Central Administrative Tribunal - Delhi
Shri Ashit Barman vs Ministry Of External Affairs on 14 February, 2011
Central Administrative Tribunal Principal Bench OA No.3364 of 2010 New Delhi, this the 14th day of February, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Shri Ashit Barman, S/o Late Shri Mohan Burman,, R/o 483/3, Jawapur Road, Kolkatta-700074. Presently at : 7352, 11th Avenue, Burnaby, British Columbia, V3N2N, Canada. Applicant. (By Advocate : Shri Atul Yashwant Chitale, Sr. Counsel with Ms. Sunaina Dutta) Versus Ministry of External Affairs, Through its Secretary, Akbar Bhavan, New Delhi. Respondent (By Advocate : Ms. Priyanka Bhardwaj for Shri A.K. Bhardwaj) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
The controversy in this OA for our adjudication is whether the recall/transfer of Shri Ashit Barman working as Cipher Assistant in the Consulate General of India (CGI in short), from Vancouver to Delhi, the Applicant herein, is legally maintainable?
2. As the issue raised in the OA was of emergent nature, Dasti notice was issued on 18.10.2010 with the direction to the Respondents to keep ready the relevant file for perusal of the court in view of the interim relief in the OA. When the case came up on 21.10.2010, the following orders were passed by the Tribunal:
Present : Shri Atul Y. Chitale, senior counsel and with him Shri Kulbharat and Ms. Sunaina Dutta, counsel for applicant.
Shri A.K. Bhardwaj, counsel for respondents.
Respondents are directed to produce the departmental records for our perusal on the next date of hearing.
Learned counsel for respondents has relied upon the decision of the coordinate Bench of this Tribunal in H.K. Dogra v. Union of India & others (OA-738/2006) decided on 16.11.2006. However, learned senior counsel appearing for the applicant presses for interim order, i.e. to stay the operation of the impugned order or in the alternative a restraint order be passed not recall the applicant.
List on 9.11.2010.
Till then, we direct respondents not to recall the applicant in pursuance of impugned order dated 23.8.2010. Interim orders passed on 21.10.2010 have been continuing till date. The Respondent submitted the reply affidavit on 19.11.2010 to which the rejoinder was filed by the Applicant on 23.12.2010. We finally heard the case on 7.1.2011 when the Applicants counsel indicated to file his written submissions which he did on 10.1.2011. The Respondents submitted following files for our perusal:-
No.Q/vig/843/6/2010 dealing with complaint against Shri Ashit Barman, C.A. at CGI, Vancouver (Confidential).
Volume I and II of file No.Q/PC/551/2010 (Confidential).
3.1 Brief facts of the case, which may be relevant for determination of the above issue, are furnished here. The Applicant joined as Cipher Assistant at the CGI, Vancouver pursuant to the transfer order dated 14/15th November, 2007. It is the case of the Applicant that he, having noticed certain irregularities in CGI, Vancouver, has become whistle blower and sought information using the instruments of Right to Information Act, 2005 (RTI in short). He has enclosed his requests for information and the reply received from the authorities being inadequate, has approached the Appellate Authority. His main plea is that as he sought the information on the irregularities and represented against the Consul General of India at Vancouver to the Ministry of External Affairs (MEA) on some of the irregularities he has been prematurely recalled from Vancouver to the Head Quarters at Delhi vide order dated 23.8.2010 (Annexure-A1).
3.2 We may briefly refer to the different information sought by the Applicant and the reply received by him from the authorities.
3.3. His letter dated 10.5.2010 (Annexure-A2) is addressed to the Additional Secretary (Administration), MEA, Delhi on the subject A few of the wrongs which needs to be righted in this posts. This letter brought out (i) his problems in parking his personal car at CGI, Vancover; (ii) use/misuse of taxi facilities and CGI staff cars; (iii) the reason for him to live 18 kms away in another city. Ultimately, he did not seek any information but requested MEA to look into the staff welfare measures.
