Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED0606.2014 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN W.P.No.7278 of 2014 and M.P.No.1 of 2014 1.K.Raja Prabhu Doss 2.N.Lakshmana Sundar .. Petitioners Vs. 1.Employees Provident Fund Organisation, Rep. By Central Provident Fund Commissioner, Ministry of Labour and Employment, Bhavishya Nidhi Bhawan, No.14, Bhikaji Cama Place, New Delhi-110 066. 2.Additional Central Provident Fund Commissioner, EPFO, Zonal Office, No.37, Royapettah High Road, Chennai-600 014. 3.Regional Provident Fund Commissioner-II, EPFO, Regional Office, Bhavishya Nidhi Bhavan, NGO-B Colony, Tirunelveli-627 007. 4.Assistant Provident Fund Commissioner (Admn.) Bhavishya Nidhi Bhavan, NGO-B Colony, Tirunelveli-627 007. 5.The Director, National Academy for Training & Research in Society Security [NATRSS]., 30-31, Institutional Area, Janak Puri, New Delhi-110 058. 6.Regional Provident Fund Commissioner-I, Zonal Training Institute, South Zone, 2, 15th Main Road, Ranganathan Gardens, Anna Nagar, Chennai-600 040. 7.Central Administrative Tribunal, Rep. By its Registrar, High Court Compound, Chennai-600 104. .. Respondents Prayer:-Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari calling for the records relating to order dated 26.02.2014 in O.A.No.310/00098/2014 passed by the 7th respondent Tribunal and quash the same and to allow the O.A. For Petitioners : Mr.P.V.S.Giridhar, for M/s.Giridhar and Sai Associates For Respondents : Mr.V.Vijaya Shankar for R1 to R4 and R6 ORDER
The writ petitioners are the applicants in O.A.No.310/00098/2014 on the file of the Central Administrative Tribunal, Chennai Bench and they made a challenge to the order dated 31.12.2013 passed by the fourth respondent, in and by which they were transferred from Sub Regional Office, Tirunelveli to Zonal Training Institute (ZTI), South Zone, Chennai on transfer by deputation. The said Original Application came to be dismissed on merits on 26.02.2014 and aggrieved by the same, had preferred this writ petition.
2. The petitioners herein was appointed as Social Security Assistants (SSA), vide orders dated 15.09.2009 and 14.08.2008 respectively and after successful completion of probation, they were confirmed, vide orders dated 26.10.2012 and 22.03.2011 respectively with effect from 21.10.2011 and 21.08.2010 respectively. The first petitioner, after recruitment, was initially posted at the Regional Office at Chennai and the second petitioner was initially posted at the Sub Regional Office at Puducherry and on their representations, they were transferred to the Sub Regional Office at Tirunelveli on 01.12.2010 and 19.11.2010 respectively.
3. The fourth respondent, vide impugned order dated 31.12.2013, transfered them on deputation on public interest to serve in the Zonal Training Institute (ZTI), South Zone, Chennai initially for a period of one year. It was contended by the petitioners herein before the Tribunal that ZTI is an independent organization under the control of the National Academy for Training and Research in Social Security (NATRSS) fifth respondent herein and the staffs workings therein form a separate cadre. It was further contended by the petitioners herein before the Tribunal that the fourth respondent have no jurisdiction to transfer them to ZTI and as per Regulation 5A of the Employees Provident Fund (Staff and Conditions of Service) Regulations 1962, transfer of staff from one region to another region can be made only with the approval of the first respondent and further that deputation is a tripartite contract involving the employer, the lending authority and the borrowing authority and the consent of all the three parties is required and since the service in ZTI is a separate service and that the staffs working therein form a separate cadre, they cannot be transferred on deputation and therefore, prayed for quashment of the said order.
