Jagdeep Singh v. Union Of India

By Mr. V.K. Agnihotri, Member (A): In this OA the applicant has sought quashing and setting aside of impugned orders of the respondents dated 28.11.2005 (Annexure A-1) and 01.08.2006 (Annexure A-2), whereby he has been transferred from New Delhi to Imphal/Manipur and accordingly sought to be relieved.

2. The bare facts of the case are that the applicant belongs to the cadre of Executive Engineer (EE, for short) under respondent no. 2. After having served at various stations, the applicant was posted in Delhi on 03.04.1998. On 27.02.2004, the applicant was posted in Government of National Capital Territory of Delhi (GNCTD, for short). On 28.11.2005, the impugned order was issued posting him to Imphal/Manipur in public interest. Hence the OA.

3. The applicant has filed MA No. 1010/2007 on 28.03.2007 praying for taking on record certain documents.

4. When the matter came up for hearing on 17.08.2006, this Tribunal restrained the respondents from giving effect to the relieving order.

5. The applicant has contended that the respondents have issued Transfer Rules, which is published in CPWD Manual, in terms of which it has been laid down that all transfers should be carefully planned within a reasonable space of time. It has further been laid down that as far as possible, the transfer should take effect after the end of financial year/academic year. Transfers during the rest of the year should be ordered only when it is absolutely necessary on administrative exigency. In accordance with the Transfer Policy, the normal tenure in Hard Areas, i.e. North-East, is 3 years and the staff is to be posted in Hard Areas with regard to their longest stay in the areas, which are outside the Hard Areas.

6. The applicant has further contended that Delhi Government has also issued an order based on a decision taken by the Honble Chief Minister in a meeting to discuss various issues in relation to PWD, that the respective Chief Engineers (CE, for short) shall ensure reliving of all officials, who have been transferred out of PWD and have completed their PWD tenure, which is six years for Assistant Engineer (AE, for short)/Junior Engineer (JE, for short) and 4 years for EE/Superintending Engineer (SE, for short). No proposal for retention of any such officers transferred shall be recommended by CE/SE on any account.

7. The applicant has also argued that he, having already worked for about 7 years out of Delhi, is not yet within the range of the EEs to be transferred to Hard Areas because as many as 8 EEs having much longer stay in Delhi than the applicant, like S/Shri H.S. Kohli, Babu Ram, S.K. Mandal, A.S. Shastri, P.R. Charan, Gajender Kumar, Mohd. Sagheer and S.C. Jain, have not been touched, although it is they, who should have been posted in Hard Areas before ordering the transfer of the applicant in accordance with the Transfer Rules. According to the Transfer Rules, as far as possible, the transfer should take effect after the end of financial year/academic year and transfer during the rest of the year should be ordered only when it is deemed absolutely necessary on administrative exigency. But in the present case, there does not appear to be any administrative exigency as the orders of transfer were issued in November, 2005 but the applicant was relieved only after about 7 months.

8. It has been further stated that before the applicant could be relieved in terms of the impugned orders, respondent no. 2 had issued an O.M. dated 06.02.2006, in terms of which a list of EEs, who were said to be due for transfer or would become due for transfer, and circulated along with the said letter requiring the officers, whose names appeared in the said list, to indicate their option for transfer latest by 03.03.2006 by giving names of 3 stations in order of preference for consideration along with the data of postings for the last 10 years. In pursuance of the aforesaid O.M., the applicant gave his option for Jaipur, Central Division-I/II, Border Fencing Division, Ferozepur and posting against the anticipated vacancies preferably in plain areas. However, the option given by the applicant was not considered.

9. The applicant has contended that he submitted a representation on 24.05.2006 in continuation of options, submitted earlier, drawing the attention of the respondents that certain other staff, particularly J.C. Bhardwaj, whose orders of transfer were issued for Aizwal, Central Division, in the impugned order dated 28.11.2005, by which the applicant too stood transferred. However, his order of transfer has been changed from Aizwal to Mumbai and similarly, the transfer of some other staff was also changed in accordance with their options. The applicant also submitted that his case for transfer may also be considered for Dehradun where there is a vacancy. However, this representation of the applicant was ignored by the respondents, which amounts to hostile discrimination.

10. The applicant has also contended that the tenure of EE in PWD is 4 years and he has not yet completed the said tenure of 4 years in PWD as having been posted in PWD in February, 2004 he has only completed about 2 years. The applicant has also stated that the Director (Personnel), PWD, Government of NCT, Delhi, issued a letter to respondent no. 2 on 04.04.2006, in which the Director-General was requested to take appropriate action for posting of substitutes against EEs, who have been transferred outside Delhi and they could not be relieved till arrival of their successors. It was also stated that the applicant and Shri J.C. Bhardwaj could be relieved only on joining of their substitutes in PWD.

