Central Administrative Tribunal - Mumbai
Dr Sanjeev Kumar Singh vs M/O Science And Technology on 1 August, 2017
§ ,,. 1 O.A. No.383/2017
1| CENTRBL,BDNINISTRBTIYElTBIBUNAL D MUMAITBENCHJJMQMBQIL ,~ QRIGINBQTBP?LlCATlQNiNQ¢333Z2Q17 1- Dated this_§W"Q~*~WW""j theliwiiiday of5i"'%%% 2017 CORAM: HON'BLE DR.MRUTYUNJAY SARANGT, MEMBER (A) HON'BLE SHRI-A.J. ROHEE, MEMBER (J) Dr.Sanjeev Kumar Singh, .
R/O: Plot no.26, Venuwan Society, Near Friends Colony, I Katol Road, y i Nagpur--4400l3. E Currently working as Principal Scientist, _ Environmental Biotechnology é
- and Genomics Division, ' . _ CSIR--NEERI, -
Nagpur ..Applicants.
(By.Advocate Shri A,A.Desai). - '
Versus g_4',:=_1A--1_
1. The Union of India,- '
Through Principal Secretary,- ,
Ministry of Science and_Technology, ~ E
Office at :-- "Aaykar Bhavan",
2" Floor, Maharshi Karve Road, '
-
?
g New Marine Lines, ' E
Churchgate, '
Mumbai--400020.
2.- The Director General, -
T @@nn@il,@f Scientiiic and
ID@U$t;i@l Research
Anusandhan Bhavan, 2, Rafi Marg, ' New Delhi--llOOOl (India).
3. The Director, 5 CSIR* National Environmental 5 Engineering Research Institute, i Neharu Marg, _ -' Nagpur--440020; ..Respondents. E
(By Adwocate Shri K.P.AnilhKumar).
E .. .-. . ........, .......... - - » - -» - - - - » - - - - -- - - - - - - ' ' '' ' ' ' ' ''' ' ' " i] "E E §' gg ; ..;1*""§§€€%;?' T2 y O.A. N0383/2017 Order reserved on : 07.07.2017 Order delivered on :5N'@§*fiw@37"
. '\. '
T 7 ORDER N
Per : A.-J. ROHEE, MEMBER (J).
. The applicant who is presently working
.as Principal Scientist in Environmental
Biotechnology and Genomics Division, under
~ .
-r
Council cxf Scientific anwi Industrial Research
(CSIR)- in National Environmental Engineering
Research Institute (NEERI) at Nagpur, aggrieved
by the impugned order dt. 19.12.2016 issued by
the respondent No.2 by which he is transferred from present post to NEERI Zonal Centre at Chennai anni the subsequent order <fi:._7.6;20l7 rejecting' his' representation for cancellation of the transfer, approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, seekiing the following reliefs zw "a. This Hon'ble Tribunal. be pleased
ix) order, direction-ix; quash enni set aside time order" dated 19.12.2016; and order' dated. 01.06.2017 _passed kn: the Respondent no.3. é b.' That, this Hon'ble Tribunal be % E ii ii ;:
pleaseed to direct the Respondent No.3 E
-is ix: allow tins Applicant ix) retain .its 3/ § Ii 32
---------------------------------------. f so 1 """""""
ii ii 5! ii 3 _ O.A. No.383/2017 post_ as Principal Scientist at- the previous destination at Nagpur region. c. That for such other and further reliefs as tins; Hon'ble 'Tribunal neg?
deem fit and proper". _'
2. The' applicant was appointed _.as
\- ' '
E
Scientist Gr.IV(l)_ with CSIR--NEERI on
+
25.08.2000 vide appointment order (Annexure--C).
The applicant secured promotions in due course
of time and is presently working as Principal
Scientist with the Respondent No.3
(R*3)- =
3. On Il9.l2.20l6, time applicant .received
a.communication (Annexure--A) from R-3 regarding
his transfer ix) Zonal. Centre, Chennai. The
applicant took. it by surprise and_ hence he
submitted.' his representation dt. 9.1.2017
(Annexure~D) for-jixs cancellation (mi personal
grounds of illness of his wife, mother and
disabled.=daughter. Since Jnothing Pfififi heard,
the applicant again snimdtted ea represenation
dt. l.6.20l7 (Annexure--E) raising same grounds
1'
for cancellation of his transfer. However, his
representations were rejected by the impugned
order dt. 7.6.2017 (Annexure--B). There being
0
__ __ _ __ ____.::::_._._..::: _. _. . . . . . . . . . . . . . .. . . . . . . . . . . . . . _____ ____ __ _____ __\____ , - - -- 1| --.---.--=_-_=-.--___________ ---.----;e;_>§,€_| \-- ----_-335% 'i,
E 1
X \\\ 'jg--=-'5-"E? """"""" ->3, E _|:
*l|--"'|--"l'-vh|5 . 4 - O.A. No.383/2017 In) other alternative left yMifi1 the applicant, ("-|--vL|-"---- "PH'-I(|n Ina approached time; Tribunal ll} present (Ni on E E 20.6.2017. E [
4. The impugned. orders have Ibeen [ In | challenged mainly on the following grounds. . - -h r
a) that the impugned orders resulted in violation of the fundamental right 1 | guaranteed to the applicant and also principles of natural justice,_ since no opportunity of hearing was afforded to him before passing the [ impugned orders;
[
b) that -the impugned orders are bad in law, illegal, -unlawful and perverse and hence same are liable to be set aside; [ r r E
c) that l%£3 has published. seniority list (Annerure--F) in which there are almost 37 I \ Scientists who are senior to the applicant and \ around 70 who are junior to him. The applicant was, however, arbitrarily chosen.:&m: transfer \ r although he had not asked for any change. It I' is stated thatthe impugned orders have been :
E issued with Dfifiii fide intention ix; harass the 2 E if applicant. The same are, therefore, liable to E E E I be set aside; F I E :: .- .- z . . . . . . .... . . . . . . . . . . . . .. z .- - - - . .. ... » . . . . . . . . .. . . . . . . . . . . . . . . . . ,_ _ _,__ _ , . . _ _ . . _ __ _ _ __ __ _ _ _ _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... .. .. ... ... . . .. ...... . . . . . . . .. . . .. ..... ........ »-- - »--------- ..... ...... ------ 5 " O.A. No.383/2017
- d) the applicant is working at NEERI, Nagpur since 2000 and has performed his duty with. utmost - care, sincerity" and. the 'to satisfaction of his seniors. He 'has also carried (nu; field work en: different stations.
