Central Administrative Tribunal - Allahabad(U/S 19 vs Union Of India Through Secretary on 16 May, 2014RESERVED

CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD

(ALLAHABAD THIS THE 16th DAY OF MAY, 2014)

Present
HONBLE MS. JASMINE AHMED, MEMBER (J)
            	
Original Application No.1413 OF 2012(U)
(U/S 19,Administrative Tribunal Act, 1985)
Sukhbir Singh, aged about 45 years, Son of Late Kripa Ram, Presently posted as J.E. (E/M) in the office of G.E. Dehradun(Uttarakhand).
Applicant
 
V E R S U S


1.	Union of India through Secretary, Ministry of Defence, New Delhi.

2.	Engineer-in-Chiefs, Branch Army Head Quarter Kashmir House, P.O. New Delhi-11.

3.	Chief Engineer, head Quarter Central Command, Lucknow-2.

4.	The Commander Works Engineer (MES), Dehradun.

5.	Garrison Engineer, Dehradun (Uttarakhand).

..Respondents
Advocates for the Applicant:-	Shri N.P. Singh 
						Shri K.P. Singh 
Advocate for the Respondents:- 	Shri Raghvendra Pratap Singh 
ALONGWITH

Original Application No.1414 OF 2012(U)
(U/S 19,Administrative Tribunal Act, 1985)

Ramesh Chandra Singh, aged about 48 years, Son of Govind Singh Rana, Presently posted as J.E. (Civil) in the office of G.E. Clement Town, Dehradun (Uttarakhand).

Applicant
 
V E R S U S


1.	Union of India through Secretary, Ministry of Defence, New Delhi.

2.	Engineer-in-Chiefs, Branch Army Head Quarter Kashmir House, P.O. New Delhi-11.

3.	Chief Engineer, Head Quarter Central Command, Lucknow-2.

4.	The Commander Works Engineer (MES), Dehradun.

5.	Garrison Engineer, Clement Town, Dehradun (Uttarakhand).


..Respondents

Advocates for the Applicant:-	Shri N.P. Singh 
						Shri K.P. Singh 
Advocate for the Respondents:- 	Shri Raghvendra Pratap Singh
						Shri Saurabh

ALONGWITH

Original Application No.1415 OF 2012(U)
(U/S 19,Administrative Tribunal Act, 1985)

Vinod Kumar, aged about 40 years, Son of Late Molhaad Singh, Presently posted as J.E. (Civil) in the office of G.E., Dehradun (Uttarakhand).
Applicant
 
V E R S U S


1.	Union of India through Secretary, Ministry of Defence, New Delhi.

2.	Engineer-in-Chiefs, Branch Army Head Quarter Kashmir House, P.O. New Delhi-11.

3.	Chief Engineer, Head Quarter Central Command, Lucknow-2.

4.	The Commander Works Engineer (MES), Dehradun.

5.	Garrison Engineer, Dehradun (Uttarakhand).


..Respondents

Advocates for the Applicant:-	Shri N.P. Singh 
						Shri K.P. Singh 

Advocate for the Respondents:- Shri Raghvendra Pratap Singh



ALONGWITH

Original Application No.1416 OF 2012(U)
(U/S 19,Administrative Tribunal Act, 1985)

Raje Singh, aged about 51 years, Son of late Shri Diwan Singh, Presently posted as J.E. (Civil) G.E. Premnagar, Dehradun (Uttarakhand).

Applicant
 
V E R S U S


1.	Union of India through Secretary, Ministry of Defence, New Delhi.

2.	Engineer-in-Chiefs, Branch Army Head Quarter Kashmir House, P.O. New Delhi-11.

3.	Chief Engineer, Head Quarter Central Command, Lucknow-2.

4.	The Commander Works Engineer (MES), Dehradun.

5.	Garrison Engineer, Premnagar, Dehradun (Uttarakhand).


..Respondents
Advocates for the Applicant:-	Shri N.P. Singh 
						Shri K.P. Singh 

Advocate for the Respondents:- 	Shri Raghvendra Pratap Singh
						Shri Saurabh

ALONGWITH

Original Application No.1417 OF 2012(U)
(U/S 19,Administrative Tribunal Act, 1985)

Vinod Kumar Bhatt, aged about 39 years, Son of late Basudeo Bhatt, Presently posted as J.E. (Civil) in the office of G.E., Dehradun (Uttarakhand).

