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2012 DIGILAW 1331 (GAU)

Nripen Chandra Mahanta v. Union of India

2012-12-13

I.A.ANSARI, S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. By this writ petition, filed under Article 226 of the Constitution of India, the petitioner challenged the legality and propriety of judgment and order dated 21.04.2010, passed by the Central Administrative Tribunal, Guwahati (hereinafter referred to as Tribunal') in O.A. No. 272/09 and order dated 01.06.2010, passed in Review Application No. 4/2010 and also prayed for quashing and/or setting aside the transfer order dated 28.07.2009, issued by APMG (Staff) of the office of the Chief Post Master General(for short, CPMG), Assam Circle, Guwahati. We have heard learned counsel, Mr. A. Bhattacharjee for the petitioner and learned counsel, Mr. D.K. Dey for the respondents. 2. Facts, in short, necessary for disposal of the writ petition, may be noticed thus: 2.1 The petitioner was originally appointed as a Group-D staff under the establishment of CPMG, Assam Circle. He was promoted from the post of Peon to the post of Duftry on ad-hoc basis w.e.f. 06.09.1988 and such promotion was regularized w.e.f. 02.12.1992. He was promoted to Selection Grade Duftry w.e.f. 11.06.2007. On 05.06.2009, he was transferred to the Railway Mail Service(for short, RMS), a different establishment and, since it was found to be a wrong order of transfer, on the same day, the order was cancelled and/or modified and he was again transferred to SRO, Shillong, Meghalaya as a Group-D staff. He submitted representation. Considering his representation, by impugned order dated 28.07.2009(Annexure-XI attached to the O.A.), the transfer order was again modified and he was posted in the establishment of Director of Accounts (Postal) [for short, 'DA(P)'] as a Group-D staff. 2.2 The petitioner, being aggrieved, filed O.A. No. 272 of 2009 before the Tribunal challenging the orders, dated 05.06.2009 and 28.07.2009. 2.3 Respondent Nos. 1 to 5 contested the case by submitting written statement before the Tribunal and the following issues were emerged before the Tribunal for decision: (i) Whether the establishments of Chief Post Master General (CPMG), Assam Circle, and the establishment of Director of Accounts (Postal) were separate establishments/units. (ii) Whether the petitioner was entitled to be treated as a Group-C employee in view of the recommendations of Sixth Pay Commission, prescribing thereunder a different pay scale for Selection Grade Duftry. (ii) Whether the petitioner was entitled to be treated as a Group-C employee in view of the recommendations of Sixth Pay Commission, prescribing thereunder a different pay scale for Selection Grade Duftry. (iii) Whether every establishment maintained separate seniority list in respect of different cadres under the establishment and whether the petitioner, being a member of the cadre of Selection Grade Duftry in the establishment of CPMG will be losing his seniority, if, posted as a Group-D staff in the establishment of DA(P). (iv) Whether there was any post of Selection Grade Duftry in the office of the DA(P). (v) Whether in view of the impugned transfer order the petitioner was reverted to a post, two grades below his post of Selection Grade Duftry. (vi) Whether the impugned transfer order was issued mala fide at the instance of respondent No. 6. (vii) Whether the stands taken by respondent Nos. 1 to 5 that the petitioner was a surplus staff and, therefore, his transfer to the establishment of DA(P) was justified (viii) Whether the promotional avenue of the petitioner to the post of 'Jamadar' from the post of Selection Grade Duftry (feeder post) is likely to be affected because of the impugned transfer. 2.4 The Tribunal by the impugned order dated 21.04.2010 held that there was no infirmity in the transfer order and that the transfer was not vitiated by mala fide and the rank of the petitioner was not lowered by such transfer order and, consequently dismissed the petition. 3. Challenging the above order of the Tribunal the petitioner preferred writ petition being WP(C) No. 2571 of 2010 before this Court and this Court by order dated 05.05.2010 (Annexure-G to the writ petition) disposed the writ petition observing that the petitioner, instead of filing the writ petition, would move the Tribunal by a review application praying to recall the order dated 21.04.2010 and hear the application before it on the issue, i.e., whether the DA(P) is a separate establishment and, if so, whether the petitioner could be transferred to the said establishment 4. The petitioner, thereafter, filed Review Application No. 04/2010 before the Tribunal, raising all the issues, which were not answered by the