IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 OP (CAT).No. 674 of 2011 (S) ------------------------------------------- OA.685/2010 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ---------------------- 1. CHAIRMAN CUM MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LTD., NEW DELHI. 2. THE DIRECTOR (FINANCE), BSNL,CORPORATE OFFICE, 7TH FLOOR, BHARAT SANCHAR BHAVAN, JANAPATH,NEW DELHI-1. 3. THE ASSISTANT GENERAL MANAGER (SEA), O/O.THE DIRECTOR FINANCE, BSNL,CORPORATE OFFICE, 7TH FLOOR, BHARAT SANCHAR BHAVAN, JANAPATH,NEW DELHI-1. 4. THE PRINCIPAL GENERAL MANAGER TELECOM, BSNL,TRICHUR. BY ADV. SRI.P.A.AUGUSTINE(AREEKATTEL) RESPONDENT: ----------------------- K.M.RADHAMONI AMMA, AGED 56 YEARS, W/O.M.P.HARIKUMARAN PILLAI, SENIOR ACCOUNTS OFFICER (STAFF NO.88931), OFFICE OF THE PGMT, BSNL,TRICHUR, R/AT 'V/681-A.,PUTHALATHU ROAD, NORTH KALAMASSERY, ERNAKULAM. ADV. SRI.BABU PAUL FOR R1 SRI.M.J.WILFRED DAS FOR R1 THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(CAT)No.674 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of March 2011 JUDGMENT Basheer, J. Bharath Sanchar Nigam Limited has filed this Original Petition under Article 227 of the Constitution of India through its Managing Director and other officials calling in question the legality, propriety and correctness of the order passed by the Central Administrative Tribunal, Ernakulam bench in O.A.685/2010. By the impugned order, the Tribunal has quashed the order issued by the petitioners transferring the respondent from the Kerala circle to the Karnataka circle. It is contended by the petitioners that the order is totally vitiated and unwarranted in the facts and circumstances of the case. 2. Relevant facts may be briefly noticed. 3. Respondent is presently working as Senior Accounts Officer in the Bharath Sanchar Nigam Limited at Thrissur falling under the Kerala Circle. It is beyond controversy that she has never worked outside the Kerala Circle ever since she joined the service in the year 1979. Petitioners issued annexure A1 order transferring several of its executives to various circles. By the said order, respondent was ordered to be transferred to Karnataka circle. The said order was challenged by the respondent before the Tribunal. 4. It is on record that on the strength of the interim order passed by the Tribunal, petitioner continued in the Kerala Circle. Even now she is working in Thrissur in the Kerala circle. 5. The case of the petitioners is that going by the guidelines issued by the competent authority, any officer at the executive level is liable to be transferred anywhere, ofcourse subject to the criteria laid down by the company from time to O.P.(CAT)No.674 OF 2011 :: 2 :: time. According to the petitioners, there is dearth of about 24% of Accounts Officers in the Karnataka circle which necessitated shifting of some officers in the said category to that circle. It was therefore, that the respondent, who has been working in Kerala for quite a number of years even at the executive level, was ordered to be shifted from Kerala to Karnataka. 6. However, the respondent contended before the Tribunal that the order of transfer was manifestly illegal and against the guidelines. She pointed out that she had crossed the age of 56 at the time when the impugned order was issued. She was born on June 30, 1954. The impugned order of transfer was issued on May 28, 2010. Therefore, going by the clauses contained in the guidelines governing transfers, she could not have been shifted from Kerala to Karnataka. Still further, the respondent contended that she had not completed 18 years in the Kerala circle at the executive level. The guidelines clearly stipulated that every executive was entitled to continue in the circle for atleast 18 years. 7. Respondent had yet another case before the Tribunal. She contended that her husband who is afflicted with several ailments had retired from service a short while ago. He requires constant medical attention. More importantly, her mother- in-law who is very old (90 years) and suffering from various ailments is now living under her care and protection. Obviously, these two people cannot be left alone in Kerala. If they are to be taken to Karnataka along with her in the present condition, it will cause inexplicable difficulties and hardship in the entire family. 8. The Tribunal, after considering the rival contentions of the parties, held that the order of transfer cannot be sustained not only for the reason that the O.P.(CAT)No.674 OF 2011 :: 3 :: petitioner had crossed the age of 56 but also since she has not completed the circle tenure of 18 years. The Tribunal also found that given the present health condition of the members of her family and also the advancing age of the respondent, it would not be just or proper to order her transfer from Kerala to Karnataka. It was in the above circumstances that the Tribunal quashed the order of transfer. 9. Learned counsel for the petitioners has invited our attention to the additional guidelines issued by the competent authority specifying the norms of transfer. It is pointed out by the learned counsel that the additional guidelines issued by the department specifically reserve and confer the right of the management to transfer an executive even before completion of the circle tenure. It is contended by the learned counsel that the mere fact that respondent has not completed circle tenure of 18 years in Kerala would be of no avail to her to contend for the position that she is not liable to be transferred to another circle. 