3.4 He has enclosed a letter dated 12.5.2010 at Annexure-A3 seeking information from the Public Information Officer (PIO) of CGI on number of cases year wise for last 5 years of illegal Indian Nationals granted Indian Passport, and associated information. He was replied vide letter dated 9.6.2010 (page 32) that such information was not compiled in the CGI.
3.5 The Applicant in his letter dated 17.5.2010 (page 29) to PIO sought information on the amount spent on repair and maintenance in respect of Government owned and rented residential properties over last 5 years and 3 major companies whose services were used most often for such repair and maintenance. The PIO sent the reply of the Competent Authority intimating in his letter dated 14.6.2010 (page 33) that such information was generally not compiled in CGI 3.6 Vide letter dated 17.5.2010 (page 30) to PIO he sought information on the money allotted by MEA in last 2 years for sprucing up of the consular wing of the CGI, Vancouver. Applicant received similar reply dated 9.7.2010 (page -38) that such information was generally not compiled in the office and In view of the disproportionate resources required for providing such information, we are unable to provide the said information.
3.7 In the meantime, he sent a complaining letter dated 21.5.2010 (page 31) to the Addl. Secretary (Admn.) MEA that he was told by CG in a meeting that he would face music under conduct Rules for representing directly and HOC told him to withdraw an RTI request or else he would be proceeded against for selling liquor as he had a taint on that account.
3.8. The Applicant vide his letter dated 14.6.2010 (page 34) to PIO sought the following information:
(a) Excluding Chancery/Security duty by the Consulate officials and expenditure on transport during National Day functions, the total amount spent on hiring of taxi/s by Consulate Officials during weekends for the last two years and the number of occasions.
(b) The average duty hours of the chauffeurs during weekend days.
(c) Where there any occasion/s as mentioned in (a) above, where the official vehicle despite being available was not utilized. The PIO in his reply dated 9.7.2009 (page 38) furnished the following:
The information sought by the applicant is not generally compiled by this office. In view of the disproportionate resources required for providing the information, we are unable to provide the said information. However, the applicant has the right to make submission for review to the Appellate authority.
3.9. In another letter dated 14.6.2010 (page 35) he sought the information on the total number of Indian Passports issued in last one year to persons having refugee status / amnesty by the Canadian Government. He received the reply dated 12.07.2010 (page 39) stating that one such passport had been issued.
3.10 He again sought information from PIO in his letter dated 15.7.2010 (page 41) on the following items and he did not receive any specific reply:
(a) Who is the authority who can grant a visa service to any person who is on a black list.
(b) Whether the above mentioned authoritys approval was taken in each and every case of giving visa to such persons who were on the black list.
(c) If not why.
(d) Whether the majority of such cases as mentioned in (b) above were given visas without such approval. 3.11 The Applicant has appealed against the PIOs reply in many cases being vague and he lastly wrote to the Additional Secretary, (Admn) MEA in his letter dated 16.7.2010 complaining that his intention was to bring forward the irregularities but he had been denied such information. He received reply from the Appellate Authority stating that his appeal was not acceded to. On 23.8.2010, the Respondents issued the impugned recall letter ordering him to return to headquarters in India. Feeling aggrieved by the said transfer/recall he is before the Tribunal in the OA.
4. Representing the Applicant, Shri Kul Bharat along with Shri Atul Yashwant Chitale Senior counsel and Ms. Snigdha Pandey learned counsel took us through the above narrated efforts of the Applicant seeking certain specified information which would have exposed the irregularities in the CGI at Vancouver and those officers who were responsible for the same. The contention is that as the Applicant blew the whistle, he was victimized by the recall order. It was contended that the Applicant joined CGI Vancouver on 30.6.2008 and 3 years tenure would have continued to 29.6.2011 and the premature transfer based on malafide intention of the Respondents needed to be set aside. He further submits that there is no charges framed against him, nor there is any serious breach of conduct Rues, besides the Applicant has not been given an opportunity to explain his position before the recall was ordered. He, therefore, terms the action of the Respondent to recall the Applicant as violative of the principle of natural justice. Further, it was submitted that the order was silent about the reason for is recall and what administrative exigency arose for the same Another contention raised during the hearing relates to the study of his child in 12th class and the recall would seriously affect the future prospects of his children. It was, therefore, pleaded that the stay of the recall granted in favour of the applicant should be made absolute by allowing the relief prayed for in the OA. In support of his contentions he relied on the judgments of Honble Supreme Court of India in the following cases :
(i) State of M.P. Versus S.S. Kourav [1995-3-SCC-270].
