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Central Administrative Tribunal - Hyderabad
Dr. Kaushik Sarkar vs Director General Of Mines Safety on 3 July, 2008

HYDERABAD BENCH, HYDERABAD

Original Application No. 302 of 2008 &

M.A. No. 199 of 2008

Date of Order : 03.07.2008

Between:

Dr. Kaushik Sarkar

....Applicant

And

1.Director General of Mines Safety,

Government of India,

Ministry of Labour and Employment,

O/o. Directorate General of Mines Safety, Dhanbad.

2.Dy. Director General,

Mines Safety (S2), APHB Complex,

Gruhakalpa, Nampally, Hyderabad  500001.

....Respondents

Counsel for the Applicant : Sri K. Sudhakar Reddy, Advocate

Counsel for the Respondents : Sri Y. Vivekananda Swamy, Addl. CGSC

CORAM:

The Hon'ble Justice Mr.P.Lakshmana Reddy : Vice -Chairman

(Order per Hon'ble Justice Mr.P. Lakshmana Reddy, Vice-Chairman )

---

Heard learned counsel for the applicant and learned standing counsel for the respondents.

2. This application is filed challenging the transfer of the applicant from Hyderabad to Dhanbad. Relevant facts in brief are as follows:

The applicant joined the Department of Mines Safety through UPSC on 19.05.2000 as Assistant Director of Mines Safety (Occupational Health), Grade II. The applicant was appointed as Inspector of Mines as per Gazette Notification dated 28.11.2002 and later he was appointed in the substantive capacity by notification dated 08.12.2004. Initially the applicant joined in the Headquarters, under DDMS (OH) at Dhanbad and in the month of November 2000 he was transferred to Hyderabad under the control of Dy. DG, South Zone i.e. 2nd respondent herein. According to the applicant, the posting status of Medical Inspectors till March, 2007 was that Headquarters (Dhanbad) had one DDMS (OH) and one ADMS (OH), and the Central Zone (Dhanbad), Eastern Zone (Sitarampur), Western Zone (Nagpur), and Southern Zone (Hyderabad) were provided with one ADMS each. According to the applicant there are only one DDMS Post and one ADMS Post at Dhanbad and as the said DDMS Post fell vacant, the applicant was asked to discharge the duties of DDMS Dhanbad while working as ADMS/ Gr.I, South Zone at Hyderabad and he has been discharging both the duties for the last one year.

3. While so, the applicant has been transferred from Hyderabad to Dhanbad, that too, when one Dr. George has already joined as ADMS at Dhanbad and one Dr. A.K.Sen, ADMS(OH), Gr.I, Sitarampur who has been functioning at Sitarampur for the last ten years has been left undisturbed. The applicant further contended that his wife is working under the Government of Andhra Pradesh at Visakhapatnam and therefore, he has to be accommodated in the State where his wife is working as per the transfer policy of the Government with regard to posting of wife and husband and that the Respondents have transferred the applicant in violation of the said guidelines.

4. The respondents have contested the application and filed their reply stating that the applicant has not informed the department that his wife is State Government servant and posted at Visakhapatnam. The applicant is a native of Howrah, West Bengal and working in Hyderabad for the past more than 8 years. Normally a class I officer gets transferred after four years. It is stated by the respondents that on 25.04.2008 the applicant left the office well before working hours after coming to know about his transfer order and left the headquarters without written or oral approval from the competent authority. On 05.05.2008, the applicant's steno brought a leave application for earned leave from 28.04.2008 to 02.05.2008 prefixing and suffixing 27th & 28th and 3rd & 4th May being Saturdays and Sundays and submitted to Shri N. Venkat Rao, Sr. Statistical Officer who was looking after duties of PS to DDG on that day. In continuation, the applicant submitted three week commuted leave application from 03.05.2008 to 23.05.2008 on 09.05.2008 although the application was dated 04.05.2008. In his earned leave application dated 01.05.2008 the applicant has mentioned leave address of Howrah, West Bengal whereas he submitted a medical certificate for commutation of leave from a Government Dispensary of Visakhapatnam. The applicant did not get medical treatment at Hyderabad where CGHS facilities are available. In fact, he fell sick only after reaching Visakhapatnam, where he went on his own. He did not inform this office either in writing or orally. He neither gave his contact details nor his whereabouts. The applicant after coming to know about the transfer, reported sick after taking earned leave and he evaded taking the transfer order and he is claiming non-service of the order.

