2023 (2) TMI 434 - HC - Indian Laws

Transfer in All India Serrvice - Seeking issuance of writ of certiorari (a writ or order by which a higher court reviews a case tried in a lower court) or any other appropriate writ for quashing the order passed by the Central Administrative Tribunal - repatriation of petitioner to her parent department i.e. CGST, Audit, Durgapur, Kolkata without serving any notice during her maternity leave - violation of principles of natural justice - HELD THAT - It is quite apparent that the Court has made it abundantly clear in its decision that the transfer in All India Service is an incident of service where the employee should be posted are the matters which are governed by the exigencies of service and employee does not enjoy the fundamental right or the vested right to claim the transfer or posting of their choice. The executive instructions and directions for transfer and posting do not confer any indefeasible right to claim a transfer or posting. The 20.09.2018 instructions in respect of the inter-commissionerate transfer, in light of the new Recruitment Rules, 2016 issued by the Ministry of Finance Department of Revenue have been considered by the Apex Court. It also clarified that the office order for inter-commissionerate transfer with the grade of inspector issued on or before 26.12.2016 will be non-est and any officer who has joined another zone in pursuance of such order shall be treated as a deemed case on loan basis w.e.f. 26.12.2016. The maximum tenure since is three years, which can be extended with the specific approval of the board for further two years depending on the requirement of the administration, with no exceptional circumstances having been defined and each case to be considered on the merit of its facts, on the basis of the guidelines dated 27.10.2011 shall require the issuance of three months of notice. The Tribunal having noticed the noncompliance of such, had expressed its expectation that the respondent would look into the incident of not following the DOP T dated 17.06.2010 before repatriating her. Being conscious of the fact that the letter dated 03.07.2020 specifies the terms of deputation, extension of deputation and deputation allowances etc. are to be governed by the rules and instructions of DOP T and DGoV and it being the exclusive right of the administration to repatriate the deputationist in accordance with the exigencies of service, the Court cannot disregard the fact that, they have not mentioned about the applicability of DoP T instructions in the matter of repatriation. DoP T instruction dated 17.06.2010 stipulates for premature relieving of deputationists, advance notice of three months to the Ministry as well as to the employee concerned. The manner in which the order has been passed while she was on maternity leave without issuance of notice, as stipulated under the DoP T instructions dated 17.06.2010 by labeling it as an administrative exigency, it is quite obvious that this administrative exigency arise from the administrative warning dated 14.10.2021 which, without seeking any explanation, proceeded by a notice of repatriation and as per the instruction, she has been put to jeopardy of immediate transfer during her maternity leave when the baby was extremely young and no salary has been made available to her. This incident of non-issuance of notice before repatriation will obviously warrant interference to the extent of fixing the responsibility on the officer who has failed to so do it - This Court cannot be oblivious of the chronological events and the pre-determined step of the concerned officer to repatriate her to the parent department at the time when she deserved, if nothing else, humane treatment and legalized approach. The least that could have been done was to issue the notice before repatriation and make payment of her salary. If the petitioner remained protected by virtue of judicial orders, those in the authority have no right to gag her by not paying the salary because she did not join at her parent department. She has not remained unauthorizedly absent to deserve this approach. Even if the repatriation is the right of the employer, its exercise shall necessarily be in accordance with the prevalent rules. This petition is allowed partly interfering with the order of the Tribunal by directing the respondent to follow the prescribed procedure of issuance of notice before repatriating the petitioner.

Summary

Issues Involved:
1. Legality of the repatriation order during maternity leave.
2. Compliance with procedural requirements for repatriation.
3. Allegations of lethargy and negligence in duty.
4. Rights and protections of deputationists.
5. Applicability of guidelines for posting spouses at the same station.
6. Payment of salary during maternity leave.

Detailed Analysis:

1. Legality of the Repatriation Order During Maternity Leave:
The petitioner challenged the repatriation order dated 15.11.2021, issued during her maternity leave, as inhumane and illegal. The court noted that the petitioner was on approved maternity leave from 27.09.2021 to 25.03.2022, and the repatriation occurred when her child was barely 10 days old. The court emphasized that repatriating an officer during maternity leave without serving notice constitutes a procedural irregularity. The court ruled that this approach lacked humane treatment and violated established principles.

2. Compliance with Procedural Requirements for Repatriation:
The court examined whether the procedural requirements, specifically the issuance of a three-month advance notice as per DoP&T instructions dated 17.06.2010, were followed. It was found that no such notice was given to the petitioner. The court highlighted that the repatriation order was issued without the mandatory three-month notice, which is required for premature relieving of deputationists. The court directed the respondent to follow the prescribed procedure of issuance of notice before repatriating the petitioner.

3. Allegations of Lethargy and Negligence in Duty:
The respondent alleged that the petitioner was lethargic in completing procedures and had neglected her duties, leading to her repatriation. The petitioner countered that she was facing health issues due to pregnancy and her husband's illness. The court noted that no memos were issued to the petitioner for her alleged lethargy, and the administrative warning issued on 14.10.2021 contradicted the reasons for her repatriation. The court found that the allegations were not substantiated with proper procedural actions.

4. Rights and Protections of Deputationists:
The court referred to several judgments, including the decision of the Central Administrative Tribunal in Nawal Kishore Sharma vs. National Highway Authority of India, which established that deputationists have no vested right to continue on deputation but must be treated fairly and equitably. The court reiterated that repatriation must be based on justifiable reasons and, if based on misconduct, should be preceded by a show cause notice. The court found that the petitioner's repatriation lacked justifiable reasons and procedural fairness.

5. Applicability of Guidelines for Posting Spouses at the Same Station:
The court referred to the Office Memorandum dated 30.09.2009, which mandates the posting of spouses at the same station to ensure normal family life and welfare of children. The petitioner, whose husband was posted in Ahmedabad, was initially brought on deputation to Ahmedabad following these guidelines. The court emphasized that the guidelines should be followed, and any deviation must be communicated with specific reasons. The court found that the repatriation order did not consider these guidelines adequately.

6. Payment of Salary During Maternity Leave:
The petitioner claimed that she was not paid her leave salary during her maternity leave. The court found that the non-payment of salary was unjustified, especially since the petitioner was on approved maternity leave and not unauthorizedly absent. The court directed the respondent to pay the petitioner's salary without fail within four weeks of the receipt of the order.

Conclusion:
The court partially allowed the petition, directing the respondent to follow the prescribed procedure of issuance of notice before repatriating the petitioner and to pay her salary within four weeks. The court emphasized the need for humane treatment and adherence to procedural requirements in repatriation cases, especially during maternity leave.