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transfer under rule 37 of p&t manual by ahmedabd cat bench

transfer under rule 37 of p&t manual by ahmedabd cat bench

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Published by: K V Sridharan General Secretary P3 NFPE on Jan 16, 2010
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02/01/2013

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Transfer under Rule 37 of P&T Manual Vol. IV held illegal byAhmedabad Bench of C.A.T.
JUDGEMNET Date: 21-12-1995 
O.A. No. 250 of 1994, O.A. No. 267 of 1994, O.A. No. 268 of 1994, O.A. No. 551 of 1994, O.A. No.95 of 1995, O.A. No. 498 of 1994, O.A. No. 569 of 1994, O.A. No. 791 of 1994, O.A. No. 647 of1994,Per: Hon’ble Mr. K. Ramamoorthy : Member (A)Nine cases are considered together in this order, since all these cases involve in the main issueregarding Rule 37 of the P&T Manual.The facts regarding individual cases are as under
:
O.A. No. 250/94
In this case the applicant has been transferred from Ahmedabad G.P.O. to Banaskantha, vide orderdated 2-4-94. The transfer has been challenged, as Banaskantha is a separate division and suchtransfer is possible only under Rule 38, i.e. with consent. The applicant is a member of ScheduledCaste. With Rule 37 being no more in force, the transfer has been challenged as an illegal transfer.Respondents have however, justified the transfer as a transfer under Rule 37 of P&T Manual, Vol.IV with special permission of the C.P.M.G. The respondents in their reply have stated that theapplicant will remain in the same cadre “Postal Assistant” and there will not be any effect on hispromotion avenues and seniority. In their detailed reply it has also been submitted that theauthorities had noticed involvement of the applicant in a case of reuse of used up postage stamps.The matter had been enquired into by the Vigilance Officer, Ahmedabad. It has also beenconceded in the written reply that since the case was one regarding lack of integrity andconsidering the gravity of charges, the applicant has been transferred to Banaskantha Division.The respondents have however, averred that the transfer was basically one of administrativenecessity.
O.A. No. 267 of 1994
In this case also the applicant was being transferred from Ahmedabad G.P.O. to a Unit SDIRadhanpur Unit under Rule 37 of Vol. IV. In their written reply it has been conceded by therespondents that the applicant was involved in a case of serious nature which spoiled the image ofthe Department necessitating immediate shifting from the unit where he was working. In theinterest of public service, therefore, the officer was transferred from Ahmedabad G.P.O. toBanaskantha Division under Rule 37 of the P&T Manual. Vol. IV. It has also been stated in thewritten reply that the Unit to which the applicant is transferred is different for the purpose ofseniority, but there was no change in the cadre of the applicant.
O.A. No. 268 of1994
 
2
In this case the applicant has been transferred Ahmedabad G.P.O. to Ghatlodia. In this case theapplicant was working as Postmaster and he was deployed in Beat No. 36 (Khanpur Area) for deliveryof dak. However, he had held back a whole dak bag without delivery which showed gross negligencein his work. The applicant had also accepted his irregularities in his written statement before thePublic Relation Inspector of Ahmedabad G.P.O. In the interest of public and in the interest ofservice the transfer had therefore, become necessary.
O.A. No. 551 of 1994
This O.A. is a similar Application to the order under challenge in O.A. No. 268/94 but filed by theRegistered Trade Union against the transfer under Rule 37 as it affected the seniority andpromotion of the persons who were already working in the transferred divisions.
O.A. No. 95 of 1994
The applicant was working as a driver and had been transferred from Junagarh to Jamnagar. Inthis case also the transfer has been claimed to be under Section 37. In the written reply it hasbeen conceded that the respondents had received complaints regarding insubordination and roughdriving and inquiry was sought to be conducted at the new place. However, the transfer had beenclaimed to be done purely on administrative grounds.
O.A. No. 498 of 1994
The applicant in this case was working as a supervisor working in Ahmedabad G.P.O. and he has beentransferred to the office of A.P.M. Mehsana. Though, the transfer has been effected onadministrative grounds, reference is made to a specific complaint regarding previously used postagestamps and gross negligence in supervision and failure to detect the irregularities of the mailingagent.
O.A. No. 791 of 1994
In this case the applicant is working as Sub Postmaster who has been transferred from VadodaraDivision to Bharuch Division. The transfer is claimed to be done on administrative reasons underRule 37, though in the written statement it has also been stated that while working in Dabboi asSub Postmaster the applicant has been involved in a case of misappropriation.
O.A. No. 647 of 1994
In this case the applicant had been working as Postmaster who has been transferred under Rule 37to Surat Division. Though the transfer has been claimed to have been done on administrativegrounds, in the written statement, it has been stated that there were “serious complaints” againstthe applicant regarding money lending business without licence at higher rate of interest among theemployees of the department.
Heard both the counsel.
As stated earlier the whole case centre round the issue as to whether Rule 37 is still in operation.
 
3
Rule 37 of the P&T Manual reads as under:
All officials of the Department are liable to be transferred to any part of India unless it isexpressly ordered otherwise for any particular class or class of officials. Transfers shouldnot, however, be ordered except when advisable in the interests of the public service.Postmen, Village Postmen and Class IV servants should not, except for very special reasons,be transferred from the district to another. All transfers must be subject to the conditionslaid down in Fundamental Rules 15 and 22
.”However, the applicant have stated that subsequently both on the grounds of administrative equityand on the problems relating to promotion, seniority, etc., as seniority, promotion etc. in thesecadres were governed by division seniority, Rule 37 has not been under operation. The letter of theD.G.P. is taken in their support by the applicants is reproduced below:
D.G. Posts letter No. 20-12/90-SPB.I dated 23
rd
August, 1990.As per long standing practice and convention, there is a clause in the initial appointmentletters of the employees of the Department of Posts to the effect that they can betransferred anywhere in the country under special circumstances.2. Since in actual fact a vast majority or Group C and Group D employees is never subjectedto the transfer liability implied in this clause it is felt that such a condition is not necessaryin the appointment order.3. The matter has been considered carefully in consultation with the Ministry of Law. It is,hereby, clarified that no clause or condition relating to transferability anywhere in thecountry, under special or general circumstances, should from now on be mentioned in theappointment orders issued to Group C & group D employees of the Department of Posts. Sucha clause existing in the case of the employees already in service all do hereby cancelled withimmediate effect and their appointment orders were stand so modified with effect from thedate of receipt of this letter.4. It is also directed that these orders were given wide publicity and also got noted by allthe C and group D staff. Necessary entry in this regard also be made in their service booksin due course
”.With the specification to delete the transfer liability class in the appointment order itself, there isconsiderable merit in the contention of the applicants that Rule 37 is no more in operation. At thesame time, it is also true that no formal action has been taken to delete Rule 37 from the Manual.The counsel for the respondents have also not been able to show any follow-up action taken by thedepartment to amend the Manual subsequent to the issue of the letter referred to above. It isquite understandable that the department has not chosen to formally delete Rule 37 in cases ofemergency as temporary shifting of staff for a purely limited period might become necessary. Theneed for such power to meet such a contingency in the public interest can be understood. But, atthe same it is also clear in view of the decision referred to by the department in the above letterdated 23
rd
August, 1980, that such a transfer under Rule 37 cannot be resorted to as a long termmeasure.There is also strength in the contention in the O.A. No. 551 of 1995, wherein it has been pointedout that such a transfer would mean interpolation of such employees in the existing seniority listwhich would adversely affect the seniority already decided on divisional basis consequent to

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