Govt. servants at the verge of retirement shouldnot be transferred,CAT
Central Administrative TribunalPrincipal Bench, New Delhi.
OA-1965/2010
New Delhi this the 1st day of September, 2010.
Hon ble Sh. N.D. Dayal, Member(A)
1. Sh. S.K. Chopra, D-14, Lajpat Nagar-II, New Delhi-110024.
2. Sh. P.B. Vijay Kumar, B-34, Pandara Road, New Delhi-110003.
3. Sh. Harvinder Singh, Aged I-18 IIIrd Floor, West Patel Nagar, Delhi. . Applicants
(through Sh. K.C. Mittal with Sh. M.K. Bhardwaj, Advocate)VersusUnion of India & Ors. through :
1. The Secretary, Ministry of Health & Family Welfare, Nirman Bhavan, New Delhi.
2. The Joint Secretary, Ministry of Health & Family Welfare, Nirman Bhavan, New Delhi.
3. The Director General of Health Services, Nirman Bhawan, New Delhi.
4. The Director (CGHS), Nirman Bhawan, New Delhi. . Respondents
(through Sh. VSR Krishna with Sh. K.M. Singh for Sh. R.N. Singh, Advocate)
OA-1965/2010
New Delhi this the 1st day of September, 2010.
Hon ble Sh. N.D. Dayal, Member(A)
1. Sh. S.K. Chopra, D-14, Lajpat Nagar-II, New Delhi-110024.
2. Sh. P.B. Vijay Kumar, B-34, Pandara Road, New Delhi-110003.
3. Sh. Harvinder Singh, Aged I-18 IIIrd Floor, West Patel Nagar, Delhi. . Applicants
(through Sh. K.C. Mittal with Sh. M.K. Bhardwaj, Advocate)VersusUnion of India & Ors. through :
1. The Secretary, Ministry of Health & Family Welfare, Nirman Bhavan, New Delhi.
2. The Joint Secretary, Ministry of Health & Family Welfare, Nirman Bhavan, New Delhi.
3. The Director General of Health Services, Nirman Bhawan, New Delhi.
4. The Director (CGHS), Nirman Bhawan, New Delhi. . Respondents
(through Sh. VSR Krishna with Sh. K.M. Singh for Sh. R.N. Singh, Advocate)
Order (Oral)
The three applicants in this O.A. who are Administrative Officers are aggrieved by the order dated 04.06.2010 (Annexure A-1 page-33) by which they have been transferred and relieved from Delhi with effect from the same date to report for duty at Chennai, Hyderabad and Pune respectively. They have further impugned Office Order dated 04.04.2007 (Annexure A-1A page-34) transferring the applicants along with three others on the recommendations of the Transfer Committee constituted by OM dated 11.8.2004. It is submitted that when the order dated 04.04.2007 was issued the applicants had approached the Tribunal in OA-598/2007 in which the following directions were passed on 26.09.2007:- 14. In view of the above, OA is disposed of with a direction to the respondents to consider the representation of the applicants, if the same is made within one month from the date of receipt of a copy of this order. The respondents would pass a reasoned and speaking order within a period of one month thereafter after taking into consideration the judgment passed in their OA. Till then, applicants should not be relieved as the transfer order dated 4.4.2007 has been stayed on 16.4.2007. No costs.
2. An order was issued by the respondents on 07.05.2008 (page-37) rejecting their representations in the light of transfer policy dated 11.8.2004 as no reason and justification was found to review the transfer orders. The applicants once again came before the Tribunal in OA No. 1013/2008 which was decided on 04.11.2009 with the following directions:- 15. Considering the facts and circumstances of the case and in views of the analysis and findings in Para 14 above, I come to the considered conclusion that action of the Respondents is violative of the Guidelines and resultantly the orders dated 7.5.2008 passed by the Respondent-3 are quashed and set aside. The Respondents are also directed to keep the order dated 4.4.2007 in abeyance with the liberty to review and examine the transfer/posting of the Applicants along with others as per the extant Guidelines. Resultantly, in above terms the Original Application is allowed. In view of the typical nature of the case, there is no order as to cost.
