Central Administrative Tribunal - Ernakulam
M.G.Sreekumar vs The Director General on 31 March, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO.180/00371/2016
Dated this the 31st day of March , 2017.
CORAM
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath, Administrative Member
M.G.Sreekumar, S/o C.P. Govindan Nair, aged 46 years,
Assistant Engineer (Civil) (Personal-in-situ),
O/o the Executive Engineer (Civil),
Civil Construction Wing,
AIR &TV, Kakkanad, Kochi 37, Residing at
'Harisree', Bylane-8, Netaji Road, Aluva.
... Applicant
[By Advocate Mr.R.Sreeraj]
Versus
1. The Director General, All India Radio, New Delhi 110 001.
2. The Superintending Surveyor of Works I, Civil Construction Wing,
All India Radio, New Delhi 110 001.
3. The Superintending Engineer, Civil Construction Wing, All India
Radio, Chennai 600 001.
4. The Executive Engineer (Civil), Civil Construction Wing, AIR & TV,
Kakkanad, Kochi 37.
5. Union of India represented by its Secretary to the Government of India,
Ministry of Information & Broadcasting, New Delhi 110 001.
... Respondents
(By Mr. N. Anilkumar, Sr. PCGC(R))
This application having been finally heard on 09.03.2017, the Tribunal on 31/03/2017
delivered the following:
ORDER
Per: Mrs. P.Gopinath, Administrative Member:
The applicant an Assistant Engineer in the Civil Construction Wing of the All India Radio is aggrieved by his transfer from Kochi to Hyderabad. Earlier he was transferred to Portblair, which was successfully challenged before this Tribunal.
2. Applicant's first posting was in Ziro in Arunachal Pradesh, a Hard Station. On his transfer to Kerala, he had opted for Chennai Zone. He has been working in Kerala for the last 23 years. But he is neither the State senior nor the station senior. Normally, all Assistant Engineers in the Civil Construction Wing are allowed to work in a state with transfers limited within the state. In extreme emergent cases, transfers are effected outside the state, but within the Zone. Hard Station transfers happen in the case of those, who have never worked there. Hyderabad where applicant has been transferred is not a Hard Station. Applicant would argue that there is no plausible reason for the transfer to Hyderabad. If Manoj Vayooth and Reghunathan Nair can be given posting within Kerala, there is no reason why similar treatment cannot be given, argues applicant.
3. There is shortage of Assistant Engineers in Kerala. This was established in OA 378/2015. Further it was established in OA 378/2015 that there is no person waiting outside Kerala for a posting to the state. Applicant argues that his transfer from Kochi to Hyderabad is vitiated on account of malafides. The respondents are enraged over the failure of their attempt to transfer the applicant to Portblair which was aborted by the intervention of this Tribunal. Applicant argues that neither Manoj Vayooth nor Reghunathan Nair deserve special treatment. Applicants option to Calicut was overlooked for favouring Mr. Reghunathan Nair. Applicant submits that State senior is Mr.Sunny Chacko and Station senior is Mr. Manoj Vayooth. If the applicant moves out, the deficiency in Kerala will increase to 3. Hyderabad has no such concern.
4. The transfer order argues applicant, is issued by an incompetent authority. The Assistant Director General is the competent authority and he did not issue the transfer order. The applicant submits that 1 st respondent is the competent authority to make transfer. It was to the 1st respondent that the Ministry delegated the power as per provisions of the AIR Manual. The 1 st respondent cannot further delegate that power to any other authority. As per Office Order No.192/2015 PPC dated 24.8.2015, for Group B Non-Gazetted/Group C and erstwhile Group D in Engineering Cadres, Zonal ADG (E) concerned is the competent authority to consider proposals of transfer/postings of officers and DDG (E) AIR and /or DDG (E) DD & DD(E) AIR/DD is the recommending committee. Therefore, the specific case of the applicant is that his transfer was not ordered by a competent authority and this is admitted in Annexure A-4. For that reason alone, the Annexure A1 transfer order is liable to be quashed as incompetency is one of the three grounds reckoned by the Apex Court for challenging a transfer order.
5. Relief sought by applicant is to direct the respondents to permit the applicant to work at Kochi as an Assistant Engineer.
