JUDGMENT
A.K. Misra, Member (A)
1. By means of the present O. A., the applicant has challenged the transfer order dated 13.4.1999 issued by Director General of Works, New Delhi (in short D.G. Works), transferring him from Lucknow to Srinagar.
2. The brief facts of the case are that the applicant is Assistant Engineer (in short A.E.) (Electrical) with the Central Public Works Department (in short CPWD). The applicant was earlier a Junior Engineer( in short J.E.) and, in course of time, was promoted as A.E. Between July, 74 till date, the applicant has been posted at Lucknow. Gorakhpur, Allahabad, Kanpur and Bareilly either as J.E. or as A.E. During this period from July, 74 till April, 99, the applicant was posted at Lucknow for about 20 years in broken periods and his posting outside Lucknow has only been for the short spells.
3. It has been stated by the applicant that he joined at Lucknow on promotion as A.E. (Electrical) alongwith one Sri J.C. Mehndiratta also an A.E. (Electrical). It has been submitted that whereas the applicant joined as A.E. in Lucknow on 9.12.96, Sri Mehndiratta joined on 3.12.96 and accordingly continuous stay at Lucknow of Sri Mehndiratta was longer by six days and as per transfer guidelines an officer with longer stay should first be transferred. It was submitted that although Sri Mehndiratta’s stay at Lucknow as A.E. was longer by six days, he has not been transferred; whereas the applicant has been transferred to a far of place at Srinagar. On behalf of the respondents, it was submitted that it was not correct to say that stay of Sri Mehndiratta as A.E. in Lucknow was longer by six days as compared to stay of the applicant, because both were posted at Lucknow by the same order but Sri Mehndiratta joined six days earlier. Therefore, the contention raised in this regard cannot be said to be factually correct. Besides, it was stated on behalf of the respondents that it would not be proper and justifiable to draw any comparison between the stay at a particular station of two different officers, because the transfer of an officer is made on considerations of exigencies of service and public interest. It is not necessary that all the officers having equal length of stay at a particular station should be transferred simultaneously. Further, it was submitted that in so far as Sri Mehndiratta is concerned, he had been transferred on 1.5.98 from Lucknow to Kanpur, but he could not be relieved from Lucknow because his reliever’s orders were stayed for one year and accordingly in the absence of his reliever, Sri Mehndiratta continued to work in Lucknow. It was submitted that Sri Mehndiratta continues to be under orders of transfer and will be relieved as soon as his reliever joins. In this regard, my attention was also invited to a letter dated 13.5.99 issued by Chief Engineer (E), North Zone, according to which Superintending Engineer (in short S.E.) (Electrical), CPWD, Lucknow has been directed to relieve Sri Mehndiratta immediately so that he may join at Kanpur. Further, it was submitted on behalf of the applicant that both Sri Mehndiratta and the applicant have been posted in Lucknow continuously from April, 95 till date. However, it has been stated that the period prior to 9.12.96 relates to posting of the applicant as J.E., which should not be taken into account for computing the continuous stay of the applicant at Lucknow, which is 3 to 4 years as per guidelines contained in CPWD Manual. On this basis, it was argued on behalf of the applicant that his continuous stay at Lucknow as A.E. has been less than 3 years, since he was promoted as A.E. only on 9.12.96.
