Central Administrative Tribunal - Madras
G. Selvacoumar vs Union Of India (Uoi) And Ors. on 20 February, 2001
JUDGMENT
S.S. Subramani, Vice-Chairman (J)
1. The applicant challenges an order of transfer dated 6.12.2000 on various grounds,
2. The applicant was appointed as Welfare Inspector in the Adi-Dravidar Welfare Department on 13.11.1995 and posted at Karaikal and he served there till 1.12.1998 on which dale he was transferred to Pondicherry. On transfer to Pondichcrry, the applicant went on deputation as Personal Assistant to Chairman, Slum Clearance Board, Pondicherry. Thereafter, he came back to his parent department and posted as Welfare Inspector, Bahour and Kassankadai constituencies. According to the applicant the duties attached to the post of Welfare Inspector includes preparing list of persons eligible to get free pattas from the Government, recommending applications for grant of subsidies, scrutinising the applications for grant of free pattas and also conducting verifications of the genuineness of the claim of the claimants. It is further alleged in the application that the applicant has submitted a report to the higher authorities that five persons namely Bhoopalan, Arumugam, Jayamurthy, Saklhivel and Velayuthan of Vambapct village in Bahour Commune arc not eligible to free pattas. It is further stated that these five persons are resident of Vambapet village which comes under the second respondent's constituency who is the Minister for Social Welfare, Govt. of Pondicherry. It is alleged in the application that the second respondent is interested in the above said five persons and he wanted the applicant also to recommend their names for free pattas. But the applicant did not act to the said request. It is also alleged in the application that Ex-Minister for Social Welfare also complained about the grant of free pattas to these persons.
3. It is slated in the application that on 8.11.2000 a function was arranged to issue free pattas in which the second respondent and Her Excellency Lieutenant Governor of Pondicherry also participated. It is stated that the function went on very well. It is also stated that the second respondent was not happy with the applicant since he did not recommend the names of the said five persons and therefore sought pressure on the first respondent either to take action or transfer the applicant. Thereafter, an order was issued on 15.11.2000 transferring the applicant from Bahour and Cassoukadai Constituencies and posted in the Mannadipet and Raj Bhavan constituencies. On 17.11.2000 an allegation was made against the applicant and a charge was framed against him that he distributed patta in favour of somebody instead of one Tmt. Jayakodi of Seliamcdu. The applicant filed his explanation on 23.11.2000 and thereafter no action was taken. It is also alleged in the application that on 8.11.2000 some eligible persons to whom patta was recommended did not appear and those persons who did not appear on that day were given pattas on the subsequent dates by the second respondent himself. It is stated that except one Chockalingam and Tmt. Anjammal all eligible persons were received pattas and in view of the transfer order dated 15.11.2000 the applicant handed over the charge to the next incumbent on the next day itself. According to the applicant the second respondent was not satisfied with the transfer of the applicant outside his constituency but insisted that the applicant should be transferred outside the region. In view of that, it is alleged that the first respondent issued another order on 6.12.2000 transferring the applicant to Sub-Office of Adi-Dravidar Welfare Department, Yanam and in his place the third respondent was brought in. It is further alleged that the third respondent has not even completed one year of service at Yanam and the present order of transfer of the applicant is only to protect the interest of the third respondent. It is pointed out that before passing the order of transfer the guidelines of transfer policy has not been complied with. Transfer from 'Pondicherry to Yanam is treated as transfer to another region and such transfer is made normally on promotion and even in such eases only persons who has put m the longest period of slay in Pondicherry region should he transferred to outlying regions.
4. It is further alleged in the application that the applicant has been transferred to Pondicherry on 1.12.1998 and on 15.11.2000 he was transferred from Bahour and Cassoukadai constituencies and by the impugned transfer order dated 6.12.2000 now passed the applicant has been transferred to Yanam within a period of three weeks. It is contended by the applicant that the transfer of the applicant every now and then shows the malafide altitude of the authorities and the authorities have also not considered the hardships of the applicant or the relevant rules concerned. In fact, the order of transfer is a result of non-application of mind and it is arbitrary. It is also alleged that the second respondent some how or the other wanted an action to be taken against the applicant and transfer is only one such incident and the officials have only yielded to the pressure of the second respondent.
