Central Administrative Tribunal - Gauhati
Indra Nath Sengupta vs M/O Defence on 3 June, 2020
By Advocate: Sn M, 3, The Praincioal Director, Deke CENTRAL AD MINIS} RATIVE TRIBUNAL GUWAH: AT RENCH Orginal Applicaton No. 040/00424/2019(M A. Nos, 040/0000 1 (2020, 040/00020/ 2020, 040/00086/2020 reel THE HON'BLE MRS. MANJULA DAS, JUDICIAL MEMBER THE HON'BLE MR. N. NEIHSIAL, ADMINISTRATIVE MEMBER Indra Nath Singupta Soh of Shi Pareshnath Sengupta Residentof Vilage 2.6O- Sayun wh LS Aten oN ubena, Dsinict+ howrah, West ws Applcant re Chanda, $a Gu. Shanna * Sine dee Peeve BN ey Fee ee oe been ko
2. ime Orector General, Defence Esiates, Roxsna Sampomda | Bicewan poy be bre ggg TM en Log t Ay Uloanbachar Marc. Delhi Can hOHASNH ence Esiqiss, Eastern Carman, 13 Camcac sifael (7 Floor), Ministry of Defence, Kol Kata ~ 700017 ORF fc fer, Thanaaar of Aronechcl spechal & ah Respondents & ints ' TNE nk Ne
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sory curing Ais ™ a 9 sufliinig, b4' Cy £3 ts e pace inmpuread: framsier oarcer A} so far as ihe transfer and a eaPy "
Qoclicant in the motfer i transfer on physicaly handicapped ground one to retain him of Tezour or at a nearby home town sation:
Hyer order orariers for-any fo which the appl wnclenited to.umnder tf th facts and croumsiances of fhe case and: other relat cy lay ay een ee GPRS » 8.13 fo direct the respondents fo pay the cost of ihe appication." ok :
yx Brief facts of the case of the applicant are that the q QpoIcant iS a pAysicaly Randicaopped oerson with onhopacdic disability of partial permanent nature. The re N apphcan was initally aonointed in the establishment of the respondents on 31.03.2010 and posted af Ahmadabad. al Bone ft :
H nereatier, he has been transfered and posted at Tezpur vide order letier dafed 06.08.2014 ond as amended vide Hy N leHier dated 29.08.2014. After completion of three (3) years posting at Tezpur, fhe aoplicant nad requested for his transfer io near his Rome fown al Howrah, West Bengal Le. office of wie! he respondent authonly fa LLEEELEEEEEEEEEEEEESESEOEL: .
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tar rad Le nde heres Sars SSC ep IS yi 5 ic ggitaay of posing al Tezour an is hereby stavec Ni disposal « 5, in this OA. the aon icant Hed wo numbern- of M. A. being Na. 01/2020 for execution af the above interm order cled T7IS2019 and anothe ay M.A. being No. 34/2020 for early hearing and disposal of he present O.A. The respondents has also filed orig M.A, being No. 20/2020 "\ arising out of the present O.A. for vacating of the interim é) order dated 17.12.2019 pase? fpy this Tlounal in this O.A. _-- AS per request of boih fhe parties, above three {3} M.A.S were taken by this Triounal on 08.05.2080 and us both the counsel for the parties agreed entire matter wos heard : on the same date and orders were reserved, The liberty was
---oranied to the parfies fo qr owiitien arguments within seven. days if so desire, Accordingly, ihe counsel for the applicant anc respondents fled th er written arguments. A, SAM. Chanda, 'eared counsel appearng on behalf of fhe applicant vociferously argued inat the transfer of the doplcant is not asi imple trae isfer but cgeingt denial of his right oF choice posting to Kolkata in farms of Government of inal a CoM dated JZA12.7983 on completion of ferure fn North Eastern Region. His case | s further for violation of the DOPT "Spit iets ' aes Las ne ae 30 redd with OM dated 13.03.2002 and io give preference in transfer/posting of orrysicaily a sanoed persons touor near thelrnahve place Le. Kotkal arned coursel, Insoiie of ce of pasting [Rholkata) or er completion of fenure for choice posting, He was. rather franstered fo sill harder mosing at to destroy his right of choice. pasting, ers Suen nant have besn QOCONTRT YS 5 place of posting al Tezpur, unfl Ve is fransherrad to Kolkato. The respondents Have acted in grass violation of iransfer pollcy of the depariment and execuied of the Government! of india under onsiitution of India, prevatent oractice, ed counsel for the applicant further submitted a physically hancicanped person with ery . . if a + ow, hee AQ% fal cusability. Since his qopoiniment he cS oS ;
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& nebo ing for trarsier fo his native place, Kolkata and sick parents are residing, The 'oppiicant made a representation doafed 15.11.2017 und due fo the pen lenicy of ihe representation, two other employees were transferred fo Kolkata fram south india vide letier dated 12.04.2018 whe neither had any fight far choice pasting nor were physically handicapped nor covered by any olher | welfare measure of the Government of India. SM, Chanda clted an example that one SH Samir Sarkar did not even cemoleted his minimum 3 yeors fenure in his last station, | Vizag was accommodated al Kolkata.
