Bombay High Court
Union Of India Thr The Secretary ... vs Bijendra Sharma on 2 August, 2024
Author: Amit Borkar
Bench: Amit Borkar
402-WP-10734-2024
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10734 OF 2024
Union of India & Ors. .. Petitioners
Versus
Bijendra Sharma & Anr. .. Respondents
Mr. R. R. Shetty for petitioners-UoI.
Ms. Priyanka Mehndiratta for respondent no.1.
Mr. Vicky A. Nagrani for respondent no.2.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
AMIT BORKAR, J.
DATE: 2nd AUGUST, 2024
P.C.:
1. Issue notice to the respondents, returnable on 9th September, 2024.
2. Ms. Mehndiratta, learned counsel has put in appearance on behalf of respondent no.1 and waives service of notice, whereas Mr. Nagrani, learned counsel has put in appearance on behalf of respondent no.2 and waives service of notice.
3. Short affidavit-in-reply has been filed by the learned counsel for the respondent no.1, which is taken on record. Learned counsel for the respondent no.1 shall file affidavit-in- reply to the paragraph-wise averments made in the writ petition within two weeks; rejoinder-affidavit thereto, if any, may be filed by the petitioners by the next date of listing.
4. Under challenge in this petition is the Judgment and Order dated 4th June, 2024 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai (hereinafter 1 ::: Uploaded on - 03/08/2024 ::: Downloaded on - 10/08/2024 16:42:32 ::: 402-WP-10734-2024 referred to as "the Tribunal") in Original Application No. 465 of 2024 transferring the respondent no.1 from Vasco to Vizag has been quashed.
5. It has been stated by the learned counsel for the petitioners that the only ground on which the Tribunal has quashed the order of transfer is that the respondent no.1 had not completed his term of three years and, hence, it has been found that the respondent no.1 was not liable to be transferred. The submission is that the said finding is incorrect and based on misconception that the term of posting of an officer is to be counted not with effect from the date such an officer is Taken on Strength (TOS) at the place where he is transferred, but from the date charge is handed over. The respondent no.1, vide order dated 20th December, 2020 was transferred from Kanpur to Vasco on his promotion from the post of Assistant Executive Engineer to the post of Executive Engineer. He was issued a Movement Order on 1st June, 2021 and in the said Movement Order date of Struck Off Strength (SOS) is mentioned to be 18th June, 2021.
6. Our attention has been drawn to a document annexed at page 136, which is Part-II Order, wherein it is clearly indicated that the respondent no.1 reported arrival at Vasco on 28th June, 2021 in the forenoon, however, the date of Taken on Strength (TOS) is mentioned to be 5th July, 2021. Learned counsel for the petitioners Mr. Shetty also draws our attention to the document enclosed at page 217 of the writ petition, wherein it is clearly stated that the respondent no.1 was promoted as Executive Engineer with effect from 28th June, 2021 and was placed in the said post with effect from 2 ::: Uploaded on - 03/08/2024 ::: Downloaded on - 10/08/2024 16:42:32 ::: 402-WP-10734-2024 28th June, 2021. It is also stated that the seniority in the post of Executive Engineer will also be reckoned with effect from 28th June, 2021 and further that financial effect will also be made with effect from 28th June, 2021.
7. The pay of respondent no.1 was also fixed on the post of Executive Engineer with effect from 28th June, 2021 as is apparent from a perusal of the document available before us on the writ petition at page 218.
8. It is not in dispute that as per the transfer policy embodied in the Circular dated 9th October, 2015, any Executive Engineer (Garrison Engineer) is liable to be transferred in routine manner once he completes the tenure of three years. As per the requirement of Clause 30(a) of the Transfer Policy, the Department is required to publish the cut- off dates 2 to 3 months prior to undertaking the normal transfer/posting exercise. Pursuant to the said requirement, the cut-off dates were published on 5th January, 2024 where it was clearly indicated that those Garrison Engineers who were appointed either in their first or second tenure as Garrison Engineer shall be liable to be transferred in case they fall within the cut-off date of Taken on Strength (TOS) as on 30th June, 2021.
9. The contention of the learned counsel representing the respondent no.1 is that since the cut-off date is 30th June, 2021 and the respondent no.1 assumed the charge at Vasco on 5th July, 2021, as such the respondent no.1 could not be treated to have completed three years' tenure as Garrison Engineer and, thus, he was not liable to be transferred.
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10. Prima facie, we are not convinced with the reasoning given by the Tribunal; neither are we able to accept the submission made by the learned counsel for the respondent no.1. Admittedly, the respondent no.1 was Taken on Strength (TOS) at Vasco on 28th June, 2021 which is the date when he reported on transfer from Kanpur to Vasco. For all other benefits the date of TOS at Vasco has been treated to be 28th June, 2021. These benefits include the benefits of pay fixation, seniority etc. and accordingly, prima facie, we are of the opinion that plea of exclusion of respondent no.1 from the normal transfer on the ground that he had not completed three years' term, does not appear to be appealing to us.
11. Even otherwise, the respondent no.1 holds an All India Transfer liability and further, a transfer being an incident of service, it is always to be kept in mind that unless transfer of an officer is found to be against any statutory provision or suffering from vice of mala fide, interference by the Courts would not be permissible.
12. In the aforesaid facts, the order dated 4th June, 2024 passed by the Tribunal in Original Application No. 465 of 2024 is hereby stayed until further orders of the Court.
13. We, however, provide that in case the respondent no.1 has not submitted his joining at Vizag, he shall be permitted to assume charge at Vizag within three weeks from today.
Digitally
(AMIT BORKAR, J.) (CHIEF JUSTICE)
signed by
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2024.08.03
10:52:34
+0530
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