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2024 DIGILAW 727 (GAU)

Union of India v. Utsab Deb

2024-05-21

SUMAN SHYAM, VIJAY BISHNOI

body2024
JUDGMENT : Vijay Bishnoi, J. Heard Mr. B. Chakravarty, learned Central Government Counsel representing the petitioners. Also heard Ms. U. Dutta, learned counsel appearing for the sole respondent. 2. This writ petition is filed by the petitioners being aggrieved with the order dated 31.05.2023 passed by the learned Central Administrative Tribunal, Guwahati Bench, Guwahati (hereinafter to be referred as “CAT”) in O.A. No.040/00257/2021, whereby the Original Application filed by the respondent herein has been disposed of while setting aside the order dated 10.08.2021 passed by the petitioner No.2, i.e. the Director, Directorate of Personnel, Defence Research & Development Organization, whereby the representation filed by the respondent herein for transferring him to any one of the 4(four) choice postings, i.e. Gwalior/Mysore/New Delhi/Bengaluru, has been rejected. The learned CAT has also set aside the deputation transfer dated 06.05.2021, whereby the respondent was posted on deputation transfer from DLR, Tezpur to Arunachal Pradesh. 3. Brief facts of the case are that the respondent joined in the Defence Research & Development Organization (hereinafter to be referred as “DRDO”) in the year 2004. He was transferred to the Office of the respondent No.4 in the year 2014 and pursuant to that transfer, he joined in the Office of the respondent No.4 on 11.08.2014. It is to be noted that the respondent was transferred in the Office of the respondent No.4 on his own request. After completion of the tenure of posting of 3(three) years, the respondent submitted a representation on 08.01.2018 for his transfer to either of the places, i.e. Gwalior/Mysore/New Delhi/Bengaluru. When no action on the said representation was taken, the respondent has submitted another representation on 30.01.2019. In the meanwhile, the respondent even tried for mutual transfer with one incumbent from Hyderabad but the same was also not considered. It was the case of the respondent that instead of considering his choice posting, the authority, vide order dated 06.05.2021, sent him on deputation to Arunachal Pradesh. 4. In the meanwhile, the respondent even tried for mutual transfer with one incumbent from Hyderabad but the same was also not considered. It was the case of the respondent that instead of considering his choice posting, the authority, vide order dated 06.05.2021, sent him on deputation to Arunachal Pradesh. 4. Being aggrieved with the same, the respondent has preferred an Original Application being O.A. No.040/00135/2021 before the learned CAT and the same was disposed of by the learned CAT vide order dated 11.06.2021 with a direction to the petitioners herein to take a decision on the representation filed by the respondent to transfer him from DLR, Tezpur to DLRL, Hyderabad within a period of 3(three) months from the date of receipt of that order and in the alternative, the petitioners herein are also directed to consider the case of the respondent for choice posting, as prayed for in the representations dated 08.01.2018 and 30.01.2019, within a period of 3(three) months from the date of passing of the said order. The petitioner No.2 thereafter taking consideration of the representations filed on behalf of the respondent, has rejected the same vide order dated 10.08.2021. 5. Being aggrieved with the same, the respondent again preferred O.A. No.040/00257/2021 before the learned CAT and the said Original Application came to be allowed by the learned CAT vide order dated 17.02.2022 while issuing direction to the petitioners to post the respondent on any of the Office/ Labs in the choice stations, namely, Gwalior/Mysore/New Delhi/ Bangalore, within a period of 1(one) month from the date of receipt of a copy of that order. 6. Being aggrieved with the order dated 17.02.2022 passed in O.A. No.040/00257/2021, the petitioners have preferred WP(C) No.2831/2022 before this Court and a Division Bench of this Court, vide judgment & order dated 06.09.2022, has set aside the order dated 17.02.2022 passed by the learned CAT and remanded the matter to the learned CAT with a direction to re-decide the issue of applicability of the Government of India Office Memorandums dated 14.12.1983 and 22.07.1998 in respect of the respondent's claim for choice posting in view of specific exclusion mentioned in Clause 22 of the Government of India (Allocation of Business) Rules, 1961. 7. On remand, the learned CAT has decided the O.A. No.040/00257/2021 afresh vide impugned order dated 31.05.2023 against which this writ petition is filed. 7. On remand, the learned CAT has decided the O.A. No.040/00257/2021 afresh vide impugned order dated 31.05.2023 against which this writ petition is filed. In the impugned order dated 31.05.2023, the learned CAT has concluded that the Office Memorandums dated 14.12.1983 and 22.07.1998 are applicable in the case of the respondent while holding that the same have an overriding influence and impact on all Government of India Ministries and Departments (including Railways, Space, DRDO, etc.). The learned CAT has further opined that both the Office Memorandums applies to all the Central Government Offices and Staff and do not qualify for exclusion specified under Clause 22 of the Government of India (Allocation of Business) Rules, 1961. 8. Assailing the impugned order dated 31.05.2023, learned counsel for the petitioners have argued that the learned CAT has erred in holding that the aforementioned 2 (two) Office Memorandums are applicable on all the Central Government employees including the DRDO. It is contended that the Office Memorandums dated 14.12.1983 and 22.07.1998 cannot be made applicable to the Scientists of DRDO/DRDE as the services of the Scientists require continuity of work with the Project, which can run for years together. It is contended that this aspect has been dealt with as per the provisions of the Government of India (Allocation of Business) Rules, 1961 issued by the Cabinet Secretary, Government of India in respect of the Department of Personnel & Training, which is being the Nodal Department governing the conditions of service of the Central Government employees and as per Serial No.22 under Part-IV, Service Conditions thereof, the employees of Scientific and Technical personnel under the Department of Defence Research & Development are excluded from the purview. It is further contended that at present, the respondent is engaged in various research works of important nature and for that reason the fixed tenure of him is not possible because as a Scientist he needs to work years together on a Project. The learned counsel has, therefore, submitted that the learned CAT has clearly erred in holding that the Office Memorandums dated 14.12.1983 and 22.07.1998 are applicable in respect of the employees of the DRDO also. It is, therefore, prayed that the impugned order passed by the learned CAT may kindly be set aside. 