6. The respondents argue that in situ promoted AE(C)Ps are liable to be transferred anywhere in India, by virtue of the nature of their job and as laid down in the terms of conditions of the initial appointment order. The present transfer of the applicant is made within South Zone. The applicant aggrieved by the order of transfer approached the Tribunal which after preliminary hearing, directed the applicant to prefer a representation to the competent authority among the respondents, who would consider and dispose of the same within a week. The representation was considered by the 3 rd respondent and disposed of with a speaking order dated 25.05.2016.
7. Respondent contests the submission of applicant that all Assistant Engineers (C)(P) in the Civil Construction Wing work in the State only and transfers are limited to within the state. Applicant's averment is not subtantiated by any provision or rule. Transfers of AE(C)Ps are made as per actual requirement of work, and not as per division strength. The Hyderabad Division Office is looking after the works of two states i.e. Telengana and Andhra Pradesh which have a number of AIR and Doordarshan installations. This by itself necessitates adequate support staff and technically equipped manpower for the smooth functioning of the respondents' work. Further, presently there is a dearth of staff at Hyderabad and hence the applicant has been transferred to the said station.
8 The contention of the applicant that he is neither the State Senior nor the Station senior is contested. The respondents submit that the date of joining of AE(C)Ps at their present place of posting are as given below:
Sl. Name of Officer Place of Posting Date of Joining Remarks No. 1 M.G.Sreekumar Kochi 06/11/07 2 V.K. Raghunathan Kochi 12/23/08 Transferred to Nair Kozhikode 3 Manoj Vayoth Kozhikode 07/31/06 Transferred to Kochi 4 Arons Cherussery Kochi 08/12/14 5 Sunny Chacko Thiruvananthapuram 03/31/11 6 T.P.Satish Thiruvananthapuram 06/17/14 7 S.G.Madhavan Kozhikode 07/31/14 8 Durai Raju Thrissur 05/08/12 Transferred from Tamilnadu to Kerala 9 P.T. Saxena Dayal Mangalore 05/07/15 Already transferred to Mangalore, Karnataka.
Above table shows that the applicant, placed at Sl.No.1, is a person who has joined in Kerala earliest amongst the 9 incumbents. The applicant who has been working in Kerala State for the last 23 years joined the present station of posting in June 2007 and for the past 9 years he has been located at Kochi. In the previous instance, respondent submits they were found to have acted erroneously causing the Tribunal to interfere, to set right at naught the transfer order of the applicant to Port Blair, a hard station. In the instant case, the applicant has been transferred to Hyderabad only. The applicant is the incumbent who has the earliest date of joining in Kochi Station and has been in Kerala for the last 23 years or more. Further, in the case of Manoj Vayoth, the said incumbent has worked at I) Bhuvaneshwar, (ii) Chennai, (iii) Kannur (iv) Port Blair, (v) Kozhikode and is presently at Kochi. V.K. Raghunathan Nair has worked at (I) Jaipur (ii) Tirupati (iii) Chennai, (iv) Pondicherry (v) Thiruvananthapuram (vi) Mangalore (vii) Thiruvananthapuram (vii) Thrissur
(ix) Kochi and is now at (x) Kiozhikode. V.K. Raghunathan Nair is due for retirement on 31.01.2020. While so, the applicant has worked at (I) Ziro, (ii) Thrissur (iii) Thiruvananthapuram (iv) Manjeri (v) Alappuzha (vi) Kochi. This would reveal that the applicant has only worked outside Kerala in Ziro, a hard station at the inititial stage o f his career and thereafter all his transfers have been confined to the state of Kerala, whereas, the other two incumbents, Manoj Vayoth and V.K. Raghunathan Nair referred by applicant in the O.A have both been posted outside Kerala at least thrice. The applicant stands relieved from CCW, AIR, Kochi. The interim stay granted against the transfer of the applicant argues respondent, is adversely affecting work at Hyderabad. The transfer of the applicant to Hyderabad is based on the actual requirement at the said station argues the respondent.
9. Respondent contests the submission raised by the applicant that the transfer order has been issued by a incompetent authority. The Chief Engineer is the competent authority for issuing transfer order of AE(C)Ps and not the Assistant Director General, AIR as contended. A copy of the initial appointment order of the applicant No. AIR/CCW/SE-GH/5(E)/90/1853-59 dated 19.3.1990 is produced as Annexure R1(c). Copy of the Order transferring the applicant from Ziro Sub-Division to Thiruvananthapuram dated 18.06.1992 is produced as Annexure R1(d). Orders similar in nature are being issued by EA to SSW 1 with the approval of the Chief Engineer (C). The Civil Construction Wing of the All India Radio has a distinct and definite line of authority within which the Chief Engineer (C) is the main functionary. The functions of various units at the Headquarters' of CE(C) I is produced as Annexure R1(e). Matters pertaining to all aspects of works under the jurisdiction of CE(C) I as well as the overall coordination in respect of a few categories of technical staff comes under the powers of the Chief Engineer.
