Central Administrative Tribunal Principal Bench, New Delhi O.A. No.4/2012 New Delhi this the 06th day of January, 2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Sanjeev Kumar Gautam, At present working as Superintendent, O/o the Chief Commissioner, Central Excise (DZ), CR Building, I.P. Estate, New Delhi. ..Applicant (By Advocate Shri A.K. Behera) Versus 1. The Secretary, Ministry of Finance, Department of Revenue, Govt. of India, North Block, New Delhi-110 001. 2. Chairman, Central Board of Excise & Customs, North Block, New Delhi-110 001. 3. The Chief Commissioner, Central Zone, I.P. Estate, New Delhi-110 002. 4. The Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, North Block, New Delhi-110001. -Respondents O R D E R
Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
(i) Call for the records of this case;
(ii) Quash & set aside the impugned orders dated 28/12/2011 (Annexure A-1), 11/11/2011 (Annexure A-2) and 27/10/2011 (Annexure A-6);
(iii) Direct the respondent to give all consequential benefits to the applicant;
(iv) Direct the respondents to pay the cost of litigation to the applicant.
(v) Pass any other order or direction which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
2. Briefly stated, facts of the case are that Shri Pankaj Nayan and Shri Devender Kumar Singh filed OA-3305/2010, thereby impleading the present applicant as one of the respondents in the said OA. The grievance raised by the applicant in the said OA was regarding circular/letter No.F.No.A-22015/19/2006-Ad.III.A dated 27.03.2009 and subsequent clarification issued vide letter No.F.No.A/22015/18/2009-Ad.IIIA dated 07.09.2009, whereby relaxation in respect of ban regarding inter-Commissionerate transfers in respect of Group B, C and D was relaxed in respect of compassionate appointment/transfer/change of cadre in cases where the spouse is employed with either the Central Government or a State Government or a Public Sector Undertaking of the Central Government/ State Government. The said OA, along with connected OA-4401/2010 was allowed by this Tribunal vide judgment dated 13.07.2011, thereby quashing the aforesaid orders dated 27.03.2009, 29.07.2009 and 7.8.2009, relying upon the judgment of the Ernakulam Bench of the Tribunal in OA No.643/2009 and another connected case, decided on 16.05.2011. This Tribunal also reproduced paragraphs 24 and 25 of the judgment of the Ernakulam Bench rendered in OA-643/2009 in para-3 of the judgment, which is in the following terms:
24. From the arguments advanced by the learned for the parties and on perusal of the various judgments of the Apex Court regarding transfers and seniority referred to above, it is abundantly clear that when a transfer is ordered from one cadre to another in public interest, the transferee shall carry with him his original seniority when posted in the new cadre and if the transfer is not in pubic interest but on the request of the employee concerned, he will loose his seniority in the parent cadre and join the new cadre with bottom seniority i.e. below the last employee in the seniority list of that cadre. The transfers on public interest are ordered by the Government in the larger interest of the public and based on the conditions of service such as All India transfer liability etc. The transfers on 'spouse ground' and on 'compassionate ground' are not automatically made by the Government but they are made on the requests of the employee concerned. Now the question is whether any 'public interest' is served by transferring and posting the spouse at the station where the other spouse is posted. It is purely a policy matter which the Government has to take after due consideration of all the relevant facts including the legal rights of others who may be adversely affected. The policy of the Government of India so far in general is that in the case of Inter-cadre transfers made on the request of the employee concerned even on 'spouse ground' or on 'compassionate ground', the transferred employee