Karnataka High Court
Girish Kulkarni vs The Union Of India on 25 March, 2014
Bench: K.L.Manjunath, Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 25TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE RAVI MALIMATH
WRIT PETITION NO.3880 OF 2014(S-CAT)
BETWEEN:
Girish Kulkarni
S/o G.R.Kulkarni
Aged about 51 years
Working as Assistant Engineer (QA),
Defence Standardisation Cell,
GTRE Campus, CV Raman Nagar,
Bangalore - 560 093. ...PETITIONER
(By Sri D.R.Ravishankar, Advocate for Sri D.Leela
Krishnan, Advocate)
AND:
1. The Union of India
Represented by its Secretary
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Ministry of Defence
Department of Defence Production & Supplies,
DHQ PO, South Block, New Delhi - 110 011.
2. The Director General
DGQA, Room No.234,
South Block, New Delhi - 110 011.
3. The Addl. DGQA
Directorate of Quality Assurance
(Engineering Equipments),
Rajajimarg, Kashmir House,
New Delhi - 110 011.
4. Director
Directorate of Standardisation
"H" Block, DHQ PO
New Delhi - 110 011.
5. The Officer in Charge
Defence Standardisation Cell,
GTRE Campus, CV Raman Nagar,
Bangalore - 560 093.
6. Sri P.Murugavelu
JE (QA),
Detachment SQAE(EE),
C/o.HVF Avadi,
Chennai.
7. Sri J.C.G.Nehru
JE (QA), SQAE (EE),
Palavanthanagal Post,
Chennai. ...RESPONDENTS
(By Sri T.M.Venkat Reddy, Advocate for R1 to R5)
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*****
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to call for the
records in OA.No.1104/2013 from the Hon'ble Central
Administrative Tribunal, Bangalore Bench, Bangalore -
38 and quash the order dated 16.12.2013 vide
Annexure-A dismissing the said original application filed
by the petitioner, by issue of a writ of certiorari or any
other appropriate writ, order or direction by declaring
the same as unjust, Arbitrary, Capricious and
Discriminatory.
This Writ Petition having been heard and reserved
for judgment on 18.03.2014 coming on this day,
Ravi Malimath J., pronounced the following:-
ORDER
The case of the petitioner is that he was initially selected and appointed as Chargeman-II, w.e.f. 23.01.1984 and posted to Chennai. He was transferred to Bangalore from 05.08.1985 and worked in different capacities as Chargeman-II; Chargeman-I and Assistant Foreman. He was transferred to Pune from 13.07.1992 to 30.06.1997. He was transferred to Bangalore from 07.07.1997 and to Delhi from 03.06.2004. He made a request to transfer him to Bangalore. Accordingly, he 4 was transferred to Bangalore from 12.07.2007 on compassionate grounds wherein he was promoted as JTO and on promotion he was posted to Defence Standarisation Cell during February'2008.
2. The third respondent issued a letter dated 03.05.2013, wherein it was indicated that he be posted to Pune. He submitted his representation on 06.05.2013. However, the transfer order dated 20.06.2013 was issued, wherein he was transferred to Pune. Therefore, he filed O.A. No.510/2013 before the Central Administrative Tribunal, Bangalore. The Tribunal by its order dated 24.09.2013 disposed off the application directing the respondents to reexamine the transfer orders, having regard to the representation of the petitioner. Thereafter, the respondents have issued an order dated 04.10.2013 transferring him to Pune. Aggrieved by the same, the instant OA.No.1104/2013 was filed before the Central Administrative Tribunal, 5 Bangalore. The Tribunal by its order dated 16.12.2013, dismissed the Original Application. Hence, the present writ petition.
3. The learned counsel for the petitioner contends that the impugned order is bad in law and liable to be set-aside and that the order of transfer is opposed to law as well as facts. That the order is passed without application of mind. That the directions issued by the Tribunal in the earlier O.A. has not been considered. That the transfer of the petitioner is contrary to the Rotational Transfer Policy of the respondents. That in terms of the policy, he is entitled to continue in Bangalore for 10 years. That he has been prematurely, arbitrarily and discriminately transferred to Pune. That he is suffering from H1N1 Influenza with acute respiratory failure in the year 2010. That his health has deteriorated. That his first son is studying in 1st year Engineering and the second son is studying in 6 Class - IX. That he has constructed a house in Bangalore and he has taken loan in a sum of Rs.15,00,000/-. For all these reasons the order transferring him is unjust.
4. On the other hand, the learned counsel for the respondents defends the impugned action. He contends that the impugned order has been passed by complying with the directions issued by the Tribunal in its order dated 24.09.2013 passed in O.A. No.510/2013. That the reliance placed by the petitioner on the Rotational Transfer Policy is misplaced. That he is liable to be transferred. That he cannot claim to remain in the same station for a period of 10 years. That he has been in Bangalore for a period of 20 years, in his total service of 29 years. Therefore, he is not entitled to continue in Bangalore. His case on compassionate grounds has also been considered by the respondents and he pleads that 7 there is no error committed by the Tribunal that calls for any interference.