Tribunal in the impugned order dated 21.04.2010. The petitioner, thereafter, filed Review Application No. 04/2010 before the Tribunal, raising all the issues, which were not answered by the Tribunal in the impugned order dated 21.04.2010. The Tribunal by impugned order dated 01.06.2010 (Annexure-K to the writ petition) disposed the Review Application, substantially concentrating its observation in respect of the exercise of power of review in a given case. Regarding the issue as to whether the establishments of CPMG, Assam Circle and the establishment of DA(P) were separate establishment or not, the Tribunal in paragraph 11 of the impugned order observed thus: 11. We have heard the rival submissions in the light of the materials placed before us. As regards the question whether Director of Accounts(P) is a separate establishment and employees in the office of Chief Postmaster General cannot be subjected to transfer reliance was placed on Rule 38, "TRANSFER AT ONES OWN REQUEST, is the title of Rule 38. The literal meaning of the phrase of A RUBRO AD NIGRUM is "FROM THE RED TO THE BLACK". Formerly the title of a statute was written in red while its body was written in black, and the phrase meant the process of interpreting a statute with reference to its title. I find that mis is a case of simple routine transfer and not a transfer at ones own request, as such prescription of Rule 38 cannot be invoked in the facts of the present case. Transfer can be made from one establishment to other. There is no legal bar for the same. No observation was recorded by the Tribunal in respect of the issue as to whether promotional prospect of the petitioner, due to the impugned transfer, shall be affected or not. A bare reading of the order of Tribunal, as reproduced above, makes it clear that in respect of the issue as to whether those establishments, as pointed out before the Tribunal, were separate or not, the Tribunal failed to give a clear finding. The learned Tribunal simply jumped to a conclusion that transfer can be made from one establishment to other. 5. While the present writ petition was pending before this Court, in course of hearing, by order dated 16.06.3011, the respondents were specifically directed thus: ...The respondents will explain in their affidavit how they intend to protect the seniority of the petitioner assuming that a transfer from one cadre to another cadre is permissible. 5. While the present writ petition was pending before this Court, in course of hearing, by order dated 16.06.3011, the respondents were specifically directed thus: ...The respondents will explain in their affidavit how they intend to protect the seniority of the petitioner assuming that a transfer from one cadre to another cadre is permissible. The final grievance of the petitioner is that he is serving as a Selection Grade Daftry which is a Grade C post and there is no further promotion available to him in the cadre of Directorate of Postal (Accounts). The respondents will explain in their affidavit the correct position in this regard. The affidavit be filed within four weeks. List on 9.8.2011. The respondents did not comply with the above order and did not file any affidavit. 6. It is submitted by learned counsel, Mr. Bhattacharjee for the petitioner that the establishments of CPMG, Assam Circle and DA (P) are two separate and independent establishments, having their own cadre strength and the petitioner has been wrongly and illegally transferred from the establishment of CPMG, Assam Circle to the establishment of DA (P) and, therefore, they have consciously did not file the affidavit in obedience to the order passed by this Court. Learned counsel has also drawn our attention to the submission made by learned counsel of the respondents before the Tribunal at the time of hearing of review petition, which has been recorded by the Tribunal in paragraph 8 of the order of review petition. Referring to the order, it is submitted by learned counsel, Mr. Bhattacharjee that it was admitted that those establishments were separate and independent establishments in respect of the cadre of staff. On going through paragraph 8 of the review judgment, we find that learned counsel of the respondents submitted that transfer can be made from one establishment to other and, there is no legal bar in such transfer. In view of such stand, taken by the respondents, the Tribunal would accept the review application and allow the case of the petitioner but the Tribunal utterly foiled to consider it and, therefore, learned counsel, Mr. Bhattacharjee prayed for setting aside the judgment and order passed by the learned Tribunal. 7. On the contrary, appearing for the respondents, learned counsel, Mr. Bhattacharjee prayed for setting aside the judgment and order passed by the learned Tribunal. 