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Judgment
O R D E R
Heard Shri V.K. Upadhyaya, assisted by Mr. Sujit Kumar Agarwal, learned counsel for the applicant and Shri Raghvendra Pratap Singh, assisted by Ms. Karishma Singh, learned counsel for the respondents at the time of hearing of the case.
This Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed by the applicant, seeking the following reliefs:-
8 (i) To set aside the order impugned dated 03.05.2024 passed by the respondent-2 in respect of the posting of applicant from HQ CE (AF), Prayagraj to DGNP, Vizag.
(ii)To pass an appropriate order or direction by directing the respondent-2 to consider the claim of the applicant for transfer to Lucknow Station as per first choice and consider and decide the representation submitted by the applicant dated 22.09.2023, seeking transfer from HQ CEF Prayagraj to Lucknow Station.
(iii)Award the costs of this Original Application in favour of the applicant throughout.
The case of the applicant lies in a narrow compass that the applicant is presently working as Director (C) HQ CE (AF) Prayagraj and posted at HQ CE (AF), Prayagraj Zone. The applicant initially joined as Assistant Executive Engineer (QS & C) at Lucknow on 13.02.1997 in the office of the Chief Engineer, Lucknow Zone, Military Engineer Services (hereinafter referred as ‘MES’).
The applicant during his service period has served at different places and was promoted to the post of Superintending Engineer (QS & C) cum Director (Contracts ) and he was posted in the office of Head Quarter Chief Engineer, Shillong Zone, Meghalaya. Since the last posting of the applicant at Shillong under Eastern Command is considered to be Tenure Station as per Clause-19 (g) of the Guideline, Cadre Management of MES Civilian Officers vide Office Memorandum F. NO.6(12)/2015/D (works II ) dated 09.10.2015, he eligible for choice station. Therefore, after completion of tenure station, the applicant submitted his three choice station for posting such as Lucknow, Allahabad and Delhi respectively on 23.01.2020, the applicant was not transferred to Lucknow vide order dated 30.06.2020, whereas, he was transferred to HQ (CE) Jabalpur Zone.
Aggrieved by the same, applicant represented before the respondents on 02.07.2020, but no heed was paid. Hence, the applicant earlier approached before Central Administrative Tribunal, Guwahati Bench by filing Original Application No.12/2020, which was disposed of vide order dated 24.07.2020 with a direction upon the respondents to decide the pending representation of the applicant, within a period of three months.
In view thereof, the respondent-2 vide order dated 15.09.2020 modified the earlier order dated 30.06.2020, by which the applicant was transferred to present place of Posting i.e. HQ CE (AF) Allahabad, but he was not transferred to his first choice station i.e. Lucknow on the ground that there were no vacant post at Lucknow.
Aggrieved by the same, the applicant again filed an Original Application No.234 of 2020 before the CAT, Guwahati Bench. However, during the pendency of the aforesaid O.A., the applicant joined his service at Allahabad on 22.10.2020 and since then, he is continuously discharging his duties with utmost sincerity. The aforesaid Original Application was disposed of vide order dated 28.10.2020 with the observation that the respondents Authority shall treat this O.A. as a comprehensive representation and consider the case of the applicant by disposing the representation to be submitted by the applicant subject to the availability of the vacancies at Lucknow as and when vacancies arises and pass a reasoned and speaking order within a period of three months thereafter.
In view thereof, the respondents vide order dated 27.01.2021, rejected the claim of the applicant. However, the applicant continued working at Allahabad and completed full tenure of three years at Allahabad, filed a detailed representation on 22.09.2023 before the respondents for consideration of posting of the applicant at Lucknow Station, but no heed was paid.
Aggrieved by the same, the applicant again filed an original Application before this Tribunal being Original Application No. 1133 of 2023, which was dismissed as withdrawn vide order dated 03.01.2024.
Subsequently, the respondents vide order dated 03.05.2024 issued turn over posting, by which the applicant has been transferred from HQ CE (AF), Prayagraj to DGNP Vizag although the representation of the applicant was still pending for consideration of his transfer to Lucknow. Hence, the applicant has been constrained to knock the door of this Tribunal, challenging the order dated 03.05.2024 with respect to the applicant only.
On the other hand, counter affidavit has been filed from the side of the respondents on 10.07.2024, wherein it has been stated that the representation of the applicant dated 22.09.2023 for compassionate ground (hereinafter referred as CG)/Last Leg Posting (LLP), for Lucknow was included in the CG/LLP Board, which was held at E.-in-C’s Branch on 11.12.2023, but same was rejected by the Board of Officers due to non-availability of a vacancy on a non-sensitive posts as mandated for CG/LLP cases vide Para 12 (b) (iv) of Cadre Management Policy (CMP) 2015. The recommendation of the CG/LLP Board was also uploaded in the MES Website in public domain vide E1B letter dated 20.12.2023. Therefore, the representation of the applicant was disposed of prior to issuance of posting order dated 03.05.2024.
