Central Administrative Tribunal - Delhi
Raj Kumar Jha vs Union Of India on 21 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2367/2012
with
OA 2368/2012
OA 2369/2012
New Delhi this the 21st day of September, 2012
Honble Mr. A.K.Bhardwaj, Member (J)
OA 2367/2012
Raj Kumar Jha,
S/o Late Shri Kapileshwar Jha,
Aged about 54 years,
Deputy Commissioner of Police (P&L),
R/o G-5, Type-V, New Police Lines,
Kingsway Camp, Delhi-110009. .. Applicant
(By Advocate Shri A.K. Behera )
VERSUS
1. Union of India,
Through Secretary,
Ministry of Home Affairs,
Government of India, North Block,
New Delhi-110001
2. Joint Secretary (UT),
Ministry of Home Affairs,
Government of India, North Block,
New Delh-110001
3. Commissioner of Police,
Police Headquarters,
IP Estate, New Delhi-110002. .. Respondents
(By Advocate Shri R.N.Singh with Shri Satish Kumar)
OA 2368/2012
Rajveer Singh,
S/o Late Shri Diwan Singh,
Aged about 55 years,
Deputy Commissioner of Police, Delhi
R/o 7LF Babar Place, Near Bengali Market,
New Delhi-110001. .. Applicant
(By Advocate Shri A.K. Behera )
VERSUS
1. Union of India,
Through Secretary,
Ministry of Home Affairs,
OA 2367/2012
Government of India, North Block,
New Delhi-110001
2. Joint Secretary (UT),
Ministry of Home Affairs,
Government of India, North Block,
New Delh-110001
3. Commissioner of Police,
Police Headquarters,
IP Estate, New Delhi-110002. .. Respondents
(By Advocate Shri R.N.Singh with Shri Satish Kumar)
OA 2369/2012
Ravindra Kumar Pandey,
S/o Shri Raj Narain Pandey,
Aged about 50 years,
Deputy Commissioner of Police (Traffic Hq),
R/o B-440 Meera Bagh, New Delhi,
Delhi-110063. . . Applicant
(By Advocate Shri A.K.Behera )
VERSUS
1. Union of India,
Through Secretary,
Ministry of Home Affairs,
Government of India, North Block,
New Delhi-110001
2. Joint Secretary (UT),
Ministry of Home Affairs,
Government of India, North Block,
New Delh-110001
3. Commissioner of Police,
Police Headquarters,
IP Estate, New Delhi-110002. .. Respondents
(By Advocate Shri R.N.Singh with Shri Satish Kumar)
O R D E R
OA Nos. 2135/2012, 2136/2012 and 2137/2012 filed by applicants questioning the order dated 25.06.2012 whereby they were transferred from NCT of Delhi to DD&DHI, A&NI and Lakshadweep were disposed of in terms of order dated 3.07.2012 with a direction that the representation, if any, preferred by applicants within one week would be decided by respondents expeditiously. Respondents were also directed OA 2367/2012 not to give effect to the transfer order qua the applicants till disposal of said representations. Pursuant to said order, applicants made separate representations dated 9.07.2012 raising the common plea and praying for cancellation of their transfer ordered in terms of order No.14020/2/2011-UTS-II (Part file) dated 25.06.2012. The representations were addressed to the Secretary, Ministry of Home Affairs, Government of India. Relying upon the guideline for transfer of posting of DANIPS officer, rules 12 and 13 of DANIPS Rules, 2003 and letter dated 23.06.2012 of DD & DNH administration as well as also on the decision of this Tribunal in OA No.2785/2010 filed by Shri Udai Vir Singh Rathi, the Secretary, Ministry of Home Affairs passed separate order Nos 14040/34/2012-UTS.II dated 12.07.2012 rejecting the aforementioned representation preferred by applicants. The applicants have filed present Original Applications questioning the said order No.14020/2/2011-UTS-II (Part file) dated 25.06.2012 of their transfer out of Delhi and the order No.14040/34/2012-UTS.II dated 12.07.2012 passed in saliently on the following grounds:-
The impugned orders have been passed by incompetent authority, i.e., the Joint Secretary (UT as only Central Government could transfer the Members of DANIPS.
The applicants being JAG Grade-1 Officer could not be transferred to Daman and Diu and Dadra and Nagar Haveli, Andaman and Nocobar Islands and Lakshadweep as there is no post in such grade in said segments.
The impugned orders are violative of the directions of Honble Supreme Court in Prakash Singh and Ors. Vs. Union of India & Ors (2006 (8) SCC page-1).OA 2367/2012
The transfer policy relied upon in disposal of their representations is dated 10.02.2011, i.e. of a date subsequent to their promotion, thus is not applicable to them.
In terms of letter No. 1/364/96-PER/Par-II/439 dated 16.05.2011, the administration of Daman & Diu, Department of Personnel & Administrative Reforms Secretariat, Daman informed the Joint Secretary (UT), Government of India, Ministry of Home Affairs that there is no JAG level DANIPS post available in the said Union Territory and the administration also faces difficulty in payment of salary to the officer of such level.
