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G. Rajan v/s The Chief Engineer, Military Engineering Service, Pune & Another

    Original Application No. 180/00263 of 2017

    Decided On, 07 June 2018

    At, Central Administrative Tribunal Ernakulam Bench


    For the Applicant: Sunil Jacob Jose, Advocate. For the Respondents: Sinu G. Nath, ACGSC.

Judgment Text

E.K. Bharat Bhushan, Administrative Member.

1. OA 180/263/2017 is filed by Shri. Rajan G. against the action on the part of the respondents to transfer him from Kochi to Jamnagar and also the refusal to consider his transfer to Trivandrum on compassionate grounds. The reliefs sought in this OA are as follows:-

1. Call for the entire records leading to the issuance of Annexure A8.

2. To set aside Annexure A5 in as much as the same relates to the applicant.

3. To declare A8 order of the 1st respondent is illegal and unsustainable and to quash the same.

4. To declare that the applicant is eligible to be posted at any Unit under the respondents in Trivandrum on extreme compassionate grounds, as recommended by the Zonal Compassionate Ground Board proceedings dated 17/2/16 and 22/7/16.

5. Any further relief or orders as this Hon’ble Tribunal may deem fit and proper to meet the ends of justice.

6. Award the cost of these proceedings.

2. The applicant is a Lower Division Clerk appointed at Garrison Engineer (Naval Works) Fort Kochi in MES on re-employment under Deputation Cum Re-employment on 12.09.2011. He has been posted to the office of Garrison Engineer (Project) (Air Force), Jamnagar by order of the 1st respondent dated 04.08.2016.

3. The applicant prays for cancelling his transfer order on extreme compassionate grounds. Among the reasons he cites is the fact that he has an aged, widowed mother and post-surgery treatment of his wife. He further states that both his daughters are studying in the 12th standard. He submitted Annexure A1 representation dated 25.01.2016 for transferring him to Trivandrum. This was not considered by the 1st respondent despite the Zonal Compassionate Ground Board recommending his case 'with replacement' as evidenced from Annexure A2 document. He disputes the 'with replacement' provision in the said communication as contrary to the guidelines issued by the Department (Annexure A3). The applicant further claims that respondent No. 2 has been sympathetically recommending his case but has not able to convince respondent No. 1 regarding the genuineness of his claim.

4. Due to the inaction on the part of the respondents in granting his request and also the transfer proposed, he filed OA 101/2017 before this Tribunal. That OA was disposed of by order dated 27.02.2017 directing the respondents to consider the case of the applicant for posting to Trivandrum or for continuing at Kochi within a period of 30 days (Annexure A7). However, the respondent No. 1 issued Annexure A8 order dated 24.03.2017 denying his request and ordering him to report to his new Unit in Jamnagar in the organizational interest.

5. The respondents have filed a reply statement where the contentions of the applicant other than those, which are factual, have been denied. It is maintained that the applicant is holding a position which has an all India Service liability and has now put in more than 6 years in his home state, which itself is a rare favour. It is true that he had sought transfer to Trivandrum on compassionate ground but the Board had recommended it on priority II basis only. It is mentioned that the Fort Kochi station is already having surplus man power of LDCs by 10 numbers and Trivandrum station is also overstaffed to a substantial extent. In the respondents’ service, Tenure Turnover Posting (TTP) is insisted upon after completion of five years of service at a station and none can claim Command Compassionate Board Posting when Tenure Turnover Posting is due as it is in this case.

6. The respondents have acted in the best interest of the organization and there is no specific or valid allegation of malafides against the respondents. No Government servant can claim the right to be posted in a particular place. A catena of judgments of the Apex Court as well as other Courts support the contention that a transfer order, if issued in the interest of administration without any malafide, ought not to be interfered with.

7. By way of rejoinder the applicant has disputed the contention that the posting to Gandhinagar is under TTP and states that it is due to the re-organisation of CESC. It is contended on behalf of the applicant that new stations have been set up under Kochi region and four LDC posts are still lying vacant. The respondents have denied the contentions made in the rejoinder through their additional reply statement and have submitted copies of documents at Annexure R2(a) and Annexure R2(b).

8. Shri. Sunil Jacob Jose, learned counsel for the applicant and Shri. Sinu G. Nath, ACGSC, learned counsel for the respondents were heard and all pleadings examined. An interim stay was issued on the movement order by this Tribunal at its first hearing on 30.03.2017 and this has been continued with from time to time.

9. It is not denied that the entire service of the applicant from the date he joined the respondents’ service in September, 2011, has been spent in Kochi. This implies that when the transfer order was issued in August, 2016, he was on the point of completing five years of service at the station, which happened to be part of his home State. We have no reason to disbelieve the respondents’ contentions that his posting was proposed under Tenure Turnover Posting. If it is so, clearly, the applicant was due for a shift. At this point, he chose to move a request on compassionate ground for transfer to Trivandrum, which is stated to be his native town. Again, the respondents have maintained that normally Command Compassionate Board Postings are not considered from individuals who are due for Tenure Turnover Posting. One of the applicant’s contentions for remaining at his present station was that his daughters were in the 12th standard. With the benefit that was allowed to him through the interim stay by this Tribunal, the children would have been able to complete their school education.

10. The officer is employed in a job which has an all India Transfer liability. His initial transfer to Jamnagar had been issued in August, 2016 and the respondents have complied with the directions of this Tribunal in the earlier OA and considered his request through their speaking order at Annexure A8. Whether the Zonal Board has recommended his case 'with replacement' or 'without' is a matter which the applicant need not concern himself overly. The authority vested with the power to accede to the request has, after detailed consideration, decided to decline the same as is seen at Annexure A8. We cannot attribute any impropriety to their decision.

11. The respondents have also quoted the judgments of the Apex Court in the case of Mrs. Shilpi Bose v. State of Bihar and Ors, wherein it has been held:-

'The courts should not interfere with transfer orders which are made in public interest and for administrative reason unless that transfer orders are made in violation of any mandatory statutory rule or on the ground of the malafide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer order issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instruction or orders, the courts ordinarily should not interfere with order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which should not be conducive to public interest'.

12. Reliance has also been placed in the judgment in Union of India v. SL Abbas (1993) 4 SCC 357, wherein it has been held:-

'Who should be transferred where is a matter for the appropriate authority to decide. Unless the order or transfer is vitiated by malafides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is not doubt, the authority must keep in mind the guidelines issued by the Government of the subject if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government Employee a legally enforceab

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le right'. 13. Transfer is a matter involving administrative exigency. It is also necessary to rotate employees between stations. While possible leniency could be shown to an employee for personal reasons in the matter of deployment, it should not be made into a situation where one develops a vested interest in remaining at one station and refuses to move to another at all costs. In the case at hand, the applicant appears to be making use of every ruse to remain in Kochi or move to Trivandrum. While it may be an optimal situation for him, it would not be so for the respondents’ organization, which has to cater to large establishments spread all over the country. After due evaluation of all factors, we are of the view that the OA lacks merit and is liable to be rejected. We proceed to do so. The interim order issued on 30.03.2017 staying the transfer of the applicant and continued with in subsequent postings is hereby vacated. No costs.