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2008 DIGILAW 711 (GAU)

Bin Ram Thousen v. Union of India

2008-09-18

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. In assailmentis the orders dated 29.2.2008 and 10.4.2008 passed on behalf of the Airports Authority India ('the AAI') transferring the Petitioner from Guwahati to Bangalore as Manager (Air Traffic Control) and releasing in accordance therewith. By order dated 1/7/2008, this Court had stayed the impugned transfer as well as the release of the Petitioner. 2. I have heard Mr. H.R.A. Choudhury, senior advocate assisted by Mr. B. Islam, advocate for the Petitioner and Mr. K.N. Choudhary, senior advocate assisted by J. Patwari, advocate for the AAI. 3. In brief the Petitioner's pleaded case is that having joined the services of the National Airports Authority (presently AAI) on 18.8.1994 as an Aerodrome Assistant, he was posted at the Imphal Airport. He was promoted to the grade of Assistant Manager (Air Traffic Control) on 25.6.2002 and thereafter as Manager (Air Traffic Control) on 18.8.2005. He was eventually posted in the above capacity at the LGBI Airport, Guwahati on 4.8.2006. In the month of November 2007, the Respondents 5 and 7 were promoted as Manager (Air Traffic Control) against vacancies available at the Bangalore International Airport and by order dated 13.12.2007 were transferred from Guwahati to Bangalore in pursuance thereof. By the impugned order dated 29.2.2008, the transfer of the said Respondents has been cancelled and the Petitioner and the Respondent No. 7 instead have been posted out to Bangalore. The Petitioner and the Respondent No. 7 both have submitted representations before the Respondent No. 3, Chairman, Airports Authority of India, New Delhi against their transfer. The Petitioner inter alia requested for deferment of his transfer for at least one year. He has alleged that though the representation of the Respondent No. 7 has been favourably considered and she has been retained at Guwahati, his request did not meet with same positive response and by the impugned order dated 10.4.2008, he has been relieved from his post at Guwahati with instructions to proceed on permanent transfer to Bangalore. In addition to his assertion that his transfer is in contravention of the existing rules and norms of the AAI, the Petitioner has referred to his various postings in between and has contended that the stay of the Respondent No. 7 at Guwahati being longer than his, she ought to have been transferred. In addition to his assertion that his transfer is in contravention of the existing rules and norms of the AAI, the Petitioner has referred to his various postings in between and has contended that the stay of the Respondent No. 7 at Guwahati being longer than his, she ought to have been transferred. He also has detailed his personal and family problems that would compound his inconveniences if the impugned order of transfer is implemented. 4. The AAI in its affidavit has maintained that it is a multi-locational organization having international and domestic Airports spread all over the country and in its transfer policy for the sake of operational efficiency, three distinct seniority lists have been drawn up to regulate the movement of its employees in administrative exigencies. (1) Intra-regional transfer seniority for transfer from one station/unit to another station/unit within a particular region. (2) Inter-regional transfer seniority list for transfer of employees from one region to another region and (3) Transfer to tenure/unpopular station seniority list for the transfer from non-tenure to tenure/unpopular region. 5. The AAI has emphasized that transfers are always effected for organizational requirements and exigencies of work vis-a-vis the seniority maintained for the above purpose. Referring, to Clause 4(vii) of its transfer policy, the answering Respondent has insisted that the service tenure of an individual in various stations in the Northeastern Region is to be construed as a single tenure for determining the duration thereof and the same can be made the basis for choosing one over the other incumbent for effecting transfer. Contending that the Respondents 5, 6 and, 7 had bean promoted to the grade of Manager (Air Traffic Control) on 8.11.2007 and posted at Guwahati, it has been averred that though the Respondents 5 and 6 were initially transferred to Bangalore on 13.2.2007, on a review, it was discovered that due to oversight officers senior to them as per inter-regional seniority namely Shri B.R. Thousen, Manager (A.T.C.) (Petitioner) and Mrs. A. Bhowmiek, Manager (Air Traffic Control) (Respondent No. 7) have been overlooked. The AAI has in categorical terms stated that the Petitioner has the longest stay in the Northeastern Region amongst all the Respondents and, therefore, in terms of the policy has been transferred to Bangalore. A. Bhowmiek, Manager (Air Traffic Control) (Respondent No. 7) have been overlooked. The AAI has in categorical terms stated that the Petitioner has the longest stay in the Northeastern Region amongst all the Respondents and, therefore, in terms of the policy has been transferred to Bangalore. The answering Respondent has justified the postponement of the transfer of the Respondent No. 7 on the consideration of the fact that her length of stay in the Northeastern Region is shorter than that of the Petitioner. Refuting the imputation that the impugned order of transfer is in violation of the transfer policy, the AAI has asserted that the Petitioner's posting in the Northeastern Region is from August 1994 and that his transfer having been effected in terms of the seniority list for interregional transfer, the same is valid and does not warrant any interference of this Court. 