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Judgment
MA 3976/2023 has been filed by the applicant seeking interim relief in the following manner:
A. Take up the OA on board and set aside the operation of memorandum dated 24.07.2023;
B. During pendency of present application, effect and operation of memorandum dated 17.10.2023 be stayed.
C. Allow the cost of this application to the Applicants;
D. Pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in the favour of the Applicant and against the Respondents.
The learned counsel for the applicant prays that during pendency of the present OA the respondents should be restrained from taking any coercive action against the applicant. He referred to Memorandum No. 100-82/2023-STG-I dated 17.10.2023. He further referred to OM dated 24.07.2023 issued by the respondents which is as follows:
"Shri Shiv Shanker Sachan [Staff No.20471], an officer of JAG of ITS Group 'A' under transfer to BSNL is hereby inforined that it is proposed to take action against him under Rule 16 of the CCS (CCA) Rules, 1965. A statement of the imputations of misconduct or misbehavior on which action is proposed to be taken as mentioned above is enclosed.
2.Shri Shiv Shanker Sachan is hereby given an opportunity to make such representation as he may wish to make against the proposal.3. If Shri Shiv Shanker Sachan fails to submit his representation within 10 days of receipt of this Memorandum, it will be presumed that he has no representation to make and orders will be liable to be passed against Shri Shiv Shanker Sachan ex parte. 4. The receipt of this memorandum should be acknowledged by Shri Shiv Shanker Sachen"
The articulation of charge shows that the respondents have initiated departmental proceedings because the applicant has not joined in the new place of posting in pursuance of the order dated 26.12.2022. The charge levelled against the applicant reads as under:-
“ That the said Shri Shiv shanker Sachan has failed to report to his new place of posting in BSNL as GM BA, Erode, TN despite instructions issued to him vide DoT OM No. 400-10/2-23-ADG-STG III dated 29.03.2023 and OM No. 315-02/2022-STG-III dated 09.06.2023. He was informed that failure to comply with directions to report to BSNL will attract action as deemed fit in accordance with departmental rules and guidelines.”
In view of the above OMs and memorandum of charges, the learned counsel for the applicant avers that the respondents are bent over finishing the present applicant because he has not joined the new place of posting. In the present OA the applicant is seeking relief for quashing the transfer order. He avers that when the matter is pending or sub judice in the Tribunal it is not appropriate on the part of the respondents to initiate departmental proceedings. This amounts to threatening the applicant not to proceed to enforce his rights before the appropriate forum of law. He refers to the order of Coordinate Bench of this Tribunal in OA No. 310/00467 of 2020 decided on 04.11.2020. In a similar situation, the applicant therein was given relief for consideration of his representation because he was transferred from Department of Telecommunications (DoT) to one of the Public Sector Undertakings i.e. BSNL. He further cited the order dated 01.11.2023 in OA No. 1091/2023 by the Coordinate Bench at Chandigarh where the Tribunal was pleased to pass interim order stating that no coercive action shall be taken against the applicant therein. In view of these orders by the Coordinate Benches of the Tribunal, the learned counsel for the applicant avers that similar interim relief should be granted to the present applicant directing the respondents not to take any coercive action till the disposal of the present OA.
Per contra, the learned counsel for the respondents vehemently opposes for granting any interim relief. He states that the present applicant is an employee of DoT. However, the DoT under the Ministry of Communications vide OM dated 03.08.2022 has communicated to all concerned regarding the decision of the Union Cabinet on posting of ITS Group A officers. The Union Cabinet vide its decision dated 29.12.2016 (read with corrigendum dated 29.10.2020) decided to reserve 560 posts of ITS officers in BSNL/MTNL. The specifics of the OM dated 03.08.2022 are as follows:
"Accordingly, para 2.3 and 3 of O.M. of even number dated 29th December 2016 (r/w corrigendum dated 29.10.2020) stand replaced as below:
2.3.A special reserve of 560 posts for posting of ITS officers to BSNL/MTNL. The special reserve will be non-diminishing for five years (from Jan, 2022 to Dec, 2026) and it will be diminished in a phased manner thereafter as the PSU’s develop their own cadre.
3.Number of ITS posts to be operated in BSNL/MTNL under the special reserve will be as follows: Higher Administrative Grade(HAG): 34 Senior Administrative Grade(SAG): 353 Junior Administrative Grade (JAG): 173”
He avers that by the aforesaid OM dated 3.08.2022, 138 ITS officers were posted to BSNL/MTNL in view of the aforementioned OM and Cabinet decision and except the applicant, all have joined their respective places. Nearly eleven months have elapsed since the issuance of the transfer order and the applicant has not so far joined the place of posting. He further avers that the posts in BSNL are cadre posts of ITS. In view of this, the posting of ITS officers after their promotion in BSNL and MTNL is a legitimate exercise in view of the decision of the Union Cabinet followed by issuance of the OM thereof. In view of this, the learned counsel for the respondents has opposed granting any interim relief as prayed by the applicant. He further avers that in absence of any specific stay against the transfer order, giving this interim relief will encourage indiscipline in the cadre which will be detrimental for public interest.
Heard both the counsels carefully.
In the instant case the applicant has sought interim relief which amounts to granting final relief in the O.A. At this stage, without getting the counter affidavit from the applicant in respect of the OA it will be inappropriate to grant the interim relief as sought by the applicant. Moreover, applicant has not joined the present place of posting in pursuance with the transfer order dated 26.12.2022. The Apex Court in S.C. Saxena V/s Union of India 2006 SCC (L&S) 2018-19 has held that “ In the first place, the government servant cannot disobey the transfer order by not reporting at the place of posting and then go to a court to ventilate his grievance. It is his duty to first report to work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be called.”
The present applicant belongs to one of the Group A services of the Government of India, an elite service. The Government of India had taken a decision to reserve certain positions for ITS Group A officers in BSNL. In pursuance, the respondents have transferred 206 ITS group A officers to BSNL. This includes officers who have been transferred to BSNL after proforma promotion. As per the contention of the learned counsel for the respondents, the applicant is the only official amongst the ITS group A officers who have not joined in the new place of posting.
In view of the above, no interim relief is granted. Accordingly, MA No. 3976/2023 in OA 1533 of 2023 is disposed off.
List the OA No. 1533 of 2023 on 18.01.2024