The applicant is challenging his transfer to Bangalore as violative of the "transfer policy" of the department.
2. The Applicant is a Senior Auditor in the Defence Accounts Department working in the Accounts Office (RandD), NPOL, Thrikkakara, Kochi from September 2001 onwards. Earlier he had served two tenures in hard areas at Port Blair and andaman Nicobar Islands each for tenure of more than two years. His sister who is mentally incapacitated is depending on him consequent on the death of the legal guardians -the parents. He has now completed the age of 54 years. While so, the applicant was issued with an alert notice for transfer out side Kerala which was challenged by him before this Tribunal through O.A No. 333/2009. The Tribunal disposed of the O.A. directing the respondents to consider the representation submitted by him in conformity with the present guidelines relating to transfer. In this Application, the applicant is challenging Annexure A-1 transfer order and A-2 speaking order rejecting his representation for retention at Kochi on the grounds that they are violative of Clauses 375 and 369 (IV) of DAD Office Manual, the proceedings of legal guardianship of his sister is pending before the District Court, Ernakulam, the choice of three stations given by him were not considered, seniors of the applicant are continuing in the station, vacancies are available at different offices at Cochin, the post of the applicant is lying vacant and No TA/DA was given.
3 The respondents in their reply statement opposed the averments of the applicant and stated that the applicant served in Kochi since 6/3/78 except for two brief spells of two years each during which he was posted to AandN Region at his own request, that as per the Service Register none of his family members is suffering from any disability and his sister is not a member of his family. . According to them, on the death of their mother, Ms Bindu, her daughter will act as the guardian of Smt. Vasantha Kumari, in OP NO. 117/2001 another Shri N. Mohan is also a respondent like the applicant. Besides as per the Service records of the applicant Smt. Vasantha Kumari is not dependent upon him. The applicant when served with alert notice in November 2008 instead of seeking exemption from transfer, he gave three choice stations namely Thrissur, Kottayam and Coimbatore. They submitted that no station seniors of the applicant are retained. The request of the applicant for a transfer to Thrissur/Kottayam is not possible as all stations within the State are treated as one station. They further submitted that the applicant was given sufficient time to prepare himself for transfer and that he did refuse the transfer orders on 27.5.09. They further submitted that every effort is taken to accommodate the station seniors to the places of their choice as per administrative feasibility. They submitted that the representation of the applicant was examined in a fair and transparent manner in the light of various provisions of transfer policy of the department. They produced the transfer policy of the department as Annexure R-1.
4 The applicant filed rejoinder stating that Ms Bindu who became the guardian of his sister expired on 30.4.2006 and that the responsibility of the mentally ill sister fell on the shoulders of the applicant. He also drew our attention to clause 373 wherein it is stipulated that persons above 54 years are not generally transferred, such persons if not serving in home stations or stations of choice will be repatriated to those stations to the extent administratively feasible.
5 Heard learned counsel for the parties and perused the records.
6 The learned counsel for the applicant argued that the transfer of the applicant is ordered violating the transfer policy of the Department. The station seniors are being retained, the applicant who was transferred two times to hard stations like AandN Islands, that persons above the age of 54 are generally not transferred and that in case where an employee or a member of his family is suffering from serious ailments are granted exemption from transfers for a specific/limited period.
7 The learned counsel for the respondents on the other hand argued that as per the service records neither the applicant nor his family members are suffering from any ailment to get immunity from transfer under clause 375 and that there are no station seniors retained.
8 The applicant is aggrieved by Annexure A-1 order dated 27.5.2009 by which he was transferred and relieved on the same day and also by the disposal of his representation.
9 The transfer policy guidelines were issued as periodical transfers are necessary and will be affected under certain circumstances to repatriate individuals serving at difficult stations completing their tenure, etc., to give all members a chance to serve at popular stations of their choice or to shift individuals employed on sensitive assignments on completion of the prescribed tenure. For the purpose of effecting periodical transfers the Department will draw up lists of stations regarded as tenure/hardship stations. It will be ensured that individuals posted to tenure/hardship stations are not required to serve at such stations for unduly long periods. They will be posted out at State expenses on completion of tenure in tenure stations or in cases of hardship stations, after a reasonable period. Individuals due to be posted out of difficult stations will be accommodated at one of three stations of their choice to be specified by them to the extent administratively feasible. Transfers of individuals serving at popular stations are affected generally on the basis of seniority of stay at those stations barring compassionate cases etc.
10 As regards the ground that the station seniors are retained, et us examine the provisions of the guidelines (A-10) Clause 370 which states that: "Transfers of individuals serving at popular stations will be effected generally on the basis of seniority of stay at those stations barring compassionate cases, cases where the CDA considers the retention of an individual to be essential in the interests of work etc., to the extent necessary to accommodate members who have a legitimate claim to serve at such stations and those who are being repatriated after a spell of service, at difficult stations. It is thus seen that this clause does not envisage transfer exclusively on station seniority alone. Compassionate cases and interests of work etc will have to be kept in mind while ordering transfer. In this case it is seen that the station seniors are either on leave/unauthorized leave and that disciplinary proceedings are contemplated/pending against them. The respondents submitted that S/Shri K.A. Rajasekharan and V.K. Mohandas both became Clerks and their names have been received in the list of Station seniors vide communication dated 10.2009, their transfer will be considered this year during annual transfer. We have no material to show that the station seniors are retained. However, we notice that there are vacancies where such disciplinary action is contemplated/pending against those who are on unauthorised leave.
11 As regards the contention of the applicant that her mentally diseased sister is depending on him it is convenient to extract the relevant clause 375; "In cases where an employee, or a member of his family, is suffering from serious ailments such as cancer, polio, blindness, mental disease, paralysis, etc. Controllers may at their discretion grant exemption from transfers, provided the disease/disability is certified by the authorised specialist." We do not find any material to show that his sister is dependent on him. No material is produced before us in support of the applicant's averment. There is no application from the applicant's side for inclusion of his sister's name as a dependent of him.
12 It is further seen that the respondents have not transferred the applicant to A and N Islands, it was made at the request of the applicant. The applicant has completed more than 8 years in Kochi.
13 As regards exemption to persons above 54 years of age, the relevant clause 373 is states as below: "Persons above 54 years of age will not normally be subjected to transfer. Such persons if not serving at there home stations or stations of choice will be repatriated to those stations (if so desired by them) to the extent administratively feasible. It is true that those who are above 54 years are not transferred normally. But we do not find any outright protection from transfer.
14 The guidelines will not apply to transfer on administrative grounds, which may be effected at the discretion of the administration. The Controllers who have all Indian Jurisdiction will endeavour to have a system of zonal transfers for rotation of staff where it is necessary, according to the principles cited above, so that the staff of certain regions can be rotated within these zones, and they can serve at reasonable distances from their home states.
15 Transfer is an exigency of service. The courts ordinarily have no jurisdiction to interfere with the order of transfer unless it is shown to be clearly arbitrary or vitiated by malafide or infraction of any professed norm or principle governing transfer. The applicant was given sufficient time to prepare for the transfer. Every effort is made to accommodate the station seniors to the places of their choice as per administrative feasibility. There was no vacancy at the choice stations given by the applicant. The representation of the applicant has been examined by the 2nd respondent in a very fair and transparent manner in the light of provisions of transfer policy of the department.
16 In view of the above discussion, we do not find any merit in the O.A. it is only to be dismissed. No costs.