He was never charge sheeted for any mism conduct.- - Thus, he has unblemished service record. As such, he should not have been transferred; ' ' e) that applicant's 'wife is working 5 as Assistant Professor in VMV Degree College at Nagpur. Her job is nonmtransferable. Hence, cni spouse ground time applicant li3 also entitled to be retained at Nagpur; ' f) that applicant's wife is suffering from severe anaemic problem for which she is taking regular medical treatment at NEERI Dispensary. Exhibit*G is her medical record; ' g) the impugned. transfer' order suffers from mala--fide,_as the same was issued by" the respondent. No.3 "with. bias Jmind. Further, 1 it"Pfifi3 a mideacademic transfer which
has caused inconvenience and adversely affected the education of time school going children of .»-"-
__ \,>___\.,_ ____ ,\ .. , ..... ............. .., ..,. ..,.. 1 2' "'-""-'""""
. - 6 'O.A. N-0.383/2017 '
the applicant;
F
' Ii) the applicant's mmnjun: who is
residing with him is also suffering from
various ailments.due_1x> old age snnfl1 as High
1
Blood Pressure, Diabetes, Asthma etc. for which
she requires continuous medical treatment. and
constant attention. ExhibiteH is her medical
record to this effect; - '
» 61 the applicant's daughter is also
suffering":flmwn Bilateral Mild Eunnflr Knees for
which she ;n; undergoing treatment. Exhibit--I
is her medical record; - -
' _ j) that ijua impugned cmder 1&5 based
_, .
without there being any administrative
exigency. However, on account of it the
applicants family life is completely disturbed
and hence it needs to be quashed;
k) that "there .is rm) transfer" policy framed kg; Ithe respondents sumi _hence the applicant was arbitrarily transferred._ As per general policy the employees having station x seniority should be shifted first. However, this rule inns not followed anmi the applicant was singled out for transfer to a distant z"
. 1 1; --_ v ream """"" i
7 - O.A. No..33.3/2017
place;
l) the impugned transfer order "will
cause great hardship as applicant would be _
forced to have second establishment at. a
distant place. Further, education of
applicant's children will also be adversely
affected. _ '
5. (M1 the above grounds, ii;.is prayed to
quash and set aside both the impugned orders
and to continue the applicant at present post.
6.' The applicant also seeks the following "
interim relief :-- _ "a. That pending the hearing and final disposal of the present Original Application, 'this Hon'ble Tribunal be _ pleased to stay the operating and effect. of the impugned order dated 19.12.2016 and order dated 1.6.2017 and further allow the Applicant to continue as_ Principal Scientist at previous destination at Nagpur region. b. That interim and ad interim relief in terms of prayers above. ' _ c. That for snufi1 other enni further -
reliefs as this Hon'ble Tribunal may deem fit'and proper". '
7. This Tribunal while issuing notice to the respondents by order dt, 21.6.2017 did not find favour with the applicant for grant of ad" -
interim (ex--parte) relief' to him. The
.. ..,."":::;_ "'"'"'::..".".?"'-$65.-:2:-:2:-."=""-"==-"="-"'"=": ---- "gs;"""""""" "_§;i:§§§.'
8 O.A. No.3 83/2017 _
respondents mummy ,therefore, <iirected ix) file
their reply'in3 the (Mi covering tins prayer for
interim relief. i 1 "
8; . The applicant 'has also filed -M.A.
No.364/2017 for grant of ad--interim relief.
9. In pursuance of the notice issued, RM3 appeared anni filed E1 reply to lflk No.364/2017 and denied.e£LL the averments rmnka therein and also in the OA challenging the impugned orders.
_, . The impugned orders are supported as fully correct, legal enni proper vdmmfii calls :fiir no interference kn;'this Tribunal. Ifij is denied that the impugned orders suffer from any nmla fides on.tfiu2jpart of respondents and that the -applicant was singled out illegally" for his transfer. It is stated that the applicant was
never transferred during the lihfil 17 years and on account of administrative exigency/public interest he is'transferred to Chennai. As per the settled legal position transfer of a government employee is a part of' service condition and as per the appointment order the r 1 applicant is liable to be transferred anywhere in India. As such, the applicant should not _ h I :.::...;:.:................]_..........%$\.>.,.%,....\.§\\?§k g? .€ 'fig 5. ' 1 9 y O.A. No.383/2017 have any grievance regarding the impugned orders. It is. stated that the Courts and Tribunals should not.lightly interfere with the transfer _orders "and to set aside the same, unless it :Ms established. that idem; are not issued by the Competent Authority or that they are against sun; express term. cxf policy/ guidelines or that it suffers from mala fides. As such, the scope for interference is limited.
10. The personal grounds/domestic reasons regarding hardship and inconvenience caused to the applicant and his family members on account of his transfer are also alleged by 'the applicant. ' However, ~these grounds are not sufficient tr: set aside Tins impugned cmders. Glue respondents lunma taken iiuxv consideration the representations submitted by the applicant and. found. that no grounds are" made out for cancellation of the applicant's transfer.'
