Hon'ble Ran Vijai Singh, J.
The petitioner, who belongs to Indian Defence Services of Engineering, was selected by the Union Public Service Commission for the post of Assistant Executive Engineer under the Military Engineering Services (M.E.S.) in the year 1985 and was promoted as Executive Engineer in the year 1992 and then as Superintending Engineer in the year 2002. He is aggrieved by the order dated 12.5.2011 whereby, from his present posting as Director E/M in the rank of Superintending Engineer at Headquarters Chief Engineer (Air Force, Bamrauli, Allahabad) he has been posted as Project Manager, Missamari No. 2. On receiving the transfer order, the petitioner filed a representation/application on 18.5.2011 raising his grievances that the transfer order tantamounts to reversion/de-gradation and is in violation of the policy and guidelines and that the same, being in breach of the conditions of service, should be set aside. The said representation of the petitioner, alongwith representations of five other Superintending Engineers, was rejected by the competent officer at the appropriate level, which was communicated to the petitioner by the Desk Officer of the Ministry of Defence vide communication dated 20.7.2011. Being aggrieved by the aforesaid transfer order dated 12.5.2011 as well as guidelines of the Ministry of Defence dated 27.1.2011, the petitioner approached the Central Administrative Tribunal, Allahabad Bench, Allahabad by filing Original Application No. 927 of 2011. By order dated 8.8.2011, the Tribunal stayed the transfer order of the petitioner. However, by the judgement and order dated 14.10.2011, the Tribunal dismissed the Original Application. Challenging the same, this writ petition has been filed. In this writ petition also, at the initial stage, by a reasoned order dated 18.10.2011, the operation of the impugned transfer order was stayed till next date of listing, which order has been extended.
We have heard Sri U.N. Sharma, learned Senior Counsel assisted by Sri Nitin Sharma, learned counsel for the petitioner as well as Sri R.B. Singhal, learned Assistant Solicitor General of India assisted by Sri Rajeev Singh, learned Additional Standing Counsel, Government of India appearing on behalf of the respondents and have perused the record. Pleadings between the parties have been exchanged and with their consent, this writ petition is being disposed of at the admission stage itself.
Sri U.N. Sharma, learned Senior Counsel appearing for the petitioner, while assailing the impugned transfer order as well as the judgement of the Tribunal has submitted that the transfer of the petitioner in a project as Project Manager amounts to change of post and change of service conditions, which cannot be done except after obtaining the sanction from the Union Public Service Commission. It is further submitted that the order of transfer in fact amounts to reversion, as the petitioner is already working as Director, which is equivalent to Superintending Engineer (SE) at Headquarters Civil Engineer (Air Force, Bamrauli, Allahabad) and he is now posted as Project Manager, whose duties are akin to that of Garrison Engineer, which is equivalent to Executive Engineer. It is contended that the petitioner, who was working on the post of Director (as Superintending Engineer) would be equivalent to Colonel whereas the Project Manager would be equivalent to Executive Engineer (EE). Besides other documents on which the petitioner relies upon in support of such submissions, the petitioner has specifically placed reliance on the communication dated 17.11.2003 of Government of India, Ministry of Defence wherein it has been mentioned that after the sanction of the President of India regarding re-designation of existing posts of Civil Services, the post of SE under the revised designation would be equivalent to that of CWE, which is equivalent to that of Director. In the same communication, it has been mentioned that the post of EE would be equivalent to that of Deputy Director. It has thus been submitted that there is no post equivalent to that of Project Manager, and the petitioner, who is already posted as Director, cannot now be posted as a Project Manager, where a Director is already posted. In fact, the petitioner relies on his initial posting which was proposed to be that of CCE (Army) No. 2 Missamari as Director, which has been filed as Annexure RA-4 to the rejoinder affidavit. Perusal of the same would show that such posting of the petitioner was initiated by the Director Personnel (M) and recommended by the DDG Personnel (M) and approved by DG Personnel. Note of the Ministry of Defence dated 25.4.2011, which has also been annexed as Annexure RA-4, also mentions that the proposal of the Engineer-in-Chief (Project) was examined and it was observed that the petitioner was earlier proposed to be posted as Director whereas thereafter he was proposed to be posted as Project Manager, for which the Ministry of Defence required reasons to be given as the earlier proposal of his posting as Director had the approval of the DG Personnel. The petitioner then vehemently argued that the order of transfer is