Central Administrative Tribunal - Delhi
Uma Kanaujia vs Defence Production on 28 November, 2024
1
O.A. No. 2018/2023
Item No. 58 (C-4)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2018/2023
Reserved on: 07.11.2024
Pronounced on: 28.11.2024
Hon'ble Mr. Manish Garg, Member (J)
Uma Kanaujia,
W/o Vijay Kumar Kanaujia,
Aged about 51 years,
Permanent resident of: 5/227, Viramkhand, Gomti Nagar,
Lucknow, Uttar Pradesh,
Presently residing at 533, DDA Flats, First Floor, Gali no. 19,
Madangir, New Delhi 110062.
Email:[email protected],
Contact: +91-8299148347.
....Applicant
(By Advocate: Ms. Mahima Rathi)
VERSUS
1. Ministry of Defence, Through Secretary, Defence Production
Department Room No. 136, South Block, New Delhi-110001.
2. Directorate General of Quality Assurance
Ministry of Defence, Through its Director General, HQ Room No.
105. B' Block. Africa Avenue, Sarojini Nagar, New Delhi-110023.
3. Additional Directorate General of Quality Assurance
(Electronics) (Ministry of Defence) Through its Additional
Director General Defence Offices Complex, 5th Floor B' Block,
Africa Avenue, Sarojininagar, New Delhi-110023.
4. Senior Quality Assurance Establishment (Electronics)
Ministry of Defence, through SQAO (Snr. Quality Assurance
Officer), 19/13, National Stadium, New Delhi-110001.
.... Respondents
(By Advocate: Ms. Mrinalini Khatri)
2
O.A. No. 2018/2023
Item No. 58 (C-4)
ORDER
The present OA has been filed by the applicant, seeking the following reliefs:
"(A) Quash/Set aside Posting/Transfer Order dated 07.07.2023 and ISM dated 11.07.2023.
(B) Pass any other or further orders as this Hon'ble Tribunal deems fit and proper."
2. Narrating the facts of the case, learned counsel for the applicant submitted as under:
2.1. Earlier the applicant was transferred vide order dated 13.04.2023 from Delhi to Jabalpur by following the Rotational Transfer Policy 2023. She represented against the said transfer order seeking deferment of transfer for 6 months, giving the reason that her husband was suffering from CAD (Coronary Arteries Disease) and he was being treated in MAX Hospital, Saket, New Delhi. The representation of the applicant was considered. However, the respondents did not accept her prayer and, therefore, the applicant joined at Jabalpur after availing 10 days joining time.
2.2. Subsequently, the applicant came to know that she would be considered for promotion because the provisional seniority roll of the Technical, Drawing and Industrial Office Staff was released on 28.04.2023.3 O.A. No. 2018/2023
Item No. 58 (C-4) 2.3. As per the clause 10(b) of the transfer policy dated 24.11.2016 circulated by the respondents, the applicant expected that she would get promoted to next rank within one year and because of that she would not be transferred. Clause 10(b) of the said policy reads as under:-
"10(b) Officials likely to be promoted within 01 year can be temporarily exempted from RTP, for being transferred alongwith promotion, if they have completed the prescribed tenure at the existing station. Similarly, personnel may be stationed in anticipation of promotion."
2.4. The applicant made a representation on 03.05.2023 and the respondents vide order dated 05.06.2023 acceded to her request and exempted her from transfer for one year. However, suddenly on 07.07.2023 the respondents cancelled the exemption order and again posted her to Jabalpur vide order dated 07.07.2023 as ordered earlier vide order dated 13.04.2023.
2.5. On 11.07.2023, the respondents have asked the applicant to intimate her date of relieving. On 12.07.2023, the respondents issued the relieving order indicating that she will be relieved on 14.07.2023.
2.6. Learned counsel for the applicant further stated that in pursuance with the cancellation of the Rotational Transfer Policy vide 05.06.2023, the applicant has paid tuition fee for her son for class 11th and also coaching fee 4 O.A. No. 2018/2023 Item No. 58 (C-4) to the coaching centers in July 2023. In view of this, learned counsel for the applicant submitted that the applicant will suffer immensely because of the family circumstances as well as the education of her son, if she forced to join at Jabalpur.
2.7. Learned counsel for the applicant further submitted that while the applicant was denied transfer to Kanpur (her first choice of station), an employee of another establishment {CQA(MET)} was transferred to Kanpur by the respondents which shows that there is requirement of manpower at Kanpur.
