B. Tiwary v. Union of India & Anr

G.S.SISTANI, J I, AUGUST 17, 2015 SANGITfI3iJy4A SEHGAL, J pst El .1 WP-(Q No. 606112015

s---- * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C)606 1/2015 % Judgment dated 17" August, 2015 B. TIWARY Petitioner Through: Mr. B.K. Berera, Advocate versus UNION OF INDIA & ANR Respondents Through: Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor & Mr. Gyanesh Bhardwaj, Advocates. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.SSISr ANI, J (ORAL) Aggrieved by the order of transfer dated 20.03.2015, OA No.1520/2015 was filed by the petitioner before the Central Administrative Tribunal(hereinafier referred to as 'CAT'). The said OA was dismissed by the CAT by an order dated 29.05.2015 which has led to the filing of the present writ petition. 2. The petitioner joined as an Assistant Director/Assistant Executive Engineer based on a Combined Engineering Service Examination conducted by the Uni n Public Service Comrnission(hereinafter referred to as 'UPSC') on 27.10.1984. He was promoted as Dy. Director in June, 1990 and Director in December, 2005. On 30.09.2014, the petitioner was promoted as Chief W.P.(C) No. 606112015 Engineer and, subsequently, posted as Chief Engineer in HETD Division of Hydro Wing CEA on 17.10.2014. The petitioner was shocked to receive the transfer order by which he was transferred to Polavaram Project Authority(hereinafter referred to as 'PPA'), Hyderabad only after five months of his posting as Chief Engineer in HETD Division of Hydro Wing CEA. The petitioner was to be relieved from 31.03.2015. 3. Aggrieved by the order of transfer, the petitioner made a representation on 23.03.2015 which was rejected on 30.03.2015. Another representation was made on 31.03 .2015 which was also rejected on the same day. 4. The order of transfer was challenged before the CAT on four grounds: (1) Petitioner claimed that he had only one year and ten months left to his retirement and he should not normally have been transferred out; (2) The petitioner's father was 81 years of age and has suffered a paralytic stroke and is bed-ridden; (3) He has to look after his unmarried sister and who is staying with him and is suffering from liver cirrhoses; and (4) There are other senior officers who may be more suitable and who are lesser in age who could be transferred out. 5. All four grounds of the petitioner were rejected by the CAT. In addition to the aforesaid four grounds, reliance is placed by the learned counsel for the petitioner on the policy formulated by the respondents pursuant to the directions contained in the case of T.S. R. Subramanian & Ors. v. Union of India & Ors., reported at (2013) 15 SCC 732. Learned counsel for the petitioner has relied upon Clauses 4 and 5.3, sub-nile (1) of the Office Memorandum No.1/5/2013.Adm.I(CEA) dated 27.02.2014 issued by Government of India, Ministry of Power, Central Electricity Authority, Sewa Bhawan, R.K. Puram, New Delhi, while reiterating that the petitioner had less than two years service remaining and thus, he should not have W. P. No. 606112015 to been transferred out. The Clauses 4 and 5.3, sub-rule (1) of the Office Memorandum read as under: "4. The minimum tenure of an officer at a particular post at a particular place will be TWO YEARS under normal circumstances. 5.3 The Guiding principles for consideration of cases for transfer/posting shall be as under: i) Officers & staff due for retirement on superannuation within a period of 2 years shall not normally be transferred if suitable persons of lesser age are available for manning the post." 6. Reliance is also placed by the petitioner on Clause 6 of the Office Memorandum, which reads as under, to show that no meeting of the Board took place to recommend transfer of the petitioner: 116. The BCOT may, in public interest, recommend the names of officers to the Chairperson, CEA, for transfer before completion of minimum tenure with reasons to be recorded in writing." 7. The learned counsel for the petitioner has also relied on a decision rendered by the Supreme Court in the case of Ramad