Rajwant Sandhu, Member (A).
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
i) That the impugned Speaking Orders (Annexure A-1 (Colly) passed by incompetent authority be quashed and set aside being wholly illegal and arbitrary.
ii) That para 66 and 67 of the transfer policy dated 17.04.2010 (Annexure A-1/A) be declared discriminatory and violative of Article 14 and 16 of the Constitution of India and it be declared that Industrial Staff can be transferred on completion of 2-3 years, at least within the Command.
iii) That the respondents be directed to consider the case of the applicants for posting to their choice station.
2. Averment has been made in the OA that the applicants are working as Mate (SS), FGM (SK, Vech Mach, Elect (MCM), Pipe Fitter, Cap (SK), FGM (HS), Elect (HS), Refg Mach (HS), Mate Carp., Mate Elect, Mate FGM etc. under the control of respondent No. 3 and have been serving as such since dates ranging from 1982 to 2008. The recruitment of the applicants was made by respondent No. 3 (Headquarters, Chief Engineer, Northern Command, C/o 56 APO) and in the appointment letter of one such applicant (Annexure A-2), it has been mentioned that they have All India transfer liability. Even in the advertisements issued by the Department from time to time for selection against the posts to which the applicants were appointed, it was nowhere mentioned that the applicants would remain posted at Leh in the course of their whole service career. It is only after their selection that they were posted at Leh and nearby stations. While the respondents have been following the policy of rotational transfer in respect of ministerial cadre and transferring clerks after every two-three years, the applicants who are working on the technical side, are not being transferred despite completion of the requisite tenure. The applicants have requested the respondents to transfer them outside Leh as they have completed more than the normal tenure prescribed under the policy.
3. It is further stated that some of the applicants filed OAs (1077/JK/2012, 269/JK/2013, 439/JK/2013) before this Tribunal challenging the action of the respondents in not transferring the applicants from outside Leh to their choice stations and further sought directions to the respondents to implement the policy dated 17.04.2010 issued by the respondent-department for the posting of Group-C and D employees of the respondent-department. These OAs filed by the applicants came to decided by this Tribunal on 05.12.2013 and 07.10.2013 (Annexures A-3 & A-4) whereby directions were given to the respondent no. 2 to consider the case of the applicants for posting outside of Leh as per Policy. In pursuance to orders dated 05.12.2013 and 07.10.2013, respondent No.3 issued the speaking orders (Colly) whereby the claim of the applicants for posting to their choice station outside Leh area has been rejected.
4. In the grounds for relief, it has, interalia, been stated as follows:-
(i) The impugned speaking orders have been passed by the Incompetent Authority, therefore, same are liable to be quashed and set aside. This Hon’ble Court vide order dated 07.10.2013 was pleased to direct the respondents No.2 i.e Chief Engineer, Headquarter, Northern Command to consider the case of the applicants for posting to their choice station, whereas, the speaking orders have been passed by the Headquarter 138, Works Engineer.
(ii) Similarly situated employees like clerks and other employees are transferred after completion of 2-3 years, whereas the applicants who are working at Leh since their initial date of appointment have not transferred out till date. Therefore, para 66 and 67 in the policy dated 17.04.2010 is discriminatory and violative of Article 14 and 16 of the Constitution of India.
(iii) It is a hostile case of discrimination because Ministerial as well as technical staff are governed by the transfer policy dated 17.04.2010. The respondents are following the policy of transfer in respect of Ministerial staff working on the same altitude under the same employer after completion of tenure of two years. But the same treatment is not being given to the applicants raising a hostile case of discrimination and violation of Articles 14 and 16 of Constitution of India.
(iv) Admittedly the applicants are working at Leh since their initial date of appointment for last 10-35 years and due to high altitude at Leh, their health is deteriorating. The applicants have completed more than the normal tenure i.e. 2-3 years at the present place of posting, therefore, the action of the respondents in not transferring the applicants to their choice station is illegal and arbitrary. Further, at Leh the normal temperature is minus (-35 degree).
(v) The applicants have been appointed in the Northern Command by the respondent No. 3 i.e. Chief Engineer and in the appointment letter of the applicants, it has been mentioned that they have All India transfer liability. Even in the advertisement issued by the Department, nowhere it has been mentioned that the applicants will remain posted at one station, Leh.
(vi) The temperature remains minus thirty five degree at Leh. The posting of applicants at Leh has adversely affected their health conditions as well. Had there been any indication in the Advertisement with regard to permanently remaining posted at one Station, then the applicants who are from outside station of various States like Punjab, Haryana, UP, Bihar etc., would not have applied for the appointment. It is only after their selection that they were posted at Leh and nearby stations. Their genuine grievance needs to be sorted out by the competent authority i.e. respondents No. 1 & 2.
5. In the written statement filed on behalf of the respondents, it has been stated that the Headquarters 138 Works Engineer (HQ 138 WE) being the parent Commander Works Engineer (CWE) of all the applicants who have filed the present OA and as per the policy in vogue, HQ 138 WE, referred as respondent No. 4 is competent authority for issuing speaking order as DPC/Posting/Transfer concerning the applicant is responsibility of HQ 138 WE. However, HQ 138 WE, respondent No. 4 has issued speaking order only after taking concurrence from HQ Chief Engineer, Northern Command (CE NC) referred as respondent No. 3. Therefore, the appeal for quashing and setting aside the speaking order issued by HQ 138 WE, respondent No. 4 does not hold any ground. Speaking order issued by HQ 138 WE, respondent No. 4, attached as Annexure A-1 is legally correct.