11. " In support._ of "the _ settled ' legal position on the issue of transfer of Government 1 employee; inns respondent Dkmifi has placed reliance on the following decisions/judicial pronouncements of the Hon'ble Supreme Court :~ . . __ """BE _ 1 10 _O.A. No.3~83_/2017
i) . State of Madhya Pradesh and Ors. v. S.S.Kourav (JT 1995 (2) SC
498); - " - '
ii)' Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani (1989 2 SC 602);
iii) B,Vardharao v. State of Karnataka & Ors. {AIR 1986 SC 1955};
1-
I
iv) Mrs.Shilpi Bose v. State of
Bihar and Ors. (l991'Supp-l. (2) scc
659);
v) Union of India v. N.P.Thomas -
vi) Union of India v. S;L.Abbas
{AIR 1993 SC 2444}; '
vii) Rajendra lung v. Inmxni of India
& Ors. {(1993) 1 SCC 148);
viii) Ramdhar Pandey v. State of
U.P. And.Ors. (1993 Supp. (3) SCC 35);
ix) N.I<.Singh v. Union of India &
Ors. {(1994) 6 SCC 98}; - ' "
x) " Chief General Manager (Te1.), N.E; Telecom Circle v. Rajendra Ch. Bhattacharjee;
' 1 xi) -State_<xf U.P. fir. Dr.R.N.Prasad (1995 (Supp) 2 SCC 151; - xii)" Union of India _and Ors. v. Ganesh Dass Singh; xiii) -' Abani Kante Ray v. State of Orissa (1995 (supp) 4 SCC 169; xiv) Lamni Narain Mehar in. Union of India; . xv) State of U.P; v. .Ashok' Kumar Saxena; ' xvi) National Hydroelectric Power ....................... ld\-|\ ,\i_»_ >>2 '*<.'<¢§ IE H1' 11 O.A. No.38?)/2017 Corporation Ltd. v. Shri Bhagwan; xvii) Public Services Tribunal Bar
Association v. State of U.P. And Ors; xviii) State of U.P. v. Siya Ram;
xix) Union of India v. Janardhan
Debnath -
12. IU: is stated that NEERI, Nagpur is cme
of the constituent institutions of CSIR, which is ' 1 a Society registered under "the Societies Registration 'Act, 1860." It is an Autonomous Organization under" the aegis. of Department of 1- Scientifrc and Industrial Research, Ministry of Science anui Technology, Government <n5 India (R-
1). The CSIR has -set up 39'. National Laboratories/Institutions/Centres ill various parts of the country including NEERI at Nagpur in Maharashtra State cn?"which Director":Us the Head of time Institute.' The numri objective Rif CSIR among other" things is jpromotion, guidance and coordination of" the Scientific and Industrial Research and Development of India.
13. By way of preliminary object-ion it is stated iflnn; the applicant lnui not exhausted all the remedies available.to him before approaching this Tribunal since he has not taken-recourse to the consultative mechanism of E%{3 nor has $7-r . . . . . . _ _ __ _ __ _ _ _ _ .... ., . . . . , _ , . . . , . . .. . . . , . . . ___ ___ ~ " " * -"-" §..,____$_.>__________ 1- 5';
12 O.AINo.383/2017
approached Imxxfl. Committee :fixr redressal cxf his
grievance. Hence, the OA is liable to be
dismissed on this ground. '
14. It~ is stated' that the applicant had
accepted. his ,appointment "which. specifically
|
'\
stipulates that he will be liable for transfer to any of the Establishments under " the administrative control of ICSR anywhere in India. As such, the applicant _should- not have any grievance regardimg his transfer which was effected for time first time after if? years from jcumfiiug service. IH: is stated.tflnM: specialized area. at Iihennai Zonal Centre of <3SIR/NEERl is . F -
Waste Water Technology. ' Since applicant specialized.iJ1 Soil Chemistry vHn1fl1 is relevant and required at Chennai for the in~house Research & Development projects based. on the sponsored projects being undertaken by the centre from time to time. It is also stated that there are only four Scientists- in position at Chennai. The Director being the appointing authority has right to transfer any cfif the employees including the applicant ix: any of time frwe zonal centres viz. CSIR&NEERI at Delhi, Nagpur, Kolkata, Chennai and Hyderabad.
.............. 1
<+ '§§5R§<1 Ye
. 13 O.A. No.383'/2017
15. = It iii stated tfiufiz applicants? services
are required at Chennai Zonal Centre and hence he is transferred -there in public interest. However, Ina failed.txJ join there anui approached this Tribunal although sufficient breathing time was given to him, looking to the.academic year of the daughter. The applicant's services are required. in the interest of the institutional activities. All other transferees have joined at new places of their posting as per the impugned order (Annexure--A), except the applicant 'whose representations were considered, but were rejected.:fim: want (Mi sufficient anmi convincing reasons for cancellation of his transfer. Since the applicant did not join, the R-3 has directed that by not following the order issued on a .
administrative grounds, will indict him with a appropriate CCS Rules and if there was a grievance,- the applicant can put it to the Grievance Committee. However, no _steps were taken kn; the applicant. His representation was therefore, rightly rejected.
16. No grounds are made out by applicant in this (Hi for setting aside-fins impugned orders. The M.A. is therefore liable to be rejected." , /* .. >" ' ''' '' ' ' ' '''H 1 ........ "E-----~-\;e:'~§» assess s>eeesv:ni\> 14 = O.A. N0383/2017
17. The applicant then filed rejoinder to the reply"enni denied all inns adverse averments and contentions nede i11"the replyz . The grounds stated iii the cur were reiterated iil support of ' n.
the claim. In. addition ix) above, a 1%nv_new grounds are raised for challenging impugned orders.
18. It is stated that- the applicant has availed medical leave from 12.6.2017 since he met with an accident in which he suffered injuries to his Rib. Ema was advised tr? take rest till 7.7.2017. as such, time applicant Ihas run: yet -I been relieved. - _ "
19. It is stated that number of applicant's seniors anwi juniors experts 1J1 fiebd have been retained at a particular place_showing favour to them.anui the applicant alone inns chosen without any _valid reason. - The impugned order of transfer, is therefore, illegal.
