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Naresh Kumar v/s Union of India, Through its Secretary, M/o Communications and Information Technology, Department of Electronics and Information Technology (DEIT), New Delhi & Another

Company & Directors' Information:- NARESH KUMAR & COMPANY PVT LTD [Active] CIN = U51109WB1992PTC054475

Company & Directors' Information:- INDIA INFORMATION TECHNOLOGY LTD [Active] CIN = U74140DL1992PLC048211

Company & Directors' Information:- NEW DELHI ELECTRONICS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74899DL1994PTC059474

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

Company & Directors' Information:- N KUMAR ELECTRONICS PRIVATE LIMITED [Active] CIN = U51900PB2010PTC033851

Company & Directors' Information:- S G S ELECTRONICS AND COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U32101TN1999PTC042931

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

Company & Directors' Information:- KUMAR TECHNOLOGY PRIVATE LIMITED [Strike Off] CIN = U72300DL1998PTC096213

Company & Directors' Information:- C H C INFORMATION TECHNOLOGY LIMITED [Strike Off] CIN = U72200WB2001PLC093126

Company & Directors' Information:- V R INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72900MH2000PTC128632

Company & Directors' Information:- K. K. INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72200OR2009PTC011100

Company & Directors' Information:- S A I S INFORMATION TECHNOLOGY PRIVATE LIMITED [Active] CIN = U72100TN2010PTC075284

Company & Directors' Information:- KUMAR INFORMATION TECHNOLOGY PVT. LTD. [Strike Off] CIN = U72200DL2001PTC111297

Company & Directors' Information:- S H INFORMATION TECHNOLOGY PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC135610

Company & Directors' Information:- KUMAR ELECTRONICS PVT LTD [Strike Off] CIN = U52321TN1987PTC014653

    O.A.No. 1859 of 2015

    Decided On, 27 May 2015

    At, Central Administrative Tribunal Principal Bench New Delhi

    By, MEMBER (J)

    For the Applicant: S.N. Sharma, Advocate. For the Respondents: ----

Judgment Text

1. Vide Office Order No.11 (10)/2014-Pers dated 21.11.2014, the competent authority promoted the applicant as Section Officer in pay band of Rs.9300-34800 (PB-2) with grade pay of Rs.4800/- and directed his posting at NIC, Jammu and Kashmir State Unit, Jammu in temporary capacity w.e.f. the date of assuming the charge of the post. Consequently, the applicant was relieved from the duties as Assistant in NIC headquarters, New Delhi. He filed OA 4244/2014 praying therein:-

'(a) Declare Para 3.6(a) of the Transfer Policy (Annexure A-3) as ultra-vires.

(b) Quash and set aside Order No. 11(10)/2010-Pers., dt. 21.11.2014 (Annexure A-1) to the extent it has posted the applicant as Section Officer at the NIC, Jammu and Kashmir State Unit, Jammu, instead of posting the applicant as Section Officer in the NIC Hqtrs., New Delhi.

(c) Quash and set aside Order No.39012/1/2014-Adm. II, dt. 21.11.2014 (Annexure A-2) to the extent the applicant has been stand relieved of his duties in the NIC Head Quarters, New Delhi with immediate effect and asking him to join at NIC, J&K State Unit, Jammu, instead of posting him as Section Officer at the NIC Head Quarters, New Delhi.'

The OA was disposed of in terms of the order dated 19.01.2015, relevant excerpt of which read thus:

'2. On 1st December, 2014, this Tribunal directed the respondents to maintain status quo regarding posting of the applicant as Section Officer. With the view, that the applicant stood relieved on 21.11.2014, the respondents issued his LPC. In the circumstances, the applicant preferred MA No.45/2015 seeking issuance of direction to the respondents to allow him to join duty as Assistant at NIC Headquarter, Delhi. Learned counsel for the applicant submitted that the respondents could not have relieved the applicant from his duties as Assistant, as in terms of order dated 21.11.2014, he had been promoted to the post of Section Officer. Mr. M.S. Reen, learned counsel for the respondents has submitted that once the applicant was promoted from the post of Assistant to Section Officer, he is correctly relieved from duties as Assistant only to join at NIC, J&K as Section Officer and there is no infirmity in the orders of his promotion and relieving. To meet the submissions put forth on behalf of the applicant that he is suffering from certain physical deformity and it is not convenient for him to work at a cold place, learned counsel for the respondents referred to an order passed by this Tribunal in OA No.1300/2012 dated 31.01.2013 filed by the applicant, wherein it could be viewed that the applicants right hand finger got crush injury and otherwise he is not suffering from any other physical deformity and handicaps. Para 5 of the order read out by the learned counsel reads thus:-