5. Even though the second respondent has been impleaded in his personal capacity and notice was served on him, there was no representation on behalf of him nor has he filed any reply statement with regard to the various allegations made against him,
6. This official respondent i.e, the first respondent alone has filed a reply wherein they have justified the action taken by them. According to them the applicant has been transferred by an order dated 6.12.2000 since he is an experienced officer for the purpose of implementing various schemes for the welfare of Scheduled Caste people including issue of free Dhoties, Sarees and Cycle to the S.C. people and students, It is found that the applicant is the only person who is experienced and cope up with the scheme activity and the third respondent could not establish the same being a new incumbent and as such there is no illegality in the transfer of the applicant. It is further stated in the reply that after careful consideration it was decided that the third respondent should be substituted by an experienced person much in the scheme activities and for timely implementation of the welfare scheme to Adidravidar people and after following the prescribed procedure including taking the permission of Secretary to Government before the transfer order was passed. It is also stated that there is no pressure from the second respondent in passing the impugned order. It is only because of experienced hand is required at Yanam the impugned order of transfer was passed. The official respondent denied the allegation of malafide and prayed for dismissal of the application.
7. We directed the official respondent to produce the file concerning the transfer of the applicant and the same was placed before us at the time of hearing of the application. How far the file justifies their action is to be considered by us.
8. It is true that while considering the case of transfer unless there is arbitrariness or malafide or the service conditions are affected the courts should not ordinarily interfere with the order of transfer as held by the Supreme Court as early as in 1994 in the case of N.K. Singh v. Union of India and Ors., 1994(6) SCC 98=1994(3) SLJ 37 (SC). In that judgment their Lordships in paragraph 23 held as follows :
"Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several impon-derables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. 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 tack the necessary expertise for personnel management of all Government departments."
9. It is necessary to reproduce the transfer dated 6.12.2000 hereundcr :
"OFFICE ORDER Sub : AWD-Estt - Transfer of Welfare Inspectors - Orders - Issued The following transfer of Welfare Inspectors are ordered with immediate effect:
1. Thiru R. Cartiqueyane, Welfare Inspector, Sub Office, A.W.D., Yanam is transferred and posted to Adi Dravidar Welfare Department, Pondicherry vice Thiru G. Selvakumar, Welfare Inspector transferred.
2. Thiru G. Selvakumar, Welfare Inspector, Adi Dravidar Welfare Department, Pondicherry is transferred and posted to Sub Office, Adi Dravidar Welfare Department, Yanam Vice Thiru R. Cartiqueyana transferred.
3. Thiru R. Cartiqueyane, Welfare Inspector should move first and he is not eligible for Travelling Allowance, |By order of the Secretary (Welfare)]"
10. Before further proceeding in the matter we have considered the wordings of the transfer order. It is clear from the wordings of the transfer order dated 6.12.2000 that the third respondent has been transferred on his request.
11. Now we have to consider whether the transfer order has to be interfered by us taking into consideration the transfer policy and the facts that led to passing the impugned order of transfer.
12. It is admitted by the respondent themselves that they are also governed by the transfer policy vide G.O. Ms. No. 60 dated 27.6.1991. In fact they rely on the same in justifying their action. There is a norm fixed for considering the transfer though it has no statutory force. But it is relevant since the official respondent also rely on the same for justifying their action. Paragraph (b), (e) and (g) of the transfer policy reads as follows :
"(b) Where natives of Karaikal/Mahe/Yanam regions are not available found suitable for being posted in these regions and where it is proposed to transfer an official from Pondicherry region to outlying regions, such transfer should normally be on promotion. If this is not possible, the official who has put in the longest period of stay in Pondicherry region should be transferred to the outlying regions. The period of stay in Pondicherry should be reckoned from the date of his last posting in Pondicherry. An official who has already served in an outlying region should not be transferred to that region, when officials who have not served or who have served for shorter periods in the outlying regions are available. The officials so transferred to the outlying regions will be allowed to retain Government quarters allotted to them to obviate hardships on account of children's education or otherwise. They may be considered for transfer hack to Pondichcrry after completion of two years. No one should normally be required to stay in an outlying region for more than three years.
(c) The inter-regional transfer (otherwise than on the request of the Government servant) should be effected as far as possible only in May/June to coincide with the annual school vacation so as to ensure that the education of the children is not affected.
(g) In exceptional cases, where the transfers are to be effected in deviation of the above principles on an account of administrative exigencies, specific orders of Lieutenant Governor for Group A and B officers and Secretary concerned for Group C and D officials should be obtained."