20. It is stated that at present there are 3 (three) Principal Scientists-van) are accredited by NAVET as _Soil Conservation "Experts viz.
Dr.B.K.Sarangi, Dr.R.J.Krupadran and Dr.Sarvana Devi. Any of them .could be transferred to Chennai, to meet the office exigency more \ ........... ..... .. . . . . . . .. . . . _ _ __ . . . ,. . . . . . . . .... . .. . .. . . _._ _ _ _ __ , _ __ _ _ ___ , ._ _ _ __ _ _ _ _ _ _ _ __ __ _ . . . . . . . . .
a ----------------------- -- 1 />4_....\........ .
_ ' 15 O.A. No.38§/2017
efficiently since they vmmk::U1 the said field.
Some Principal Scientsts junior to the applicant
are also Soil Conservation Experts, any of them
could have been transferred to Chennai.
21. It is stated that on March 27" and 28*' 2017 a conference on "Water and Waste Water" was organized. by E%%3 at Chennai. About 7 ix) 8 Scientists from NEERI, Nagpur attended the said conference, to the exclusion of the applicant. It is ifiuus clear that ijus applicant ii; victimized since time Principal Scientsts vdu>'are expert in the field required at Chennai were excluded and the applicant who is not expert in the field has been deliberately transferred there.
-\.
22. That the applicant is working with the respondents since lrun: several years znni he has worked at various places such as Udaipur,-__ Goa, Gujarat, Sri Lanka, Pune etc. ' For the said purpose he was required to stay at both places to perform-field job. He never refused to work at In those places. '
23. It is stated that at Nagpur thereare several projects which are being handled by the applicant. 'However, at Chennai there is no project assigned to him and for this reason also I ._._. , ,... --- /»-<. 1 .. .... " ~"''"' $\ 11 "é€\>*°'<l€'§%F2--<<Tr<<< *§§¥\§~\ ii §?§f:5,?¥§€'=P is?
16 O.A. N-0.383/2017 the earlier order was onot implemented. The applicant reiterates that if there~ is some project am: Chennai applicant ii; prepared ix: go there on deputation for some period and then come back to Nagpur. However, he cannot be posted at 1- ll I Chennai. - -
24. That tins respondent No.3 inn; joined on 27.5.2016 at NEERI, Nagpur is pressurising the applicant on one ground or the other. At the very first instant he directed the applicant to vacate the cabin which was allotted to him by the Department. He conceded to the direction without making' any grievance. 11; is stated. that the applicant was appointed as Coordinator of Stockhohn Conventing Regional Centre cni POPs by the former Director. 'However, the R-3 has removed.him from the said post and appointed some other employee of his choice. Still the applicant.kept mum without raising any protest as a Gentleman. The R-3 has constituted a team for Mangalore Refinery Project under the Chairmanship of the applicant for Soil Conservation Activities. The applicant after taking necessary steps prepared and submitted the _report. However, subsequently ii: is stated fimu: without """"""""""""""""""""""""""""" {§;?-xii??? "T" . 17 O.A. No.383/2017 informing him some changes are made in the report at. his back; and it ii; also allegedi that the signature was also forged on the revised report. For this reason also the impugned order is liable |-
-to be set aside which was issued by way of
punishment to him. . - '
25. It is stated that as Ema: the prevalent
practise before effecting transfer the consent of concerned emmdoyee iii obtained. However, this F .
tbme the said pmactice is run: followed and the applicant was -abruptly transferred on false ground. In view of the DOPT OM dt. 30.9.2009 the applicant" is entitled_ to "continue at Nagpur. However, since he hasbeen abruptly transferred the provisions of the said OM are also vioalted.
For this reason also, 'the impugned "order is
E .
liable to be set side. ~
26. On .e.7.2017 'we have heard Shri A.i. Desai, -learned .Advocate for the applicant and Shri "K.P.Anilkumar, learned_ Advocate for the respondents. on. prayer for interim. relief.
\ However, both the counsels admitted that there is nothing further to add in the arguments for the OA and hence with their consent the arguments on prayer for grant of interim relief were treated _,.-
.>. .. . .. ............ . . ......... ..... . .. ,.. . . .. . ,.., ~.;.;.;.;.;.;.;.;.;.;.;.~;.;.;.;.;.;.;.,;..=_-.,.cg" _. . . ., _____».. ...
- - - ~ ~ - - - ~ » . , » ~ . . . . . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ . . . _ . . . . .. _ ,___ ,________ _____ .... ____ "" """"""""'''''''''''' ''''' ''''" T j*j§;;<{<;;,1;§§1q.§;;_--§3}'I§f5§;~§is_5;»;%wyf駧§_§_R$§,z%§_§g%,{%§:%_g§%W',3 Fw-
L74
E
" _ 18 OA. No.35-33/2017
as arguments cn1:merits of time OA, especially on
the submission made by'ifiua learned Advocate for the respondents that the "reply to ijua Dfll for interim relief should be treated as reply to the OA since he has nothing further.to add.
27. On 7.7.2017 _both tins parties have produced documentary ' evidence; regarding attendance of the applicant and about his medical leave after issuance of the first impugned order dt. 19.12.2016 till 7.7.2017. The matter was then closed for orders on OA.
28. We have carefully perused the entire pleadings, facts, various documents relied upon by them in support of their rival contentions and also citations of judicial pronouncements on the issue of transfer.
29. The only controversy involved for resolution of this Tribunal in the present OA is whether cni the grounds raised kg; the applicant the impugned transfer orders dt. 19.12.2016 (Annexure--A) and 7.6.2017 (Annexure~E) passed on the representations for cancellation of transfer order and rejecting it are liable to be set aside r as illegal -or improper and consequently the applicant is entitled to continue at the present T
-I I ........................................................ ........ fa? fixi _{§€%....
