Central Administrative Tribunal - Mumbai
Sudhakar L Auchite vs D/O Atomic Energy on 16 November, 2021
1 OA.285/2020
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI.
O.A.285/2020
Dated this Tuesday the 16th day of November, 2021.
Coram: Dr.Bhagwan Sahai, Member (Administrative).
Shri Sudhakar L. Auchite, Age 52 years,
Working as a Asstt. Security Officer (B),
BARC, Mumbai
Resi at Yamuna H-10 Anushakti Nagar,
Trombay, Mumbai - 400 094.
Email Id: [email protected]
Contact : 8805932103. .. Applicant.
( By Advocate Shri V.A. Nagrani ).
Versus
1. Union of India, through
the Secretary, Department of
Atomic Energy, Government of India,
Anushakti Bhavan, C.S.M. Marg,
Apolo Bunder, Near Gateway of India,
Mumbai - 400 001.
Email: [email protected]
2. The Director, B.A.R.C.,
Central Complex, Trombay,
Mumbai - 400 085.
Email: [email protected]
3. Controller, B.A.R.C., T.C. &
T.S.C. Secretariat, 3rd Floor,
Central Complex, Trombay,
Mumbai - 400 085.
Email: [email protected]
4. Chief Administrative Officer (P),
Central Complex, Trombay,
Mumbai - 400 085.
5. Assistant Personnel Officer,
BARC, Personnel Division,
Recruitment Section-III,
Central Complex Trombay,
Mumbai - 400 085.
6. S.R. Chaudhari,
ASO (A), NRL Srinagar.
7. P.B. Gharat,
ASO (A), GSO Tarapur. .. Respondents.
( By Advocate Shri R.R. Shetty ).
Order reserved on : 21.10.2021
Order delivered on : 16.11.2021.
O R D E R
Shri Sudhakar L. Auchite working as Assistant Security Officer (B), Bhabha Atomic Research Centre (BARC), Mumbai has filed this O.A. on 30.09.2020 seeking setting aside of orders of the respondents dated 21.07.2020 by which he has been transferred from BARC, Mumbai to Nuclear Research Laboratory, Srinagar and the order dated 27.08.2020 by which his representation and additional representation against the transfer and relieving orders have been decided and rejected, direction to the respondents to retain him as Assistant Security Officer (B), BARC, in Mumbai and providing of cost of this O.A.
2. Summarized facts :
2(a). The applicant was initially appointed as Assistant Security Officer (A) in BARC, Mumbai as per appointment order dated 13.12.2004, before that he has served with Indian Navy for 15 years. He was promoted as Assistant Security Officer (B) by order dated 24.10.2014. He has been transferred several times within the Unit in different sections of BARC. On being aggrieved of his transfer order dated 21.07.2020 to NRL Srinagar, he submitted a representation on 28.07.2020 for cancelling it. He submitted additional representation on the same date pointing out that his wife is working as Head Mistress in State Government in Pune Municipal Corporation and, therefore, as per DoP&T OM dated 30.09.2009 his transfer should be cancelled. His representation was rejected on 04.08.2020 with a non-speaking order which was challenged by the applicant in O.A.257/2020. That O.A. was disposed of on 14.08.2020 setting aside the order on his representation dated 04.08.2020 and directing the respondents to pass a reasoned and speaking order and till then to keep on hold the transfer order dated 24.07.2020. Thereafter the respondents have decided his representation with speaking order dated 27.08.2020 rejecting it. He was relieved with effect from 04.09.2020. Being aggrieved of that order, now he has filed this O.A.
3. Contentions of the applicant :
In the O.A., rejoinder and during arguments of his counsel, these are the main contentions of the applicant.
3(a). His transfer order dated 21.07.2020 is ex-facie void, illegal, arbitrary and ab-initio void, as the applicant is ex- serviceman having served in Indian Navy for almost 15 years. As held by the Apex Court decision in the case of Union of India & Anr. Vs. C.S. Sidhu in Civil Appeal No.4474/2005 dated 31.03.2010, the army personnel should be treated in a better and more humane manner by the government authorities, in respect of their emoluments, pension and other benefits, but the respondents in transferring him have not considered his case in a humane manner.
