Sudhir Chopra Vs. Union of India Through the Secretary to the Govt. of India and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/939345
CourtCentral Administrative Tribunal CAT Delhi
Decided OnJun-16-2009
Case NumberOA No.1542 of 2009
JudgeTHE HONOURABLE DR. JUSTICE DHARAM PAUL SHARMA, JUDICIAL MEMBER
AppellantSudhir Chopra
RespondentUnion of India Through the Secretary to the Govt. of India and Others
Advocates:For the Appellant: --- For the Respondent: A.K. Bhardwaj , Advocate.
Excerpt:
this is the second round of litigation between the parties herein with regard to the transfer of the applicant, a joint director in the national institute of defense estates management (in short nidem), delhi cant. to jabalpur as deo vice smt. sheba gupta, deo vide letter dated 11.2.2009 which has been impugned in these proceedings. 2. the applicant represented to the secretary, ministry of defense against his aforesaid transfer on 25.02.2009 which was rejected on 02.03.2009 by a non-speaking order. the applicant had filed oa no. 609/2009 challenging his transfer order dated 11.2.2009 as well as rejection of his representation by non-speaking order. the said oa was allowed with direction to the respondents to pass fresh reasoned order after dealing with all the contentions of the applicant and also decide as to who was the competent authority in the case of the applicant. it was further directed that this exercise shall be completed within two weeks from the date of receipt of a copy of the order. till such time, the applicants representation is decided, the respondents shall not give effect to the order dated 11.02.2009 as far as the applicant is concerned. in compliance with these directions, the respondents have passed order dated 26.05.2009 whereby the respondents after duly considering the contentions raised by the applicant in his representation dated 25.02.2009 rejected the said representation being devoid of merit. the present application is directed against this order of rejection as well as the original order of transfer dated 11.02.2009. 3. the applicant is an officer of indian defense estates service 1980 batch and posted as joint director in the national institute of defense estates management (nidem) since 01.04.2005. the applicant, inter alia, claims that in the present position, his tenure is for a period of five years which he has yet not completed and the impugned transfer has been made after four years of his tenure. he has annexed the extract from the govt. of india, ministry of defense (dte. gen.dlandc) letter no. 134/policy/adm/landc dated 5.9.1983 which prescribes the tenure of the officers of the defense estates service according to which in the directorate general, defense estates, the tenure of addl. dg/deputy director general, de is for the period of five years; of asst. director general, de for four years and of deputy asst. director general, de is for three years. there is no separate mention of the tenure of the officers posted in the training institute nidem. since he is in the same scale as that of deputy director general, de, the applicant seeks parity with him in the matter of fixation of posting and transfers accordingly and contends that he cannot be transferred till his five years tenure is completed, as at par deputy director general de in nidem. the applicant has assailed the impugned order on the ground that it is volatile of the administrative instructions of office memorandum dated 31.03.1987,a copy of which is annexure a-4. accordingly, the officers who are posted to training institutes are to be given a posting of their choice from among three options given by them on completion of their tenure in the training institute. the impugned transfer order is passed in contravention of the administrative instructions of the aforesaid govt. of india om and the applicant has not given any option in terms of the said om. it has been further contended that a representation was made to the secretary, ministry of defense, respondent no. 1, who alone was competent to decide the representation against the order of respondent no. 2 viz. director general of defense estates. instead of that, respondent no. 2 has rejected the applicants representation without any authorization from respondent no. 1 or without consultation with respondent no. 1 and respondents proceeded with the applicants case to relieve him immediately after passing of the impugned order dated 26.5.2009. the applicant further contends that respondent no. 2 erred in holding that applicant was not holding faculty position in nidem and, therefore, was not entitled to posting in terms of om dated 31.03.1987. the applicant has furnished the copies of the course information sheets conducted by him as course director in nidem and, therefore, it becomes clear that the applicant was a faculty member of nidem since his joining. this has been further substantiated by the fact that the applicant has been in receipt of training allowance, which is given to those officers who are holding faculty position. from the date of joining as joint directors in nidem, the applicant is in receipt of this training allowance. there are references to remarks/observations made by certain officers of the training institutes of nidem as to the performance of the applicant herein as well as the disciplinary proceedings initiated against the applicant. this is, however, not relevant to the impugned transfer order. the applicant has annexed the extracts of brochure from the various training programmers conducted by him as well as the extracts from his annual confidential report in support of his claim that he was a member of faculty, nidem in terms of om dated 31.03.1987. he has also annexed copies of various authorities to show that he conducted the various courses. all these go to show that he was a member of faculty of nidem and was entitled to the benefits provided in the office memorandum dated 31.03.1987. 4. at the hearing, the applicant made submissions in person in the absence of his counsel. he put forth three-fold submissions that; his tenure in the post of joint director, nidem was five years but the respondents have chosen to transfer him before completion of the said period i.e. after four years of his service in the post; his representation has not been considered by the competent authority. he made a representation to the secretary, ministry of defense but the same has been considered and rejected by the director general of defense estates-respondent no. 2. being a member of faculty, he should have been given the facilities of three options for posting of his choice on completion of his tenure in the training institute of nidem and it was obligatory on the part of the respondents to arrange the posting according to his option of choice exercised by the second respondent; he has referred to the case of sarvesh kumar awasthi vs. up jal nigam ((2003) 11 scc 740) wherein it has been observed by the apex court that the transfer of officers is required to be effected on the basis of set norms or guidelines. 