(ii) National Hydroelectric Power Corporation Versus Shri Bhagwan [2001-8-SCC-574].
(iii) Arvind Dattatraya Dhande Versus State of Maharashtra [1997-6-SCC-169].
(iv) Tejshree Ghag Versus Prakash Parshuram Patil [2007-6-SCC- 169].
(v) Indirect Tax Practitioners Association Versus R.K. Jain [2010-8-SCC-281].
5. On receipt of the notice from the Tribunal, the Respondents have entered appearance and submitted their reply affidavit on 19.11.2010 and controverted the grounds raised by in the OA. Shri A.K. Bhardwaj learned Sr. Central Government Counsel representing the Respondents contends that the posting of any employee in any country or his recall there from does not infringe employees legal right and the Government has unfettered right to extend / curtail the period of posting of an employee in the exigencies of the public service. In support of the contention, Shri Bhardwaj placed his reliance on the orders of this Tribunal in H.K. Dogra Versus Union of India and Others [OA No.738/2006 decided on 16.11.2006). Refuting all charges of malafide and irregularities leveled in the OA, Shri Bhardwaj stated that the inspection conducted by the Chief Vigilance Officer (CVO) on 19th and 20th July, 2010, the Applicant was found involved in the acts of financial impropriety and in subordination. He has been the principal cause of spoiling the working atmosphere in the CGI by indulging in groupism and exhibiting obstructionist approach. It is the CVO who recommended the Applicants recall and to proceed departmentally for his acts of financial impropriety like false claims towards conveyance charges. He submitted that the Competent Authority i.e. Minister of State, MEA ordered the recall in terms of Para 8(2) (vii) of Annexure-XII of IFS (PLCA) Rules. It is further stated that after the Applicant joins the Headquarters, the disciplinary action will be taken against him when he will have opportunity to defend himself. The Respondents have ordered the Applicants recall and transfer on public interest and for administrative reasons and he relied on the judgment of Honble High Court of Delhi in the case of Dr. A.K. Bhardwaj Versus Union of India and Others and orders of this Tribunal in Shri J.P. Sharma Versus Union of India and Others [OA No.3860/2010 decided on the interim relief on 23.11.2010] .
6. As indicated within, the issue in the present OA is in narrow compass whether the recall / transfer of the Applicant is legally sustainable in the background of malafide alleged by him? Before we analyse the issue, we would like to refer to the Rule under which the recall or premature transfer has been ordered. We take the following extract of Para 8(2) of Annexure-XII of IFS (PLCA) Rules:-
Para 8 (2) If the Ministry is satisfied that the conduct of an officer posted abroad or of any member of his family or any person living with him and under his general control :-
has prejudiced or is likely to prejudice the maintenance of friendly relations between India and a foreign country; or has brought or is likely to bring India into disrepute; or has caused or is likely to cause embarrassment to the Government of India; or has occasioned or is likely to occasion a breach of the security regulations of the Government of India or a danger to security; or has occasioned or is likely to occasion the commission of an act which may constitute an offence under the Indian Penal Code; or Involves moral turpitude; or Involves a serious breach of the Conduct Rules of his Service.
The Ministry may compulsorily recall the officer to India.