4. The official respondents had filed their counter stating among other things that NATRSS was established in the year 1990 by the Employees' Provident Fund Organization at New Delhi and it emerged as a premier institution involved in training, research and in the social security sector and it is having four Zonal Training Institutes at Faridabad, Kolkata, Ujjain and Chennai and one Sub-Zonal Training Institute at Shillong and the ZTI at Chennai caters to the needs for imparting training to staff numbering approximately 7900 in the cadre of Group B, C & D of Employees' Provident Fund Organization posted in Andhra Pradesh, Kerala, Karnataka, Tamilnadu, Goad and Puducherry. It is further stated in the counter that clerical posts in Zonal Training Institute are filled up on deputation by issuing notifications and a notification dated 29.06.2013 was issued for filling up the post of 4 numbers of Social Security Assistants and since only one application has been received and even he has also turned down the offer by citing personal reasons, there were acute shortage of staffs and it was further found that in Tamil Nadu region there was surplus staff at Sub Regional Office at Tirunelveli and taking into account the lack of staffs in ZTI, a decision was taken to transfer two persons from Tirunelveli to Chennai on deputation basis, initially for a period of one year and taking into account the larger public interest, the impugned order came to be passed. It was further contended by the official respondents that the transfer was ordered by the second respondent, who is the competent authority to transfer the officials within the State as per the Head Office letter dated 09.04.2009 and as per Rule 5 of the Employees Provident Fund (Officers and Employees Conditions of Service) Regulations, 2008, the power to transfer staff from one region to another or from Regional Office to Headquarter or vice versa in similar posts shall be made by the Central Provident Commissioner or an authority delegated by the Central Provident Commissioner and by the letter dated 09.04.2009, such a power was delegated and hence, prayed for dismissal of the Original Application.
5. The Central Administrative Tribunal, taking into consideration the materials placed before it, found that the lending authority as well as the borrowing authority are one and the same and only in the event of an employee being sent on transfer on deputation to an organization entirely outside the purview of the employer organization, the consent of the employee is required and in the case on hand, ZTI is coming under the control of EPF organization and therefore, consent is not required. It was further found that the transfer was initially for a period of one year and it was made on account of administrative exigency and that the employee cannot claim as a matter of right to serve only in a particularly place and on facts found that the Original Applicants already served in Tirunelveli for nearly 3 years and citing the said reason, has dismissed the Original Application and hence, this writ petition.
6. The learned counsel appearing for the petitioners has drawn the attention of this Court to Rule 8A of the Employees' Provident Fund (Staff & Conditions of Service) Regulations, 1962 (as amended upto 31st August, 1992) and would submit that the said Rule would have application only in the event of transfer and admittedly, the writ petitioners have been sent on deputation from Tirunelveli to Chennai and therefore, it has no application to the case on hand. The learned counsel appearing for the petitioners further invited the attention of this Court to the proceedings of the Regional Provident Fund Commissioner-I, Zonal Training Institute, South Zone dated 28.06.2013 and would submit that as per the said proceedings, guidelines have been given for filling up of Group 'B' and 'C' posts on deputation basis in Zonal Training Institute (South Zone) and as per the guidelines for deputing SSA, officials of EPFO holding analogous post on regular basis with 5 years of regular service in the grade is required and preference would be given to applicants having experience in Administration wing and admittedly, at the time of passing the impugned order, both the writ petitioners did not fulfill the said requirement. The learned counsel appearing for the petitioners has also invited the attention of this Court to the judgments in (1) State of Punjab & Others v. Inder Singh & Others [(1997) 8 SCC372; (2) Umapati Choudhary v. State of Bihar & another [(1999) 4 SCC659; (3) Prasar Bharati & Others v. Amarjeet Singh & Others [(2007) 9 SCC539 and (4) Order dated 29.07.2013 made in W.P.No.3/2012 rendered by a Division Bench of the High Court of Sikkim at Gangtok and would submit that without the consent of an employee, deputation is impermissible and in the case on hand, the essential ingredients are absolutely lacking and therefore, the impugned order, on the face of it, is unsustainable. It is the further submission of the learned counsel appearing for the petitioners that though other staffs in the cadre of SSA is available in Tirunelveli office, the petitioners were preferred on the ground that they are unmarried and such a stand cannot stand the scrutiny of equality and fairness under Articles 14 and 16 of the Constitution of India and therefore, prays for setting aside the impugned order dismissing the writ petition and the consequential order transferring the petitioners on deputation.
