Remanded

The Union of India and 4 Ors. v. Utsab Deb

Gauhati HC6 Sept 2022WP(C)/2831/2022

Case brief

AI extract

What is this about?

The High Court set aside the CAT Guwahati order granting relief for choice posting. The Court found the Tribunal did not decide the crucial issue of whether general transfer guidelines apply to DRDO given specific exclusions in the Allocation of Business Rules 1961. Matter remanded.

What did the court decide?

The impugned order of Central Administrative Tribunal was set aside and the matter remanded to the Tribunal to re-decide the applicability of Office Memorandums.

The Union of India and 4 Ors. Vs Utsab Deb — Service and Employment | Gauhati HC (2022)

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GAHC010073492022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2831/2022

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THE UNION OF INDIA AND 4 ORS. REPRESENTED BY THE SECRETARY, DEFENCE RESEARCH AND DEVELOPMENT ORGANIZATION, MINISTRY OF DEFENCE, DRDO BHAWAN, RAJAJI MARG, NEW DELHI-110011

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2: THE DIRECTOR DIRECTORATE OF PERSONNEL DEFENCE RESEARCH AND DEVELOPMENT ORGANIZATION (DRDO) MINISTRY OF DEFENCE ROOM NO. 218 SECOND FLOOR DRDO BHAWAN RAJAJI MARG NEW DELHI-110011

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3: THE DIRECTOR GENERAL (LIFE SCIENCE) DEVELOPMENT ORGANIZATION MINISTRY OF DEFENCE DRDO BHAWAN RAJAJI MARG NEW DELHI-110011

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4: THE DIRECTOR

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DEFENCE RESEARCH LABORATORY POST BAG NO. 02 TEZPUR ASSAM PIN-784001

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5: THE DIRECTOR GENERAL HUMAN RESOURCES (HR) DRDO BHAWAN DRDO HQRS RAJAJI MARG NEW DELHI-11001

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VERSUS

UTSAB DEB

SCIENTIST D, DEFENCE RESEARCH LABORATORY, POST BAG NO. 02, TEZPUR, ASSAM, PIN-784001

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Advocate for the Petitioner : MR. B CHAKRAVARTY

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Advocate for the Respondent : DR G J SHARMA

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BEFORE

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HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

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For the Petitioners : Mr. B. Chakravarty, Advocate : Ms. A. Lala, SC, UOI For the Respondent : Mrs. U. Dutta, Advocate Date of Hearing : 06.09.2022 Date of Judgment & Order : 06.09.2022

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JUDGMENT & ORDER

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(Soumitra Saikia, J)

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1. This writ petition has been filed by the Union of India challenging the order dated 17.02.2022 passed by the learned Central Administrative Tribunal (CAT), Guwahati Bench in O.A./40/257/2021. The writ petitioner here is the Union of India represented by the Secretary, Defence Research and Development Organization. The respondent has joined the Defence Research and Development Organization (in short “DRDO”) in the year 2004. He had sought

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for a posting to a nearby place to Kolkata where his ailing father was residing. He was, accordingly, transferred to Defence Research Laboratory (in short “DRL”), Tezpur which is under DRDO. The respondent completed his tenure in Tezpur, which according to him is considered to be a hard posting and he, therefore, submitted a representation dated 08.01.2018 for his transfer to either of the places, namely, Gwalior/Mysore/New Delhi/ Bangalore as per Office Memorandums dated 14.12.1983 and 22.07.1998. It was followed by another representation dated 30.01.2019. The respondent even tried for mutual transfer with one incumbent from Hyderabad but the same was also not considered. The authority then sent him on deputation to DRL Dett. Salari, Arunachal Pradesh but his movement was cancelled due to Covid situation. The respondent then filed O.A. No. 135/2021, which was disposed of with a direction to consider his pending representation. In terms of the said direction issued by the CAT, Guwahati, representations were considered by the petitioner but were however rejected vide order dated 10.08.2021. Being aggrieved the respondent filed another O.A. being O.A. No. 257/2021 assailing the order dated 10.08.2021 rejecting his representation.