5. the respondents appeared at the admission stage on their own without any notice and vehemently opposed the application. the learned counsel for the respondent offered to argue the case on merit straightway without filing any reply as the issues involved in the case are crystal clear. the respondents very strongly urged to expedite disposal of this application as the transfer has been made on account of administrative exigencies and its non-implementation has been creating unavoidable difficulties. learned counsel for the respondents strongly contended that admittedly, the applicant is an officer in jag grade for which the normal tenure is four years and not five years as claimed by the applicant. furthermore, the instructions relied upon by the applicant in om dated 31.3.1987 are not applicable in the case of applicant as he has not been appointed as faculty member in nidem. he was appointed as joint director and his job was administrative and not teaching functions. he was coordinating the faculty from outside and as such he was not entitled for the benefits as provided under om dated 31.3.1987. as regards the competency of director general defense estates-respondent no. 2 in dealing with the applicants representation, this aspect can be clarified from the order dated 26.5.2009. accordingly, the applicant ought to have made representation to his immediate official superior, or the head of his office or such other authority at the lowest level as he is competent to deal with the matter and his case can be considered by the respondents office in hierarchy, who is competent to deal with the matter, as it was not mandatory that the applicants representation should have been considered and decided by the secretary, ministry of defense, the director general defense estates was equally competent to deal with the matter being head of department. furthermore, the question of paying training allowances to applicant was made by mistake as the matter has now been referred to the dopt and further action will be taken on the receipt of the dopts instructions. 6. it has further been submitted that the performance record of the applicant for the last 3 = years of his tenure as joint director, nidem has been screened in terms of the said om, especially having regard to the opinions of three previous directors, under whom the applicant worked. they had recommended for his posting out from the training institute due to his adverse performance. 7. to sum up, the learned counsel for the respondents submitted that the transfer of the applicant has been made on administrative ground in public interest and the same is not challengeable under law. 8. i have given my careful considerations to the respective submissions made by both the parties. i have also carefully perused the records of the case. 9. the grounds on which the applicant has assailed the legality of the impugned order are as follows:- his transfer has been made even before completion of normal tenure of five years; the applicant has challenged the charge sheet/minor penalty imposed on him and in case he succeeds, he will get promotion to the next higher grade shortly for which normal tenure is five years; his representation which was addressed to the secretary, ministry of defense, has been dealt with and disposed of by the director general, defense estates who is not competent to do so; the order is in disregard of dop andt guidelines dated 31.03.1987 whereby the applicant can exercise three options relating to his next posting after a successful tenure in the training institute. 10. we can deal with the submissions one by one in seriatim. 11. the applicant has annexed the extract of govt. of india, ministry of defense (dte. gen.,dl andc) letter no. 134/policy/adm/landc dated 5.9.1983 whereby the fixation of tenure of officers of defense estates service, posting and transfer are provided as under: in order to regulate the transfers and postings of the officers of the defense estates service from all stations to another, the following broad guidelines are hereby issued:-the tenure of the officers of the defense estates service will be as under: in the directorate general, d.e. additional dg/deputy director general,de..5 years assistant director general, d.e. 4 years deputy assistant director general, d.e 3 years 12. the contention of the applicant has been that he is in the scale of deputy director general, de. the dop andt guidelines do not specifically provide for posting and transfers in the nidem. in the absence of any express provisions in this regard, the tenure in the corresponding category of defense estates service officers will be applicable to the applicant since he is in the same scale as that of deputy director general, de and his normal tenure in the post of defense estates would be five years. he has not even completed four years in the post and he was transferred in violation of aforesaid guidelines. on the other hand, the respondents stated that these guidelines are of 1983 and they have restructured all the cadres in 1985-86. the normal tenure of the officers in the jag is four years. admittedly, the applicant is in jag and as such he would be having four years normal tenure at the place of posting. the applicant has not controverter that he is in jag nor he denied the restructuring of cadre. in these premises i do not find much substance in the claim of the applicant that his normal tenure is five years. the action of the respondents in transferring the applicant upon completion of four years appears to be correct. the applicants contention on the contrary is mis-conceived. 13. so far as the applicants claim that he has challenged the imposition of minor penalty of censure and in case he is able in proving his case successfully, he would be promoted in the sag for which the normal tenure is five years. this does not find favour with the respondents when it is observed in the impugned order that;the applicants presumption about exoneration and promotion is in the realm of conjecture and probability. reality is that the applicant is presently in junior administrative grade and has to be treated on par with other officers in junior administrative grade in the matter of tenure/transfer/posting. as and when the applicant is promoted to senior administrative grade, he will be given a suitable posting keeping in mind public interest and administrative exigencies. 14. the stand of the respondent as aforesaid is not open to any objection in law. the outcome of the pending proceedings cannot be pre-judged. there is no warrant for taking any action on the probable or pre-judged outcome of these proceedings. i do not find any substance in this contention of the applicant. 15. as regards the third contention of the applicant that the impugned order has been passed by an authority, who was not competent to do so, it will be expedient to refer to the manner in which the respondents have dealt with the representation of the applicant. the relevant part of the impugned order reads as under at the outset i would like to record that the applicant has wrongfully addressed the representation to defense secretary. i find that the govt. instructions on such representations are covered in dop andt o.m. no. 11013 /7/99-est. (a)dated 1.11.99. as per this om whenever, in any matter connected with his service right or conditions, a government servant whishes to press a claim or to seek redress his immediate official superior or the head of his office or such other authority at the lowest level as he is competent to deal with the matter. the representation of an employee against his transfer can be disposed of by only such officer who is competent to order transfer/posting of such employee and in this case, it is the director general, defense estates. the applicant is confusing representation with appeal. no appeal lies against his transfer orders. 