Allowed

Sri.Raghu Anumolu v. Union of India

Kerala HC7 Nov 2018OP (CAT)/265/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a petition challenging an order dismissing a representation against a transfer of the petitioner from Kerala to Maharashtra. The court found administrative failures to consider family grievances regarding transfers and directed the competent authority to reconsider the petitioner's case regarding vacancies in Andhra Pradesh within four months, while dismissing the

What did the court decide?

Petitioner permitted to file detailed representation pointing out vacancies in Andhra Pradesh; Respondent directed to consider grievances and pass appropriate orders within four months.

Sri.Raghu Anumolu Vs Union of India — Pension and Retirement Benefits | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

¶4

¶5

THE HONOURABLE MR.JUSTICE V.G.ARUN

¶6

WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940

¶7

OP (CAT).No. 265 of 2016

¶8

OA 180/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

¶9

PETITIONER:

¶10

SRI.RAGHU ANUMOLU S/O. A.V.S. NARAYANA RAO, AGED 40 YEARS, WORKING AS ASSISTANT DIRECTOR OF CENSUS OPERATIONS,DIRECTORATE OF CENSUS OPERATIONS, KERALA POONKULAM, THIRUVANANTHAPURAM-695 522 AND RESIDING AT QUARTER NO.16, TYPE-IV, CENTRAL GOVERNMENT OFFICE COMPLEX,POONKULAM, THIRUVANANTHAPURAMPIN-695522

¶11

BY ADV. SRI.N.UNNIKRISHNAN

¶12

RESPONDENTS:

¶13

1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI, PIN-110001.

¶14

2 THE REGISTRAR GENERAL AND CENSUS COMMISSIONER OF INDIA, OFFICE OF THE REGISTRAR GENERAL OF INDIA, 2/A, MAN SINGH ROAD, NEW DELHI, PIN-110 011.

¶15

3 THE JOINT DIRECTOR, DIRECTORATE OF CENSUS OPERATIONS, KERALA, POONKULAM, CENTRAL GOVERNMENT OFFICE COMPLEX, THIRUVANANTHAPURAM, PIN-695522.

¶16

BY ADV.SRI.JAGADEESH LAKSHMAN, CGC

¶17

THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

OP (CAT) 265/16

-2-

JUDGMENT

C.T.Ravikumar, J.

¶22

The petitioner who was the applicant in O.A.No.487 of 2016, filed this Original Petition on being aggrieved by the order dated 9.9.2016 passed in the said original application whereby it was dismissed. In fact, it is a common order whereby the said original application and certain other connected matters were dismissed/disposed of.

¶23

2. The petitioner is working as an Assistant Director of Census Operations (ADCO). He filed the above original application, which culminated in the impugned order, seeking to hold Annexure A15 as unsustainable insofar as it orders his transfer and posting to Maharastra

¶24

pursuant to promotion as ADCO. He also

¶25

OP (CAT) 265/16

¶26

-3-

¶27

challenged Annexure-A21 whereby his

¶28

representation regarding re-consideration of his transfer was dismissed. Inter alia, he prayed for a declaration that he is entitled to be accommodated in Andhra Pradesh/Telengana or to retain in Kerala as ADCO (T), on regular basis. The respondents herein/respondents therein filed

¶29

a reply statement countering the claims and contentions of the petitioner. After considering the rival contentions, the Tribunal passed the impugned order rejecting his prayers and dismissing the original application. The Tribunal held that the applicants including the petitioner herein could not establish any legal right for remaining un-transferred from the

¶30

present post or for giving preference to a particular station. After making such an observation, the Tribunal went on to hold that

¶31

OP (CAT) 265/16

¶32

-4-

¶33

the said observation would not stand in the way of the applicants therein including the petitioner herein, to make representation to the competent Authority for a transfer, after joining at the transfer place. The impugned order would further go to show that even while dismissing the original applications, the Tribunal directed the respondents therein to consider the

¶34

representations, if any, made by the applicants including the petitioner and to pass orders thereon as expeditiously as possible. It is in

¶35

the said circumstances that this original petition has been filed.

¶36

3. Pending the above original application, the representation then pending before the

¶37

authorities was considered, but that too, went against him. The main grievance of the petitioner is that the Tribunal as also the orders passed by

¶38

OP (CAT) 265/16

¶39

-5-

¶40

the Authority competent, had failed to consider his grievances. His precise case is that there occurred invidious discrimination in the matter of transfer on promotion. It is the case that certain persons who joined along with him in the service or after him, were retained in their Native States without being disturbed and at the same time, despite rendering long service in the

¶41

State of Kerala, his application for reconsideration of transfer was not favourably considered. The circumstances under which the petitioner was transferred would reveal that it had occasioned due to his promotion as ADCO. A