Why we are emphasising these guidelines are that while getting the permission of the Secretary several factors are suppressed by the officials while narrating the facts. We have already stated that the applicant was working at Karaikal till 1.12.1998 and he came to Pondicherry only on that date and even thereafter he was on deputation for a few months. As per paragraph (g) of the guidelines in exceptional cases where the transfers are to be effected in deviation of the principles mentioned in the guidelines, specific orders of Lieutenant Governor for Group A and B officers and Secretary concerned forGroup C and D officers should be obtained, In this case, the ease of the respondent is that they have obtained the approval of the Secretary (Welfare) and therefore they have satisfied the condition (g) of the guidelines. How far this statement is correct is a point to be considered,
13. We have already stated that at our request the entire file was produced before us. We are not satisfied the way in which the file is prepared. On perusing the file we even doubt as whether it is prepared after the notice of the O.A. was received by the respondent. Under normal circumstances, when a file is prepared in December 2000 will not be signed putting the date as 2001. It can be vice versa. For a man who is practicing for all 365 days signed as 2000 will do so in the following year also as 2000. In the present case not only the officer who has opened the file has signed as 1,12.2001, and he has signed as 6.12.2001 subsequently also. Apart from the same paragraph 3 of note states as follows :
"In this connection, it is stated that Thiru G. Selvakumar, Welfare Inspector is discharging his duty in the Adi Dravidar Welfare Department Pondicherry with effect from 10.11.95 and he is experienced much in the scheme activity. After careful consideration of all the facts, it is suggested that he may be posted to serve in the Sub-office, AWD, Yanam by handling the subjects independently to clear all pending and backlog works and the poor SC people with get the benefits without any more delay. As such, Thiru G. Selvakumar, Welfare Inspector may be transferred to the Sub-office, Adi Dravidar Welfare Department, Yanam on account of Administrative Exigencies as per the transfer policy of the DP & AR (PW), Pondicherry vide G.O.Ms. No. 60 dated 27.6.1991 para (g). In exceptional cases where the transfers are to be effected in deviation of the above principles on account of Administrative Exigencies specific orders of Lt. Governor for Group 'A' and 'B' officers and Secretary concerned for Group 'C' and 'D' officials should be obtained. As this transfer relates to Inter-Regional Transfer pertaining to the Group 'C' official, the Secretary's specific orders should be obtained. Hence, the file is submitted to the Secretary (Welfare) for perusal and for approval please."
It is seen from the above a false statement has been made in the noting wherein it is stated that the applicant had been working at Pondicherry with effect from 10.11.1995. An impression was created in the mind of Ihe Secretary that the applicant has completed more than three years at Pondicherry and therefore he can be transferred. The case of the applicant is that he was appointed on 13.11.1995 as Welfare Inspector and was posted at Karaikal and he worked till 1.12.1998 and Karaikal is outside region. There is no statement anywhere in the file that the applicant has served at Karaikal. There is also a material suppression of fact i.e.the third respondent had requested for transfer to Pondicherry and the official wanted him to be transferred to Pondicherry since he is a new hand. Suppressing his request for transfer and also made a false statement that the applicant had been working at Pondicherry from 10.11.1995, orders have been obtained from the Secretary that the applicant is suitable person for transfer. Why we emphasis this fact is that the approval of the Secretary is to be obtained only in exceptional cases. What are all the exceptional circumstances that leads to the transfer of the applicant are to be placed before the higher authorities. For what reason a false statement has been made and why the facts arc concealed - there is no answer in the reply. It is also not explained by the official respondent why the applicant has been transferred to an outside region when it is not a case of promotion.
14. The'Scheme for distribution of free Dhoties, Sarecs and Cycle to the Scheduled Caste people is not a new Scheme and the speed in which the file was moved also shows some doubt about the bonafide. We find at page 2 of the note portion of the file that one officer was signed on 1.12.2001 and the proposal was agreed by the Secretary allegedly on 6.12.2000 and thereafter the very same officer who has opened the file has stated that the Secretary (welfare) has agreed. PI. put up accordingly. Again he has signed the date as 6.12.2001.
15. We have already stated that on 15.11.2000 there is an order of transfer. If there was an element of urgency or exceptional circumstances nothing prevented the authorities in transferring the applicant by that order itself. An argument was taken that the order dated 15.1 1.2000 is not any of transfer but only a place of posting from one station to another. A copy of the transfer order dated 15.11.2000 was placed before us and it is stated therein that it is an order of transfer. The respondent cannot dispute or interpret that order as something slase. The subsequent conduct of the respondents also shows that somehow or other they wanted to relieve the applicant from that place.