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2. The petitioner contested the matter before the CAT, Guwahati by filing their written statements. It was contended on behalf of the petitioner that the respondent was posted at DRL, Tezpur on compassionate ground without any pre-condition and that it was not a normal tenure posting. Further his posting to DRL Dett Salari in Arunachal Pradesh was not on deputation but a rotational roster duty which is assigned to all incumbents as per need basis. The respondent belongs to DRDO and is liable to be posted for field services of Research and Development and it is the prerogative of the employer to post the incumbents as per need basis. It was further contended that the respondent’s

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qualification does not sync with the work at Hyderabad and that his transfer could not be considered due to non-availability of scientist and also it was administratively not feasible to do so. For all these reasons, the requests for transfer could not be acceded to.

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3. The Central Administrative Tribunal vide impugned order dated 17.02.2022 allowed the application holding that the respondent is entitled to his choice of posting in view of the guidelines laid down under the general policy of transfer as the respondent has served in hard stations. The Tribunal directed the petitioners to post the respondent to his choice of posting to any of the places amongst Gwalior/Mysore/New Delhi/ Bangalore and the same was directed to be carried out within one month from the date of the receipt of the copy of the order.

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4. Being aggrieved, the present writ petition has been preferred. It is contended by the petitioners before us that the Tribunal erred in holding that the posting of the respondent was a tenure posting and consequently the respondent was entitled to benefits of the O.M. dated 14.12.1983 and 22.07.1998 with regard to posting. The petitioners contended that it is not a “hard posting” as sought to be projected by the respondent in his application. He was posted in Tezpur at his own request on compassionate ground. It is further contended that the respondent was never posted at Salari, Arunachal Pradesh, but he was sent on deputation for a fixed period of 45 days on rotational basis on temporary duty as the DRL high altitude stations at Salari and Tawang are the Research and Development centers under DRL, Tezpur from where the personnel are sent on rotation basis for high altitude research work on roster basis and it is not a permanent posting on deputation. The further contention of the petitioners is that there are various labs/establishments at

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various locations of the country which, according to the nature of the functions are divided into various clusters and which works under the Director General. It is contended before us that the respondent is working in the life science cluster based on his technical qualification, domain knowledge and organizational interests. Considering his technical expertise and knowledge, respondent’s services are essential in his present place of posting as he is involved in various research projects and no suitable reliever for the post is available. The further case of the petitioner is that the Tribunal failed to consider the general instructions of the Ministry of Personnel, Public Grievances and Pension relating to service conditions in issue and which are not always applicable to certain departments as per Government of India (Allocation of Business) Rules, 1961. As per Rule- 22 of the said Rule, general conditions of service of Central Government employees will be excluded for certain departments which include the DRDO. It is further contended by the petitioners that the O.M. dated 14.12.1983 and the O.M. dated 22.07.1998 issued by the Ministry of Finance, Department of Expenditure for grant of short tenure with special duty allowances/SDA is not applicable in the case of the respondent as he had sought transfer to Tezpur on his own request on compassionate ground.

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5. Mrs. U. Dutta, learned counsel appearing for the respondent submits that there is no infirmity in the order dated 17.02.2022 of the CAT, Guwahati impugned in the present proceedings. It is contended by the respondent that the Tribunal has rightly considered the claims and the prayers of the respondents and issued consequential directions to the petitioners which needs to be complied with. As such, therebeing no infirmity in the order dated 17.02.2022 passed by the CAT, Guwahati, the writ petition merits dismissal.

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6. We have heard the learned counsels for the parties. We have perused the

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pleadings on record. We have also carefully perused the impugned order dated 17.02.2022 passed by the CAT, Guwahati.

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7. From the perusal of the impugned order, it is seen that the CAT, Guwahati had considered the O.M. dated 14.12.1983 and the O.M. dated 22.07.1998. Upon such consideration of the O.Ms, CAT, Guwahati declined to accept the contentions of the petitioners that the prayer for choice posting as prayed for by the respondent is not available. The Tribunal held that non-availability of a substitute is not acceptable inasmuch as the respondent would eventually retire on some day and in such a situation some administrative arrangements to post a suitable substitute in his place will eventually have to be worked out. The Tribunal accepted the submissions made on behalf of the respondent that the Office Memorandum of Government of India dated 14.12.1983 and 22.07.1998 which provide for repatriation to any of the choice stations after completion of the tenure in the NER, is applicable in the case of the respondent as he had completed more than 7 years in the North Eastern Region. The CAT, Guwahati held that the respondent must comply with the general policy of the Government of India with regard to transfer and posting particular in case of those who are posted to hard stations and are entitled to choice postings on successful completion of the prescribed tenure. Accordingly the O.A. was allowed and the petitioners were directed to post the respondent to any one of the offices/labs in the choice station, namely, Gwalior/Mysore/New Delhi/ Bangalore.