3. Thereafter by an order dated 22.12.2009 at page-277 applicants No.1 and 3 appear to have been temporarily deployed from CGHS Delhi to DGHS in Hospital Cell. Subsequently, by an order dated 04.06.2010, copy of which has been enclosed with MA-1599/2010, the respondents having accepted the recommendations of the Transfer Committee that the earlier transfer order dated 04.04.2007 may be implemented, reiterated the transfer orders. In the MA a prayer was made that the applicants should be allowed to discharge their duties in Delhi as their relief was not valid.
4. On 08.06.2010 the Tribunal issued notice in the present OA and directed that the applicants may not be relieved, if they have not already been relieved, till 15.06.2010. It is seen from the Memo dated 16.06.2010 and 17.06.2010 enclosed with MA-1599/2010 that the applicants applied for medical leave but were ordered to report to the places of transfer as they were already relieved. Certain documents were filed by the applicants on 02.07.2010 with MA-1645/2010 such as rotational transfer policy and O.M. dated 30.09.2009 relating to posting of husband and wife at the same station. On 05.07.2010 having considered the prayer in MA-1599/2010 and the fact that the transfer had been stayed by the Coordinate Bench at Bombay in the case of one of the six employees who had been transferred from Pune to Delhi, the Tribunal ordered status quo to be preserved as on that date.
5. It has been submitted on behalf of the applicants that as per order dated 04.06.2010 at page-6 of MA-1599/2010, the Transfer Committee had recommended that the applicants were due to retire on superannuation within two years and as per transfer guidelines they could not be normally disturbed. But the Committee observed that they were transferred earlier by the order of 04.04.2007 and the same could not be implemented on account of stay by the Tribunal. The Committee therefore recommended that the earlier transfer order of 04.04.2007 may be implemented. As such the impugned transfer order is a revival by the Transfer Committee of the earlier transfer order dated 04.04.2007. It is argued that in view of the order dated 09.08.2010 passed by this Tribunal in OA-1454/2010 (copy produced in court) such an earlier transfer order cannot survive after a subsequent transfer order has been passed because the two cannot coexist at the same time. It has been emphasized that the Transfer Committee has violated the transfer policy which stipulates that officers who are due for retirement on superannuation within a period of two years should not be normally disturbed. Admittedly the three applicants are due to retire next year in April, July and August respectively. It is argued that there is no discussion in the order dated 04.06.2010 as to why, despite such beneficial provision in the policy the Committee still recommended the transfer. It appears that this has been done because the order dated 04.04.2007 was issued earlier when they had more service, but it could not be implemented due to stay granted by the Tribunal. It is stated that even the reasons put forward by the applicants in their representations have not been discussed except to say that they were not found to be genuine meriting consideration. The public interest and administrative exigencies requiring such transfer have also not been explained, nor is it clarified how there has been no change in the same despite a lapse of 3 years time.
6. The further argument put forward has been based upon the averments in Para-5S of the OA and the O.M. dated 30.09.2009 at Annexure A-9 (page-273), which inter-alia prescribes that the guidelines for posting of husband and wife at the same station had been reviewed and it was decided that when both spouses are in the same Central Service or working in same department and if posts are available they may mandatorily be posted at the same station. My attention has been drawn to Para-7 of the counter-affidavit wherein the respondents have denied the stand taken by the applicants stating only that the instructions are in the nature of guidelines and cannot be a ground for interference in transfer orders. Details of the service and place of work of the spouses of the applicants have been provided by the applicants with an additional affidavit filed later with leave of the Court.
The three applicants in this O.A. who are Administrative Officers are aggrieved by the order dated 04.06.2010 (Annexure A-1 page-33) by which they have been transferred and relieved from Delhi with effect from the same date to report for duty at Chennai, Hyderabad and Pune respectively. They have further impugned Office Order dated 04.04.2007 (Annexure A-1A page-34) transferring the applicants along with three others on the recommendations of the Transfer Committee constituted by OM dated 11.8.2004. It is submitted that when the order dated 04.04.2007 was issued the applicants had approached the Tribunal in OA-598/2007 in which the following directions were passed on 26.09.2007:- 14. In view of the above, OA is disposed of with a direction to the respondents to consider the representation of the applicants, if the same is made within one month from the date of receipt of a copy of this order. The respondents would pass a reasoned and speaking order within a period of one month thereafter after taking into consideration the judgment passed in their OA. Till then, applicants should not be relieved as the transfer order dated 4.4.2007 has been stayed on 16.4.2007. No costs.