¶42

perusal of Annexure A15 would reveal that pursuant to the said order of promotion, transfers of promotees were also effected. It would reveal that even on promotion, many of the promotees were retained in their present or

¶43

OP (CAT) 265/16

¶44

-6-

¶45

parent State itself and at the same time, the petitioner was ordered to be transferred from Kerala to Maharastra. He is a native of Guntur in Andra Pradesh. Though the petitioner would contend that he was singled out for such a discriminatory treatment, a perusal of the order would reveal that it is not an isolated case. Certain others were also transferred out of State. Sl.No.33 in Annexure-A15 is transferred from Kerala to Jammu and Kashmir. Sl.No.30 was transferred from Kerala to Punjab. But at the same time, as noticed herein before, Annexure A15 would reveal that most of the promotees were

¶46

retained in their present State itself. The contention of the petitioner is that certain persons included in Annexure-A15, belonging to his Native viz; Andra Pradesh have been continuing in Andra Pradesh itself right from

¶47

OP (CAT) 265/16

¶48

-7-

¶49

their entry in service. The grievance of the petitioner is that even after declaring the transfer policy as one on rotational basis, it is not being applied appropriately and the petitioner is aggrieved by the discriminatory treatment in the matter of its application.

¶50

4. We have heard the learned counsel on both sides and also carefully perused the rival pleadings. True that, the transfer policy, going by the pleadings in the counter affidavit, is nothing, but rotational basis in posting in the sense that nobody would be allowed to continue in such posts at any particular station for indefinite period. But, at the same time, a perusal of Annexure A15 itself would reveal that

¶51

in the case of some of the transferees even after granting promotion, they were retained in the State concerned itself. The said order would

¶52

OP (CAT) 265/16

¶53

-8-

¶54

further reveal that in the case of some others like the petitioner, they were transferred out pursuant to their promotion. In such circumstances, the contention of the petitioner that he was singled out in the matter of transfer pursuant to promotion, cannot be accepted. But at the same time, the fact is that even after promotion, certain promotees are retained in their respective State itself. It would indicate that there is no inviolable position that on promotion, one should be transferred out of the State, in which, he or she was working at the time of promotion. The orders would further go to show that wherever vacancies are available, the promotees are retained in the same state. We are

¶55

not oblivious of the position that the distribution of man power essentially, falls within the realm of the power of the employer. So

¶56

OP (CAT) 265/16

¶57

-9-

¶58

also, we are fully astute to the fact as regards the post concerned that there is All India Transferrability. It is also true that considering the nature of duties attached to the post of ADCO and the dearth of sufficient number of ADCOs, it may not be possible to accommodate all the incumbents in that cadre according to their choice or convenience. But at the same time, even while distributing the manpower, the employer is bound to see that least inconvenience is caused to its employees. In such

¶59

circumstances, when an employee aggrieved by the transfer and posting, approaches the authority competent, essentially it is for the Authority competent to consider such aspects. In the

¶60

representations submitted before the authorities, evidently the petitioner had pointed out such instances, besides that he has also pointed out

¶61

OP (CAT) 265/16

¶62

-10-

¶63

the availability of vacancies in his very native State. According to the petitioner, a perusal of Annexure A21 impugned order itself would reveal total non-application of mind. According to the petitioner, none of the grounds raised by him was seen considered there. A scanning of Ext.P6 would reveal a noting, which is highly deprecative, according to us. It is stated herein as under:

¶64

“Father/Mother old is a professional hazard and can't be considered.”.

¶65

Ext.P6 did not reveal as to who its author is. In such circumstances, we are refraining ourselves from making any further observation on that

¶66

aspect. But at the same time, we have no hesitation to hold that none can subscribe to such a view. When an application for transfer is submitted by an employee pointing out his difficulties and inconvenience based on the

¶67

OP (CAT) 265/16

¶68

-11-

¶69

circumstances in the family, the Government, as a model employer, cannot turn a deaf ear, but has to consider such aspects to the possible extent. True that, no employee could claim for a posting at any particular place. But at the same time, as noticed herein before, being a model employer, it is for the Government to take into account various aspects including administrative exigency as also inconvenience and hardships of its employees while effecting transfers, in such a manner to ensure that on transfer, least inconvenience is caused to them. We made such observation solely because the impugned order and the order passed thereafter, would not reflect a consideration of the grievances highlighted by the petitioner. There is no specific denial of existence of the vacancy in the post held by the petitioner in the State of Andra Pradesh. Having

¶70

OP (CAT) 265/16

¶71

-12-

¶72

said so, we also deem it fit to state that it is also for the Authorities to ensure that somebody is there to man such posts in Maharastra as also in any other place, where such key post is lying vacant. A perusal of the impugned order would reveal that even while dismissing the original application, the Tribunal had directed the competent among the official respondents to consider the pending representation made by the petitioner to alleviate his grievances. Now, it is evident that pending the original application, it was considered, but rejected, on 16.2.2017. A copy of the same has been produced as Annexure R2(a).A perusal of Annexure R2(a) whereby his claim for transfer was considered and rejected would reveal the following position:-

