Per: SURESH KUMAR BATRA MEMBER (J):-

1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-

(i) The impugned orders dated 17.05.2023 (Annexure A-1/A) dated 31.03.2023 (Annexure A-1) and office order dated 01.04.2023 (Annexure A-2) issued by the Circle Office be quashed and set aside qua the applicant.

(ii) The respondents be directed to allow the applicant complete the tenure period of 02 years at Solan SSAs where the applicant is working as AGM (Trans) Solan BA (Business Area) since 18.03.2023 in pursuance of office orders 04.03.2023 to 21.03.2023 (Annexure A-4 to A-10).

2. The factual matrix of the case is that the applicant is working in Telecom Department since 12.12.1990 and she joined as Telecom Assistant/Telegraphisit. She was promoted as Junior Telecom Officer (Transmission) (JTO)(T) on 06.01.2014 and further promoted as sub Divisional Engineer (T) (SDE(T) on 19.06.2018. At present the applicant is working as Assistant General Manager (T) at Business Area Solan since 18.03.2023. Pursuant to exercise undertaken from 04.03.2023 to 21.03.2023 to take charge of AGMs (Transmission) Solan BA, the applicant was appointed as such and she is working as AGM (Transmission) B.A. (Business Area) Solan, HP. The respondent no. 3 at HP Telecom Circle Office, has issued the impugned office order dated 31.03.2023 listing 5 AGMs (T)s, 17 SDEs(T) and 19 JTOs(T) stated to be having longest stay in the BA (including stay in non-executive cadres) and who are less than 56 years old as on 31.03.2023 and sought 3 choices of Business Areas (BAs) for intra-circle rotational transfer. The name of applicant is listed at Sr. No. 16 in Annexure "B" attached to office order dated 31.03.2023 (Annexure A-1). Again the respondent no. 3 at HP Circle Office, issued modified office order dated 01.04.2023 (Annexure A-2) and released the revised list of regular AGM (T)/ SDEs(T)/JTOs(T) stated to be having longest stay in the BA (including stay in non-executive cadres) and who are less than 56 years old as on  31.03.2023 and who are in the zone of transfer and sought 3 choices of Business Areas (BAs) for intra-circle rotational transfer. This order further stated that intra-circle rotational transfers shall be limited to 15% of the sanctioned strength. The name of applicant has been placed at Sr. No. 2 in Annexure „B‟ and her period of stay has been shown to be 32 years 3 months 19 days as on 31.03.2023. The applicant made representation dated 01.04.2023 (Annexure A-3) and requested for correction in stay particulars as prepared by the AGM (Admin) under impugned office orders dated 31.03.2023 and 01.04.2023. However, no response thereto was given from the side of the respondents. The applicant filed O.A. No. 337/2023 challenging the action of the respondents in including her name for intra-circle rotational transfer under the impugned orders dated 31.03.2023 and 01.04.2023 (Annexures A-1 and A-2), which was disposed of vide order dated 18.04.2023 (Annexure A-1/B) by directing the respondent no. 3 to decide the representation dated 01.04.2023 (Annexure A-3) by passing a reasoned and speaking order within a period of three weeks and it was further directed that till the applicant‟s representation is decided, status quo as it exists today shall be maintained by the respondents. The respondents have issued the fresh impugned office order dated 17.05.2023 (Annexure A-1/A) rejecting the claim of the applicant.

3. The contention of the applicant is that the impugned action of the respondents is contrary to the Look After arrangement dated 09.02.2023 and the applicant has been wrongly included for intra-circle rotational transfer. The Intra Circle Transfer are only for Circle cadre i.e. JTO/JAO not for SDE and above cadre. So para 11(d) of the Policy is not applicable for Intra Circle transfers and is applicable only for Inter Circle and Circle transfers. He further contended that as per Intra Circle Transfer Policy (Annexure A-16), it is clear that TES Gr. B/JTS or equivalent executives, the post tenure prescribed is 04 years and station/SSA tenure is 10 years. But in the case of applicant, as on 31.03.2023 her station tenure is 09 years 02 months 26 days only, so the applicant cannot be inter-circle transferred. She is also not appearing in the long stay list of SDE(T) having circle more than 24 years as on 31.03.2023. It has also been contended that the respondents have not considered the submissions made by the applicant in her representation.

