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PETITIONER: THE UNION OF INDIA & ORS.

       Vs.

RESPONDENT: D. MOHAN & ORS.

DATE OF JUDGMENT01/02/1995

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) AGRAWAL, S.C. (J)

CITATION:  1995 SCC  (3) 115        JT 1995 (2)   244  1995 SCALE  (1)424

ACT:

HEADNOTE:

JUDGMENT: 1.   Leave granted. 2.   In  this appeal by special leave, the  appellants  have challenged  the order dated 20.8.1993 passed by the  Central Administrative  Tribunal,  Hyderabad Bench at  Hyderabad  in Original  Application  NO.  765/1993 filed  by  the  sixteen respondents  herein  questioning the order  dated  26.5.1993 whereby   they  were  transferred  from  Hyderabad   Telecom District to the Telangana District of Andhra Pradesh Telecom Service. 3.   The   respondents.  herein  were  working   as   Junior Engineers in the Telephone District, Hyderabad as on 1.  11. 1986  under  the  administrative  Control  of  the   General Manager,  Telephone  District, Hyderabad.   The  respondents were  either recruited in the Telephone District,  Hyderabad or they were transferred under Rule 38 from other  districts and  had  joined  Hyderabad district  on  bottom  seniority. Originally the telephone district, Hyderabad was a  separate independent  unit by itself and the  recruitment,  transfers and  postings  of  the entire  staff  including  the  Junior Engineers were confined to the twin cities of Hyderabad  and Secundrabad   which   were  under   the   jurisdiction   and administrative   control  of  General   Manager,   Telephone District, Hyderabad. 4.   The reorganisation of the Telecom Circles took place on 1.  II. 1986.  Before the reorganisation on 1. II. 1986  the areas  other  than Hyderabad Telephone  District  in  Andhra Pradesh  were under the control of General  Manager,  Andhra Pradesh  Circle,  Telecom.  The Ministry  of  Communications evolved  National  Switching Plan, in pursuance of  which  a decision  was taken for reorganising Telecom Circles on  the basis  of Secondary Switching Areas (S.S.A) as basic  units. Consequently  instructions  were issued by the  Ministry  of Communications  by letter No. 1. 16/82TE. 1 dated  19.8.1985 according  to which Hyderabad Telephone District  took  over the  respective Secondary Area in which it was located.   As

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per  the  aforesaid  instructions  the  erstwhile  Hyderabad Telecom District was merged with the A.P. Telecom Circle and brought  under  the  administrative  control  of  the  Chief General Manager, Telecom, A.P. 5.   The Chief General Manager, Telecom, A.P. Circle decided to  rotate  JTOs and other Circle Cadre Officials  and  post substitutes in their place from other districts with a  view to  maintain  service efficiency and to help the  staff  who served  in difficult areas of Telangana so as to remove  the frustration  and  to  accommodate them at  their  places  of choice.   With  this  object in mind  the  respondents  were transferred  from  Hyderabad Telecom District  to  Telangana District of Andhra Pradesh Telecom Circle.  Being  aggrieved by  the  said  transfers  the,  respondents  approached  the Central  Administrative  Tribunal,  Hyderabad  Bench.    The Tribunal   took   the  view  that  having  regard   to   the instructions   dated  19.9.1986  issued  at  the   time   of reorganisation   and  on  consideration  of  the,   transfer liability  as per orders of appointment of  the  respondents they can only be transferred within the erstwhile  Hyderabad Telephone District and, therefore, even after reorganisation the  respondents  could not be transferred  to  other  areas Andhra Pradesh Circle without their 246 consent so long as they worked in the category in which they have been recruited.  On these findings the Tribunal allowed the  application of the respondents and set aside the  order of their transfer dated 26.5.1993 except that of  respondent No.  13  whose  transfer was cancelled  during  pendency  of proceedings before the Tribunal. 6.   Learned counsel for the appellants while assailing  the impugned  order  of  the Tribunal setting  aside  the  order transferring the respondents to various places shown against their  names in the said order of transfer,  submitted  that after the reorganisation of Telecom Circles with effect from 1. 11.1986 and as per the instructions of the Government  of India,   Ministry  of  Communication  dated  19.9.1986   the erstwhile  Hyderabad Telephone District was merged with  the A.P.  Telecom  Circle and brought under  the  administrative control  of  the  Chief General Manager,  Telecom,  A.P.  He further  submitted  that as per  reorganisation  scheme  the seniority lists of all the circle cadre officials, including that  of Junior Telecom Officers were merged together and  a common  gradation list (Junior Telecom Officers)  of  entire A.P.  Circle including those of erstwhile Hyderabad  Telecom District was is.sued by the Chief General Manager,  Telecom, A.P.  vide letter dated 14.8.1992 and the  common  gradation list  so prepared forms the basis for promotion  and  trans- fers, etc.  It was submitted that since the respondents hold a  transferable post and, therefore, they cannot be said  to have  any vested right to remain posted at one place or  the other and they are liable to be transferred according to the administrative  exigencies.   He  also  submitted  that  the Junior  Telecom Officers belonging to other  than  Telangana area  are working in those areas under difficult  conditions and  at  personal inconveniences and, therefore,  the  Chief General Manager, Telecom, A.P. Circle decided to rotate  the Junior  Telecom  Officers and other circle  cadre  officials every  two  years and post substitutes in their  place  from other  districts with a view to maintain service  efficiency and to help the staff who had served in difficult areas and, therefore,  in  view of these facts  and  circumstances  the Tribunal should not have interfered in the order of transfer which was made on administrative grounds. 7.   As  against the aforementioned submissions made by  the