-- ' '.'.'-I-5 - '' ' ' ' ' " . . . , . . , _ . ..
19 ox. mass/2017 station of his posting.
FIHQING§
30. As stated earlier, it is the settled law that so far as transfer of Government employees is concerned it.;Me the inherent incident emf service and the Government employee has no vested tight to continue at the same place of his choice forever or till his retirement. The employer reserves right to transfer any employee considering the office exigency" or ixi public interest. However' while doing so, it 'is -also obvious that if transfer policy/ guide1ines/ statutory rules are framed governing time transfer <1f employees ill any department,_there should be no violation of any of :-
.-
provisions. "
1-
31. Further :H: is ifiue settled lime that the
Courts or Tribunals while exercising the power of
judicial review when-transfer order is challenged, it shall not.lightly interfered with the transfer order, unless mala fides against the Competent Authority issuimg'the transfer order are pfleaded and proved. It is also obvious that in absence of transfer policy/ guidelines/ statutory . rules governing" the transfer, normally' while effecting the transfer, willingness of emmdoyees should be 6 _ __ """""""""""""""""""""""""""""" """""" V? >3 exeem -F'€=i§ _ -20 O.A. No.383/2017 sought, particularly when they are serving' in scientific department such as-{Muir BARC, ISRO etc and employee having longer station seniority should '\\ be considered first for transfer. " u
32. _ Keeping ime mind time above referred settled pminciples of lune regarding transfer, we shall now turn to consider the legality, propriety or corrections of both the impugned orders of transfer enni rejection <nf representation :&n: its cancellation.
33. It is not disputed that the applicant joined fine service vnifie the respondents on 01.11.2000 am: NEERT Nagpur" vide his appointment order dated 25.0S.2000._Presently he is working as Principal Scientist there. It is also not disputed that tine applicant being ijne Principal Scientist, he is mainly assigned with research work concerning environmental jprojeots. IN; is also run; disputed that the applicant has acquired specialisation in soil ccnservation and.lue has.knnn1 transferred to Chennai Center to work in Waste Water Technology.
Since last IF? years time applicant jee working at Nagpur vnlfii deputation ix; various Quinn: stations for doing field work / 'research there in soil conservation.' However his Headquarter continued to be Nagpur. As such for the first time the applicant V
--------------.------;.-\..-\..-\.-_,....................................._...............|..._..._------------------r:1:F:Fr_:'.'{:""'-'I'-'2,'-'-"""'""2-""""'\-'_'_:_':_'_'f_:-"\-'-"'/.-";,":I1-111-'-'7-'>"':'."1'."§_'{.i§:_'_"'>I-":."ll?-1-'-Q' '''''''' "'I{"i'§_' fly; yo. \\§ t f §§\/"§§ 1 21 y O.A.No.383/2017 y is transferred.ixi Chennai which anmunts ixe change of his Headquarter. .
1|
34. The learned Advocate' for the applicant submitted that the impugned transfer order is arbitrary' and ii; suffers lhxnn mala. fide anui has been issued to victimize the applicant. In support of above contention, in rejoinder the applicant has given few instances namely he vnue called upon to vacate the cabin previously allotted to him, he was replaced Ema Coeordinator <xf StOCkhOlHL Convention Regional Center by the respondent no.3, alterations made in the report submitted by him as Head of- Manglore Refinery project, behind his back or without taking him in confidence and even his signature on the modified -report is stated to be forged one- It is obvious that although the above factual position is run: denied.kn; the respondents by filing Sur--rejoinder still it is obvious that he made no grievance about the instances quoted above. As such from the material available on record, it cannot kme said that ijue impugned_transfer order suffers from mala fide and with a view to victimize the applicant. ' '
35. _ Further applicant stated. that presently lme is_ working.<n1 couple of projects an; NEERI Nagpur which are yet to be concluded and hence on it ...................................................................................................................................................... 1 ,»n~. >» reeee e "\-
5
E 22 O.A. No.383/2017 account of his abrupt transfer, there will be set back to those projects. However, in this respect it can safely be.said that although few projects are assigned.ti> applicant, other Principle Scientists available at Nagpur can take over and continue with it till those projects are complete. In such circumstances of ' the case, _ the applicant's | 1 contention; that time pending" projects .assigned tie him will suffer a set back, if the transfer order is not quashed, cannot be accepted. _ ' I, .
36. During the course of arguments and in the representation the applicant seeks cancellation of
-u transfer order on personal grounds only regarding illness of his wife, daughter- and mother. The medical treatment. papers concerning illness of .-
family members is also filed on record as Annexe¥G, H and I respectively. However, we find substantial force in the contention of the learned Advocate for the respondents _that illness of wife, mother, daughter is not so serious in nature which resulted iie causing aunt disability tie them.vdrMie warrants |- | cancellation of transfer order. He had pointed out that the- applicant can continue with the same treatment.tie his family members am; Chennai Center where better medical facilities are available. This is so because while the applicant's wife is stated .1 ar-
.. 3-"?i"3?3'~>¥"=-ga-
23 . O.A. No.383/2017to be anemic for which she is taking some treatment and the applicant's mother is suffering from high blood. pressure, diabetics anmi asthma. Time above |-
ailments are common which can be cured or at least kept under control by require treatment which can be availed at any station. Hence it cannot be said that if"the applicant is shifted to Chennai it will cause great hard--ship to him. ' "
37. Try this respect it iie the settled "view that hard--ship-caused to the employee on account of illness <mf family nembers cu? flit other ckmestic reasons cannot KME considered for" cancellation of .-: ' transfer, unless it is shown that the family members suffer from physical dis--ability _of grave nature vimmit needs special treatment anui constant attention. and. such ~dis--abilit@f is covered. under DoPT's <fli._ Dated 06.06.2014. Considering the medical reports of the applicants daughter although it appears that she is suffering from _some orthopedic problem,.it cannot be said that the same is so severe that she is unable to take her care. In this respect, the certificate issued. by the private Orthopedic Surgeon, Physiotherapist and sports physician are relied upon by the applicant. However it cannot be said from its perusal that the applicant cannot avail similar treatment at 24 O.A. No.383/2017 Chennai. It has also come on record that the applicant's daughter is pmesently prosecuting"her |I' school studies. Hence we chitin: find any force in the contention of time learned .Advocate :&m: the applicant that cit personal ground cmf illness {of family" members, the impugned "transfer order is liable to be quashed.
