Central Administrative Tribunal - Hyderabad
Ratan Dutta vs M/O Defence on 30 July, 2021
OA No.949/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
HYDERABAD
OA/020/00949/2019 with MA No. 44/2020
Date of CAV: 19.07.2021
Date of Pronouncement:30.07.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
Ratan Dutta S/o late Rathindra Nath Dutta,
Group-B, Aged about 56 years,
Occ : AGE E/M, MES : 213990,
Garrison Engineer Vizag, P.O.Gandhigram,
PIN : 530 005, Visakhapatnam District. ...Applicant
(By Advocate :Mr. J. Sudheer)
Vs.
1.Union of India, Represented by its Secretary
To Government of India, Ministry of Defence,
Sena Bhawan, New Delhi.
2.Military Engineering Services, Reptd., by Engineer in Chief,
Kashmir House, Rajaji Marg, New Delhi 110 011.
3.Military Engineering Services, Reptd., by Director General (Personnel),
Kashmir House, Rajaji Marg, New Delhi 110 011.
4.Military Engineering Services, Reptd., by Chief Engineer (Navy),
Visakhapatnam.
5.EndluriChandu, 194723 AEE (E/M), Presently working as
CE (FY), Hyderabad, (Posted to GE(NB), Vizag. As AGE (E/M)
....Respondents
(By Advocate: Mr.N. Parameswara Reddy, Sr. PC for CG&
Mr. G. Rama Mohan Reddy for R-5)
---
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OA No.949/2019
ORDER
(As per Hon'ble Mr.B.V.Sudhakar, Administrative Member) Through Video Conferencing:
2. The applicant filed the OA challenging his transfer vide order dt. 10.10.2019, being illegal, arbitrary and contrary to the policy dt. 09.10.2015, since he is sought to be disturbed from the sensitive post midway without any basis and requirement while continuing several others in the 3rd term. He sought a direction to the respondents to continue him in Garrison Engineer (Naval Base), Vizag as AGE E/M to complete his tenure.
3. Brief facts of the case are that the applicant was appointed as Junior Engineer in the respondents organization in 1987 and promoted as Asst.
Engineer in 2012. Applicant complied with the transfer orders issued to work in different places as JE/AE. Applicant was posted as AGE E/M at Garrison Engineer Bengdubi, West Bengal from June 2013 to Jan 2016 which is a sensitive post and thereafter as GE (South) Tezpur, Assam from Jan 2016 to Aug 2018 again in a sensitive post. Thereafter, at Vizag GE (NB) on 15.9.2018 in a sensitive post. On 10.10.2019 applicant was posted to GE (Utility-2) Vizag as AGE-T, which is a non- sensitive post, by posting a fresh direct recruit in his place vide order of the same date. Aggrieved, OA is filed.
4. The contentions of the applicant are that the transfer order is violative of the transfer policy dated 9.10.2015, as well as by ignoring the recommendations of the immediate superior officers. The tenure as per 12 Page 2 of 14 OA No.949/2019
(e) of the policy is 3 years for AGE and in terms of para 14 (a) (i) posting in a sensitive post, carrying responsibility and authority, depends on administrative requirement.Batch mates of the applicant like Sri K. Muralidhar, Sri Utpal Sinha, Sri M.R.Paul and Sri P.K. Dutta are continuing in sensitive post in the 3rd tenure. Due to the transfer applicant is embarrassed as it is stigmatic. Applicant complied with the several transfer orders issued earlier. Though posting in sensitive and non- sensitive posts is not the choice of the employee and is an incident of service, yet posting cannot be done arbitrarily and irrationally. Earlier applicant was shifted from sensitive post to non sensitive post on 27.3.2019 but was cancelled on 15.5.2019 and the cancellation is an indication of the need to have the applicant in the post. As per appendix F of the transfer policy, applicant was posted for the 3rd tenure at Vizag in a sensitive post after being assessed i.r.o. ACR & approval of the competent authority.There are many irregularities in the posting orders issued by the respondents since 2013 to 2019. Applicant has rendered blemish less service. A person with ability plus integrity has to be posted in a sensitive post and after having posted the applicant it is not in the interest of the organization to post a fresh recruit replacing him.