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counsel for the appellants, learned counsel for the  respon- dents-employees   countered  by  submitting  that  all   the respondents have been working in Telecom District, Hyderabad under  the administrative control of Chief General  Manager, Telecom  District, Hyderabad since their recruitment to  the service  when  the  Telecom Department of  Hyderabad  was  a separate  and  independent unit till the  reorganisation  of Telecom  Circles  which  took  place on  1.  II.  1986.   He submitted  that  as  the  Telecom  District,  Hyderabad  was separate  and independent unit, the  recruitment,  transfers and postings of the officials including the respondents were confined  only  to  the said  Telecom  District,  Hyderabad, comprising  of the twin cities of Hyderabad and  Secundrabad and  not outside the said Telecom District.  It was  further submitted  that  the respondents were either  recruited  for service  in the Telecom District, Hyderabad or some of  them came on voluntary transfer to the Telecom District in  which they  had  been recruited.  It was,  therefore,  urged  that since  they had suffered forfeiture of their  seniority  and having   liability  to  serve  Only  in  Telecom   District, Hyderabad they are not liable to 247 be   transferred  outside  the  said  District  even   after reorganisation except under special circumstances when  they could be transferred to any part of India. 8.We   have   given  serious  consideration   to the   rival contentions advanced by the learned counsel for the parties. It  is  an  admitted  fact  that  the  erstwhile   Hyderabad Telephone  District was merged with the A.P. Telecom  Circle and  brought under the administrative control of  the  Chief General  Manager, Telecom, A.P. after the reorganisation  of the  circles with effect from 1. 11. 1986.  It has also  not been  disputed that after the reorganisation of the  circles as  aforesaid  the seniority lists of all the  circle  cadre officials including that of the Junior Telecom Officers were merged and a common gradation list of A.P. Circle  including those of the erstwhile Hyderabad Telecom District was issued by  the Chief General Manager, Telecom A.P., Hyderabad.   As per  order  dated  14.8.1992 the  said  gradation  list  was circulated  to all concerned including the  respondents  but none of them put forth any objection to the same.  The  said gradation  list has, therefore, assumed finality.  The  said gradation list formed the basis for promotion and  transfer. In  these facts and circumstances it could not be  contended that since the respondents were recruited for the service in the  Telecom  District, Hyderabad or had come  on  voluntary transfer  to the said district foregoing their seniority  in the Telecom District in which they had been recruited,  they could  not  be  transferred outside  the  Telecom  District, Hyderabad,  simply  because one of the terms  of  their  ap- pointment  order provided that the appointment carried  with it  the  liability  to  serve  ’in  any  part  of  Hyderabad Telephone District’.  For proper appreciation the said  term of  appointment  as  contained  in  clause  3  (IV)  of  the appointment  order which is annexed as Annexure R-1 in  this appeal is  reproduced below which reads as under:               "’The  appointment  carries with  it  the  li-               ability  to  serve in any  part  of  Hyderabad               Telephone  District  and  in  special  circum-               stances  in  any  part  of  India".  (emphasis               supplied) 9.   After  the merger of Telecom District,  Hyderabad  with effect  from 1. 1 1. 1986 with A.P. Circle  the  respondents became  liable to be transferred within that  circle.   Even the aforesaid term of appointment will go to show that their