10. Annexure A1 order of transfer relating to applicant is under challenge in this O.A. on grounds of incompetency.
As per Annexure A5 relevant portion of the AIR Manual regarding Special Powers Delegated to the Director General, AIR produced along with the MA for Production of Additional Documents, the Ministry has delegated the power to transfer officers within AIR up to the Station Engineer (Executive Engineer in this case) to the DG, AIR. The applicant submitted an application under the RTI Act asking for a copy of the document as per which the power entrusted to the competent authority for making transfer in respect of AE(C) (P) has been delegated to an authority other than the DG, AIR. He was given a copy of the Annexure R1 (g) produced by the respondents along with the additional reply statement. As per this document, the power to transfer Group B Non Gazetted and Group C Engineering Staff is vested with ADG (Zone). There is no document produced to adduce that CE (CCW) has the authority to transfer AE(C). Applicant was transferred by CE (CCW), who is not the competent authority. On the other hand, all direct documents suggest either DG, AIR, or ADG (Zone) as the competent authority to transfer AE(C), (P).
11. Respondent argues that hither to all transfers of AE(C) including transfers in respect of the applicant as well has been made with the approval of CE (CCW). However, the Tribunal notes that such a delegation, if not made by a notification will not make a wrong into a right practice. CCW is a different wing altogether modelled on the CPWD with CE at its apex. As per the provisions in the AIR Manual, CPWD Manuals are applicable to the CCW. As per the provisions in the CPWD (Establishment) Manual, SSW is the authority to transfer JEs. The applicant is a JE redesignated as AE(C)(P). He is transferred with the approval of the CE. Hence the transfer order according to respondent does not suffer from the vice of incompetency. Assuming that the respondents are correct in their submission that CPWD (Establishment) Manual applies in determining the competent authority in transferring the applicant, we note that the CPWD (Establishment) Manual had undergone changes and as per the latest Manual, namely, CPWD Manual Regular Establishment and Office Procedure, 2013 Edition, Chapter 12, dealing with Transfer, Deputation & Transfer of Charge at Page 95, Para 12.4, 'details that transfer and posting of Group B &C officers/staff shall be done by Spl. DG/DDG(HQ) of the region except in case of OS Grade I, Chief Estimator, Asstt Director (Hort)....' The applicant is a Group B non-Gazetted officer and as per this CPWD Manual the authority as competent to transfer him is the Spl DG/DDG(HQ) of the region and not the CE. Respondent has not made out a case that CE (CCW) is the equivalent of Spl DG/DDG HQ.
12 In AIR Circle Construction Wing (CCW), CE is at the apex whereas in CPWD, it is the Special DG. So, they may argue that CE in CCW is comparable to Spl. DG in CPWD and hence the transfer is in order. Applicant argues that Special DG in CPWD is in HAG+ Grade and the CE in CPWD is in SAG Grade and he is two rungs below the Special DG. The CE in CPWD is drawing the Grade Pay Rs. 10,000 and the Superintending Engineer is drawing the Grade Pay Rs.8,900 only. It appears that the CE in CCW is one between the CE in CPWD and the SE in CPWD. The CE in CCW may be the functional head of CCW so far as financial powers are delegated to him. But he is not equivalent to the DG or the Special DG in CPWD for exercising the same powers conferred on them.
13. On the hearing in the matter on 9.2.2017, the Counsel for the Applicant had handed over, across the bar, a copy of the transfer order issued in respect of regular AE(C) of CCW. That order is seen issued with the approval of the DG, AIR. Had the CE in CCW been specifically designated as similar to either DG AIR or Spl DG in CPWD, the transfer orders of in situ AE (C) like applicant would be in order. Such a document is not produced. The fact that the transfer orders of regular Group B AE(C) officers in CCW are being issued with the approval of DG, AIR disproves the contentions of the respondents as there can be no distinction between transferring authority of similarly placed regular AEs and in situ AEs. The same document also shows that the cadre controlling authority of the insitu promoted AE(C (P) is same as that of the regular AE(C) who are transferred with the approval of the DG, AIR only. Hence the contention of respondent that CE CCW is the competent authority to transfer AE does not hold.