6. The learned senior Counsel for the Petitioner while reiterating the pleaded averments has underlined that as the impugned order effectuates a transfer from a tenure station at Guwahati to a non tenure station at Bangalore at terms of Clause 8(a) of the Transfer Policy, officers with longer stay at the tenure station ought to have been posted out at first. He has contended that his duration of stay at Guwahati is less than that of the Respondents 5, 6 and 7. The learned senior Counsel has persuasively argued that the impugned order of transfer is in obvious violation of Clause 8(a) of the Transfer Policy and having been passed to favour the Respondent Nos. 5 and 6 on extraneous considerations, the same is non est in law. According to him, the impugned order is not in public interest or administrative exigency and, therefore, ought to be interfered with in the interest of justice and fair play. 7. The learned senior Counsel for the AAI referring to Clause 4(viii) of the Transfer Policy has urged that as the impugned order comprehends inter-regional transfer, the length of continuous stay in the region is the decisive criteria. Applying the said yardstick, the Petitioner having the longest stay in the Northeastern Region, having been identified for his transfer to Bangalore, the arrangement being in conformity with the Transfer Policy is valid and unassailable. Applying the said yardstick, the Petitioner having the longest stay in the Northeastern Region, having been identified for his transfer to Bangalore, the arrangement being in conformity with the Transfer Policy is valid and unassailable. As the length of stay of Respondent No. 7 in the Northeastern Region is comparatively shorter than that of the Petitioner, her transfer has for the time being deferred, he affirmed. The transfer of the Respondents 5 and 6 though initially been contemplated, on a review thereof on the measure of Transfer Policy, the decision was recalled, he pleaded. In support of his submissions, Mr. Choudhury has produced before this Court the official records pertaining to the transfer involved. 8. The learned senior Counsel for the Petitioner, however, has insisted that as the transfer is from a tenure station to a non-tenure one Clause 8(a) would apply and to that extant Clause 4(vii) would stand superseded. 9. The contentious pleadings and the equally competing arguments have received the required consideration of this Court. The Transfer Policy broadly contemplates two categories of transfer, namely, interregional transfer denoting transfer from one region to another and intra regional transfer signifying movement from one station to another within the region. There is no dissension at the Bar that the Petitioner and the private Respondents are all posted in the Northeastern Region of the State as conceptualized in the Transfer policy whereunder Guwahati is a two year tenure station. Bangalore is a general station in the Southern Region. Clause 4(vii) of the Transfer Policy [earlier numbered, as 3(viii)] being of considerable significance is extracted hereinbelow. Intra regional transfers shall be made on the basis of length of continuous stay at the station and inter-regional transfers on the basis of length of continuous stay in the region. The transfer in the case in hand is from a tenure station to a general station as comprehended in Clause 8(a) of the Transfer Policy, which also demands the extraction thereof. Clause 8(a).... When transfer from tenure to non-tenure station is made, an official in the cadre with the longest stay in the tenure station shall be transferred out first. 10. Clause 8(a).... When transfer from tenure to non-tenure station is made, an official in the cadre with the longest stay in the tenure station shall be transferred out first. 10. Though a passing reference was made to Clause 6 of the Transfer Policy, Which deals with transfer on promotion, the learned Counsels for the parties having eventually concurred that the same being of no relevance qua the issue under adjudication, no dilation in this regard is essential. The transfer of the Petitioner from Guwahati to Bangalore basically is one from the Northeastern Region to the Southern Region envisaged in the Transfer Policy. Consequentially in terms of Clause 4(vii) length of continuous stay in the region, i.e., the Northeastern Region would be decisive. While visibly inter-regional transfer would involve a change of stations, tenure or general as the case may be the converse may not necessarily precipitate the same eventuality. To subjugate the criteria for effecting inter-regional transfer as contained in Clause 4(vii) to the one prescribed for transfer from a tenure to a non-tenure station would be to defy the schematic structure of the Transfer Policy. The tenet evolved for intra regional transfer based on stational seniority though applicable to transfer from a tenure station to a general station, the same can neither condition nor supersede the norm envisaged for interregional transfers. In view of this estimate, the plea of applicability of length of continuous stay in a tenure station to the facts of the instant case does not commend for acceptance. As the impugned decision conceives of an inter-regional transfer for all intents and purposes stational seniority is inconsequential. Length of stay in the tenure station for transfer therefrom in the comprehension of this Court would be of determinative significance only for effecting intra regional transfers. Any other view would pitch the precepts enjoined for the two modes of transfer on a collision course rendering the policy unworkable. 11. The service cards of the Petitioner, Respondent No. 5, Respondent No. 6 and Respondent No. 7 indicate their length of stay in the Northeastern Region as hereunder. Sl. No. Name Date from which the officer is in the Northeastern Region 1. Bina Ram Thousan (Petitioner) 18.8.1994 2. Hari Krishna Biswas (Respondent no. 5) 25.10.1995 3. Kamal Kr. Das (Respondent No. 6) 4.12.1995 4. Smt. Anindita Bhowmic (Respondent No. 7) 24.10.1995 12. Sl. No. Name Date from which the officer is in the Northeastern Region 1. Bina Ram Thousan (Petitioner) 18.8.1994 2. Hari Krishna Biswas (Respondent no. 5) 25.10.1995 3. Kamal Kr. Das (Respondent No. 6) 4.12.1995 4. Smt. Anindita Bhowmic (Respondent No. 7) 24.10.1995 12. The above statistics clearly demonstrate that the Petitioner's stay in the Northeastern Region has been the longest amongst the incumbents in the fray. 13. In the face of the above revelations, the decision of the Respondent authorities in deferring the transfer of Respondent No. 7 temporarily cannot be faulted with. The endeavoured plea of discrimination thus fails. 14. The official records produced in course of the arguments also disclose that the initial decision to transfer the Respondents 5 and 6 to Bangalore has been recalled on the consideration that the Petitioner and the Respondent No. 7 have a longer stay in the Northeastern Region. The impugned decision and the pleaded averments in support thereof, therefore, stand duly endorsed by the contemporaneous official records. 15. On a totality of the considerations as alluded hereinabove, the challenge to the impugned decision cannot be sustained. The petition fails and is dismissed. The stay order stands vacated. No costs. Petition dismissed