Oa No. 1542/2009. Case: Sudhir Chopra Vs 1. Union of India, Secretary To The Government of India, Ministry of Defence, New Delhi; 2. Director General of Defence Estates, Raksha Sampda Bhawan, Delhi; 3. Director, National Institute of Defence Estates Management, Delhi; 4. Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, New Delhi. Central Administrative Tribunal
| Case Number | Oa No. 1542/2009 |
| Counsel | A. K. Bhardwaj |
| Judges | Dr. Dharam Paul Sharma (Judicial Member) |
| Issue | Service Laws |
| Judgement Date | June 16, 2009 |
| Court | Central Administrative Tribunal |
Judgment:
Dr. Dharam Paul Sharma (Judicial Member), (Principal Bench, New Delhi)
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This is the second round of litigation between the parties herein with regard to the transfer of the applicant, a Joint Director in the National Institute of Defence Estates Management (in short 'NIDEM'), Delhi Cantt. to Jabalpur as DEO vice Smt. Shobha Gupta, DEO vide letter dated 11.2.2009 which has been impugned in these proceedings.
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The applicant represented to the Secretary, Ministry of Defence against his aforesaid transfer on 25.02.2009 which was rejected on 02.03.2009 by a non-speaking order. The applicant had filed OA No. 609/2009 challenging his transfer order dated 11.2.2009 as well as rejection of his representation by non-speaking order. The said OA was allowed with direction to the respondents to pass fresh reasoned order after dealing with all the contentions of the applicant and also decide as to who was the competent authority in the case of the applicant. It was further directed that this exercise shall be completed within two weeks from the date of receipt of a copy of the order. Till such time, the applicant's representation is decided, the respondents shall not give effect to the order dated 11.02.2009 as far as the applicant is concerned. In compliance with these directions, the respondents have passed order dated 26.05.2009 whereby the respondents after duly considering the contentions raised by the applicant in his representation dated 25.02.2009 rejected the said representation being devoid of merit. The present application is directed against this order of rejection as well as the original order of transfer dated 11.02.2009.
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The applicant is an Officer of Indian Defence Estates Service 1980 Batch and posted as Joint Director in the National Institute of Defence Estates Management (NIDEM) since 01.04.2005. The applicant, inter alia, claims that in the present position, his tenure is for a period of five years which he has yet not completed and the impugned transfer has been made after four years of his tenure. He has annexed the extract from the Govt. of India, Ministry of Defence (Dte. Gen., DL &C) letter No.134/Policy/ADM/L&C dated 5.9.1983 which prescribes the tenure of the officers of the Defence Estates Service according to which in the Directorate General, Defence Estates, the tenure of Addl. DG/Deputy Director General, DE is for the period of five years; of Asstt. Director General, DE for four years and of Deputy Asstt. Director General, DE is for three years. There is no separate mention of the tenure of the officers posted in the training institute NIDEM. Since he is in the same scale as that of Deputy Director General, DE, the applicant seeks parity with him in the matter of fixation of posting and transfers accordingly and contends that he cannot be transferred till his five years' tenure is completed, as at par Deputy Director General DE in NIDEM. The applicant has assailed the impugned order on the ground that it is violative of the administrative instructions of Office Memorandum dated 31.03.1987, a copy of which is Annexure A-4. Accordingly, the officers who are posted to training Institutes are to be given a posting of their choice from among three options given by them on completion of their tenure in the training institute. The impugned transfer order is passed in contravention of the administrative instructions of the aforesaid Govt. of India OM and the applicant has not given any option in terms of the said OM. It has been further contended that a representation was made to the Secretary, Ministry of Defence, Respondent No.1, who alone was competent to decide the representation against the order of Respondent No.2 viz. Director General of Defence Estates. Instead of that, Respondent No.2 has rejected the applicant's representation without any authorization from Respondent No.1 or without consultation with Respondent No.1 and respondents proceeded with the applicant's case to relieve him immediately after passing of the impugned order dated 26.5.2009. The applicant further contends that Respondent No.2 erred in holding that applicant was not holding faculty position in NIDEM and, therefore, was not entitled to posting in terms of OM dated 31.03.1987. The applicant has furnished the copies of the Course Information Sheets conducted by him as Course Director in NIDEM and, therefore, it becomes clear that the applicant was a faculty member of NIDEM since his joining. This has been further substantiated by the fact that the applicant has been in receipt of training allowance, which is given to those officers who are holding faculty position. From the date of joining as Joint Directors in NIDEM, the applicant is in receipt of this training allowance. There are references to remarks/observations made by certain Officers of the training institutes of NIDEM as to the performance of the applicant herein as well as the disciplinary proceedings initiated against the applicant. This is, however, not relevant to the impugned transfer order. The applicant has annexed the extracts of brochure from the various training programmes conducted by him as well as the extracts from his Annual Confidential Report in support of his claim that he was a Member of Faculty, NIDEM in terms of OM dated 31.03.1987. He has also annexed copies of various authorities to show that he conducted the various courses. All these go to show that he was a Member of Faculty of NIDEM and was entitled to the benefits provided in the Office Memorandum dated 31.03.1987.
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At the hearing, the applicant made submissions in person in the absence of his counsel. He put forth three-fold submissions that;
his tenure in the post of Joint Director, NIDEM was five years but the respondents have chosen to transfer him before completion of the said period i.e. after four years of his service in the post;
his representation has not been considered by the competent authority. He made a representation to the Secretary, Ministry of Defence but the same has been considered and rejected by the Director General of Defence Estates-Respondent No.2.
Being a member of faculty, he should have been...
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