High Court · 2012

In impugnment is the judgment and order dated 17.06.2011 passed by the learned C entral Administrative Tribunal, Guwahati Bench, Guwahati (for short hereinafter referred to as the Tribunal) in Original Application No.41/2011, thereby, negati ng the challenge to the order dated 13.12.2010 of the Manager(Pers), Prasar Bhar ati (Broadcasting Corporation of India), Prasar Bharati Secretariat, New Delhi t ransferring the Respondent No.7 herein to the post of Engineering Assistant at D DK, Agartala (North East Zone). We have heard Ms. U. Dutta, learned counsel for the petitioner and Mr. C. Baruah , learned Central Government Standing Counsel appearing for the official respond ents (Respondent Nos.1 to 6). Notice of motion was issued on 18.07.2011. While the representation of Responden t Nos.1 to 6 by Mr. Baruah was recorded, the petitioners were required to take s teps for service of notice on Respondent No.7 by registered post with A/d. Acco rdingly, notice was sent to the Respondent No.7 in the above mode on 02.08.2011. By order dated 14.09.2011, this Court required service of the notice on Respon dent No.7 through the respondent-Department. The learned Central Government Sta nding Counsel on 24.10.2011 apprised this Court that the notice on the Responden t No.7 has been served on 07.10.2011. The letter No.CE(NEZ)/14(3)/2011-Court Ca se/4924 dated 29.09.2011 with the endorsement of the Respondent No.7 to the abo ve effect was laid before this Court and forms a part of the record. It is appa rent from the endorsement on the body of the aforementioned letter that notice o f the instant proceeding has been duly served on Respondent No.7 on 07.10.2011. No representation has been arranged for by him. No prayer for adjournment has been made. The petitioners herein espouse the cause of the serving employees of the All In dia Radio and Door Dorshan/Prasar Bharati, posted in the East Zone of the countr y. The petitioner No.1 is an association of such employees. According to the pe titioners, the Prasar Bharati (Broadcasting Corporation of India) has a differen t operational zones in India, one of which is the East Zone. This zone for oper ational conveniences had been subsequently bifurcated into two zones, namely- (1 ) East Zone and (2) North East Zone, the Chief Engineer (North East Zone), being the cadre controlling authority of the employees thereof. Following the creatio n of the office of the Chief Engineer (NEZ), it was decided to bifurcate the Sub ordinate Engineering Staff in the erstwhile East Zone between the two zones i.e. East and North East Zone and accordingly staff allocations were made based on i ndividual options. According to the petitioners, the Respondent No.7 opted to b e accommodated in the East Zone. While the matter rested at that, by the office order dated 13.12.2010, he (Respo ndent No.7) who at the relevant point of time was serving as Senior Technician i n the East Zone at HPTV, Krishnanagar, West Bengal was transferred against the p ost of Engineering Assistant at DDK, Agartala in the North East Zone. Contending principally, that this lateral transfer to the post of Engineering Assistant wh ich is higher in rank than that of Sr. Technician was impermissible not only bei ng violative of the transfer norms as contained in the office order dated 15.12. 2009 issued by the Deputy Director Administration (Engg.), Prasar Bharati (Broad casting Corporation of India), New Delhi but also the fundamental principles of service jurisprudence, the petitioners approached the learned Tribunal questioni ng the tenability thereof. The official respondents, in their, written statement pleaded that the transfer of the Respondent No.7 was following the recommendation of the cadre controlli ng authority. They however admitted that as it was not possible to transfer him with the post of Sr. Technician from HPTV, Krishnanagar, West Bengal to Door Dar shan Kendra, Agartala in the North East Zone as suggested, he was accommodated a gainst the post of Engineering Assistant in consideration of his acute domestic problems pursuant to the recommendation of the Inter Zonal Transfer Committee re corded in its meeting held on 17.08.2010. The answering respondents also admitt ed that the post of Engineering Assistant was higher in rank than that of the Sr . Technician, but maintained that the seniority of the Respondent No.7 would sti ll be reckoned in the grade of Sr. Technician on his transfer. Their further pl ea was that the post of Engineering Assistant against which the Respondent No.7 had been transferred was lodged in the direct recruitment quota and therefore di d not in any way prejudice the promotional prospects of the eligible Sr. Technic ians in the North East Zone. The learned Tribunal on a consideration of the rival pleadings and the submissio ns made dismissed the challenge on the following grounds: (1) a; (2) en favoured with a promotion thereto; (3) btained; (4) he same post/grade; (5) pects and seniority of the existing Sr. Technicians in the North East Zone. His posting as Engineering Assistant per se did not imply that he had be The Respondent No.7 had been transferred in the same capacity to Agartal The Respondent No.7 for all practical purposes had been transferred to t The impugned transfer did not jeopardize in any way the promotional pros (cid:28)No Objection (cid:29) certificate from the concerned Zonal Engineer had been o Ms. Dutta has urged that as admittedly the Respondent No.7 has been tran sferred to a higher post, whatever be the considerations be therefor, it is non est in law, there being no equivalent post of Sr. Technician at Agartala. That this position is admitted by the official respondents was also highlighted with reference to the relevant pleadings on record. While asserting that no (cid:28)No Obje ction (cid:29) certificate