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Friday, July 6, 2018

Transfer News - अगर पति पत्नी एक जिले में पोस्टिंग को इस जजमेंट को आधार बना कर लड़ा होता तो शायद सभी कपल को एक ही जिले में पोस्टिंग मिल जाती , इस निर्णय में कोर्ट ने साफ साफ़ यह भी कहा की छठा वेतन आयोग तो कपल पोस्टिंग को चाइल्ड केयर आदि के आधार पर मेंडेटरी कर रहा था , और चाइल्ड केयर लीव का प्रावधान दर्शाता है की जितना संभव हो कपल को निकटस्थ कार्यस्थल पर पोस्टिंग दी जाये , देखें आदेश -

Transfer News - अगर पति पत्नी एक जिले में पोस्टिंग को इस जजमेंट को आधार बना कर लड़ा होता तो शायद सभी कपल को एक ही जिले में पोस्टिंग मिल जाती , इस निर्णय में कोर्ट ने साफ साफ़ यह भी कहा की छठा वेतन आयोग तो कपल पोस्टिंग को चाइल्ड केयर आदि के आधार पर मेंडेटरी कर रहा था , और चाइल्ड केयर लीव का प्रावधान दर्शाता है की  जितना संभव हो कपल को निकटस्थ कार्यस्थल पर पोस्टिंग दी जाये , देखें आदेश  

इस आदेश में कोर्ट ने कड़े शब्दों में कहा की अक्सर देखा गया है की कुछ भी कारण जो विभागों को अच्छा लगे बताकर कपल को एक जगह पोस्टिंग न देकर  परेशान किया जाता है 

Central Administrative Tribunal - Allahabad
Original Application ... vs Jagdish Kaur 2013 (2) Scc (L&S) ... on 18 September, 2014




Original Application No.330/01090 OF 2014 
(U/S 19, Administrative Tribunal Act, 1985)
Gyan Chandra Sharma, aged about 54 years, S/o Sadanand Sharma, R/o House No.3, Village-Bholepur, PS-Fatehgarh, District-Farukhabad.

1. Union of India through the General Manager, Eastern Railway, Gorakhpur.
2. The Divisional Railway Manager (P), Eastern Railway, Izzatnagar.
3. The Sr. Divisional Personnel Officer, Eastern Railway, Izzatnagar.
4. The Sr. Section Engineer (Sig.), Eastern Railway, Fatehgarh.


Advocates for the Applicant:- Shri L.M. Singh 
Advocate for the Respondents:- Shri  A. Tripathi

DELIVERED BY HON BLE MS. JASMINE AHMED, MEMBER (J) Shri L.M. Singh, learned counsel for the applicant and Shri Avnish Tripathi, learned counsel for the respondents.

2. The applicant was initially appointed as a Telephone Operator on 16.9.1997 with the Railway. In the year 2002 due to administrative reason the post of Telephone Operator got surrendered and due to that circumstances the applicant was absorbed against the post of TCM-III on 26.7.2002 but the applicant did not accept the post as similarly situated persons were absorbed against Group C post i.e. Assistant Clerk. Consequently, the applicant was also absorbed against the post of Assistant Clerk and was posted at Fatehgarh during the year 2005.

3. This is the second round of litigation. The applicant preferred OA No.330/00777/2014 challenging the transfer order dated 23.4.2014 whereby he was transferred from Izzatnagar to Mathura. After getting the transfer order the applicant preferred a representation dated 1.5.2014. The OA was disposed of on 24.6.2014 with a direction to the respondents to consider and decide the representation of the applicant dated 1.5.2014 as expeditiously as possible by a reasoned and speaking order. The court also granted an interim measure of status-quo as on date in favour of the applicant till the time the representation is decided, and directed not to disturb the applicant. In pursuance of the order dated 24.6.2014 the respondents have passed an order dated 4.8.2014 rejecting the request of the applicant which resulted the present original application.

4. The counsel for the applicant is challenging the legality and validity of the transfer order dated 23.4.2014 passed by the respondent no.2 as well as the rejection of representation dated 4.8.2014 passed by respondent no.3. The applicant states that his wife is a working lady who is working as Assistant Teacher in the Education department under the State Government in Prathamik Vidyalaya, Chawki, Mahmudpur, Kamalganj, Farrukhabad. Prior to posting at Farrukhabad the wife of the applicant was posted at Lalitpur and taking into consideration the spouse ground she was posted at Farrukhabad from Lalitpur vide transfer order dated 12.10.2000 and on 13.10.2000 she joined her duty. Now the applicant has been transferred from Fatehgarh (Farrukhabad) to Mathura.

5. The contention of the counsel for the applicant is that taking into consideration that the wife of the applicant is posted at Farrukhabad he should not be transferred out from Farrukhabad as the O.M dated 30.9.2009 issued from Department of Personnel and Training in respect of posting of husband and wife at the same station says that to enhance the status of women in all walk of life and to enable them to lead a normal family life, also at the same time, to ensure education and welfare of the children till the children attain the age of 18 years husband and wife may be posted at the same station. While bringing in this O.M., Government even thought of making the provision of posting at the same station mandatory. While reviewing the issue of posting of husband and wife at same station Government has taken into considerations the 6th CPC Report, where Govt. Servants have already been allowed the facility of child care Leave which is admissible till the children attain 18 years of age. Adhering with this principle of Care , on the similar lines, consolidated guidelines of provisions about posting of the working spouse has been formulated. The counsel for the applicant also stated that in absence of statutory rules, relevant government orders would hold good and in this regard he places reliance on the judgment passed by Hon ble Apex Court in the case of State of Punjab & Others Versus Jagdish Kaur 2013 (2) SCC (L&S) 257. And he states that the O.M. dated 30.9.2009 shall be followed and adhered in its letter and spirit while passing transfer orders.