2, fowas further submitted by ine learned counsel that iransfer fo other station .wihin fhe same cammand is permissible. ordy afer {OQ years In the siation. Transfer respective of ihe said tenure of 10 years can be made only by the Director General, Defence Estates {respondent No. 2}. : According to ihe iearned counsel: the respondent No. 3 who issued tne transfer order is nel a competent authority. As such, the transfer arder dated 69.11.2019 is void cab initio. 1G. Learned. counsel further submited that earlier the applicant approached before this Tribunal vide OLA. No. 392/2019 and this Tribunal vide order date 22.7) .2019 disposed of the O.A, by directing the respondents to dispose of the applicant's representation and til such time, the present place of oo uy According to the leamed counsel while srayer of the applicant meade in above * a s ae it ive] ae oh iD ment ioned | renre ssenictions the responden ed on the issue of release from the e applicant that within 8 days Le. on 17.12.2019 this ant is stil at Tezour, he shall sfayed fhe release order dated OF42.2019 Hl fhe OLA. The oppliicant thereafier regulary our, but he was neliner allowed to fa service nor paid any solary since December 2019.
Te. fi Chanda, learned counsel! further submitted fact eae Cp Ae ete ped FP a yew = a ee pH Ae BOR Gee te ents Fave acted in a pick and chouse manner the: respond SUbaIC niate his crqument SM. Chanda, learned slied The follow NSE ae Sant, fa} Union of India & ofhers Vs, Sri Pradip Kumar Roy WP{C) No: 15a? /2008. (6) Shri Saniay Garg Vs, Union of india & others [OLA No, 175/2008 dated 01.02.2010. (C} Sri R. Periasarny Vs. Union Of India & others (OLA. No, 49 (2010) dated 15.03.2010. (dq). Rajencira Ray Vs, Union of India & another AiR 1993 SC 1234,
14. SA. Chakraborty, learned Addl. CGSC for the resoondents submitted inal the fransfer of the apmicant to DEO Intanagar has been done due to administrative exigencies. The representation mace by the applicant for hfs transfer /posting to Kolkata (PD DE or DEOO) based on ihe ground ihat he has served for more than three (8) years in North Eastern Region was considered and same had cready "been forwarded to the DODE but could not be acceded to of inis juncture due fo cdministrative exigencies and non- evalaniity of vacancy at his choice station.
15. ff was further subrniffed by the learned Addl, CG&SC that transfer being not only incident of service bul also a condition of service and i is necessary in public administration. No Government servant has any fegal right to
-- post any one particular choice, The anolicant fully disobeyed ws = the. fransfer "2 SEY i doteci 19.11.2019 and releved order dated "09.12.2019 arder fy not reporting ihe place of posting. fiont elbow "ness fas per Medical Cerificate) has never l @ Q As Q
74) wy, © 3 wp tes nis performan depariment "that The Government of india. Ministry of Defence ISG YeOS-DiQeCidated 16.08.2019 nas acproval of the competent oauthorty for Defenoe Estat 1es Office at lhanagar. connection the competent authority vide letter dated 7@2019 accorded sanction for deployment of officers/ofiicia's af QEO fanagar and PD DE, EC was drecied fo lake necessary action for redeployment of staff fo DEO mer DE circles of this cornmrnand. Thereafter, quinonly (DGDE) for transfer of posts ordéd san sfon vide OGDE letter dated @1,10.2019 regarding + trons! Mer Of pasis from DEO Tezour and Kolkola eae Keeping in siaive exige sncles and public interas Accordingly. dhe competent autharily PO DE} for ag postin: ig/transfer of Grou C staff issued iransfer costing order based on the seniority of D084 in These O2 offices. Hance, the applicant has been trans ferred on the bas's of stallon senionly in the Q/o DEO Tezour he is the senior most $DO-]) in that circle. Keeping in view N the Adminisircaive exigencies, tolal 05 officials have been jransferred vide letter dated 1O172019 and O04 of them have already joined their respective stations except the applicant. i won't be extraneous iO mention that iné apoiicant has been "consta Hy flouling orders a Hing which As post in DEO "Hanegaris stil lying vacant dus fo which Government work is badly hampers acl, | 18, The respondents in pata 12 of ine written slaterent categorically stated that Department af Personne! & Training has advised that the practice of considering choice of place af posting In case of persons with disctbilifies may be soninued, The representation mode by the applicant has been considered sy sympathetically bul could not be acceded to at this juncture due fo administralive exigencies and non avalabilly of vacancy In Kolkata. Same m ay be again considered as and when feasiole Le. whenever vacancy arses at Kolkata.
