the applicant and also to shift him from a sensitive post in conformity with the rules and guidelines that they are following, it is also apparent that the new submission of the applicant that Avantipur is a field area has not been considered at the time of passing the transfer orders nor have the respondents considered it while filing their reply to rejoinder and have also not bothered to rebut this matter at the time of arguments.
27. It is, therefore, appropriate to reiterate the rights of respondents to transfer the applicant in accordance with their guidelines to any station as also within the same station to a non-sensitive post depending on their administrative exigencies on which this Tribunal does not 26 OA No. 630/2017 wish to make any observations but also that, given the present reference to SRO 92, the respondents are directed to consider the matter of the applicant's transfer within a period of four weeks and to pass a reasoned and speaking order on the applicability of SRO 92 to his posting and then to communicate these orders to the applicant within two weeks thereafter. In the meantime, the respondents are at liberty to shift the applicant to a non-sensitive post at the same station as requested by them in their reply to the OA but are also directed not to shift the station of the applicant until passing the orders directed above.
28. The OA is accordingly disposed of. No order as to costs.
(R.N. Singh) (R. Vijaykumar) Member(J) Member(A) Ram.