Central Administrative Tribunal - Delhi
Hukam Chand vs Defence on 30 April, 2024
1
OA No.1544 of 2022
Court No.5 (item No.2)
Central Administrative Tribunal
Principal Bench
OA No. 1544/ 2022
Reserved on:02.04.2024
Pronounced on : 30.04.2024
Hon'ble Dr.Chhabilendra Roul, Member (A)
Hukam Chand
S/o Shri Arjan Dass
988 R.K. Puram
Sector 12, New Delhi-110022
.. Applicant
(Through Advocate: Present None )
Versus
1. Ministry of Defence through Secretary,
Department of Defence, R&D, Government of
India, Ministry of Defence
Department of Defence R&D
HQ, ATVP "Akanksha"
Development Enclave
Rao Tula Ram Marg, New Delhi-110003.
2. Director General, Advanced Technology Vessal
Programme, Ministry of Defence,
Department of Defence R&D
HQ, ATVP
"Akanksha"
Development Enclave,
Rao Tula Ram Marg, New Delhi-110003.
3. Director, Personnel, HQ Advanced Technology
Vessel Programme, Ministry of Defence
Department of Defence R&D
HQ, ATVP "Akanksha"
Development Enclave,
Rao Tula Ram Marg, New Delhi-110003.
2
OA No.1544 of 2022
Court No.5 (item No.2)
(Through Advocate: Mr.Dilbagh Singh )
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
The present Original Application has been filed by the applicant, seeking the following:-
"(a) Quash and set aside the impugned order dated 19.5.2022; and
(b) Pass such other order(s) or directions as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case and in the interests of justice.
2. The brief facts of the present case is that the applicant was appointed on temporary basis as a Coffee / Tea Maker in the Tiffin Room of HQ Advanced Technology Vessel Programme ("ATVP") at New Delhi on 09.04.1990. The appointment was against a regular sanctioned post under ATVP Programme. Subsequently, the applicant was made permanent. Vide impugned order dated 19.05.2022, the applicant was transferred to DMDE Secunderabad and he was relieved with immediate effect.
Being aggrieved, the applicant has filed the present OA, seeking the aforementioned relief. 3 OA No.1544 of 2022 Court No.5 (item No.2)
3. On admission of the OA, notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed rejoinder to the same.
4. The learned counsel for the applicant states that the position of Tea Maker at New Delhi under the ATVP is not a transferable one. The terms and conditions of the present applicant do not mention that the present job is having All India Transfer Liability. The condition of service as the respondents have now interpreted and implemented a transfer out of Delhi is without any statutory basis. The respondents cannot change the service conditions of the employee, which were not part of condition at the time of offering appointment to the applicant.
4.1 The learned counsel for the applicant avers that the applicant is a group D employee and the post of Tea Maker belongs to the Canteen services of the respondents. The applicant has rendered continuous service of 32 years at HQ ATVP, New Delhi and during his service there was no policy decision, transfer policy or recruit rules which was shown to him that the post 4 OA No.1544 of 2022 Court No.5 (item No.2) of Coffee/Tea Maker at ATVP HQ, New Delhi is a transferable one. In absence of any transfer policy for the post of Coffee/Tea Maker which was originally a Group D post and now after 6th CPC recommendations the said post has been converted to Group "C" post, the transfer of the present applicant to Secundrabad is arbitrary and whimsical on the part of the respondents.
4.2 The learned counsel for the applicant further refers to the grounds of his appeal, particularly, ground B where he has alleged that the respondents have transferred the present applicant as a punitive measure because his superiors were displeased with him. The transfer order is malafide and punitive in nature. The learned counsel for the applicant refers to the rejoinder filed by the applicant to the counter affidavit filed by the respondents, stating that there is no post of Coffee/Tea Maker available at DMDE Secunderabad. Despite that, the applicant has received his salary which is shown as that he is drawing his salary against the post of Tea Maker.
5OA No.1544 of 2022 Court No.5 (item No.2)
5. Per contra, the learned counsel for the respondents refers to the counter affidavit filed by the respondents. He states that the applicant has been transferred vide order dated 19.05.2022 against the vacant post of Canteen Staff of DMDE at Secunderabad. The appointment letter in respect of the applicant dated 09.04.1990 has not specifically stated that the post of is non-transferable. The respondents have raised objections that the applicant has not approached to the respondents before approaching this Tribunal seeking the relief mentioned in the OA. The applicant has been transferred to the Secunderabad on account of administrative exigencies. It is not that the applicant is not the first person from the group D/C post who has been transferred out of Delhi. Earlier, one Mr.Dhan Singh MTS, had been transferred out of Delhi on 23.05.2022. The learned counsel for the applicant states that the ATVP is a strategic programme of National Importance and it is sensitive in nature. That is the reason there is no transfer policy for group D/C post under the ATVP programme.
6OA No.1544 of 2022 Court No.5 (item No.2) 5.1 The learned counsel for the respondents further states that the allegation that the transfer order is punitive is denied by the respondents in their counter affidavit. The applicant has been transferred out against the vacant post of Canteen Staff of DMDE at Secunderabad and being a strategically organization at ATVP programme does not have transfer policy for its group C posts. Hence, in absence of that it is the prerogative of the respondents to transfer its staff including group D/C employees to various locations depending upon the administrative exigencies. 5.2 The learned counsel for the respondents drew attention of this Tribunal to the additional affidavit furnished by the respondents on 25.01.2022. He further referred to Annexure A-2 to the additional affidavit which refers to the letter dated 19.09.2007 by which the competent authority has approved running of the Canteen service at HQ, ATVP through outsourcing. Because of the outsourcing of the Canteen service at the HQ, ATVP,the Tea/Coffee maker has become surplous at New Delhi. He refers to communication dated 30.03.2022 and 26.04.2022 by the office of the Director DMDE with request for filling 7 OA No.1544 of 2022 Court No.5 (item No.2) up the vacancies at DMDE at Secunderabad. The posts include the post of 8 MTS including one cook and one bearer in that establishment. When the Canteen Staff at ATVP Delhi became surplus because of outsourcing of Canteen staff at Delhi, it was an administrative exegencies of managing the MTS post at Secunderabad and accordingly, the applicant was transferred to DMDE Secunderbad.
5.3. In view of the administrative exigencies, the transfer of the present applicant cannot be termed as punitive or in the nature of punishment. The allegation of the applicant that the transfer of the applicant is punitive in a nature because he made some altercation with his seniors is baseless and without any basis.
5.4 The learned counsel for the respondents refers to the order of the Co-ordinate Bench of this Tribunal at Hyderabad passed in OA No. 20/00743/2020 dated 07.03.2023 wherein the Lab Assistants, namely, Shri D. Kishor Kumar, Lab Assistant Group "C" challenged transfer order when he was transferred from Ship Building Centre, Viskhapatnam (Work Centre of HQ 8 OA No.1544 of 2022 Court No.5 (item No.2) ATVP) to another location. The Co-ordinate Bench of the Tribunal at Hyderabad has held that duties of any Government Post is defined by the Cadre Controlling Authority assignment /allocation of duties are done by the Departmental Officer based on directions and guidelines given by the superiors. The Government Official has to follow and to carry out the work as per the extant order of the department and cannot deny the official work or duty assigned to him to meet the functional requirement of the Organization. The learned counsel for the respondents states that no relief was granted to the applicant therein. Drawing analogy to the said order in the aforementioned OA, the learned counsel for the respondents states that the present OA should be dismissed.
6. In rejoinder, the learned counsel for the applicant refers to the additional affidavit filed by the applicant on 25.10.2023 wherein he has stated that the transferring the present applicant to DMDE Secunderabad and taking the work of various activities to MTS, the applicant have completely the changed the service conditions of the applicant. He referred to letter dated 21.07.89 attached to the rejoinder filed by the 9 OA No.1544 of 2022 Court No.5 (item No.2) applicant which mentions that the Tiffen Room at ATVP Programme at its Headquarters at Paryavaran Bhawan Delhi has one post of Tea/Coffee Maker at the pay scale of Rs. 750-940/-. Thereafter there is no officer order stating that Tea/Coffee Maker post has been merged with the MTS Cadre and there is no specific order that the post of Tea/Coffee Maker at ATVP HQ Delhi has become surplus. In view of this, the learned counsel for applicant has pleaded that the transfer order 19.05.2022 is irregular and hence it should be quashed.
7. I have heard the arguments advanced by both the learned counsels and perused the records carefully. 7.1 In the instant case, the learned counsel for the applicant emphatically argued that the post of Tea/Coffee Maker at HQ ATVP New Delhi is a single post and no such post is sanctioned any where including at DMDE Secunderabad. According to him, the respondents have failed to produce any office order declaring that the post of Tea /Coffee Maker at ATVP HQ New Delhi has been merged to the post of MTS Cadre or other Canteen Staff to run the Canteen 10 OA No.1544 of 2022 Court No.5 (item No.2) services. This contention of the learned counsel for the applicant is not tenable at all. The respondents have submitted copy of the sanction of the Competent Authority 18.09.2007 which states that ATVP Canteen Services were approved to be run on outsource basis. It is difficult to accept the contention of the learned counsel for the applicant that without the canteen services, tea or coffee maker will also function in the ATVP HQ. The Administrative exigencies arise in various organizations with the passage of time. The nature of job of various categories employee also undergo change. It has been rightly recommended by the 6th CPC that all the group D posts would be merged with the Multi Tasking Staff cadre of MTS. This recommendation of the 6th CPC has been duly accepted by the Government India and has been implemented in various Ministries and Departments. In the instant case, it has been fairly clarified by the respondents that the post of Tea/Coffee Maker has become surplus at ATVP HQ New Delhi because of running of canteen services on outsources basis. Simultaneously, the DMDE Secunderabad which is part of the ATVP programme has requested for posting 9 MTS including 11 OA No.1544 of 2022 Court No.5 (item No.2) one Cook to their establishment as they are short of manpower at Secunderabad.
7.2 In view of the above, the administrative exigencies have clearly been established by the respondents regarding requirement of MTS including the one Cook at Hyderbad. Over passage of time, if without changing the pay scale of the employee the organization re- assigns the work of MTS to Tea/Coffee Maker it cannot be said that it has violated the terms and conditions of the employment. The contention by the applicant in this regard is not tenable at all. The changing dynamic requirement in various Government Organization will require the modification of the job description and performing requirement of its employees. The job which was performed by an employee at the entry stage cannot be expected be performed though out his service carrier.
7.3 In view of this, the averment made by the learned counsel for the applicant that the applicants terms and conditions has been changed because of the change in the nature of the work assigned to him is not acceptable. The argument that the transfer order 12 OA No.1544 of 2022 Court No.5 (item No.2) dated 30.05.2022 is a punitive in nature is also not acceptable because the applicant has failed to adduce any cogent evidence in this regard. By mere verbal assertion cannot substitute for hard evidence and cogent substantiation.
8. In view of the above, the present OA lacks merits and hence is dismissed.
(Dr. Chhabilendra Roul) Member (A) /mk/