Central Administrative Tribunal - Delhi
Smt. Baby Chauhan vs Union Of India Through Its on 23 September, 2013
Central Administrative Tribunal Principal Bench OA No.1732/2012 New Delhi, this the 23rd day of September, 2013 Honble Mr. Justice Syed Rafat Alam, Chairman Smt. Baby Chauhan w/o Sh. Rajesh Chauhan R/o 1183, Sector No.8, R. K. Puram, New Delhi 110 022. Applicant. (By Advocate : Shri M. L. Chawla with Sh. G. D. Chawla) Vs. 1. Union of India through its Cabinet Secretary, HQ, SFF, Cabinet Secretariat, Rastrapati Bhawan, New Delhi. 2. Directorate General of Security Office of IG, SFF, East Block-V, Level-IV, R. K. Puram, New Delhi 110 066. 3. The Special Security ARC, HQ, CGO Complex, New Delhi. 4. Inspector General (SFF) SFF HQ, New Delhi. 5. The Commandant, Directorate General of Security, HQ, Estt. No.22, C/o 56, APO, Chakrata. Respondents. (By Advocate : Sh. A. K. Singh) : O R D E R (ORAL) :
This is an Application under Section 19 of the Administrative Tribunals Act, 1985 for quashing of the order dated 26.04.2012 transferring the applicant from Delhi to Chakrata.
2. Counter and rejoinder have been exchanged between the parties and as agreed by the learned counsel for the parties, the matter is taken up for final disposal at this stage.
3. It appears that the applicant is aggrieved by the order of the Lt. Col./Assistant Director (AG) dated 10.4.2012 whereby her request for transfer on compassionate ground to Delhi is rejected and she was further directed to resume duty at HQ Est. No.22 without further delay, which is communicated to her vide order dated 26.4.2012. It is these two orders which are impugned in the Application with the further prayer commanding the respondents to re-transfer to SFF HQ. or to repatriate to parent department i.e. ARC under DG(S) Cabinet Secretariat. Further prayer is made to direct the respondents to grant leave due of the kind or leave not due on medical ground subject to future earning of leave. The prayers made in the Application are extracted as under:-
8.1. To quash and set aside the impugned order dated 26-04-2012 (A-1) and direct the respondent for re-transfer to SFF HQ failing which repatriated to parent department i.e. ARC under DG(S) Cabinet Secretariat;
8.2 To direct the respondents to grant leave due of the kind or leave not due on medical ground subject to future of leave;
8.3 To pass any other order or orders, direction or directions as deemed fit in the facts and circumstances of the case so as to meet the ends of justice;
8.4 To allow this OA with heavy cost, because the applicant has been dragged into avoidable litigation;
4. Learned counsel for the applicant vehemently contended that the applicant is medically unfit to discharge her duties at a high altitude at Chakrata. Besides that her husband is posted in Delhi and, therefore, keeping in view the policy that husband and wife should be posted together, the respondent ought not to have transferred the applicant. It is further submitted that there are some employees who are posted in Delhi since last 30 years and have not been transferred. It is also submitted that the applicant is holding the post of UDC and normally UDCs/Assistants are not transferred without there being any compelling reasons for such transfers.
5. On the other hand, learned counsel for the respondents opposed the prayer and submitted that all medical facilities are available at Chakrata. He further referred to various paragraphs of the counter affidavit and submitted that the applicants entire service period has been spent in Delhi except for a short spell of 5 months 15 days i.e. from 20.09.2001 to 4.03.2002 at Est. No.22 and now 72 days at the present place of posting i.e. at Chakrata pursuant to the impugned order. He further submits that after joining at Chakrata, the applicant worked only for 72 days and then proceeded on CCL and has not joined thereafter.
6. I have considered the submissions made on both sides and also perused the pleadings of the parties and the documents appended thereto.
7. It is well settled legal position that transfer is an incident of service and normally the same cannot be interfered by the Court except on three conditions viz. (i) where the order of transfer is in violation of any statutory provision; (ii) it amounts to reduction in rank or loss of emoluments and (iii) it suffers from the vice of malafide. In the instant case, it is not in dispute that the applicant holds a transferable post. It is an admitted position, that except for a short spell of five months and 15 days, the applicant has remained in Delhi only. However, during the course of arguments, learned counsel assailed the impugned order mainly on three grounds: firstly health of the applicant does not permit her to work at high altitude because of Osteoarthritis in both knee joints and as a result of which it is difficult for her to climb stairs or undulating mountains and thus she is not in a position to serve at hilly areas; secondly, her family would be dislocated as they are residing in Delhi and lastly on the ground that the applicant being junior employee in the establishment, should not have been picked up for transfer leaving others and, therefore, the action of the respondents being discriminatory and arbitrary cannot sustain.
8. There is no force in the submissions. It is averred in counter affidavit of Respondent Nos.1 to 5 that the applicant was appointed as LDC vide order dated 31.01.1990 (Appx B) with clear stipulation that she would be liable to serve in any part of India. Clause 3 of the Offer of Appointment reads as under:-
3. The appointment carried with it the liability to serve in any part of India. Pursuant to the above order of appointment, the applicant joined the post on 7.2.1990 as LDC at Aviation Research Centre, Headquarter, New Delhi, knowing fully well that she is liable to serve in any part of India. The applicant thereafter posted to HQ SFF, New Delhi on 30.08.1991.