16. thus, the representation can legitimately be dealt with by any competent officer and there is no need to deal with the matter by an officer to whom the representation has been addressed. there is no mandate in law that a representation as involved in the present case, must necessarily be disposed of only by an officer to whom it is addressed. in view of this, i do not find any illegality or invalidity in the action of the respondents whereby the applicants representation has been dealt with by the director general, defense estates who is also the head of the office. 17. the only point that remains for consideration now is whether the impugned order is volatile of dop andts guidelines as contained in om dated 31.03.1987. 18. there is a common tendency among the government servants to go for field postings for varied reasons, especially on account of the power flowing from such postings, rather than going for positions involving staff functions. training is a part of staff functions, catering to the need for upgrading the skills of those who may be engaged in line functions. there are not too many takers of positions engaged in imparting training. training requires special aptitude and inclination. it is not every ones cup of tea. even if one is knowledgeable and experienced, he needs not necessarily be a good trainer unless he has the necessary aptitude and inclination of a trainer. no wonder, the government has come out with the scheme for providing incentives with a view to motivate persons having requisite knowledge and experience as well as penchant for training, to join training institutes in the larger public interest. by their very nature, such guidelines will not be applicable to permanent/ visiting faculty members but will extend only to the officers of all india/central services who can be posted/transferred to such training institutions in routine from time to time. 19. in order to appreciate the issue in question in the right prospect, it would be expedient to mention certain clauses of the aforesaid office memorandum which reads as under: 2. (i).when an employee of government; joins a training institution meant for training government officials as a faculty member, other than as a permanent faculty member, he will be given a training allowance at the rate of 30 percent of his basic pay drawn from time to time in the revised scales of pay. note: basic pay, in this context, means, a. in the case of an officer belonging to an all india service, the basic pay which he would have drawn on deputation to the centre b. in the case of an officer belonging to a central service 3. the basic pay which he would have drawn on deputation to the centre, if he joins a training institution on deputation outside his department ministry. 4. the basic pay, which, he would have drawn in his cadre if he joins a training institution within his department/ministry. c. in any other case the basic pay which he would have drawn in his regular post if he had not joined the training institution. ii. training allowance will be reduced by special pay deputation and allowance thereon to which a faculty member might be entitled in the institution. iii. training allowance will be admissible to faculty members excluding those not covered by these guidelines as indicated in sub-para (xi) without any ceiling and will not form part of pay as defined in f.r.9 (21), but will count for purposes of leave salary. iv. each child of a member of the faculty continuing his education at a centre other than the place of training institution should be given leave travel concession twice a year, to be able to join his parents at the place of the training institution. v. each the training institution should draw up a programmer for, constructing adequate number of residential quarters for housing its faculty members. where accommodation is inadequate suitable provision for hiring accommodation on government account and renting it to faculty members may be able on the pattern being adopted by the ministry of railway and the services headquarters. vi. the head of the training institution alone may be given a sumptuary allowance of rs.250/- (rupees two hundred and fifty) per month because his duties will require meeting with and entertaining small groups of student/faculty/visiting faculty. vii. other things being equal, a successful tenure of the faculty in a training institution will be taken into account while determining suitability for promotion. viii. on completion of the tenure in a training institution, each officer should be given the facility of three option relating to his next posting and the department concerned would arrange for the posting according to the option exercised by the officer as far as possible. ix. training allowance will be admissible only to the faculty whose work is to impart training/teaching and not to others. x. xxxxxx xi these guidelines would not be applicable to the faculty members recruited specifically for training institutions. xxxxxx xxxxxx there should be an immediate screening of the existing incumbents occupying faculty position in training institutions who are eligible for the training incentives outlines above, so that only those who are classified as outstanding faculty should be retained. the others should be reverted to parent cadre/organization. 20. the respondents have themselves treated the applicant as a member of the faculty. firstly, they have given him training allowance. secondly, they have screened the applicants performance in terms of the om dated 31.3.1987 to ascertain if he be retained in the institute or not depending upon the ranking he received. since the applicant failed to receive an outstanding ranking he is being sent out of the institute. such a screening is only warranted in terms of the said om if the applicant is a member of the faculty of the institute. as regards training allowance, it is said by the respondents that it was a mistake and the matter now stand referred to dopandt. nonetheless, the fact remains that he has so far been meted out treatment as being a member of the faculty. 