On 29.10.2019, this Tribunal passed an interim order of status quo obtaining as on that date in respect of continuance of the applicant in the present place of posting.
5. Respondents state that the applicant was posted as AGE E/M in GE (Naval Base) Vizag on a 3rd consecutive sensitive posting vide order dated 15.6.2018 due to large scale deficiency in the cadre. After recruitment of Page 3 of 14 OA No.949/2019 303 officers in March 2019, nearly 148 officers working in sensitive posts for the 3rd consecutive term were moved to non-sensitive posts by posting fresher's in their place as per policy guideline dated 9.10.2015. Accordingly applicant along with 10 others, was shifted to a non- sensitive post on 27.3.2019 but since the reliever sought posting to a non-sensitive post on medical grounds the transfer could not materialize, allowing the applicant to continue in a sensitive post till fresh orders were issued on 10.10.2019. Many officers have been promoted and they need to be given an opportunity to work in sensitive posts. Applicant after working for 6½ years in sensitive assignments, was shifted to a non- sensitive post locally along with some others. Among the 4 officers named, 3 could not be side stepped due to non- availability of vacancies and they would be shifted in March/April 2020. Sri P.K. Dutta is on a 2nd posting in a sensitive post. The reliever of the applicant has joined the office. Applicant belongs to the Group B grade and has all India transfer liability.
Respondents filed MA 44 of 2019 on 07.01.2020 for vacation of the interim order granted on 29.10.2019 and the contents of the same have been gone into.
Applicant filed a rejoinder wherein he has submitted that the Tribunal passed an interim order on 29.10.2019 to continue the applicant in the sensitive post he held and extended it from time to time and on moving an implead petition vide MA 891/2019 on 14.11.2019 by the applicant seeking to implead the 5th respondent, the person posted in place of the applicant, this Tribunal vide order dt.24.12.2019, vacated the interim order earlier granted without any reply statement or MA being filed for vacation Page 4 of 14 OA No.949/2019 of the interim order by the respondents. Pursuant thereto, the impugned order was implemented in a tearing hurry. Thereupon, WP No.21586/2019 was filed by the applicant challenging the order dt. 24.12.2019 of this Tribunal whereby the earlier interim order was vacated and the Hon'ble High Court has vide interim order dated 2.1.2020 restored the order of stay passed by the Tribunal on 29.10.2019. However, when the respondents failed to implement the orders of the Hon'ble High Court, CC No.207 of 2020 was filed and on hearing both the sides, Hon'ble High Court, vide order dt. 23.02.2021 has directed the respondents to post the applicant back to the original post till the OA is disposed and set aside the interim order of the Tribunal dated 24.12.2019 vacating its own interim stay passed on 29.10.2019. The period for which the applicant was not taken to duty, despite the orders of the Hon'ble High Court was treated as compulsory wait with a direction to the respondents to pay the pay and allowances due for the said period. Hon'ble High Court further directed early disposal of the OA leaving all the issues open to be decided independently and in accordance with law.
The applicant filed MA 400/2021 wherein he stated that despite the orders of the Hon'ble High Court dated 23.2.2021 the applicant was not taken on duty. Respondents have no respect for court orders and that their reply statement is vague. The other contentions of the applicant have been gone through carefully.
The respondents filed additional reply statement refuting the contentions of the applicant in his rejoinder. They stated that the applicant was taken on strength of GE Naval Base as AGE E/M in compliance with Page 5 of 14 OA No.949/2019 the directions of the Hon'ble High Court. Respondents submitted that they have implemented the directions of the Hon'ble court in letter and spirit.
6. Heard both the counsel and perused the pleadings on record.
7. I. The dispute is about sidestepping the applicant from a sensitive post to a non-sensitive post in the same station. The factual Matrix reveals that the applicant joined the respondents' organization as JE and later elevated as AE. While working in the said assignments, applicant worked at different stations in the country. Of importance to the dispute is that the applicant worked in 2 consecutive sensitive posts in West Bengal and Assam before being posted at Vizag again in a sensitive post for the 3rd time. On 10.10.2019 respondents moved the applicant to a non- sensitive post at the same station.