38- The learned Advocate for the applicant
1| invited our attention to "the impugned order Annexureeb by which the representation was rejected and he submitted that. no reasons are recorded therein." However, the said impugned order specifically"nentions that time representation was considered and information regarding School timing of applicant's daughter" was sought. Further the impugned transfer order dated 19.12.2016 was not in fact implemented till rejection of the representation by the impugned order dated 07.06.2017. lt- is also settled law that while considering representation time order may not mention the detailed reasons for its rejection and it "should only" tme shown that tine Competent Authority lmme considered amni applied nnimi to the representation. The reasons may be included in file noting, vnmmil is chflgr signed the Competent Authority. ifime impugned cnimmr Annexurees ciearly 2%.
"""""""""""""""""""""" \
0 25 O.A. N0383/2017
mentions that representation was considered in
which various grounds cm? family'obligations were
+ .
raised. by time applicant for =cancellation cm? his
transfer. In view of this it cannot be said that
there is in; application.cxf mind kg? the Competent
Authority while rejecting the applicants
r-
representation for cancellation of his transfer on personal grounds. -
39. So far as preliminary objection raised by the respondents regarding 1naintainability cu? the present OA on the ground that the applicant did not approach the grievance regarding" committee and hence the applicant had. not exhausted all the remedies before approaching this Tribunal, it is obvious that cni issuance of time impugned transfer order the- applicant immediately submitted the representation dated 09.01.2017 (Annexure--D) to the n _\'> respondents no.3, who is admittedly the Competent Authority ix; issue time transfer' order. Inn: this reason it does not matter or it is irrelevant even if lint redressal <xf grievance, inns applicant did not. approach inns local committee first. for redressal nor adopted consultative mechanism. This is an; because there iii element cxf urgency ill the matter when transfer order is issued and applicant is directed to report at Chennai Center where he is - 1 i\ H_____"___~____'__ '____ __,..._~...-».. .,___.__-»_~-..__...,:.:,:._.:._...,,..--v-...-.,..-..........-.-.-.....-.,,-.-...3,-T:-_:_:._.::-<_.:_T..:::_____.___...................._._._._._I-._._.-._._.'.r__::-:5-:_-._,-_-.:_-_;;>.~-2;:-5::€'5_:;::a.:2|?-€:5-5%gigi-E?$$i£§%3:-:€5:§§§:;;§_5.;------r.-5:?-ar--i'.§@;¢\fi-{§€'$€§%§-é V', -,5' Z' H Ki' 4 E _ 26 - O.A. N0383/2017 transferred. It cannot be disputed that. every employee has inherent right tin make a representation for cancellation to his transfer, to the Competent Authority, raising personal/domestic and administrative grounds also. In such circumstances of the case, iii cannot be said that the (Ex is run: maintainable ;fim: failing ti) avail remedy of consultative mechanism and for failing to approach time grievance committee first. Ema simply reject the above contention of the respondents.
40. It is obvious from record that CSIR and NEERI directly function under the nodal Ministry of Science and 'Technology. It jji alsc> obvious that CSIR/NEERI has _not framed transfer_ policy/ guidelines/ statutory rules/ for regulating transfer of scientists, officers or other administrative staff members working there. In this respect the learned Advocate for the applicant referred Office Memorandum dated 27.02.2015 issued by 'Government of ldia, Ministry of Personnel, Public Grievances_ and -Pension, Department of Personnel and Training, New Delhi the caption regarding transfer policy in all the cadres. It is obvious that although Ministries/ Departments were requested to prescribe the minimum tenure to set up the mechanism. akin to Civil Services for .. _. _. _. _. _ _ __ ...... --------'Tl'""'"j,'_'_'_'f_f'"IIQ'):I1'1';I}I.jI_'II'I.1TIIT1f."j,f"""""""" F1=11???-'e:1:2£%Ki".$iE~TI"""" ::R<1\\\\Y§§>?§<»@i<:i'3§ '?§§'\'~<" Wm _ 27 V O.A. Nessa/2017 recommending transfer and place it 'in public domain; 1ime.transfer" policy. IH;'appears that ii1 spite of specific directions issued by Government has not been framed. As such at present transfer of Scientist is governed by the general policy on the subject. - . , l "