5. It is further stated in the reply that the applicant's wife is posted at Vsakhapatnam while the applicant is posted in the Hyderabad, though the respondents stated in earlier paragraphs that the applicant did not inform the respondents that his wife is a State Government servant posted at Visakhapatnam. The respondents stated that the distance between Hyderabad and Visakhapatnam is about 750 Kms and hence, it cannot be said that his spouse is living together with the applicant. They further stated that his new place of posting i.e. Dhanbad is about 1000 Kms which is only 25% extra distance from Visakhapatnam. It is further pleaded that the applicant was transferred from Hyderabad to Dhanbad due to the administrative exigency in the light of many cases pertaining to Occupational Health hazards from noise, air borne dust, poisonous gases, poor illumination, occupational diseases like Silicosis, Asbestosis, Siderosis Manganese poison etc., National Human Rights Commission issues, Parliamentary Committee matters, Occupational Health Board Medical Examinations, etc. They further stated that one important case is pending before the Hon'ble Supreme Court of India vide W.P. No. 110/2006 filed by PRASAR against Union of India & Others and another case pending before the National Human Rights Commission at New Delhi in Case No.C/1053/30/2003-04 FC and the opinion and suggestions of the applicant herein are invariably required to defend the case properly before the authority. In the case pending before the National Human Rights Commission, the Secretary to the Government of India, Ministry of Labour & Employment are regularly asked to attend before the Commission and reply about the status compliance of the questions as received from Parliament/ Parliament Standing Committee to submit the status compliance of the question as received. It is further stated that Dr. Sarkar, applicant herein, being expert on Occupational Health diseases has been transferred to HQ, Dhanbad. It is further stated that it would be impossible for the Secretary to the Government of India, Ministry of Labour & Employment to reply the questions properly asked by the Commissions pertaining to the Occupational Health diseases without the assistance of the Assistance Director of Mines Safety (OH) who is expert in the fields of Occupational Health diseases. It is further pleaded that the transfer of the applicant from Hyderabad to Dhanbad was inevitable in the light of the submission as made above and the concurrence of Ministry was also obtained vide letter dated 03.06.2008.

6. It is further pleaded by the respondents that Dr. A.K. Sen was posted about 60 Kms from Dhanbad and being the Senior most he used to come now and then to Dhanbad and attend the duties of DDMS (OH). As per the official records, the respondents were not having knowledge about the posting and career of the applicant's spouse. However, the transfer is made in public interest. The applicant is an expert in OH and he has taken training in the subject, so his posting at Headquarters is essential in public interest.

7. The applicant filed rejoinder stating that the applicant informed the Department several times regarding his wife's service with the Government of Andhra Pradesh and her posting at Visakhapatnam and because of the very fact he was posted at Hyderabad though he was a resident of Howrah in West Bengal. The applicant further stated in the rejoinder that out of three doctors, two doctors including Dr. A.K. Sen, Senior-most ADMS (OH) is posted at Headquarters who has the similar experience and expertise as that of the applicant for dealing the matters of Headquarters. Dr. A.K. Sen who is the senior-most officer of OH cadre of the Department is much more capable and equipped to handle the important OH matters of the Department at Headquarters in comparison to the applicant. Dr. A.K. Sen is 12 years senior to the applicant in medical profession. He has almost 10 years experience in the coal mining industries before joining in this Department whereas the applicant has absolutely no experience in mining industry before joining this department. Dr. A.K. Sen who also worked in headquarters earlier for some time is well versed with the headquarter's job. The petition filed by PRASAR before Hon'ble Supreme Court is mainly related to the Silicosis cases in the manufacturing industries and hardly to do anything with DGMS. The applicant being the junior-most and without adequate exposure and expertise regarding the same does not have any extra qualification, experience and expertise whatsoever in comparison to his other colleagues to handle any important matters related in headquarters. He further states that only the Southern Zone of DGMS has got the Asbestos mining activity in the entire country and maximum number of Silicosis cases have also been reported from this zone. Thus, it is absolutely against public interest to keep the post of ADMS (OH) vacant in south zone and post all the OH officers in and around Headquarters.