would loose the seniority position enjoyed by him in his parent cadre. Same was the position maintained so far by the respondents themselves in the matter of Inter-Commissionerate Transfers of their Group-B, C and D officials. The impugned orders granting ICTs to Group-B, C and D employees beyond the Commissionerate having common cadres i.e. from one cadre controlling authority to another, without any loss of seniority stating that such transfers are made in public interest, and, therefore, there is no question of any loss of seniority is a shift in policy. The respondents have issued those orders by interpreting the DoPT's O.M.No.28034/7/86-Estt(A) dated 3.4.1986 as amended from time to time which provide that "a husband and wife are, as far as possible, and within the constraints of administrative convenience, posted at the same station" whether the CBEC is empowered to take such a policy decision or not. The questions those would arise in this regard are (i) whether the CBEC's aforesaid interpretation of the DoPT's order is with the prior approval of the DoPT and if not (ii) whether the CBEC has the competence to make such an interpretation. The records made available by the respondents show that the advice of the DoPT was not obtained by them before they have issued the impugned orders. The CBEC is only a subordinate office under the Department of Revenue which in turn is under the Ministry of Finance, Government of India. Clause (3) of Article 77 of the Constitution of India has provided for the Allocation of Business of India among the Ministries. In terms of the aforesaid provision of the Constitution, the President has promulgated "the Government of India (Allocation of Business) Rules, 1961". "Recruitment, Promotion and Morale of the Services" is one of the businesses allocated to the Department of Personnel and Training under the Ministry of Personnel, Public Grievances & Pensions and the "general question relating to recruitment, promotion and seniority pertaining to Central Services except Railway services and under the control of Department of Atomic Energy, the services under the Department of Defence Research and Development, the erstwhile Department of Electronics, the Department of Space and Scientific and Technical services under the Department of defence Research and Development" come under the same Head. It is, therefore, seen that the policy decision regarding the seniority pertaining to the Central Services is within the exclusive jurisdiction of the DoPT. Individual Ministries/Departments/offices cannot be allowed take its own separate decisions regarding the seniority of their employees without the concurrence of the DoPT. Otherwise, there will be chaos in the matter of personnel administration in the various Ministries/Departments/Subordinate Offices of the Government of India. The applicants in these O.As have not made the DoPT a respondent. However, this Tribunal has directed Mr Millu Dandapani, the learned ACGSC for respondents in O.A.835/2009 to ascertain from the DoPT whether they have to say anything in the matter. However, inspite of his best efforts, they did not give any assistance in the matter.
25. In the above facts and circumstances of the case, we consider that it is premature for this Tribunal to adjudicate upon the question whether the ICT on spouse ground and on compassionate ground is in public interest or not. We, therefore, allow O.A.s 643/2009, 650/2009 and 835/2009 and dismiss O.A.400/2010. Consequently, we also quash and set aside the impugned orders F.No.A.22015/19/2006-Ad.IIIA dated 27.3.2009, letter F.No.A.22015/11/2008-Ad.IIIA dated 29.7.2009 and letter F.No.A22015/18/2009.Ad.IIIA dated 7.8.2009 to the extent that the ICTs of Group-B,C and D officers on spouse ground as well as on compassionate ground appointment have been allowed without loss of seniority. However, the respondents-CBEC is at liberty to take up the matter with the DoPT, Government of India to take appropriate decision in the matter.