21. the respondents have now changed their stand and proceeded on the premise that the applicant though appointed as joint director, nidem, was not a member of faculty of the training institute and, therefore, is not entitled for choice of posting in terms of clause 2 (viii) of said om. in other words, the applicant has not been appointed as faculty member in the nidem and, therefore, the om is not applicable. i will proceed to examine the correctness of this assumption clause 2(i) of the said om upon which too much reliance has been placed provide that when an employee of government joins a training institution meant for training government official as a faculty member, other than as a permanent faculty member, he will be given training allowance at the rate of 30% of his basic pay drawn. it has not been specifically stipulated that the person must be formerly appointed as faculty member of the institute. if it is so, the format of appointment letter is not much relevance for it is the substance and not the form, which is important. besides, the fact remains that the applicant has been in receipt of training allowance. this gives credence to the fact that he is a member of faculty otherwise he would not have been entitled for training allowance. the respondents sought to wriggle out by stating that the payment of training allowance has been made by mistake and the matter has now been seized as a d.o. letter has been sent to the dop andt in this regard. the respondents could not adduce any particulars regarding clause (iv) and (v) whether the officers of the training institute or the applicant are in receipt of these incentives and whether they have made any reference to the dopandt in this regard as well. the head of the training institute alone is given a sumptuary allowance of rs. 250/- per month. there is no express stipulation as to whether the head of training institute is the faculty member. the fact remains that he is the director of the institute and is assisted by the joint director who belongs to the same class of officers. if member of faculty is a condition precedent in terms of aforesaid om, then the director will have to be a member of faculty of the training institute in order to avail the benefit of sumptuary allowance, otherwise he will not be entitled to it. 22. furthermore, the respondents by their own admission have stated that the performance of the applicant for 3 = years have been screened in terms of said om whereas the applicants performance was found not up to the mark of outstanding and, therefore, they seek his reversion. such a screening is a condition precedent for a member of faculty. otherwise there is no warrant for such screening. the respondents have taken inherently contradictory stand in the impugned order especially in paras 4.1 and 4.3. ii thereof. while dealing with the directors request for the applicants retention in the institute, the respondents stated that the substitute provided also have penchant for training. this shows that training is the essence of job profile. furthermore, while stating that the om was not applicable to the applicant, it was stated that the om was applicable to faculty staff and not to administrative staff. it is merely a statement of fact. it stops short of saying that the applicant is not a member of faculty but was an administrative staff. it does not state as to on what basis they have changed their earlier stand. nor does it state as to how they have reached the conclusion that he is an administrative staff and not a member of the faculty. and then, proceeded to state that screening of the applicants performance in terms of the said om did not warrant his retention. it is not clear whether the respondents are applying the om to the applicant or not, sometime they do and sometime do not. this cannot be sustained in law. admittedly, the guidelines contained in the office memorandum are not applicable to the faculty members specifically for the training institute. these are not applicable to visiting family members. the question arises then to whom these guidelines are applicable. there remain only the officers of the institute entrusted with the responsibility of imparting training. it will be pertinent to bear in mind the true import and the meaning of term faculty. the word faculty literarily refers to a group of university, departments concerned with a major division of knowledge. it also includes in its ambit the teaching or research staff of a university or college. the scope of the term faculty has further been enlarged by clause (ix) of the om, which provides that the training allowance will be admissible only to the faculty whose work is to impart training/teaching and not to others. the person who imparts training is reckoned as a member of faculty. there is no denial of the fact, on the basis of material brought out on record by the applicant, that he was indeed imparting training. he has been conducting training programmers as joint director of the training institute since 2005. the applicant has annexed the copies of course information sheets where he has been shown as course director. he is thus a nodal officer for conducting the training programmers. he is the one who designs the courses for imparting training in the institute as course director and attends to various activities of the training programmers including imparting course training as faculty to fill up the gaps, if any, for conducting training programmers. he has been preparing the various programmers for annual colanders programmers. 23. clause (viii) which is in issue in the present case reads as follows: viii. on completion of the tenure in a training institution, each officer should be given the facility of three option relating to his next posting and the department concerned would arrange for the posting according to the option exercised by the officer as far as possible. 24. at contrast, if we look at clauses (i), (iv) and (v) referred to above, each of them refers member of faculty with the clauses coupled with the subject title of the om dated 31.3.1987, the officer should be a member of faculty. the question remains that the om apply to the members of faculty. there is no other member of the faculty apart from the category of the officer to which the applicant belongs. for availing the benefits of the om, what is essentially required is that the seeker of benefits should be a member of faculty whose job is to impart training. it may be that such a person might have been appointed with reference to his office designation and not necessarily as a member of the faculty in express term. nevertheless, he will be entitled to the benefits of the scheme, if he is engaged in imparting training and as such a member of the faculty. 25. in view of this, i am of the considered view that the applicant ought to have been given the facility of three options for claiming the next posting. any posting/transfer without giving such options to the applicant would be volatile of the guidelines in the om. the impugned order is vitiated on this count. the guidelines enjoin upon the respondents a duty to arrange for the posting according to the option given by the officer as far as possible. i am conscious of the fact that the guidelines are meant for guidance and ought to have been ordinarily adhered to. they are not, however, absolute. the present case is, however, not a case of conscious deviation for any justifiable reason. on the other hand, the respondents stand that the guidelines are not applicable to the applicant, fails and the impugned order is quashed. the respondents shall be at liberty to post the applicant after duly complying with clause 2(viii) of the office memorandum dated 31.03.1987. no order as to costs.
Judgment:

This is the second round of litigation between the parties herein with regard to the transfer of the applicant, a Joint Director in the National Institute of Defense Estates Management (in short NIDEM), Delhi Cant. to Jabalpur as DEO vice Smt. Sheba Gupta, DEO vide letter dated 11.2.2009 which has been impugned in these proceedings.

2. The applicant represented to the Secretary, Ministry of Defense against his aforesaid transfer on 25.02.2009 which was rejected on 02.03.2009 by a non-speaking order. The applicant had filed OA No. 609/2009 challenging his transfer order dated 11.2.2009 as well as rejection of his representation by non-speaking order. The said OA was allowed with direction to the respondents to pass fresh reasoned order after dealing with all the contentions of the applicant and also decide as to who was the competent authority in the case of the applicant. It was further directed that this exercise shall be completed within two weeks from the date of receipt of a copy of the order. Till such time, the applicants representation is decided, the respondents shall not give effect to the order dated 11.02.2009 as far as the applicant is concerned. In compliance with these directions, the respondents have passed order dated 26.05.2009 whereby the respondents after duly considering the contentions raised by the applicant in his representation dated 25.02.2009 rejected the said representation being devoid of merit. The present application is directed against this order of rejection as well as the original order of transfer dated 11.02.2009.

3. The applicant is an Officer of Indian Defense Estates Service 1980 Batch and posted as Joint Director in the National Institute of Defense Estates Management (NIDEM) since 01.04.2005. The applicant, inter alia, claims that in the present position, his tenure is for a period of five years which he has yet not completed and the impugned transfer has been made after four years of his tenure. He has annexed the extract from the Govt. of India, Ministry of Defense (Dte. Gen.DLandC) letter No. 134/Policy/ADM/LandC dated 5.9.1983 which prescribes the tenure of the officers of the Defense Estates Service according to which in the Directorate General, Defense Estates, the tenure of Addl. DG/Deputy Director General, DE is for the period of five years; of Asst. Director General, DE for four years and of Deputy Asst. Director General, DE is for three years. There is no separate mention of the tenure of the officers posted in the training institute NIDEM. Since he is in the same scale as that of Deputy Director General, DE, the applicant seeks parity with him in the matter of fixation of posting and transfers accordingly and contends that he cannot be transferred till his five years tenure is completed, as at par Deputy Director General DE in NIDEM. The applicant has assailed the impugned order on the ground that it is volatile of the administrative instructions of Office Memorandum dated 31.03.1987,a copy of which is Annexure A-4. Accordingly, the officers who are posted to training Institutes are to be given a posting of their choice from among three options given by them on completion of their tenure in the training institute. The impugned transfer order is passed in contravention of the administrative instructions of the aforesaid Govt. of India OM and the applicant has not given any option in terms of the said OM. It has been further contended that a representation was made to the Secretary, Ministry of Defense, Respondent No. 1, who alone was competent to decide the representation against the order of Respondent No. 2 viz. Director General of Defense Estates. Instead of that, Respondent No. 2 has rejected the applicants representation without any authorization from Respondent No. 1 or without consultation with Respondent No. 1 and respondents proceeded with the applicants case to relieve him immediately after passing of the impugned order dated 26.5.2009. The applicant further contends that Respondent No. 2 erred in holding that applicant was not holding faculty position in NIDEM and, therefore, was not entitled to posting in terms of OM dated 31.03.1987. The applicant has furnished the copies of the Course Information Sheets conducted by him as Course Director in NIDEM and, therefore, it becomes clear that the applicant was a faculty member of NIDEM since his joining. This has been further substantiated by the fact that the applicant has been in receipt of training allowance, which is given to those officers who are holding faculty position. From the date of joining as Joint Directors in NIDEM, the applicant is in receipt of this training allowance. There are references to remarks/observations made by certain Officers of the training institutes of NIDEM as to the performance of the applicant herein as well as the disciplinary proceedings initiated against the applicant. This is, however, not relevant to the impugned transfer order. The applicant has annexed the extracts of brochure from the various training programmers conducted by him as well as the extracts from his Annual Confidential Report in support of his claim that he was a Member of Faculty, NIDEM in terms of OM dated 31.03.1987. He has also annexed copies of various authorities to show that he conducted the various courses. All these go to show that he was a Member of Faculty of NIDEM and was entitled to the benefits provided in the Office Memorandum dated 31.03.1987.