3(b). His transfer is in violation of transfer policy of the respondents dated 24.05.2018 which has a stipulation that Group-B Non-Gazetted and Group-C security staff cannot be transferred from one unit to another since each unit is maintaining separate seniority lists. The officers should have a tenure of 4 years in the concerned unit and they should be transferred to other sections in the same unit. As per Para 5.5, all officials holding sensitive posts will be transferred on completion of 3 years as per the instructions issued by the Central Vigilance Commission. Such transfers will be made within the Unit, unless it is decided by the Competent Authority. The applicant had been recently transferred by order of 30.01.2020 and even then his second transfer has been ordered.
As held in High Court of Gujarat decision in the case of Dipika Kantilal Shukla Vs. State of Gujarat, Special Civil Appeal No.10232/1996 dated 28.02.2006, when the employer has framed certain guidelines for certain categories of employees, with a clear intention, then the action of the concerned authorities should have a reasonable nexus with the objectives to be achieved and they should act within the guidelines framed by them.
As per decision of the Principal Bench of the Tribunal in Pawan Kumar Vs. Union of India in O.A.11/2014 dated 18.12.2014, the issue was examined as to whether the transfer policy is implemented in the right perspective. Once a transfer policy has been issued by the organization, it is meant to be implemented to regulate the transfers and posting of the employees in so far as it is practicable.
3(c). The respondents have not balanced the interest of the applicant while transferring him as his wife is working with Pune Municipal Corporation which comes under State Government of Maharashtra thereby violating the stipulations under the DoPT OM dated 30.09.2009 which provide that when one spouse belongs to a Central Service and the other spouse belongs to a State Government service, the spouse employed under the Central Government may apply to the competent authority and the competent authority may post the said officer to that station or if there is no post at that station, then in the State where the other spouse is posted. As per DoP&T OM both the spouses should be posted at the same place and the respondents have violated this stipulation.
3(d). At the time of initial appointment of the applicant, his wife was working only on a temporary/part-time basis and, therefore, details of her working were not mentioned and she has been made permanent only by order dated 30.04.2008 with effect from 16.06.2006. He has availed LTC facility for his wife because such facility is not provided by her employer. Updated details of his family have been submitted by the applicant on 26.08.2020. The applicant's representations dated 28.07.2020 have been decided by an order dated 27.08.2020 by an incompetent authority i.e. it has been decided by the same authority which issued his transfer order, whereas as per DoP&T OM dated 30.09.2009, a representation against transfer has to be decided by an authority higher than the one issuing the transfer order.
3(e). In a similar case this Bench of the Tribunal has allowed the O.A. in case of Arvind Vetkar Vs. Union of India on the ground that because the same authority has passed the order and decided the representation. The applicant is aware that he can be transferred anywhere in India but as per the policy, the respondents cannot pick up the applicant randomly transferring him, therefore, his transfer is punitive. Before his transfer his willingness must have been obtained. The private respondent no.6 i.e. Shri S.R. Chaudhari, ASO (A), NRL, Srinagar has been relieved without joining of the successor. The respondents for the first time have posted the applicant, ASO (B) in place of another ASO (A) by transferring him to another division i.e. APSD (Astro Physics Science Division) and not retaining him in security division.
The Supreme Court decision in Somesh Tiwari Vs. Union of India held that the transfer order would attract the principle of malice if it is not based on any factor germane for passing such an order and if it is based on an irrelevant ground, then such an order of transfer is passed in lieu of punishment, and it is liable to be set aside being illegal. Therefore, the O.A. be allowed.