If the Ministry is satisfied that an officer serving abroad or a member of his family is suffering from a serious or chronic illness or disease as a result of which:-
the officer has been or may become unable to perform his duties efficiently or fully; or the expenditure that has been or may be incurred on his or his familys medical or hospital treatment is unduly large;
the Ministry may compulsorily recall him to India and may, for that purpose, authorize his travel to India and of the entitled members of his family and Indian servants. It is noted that the competent authority has ordered his recall / transfer under Para 8(2) (vii) above which means that the conduct of the Applicant posted abroad at Vancouver is involved in a serious breach of the Conduct Rules of his Service. We would analyse this aspect in subsequent paragraphs.
7. In the background of the above Rule, we would like to refer to the whistle blower angle brought in challenging the transfer / recall of the Applicant prematurely. The Applicant and his counsel have projected and laboriously argued that the Applicant is a whistleblower. Seeking information under Right to Information Act does not make an employee whistleblower. Only after he gets the information, whatever be the source, and in whatever manner the same may be, if he detects any scam, fraud or major irregularities and complains to the appropriate authorities to take action and they on their part do not take action but shield the defaulters, and the Applicant further represents, he may at that point of time call himself to be a whistleblower. The present case of the Applicant has not revealed any fraud or major irregularities. The complaints he sent to the Additional Secretary MEA were enquired into by Shri Tyagi Joint Secretary who found those with no substance. Rest of the things he has sought under RTI is merely information. At the best he can call himself as RTI activist but not as a whistleblower. Be that as it may, we are not here to adjudicate whether he is a whistleblower or not but it is suffice to state that we have carefully scrutinized the records placed before us by the Respondents and find that he has sought information some of which have been denied to him. That itself cannot constitute to have the ingredients either of malafide committed by the Respondents, nor can be a ground for his recall / transfer as there is no link between the two.
8. We may at this stage refer to the records placed before us by the Respondents. Shri R.K. Tyagi, Joint Secretary (CNV) along with SO (Vig.) visited CGI Vancouver on 19th-20th July, 2010 inter alia to enquire into the complaint letter sent by the Applicant to MEA and found that the Applicant was involved in acts of financial impropriety and insubordination besides being the principal cause of spoiling the working atmosphere at the CGI. He indulged in groupism with clearly obstructionist and negative approach. He suggested (a) the transfer of the Applicant to Headquarters immediately (b) initiation of vigilance proceeding for the acts of financial impropriety. He also indicated about the Applicants previous recall from Islamabad in 1998 due to his indulging in clandestine sale of duty free liquor there. The Applicants recall and proposed disciplinary action has been approved by the Minister of State, MEA on 10.08.2010.
9. The perusal of the files also revealed that during the visit to CGI in July, 2010 Shri Tyagi had examined the complaints sent by the Applicant to the MEA directly against CGI and the information sought by the Applicant under RTI. No substance was found by Shri Tyagi on the complaint. It has been indicated by the Respondents that the recall order does not prevent Applicants effort to get information under RTI and he can pursue the same even from Delhi. In our opinion, this approach of the Respondents is correct as the Applicant can still try get the required information and if need be can blow whistle right from Delhi. The recall and transfer of the Applicant was not recommended by Shri Tyagi for the Applicants endeavor seeking some information under RTI.
10. It is noted by us from the records that vide Memorandum dated 18.11.2010, a Show Cause Notice (SCN) was issued to the Applicant to explain the reasons for the acts of his financial impropriety committed by him during his posting at CGI, Vancouver. Though the SCN was issued after the recall order was issued, it was triggered by the inspection note of Shri Tyagi which was prior to the said order of recall. Three sets of financial improprieties have been alleged in the said SCN which read as follows:-
(i) Conveyance charges of C$ 150 for the month of October 2008, were claimed twice (paid vide vr no.63 of November 2008 and vr no.102 of September 2009). Although the claims pertain to the same month, the details of the claims were different.