6. In the similar line of the O.M. from the DOP&T dated 30.9.2009 respondent no.2 has already issued a letter dated 1.6.2006 with the same principle in respect of posting of husband and wife at the same station with a clear stipulation/intention to ensure the posting of working couples in Grade C & D in the same station.

7. The counsel for the respondents vehemently opposes the contention of the applicant and says that if this is so, then the respondents would be restrained to transfer the applicant anywhere anytime from the present place of posting where he is enjoying a stay of long 17 years i.e. Fatehgarh/Farrukhabad. He also states that this will hamper in the routine/periodical transfer and this type of problems will be there with other government employees also. As the transfer is an incidence of service hence the applicant every time cannot take shelter of the spouse ground.

8. Heard the rival contentions of the parties, perused the documents and pleadings available on record.

9. Though the Hon ble Apex Court in catena of judgments has held that as transfer is an incidence of service hence generally it should not be interfered into, unless until the order is arbitrary, punitive, against the statutory provisions or in exercise of colorable powers, irrespective of that, transfer orders are challenged and assailed time and again before the courts of law and orders have been passed taking into consideration facts and circumstances of each case. With the changing scenario, when more and more ladies are joining the bigger world leaving the comfort of their cozy home, the government as a model employer and a welfare state taking into consideration this advancement, provided some facilities for working women just to help them to lead a normal healthy family life and also to ensure that the children who are the future of the world/society shall not be deprived of the affection and care of the mother till they are attaining the age of 18 years. It cannot be said that while making this provision the government was not aware about the catena of judgments not to interfere in the transfer order. Instead of that, the government has made special provisions for working spouses by O.M. dated 30.09.2009 to encourage the increase of representations of women in every walk of life especially in government jobs. The government has made and categorized certain provisions for the working spouses in O.M. dated 30.9.2009. The subject, theme and the spirit in the overall guidelines for posting of husband and wife as envisaged is very categorical:

Subject:Posting of husband and wife at the same station.

The subject itself equivocally without any ambiguity speaks about posting of husband and wife in a same station. The Railway Board by their letter dated 1.6.2006 had already issued direction about posting of husband wife in group C and D category Railway employees in the same station. In a very clear term, it also stated that even if the categories of the employees are changed, it shall be ensured (,d LFkku ij iRuh vkSj ifr dh rSukrh lqfuf pr dh tk;A) that the husband and wife are posted at the same station.

10. While rejecting the representation of the applicant, the respondents have taken three pleas.

(i) The applicant is posted at Fatehgarh almost for 17 years. .

(ii) To make time bound transfers and adjustments.

(iii) The wife may request her employer for her transfer.

The above stated reasons are seems to be vague and unsubstantiated ground, showing no administrative exigency. When the post is there, and the work of the applicant is also satisfactory, only on the ground that he is there for a long time or to make time bound periodical transfers, the applicant needs to be transferred hold no justification. Nor does the wife need to request for her transfer to the place where her husband has been transferred. None of these reasons seem to be very urgent administrative nature which cannot be done away otherwise without transferring the applicant.

11. The motive behind the O.M. dated 30.9.2009 though not very categorically transcribed as mandatory but the theme & spirit behind the issuing of this O.M. is almost mandatory in nature. Clause 4(vii) categorically prescribes how to deal with the issue of transfer when one spouse is employed under the central Government and the other spouse is employed under the State Government:-

The spouse employed under the Central Government may apply to the competent authority and the competent authority may post the said officer to the station or if there is no post in that station to the State where the other spouse is posted.

12. In clause 5 of the O.M. dated 30.09.2009 government has also dealt into about unaccomodative attitude of employers at times, and directed as under:-

5.Complaints are sometimes received that even if posts are available in the station of posting of the spouse, the administrative authorities do not accommodate the employees citing administrative reasons. In all such cases, the cadre controlling authority should strive to post the employee at the station of the spouse and in case of inability to do so, specific reasons, therefore, may be communicated to the employee.

13. The reasons given by the respondents rejecting the request do not reflect that kind of administrative exigencies which cannot be mete out without transferring the applicant.

14. In Deepa Vaishistha Versus State of U.P. 1996(1) ESC 148 (All-DB) it has been categorically held that:-

If the administrative exigencies or public interest so requires, certainly husband and wife may be transferred to different places but only in exceptional cases i.e. in respect of rare cases, for which no illustration can be given.

But now a days it is invariably seen that for the reasons best known to the department, this kind of transfers are being made disturbing the couple. In the opinion of this court, as such practice needs to be deprecated.

15. In view of the entire above discussions the transfer order dated 23.4.2014 in respect of the applicant and the rejection order dated 4.8.2014 of his representation is quashed and set aside. Accordingly, the OA is allowed. No Costs.

[Jasmine Ahmed] Member-J /ns/ ??

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