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Dipen Kumar Deka v/s The Union of India, Rep. by the Secretary to the Government of India, Ministry of Communication & IT, New Delhi & Others

Company & Directors' Information:- E N COMMUNICATION PRIVATE LIMITED [Active] CIN = U92132DL2005PTC143469

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Company & Directors' Information:- J J COMMUNICATION PRIVATE LIMITED [Active] CIN = U74300WB1997PTC085828

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Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- T I COMMUNICATION PRIVATE LIMITED [Active] CIN = U51109HP2009PTC031079

Company & Directors' Information:- S B M COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64201WB2010PTC145582

Company & Directors' Information:- P N COMMUNICATION P. LTD. [Active] CIN = U32204DL2001PTC111327

Company & Directors' Information:- S R DEKA AND CO PVT LTD [Active] CIN = U15319AS1987PTC002678

Company & Directors' Information:- A B AND U COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U74300MH1997PTC107160

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

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Company & Directors' Information:- P & G COMMUNICATION PRIVATE LIMITED [Active] CIN = U74140MH2013PTC251505

Company & Directors' Information:- P J COMMUNICATION PRIVATE LIMITED [Active] CIN = U72900DL2000PTC105416

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Company & Directors' Information:- B. M. COMMUNICATION PRIVATE LIMITED [Strike Off] CIN = U64100DL2012PTC244419

Company & Directors' Information:- H. K. COMMUNICATION PRIVATE LIMITED [Active] CIN = U64100DL2013PTC255831

Company & Directors' Information:- B R COMMUNICATION PRIVATE LIMITED [Active] CIN = U64203DL2002PTC114477

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    Original Application No. 045/00424 of 2016

    Decided On, 16 February 2018

    At, Central Administrative Tribunal Guwahati Bench Guwahati


    For the Applicant: M. Chanda, U. Dutta, S. Begum, Advocates. For the Respondents: A. Chakraborthy, Addl. C.G.S.C.

Judgment Text

Uday Kumar Varma, Administrative Member.

1. This OA has been filed by the applicant Sri Dipen Kumar Deka, who is a Postal Assistant (PA in short) in Arunachal Postal Division of North East Circle, seeking cancellation of his transfer from Bhclukpong Post Office to Itanagar HO. He had earlier came before this Tribunal for the same relief in OA.040/00265/2016, which was disposed of by this Tribunal on 21.07.2016 after hearing both the parties with direction to the applicant to make a comprehensive representation before the respondent authority and further direction to the respondents to consider the said representation in the light of the DoPT OM dated 30.09.2009 within a period of two months. This Tribunal further directed the respondents not to disturb the applicant from his present place of posting till disposal of his representation. This OA is against the order passed by the respondents disposing of his representation.

2. The case of the applicant, in brief, is that his spouse is also a PA in the same department but in a different cicle, i.e., Assam Circle. His spouse, namely, Smt. Julie Hazarika is posted in Ketekibari Sub Post Office under Tezpur Head Post Office. It is the contention of the applicant that he has been posted close to the place of posting of his wife after a considerable gap of time, and at the time of issuing impugned transfer order dated 24.06.2016, he had completed only one year and two months at Bhalukpong.

3. The applicant has essentially taken two grounds for seeking this relief. Firstly, he has referred to para 4.1.(V) of the transfer policy of the department circulated vide memo No.141-141/2014-SPB-ii dated 31.04.2014, which is reproduced below-

'All Sub Post Maser/Postal Assistants in a single handed or double handed Post Offices must be shifted on completion of their post tenure of four years positively, even if it involves moving out of station of their present postings. Further, as per the instructions, concerning preventive vigilance measure, issued by Investigation Davison of the Directorate vide their letters No.8-4/2005-lnv. dated 22.09.2005, 12.01.2012 and 05.12.2012, officials who have been posted as Sub Post Master/Postal Assistant in a single handed or double handed post office irrespective of period of posting/completion of tenure should not be posted back to the same office even after a break. In other words, officials of single handed and double handed Post Offices can have only one posting in such offices during their service period. However, Divisional Heads, subject to following conditions have been vested with the powers to consider an official, who had earlier served in the single/double handed office to be posted back to the same office order other single and double handed office in the division;

(i) The Divisional Head will satisfy himself/herself about the antecedents and character of the officials for whom the provision are being relaxed; and note to this effect will be given in this file.

(iiJ No official will be posted back to the same single-handed/double handed post offices on transfer/deputation or otherwise before a break of full tenure period.

