Central Administrative Tribunal - Delhi
Pawan Kumar vs National Technical Research ... on 18 December, 2014
Central Administrative Tribunal Principal Bench: New Delhi OA No.11/2014 Reserved on: 02.07.2014 Pronounced on:18.12.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Pawan Kumar S/o Late Sh. Hanumant Singh, R/o A-23, Sector 71, NOIDA (UP) 201 301. Applicant (By Advocate: Shri Ajesh Luthra) Versus National Technical Research Organization (NTRO), GOI, through 1. The Chairman, NTRO, Block-3, Old JNU Campus, New Delhi 110 067. 2. Centre Director, CMSS, NTRO Block-3, Old JNU Campus, New Delhi 110 067. 3. Controller (Administration), NTRO, Block-3, Old JNU Campus, New Delhi 110 067. 4. Director (Estt. & Pers.), NTRO, Block-3, Old JNU Campus, New Delhi 110 067. Respondents (By Advocate: Shri Rajesh Katyal) O R D E R By Dr. B.K. Sinha, Member (A):
The applicant by way of the instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 impugns the following orders of the respondent no.1:-
(i) 24th June, 2010 attaching the applicant to NTRO Unit at Bhuj to provide administrative and establishment support to expanding programme activities at the location;
(ii) Order dated 7th July, 2010 temporarily transferring the applicant to NTRO Unit Bhuj for 60 days with effect from the date of his assumption of duty at Bhuj;
(iii) Order dated 29th October,2010 transferring the applicant to Bhuj on regular basis; and
(iv) Order dated 11th November, 2013 rejecting the representation of the applicant dated 05.09.2012.
2. The applicant has sought the following relief(s):
(i) Call for complete records of the case and on scrutiny;
(ii) Quash and set aside the orders dated 24.06.2010, 07.07.2010, 29.10.2010 and 11.11.2013 for attachment/ posting, temporary transfer, regular transfer from NTRO, HQ, New Delhi to NTRO Unit Bhuj and decision for not acceding to the transfer from Bhuj to New Delhi as a choice posting after completion of prescribed fixed tenure of 02 years for all hard stations of NTRO on 12.09.2012 and even 03 years on 12.09.2013 placed at annexure A-1, A-2, A-3 & A-4 respectively.
(iii) Declare the fixed tenure at hard station Bhuj as 02 years which was prescribed as 03 years when it was categorized as a normal station along with Dehradun and was not declared a Hard Station along with Doomdoma & Numaligarh, as per NTRO Posting & Transfer Policy dated 30.03.2007, but after Bhuj was declared a Hard Station of NTRO vide corrigendum dated 16.07.2007 its tenure as per the law of equality was reduced to 02 years to be same as that of other hard stations of NTRO namely Doomdoma & Numaligarh.
(iv) Direct the respondents to review & revise NTRO posting & Transfer Policy dated 30.03.2007 to incorporate the change of status of Bhuj from normal station category having 03 years fixed tenure to the hard stations category having 02 years fixed tenure and other provisions regarding computation of tenure, compassionate cases, academic session, posting profile, length of stay etc. to make it comprehensive so as to reduce litigation in transfer matters in NTRO.
(v) Declare that the applicant is entitled to get a posting to the station of his choice i.e. NTRO, HQ, New Delhi where the vacancy of Deputy Director (Admn.) exists, after completion of prescribed fixed tenure of 02 years at all hard stations of NTRO.
(vi) Direct the respondents to transfer and post the applicant at NTRO, HQ, New Delhi where the vacancy of Deputy Director (Admn.) as well as work meant for the aforesaid post exist.
(vii) Allow the OA with exemplary cost in view of the fact that the applicant has been put to mental trauma due to adverse effect on his official status resulting in loss of his reputation, devastating effect on his career and untimely loss of his mother attributed to the inhuman attitude of the respondents since 2010.
(viii) Pass any further orders as this Honble Tribunal may deem fit and proper considering the peculiar facts and circumstances of the case
(ix) Grant such other and further relief as may be deemed fit in the interest of justice.