3. Vide order dated 13.07.2023, this Tribunal as an interim measure stayed the operation of the impugned transfer orders dated 07.07.2023 and 11.07.2023. 3.1 The Order dated 22.11.2023 of this Tribunal, reads as under:
"Vide this MA, the applicant is seeking certain additional documents precisely the following documents:
"i. List of AE(QA)s who have completed 5 postings at 5 different offices (excluding attachments) at different stations in their service of 25 years.
ii. Document showing the approval for constitution of SQAE(L) Jabalpur as sub- AHSP.
iii. Document showing the increase in workload requirements especially the documents between 05.06.2023 and 07.05.2023.5 O.A. No. 2018/2023
Item No. 58 (C-4) iv. Names of all officers whose transfer orders were issued/amended after the prescribed cut-off date of 30.06.2023.
v. List of other AE(QA)s posted at SQAE(L) Jabalpur to meet the alleged sudden increased demand.
vi. Document substantiating the reasons why the Applicant was not given her first choice of station i.e. Kanpur under RTP-2023, like in RTP-2022."
The applicant is not entitled to seek these documents by virtue of this M.A. The grievance of the applicant is about her transfer and she has questioned the authority about entire functioning of the respondents' department. In fact, seeking these documents is not only highly unreasonable but also amounts to delaying the adjudication of the OA in which the pleadings are complete. Moreover, the applicant is also enjoying the benefit of stay against the impugned transfer order. Learned counsel for the applicant is arguing that she has given sound reasons for seeking these documents in Para No. 2 of the MA, which reads as under:
"a) In view of manifold increase in workload in SQAE(L), Jabalpur which has been upgraded as Sub-AHSP as well as existing acute deficiency in the grade of AE(QA), an acute deficiency has arisen.
b) That the exemption from RTP-2023 granted to the Applicant in June 2023 was revoked/cancelled in view of the increase in the work load."
I reject this argument outrightly as the applicant is not in a position to question the functioning of the respondents' authority. We also cannot allow this MA to delay the proceedings. Accordingly, the MA is dismissed. However, the learned counsel for the applicant shall be at liberty to make a mention of any important document during the course of arguments at the time of hearing. MA No. 4145/2023 Vide this MA, the respondents seek vacation of the interim order dated 13.07.2023 vide which impugned transfer order is stayed. Since, pleadings in the OA are complete, this M.A. can be heard with the O.A. itself on 07.12.2023."
3.2 This Tribunal vide order dated 03.05.2024 directed the respondents to decide the options submitted by the applicant as per their RTP Policy. At the said juncture, the 6 O.A. No. 2018/2023 Item No. 58 (C-4) learned counsel for the respondents stated that the options submitted by the applicant have been received by them and the same is pending under consideration. She further stated that the department will take a decision on the said options in the next four weeks. Hence, the matter was adjourned to 04.07.2024.
3.3. Pursuant to the order(s) passed by this Tribunal, the applicant was allowed to give choice(s) in the current cycle of transfer and after consideration, her transfer has been ordered Vide Office Order dated 07.05.2023.
4. Per contra, learned counsel for the respondents submitted that the applicant is due for transfer under Rotational Transfer Policy. Consequently, she was transferred to one of her choice stations, i.e., SQAE(L), Jabalpur vide order dated 13.04.2023. After issue of the posting order, she requested the department to exempt her from RTS-2023 on the ground of likelihood of her promotion to the post of JSO. The competent authority approved her exemption from RTS-2023 vide order dated 05.06.2023 considering her being in promotion zone for the post of JSO of which a case of demerger from the post of SSO-II was in the pipeline. However, this Tribunal vide order dated 24.02.20223 in OA No. 3813/2022 stayed the 7 O.A. No. 2018/2023 Item No. 58 (C-4) process of demerger of the post of JSO from SSO-II. Thereafter, an exigency of immediate posting of AE(QA) to SQAE(L), Jabalpur had emerged due to manifold increase in workload. Consequently, the competent authority cancelled the order dated 05.06.2023 towards applicant's exemption from Rotational Transfer vide order dated 07.07.2023.