(iii) Information about cases of relaxation so exercised by the Divisional Head will be communicated to the Regional. Postmaster General/Chief Postmaster General as the case may be, in a half yearly statement.’'

His other ground for seeking the cancellation of the transfer order is that DoPT instructions dated 30.09.2009 provide, that spouses maybe posted at the same place or at least as close to each other as possible. On the strength of these tow grounds, he has sought cancellation of the said transfer order.

4. It may be mentioned here that from the filing of the OA, the applicant was granted interim stay on 30.11.2016 and has continuously enjoyed this stay till today.

5. The respondents, in their written statement, have refuted the claim of the applicant. They have contended that the applicant has been transferred in the interest of service. They have contended that there is a prima facie case of financial irregularities allegedly committed by the applicant after he joined at Bhalukpong SO in his official capacity and they apprehended that his stay at Bhalukpong may cause hindrance in the smooth conduction of the departmental enquiry. In the letter dated 07.09.2016 issued by respondent no.3 to the applicant, it is mentioned that there is a pending enquiry under Rule 14 against the applicant relating to the complaint of ballot papers. It is further contended by the respondents that the applicant’s wife Smt. Julie Hazarika has already availed preferential posting in her respective circle. They have further stated that the policy of the DoPT for the posting of spouses does not stipulate that they have to be posted to very nearby place all the time if they belong to two different postal circles.

6. As regards the transfer policy, which has been referred to by the applicant, the respondents contended that the stipulation that PA in a single handed office or double handed office must be shifted after completion of 4 years tenure does not imply that they cannot be shifted before 4 years.

7. We have gone through the case records, heard Mr. M. Chanda, learned counsel for the applicant and Mr.A.ChaKraborty, learned Addl. C.G.S.C. tor the respondents and have given a thoughtful consideration to the whole matter.

8. The applicant is posted in Bhalukpong since 31.03.2016. Prior to that, he was posted in Tezu Sub Post Office from May, 2010 to 28.02.2016. It is clear from the records that a departmental enquiry is underway against the applicant for alleged misconduct during his tenure at Bhalukpong Sub Post Office. This fact was also admitted by the applicant at the time of hearing. Given this fact, it is understandable that shifting of the applicant to some other place may be justified as an administrative exigency. The policy of the DoPT does not specifically and pointedly cover a situation like that of the applicant where both of them are Central Government employees but allocated to two different but adjacent postal Circles. Therefore, it may not be always possible to post them to a place which is adjacent to each other across-the border of the concerned circles. In fact, applicant was accommodated by the respondents for posing in Bhalukpong, which according to the applicant, is only 50-60 kilometers from the place in which his wife is posted. But it appears that his alleged misconduct has led to his transfer from Bhalukpong.

9. We are in agreement with the contention of the respondents that the departmental transfer policy with regard to having a tenure of 4 years indicates that PA should not be retained at one, place beyond 4 years, but it cannot be construed from the wording of the policy that there is a ban on shifting of such PA before they complete a tenure of 4 years, a relief that the applicant is vociferously claiming. There is nothing in the policy which envisages that any PA posted in a single handed Post Office or a double handed Post-Office can be posted to another Post Office before he completes 4 years in that place.

10. Learned Addl. C.G.S.C. for the respondents also placed before us a judgment of the Hon’ble Supreme Court in Rajendra Singh vs. State of U.P. & Ors. (2009) INSC 1351 in support of his submissions. We have gone through the said judgment and of the view that the ratio laid down in the said judgment is applicable in the instant case.

11. Plethora of the Hon’ble Apex Court judgments as well as the judgments of the various High Courts have very categorically held that transfer is not a matter of right and once there are adequate and satisfactory reasons for transferring a Government employee from one place to another, which in the interest of administration, such transfer orders should not be interfered by the courts. In this context, paras 5 of the judgment in Rajendra Singh (supra).

'5. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he, must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402].'

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r /> This judgment further goes on to record as under:- '6. The courts are reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides.' 12. In the instant case, the transfer has been made keeping in mind the fact that employee is facing a departmental enquiry and respondents rightfully apprehend interference with the enquiry if he is allowed to continue in the same place. Further, his case does not appear to be in violation of either the DoPT guidelines or the transfer guidelines of the deportment. 13. Given the above discussions, we are of the considered opinion that the prayer for cancellation of the transfer order of the applicant lacks merit and deserves to be rejected. Accordingly, OA is dismissed. Interim order granted to the applicant stands vacated with immediate effect. 14. There shall be no order as to cost.