3. Thus, as can be seen from the portion as quoted above, Ernakulam Bench has categorically observed that the transfers on public interest are ordered by the Government in the larger interest of the public and based on the conditions of service such as All India transfer liability etc. The transfers on 'spouse ground' and on 'compassionate ground' are not automatically made by the Government but they are made on the requests of the employee concerned. Now the question is whether any 'public interest' is served by transferring and posting the spouse at the station where the other spouse is posted. It is purely a policy matter which the Government has to take after due consideration of all the relevant facts including the legal rights of others who may be adversely affected. The policy of the Government of India so far in general is that in the case of Inter-cadre transfers made on the request of the employee concerned even on 'spouse ground' or on 'compassionate ground', the transferred employee would lose the seniority position enjoyed by him in his parent cadre. Same was the position maintained so far by the respondents themselves in the matter of Inter-Commissionerate Transfers of their Group-B, C and D officials. The impugned orders granting Inter-Commissionerate Transfers to Group-B, C and D employees beyond the Commissionerate having common cadres i.e. from one cadre controlling authority to another, without any loss of seniority stating that such transfers are made in public interest, and, therefore, there is no question of any loss of seniority is a shift in policy. The respondents have issued those orders by interpreting the DoPT's O.M.No.28034/7/86-Estt(A) dated 3.4.1986 as amended from time to time which provide that "a husband and wife are, as far as possible, and within the constraints of administrative convenience, posted at the same station and based on these observations ultimately letter/OM dated 27.03.2009, 29.07.2009 and 7.8.2009 were quashed. However, liberty was given to the respondent-CBEC to take up the matter with the DoP&T, Government of India to take appropriate action in the matter. As already stated above, the aforesaid declaration made by the Ernakulam Bench formed basis for allowing OA No.3305/2010. The matter was carried to the High Court of Delhi by filing Writ Petition No.6086/2011 by the applicant. The High Court did not interfere with the judgment rendered by this Tribunal and disposed of the Writ Petition vide order dated 23.08.2011, with liberty reserved to the applicant to approach the Tribunal if any adverse decision is taken. Thereafter, respondents issued instructions dated 27.10.2011, whereby ban on inter-Commissionerate transfers in respect of Group B, C and D employees from one cadre controlling authority to another was lifted with immediate effect, inter alia, subject to the condition that transferee will be placed below all officers appointed regularly to that post or grade on the date of his/her appointment on transfer basis in terms of para 3.5 of the DoP&T OM dated 3.7.1986. However, such transferred officer will remain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade etc. It was further stipulated that seniority of the officers who were allowed inter-Commissionerate transfers earlier by various cadre controlling authorities on the basis of Boards letters dated 27.03.2009 and 29.07.2009, which instructions have been quashed by the Ernakulam Bench, shall be fixed as per the present instructions. Thereafter applicant filed OA-4008/2011, which was disposed of by this Tribunal vide order dated 11.11.2011, with a direction to the applicant to make a representation to the competent authority regarding all facts raised in the OA and direction was also given to the competent authority to decide the same within a period of 2 months from the date of receipt of a copy of that order. This Tribunal also directed the Registry to send copy of the order to the Chief Commissioner, Central Excise (DZ), New Delhi, respondent No.2. It was further directed that till the respondents take a decision on the representation to be made by the applicant within one week, status quo shall be maintained. Vide impugned order dated 28.12.2011 representation of the applicant has been rejected by passing a speaking and reasoned order, relying upon the observations made by this Tribunal in OA-3305/2010, in which applicant was one of the respondents, whereby directions given by the Ernakulam Bench in OA-643/2009 and other connected matters and earlier letters dated 27.03.2009 and 07.08.2009 were quashed and also reliance was also placed on paras 24 and 25 of the judgment, relevant portion of which has been reproduced in the earlier part of the order, were applied in allowing OA No.3305/2010. Thereafter, after taking into consideration the finding recorded by the Tribunal in earlier cases, as already noticed above, respondent No.2 has also given the following additional ground to reject the representation of the applicant, which thus reads:
Further, on going through the DoPT O.M. F.No.28034/9/2009-Estt.(A) dated 30.9.2009, which has revised the earlier O.M. dated 3.4.1986 on the subject matter of Posting of husband and wife at the same station, I find that provision has been made for posting of husband and wife at the same station, depending upon the nature of the Service, whether All India service, Central Civil Service, Public Sector Undertaking etc. But, nowhere is it stipulated that after such a transfer, the seniority in the earlier cadre shall be protected. Therefore, the policy of the Government as evident from the DoPT OM dated 30.9.2009 is not for giving protection of seniority to either of the spouses, but to enable them to be posted at the same station. Similar observation has also been made by the CAT Ernakulam Bench in para 24 quoted above.
Ultimately, it was held that seniority of the applicant shall be governed in terms of para 2 (ii) of the Boards instructions dated 27.10.2011. It is this order, which is under challenge in this OA. The challenge has been made solely on the ground that in terms of the DoP&T instructions there is no loss of seniority on transfer of spouse ground. Thus, all Central Govt. employees do not loose seniority in terms of the instructions of the DoP&T. For that purpose, learned counsel of applicant has also drawn our attention to chapter-62 on Swamys Complete Manual on Establishment and Administration, which deals with posting of husband and wife at the same station.
