Jai Prakash vs Union Of India & Ors

Dr. Chhabilendra Roul, Member (A)

The present OA has been filed by the applicant being aggrieved by insertion of the remarks „without Transfer TA‟ by respondent no. 2 in the posting order dated 14.09.2021 (Annexure A-1).

Brief facts of the case are that the present applicant joined in Military Engineering Services through Engineering-in-Chief service exam 1987. The applicant joined in the office of CE Kolkata zone as Director Design on 28.12.2018. This was his 12th posting. On 03.11.2020 the applicant applied for last leg posting as per Cadre Management Policy of MES issue by M/o Defence vide OM No. F.No. 6(12)/2015/D(Works II) dated 09.10.2015 (Annexure A-3). His date of retirement was 30.10.2023. Hence his request for last leg posting was within three years from the date of superannuation. On the recommendation of the Board of Officers, the request of the applicant for last leg posting was accepted and vide order dated 14.09.2021 the applicant was transferred from CE-Kolkata Zone to CRO (O) Delhi Cant as CRO. However, respondent no. 2 endorsed the remark „without transfer TA‟ against the name of the applicant. The applicant submitted his representation to respondent no. 2 on 22.09.2019 against the aforesaid remark „without transfer TA‟. On 24.09.2021 his movement orders were issued and the applicant was relieved from the O/o CE Kolkata Zone on 04.10.2021. The applicant again made a representation on 23.11.2021 to remove that remark „without transfer TA‟.

He prepared a TA bill amounting to Rs. 2,57,534/- and forwarded to the Audit Authority for scrutiny. However, the Audit Authority returned the bill stating that the bill should be resubmitted after removal of the remark „without transfer TA‟ by respondent no. 2. On 16.02.2022, respondent no. 2 finally disposed of the representation of the applicant stating that his request for change of posting order to remove „without transfer TA‟ was not as per Cadre Management Policy. Being aggrieved, the applicant has filed the present OA seeking the following reliefs:-

“i) to direct the respondents to remove the remarks "Without Transfer TA" from the impugned posting order](AnnexureA-1).

ii) Panel interest on the TA amount i.e. on Rs. 2,57,534/- (Annexure A-10) say @ the rate 11% from the date of the movement order i.e. from 24 Sep 2021 till the realization of the TA amount. Employees are entitled to draw TA advance after the issue of movement order.

iii) Cost of ref Rs. 50,000/- as approx expenditure to adopt legal recourse forced by the respondents.

iv) Rs. 50,000/- as compensation for the mental agony caused by the respondents by illegally debarring the applicant from TA on transfer. The applicant is continuously feeling during this period that debarring the entitled TA on transfer is like applicant has been awarded penalty which is severe than any of the minor penalties under rule 16 of CCS (CCA) rule 1965 by the respondents without committing any misconduct.

v) Any other appropriate order or direction be issued, which this Hon'ble Tribunal may deem fit and proper in the peculiar facts and circumstances of the present writ petition;”

Notices were issued to the respondents who have filed their counter reply. The applicant has also filed rejoinder to the counter reply of the respondents.

The main grounds taken by the applicant in his OA and reiterated by the learned counsel during the arguments are as follows:-

(i) SR-114 is not applicable in the case of the present applicant as his request of last leg posting cannot be categorized as „on request‟. This is because the fact that the applicant was posted under the category „last leg posting‟, as per the Cadre Management Policy. Moreover, the applicant was posted against the clear vacancy, thereby not causing any public inconvenience. In view of this he is entitled for transfer TA under SR-114.

(ii) The respondents has wrongly linked the duration of tenure with entitlement of TA on transfer. The respondents in violation of OM no. 11013/10/-- 2013-Estt A dated 02.07.2015 (Annexure A-13) have kept only fixed duration instead of keeping minimum as well as maximum tenure in the Cadre Manager Policy dated October 2015. The appendix-G to the Cadre Management Policy dated 10.10.2015 (Annexure A-3) is not applicable in case of last leg postings.

Learned counsel for the applicant states that last leg posting of the applicant is in public interest and he was entitled for transfer TA as per SR-114. He further averred that by no stretch of imagination the last leg transfer can be termed as request transfer and hence, the applicant is entitled for transfer TA.

Learned counsel for the respondents, on the other hand, drew attention of the Tribunal to the counter affidavit filed by the respondents wherein it has been stated that SR-114 does not allow the payment of transfer TA to the government employees when they are transferred on their own request. He cited the exact wording of SR-114 which is as follows:-

“Travelling allowance may not be drawn under this section by a Government Servant on transfer from one station to another station unless he is transferred for the public convenience and is entitled to pay during the period occupied by the journey. A transfer at his own request should not be treated as the transfer for the public convenience unless the authority sanctioning the transfer. For special reasons which should be recorded, otherwise directs.”

Learned counsel for the respondent further argued that the last leg transfer was on the request of the applicant because he had not completed the fixed tenure at his last place of posting i.e. Calcutta. As per Appendix G of the Cadre Management Policy 2015, the duration tenure of the Director level officer at various zones is four years. The applicant‟s period of service at CE-Calcutta Zones was from 07.01.2019 to 04.10.2021 i.e. only 2 years and 9 months. As the applicant did not complete his stipulated period of stay at this zone, the respondents were not supposed to post him out from this place of posting on administrative ground. It was on his own request that the transfer orders were issued. Even it was last leg posting it shall be considered as transfer on his own request. In view of this the applicant is not entitled for transfer TA as per SR-114. He drew attention to the request letter of the applicant dated 03.11.2020 (Annexure R-1) requesting for posting to Delhi. Based on his request the applicant‟s tenure at Calcutta was curtailed and he was posted at Delhi pre-maturely. The officer was duly informed about the non-inclusion of the transfer TA in his posting prior to issuance of posting vide office letter dated 12.07.2021. The applicant was very much aware that his transfer would be without the benefit of transfer TA. He should have immediately informed his superiors that unless transfer TA is allowed he should not be transferred on his own request as a last leg posting to Delhi. In view of this, the counsel for the respondents argued that the OA lacks merit and hence should be dismissed.

I have gone through the records of the case thoroughly and heard the learned counsels for the parties carefully.

I do not agree with the contention of the counsel for the applicant that there is distinction between „transfer on own request‟ and „request transfer for last leg posting‟.

Both are request transfers, whether it is last leg posting or any time during the service period of an employee. I agree with the contention of the counsel for the respondents that SR-114 does not allow payment of transfer TA for employees who were transferred on their own request. I also agree with the contention of the counsel for respondents that the applicant was pre-maturely transferred out of Calcutta to Delhi on his own request. Hence, whether it was last leg posting or otherwise, the transfer from Calcutta to Delhi was request transfer. In view of this the respondents have rightly, rejected his claim for transfer TA.

In view of the above, the OA lacks merit and hence the same is dismissed. There shall be no order as to costs.