14 As per para 3.1.1. of Chapter III, AIR Manual, the DG has been declared as the Head of Department and is responsible for the overall administration and supervision of the entire AIR network. CCW comes within the ambit of AIR network, as is evident from Para 3.1.5 of AIR Manual. Hence, it cannot be said that DG,AIR has no role at all in establishment matters of CCW and that the CE is the competent authority. First of all, para 3.5.5. starts with the observation that the CCW is working generally on the pattern of CPWD. CPWD has different manuals like Establishment Manual, Works Manual, Vigilance Manual etc. In the Foreward to the CPWD Works Manual 2014, the DG (CPWD) has stated that 'this Manual is not only used in CPWD but also acts as useful guidelines to a large number of Central Government Organisations and Public Sector Undertakings who adopt the working procedure of CPWD.' The CPWD Works Manual, no doubt, applies to CCW. But the question is whether the CPWD Establishment Manual applies and if so to what extent? The following statement in the Preface to the CPWD Establishment Manual would help in the matter. 'This Manual has been prepared with the aim of giving general information and guidelines which 'will facilitate CPWD officers in discharging their duties smoothly.' Those in CPWD, treat their Works Manual as applicable to all similar oganisations, but treat their Establishment Manual as applicable to them only as the hierarchical staff structure and terms and conditions of engagement and service may vary. Annexure A5 confers power to transfer officers within AIR up to the Station Engineer to the DG, AIR. Likewise, Annexure R1(g) confers the power to transfer Group B Non Gazetted and Group C Engineering Staff to the ADG (Zone). These are specific and express conferments of power in the AIR Manual. Applicant argues that it is well settled that expresssio unis est exclusio non alterius i.e. that which is expressed excludes that which is not expressed. The power to transfer, in CCW, is expressely vestd with the DG., AIR, and other authorities mentioned in Annexure R1 (g).
15. We would like to recall the observations of the Supreme Court in Rajendra Singh Vs. State of UP (2009) 15 SCC 178 :
' A Government servant has no 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. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. 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. (see State of UP Vs. Gobardhan Lal)'
16. The Apex Court in above judgment had also held that Courts are normally reluctant to interfere in transfer matters unless it is hit by malafide or violates any statutory provisions. Transfer orders issued by the competent authority do not violate any of applicant's legal rights. The Apex Court recalled its observations made in N.K.Singh Vs. Union of India & others (1994) 6 SCC 98 that :
'6. b�&.the scope of judicial review in matters of transfer of a Government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision.' 17 Applicant argues that the CPWD Manuals, on their own, won't apply to CCW. They have to be made applicable to CCW by adoption. Indication in Para 3.5.12 is that the adoption was by the orders of the DG, Air. That be so, the provisions in the CPWD Manuals pertaining to transfer, would stand excluded from the purview of such adoption because the DG., AIR holds only delegated power in respect of transfer matters and being a delegate, he cannot further delegate, unless such delegation is made by the Ministry who is the original vestee and delegater of the power of transfer vested. That the EA to SSW till date signed all transfer orders including that of the applicant will not validate the Annexure A1 transfer order if the CE or the SSW is not competent to transfer the applicant. When the applicant sought information regarding the authority competent to transfer AE(C), it is the respondents themselves, who gave him Annexure R1 (g). The respondents cannot now say that it is not applicable because it pertains to AIR & DD alone. CCW is a part of AIR & DD and works for both. We have no contention that applicant is not liable to be transferred.
Any competent authority would have to distribute available manpower among the offices under him, firstly to man those offices, and secondly to ensure that no person works for such a long time that he develops a vested interest. Further, moving among different offices will also help to spread the best practices in the office to other offices and learn the best practices of the transferred office.
18. But only on account of lack of competency on the part of the authority who approved and issued the transfer order, Annexure A-1 is liable to be set aside. We do so. Applicant holds a post with all India transfer liability. Transfer is an incident of service. He has been in State of Kerala for more than 23 years. We only direct that the transfer order if any, required shall be issued by the competent and authorised authority. The Original Application is disposed of as above. No costs.
(Mrs. P. Gopinath) (N.K. Balakrishnan) Administrative Member Judicial Member sj*