2. An order was issued by the respondents on 07.05.2008 (page-37) rejecting their representations in the light of transfer policy dated 11.8.2004 as no reason and justification was found to review the transfer orders. The applicants once again came before the Tribunal in OA No. 1013/2008 which was decided on 04.11.2009 with the following directions:- 15. Considering the facts and circumstances of the case and in views of the analysis and findings in Para 14 above, I come to the considered conclusion that action of the Respondents is violative of the Guidelines and resultantly the orders dated 7.5.2008 passed by the Respondent-3 are quashed and set aside. The Respondents are also directed to keep the order dated 4.4.2007 in abeyance with the liberty to review and examine the transfer/posting of the Applicants along with others as per the extant Guidelines. Resultantly, in above terms the Original Application is allowed. In view of the typical nature of the case, there is no order as to cost.
3. Thereafter by an order dated 22.12.2009 at page-277 applicants No.1 and 3 appear to have been temporarily deployed from CGHS Delhi to DGHS in Hospital Cell. Subsequently, by an order dated 04.06.2010, copy of which has been enclosed with MA-1599/2010, the respondents having accepted the recommendations of the Transfer Committee that the earlier transfer order dated 04.04.2007 may be implemented, reiterated the transfer orders. In the MA a prayer was made that the applicants should be allowed to discharge their duties in Delhi as their relief was not valid.
4. On 08.06.2010 the Tribunal issued notice in the present OA and directed that the applicants may not be relieved, if they have not already been relieved, till 15.06.2010. It is seen from the Memo dated 16.06.2010 and 17.06.2010 enclosed with MA-1599/2010 that the applicants applied for medical leave but were ordered to report to the places of transfer as they were already relieved. Certain documents were filed by the applicants on 02.07.2010 with MA-1645/2010 such as rotational transfer policy and O.M. dated 30.09.2009 relating to posting of husband and wife at the same station. On 05.07.2010 having considered the prayer in MA-1599/2010 and the fact that the transfer had been stayed by the Coordinate Bench at Bombay in the case of one of the six employees who had been transferred from Pune to Delhi, the Tribunal ordered status quo to be preserved as on that date.
5. It has been submitted on behalf of the applicants that as per order dated 04.06.2010 at page-6 of MA-1599/2010, the Transfer Committee had recommended that the applicants were due to retire on superannuation within two years and as per transfer guidelines they could not be normally disturbed. But the Committee observed that they were transferred earlier by the order of 04.04.2007 and the same could not be implemented on account of stay by the Tribunal. The Committee therefore recommended that the earlier transfer order of 04.04.2007 may be implemented. As such the impugned transfer order is a revival by the Transfer Committee of the earlier transfer order dated 04.04.2007. It is argued that in view of the order dated 09.08.2010 passed by this Tribunal in OA-1454/2010 (copy produced in court) such an earlier transfer order cannot survive after a subsequent transfer order has been passed because the two cannot coexist at the same time. It has been emphasized that the Transfer Committee has violated the transfer policy which stipulates that officers who are due for retirement on superannuation within a period of two years should not be normally disturbed. Admittedly the three applicants are due to retire next year in April, July and August respectively. It is argued that there is no discussion in the order dated 04.06.2010 as to why, despite such beneficial provision in the policy the Committee still recommended the transfer. It appears that this has been done because the order dated 04.04.2007 was issued earlier when they had more service, but it could not be implemented due to stay granted by the Tribunal. It is stated that even the reasons put forward by the applicants in their representations have not been discussed except to say that they were not found to be genuine meriting consideration. The public interest and administrative exigencies requiring such transfer have also not been explained, nor is it clarified how there has been no change in the same despite a lapse of 3 years time.
