Central Administrative Tribunal - Bangalore
S. Mohan Kumar vs The General Manager, South Western ... on 10 April, 2007
Equivalent citations: 2007(3)SLJ378(CAT)
ORDER K.N.K. Karthiyani, Member (A)
1. The applicant was initially an employee of Southern Railway. By an order dated 8.1.2002 (Annexure-Al), the applicant was approved for promotion on ad hoc basis to the post of Senior Personnel Officer (SPO for short) from the post of Assistant Personnel Officer (APO for short) by the General Manager, Southern Railways. He was posted against an existing vacancy at Bangalore in the post of SPO. The new zone of South Western Railway was formed from 1.4.2003 with headquarters at Hubli. On formation of the new zone, the applicant was placed under General Manager, S.W. Railway and posted as SPO, Headquarters at Hubli and on 17.7.2003, he was posted as SPO, Constructions, Bangalore Cantonment (Annexure-A2). Within a period of 4 months of his joining the post at Bangalore, he was transferred and posted as DPO, Mysore vide order dated 24.11.2003 (Annexurc-A3). The applicant made a representation on 23.3.2005 (Annexure-A6) requesting the 2nd respondent to transfer him and post him as DPO, Bangalore on the ground that his wife was working in the Divisional Office at Bangalore and further his children were studying in College/School in Bangalore. However, on 31.3.2005 he was transferred and posted as Workshop Personnel Officer, Hubli, vide Annexure-A7. As the said order dated 31.3.2005 did not comply with the Circulars issued by the respondent department for posting husband and wife at the same station, the applicant made one more representation on 3.8.2005 (Annexure-A8) requesting the 1st respondent to post the applicant in the vacant post at Bangalore in compliance with the Circular dated 12.6.1997 (Annexure-A4). The applicant made a further representation on 1.10.2005 as there was no action on his representation at Annexure-A8. In the said representation, the applicant had brought out the fact that he had been subjected to transfers frequently without any rhyme or reason. Copy of the said representation is at Annexure-A9. At this stage the 3rd respondent, who is junior to the applicant was posted as DPO, Bangalore, vide order dated 26.10.2005 (Annexure-AlO). The said order was issued by overlooking the seniority of the applicant. When the applicant had proceeded on leave, he was recalled by order dated 7.12.2005 and was posted as Sr. DPO in the newly created post at Hubli vide Annexure-A11. When the 3rd respondent proceeded on leave, the applicant was temporarily posted for a period of one month by an order dated 25.4.2006 as DPO, Bangalore (Annexure-A 12). The said posting was being extended periodically as respondent No. 3 continued to be on leave. The applicant's deputation to Bangalore as DPO was extended from time to time with a promise that his request for a permanent posting in Bangalore would be considered in the vacancy that was likely to arise on account of superannuation of one Shri R.V.R.N. Rao, Deputy CPO, Constructions, Bangalore Cantonment with effect from 1.9.2006. However, in the said vacancy, the 4th respondent, who is junior to the applicant was transferred and posted from Hubli. By an order dated 1.9.2006, the applicant was again transferred back as DPO/PRIME/UBL and 3rd respondent after return from sick leave has been posted as DPO, Bangalore in the place of the applicant. Copy of the above impugned order is produced as Annexure-A15. The applicant contends that further posting back the 3rd respondent on return from leave in place of the applicant is highly illegal, arbitrary and opposed to law. The action of the official respondents in posting the 4th respondent in the vacancy caused due to superannuation of Shri R.V.R.N. Rao is illegal, arbitrary and contrary to the circulars issued in the matters of transfer. The applicant has sought the following reliefs:
(i) quash/set aside the impugned order dated 1.9.2006 in No. S WR/HQ/P.675/ Personnel Vol. II issued by the 2nd respondent in so far as it relates to transferring and posting the applicant as DPO/PRIME Hubli, vide Annexure-A15;
(ii) Issue a direction directing the respondents to permit the applicant to continue to work at the present place of working in place of the 3rt respondent or in the alternative direct the respondents 1 and 2 to transfer and post the applicant in the vacancy caused due to attaining of superannuation by Sri R.V.R.N. Rao with effect from 1.9.2006, by canceling the posting of the 4th respondent in the said place;
(iii) To issue any other order or direction in favour of the applicant which this Hon' ble Tribunal deems fit and proper in the present facts and circumstances of the case, so as to secure the ends of justice.
