Dr Vijay Veer, Director, DRL, Tezpur and Dr AK Singh, DOP, DRDO Hqrs have taken a joint project in DRL on not giving transfer even after completion of tenure. They are trying their best to fulfil their ego even when Honourable CAT, Guwahati has ordered the same. Both are putting all efforts to harass their fellow colleagues. Had they even ask their conscience regarding that? I think the answer is no. From the history we know that there is always a rise and fall of dynasties. We do not know what will be the future of them.
This CAT, Guwahati Bench order no. 317/2014 is another example of their joint venture. In this connection, I would like to draw your kind attention another CAT, Guwahati Bench order no. 49/2010.
Kindly see the point 9 and 10 of CAT, Guwahati Bench order no. 49/2010. It is very important judgement.
CENTRAL ADMINISRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 49 of 2010
Date of Decision: This, the 15th day of March, 2010.
HONBLE SHRI MADAN KUMAR CHATURVEDI, ADMINISTRATIVE MEMBER
Shri R.Periasamy Sub-Divisional Engineer Meghna Division Central Water Commission Silchar-788 006 Dist: Cachar, Assam.Applicant
By Advocate: Mrs. U.Dutta
-Versus-
- The Union of India represented by the Secretary
- The Chairman
- The Member (WP&P)
- The Chief Engineer (HRM)
* * * * * * * *
O R D E R (ORAL)
MADAN KUMAR CHATURVEDI, MEMBER (A):
Applicant is aggrieved against letter dated 06.07.2009 which
reads as under :-
To The Superintending Engineer (C) Office of the Chief Engineer B&BBO4/16/2014 Untitled Page http://judis.nic.in/judis_cat/detail.aspx 2/4 Central Water Commission Rebekka Ville, Barik Point Temple Road, Lower Lachumiere Shillong.Sub: Representation for transfer of Shri B.Jayakumar,SDE reg.
Sir,
I am directed to refer to your letter o.1/4/(G)/2006-BBB/1972 73, dated 4-6-2009 on the above mentioned subject and to say that after careful consideration of the same the competent authority has not agreed to the requests of S/Shri B.Jayakumar, R.Shankarpandian & R.Periasamy, Sub Divisional Engineers for their transfer from B&BBO, Shillong to C&SRO, Coimbatore.
- Adverting to the facts I find that applicant initially joined as Junior Engineer under Central Water Commission on 25.01.1979. After serving at different places, he was eventually transferred from Chennai to Meghna Division, Silchar on 04.07.2007 and has since been continuing in the same station.
- The Government of India, Ministry of Finance vide its O.M. No.20014/3/83-E.IV, dated 14.12.1983 granted some incentives to various categories of Central Government employees for serving in North Eastern States of India. Said O.M. provides, inter alia, that there will be fixed tenure of posting of 3 years at a time for officers with 10 years service or less and 2 years at a time for officers with more than 10 years. Officials on completion of fixed tenure of service may be considered for posting of their choice as far as possible. Applicant has completed more than 20 years of service for respondents organization. He joined at Silchar (Assam) on 04.07.2007 and completed prescribed tenure of 2 years in N.E.Region on 04.07.2009. As such he became entitled to his choice place of posting.On 17.01.2009 applicant has given choice place of posting as under:-
By Advocate: Mrs. U.Dutta
-Versus-
- The Union of India represented by the Secretary, Ministry of Water Resources
Govt. of India, Rafi Marg, Shram Shakti Bhawan, New Delhi – 110 001.
- The Chairman Central Water Commission, Sewa Bhawan, R.K.Puram, New Delhi-110 066.
- The Member (WP&P),Central Water Commission, Sewa Bhawan, R.K.Puram, New Delhi-110 066.
- The Chief Engineer (HRM), Central Water Commission, Sewa Bhawan, R.K.Puram, New Delhi-110 066.
.. Respondents
* * * * * * * *
O R D E R (ORAL)
MADAN KUMAR CHATURVEDI, MEMBER (A):
Applicant is aggrieved against letter dated 06.07.2009 which reads as under :-
To The Superintending Engineer (C) Office of the Chief Engineer B&BBO4/16/2014 Untitled Page http://judis.nic.in/judis_cat/detail.aspx 2/4 Central Water Commission Rebekka Ville, Barik Point Temple Road, Lower Lachumiere Shillong.Sub: Representation for transfer of Shri B.Jayakumar, SDE reg.