4.1. Learned counsel for the respondents further submitted that the applicant asked her exemption for transfer on the ground of her husband's illness. As per an official request of transfer, on ground of medical, the medical certificate from a competent medical authority not less than the Head of the Department must accompany the application which is not produced or attached with the present OA. Hence, the same is not yet considerable.
4.2. Further, learned counsel for the respondents submitted that the Department has always addressed applicant's request for compassionate posting, posting to choice station and exemption from RTS. The Department posted the applicant to DS Cell, Kanpur on compassionate ground in 2009. Apart from her posting on compassionate ground in 2009, she was posted to one of her choice stations i.e. Delhi under RTS-2017. After completion of 8 O.A. No. 2018/2023 Item No. 58 (C-4) more than 05 years of service at Delhi, the applicant was granted an exemption of 01 years from RTS-2022 on educational ground of her son studying in class X. Hence, applicant was transferred to SQAE(L), Jabalpur under RTS- 2023. She again requested the department to exempt her from RTS-2023 on the ground that she was likely to be promoted to the post of JSO within 01 year. The Competent authority had approved her exemption for one more year and applicant was exempted from RTS-2023 for one more year. However, In between, DQA(R&S) projected a requirement of 23 posts of AE(QA) for one of its key Establishments i.e. SQAE(L), Jabalpur, commensurate with manifold increase in workload in the Establishment due to its up-gradation as Sub- AHSP. It was also conveyed that SQAE(L), Jabalpur was facing an acute deficiency of manpower especially AE(QA), having a held strength of only 05 nos AE(QA) against the authorized strength of 17. SQAE(L), Jabalpur under DQA (R&S) has been upgraded as Sub-AHSP for electronics portion of all Weapon systems. SQAE(L), Jabalpur has been entrusted with the complete electronics workload which was being handled by various electronic AHSP. In addition, SQAE(L) is also a nodal agency for QA of electronic QA for the whole central India. 9 O.A. No. 2018/2023 Item No. 58 (C-4) In view of manifold increase in workload in SQAE(L), Jabalpur which has been upgraded as Sub- AHSP as well as existing acute deficiency in the grade of AE(QA), an exigency of immediate posting of AE(QA) to SQAE(L), Jabalpur had emerged. Keeping in view the absolute necessity of posting of AE(QA) due to deficiency and manifold workload in SQAE(L), the Competent authority cancelled exemption of one year from RTS-2023 granted to the applicant in order to restore her transfer to SQAE(L), Jabalpur under RTS-2023 vide posting order. Hence, a transfer made in organizational interest cannot wait outcome of a sub judice matter. Her exemption has been reviewed by the Competent Authority based on administrative constraints of the organization.
5. Heard learned counsel for the applicant and perused the pleadings available on record.
6. ANALYSIS :
6.1. A perusal of the pleadings reveals that the posting profile of the applicant during her service has been as under:
Past Posting Profile Service
Station Post From To rendered
in the
station
10
O.A. No. 2018/2023
Item No. 58 (C-4)
SQAE (L) C/M- 12 Aug 08 Feb 2002 04 and
Jabalpur II 1997 Half years
approx
SQAE (L) C/M- 11 Feb 06 Sep 2003 01 and
Wing II 2002 half years
Lucknow approx
SQAE (L) C/M- 17 Sep 12 Apr 2004 06 months
Jabalpur II 2003 approx
HQ DQA C/M-I 23 Apr 19 June 05 years
(L) 2004 2009 approx
DS Cell A/F 29 June 05 June 08 years
Kanpur 2009 2017 approx
SQAE (L) AE 15 June Till date 07 years
New (QA) 2017 approx
Delhi
6.2. The applicant was posted to DS Cell, Kanpur before being moved to SQAE (L), New Delhi and has stayed at Kanpur for 8 years instead of normal tenure of 05 years.
She has moved from Kanpur only after the direction of Allahabad Bench of this Tribunal in OA No. 516/2016. 6.3. Records reveal that vide this Tribunal order dated 11.12.2023, the respondents were directed to allow the applicant to give her option in the current cycle of transfers. Her option for rotational transfer 2024 has been considered by the HQ DQAL and she has been posted to SQAE (L), Jabalpur which was her second choice of station. The application of the applicant for exemption under Children education ground was not accepted as she has already availed exemption during RTS-2022. 11 O.A. No. 2018/2023 Item No. 58 (C-4) 6.4. The contention of the applicant qua Mr. Akhilesh Sharma, AE(QA) cannot be accepted as Mr. Akhilesh Sharma has already been posted to SQAE (L&S) Chandigarh in RTS-2024. Further, it is also a fact that no employee of Electronics Directorate has been posted to Kanpur as there was no vacancy.