6. The further argument put forward has been based upon the averments in Para-5S of the OA and the O.M. dated 30.09.2009 at Annexure A-9 (page-273), which inter-alia prescribes that the guidelines for posting of husband and wife at the same station had been reviewed and it was decided that when both spouses are in the same Central Service or working in same department and if posts are available they may mandatorily be posted at the same station. My attention has been drawn to Para-7 of the counter-affidavit wherein the respondents have denied the stand taken by the applicants stating only that the instructions are in the nature of guidelines and cannot be a ground for interference in transfer orders. Details of the service and place of work of the spouses of the applicants have been provided by the applicants with an additional affidavit filed later with leave of the Court.
7. It is urged that as per Rule 255(1) contained in Swamy s GFR in the Chapter on Establishment, a report of transfer is required to be signed both by the relieved and relieving government servants. Also, as per Rule 255 (2) where transfer of charge involves assumption of responsibility for cash, stores, etc., the relevant record and accounts have to be closed with signatures of both the relieved and relieving employees and irregularities, if any, have to be brought to notice. By reference to the observations of the Tribunal in Para-12 of OA-598/2007 and para 5 of DGHS Circular at page 279 it is contended that the applicants dealt with cash handling, purchases of over Rs. 50 to 60 lacs and needed some time for handing over charge and yet they were ordered as relieved with the transfer order itself.
8. Thus it has been concluded that the respondents have not applied their mind to properly consider the case of the applicants contrary to the directions of the Tribunal resulting in the issue of the impugned transfer orders which reflects malice in law on their part to transfer the applicants once again even after the lapse of so many years.
9. The learned counsel for the respondents has vehemently argued that the applicants have an All India Transfer liability being Group-B officers. The policy in respect of transfers has been meticulously followed and the Transfer Committee has considered the applicants case in detail. The applicants have been posted in Delhi for long years and since they occupy sensitive posts it is not permissible for them to continue endlessly thereon, particularly in view of the orders of Central Vigilance Commission in that regard. The Transfer Committee has made its recommendations in accordance with the directions of the Tribunal. The applicants have been relieved by the impugned order and the requirement of handing over valuables, though important, would not overcome the same. Therefore, the transfer order dated 04.06.2010 cannot be faulted. In fact, the transfer of the different officers is inter-linked because there are some going out of Delhi whereas others are coming to Delhi. The transfer order issued on 04.04.2007 would not be affected by O.M. dated 30.09.2009 which was issued subsequently, and which conflicts with the place/station tenure and limited extension prescribed in the transfer policy. It is pointed out that no material has been placed on record providing details of the postings of the spouse in Delhi but despite opportunity no response has been given to the additional affidavit filed later by the applicants.
10. It appears that an additional-affidavit had been filed on 12.08.2010 also by the applicants with a prayer for initiation of contempt proceedings against the respondents because it was alleged that show cause notices dated 09.08.2010 were issued by the respondents asking the applicants to explain why disciplinary action should not be initiated for violating the transfer orders dated 04.06.2010, since they had already been relieved and the interim order dated 08.06.2010 only said that they may not be relieved if they had not already been relieved. A status quo was ordered by the Tribunal on 05.07.2010 but it was ignored. This affidavit has been filed on 12.08.2010. After that final adjudication of this OA has been pressed on the next two dates viz 18.8.2010 and 19.8.2010. No opportunity was given for written reply. As such, no view is expressed thereon.
11. I have considered the submissions made by both sides. The learned counsel have taken me through the relevant records. This is not a case where transfer order dated 04.04.2007 has been superseded by a separate and distinct order. Instead, it is the same order of 04.04.2007 that has once again been recommended to be implemented. This was accepted by the competent authority resulting in the issue of impugned transfer and relieving order dated 04.06.2010 at page 33. It is noticed that neither in OA 598/2007 nor in OA 1013/2008 were any directions given setting aside the transfer order dated 04.04.2007. As such, the reliance placed on the order dated 09.08.2010 passed by this Tribunal in OA 1454/2010 would not be of assistance to the applicants.
