Central Administrative Tribunal - Delhi
Sh. Y. K. Sethi vs Union Of India & Ors. Thorugh on 28 October, 2009
Central Administrative Tribunal Principal Bench OA No.1092/2009 MA No.1065/2009 New Delhi, this the 28th day of October, 2009 Honble Dr. Ramesh Chandra Panda, Member (A) Sh. Y. K. Sethi S/o Late Sh. R. K. Sethi Military Farm, Lucknow, H. No.306, C-3, Janakpuri, New Delhi 58. Applicant. (By Advocate : Shri M. K. Bhardwaj) Versus Union of India & Ors. Thorugh 1. The Secretary Ministry of Defence, Govt. of India, South Block, New Delhi. 2. The Quartermaster General, Quartermaster Generals Branch, Army Headquarters, Sena Bhawan, New Delhi. 3. The Dy. Director General of Military Farms, Quartermaster Generals Branch, Army Headquarters, West Block III, R. K. Puram, New Delhi. Respondents. (By Advocate : Shri S. N. Sharma) : O R D E R :
Shri Y. K. Sethi working in the Military Farm at Lucknow, the Applicant herein, has been aggrieved by his transfer from Military Farm, Lucknow to Military Farm, Pimpri. He terms the said transfer as violative of posting policy of the Respondent dated 7.05.2008. He has come up before this Tribunal for the second time. Earlier he visited this Tribunal in OA No.726/2009 which was decided on 27.03.2009 by directing the Respondents to take decision on the representations given by the Applicant by passing a reasoned and speaking order. The Respondents were also directed to maintain status quo till the decision is taken. The Respondents thereafter considered the case and passed an order dated 15.4.2009 (Annexure A/1) rejecting the Applicants representation dated 19.06.2008, inter alia, the Respondents have raised the ground that after the completion of two years period by the Applicant at Lucknow, he was transferred to Pimpri. However, the said transfer order was deferred till 31.03.2009.
2. At the admission stage itself, Applicants interim prayer was taken up on 24.04.2009 where the Counsel for Applicant argued that the transfer and posting to Pimpri was in violation of the Para 5 of the posting policy of the Respondents dated 2.06.2008. Though the said policy prescribed a tenure of 5 to 7 years, the Applicant was transferred just after completion of 2 years. The interim prayer was, therefore, granted by staying the order of the Respondents dated 15.04.2009 till the next date of hearing and the stay has been continuing since then and the Applicant has been working at the Military Farm, Lucknow.
3. The facts of the case would reveal that the Applicant who joined in 1978 at the Military Farm Delhi has worked at different places namely Military Farms Bareily, Agra, Secundarabad, Pimpri, Kanpur and Saharanpur. The applicant has suffered 11 transfers from 1978 to till date. His major grievance is that in none of these places he was allowed to continue his normal tenure of 5 to 7 years since he belongs to the Group C category in the services of Military Farm. Lastly, he was transferred vide order dated 21.09.2005 from Ferozpur Military Farm to Lucknow Military Farm on compassionate ground for a period of two years. It is stated that on completion of said period of two years he was transferred from Lucknow to Pimpri.
4. Shri M. K. Bhardwaj, learned Counsel appearing on behalf of the Applicant contends that the transfer orders dated 26.05.2008, 6.03.2009 and 15.04.2009 being violative of the posting policy are bad in law and needs to be quashed and set aside. He also drew my attention to the letter dated 11.12.1996 (Page 30) to say that posting and transfer of Group-C Civilians should be absolutely minimum and that too in various special circumstances like adjustment of surplus staff, promotions, exigencies of service and administrative requirements. Even when transfer of these categories on above grounds are inescapable, first an attempt should be made to ask for the volunteers who are willing to move to such stations. He alleged that there was no consultation with the Applicant for obtaining his willingness even before his transfer and as such, the transfer order was violative of their own circular dated 11.12.1996 dealing with transfer of Group C and D Civilian employees on administrative grounds. He also drew my attention to the appeal filed by the Applicant to the DDG of Military Farm IHQ of MOD (Army) Branch, New Delhi dated 19.06.2008 which was considered after the intervention of this Tribunal and the detailed order was passed by the Respondents on 15.4.2009. He submits that the said order has not taken into account the grounds stipulated in the appeal filed by the Applicant. He finally pleads that in view of the facts that the transfer order being in violation of the stipulated guidelines of the posting and transfer and the associated orders, needs to be quashed and set aside.