3. The case of the applicant is that he was directly recruited as Assistant Commandant in the Special Services Bureau (SSB) in the year 1998. The applicant was selected for the post of Assistant Director (Admn.) on deputation basis in response to an open advertisement in the year 2005 in National Technical Research Organization (hereinafter referred to as NTRO) and was entrusted with a number of sensitive assignments. He was absorbed into the respondent organization on permanent basis vide the order dated 21.06.2006 in recognition of the good services rendered by him. He was also given the charge of acting Director vide the order dated 11.04.2007. However, due to machinations of one KVSS Prasad Rao, Chairman, NTRO, a retired employee (on re-employment) Anup Kumar Chatterjee, who had earlier worked as Scientist E was given the charge of Director in violation of all norms and rules. The applicant submits that the said Anup Kumar Chatterjee wanted the applicant to be part of his vested interest and when the latter declined to be a party to his wrong doings he was perceived as a potential threat. The Chairman, NTRO KVSS Prasad Rao stood to superannuate w.e.f. 04.10.2010 following which the contract of Anup Kumar Chaterjee would also terminate in view of the irregularities pointed out by CAG (Audit). Therefore, the applicant alleges that the said KVSS Prasad Roa appointed one Lt. Commandant (Retd.) Manuj Modi a Scientist F on the post of Director (NGO) with the intention that he would be able to keep all the misdeeds of his predecessor KVSS Prasad Rao under wraps. Since the applicant was a straight forward person, who was prone to discharging his duties without fear or favour it was deemed necessary to get rid of him. He was, therefore, temporarily attached vide the impugned order at Annexure A-1 to Bhuj w.e.f. 24.06.2010 which was subsequently converted into temporary transfer and after relieving he was made to join at Bhuj on 10.09.2010 which he did on 13.09.2010. The applicant submits that he made representation dated 15.09.2010 seeking recall of his temporary transfer from Bhuj to New Delhi on medical grounds of self and wife which was followed up by yet another representation dated 12.10.2010. He further submits that none of the officers who had joined before or with him were transferred out in June, 2010 except for the applicant. The applicant further alleges that despite the fact that he was posted as Deputy Director to look after the administration of NTRO at Bhuj, a Zonal officer, subordinate to him, one R.C.G. Khatri, STO was placed in-charge of establishment at Bhuj in order to humiliate and take vengeance from the applicant. During the course of his posting there, the applicants mother suffered a brain stroke which necessitated his remaining on leave for some time.
4. It is the case of the applicant that his posting at Bhuj was a fixed tenure posting which has been categorized as one of three years when it was a normal posting. It had not been declared as hard station along with Doomdoma & Numaligarh. It was subsequently declared a hard station at par with Doomdoma & Numaligarh vide corrigendum dated 16.07.2007 and thereby the fixed tenure was reduced to two years. On completion of his tenure, the applicant submitted another representation dated 05.09.2012 that he should be transferred back to Delhi, a desired station as permitted under the policy dated 30.03.2007 [Annexure A-27 at page 174 of the paper book].
5. Dissatisfied with the conduct of the respondents, the applicant approached this Tribunal by filing OA No.4226/2012 which was disposed of in limine directing disposal of the representation of the applicant dated 05.09.2012.
6. The respondents have issued OM dated 1.1.2013 in compliance with the Tribunals order stating that the applicant had remained on leave during his period of posting at Bhuj for a total number of 323 days and that completion of ten years at a station did not entitle the incumbent with an automatic transfer and his transfer is dependent upon the exigency of the circumstances. Therefore, the case of the applicant was rejected. The applicant is against this order before this Tribunal in the instant OA.