II. The contention of the applicant is that the respondents indulged in a similar exercise, on 27.3.2019 but probably due to the recommendation of the superior officers and his representation, the same was cancelled, implying the importance of his continuance in the said post. From the material papers it is seen that Sri Pradeepan posted in the place of the applicant on promotion, sought posting in a non-sensitive post on medical grounds. Therefore, the applicant was retained in the post for a period of another 6 months with the approval of the competent authority. Hence the retention was situational and not applicant specific.
III. The transfer policy of the respondents is laid down in letter dated 9.10.2015. The paras 14 (a) and 15 relevant to the case, read as under: Page 6 of 14 OA No.949/2019
14. EXECUTIVE AND STAFF (SENSITIVE & NON-SENSITIVE) APPOINTMENTS
(a) Postings to various assignments and stations are imperative.
Posting to a staff/ executive appointment shall not be a matter of right but based on the organizational requirement. Interchange of officers posting based on mutual consent of officers is not permitted. Apart from varied stations, MES organization consists of basically two types of assignments:-
(i) Executive Appointments. These posts carry technical and financial powers. Consequently coupled with responsibilities, theses posts enjoy certain degree of authority. These posts accordingly need careful handling/ management. In case of these appointments, individual's choice or preference shall not be applicable even after completion of tenure station posting.
(ii) Staff/ Non Executive Appointments.
(aa) These posts are concerning planning, design, forming
specifications, introducing latest technologies in the MES, HR management, contract management, legal matters, Record, Trg, Recruitment, and Instructional activities etc. The organization considers theses appointments crucial and critical for providing works services by MES and act as a policy maker and support service in achieving overall objective of the organization in a harmonious, transparent and effective manner.
(ab) Design Tenure/ Design Appointments. All degree holders in Civil engineering are mandated to undertake design work. Officers with a profile of design assignments, shall be given weightage for subsequent tenures, in executive appointments. A few specialized projects like large OTM accommodations, Runway works, Marine works etc may require postgraduate qualification.
(ac) Instructional Appointments at CME & Design Appointment at ADG D & C. Postgraduate officers will also be considered for design assignment at ADG D & C as per organizational requirement and for instructional appointments in CME, Pune, including SEMT. Such officers may also be posted to certain CEs Comd./ CCEs for preparations of DPRs.
15. SENSITIVE APPOINTMENTS: Similar to Executive appointments, placement in other sensitive appointments as per CVC Guidelines for posts so identified by the Dept, shall have tenures not exceeding three yrs at a time. After this period, officers should rotate to a non sensitive post, for a cooling off period of about two years before he is considered for another sensitive post. Any exception to this rule will need approval of the competent authority as per Appx. 'L', on file, with reasons recorded therein. In case of these appointments, individual's choice shall not be applicable. "
Organizational requirements decide posting to an executive appointment which is sensitive in nature. Officers have to be rotated between sensitive and non- sensitive posts regularly. Individual's choice Page 7 of 14 OA No.949/2019 has no role to play and that the tenure period is 3 years, is the purport of the above orders. The applicant was posted in sensitive post for the 3rd time at Vizag as there was dearth of officers in the relevant cadre. Consequent to recruitment of 303 officers by the respondents in March 2019, officers were available for posting to sensitive posts. Hence, in March 2019 applicant was posted to a non-sensitive post and since the reliever could not join on grounds of ill health, applicant was continued for another 6 months upto Sept 2019. Thereupon, fresh orders were issued on 10.10.2019 posting Sri E. Chandu who is a direct recruit selected by the UPSC and has done a tenure of non-sensitive posting at Hyderabad, to replace the applicant from a sensitive post. The grievance of the applicant is that he has not completed the tenure and that the reliever being an inexperienced fresher, it is not in organizational interest, to replace the applicant who is capable and has a good record of service. The contention of the applicant is incorrect as the reliever has done one tenure in a non-sensitive post and was, therefore, posted to a sensitive post at Vizag, like the applicant, who too after a non- sensitive posting was posted to the first sensitive posting in West Bengal. The reliever is a UPSC selected DR and it may not be in good taste on part of the applicant to under estimate the competency of the reliever or for that matter, it was not for him to decide the reliever's competency. In fact, any denial of the reliever to join the post to which he has been posted is doing injustice to him and not to the applicant, who is into the 3rd consecutive sensitive posting.