5. Heard learned counsels and examined the records.
6. The learned counsel for the petitioner contends that the impugned order of transfer is contrary to the Rotational Transfer Policy issued by the third respondent, which is produced as Annexure-A1. It is contended that he is entitled to stay in Bangalore for a period of 10 years. He refers to para-5 of the rotational transfer policy, which reads as follows:
"Government of India Dept. of Defence Production Ministry of Defence Dte General of Quality Assurance DHQ PO New Delhi - 11 A/96995/RTP/DGQA/Adm-7B 20 May 2011 ROTATIONAL TRANSFER POLICY JTOs, TECHNICAL, SCIENTIFIC STAFF FOR DGQA ORGANISATION 8 xxx xxx xxx xxx
5. Subject to para 3 and 4 above, Technical and Scientific cadre personnel will be rotated from one station to another on completion of 10 years service in the station as on 1st January of the year in which rotation is due. The total continuous service from the grade of erstwhile CM-I and SA-I will be counted for reckoning 10 years service in the station.
6. An employee having his son / daughter in Class X, XI or XII may be considered on request, for retention at the same station. The retention in a station will be considered for a maximum period of two years. An employee however, may opt for premature transfer in case he / she anticipates retention beyond two years on account of education of more than one son / daughter."
7. He therefore pleads that he has not completed 10 years. That he was transferred from Delhi 9 and assumed charge at Bangalore from 07.07.2007. Hence, a period of 10 years is not yet completed. Therefore, the transfer is opposed to the said policy.
8. The respondents on the other hand have denied the said claim. In their statement of objections filed before this Court, it is contended at para-6 and 6.1 are follows:
"6. The petitioner has made an unsubstantiated and false statement that tenure period in standardization Cell has been increased to 10 years.
6.1 It is submitted that no such policy exists on date and it is clarified by the directorate of standardization that posting of the staff/ officers to directorate of standardization is as per the tenure applicable to the parent cadre that as per the policy letter dated 23.08.2005, which states that normally the period of tenure posting of standardization Cell is 3 years extendable to 5 years. Further the 10 same has been confirmed by the Ministry of Defence vide letter dated 10/05/2007 at Annexure-R2 and also HQ/DGQA/ADM-7B letter No.A/92163/Std/DGQA/ADM-7B dated 30.10.2013 is herewith produced at Annexure-R7. The present transfer is not under rotational transfer policy. But the petition is bringing to mislead this Hon'ble Court on various unconnected polices narrated. This respondent also producing the comparative statement of the petitioner and the respondents 6 and 7. The copy of the same is produced at Annexure-R8."
9. On considering the rival contentions, we are of the view that the plea of the petitioner cannot be accepted. Firstly, the stand of the respondents as made out in the statement of objections is that no such policy exists as on date. Secondly, that, the period of tenure posting of standardisation Cell is 3 years extendable upto 5 years. That the present transfer is not under the Rotational Transfer Policy.
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10. Even if para-5 is relied upon in support of the case of the petitioner, the same would only indicate that the technical and scientific cadre personnel would report from one station to another station on completion of 10 years basis, as on 1st January. Ten years in a station would be the total period spent at a station. If read as a 10 years continuous period, it would result in absurd situations. It is undisputed that the petitioner has been in Bangalore for a period of 20 years. Therefore he has already completed 10 years of service in the station, namely Bangalore. Hence, the petitioner cannot remain in Bangalore anymore.
11. In terms of Para-6, if a son or daughter of an employee is studying in Class- 10, 11 or 12, they may consider a request for retention. However the request of retention was considered by the respondents earlier. In fact he was transferred to Bangalore only 12 because of the request made by him. The transfer was on compassionate ground. Hence, compassion has been shown to the petitioner. However, a new ground is sought to be raised now, only after he assumed charge in Bangalore. He pleads that his first son is studying in first year Engineering and his second son is studying in Class-IX. The compassionate transfer in terms of Para-6 is only with reference to a son or daughter studying in Class X, XI or XII. Therefore, even this plea is not available to the petitioner. Moreover, what is of greater importance is that the compassionate ground urged by the petitioner was considered on the earlier occasion and therefore he was transferred to Bangalore at his request. Hence, the contentions are unacceptable.
12. It is the further case of the petitioner that there has been discrimination in the matter of transfer. That he is being harassed by virtue of this order. That there is no need for him to be transferred. However, the 13 material on record would show such a plea is unsubstantiated. That on the transfer of the petitioner to Pune, one Shri.J.C.G. Nehru is transferred from Chennai to Bangalore on compassionate grounds, considering special circumstances. Therefore, it cannot be said that it is victimization.
13. After the disposal of the Original Application on the first occasion by an order dated 24.09.2014 in O.A. No.510/2013 the respondents have considered the entire issue based on the direction of the Tribunal. The representation was considered in the light of the directions issued. Therefore, it cannot be said that the order of the Tribunal was not complied with.
14. On considering the ground for transfer on compassionate ground also, the respondents were of the view that adequate medical facilities are available to him in Pune and since he has already been posted to 14 Bangalore on request, the question of reconsidering the same beyond the parameters was wholly unacceptable. The medical facilities at Pune are equal if not better than what is available at Bangalore. Hence, this ground too is unavailable. The other ground of having taken a loan to build his house, is an inconsequential issue which is unrelatable to transfer.
15. On considering the contentions and the material on record, we are of the considered view that there is no merit in this petition. Consequently, the writ petition being devoid of merits is dismissed.
Sd/-
JUDGE Sd/-
JUDGE JJ