Pankaj Kumar vs South Delhi Municipal Corporation

Aradhana Johri, J

As both these OAs are against a single order and identical question of law and similar facts are involved, the same are being disposed of by this common order. However, for the sake of convenience, the facts of OA No.773/2019 are being taken as lead case.

The applicant - Sh. Pankaj Kumar was appointed as Junior Engineer (JE) Civil in 2006 and remained posted in various departments. He was posted in Building Department and transferred from EE (Bldg.-II)/SZ to EE (Proj-II)/WZ vide SDMC order dated 26.04.2016 (Annexure A-7). Being aggrieved by the said order, the applicant filed OA No.1480/2016 and he was granted interim stay against the said transfer order. Subsequently, order dated 28.09.2018 (Annexure A-9) was issued transferring the applicant from EE (Bldg.-I)/SZ to EE (Bldg.-II)/CNZ. In view of this order, the Tribunal dismissed OA No.1480/2016 having become infructuous. The applicant has again been transferred vide the impugned order dated 01.03.2019 (Annexure A-1) from EE (Bldg.-II)/CNZ to EE (EMS)/WZ. Aggrieved by this transfer order, the applicant has filed the instant OA seeking the following reliefs:-

"i) To quash and set aside the impunged order dated 01.03.2019 to the extent the applicant has been transferred from EE(Building-II)/CNZ to EE (EMS-WZ) South DMC.

ii) To declare the action of the respondents in not following their policy/decision contained in letter dated 11.09.2014 in case of applicant as illegal and unjustified and direct the respondents to allow the applicant to complete his three years tenure in EE (Building-II)/CNZ South DMC.

iii) To pass such other and further orders which their lordships of this Hon'ble Tribunal deem fit and proper in the existing facts and circumstances of the case.

iv) To allow the OA with exemplary cost."

It is the contention of the applicant that the impugned order dated 01.03.2019 refers to WP(C) No.7909/2018 whereas the said order in WP(C) No.7909/2018 (Annexure A-10) does not cover the applicant's case. The order of 31.07.2018, while addressing the complaints of transfers and postings not being effected in the Municipal Corporation which is leading to extensive corruption in the organization, directed the respondents to file a separate list of officers/officials who have been charge-sheeted for disciplinary proceedings and who still continue to work in the same zone/department/wing where they were charge sheeted. The applicant has further cited letter dated 11.09.2014 (Annexure A-3) which gives a tenure of three years and claims that his transfer is in violation of the decision conveyed in this letter.

The respondents have refuted the averments of the applicant. They have stated that the applicant was posted in the Building Department, Central Zone vide order dated 28.09.2018 subject to the condition that the post of incumbent in Building Department is subject to clearance from vigilance department, because it has been laid down in the transfer policy formulated vide Corporation Resolution No.183 dated 19.11.2014 that no officer (JE, AE or EE) against whom an enquiry is pending or who is under currency of punishment in a vigilance case pertaining to building department or that of corruption/moral turpitude should be posted in the building department which has been considered sensitive by the Vigilance Department. As per Vigilance Report dated 03.01.2019, RDA No.1/27/2018 is pending against the applicant, therefore, he was transferred from building department, Central Zone to a non-sensitive department. Further, they have contended that the tenure indicated is the maximum tenure of an official in a wing/zone. This policy clearly has the following clause:-

"No officer (JE, AE or EE) against whom an enquiry is pending or who is under currency of punishment in a vigilance case pertaining to Bldg. Deptt. or that of corruption/moral turpitude should be posted in the Building Department, which has been considered sensitive by Vigilance Department."

Heard Sh. M.K. Bhardwaj, learned counsel for the applicants and Mrs. Sriparna Chatterjee, learned counsel for the respondents.

From perusal of the latest transfer policy resolution dated 19.11.2014, it is clear that whatever tenures are prescribed in various departments are the maximum tenures of officials in a particular wing/zone. Further, it is clearly stated that the building department is considered sensitive by vigilance department and, therefore, no officer against whom an enquiry is pending or who is under currency of punishment in a vigilance case pertaining to building department or that of corruption/moral turpitude, should be posted in the building department.

The case of the applicant is squarely covered by the aforesaid transfer policy since as per vigilance report dated 03.01.2019, RDA No.1/27/2018 is pending against him. Therefore, we do not find any merit in this OA and the same is accordingly dismissed. There shall be no order as to costs.

The applicant - Shri Anil Kumar, AE has been transferred by the same impugned order dated 01.03.2019 and the facts of this case are similar to those of OA No.773/2019. The applicant has himself admitted that he has been chargesheeted though he has stated that the incident in question relates to the period when he was posted in the maintenance department. However, in this case too, the transfer policy pertaining to not posting in building department of any officer (JE, AE or EE) against whom an enquiry is pending, will hold the field. Therefore, along with the line of OA No.773/2019, this OA also stands dismissed being devoid of merits. There shall be no order as to costs.

The Registry is directed to place a copy of this order in both the files of the OA.