(ii) Conveyance charges were claimed for 28.2.2009 and 1.3.2009 (paid vide vr. No.102 of September, 2009) although he was not present in Vancouver on 28.2.2009. In fact, he was away on courier duty to New York from 27.2.2009 to 1.3.2009. As per his TA claim for the courier duty, he had returned to Vancouver at 1625 hrs on 1.3.2009. However, he has claimed conveyance charges for travel from the residence to Chancery at 1100 hrs. on 1.3.2009.
(iii) Conveyance charges for 2.5.2009 were claimed (paid vide vr. No. 102 of 9/2009) whereas Yellow cab card for journey from his residence to Chancery on the same day had been utilized. The payment of using the Yellow cab card was made separately vide vr. No. 69 of 6/2009. Though this was issued in November, 2010, but its origin can be traced to July, 2010 when the inspection by Mr. Tyagi took place, prior to the Applicants transfer. Above financial impropriety is surely serious breach of conduct by the Applicant and Respondents are entitled to invoke the Para 8(2)(vii) of the said Rules.
11. Rival parties have referred to various judgments which we have gone through and for the purpose of brevity in this order; we may refer to some of those judgments, as we feel relevant for adjudicating the controversy in this OA.
12. In the setting of the facts narrated within, we may examine the legal aspects now. Recall of an employee and transfer being synonymous and having same effect, the following analysis and judicial pronouncements in the present case will be relevant. Transfer is an exigency and incidence of service and is an administrative decision. It is held in H.K. Dogras case (supra) that the executive has unfettered rights to transfer / recall its employees from a place to another place. However, interference by the Tribunal / Courts with transfer or recall orders should only be in very rare cases. In several decisions of the Honble Apex Court viz. in Mysore Paper Mills Ltd., Bangalore Verus Mysore Paper Mills Officers Association, Bhadravati and Another [1999-6-SLR-77] B. Varadha Rao versus State of Karnataka (AIR 1986 SC 1955), Shilpi Bose Versus State of Bihar (AIR 1991 SC 532), Union of India versus S. L. Abbas (AIR 1993 SC 2444), State of M.P. and Another Versus S.S.Kourav and others [1995-3-SCC-270]; National Hydroelectric Power Corporation Ltd. Versus Shri Bhagwan and Another [2001-8-SCC-574]; Arvind Duttatraya Dhande Versus State of Maharashtra [1997-6-SCC-169] and Airport Authority of India Versus Rajeev Ratan Pandey [JT 2009 (10) SC 472], Rajendra Singh Versus State of UP and Others [2010-1-SLR-632] , the law laid has been that in the transfer matter of a Government employee, scope of judicial review under Article 226 of the constitution is limited. The Tribunal and High Court should not interfere with an order of transfer lightly be it at the interim stage or final hearing as the Courts do not substitute their own decision and as the Courts and Tribunals are not appellate authority in such matters of transfer. Further, we are guided by the judgment of Honourable Supreme Court in Masood Ahmad Versus State of U.P. [2007 STPL(LE) 39042 SC] decided on 18.09.2007, which reads as follows :-
4. The petitioner-appellant, who was an Executive Officer, Nagar Palika Parishad Muzaffarnagar, had in his writ petition challenged his transfer by the State Government by order dated 21.6.2005 as Executive Officer, Nagar Palika Parishad Mawana, District Meerut. Since the petitioner was on a transferable post, in our opinion, the High Court has rightly dismissed the writ petition since transfer is an exigency of service and is an administrative decision. Interference by the Courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions, transfer is an exigency of service vide B. Varadha Rao vs. State of Karnataka AIR 1986 SC 1955, Shilpi Bose vs. State of Bihar AIR 1991 SC 532, Union of India Vs. N.P. Thomas AIR 1993 SC 1605, Union of India vs. S.L. Abbas AIR 1993 SC 2444 etc. .
The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions 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 mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
13. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose (supra), the Honble Apex Court held thus:
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
14. In N.K. Singh Versus Union of India & Ors. [(1994) 6 SCC 1998], the Honble Apex Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision."