'5. We have heard the learned counsel for the Applicant, Shri Nitin Bhatia and the learned counsel for the Respondents, Shri M.M. Sudan. The Applicant himself was also present in the court along with his counsel. First of all, we observe that according to the Annexure A-2 Certificate dated 04.10.1986, the Physical Disability of the Applicant islimited to Crush Injury Right Hand with Traumatic Imputation Right Ring Finger through Proximal Phalynx with Flexiom contracture of middle and little fingers and there is partial loss of hand functions. In other words, the Applicants Right Ring Finger has been amputated due to crush. Otherwise he is not suffering any other physical deformity and handicappedness. The Chief Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India has also, as stated above, taken up the Applicants case with the Respondents. Applicant has been making complaints against the respondents with the Commissioner. Finally, the Commissioner, taking into consideration of examination of the case of the Applicant, vide his order dated 12.10.2011 held as under:-

'The overall facts and circumstances of the case and the nature of degree of disability of the complainant held that the Applicants case not worthy to be taken up with NIC to reconsider the decision of the competent authority and to retain him in Delhi at the stage of promotion.'

3. Finally, learned counsel referred to the judgment of Hon’ble Delhi High Court in WP(C) No. 6020/2013 to espouse that the aforementioned order of this Tribunal was upheld by the Hon’ble High Court. It is noticed that in the said judgment, the High Court had viewed that the representation if at all made by the applicant, would be accorded due consideration by the competent authority. Para 13 to 15 of the judgment read thus:-

'13.The petitioner who appears along with his counsel states that the real problem which he faces has unfortunately highlighted by him. He says that the problem is that when winter sets in and as the temperature falls, since the locomotive movement of his right hand is impaired, there is loss of sensation. He cannot flex the remaining fingers and the thumb and thereby stimulate the flow of blood, which people normally and spontaneously do when their hands freeze.

14. We have advised the petitioner that if this is his real problem it would be advisable for him to join at Shimla and take benefit of the promotion order and get himself examined by a doctor at Shimla when winter sets in the month of November in Shimla town; and if the doctor opines that due to the onset of winter the handicap of the petitioner is aggravated, to make a representation to the competent authority to consider posting petitioner to a place which is not a hill station and preferably somewhere around Delhi.

15. Needless to state said representation if at all made would be accorded due consideration by the competent authority.'

4. It is not in dispute that on an earlier occasion also when the respondents promoted the applicant as Section Officer and posted him at Shimla, he had to forgo the promotion being not in a position to join at a cold place.

5. In view of the aforesaid submissions, learned counsel for the respondents Shri M S Reen on instructions from Shri Anil Rastogi, Joint Director submitted that if the applicant is prepared to make a representation to the competent authority putting forth his difficulties in joining at J&K, the representation would be considered magnanimously and till a view in the representation, in accordance with rules, is taken, the applicant would be allowed to perform duty at NIC Heard Quarter, Delhi. In view of the stand taken by the respondents, the applicant may make a representation within one week from the date of receipt of a copy of this order which would be decided by the respondents as expeditiously as possible preferably within eight weeks from the date of receipt of the representation from the applicant. The competent authority would take a view regarding the intervening period after decision on his representation. It goes without saying that in the event the grievance of the applicant subsist, after the decision in the representation, he would be at liberty to work out his remedy, if any, in accordance with law. OA stands disposed of. No costs.'

In the wake, the applicant made a representation dated 11.02.2015, requesting the Director General, National Informatics Centre to give him posting as Section Officer in Delhi itself. The Joint Director (Pers.) examined the representation and issued Office Memorandum No.18 (14)/2014-Pers. dated 8.04.2015 posting him as Section Officer at NIC Madhya Pradesh State Unit, Bhopal. Para 4 and 5 of the office memo reads thus:-

'4. AND WHEREAS, with the approval of the Competent Authority, Shri Naresh Kumar is hereby informed that in view of position explained above, his request for accommodating him as Section Officer at NIC Hqrs., New Delhi cannot be acceded to. Shri Naresh Kumar is posted as Section Officer at NIC Madhya Pradesh State Unit, Bhopal vide Office Order No. 11(10)/2014-Pers.dated 8th April 2015 (Copy Attached).

5. With this, the respondents comply with the order dated 19.01.2015 of the Hon’ble Central Administrative Tribunal, Principal Bench, New Delhi in respect of OA No. 4244/2014.'