IV. The policy guidelines clearly stipulate that there has to be rotation amongst sensitive and non-sensitive posts and the applicant was Page 8 of 14 OA No.949/2019 given a 3rd sensitive posting by the competent authority in view of there being shortage of officers to post them in sensitive posts at the relevant point of time. It was the inevitability of the situation of shortage of officers which compelled the posting of the applicant in a sensitive post for the 3rd time. With shortage having been overcome by the respondents, other eligible officers were posted in the sensitive posts. As can be seen from the facts, 148 officers were side stepped to non-sensitive posts and it is not just the applicant and therefore, posting to a non-sensitive post, cannot be termed as stigmatic. Moreover, posting to a sensitive post cannot be an individual choice as per the policy guideline extracted above. When the shortage of officers was overcome, it was not necessary to await completion of the tenure by the applicant. It was the prerogative of the respondents to order so and any interference would be unfair. The averment of the applicant that the side stepping being stigmatic, is a personal feeling for which the respondents cannot do much, since as a Govt. Servant, one has to be ready to pack up and move whenever ordered in Organizational interests, provided the order is not malafide or infringing the transfer policy. In the instant case, viewed from any angle, the order is not malafide and is in consonance with the policy guidelines. The tenure period could be 3 years, but if in public interest others eligible have to be given an opportunity, it has to be, because it is not the case of the applicant that he has not been posted even in a single sensitive posting. His grievance is about midway termination of the 3rd sensitive posting, which has to be effected as officers were available due to fresh intake, to post in sensitive postings.
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V. Respondents did explain that some others could not be posted to non-sensitive post since there were no non- sensitive vacancies and that they too would be shifted in March 2020. The claim of the applicant that since they have not been disturbed he too should not be, would not hold ground, for the simple reason that there was a post available to post him. Transfer is not a punishment and the applicant has to work in any post in which he is posted. As observed supra 148 others in sensitive posts have been ordered to be moved and the applicant need to compare himself to them too and not selectively with those who could not be sidestepped for lack of non-sensitive posts. Applicant claiming that posting fresher's to sensitive posts is against the policy guidelines. We do not agree since the applicant has made a general observation without citing a specific clause. On the contrary, the transfer policy emphasizes on rotation between sensitive and non-sensitive posts as per clause 15. It is not the applicant to decide who is competent and who is not, but the respondents who are the masters of the ceremony of transfers as per defined norms. The argument of the applicant is that his unscheduled movement from the sensitive post to a non- sensitive post may lead to a suspicion about his integrity. We do not agree with this contention, since on the contrary persistent insistence to be continued in a sensitive post will give room for suspicion about the integrity of the individual, whoever he may be and for whatever reasons it could be. Rotation is to eliminate development of vested interests accompanying a sensitive post, which are not palpable to organizational interests.
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VI. The applicant claimed that 4 of his batchmates namely Sri K. Muralidhar, Sri Utpal Sinha, Sri M.R.Paul and Sri P.K. Dutta were allowed to continue in sensitive posts. Of the 4, Sri P.K.Dutta is into his 2nd sensitive posting and rest three are on 3rd consecutive sensitive appointment and they could not be sidestepped to a non-sensitive appointment due to non- availability of vacancies and they will be sidestepped to a non-sensitive appointment in the next round in March/April 2020, as adduced by the respondents in the reply statement. Therefore, no undue favour has been extended to batchmates of the applicant, as was attempted to be projected by the applicant.
VII. Applicant further claims that for sensitive posts, only officers who are capable and possessing integrity need to be posted, since sensitive posts carry responsibility and power. Organization is a conglomeration of many individuals and it is for the management to select those suitable as per organizational policies and standards. Assuming that others are not capable would be too sweeping. The posting of the reliever, to the applicant best explains that there are others equally capable to hold sensitive posts like the applicant. Not giving fair opportunity to others eligible is not in the interest of justice.
VIII. Besides, as admitted by the applicant, transfer is an incident of service. The applicant was allowed to continue in 3 sensitive appointments as per policy guidelines of the respondents and therefore, it cannot be said that his posting to a non-sensitive post in the local station is arbitrary. There has been no change in the salary or the place of posting and therefore, asserting on the continuance in a sensitive post is likely to create an Page 11 of 14 OA No.949/2019 impression and image, given the present social circumstances, which may not be obviously relished by the applicant. Applicant repeatedly claiming that the sidestepping is stigmatic, would not gather mass since the same rule of rotation between sensitive and non-sensitive posts is applied to others too, depending on organizational requirement. The applicant can be no exception to this.