6.5. It is also a fact that despite the decision being taken by the Competent Authority regarding the choice of posting of the applicant, she is repeatedly submitting application one after another to delay her movement in spite of the fact that the SQAE (L) Jabalpur is presently facing heavy workload and requires manpower immediately. 6.6 In Civil Appeal No. 4129 OF 2024 (Arising out of Special Leave Petition (C) No. 22074 OF 2023) Sri Pubi Lombi Vs The State Of Arunachal Pradesh & Ors. decided on 13.03.2024, the Apex Court observed as under
:-
"I9. n the case of Union of India and others Vs. S.L. Abbas; (1993) 4 SCC 357, it is clearly observed by this Court that the scope of judicial review is only available when there is a clear violation of statutory provision or the transfer is persuaded by malafide, non-observation of executive instructions does not confer a legally enforceable right to an employee holding a transferable post. The relevant paragraph reads as under:
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere 12 O.A. No. 2018/2023 Item No. 58 (C-4) with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject........" 9.1 Further, following the footsteps of S.L. Abbas (supra) this Court in the case of Union of India and another Vs. N.P. Thomas; 1993 Supp (1) SCC 704 held that the interference by the Court in an order of transfer on the instance of an employee holding a transferrable post without any violation of statutory provision is not permissible. 9.2 This Court further curtailed the scope of judicial review in the case of N.K. Singh Vs. Union of India and others; (1994) 6 SCC 98 holding that the person challenging the transfer ought to prove on facts that such transfer is prejudicial to public interest. It was further reiterated that interference is only justified in a case of malafide or infraction of any professed norm or principle. Moreover, in the cases where the career prospects of a person challenging transfer remain unaffected and no detriment is caused, interference to the transfer must be eschewed. It is further held that the evidence requires to prove such transfer is prejudicial and in absence thereof interference is not warranted. The law reiterated by this Court is reproduced, in following words: -
"9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset.
XXX XXX XXX "23. .......Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated."
"24....Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and 13 O.A. No. 2018/2023 Item No. 58 (C-4) interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill- advised."
9.3 The issue involved in the present case is somewhat similar in the case of Mohd. Masood Ahmad Vs. State of U.P. and others; (2007) 8 SCC 150 wherein this Court in paragraph 8 has observed as thus: -
"8. ..... In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee......"
9.4 It is not tangential to mention that this Court in the case of State of Punjab Vs. Joginder Singh Dhatt; AIR 1993 SC 2486 observed as thus:
"3........It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting........."
9.5 It is also imperative to refer the judgement of this Court in the case of Ratnagiri Gas and Power Private Limited Vs. RDS Projects Limited and Ors.; (2013) 1 SCC 524 where it reiterated one of the pertinent principles of administrative law is that when allegations of malafide are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer. The relevant excerpt is reproduced as thus:
"27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned........"
10. In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. In the sequel of the 14 O.A. No. 2018/2023 Item No. 58 (C-4) said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India." 6.7 In recent decision arising out of Civil Appeal No. OF 2024 (@ Petition(s) for Special Leave to Appeal (C) No(s).13070- 13075/2022) titled The Tamil Nadu Agricultural University & Anr.Etc. Vs R. Agila Etc. decided on 20.08.2024, the Hon'ble Supreme Court reiterated as under :-
"3. It is established as a part of service law jurisprudence that transfer is an exigency of service. As such, when a person becomes an employee of the Government, the incidence of transfer becomes inherent in the terms of service unless it is specifically barred under certain provisions governing conditions of service.
4. Under such terms and conditions of service, an employee has no right to remain absent or refuse to join the new place of transfer once relieved from their current place of posting. The employee is entitled to avail all available remedies for redressal of grievances, but it does not entitle them to not comply with the transfer orders. The employee is well within his rights to join the transferred place of posting and still continue to avail the remedies available under the law for redressal of his grievances against the transfer.
