Pratap Kumar Ray, J. - (1.) THE matter is taken up as on day's list in view of urgency as prayed for.
(2.) HEARD the learned Advocate appearing for the petitioner. Having regard to the tenor of the order impugned, we are of the view that the writ application could be disposed of here and now as a question of jurisdiction of the learned Tribunal to hear the matter has been raised. The impugned order reads such: "2.02.2011 - The applicant, who is the Engineering Assistant Group 'C working at the Doordarshan Kendra, Kolkata is aggrieved by transfer orders dated 18.8.2010 (Annexzre-A/ 1) transferring him from Kolkata to Doordarshan Kendra, Rourkela. He made a representation against the transfer order on 23.8.2010 to the Chief Engineer, Doordarshan Kendra and AIR but without any result. 2. The facts of the case are briefly as follows. 3. The applicant joined Doordarshan Kendra, Kolkata in 2006 after serving Doordarshan Kendra, Guwahati for about three years. The applicant's case is that he has been transferred to Raurkela which is against the transfer policy of the Department dated 14.7.1981. 4. The applicant's case is that as per transfer policy of 14.7.1981 when a question of transfer is considered persons with the longest continuous stay at the station irrespective of the rank held by him earlier should ordinarily be transferred first. For the purpose of service rendered at a station as a local recruit will not be taking into consideration for determination of length of continuous service. 5.The applicant's case is that the private respondents 7 & 8 who are also Engineering Assistants of Doordarshan Kendra, Kolkata and who have held the longest continuous stay have not been disturbed while the present applicant has been disturbed. Thus the process of equity and fair play in implementation of the transfer policy has been violated. The applicant was also entitled to his choice of station on transfer as per policy. He exercised such choice on 5.5.2010 asking for LPT Chaibasa/Ranaghat, but this had been ignored. A copy of the option exercised by the applicant on 5.5.2010 is at Annexure-A/4. The applicant's case is that some Engineering Assistants have been wrongly enjoying immunity from transfer on the ground that they are the office bearers of ARTEE and ADTEA which is not permissible since as per transfer policy only the Chief Executive of recognised Association can enjoy immunity from transfer. 6. In his prayer he has sought directions from this Tribunal for setting aside the transfer orders dated 18.8.2001 (Annexure-A/1) and to allow him to join his present place of posting and to continue there. 7. There was no formal reply received from the respondents but the counsel for the respondents was heard at length. 8. Heard counsel far the applicant and the respondents. 9. The counsel for the applicant vehemently argued that as per transfer policy of 14.7.1981 and as per subsequent revision of July 1998 Prasar Bharati employees were entitled to exercise option te indicate three stations of posting in order of priority on transfer and that efforts should be made to post a person to one of the three stations of such posts after completion of tenure. 10. The transfer policy of 14.7.1981 (Annexure-A/3) indicates that normal tenure at station/offices categorized as A & B will be four years and at stations/offices categorized as 'C will be two years. Clause (iv) of the same has stated that when the question of transfer is considered as a normal rule, a person with the longest continuous stay at the station irrespective of rank held by him earlier should be transferred first. Clause (xvi) had the proviso that six months before the expiry of normal tenure of posting at a station, employee may indicate his choice of minimum of three different stations where he would like to be preferably posted and such option may be taken into consideration before his next posting is decided. Clause (xxii) has stated further only the Chief Executive of the Central Body of a recognised Association/Union/Federation as defined in the Constitution of that Association/Union/Federation or where the Chief Executive has not been specifically thereof if he is posted at a station office outside Delhi/New Delhi be brought or transfer to a station office at Delhi/ New Delhi. Clause (xxv) has indicated that transfer will be synchronized with the end of academic year so that education of children does not suffer. 11. Section 2 has stated that the transfer policy will be implemented as objectively as possible and that if any exception is required to be made it should be got approved at the highest level in the Directorate. The counsel for the applicant argue that in respect of each and every provision of transfer guidelines referred to in the form or clauses cited there has been violation. Some people with the longest stay have been retained at Kolkata, namely, private respondent Nos. 7 & 8. This amounted to pick and choose. The private respondent Nos. 7 & 8 were by no stretch of imagination the Chief Executive of a recognised Union. Also the respondents have not considered the option exercise by the applicant of three placed of posting. Also the transfer orders have been made in middle of the academic year. Therefore, the transfer orders were liable to be cancelled. 