2. The official respondents in their reply statement have submitted that when the impugned order was issued the applicant was holding the post of DPO/PRIME/UBL and he was temporarily transferred to Bangalore as DPO only in the leave vacancy of respondent No. 3. It is further submitted that the circular dated 12.6.1997 produced at Annexure-A4 is not applicable to the applicant as he is not having children below 10 years of age. Further, the applicant has been trained in Oracle Developer 2000 at Railway Staff College, Vadodara from 6.3.2006 to 17.3.2006 for better utilization of his services for the effective implementation of the PRIME Software in South Western Railway. After the training, he was temporarily posted to work as DPO, Bangalore specifically stating that he would be posted back as DPO/PRIME after the DPO at Bangalore comes back from his sick leave. The applicant was posted to work as DPO/PRIME, Hubli for the implementation of PRIME Software over South Western Railway. Since the PRIME implementation work has not been completed, till such time it is fully brought into operation, the service of the applicant is required to man the post of DPO/PRIME. For having worked at Bangalore in the leave vacancy at Bangalore, he was paid T. A/D. A. for the period of service utilised at Bangalore. The impugned order dated 1.9.2006 was issued repatriating the applicant to the post from which he was temporarily transferred. "The Group 'B' officers of the Personnel Department are appointed for the Zonal Railway concerned and can be transferred by the Chief Personnel Officer, the Head of the Personnel Department to anywhere in the Zonal Railways and no officer can claim as a matter of right to work at a particular place/post and it is the prerogative of the CPO to utilise/transfer a person in post/station according to the administrative needs/requirements". It is admitted by the official respondents that the applicant had made a representation dated 23.3.2005 which was not considered by the Competent Authority as the applicant had worked at Bangalore from August, 1994 to December 2003 excepting 3 months of stay at Hubli at the time of formation of the zone and hence the applicant was transferred to Hubli workshop from Mysore consequent to the restoration of the senior scale post to Hubli Workshop.
3. The further representations dated 3.8.2005 and 1.10.2005 said to have been made by the applicant have not been received by the respondents. The requests of the officials for transfer are generally considered sympathetically but when there are many requests for a particular station, then a decision needs to be taken by the authority duly taking various aspects into account. The 3rd respondent was posted to Bangalore on his request for getting treatment for his son in St. John's Hospital in Bangalore for renal failure as such facilities are not available at Hubli. Taking a sympathetic consideration on the poor health condition of the minor child of the 3rd respondent, a decision was taken to post R-3 at Bangalore, duly transferring an officer (DPO/Bangalore) who had completed his tenure in October, 2005 as per Annexure-A10. It is further pointed out that the request of R-3 for transfer from Mysore to Bangalore on his promotion during March 2005 was not considered by R-2 due to exigency of service and he was posted to work as SPO at Headquarters office which itself will clearly show that no special consideration has been given to anyone and all have been treated equally. It is admitted that the authority keeping in view of the representation of the applicant has posted him to Bangalore temporarily when there was an opportunity to do so to fill a leave vacancy. R-4 had requested for a transfer to Bangalore area on 21.4.2006 as his family is also at Bangalore and he has got 3 daughters of marriageable age and 2 school going sons. Further, R-4 was at Hubli right from April 2005, i.e., earlier to the posting of the applicant at Hubli and since his request was considered he was posted to Bangalore duly down grading the post of DPO to senior scale as no JA grade officer was available for posting at construction Organisation.
4. The applicant has further filed an affidavit to prove that his representation dated 3.8.2005 was actually received by the respondents. In the affidavit the applicant has also questioned the contention of the respondents that respondent No. 4 was at Hubli right from April 2005, i.e., earlier to the posting of the applicant to Hubli. The applicant has produced the documents to prove that he was at Hubli for the following periods:
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From To Existing Posted to HQ.Office No.
order
particulars
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31.3.2003 21.7.2003 SPO/SWR/SBC SPO/HQ/UBL Annexure-2 1 22.7.2003 7.12.2003 SPO/CN/BNC DPO/MYS Annexure-3 2 8.12.2003 31.3.2005 DPO/MYS WPO/UBLS Annexure-7 3 1.4.2005 18.12.2005 WPO/UBLS DPO/UBL-P Annexure-11 4 19.12.2005 26.4.2006 DPO/UBL-P DPO/SBC Annexures-
12, 13, 14 5 27.4.2006 31.8.2006 DPO/SBC DPO/UBL-P Annexure-15 6
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Further, respondent No. 4 was promoted to senior scale only after 31.3.2005. The applicant was promoted to the senior scale on 8.1.2002. The further contention of the respondents that there was no suitable incumbent to man the post of DPO/PRIME is incorrect as every division has got PRIME which is being manned not by DPO/PRIME alone but by any other officers. Further, when the presence of the applicant was required to man PRIME at Hubli he could not have been transferred in place of respondent No. 3 in a leave vacancy. It appears that the applicant is treated as leave reserve or surplus and has been subjected to frequent and unscheduled transfers in the same grade and the applicant alleges that there have been 6 transfers during the period from 31.3.2003 to 31.8.2006. The applicant submits that the post of DPO/PRIME was not a part of authorised establishment when the applicant was transferred and thereafter to facilitate the drawal and disbursement of salary, post facto approval was conveyed. This clearly indicates that the post is not so important as claimed by official respondents. Copy of the memorandum dated 23.11.2006 containing extension of sanction of the post of SPO/PRIME from 1.4.2006 to 31.3.2007 is annexed as Annexure-A17. From Annexure-Al 7 it will be seen that the post of SPO PRIME is a work charged post of the Personnel Department created vide office memoranda dated 7.12.2005.
5. Respondents 3 and 4 have filed separate reply statements. The 3rd respondent submits that even before his promotion to the senior scale he had made a request to the CPO for transfer to Bangalore explaining in detail the reasons for seeking the transfer, (a copy of the representation is at Annexure-R2). However, his request was not considered then and he was posted to work at Headquarters (Hubli) as SPO. Meanwhile, the 3rt respondent's son was admitted to St. John's Hospital, Bangalore for treatment of renal failure. As the duration of the treatment could not be predicted by the Doctors, the 3rd respondent made a request to the CPO over the telephone and pleaded for his posting to Bangalore to take care of his son and to ensure that proper medical treatment is given to him. Considering the situation, the 2nd respondent has issued an order dated 26.10.2005 (Annexure-A10) transferring the 3rd respondent to Bangalore. The 3rd respondent had requested for leave from April 2006 and was on leave upto September, 2006 in connection with the kidney transplant of his son. On expiry of leave, he resumed to duty as DPO, the post from which he went on leave. In pursuance of resuming duty of the 3rd respondent, the 2nd respondent had issued an order dated 1.9.2006 (impugned order) and in the same order, the applicant who was temporarily posted to work in the place of the 3rd respondent was posted back to Hubli. The posting of the 3rd respondent to Bangalore was purely on medical grounds and on sympathetic consideration. It is prayed that on consideration of the above facts, the O. A. may be rejected with costs in the interest of justice.
6. In the reply filed by respondent No. 4, it is contended that the applicant has no legally enforcible fight to seek relief as prayed for in the O.A. The relief is "virtually in nature of public case" and such relief not being personal to him, cannot be sought for in the proceeding before this Tribunal especially in view of the fact that no right exists to a person of any particular post. The respondent No. 4 is in no way concerned with the grievance highlighted by the applicant and he had not replaced the applicant in any way. He has been transferred to a post due to retirement of Shri R.V.R.N. Rao whereas the applicant was transferred to Bangalore against the leave vacancy and he is transferred back to Hubli. There is absolutely no conflict between 4th respondent and the applicant as far as Anncxure-A15 is concerned. Respondent No. 4 submits that regarding non-disposal of the applicant's representation in accordance with the guide lines contained in the official memorandum dated 12.6.1997, the recourse available to him is to approach the appropriate Department in Government of India and not the Tribunal. Further, it is pointed out that the applicant's children are riot of tender age of 10 years and below and are grown up and studying in College/High School. The applicant has not even a case for equitable relief either before the Tribunal or before the parties. The respondent No. 4 has also 3 grown up daughters of marriageable age and 2 sons who are staying at Bangalore. The consideration given to his transfer to Bangalore is due to administrative exigency. Keeping in view the expertise possessed by the applicant for discharging the duties of the post of DPO/PRIME since he is specially trained in that field and that work is still to be completed at Hubli he was posted to Hubli. Consideration of seniority is no material fact for effecting transfers. Respondent No. 4 has also prayed that the affidavit filed by the applicant may be rejected as the facts and grounds made out in the affidavit should have been brought out by an M.A. and not by an affidavit. Respondent No. 4 has prayed that the O.A. may be dismissed with exemplary 9ast as against respondent No. 4.
7. We have heard the Counsel for all the parties and gone through the pleadings. As the applicant had produced a copy of his representation dated 3.8.2005 addressed to General Manager in which there is an order dated 8.8.2005 of the General Manager (respondent No. 1) to the CPO (respondent No. 2) as "P1. Speak" and there is an initial with date 8.8.2005 at the bottom of the representation (stated to be of the CPO as per the applicant's contention), we decided to call for the relevant file to see the ground on which the respondents have submitted that they were not in receipt of either the representation dated 3.8.2005 or the one dated 1.10.2005. The respondents have produced relevant file.
8. We shall first analyse the pleadings before we discuss the noting in the relevant file. There is no dispute that the applicant was promoted on an ad hoc basis on 8.1.2002 and posted at Bangalore by the GM, Southern Railway. On the formation of South Western Railway, he was transferred to Headquarters (Hubli) on 1.4.2003. Within 4 months of his posting at Hubli, he was transferred and posted to Bangalore on 17.7.2003. B ut he was again transferred to Mysore just on the expiry of 4 months stay at Bangalore, the reason for his transfer was that the post in which he was working was upgraded to J.A. grade and one Shri R.V.R.N. Rao was posted against that post. While at Mysore, the applicant submitted a representation dated 23.3.2005 for a posting to Bangalore on the ground that his wife was also working in Railways at Bangalore and his children were staying at Bangalore. In spite of that representation, he was posted to Hubli on 31.3.2005. The applicant's Counsel pointed out that the respondents were aware of the fact that representations of the applicant were still pending as it is admitted in the reply statement that "the authority keeping in view of the representation of the applicant posted him to Bangalore temporarily when there was an opportunity to do so to fill up the leave vacancy" (the posting as above in the leave vacancy was on 25.4.2006 (Annexure-A12).
9. During the hearing, learned Counsel for the respondents cited the decision of the Apex Court in S.C. Saxena v. Union of India and Ors. 2006 SCC (L & S) 1890, State of U.P. and Ors. v. Gobardhan Lal and Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors. , in support of the contention taken by the respondents that the Tribunal should not interfere with the transfer orders unless it is vitiated with mala fides or biased against the rules governing such transfers. In the case of S.C. Saxena, the case before the Apex Court was that the petitioner had not complied with the transfer orders and remained unauthorisedly absent from duty, for which offence he was proceeded against and an order of compulsory retirement was passed. The appeal was dismissed by the Apex Court noting that unauthorisedly remaining absent from duty for a long period was a serious misconduct. In Kendriya Vidyalaya Sangathan, the Court observed that in the absence of arbitrariness, mala fides or violation of any operative guide lines pf rules, Court's interference with the order of transfer is not called for. In that case the Tribunal found that the allegation of mala fides was not established and transfer was not vitiated on any score. But the High Court after coming to the conclusion that there was no illegality in the order of transfer had directed that the respondent be given a posting in the State of Madhya Pradesh. It was held that the High Court's direction was unsustainable. In the case of Gobardhan Lai, it was ordered that the Court should not normally interfere with orders of transfer except when transfer order (i) is shown to be vitiated by mala fide (ii) is in violation of any statutory provision, or (iii) having been passed by an authority not competent to pass such an order. In Paragraph-8 of the order, the Apex Court observed:
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunal s as though they are Appellate Authorities over such orders, which could assess the necessities of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
From the facts of the case, it will be seen that the facts in S.C. Saxena and Kendriya Vidyalaya Sangathan, are different from the case that is before us. Even the issue for consideration before the Supreme Court in the case of S.C. Saxena was different, namely, whether the absence from duty for a long period and not reporting at the place of transfer is a misconduct or not.
10. In the case before us, the applicant has not alleged any personal mala fide against any of the officers. However, the very fact that the applicants representation dated 3.8.2005 which was even seen by the General Manager has not been taken into account at all when transfers were considered against the post that had fallen vacant in Bangalore on 1.9.2006. This clearly proves mala fide in consideration of facts. The fact that the representation dated 23.3.2005 was not disposed of was very much within the knowledge of the respondents, as admitted by them in their reply statement (discussed in Para 7 above). We cannot agree to the arguments put forth now that the representation was once considered on 31.3.2005 and that the representation is no more valid before the eyes of the official respondents for the fact that when the representation was for a transfer to Bangalore from Mysore, the applicant was transferred to Hubli from Mysore. The reason noted for non-consideration on 31.3.2005 is that he had worked at Bangalore from August 1994 to December 1999 excepting for 3 months of his stay at Hubli at the time of formation of the zone. To us, this does not appear to be a valid reason for the fact that the applicant was working in posts of some lower capacity from August 1994 till January 2002 at Bangalore and he was promoted to senior scale only on 8.1.2002 and was posted as DPO at Bangalore. It would also appear that at that time there was no vacancy at Bangalore because a more deserving request of one Shri Srinivasa Raghavan, respondent No. 3 in this O.A. was also under consideration. It was simply noted by the CPO in the file that the request was not "possible to be considered at this juncture". Now, from the averment of the respondents it is clear that they were aware of the request of the applicant for a posting to Bangalore, when he was deputed to Bangalore from Hubli for a short term leave vacancy from 25.7.2006 onwards.
11. Thus, even assuming that the request dated 3.8.2005 was lost while on its move from the table of General Manager to the desk of the concerned dealing Assistant, the respondents cannot take a stand that there was no request from the applicant for consideration when the impugned order was issued. Deliberately or otherwise the fact that the applicant's request for a posting to Bangalore was pending, was not brought to the notice of the appropriate authority when the posting against the vacancy which occurred from 1.9.2006 at Bangalore was under consideration.
12. The second ground taken by the respondents is that the applicant was sent for some 10 days of PRIME training at Baroda from 6.3.2006 to 17.3.2006 and his services were very much required at Hubli to complete the project of PRIME (pay roll related integrated module) at Hubli Workshop and the zonal headquarters office. It is not disputed that the applicant was recalled from leave and posted as DPO/PRIME with effect from 7.12.2005. When the respondents were very much aware of the fact that the applicant had made representations for a posting to Bangalore and there were officers who were posted to Hubli at a later date (as in the case of one Shri Balachander who was transferred to Hubli on completion of his tenure at Bangalore in October 2005 to accommodate respondent No. 3 at Bangalore on extreme compassionate grounds), the action of the respondents in deputing the applicant to Baroda oft 6.3.2006 for the training for a project related work at Hubli is debatable with regard to its wisdom/application of mind. After completing the training on 17.3.2006, on 25.4.2006, the applicant was brought back to Bangalore from the project against a leave vacancy which itself shows that respondents were not very keen for his continuation at Hubli to continue the project. The applicant continued in Bangalore for nearly 4 months in the leave vacancy and the work he was executing in Bangalore was not connected with PRIME. Whether the knowledge and proficiency acquired by the applicant in PRIME during a training of 10 days' duration, would have been corroded when he was kept away from it for nearly 4 months, immediately after completion of the training (specially in the context of a computer programme which one tends to forget in the absence of constant 'hands on' practice) is also a pertinent point to consider. Thus, the official respondents' argument that in the interest of service, that is, for implementing the project of PRIME, the service of the applicant is indispensable at Hubli does not also have much ground.
13. While going through the file produced by the respondents we noted that when the applicant was transferred from Mysore to Hubli on 31.3.2005, CPO had taken G.Ms.' approval on the ground that his transfer in the same capacity within a period of 2 years required the approval of the G.M. We wanted to know from the respondents whether there was any order from the Competent Authority that such approval was required for transfer of gazetted staff within a period of 2 years. The respondents have produced a Note on the subject matter of "transfer of SS & JS grade officers within South Western Railway" signed by the Secretary to GM/SWR dated 11th October, 2004 wherein it is slated that "G.M. desires that his personal approval be obtained before issuing transfer orders of JS/SS officers, who have put in less than two years of service at their present place of posting". Such an approval of G.M. was taken when respondent No. 3 was transferred on 26.10.2005. From a copy of the representation of respondent No. 4 dated 21.4.2006 produced by the respondents at the Bar (no such copy of the representation is seen in the file in which his transfer to Bangalore was considered) shows that 4th respondent was posted to senior scale after his training with effect from 15.11.2005 at Hubli. Thus, on 1.9.2006 respondent No. 4 had not completed 2 years in the senior scale post at Hubli and the personal approval of G.M. was necessary for effecting his transfer to Bangalore. However, a decision was taken at the level of CPO only and the case was not put up to the G.M. as requited and also as it was being done hither to. The respondent No. 4's own admission in his representation goes against the official respondents' submission that as the 4th respondent was posted to Hubli Stprn April 2005 he had spent longer period at Hubli than the applicant.