5. The focal consideration behind it is that the intent of transfer is to fill up certain vacancies at the new place of posting and when the transferred employees fail to join such posts, the said vacancy would continue and the goal of providing optimal service at full capacity remains defeated. An even worse situation would arise when the authorities, while the challenge to such transfer is underway, would have to employ other individuals to fill up such vacancies and has to ultimately spend from both the pockets by providing salary to the employee who is actually delivering such service as well as to the employee who has remained absent from service unauthorizedly. It cannot be ignored that such a situation would result in nothing but burning a hole in the pocket of public exchequer, lead to excessive financial burden on the Government institutions, and would fundamentally jeopardize public interest.15 O.A. No. 2018/2023
Item No. 58 (C-4)
6. It is not uncommon to see employees who challenge such orders of transfer before various forums, extending the litigation to several years, while choosing to not join the service and still seeking full salary, and often citing medical conditions as a ground for such inability to join. It is of utmost importance that, while the legal challenge runs its course, the needs of administration are treated paramount in comparison to the inconvenience faced by the employees in cases of transfer. In this regard, the Government employers should also take stern measures against such employees who fail to join the new places of posting without any rationale or an order of stay being in place.
7. We also find it relevant to quote here a judgment of this Court on the same subject in Tushar D. Bhatt v. State of Gujarat, (2009) 11 SCC 678 "16. The legal position has been crystallised in a number of judgments that transfer is an incidence of service and transfers are made according to administrative exigencies.
17. In the instant case, in the entire tenure of more than 18 years, the appellant was only transferred twice. The appellant's transfer order cannot be termed as mala fide. The appellant was not justified in defying the transfer order and to level allegations against his superiors and remaining unauthorisedly absent from official duties from 11-10-1999 to 27-4-2000 i.e. more than six months. In the interest of discipline of any institution or organisation such an approach and attitude of the employees cannot be countenanced.
18. In Gujarat Electricity Board v. Atmaram Sungomal Poshani [(1989) 2 SCC 602 : 1989 SCC (L&S) 393 : (1989) 10 ATC 396 : AIR 1989 SC 1433] this Court had an occasion to examine the case of almost similar nature. This Court observed as under: (SCC p. 607, para 4) "4. ... Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the public servant concerned must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to 16 O.A. No. 2018/2023 Item No. 58 (C-4) disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.""
6.8. Applying the above ratio laid by the Apex Court in the matter of transfer/choice of posting to the facts of the present case, following points can be culled out from the pleadings:-
(i) The applicant has concealed the fact-um of filing OA before the Allahabad Bench of this Tribunal wherein the prayer seeking transfer to Kanpur was dismissed in OA No. 516/2016.
(ii) The applicant has already availed the benefit of exemption as the Competent authority approved her request for exemption from RTS -2022.
(iii) The anticipated promotion cannot be a ground of exemption from transfer, particularly when, the applicant has already availed the benefit of RTS-2022 thus, clause 10(b) of the transfer policy dated 24.11.2016 cannot apply in the facts of present case.
(iv) The transfer is an incidence of service and depends on each individual's circumstances. The 17 O.A. No. 2018/2023 Item No. 58 (C-4) choice of posting is not a matter of right but a prerogative in administrative domain. 6.9. In W.P.(C) 8899/2023 & CM. APPLS. 33633-34/2023 titled Nirmala Devi Union Of India Through Its Secretary & Ors decided on 3.10.2023, the Hon'ble High Court of Delhi had observed as under :-
"9. Respondents have been indulgent enough in accommodating the request of the petitioner in the year, 2021 till March, 2023.
10. Petitioner is a member of the Force and transfer and posting is an incidence of service. Being a member of the Force, the individual cannot seek to be posted at a particular location. It is the competent authority, which is cognizant of the requirements of the Force as well as the availability of sufficient man power and is empowered to take a decision with regard to posting of individual in the interest of the Force.
11. Entertaining a petition in a routine manner interdicting any posting is not healthy for the operation of a Force, particularly a disciplined force."
7. CONCLUSION :
7.1. In view of the above detailed discussion and settled proposition of law in the matter of transfer, we do not find any merit in the case of the applicant. Hence, the OA is dismissed. However, the applicant shall be given appropriate time of joining as per the rules.
7.2. Since there was stay on transfer by this Tribunal, no coercive action shall be taken against the applicant.18 O.A. No. 2018/2023
Item No. 58 (C-4) 7.3. Pending MAs, if any, shall also stand disposed of. No costs.
(Manish Garg) Member (J) /as/