As per Policy, the officer repatriating from tenure station, postings are to be accommodated to one of their choice station posting for which Officers have to submit three choice stations under two different commands. Accordingly, the applicant was accommodated on his 02nd Choice Station i.e. Prayagraj and now he has completed his full tenure of three years at CE (AF) Prayagraj and is due for turnover and as such, turnover posting to DGNP Vizag is in accordance with CMP-2015.
In reply, rejoinder affidavit has been filed from the side of the applicant on 09.08.2024, it has been stated that the claim of the applicant vide his representation dated 22.09.2023 was not confied to last CG/LLP, but the claim of the applicant was also that since he had been denied choice posting by the respondents after serving hard tenure and also by the speaking order dated 27.01.2021, his claim was not considered on the ground that the transfer in the middle of tenure is against the interest of the respondent Department and as such, the claim of the applicant was not in consonance with the order of CAT, Guwahati Bench. The order dated 20.12.2023 has not been served or communicated to the applicant at any point of time.
Supplementary counter affidavit has also been filed from the side of the respondents on 03.09.2024, wherein it has been stated that the recent posting of a Joint Director (Contract) at DGNP, Vizag is an administrative measure to offset prolonged absence of a Director (Contract) at DGNP, Vizag due to non-implementation of posting in respect of the applicant, who stand posted as Director (Contract) at DGNP Vizag and was directed to report by 24.05.2024. Majority of Director (Contract) Posts are sensitive in nature and as on date out of 52 posts of Director (Contract ) only 14 are non-sensitive posts and balance are sensitive posts. The applicant’s LLP was denied based on non-availability of non-sensitive vacancy at Lucknow and as such, posted to DGNP, Vizag on sensitive post.
Learned counsel for the applicant assailed the impugned order on the following grounds:-
In compliance of the order of CAT Guwahati, the claim of the applicant was not considered positively assigning technical reasons and absence of vacancy.
From the impugned order, it is crystal clear that one post of Director (C) has fallen vacant where the applicant can be transferred and posted, but the respondents illegally and arbitrary and without deciding the representation dated 22.09.2023 has declined the claim of the applicant.
The applicant is aged about 57 years and he has only three years of service remaining and as per para 12 (b) of the Cadre Management of MES Civilian Officers issued by MoD vide letter dated 09.10.2015, he is fully eligible for compassionate posting /LLP.
The applicant submitted representation dated 22.09.2023 for fresh consideration of his claim for being transferred and posted at Lucknow as the technical reasons assigned for declining the claim of the applicant were no more existent after completion of terms and vacancy had arisen on account of routine transfer.
It is colourable exercise of power by the respondents as instead of filling the vacancy by means of routine annual transfer, the respondents have filled up the vacancy (reserved for Directors) at Lucknow by a Joint Director Rajesh Nigam by a single transfer order just to make a ground for rejecting the claim of the applicant.
On one hand, the applicant, who is holding the post of Director and competent for being posted at Lucknow has been ignored despite completing hard tenure in 2020 and his first choice was refused on the ground of no vacancy. Moreover, Shri Rajesh Nigam had already completed his term at Lucknow in 2020, but he has been again posted in the same office in an officiating capacity on the post of Director when he is no way competent or eligible to hold the post of Director.
The stand taken by the respondents that only one Officer can be posted and since one Joint Director is posted at Lucknow, applicant cannot be considered is not tenable in the eyes of law as at the same time, one Joint Director has also been posted vide order dated 05.08.2024 in the Office of Vizag, where the applicant has been posted by the impugned order.
The applicant being Director has never been served on the non-sensitive post in the entire career and as such, he deserves to be posted on a non-sensitive post on a priority basis.
The applicant accepted the second choice as the respondents granted second choice and were of the considered opinion that to consider the applicant’s claim whenever the vacancy arises and occasion comes.
Per contra, learned counsel for the respondents vehemently opposed the submissions of the learned counsel for the applicant and submitted as under:-
The applicant has already joined the transferred place and as such, instant Original Application becomes infructuous.
The applicant is trying to mislead the Court by bringing on the matter, which has already disposed of vide speaking order dated 27.01.2021.
The post of the applicant at DGNP, Vizag vide impugned order dated 03.05.2024 is in accordance with the Posting Policy/Guidelines. By the impugned order, not only the applicant several others officers were posted from one place to another place.
The applicant’s claim for second choice posting (double benefit) in lieu of one tenure station posting is untenable.
The recent posting of a Joint Director (Contract) at DGNP, Vizag is an administrative measure to offset prolonged absence of a Director (Contract) at DGNP, Vizag due to non-implementation of posting in respect of the applicant, who stand posted as Director (Contract) at DGNP Vizag and was directed to report by 24.05.2024.
The applicant’s LLP was denied based on non-availability of non-sensitive vacancy at Lucknow and as such, posted to DGNP, Vizag on sensitive post.
After considering the applicant’s willingness for non-sensitive posts, one vacancy of a non-sensitive post is available at ADG (NEI), Guwahati, if the applicant is willing, he may be accommodated there. The instant Original application is liable to be dismissed.