10. Undoubtedly, there is some force in the above contention raised by the petitioners. But any guideline or norm will have to be tempered with an element of compassion. All these guidelines are ofcourse framed with a purpose. The transfer policy makes it clear that one of the objectives of transfer is “to fulfil the needs of employees nearing retirement for possible placement close to their home town or a location of their choice”. 11. The relevant table indicating the Post tenure, Station tenure, Circle tenure, etc. for various categories of executives is extracted hereunder. O.P.(CAT)No.674 OF 2011 :: 4 :: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sl. Executive Level Post Tenure Station/SSA tenure Circle tenure No. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1. SAG or equivalent 4 6 8 2. JAG or equivalent 4 8 12 3. STS or equivalent 4 10 15 4. TES Gr.B/JTS or equivalent 4 10 15 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 12. As has been noticed already, petitioner is nearing 57 as on today. She is due to retire at the age of 60. She has a specific case that she is in fact suffering from rheumatoid arthritis as could be seen from the medical certificate produced by her, which is marked in the case as annexure A4. As rightly pointed out by learned counsel for the respondent, the plight of the family consisting of an old lady of 90 years, a retired husband in his 60's and the respondent herself who is nearing senior citizenship can be very well imagined, if the order of transfer is enforced. Learned counsel has invited our attention to sub clause (k) of clause 11 in part B of annexure A2 additional guidelines. It is submitted by the learned counsel that the respondent had specifically contended before the Tribunal that she belongs to STS level in the executive hierarchy and that going by sub clause (k) of clause 11 of the guidelines referred to above, she could not have been ordered to be transferred. Sub clause (k) of clause 11 in Part B of Annexure A2 reads thus: “Generally, transfer of officers upto JAG level who are more than 55 years of age (as on 31st March of that particular financial year) would be avoided for posting to hard tenure stations. Similarly, transfer of officers upto SAG grade would generally be avoided in case of more than 58 years of age. However, upto STS level, transfer of officers involving change of station would normally be avoided after 56 years for inter circle transfers and after 57 years for intra circle transfers.” O.P.(CAT)No.674 OF 2011 :: 5 :: 13. Learned counsel points out that the assertion made by the petitioner that she belongs to the STS level of executives had not been denied by the department in its reply statement filed before the Tribunal. But learned counsel for the petitioners submits that petitioner belongs to Group B category which comprises of officers belonging to Telecom Engineering service and Group B/Junior Time scale officers. According to the learned counsel, under clause (k) officers belonging to Group B are not included. What is stipulated in clause (k) is only that “transfer of officers upto JAG level who had more than 55 years would be avoided for posting to hard tenure stations. The case of the petitioner appears to be that since respondent belongs to the category of Group B of officers, sub clause (k) does not have any application at all. 14. It is true that the petitioners have not specifically denied the assertion made by the respondent that she belongs to STS or equivalent level of executives. Indeed in para 3 of the reply statement before the Tribunal heavy emphasis had been laid on the clauses contained in the amended guidelines which would enable the department to transfer an executive on the ground of administrative requirements and in the interest of the service ignoring any of the norms or clauses contained in the guidelines. 15. But having regard to the entire facts and circumstances of the case, particularly the fact that the respondent is nearing the age of O.P.(CAT)No.674 OF 2011 :: 6 :: superannuation, which is hardly three years away, we are of the view that the department ought to have exercised its discretionary power to give some weightage to her family problem, on compassionate grounds. Still further, Sub clause (k) would indicate that the respondent would get the benefit of the said clause, especially, in the absence of any specific denial by the department as regards her contention that she belongs to STS level of executives. Therefore, even assuming that the department would be entitled to transfer the respondent even before she completed the circle tenure of 18 years in view of the amended guidelines, we are satisfied that in the peculiar facts and circumstances of the case, the order of transfer issued by the petitioners cannot be justified. The Tribunal, in our view, has rightly found that the order of transfer issued by the department is liable to be quashed. In other words, we do not find any reason to interfere with the order passed by the Tribunal. Therefore, the original petition is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes