Central Administrative Tribunal - Delhi
Shri Sohan Singh Kanawat vs Union Of India & Others on 29 May, 2015
Central Administrative Tribunal Principal Bench New Delhi O.A.No.1373/2015 Order Reserved on: 22.05.2015 Order pronounced on 29.05.2015 Honble Dr. K. B. Suresh, Member (J) Shri Sohan Singh Kanawat Special Commissioner, (VAT) DANICS S/o Late Shri Bhoop Singh R/o D-II 13 Pandara Road New Delhi 110 003. Applicant (By Advocate: Shri M.K.Bhardwaj) Versus 1. Union of India & Others Through the Secretary Ministry of Home Affairs North Block New Delhi. 2. The Secretary Ministry of Home Affairs North Block New Delhi. 3. Government of NCT of Delhi Through Chief Secretary Delhi Secretariat, I.P.Estate New Delhi. Respondents (By Advocate: Shri Hanu Bhaskar) O R D E R
The applicant is an insulin dependant diabetic patient with complications indicating diabetic retinopathy and diabetic neuropathy. He is before us challenging the pre-superannuation transfer orders issued to him whereas the other similarly situated and are apparently not been transferred even once to other areas, other than Delhi, and are still continuing in Delhi. He would also say that his personal life is vested with problems such as daughters marriage, etc. Even, though apparently she is nearing the age of 30 years as of now, and because of these issues, and added by this transfer order, his wife has gone under depression and she is under Doctors advice for visiting the Hospital every fortnight for about one and half years regularly and is on medications.
2. The applicant belongs to Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Services (in short, DANICS) and that is comprising of the following five administrative segments/units:
i) Government of N.C.T. of Delhi.
ii) Union Territory of Andaman and Nicobar Island.
iii) Union Territory of Lakshadweep Island.
iv) Union Territory of Daman and Diu (DD).
v) Union Territory of Dadar and Nagar Haveli (DNH).
These Units are apparently differing from each other Geographically, Historically, Culturally and facilities wise. The Government of India had issued guidelines for transfer and posting of DANICS/DANIPS officers and the crucial elements are as under:
a) The direct recruit officers are required to serve in the outlying segments in two spells - the first spell will be of minimum 3 years and the second spell will be of minimum 2 years. But then, it also adds: however, the number of stints and duration in outlying segments may vary subject to availability of suitable officers - this is being assailed as imposing a more than normal level of discretion of a vague nature and which renders the concept of certainty redundant.
b) The transfer and posting of DANICS/DANIPS would be decided with the approval of the Joint Secretary (UT), i.e., appointing authority.
c) Station seniority list of officers in each grade would be prepared on the basis of total period that they have spent in Delhi from the date of entering in the service.
d) The officers whose retirement is due within two years may not normally be posted in the outlying segments unless requested for.
e) An officer functioning as Deputy Resident Commissioner etc. and based in Delhi, for any administrative duty of the outlying UT administration would be treated as if he is on Delhi posting.
f) Transfer orders once issued after due consideration would be strictly enforced. Disciplinary action may be initiated against those officers who bring extraneous pressures for cancellation of the transfer orders, and moreover, in each case, a record shall be kept in the ACR dossier of the officer concerned in this effect.
g) Medical certificate, furnished by an officer in order to seek or to cancel his/her transfer on medical grounds would be placed in his/her ACR dossier and a note to that effect would be made in the column relating to State of Health in the ACR of the relevant period.
3. Therefore, a bare reading of the aforesaid guidelines, it is crystal clear that these policy guidelines are very strict in enforcing adjustment of officials except in the first instant, a vague statement had canvassed an extraordinary discretion in adjusting transfers, administrative propriety would forbid it.
4. Applicant would say that vide Annexure A-4, dated 01.06.1989, the Government of India had posted the applicant to Car Nicobar Islands under the Administration of Andaman Nicobar Islands on the completion of his training itself. He would say that even though vide Annexure A-1, he was transferred from Delhi to Andaman & Nicobar Islands, where he had been posted earlier, and as a normal practice, to such a hard place, no one is posted again. He would also say that he is the only one person who is being sent there once again. He would contrast his representation with that of Shri P. C. Jain as vide Annexure A-7, the Ministry of Home Affairs (in short, MHA) decides that for the cancellation of the transfer order of Shri P.C.Jain, even though he was inducted in IAS, he had declined on the grounds of personal difficulty and therefore, they assume that his personal difficulty is of such nature that they need not send him out of Delhi at all. Vide Annexure A-8, he brings forth the cancellation of transfer order of several officers whose transfer order was cancelled for reasons unknown, he mentions the cases of Ms. Rashmi Singh and Shri Sushil Singh, whose transfers are cancelled but which are explained in the reply and will, therefore, be dealt with later. Records of that case would indicate the following cases as well:
1). Shri K.C.Aggarwal was suspended after a CBI case, and on revocation, he was posted in Delhi itself.
2. Shri B.R.S Rathore was arrested by CBI and placed under suspension, and even when the suspension was revoked he was not transferred out of Delhi.
3. Shri J.K.Jain was arrested by CBI in Daman and after revocation of suspension he was posted as Director (SW) in Daman only.
4. Shri Krishan Kumar had been charge sheeted by CBI in several cases but posted as Deputy Commissioner in MCD in Delhi, and he was not transferred out of Delhi even once.
5. S/Shri J.S.Sandhu, J.P.Aggarwal, Rakesh Bhatnagar and several other officers continue to hold sensitive posts in Delhi and they have also not been posted out of Delhi not even once.
5. In an earlier case, a Coordinate Bench of this Tribunal in OA No.4084/2011 (Sanjay Gihar v. Union of India & Others), found that one Section Officer, Shri Yvomesh Pant has mislead the authorities to the state of a non-application of mind and had apparently manipulated several situations which were uncalled for, and Tribunal had to quash the same. Apparently the same officer seem to have taken a leading role in these issues also and, therefore appropriate application of mind by the concerned authorities may not have been possible, is a fact to be borne in mind while looking into this issue.
6. Smt. Chitra Narayan, the Under Secretary in MHA, filed a reply on behalf of Respondents 1 and 2. She would say that the transfer is a normal incident of a Government servant and the applicant has no right to challenge his transfer order. The applicant only served his first spell of 3 years and he is yet to serve his second spell. She would say that no plea of bias or mala fide is made against the respondents. In paragraph 4 of the reply she has given the sanctioned strength of the Andaman & Nicobar Island but the strength of Andaman & Nicobar Island is not the issue, but the total strength, and out of which how many among them had served at Car Nicobar and other difficult spells. She would further say that the transfer of the applicant is on the basis of the seniority list and placed reliance upon some judgements, indicating that the transfer is a normal incident of Government servants, like the present one.
7. She would say that in the Junior Administrative Grade there are 7 sanctioned posts outside Delhi, out of which 1 is at Lakshadweep and 6 are at Andaman & Nicobar Island.
8. Relating to the other names mentioned in the application, she would say that they have sufficient time left for a second tenure outside, but that is not the case of the applicant, and in Para 4.10 of her reply, admit that Ms. Rashmi Singh has not served in the outlying segments at all. It is stated that she is on study leave as otherwise she would have also been transferred outside Delhi. The applicant alleges that Ms. Rashmi Singh obtained a study leave, on eve of her transfer, and only to avoid a transfer and since it is not made mandatory before possible induction in the IAS but the difficult spell of officers have also to be observed as a part of just requirement. The process is engineered to prevent her from going to difficult places, alleges he. In same Pare 4.10, Smt. Chitra Narayan explained that Shri Sushil Singh has done one outlying posting but the applicant explains that contrary to what is stated by Smt. Chitra, stated that Shri Sushil Singh was posted out but came back as Deputy Resident Commissioner which according to the guidelines itself, will only be treated as Delhi posting alone. Therefore, the applicant would say that it is wrong to submit that Shri Sushil Singh had served at any difficult position at any point in his service. Therefore this statement in the reply would appear to be clever juggling. This defeats the element of certainty. The Honble Apex Court held in Asha Sharma v. Chandigarh Admn., (2011) 10 SCC 86 that the doctrine of certainty is equally applicable to judicial pronouncements and even to legislative powers. Therefore, when the mandatory element of certainty in the guidelines is wiped out, arbitrariness results.
9. Smt. Chitra Narayan further submits that if any direct recruit officer, who gets his first outlying posting deferred for some time for whatever reason, his second posting also will obviously get deferred. Therefore, these people may not get the second chance of outlying posting because by the time his second turn comes, he may get inducted to IAS or may get retired. But the purpose of outside stint is also to gain valuable experience and hence it ought to have been held as mandatory before any furtherance of career or else the purpose is lost. By contributing to this mess, the respondents are destroying the basic of their own guidelines and its usefulness.
10. This explanation, as she has made in paragraph 4.11, is not tune with the earlier contentions. Had the crux of issue be that if a sufficiently influential officer can get the first posting delayed, and, by the time it comes around he/she may be inducted into the IAS or even retired. Without any doubt there should be a mandatory bar for any one to be inducted in the IAS to have completed the two mandatory spells in difficult stations, therefore, to that extent the guidelines are incomplete and vague and devoid of fairness in governance, Smt. Chitra Narayan would say that each case would be considered on its own merits and in the prevailing circumstances - exactly this is the problem. What is the prevailing circumstances and how is merit to be adjudged? In fact undue discretions is itself arbitrary and unjust and have to be quashed, held the Honble Apex Court in the following cases:
(1) State of West Bengal v. Anwar Ali Sarkar & Anr., AIR 1952 SC 75.
(2) Shree Meenakshi Mills Ltd., Madurai & Ors. v. A.V.Visvanatha Sastri & Anr., AIR 1955 SC 13.
(3) Avinder Sing etc. v. State of Punjab & Anr., AIR 1979 SC 321.
(4) Ajit Singh v. State of Punjab & Anr., AIR 1967 SC 856.
11. In fact, for the IAS officers and IPS officers, vide Annexure A-11, for the joint AGMU cadre, a guideline seems to be expressed which appears to have covered the requirements for DANICS/DANIPS also. This guideline indicates an object behind the Scheme and seems to be more fair and appropriate. These are some of the elements:
a) Cadre officers serve hard areas at their turn and get the required experience in serving in different constituent units of the cadre.
b) The tendency of some officers to stick to Delhi for years together by bringing extraneous pressures is checked and curbed, and
c) Each constituent unit is able to avail of the services of officers with varying seniority, experience and expertise, in various fields of administration, suited to the needs of the unit(s).
Therefore, these guidelines would cover the issue in a better manner, the issue of DANICS and DANIPS also, rather than the vague expressions in the guideline now in vogue.
12. The State being a model employer should treat all its employees equally and fairly, if Smt. Rashmi Singh has not served, even one stint, in a difficult area, and still able to be inducted in the IAS, even without the mandatory service not having been performed by her, it will be a morale diminisher for all other employees who have to undergo two difficult spells. If Shri Sushil Singh, on his transfer to Goa, can come back as Deputy Resident Commissioner, according to the guidelines, it will be still treated as posting in Delhi, but unfortunately, the respondents seem to have adopted a policy of misrepresentation, when it says that Shri Sushil Singh had completed one tenure elsewhere than in Delhi. Therefore, the possibility of abuse in the present system is overbearingly obvious.
13. If transfers are made just to accommodate the favourites, it will defeat fairness in governance. If cancellation of such transfer orders is made, without even explaining the personal difficulty of Shri P.C.Jain, it sends wrong signals even though Shri P.C.Jain might be having genuine personal difficulties. A speaking order, in such circumstances, would have explained the situations. It is the duty of the Government to explain the deviations as the deviations affect equally placed other employees also. It is submitted, at the Bar, that several other cancellations area also took place but the question which is poses is If the transfer(s) is/are made after applying its mind, why 60% of the orders had to be cancelled?
14. It must be noted, in this connection, that proper transfer policy and guidelines, which are binding, are a must and the exceptions must exist only on exceptional grounds. The uncanalised discretions provided in the present guidelines is providing the unholy with an ill earned tool. The Honble Apex Court in Delhi Transport Corporation v. D.T.C.Mazdoor Congress & Others, reporting in AIR 1991(Supl.1) SCC 600 had declared that it is impressible. All these adjustments in transfers and postings were made possible by the vague language and the undue discretion the administration vested in itself. It became a land of opportunity for the unholy.
15. Coming back to Smt. Rashmi Singh, it is submitted that she is on a study leave and only because of that she is not transferred. But then, the service in a difficult situation is mandatory but, therefore, the rigour with which a transfer has now affected the applicant, will not approach Smt. Rashmi Singh at all and, therefore, nobody can find fault with the applicant when he laments that for extraneous consideration others are being favoured and the applicant is being prejudiced, and being made a scapegoat, so that the preferred can prevail. Since she is not a party we are only relying on the reply and will not say anything more.
16. In fact, when service in difficult stations is mandatory, the deviations must be for reasons which are transparent and on which the concerned authorities have significantly applied their mind. This Tribunal had in an earlier case, referred to hereinbefore, in relation to Shri Yvomesh Pant and had already found, how even a Section Officer can manipulate a system, and the pervading effect of this issue is that these postings which are to be done by a very senior officer, are done by a relatively a junior officer and with the advice tendered by people who may have their own axes to grind. Why it was not properly thought out? The people, who have rendered themselves unsatisfactory, are retained at the same posting and continued to be a menace to the society, while others who are having less influence or money power will be shunted out is a point to ponder and we feel that it will be well worth the efforts of the Secretary of Home to appoint a high level Committee of outsiders from Delhi to look into this issue, and prepare a new Scheme which might be more in tune with the IAS/IPS Scheme, which is more fairer and more transparent.
17. It appears that even though the applicant had represented with the authorities about his medical situation, his wifes medical situation and his on coming superannuation within another three years time, it has not been considered at all by the concerned authorities. He relies on the decision of the Honble High Court of Himachal Pradesh in Alka Chakor v. State of HP through Secretary (Education), Govt. of HP and Others (CWP No.2387/2012, decided on 21.06.2012), which is produced as Annexure A-10, we are in respectful agreement with this.
18. Therefore, for the following many reasons, the issue appears to be clouded:
a) The non-application of mind before issuing the transfer order with particular reference to the ability or the inability of the transferee to join the new place of transfer and the resultant cancellation later, being the three out of five of these orders, is glaring in itself and, therefore, it is crystal clear that the authorities have not applied their mind to the issue at all, if 60% of an order is obviously the result of non application of mind, there is something really wrong.
b) The non-posting of Ms. Rashmi Singh and Shri Sushil Singh even for their first posting, in a difficult area, is so glaring and prejudicial as to destroy the element of fairness in Annexure A1 order. This is particularly so in the face of the admission in the reply and the explanation at hearing of the applicant.
c) The fact that applicant had served at Car Nicobar, and the fact that, apparently no one else had been sent before to a difficult station twice, is so glaring but it escaped the application of mind of the concerned authority. It speaks volumes.
d) That a Coordinate Bench of this Tribunal had already found that the elements of consideration for the concerned authorities had been supplied by one Section Officer whose credibility was under scrutiny at the level of the Bench, and it ought to be under scrutiny at the administrative level also but it is unfortunate that such salient features have even now escaped the minds of the concerned. Therefore, the Annexure A1 order is vitiated as being arbitrary, unfair and pervaded by non application of mind.
e) The applicant has only three years time to retire and therefore, if going by the guidelines, within a year, may have to be brought back to Delhi. The resultant dislocation in his life and career may not be sufficient enough to warrant the one year posting, especially in the light of the fact that there are many persons, who have not been touched by the sword of transfer at all. This is particularly so, as even people who have been found deficient had been allowed to stay in Delhi, in flagrant violation of all principles of propriety.
f) The applicant is an insulin dependant, diabetic patient with beginnings of diabetic retinopathy and diabetic neuropathy in him, as disclosed by his medical records and medicines, and his wife is apparently on medication for depression, but none of these matters are seem to be considered, at the time of passing Annexure A1 or thereafter along with other cancellations, one begins to wonder, what is happening? Are extraneous inputs necessary?
19. Therefore, in view of the aforesaid observations, we have no hesitation to hold that Annexure A1 transfer order is permeated and pervaded with legal malice, mala fides, extraneous considerations, illegal, unjust and is arbitrary. We, therefore, quash the same.
20. We feel that the system is being jeopardised from within. Unless internal fairness is ensured, the resultant insecurity in officials will make them an easy prey to manipulators and influence peddlers. Therefore, he shall appoint a committee to look into formulation of a new set of guidelines to resolve the issue of transfers and posting of DANICS/DANIPS and till then, issue necessary instructions to follow the IAS/IPS Scheme which is more expressively fair. In greater public interest, it might be appropriate to issue necessary instructions that none from DANICS/DANIPS shall be inducted into the IAS/IPS without undergoing the two mandatory spells as already provided under the guidelines, so that constitutional compulsione are complaint
21. Thus, the OA is allowed in terms of the aforesaid directions. No costs.
22. A copy of this order is also to be sent to the Secretary, Ministry of Home, Government of India (Respondent No.1), who shall look into the prevailing situation with some concern.
(Dr. K.B.Suresh) Member(J) /nsnrkbs/