12 mis. arqument St A. Chakraborly, % £ : the responderits relied the following fa) $c. Saxe sna Vs. Union of india & others (2006) F SCO SSS
20. Q oleadings a ai placed before us and decision relied _ uoon The & consideration. ar snrbarag "8 te *S a wns siseet made by violating 21, The ag Q sant was Haitiay appointed in the ment on 31.03.2010 and posied ai CK posted af Taznur vide order dated 08.08.2014 which: was:
i vide order 29.04.2018 by adding of words:
'on wnes' and 'keeping also in view the acministratve ex ge ancy and public interest', me arose while ihe aoolicant was sought fo be fransfereact e order date 19.17.2079 from DEO Tezaur with tre post.
yh ant f Soa 20 The rnain contention of fhe learned counsel for The applicant is fat the respondenis issued fhe impugned er order in violation of the norms and guidelines and + ay "policy of the Government of India. To that aspect SAM.
'Chanda, learned course! appearing on behalf of the + applicant has drawn our attention to the follawing OMs:
la} The O.M. dated 10.05.1990 Issued by the Ministry of Personnel Public Grievances ond Pensions, Department of Personnel & Training on the subiect of posting of Physically Handicapped candidates which provides as hereunder, "His diracied fo say Thala suagestion has been made thal physically handicapoed candidates appointed under the Government should preferably be posted In their native places or at least in the notive distic!, The matter has been examined carefully. oy noloe possible or desirable jo lay down thal physically handicapped employees belongin
- Group-A or Group-8 who have all India fansfer labily shoud be posied near thelr native places. However, iy the case af holders of Group-C or Group-D pasis whe have been recrutted on regional basis and who are physically handicanped, such persons ray be. civen posting, as far as- passive, "subject fo adrrinistrative constrainis. near their native places within fhe region. ay
2. Requests from physically hondicapped employees for transfer do ar nearer ine native. places may also be given preference."
(o} The O.M. dated 14.012.1988 issued by the Government of india, Minisiry of Finance Department of Expenditure which » litles for civilian ernployees of the Centra! provides faci Government service in the States and Union Territories of ay "North-Eastern Region ihe said O.M. provi Tenure of posting/deputation SPQ up SENiGe of Periods oe Eoining., etc. ) exce wil be exck confining The Tene of tne Cicer Mente shoatior s may be consicte ice as foros mossibte." cet %} 63.9014 issued by Deparment of Personnel and Training on quidelines for os WG e200) re CH freacy emp ioyed cain oe UTE ég pete ONC ofthe time of iro msfersp persons with disability
24. a ite sure af pe asi ng of 3 years ala tha Government of soverment for MONnce of freir dutie es The clause H of the sald morn Shon 6 mr ay fats) Re ubject fo ine :
to PD DE EC Kolkata or DEO & to not to relieve Aim from Tezpur fil consideration of h benefit for posting of disabi The applicant mace representation dated 15.11.2017 with a request to give him a choice posting from DEO Tezpur kata as per guideline daled arch 10.08.90 issued by fhe Ministry of Personnel Public Grevances and Pensions, Department of Personnel and Training. He further made representation dated 20.11.2019 wiih a request * uw choice posting af PD DE CE DEO Kollaka, Undisoutedly the applicant is a physically handicapped employee wilh 40% orthopedically permonent disability and ihe respondent authorities whife bsued the fransier order dated 19.11.2019 as weil as rejection of the representation of the apolicant vide order dated OF 12.2019 lgriored the policy --
"guideline of fhe Government of India set forth for extending ad Central Government pes employee and for accommocating as per cholee posting. Y AG : } 2 t ;
over righ! policy of the Government of india. In our view, fhe reason ciied by the respondenis is not acceptable. 2s... Hols further noted that ine respondents failed fo follow the norms and guidelines of Government of India dated 14.12.1983 and 31.03.2014. he justification cited by the responderits is seemed to be Leta lhe ees riher molec that the re SspEneen even without Yiag sough! fo relleve the applicant on the same date of rection of the representation. Thus, we find that the respondents have not acted fairly winile raieciing fhe ot evan ces of the coplican? apart from violating ns Incorporated in above policies ond Yiscussed in ine foregoing paragraphs. 2? The "reso: ondents vide para 12 of their wiitte sfafement fas foken cotegorical stand that the sepresentations mace by the applicant has been considered sympathetically but could not be acceded to at this juricivure ery STOHVE exig gency ana noreavailabilty o
-yaicancy In Ko seat Sar me may be again considered as and Le. whenevervacancy arises ai Kolkata. o.