7. Per contra, the learned counsel appearing for the official respondents has invited the attention of this Court to the counter affidavit filed in the Original Application as well as in the writ petition and would submit that NATRSS, which runs ZTI, is also coming under the purview of EPF organization and it has been established to impart training to the officials of EPF and therefore, it cannot be termed as outside organization and since there was lack of staffs in ZTI, a conscious decision was taken in public interest to transfer surplus staffs available in Tirunelveli office to ZTI at Chennai initially for a period of one year on deputation and in order to cause minimum inconvenience, the petitioners names were considered for the reason that they are unmarried and on instructions, would further submit that after completion of one year from the date of joining ZTI (South Zone) at Chennai, the petitioners wold be transferred back to Tirunelveli. It is the further submission of the learned counsel appearing for the official respondents that Employees' Provident Fund (Staff and Conditions of Service) Regulations, 1962 has been repealed and replaced by Employees' Provident Fund (Officers and Employees Conditions of Service) Regulations, 2008, which has been notified in the Gazette and as per Rule No.5, the power to transfer staff from one region to another or from Regional Office to Headquarter or vice versa in similar posts shall be made by the Central Provident Fund Commissioner or an authority delegated by the Central Provident Fund Commissioner and such a power was delegated, vide proceedings dated 09.04.2009 and in terms of the said power, only the petitioners have been transferred on deputation to ZTI (South Zone) at Chennai purely on public interest. It is the further submission of the learned counsel appearing for the official respondents that since the transfer on deputation is within the same organization and further that the lending authority and the borrowing authority are one and the same, the question of getting their consent does not arise at all and since the post, being a transferable post, the impugned order is perfectly valid and hence, prays for dismissal of the writ petition.
8. This Court paid its anxious consideration and best attention to the rival submissions and also perused the materials available on record as well as the decisions relied on by the learned counsel appearing for the petitioners.
9. The first petitioner, namely, K.Raja Prabhu Doss was appointed on 15.09.2009 and the second petitioner, namely, N.Lakshmana Sundar was appointed on 14.08.2008 and both of them were confirmed on 26.10.2012 and 22.03.2011 respectively. The proceedings dated 28.06.2013 issued by the fifth respondent speaks about eligibility conditions for filling up Group 'B' and 'C' posts on deputation basis in ZTI (South Zone) at Chennai and in respect of Social Security Assistants, the eligibility conditions prescribed are that Officials of EPFO holding analogous post on regular basis with 5 years of regular service in the grade and the applicants having experience in Administration wing would be preferred. The impugned order of transfer came to be passed on 31.12.2013 and on the date of the order, both the writ petitioners have not completed 5 years of regular service. A feeble attempt was made by submitting that the impugned order is the order of transfer to an organization, which is also coming under the control of the EPF organization and transfer being an incident of service, it is not open to the petitioners to make a challenge to the said order.
10. At this stage, it is relevant to note the order under challenge dated 31.12.2013, which reads as follows: OFFICE ORDER
Sub: Transfer and Posting of Social Security Assistant on deputation basis Issue of relieving order Regarding. Ref: Zonal Office, Chennai Order ZO/ACC(7)/Adm (43)/2013 dated 31.12.2013. ............... In pursuance of reference cited, the following SSA are transferred from Sub Regional Office, Tirunelveli to ZTI, SZ, Chennai on deputation basis initially for a period of one year with immediate effect. Sl.No.Name of the Official & Designation (Shri) Transferred from Transferred to 1 N.Lakshmana Sundar, SSA SRO, Tirunelveli ZTI, SZ, Chennai 2 K.Raja Prabhu Doss, SSA SRO, Tirunelveli ZTI, SZ, Chennai Accordingly, the officials stands relieved of their duties in this Office with effect from 31.12.2013 (AN) with a direction to report to Zonal Training Institute, South Zone, Chennai. As the transfer is made on public interest, the officials are entitled for TA-DA and joining time as per Rules. The officials are advised to handover the books, calculator etc., to Adm.II section before taking relief. (This issues with the approval of the RPFC-II). (K.Shief Sindha) Assistant P.T.Commissioner (Admn) 11. In the counter affidavit filed by the official respondents in the Original Application before the Tribunal as well as before this Court also it is stated about the impugned order that the order is transfer on deputation. The decisions relied on by the learned counsel appearing for the petitioners lay down the proposition that without the consent of an employee, deputation is not permissible and the employees working in NATRSS, in whose control ZTI (South Zone) is functioning, form a separate cadre and in that event, the deputation should be consensus one and the consent of the employee and the employee who lends surplus staff is a mandatory requirement.