7. The applicant submits that as directed by the Honble Supreme Court in the case of S.C. Saxena versus Union of India & Others [2006 (9) SCC 583], he has obeyed the transfer order by joining Bhuj on 13.09.2010. However his transfer to Bhuj was illegal in terms of the orders of the Honble High Court of Delhi in the case of Raj Kumar Jha versus Union of India [WP(C) No.6313/13 decided on 23.08.2013 (para 16)] that a person could not be transferred to a non-existent post. The applicant being in the rank of Deputy Director could not have been transferred to Bhuj where no post existed for the same. The applicant also alleges discriminatory treatment on part of the respondents in violation of Articles 14 and 16 of the Constitution of India, as another similarly placed officer one S.S. Bhaduria was also transferred to Dehradun vide orders dated 24.06.2010 and 07.07.2010 by which the applicant was transferred to Bhuj, but neither the said Bhaduria joined Dehradun nor his transfer order has been cancelled. Likewise, the applicant was singled out for transfer while others who joined with him or earlier were allowed to continue at the station where they were posted. The applicant has also alleged mala fide against the respondents in this regard. Further, he has also taken the plea that where children of an employee are studying should be given due weightage on the basis of the decision of the Honble Supreme Court in the case of Director of School Education versus O. Karuppa Thevan [1994 Supp. (2) SCC 666]. There was no exigency of duty involved as no administrative work was ever taken from him. The learned counsel appearing for the applicant strongly attacked the principle of excluding the days spent on leave during his tenure. Under the rules, the applicant is entitled to a choice posting on completion of a hard tenure as per para II of the NTRO posting and transfer policy dated 30.03.2007 which provides that postings to and from the hard stations are to be effected annually, preferably in the beginning of the year and choice of posting may be obtained from all eligible personnel six months before completion of their tenure at hard stations. The learned counsel for the applicant has heavily attacked the initial transfer order as punitive.
8. The respondents have submitted a counter affidavit wherein they submit that the applicant was appointed to the post of Deputy Director though he did not meet the norms of holding substantive post. They have also alleged that on 14.06.2010, the office of the applicant was raided and incriminating documents were found in his possession for which departmental action is being taken separately against him and a chargesheet has been issued on 21.09.2011 for violation of departmental security instructions and Rule 3(1) of the CCS (Conduct) Rules, 1964. It is submitted that consequent upon his transfer to Bhuj vide order dated 24.06.2010, the applicant joined Bhuj on 13.09.2010 after taking 68 days of leave. As per the transfer policy dated 30.03.2007 tenure at Bhuj is 3 years. Periods of leave etc. in excess of 15 days per year are not to be counted towards tenure as per extant instruction of the Government of India. Therefore, the contention of the applicant that tenure at Bhuj is 2 years is patently false and misleading. The respondents further submit that the directives of this Tribunal vide order dated 01.10.2013 to consider the representation of the applicant dated 05.09.2012 have been fully complied with vide the impugned order dated 1.11.2013. The respondents reiterate that the applicant has spent 323 days of leave during his tenure. Hence, this period of absence has to be excluded and reckoned in his tenure, as per which he is yet to complete his tenure of three years at Bhuj to take care of several strategic projects of national importance as the place is located at a few kilometers away from the Pakistan border.
9. The applicant has also filed a rejoinder application reiterating the pleas raised in the Original Application.
10. We have carefully gone through the pleadings of the rival parties as also the documents submitted by them. We have also heard the arguments advanced by the learned counsel for the parties on the basis of which the issues that emerge and need to be decided by us are as follows:-
(i) Whether the period spent on leave is to be excluded from the purview of the tenure at a station?
(ii) Whether on completion of tenure posting at a hard station, the applicant is entitled to a posting of his choice?
(iii) What relief, if any, could be provided to the applicant?
11. Insofar as the first of the issues is concerned, we have to start by looking at the transfer policy of the respondent organization (page 167 of the paper book) which had been issued vide OM dated 30.03.2007. The postings have been categorized into hard stations and soft stations. However, for facilitating a better understanding of the issue, the transfer policy is extracted hereinbelow:-
Subject: Posting & Transfer Policy The Chairman, NTRO has approved the following parameters for posting and transfer of NTRO personnel:
I. At the Hard Stations of NTRO, a fixed tenure of 2 years for Doom-Dooma & Numaligarh and a fixed tenure of 3 years for Bhuj & Dehradun is required. No tenure is applicable to soft stations like Delhi, Bangalore, Hyderabad, Udaipur etc. II. Postings to and from Hard Stations are to be effected annually, preferably in the beginning of the year and choice for posting may be obtained from all eligible personnel six months before completion of their tenure at Hard Stations.