4. The respondents no. 2 to 4 have filed reply contesting the claim of the applicant. It has been submitted that the applicant is a regular SDE (posted in BSNL office of General Manager, Solan Business Area). She is working in Solan B.A. since 12.12.1990 and has completed 32 years, 3 months and 19 days stay in Solan SSA/BA as on 31.03.2023. As per para 11 (d) of Section B of BSNL Transfer Policy 2008, amended from time to time, for counting station/SSA tenure, the period of service rendered in the previous cadre(s)/grade(s) would be counted. For inter circle transfer, stay will be counted from the date of regular promotion/recruitment into the grade of JTO/JAO and other equivalent to the first level of executive hierarchy. It has been further stated that the applicant is wrongly claiming that she is posted as AGM whereas she is a regular SDE and made only link officer for the post of AGM (Trans). It has been denied that the BSNL Corporate Office has ordered to give look after charge of AGMs in Himachal Pradesh Circle as it is clear from Annexure A-4 order dated 09.02.2023 that no post has been given to H.P.K. Circle for giving look after charge of AGM. It has been further submitted that the Solan SDCA and Nalagarh SDCA of Solan SSA are not tenure areas and the applicant is posted in Solan SDCA which is not tenure station/area. The applicant has neither alleged nor proved that there has been any malafide on the part of any officer in transfer of the applicant as no person by name has been impleaded as a party. The transfer in question being in administrative exigencies and is not open to judicial review. The guidelines do not confer upon the Government employee a legally enforceable right. In the matter of transfer, the Executive retains the absolute right to transfer a person in public interest and unless there are clear cut malafides established or if it is established that the decision is in violation of a statutory rule it should not be interfered with. On these grounds, the respondents prayed for dismissal of the O.A.

5. Reliance has been placed upon judgments of the Hon‟ble Supreme Court in the cases of Union of India and Others Vs. H.K. Kirtania, 1989 AIR 1774, Gujarat Electricity Board and Another Vs. Atmaram Sungomall Poshani, AIR 1989 SC 1443, Shilpi Bose Vs. State of Bihar, AIR 1991 SC 532, Union of India & Others Vs. S.L. Abbas, (1993) 4 SCC 357, State of Madhya Pradesh & Another Vs. S.S. Kourav & Others, AIR 1995 SC 1056 and Laxmi Narain Mehar Vs. Union of India & Others, 1997 (2) SLR 38.

6. The applicant has filed rejoinder reiterating the contentions raised in the Original Application.

7. I have gone through the pleadings and considered the rival contentions of learned counsel for both sides.

8. This is the 2nd round of litigation. Earlier, the applicant filed O.A. No. 337/2023 against the office order dated 31.03.2023 and modified order dated 01.04.2023 whereby the name of applicant was included in the list prepared for Intra-Circle Transfer and asked to give three choice stations. The said O.A. was disposed of vide order dated 18.04.2023 directing the respondent no. 3 to decide the representation of the applicant. Pursuant thereto, the respondents passed order dated 17.05.2023 rejecting the claim of the applicant. The applicant has filed the instant O.A. challenging the decision taken by the respondents vide order dated 17.05.2022.

9. The first contention of the applicant is that the Transfer Policy, 2008 is not applicable in the case of applicant. However, in support of this contention, learned counsel for the applicant has not placed on record copy of any transfer policy which, according to him, governs the applicant. However, the certain clauses of BSNL Employees Transfer Policy, 2008 dated 07.05.2008 have been relied upon in her support and to demolish the contention of the respondents.

10. The BSNL Corporate Office, New Delhi with the purpose and objective of transfer as mentioned in paras 1 and 2 of the Policy, has formulated certain guidelines vide BSNL Employees Transfer Policy 2008 dated 07.05.2008 (Annexure A-11). The very purpose of transfer policy, 2008 is reproduced as under for the convenience and better understanding of the facts in the instant O.A.

“(i) To achieve BSNL’s corporate goals through well developed personnel with an all around personality.

(ii) To have a mix of personnel positioned at different locations/jobs who have gained varied experience systematically.

(iii) To maintain/upkeep the ongoing functional activities/tasks such as telephone exchanges, customer service centres etc at all times.

(iv) To distribute the available manpower evenly in the SSA/Circle/Service area of Company as per workload keeping in view the zone of transferability as applicable to specific level/cadre.

(v) To provide opportunities to work in different disciplines.

(vi) To enhance productivity and obviate monotony.

(vii) To ensure rotational redeployment of the personnel from sensitive posts.

(viii) To ensure continuity of management and systematic succession planning for key posts in middle and senior management level.

(ix) To fulfill the needs of employees nearing retirement for possible placement close to their home town or a location of their choice.

(x) To meet the staff requirement of tenure/hard tenure/difficult/unpopular stations”

11. Explicitly, the Section-A of the Transfer Policy 2008 i.e. the Transfer Rules and Guiding Principles avowedly indicates that the policy is applicable for all employees. The certain clauses of the Transfer Policy 2008 dated 07.05.2008 were modified by the Competent Authority and circulated vide letter dated 13.08.2008. The clause 6 of the modified Transfer Policy 2008 stipulates that “Transfers involving Station, SSA, Circle, urban or rural posting change shall be undertaken for meeting the shortages and service demands for difficult/unpopular area postings, requests from employees posted on tenure/hard tenure stations and others.” From the reading of the aforesaid clauses of Policy 2008, it is established that the Policy 2008 is applicable to all employees of BSNL including the applicant. Therefore, the contention of the applicant of non-applicability of Policy, 2008 is rejected being wrong. Moreover, the Transfer Policy 2008 provides the right to Management to move or not move employee(s) from one post/ job to another, to different locations, to different shifts, temporarily or permanently as per business requirements and special needs.

