Rishipal vs Directorate General Of Quality Assurance (Dgqa) And Ors

Pratima K. Gupta, Member (J)

The applicant is aggrieved by order dated 30.09.2022 whereby he has been transferred from New Delhi to SQAE(A), Chandrapur. In an earlier round of litigation, the applicant has approached this Tribunal by filing OA No. 3102/2022. The same was disposed of vide order dated 20.10.2022, whereby the respondents were directed to dispose of the pending representation of the applicant dated 04.10.2022 by way of passing a reasoned and speaking order, following principles of natural justice. The applicant was protected for seven days from the date of disposal of the representation.

In compliance of the said order, the respondents have passed an order dated 26.10.2022. Aggrieved by this fresh order dated 26.10.2022 and the earlier transfer order dated 30.09.2022, the applicant has filed the present O.A.

On 28.10.2022, this Tribunal once again remitted the matter back to the respondents to revisit the speaking order as the same was not in true letter and spirit of the order passed by this Tribunal on 20.10.2022. Once again, the applicant was protected for seven days from the date of the disposal of the representation.

In compliance of the Order dated 28.10.2022 passed by this Tribunal in the present O.A., the respondents have once again rejected the representation of the applicant vide an order dated 09.11.2022 which has been assailed by the applicant by way of MA No. 3339/2022 seeking amendment of the OA. For the reason, since during pendency of the OA, a fresh order has been passed by the respondents, the applicant be allowed to assail the same by way of the amendment of the OA.

For the reasons stated in the MA and the averments made by the learned counsel for the applicant, MA No. 3339/2022 is allowed.

Learned counsel for the applicant by way of MA No.3338/2022 prays that operation of orders dated 30.09.2022 and 09.11.2022 be stayed. In support of her prayer for grant of interim relief, the learned counsel for the applicant submits that:-

(i) The applicant could not be transferred on rotational transfer, as the applicant is exempted from rotational transfer in view of the Transfer Policy dated 10.02.2017 as annexed at Page 28 in this OA. The date of birth of the applicant being 05.07.1965, he is due to retire on attaining superannuation on 05.07.2025. The impugned transfer order has been issued on 30.07.2022. The residual service of the applicant is less than three years. Therefore, the applicant is exempted from the rotational transfer. The relevant portion of the policy reads as under:-

"Para 10 (a): Officials having 03 years or less service for superannuation will be exempted from rotational transfer."

(ii) With respect to the fact that the applicant has served 31 years in Delhi itself out of 33 years of his career, learned counsel for the applicant submits that the applicant was not liable to be transferred until 2014, as his services were not transferable, for the period beyond 2014 since the applicant was best suited in Delhi and the respondents themselves chose to seek his services at Delhi. The applicant was, in fact, transferred from Delhi in 2016, the spouse of this applicant being a teacher in Delhi Govt. The applicant represented to the respondents to transfer him back to Delhi by invoking the clause of the transfer policy that suggested ‘as far possible the incumbent be posted at same station where the spouse is working’. The same was considered by the respondents themselves and he was transferred back to Delhi.

(iii) Learned counsel for the applicant places reliance on the judgment passed by the co-ordinate bench of this Tribunal in OA No. 2791/2017 dated 22.11.2018 (as annexed at Page 63) which reads as under:-

"16. As regards the prayer of the applicants regarding stay of the transfer orders dated 19.07.2017 and 20.07.2017 it is noted that the dates of birth of Smt. Alka Chauhan, applicant no.1 and applicant no.2 Ms. Renu Ahuja, are 16.01.1961 and 14.09.1960 respectively. Thus, both the applicants no.1 & 2 are due to superannuate much before the expiry of the period of three years from now, prescribed under the New RTP, as amended, to qualify for exemption from transfer. When the transfer orders were issued Applicant no.1, Smt. Alka Chauhan was about three years and six months short of the age of superannuation and applicant no.2, Ms. Renu Ahuja was about three years and two months short of the age of superannuation. Thus, even under the provisions of the new RTP as on date they are covered by the exemption from RTP and were fairly close to the prescribed period when the transfer orders were issued."

When this matter was heard on 15.11.2022, learned counsel for the respondents, who appeared on advance service, sought time to seek instructions on interim relief. Today, when the matter was taken up for consideration, he sought time to file a short reply on interim relief. However, as the protection granted by this Tribunal vide order dated 28.10.2022 ends today. In the pressing circumstances, he has argued, on the instructions received by him, that the law on transfer is very settled by the Hon'ble Supreme Court in the case of S.C. Saxena vs. Union of India & Ors.(2006) 9 SCC 583. He has further added that the applicant has since been relieved and he is duty bound to join the transfer place and then agitate his grievances. He adds that transfer is an incidence of service and the interference of this Tribunal, at this stage, would hamper the smooth functioning of the respondents, the transfer order was clearly on administrative exigencies. He reiterated the contents of the impugned order dated 09.11.2022. He relies on the judgment passed by the Hon'ble Apex Court in the matter of Mrs. Shilpi Bose and Others vs. State of Bihar And Ors AIR 1991 SC 532, 1991 LabIC 360, (1991) IILLJ 591 SC, 1991 Supp (2) SCC 659 which was decided on 19.11.1990. The operative Para of the said judgment reads as under:-

"4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders."