4. It was brought to my notice on behalf of the applicant that he was Branch Secretary of the CPWD Engineers Association and accordingly he had to spearhead the lawful association activities in his capacity as Branch Secretary of the CPWD Engineers Association. The applicant is stated to have incurred dis-pleasure of the S.E. (respondent No. 3), who had also called the applicant’s explanation on certain counts. In the letter dated 19.3.99 addressed by the S.E. (respondent No. 3) to the applicant, he referred to a complaint dated 10.2.99 made by the applicant to the Chief Engineer (Electrical), in which the applicant had levelled allegations of corruption against the Office Supdt. Sri Mahesh Chandra Tewari and according to the applicant, he was a close favourite of the S.E. It has been alleged by the
applicant that for this reason, S.E. was hostile to the applicant and accordingly he wrote to D.G. Works for transfer of the applicant. It was, thus, stated that his transfer order was passed by the D.G. Works, CPWD, New Delhi on the request of the S.E. (respondent No. 3). Further, it was submitted that although the applicant was transferred from Lucknow to Srinagar, vide order dated 13.4.1999, in his place nobody has been posted in Lucknow. Besides, it has been stated that the power to transfer. A.E. (Electrical), CPWD vests in the Director (Administration) as per para 6 of Section 8 of CPWD Manual and not with the D.G. Works. Accordingly, it was argued that the transfer order passed by the D.G. Works, CPWD, New Delhi was without jurisdiction. It was also contended that he had yet to complete the normal tenure of 3 to 4 years posting at Lucknow as A.E. It was stated that although he was posted continuously in Lucknow from April, 95 onwards, the stay upto December, 96 should be ignored as upto December, 96, the applicant was posted only as J.E. Accordingly, it was argued that continuous stay of the applicant at Lucknow as A.E. was less than three years. Thus, the transfer order having been passed in violation of the guide lines as contained in CPWD Manual was stated to be based on malafide. Further it was brought to my notice that the transfer order dated 13.4.1999 was received in Lucknow by FAX on 15.4.99 at 3.00 P.M. On the same day (15.4.99), the Executive Engineer (Electrical) (in short E.E.) (respondent No. 4) issued an order asking the applicant to handover to Sri Mehndiratta, A.E. (P). This order was issued in the evening of 15.4.99 and the applicant was not allowed any time to handover charge of the inventory. Since the applicant had left the office by the time, the order to handover charge was passed by the E.E., another order was passed on the same day i.e. 15.4.99 to the effect that the applicant shall be deemed to have been relieved w.e.f. afternoon of 15.4.99. The S.E. (respondent No. 3) also issued an order on the same day i.e. 15.4.99 asking Sri Mehndiratta to takeover charge from the applicant. Thus, it was brought to my notice that between 3.00 P.M. and 5.30 P.M. of 15.4.99, four orders were issued asking the applicant to handover charge to Sri Mehndiratta and asking Sri Mehndiratta to takeover charge from the applicant. It was argued that such undue haste in forcing the applicant to handover charge, indicated that the transfer order dated 13.4.99 was malafide. Further, it was brought to my notice that in the CPWD Manual, there is a system of preparing readyness list showing the names of officers due for transfer and officers whose names figured in the list, are required to give three posting options. It was submitted that such a readyness list was prepared for south and western zones and was declared on 18.3,99, but for north zone, no such list was declared. It was brought to my notice that for A.Es, there is a transfer/posting Committee, which considers all posting/transfer cases and makes its recommendations to the competent authority for a decision as per Rule 27 of Section 8 of CPWD Manual. According to the applicant, the transfer/posting Committee was not properly constituted, because this Committee is chaired by Chief Engineer (Electrical-I); whereas in the case of the applicant this Committee was chaired by the Chief Engineer (Electrical-II), who is not even a member of transfer/posting Committee. Thus, it was argued that the transfer/posting Committee, which recommended the applicant’s transfer was not properly constituted. Further, the recommendations of this Committee are placed before the Director (Administration), who takes a final decision on the transfer of A.Es (E); whereas in the applicant’s case, the recommendations were placed before the Additional Director General (Technical Development) and the transfer order of the applicant was issued by the D.G. Works, New Delhi.