Applicant
 
V E R S U S


1.	Union of India through Secretary, Ministry of Defence, New Delhi.

2.	Engineer-in-Chiefs, Branch Army Head Quarter Kashmir House, P.O. New Delhi-11.

3.	Chief Engineer, Head Quarter Central Command, Lucknow-2.

4.	The Commander Works Engineer (MES), Dehradun.

5.	Garrison Engineer, Dehradun (Uttarakhand).

..Respondents

Advocates for the Applicant:-	Shri N.P. Singh 
						Shri K.P. Singh 

Advocate for the Respondents:- 	Shri Raghvendra Pratap Singh

O R D E R(DELIVERED BY HONBLE MS. JASMINE AHMED, MEMBER (J))

      As the reliefs claimed in all the OAs are similar, so all the cases are decided by a common judgment taking OA No.1413 of 2012 as the leading case.2.	The applicant in OA No. 1414 of 2012 has challenged the order dated 08.05.2012 by which he has been transferred under CML (i.e. Command Manning Level) category from the office of G.E., (CT) Dehradun to the office of GE Lansdowne as well as the order dated 01.10.2012 passed by the respondents rejecting the representation of the applicant against his said transfer under CML category. The applicant in OA No. 1415 of 2012 has challenged the order dated 08.05.2012 by which he has been transferred under CML (i.e. Command Manning Level) category from the office of G.E., Dehradun to the office of GE Gwalior as well as the order dated 01.10.2012 passed by the respondents rejecting the representation of the applicant against his said transfer under CML category.  The applicant in OA No. 1416 of 2012 has challenged the order dated 08.05.2012 by which he has been transferred under CML (i.e. Command Manning Level) category from the office of G.E., Premnagar Dehradun to the office of GE (West) Bareilly as well as the order dated 01.10.2012 passed by the respondents rejecting the representation of the applicant against his said transfer under CML category. The applicant in OA No. 1417 of 2012 has challenged the order dated 08.05.2012 by which he has been transferred under CML (i.e. Command Manning Level) category from the office of G.E., Dehradun to the office of GE (Project) Bareilly as well as the order dated 01.10.2012 passed by the respondents rejecting the representation of the applicant against his said transfer under CML category.OA NO.1413/20123.	In this OA filed underSec. 19of the Administrative Tribunals Act, 1985, the applicant has challenged the order dated 08.05.2012 by which he has been transferred under CML (i.e. Command Manning Level) category from the office of GE, Dehradun to the office of CWE, Ranchi as well as the order dated 01.10.2012 passed by the respondents rejecting the representation of the applicant against his said transfer under CML category. It may also be noted that this is the second round of litigation by the applicant against the said transfer order. Previously, the applicant had filed OA No. 848 of 2012 wherein vide order dated 28.06.2012, the applicant was directed to make a comprehensive representation against the transfer order dated 08.05.2012 and the respondents were directed to decide the representation preferably within 15 days. It had also been directed that the order of transfer qua the applicant shall not be given effect to till the respondents take decision on the representation of the applicant. Pursuant to the said order the applicant made his representation dated 07.07.2012 which has been rejected by the respondents by order dated 01.10.2012. The said rejection order is also under challenge in this OA.4.	By order dated 09.10.2012, the applicant was granted interim protection by directing the respondents not to disturb the applicant from his present place of posting. The said interim order is continuing from time to time.5.	In short, the case set up by the applicant is that he was appointed as a Superintendent E & M which post has been re-designated as Junior Engineer. The applicant joined the office of GE, Dehradun on 25.08.2009. The date of station seniority of the applicant has been reckoned from 25.08.2009. Thus, as per Rule 36 (b) of the CML posting guidelines dated 27.08.2007, he would be liable for such transfer only on completion of 6 years from 25.08.2009. The applicant has given examples of other officers who have been transferred under CML posting after completion of 6 years tenure. He has given the examples of Shyam Bihari, JE and Pankaj Mittal, JE in this regard. However, the impugned transfer order dated 08.05.2012 in respect of the applicant has been issued before the completion of 6 years tenure. Secondly, the applicant has argued that the impugned transfer order in respect of him is also against Clause 35 of CML posting as CWE, Ranchi comes under the control of Central Command, Lucknow which is barred by Clause 35 of the CML posting. Thus, the respondents cannot transfer the applicant within the same command under CML posting. Thirdly, the applicant has contended that the impugned transfer in respect of the applicant under CML posting is from an Executive to a Non-Executive post which is barred under Clause 36 (b) of CML posting. Fourthly, it has also been contended that the impugned transfer is against the letter and spirit of Clause 36 (c) of CML posting which provides that travel time to the transferred place preferably should not be more than overnight journey. But the applicant has been transferred from Dehradun to Ranchi which is more than 1500 kms. apart and cannot be traveled in an overnight journey. Thus, in a nut shell, the applicant has contended that the impugned transfer order in respect of him is in violation of various provisions of CML posting policy/guidelines/instructions, which finds support in the order passed by the coordinate Bench of Chandigarh in OA No.13/PB/2012 along with connected OA No.14/PB/2012 dated 7.9.2012.6.	  