12. In this connection the counsel also referred to the latest guidelines for transfer of employees of Prasar Bharati issued on 21.5.2010 (Annxure- a/3). Attention was also drawn to the answer given in the Rajya Sabha (Annexure-A/4) by the Minister of Information and Broadcasting to the effect that there was no association or union recognized by the Government in All India Radio Doordarshan. It was also argued that the representation has been disposed off by an authority who is not the Chief Engineer as was directed. 13. The counsel for the respondents, however, argued to the contrary that the applicant had been transferred along with other on completion of his tenure. He had completed four years of tenure in Kolkata which was as per transfer guidelines. It was not correct that only he had been transferred, other had been transferred as well. He could not be accommodated in the three stations of his choice as there was no vacancy available in those positions. 14. Transfer was an incident of service and in the overall interest the Government should have right to utilize any staff anywhere and Court or tribunal should not interfere with the same. There were catena of cases to this effect decided by the Hon'ble Apex Court. 15. I have carefully considered the position as made out by the counsel for the applicant and the respondents. I have also carefully gone through the pleadings. I have also perused the judgement of this Tribunal in O.A. 1382 of 2000 decided on 10.10.2001. I have also seen the memo dated 22.2.2010 issued by the Deputy Director (Administration), Prasar Bharati in the matter of recognition of association or union of the AIR. In the letter of 22.2.2010 it has been stated that the matter regarding recognition of association or union was under process of the Ministry of Information and Broadcasting and that pending finalization of the case it has been decided to maintain status quo in this regard and interact with those associations or union who were figuring in the AIR Manual. It is seen that a list of nine Associations have been mentioned in this connection which are enclosed with the letter dated 22.2.2010. 16. I have also seen the letter dated 19.8.2009 where it has been stated that the Director, Engineering Wing will look after the work of cadre control and purchase activities relating to AIR Engineering Wing and that will include additional charges of AIR Bhavani-Patna as an Engineering Head until further orders. This has been issued with the approval of the Chief Engineer (EZ). 17. The short points to be considered here are whether the applicant has a legal right to continue in his present place of posting i.e. in Kolkata and secondly whether there has been any discrimination in posting him out of Kolkata while others with longer stay have not been disturbed. A clarification sought in OA 824 of 2010 would apply here also mutatis mutandis. The main point to be clarified is as to why the respondents are not complying with their own transfer guidelines while not denying that the transfer is an incident of service and that employees are required to serve anywhere when the Government requires to do so. The transfer guidelines have been issued by the Government itself so as to provide some stability in decision making. The respondent authorities are required to clarify as to what public exigency was that has required transfer of the applicant while others have been retained. 18.I take note of the fact that in the representation of the applicant there is no mention of the children's education being disturbed which has been brought before me during the hearing. 19. However, if the applicant has not already joined his new place of posting in Rourkela consideration for the education of his children has to be shown and the applicant may be permitted to join his new place of posting in Rourkela after 31.3.2011. For the intervening period the applicant can apply and be granted leave as is admissible. 20. The respondent authorities are required to answer the clarification which are in line of OA 824 of 2010 within six weeks of issue of this order. In case the applicant has already joined after being relieved of his charge in Calcutta, the points made out above will nevertheless be addressed by the respondents on a representation being made by the application. The condition that I have given direction that the applicant should be permitted to join at Rourkela after 31.3.2011 since his children are in session would only apply if the applicant has not joined at Rourkela already but has been relieved of his charge at Calcutta. 21. With the above directions, the CA is disposed of. No cases."