12. The Hon'ble Supreme Court in the decision reported in State of Punjab & Others v. Inder Singh & Others [(1997) 8 SCC372 in para 18 held thus: 18. The concept of deputation is well understood in service law and has a recognised meaning. Deputation has a different connotation in service law and the dictionary meaning of the word deputation is of no help. In simple words deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post... (emphasis supplied) The said position is reiterated in Umapati Choudhary v. State of Bihar and Another [(1999) 4 SCC659 and in para 8, the Supreme Court held thus: 8..... The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not.... (emphasis supplied) In a subsequent decision of the Hon'ble Supreme Court in Prasar Bharati and Others v. Amarjeet Singh and Others [(2007) 9 SCC539, the distinction between transfer and deputation is spelt out in para 13, which reads as follows: 13. There exists a distinction between transfer and deputation. Deputation connotes service outside the cadre or outside the parent department in which an employee is serving. Transfer, however is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications. Further, the impugned order states that the deputation is initially for a period of one year. At this juncture it is to be noted that when an order of transfer on administrative exigency is passed, no period will be mentioned. Thus, at any stretch of imagination, the impugned order dated 31.12.2013 cannot be treated as transfer on administrative exigency, but transfer on deputation to the ZTI (South Zone), Chennai.
13. The facts of the case would disclose that the consent of the petitioners have not been obtained for deputing them to the sixth respondent and consent or the acceptance of such services by the borrowing employer, namely, the respondents 5 and 6 have also not been obtained. Moreover, the impugned order of transfer on deputation is also in violation of the proceedings of the fifth respondent dated 28.06.2013. No doubt, the impugned order came to be passed in public interest for the reason that sufficient staffs in the cadre of SSA is not available, but the said problem might have been solved by deploying surplus staffs. The petitioners are not the senior most or junior most in the station for such deployment. In such a view of the matter, the impugned order of transfer on deputation is unsustainable in law and on facts.
14. In the result, the writ petition is allowed and the order dated 26.02.2014 made in O.A.No.98/2014 passed by the Central Administrative Tribunal, Chennai Bench and the impugned order of deputation dated 31.12.2013 passed by the fourth respondent are set aside. No costs. Consequently, connected miscellaneous petition is closed. [N.P.V., J.]. [M.S.N., J.]. 06.06.2014 Index : Yes / No Internet : Yes / No jvm To 1.The Central Provident Fund Commissioner, Employees Provident Fund Organisation, Ministry of Labour and Employment, Bhavishya Nidhi Bhawan, No.14, Bhikaji Cama Place, New Delhi-110 066. 2.Additional Central Provident Fund Commissioner, EPFO, Zonal Office, No.37, Royapettah High Road, Chennai-600 014. 3.Regional Provident Fund Commissioner-II, EPFO, Regional Office, Bhavishya Nidhi Bhavan, NGO-B Colony, Tirunelveli-627 007. 4.Assistant Provident Fund Commissioner (Admn.) Bhavishya Nidhi Bhavan, NGO-B Colony, Tirunelveli-627 007. 5.The Director, National Academy for Training & Research in Society Security [NATRSS]., 30-31, Institutional Area, Janak Puri, New Delhi-110 058. 6.Regional Provident Fund Commissioner-I, Zonal Training Institute, South Zone, 2, 15th Main Road, Ranganathan Gardens, Anna Nagar, Chennai-600 040.
7. The Registrar, Central Administrative Tribunal, High Court Compound, Chennai-600 104. N.PAUL VASANTHAKUMAR, J., AND M.SATHYANARAYANAN, J.
jvm Order in W.P.No.7278 of 2014 06.06.2014