6. HQ CE Northern Command Policy 'Guidelines for Management of Group ‘C’ & ‘D’ post in MES' issued vide letter dated 17.04.2010 (Annexure A-1/A) is amply clear and does not violate the Articles 14 and 16 of Constitution of India. The Guidelines for Management of Group ‘C’ & ‘D’ post in MES have been drafted taking in consideration under-mentioned reference issued on subject by higher HQ:-
(a) E-in-C’s Brancj Letter No. B/20087/HQ SWC/LRS/EIC (I) dated 03.10.2006.
(b) E-in-C’s Branch letter No. B/20148/PP/EIC (I) dated 27.08.2007.
(c) AHQ, AG’s Branch letter No. 48597/Org-4 (Civ)(a) dated 08.08.1957.
(d) AHQ, AG’s Branch letter No. 48597/Org-4(Civ)(a) dated 19.10.1959.
The guidelines have been drafted based on the instruction issued on subject from E-in-C’s Branch, experience gained regarding posting of subordinate staff in Command in the past and peculiar constraints faced in the Northern Command region. Moreover, these guidelines are issued to ensure transparency in the system. Therefore, there is no violation of Articles 14 & 16 of Constitution of India. The applicants are serving at Leh since their initial appointment and have completed over 6 to 36 years of service. Applicants being industrial/non-industrial employees recruited to serve in area of specific CWE, only paras 66 & 67 of ibid policy is applicable in their case. Provision of compassionate posting is applicable to every employee and the applicants can also submit their applications for compassionate posting which will be considered by the appropriate authority as per para 42 of SOP dated 17.04.2010.
7. It has further been stated that the applicants are appointed to serve in the area of Leh against the vacancies available in Leh and as per vacancies raised by the Government. Hence the question of transfer from Leh area in two years does not arise and in this regard Paras 66 & 67 of SOP dated 17.04.2010 refers. It will also be bad in the eyes of law as the applicants were appointed against the vacancies available in Leh area, this will disrupt the seniority/promotion of industrial persons of concerned CWE. Since seniority and promotion of industrial persons are controlled CWE wise, such posting/transfer is not allowed as per rules in vogue.
8. No rejoinder has been filed on behalf of the applicants.
9. Arguments advanced by the learned counsel for the parties were heard. Learned counsel for the applicant stated that when the applicants joined service under the CWE Leh, they were unaware that they would have to continue to serve in Leh and nearby areas for the whole duration of their service. In their appointment orders, mention was made that they could be transferred anywhere in India and hence, many of the applicants who were from the plains areas had accepted the appointments at Leh. However, the respondents citing paras 66 & 67 of the Guidelines for Management of Group C & D posts of MES (Annexure R-1) were not considering the applicants for transfer out of Leh. Due to the long stay at high altitude area, the health of many of the applicants was suffering. Learned counsel stated that while the staff belonging to other cadres was posted in Leh for limited tenure and a rotational policy of transfer was followed in respect of these cadres, the industrial/non-industrial workers were being discriminated against as there was no rotational policy of transfer for them. Learned counsel requested that on humanitarian grounds, the respondent department should consider transferring out those applicants who had already spent the long years in Leh.
10. Learned counsel for the respondents stated that paras 66 & 67 of the Guidelines for Management of Group B & C posts of MES issued on 17.4.2010 (Annexure R-1/A) read as under:-
'66. As far as possible, industrial/non-industrial persons will not be posted out of station/complex. In all cases where industrial/non-industrial staff are rendered surplus by reduction in the authorized strength or their adjustment in other complex becomes necessary to balance out surpluses and deficiencies, the longest stayee in the station will be posted out. In the case of postings involving Inter Command transfers, the junior most person in the grade within the Command will be declared surplus. Volunteers, if any, will be given preference.
67. In case of industrial/non-industrial personnel when transfers are involved for specific tenure due to exigencies/requirements of service within the area, the longest stayee will be posted out. In the case of industrial personnel rendered surplus due to reduction in the authorized strength and if their adjustment outside the CWE area becomes necessary, the junior most in the grade will be posted out. Volunteers will be given preference. Adjustment of surplus from one area to another within the Zone will be carried out by the respective Zonal Chief Engineers. Adjustment involving move from one Zone to another will be carried out by Chief Engineer Command.'
He stated that as per the policy in this regard, industrial/non-industrial workers were not to be posted out of station or complex as far as possible. He stated, however, that representations filed by any of the applicants for transfer out of Leh on humanitarian grounds could always be considered by the respondent department.
11. We have carefully considered the pleadings of the parties and the arguments advanced by the learned counsel. It is seen that in terms of the appointment letters of the applicants, they can be transferred anywhere in India. It is a different matter that industrial/non-industrial staff of the MES are covered by paras 66 and 67 of the Policy Guidelines referred above
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and hence the respondent department has not been moving out the applicants even though they may have served in Leh for long durations. It can be appreciated, however, that persons who are not natives of Leh/Ladakh, do find it difficult to work for long period at these high altitude locations. Virtually, all departments of Government of India provide for rotational transfers in respect of the persons posted at high altitude locations such as Leh/Ladakh. The Guidelines dated 17.4.2010 cited by the respondents, apply to the country as a whole and do not take into consideration the adverse conditions in which the persons posted at Leh/Ladakh and other such high altitude areas have to work. Hence, respondents No. 1 and 2 are directed to review paras 66 and 67 of the Guidelines with a view to examining whether persons posted in the high altitude areas such as Leh, Ladakh and Kargil etc. can be given rotational postings to the plain areas so that they do not have to work in such areas for unduly long periods of time. Such consideration may be completed within four months of a certified copy of this order being served upon the respondents and appropriate guidelines issued to cover the categories of staff such as the applicants for rotational transfers within the Command or elsewhere as may be considered appropriate. 12. OA stands disposed of with the above directions. No costs.