4. At the hearing, the applicant made submissions in person in the absence of his counsel. He put forth three-fold submissions that; his tenure in the post of Joint Director, NIDEM was five years but the respondents have chosen to transfer him before completion of the said period i.e. after four years of his service in the post; his representation has not been considered by the competent authority. He made a representation to the Secretary, Ministry of Defense but the same has been considered and rejected by the Director General of Defense Estates-Respondent No. 2. Being a member of faculty, he should have been given the facilities of three options for posting of his choice on completion of his tenure in the training institute of NIDEM and it was obligatory on the part of the respondents to arrange the posting according to his option of choice exercised by the second respondent; He has referred to the case of Sarvesh Kumar Awasthi Vs. UP Jal Nigam ((2003) 11 SCC 740) wherein it has been observed by the Apex Court that the transfer of officers is required to be effected on the basis of set norms or guidelines.

5. The respondents appeared at the admission stage on their own without any notice and vehemently opposed the application. The learned counsel for the respondent offered to argue the case on merit straightway without filing any reply as the issues involved in the case are crystal clear. The respondents very strongly urged to expedite disposal of this application as the transfer has been made on account of administrative exigencies and its non-implementation has been creating unavoidable difficulties. Learned counsel for the respondents strongly contended that admittedly, the applicant is an Officer in JAG Grade for which the normal tenure is four years and not five years as claimed by the applicant. Furthermore, the instructions relied upon by the applicant in OM dated 31.3.1987 are not applicable in the case of applicant as he has not been appointed as Faculty Member in NIDEM. He was appointed as Joint Director and his job was administrative and not teaching functions. He was coordinating the faculty from outside and as such he was not entitled for the benefits as provided under OM dated 31.3.1987. As regards the competency of Director General Defense Estates-Respondent No. 2 in dealing with the applicants representation, this aspect can be clarified from the order dated 26.5.2009. Accordingly, the applicant ought to have made representation to his immediate official superior, or the Head of his office or such other authority at the lowest level as he is competent to deal with the matter and his case can be considered by the respondents office in hierarchy, who is competent to deal with the matter, as it was not mandatory that the applicants representation should have been considered and decided by the Secretary, Ministry of Defense, the Director General Defense Estates was equally competent to deal with the matter being Head of Department. Furthermore, the question of paying training allowances to applicant was made by mistake as the matter has now been referred to the DOPT and further action will be taken on the receipt of the DOPTs instructions.

6. It has further been submitted that the performance record of the applicant for the last 3 = years of his tenure as Joint Director, NIDEM has been screened in terms of the said OM, especially having regard to the opinions of three previous Directors, under whom the applicant worked. They had recommended for his posting out from the training institute due to his adverse performance.

7. To sum up, the learned counsel for the respondents submitted that the transfer of the applicant has been made on administrative ground in public interest and the same is not challengeable under law.

8. I have given my careful considerations to the respective submissions made by both the parties. I have also carefully perused the records of the case.

9. The grounds on which the applicant has assailed the legality of the impugned order are as follows:-

His transfer has been made even before completion of normal tenure of five years; The applicant has challenged the charge sheet/minor penalty imposed on him and in case he succeeds, he will get promotion to the next higher grade shortly for which normal tenure is five years; His representation which was addressed to the Secretary, Ministry of Defense, has been dealt with and disposed of by the Director General, Defense Estates who is not competent to do so; The order is in disregard of DOP andT guidelines dated 31.03.1987 whereby the applicant can exercise three options relating to his next posting after a successful tenure in the training institute.

10. We can deal with the submissions one by one in seriatim.

11. The applicant has annexed the extract of Govt. of India, Ministry of Defense (Dte. Gen.,DL andC) letter No. 134/Policy/ADM/LandC dated 5.9.1983 whereby the fixation of tenure of officers of Defense Estates Service, posting and transfer are provided as under: In order to regulate the transfers and postings of the officers of the Defense Estates Service from all stations to another, the following broad guidelines are hereby issued:-The tenure of the officers of the Defense Estates Service will be as under:

In the Directorate General, D.E.

Additional DG/Deputy Director General,DE..5 years

Assistant Director General, D.E. 4 years Deputy Assistant Director General, D.E 3 years

12. The contention of the applicant has been that he is in the scale of Deputy Director General, DE. The DOP andT guidelines do not specifically provide for posting and transfers in the NIDEM. In the absence of any express provisions in this regard, the tenure in the corresponding category of Defense Estates Service Officers will be applicable to the applicant since he is in the same scale as that of Deputy Director General, DE and his normal tenure in the post of Defense Estates would be five years. He has not even completed four years in the post and he was transferred in violation of aforesaid guidelines. On the other hand, the respondents stated that these guidelines are of 1983 and they have restructured all the cadres in 1985-86. The normal tenure of the officers in the JAG is four years. Admittedly, the applicant is in JAG and as such he would be having four years normal tenure at the place of posting. The applicant has not controverter that he is in JAG nor he denied the restructuring of cadre. In these premises I do not find much substance in the claim of the applicant that his normal tenure is five years. The action of the respondents in transferring the applicant upon completion of four years appears to be correct. The applicants contention on the contrary is mis-conceived.

13. So far as the applicants claim that he has challenged the imposition of minor penalty of censure and in case he is able in proving his case successfully, he would be promoted in the SAG for which the normal tenure is five years. This does not find favour with the respondents when it is observed in the impugned order that;The applicants presumption about exoneration and promotion is in the realm of conjecture and probability. Reality is that the applicant is presently in Junior Administrative Grade and has to be treated on par with other officers in Junior Administrative Grade in the matter of tenure/transfer/posting. As and when the Applicant is promoted to Senior Administrative Grade, he will be given a suitable posting keeping in mind public interest and administrative exigencies.

14. The stand of the respondent as aforesaid is not open to any objection in law. The outcome of the pending proceedings cannot be pre-judged. There is no warrant for taking any action on the probable or pre-judged outcome of these proceedings. I do not find any substance in this contention of the applicant.

15. As regards the third contention of the applicant that the impugned order has been passed by an authority, who was not competent to do so, it will be expedient to refer to the manner in which the respondents have dealt with the representation of the applicant. The relevant part of the impugned order reads as under At the outset I would like to record that the Applicant has wrongfully addressed the representation to Defense Secretary. I find that the Govt. instructions on such representations are covered in DoP andT O.M. No. 11013 /7/99-Est. (A)dated 1.11.99. As per this OM Whenever, in any matter connected with his service right or conditions, a Government servant whishes to press a claim or to seek redress his immediate official superior or the Head of his office or such other authority at the lowest level as he is competent to deal with the matter. The representation of an employee against his transfer can be disposed of by only such officer who is competent to order transfer/posting of such employee and in this case, it is the Director General, Defense Estates. The applicant is confusing representation with appeal. No appeal lies against his transfer orders.