I have considered the submissions so raised by the applicant in person and learned counsel for the respondents and perused the record.
It reflects from the record that admittedly, the applicant has already been joined new place of his posting at Vizag in compliance of impugned order dated 03.05.2024, but the learned counsel for the applicant contested the matter on merits and as such, instant Original Application is being decided on merits.
It reflects from the record that the applicant was promoted to the post of Superintending Engineer (QS & C) cum Director (Contracts ) and he was posted at Shillong Zone, Meghalaya under Eastern Command was considered to be Tenure Station as per Clause-19 (g) of the Guideline, Cadre Management of MES Civilian Officers vide Office Memorandum dated 09.10.2015, he was eligible for choice station. After completion of tenure station, the applicant submitted his three choice station on 23.01.2020 for posting such as Lucknow, Allahabad and Delhi respectively, but he was transferred to HQ (CE) Jabalpur Zone vide order dated 30.06.2020 against his choice after interference of the CAT Guwahati, the said order was modified vide order dated 15.09.2020 and applicant was posted at HQ CE (AF) Allahabad, but he was not transferred to his first choice station i.e. Lucknow on the ground that the vacancy was already filled up.
Against which, the applicant again filed an Original Application No.234 of 2020 before the CAT, Guwahati Bench, but during the pendency of the aforesaid O.A., the applicant joined his service at Allahabad on 22.10.2020. The aforesaid Original Application was disposed of vide order dated 28.10.2020 with the observation that the respondents Authority shall treat this O.A. as a comprehensive representation and consider the case of the applicant by disposing the representation to be submitted by the applicant subject to the availability of the vacancies at Lucknow as and when vacancies arises and pass a reasoned and speaking order within a period of three months thereafter. In view thereof, the respondents vide order dated 27.01.2021, rejected the claim of the applicant, but the same has not been under challenged by the applicant.
Since the applicant was going to complete his tenure at Allahabad and he represented before the respondents on 22.09.2023 for consideration of posting of the applicant at Lucknow Station, but the respondents vide order dated 03.05.2024, posted/ transferred the applicant from HQ CE (AF), Prayagraj to DGNP Vizag.
From the impugned transfer/posting order dated 03.05.2024, it appears that not only the applicant, total 24 Officers were posted from one place to another place under different heads of posting and the name of the applicant finds place at Sr. No. (h) under Turn Posting and as such, it is chain posting/transfer.
Admittedly, the applicant, after the tenure station posting at Shillong, Meghalaya, had already availed one choice posting i.e. Allahabad, where he posted i.e. his second choice station as in his application for choice station, the applicant preferred himself Allahabad as his second choice station. During this posting, the case of the applicant for tenure posting at Lucknow was rejected by the respondents vide order dated 27.01.2021, which is not under challenge.
Since, the applicant has already completed his tenure as a choice posting, the claim of the applicant for one more posting to his choice station in lieu of one tenure station posting is technically incorrect. Admittedly, as per Policy, after completion of tenure station, the Officer was entitled for his choice station posting. The applicant himself had given his second choice station as Allahabad and completed full duration of three years at Allahabad.
Further, it reflects that the representation of the applicant dated 22.09.2023 has already been considered by the respondents vide order dated 20.12.2023 i.e. before issuance of impugned transfer/posting order dated 03.05.2024, wherein the case of the applicant was not recommended by the Board of Officers due to non-availability of a vacancy on a non-sensitive posts as mandated for CG/LLP cases vide Para 12 (b) (iv) of Cadre Management Policy (CMP) 2015.
Further, the Courts/Tribunal should not interfere with a transfer/posting order, which is made in public interest and for administrative reasons. The posting order of the applicant is not made in violation of any mandatory statutory rule or on the ground of mala-fide. Posting /transfer order issued by the Competent Authority does not violate any of legal rights of the employees.
The issue fell for consideration before the Apex Court in case of Somesh Tiwari v. Union of India, (2009) 2 SCC 592, wherein it has been held as under:-
16.Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds— one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
In Gujarat Electricity Board Vs. Atmaram Sungomal Poshani, AIR 1989 SC 1433, the Supreme Court has observed as under:-
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration."
So far as with regard to the argument of the learned counsel for the applicant that the main ground for non- consideration of the case of the applicant for posting at Lucknow was one Joint Director was already posted at Lucknow, whereas one Joint Director has also been posted vide order dated 05.08.2024 in the Office of Vizag, is concerned, the same is not acceptable to this Court as the applicant failed to join at Vizag till 05.08.2024 whereas he was directed to report by 24.05.2024 and as such, the respondents have posted a Joint Director (Contract) at DGNP, Vizag due to absence of a Director (Contract) at Vizag.
In view of the foregoing discussions, it appears that there is no illegality or infirmity in the impugned order of posting/transfer. Hence, instant Original Application is liable to be dismissed and the same is accordingly, dismissed.
Pending Misc. Application, if any, also stands disposed of.
No order as to cost.