Gopal Krishan Vyas, J. - (1.) IN this writ petition, the Union of India, through Secretary, Ministry of Defence (Accounts), Government of India and other authorities of the Ministry of Defence are challenging the judgment dated 07.08.2009 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No. 5/2009, by which, the learned Tribunal allowed the original application filed by respondent Basta Ram Naval and passed the following order: 4. Since the applicant is to retire in another eleven months, I will be failing in my duty if, I do not pass any positive orders, therefore, the O.A. is allowed with cost as the answering respondent has interdicted judicial process by colourable and palpably false contentions. While balancing the twelve years of agony of the applicant and the need for supervisory prominence of Senior Officers and the following directions are issued: (i) The respondents shall transfer and post the applicant to a post to which he is entitled in the Jodhpur City within 14 days from today. (ii) The O.A. is allowed with a cost of Rs. 1000/ - which the first respondent shall pay to the applicant and thereafter realize it from the answering respondent Sh. K. Vivwanathan S/o Sh. v. Krishnaurthy, who is Dy. Controller of Defence Accounts, (Admin), Pune, within one month from today. (iii) A proper enquiry into the matter generally indicated, so far as the department is concerned by a Senior Officer with investigating skills from outside the department might be desirable and the first respondent may look into it as expeditiously as possible.
(2.) WHILE challenging the above order, learned Counsel for the petitioners invited our attention towards the fact that original application was filed by the respondent for seeking following two reliefs: (i) By an appropriate order or direction of this Hon'ble Tribunal, the impugned communication dated 19.06.2008, passed by the respondent No. 3, may very kindly be declared unsustainable and consequently the same may very kindly be quashed and set aside. (ii) The respondents may very kindly be directed to treat fairly to the applicant in the matter of transfer and the respondents, may very kindly be directed to consider the case of the applicant for his transfer from present place to any other office of the respondents at MES (Air Force), MES (Army), AAO GE (AF) or AAO GE (Army), so as to provide him honour of work. Learned Counsel for the petitioner department vehemently argued that transfer is incidence of service and nobody can claim to post him at a particular place but, in the original application, a prayer was made by the applicant -respondent that his representation for transfer was wrongly rejected vide communication dated 19.06.2008 and by way of passing said communication the respondents have discriminated his case for giving him posting as per prayer made in the representation. Therefore, it is prayed that while quashing the said communication the respondents may be directed to treat fairly to the applicant in the matter of transfer and the respondents may be directed to consider the case of the applicant for his transfer from present place to any other office of the respondents at MES (Air Force), MES (Army), AAO GE (AF) or AAO GE (Army).
(3.) AS per learned Counsel for the petitioners no direction can be issued to the employer to post an employee as per his desire, therefore, the Tribunal has committed gross error while exercising its jurisdiction and passing order impugned dated 07.08.2009, whereby, the Tribunal has directed the petitioner department to post the respondent in Jodhpur City within 14 days from the date of order and, so also, imposed cost of Rs. 1,000/ - and recover the same from Sh. K. Vivwanathan S/o Sh. v. Krishnaurthy of Pune who was Deputy Controller of Defence Accounts within one month from the date of order. Learned Counsel for the petitioners invited our attention to the fact that even Sh. K. Viswanathan was not party in the original application but while observing wrong facts that Shri K. Viswanathan is answering respondent such order has been passed by the Tribunal. Therefore, the order impugned deserves to be quashed.;