12. It is observed that the OM dated 30.9.2009 not only provides for posting of husband and wife at the same station if they are in the same Central Service or working in the same department and if posts are available, but it also takes care of situations in which a husband and wife may be in different services/Departments/PSUs and lays down the arrangements to be made in such cases, not necessarily with a posting at the same station. The O.M. further envisages that the authorities would need to be approached so that appropriate steps could be taken. From the additional affidavit filed in this regard by the applicants, it is observed that no husband and wife seem to be in the same Central Service, or working in the same Department nor has any claim been made in it to that effect. There is also no mention in the affidavit that the applicants/spouse have addressed any representation or request to the authorities for relief under this OM explaining how and under which clause they are eligible.
8. Thus it has been concluded that the respondents have not applied their mind to properly consider the case of the applicants contrary to the directions of the Tribunal resulting in the issue of the impugned transfer orders which reflects malice in law on their part to transfer the applicants once again even after the lapse of so many years.
9. The learned counsel for the respondents has vehemently argued that the applicants have an All India Transfer liability being Group-B officers. The policy in respect of transfers has been meticulously followed and the Transfer Committee has considered the applicants case in detail. The applicants have been posted in Delhi for long years and since they occupy sensitive posts it is not permissible for them to continue endlessly thereon, particularly in view of the orders of Central Vigilance Commission in that regard. The Transfer Committee has made its recommendations in accordance with the directions of the Tribunal. The applicants have been relieved by the impugned order and the requirement of handing over valuables, though important, would not overcome the same. Therefore, the transfer order dated 04.06.2010 cannot be faulted. In fact, the transfer of the different officers is inter-linked because there are some going out of Delhi whereas others are coming to Delhi. The transfer order issued on 04.04.2007 would not be affected by O.M. dated 30.09.2009 which was issued subsequently, and which conflicts with the place/station tenure and limited extension prescribed in the transfer policy. It is pointed out that no material has been placed on record providing details of the postings of the spouse in Delhi but despite opportunity no response has been given to the additional affidavit filed later by the applicants.
10. It appears that an additional-affidavit had been filed on 12.08.2010 also by the applicants with a prayer for initiation of contempt proceedings against the respondents because it was alleged that show cause notices dated 09.08.2010 were issued by the respondents asking the applicants to explain why disciplinary action should not be initiated for violating the transfer orders dated 04.06.2010, since they had already been relieved and the interim order dated 08.06.2010 only said that they may not be relieved if they had not already been relieved. A status quo was ordered by the Tribunal on 05.07.2010 but it was ignored. This affidavit has been filed on 12.08.2010. After that final adjudication of this OA has been pressed on the next two dates viz 18.8.2010 and 19.8.2010. No opportunity was given for written reply. As such, no view is expressed thereon.
11. I have considered the submissions made by both sides. The learned counsel have taken me through the relevant records. This is not a case where transfer order dated 04.04.2007 has been superseded by a separate and distinct order. Instead, it is the same order of 04.04.2007 that has once again been recommended to be implemented. This was accepted by the competent authority resulting in the issue of impugned transfer and relieving order dated 04.06.2010 at page 33. It is noticed that neither in OA 598/2007 nor in OA 1013/2008 were any directions given setting aside the transfer order dated 04.04.2007. As such, the reliance placed on the order dated 09.08.2010 passed by this Tribunal in OA 1454/2010 would not be of assistance to the applicants.
12. It is observed that the OM dated 30.9.2009 not only provides for posting of husband and wife at the same station if they are in the same Central Service or working in the same department and if posts are available, but it also takes care of situations in which a husband and wife may be in different services/Departments/PSUs and lays down the arrangements to be made in such cases, not necessarily with a posting at the same station. The O.M. further envisages that the authorities would need to be approached so that appropriate steps could be taken. From the additional affidavit filed in this regard by the applicants, it is observed that no husband and wife seem to be in the same Central Service, or working in the same Department nor has any claim been made in it to that effect. There is also no mention in the affidavit that the applicants/spouse have addressed any representation or request to the authorities for relief under this OM explaining how and under which clause they are eligible.