III. Postings/transfer from Hard Stations on compassionate and other grounds are not feasible at this stage as operational requirements necessitate retaining of personnel.
IV. Instead those who have completed their tenures at such Hard Stations have to be posted to their choice stations now, after identifying replacements on the basis of their posting profiles.
V. Further keeping in view the operational requirements of each Centre, Centre Directors may recommend intra-centre transfers.
VI. As inter-Centre postings would pose difficulties in identifying replacements, such an exercise will not be undertaken at this juncture.
2. For information and compliance please.
12. It appears from the above that there is a fixed tenure of two years for the designated hard stations Doom-Dooma & Numaligarh and three years for Bhuj & Dehradun. Other stations like Delhi, Bangalore, Hyderabad, Udaipur etc. have been termed as soft stations having no fixed tenure. In the same breath, it is also to be recognized that this is only a policy directive and has been issued by way of a circular. It does not have the force of statute. It is to be followed to the extent practicable.
13. We have also to bear in mind that respondent organization is concerned with the security of the Nation and though not enjoying the protection of Article 33 of the Constitution of India still has an element of inbuilt national security. This pursuit of national security ought to get reflected in all its decisions including the placement of officers to various assignments. Moreover, it is an accepted principle that transfer of employees is the prerogative of the employer. This position has been reiterated in a number of judicial pronouncements. The grounds laid in the case of P. Pushpakaran vs. Coir Board and Another [1979 I.L.L.J.139] (Kerala High Court) are as under:-
13 It cannot be disputed that an employer has a right to transfer his employee. An employee accepts employment fully knowing that he is liable to transfer from place to place for administrative reasons and in the interest of the employer. This is one of the conditions of service. No employer can demur or cavil at an order of transfer. It is only when an order of transfer is made otherwise then in public interest or for no administrative reasons and in the circumstances amounting to punishment or with mala fide intentions, that the transfer order gets exposed to challenge.
23. On a careful consideration of the materials available in records, I find that the respondents have not disclosed all that is necessary for this Court to justify Ext.P3. When allegations are made against the respondents, including that of mala fides, it is the duty of the respondents to clear all charges against them so that the Court will be in a position to hold them. That things were not satisfactory can be discerned from the language of the correspondence and orders that have been exhibited in the files. The respondents cannot feign ignorance of the fat that some ones item prepared in the press that the then industries Minister had desired the ouster of the then Chairman of the Board. I am referring to them only to highlight the fact that in such cases the duty of the employer is to take the Court into confidence and tell the Court the whole truth. In view of the fact that the counter-affidavit does not indicate the availability or otherwise of the Upper Division Clerks in the Head Office, as to how the petitioner was picked from the remaining three bachelor Lower Division Clerks and how he was found more competent than the others. I have to hold that the transfer was not in the course of administrative routine or due to administrative necessity but for other reasons.
25. This Court will normally lean in favour of the employer when a transfer order is challenged, for a proper administration of a Government or a Department of Government or even a Private Company, transfers will be necessary in the exigencies of service or for administrative reasons. An employee will not be lightly taken when orders of transfer are challenged. The whole difficulty arises when under the cover of ordering a transfer, an employer seeks to achieve something which he cannot otherwise achieve. In such cases, the employees in distress seek the assistance of Courts in their unequal contest with their employers. A transfer can uproot family, cause irreparable harm to an employee and drive him into desperation. It is on account of this, that transfers when affected by way of punishment, though on the face of it may bear the insignia of innocence, are quashed by Courts. I am not satisfied with the explanation given by the respondents. This has been subsequently supported in C. Ramanathan Versus Acting Zonal Manager, FCI, Madras and Others, [1980 (4) FLR 385]; Union of India & Others versus S.L. Abbas [1993 (4) SCC 357]; Shilpi Bose versus State of Bihar [AIR 1991 (SC) 532], National Hydro Electric Corporation Limited versus Shri Bhagwan [2001 (8) SCC 574], State of M.P. & Another versus S.S. Kourav & Others [1995 (3) SCC 270] and State of UP and Another versus Siya Ram [2004 (7) SCC 405].