Now the applicant has filed the present OA, praying therein:-

(a) Quash the transfer order dt.8.4.2015 and OM dt.8.4.2015 so passed in the representation so made by the applicant and also direct the respondents to promote the applicant as Section Officer at NIC Delhi on promotion.

(b) Declare the 3.6 (a) Para of the transfer policy as ultra vires and thereby, quash and set aside the same.

(c) Quash the stand relieving order dt. 10.4.2015 and transfer the applicant to Delhi NIC Hqrs. On promotion to the post of Section Officer.

(d) Let the entire record of the Transfer Committee in case of the applicant transferred to Bhopal as well as earlier transfer to Jammu.

(e) Pass any other order as deemed fit and proper in the facts and circumstances of the case.

(f) Allow cost in favour of the applicant.'

The sole grievance espoused by the applicant before Hon’ble High Court in Writ Petition (Civil) No. 6020/2013 and before this Tribunal in OA no. 4244/2014 (ibid) was that when winter sets in and the temperature falls the locomotive movement of his right hand is impaired and there is loss of sensation therein; he cannot flex the remaining finger and thumb, thus cannot stimulate the flow of blood. In his representation also the main grievance of the applicant is physical incapacity to remain in cold weather and the ailment of his wife. Additional plea raised by him therein is the posting of Mr. Sudhir Gupta at Delhi. As far as physical constraints of the applicant regarding his inability to work in cold weather is concerned, the respondents have taken care of the same and have changed his place of posting from Jammu and Kashmir State Unit, Jammu to NIC Madhya Pradesh State Unit, Bhopal in temporary capacity. As far as the issue of ailment of his wife is concerned, the same was not espoused by the applicant either before Hon’ble High Court or in OA No. 4244/2014, thus the plea raised now gives an impression that the applicant is not prepared to go out of Delhi on one pretext or the other. As far as the posting of Mr.Sudhir Gupta is concerned, as has been ruled in the case of Union of India Vs. N.P. Thomas (AIR 1993 SC 1605), the posting of one employee at a particular place would not create any legal right in favour of the employee who seeks posting at a particular place. Relevant excerpt of the judgment read thus:-

'7. In Shilpi Bose's case (AIR 1991 SC 532), the Court observed thus (Para 4):

"In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post as no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the 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 would not be conducive to public interest."

8. In the present case, it cannot be said that the transfer order of the respondent transferring him out of Kerala Circle is violative of any statutory rule or that the transfer order suffers on the ground of mala fide. The submissions of the respondent that some of his juniors are retained by Kerala Circle and that his transfer is against the policy of the Government posting the husband and wife in the same station as far as possible cannot be countenanced since the respondent holding a transferable post has no vested right to remain in the Kerala Circle itself and cannot claim, as a matter of right, the posting in that Circle even on promotion.'

Once the respondents have already shown sufficient magnanimity in adjusting the applicant as Section Officer at NIC Madhya Pradesh State unit Bhopal and it is not for the Courts/Tribunal to interfere in day to day affairs of transfer and postings etc., more particularly when the executive itself has shown sufficient consideration towards the grievance of the employees, I refrain from interfering with the impugned order. As far as challenge to para 3.6 (a) of the transfer policy is concerned, it is stare decisis that it is not open for the Tribunal either to interfere with the policy decision or to lay down any guidelines, unless the same are found absurd or unconstitutional. Once the transfer and posting at a particular place itself is not a legal right, the guidelines issued by the respondents to regulate the posting on promotion of a particular category of employee cannot be found infringing any of the legal right of the employee affected by the same. In Census Commissioner and Others Vs. R. Krishnamurthy (2015) 2 SCC 796), Hon’ble Supreme Court ruled thus:-

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'30. In Premium Granites Vs. State of Tamil Nadu (1994) 2 SCC 691) while dealing with the power of the Courts in interfering with the policy decision, the Court has ruled that: '54. It is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy could be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right.' In the circumstances, the impugned orders are not interfered. Nevertheless, it would be open to applicant to make a representation either after joining at Bhopal for change of his place of posting or before joining at the place of posting to retain him at Delhi as Assistant only. If he prefers to make a representation to keep him posted at Delhi as Assistant, the same should be made within 3 days from the date of receipt of a copy of this order with an undertaking that he is prepared to suffer debarment from further promotion as per the relevant rules and instructions on the subject. If any such representation is made, the respondents would take suitable decision in the same as expeditiously as possible. OA stands disposed of. No cost.