when feasible at 28, Vide reloinder filed on 11.03.2020 the applicant | reference fo the salcl cara 12 of the writien siafemeni of ihe respon dent qd that prayer for accommenaton at Tezpur be there is vacancy of Kolkata erat and in terms of ihe OoNcies OF the Govem 29, in case of Pradio Kumar Roy (Supra), the Hon'ble Gauhali High Court fook note of O.M. dated 14.12.1983 as already ciscussed in the ipregoing paragraphs which says that "as per ihe said O.M. a Central G avemmen? employee on completion of the ee posting in the NE Region is Ne rifled to be considered for choice place of posing. In case of Sanjay Garg (Supraj, this THounal observed and hereunder:
if aqopeors that ic allract competent officers fo serve in fhe Marth Eas} Region the provision for choice transfer was made. Right to give choice wis bevewed on the aemcloyess. mie aprghtis created if cannot be disturbed withou? any legal justification."
li was further observed as hereunder:
"Taking inte consideration the enfire conspectus of the case. we direct the respondents to accommodaie the applicant al the place of his choice within four months fom the date of this order. Meanwhile applicant be nat disturbed fram the nlace of his prasent ni po sting in case of R. Perasarny (Supraj, this Tribunal observed as hereunder:
"BY serving in The Marth Bast 8 Segion applicant gained ight of consideration for posting | fo a Slation of his choice. This foc! wos nol corechy oporecigied by the respondents, The obligation which emanated out of the assurance given to Ine employee for corning fo North East Region was hot properly discharge. The issue was not exarninad in the Aaht perspechyve," :
ff was further observed as hereunder: four months 4 ¢ e comicant be not ate tsa ae.
oes upra} the Hon'ble Supreme Court s gassed mala fice or in violation of ins oor "Aur and the Titunal should mot inte: Sob tronster.
ra) relied upon by the learned yernmoent seve smmicly wih irarefer order.
' he new mloce ; é Qnevances, curoed- More so when there wos no ew place ~ Hence, the behaving In ach manner pplication for a long period months in this case} rightly held fo Hhorsecd absence fram duly"
x oresent case, if is candid clear thal the the policy and e issuing the transfer order and tejection and relleved order dated OF. 12.2019. In admitted posit 3h Affer taking info entre conspectus of the case and decision' felled upon os discussed in the foregoing . paragraphs, we arived aid rogica! conclusive view That the 4 respondents yviolonied the NOTENS and quidetines of jhe Government of india.
32. in view of above facival and legal postion, ihe ~ dmpougned transfer order dated 19.11.2019 as well as relleve s| order dated 09.12.2019 are not sustainable under the low. Accordingly, the transfer order datecl 19.11.2019 ond relieve order doted 09.12.2019 are set aside and quashed. The applicant be allowed fo continue at ine present place of | posting fil fresh consideration of choice posting at Kolkata or 33, Wih above observations ond direction OA. is hereby disposed of.
34, M.A, No, 040/00036/2020 by which learned counsel for the applicant prayed for early hearing of OA. No.040/00424/2019 stands disposed of.
35. M.A. No, 040/00001 /2020 by which learned counsel for the applicant prayed for execution of the order of this gent ai © pew Tripunal dot ed PPS 20) isposed of, 36, 040/00 24/2019 7; MA, No, respondents has become infructuous ¢ Hr Oo, A. 040/004?
4/2019 also stands dn view of the orcler passed in the pre ent OA. No, 040/00020/2020 fied by the Se d same is hereby ii his matter capearing Giasie Have bean vigibly and fainvfutly _ gapled with no modifications."
Dy Registrar! 80 tJ} CAT. Guwehall Bankch Ho Magee g Pps He Member i} sap _ Mr NJ Neihsial Hon'ble Memiler(Al