DR. K.B.S. RAJAN, JUDICIAL MEMBER
1. By Annexure A-1 order, the applicant, functioning as Junior Engineer in the Respondents' organization, having spent over seven years at Cochin, stood transferred to Vasco and on her two representations for retention at Kochi or for a posting in a nearby place, i.e. Ezhimala, Wellington or Coimbatore, having been rejected, vide Annexure A-5 and A-6, the applicant has challenged the said order of transfer on the following grounds:-
(a) The transfer order is violative of the professed Annexure A-7 guidelines.
(b)The transfer is at the middle of the academic session of the applicant's daughter, a student of XI standard.
(c) The applicant's choice stations are Wellington, Ezhimala or Coimbatore but despite the availability of vacancies, she has not been given the posting there on the ground that both Ezhimala and Wellington are Tenure Stations.
(d) The calculation of vacancies at Cochin under the CML posting scheme is erroneous and there is no surplus at Kochi.
(e) Spouse is employed in Kochi Refinery at BPCL, Ambalamughai on shift duty and as such, there would be none to look after the daughter.
(f) There is no administrative exigencies or deficiencies in Goa.
2. The applicant has prayed for quashing of Annexure A-1 order in so far as her transfer is concerned and for a direction to permit the applicant to continue to work as Junior Engineer at the Kochi Complex till the end of the Academic year. The applicant has also prayed for quashing of Annexure A-5 and A-6 rejection order.
3. Respondents have contested the O.A. According to them, the applicant has all India Transfer liability. Administrative requirement was the sole criteria adopted by them in issuance of Annexure A-1 and there is no illegality or malafide in the issue of the Annexure A-1 Transfer order. There is no possibility of retaining the applicant at Kochi Complex in view of the fact that the authorized strength and positioned strength match with each other. As regards the choice stations, these are tenure stations and at the material point of time, there were no vacancies. Further, posting at choice station is not compulsory, though attempt would be to ensure that transfer is made to the choice station as far as possible. In respect of CML posting, posting to the Tenure Stations should be avoided, vide para 36(c) of the Guidelines.
4. The applicant has filed the rejoinder in which she has stated that applicant's station senior, one Shri Harilal JE (QS and C), who filed OA no. 268 of 2011 has been retained at Kochi Complex and there is no reason to shift the applicant when vacancies are available at Kochi. Another lady by name Mary Gracy had been transferred to Goa only after 14 years of continuous service at Kochi Complex and to Wellington after 20 years at Kochi. Accommodating the applicant at Wellington is not impossible as at wellington, one of the existing incumbents has to complete three years there and is due for posting out and another post which is to be filled up by another individual remains vacant as the said individual has not joined.
5. Respondents have filed addition reply, in which they had reiterated the contentions made in their initial counter. They have also stated that the applicant's main intention was to remain at Kochi till the end of the academic session which ends in March, 2012 and as such she has to move out.
6. Counsel for the applicant argued that the applicant being a lady, should not be subjected to transfer to a far off place, as per para 59 of the guidelines. It was for this reason that the applicant has indicated three choice Stations, i.e. Ezhimala, Wellington or Coimbatore. That two of the three stations are tenure stations and under CML posting, transfer is not made to tenure station is irrational. As long as the applicant or for that matter any other individual consents for such a transfer (if retention is not possible), there should be no such restriction on transfer under CML Posting policy. The applicant is prepared to move to any of these three stations even though she would certainly prefer being retained at Kochi Complex, as her spouse is employed in the Cochin Refinery and her daughter is prosecuting her studies at Kochi. It is only when there is absolutely no possibility of being retained at Cochin that she be considered to the nearby three places mentioned above.
7. Counsel for the respondents has submitted that the applicant's prayer is restricted to the extent that she should not be subjected to transfer during the middle of the academic session, which has been fulfilled, through the order of the Court. Now that the session is over, there should be no hesitation for the applicant to move as per the Transfer order. As stated in the counter and additional reply, posting to nearby place is not possible for the following reasons:-
(a) Two of the three stations are tenure stations and under the CML Posting Policy, transfer to Tenure Station is not made.
(b) There are many a candidate serving at far flung area and these individuals on completion of their tenure in such hard stations seek transfer to places like Coimbatore and as such, even if vacancies exist in such places, priority is given to such individuals.