11. Respondent Nos. 1 & 2 (Government of India), in their preliminary objections, have stated that the applicant is a Group A officer of the Government of India with all India transfer liability. The impugned Office Order dated 28.11.2005 is a transfer order whereby the applicant, who is an EE (Civil) in the pay scale of Rs. 10,000-15,200/-, has been transferred from PWD, New Delhi, to Manipur, Central Division-I, Imphal against an existing vacancy with immediate effect. The impugned order has been issued by respondent no. 2, in exercise of the powers vested in him to transfer the officers of CPWD at the level of EE in public interest.

12. Respondent nos. 1 & 2 have further contended that no Government servant or employee of Public Undertaking has any legal right to be posted forever at one particular place, since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service and necessary too in public interest and efficiency in the public administration. Unless, an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities, substituting their own decisions for that of the management as against such orders passed in the interest of administrative exigencies of the service concerned [N.K. Singh v. Union of India & Ors., 1994 (6) SCC 98; and National Hydroelectric Power Corporation Ltd. v. 1. Shri Bhagwan, 2. Shiv Prakash 2001 (8) SCC 574].

13. Respondent nos. 1 & 2 have argued that on going through the posting record of the applicant, it could be seen that the applicant eversince he joined CPWD in April, 1998 has remained in Delhi. The normal tenure of posting of an officer at a particular station in CPWD is 5 years and this has already been exceeded in the case of the applicant in the year 2003. Therefore, the applicant has no claim to remain posted in Delhi. It is for the Competent Authority to decide when and where an officer of the level of EE is to be posted in public interest by maintaining a balance between the requirement of the Administration and needs of the officers to be transferred.

14. Respondent nos. 1 & 2 have further contended that Engineering Staff of PWD, Delhi Administration, is in the cadre strength of CPWD. The transfer/posting of EEs in PWD is done by DG (W), CPWD in terms of the existing guidelines pertaining to posting/transfer, which are contained in Section 8 of the CPWD Manual, Volume-I. The transfer of officers in the grade of EE are ordered by DG (W) on the recommendations of a duly constituted Posting/Transfer Committee. In addition to the guidelines (supra), the administrative Ministry, i.e. respondent no. 1, with a view to developing the full potential of officers by exposing them to varying site conditions, have also issued guidelines, vide their letter dated 09.10.1995, for effecting postings and transfers of officers in the grade of EE and SE in CPWD. As per these guidelines, the normal tenure of an officer in the grade of EE at one station is 5 years. Period spent on deputation, training etc., is also taken into account for purpose of counting the tenure of 5 years. In Hard Areas, such as, stations in the North-Eastern Region, though the tenure of stay is generally 2 years but may be increased by DG (W) in exceptional cases. Officers, who have less than 2 years of service to retire are not ordinarily disturbed from their existing station of posting unless they themselves want a change to a station of their choice. It is for the Competent Authority to decide as to when a person, posted at a particular place, is to be transferred in public interest. The guidelines do not restrain the Competent Authority to transfer officers in mid-session in public interest. While deciding the transfers, several factors, viz., Tenure Transfer Rules, Hard Area posting, Zonal requirements, Deputation Policy of the Department, judicious balance between the needs of the Department and personal difficulties of the individual officers etc., are taken into consideration.

15. Respondent nos. 1 & 2 have also stated that the applicant, having joined at Delhi w.e.f. 03.04.1998, is one of the longest stayee in Delhi and is due for transfer. He has never been posted to any Hard Area. There was an acute shortage of EEs, especially in North Eastern Region. The applicant has completed his tenure at Delhi and has not completed Hard Area posting; therefore, he has been transferred from Delhi to Imphal/Manipur. Further, the contention of the applicant that he is not yet within the range of EEs to be transferred as at least 9 EEs, having longer stay than him, are still working in Delhi, is misconceived and cannot be accepted. There are 7 officers above the applicant posted in Delhi in the longest stayee list of EE (Civil) circulated, vide OM dated 06.06.2006 (Annexure A-5). Out of these 7 officers, 4 officers mentioned at serial nos. 1,2,3 and 6 stand transferred to CPWD offices in Cooch Behar, Shillong, Mumbai and Mumbai respectively. The officer at Sl. No. 4, who was also transferred to Bularghat has since been granted retention by the Competent Authority in Delhi upto 31.12.2006 on account of completing higher study. The remaining two officers figured at serial nos. 5 and 7 have not been touched as they are within 2 years of their retirement on superannuation.

