ORDER
Meera Chhibber, Member (J)
1. By this OA applicant had initially challenged orders dated 09.3.2007, 10.3.2007, 14.3.2007 and 16.7.2007, however when the matter was called today, counsel for applicant submitted now he is challenging only order dated 16.7.2007 (page-18) whereby applicant was transferred from Delhi Circle to Punjab Circle by the CPMG and order dated 16.7.2007 issued by the Senior Supdt., Post Offices, whereby applicant’s name was struck off from the strength of New Delhi South West Division (page-19). It is stated by the applicant that he is a Postal Assistant, working at Delhi GPO in Delhi Postal Circle. Vide order dated 09.3.2007 he was transferred by the CPMG to New Delhi South West Division (page-15). Vide order dated 14.3.2007 (page-17) he was posted to Chanakyapuri Post Office. Applicant joined at South-West Division on the same date. However within four months thereafter applicant was once again transferred by the CPMG from Delhi Circle to Punjab Circle (page-18) and his name was struck off as mentioned above.
2. This order has been challenged by the counsel for applicant on the grounds that:
(i) CPMG was not competent to transfer the applicant from one Circle to the other, since he had already invoked his power for transferring the applicant from one place to other under Rule 37 of P&T Manual Volume-IV, he could not have again posted the applicant to a different Circle;
(ii) He has placed reliance on the judgment given by Ahmedabad Bench of this Tribunal in the case of B.M. Parmar and Ors. v. Union of India and Ors. reported in 1996 (1) ATJ 200 (page-32 at 35) wherein it was held that Rule 37 is no more in operation when the department had already decided to delete transfer liability clause from appointment letters of Group-C and D employees vide D.G’s letter dated 23.8.1990. Relying on this, counsel for applicant submitted that applicant could not have been transferred out of his Circle. He in fact submitted that Rule 37 is the enabling provision but it is subject to DG’s letter dated 23.8.1990;
(iii) As far as judgment in the case of Union of India and Ors. v. Sri Janardhan Debanath and Anr. reported in AISLJ 2004 (2) SC 446 is concerned, he submitted that it was decided on the given facts because respondents therein had misbehaved with senior lady officer, whereas in the instant case there is no such allegation and if respondents want to hold an enquiry against the applicant they can do so even at the same place, therefore, there is no justification in transferring him from Delhi Circle to Punjab Circle;
(iv) Transfer could not have been made in any case during the midst of the session as his daughter is studying in Class-III in KV. Her studies would be affected apart from reduction of his pay & allowances, if he is transferred to Punjab Circle. He submitted, the transfer is punitive in nature therefore it is not sustainable in law.
3. Respondents have opposed this OA. They have submitted that in the year 2006, a fraud of about Rs. 1.3 crores was detected in Delhi GPO involving RD accounts serviced by one Smt. Madhu Rani, Mahila Pradhan Kendriya Bachat Yojana, agent in connivance with staff of Delhi GPO including the applicant. The fraud involves misappropriation of money of the public investment in Post Office schemes and falsification of official records to allegedly avoid detection. Shri Deepak Verma, the applicant during the relevant period had been working as Counter Assistant as well as System Manager in Delhi GPO. The CLI has shown that the applicant tempered with BP log DB files, which maintain detailed log of every activity on the software. Resultantly, record was erased to a great extent. Hence, keeping in view the gravity of his role in the alleged fraud, the applicant was transferred to South West Division under Rule 37 of Postal Manual Volume-IV vide letter dated 09.3.2007 along with seven other officials of the same office whose names figured in investigation. However, when interim report was submitted to the Postal Directorate, it was decided by the competent authority i.e. D.G. (Posts) to transfer the applicant along with one Sh. S.P. Singh, another prime offender in the above said fraud to Punjab Circle vide order dated 13.7.2007. It is pursuant to said order that applicant has been relieved vide order dated 16.7.2007.
4. They have also stated that transfer orders have been issued under the provisions of Rule 37 of Postal Manual Volume-IV, where no show cause notice is required. Validity of Rule 37 has already been examined by the Cuttack Bench of this Tribunal (Full Bench) in the case of Shyam Sunder Patra v. Union of India and Ors. [OA 674 along with OAs 672 & 673 of 1995 decided on 04.5.1998] as well as by Hon’ble Supreme Court in the case of Union of India and Ors. v. Janardhan Debanath and Anr. decided on 13.12.2004 and the validity of Rule 37 has been upheld, therefore, this case calls for no interference. The same may accordingly be dismissed.
5. We have heard both the counsel and perused the pleadings as well.
6. It is seen that the initial order for transferring the applicant from Delhi Circle to Punjab Circle was issued from the Ministry of Communications and I.T., Department of Posts on 13.7.2007 (page-56) with copy to CPMG, Punjab Circle. The letter was addressed to the Chief Postmaster General, Delhi Circle. Moreover, even in order dated 16.7.2007 (page-18), it is clearly mentioned the competent authority has ordered transfer of following officials to Punjab Circle under Rule 37. From above, it is clear that this transfer was not issued by CPMG but was simply conveyed by the office of CPMG whereas actual transfer was ordered by the competent authority i.e. D.G. (Posts), who is the Head of the Department. Therefore, the first argument of counsel for applicant that CPMG could not have transferred the applicant from one Circle to other is absolutely misplaced. The same is accordingly rejected.