8. Learned counsel for the applicant reiterated the contentions raised in the application and also the rejoinder. He submitted that there is absolutely no administrative exigency and on the other hand, there is exigency on retaining the posting at Hyderabad as there will be no other officer in the entire south zone if the transfer of the applicant is given effect to, whereas one doctor by name Dr. George has already been posted at Dhanbad and he joined there and besides, Dr. A.K.Sen, senior-most ADMS (OH) is available at a distance of 60 Kms and is also posted as DDMS at Headquarters. Hence, the transfer of the applicant is liable to be set aside.

9. On the other hand, learned standing counsel for the respondents reiterated the contentions raised in the reply statement. He submitted that the transfer is in the public interest. The applicant has already served more than 4 years of service at Hyderabad and therefore, this Tribunal cannot interfere with the transfer order.

10. The points that arise for consideration in this OA are (i) Whether the impugned transfer order is liable to be set aside? (ii) To what result?

11. Point No.(i) & (ii): - It is not disputed that the Central Government issued guidelines regarding posting of husband and wife at the same station. The relevant portion of the guideline reads as follows:

(7) Where one spouse is employed under the Central Government and the other spouse is employed under the State Government:

The Central Government spouse may apply to the competent authority who may post the person to the station, or if there is no post in that station, to the State where the other spouse serves.

(2) These are only illustrative and not exhaustive. Cases not covered by the guidelines have to be dealt with in the spirit of the guidelines and the objective of enabling a husband and wife to lead a normal family life and ensuring the education and welfare of their children  as far as possible and within the constraints of administrative convenience. As per the said guidelines, if one spouse is employed under the Central Government and the other spouse is employed under the State Government, the competent authority may post the Central Government spouse to the Station where his spouse is working under the State Government or if there is no post in the station, the Central Government employee shall be posted to the State where the other spouse is working. It is further stated therein that those guidelines are only illustrative and not exhaustive and cases not covered by the said guidelines have to be dealt with in the spirit of the guidelines and the objective of enabling a husband and wife to lead a normal family life and ensuring the education and welfare of their children as far as possible. In the instant case, the applicant produced evidence to show that his wife is working in the State Government of A.P. posted at Visakhapatnam in 2007 and her period of service is 5 years. The respondents pleaded in the reply that the department was not aware of the said fact. So, obviously, the respondents without taking into consideration the guidelines issued by the Central Government in the case of posting of wife and husband, passed the impugned transfer order. After this application is filed by the applicant on the ground that his wife is working at Visakhapatnam, the respondents wanted to make out a case of administrative exigency. But, admittedly, the ADMS by name Dr. George was posted at Dhanbad and he has already joined and Dr. A.K.Sen, senior-most AMDS (OH) is working within a distance of 60 kms from Dhanbad and the said Doctor has been kept in charge of the DDMS, OH at Dhanbad whereas there will be no doctor at Hyderabad which represents the entire south zone.

12. Under these circumstances, it cannot be said that the applicant is transferred on administrative exigency. However, as the respondents have pleaded that the respondents were not aware of the fact that the wife of the applicant was working in the A.P. State, I consider it expedient to dispose of this application with a direction to the applicant to submit a representation to the respondents within one month from the date of receipt of this order bringing it to the notice of the respondents that his wife is working in the A.P. State and also about the guidelines issued by the Central Government regarding posting of spouses. On receipt of the representation from the applicant, the respondents shall consider the same keeping in view the guidelines issued by the Central Government regarding posting of spouses and also the observations made supra within two months from the date of receipt of the representation. Till then, the order of transfer is suspended.

13. OA is disposed of with the above directions. As the OA is disposed of with the above orders, MA is closed as unnecessary. There shall be no order as to costs.

(P. LAKSHMANA REDDY)

VICE CHAIRMAN

Dated : 3rd July, 2008

(Dictated in Open Court)