16. As regards Shri J.C. Bhardwaj, respondent nos. 1 & 2 have stated that he too was transferred, vide impugned order dated 28.11.2005, from Delhi to Aizwal, but he represented for change of his posting on transfer from Aizwal to Mumbai, which was considered by the Competent Authority and he was posted as EE (MIS), WZ-I, Mumbai, against an existing vacancy, vide Office Order dated 12.05.2006. The applicant too submitted a representation dated 29.11.2005 for change of his posting from Imphal to Ajmer or Dehradun on the grounds that he was suffering from cervical spondylitis and that he had to look after his aged parents. Some VIP references were also received at the same time, addressed to Honble Urban Development Minister, requesting cancellation of the transfer order of the applicant to Imphal and posting him to Ajmer or Bhatinda. The case of the applicant was duly considered by the Hard Case Committee in its meeting held on 24.02.2006. After going through the posting details of the applicant, who has been continuously posted in Delhi since 03.04.1998, i.e. since his appointment in CPWD, acute shortage of EE (Civil) in North Eastern Zones, and non-availability of vacancy in Ajmer Central Division and Dehradun Central Division, the Committee decided that due to urgency to fill up the post of EE (Civil) in NEZ and since the applicant was comparatively a young officer (Date of Birth: 02.02.1965) and due for posting to Hard Area, there was no need to review the earlier order dated 28.11.2005 in respect of the applicant.

17. Respondent nos. 3 & 4 (Delhi Government) have contended that the orders of transfer of the applicant were issued on 28.11.2005, i.e. at a time when 35 posts of EE (Civil) were vacant against a sanctioned strength of 72 in PWD, GNCTD. As such, the applicant could not be relieved in public interest soon after the issue of orders of transfer. Moreover, the applicant was the only EE against 2 sanctioned posts in Commonwealth Project Circle, which was handling the time-bound projects directly related to prestigious Commonwealth Games-2010. In public interest, his relieving could not have been given effect to till such time one more EE was posted in the Commonwealth Project Circle. However, thereafter, with the promotion and posting of 26 EE (Civil) in the month of April/May, 2006, the vacancy position in the grade of EE (Civil) eased out in PWD, GNCTD. In the changed scenario, therefore, no public interest would have been served, if applicant was not relieved from that post.

18. In his rejoinder to the Counter of respondent nos. 1 & 2 (running into 246 pages), the applicant, apart from reiterating and considerably elaborating on various averments made by him in the main OA, has primarily questioned the propriety of respondents ordering his transfer in public interest. He has cited certain judgments to argue that the decision of the respondents to transfer him is motivated by mala fides. He has also given elaborate details of several colleagues who have been continuously posted in Delhi and other cities to argue that the decision of the respondents posting him to Imphal/Manipur is without any justification and not in consonance with Transfer Rules.

19. In his rejoinder to the Counter of respondent nos. 3 & 4, the applicant has reiterated and elaborated on various averments made by him in the main OA.

20. In the course of oral arguments, Shri B.S. Mainee, learned counsel for the applicant, inter alia, highlighted the point that the applicant is seeking cancellation of his transfer also on the ground that he is suffering from cervical spondylitis and he has to look after his old and aged parents. He has, therefore, sought posting as per the options submitted by him.

21. Shri H.K. Gangwani, learned counsel for respondent nos. 1 & 2 stated that all the 9 EE, listed by the applicant as having the longest stay in Delhi, have been posted out. He further contended that the case of the applicant was placed before the Hard Case Committee for EE (Civil) and it was Committees decision that since the applicant was comparatively a young officer and due for posting to hard area, there was no need to review the impugned order dated 28.11.2005, posting him to Imphal/Manipur. He further stated that if the applicant joins at Manipur, he could seek a posting of his choice after two years.

22. On the last date of hearing, i.e. 04.07.2007, learned counsel for R-1 & R-2 was directed to file an affidavit stating that in case the applicant joins in Imphal, he shall be given posting to a station of his choice on completion of the tenure of two years. However, no such affidavit has been filed.