5. On contra, Shri S. N. Sharma, learned Counsel for the Respondents, very strongly opposed the contentions raised by Shri Bhardwaj. His contentions were that the transfer policy of the civilian officials are not applicable in the present case since the Applicants transfer was on his own request and he was transferred on compassionate ground and in the said order it has been clearly stipulated that the period of posting at Lucknow will be for a period of two years. He drew my attention to the order of Lt. Col. Dated 21.09.2005 which indicates in the Remarks Column that transfer from Military Farm, Ferozpur to Military Farm, Lucknow is for a period of two years. The impugned order dated 15.4.2009, he contends, is on the basis of the specific direction issued by this Tribunal in OA No.726/2009 and the Competent Authority namely Brigadier, DDG, Military Farm has passed a reasoned and speaking order whereby he has rejected the representation of the Applicant dated 19.06.2008. He very strongly contends that there is no violation of the transfer policy or posting policy. The transfer is as per the stipulations indicated in the transfer order and, therefore, the OA is liable to be dismissed.
6. Having considered the contentions, I find that the posting policy issued by the Respondents dated 2.06.2008 in Para 9 indicates that all posting orders will generally be issued once in year i.e. March/April and all moves be completed by 30 June of the same year. Moves of Gp C staff will not be frequent in view of huge deficiency in the cadre and those deficiencies will need to be rotated/shared as decided by the posting authority. In the same posting policy it also stipulates in Para 5 that the Group C staff categories including the clerical staff (OS/Asstt/UDC/LDC) to which the Applicant belongs will have a tenure of 5 to 7 years in a station.
7. It is also noted that the Applicant while submitting his appeal for posting transfer on compassionate ground to the DDG, Military Farm (Army) Headquarters, has submitted that his family was in a distress condition due to the demise of his father and elder brother in an accident. Subsequently his mother also passed away and his mother in law who was looking after the accident case also later on passed away and, therefore, he wanted that his posting should be to one of the places closest to Bareilly namely, Agra, Lucknow, Jhansi and Maho. He has not sought in his application for a limited period of transfer and posting. His case was that his family circumstances has put him in a situation that he will be in a position to attend to his family problems if he is closure to Bareilly. It is Respondents who have made his posting to Lucknow for a period of two years. Thought the Applicant did not agitate against the said transfer order stipulating a tenure of 2 years, I find the said indication of two years itself is a violation and de hors of stipulated guidelines of 5 to 7 years. The transfer and posting issued on compassionate ground cannot be restricted by imposing a period of prescription by the Respondents. Once a transfer is effected on the basis of whatever be the grounds the Respondents found as proper and admissible, the posting order thereafter should be as per the laid down policy guidelines. Since the Respondents have got very clear policy that the Group C employees in the Military Farms should stay at a place for a minimum period of 5 years and maximum of 7 years, the Applicant having not completed a minimum period of 5 years, he is entitled to stay and work at Military Farm, Lucknow at least for a period of 5 years.
8. It is well settled legal position that the powers for transfer of employees by the executives is an administrative function, and the Courts and Tribunals should not interfere. But when there is discrimination, arbitrariness, or malafide, the Tribunal is entitled to interfere and issue appropriate directions. In the present case, I find that he imposition of two years period of restriction in the posting at Military Farm, Lucknow, for the Applicant is arbitrary in nature and violative of the guidelines issued by the Respondents. Therefore, this Tribunals interference is necessary to set right the order which has been challenged by the Applicant.
9. Taking into account the above facts and circumstances of the case, I find that there is enough merit in the Applicants contentions. Resultantly, the orders dated 26.05.2008, 6.03.2009 and 15.04.2009 are quashed and set aside with a direction to the Respondents to allow the Applicant to continue in the present position at Military Farm, Lucknow for a minimum period of 5 years as prescribed by the posting policy of the Respondents. With the above directions, the OA, is allowed. No costs.
(Dr. Ramesh Chandra Panda) Member (A) /pj/