7. Counsel for applicant next contended that even as per Para-37 could be made only subject to the conditions laid down under FR 15 and 22 and under FR 15, transfer could be made only by the President, therefore, in any case this transfer could not have been made. We do not think that is the correct approach. Rule 37 clearly states that all the officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. As far as Rule 37 and FR 15 are concerned, they were already considered by the Hon’ble Supreme Court in the case of Union of India and Ors. v. Sri Janardhan Debanath and Anr. reported in AISLJ 2004 (2) SC 446. After referring to aforesaid Rules, it was observed that a bare reading of Rule 37 shows that officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers were not to be ordered except when advisable in the interests of public service. The appellant has indicated as to why and under what circumstances the transfers were though proper in the interests of public service. It was further held that courts are not required to go into the question whether transfer was in the interest of public service because that would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. As far as Fundamental Rule is concerned, it was observed that it primarily deals with financial implications and consequences relating to services of Government servants whose pay is debited to Civil Estimates and to any other class of Government servants to which the President, may by general of special order, declare them to be applicable. It was held that Rule 15 has to be read along with Rule 14B. It was held that exception is made in case of a transfer where it is on account of inefficiency or mis-behaviour. In such a case transfer could be made to a post carrying less pay than the pay of the post on which he holds a lien. Similar is the position if transfer is made on a written request. It was clearly observed that the High Court seems to have completely misconstrued the rule as if there cannot be any transfer in terms of FR 15 on account of inefficiency or mis-behaviour. The view is clearly contrary to the pronounced intention of FR 15.
8. From above, it is absolutely clear that after dealing with both Rule 37 and FR 15, Hon’ble Supreme Court came to the conclusion that so long there is a justification given by the respondents, a person could be transferred under Rule 37 of P&T Manual Volume-IV. It was in fact held that transfers unless involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination. On the contrary utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service, which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. It was also noted that the allegations made against the respondent therein were of serious nature and the conduct attributed was certainly unbecoming, therefore before ordering transfers in such matters, it is not necessary to go into the departmental enquiry. It was also held that the question whether respondents were required to be transferred to different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration.
9. If the facts of present case are seen in the backdrop of above judgment, we find in the instant case also, there are serious allegations against the applicant whether he is actually guilty of the fraud or not is a matter, which would be concluded after the criminal case is decided or in the departmental enquiry, if initiated. However, the fact remains that in such circumstances where authorities have a doubt on the basis of preliminary enquiry, that applicant is involved in such a racket or fraud and they have decided to post him to some other Circle, it definitely can neither be said to be arbitrary or illegal. The justification given by the respondents is sufficient for transferring the applicant from one Circle to the other. We find no illegality in the order passed by respondents. It is relevant to note that respondents have clearly stated that neither applicant’s basic pay would be affected nor his promotional avenues would be affected because of this transfer. Counsel for applicant tried to distinguish this case by stating that was a case of misbehaviour with a senior lady officer. We do not agree with such a contention. What is relevant is the gravity of situation, which has to be handled by the administration in such type of cases. It could either be misbehaviour with senior lady officer or even a case of present magnitude where applicant is stated to be involved in a fraud to the tune of Rs. 1.3 creores, therefore, the contention of counsel for applicant is rejected.
10. Counsel for applicant had next placed reliance on the judgment given by Ahmedabad Bench of this Tribunal in the case of B.M. Parmar (supra) based on DG’s letter dated 23.8.1990. However, it is noted that even this aspect has been looked into by the Full Bench of this Tribunal in the case of Shyam Sunder Patra (supra) decided on 04.5.1998.
11. A specific question was referred to the Full Bench, which was as follows:
Which of the two decisions : Whether the Ahmedabad Bench in B.M. Parmar and Ors. v. Union of India 1996 (1) ATJ 2000 or the Division Bench decision in Krishna Chandra Rout v. Union of India and Ors. OA 629 of 1994 can be said to have laid down the law correctly?
12. There were certain other questions also, but we are concerned here only with the above question, therefore, others are not being referred to. After discussing all the points, the Full Bench returned a finding that the Division Bench decision in Krishna Chandra Rout v. Union of India and Ors. (OA 629/1994) laid down the correct law, meaning thereby that the judgment given by the Ahemadabad Bench had not been approved of by the Full Bench. Therefore, reliance by applicant on the decision given by the Ahamadabad Bench is absolutely misplaced. Even otherwise, since validity of Rule 37 of P&T Manual had also been looked into by the Hon’ble Supreme Court in the case of Union of India and Ors. v. Sri Janardhan Debanath and Anr. (supra). After referring to different provisions, transfer ordered under Rule 37 by Posts & Telegraphs was upheld by the Hon’ble Supreme Court. Therefore, this question is no longer res integra. It is now settled that transfer under Rule 37 of P&T Manual can be made. Therefore, this contention is also rejected.
13. Counsel for applicant next contended that he could not have been transferred in the midst of session. However, it is noticed that applicant was transferred in July, 2007 whereas schools also open around that time only for the next session after vacations. Since applicant’s daughter is in KVS and KVS are available all over India, we do not think this aspect would cause any prejudice to the applicant. We say so because it is not stated by applicant that his child has not got admission in Punjab Circle, therefore, looking at the gravity of the matter, the transfer order cannot be quashed on this ground alone.
14. Hon’ble Supreme Court has repeatedly held that in matters of transfer so long as there is justification courts should not interfere in day to day functioning of the department otherwise it will become difficult to run the administration smoothly and they will not be able to perform their duties. Who should be posted where, are the matters, which are to be left to the authorities concerned to decide unless orders passed are arbitrary or contrary to any statutory rules. In the instant case, since we have already noted above, proper justification has been given by the respondents, therefore, no case has been made out for interference by this Tribunal. The OA is accordingly dismissed. No order as to costs.