from the Chief Engineer North East Zone had been obtained, th ough an essential pre-condition for transfer of the kind has effected, the learn ed counsel has insisted that even assuming that the Respondent No.7 was posted a gainst a direct quota post of Engineering Assistant, as it was open for the elig ible in-service candidates to participate in a process therefor, the same by no means can be a valid defence to sustain the order of transfer. According to her , as the impugned order of transfer is in transgression of the set norms formula ted by the official respondents to guide the process, it is also not in public i nterest and therefore the learned Tribunal erred in law and on facts in refusing to interfere. To reinforce her arguments, Ms. Dutta placed reliance, inter ali a on the decision of the Apex Court in V. Jagannadha Rao Others, (2001) 10 SC C 401. Mr. Baruah, as against this, has argued that it being within the discret ion and authority of the official respondents to transfer any incumbent in servi ce amongst others on the ground of personal inconvenience and problems, no inter ference in the facts and circumstances of the case with the determination me by the learned Tribunal is warranted. According to him, the arrangement impugned i s a temporary one and that the posting of the Respondent No.7 against a direct r ecruitment quota does not in any way hamper the promotional prospects of the emp loyees represented by the petitioner-association. He has maintained that t he clearance of the cadre controlling authority of both the zones have been duly obtained and the transfer is in conformity with the norms prescribed. We have extended our anxious consideration to the pleadings on record an d the documents in support thereof. We have noted as well the arguments advance d. The factual aspects as are admitted would deserve to be noticed: The Respondent No.7 before his transfer was holding the post of Sr. Tech (a) nician at HPTV, Krishnanagar, West Bengal in the East Zone; (b) that of Sr. Technician; (c) On the date of transfer of the Respondent No.7, there was no vacant pos The post of Engineering Assistant is higher in rank in the service than t of Sr. Technician at DDK, Agartala (NEZ); (d) The respondent No.7 on his transfer has been accommodated against a high er post i.e. Engineering Assistant, which according to the relevant service rule s can be filled up amongst others by promotion and direct recruitment and depart mental examination in the following ratio: i. ii. iii. Direct recruitment - 80%. Departmental examination - 10%. Promotion - 10%. A vacancy in the direct recruitment quota in the post of Engineering Ass istant thus can also be competed for by the eligible in-service Sr. Technicians. The transfer of the Respondent No.7 has been dominantly in consideration of hi s (cid:28)acute domestic problem (cid:29). It transpires from the text of the judgment and order impugned that by l etter No.9/18/2009-SIV/965 dated 09.04.2010, the concerned authorities of the zo nes expressed (cid:28)No Objection (cid:29) if the Respondent No.7 was transferred along with h is post to the NEZ. Admittedly, however he was transferred without his post of Sr. Technician in the East Zone only to be accommodated against vacant post of E ngineering Assistant in the North East Zone. That thereby, he was made to occup y a higher post even if in the direct recruitment quota thus blocking the proces s of filling up of the same by in-service eligible departmental candidates is th us an undeniable fact. The impugned order of transfer visibly is not limited by time. For all practical purposes, therefore, in absence of any material to the contrary, though otherwise contended, there is no semblance of any indication t hat it is a stop gap arrangement. In that view of the matter, the apprehension expressed by the petitioners cannot be dismissed as wholly unfounded. A cursory view of the office order dated 15.12.2009 governing the process of transfer dem onstrates in clear terms that inter-zonal transfers should normally be discourag ed and if to be ascertained the proposal therefor ought to be forwarded by the Z onal Chief Engineer along with (cid:28)No Objection (cid:29) certificate. As would be evident from the letter dated 09.04.2010 referred to hereina bove if at all it may be construed to be one expressing (cid:28)No Objection (cid:29) to the tr ansfer of the Respondent No.7 it was visibly a conditional one, whereunder, the transfer was contemplated along with his post to be carried to the North East Z one. As the order of transfer did not conform to this condition subject to which (cid:28)No Objection (cid:28) was granted on this count also in the face of the norms as abov e the same cannot be sustained. The Apex Court in V. Jagannadha Rao And Others (Supra) while dwelling on the essential features of a valid transfer of an incumbent in public service ob served that though the same is a normal feature and incidental to his employment , no transition can be made to a post higher than what he is holding. In other words, their Lordships were of the view that a lateral and not vertical movement within the employees organization is contemplated if the transfer is to be vali d. Further, the materials on record do not spell out the overwhelming domestic problem of the Respondent No.7 to assume the form of public interest or administ rative exigency to effect such an unusual transfer of his as is demonstrable in the facts and circumstances of the case. In view of the above, we find ourselves in respectful disagreement with the findings recorded by the learned Tribunal. The impugned judgment and order thus, according to us, cannot be sustained. It is thus interfered with. The of ficial respondents would take necessary consequential steps. The petition is allowed. No costs.