In the rejoinder, learned counsel for the applicant controverted the statement of the learned counsel for the respondents. She states that the applicant is yet to be relieved as per Communication dated 15.11.2022, which clearly mentions that the applicant would be relieved on 21.11.2022. The said communication is taken on record.

Heard the parties at length on Interim Relief.

In order to decide the prayer on interim relief, it would be important to examine the impugned order dated 09.11.2022, the relevant portion of the same is reproduced herein below:

“6. And Whereas, in pursuance of Hon'ble CAT (PB), New Delhi order dated 20.10.2022, pronounced in OA No. 3102/2022, your representation dated 04.10.2022 has been considered as per existing policy on transfer/posting. The grounds adduced by you to cancel your posting order dated 30.09.2022 are contrary to the existing policy, attributable to following reasons :-

That, out of approximate 33 years of your entire service, you have served for 31 years at Delhi location.

That, you had more than 03 years of residual service as on cut-off date i..e 01.07.2022, when you were transferred to SQAE(A), Chandrapur vide DQA(A) transfer order dated 30.09.2022 under RTP-2022.

That, posting of husband and wife at same station has been examined by the competent authority and it is observed that you have already availed exemption from RTS-2016 in terms of Rotational Transfer Policy dated 24.11.2016 as amended on 10.02.17, wherein it is provided that posting on compassionate grounds will be allowed to be exercised only once in full service tenure.

And whereas, The Rotational Transfer Policy (RTP) is an organizational policy laid down by the Govt of India to meet organisational objectives. It harmonizes objectives of institutional memory, avoid development of vested interests, provide exposure to the employees of working in different organisations inter alia, ensuring overall growth of an officer. In an organization like DGQA, being a technical Estt, it is imperative that an officer is exposed to various nuances and facets of quality assurance which is a highly specialised skill, by working in different establishments of DGQA, carrying out various technical activities. Thus, rotational transfer is not only in the interest of the organisation but also in the interest of the officer.

Now therefore, in the light of provisions of Govt of India, Ministry of Defence New Delhi Rotational Transfer Policy (RTP) issued vide letter No. A/96995/RTP/DGQA/Adm-7B/D(QA)/2016 dated 24.11.2016, as amended on 10.02.2017, you are not eligible for any exemption including posting on compassionate grounds from the RTP-2022. Thus, the Competent Authority i.e. DG, DGQA, on carefully examination, rejected your representation dated 04.10.2022. Hence, you are directed to report to SQAE(A), Chandrapur after 07 days of issue this order.”

It is not in dispute that the applicant has served 31 years in Delhi out of his total tenure of 33 years. It is also not in dispute that the applicant has not joined the transfer place. It is well settled law that the policies are not mandatory but guiding in nature in order to decide the transfer/posting, as far as possible the employees should be accommodated with their choices of posting. It is also not in dispute that the applicant is holding a transferable post and he has no vested right to remain posted at one place or the other. I may refer to the Judgment passed by the Hon'ble Apex Court in the matter of SK Naushad Rahman & Ors. VS. Union of India & Ors. in Civil Appeal No. 1243/2022 dated 10.03.2022, the following points were taken into consideration:-

"23 While analyzing the rival submissions, certain basic precepts of service jurisprudence must be borne in mind.

24 First and foremost, transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.

25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.

26 Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration. In this context, Justice JS Verma (as the learned Chief Justice then was) speaking for a three-judge Bench of this Court in Bank of India v. Jagjit Singh Mehta held :

“5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.”

27 The above principle was cited with approval in Union of India v.SL Abbas where the Court held that transfer is an incident of service:

“7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.”

28 Fourth, norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulated in:

(i) A law enacted by the competent legislature;

(ii) Rules made under the proviso to Article 309 of the Constitution;

and

(iii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of civil services under the States.

Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail. In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules.

29 Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution.

The Hon'ble High Court of Delhi in the matter of Amarjit Singh Dagar Vs. Union of India and Ors. in WP (C) No. 6311/2020 dated 07.03.2022 held as follows:-

"26. The DOP&T OM, relied upon by the learned counsel for the petitioner, states that the Persons with Disabilities may be exempted from rotational transfer or transfer and be allowed to continue in the same job where they would have achieved the desired performance. However, the said DOP&T OM cannot be read as an embargo on the Authorities to transfer the Persons with Disabilities on administrative exigencies. In any event, as held by the Supreme Court in Shilpi Bose (supra), even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the same. Present is one such case where we do not deem it appropriate to interfere with the impugned Officer Order passed by the Authorities, taking into account the earlier posting of the petitioner to New Delhi. In any case, the representation of the petitioner has also been considered by the Competent Authority pursuant to the order dated 11.09.2020 of this Court and the same was rejected."

It cannot be disputed that the law laid by the Hon'ble Apex Court in the matter of SK Naushad Rahman & Ors. VS. Union of India & Ors. (supra) and the Hon'ble High Court of Delhi in the matter of Amarjit Singh Dagar Vs. Union of India and Ors. (supra). shall prevail over the judgment of the co-ordinate Bench referred to by the applicant. I therefore, do not find any reason to interfere in the matter of granting interim relief at this stage. The same is rejected.

MA No.3338/2022 stands dismissed accordingly.