9. The learned counsel has, therefore, submitted that the learned CAT has clearly erred in holding that the Office Memorandums dated 14.12.1983 and 22.07.1998 are applicable in respect of the employees of the DRDO also. It is, therefore, prayed that the impugned order passed by the learned CAT may kindly be set aside. 9. On the contrary, learned counsel appearing for the respondent has vehemently opposed the writ petition and has argued that the learned CAT has not committed any illegally in passing the impugned order and in holding that the Office Memorandums dated 14.12.1983 and 22.07.1998 are equally applicable on the employees of the DRDO. It is further contended that the respondent was posted in the Office of the petitioner No.2 at Tezpur since the year 2014 and as per the Office Memorandums dated 14.12.1983 and 22.07.1998, he is entitled for a choice posting after completing the normal tenure of a post. It is submitted that the Office Memorandums dated 14.12.1983 and 22.07.1998 were so issued by the Central Government for treating and retaining the services of the competent Officers for the service in the North East region with the clear stipulation that their request, if any, for choice posting would be considered only after completion of fixed tenure of service. It is submitted that the respondent had requested for his choice posting initially in the year 2018, precisely on 08.01.2018, after completion of the fixed tenure of posting. However, his request was ultimately turned down in the year 2021 on the ground of non-availability of Scientist. It is submitted that even after passing of more than 4½ years from the date of rejection of the respondent’s representation for choice posting, still the petitioners are insisting that the respondent cannot be transferred on account of non-availability of Scientist. It is contended that a Central Government employee, even if he opted voluntarily for posting in North East region, cannot be retained in the same region for an indefinite period of time. The learned counsel has further submitted that, as a matter of fact, at present the respondent is not holding any particular assignment in relation to any research work and is simply assigned to perform duties as a Liaison Officer to work with the other agencies entrusted with to do certain works. The learned counsel has further submitted that, as a matter of fact, at present the respondent is not holding any particular assignment in relation to any research work and is simply assigned to perform duties as a Liaison Officer to work with the other agencies entrusted with to do certain works. The learned counsel has, therefore, prayed that there is no force in the writ petition filed by the petitioners and, therefore, the same is liable to be dismissed. 10. From the facts of the case, it can be gathered that the respondent has completed fixed tenure of posting at Tezpur way back in the year 2017. The respondent is claiming that he is entitled for a choice posting as per the Office Memorandums dated 14.12.1983 and 22.07.1998, whereas the petitioners are claiming that as per the Government of India (Allocation of Business) Rules 1961, an employee of DRDO cannot claim benefit of the above referred Office Memorandums as the said Office Memorandums are not applicable in their case. 11. In the earlier round of litigation, this Court, vide judgment & order dated 06.09.2022 passed in WP(C) No.2831/2022 had remanded the matter to the learned CAT to decide the issue of applicability of the Government of India Office Memorandums dated 14.12.1983 and 22.07.1998 in respect of the respondent, who is working with the DRDO. Pursuant to the aforesaid direction passed by this Court, the learned CAT has decided the issue referred to it by holding that the Office Memorandums dated 14.12.1983 and 22.07.1998 are applicable in the case of the respondent, who is an employee of the DRDO. 12. We have gone through the Office Memorandums dated 14.12.1983 and 22.07.1998 as well as the Government of India (Allocation of Business) Rules, 1961. It is true that Clause 22 of the Government of India (Allocation of Business) Rules, 1961 stipulates the service conditions of the Central Government employees excluding those under the control of the Department of Railways, Department of Atomic Energy, the erstwhile Department of Electronics, The Department of Space and the Scientific and Technical personnel under the Department of Defence Research & Development, other than those having a financial bearing and in so far as they raise points of general service interests. It is to be noticed that the Government of India (Allocation of Business) Rules, 1961 has been issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training (DoPT), however, the Office Memorandum dated 14.12.1983 was issued by the Government of India, Ministry of Finance, Department of Expenditure as per the recommendations of a Committee headed by the Secretary, Department of Personnel & Administrative Reforms. The Office Memorandum dated 22.07.1998 was enforced with certain amendments in continuation with the Office Memorandum dated 14.12.1983. 13. In the said Office Memorandums, the employees of the DRDO have not been excluded and it applies to all the civilian employees of the Central Government services. Had it been the intention of the Department of Personnel & Administrative Reforms to exclude the employees of the DRDO, the Committee, on the recommendation of which the Office Memorandum dated 14.12.1983 has been issued, could have indicated the same in its recommendation. In such situation, we are of the view that the learned CAT has rightly come to the conclusion that the Office Memorandums dated 14.12.1983 and 22.07.1998 are applicable to all the Central Government Offices and the Staff and do not qualify the exclusion specified under Clause 22 of the Government of India (Allocation of Business) Rules, 1961. 14. In view of the above discussions, we do not find any merit in this writ petition and hence, the same is dismissed.