5. On behalf of the respondents, it was submitted that the parity drawn by the applicant
with Sri Mehndiratta cannot -be taken cognizance, since Sri Mehndiratta was not been
impleaded as a party by the applicant. It was further submitted on behalf of the respondents
that the transfer order being an administrative order is not justiciable and further that the
transfer order is made in the exigencies of service and in public interest and, therefore, cannot be challenged in the Court of law. It was also brought to my notice that the applicant should have represented before the competent authority before approaching this Tribunal. In this regard, it was brought to my notice that the applicant’s transfer was duly recommended by the transfer/posting Committee and the recommendations were approved by the competent. authority. It was also brought to my notice that an aggrieved employee can represent against his transfer and his representation is considered by another Committee known as Hard Case Committee, which is headed by the Additional Director General and recommendations of this Committee are put-up to the D.G. Works, New Delhi for final decision. The applicant instead of following the prescribed procedure, chose to bye-pass the Hard Case Committee by approaching this Tribunal directly. It was further brought to my notice that the applicant had always been a trouble shooter and had not complied with the administrative orders on earlier occasions also. By way of illustration, it was pointed-out that on 29.4.93, the applicant was transferred from Lucknow to Bareilly, but did not handover charge till 3.10.93 and finally on 4.10.93 charge was taken from him forcibly. Likewise very recently on 6.3.99, he was asked to handover additional charge of A.E. (P) vide office order dated 5.3.99, but he did not handover the additional charge of A.E. (P). Further, it was submitted on behalf of the respondents that the applicant has always been involved in manipulation of tenders etc. for pecunary gains and vigilance enquiry in this regard is also in progress against the applicant. Further, it was submitted that the applicant has also indulged in rude and rough behaviour against his seniors. On behalf of the applicant, however, this allegation has been completely denied and it has been stated that the applicant never indulged in any act of violence or was ever guilty of rude and rough behaviour against his seniors. Further, the fact that vigilance enquiry is in progress has also been totally denied by the applicant and it has been stated in this regard that neither a charge-sheet has been issued to him so far nor the issue of charge-sheet on charges of corruption or other misconduct is in contemplation. As regards readyness list for north zone, it was brought to my notice on behalf of the applicant that such a list was published on 7.4.99 and circulated. According to the letter dated 7.4.99 under which the readyness list was circulated, objections had been invited by 26.4.99 and the officers whose names figured in this list, were asked to give choice of three stations, to be sent to D.G. Works, CPWD, New Delhi, through proper channel, so as to reach latest by 26.4.99. The operative portion of the letter dated 7.4.99 issued from, D.G, Works, CPWD, New Delhi, reads as under:–
In order to give a chance to an officer for selecting a place of posting of his choice, the concerned officers may give a choice of 3 stations which may be sent to this Directorate through proper channel, so as to reach latest by 26th April, 1999. It is clarified that whereas attempt shall be made to adjust the officer to one of the places of his choice (if given), no commitment in this regard can be made as transfer of an officer to a station depends upon many other factors including exigencies of work.”
6. The applicant has stated that although a choice of 3 stations was called-for in the letter dated 7.4.99 so as to reach the D.G. Works, CPWD, New Delhi, latest by 26.4.99, the applicant was transferred on 13.4.99 itself before expiry of the last date forgiving posting options. It was submitted on behalf of the applicant that he was, thus, not even allowed to exercise the option of giving 3 choice stations and was transferred by order dated 13.4.99; whereas the last date for giving the posting options had not even expired. It was, thus, argued that the transfer order of the applicant dated 13.4.99 suffered from gross irregularity.
7. I have heard the learned Counsel for the applicant and for the respondents and pleadings on record have been perused by me.
8. Having regard to the factual position discussed in the foregoing paragraphs, I am inclined to take the view that the transfer order in the case of the applicant cannot be termed as punitive, arbitrary, malafide or in curable exercise of powers. However, I find that aserious irregularity has supervened while transferring the applicant vide order dated I3.4.99. It is seen that the readyness list dated 7.4.99, which was circulated to the officers concerned, was never communicated to the applicant. In this readyness list circulated under letter of the D.G. Work, New Delhi dated 7.4.99, the officers due for transfer were asked to give a choice of 3 stations to be sent through proper channel .so as to reach D.G. Works, CPWD, New Delhi, latest by 26.4.99. It was necessary for the respondents to wait till 26.4.99 (last date for giving options) before transferring the applicant. Since this readyness list was never communicated to the applicant, he was deprived of his right to give 3 options for posting. On this limited ground, the transfer order has to be set-aside. The respondents are accordingly directed to obtain 3 options from the applicant indicating his choice of stations and thereafter to consider the applicant’s case for transfer having regard to considerations of administrative exigency and in public interest. The transfer order dated 13.4.99 is accordingly quashed.
In the result, the O.A. is decided accordingly as above. Parties to bear their own
costs.