7. On the contrary, appearing for the respondents, learned counsel, Mr. Dey made a lengthy submission but admitted that the respondents failed to submit affidavit as sought for by this Court Supporting the action taken by the respondents, he has submitted that Group-D posts have already been abolished, after the Sixth Pay Commission report was accepted and all those posts were renamed as Multi Skilled Employee (for short, MSE) and, so, the petitioner, being a multi-skilled employee, cannot claim a different status and, on that ground, the transfer order cannot be challenged. 8. Indisputably, the petitioner was working as a Selection Grade Duftry in the establishment of CPMG, Assam Circle. He was transferred to RMS on 05.06.2009 and, on the same date, that transfer order was modified and he was transferred to SRO, Meghalaya. On his representation, the transfer order was again modified by impugned order dated 28.07.2009 and he was transferred to the establishment of DA (P). The petitioner raised several issues before the Tribunal by filing O.A. No. 272/2009. The petition was dismissed by the Tribunal holding that the transfer was incidental to service and, there was no illegality or impropriety in the transfer order. The issue raised by the petitioner that he would not have been transferred from one establishment to another establishment in a different cadre and that his promotional prospect and avenue will be seriously affected, was not answered by the Tribunal. In the review application also, the points, though raised by the petitioner before the Tribunal, pursuant to observation made by this Court in the earlier writ case, were not answered by the Tribunal and, hence, we find merit to interfere in the judgment and orders, passed by the Tribunal, on 21.04.2010 and on 01.06.2010. 9. Admittedly, the petitioner was transferred as a Group-D staff under the establishment of DA (P) from the establishment of CPMG, Assam Circle. The petitioner placed on record Annexure-XIV, a letter dated 23.12.2009 of DPS (HQs), supplied by the Central Public Information Officer of the Department, on an application made by the petitioner under RTI Act, whereunder the petitioner was informed that there was no post of Selection Grade Duftry available in the establishment of DA (P), Guwahati. The petitioner placed on record Annexure-XIV, a letter dated 23.12.2009 of DPS (HQs), supplied by the Central Public Information Officer of the Department, on an application made by the petitioner under RTI Act, whereunder the petitioner was informed that there was no post of Selection Grade Duftry available in the establishment of DA (P), Guwahati. It is, therefore, evident that the petitioner was transferred under the establishment of DA (P), having no post of the cadre of Selection Grade Duftry. The respondents tried to justify their action stating that in view of the Sixth Pay Commission report and implementation of the same, there is no existence of Group-D posts and the nomenclature has been changed as Multi-skilled Employee (MSE) and, therefore, the petitioner cannot claim that any injustice is caused in view of his transfer under the establishment of DA(P). We find no legal force and justification in the submission made on behalf of the respondents on that score since amalgamation of the cadre does not necessarily amount to abolition of the posts to which the petitioner was entitled to be posted and, hence, by the impugned transfer order, a valuable right of the petitioner has been taken away, which the Tribunal failed to consider. Further it is abundantly clear that the petitioner was transferred to a different establishment and the respondents simply stated that the promotional prospects of the petitioner will not affect due to transfer but the respondents failed to show how the promotional prospects of the petitioner would be protected or his seniority will be maintained in view of his transfer to a different establishment from that of the establishment, where he was working in the post of Selection Grade Duftry. 10. In view of the discussions made above on those two material points, we are of the considered opinion that the impugned transfer order, dated 28.07.2009, was illegal and, therefore, liable to be set aside and, accordingly, we do so. Consequently, the impugned order dated 21.04.2010 and 01.06.2010, passed by the Tribunal, are also set aside and quashed. The petitioner, if already released from the establishment of CPMG, Assam Circle, and joined the established of DA(P), should be taken back to the establishment of CPMG, Assam Circle immediately. The writ petition is accordingly allowed, but in the circumstances without cost. Petition allowed.