14. The Honble Supreme Court has repeatedly cautioned Honble High Courts and Tribunals to be very careful in exercising the powers under Article 226 in the matters relating to transfers. It has been repeatedly held that unless an order of transfer is shown to be malafide or stated to be in violation of statutory provisions prescribing any such transfer, the courts or the Tribunals cannot interfere with such transfer orders as matters of routine as if they were appellate authority substituting their own decisions for that of employer/management as such orders are against the interest of administrative exigencies of the service concerned. One has to be doubly careful when the transfer is made in the name of the national interest.
15. At the same time, the question also arises that if the transfer policy is not implemented in its right perspective it should be thrown in the dustbin as a scrap of paper. In this regard our considered opinion is that once a policy is issued by the organization it is meant to be implemented and to regulate the transfers and postings of the employees insofar as it is practicable. In other words, it is a common compulsion of adherence except where it is not practicable, against the norms of administrative propriety or it is against the national interest. We also state in the same continuity that organizations irrespective of existence of their scales continue to be governed by the all India liability where the scope of their service extends to an Indian horizon.
16. In the instant case, we find that the pleadings of the respondent is that the applicant was transferred to Bhuj because there was a need for re-organization of the service being delivered by the respondent organization, Bhuj being only a few kilometers away from Pakistan border. However, the respondents further state that there were charges of serious nature pending against the applicant which have been enquired into and action is under progress.
17. We have also taken note of the submission that the charge of administration was never given to the applicant at Bhuj but was rather given to another officer, inferior in rank. Even during the course of the arguments, these directives were never reconciled. We further take note of the argument that while the tenure of three years is being admitted, the respondent organization has excluded the period spent by the applicant on leave. The learned counsel for the respondents sought to create an impression that the applicant went on leave and the leave was not a matter of right of the employee. Rule 7 of the CCS (Leave) Rules clearly prescribes that leave cannot be made as a matter of right and is rather subject to the approval of the authority competent to grant leave. For the sake of better understanding, this provision is being extracted as below:-
7. Right to leave (1) Leave cannot be claimed as of right.
(2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant. Therefore, the respondents are precluded from taking the plea that the applicant went on leave rather leave was granted to the applicant by the respondent authority and the applicant cannot be blamed for the same. We also find no merit in the argument of the respondents that leave period ought to be excluded from the tenure. In this regard, it was rightly argued by the learned counsel for the applicant that if this were the policy then the tenure of appointment given to a person would exclude the leave period and can be stretched further. Therefore, we find this argument logical and the claim of the respondent organization preposterous. We have not come across any such practice in the government in our experience spanning decades. Therefore, we conclusively reject this argument of the respondents qua exclusion of the period of leave from the tenure of the applicant.
18. Insofar as the second issue is concerned, part of which has already been discussed while dealing with issue no.1, Clause (IV) of the Posting & Transfer Policy has already been quoted above. This gives a somewhat mandatory character to the claim for choice posting following a hard posting. However, this is subject to Clause (III) of the Policy that transfer/postings from hard stations are governed by operational requirements and not by compassionate and other grounds. Hence, the word choice would imply to choice of a station and not of any particular post. It is also a fact that the choice should not be confined to a particular station but these choices should be indicated.
19. Admittedly, in respect to issue no.2 discussed earlier, the applicant has completed his tenure posting at Bhuj which is admittedly a hard station. He is, therefore, ripe for posting of his choice.
20. In view of the contradictions in the stand of the respondent organization, referred to in earlier paragraphs of this order, and also that operational requirements have not been implemented for further continuance of the applicant at Bhuj, we dispose of the instant Original Application with the following directives:-
(1) The respondent authorities will take a view on the representation of the applicant for transfer to be submitted within 15 days of the order giving choices of three stations and decide at another place of posting in a soft station insofar as practicable as per the choice of the applicant;
(2) The exercise, as ordained above, should be completed by the respondents within a period of three months from the date of receipt of certified copy of this order; and (3) The parties are left to bear their own costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/