Contentions of the respondents :
As directed the respondents he also brought on record a copy of organizational chart of BARC and a copy of file in addition of BARC (Legal Section) dated 17.08.2020 and 25/27.08.2020 by which his representation against the transfer order was decided by the respondents. In the reply and during arguments of their counsel the respondents have contended that-
3(f). the applicant joined as ASO (A) Group 'B' post on 10.01.2005. He was promoted as ASO (B) Group 'B' post on 24.10.2014. As per transfer order he was relieved on 03.09.2020, against which this O.A. has been filed;
3(g). the BARC under the Department of Atomic Energy is entrusted to carry out multidimensioinal research schemes in the field of Nuclear Sciences and allied fields and the culture of nuclear energy requires utmost safety and security norms as per the guidelines of International Atomic Energy Agency. The BARC Trombay has Units, Projects, Plants, Laboratories, and Observatories at many locations in the country including the NRL, Srinagar. The Department of Atomic Energy is responsible for personnel policies pertaining to all those working under the DAE;
3(h). as per the terms and conditions of appointment order of the applicant dated 10.01.2005 mentioned in the offer of appointment dated 13.12.2004, he is liable to serve in any part of India or in any of the Constituent Units of the DAE. From the time of joining on 10.01.2005 the applicant has been posted with BARC Mumbai only and it is for the first time only that he has been transferred outside of Mumbai in place of respondent no.6, Shri S.R. Chaudhari who was working as ASO (A) at NRL, Srinagar for two years and he is also Ex-serviceman who has served with Indian Air Force and he had requested to transfer him on personal grounds. Therefore, he has been transferred and posted to BARC, Tarapur, and respondent no.7 has been transferred from BARC, Tarapur to BARC, Mumbai. NRL, Srinagar is a sensitive nuclear installation of BARC, it is categorised as highest security installation and in view of the law and order situation in Jammu & Kashmir, the presence of experienced security official at the level of ASO (A/B) is essential. In view of this requirement, the applicant has been posted to NRL Srinagar from BARC, Mumbai on functional grounds and in public interest. While Shri S.R. Chaudhari and Shri P.C. Gharat have reported at new places of their posting, the applicant has not yet joined at NRL Srinagar in spite of having been relieved on 03.09.2020;
3(i). as per Supreme Court decision in case of S.C. Saxena Vs. Union of India & Others (2006 SCC(LSS) 1890), a Government servant is first required to report at the place of posting and then he may ventilate his grievance in a Court. However, without reporting on duty at his place of posting the applicant has indulged in litigation. Therefore, this O.A. seeking setting aside of the orders of his transfer and on his representation as well as his relieving order do not have any merit and the O.A. deserves to be dismissed. NRL, Srinagar is part of the BARC, Mumbai and it is not separate unit of the DAE and it is necessary to post Security Officer at the level of ASO (A/B) who is to coordinate with various security agencies in Srinagar, such as CRPF, CISF, local Police, etc;
3(j). the applicant has indulged in suppression of information about occupational status of his wife at the time of joining service and for availing of LTC benefit even in 2018. He reported occupational status of his wife as housewife and it is only now in August, 2020 he has informed that his spouse is working as Principal in Pandit Dindayal Upadhaya English Medium School under the Pune Municipal Corporation. As the applicant has not yet joined at the place of his posting, the NRL at Srinagar is still not having ASO to take care of Security arrangements there. This action of the applicant has proved his infidelity and dishonesty towards the respondent department.
3(k). The applicant's claim that he has been transferred several times within the BARC is misleading and is factually incorrect. As regards security cadres, it is an established policy that the same officials are not continued in the same duties for long period to obviate development of any vested interest which could lead to breach of security. Transfers to different units are also desirable from human resource development as they afford exposure to variety of work and for experience. Since the applicant has been transferred due to administrative exigency, the caselaws referred to by the applicant's counsel are not applicable to his case. He is not handicapped person and that Gujarat High Court judgment in case of Dipika K. Shukla was in the context of transfer of handicapped person to non-gazetted post and not due to administrative necessity. The Supreme Court decision in case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat dated 03.09.1997, allowed the appeal and judgment of the Gujarat High Court was set aside.