12. The respondents while deciding the representation of the applicant has referred to „Section B‟ Clause 11 of the Policy, whereas according to the applicant, the clause 11(d) of the Policy 2008 is not applicable for intra Circle transfer, but applicable to the Inter-Circle transfer and Circle Transfer, therefore, the impugned order is stated to be void ab-initio and illegal. I find that the applicant himself has admitted that she has All India transfer liability. From the Clause 11 of „Section B‟ of the Transfer Policy 2008, it is crystal clear that vide clause 11 additional guidelines specific to transfer of executive employees with all India transfer liability have been formulated, therefore, the contention of the applicant that Transfer Policy 2008 or clause 11 (d) of the Policy is not applicable to the applicant is misconceived. Further, from the perusal of Clause 3 read with clause 11(b) of the Transfer Policy 2008, I find that the management has reserved its right to transfer any employee prior to the specific tenure as specified in clause 11(b) or to retain the executive beyond the specific tenure depending upon the administrative requirement and in the interest of service. Therefore, the argument of applicant is without any force. The respondents, vide the impugned order, have fairly conceded that in the long stay list circulated vide BSNL, CO, New Delhi, letter no. BSNLCOPETS/11(11)/1/2023-PERS I dated 17.02.2023 for the purpose of inter circle transfer, the stay was counted from the date of regular promotion/recruitment into the grade of JTO (i.e. 06.01.2014) in accordance with the Para 11(d) of Section B of BSNL Transfer Policy and as the applicant‟s total stay from the date of joining as JTO in HP Circle till 31.03.2023 is 9 years 2 months and 26 days, therefore, she is not appearing in the long stay list of SDE(T)s having circle stay more than 24 years as on 31.03.2023. However, it has been contended by the respondents that the BSNL Corporation, New Delhi vide letter dated 17.02.2023 conveyed to take up the necessary exercise of manpower levelling across all Business Areas/Units under HP Circle jurisdiction and execute rotational and posting on long stay basis and it has also been intimated that the long-stay executives may be asked to give willingness/choices for at least 3 preferred BAs for their intra-circle rotational transfers/posting. The action of the respondents no. 2 and 3 is in consonance with the direction of respondent no. 1 dated 17.02.2023. Therefore, it cannot be assumed that the respondents have wrongly or illegally exercised their jurisdiction in including the name of the applicant in intra circle transfer list dated 31.03.2022 and 01.04.2023 on the basis of 32 years 03 months and 19 days long stay at Solan SSA BA as on 31.03.2023. The applicant on one side submitted that the clause 11 of the Transfer Policy 2008 is not applicable in the case of applicant whereas she wants to take benefit of clause 11(f) of the Policy 2008 i.e. female executives would also be encouraged to serve in tenure postings. The said contention of the applicant is not justified. As per para 11(d) of Section B of BSNL Transfer Policy 2008, amended from time to time, for counting station/SSA tenure, the period of service rendered in the previous cadre(s)/grade(s) would be counted. For inter circle transfer, stay will be counted from the date of regular promotion/recruitment into the grade of JTO/JAO and others equivalent to the first level of executive hierarchy.

13. The applicant, in order to continue her stay at present place of posting i.e. Solan, has further contended that the applicant being female executive be exempted from hard tenure station posting since she had served at hard tenure station from 11.06.2020 to 05.03.2021 as SDO-Area Rajgarh as well as unpopular area SDCA Solan and Rajgarh SDCA (District Sirmour) during the pandemic period. The said contention of the applicant has been controverted by the respondents on the basis of order dated 23.06.2010 (Annexure A-12), whereby the BSNL Corporate Office has declared the list of tenure area/station in respect of various states including Himachal Pradesh. According to the aforesaid order, the Solan SDCA and Nalagarh SDCA of Solan SSA are not tenure area. In other words, the Solan SSA, except Nalagarh and Solan SDSA, is declared as tenure station, therefore, the applicant‟s posting in Solan SDCA is not a tenure station/area. The contention of the applicant is contrary to the declaration issued by the BSNL Corporate Office vide letter dated 23.06.2010, therefore, the contention is liable to be rejected.

14. The further contention of the applicant that she is working as AGM (Transmission) at BSA Solan since 18.03.2023 is wrong and contrary to the records as she is working as regular SDE (T) posted in Solan BA since 12.12.1990. From the perusal of material on record, it is found that the respondents vide Annexure A-6 have called for options from the eligible DEs/AGMs/SDOs of Solan BA, who are willing to take charge of AGM (Transmission) for Solan BA without any extra remuneration. From the perusal of Annexure A-6 to A-8, it is also clear that the applicant has been given the additional charge of AGM (Transmission), therefore, it is held that she is not working in the capacity of regular AGM, therefore, the said contention of the applicant is also wrong. The respondents before issuing the transfer order of the applicant from Solan to Shimla has called for three options from all eligible executives thereby granting an opportunity to opt for stations. Further the applicant is not the single SDE, who has been transferred vide order dated 20.05.2023. Apart from the applicant, 10 other SDEs have been transferred from one BA to another BA.

15. In view of the observations made hereinabove, I find no reason to interfere with the orders dated 31.03.2023 and 17.05.2023 passed by the respondents. The Original Application is dismissed being bereft of any merit. No costs.