16. While entertaining this application on 12.12.2000, we have ordered to maintain the status quo. At page 15 of the file we have seen the communication of our order to maintain status quo which was received by the respondents on 14,12.2000 at 5.05 PM. On that date the third respondent has not joined the place. On 15.12.2000 the third respondent filed a letter to the Director that he has reported for duty in the fore-noon of 15.12.2000. At that time the interim order was available with the respondents. An argument was taken by the learned Counsel for the respondent, that the notice of the Advocate of the applicant was received by them only on 15.12.2000 and even before that the third respondent has joined the post. It is true that the Advocate's notice was received on that date but we find that the respondents was informed of the order of status quo atleast on the previous day and the same was in the file. In fact the respondents have violated this court's order by permitting the applicant to join the post. Another copy of the interim order was placed at page 21 of the file wherein no date was mentioned. Yet another copy of the status quo order was placed at page 29 of the file. It could be seen there from that the respondents have received the said order on 14.12.2000. We are emphasising on the subsequent conduct of the respondents is that the respondents was been upon to see that the applicant is relieved at the earliest.
17. Even with regard to the communication of the order of transfer, there is a pecularity in this case. A xerox copy of the order dated 6.3 2.2000 is placed on the file along with copy of O.A. wherein it is stated that the order is sent to the individuals concerned through proper channel. But it is seen from the file that the order of transfer was communicated on 6.12,2000 itself by special messenger and not through proper channel. The same could noi be served on the applicant since he was not available. The speed in which the file he moved and the action of the respondents in respect of the third respondent and taking into consideration the suppression of facts, all show that the action of the first respondent was fully suspicious and cannot be said to be bonafide unless there are some pressure from outside.
18. We are not saying that in the Government the files are moving slowly. Under normal circumstances we only find that the files are not moving at all unless there are some other reasons. In the present case the whole proceedings arc completed on the same day i.e. on 6.12.2000.
19. Now coming to the aspect whether the second respondent has influenced the authorities in the order of transfer.
20. There is an allegation of mala fide and various reasons are given by the applicant how the second respondent would have influenced the authorities, In this case the second respondent wanted the applicant should have recommended free pattas for five persons residing in his constituency where the applicant is also working. According to the applicant he could not recommend the same in view of the various obstacles and also in view of the complaint filed by Ex. Minister for Social Welfare. All these factors were informed to the second respondent even on 8.11.2000 when the function was arranged to issue free pattas. On 15.31.2000 the applicant was transferred to a place outside the second respondent's constituency and on 17.11.2000 a charge sheet was issued and the applicant submitted his explanation on 23.31.2000. But no action was taken on the same. Thereafter on 6.12.2000 the impugned order was passed after suppressing the facts. From the reply it is clear that the applicant did raise his objection regarding the grant of pattas to the persons, though it was subsequently granted with the recommendation of higher authorities. The second respondent even though served personally he has not rebutted any of the allegations nor any representation was made on behalf of him. The second respondent is the Minister for Social Welfare and free pattas were issued only under his guidance. The first respondent is also working under him. Taking into account all these circumstances and the way in which the file moved, we do not see that the allegations of the applicant is without basis. It is true that while considering the question of malafide, full particulars must be given. The applicant has given all those circumstances and we feel on the basis of those circumstances taken along with the file, a case has been made out by the applicant that his transfer is not in public interest. Subsequent conduct of the respondent also aptly proves the said allegations. It is very unfortunate that the Secretary has also signed the order of transfer without calling further details and simply signed on the dotted line. The Secretary has also not discharge his duties as enjoined by him under law and the officer who has signed the file as 1.12.2001 and 6.12.2001 has greatly influenced the Secretary. In facl, we find the pages 1 to 3 of the file have been prepared afresh after receipt of the notice of the Original Application. A Government Department should not be stoop to such a level as we find that they have ventured to justify their action in fabricating the records.
21. The learned Counsel for the applicant also brought to our notice the decision of the Allahabad High Court in the case of Salek Chand v. State of U.P. and Ors., 1999(8) SLR 793. The Allahabad High Court cancelled the order of transfer which has been influenced by the local Member of Parliament. We find that there is no application of mind and the transfer order was made only to see that the applicant is shifted from that place and substituted by a person of their choice, We find that the impugned transfer order is bad and we quash the same. In view of that the applicant is entitled to continue at Pondicherry as per the order dated 15.11.2000. The official respondent is directed to re-post the applicant forthwith to his original place of posting by relieving the third respondent also forthwith.
22. Considering the facts and circumstances of this case and we feel that the treatment against the applicant was harsh and not in good faith, it is a fit case where we can award cost which we quantified as Rs. 2500/- to the applicant, to be recovered from the official respondent. The O.A. is allowed accordingly.
23. Registry is directed to send a copy of the order to the Chief Secretary, Government of Pondicherry for immediate action and further directed that the file that has been produced before us is not to be returned till contempt proceedings are over.