Lincy Earnest @APPELLANT@Hash Union Of India And Ors

The petitioner herein is the applicant in Original Application No. 838 of 2017 on the files of the Central Administrative Tribunal, Ernakulam Bench [hereinafter referred to as the 'Tribunal' for short], wherein he had impugned an order issued by the respondents transferring him from the office of the Garrison Engineer (Maintenance), Eazhimala to Liason Cell, Trivandrum. The learned Tribunal considered the challenge impelled by the petitioner but was pleased to dismiss the Original Application finding that he does not have any vested right to claim immunity from transfer and also because the relevant instructions and rules prohibit the continuation in offices or posts belong to a "complex" beyond the period of more than six years under the services of the Military Engineering Services. The petitioner impugns the order of the Tribunal on several grounds; primarily, asserting that there are atleast two more vacancies at Ezhimala in the same post and that it is, therefore, unnecessary for the authorities to have transferred him.

We have heard Sri. R. Sreeraj, the learned counsel for the petitioner and Sri. T. V. Vinu, the learned Central Government Counsel appearing for the respondents.

The petitioner, as we can see from the averments on record, is presently working as Office Superintendent at the office of the Garrison Engineering (M), Ezhimala. He was initially appointed as a Lower Division Clerk on 25.03.1980 and promoted as an Upper Division Clerk during the year 2001 and subsequently, as an Assistant [which post is now called Assistant Administrative Officer] on 11.11.2011. He was working at Karvar which is classified as a "hard tenure station" and on his request, he was transferred in the year 2011 to Ezhimala. We are told that Ezhimala is also a hard tenure station and that as per the guide lines of transfer, there is no fixed tenure with respect to a post in such a station. The petitioner says that since no tenure has been fixed and since his request for transfer was to Kannur and not to Trivandrum, he need not have been ordered to be transferred through the impugned order, especially because no other person has been ordered to be posted in his substitution from any other station.

Sri. R. Sreeraj, the learned counsel appearing for the petitioner asserts vehemently that there are three posts of Assistant Administrative Officer in the petitioner's present office and that if he is also transferred out as per the impugned order, then all the three posts would become vacant. The contention of the learned counsel, therefore, is that it was wholly unnecessary for the authorities to have transferred him through the impugned order

In refutation to the above, Sri. T.V. Vinu, the learned Central Government Counsel submits that one of the primary reasons why the petitioner was ordered to be transferred was that he has completed more than six years at Ezhimala and that as per Ext. R4(a) instructions, no employee shall be allowed to spend more than three years in a unit and not more than six years continuously in a "complex". He says that the petitioner has completed six years at Ezhimala, which is part of the Ezhimala complex, and that he cannot be transferred to Kannur since that also falls part of the same complex. Sri. Vinu, therefore, justifies the transfer of the petitioner to Trivandrum on the ground that it has been done in terms of Annexure R4(a) instructions.

We have considered the submissions of the learned counsel on either side as above.

From the pleadings and materials on record, one thing become absolutely clear for our consideration, which is that the petitioner has not been transferred for any particular administrative reason or exigencies of service, but it appears that he has been transferred solely because he has completed six years of service in Ezhimala complex. Eventhough his request for transfer was made to a post in Kannur, that was rejected solely because Kannur also happens to be part of the Ezhimala complex. However, it has to be noticed that the petitioner had earlier served in Karvar, which is also a hard tenure station and he had been transferred only in the year 2011 to Ezhimala for certain specified personal reasons, which has been explained by him in the pleadings. He submits that he has certain ailments including cardiac issues and that his wife is also indisposed. He has produced Annexures A4 and A5 in evidence of this assertion and he adds that since he has less than three years to superannuate, the authorities were wrong in disturbing his tenure, especially because no fixed tenure is prescribed in the case of a hard tenure station.

As we have already indicated above and as has been submitted before us by Sri. Vinu, the only, if not the primary, reason why the petitioner's transfer has been ordered, appears to be that he has completed more than six years in the Ezhimala complex. We have examined Annexure R4(a) instructions, which is relied upon by Sri.Vinu in support of his submissions. We see from it that the instructions contained therein is specific that the six year restriction is applicable to an employee only in the case of a sensitive appointment. Nothing has been placed on record to show that the position now occupied by the petitioner is a sensitive one and, therefore, the rigour of the stipulations in Annexure R4(a) instructions would apply to the petitioner's post. Add to this, since it is virtually conceded before us by the learned Central Government counsel appearing for the respondents that there is no prescribed tenure for appointment in a hard tenure station, we fail to understand why the petitioner should have been disturbed at this point of time, especially because the allegation that there are atleast two other vacancies at Ezhimala is completely unimpeached.

The irony is that when the petitioner is also transferred out of Ezhimala, all the three positions at Ezhimala would become vacant and it would be necessary to transfer atleast three other persons from other stations to fill up this void. In the absence of any assertion before us by the learned Central Government Counsel for the respondents that any action has been taken to transfer any other persons to these vacancies, we do not deem it necessary, in the interest of equity and fair play, that the petitioner should be disturbed at this point of time. We also notice that there is no case for the respondents that there is any emergent or imminent need for the petitioner's service at Trivandurm on account of either vacancies or deficiencies there, but that he has been transferred only because he has completed more than six years at Ezhimala and for no other reason.

In such circumstances, we are compelled to interfere with the order of the learned Tribunal, impugned before us and we deem it appropriate to direct that the petitioner be allowed to continue at Ezhimala, notwithstanding his order of transfer produced as Annexrue A1 in the Original Application, atleast until such time as all the vacancies at Ezhimala are filled up through a proper procedure and until such time as a person is ordered to be transferred in the place of the petitioner after filling up other vacancies at Ezhimala. It is so ordered. Consequentially Ext. P4 order of the Tribunal, therefore, would stand set aside for such reasons.

This Original Petition is ordered to the above extent, but we refrain from making any order as to costs and leave the parties to suffer their respective costs.