8. Arguments were heard and pleadings perused. CML posting has a definite purpose behind it. Deficiency in the borne strength is not to be concentrated at some places and as such, the same is distributed by and large equally at all the stations. Tenure posting is one which is normally tenable for two years to three and persons who are posted on tenure postings, especially in hard stations, are given preference in their choice stations. Vacancy position never remains static and it always fluctuates in view of the fact that transfers are normally effected under various contingencies, i.e. Tenure Turn Over, Compassionate posting, CML posting (as also local turn over which is not outside the station) in addition to vacancies arising out of normal superannuation, creation of posts, resignation and the like. Comparison with other individuals (e.g. Grace Mary) may not be appropriate as at times, there may not be a need to shift a person even for over twelve to fourteen years while at other time, one may be station senior most within a period of six to seven years. If one individual (Mary Gracie) could stay put for fourteen years and the applicant has been shifted within seven years, the same is not on account of any discrimination shown to the applicant or favour shown to Mary Grace. That is a matter of chance.
9. In so far as the prayer is concerned, true, the applicant has restricted her prayer for retention till the end of the academic session. From that point of view, the counsel for the applicant may be right. However, what is to be seen is the entire case. The applicant has in her representation requested the administrative authorities for retention at Kochi Complex failing which her transfer be effected to Coimbatore or Ezhimala or Wellington. In fact to a pointed question posed to the counsel for the applicant, the counsel readily responded that the applicant would certainly prefer any of the above three stations, should her retention at Kochi is not possible. Though the counsel for the respondents has submitted that there are a number of individuals who are posted to far off places and on completion of their tenure there, are eagerly waiting to return to their native State, the fact remains that posting of females to far off places should as far as possible be avoided, especially, if vacancies are available in the nearby places and if no preferential individual (like seeking transfer after tenure posting) is in the waiting list. In the instant case, posting to Vasco may certainly be entailing hardship to the applicant. If vacancies are available at Ezhimala or Wellington or Coimbatore, and if there are none in the waiting list, it is only appropriate that the applicant be considered for posting to such nearby places. Posting of couple in the same station as far as possible is one of the recommendations of the Sixth Pay Commission, which has also been accepted by the government and guidelines have been issued vide DOPT OM dated 30 September, 2009. The spouse of the applicant is employed in Cochin Refinery and as such, some consideration may have to be given in this regard.
10. There is no specific bar for posting under the CML Posting Policy to the tenure station. Assuming that the vacancies at a particular tenure station is more and there is surplus in another station and transfer on tenure posting has been completed, CML posting is the only way possible to reduce the huge deficiency at the tenure station and reduce the surpluses in the other station. There cannot, therefore, in this regard, be any hard and fast rule or even if there be any such rule, the same cannot be inflexible.
11. The Tribunal is not oblivious of the prerogative of the employer to post any one to any place. However, since transfer entails some dislocation or disturbance of domestic arrangements, the welfare of the employees should also be duly kept in mind. The Guidelines, for that matter, is very balanced in that individuals within the last three years of superannuation are not shifted; females are not to be posted to far off place; Compassionate Posting, restriction on the transfer of illy paid employees etc., do reflect the concern manifested by the Government in considering the welfare of the employees as well. This spirit should form the undercurrent in any decision in shifting the employees. It is not the case of the respondents that it is the applicant alone who is most suitable to be posted to Vasco. If the applicant has to move out under CML Posting Policy, she should be, but a little flexibility should be given so that her choice station be also considered.
12. Thus, interest of justice would be best served if the respondents reconsider their decision and try to accommodate the applicant in any one of the choice stations. The Tribunal does not even for a moment, mean that the same should be at the cost of any preferential individual who seeks transfer to any of these stations under the Tenure transfer. If there is no other individual seeking transfer to any of the choice stations indicated by the applicant, she may be accommodated in any of those places. This may lead to one question as to how to make good the deficiency at Vasco. Now that the month of March/April being one of Transfer months on CML Posting Policy, the respondents may consider leveling the deficiency under the current CML Posting.
13. In view of the above, this application is disposed of, with the direction to the first respondent to reconsider the decision, keeping in view the above observations of the Tribunal and explore the feasibility of accommodating the applicant either at Kochi or at any of the other three choice stations i.e. Ezhimala, Wellington or Coimbatore. The Tribunal does believe that such a reconsideration at the level of Chief Engineer would be fully judicious, keeping in view the service exigencies on the one hand and the applicant's welfare on the other. In case there is no such possibility to accede to the request on account of service exigencies or preferential candidates awaiting transfer to such places, the applicant be informed by a speaking order. Till such time Respondent No. 1 reconsiders and comes to a decision, the applicant be not shifted from the present station. It is, sanguinely hoped that such a decision would be made at the earliest, for such an early decision would facilitate the applicant in deciding the placement of her daughter in the school at Kochi or at any other place of posting.