¶73

“b) (ii) In Kerala, 6 ADCO (T)s have been posted against the sanctioned strength of 5. So, 1 ADCO (T) is already excess

¶74

OP (CAT) 265/16

¶75

-13-

¶76

there. In Andra Pradesh, the total sanctioned strength of ADCO (T) is 5 out of which 4 posts have already been filled up and the vacancy percentage is 20% whereas in Maharashtra, the total sanctioned strength is 8 where only 3 ADCO (T) have been posted and the vacancy percentage is 70% so the Department felt that filling up of the post of ADCO (T) at DCO, Maharashtra is more essential than filling up the post of ADCO (T) at DCO, Andra Pradesh where the where the percentage of vacancy is less and also Maharashtra is a bigger State than Andra Pradesh. Even after posting of 2 ADCO (T) at DCO, Maharashtra along with the applicant, 3 posts are still vacant there. To minimise the imbalances in this working strength in the sub-ordinate Offices, transfer/posting of ADCO (T) is unavoidable and necessary to keep the department working efficiently to achieve its goal.”

¶77

But at the same time, a perusal of Annexure R2(a) order dated 16.2.2017 itself would reveal that one vacancy of ADCO (T) is available in Andra Pradesh. The original order of transfer on

¶78

OP (CAT) 265/16

¶79

-14-

¶80

promotion viz, Annexure A15 was issued on 26.5.2016. However, there is nothing on record revealing the position of present distribution of ADCOs in such states including Andhra Pradesh.

¶81

It is the fact that pending the original application, the petitioner has joined at the transferred place in Maharastra.

¶82

5. In such circumstances, we are inclined to dispose of the original application with a direction to the second respondent to consider the various grievances raised by the petitioner including his grievance relating retention of persons in the said post from the date of their initial entry in service and even after further promotions in the very State of Andhra Pradesh and Telengana.

¶83

6. In such circumstances, the petitioner is permitted to file a detailed representation

¶84

OP (CAT) 265/16

¶85

-15-

¶86

raising his grievances and pointing out the vacancies available in the State of Andra Pradesh in the cadre of ADCO. On its receipt, the second respondent shall consider the feasibility of considering such posting and pass appropriate orders thereon, expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment.

¶87

Sd/C.T.RAVIKUMAR JUDGE

¶88

Sd/V.G.ARUN JUDGE

Scl/8.11

OP (CAT) 265/16

-16-

APPENDIX

PETITIONER'S/S EXHIBITS:

¶94

EXHIBIT P1: A TRUE COPY OF ORIGINAL APPLICATION NO.487/2016 WITH ANNEXURES.

¶95

EXHIBIT P2: A TRUE COPY OF THE INTERIM ORDER DATED 27.06.2016 IN O.A.NO.487/2016 PASSED BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P3: A TRUE COPY OF SHORT REPLY DATED 07.07.2016 ALONG WITH ANNEXURE R1 LIST OF IN

¶96

EXHIBIT P4: A TRUE COPY OF THE REJOINDER DATED 14/07/2016

¶97

EXHIBIT P5: A TRUE COPY OF THE ORDER DATED 09.09.2016 PASSED BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.487/2016.

¶98

EXHIBIT P6: TRUE COPY OF THE LETTER F.NO.A.26022/19/2016-ADD-III/1009 DATED 26.08.2016.

¶99

EXHIBIT P7: A TRUE COPY OF THE ORDER NO.A1/2707/2013(1) DATED 30.09.2016

¶100

EXHIBIT P8: A TRUE COPY OF LETTER F.NO.A26022/19/2016-AD-III/1006 DATED 26.08.2016.

¶101

EXHIBIT P9 A TRUE COPY OF LETTER DATED 7/11/2016 ADDRESSED TO THE 1ST RESPONDENT BY THE COUNSEL FOR THE PETITIONER.

¶102

OP (CAT) 265/16

¶103

-17-

¶104

RESPONDENT'S/S EXHIBITS:

¶105

EXHIBIT R1 A TRUE COPY OF THE TRANSFER POSTING POLICY OF CPWD DATED 19/5/2014. EXHIBIT R2 A TRUE COPY OF THE ORDER NO. A 28011/4/2016-AD-III/137 OF THE OFFICE OF THE REGISTRAR GENERAL OF INDIA DATED 16/2/2017.

Sri.Raghu Anumolu v. Union of India

Case brief

What is this about?

What did the court decide?

Sri.Raghu Anumolu v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Thadevoos @ Abu Thalib Vs State of Kerala

Gopalakrishnan.K Vs State Bank of India

Union of India Vs Santhi G. Jaidev

A.M.Basheer Vs State of Kerala