4. We have given due consideration to the submission made by the learned counsel of applicant. Govt. of India OM dated 3.4.1986 and subsequent instructions issued in this behalf have only laid down guidelines as per the policy of the Government to the effect that as far as possible and within the constraint of administrative feasibility the husband and wife should be posted at the same station to enable them to lead a normal family life and to ensure the education and welfare of their children. It is in the light of this policy decision that guidelines were issued regarding posting of spouses (i) belonging to the same All India Service or two of the All India Services, namely, IAS, IPS and Indian Forest Service, All India Services, (ii) the other spouse belongs to one of the Central Services, (iii) where the spouses belong to the same Central Service, (iv) where the spouses belong to different Central Services, (v) where one spouse belongs to an All India Service and the other spouse belongs to a Public Sector Undertaking, (vi) where one spouse belongs to a Central Service and the other spouse belongs to a PSU and (vii) where one spouse is employed under the Central Government and the other spouse is employed under the State Government. Thus, the larger objective of these guidelines was to ensure that husband and wife, as far as possible and within the administrative constraint, be posted at the same station. These instructions do not stipulate as to how the seniority of a person in a cadre has to be governed. Admittedly, seniority in a particular cadre or service is either governed by statutory rules or by the administrative order/instructions issued in that behalf. Thus, the contention raised by the applicant that simply because Government has framed policy to accommodate the husband and wife at the same station so that they can lead a normal life and to ensure education and welfare of their children shall also govern seniority in a cadre, cannot be accepted, which admittedly, as already stated above, is governed by separate set of rules/order/instructions issued in this regard from time to time. Admittedly, applicant was initially appointed as Inspector in the Department of Central Excise and Customs and joined his service in Indore Commissionerate. It is also not disputed that the applicant applied for his transfer to another Commissionerate on the ground that his wife was serving as Manager (Finance) in Airport Authority of India, RC&DU, RAU, posted at Safdarjung Airport, New Delhi, which request of the applicant was accepted and he was transferred to Delhi Zone, where he joined on 8.4.2010. Thus, admittedly, it is a case of inter-Commissionerate transfer from Bhopal Zone to Delhi Zone. It is not disputed and cannot be disputed that in the cadre of Inspector the seniority is maintained at Commissionerate level. Thus, applicant was transferred from one Commissionerate to another Commissionerate. Applicant has not shown any rule or instruction to suggest that inter-Commissionerate transfer on request can be effected without loss of seniority, whereas it is general policy of the Government that where there is inter-Commissionerate transfer from one seniority unit to another seniority unit on the request of the employee, as in the present case, in that eventuality a person, who has sought transfer to new seniority unit has to be placed below other employees belonging to the said cadre. Reason for the same is obvious. If a person, who is transferred from one seniority unit to another seniority unit and if his seniority in the previous unit/zone is maintained in the new Zone, there would be a heart-burning to persons belonging to the said cadre in the transferred unit. Thus, the policy of the Government of India in the case of inter-cadre transfer from one cadre controlling authority to another with loss of seniority is in consonance with the settled position and to avoid great heart-burning to the employees of the transferee cadre and does not offend provisions of Article 14 of the Constitution of India. At this stage, we wish to notice decision of the Apex Court regarding determination of the seniority of employees seeking unilateral or voluntary transfer in the case of K.P. Sudhakaran and another v. State of Kerala and others, (2006) SCC (L&S) 1105, where the Apex Court held that:
In service jurisprudence, the general rule is that if a Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior-most employee in the category in the new cadre or department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects.