Sir,
I am directed to refer to your letter o.1/4/(G)/2006-BBB/1972 73, dated 4-6-2009 on the above mentioned subject and to say that after careful consideration of the same the competent authority has not agreed to the requests of S/Shri B.Jayakumar, R.Shankarpandian & R.Periasamy, Sub Divisional Engineers for their transfer from B&BBO, Shillong to C&SRO, Coimbatore.
- Adverting to the facts I find that applicant initially joined as Junior Engineer under Central Water Commission on 25.01.1979. After serving at different places, he was eventually transferred from Chennai to Meghna Division, Silchar on 04.07.2007 and has since been continuing in the same station.
- The Government of India, Ministry of Finance vide its O.M. No.20014/3/83-E.IV, dated 14.12.1983 granted some incentives to various categories of Central Government employees for serving in North Eastern States of India. Said O.M. provides, inter alia, that there will be fixed tenure of posting of 3 years at a time for officers with 10 years service or less and 2 years at a time for officers with more than 10 years. Officials on completion of fixed tenure of service may be considered for posting of their choice as far as possible. Applicant has completed more than 20 years of service for respondents organization. He joined at Silchar (Assam) on 04.07.2007 and completed prescribed tenure of 2 years in N.E.Region on 04.07.2009. As such he became entitled to his choice place of posting.
On 17.01.2009 applicant has given choice place of posting as under:-
- OPTED STATIONS/REGIONS:-
3). Delta Sub Division-Karikkal under C&SR Region-Coimbatore To buttress the claim following reasons were adduced:-
1). My 75 years old mother staying with my family. She needs constant medical care. Hence my
presence is required at Chennai.
2). I have 27 years Son & 23 years Daughter at Chennai, to fix suitable alliance, as a father my presence is very essential.
- It is palpable from the perusal of impugned letter dated 06.07.2009 that request made by applicant was turned down without assigning any cogent reason. Mrs.U.Dutta, learned counsel for applicant strongly relied on the decision of this Bench rendered in the case of Sanjay Garg vs. Union of India in O.A. No.175 of 2009 dated 04..02.2010. Relevant portion of said judgment is reproduced below:-
- We have heard the rival submissions. It is stipulated in the office memorandum dated 14.12.1983 that officers on completion of the fixed tenure of service in the State or Union Territories of North East Region may be considered for posting to a station of their choice as far as possible. May is an auxiliary verb qualifying the meaning of another verb by expressing ability, competency, liberty, permission, possibility, probability or contingency. Regardless of the instrument however, whether Constitution, statute, deed contract or whatever, Courts not infrequently construe may as shall or must to the end that justice may not be the slave of grammar. However, as a general rule, the word may will not be treated as a word of command unless there is something in context or subject matter of act to indicate that it was used in such sense. It appears that to attract competent officers to serve in the North East Region the provision for choice transfer was made. Right to give a choice was bestowed on the employees. Once a right is created it cannot be disturbed without any legal justification. Jurisprudentially, speaking right is an interest, protected under the law. The justification which is given by the respondents qua, the non consideration of choice is correct in the context of normal transfer rules but when it is stipulated that officer on completion of fixed tenure of service at North East
Region may be considered for posting to a station of their choice, it is incumbent on the authorities concerned to accommodate the officer at the place of his choice as far as possible. However, for some reasons, if such posting is not possible, opportunity of being heard, must be provided and detailed order should be passed stating the reasons as to why the concerned officer could not be accommodated at the place of his choice.
- Transfer can uproot a family, cause irreparable loss to an employee and drive him into desperation. It disrupts education of his children and leads to numerous other complication and problems and cause hardship and demoralization. It therefore follows that policy of transfer should be reasonable and fair and should apply to everybody equally. It cannot be gain said that transfer is an exigency of service and may be ordered for administrative reason and the employer is the best judge in this regard. In a Welfare State to maintain the rule of law attempt should be made to ensure fairness and equality of treatment, arbitrariness should be avoided at all cost. The proposition that who will be posted where is within the discretion of the authorities in control of the matter, is not absolute. It is subject to the limits of law. By serving in the North East Region applicant gained right of consideration for posting to a station of his choice. This fact was not correctly appreciated by the respondents.