23. Shri Rishi Prakash, learned counsel for respondent nos. 3 & 4 reiterated the averments made in the Counter.

24. We have heard the learned counsel for the parties and perused the material on record. MA No. 1010/2007

25. This MA is allowed and the enclosed documents are taken on record. OA No. 1692/2006

26. In the first instance we notice that the matter relating to the request of the applicant for cancellation of his transfer to Imphal was placed before Hard Case Committee for EE (Civil) in its meeting, chaired by ADG (S&E) and comprising three other Chief Engineers, held specifically for this purpose on 24.02.2006. The Committee recorded the following minutes:- The Hard Case Committee for EE (Civil), met under the chairmanship of ADG (S&P) on 24-02-2006 at 3.00 P.M. in his chamber, to consider the transfer case Shri Jagdeep Singh, EE (Civil). Shri Jagdeep Singh, EE, PWD Division, 7, is presently under posting as EE, Manipur Central Division-I, Imphal, vide orders dated 28-11-2005. He has requested for cancellation of his transfer to Imphal and his posting to Ajmer Central Division or Dehradun Central Division as he has to look after his aged parents and he is also suffering from cervical spondylitis. VIP references have also been received from Shri Bhupinder Singh Hooda, Chief Minister of Haryana and Shri Deepender Singh Hooda, M.P. for his posting to Ajmer or Bhatinda due to his domestic circumstances. The Committee has considered the request of Shri Jagdeep Singh as well as V.I.P. references in this regard. After going through the posting details of Shri Singh, it is found that he has been continuously posted in Delhi since 03-04-98, i.e., since his appointment and therefore, he is due for posting outside Delhi as well as posting to Hard Area. There is an acute shortage of Executive Engineer (Civil), in North Eastern Zone, and therefore he was posted to Manipur Central Division-I, Imphal, which was lying vacant for a quite long time. Further presently there is no vacancy in Ajmer Central Division and Dehradun Central Division and two officers are posted at Bhatinda out of 3 Divisions. The Committee is, therefore, of the view that due to urgency to fill up the post of EE(C) in NEZ as well as Shri Jagdeep Singh is also comparatively a young officer (DOB:02-02-65) due for posting to Hard Area, thre is no need to review the earlier orders dated 28-11-2005, posting him to Manipur Central Division.I, Imphal.

27. With his M.A. No. 1010/2007, the applicant has filed O.M. dated 20.02.2007, which includes Longest Stayee List of EEs (Civil) posted in Delhi. From a perusal of this list it is, inter alia, noted that in a list of 152 EEs, the applicant finds place at serial no. 15 and is, therefore, among the top 15 persons with the longest stay in Delhi. Further, as noted by the Hard Case Committee, the applicant is the youngest among these top 15 longest stayees, except the person at serial no. 9, against whom in the remarks column unauthorized absence has been recorded. Six persons above him are 1947 and 1948 born and hence due to retire shortly. The applicant also has the longest stay in the same post in Delhi, as compared to the 14 persons above him.

28. We also note that the respondents have explained the position regarding the contention of the applicant that there are 9 EEs above him having longer stay in Delhi than him. Some of them have already been transferred and some of them have not been touched because they have two years left for their retirement on superannuation. The respondents have also stated that the applicant has completed his tenure in Delhi and has never been posted to any Hard Areas and that there is an acute shortage of EEs, especially in the North Eastern Region.

29. Respondent nos. 1 & 2 have, inter alia, cited the judgments of the Honble Supreme Court in the case of N.K. Singh (supra) and National Hydroelectric Power Corporation Ltd. (supra). We are in respectful agreement with the ratio of these judgments that transfer is not only an incident, but a condition of service, necessary too in public interest and efficiency in public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of powers or stated to be in violation of statutory provisions prohibiting such transfers, the Courts or Tribunals cannot interfere with such orders as a matter of routine. Challenge in Courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed an interference of courts should be rare, only when a judicially manageable and permissible ground is made out.

30. Against this backdrop, we find that there is no violation of any statutory rule in the transfer of the applicant. Transfer Rules issued by the respondents are only a set of guidelines and do not have the authority of a statute. In any case, from the facts of the case, we do not find any flagrant violation of these rules, which prescribe a tenure of 3-4 years for Executive Engineers. Career prospects of the applicant too have not been adversely affected in any manner by the impugned orders. Even though the applicant has alleged mala fides, he has clearly not been able to establish it, particularly in the context of the recommendations of the Hard Case Committee.

31. Taking the totality of facts and circumstances of the case into consideration, we come to the conclusion that the applicant has not been able to establish any vested right for continuing in Delhi even after completing more than 9 years at the same station. It is also not the case of the applicant that he has already served in Hard Areas and hence he needs to be accommodated as per his request. The applicant has brought to our notice the fact that he has submitted a further representation dated 21.06.2007, which is pending consideration. We also take note of the statement made by the learned counsel for respondent nos. 1 & 2 on the final date of hearing that if the applicant completes his tenure of 2 years in a Hard Station, he shall be posted to a station of his choice in terms of the Transfer Rules.

32. In the result, the OA is disposed of with a direction to the respondents that the representation dated 21.06.2007 (supra) of the applicant shall be disposed of with a reasoned and speaking order within a period of 4 weeks of receipt of a copy of this order. However, an unfavourable decision of the respondents in this regard shall not provide a fresh cause of action to the applicant to agitate the matter before this Tribunal. We further direct that if the appliant is posted to a Hard Area, upon completion of 2 years tenure, he shall be posted to a station of his choice. The stay order of this Tribunal dated 17.08.2006 stands vacated. There will be no order as to costs. (V.K. Agnihotri) (Mukesh Kumar Gupta) Member (A) Member (J) /na/