41. In this respect, the learned Advocate for the applicant has submitted that the applicant has 1 . .
been abruptly chosen for his transfer to Chennai by ignoring many principle Scientists, Senior to him |-
in the cadre and also junior to him who are expert iii soil conservation technology. lie this respect, he referred time seniority' list cm? scientists <sf CSIR--NEEPI as cml 2017 ii1 which (total runflmm: of scientists_iee shown to kne 108. This iie.All India level common seniority list. It clearly reveals that iii CSIR/NEERI there is cnme post cm? Director, 07 posts cxf Chief Scientists, 20 gxmmme of Senior Principle Scientists, 24 Piinciple Scientists and then. Senior Scientists and..lastly an; the lowest level scientists. It is obvious that the Principle Scientists are vwnimim; at different zones aumi at NEERI Nagpur 20 Principle Scientists specialized in difficult fields are stated iii be working, including the applicant. They are listed at serial no.29 to 49 in Annexure N. ' 72/, H -HM ____:::_______________________\_____z___,___ __,:_-_-.:::,-_____._,\_.,;'_.,.._..___._____........_._._,_:_,_?5_._._ H.::...T:R.E5;---------------.-.---->,-=1_-_1_------------------ ---II-----i ------------------------- __ >1Ki,%,? ii rt; $3"-{$6 "" "'$\q_ ><€<?--\; /_/gifigrg-Y 55
-W -H } *= -:-:W;"""
i . 28 O.A. N0383/2017
42. -Perusal. 'of -the said seniority list further reveals that the Senior most Principle Scientist joined on 23.03.1992 followed by others on 01.01.1998, 23.03.1992 again on 01.01.1998, 17.10.1996, 26.12.1997, 24.10.2000, 23.10.2001 24.10.2000, 27.10.2000, l1;03.2000, 31.10.2000, 23.04.1999, and 1fn10.200@ am; Nagpur Some cm? the Principal Scientists having longer stay/station seniority timue the applicant enme available. There is nothing on record to infer-that the respondent no.2 has inflame any steps tii find (nu: feasibility of transfer' of any cm? the Principal Scientists having longer stay at Nagpur than the applicant. It is also stated that some cm? the Principal Scientists are specialized in Waste Water Technology, iii which time applicant iee transferred to Chennai Center, when he is in fact Soil Conservation Expert and has done lot of field work Rs". .
and research work' on soil conservation while working at NEERI Nagpur. The learned Advocate for the respondents submitted that the applicants transfer eumi posting 1J1 the =department (Hf Waste Water Technology, at Chennai Center is relevant to his job profile as Soil Conservation Expert. However Prima~facie it appears that nature of work as Soil Conservation Expert and.ii1 the department _ _ _ _ _ _ _ _ __ § _ _ _ _ _ , _ _ , __ Q s.-;;ai_ag§f;§a_v;r;'--"\ 3: 1? tZ1?,'i§5$'?:-"v S; " -- ""'""
. 29 O.A. N03-83/2017
of Waste Water Technology is guite different,
although both relatey to conservation of
1
. _ Q.
environment. Thus at NEERI Nagpur or at any other
center, the Principal Scientists who are experts in
Waste Water_Techno1ogy being available, respondent
no.2 was _expected. to _shift Principal Scientists
from time said. field ti) work am; Chennai Center.
Further ii;'is stated that an: Chennai NEERI Zonal
Center also few Principal Scientists are presently working-aumi are managing the innit of Waste Water Technology. lie such circumstances cm? the case, we fimj substantial force iii the crmtention <n? the learned Advocate for the applicant that he -is . | I .-
arbitrarily_ selected. :fimr transfer tie Chennai Center, without ascertaining availability of other Principal Scientists dealing' with Waste -Water Technology for being transferred there.
43. - Further as stated earlier since there is no policy/guidelines framed by CSIR for transfer of its employees and since normally Scientists are not transferred unless they ask for a change or are transferred. in extreme office exigency' and they continue to work at a particular station for years :1 ' ' together, it vmme expected crf the respondents to seek willingness from the Principal Scientists for their transfer to Chennai Centre. This exercise has "um I _____ '__m________:;._._._:_.::_';:'.........::::':,......._.. .\"mm :|..........::.............................
_ 'it W
- 1
. - 30 O.A. N0-.383/2017
not been done in the present case and hence it can safely be said that pick and choose method was adopted by the respondents while 'effecting the applicant's transfer to Chennai. For this reason also it can be said that the applicant has been arbitrarily transferred. .
44. We are-aware of the fact that decision taken by the Competent Authority in the matter of transfer should. not Ibe lightly interfered. with. However" considering the peculiar facts and circumstances of the case, we are of the considered view that it is necessary to interfere- in the matter, since the applicant's transfer is found to have been effected. by arbitrary exercise of power, although no case of mala fide is made out kn; the applicant iii issuance cm? impugned transfer order. '
45. So far zne spouse ground. raised kn; the applicant for quashing_ the transfer order is concerned, we do not find any force in this contention, since admittedly the ammdicant's wife + is serving in a private_ college run by a Trust/Society by name Shri Nagpur'Gujrati Mandal. In any case it is a private college although it may have. been receiving salary grant from Government for iiie employees idea Teaching enmi non~teaching 1
- - - -' --_ Y/I *>t*~r~* teat ?'*'=='">iii F7 31 O.A. No.383/2017 staff which will not make its employees as Government servant. 'Thus applicant's wife is rmn; serving in ae College exclusively _run kn; or any other Department of Government. As such the provisions of DoPT's OM dated 30.09.2009 under the caption, "Posting to husband and.vmJie at the same station" zmme not applicable iii the piesent case, since the applicant's wife cannot be treated as + serving in Central or State Government or in Public Sector Undertaking under control of Government. In this behalf the decision rendered by Hon'ble Supreme Court in 'I'.S.R. Subramanian and Others Vs Union of India and Others, (2013) 15 Supreme Court Cases 732 in which the issue regarding Civil Servants working in Central Government and State Government and Reforms in public interest suggested for ' effective, efficient and transparent administration, and in which directions were issued a for posting of husband and wife at one place, till appropriate legislation is enacted. The said decision is not. relevant in this case since applicant's wife is not a Government servant. We, therefore, reject this ground. _
46. During" the course. of arguments the learned Advocate for time respondents relied upon the decision rendered by Hon'ble Supreme Court in up H sun' ---->----------------------------------1-:::3:_jjj_'_'_'3'.-_--<*<__>;:'.'i:'.';j_"--"""_'"'"""""""" "'3'3.".'._1 """""""""""""" " -1"'
--*--32 O.A. No.383/2017
Airports Authority of India Vs Rajeev Ratan Pandey and Others decided -on 17.08.2009, in which while dealing vmiii prayer-tin: grant cm? intermn stay to the transfer order during_pendency of the O.A. it may ' cause prejudice to the administrative functioning of the Departments. In the matter of transfer of Government employee, scope of judicial review is very limited and-Hon'ble High Court will not interfere with an order of transfer lightly, at interim stage or final stage.