3(l). The security of NRL, Srinagar is under overall superintendence of Chief Security Officer (CSO), BARC and ASO, NRL reports to CSO, BARC on daily basis. The grades of ASO(A & B) are meant to maintain cadre strength and to provide better promotional avenues for the post of ASO. Therefore, the applicant's contention that he has been posted to a junior post at NRL, Srinagar is baseless. In view of these submissions, the O.A. should be dismissed with cost.
4. Analysis and conclusions :
I have carefully considered submissions of the applicant in the O.A., documents submitted by him and in arguments of his counsel as well as submissions of respondents' counsel in their reply to the O.A. and to the M.A.399/2020 and during arguments. I have also gone through the caselaws relied upon by the parties as well as other relevant caselaws. On my careful consideration and analysis of the case, the conclusions on this O.A. are as follows:
4(a). The contention of the applicant that his transfer by order dated 21.07.2020 is illegal, arbitrary and ab-initio void has no substance. His claim that in view of his wife working in School under the Pune Municipal Corporation, his case has not been considered by the respondents in humane manner also does not carry weight. The order of his transfer, his relieving order and decision of the respondents on his representations are as per the stipulations of their transfer policy and in the DoP&T OM dated 30.09.2009.
4(b). It is an undisputed fact that the BARC under the Department of Atomic Energy has a number of Units, Projects, Plants, Laboratories and Observatories at many locations in the country. The Nuclear Research Laboratory, Srinagar is one of the such units of the BARC, Trombay, Mumbai. As explained by the respondents, Chief Administrative Officer, BARC is the Competent Authority for transferring the applicant and his transfer order has been issued by that authority. This fact is not disputed by the applicant also.
4(c). The Chief Administrative Officer, works under the control and supervision of Controller, BARC. The representations submitted by the applicant have been decided by the Controller, BARC, thus by an authority higher than the Chief Administrative Officer who issued his transfer order. This decision of the competent Respondent authority is as per the stipulations in the DoP&T OM dated 30.09.2009. Therefore, the contention of the applicant that his representations have been decided by an incompetent authority in violation of transfer guidelines and DoP&T OM dated 30.09.2009 is false.
4(d). The claim of the applicant that the respondents have not considered his case in humane manner is without justification because the applicant has been working at BARC, Trombay and Anushakti Bhavan in Mumbai only since he joined the service on 10.01.2005. Thereafter he has not been posted anywhere outside Mumbai and has been transferred to Nuclear Research Laboratory, Srinagar for the first time after more than 15 years at Mumbai. Since 2005 the applicant and his wife have not been posted at the same place. As per terms and conditions of his appointment, as conceded by the applicant himself, he can be posted to any of the BARC Units for functional requirement. In the instant case because of transfer of Respondent No.6 from NRL, Srinagar to BARC, Trombay on the post of ASO vacated by him at NRL, Srinagar, the applicant has been posted there for functional requirement and in exigency of work.
4(e). The contention of the respondents that the applicant has suppressed information about occupational status of his wife is correct. His claim that when he joined the service in 2005, his wife was working only on temporary basis, therefore, he did not submit her occupational details is irrelevant. His wife has been working on permanent basis as Principal in Pandit Dindayal Upadhaya English Medium School under the Pune Municipal Corporation since 2006 and the applicant has brought on record details of her occupation only in August, 2020. Before that he has also availed of LTC facility for her and clearly it is a case of suppression of relevant information by the applicant.
The claim of the applicant that his wife is working under Pune Municipal Corporation is under State Government of Maharashtra is also false. The school at which she is employed is under the Pune Municipal Corporation and it is not under the State Government.
4(f). The claim of the applicant that he has been posted to a junior post of ASO (A) at NRL, Srinagar is also not correct. The respondents have explained that ASO (A) and (B) are only grades for promotional avenues and ASO (A) and ASO (B) both can be posted as ASO. The applicant belongs to Security Section and even after his transfer he has been posted for security duties only and as provided under Para 5.5 of the Transfer Policy, all officials holding sensitive posts will be transferred on completion of 3 years as per the instructions of the Central Vigilance Commission. Such transfers will be made within the Unit, unless it is decided by the Competent Authority. Thus outside unit transfers also can be made by the Competent Authority and here the applicant's transfer order has been issued by the Chief Administrative Officer, the Competent Authority as per the restructured DAE Security Organization by OM dated 14.05.2018.