The obligation which emanated out of the assurance given to the employee for coming to North East Region was not properly discharged. The issue was not examined in the right perspective. The rule of audi alteram partem (no one should be condemned unheard) was not followed. Taking into consideration the entire conspectus of the case, we direct the respondents to accommodate the applicant at the place of his choice within four months from the date of this order. Meanwhile applicant be not disturbed from the place of his present posting.
I find that facts of the present case are squarely covered by the ratio of the aforesaid ruling. In the present case also I find that obligation which emanated out of the assurance given to the employee for coming to North East Region was not properly discharged. The issue was not examined in right perspective. The rule of audi alteram parterm (no one should be condemned unheard) was not followed. Respondents did not assign any reason in rejecting the request for choice posting. Having regard to the facts, I direct the respondents to accommodate the applicant on the place of his choice within a period of four months from the date of receipt of order. Meanwhile, applicant be not disturbed from his present place of posting.
- In the result, O.A. stands disposed of accordingly. No costs.
(MADAN KUMAR CHATURVEDI)
MEMBER (A)
/BB/
O.A.49 of 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application No. 040/00317/2014
Date of Order: This, the 08th Day of September, 2014
THE HONBLE SMT. MANJULA DAS, JUDICIAL MEMBER
THE HONBLE MOHD. HALEEM KHAN, ADMINISTRATIVE MEMBER
Dr. C. Rajendran, Scientist D, Defence Research Laboratory, Defence Research & Development Organization, Post Box No.2, Tezpur, Assam-784 001.Applicant
By Advocates: Mrs.U.Dutta & Mr.C.S.Hazarika
-Versus-
- The Union of IndiaRepresented by the Secretaryto the Ministry of FinanceSouth Block, New Delhi-110001.
- The Director General,Defence Research & Development Organization,Ministry of Defence, Govt. of India, DRDO Bhawan, Rajaji Marg, New Delhi 110 105.
- The Director,Directorate of Personnel,Defence Research & Development Organization, Ministry of Defence, Govt. of India, DRDO Bhawan, Rajaji Marg, New Delhi 110 105.
- The Director, Defence Research Laboratory, Defence Research & Development Organization, Post Box No.2, Tezpur, Assam-784 001. Respondents
Advocate:
O R D E R (ORAL)
MANJULA DAS, JUDICIAL MEMBER:
By this O.A., applicant makes a prayer to direct the respondent to consider his choice posting in any of the stations of his choices, namely Coimbatore, Chennai, Mysore or Gwalior.
- Mrs. U.Dutta, learned counsel appearing on behalf of the applicant submitted that applicant has joined as Scientist B for the post Parasitology (Microbiology) in Defence Research Laboratory, Tezpur on 07.01.2004. He was promoted to the grade of Scientist C from 01.07.2007 and further to the grade of Scientist D on 01.07.2014 and he has been continuing at Tezpur as such.
- According to the learned counsel, applicant is a permanent resident of village Chathirappatti, Thanjvur district of11/15/2014 Untitled Page http://judis.nic.in/judis_cat/CaseNo_Cat_Result.aspx 2/3 Tamilnadu and he has completed his fixed tenure of 3 (three) years in the N.E. Region way back in 2007 and on completion of his fixed tenure of posting at N.E. Region, he is entitled to any of his choice place of posting. To buttress her argument, learned counsel has drawn our attention to Clause (i) of the O.M. dated 14.12.1983 which reads as under:-
(i) Tenure of posting/deputation:
There will be a fixed tenure of posting of 3 years at a time for officers with service of 10 years or less and of 2 years at a time for officers with more than 10 years of service. Periods of leave, training, etc. in excess of 15 days per year will be excluded in counting the tenure period of 2/3 years. Officers, on completion of the fixed tenure of service mentioned above, may be considered for posting to a station of their choice as far as possible. The period of deputation of the Central Government employees to the States/Union Territories of the North Eastern Region will generally be for 3 years which can be extended in exceptional cases in exigencies of public service as well as when the employee concerned is prepared to stay longer. The admissible deputation allowance will also continue to be paid during the period of deputation so extended.