16. Thus, the representation can legitimately be dealt with by any competent officer and there is no need to deal with the matter by an officer to whom the representation has been addressed. There is no mandate in law that a representation as involved in the present case, must necessarily be disposed of only by an officer to whom it is addressed. In view of this, I do not find any illegality or invalidity in the action of the respondents whereby the applicants representation has been dealt with by the Director General, Defense Estates who is also the Head of the Office.

17. The only point that remains for consideration now is whether the impugned order is volatile of DOP andTs guidelines as contained in OM dated 31.03.1987.

18. There is a common tendency among the government servants to go for field postings for varied reasons, especially on account of the power flowing from such postings, rather than going for positions involving staff functions. Training is a part of staff functions, catering to the need for upgrading the skills of those who may be engaged in line functions. There are not too many takers of positions engaged in imparting training. Training requires special aptitude and inclination. It is not every ones cup of tea. Even if one is knowledgeable and experienced, he needs not necessarily be a good trainer unless he has the necessary aptitude and inclination of a trainer. No wonder, the Government has come out with the Scheme for providing incentives with a view to motivate persons having requisite knowledge and experience as well as penchant for training, to join training institutes in the larger public interest. By their very nature, such guidelines will not be applicable to permanent/ visiting faculty members but will extend only to the officers of all India/Central Services who can be posted/transferred to such training institutions in routine from time to time.

19. In order to appreciate the issue in question in the right prospect, it would be expedient to mention certain Clauses of the aforesaid Office Memorandum which reads as under:

2. (i).When an employee of Government; joins a training institution meant for training government officials as a faculty member, other than as a permanent faculty member, he will be given a training allowance at the rate of 30 percent of his basic pay drawn from time to time in the revised scales of pay. Note: Basic Pay, in this context, means,

a. in the case of an officer belonging to an All India Service, the basic pay which he would have drawn on deputation to the Centre

b. in the case of an officer belonging to a Central Service

3. the basic pay which he would have drawn on deputation to the Centre, if he joins a Training Institution on deputation outside his Department Ministry.

4. the basic pay, which, he would have drawn in his cadre if he joins a Training Institution within his Department/Ministry.

c. In any other case the basic Pay which he would have drawn in his regular post if he had not joined the Training institution.

ii. Training allowance will be reduced by special pay deputation and allowance thereon to which a faculty member might be entitled in the institution.

iii. Training allowance will be admissible to faculty members excluding those not covered by these guidelines as indicated in sub-para (XI) without any ceiling and will not form part of pay as defined in F.R.9 (21), but will count for purposes of leave salary.

iv. Each child of a member of the faculty continuing his education at a centre other than the place of training institution should be given leave travel concession twice a year, to be able to join his parents at the place of the training institution.

v. Each the training institution should draw up a programmer for, constructing adequate number of residential quarters for housing its faculty members. Where accommodation is inadequate suitable provision for hiring accommodation on government account and renting it to faculty members may be able on the pattern being adopted by the Ministry of Railway and the Services Headquarters.

vi. The head of the training Institution alone may be given a sumptuary allowance of Rs.250/- (Rupees Two Hundred and Fifty) per month because his duties will require meeting with and entertaining small groups of student/faculty/visiting faculty.

vii. Other things being equal, a successful tenure of the faculty in a training institution will be taken into account while determining suitability for promotion.

viii. On completion of the tenure in a training institution, each officer should be given the facility of three option relating to his next posting and the Department concerned would arrange for the posting according to the option exercised by the Officer as far as possible.

ix. Training allowance will be admissible only to the faculty whose work is to impart training/teaching and not to others.

x. xxxxxx

xi These guidelines would not be applicable to the faculty members recruited specifically for training institutions.

xxxxxx

xxxxxx

There should be an immediate screening of the existing incumbents occupying faculty position in training institutions who are eligible for the training incentives outlines above, so that only those who are classified as outstanding faculty should be retained. The others should be reverted to parent cadre/organization.

20. The respondents have themselves treated the applicant as a member of the faculty. Firstly, they have given him training allowance. Secondly, they have screened the applicants performance in terms of the OM dated 31.3.1987 to ascertain if he be retained in the institute or not depending upon the ranking he received. Since the applicant failed to receive an outstanding ranking he is being sent out of the institute. Such a screening is only warranted in terms of the said OM if the applicant is a member of the faculty of the institute. As regards training allowance, it is said by the respondents that it was a mistake and the matter now stand referred to DOPandT. Nonetheless, the fact remains that he has so far been meted out treatment as being a member of the faculty.