15. In Airport Authority of India Versus. Rajeev Ratan Pandey [2009 (8) SCC 377] Honourable Supreme Court relying on its earlier judgment observed the following on the allegation of malafide as a ground of transfer, which reads as follows :-
In the case of State of U.P. v. Gobardhan Lal (2004) 11 SCC 402, while dealing with a matter of transfer, this Court observed that allegations of mala-fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of providing malafides is on a person leveling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite materials.In a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer.
16. The Honble Supreme Court discussed its earlier orders on different facets of transfer of Government employees in Rajendra Singhs case (supra) and those guide us in adjudicating the present OA.
6.A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointment or posted in a particular place or position, he should continue in such place or position as long s he desires [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402].
17. The question, therefore, arises on what grounds the Tribunal can interfere in the transfer and recall matters. On a very close and detailed study of the judgments of Honble Apex Court, the following dicta emerge for our guidance in adjudicating the current OAs. Transfer is a part of the service conditions of an employee which should not be ordinarily interfered with by a Court of law, unless it is found that either; (i) that the authorities who issued the orders, were not competent to pass the orders; or (ii) that the service rules prohibit such transfer; or (iii) the order is mala fide; or (iv) the transfer suffers from arbitrary action of the executive.
18. In the background of the above settled legal position, the facts of the case reveal that the Applicant has admittedly the transfer and recall liability from one place to the other. Further, undisputedly, the competent authority viz the Minister of State, MEA, did pass the recall order. Hence, the remaining grounds would be examined in the legal setting spelt out in the foregoing paragraphs. We may examine to find out whether the order recalling the Applicant suffers from the violation of Rules and whether transfer suffers from malafide or arbitrary action of the executive.
19. It is seen from the recall letter dated 23.8.2010 that the order refers to the Para 8(2)(vii) of Annexure-XII of IFS (PLCA) Rules and the facts of Applicant alleged to have committed serious breach of conduct has been shown in SCN issued to him. Thus, we are of the considered views that the recall is based on valid grounds under the extant Rules.
20. As we find that the Respondents have not violated the Rules, now we may advert to the grounds of malafide taken by the Applicant. The allegation of malafide attributed on the facts of seeking RTI information, which he feels, would reveal irregularities and denial to give such information to the Applicant, as already discussed within, cannot be termed as malafide. To get information under RTI, there is different forum and this Tribunal is not the appropriate forum. Hence his plea of malafide collapses. On the basis of Shri Tyagis inspection report the recall has been ordered. The recall is not based on whimsies and fancies of the authorities but on the basis of prime facie case of his financial improprieties as indicated in the SCN. Thus, the Applicants recall cannot be considered as arbitrary or discriminatory. His plea that his child is studying there does not give a convincing ground to continue at CGI Vancouver.
21. Since the Applicant was on a transferable post and even if it was a tenure posting, in our opinion, the concerned Respondent has the authority to curtail the tenure and transfer him from Vancouver to Delhi on administrative reasons as seen from the SCN and the recall order. This transfer, admittedly is an administrative decision backed by the statutory Rules, we do not find our interference with the recall / transfer order is necessary. It is trite in law that a government servant cannot disobey a recall order by not reporting at the place of posting. Applicant has not obeyed and has come to the Tribunal to ventilate his grievances. It is his duty to first report for work where he has been posted and then may make a representation as to what may be his personal problems (Childrens education). The tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. In this context, we draw our support from the ratio laid by Honble Apex Court in S.C. Saxena Vesus Union of India [2006-9-SCC-583].
22. Taking the totality of facts and circumstances of the case, and the legal position in the matter of recall and transfer into account, Original Application does not have any merit calling for our intervention. Resultantly, (i) the transfer / recall order dated 23.8.2010 of the Applicant is held legally sustainable and (ii) finding no merits, the Original Application is dismissed leaving the parties to bear their respective costs. The stay granted earlier in this case is vacated.
( Dr. Dharam Paul Sharma ) ( Dr. Ramesh Chandra Panda )
Member (J) Member (A)
/rk/