Pawan Kumar v. Union of India & Ors.

1. Petitioner impugns the action of the respondent in pre-maturely terminating the tenure of the petitioner at Delhi and posting the petitioner out to Leh.

2. Learned counsel further submits that petitioner has been issued a movement out order directing him to move out immediately. He submits that the posting order was passed on 21.08.2023 and the movement order was issued on 25.08.2023 and petitioner has been struck off strength on 26.08.2023. He submits that he had also not been paid any TA/DA.

3. Learned counsel for respondent submits that the movement order records that TA/DA advance is nil because no demand was made by the petitioner as on the date, the movement order was issued and in case, petitioner want to make a demand of TA/DA and other allowances, all admissible allowances payable on transfer shall be granted to the petitioner in accordance with the rules. He submits that request for payment of Transfer Incidentals was received from the petitioner on 25.08.2023 by which time the movement order had already been issued.

4. Learned counsel for respondent further submits that petitioner was found guilty of an offence. He submits that petitioner was caught red handed with 50 liters of diesel which has been pilfered from the Unit and the same was recovered in a jerry can kept in his personal vehicle. Petitioner was initially suspended however, by order dated 03.08.2023, petitioner has been punished, found guilty and awarded punishment of reduction to a lower stage in the time-scale of pay one stage with cumulative affect but not adversely affecting his pension.

5. Learned counsel further relies on the posting/transfer policy of the respondent which though stipulates that tenure of posting is normally two years but records that tenures laid down in the instructions are guidelines for the purposes of Cadre Management and do not entitle any person to claim these as a matter of right.

6. Further we note that the policy itself records in clause 6 that pre mature posting are unavoidable in larger interest of organization due to shorter tenures HAA, BCA, MCA, companionate cases, disciplinary cases and on promotion to higher posts.

7. Learned counsel for respondent submits that since petitioner was held guilty of pilfering Government property and has been awarded punishment the same being a disciplinary case it has been decided by the Competent Authority to curtail his tenure and posting out of the Unit.

8. We note that the normal tenure of posting is not mandatory and is subservient to the larger interests of the organization. In the instant case, petitioner has been found guilty of pilfering government property and even selling the same for the purposes of profit. Respondents have decided to post the petitioner out on disciplinary grounds. Posting has been done in the organization interest and does not warrant any interference.

9. We find no merit in the contention of learned counsel for petitioner that the posting order would amount to double jeopardy as petitioner has already been sentenced by deduction of pay and thereafter posting out petitioner would amount to second punishment which is not permissible in law.

10. We find not merit in the contention for the reason that transfer and posting is an incidence of service. We are of the view, that there would be no illegality in the department posting out an officer from the Unit where he is found pilfering government property and selling the same. Said pre-mature curtailing of tenure and posting out would not amount to punishment or double jeopardy.

11. In view of the above we find no merits in the petition. The petition is consequently dismissed.

12. It is promoted out that petitioner was under suspension and was drawing only suspension allowance and has now been re-instated. The Transfer Incidentals and TA/DA and other allowances would be payable by the new Unit. Accordingly, respondents are directed to pay all admissible Transfer Incidentals TA/DA etc. to the petitioner as soon as petitioner reports to the new Unit of posting.

13. Order dasti under the signatures of Court Master.

SANJEEV SACHDEVA, J MANOJ JAIN, J September 1, 2023