5. To the similar effect is the judgment of the Apex Court in the case of Surendra Singh Beniwal v. Hukam Singh and others, (2009) 2 SCC (L&S) 218, where the Apex Court has held that transferred employee will get bottom seniority in the new Education Institution where he was transferred but the service rendered in the previous Education Institution will be counted for other purposes like pensionary benefits etc. At this stage, it will also be useful to quote the decision rendered by the Coordinate Bench in OA-728/2003 in the case of M.K. Rajan and anr. V. Central Board of Excise & Customs and ors., 2006 (2) ATJ 527. This case was regarding determination of the seniority. It was held that seniority of inter-Commissionerate transfer will be counted from the date of actual joining. At this stage, it will be useful to quote relevant portion of para-9 of the judgment in M.K. Rajan (supra), which thus reads:
9. From a perusal of the aforesaid orders/ instructions/clarifications issued from time to time, first of all it is to be kept in mind that the inter-Commissionerate transfers are made not based on any statutory rules. It is based on administrative instructions purely on compassionate grounds in the interest of the individual concerned and not in any public interest. These clarifications and modifications were necessitated because such transfers have been adversely affecting the seniority positions of the existing staff and the new direct recruit panel in operation. After the Apex Court has delivered its judgment in the Direct Recruit Class II Engineering Officers Association and others Vs. State of Maharashtra and other (AIR 1990 SC 1607) on 2.5.90, the seniority of a person regularly appointed to a post as direct recruits according to rule would be determined by the order of merit indicated at the time of initial appointment. When the appointment is made by way of promotion, the seniority of such promotees shall be made in the order in which they are recommended for such promotion by the Commission/authority. The relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between them based on the quota earmarked for them. The relative seniority of absorbees shall be determined in accordance with the specific quota as mentioned in the Recruitment Rules. In cases in which the absorptions are not in public interest, they will be placed below all officers appointed regularly to the grade on the date of absorption. Another type of case is that the surplus employees. They are also treated as fresh entrants in the new organization for the purpose of seniority, promotion etc. They also loose the benefit of service in the previous organization for the purpose of seniority. Then there are compassionate appointments against direct recruitment quota. Their dates of joining shall be treated as the dates of their regular appointment and seniority is fixed accordingly. The case of the inter-commissionerate transferees also shall fall in these special categories such as surplus employees and compassionate ground employees as regards their seniority is concerned.
6. Thus, viewing the matter in the light of the law laid down by the Apex Court and in the light of the observations made hereinabove, we are of the firm view that applicant, who has sought transfer on his own request from Bhopal Zone to Delhi Zone on the ground that his wife was working in Delhi, has to be assigned bottom seniority and placed junior to those regularly appointed in the cadre prior to joining of the applicant and the DoP&T OM dated 30.07.1986 did not govern the field regarding seniority but those instructions/guidelines are issued so that husband and wife are posted at the same station to enable them to lead normal family life etc.
7. That apart, the interest of applicant has also been protected by the respondents, as can be seen from the new guidelines dated 27.10.2011 whereby in para 2 (ii) it has been specifically stipulated that such transferred officer will remain his/her eligibility of the parent Commissionerate for her/his promotion to the next higher grade etc. In other words, fresh guidelines have been issued inconformity with the object to be achieved in terms of DoP&T instructions dated 30.07.1986. That is why the right of the applicant for further promotion in the parent cadre has been safeguarded and at the same time in order to give effect to the DoP&T OM dated 03.07.1986 applicant has also been posted at the place of posting of her wife so that he can lead a normal family life and also ensure education and welfare of his children and also that promotional avenue to a person belonging to a particular cadre is also not affected by an employee transferred from different seniority unit. Further, the applicant cannot also base his claim on the earlier instructions dated 27.03.2009 and 07.08.2009, which stand already quashed and superseded. Thus, reversion of the applicant vide impugned order No.198/2011 dated 11.11.2011 pursuant to the judgment rendered by this Tribunal in OA NO.3305/2010 in which the applicant was also a party cannot be faulted.
8. Thus, in view of what has been stated above, OA is bereft of merit, which is accordingly dismissed, at the admission stage itself, with no order as to costs.
(Mrs. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.