IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.7.2008 C O R A M : THE HONOURABLE MR. JUSTICE P.K. MISRA and THE HONOURABLE MR. JUSTICE M.SATHYA NARAYANAN W.P.No.6522 of 2008 and M.P.No.1 of 2008 C.Saravanan ... Petitioner Vs. 1. The Registrar, The Central Administrative Tribunal, Madras-600 104. 2. The Union of India rep.by the Superintendent of Post Offices, Department of Posts, Dharmapuri Division, Dharmapuri-636 701. 3. The Inspector (Post), Dharmapuri East Sub Division, Dharmapuri-636 701. ... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorari to call for the records on the file of the Central Administrative Tribunal in O.A.No.129 of 2008, dated 28.2.2008 in confirming the order of the second respondent in Memo No.DPE/PF/CS/GDSMD/Ramenahalli BO Dlgs, dated at Dharmapuri-1, the 21.1.2008 and quash both the proceedings as illegal, incompetent, without justification and pass such further orders. For petitioner :: Mr.V.Raghavachari For respondents :: Mrs.K.Parameshwari, ACGSC for RR2 and 3 - - - O R D E R (Order of the Court was made by P.K.MISRA, J.) Heard Mr.V.Raghavachari, learned counsel for the petitioner and Mrs.K.Parameshwari, learned Additional Central Government Standing Counsel appearing for respondents 2 and 3. https://hcservices.ecourts.gov.in/hcservices/ 2. The order of transfer of the present petitioner was challenged by him before the Central Administrative Tribunal by filing O.A.No.129 of 2008 which was, however, dismissed at the stage of admission by passing the following order:- ''2. We have perused the records. It is well settled principle that transfer in incidental to the service. Apart from that, the distance between Ramenahalli and Muthampatti is only forty five kilometers. Therefore, we see no justified grounds to interfere with the order of transfer. Accordingly, the OA is dismissed." 3. A counter has been filed in the writ petition, wherein the reasons for transfer have been stated as follows:- a) In Ramenahalli B.O. there is no justification for three GDS and there is justification only for two GDS as per work load. Therefore, the petitioner, whose work load in the post of GDSMD is only 2 hours19 minutes 22 seconds, was redeployed. b) Accordingly, leaving GDSBPM and GDSMC of the office, the petitioner was redeployed to the next nearby vacant post. c) As per orders contained in Directorate Letter No.19- 10/2004-GDS dated 01.9.2004 and 17.7.2006, the GDS are entitled for transfer. Accordingly, the petitioner had been transferred. Moreover, they need not be confined to a particular/same locality for ever." 4. In the course of hearing, the learned counsel for the respondent Department has produced before us several instructions issued from time to time. Since the Department has placed particular reliance upon the instruction, dated 01.9.2004, whereunder, Rules were amended, it is necessary to refer to such provision. From the said instruction, it is evident that Note II (iv) below Rule 3 of the Department of Posts, Gramin Dak Sevaks (Conduct and Employment) Rules 2001 was amended as follows:- ''A Sevak shall not be eligible for transfer in any case from one post/unit to another post/unit except in public interest." 5. By letter, dated 17.7.2006, the Government of India has clarified as to what would constitute ''transfer in public interest" in the following lines :- ''2. In terms of amendment to Rule 3 of GDS (Conduct & Employment) Rules 2001, ''a GDS is not eligible for transfer in any case from one post/unit to another post/unit except in public interest". What constitute a ''Public Interest" has been interpreted differently by different Circles. In order to have a uniform criteria, it has been decided to allow limited https://hcservices.ecourts.gov.in/hcservices/ transfer facility to GDS from a post/unit to another under the existing provision of amended Rule 3 of GDS (Conduct & Employment) Rules 2001 on the following grounds:- I. A GDS who is posted at a distant place on redeployment in the event of abolition of the post. II. ... ... ... ... III. ... ... ... ... IV. ... ... ... ... V. ... ... ... ... 