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Judgment
Justice K.Haripal, Judicial Member
Applicant is a Civil Motor Driver (Special Grade) in the Naval Ship Repairing Yard, Kochi. He is aggrieved by the Annexure-A1 order of transfer, by which he stands transferred to Indian Naval Academy, Ezhimala.
The grievance of the applicant is that the transfer is arbitrary, illegal and hence unsustainable. He was posted in Naval Ship Repairing Yard on transfer from INS Garuda only on 19.10.2022. As per the transfer policy, he can continue in Naval Ship Repairing Yard for eight years, but now has completed only 2½ years. Therefore, the transfer is premature. Moreover, he is transferred while retaining juniors and seniors in Kochi; Annexure-A1, as far as his transfer is concerned, is vitiated by extraneous considerations and smacks of malafides. So, Annexure-A1 is sought to be set aside to the extent of transferring him to Ezhimala and to direct the respondents to permit him to continue in Kochi for the normal tenure of eight years.
The respondents have opposed the contentions. According to them, the O.A. is not maintainable and is filed on experimental basis. On 06.10.2022 Annexure-R1 transfer policy for MTS, Civil Motor Driver, Fire Fighting Staff etc. was formulated. Till then, no policy existed for such cadres, which led to a scenario wherein the employees continued to be in a particular unit since their initial appointment. Secondly, request for transfer of employees serving at remote/hard stations such as INA Ezhimala/INS Zamorin, Units situated in Lakshadweep islands and outstation units like INS Agrani etc. could not be considered. Employees in INA Ezhimala had been filing cases for getting transfer to Kochi. Annexure-R1 transfer policy was issued to address these issues.
Sri.P.Nikhil, CMD(SG), serving in INS Ezhimala since 24.10.2009 had made a request for transfer to Kochi in August 2024. As per Annexure-R1, request for transfer in respect of individuals, who had completed two years tenure at hard stations are to be considered by posting the station senior from Kochi/Alwaye. Applicant is the station senior in the grade of CMD(SG) as he has been serving in Kochi since his appointment. He has more than five years of residual service to his credit. He is working in Kochi from the date of appointment on 13.09.1999 and has accumulated a prolonged tenure in peace station in Kochi. The department has accordingly considered transfer requests from personnel serving in hard stations after completing minimum tenure and are eligible for rotation to peace stations. Such consideration is in line with Annexure-R1 transfer policy. The order of transfer was issued in accordance with Annexure-R1.
Further, it is submitted that Sri.P.N.Mohandas, CMD(SG) is the only senior retained in Kochi, but he has only less than five years of residuary service and cannot be considered for transfer to a hard station. So, the O.A. is sought to be dismissed.
Heard Sri.Brijesh Mohan, learned counsel for the applicant and Sri.M.N.Manmadan, learned Senior Central Government Standing Counsel for the respondents.
Learned counsel for the applicant has reiterated the ground urged in support of the O.A. He has contended that eight years tenure in a particular unit/establishment in Annexure-R1 should be reckoned from the date of issuance of the transfer policy on 06.10.2022. That has only prospective operation. He has completed only 2½ years of service in NSRY, now he has been discriminated against and sent to a distant place when his juniors and seniors are retained here, which is illegal.
On the other hand, according to the learned Senior Central Government Standing Counsel, the applicant is working in Kochi right from the date of appointment on 13.09.1999, the senior could not have been sent to Ezhimala since he had less than five years service remaining. According to him, the applicant has been transferred strictly following the transfer policy. He also pointed out that Sri. Nikhil had been continuing in hard station right from his appointment in 2009 and if only the transfer policy is implemented in letter and spirit, people like him aspire a transfer to Kochi.
It is not necessary for us to reiterate the circumstances in which intervention of the Court is called for in an order of transfer. Even though it is submitted that the transfer is vitiated by malice, he has been discriminated against etc., we do not find any such ground to say that the respondents have deviated from the transfer policy introduced on 06.10.2022. As pointed out by the learned Standing Counsel, before formation of such a policy, transfers in the cadre of MTS, CMD, Fire Fighting Staff etc. did not have any uniform guidelines, unlike in the case of other cadres. Some of the employees were taking undue advantage of lack of such a policy, whereas persons similarly placed, who were working in hard stations or stations away were not able to find a way out to get a transfer to a peace station. The purport of introducing a policy was to find a way out to such a malady.
We do not find any reason to say that the respondents had done any act of discrimination against the applicant or that he was picked up and chosen to send to a hard station. He is working in Kochi for the last 27 years, right from his date of appointment on 13.09.1999. Even though he had secured 2-3 promotions - he is now CMD(Special Grade) - could manage to continue in Kochi or surrounding areas. But in the case of Nikhil, it is submitted that he had commenced service in October 2009 and since then is working in Ezhimala. Though he had made a transfer application in 2024, it could be considered only after the implementation of the policy.
As always said, transfer is an incident of service. Applicant has no vested right to continue in a particular station or unit. When such a transfer policy was implemented, he is liable to be transferred if he falls in the above conditions. We find that he is not entitled to get protection as provided in clause 8 of Annexure-R1.
It has also come out that he is the senior most driver after Mohandas, who has been retained in Kochi. The argument of the learned counsel is that if the transfer policy is implemented in its letter and spirit, Sri.Mohandas should have been transferred first. But it seems that he is entitled to get protection of clause 8(a) of Annexure-R1. Clause 8(a) reads thus:
"8(a) Employees with less than two years residual service for superannuation will not be considered for transfer unless they request for the same or due to administrative compulsions necessitating their transfer. Further, efforts will be made to exempt employees with less than five years residual service from outstation transfers.“ He is due for retirement on 28.02.2029. That means, he has only less than three years residual service. On the other hand, it was submitted that the applicant has more than eight years of service remaining to his credit. When seniority of persons in the cadre is taken, the next in turn is the applicant. As indicated earlier, he has never gone out of Kochi. All alone he had been working in a peaceful station.
Further, the claim that he has completed only 2½ years in NSRY, that has right to continue there for eight years. According to the learned counsel, before completing eight years in the unit, he should not have been disturbed. But according to the learned Senior Central Government Standing Counsel, the respondents cannot ignore the fact that the applicant has completed 27 years in Kochi cannot be ignored by the respondents.
Clause 2 of Annexure-R1 says that 'personnel will not normally be allowed to continue in a particular unit/establishment, especially in an industrial unit, for more than 08 years period'. We are unable to interpret the clause to say that an employee can continue in a particular unit/establishment for eight years, as of right.
Such a policy has been formulated in common good for obviating injustice caused to certain employees who were posted in hard stations. It is noticed that 'certain employees continue to serve in a particular unit/establishment for prolonged period and in some cases, retire from same unit where she/he was initially appointed. Further, employees serving in non-industrial units are unable to get a transfer to industrial unit and vice versa'. Certainly, such a situation is tried to be avoided by introducing the policy.
On these considerations, in the absence of any malice he cannot claim that he should be retained in Kochi indefinitely.
Resultantly, the Original Application fails and is dismissed. Interim order is vacated. No costs.