According to the learned counsel, aforesaid beneficial provision was subsequently extended by the O.M.s dated 01.12.1988 and 22.07.1998.
- According to the learned counsel, applicant’s mother who is a widow is staying alone in his native village and has been suffering from various heart related problems since several years and there is no one to look after her. Applicant being the eldest son in his family has not been unable to look after her in her need as applicant is posted far off place. That apart, according to the learned counsel during his stay at Tezpur, applicant, his wife and son had developed certain ailments due to extreme weather and climate do not suited them.
- According to the learned counsel, due to the aforesaid compelling reasons applicant submitted various representations before the respondents i.e., on 07.04.2008, 12.06.2008, 02.05.2011, 12.09.2012, 13.05.2013, 02.07.2013, 11.07.2013, 23.07.2013 and 24.07.2014 seeking posting in any of the choice places, namely Gwalior, Coimbatore, Chennai or Mysore upon completion of his fixed tenure in N.E.Region, but the respondents have not considered any of his representations till date.
- Learned counsel further submitted that as many as five Scientists, namely Dr. Mehbuba Begum, Shri Y V S Rao, Dr.Jubilee Purkayastha, Dr. Anurag Pandey and Dr. Gaurav Agnihotri, who have jointed at DRL, Tezpur much later than the applicant, have been transferred out to their choices out of N E Region, but in an arbitrary and unreasonable manner the respondents, the respondents have not yet transferred the applicant to any of his choice places despite completion of his tenure at N.E. Region.
- We have heard the learned counsel for the applicant, perused the pleadings and material placed before us.
- Clause (i) of the OM dated 14th December 1983 prescribes that there will be a fixed tenure of posting of 3 years at a time for officers with service of 10 years or less and of 2 years at a time11/15/2014 Untitled Page http://judis.nic.in/judis_cat/CaseNo_Cat_Result.aspx 3/3 for officers with more than 10 years of service. It was further prescribed therein that – officers, on completion of the fixed tenure of service mentioned above, may be considered for posting to a station of their choice as far as possible. The said OM confers a right upon the applicant to be considered for being posted at his place of posting as far as possible. Applicant has completed his tenure of three years in 2007 at DLR, Tezpur. Upon completion of his fixed tenure in N.E.Region, applicant has opted for 4 choice places of posing, namely, Gwalior, Coimbatore, Chennai or Mysore in his representations, the respondents ought to have considered his request, inasmuch as applicant has been continuing at DLR, Tezpur for more than 7 years even after the completion of his tenure.
- In the case of Union of India vs. Dr. Umesh Kr. Mishra WA No. (SH) 17/2012, Honble Gauhati High Court has held that Fairness requires that if a policy has been laid down, the same may be deviated from only if there is any reason to do so. If no reason is forthcoming, the exercise of power of transfer in violation of a laid down policy may be held to be arbitrary. This Tribunal in its decisions rendered in the cases of S K Garg v. UOI & Ors (OA.179/2009 and R.Periasamy v. UOI & Ors (OA.49/2010) held that it was incumbent on the authorities to accommodate the officer at the place of his choice after completion of his fixed tenure and if such posting is not possible opportunity of being heard must be provided and detailed order should be passed stating the reasons as to why the concerned officer could not be accommodated at his place of choice.
Therefore, the respondents ought to have considered the case of the applicant for his posting at any of his 4 choices after completion of his tenure at N. E. Region and in the event of their inability to accommodate him at any of his places of choice; reasoned order ought to have been passed after affording him a reasonable opportunity of being heard. Such steps having not taken, it is a fit case to direct the respondents to consider the case of the applicant for his posting in any of his 4 choices.
- For the reasons, narrated above, we direct the respondents to consider his transfer to any of his choice places, namely, Gwalior, Coimbatore, Chennai or Mysore subject to the availability of vacancy in the light of the aforesaid OMs as well as the observation made hereinabove, as expeditiously as possible, but not later than a period of four months from the date of the receipt of this order.
- O.A. stands disposed of accordingly at the admission stage. No order as to costs.
(MOHD. HALEEM KHAN) (MANJULA DAS) ADMINISTRATIVE MEMBER JUDICIAL MEMBER