47. This aspect tmme alreaemt been. considered by this Tribunal in the preceding paras and it has been held that the impugned transfer order has been arbitrarily issued without taking due care to find out feasibility or availability of other Scientists having longer stay at Nagpur and other Centres and specialised in "Soil Conservation for being transferred to Chennai. Thus the ratio laid down in the aforesaid decision, although cannot- be disputed, the same is not applicable in the present case. u
48. In_ the above referred case of .Airport Authority of India the pmevious decision rendered by the Hon'ble Supreme Court in State of U.P. and Others Vs Gobardhan Lal, 2004 III CLR 78 SC is also relied upon, in which same principle is reiterated. t .1
---- 1""" --""" *""""K /"Iv >1" %*\\'<< _,__ ._ ._ Y!'-'l"_.' i -1- L.-.1 be O.A. No.383/2017 It is also laid down therein that if challenge to the order of transfer should normally be eschewed and should not be countenanced' by the Courts or Tribunals as though they are Appellate Authorities over snnii orders, which_cmnflmi assess time niceties of the administrative needs and requirements of the situation concerned. This is :flm: the reason that Courts or Tribunals cannot substitute 'their own decisions iii the netter (if transfer :fim: that cm?
F .
competent authorities of the State and even
allegations of mala fide when made must be such as to _inspire confidence. In the present case "as stated earlier, mala fide although alleged by the |-
applicant is -not sufficient to hold that the impugned order of transfer is liable to be set aside on that count. However, on other grounds as stated earlier, applicant's transfer is held to be arbitrary and improper and hence it is liable to be set aside. This being so, it cannot be said that the respondents" can get 'any benefit from the aforesaid decision. - 1
49. -The learned Advocate for the respondents, however, placed reliance ant the decision rendered by the Hon'ble High Court of Mumbai'in Suresh S. Bhamre Vs Devendra Purushottam Shinde and Others, 2003 (4) Maharashtra Law Journal 856 decided on '."tt"'".";t'1tt'.1t:?;"T-"2-1T-1II1";";;";"-"-"-'-I-'F-'1-' '-1*';"""""""""$3'?-T""""'"""""".TC I 1 i 2% I WH ii ii is 1 § 34 O.A. No.383/2017 E
08.07.2003, in which it has been held that transfer 1i 1 is ene incident cnf service and rme interference is 1= permissible in the order of transfer of an employee '-r unless it is malicious or mala fide. It has been further held as under:~ ' "Transfer is an incident of service. 9 _ It is immaterial whether an employee- has cm: has run; completed cnme year ' when last posted. Similarly, it is not necessary that smnie action can be taken only if there is something 'against' his performance. A person might _be performing his duties to the satisfaction of the authorities, yet he "can be transferred. if the post held Iby tmin is' transferable. Unless _there is violation of 1 statutory provision tn: the order is 1 . i mala _ fide, the Tribunal cannot interfere with an order of transfer. Since _neither there is breach of' statutory" provisions rmn: the order can be said to be mala fide, the order of transfer of the first respondent must be held to be legal and Pvalid, As there was -no illegality in passing the order nor the order coubd be said tie be mala E fide" or inalicious, the IMaharashtra 1 1 . Administrative Tribunal had committed an error of law as well as of jurisdiction iii interfering with the said order." "
50. In the - present case, although' the '11 applicant appears -to have unblemished .service ' record, still"it will not debar respondent no.2 to consider"1rua for transfer. This iee so because it 1= cannot be said that in absence of specific transfer policy/guidelines, time employee vdunme performance rt? it.,= .,= ..,,== it is 1131 ,1:
:1;
Iii {rt as E 1:
E . 35' _ O.A.No.383/2017 is not good or is facing disciplinary proceeding or undergoing punishment, alone can be considered for transfer. Hence we simply reject this contention.
51. The learned Advocate ikn: the respondents further placed reliance on the decision rendered by a the Hon'ble Supreme Court in Novartis India Limited 'Vs State of 'West Bengal and Others, (2009) 3, Supreme Court Cases 124 decided. on 02.12.2008.
Although it was a case under Labour Law the issue of transfer of Workman was involved in it; In that case failing to join at the transferred place was held to amount to misconduct and the employee was 'dismissed from service, without holding any Disciplinary proceeding. It was held that this is '\
-not permissible, unless a regular departmental enquiry is held against the employee although non- observance of order of transfer and failing'to join at the .transferred place 'amounts to misconduct liable for punishments. Facts of the present case. are different. although the applicant has not J joined en: the transferred. place enwi immediately approached this Tribunal. Further there is nothing on record to show that the applicant was cautioned about initiation of disciplinary proceeding in case he fails ix) join._ IE1 any case ii: cannot be said that impugned transfer order is Inn: liable to he . . .- - - -- -------------------------------------- as if §,\%?_i'§5i/""<{~'$'"'> m JmzmMm--
_ 36 O.A. No.383/2017interfered.
52.' From.tjwa above discussion, ii; is obvious .that the applicant succeeds in establishing some of time grounds raised kn? him ix: interfere vmifii the impugned transfer order. This being so, the present (Lit is allowed. The inpugned transfer ' order cknxwi 09.12.2016 issued 13; respondent KMn3. and_ order dated 01.06.2017 rejecting his representathmi are hereby guashed anni set aside. Consequently; the applicant will be entitled to continue at the present posting, ' -
53. _In the facts and circumstances 'of 'the case. Tina parties are. however, directed to tear.
their respective costs of this O.A. '
(Arvin, ~f Rohea)
'Member (J)
(Dr.Mrut"=ޤaY Saranqi)
Member (A). "FE.
B/H.
A
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v"
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