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liability  to  serve in any part of the  original  Hyderabad Telephone District carries with it the liability to serve in any  part  of India in the special  circumstances  which  is clear  from the words "in special circumstances in any  part of  India".  After the reorganisation of circles and  merger of Telecom District Hyderabad with A.P. Circle as said  ear- lier, the seniority lists of all the circle cadre  officials including  that of the Junior Telecom Officers (JTO’s)  were merged and a common gradation list of A.P. circle  including those  of erstwhile Hyderabad Telecom District was  prepared and  issued  by  the Chief General  Manager,  Telecom  A.P., Hyderabad which forms the basis for promotion, postings  and transfer.  It is, therefore, by itself an instance of one of the special circumstances by reason of which the respondents became liable to be transferred to any place within the A.P. Circle. 10.It  would here be relevant to refer to the Government  of India instructions dated 19.9.1986. Paragraph 3 of  Annexure 2 attached to the said instructions reads thus:- 248               Recruitment-Transfers and Postings;               Recruitment  for  all cadres  for  the  entire               Secondary  Area  will be done by  the  Telecom               District    G.M./District   Manage    District               Engineer, according to schedule of powers and,               all  the new recruits  including  departmental               candidates  will have transfer liability  over               the whole secondary area.  The existing  staff               of  the erstwhile Telephone District  AND  THE               Telegraph Engineering Divisions will also have               transfer  liability over the entire  Secondary               Switching  Area, but to avoid hardship to  the               individuals,   such   liability   for    those               recruited already to the specific units may be               confined  only  to  those  units  as  far   as               possible taking into consideration  individual               options. (Emphasis supplied) 11.  As  stated  earlier learned counsel appearing  for  the appellant  had  contended that the Junior  Telecom  Officers belonging  to  other than Telangana areas  were  working  in Telangana  area under difficult conditions and  at  personal inconveniences  and  it was for this reason that  the  Chief General  Manager,  Telecom,  A.P. Circle  took  decision  to rotate  the Junior Telecom Officers and other  circle  cadre officials  every  two years and post  substitutes  in  their places from other districts with a view to maintain  service efficiency  and  to help the staff who served  in  difficult areas.  Since the respondents were transferred to  Telangana area  by order dated 26-5-1993 which has been set  aside  by the  Tribunal  and according to  the  appellants  themselves Telangana area is a difficult area and it appears that it is for  this reason that the respondents felt aggrieved by  the transfer order.  It is for the same reason that paragraph  3 reproduced  above has been introduced in Annexure 2  of  the Government   instructions   which   provides   that    while transferring  the staff of the erstwhile Telephone  District who were recruited to the specific units maybe confined only to those units as far as possible taking into  consideration individual  options  when  a  member of  the  staff  of  the erstwhile  Telephone District is to be transferred to  other areas.  Thus, while the instruction contained in paragraph 3 of  Annexure  2 provide for the, transfer liability  of  the existing staff of the erstwhile Telephone District, over the entire  Secondary Switching area, it also at the  same  time provides  for taking into consideration individual  options.

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That being so, the Chief General Manager Telecom Circle A.P. before passing the order of Transfer, ought to have obtained options  from those employees and Officers who  belonged  to the  erstwhile Telephone District who were recruited to  the specific  units  and  after  considering  their   individual options  should have passed the order of transfer, so as  to avoid  any possible hardship to them.  In the  present  case admittedly  no options were taken from the  respondents  and for this reason alone the transfer order cannot be enforced. But  this aspect appears to have escaped the notice  of  the tribunal. 12.    Consequently,  the  appeal is  partly  allowed.   The impugned  order  of the tribunal is modified to  the  extent that  in  the  event  the respondents or  any  of  them  are proposed to be transferred to the difficult Telangana Areas, the  appellants shall obtain options from them and pass  the order  of  their  transfer afresh  after  considering  their individual options.  In the facts and circumstances of  this case  the parties are left to bear their own costs  of  this appeal. 251