totally arbitrary and discriminatory as the person who is junior to the petitioner, namely, Sri S.K. Sharma, has been posted as Director in the same project and the petitioner is one of the four Project Managers. It is submitted that specific averments in this regard that Sri S.K. Sharma is junior to the petitioner as SE have been made in paragraphs 47, 48 and 51 of the writ petition, which have not been denied in the counter affidavit. It is next contended that the transfer order itself mentions that Sri S.K. Sharma, SE has been posted from "HQ CE SWC to CCE Army No. 2 Missamari as Director" and in the case of the petitioner it is mentioned that the petitioner A. Arul Dhas, SE has been posted from "CE (AF) Allahabad to Project Manager, Missamari No. 2 under CCE (Army) No. 2 as PM". It is thus contended that though the respondents have taken a stand that the Project Manager is independent and in-charge of his project and not under the Director, but the same is negated on a bare reading of the transfer order, which categorically and specifically mentions that the petitioner as Project Manager would be "under CCE (Army) No. 2" who is Sri S.K. Sharma, and is admittedly junior to the petitioner. Sri U.N. Sharma, learned Senior Counsel has next contended that the petitioner could not be posted in a field area without his consent. In support of his contention, he has submitted that as per the "Civilians in Defence Service (Field Service Liability) Rules 1957", the petitioner, after attaining the age of 45 years would not be liable for field service. It is contended that the stand taken by the respondents that the petitioner would not be governed by 1957 Rules but by the IDSE (Recruitment and Condition of Service) Rules, 1991 is not sustainable as the appointment order of the petitioner dated 24.7.1985 (filed as Annexure A-1 to the Original Application filed before the Tribunal) itself in paragraphs 2(v) provides that "you will be subject to Field Service Liability Rules, 1957". As such, the objections that the officers of 56 years age would not be liable for field area posting, would not be applicable in the case of the petitioner who is admittedly governed by the 1957 Rules as specified in the appointment order itself. Lastly, Sri Sharma submitted that by the same transfer order another Superintending Engineer Sri Sanjay Sharma had been transferred as Project Manager, who had also challenged the same before the Central Administrative Tribunal and his Original Application has been allowed. However, Sri Sharma has not placed such order of the Tribunal for our perusal.
Sri R.B. Singhal, learned Assistant Solicitor General of India appearing for the respondents has submitted that by posting the petitioner as Project Manager in a project would not amount to change of cadre as designation of Project Manager is used only for convenience and as such, consultation with the Commission for such change in the posting would not be required as the petitioner would be working in the same pay-scale, which would not amount to reversion. Sri Singhal has vehemently contended that though Sri S.K. Sharma has been posted as Director in Missamari project but the petitioner as Project Manager would be in-charge of his own project and not working under Sri S.K. Sharma, who is junior to the petitioner. Sri Singhal could not however explain the wordings in the transfer order, which provides that the petitioner, as Project Manager, would be under the CCE (Army) No. 2. He has however tried to explain that there would be independent projects under the charge of different Superintending Engineers and they would not be required to report to the Director. Sri Singhal next submitted that the petitioner would be governed by 1991 Rules and could be posted in the field area upto the age of 56 years. He has specifically submitted that 1957 Rules would not be applicable in the case of the petitioner but has not been able to explain as to why the same would not be applicable when specific mention to that effect has been made in the appointment order of the petitioner. He lastly submitted that the order of transfer is neither without jurisdiction nor any mala fide has been averred against anybody and as such, the same does not deserve to be interfered with.
What we have noticed on perusal of the impugned order of the Tribunal is that though the submissions of the learned counsel for the petitioner have been mentioned in the order but the same have not been considered by the Tribunal and the Tribunal has passed the impugned order primarily on the basis that the same has been passed by a person competent to transfer the petitioner and it has the approval of the competent authority and thus the same need not to be interfered. Perusal of the order passed on the representation of the petitioner also shows that the same has been passed in a cursory manner without dealing with the objections of the petitioner, as all that has been stated is that "the representations of the above mentioned officers considered in MOD at appropriate level and the competent authority has rejected the representations". It does not show any application of mind.