9. It has been asserted in Para 3 of the counter affidavit of Respondent Nos.1 to 5 that the applicant stayed at HQ SFF, New Delhi for more than ten years which is longest stay vis-`-vis her colleagues. In rejoinder, the applicant has not denied the aforesaid statement. Therefore, the fact that she remained here for ten years, which is the longest stay at the Headquarter as compared to that of her colleagues, goes uncontroverted and, therefore, the submission that she has been meted to hostile discrimination and arbitrariness cannot be accepted. As noticed above, the applicant having accepted the condition in the offer of appointment to serve in any part of India cannot now claim that she being Class-III employee cannot be subjected to transfer and should be allowed to confine only at the headquarter, Delhi.
10. Now, coming to the submission that because of poor health, she is not in a position to serve at a high altitude, I find that the respondents in their counter affidavit have denied the claim of the applicant that Est. No.22 is located at high altitude area and it has been stated that Chakrata is located at 7000 feet and does not fall in the category of high altitude and only the places which are above 9000 feet from sea level are categorized as high altitude. It has also been stated in the counter affidavit that an employee posted at Chakrata gets an extra salary @ 12.5% of the basic pay as hardship allowance to compensate their hardship, besides facilities of mess and free ration. The statement that the applicant cannot climb stairs has also been denied in the counter affidavit by disclosing that in Delhi she resides on 1st floor which necessitates climbing the stairs and, therefore, she has to undertake stairs while going to her residence. It has also been stated in the counter affidavit that the applicant repeatedly making false statement wherefrom it is clear that she does not want to serve at any other place, except Delhi which would be in contravention to the terms and conditions mentioned in the order of appointment. It has further been averred in the counter affidavit that the claim of the applicant that she remained under treatment at different government hospitals is false as she had visited government hospitals very occasionally while visiting private clinics and practitioners most of the time thereby violating norms for a government servant; a government hospital exists in Chakrata, Special Frontier Forces hospital is also located at Chakrata to attend to the staff posted with Est. No.22 in cases of emergency but she never approached these hospitals. It clearly proves her intention of not joining her duties at HQ Est No.22 (Chakrata, Dehradun).
11. An additional affidavit has also been filed on behalf of the respondents, wherein, it has been asserted that adequate medical facilities are available at Chakrata Garrison. Special Frontier Force Hospital has the capacities of 105 beds and is functioning with an able staff of 04x medical specialists and 08x medical officers. Special Frontier Force Hospital has been efficiently providing round the clock medical covers to approx 6000 force members and civilians. In addition to the mentioned facilities the hospital also has the provision for engaging the service of a Gynecologist and Orthopedic Surgeon as and when required. The above fact has not been denied in the rejoinder of the applicant.
12. It is true that as far as possible an endeavour may be made to post husband and wife, if working in the same organization and posts are available at one place, at the same station. In the instant case, as has been asserted in the counter affidavit which has not been controverted that the applicants husband is working in SSB HQ, New Delhi under the Ministry of Home Affairs whereas the applicant is working under a different administrative department i.e. Cabinet Secretariat.
13. It is equally well settled position that if an employee facing with some hardship because of the order of transfer or the same is in violation of some guidelines or executive instructions, the appropriate course for such employee is to make a detailed representation before the controlling authority vindicating his/her grievances which may be considered and disposed of by the controlling authority expeditiously but that cannot be a ground to quash the impugned order of transfer.
14. The Apex Court in para 3 of the judgment in the case of Bank of India v. Jagjit Singh Mehta reported in AIR 1992 SC 519 has held as under:
3. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India, Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the Officers' grade and thereafter he seeks to be relieved of that necessary incident of All India Service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees. (emphasis supplied)
15. The Apex Court in Union of India and Others Vs. S. L. Abbas [AIR 1993 SC 2444] observed in para 10 of the judgment that Tribunal can quash the order of transfer, if any of the administrative instructions/ guidelines are not followed, much less can it be characterised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.
16. In the matter of Mrs. Shilpi Bose and others vs. State of Bihar and Others [AIR 1991 SC 531], in para 4 of the judgment, the Apex Court has held as under:-
4. In our opinion, the courts should not interfere with a transfer order which are 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 over looked these aspects in interfering with the transfer orders.
17. In case in hand, it is not the case of the applicant that the order of transfer is in contravention of any statutory provisions though it has been said that she has been singled out and a bald allegation of malafide has been made but the applicant has not discharged the onus of proving the same and thus the same cannot be accepted.
18. In view of the exposition of law and also in the facts of the case and considering the submissions made before me, I do not find any reason to quash the order of transfer. However, in respect of the hardship which has resulted on account of transfer or on the principle that as far as possible husband and wife may be given posting together and for grant of leave, the remedy for the applicant as observed by the Apex Court in Bank of India v. Jagjit Singh Mehta (supra) is to move the departmental authorities. Therefore, considering all aspects of the matter, I am of the view that it would be appropriate to dispose this matter with the liberty to the applicant to move representation for posting/transfer and also for grant of leave before the appropriate authority which needs to be disposed of by a speaking order. The Application, therefore, stands disposed of at this stage with the direction that in the event the applicant makes such representation indicating the hardship which she is facing on account of hard posting at Chakrata and also for grant of leave if any due and permissible under law, the same may be looked into and examined by the concerned authority and appropriate decision be taken expeditiously, preferably within six weeks from the date of filing of such representation without being influenced with the observations made in this order.
19. With the above order, the Application stands finally disposed of, but without costs.
(Syed Rafat Alam) Chairman /pj/