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8. Before this Court one of the grounds urged by the petitioners is that the Office Memorandum dated 14.12.1983 and the Office Memorandum dated 22.07.1998 are not applicable in the case of the DRDO in view of the Government of India (Allocation of Business) Rules, 1961. Drawing the attention

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of the Court to Rule- 22 of the said Rules, it was submitted that certain organizations mentioned in the said Rule including DRDO are excluded from the purview of the general circulars issued by the Government from time to time. It is seen that in the written statement filed before the Tribunal, the petitioners had taken this particular objection at paragraph 4.4 and 4.5. The specific Rule referred to by the petitioner under which the general circulars issued by the Government of India relating to service conditions do not apply to DRDO is extracted below:-

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THE GOVERNMENT OF INDIA (ALLOCATION OF BUSINESS) RULES

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In exercise of the powers conferred by Clause (3) of article 77 of the Constitution and in supersession of all previous rules and orders on the subject the President hereby makes the following rules for the allocation of the business of the Government of India

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…………..

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DISTRIBUTION OF SUBJECTS AMONG THE DEPARTMENTS (VIBHAG)

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MINISTRY OF AGRICULTURE AND FARMERS WELFARE¹

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(KRISHI EVAM KISAN KALYAN MANTRALAYA)

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A. DEPARTMENT OF AGRICULTURE, COOPERATION AND FARMERS WELFARE (KRISHI, SAHKARITA EVAM KISAN KALYAN VIBHAG

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PART I ……………………….

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MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS (KARMIK, LOK SHIKAYAT TATHA PENSION MANTRALAYA)

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A. DEPARTMENT OF PERSONNEL AND TRAINING (KARMIK AUR PRASHIKSHAN VIBHAG)

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I. RECRUITMENT, PROMOTION AND MORALE OF SERVICE

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………………………………..

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IV. SERVICE CONDITIONS

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…………………………..

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22. Conditions of service of Central Government employees (excluding those under the control of the Department of Railways, the 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 and Development, other than those having a financial bearing and in so far as they raise points of general service interests) ”.

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9. From the impugned order, it is seen that although the question of applicability of Government of India Office Memorandum dated 14.12.1983 and 22.07.1998 for repatriation to any choice station, arose, the Tribunal did not effectively render any finding on the applicability on the Government of India Office Memorandum dated 14.12.1983 and 22.07.1998, in view of the specific exclusion mentioned under Government of India (Allocation of Business) Rules, 1961 Rule- 22 which excludes applicability of general circulars and Office Memorandums in respect of certain Government department which includes DRDO also.

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10. We find from the impugned order that although a question was raised by the Tribunal in respect of applicability of the said Office Memorandums in view of the Rules of 1961, no finding was arrived at by the Tribunal on this issue. The learned counsels for the parties are in agreement that the said issue was not decided by the Tribunal. Under the circumstances, we deem it appropriate to remand the matter back to the Tribunal to re-decide the issue of applicability of Government of India Office Memorandum dated 14.12.1983 and 22.07.1998 in respect of the respondents claimed for choice posting in view of the exclusion specified under Clause- 22 of Government of India (Allocation of Business) Rules, 1961. The impugned order dated 17.02.2022 passed by the learned

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Central Administrative Tribunal, Guwahati Bench in O.A./40/257/2021 is accordingly set aside and matter is remanded back to the Tribunal to be redecided as directed above.

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11. The Writ Petition is accordingly disposed of in terms of above. No order as to costs.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

The Union of India and 4 Ors. v. Utsab Deb

Case brief

What is this about?

What did the court decide?

The Union of India and 4 Ors. v. Utsab Deb

Case brief

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What did the court decide?

What the court decided

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