13. While my attention has been drawn to the order dated 04.06.2010 by which the recommendations of the Transfer Committee have been accepted, no report of the Transfer Committee itself carrying its recommendations has been brought to notice. Therefore, going by the details contained in the order of 04.06.2010, I find that the contentions raised against the acceptability of the recommendations of the Transfer Committee carry force in so far as there is no discussion of the reasons for rejection of the representations by reference to the grounds taken therein, nor is it clarified as to what were the administrative exigencies and public interest which weighed with the Committee at this point in time to recommend implementation of the transfer order dated 04.04.2007. The intervention of the Tribunal by which the transfer order remained unimplemented for over three years could hardly be a ground to justify the recommendation. It is not the case of the respondents that there is anything adverse against the applicants owing to which their shifting is necessary on administrative grounds.
14. It is noticed that the validity of the transfer policy dated 11.08.2004 has been upheld by the Tribunal in the earlier OA 1013/2008 as per observations in Para-7 thereof and the liability for transfer on an All India basis has been affirmed. Even in the earlier OA-598/2007 no challenge to the transfer guidelines could succeed. Admittedly, the applicants have had very long station tenures at Delhi and even in the post of Administrative Officer. But they are now due to retire by the middle of next year. Therefore, the provision in the transfer policy not to disturb those who have less than two years for superannuation becomes relevant to their case. My attention has not been drawn to any material on record which might reveal the purpose that is expected to be served by such a short tenure at the new places of posting. Merely because the applicants have a long stay and the transfer order could not be implemented so far would not by itself constitute sufficient reason. There is an objective based on considerations of welfare behind such provision in the transfer policy as it would enable a person about to retire after a long and devoted service to make arrangements for settling down thereafter with his family, acquire a house if not already done etc. This would take a reasonable period of time and two years has been considered appropriate. It is also not in dispute that the applicants were holding posts in which they had the charge of valuables and the procedure laid down in the GFR Rules pointed out on behalf of the applicants and noticed above was important. If so, it is not clarified as to how the relief of the applicants without complying with these Rules was justified. If irregularities or discrepancies are discovered later the consequences would surely not be in the interest of the applicants or the respondents either. The time taken in completion of required formalities may further reduce the actual period of service at the place of transfer.
14. It is noticed that the validity of the transfer policy dated 11.08.2004 has been upheld by the Tribunal in the earlier OA 1013/2008 as per observations in Para-7 thereof and the liability for transfer on an All India basis has been affirmed. Even in the earlier OA-598/2007 no challenge to the transfer guidelines could succeed. Admittedly, the applicants have had very long station tenures at Delhi and even in the post of Administrative Officer. But they are now due to retire by the middle of next year. Therefore, the provision in the transfer policy not to disturb those who have less than two years for superannuation becomes relevant to their case. My attention has not been drawn to any material on record which might reveal the purpose that is expected to be served by such a short tenure at the new places of posting. Merely because the applicants have a long stay and the transfer order could not be implemented so far would not by itself constitute sufficient reason. There is an objective based on considerations of welfare behind such provision in the transfer policy as it would enable a person about to retire after a long and devoted service to make arrangements for settling down thereafter with his family, acquire a house if not already done etc. This would take a reasonable period of time and two years has been considered appropriate. It is also not in dispute that the applicants were holding posts in which they had the charge of valuables and the procedure laid down in the GFR Rules pointed out on behalf of the applicants and noticed above was important. If so, it is not clarified as to how the relief of the applicants without complying with these Rules was justified. If irregularities or discrepancies are discovered later the consequences would surely not be in the interest of the applicants or the respondents either. The time taken in completion of required formalities may further reduce the actual period of service at the place of transfer.
15. It is well settled that transfer is an incidence of service and ordinarily the court would not interfere because no one can expect to continue at the same station forever and it is the prerogative of the administrative authorities to decide as to who is to be posted where. However, in view of the aforesaid reasons discussed in paras 13 and 14, I am not persuaded that the respondents have been able to justify the impugned order of transfer of the applicants which is, therefore, set aside. No costs.
(N.D.Dayal)Member (A)/vv/
(N.D.Dayal)Member (A)/vv/
Posts
No comments:
Post a Comment