14. The official respondents' argument that, the applicant's children are more than 10 years of age and hence instructions contained in memorandum dated 12.6.1997 from the Department of Personnel and Training are not applicable to him is also not correct. In fact O.M. dated 12.6.1997 which was issued in pursuance of the recommendations of the Vth Pay Commission stipulates that "where posts at the appropriate level exist in the organisation at the same station, the husband and wife may invariably be posted together in order to enable them to lead a normal family life and look after the welfare of the children, especially till the children are 10 years of age". If the children are less than 10 years of age they should invariably be posted at the same station if posts are available. It is further reiterated that all Ministries/Departments should strictly adhere to the guide lines laid down in the O.M. dated 3.4.1986 for posting the Husband and Wife at the same station. Ministry of Railways have adopted the instructions contained in their Order No. (0)/III/98/PL/4 (Annexed to A4). In the said order it is slated that "Ministry of Railways have now decided that DOP&T's guidelines as laid down in their O.M. No. 28034/2/97-Estt.(A) dated 12.6.1997 (copy enclosed) should be followed mutatis mutandis in case of Groups A and B Railway Officers also, subject to posts at appropriate level being available at the relevant station and no administrative problem arising out of such posting". It is not the submission of the respondents that there is an administrative problem arising out of posting of the applicant at Bangalore where his wife is posted. In fact, the respondents themselves have posted him even on short term vacancy to Bangalore from 25.4.2006 (incurring expenditure by way of TA/DA) inspite of the fact that he was posted to Hubli for implementing the project with effect from 7.12.2005 and subsequently in March he was given a training in the relevant computer programme. All that we can discern from the file is that the applicant's case remained omitted while considering the filling up of vacancy that arose at Bangalore on 1.9.2006, for reasons best known to the official respondents. It was a factual omission for which the official respondents have no convincing defence, for, it cannot be said that they were not aware of the representation dated 23.3.2005 which was not favourably considered, as against which the applicant was transferred to Hubli from Mysore. The General Manager (respondent No. 1) had very much personally seen the representation dated 3.8.2005. However, in August, 2006 when the case was processed for posting an officer in the vacancy at Bangalore, neither the applicant's case nor that of the 4th respondent was put up to the General Manager by the CPO (2nd respondent) even though consideration of representations including that of the applicant required the approval of the G.M. The two requests that were put up to the CPO were that of respondent-4 who was posted in the post at Hubli only with effect from 15.11.2005 and that of Shri A. Balachander who was transferred from Bangalore on completion of tenure and posted to Hubli on 26.10.2005. Apparently, the applicant had spent more time than both the above officers at Hubli as he was posted there from 31.3.2005. The applicant is the senior most of the three pers6ns of the grade of SPO who were posted to Hubli and who had requested for transfer to Bangalore. The applicant's request is also the Oldest, as it was made oh 23.3.2005 and was on the ground that his wife was working in the same Department in Bangalore and the guide lines for posting Husband and Wife was approved by the Railway Board in pursuance of the recommendations of the Vth Pay Commission were applicable to him.
15. Though respondent No. 3 had filed a reply statement, during the hearing the applicant stated that he in fact does not have a claim against respondent No. 3. However, he had not filed any memo for deleting the name of the 3rd respondent from the list of respondents. The Counsel for the 3rd respondent argued that knowing fully well the condition of his client that he was posted to Bangalore on extreme compassionate grounds in connection with the Kidney transplant of his 9 years old son, the applicant had dragged him to Court. If the applicant felt that he had no claim against respondent No. 3, even at a date later than filing the O.A. he should have deleted the name of respondent No. 3 from the O.A. and also deleted the pleading against respondent No. 3. The Counsel contends that the applicant should be awarded exemplary cost for the heartless action in dragging respondent No. 3 to this Tribunal.