(3.) ON a bare reading of the impugned order, it appears that one administrative member of Central Administrative Tribunal, Calcutta Bench heard the transfer matter. It is the view of the Apex Court passed in the case L. Chandra Kumar v. Union of India & Ors. reported in (1997)3 SCC 261that a Bench must be constituted by two members wherein one must be a judicial member. The same view has been considered subsequently in a case State of Madhya Pradesh v. B.R. Thakare & Ors. reported in (2002) 10 SCC 338 wherein the Court held that even if under section 5(6) of the Administrative Tribunal Act by using a non obstante clause, provision has been made that Bench consisting of a single member may hear the application subject to classes of cases as to be declared by the Chairman by general or special order, but still then all matters should be heard by two members and amongst them one must be a judicial member. The relevant paragraphs read such: .... A Constitution Bench of this Court in L. Chandra Kumar v. Union of India and others (1997) 3 SCC 261 quoted with approval the decision of this Court in Dr. Mahabal Ram v. Indian Council of Agricultural Research and others (1994) 2 SCC 401 as follows: "......There is no doubt that what has been said in Sampath Kumar case would require safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, be many cases before the Tribunal where very often no constitutional issues or even legal points would be involve... We are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member. Whether judicial or administrative in terms of sub-section (6), the Chairman should keep in view the nature of the litigation an where questions of law and for interpretation of constitutional provisions are involve they should not be assigned to a Single Member. In fact, the proviso itself judicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a Bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should go to a bench of two Members. The Member should ordinarily allow the matter to go to a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administration system whose litigations may be before the Single Member for disposal... This vires of sub-section (6) has not been under challenge and therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in sub-section (2) and the exemption in sub-section (6) are rationalized." 2. We may also notice that in the matter of allotment of cases as no Rules had been framed, the Chairman of the Tribunal had also issued an order on 27.8.1993 which is as under: "In supersession of order No. R/D/1-93, Indore, date 6.8.1993 on the subject, and in exercise of the powers conferred by sub-section (6) of section 5 of the M.P. Administrative Tribunal Act, 1985, I.P.C. Pathak, Chairman, M.P. Administrative Tribunal, hereby authorise the Judicial Member of M.P. Administrative Tribunal to function as a bench consisting of single member and to exercise the jurisdiction, powers and authority of the Tribunal in respect of hearing including the final hearing of all types of case within the jurisdiction of Tribunal." 3. Even assuming that all the powers of the Tribunal could be exercised by any Single Member, it can only be by a Judicial Member of the Tribunal and not any other member under the aforesaid order. 4. Shri B.S. Banthia, learned counsel appearing for the respondents drew our attention to the decision of this Court in Indermani Kirtipal v. Union of India and others (1996) 2 SCC 437 and admitted that a decision by a Single Member of the Tribunal is not without jurisdiction particularly when a party had acquiesced in the proceedings before the Single Member of the Tribunal. He therefore, submitted that there is no need for this Court to interfere with such an order made by a Single Member of the Tribunal. 5. We are not resting our decision on lack of jurisdiction of a Single Member of the Tribunal as we are more concerned with the administration of justice. The Tribunal had been constituted in substitution of the High Court as was noticed by this Court in Chandra Kumar's case (supra). To have proper administration of justice while allotting work to Single Member, whether judicial or administrative, the Chairman should keep in mind the nature of the litigation and where questions of law and its interpretation are involved, they should be assigned to Division Bench of which one of them is a judicial Member. Keeping the whole some principle in view, we think the order made by the Tribunal should be set aside. In the circumstances, we allow these appeals, set aside the order made by the Tribunal and remit the matters to the Tribunal for consideration as aforesaid on merits by a Division Bench of which one of them is a judicial Member..." Section 5(6) of the Administrative Tribunal Act reads such: " (6) Notwithstanding anything contained in foregoing provisions of this section, it shall be competent for the Chairman or any other member authorised by the Chairman in this behalf to function as [a Bench] consisting of a single member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may be general or special order specify: Provided that at any stage of the hearing of any such case or matter it appears to the Chairman or such member that the case or matter is of such a nature that ought to be heard by a Bench consisting of [Two Members], the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit." Having regard to such, since the impugned order was passed by one administrative Member, we are of the view that the matter should be remitted back for hearing by a Bench constituted by two Members in which one must be a judicial Member.;