As per Para 6 of that OM all the Departmental Security personnel would continue to be on the rolls of respective DAE Units for all administrative purposes. Thus the applicant after transfer as ASO (B) to NRL, Srinagar on security duty will also continue on the rolls of respective DAE unit. The applicant's earlier transfers have been only within the Security Section of BARC.
4(g). There is no violation of views in the Gujarat High Court decision in the case of Dipika Kantilal Shukla Vs. State of Gujarat, Special Civil Appeal No.10232/1996 dated 28.02.2006, and Principal Bench decision of this Tribunal in Pawan Kumar Vs. Union of India in O.A.11/2014 dated 18.12.2014, as the transfer and relieving order of the applicant have been issued as per the stipulations of the Transfer Policy. The other caselaws relied upon by the applicant were based on different facts and, therefore, they are not of help to him. As pointed out by the respondents, the decision of Gujarat High Court in case of Dipika Kantilal Shukla Vs. State of Gujarat, related to transfers of handicapped persons not due to administrative necessity, whereas the applicant is neither a handicapped person nor his transfer has been done in absence of administrative exigency. In fact as per Supreme Court decision in S.C. Saxena Vs. Union of India & Ors., (2006) 9 SCC 583, the applicant ought to have joined first on his transfer and thereafter he could have agitated against the transfer order. However, after being relieved on 03.09.2020 and even after our advice to him to join at NRL, Srinagar after his request for interim relief was rejected, he has not yet joined there and since then has been unauthorizedly absent from duty. Therefore, the contention of the respondents in this regard is correct that the applicant has defied their lawful instructions and orders and by suppressing details about occupational status of his wife prior to August, 2020, he has also been dishonest.
4(h). On the subject of transfer of Government employees, a gist of the Apex Court views in the following decisions is relevant for this case too. Some of these caselaws have been correctly relied upon by the respondents.
(1). Mohd. Masood Ahmed Vs. State of U.P. & Ors., (2007)8 SCC 150 - transfer is an exigency of service and is an administrative decision. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer. The Apex Court decision in case of Abani Kanta Ray Vs. State of Orissa, 1995 (Supp.) 4 SCC 169, was cited stating that it is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principle governing the transfer. It was further mentioned that scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in many cases such as State Bank of India Vs. Anjan Sanyal (2001) 5 SCC 508, Rajendra Rao Vs. Union of India (1993) 1 SCC 148, National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan (2001) 8 SCC 574 and the principle laid down is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is malafide or that the service rules prohibit such transfer, or that the authorities who issued the orders were not competent to pass the orders.
(2). N.K. Singh Vs. Union of India, 1995 AIR 423 - challenge in Courts of a transfer when the career prospects remain unaffected and there is no detriment to the Government servant must be eschewed and interference by Courts should be rare, only when a judicially manageable and permissible ground is made out.
(3). State of Madhya Pradesh & Ors. Vs. S.S. Kourav & Ors., 1995 AIR 1056 - the Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background.
(4). Union of India and Ors. Vs. S.L. Abbas, 1993 AIR 2444 - an order of transfer is an incident of Government service. Fundamental Rule 11 says that the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority. The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer.
(5). S.C. Saxena Vs. Union of India & Ors., (2006) 9 SCC 583
- a Government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. The tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.
(6). Sushil Kumar Singh Vs. Union of India & Ors., CAT, PB, O.A.No.3621/2011 dated 23.12.2011 - once the Government employee is transferred, even if he has grievances, he should join the place of posting and thereafter submit representations to the competent authority to consider the grounds.
4(i). On analysing applicant's case in terms of the views in the above Apex Court decisions, it is clearly established that the O.A. is devoid of merit. Hence it deserves dismissal.
5. Decision :
The O.A. is dismissed. No costs.
(Dr.Bhagwan Sahai)
Member (A).
H.