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2024 Supreme(Online)(CAT) 16879
CENTRAL ADMINISTRATIVE TRIBUNAL
Pankaj Kumar, Administrative Member
Abhinandan Srivastava – Appellant
Versus
Union of India – Respondent
Original Application No.332/00234/2024
Important Points
Subject
Service Law - Transfer and Posting
Act Referred
Headnote
(B) Administrative Law - Natural justice - Disposal of representation - Where interim order stays transfer noting child's medical condition and directs consideration thereof, rejection must specifically address ground raised and policy's compassionate clause (para 8.1) enabling alternative arrangements - Silence on disability/medical facilities and failure to explore alternatives despite mass rotational transfers indicates non-application of mind. (Paras 8.1-8.4)
Facts of the case:
Applicant, Director (Geology), transferred after 8 years (cumulative 14 years) at station per rotational policy (45 other officers transferred), represented citing 8-year-old son's 90% disability (cerebral palsy, epilepsy, treatment-dependent), wife's state government posting there - Tribunal stayed transfer, directed representation disposal - Respondents rejected without addressing disability/personal circumstances.
Findings of Court:
Rejection order suffers non-application of mind for ignoring child's medical condition and compassionate policy provisions despite Tribunal's specific direction and scope for alternatives in mass transfers.
Issues: Whether rejection of retention request, ignoring child's benchmark disability and spousal posting grounds while citing tenure/public interest, constitutes non-application of mind vitiating orders.
Ratio Decidendi: Transfer authorities must sympathetically consider/exempt caregivers of disabled dependents from routine transfers per DoPT guidelines, apply mind to representations, address personal circumstances under compassionate policy clauses; mechanical public interest justification without balancing family hardship unsustainable.
Result: OA allowed; rejection order 01.05.2024 and transfer order 04.04.2024 (qua applicant) quashed/set aside; applicant permitted continuance at station. (Para 9.1)
For the Appellants/Petitioners: Shri Praveen Kumar
For the Respondents: Smt. Prayagmati Gupta
| Table of Content |
|---|
| 1. applicant's transfer challenged due to child's disability (Para 2 , 3) |
| 2. transfer is essential condition of service (Para 4) |
| 3. dopt policies require sympathetic consideration for caregivers (Para 6) |
ORDER (ORAL)
Per Hon’ble Mr. Pankaj Kumar, Member-Administrative In this case relating to transfer, the applicant has sought the following reliefs:
“(1) To quash the impugned transfer order dated 04.04.2024 contained as Annexure No. A-1 to this OA) to the extent it relates to the applicant, with all consequential benefits.
1.A To quash the impugned order dated 01.05.2024 contained as Annexure No.A-1A to this OA, with all consequential benefits.
2. To allow the applicant to continue at Lucknow, with all consequential benefits.
3. Any other relief, which this Hon’ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
4. Cost of the present case.”
2. The facts of the case are that the applicant, working on the post of Director (Geology) at Lucknow under the respondents, was transferred to Jammu vide order dated 04.04.2024 which also included transfer of 45 other officers. The applicant submitted representation dated 05.04.2024 to the respondents requesting for his retention at Lucknow on the grounds that his elder son (age 8 years) was undergoing treatment at Lucknow for cerebral palsy and epilepsy and that his wife, working as teacher under the State Government of Uttar Pradesh, was also posted at Lucknow. Not having received a positive response, the applicant has preferred this OA. When the case came up for hearing on 16.04.2024, this Tribunal stayed the operation of the impugned transfer order dated 04.04.2024 qua the applicant and directed the respondents to dispose of the applicant’s pending representation. The respondents, vide their order dated 01.05.2024, did not accede to the applicant’s request for retention at Lucknow.
3. The applicant states that he has two minor sons aged 8 years and 3 years. The elder son is suffering from cerebral palsy (with 90% disability) and epilepsy, is unable to sit, walk and speak, and is undergoing treatment at Lucknow. Office memorandum (OM) dated 15.02.1991 issued by the Department of Personnel & Training (DoPT) provides that Government servant having mentally retarded children should be given posting of his choice while taking a sympathetic view. Subsequently, vide OM dated 08.10.2018, DoPT has emphasized exempting employees who are main care giver of person with disability from the routine exercise of transfer. The applicant’s wife, an employee under the State Government of UP, is posted at Government Polytechnic, Lucknow. The transfer policy of Geological Survey of India has provision for compassionate transfer. Three other officers (Ajay Kumar, Rakesh Mishra and Om Prakash) who have completed more than 10 years at Lucknow have not been touched while the applicant has been disturbed despite having peculiar circumstances.
4. The respondents, on the other hand, state that transfer is not only an incident but an essential condition of service and the employee does not have any vested right to be posted at a particular place. In terms of FR 11, the whole of a Government servant is at the disposal of the Government which pays him and may be employed in any manner required by the proper authority. The applicant, along with 45 other officers, has been transferred with due approval of the competent authority in consonance with the transfer policy dated 25.07.2016 for Group ‘A’ & ‘B’ officers of GSI as per functional requirement. Paragraph 4.4 of the policy stipulates maximum tenure of 5 years at a single location. As per paragraph 4.8, no officer will be allowed to work at a single station for more than two spells. Out of service period of nearly 20 years, the applicant has served for about 14 years at Lucknow and has completed 8 years during the present stay. He was posted at Jaipur (2004-08), Lucknow (2008-14), Shillong (2014-16) and Lucknow a