Normally this Court does not interfere in the matters of transfer and especially in case where the officer is in the armed forces, may be as a civilian officer, but in the peculiar facts of this case, where the allegation of the petitioner is of reversion from the post of Superintending Engineer to a post equivalent to that of Executive Engineer, when the petitioner has already worked as Director and has now been posted as a Project Manager and person junior to him has been posted as Director, the matter, in our view, requires serious consideration.
The ground of the petitioner having been posted under his junior, is a matter, which should have been addressed by the Tribunal or the competent officer dealing with the representation of the petitioner. The question of posting of the petitioner as Project Manager, whether it amounts to change of posting and change of service conditions requiring consent of the Union Public Service Commission, is also a matter, which ought to have been considered by the Tribunal and also the competent authority. The applicability of the Rules, 1957 as against the Rules 1991 in the case of the petitioner has also not been clarified. Merely stating that the Rules 1991 would be applicable when in the appointment order itself, Rules 1957 have been made applicable and without producing any document or order in its support that the subsequent Rules of 1991 will now be applicable, a finding to such effect does not appear to be justified and requires consideration.
What we also notice is that a question has been raised as to whether the post on which the petitioner has been posted is field posting or not. The specific case of the petitioner is that the place where he has been transferred it is field posting and by our order dated 2.11.2011 we required the respondents to file an affidavit clarifying that 'CCE Army No. 2' where the petitioner has been posted is field area or peace area. A supplementary counter affidavit of Sri A.K. Saxena, Chief Engineer, Air Force, Allahabad has been filed merely stating that "Missamari" which is a Counter Insurgency peace area and not a field area, whereas from the documents produced before us by the petitioner, Counter Insurgency Area would be field area.
From the above discussion as well as the record, it is clear that neither the competent authority before whom the representation was filed by the petitioner nor the Tribunal while deciding the Original Application of the petitioner have addressed themselves on the questions raised by the petitioner. Considering the fact that the matter relates to posting of the petitioner in a crucial area and looking to the sensitivity of the matter, we would not be inclined to enter into these questions of fact which are quite relevant and require to be decided, as in our opinion, the same can best be considered and decided by the Ministry of Defence itself.
Considering the aforesaid circumstances, we are of the view that the competent officer of the Ministry of Defence may take a decision in the matter of transfer of the petitioner after considering all the objections of the petitioner, which, according to us, are of serious nature, which need to be decided. The representation, which was earlier filed by the petitioner on 18.5.2011 has, in our view, been decided by the competent officer of Ministry of Defence without giving any reasons and as such, the same cannot be termed as an order passed after application of mind and considering the objections of the petitioner.
The Apex Court in the case of Sant Lal Gupta and others vs. Modern Cooperative Group Housing Society Limited and others, (2010) 13 SCC 336 has observed as under:
"27.....The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/ unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. [Vide: State of Orissa v. Dhaniram Luhar AIR 2004 SC 1794; State of Rajasthan v. Sohan Lal & Ors. (2004) 5 SCC 573; Vishnu Dev Sharma v. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. v. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. v. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal v. State of Haryana & Ors. (2009) 3 SCC 258; State of Himachal Pradesh v. Sada Ram & Anr. (2009) 4 SCC 422; and The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285).
As such, we dispose of this petition with the direction that the petitioner may file a fresh representation along with certified copy of this order before the competent officer of the Ministry of Defence raising all his objections, which have been raised by the petitioner in this writ petition. The same shall be decided by the competent officer, who would be the respondent no. 1 (Secretary, Ministry of Defence, South Block, New Delhi-110011) by a reasoned and speaking order dealing with all the grounds raised in the representation, as expeditiously as possible, preferably within a period of one month from the date of filing of such representation. It is further provided that in case if such representation is filed within 15 days from today, the transfer of the petitioner by the impugned order dated 12.5.2011 shall remain in abeyance till the decision is taken on the representation of the petitioner.
With the aforesaid observations/directions, this writ petition is finally disposed of. No order as to costs.