By the aforesaid contentions, the applicant has emphasized that the transfer order in respect of him is based on pick and choose policy and the published policy/guidelines/instructions have been violated with impunity and thus the said transfer order is liable to be quashed and set aside with all consequential benefits.7.	The respondents in their counter affidavit as well as oral submission have not disputed the existence of CML posting policy/guidelines/instructions. They have also not disputed the provisions of CML posting policy/guidelines/instructions relied upon by the applicant. They have also not disputed that the applicant has not completed his 6 years tenure at the office of GE, Dehradun. However, the respondents have emphasized that the transfer of the applicant has been made in administrative requirement and in the interest of the organization. The respondents have further contended that the transfer under CML posting policy document/ guidelines/ instructions do not give any vested right to the applicant to challenge the impugned transfer order particularly when there is no statute on the question of transfer. The respondents have also contended that violation of a transfer policy/guideline/ instruction does not vitiate the transfer order. They have relied uponState of UP Vs. Goverdhan Lal: 2004 (11) SCC 402, UOI Vs. SL Abbas: (1993) 4 SCC 357 and Mrs. Shilpi Bose & Ors. Vs. State of Bihar: 1991 Supp. (2) SCC 659 to buttress their argument on this point.8.	Thus, the pleadings and arguments in this case reveals that there is no dispute on facts. The only issue is where there is a published transfer policy/guideline/instruction in existence and a transfer has been made in violation of the provisions of the same, can the respondents be allowed to justify the deviations by contending that the transfer policy/guidelines/instructions do not give any vested right to the applicant?  Secondly, often the deviations from published transfer policy/guidelines/instructions are sought to be justified on the ground of administrative requirement/ exigency and in the interest of the organization or in public interest. Thus, the second issue that needs to be considered is what are the parameters for justifying a deviation on the ground of administrative requirement/ exigency or in the interest of the organization or public interest.9.	At this stage, it may be taken note that, in fact, there is a very detailed and comprehensive transfer policy/guideline/instruction for management of Group C and D personnel of the MES issued and circulated on 27.08.2007 by the Directorate General (Personnel), Engineer-in-Chiefs branch. The said policy/guideline/instruction caters to very detailed and minute aspects of transfer and posting of the personnel of MES. The clauses and various provisions like Clause 36 (b) and (c) relied upon by the applicant, asreferred above, clearly shows that the said provisions have been ignored while transferring the applicant by the impugned order.10.	Before going into the two specific issues identified above, it would be appropriate to deal with one of the contentions of the respondents that the ordinary tenure of continuous 6 years mentioned in Clause 36 (b) of the said transfer policy/guideline/instruction is only the maximum tenure and there is no bar of transferring an employee before the completion of the said tenure. This submission of the respondents must be examined from the point view of the objective with which the said transfer policy/guideline/instruction has been issued. The very first paragraph of the said policy, contains the objective of the policy. The same is quoted below:1.	The management of Gr C & D of MES manpower rests with CEs of various Commands. There has to be uniformity in the policy, accordingly guidelines have been issued by this HQ letter No. 79040/EIC (1) Dated 31 Aug 1994 and No. 13/20148/PP/EIC (1) dated 16 April 2003 as amended from time to time. The said policy guidelines are uniformly applicable to all CEs Command irrespective of their geographic spread and peculiarities, number of Zones/complexes/station etc. There is need to consider the applicability and practical problems being faced by the employees in a particular Command and to draw out a comprehensive policy so as to suit the organizational need and individual aspirations of Commands. The present policy has been evolved based on the experience gained through various representations received and interaction made with various employees unions and associations.11.	The very first paragraph, as quoted above is in the nature of preamble of the transfer policy. It is clearly revealed that the transfer policy has been introduced with a view to bring uniformity in transfers effected in various commands. While framing the policy, practical problems being faced by the employees have been given due consideration. Besides, it is also apparent that the policy is a comprehensive one dealing with almost every aspect of transfer and has been evolved over a period of time based upon the difficulties mentioned in various representations in the past and interaction with employees unions and associations. Such a policy which has been evolved over a period of time based on the difficulties and problems faced by the employees and organizational needs cannot be construed as a mere piece of paper. When taking all the rival aspects into consideration, the competent authority has prescribed a continuous tenure of 6 years for an employee to be eligible for transfer then normally the said tenure must be adhered to unless there is an extraordinary reason to curtail the tenure in any given case. The contention of the respondents that the same is only a maximum tenure cannot be accepted at its face value. In the context in which transfer policy has been framed and the objective behind the transfer policy, it must be held that the 6 years tenure prescribed in Clause 36 (b) is both the maximum tenure as well as the normal tenure. If such an interpretation is not given, then the policy/guideline will lose its sanctity as an employee can be transferred at any time before the completion of his normal tenure. Thus the main objectives of the policy namely, uniformity in all Commands, the norms of transfer developed over a period of time by keeping individual hardships and organizational needs will be reduced a farce. It is not that in an emergency situation an employee cannot be transferred before completion of his tenure. But any deviation from the said tenure has to be justified by the respondent case wise with reference to the material justifying a deviation. In the instant case, admittedly the applicant has not completed his normal and maximum tenure of 6 years. Nor any material has been produced or pleaded to justify reduction of normal tenure in respect of the applicant.12.	Thus, as far as the first issue is concerned, it may be noted here that the existence of a published transfer policy/guidelines/instructions is not in dispute in this case. It is also not in dispute that as on the date of issuance of the transfer order, the applicant had not completed his tenure of 6 years at GE, Dehradun. But, the respondents contend that such policy/guidelines/instructions do not give any right to the applicant to challenge the transfer order, they being mere policy/guidelines/instructions and not statutory rules. The Honble Supreme Court in (1993) 1 SCC 148:Rajendra Roy Vs. Union of Indiaheld as under (para 7):Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer.13.	Further, in 1995 Supp (4) SCC 169 :Abani Kanta Ray Vs. State of Orissa, the Honble Apex Court held as follows (para 10):It is settled law that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principle governing the transfer.14.	The same law has been reiterated in (2004) 12 SCC 299:Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey & Orswhich has followedAbani Kanta Ray Vs. State of Orissaas well as noticedUnion of India Vs. SL Abbas.In (2003) 11 SCC 740:Sarvesh Kumar Awasthi Vs. UP Jal Nigam & Ors., it was emphasized that, transfer of officers is required to be effected on the basis of set norms or guidelines.15.	Thus, taking the above law into account it cannot be said that if there is a violation of a published transfer policy/guidelines/ instructions, the respondents can be allowed to justify the deviation by contending that the said policy not being statutory does not give any vested right or cause of action to the concerned officer. The reliance placed by the respondents onGoverdhan Lal, SL Abbas and Shilpi Bose(supra) and such similar judgements are totally misplaced as there was no such comprehensive, published transfer policy/guidelines/instructions with a very specific aim and objective in those cases.16.	The second issue is about justifying a transfer order in violation of a published policy on the ground of administrative requirement or exigency or in the interest of the organization or in public interest. As far as the present case is concerned, it may be noted here that though the respondents have mentioned in the counter affidavit that the transfer of the applicant has been effected in the interest of the organization, no where the said interest of the organization has been explained. How the transfer of the applicant is in the interest of the organization? What administrative requirement or exigency compelled the respondents to transfer the applicant before the completion of his ordinary tenure of 6 years? Answers to these questions are not forthcoming either in the counter reply or in the oral submissions of the respondents.17.	The defence of administrative requirement/exigency or in the interest of organization or in public interest, in the context of transfer, mean only one and the same thing. These are various different words to describe an exigency in administration so as to justify a deviation from a professed norm. The word Exigency has been defined as follows in the New Lexicon Websters Dictionary:a pressing need, the state or quality of being urgently needed.

Blacks Law Dictionary, 8th Edition defines the same word as follows:A state of urgency; a situation requiring immediate action

Similarly, William C. Burtons Legal Thesaurus defines the word as follows:

Crisis, critical situation, difficulty, pressing necessity, pressure, urgent need.18.	Thus, from the above authentic definitions, it is clear that an administrative exigency is a very pressing necessity, a critical necessity and a situation of great urgency. Thus, normal situations or circumstances do not come under the purview of administrative exigency. If the situation is a routine situation or a normally prevalent situation, then the contention of administrative exigency/requirement etc. has to be rejected. Further, to invoke the defence of administrative exigency/requirement or its various synonyms like in the interest of the organization or in public interest, the pressing need, or the critical situation etc. must be demonstrated in the pleadings of the respondents duly supported by the office files on the basis of which such counter affidavits are prepared. Thus, to summarize, to advance the argument of administrative exigency or its various synonyms as noticed above, the pressing need, critical situation etc. must have been considered by the competent authority in the files and also must have been demonstrated in the counter affidavit. Conversely, in the absence of any pleadings containing details of pressing needs, urgent or difficult situation necessitating a deviation from the professed norms, the defence of administrative exigency and its various synonyms would not be available to the respondents.19.	In other words administrative requirement or exigency is not a mantra to be uttered by the respondents to get the benefit of the same, but has to be demonstrated by pleadings and supporting materials. In the instant case except for uttering the word in the interest of the organization as a mantra, nothing has been mentioned about any pressing need or difficult or critical situation etc. to justify a deviation from the published and professed norms in the form of policy/guidelines/instructions. Thus, in the facts of the case where there is no pleadings to justify any exigency, the contention of the respondents deserves to be rejected.20.	In view of the above discussion, the OA succeeds. The impugned transfer order under CML posting dated 08.05.2012 in respect of the applicant is quashed and set aside. Similarly the order dated 01.10.2012 rejecting the representation of the applicant is also quashed and set aside. The applicant would be entitled to all consequential benefits. However, in the facts of the case, the parties are left to bear their own costs.21.	In all the other OAs which are similarly situated and dealt herein - in all those cases the impugned transfer order under CML posting dated 8.5.2012 in respect of all the applicants are quashed and set aside.  Similarly the orders rejecting the representations in respective cases is also quashed and set aside.  All the applicants would be entitled to all consequential benefits.  However, in the facts of the cases, the parties are left to bear their own costs.[JASMINE AHMED]
      Member (J)
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