With regard to the contention of the applicant that he was not permitted to join the post he was previously holding despite the order of the Hon'ble High Court, the respondents stated in their additional statement that the applicant was taken on the strength of GE Naval Base as AGE E/M. Learned counsel for the respondents also confirmed that the applicant was taken on strength of the said post on 22.03.2021. This is further clarified on a perusal of the representation of the applicant dt.24.03.2021, filed as additional material paper along with MA 400/2021, wherein he himself stated that on 22.03.2021 the respondents took him on the strength as AGE E/M. Needless to reiterate that the respondents are duty bound to implement the order of a Court, unless a contrary order is passed by a higher judicial forum.
IX. In regard to transfer, the law is well settled that the Tribunal should not interfere in transfers, unless the transfer itself is malafide or against the policy. Respondents have unfettered powers to effect transfers subject to certain guidelines. Applicant is holding a Group B post which has an All India transfer liability and cannot therefore persevere to be posted in the same place or in the same post. It is for the respondents exclusive prerogative to decide as to who is to be posted in a given post. Applicant Page 12 of 14 OA No.949/2019 has worked for 6 ½ years in sensitive posts and continuing him further is not in public interest. The principle of rotation hinges on elimination of vested interests so that Organizational requirements are not compromised. In the instant case respondents were liberal enough to post him in the local station located at a distance of 10 KM from the present posting. We state the above by relying on the observations of the Hon'ble Himachal Pradesh High Court in Sunita Devi vs. State Of H.P. & Ors. on 18 March, 2020 in CWP No. 1978 of 2019, wherein legal principles which govern transfer have been summarized by relying on a catena of judgments of the Hon'ble Supreme Court, as under:
3. It is trite that transfer is an incidence of service and as long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect transfer subject of course to certain disciplines. Once it is admitted that the petitioner is State government employee and holds a transferable post then he is liable to be transferred from one place to the other within the District in case it is a District cadre post and throughout the State in case he holds a State cadre post. A government servant holding a transferable post has no vested right to remain posted at one place or the other and courts should not ordinarily interfere with the orders of transfer instead affected party should approach the higher authorities in the department. Who should be transferred where and in what manner is for the appropriate authority to decide. The courts and tribunals are not expected to interdict the working of the administrative system by transferring the officers to "proper place". It is for the administration to take appropriate decision.
xxx
7. The law regarding interference transfer/posting of an employee, as observed above, is well by Court in settled and came up before the Hon'ble Supreme Court in U.O.I and Ors. vs. S.L. Abbas (1993) 4 SCC 357, Mrs. Shilpi Bose and Ors vs. State of Bihar and Ors., AIR 1991 SC 532, State of Uttar Pradesh &Ors. vs. Gobardhan Lal, (2004) 11 SCC 402, State of Madhya Pradesh & Anr. vs. S. S. Kourav & Ors., AIR 1995 SC 1056, M. Sankaranarayanan, IAS vs. State of Karnataka &Ors., AIR 1993 SC 763, N. K. Singh v. Union of India and Ors., AIR 1995 SC 423 and Airports Authority of India v.
Rajeev Ratan Pandey 2009 (8) SCC 337, and the conclusion may be summarised as under:-
1. Transfer is a condition of service.
2. It does not adversely affect the status or emoluments or seniority of the employee.
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3. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.
4. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required.
5. Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure.
6. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
7. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
8. The person against whom allegations of malafide is made should be impleaded as a party by name.
9. Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel.
10. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer.
11. If the transfer order is made in mid-academic session of the children of the employee, the Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance.
X. Respondents have followed the policy guidelines in moving the applicant to a non-sensitive post. Further, as per the legal principles laid by the superior judicial extracted supra, applicant is liable to be side stepped to a non-sensitive post. Hence, in view of the aforesaid circumstances, finding no merit in the case, the OA is dismissed with no order as to costs. Consequently, MA 44/2020 shall stand disposed.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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