21. The respondents have now changed their stand and proceeded on the premise that the applicant though appointed as Joint Director, NIDEM, was not a member of faculty of the training Institute and, therefore, is not entitled for choice of posting in terms of Clause 2 (viii) of said OM. In other words, the applicant has not been appointed as Faculty Member in the NIDEM and, therefore, the OM is not applicable. I will proceed to examine the correctness of this assumption Clause 2(i) of the said OM upon which too much reliance has been placed provide that when an employee of Government joins a training institution meant for training Government official as a faculty member, other than as a permanent faculty member, he will be given training allowance at the rate of 30% of his basic pay drawn. It has not been specifically stipulated that the person must be formerly appointed as Faculty Member of the Institute. If it is so, the format of appointment letter is not much relevance for it is the substance and not the form, which is important. Besides, the fact remains that the applicant has been in receipt of training allowance. This gives credence to the fact that he is a member of faculty otherwise he would not have been entitled for training allowance. The respondents sought to wriggle out by stating that the payment of training allowance has been made by mistake and the matter has now been seized as a D.O. letter has been sent to the DOP andT in this regard. The respondents could not adduce any particulars regarding Clause (iv) and (v) whether the officers of the training institute or the applicant are in receipt of these incentives and whether they have made any reference to the DOPandT in this regard as well. The Head of the training Institute alone is given a sumptuary allowance of Rs. 250/- per month. There is no express stipulation as to whether the head of training Institute is the faculty member. The fact remains that he is the Director of the Institute and is assisted by the Joint Director who belongs to the same Class of Officers. If Member of Faculty is a condition precedent in terms of aforesaid OM, then the Director will have to be a Member of Faculty of the training institute in order to avail the benefit of sumptuary allowance, otherwise he will not be entitled to it.

22. Furthermore, the respondents by their own admission have stated that the performance of the applicant for 3 = years have been screened in terms of said OM whereas the applicants performance was found not up to the mark of Outstanding and, therefore, they seek his reversion. Such a screening is a condition precedent for a member of faculty. Otherwise there is no warrant for such screening. The respondents have taken inherently contradictory stand in the impugned order especially in paras 4.1 and 4.3. ii thereof. While dealing with the Directors request for the applicants retention in the Institute, the respondents stated that the substitute provided also have penchant for training. This shows that training is the essence of job profile. Furthermore, while stating that the OM was not applicable to the applicant, it was stated that the OM was applicable to faculty staff and not to administrative staff. It is merely a statement of fact. It stops short of saying that the applicant is not a member of faculty but was an administrative staff. It does not state as to on what basis they have changed their earlier stand. Nor does it state as to how they have reached the conclusion that he is an administrative staff and not a member of the faculty. and then, proceeded to state that screening of the applicants performance in terms of the said OM did not warrant his retention. It is not clear whether the respondents are applying the OM to the applicant or not, sometime they do and sometime do not. This cannot be sustained in law. Admittedly, the guidelines contained in the office memorandum are not applicable to the faculty members specifically for the training institute. These are not applicable to visiting family members. The question arises then to whom these guidelines are applicable. There remain only the officers of the Institute entrusted with the responsibility of imparting training. It will be pertinent to bear in mind the true import and the meaning of term Faculty. The word faculty literarily refers to a group of university, departments concerned with a major division of knowledge. It also includes in its ambit the teaching or research staff of a university or college. The scope of the term faculty has further been enlarged by Clause (ix) of the OM, which provides that the training allowance will be admissible only to the faculty whose work is to impart training/teaching and not to others. The person who imparts training is reckoned as a member of faculty. There is no denial of the fact, on the basis of material brought out on record by the applicant, that he was indeed imparting training. He has been conducting training programmers as Joint Director of the training Institute since 2005. The applicant has annexed the copies of Course Information Sheets where he has been shown as Course Director. He is thus a Nodal Officer for conducting the training programmers. He is the one who designs the courses for imparting training in the institute as Course Director and attends to various activities of the training programmers including imparting course training as faculty to fill up the gaps, if any, for conducting training programmers. He has been preparing the various programmers for annual colanders programmers.

23. Clause (viii) which is in issue in the present case reads as follows:

viii. On completion of the tenure in a training institution, each officer should be given the facility of three option relating to his next posting and the Department concerned would arrange for the posting according to the option exercised by the Officer as far as possible.

24. At contrast, if we look at Clauses (i), (iv) and (v) referred to above, each of them refers member of faculty with the clauses coupled with the subject title of the OM dated 31.3.1987, the officer should be a Member of Faculty. The question remains that the OM apply to the members of faculty. There is no other member of the faculty apart from the category of the officer to which the applicant belongs. For availing the benefits of the OM, what is essentially required is that the seeker of benefits should be a member of faculty whose job is to impart training. It may be that such a person might have been appointed with reference to his office designation and not necessarily as a member of the faculty in express term. Nevertheless, he will be entitled to the benefits of the scheme, if he is engaged in imparting training and as such a member of the faculty.

25. In view of this, I am of the considered view that the applicant ought to have been given the facility of three options for claiming the next posting. Any posting/transfer without giving such options to the applicant would be volatile of the guidelines in the OM. The impugned order is vitiated on this count. The guidelines enjoin upon the respondents a duty to arrange for the posting according to the option given by the officer as far as possible. I am conscious of the fact that the guidelines are meant for guidance and ought to have been ordinarily adhered to. They are not, however, absolute. The present case is, however, not a case of conscious deviation for any justifiable reason. On the other hand, the respondents stand that the guidelines are not applicable to the applicant, fails and the impugned order is quashed. The respondents shall be at liberty to post the applicant after duly complying with Clause 2(viii) of the Office Memorandum dated 31.03.1987. No order as to costs.