16. Counsel for respondent No. 4 argued that the applicant has no claim against the spotting of respondent No. 4 to Bangalore. Respondent No. 4 has not replaced the applicant and he was posted to Bangalore on the ground that he had 5 children, 3 daughters are of marriageable age and 2 sons are studying at Bangalore. From the submission made by respondent No. 4 we find that his request was not specific for Bangalore. He had requested for a posting to Mysore or Bangalore and his request was also made only on 12.4.2006 whereas the applicant's first request was made on 23.3.2005 and he repeated it on again on 3.8.2005 and 1.10.2005. It is admitted that the wife of respondent No. 4 is not a working woman and his case is not covered by the guide lines issued by the Ministry of Railways for posting husband and wife at the same station in case of Group 'A' and 'B' where All India -transfer liability is there.
17. For the reasons adduced in the above paragraphs we have come to the conclusion that the respondents committed a mistake/omission in not considering the applicant for transfer to Bangalore when a vacancy arose on 1.9.2006. His representations were very much available with them but the office noting from the lower level omitted to mention the same. There are more than half a dozen points in favour of the applicant to be considered by the respondents:
(a) Of the 3 persons of senior scale at Hubli who have requested for posting to Bangalore, the applicant's request is the oldest.
(b) Of the other 2 persons who had requested for Bangalore, Shri Balachander and respondent No. 4, Shri Balachander was posted to Hubli on completion of his tenure as DPO at Bangalore in October 2005, where as the applicant on his promotion to senior scale was posted at Bangalore only for a short period from 8.1.2002 to 1.4.2003 and 17.7.2003 and 24.11.2003 and respondent No. 4, on promotion to senior scale was posted to Hubli only on 15.11.2005; hence the applicant who joined at Hubli from April 2005, has the longest stay at the station.
(c) The applicant without any demur had obeyed all the six transfer orders within a period of 3 years and had gone on representing for a posting to Bangalore. Even when he was transferred to Hubli against his request for Bangalore on 31.3.2005 he obeyed the order without raising any objection.
(d) The general guide lines regarding posting of husband and wife though not statutory in nature are binding on the respondents if there are no administrative exigencies against the same. In the judgment in O.A. No. 383/2006 Mahesh Joshi v. Union of India decided on 2.2.2007 by this Bench of the Tribunal, after discussing various decisions of the Apex Court and High Courts of Kerala and Madras on the subject matter of transfer, had observed: "It is also a settled position that while ordering transfer the authorities must keep in mind the guide lines issued by the Government on the subject and must be given effect to except in cases where public interest or administrative exigencies demand otherwise".
(e) The very action of the respondents in posting the applicant for short term vacancies from Hubli to Bangalore from 25.4.2006 by paying him huge amount of T.A. and D.A. shows that the applicant's posting to Bangalore was very much in public interest and administrative exigency.
(f) Posting of respondent No. 4 against the vacancy at Bangalore on 1.9.2006 was against the general instructions of the G.M. for his personal approval was not taken though it was a case where a senior scale officer was transferred within 2 years in the same capacity. The impugned order by CPO was without authority.
(g) We also note that the impugned order is wrongly worded in as much as there was no question of transferring the applicant back to Hubli as he was only continued against leave vacancy at Bangalore and was never transferred from Hubli to Bangalore and hence the question of his transfer, as mentioned in the impugned order does not arise at all.
(h) Most importantly, the request of the applicant was omitted to be put up for consideration.
(i) After his promotion to senior scale in January 2002, the applicant had intermittently worked for a period of less than 2 years only (including period of deputation) at Bangalore in the capacity of SPO.
18. In the result, we quash and set aside the impugned order dated 1.9.2006 in as much as the applicant and respondent No. 4 are concerned, that is, the order at item Nos. 1 and 4 of the impugned order; the official respondents 1 and 2 will consider afresh the question of filling up of the vacancy of SPO at Bangalore in accordance with the guide lines regarding Transfer and also the various observations that we have made in Paragraphs 7 to 15 above. The respondents will take a decision in the matter of transfer within a period of 3 weeks from the date of receipt of a copy of this order.
19. Regarding the submission made by the Counsel for respondent No. 3 we find that it merits consideration. The applicant should never have dragged respondent No. 3 to this Tribunal, later, as admitted by him. He had no grievance against posting of respondent No. 3 at Bangalore. For this, the applicant has to bear the cost for defending O.A. as far as respondent No. 3 is concerned. We order the applicant to pay a sum of Rs. 2,000/- to respondent No. 3 as the cost incurred by him in defending his case.