3. The limited transfer facility to GDS from post/unit to another will be subject to fulfillment of the following conditions. The conditions mentioned below are only illustrative. (i) A GDS will normally be eligible for only one transfer during the entire career. (ii) Request for such transfer will be considered against the future vacancies of GDS and that too after examining the possibility of recombination of duties of GDS. (iii) ... .... ... (iv) ... .... ... (v) ... .... ... (vi) ... .... ... (vii) ... .... ... " (the other provisions are not extracted, as admittedly, those provisions are not applicable to the present case). Since the department has justified transfer on the anvil of the amended Rule 3 arrayed with the explanation at para 2 (I), the matter has to be examined in the light of the said provisions. 6. In this connection, it is also necessary to refer to the earlier letter, dated 26.12.2002 addressed to the Chief Post Master General by the Government, clarifying the question of re-deployment of a surplus GDS on request by Heads of Circles to another vacant post available. The relevant provision is as follows:- ''Sub. : Request for transfer of Smt.Baby Devi, GDS, Mail Deliverer, Kasri B.O. in account with Kahalgaon under Bhagalpur Division. *** I am directed to refer to D.O.Letter No.Staff/ GDS- Bhag/42/2002, dated 31.10.2002 of ADPS (S & R) of your office on the above-said subject. 2. There is no provision in the rules for the transfer of Gramin Dak Sevaks and they are selected and engaged for specific part-time jobs at specific places and are expected to have alternative/additional employment/ source of income at all the same place. https://hcservices.ecourts.gov.in/hcservices/ 3. However, in the interest of service, any GDS may be redeployed by Heads of Circles if the GDS becomes surplus at any particular place and is willing to work against another vacant post at another place for which he should be eligible with required qualifications, etc., for the said post. 4. On the same analogy, a Head of the Circle may also consider the request of a GDS to another vacant post available elsewhere only if the applicant is eligible (has the required qualifications,etc.) for the same and is willing to accept the emoluments of the new post. Higher emoluments in the present post will not be protected in such cases". 7. A combined reading of the provisions in the light of the different clarifications issued from time to time, makes it amply clear that only when a post is abolished, a GDS can be posted on re-deployment. Even from a reading of the letter, it is apparent that this should be on the basis of the request made by the concerned employee. It is not disputed that in the present case, there is no abolition of the post. It is of course true that in the counter affidavit, it is stated as if there was less work for the petitioner. However, prima facie, one fails to understand that if there was less work why subsequently a post of GDS Mail Deliverer / GDS Mail Carrier was filled up in the year 2001; whereas the petitioner was already in employment as GDS Mail Deliverer with effect from 01.4.1999. Similarly, it appears that the post of GDS Branch Post Master was filled up on 03.11.2005. Be that as it may, since the post has not been abolished, the question of re-deploying the petitioner did not arise. For the aforesaid reason, we are constrained to quash the order of transfer, now sought to be justified as an order of re-deployment. We are conscious of the provision of law that ordinarily transfer being an incident of service, it is not required to be interfered with by the course of law except under exceptional circumstances. In the present case, we feel that this is a case of exceptional circumstance, as apparently there is no provision for involuntary transfer. In this context, we may also refer to an earlier request made by the petitioner, which was rejected by the communication, dated 07.12.2005, whereunder it was indicated that GDSs have no transfer liability. 8. Under these circumstances, the order of transfer is quashed and the writ petition is accordingly allowed. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ js To 1. The Registrar, The Central Administrative Tribunal, Madras-600 104. 2. The Union of India rep.by the Superintendent of Post Offices, Department of Posts, Dharmapuri Division, Dharmapuri-636 701. 3. The Inspector (Post), Dharmapuri East Sub Division, Dharmapuri-636 701. + 1 CC To Mr.V.Raghavachari, Advocate SR NO.34304 + 1 CC To Mr.K.Parameshwari, Advocate SR NO.34666 W.P No.6522 of 2008 and M.P.No.1 of 2008 NM(CO) SRA(17/07/2008) https://hcservices.ecourts.gov.in/hcservices/