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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 of 1994, Per: Hon’ble Mr. K. Ramamoorthy : Member (A)
Nine cases are considered together in this order, since all these cases involve in the main issue regarding 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 order dated 2-4-94. The transfer has been challenged, as Banaskantha is a separate division and such transfer is possible only under Rule 38, i.e. with consent. The applicant is a member of Scheduled Caste. 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 the applicant will remain in the same cadre “Postal Assistant” and there will not be any effect on his promotion avenues and seniority. In their detailed reply it has also been submitted that the authorities 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 been conceded in the written reply that since the case was one regarding lack of integrity and considering the gravity of charges, the applicant has been transferred to Banaskantha Division. The respondents have however, averred that the transfer was basically one of administrative necessity.
O.A. No. 267 of 1994
In this case also the applicant was being transferred from Ahmedabad G.P.O. to a Unit SDI Radhanpur Unit under Rule 37 of Vol. IV. In their written reply it has been conceded by the respondents that the applicant was involved in a case of serious nature which spoiled the image of the Department necessitating immediate shifting from the unit where he was working. In the interest of public service, therefore, the officer was transferred from Ahmedabad G.P.O. to Banaskantha Division under Rule 37 of the P&T Manual. Vol. IV. It has also been stated in the written reply that the Unit to which the applicant is transferred is different for the purpose of seniority, but there was no change in the cadre of the applicant.
O.A. No. 268 of1994
In this case the applicant has been transferred Ahmedabad G.P.O. to Ghatlodia. In this case the applicant was working as Postmaster and he was deployed in Beat No. 36 (Khanpur Area) for delivery of dak. However, he had held back a whole dak bag without delivery which showed gross negligence in his work. The applicant had also accepted his irregularities in his written statement before the Public Relation Inspector of Ahmedabad G.P.O. In the interest of public and in the interest of service 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 the Registered Trade Union against the transfer under Rule 37 as it affected the seniority and promotion 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. In this case also the transfer has been claimed to be under Section 37. In the written reply it has been conceded that the respondents had received complaints regarding insubordination and rough driving and inquiry was sought to be conducted at the new place. However, the transfer had been claimed 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 been transferred to the office of A.P.M. Mehsana. Though, the transfer has been effected on administrative grounds, reference is made to a specific complaint regarding previously used postage stamps and gross negligence in supervision and failure to detect the irregularities of the mailing agent.
O.A. No. 791 of 1994
In this case the applicant is working as Sub Postmaster who has been transferred from Vadodara Division to Bharuch Division. The transfer is claimed to be done on administrative reasons under Rule 37, though in the written statement it has also been stated that while working in Dabboi as Sub 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 37 to Surat Division. Though the transfer has been claimed to have been done on administrative grounds, in the written statement, it has been stated that there were “serious complaints” against the applicant regarding money lending business without licence at higher rate of interest among the employees 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.
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 is expressly ordered otherwise for any particular class or class of officials. Transfers should not, 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 conditions laid down in Fundamental Rules 15 and 22.” However, the applicant have stated that subsequently both on the grounds of administrative equity and on the problems relating to promotion, seniority, etc., as seniority, promotion etc. in these cadres were governed by division seniority, Rule 37 has not been under operation. The letter of the D.G.P. is taken in their support by the applicants is reproduced below: “D.G. Posts letter No. 20-12/90-SPB.I dated 23rd August, 1990. As per long standing practice and convention, there is a clause in the initial appointment letters of the employees of the Department of Posts to the effect that they can be transferred anywhere in the country under special circumstances. 2. Since in actual fact a vast majority or Group C and Group D employees is never subjected to the transfer liability implied in this clause it is felt that such a condition is not necessary in 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 the country, under special or general circumstances, should from now on be mentioned in the appointment orders issued to Group C & group D employees of the Department of Posts. Such a clause existing in the case of the employees already in service all do hereby cancelled with immediate effect and their appointment orders were stand so modified with effect from the date of receipt of this letter. 4. It is also directed that these orders were given wide publicity and also got noted by all the C and group D staff. Necessary entry in this regard also be made in their service books in due course”. With the specification to delete the transfer liability class in the appointment order itself, there is considerable merit in the contention of the applicants that Rule 37 is no more in operation. At the same 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 the department to amend the Manual subsequent to the issue of the letter referred to above. It is quite understandable that the department has not chosen to formally delete Rule 37 in cases of emergency as temporary shifting of staff for a purely limited period might become necessary. The need for such power to meet such a contingency in the public interest can be understood. But, at the same it is also clear in view of the decision referred to by the department in the above letter dated 23rd August, 1980, that such a transfer under Rule 37 cannot be resorted to as a long term measure. There is also strength in the contention in the O.A. No. 551 of 1995, wherein it has been pointed out that such a transfer would mean interpolation of such employees in the existing seniority list which would adversely affect the seniority already decided on divisional basis consequent to
divisionalisation of the cadre. The respondents in their written reply to this application have stated that as per Rule 32 (8) “seniority” of Vol. IV, from Swamy’s Compilatio of P&T Manual, which states such interpolation cannot be ruled out altogether. In view of the reasoning above, it has to be held that Rule 37 is no more in operation when the Department had decided to delete transfer liability clause from appointment letter. In the specific cases mentioned above, though administrative reasons have been cited as the cause for transfer it is also significant to note that in each one of the cases some kind of administrative irregularity has also been indicated. The proposition that administrative reasons may called for transfer before any formal penal action for any irregularity noticed cannot be dispute. But, in such case, the transfer should have to be within their own cadre and within the limits such as division prescribed for such a cadre, so that seniority and promotion prospects are not adversely affected merely because of transfer in administrative reasons. The Department has taken a conscious decision in this regard as per the letter of 1990. In view of the reasoning above, and in view of the fact that the department itself has kept in abeyance operation of Rule 37 itself, the transfers involved in each one the above O.A.’s. will have to be declared as illegal as it would mean loss of seniority and can adversely affect the promotion prospects merely because of the transfers. Applications stands disposed of as above. ***************
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