In terms of letter No. 1/364/96-PER/VoI.I/Part/448 dated 22.03.2012, the administration of Daman & Diu further informed the Ministry of Home Affairs that said Union Territory administration does not have any ex-cadre post on which DANIPS officers could officiate.
Letter dated 23.06.2012 whereby the Union Territory of Daman & Diu and Dadra & Nagar Haveli requested the Joint Secretary (UT), Government of India, Ministry of Home Affairs was generated pursuant to letter No.14020/2/2011 UTS.II (Part file) dated 23.02.2012 of Ministry of Home Affairs and was faxed from District Panchayat Office, thus the transfer of applicant is ordered for collateral purposes.
Before transfer of an officer to ex-cadre post, an exercise to create such post needs to be carried out. In the absence of such exercise, the impugned order of transfer of applicant is vitiated.
To buttress the aforementioned grounds, Mr. A.K.Behera, learned counsel appearing for applicants contended:-OA 2367/2012
In terms of Rule 13 of National Capital Territory of Delhi, Admaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra & Nagar Haveli (Police Service) Rules, 2003 (hereinafter referred to the Rules), it is only the Government and not the Joint Secretary (UT) which can allocate a Member of DANIPS to any administration for posting in terms of Rule 12. As is defined in Rule 2 (k), Government means the Government of India and in terms of the definition mentioned in Section 3 (8)(b) of General clauses Act. Central Government shall in relation to anything done or to be done after the commencement of the Constitution means President. Further as is provided in Rule 4 of allocation of Business Rules dated Jan., 14, 1961/Pausa 24, 1882 (S), the business of Government of India allocated to Cabinet Secretariat is and shall always be deemed to have been allotted to the Prime Minister and the President may, on the advise of the Prime Minister could entrust the responsibility for specified items of business affecting any one or more than one department to a Minister who is in charge of any other department or to a Minister without portfolio, thus in the absence of any general or specific order to this effect, the power and function of Government under Rule 12 of the aforementioned Rules could not be exercised by Joint Secretary.
As is defined in Rule 2 (j) of the rules, duty post means any post included in Schedule I to the said rules in terms of which all the posts in outlying segment of Union Territory are either in entry grade or selection grade and there is no post of JAG-I or JAG-II in the said segment, thus the posting OA 2367/2012 of applicants outside NCT of Delhi would amount to their degradation. So far no JAG level officer has been posted to outlying segment and if any member of DANIPS of such level remain posted in said segment, it could be only on account of his promotion at a point of time when he was posted in selection grade or entry grade in the said segments. Once there is no post of JAG Grade I or II in either of the outlying segment, the transfer of applicants is to be treated against ex-cadre post and in the absence of creation of such ex-cadre post, the transfer of applicants is wholly unwarranted.
Per contra, the respondents pleaded:
(i) In order to bring transparency in the cadre management and to ensure that the onus to serve in the outlying sensitive territories (i.e., Andaman and Nocobar, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli) is shared equally, the respondent Ministry has framed a transfer policy with the approval of Union Home Minister and in terms of the said policy, the applicant is liable to be posted in the outlying segment in two stints- first tenure would be for a period of at least three years and second tenure would be for a period of two years. The applicants joined service 25-21 years back but have not served in any of the outlying segment. The DD & DNH administration vide its letter dated 23.06.2012 had sent requirement for two JAG level officer of DANIPS and similarly Lakshadweep administration and Andaman & Nicobar Islands administration vide their letters dated 22.03.2012 and 22.06.2012 had sent their requirement for DANIPS officers at various levels. Since the requirement of DANIPS officers in Lakshadweep Administration is for costal security upgradation in the light of OA 2367/2012 Somalian pirates etc., it was decided to post one JAG officer at Lakshdweep. Whether the posts of JAG level officer of DANIPS are required in outlying segment or not is an issue which lies exclusively within the domain of the Administrator concerned and the Ministry and once it has been decided to transfer the applicant in public interest, the Tribunal may not interfere in the matter, as the Honble Supreme Court has so held on several occasions.
(ii) The transfer of the applicants is as per transfer policy which is not applicable to officers of selection grade and entry grade only but is equally applicable to all members of DANICS/DANIPS. As per channel of submissions circulated through internet instructions in the respondent Ministry, Joint Secretary (UT) is competent to approve transfer/posting of DANICS/DANIPS officer irrespective of their status and appointing authority. In terms of FR 6, the Central Government may delegate to any of its officers subject to any conditions which it may think fit to impose, any power conferred upon it by said rules with certain exceptions and in terms of Appendix-3 (delegations made under Fundamental Rule 6), power to transfer a Government servant from one post to another is conferred on all Heads of the Department. Thus Joint Secretary, being administrative head could issue the impugned order of transfer.
2. On hearing the learned counsel appearing for parties and perusal of record, I find the following propositions arisen to be determined by me:
OA 2367/2012(i) Whether the power of Government to transfer Member of DANIPS under Rule 12 of National Capital Territory of Delhi, Admaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra & Nagar Haveli (Police Service) Rules, 2003 can be exercised only by the President or the Minister concerned and not by the Joint Secretary (UT).
(ii) Whether the members of DANIPS who stood promoted in JAG (1) cannot be posted out of NCT of Delhi.
(iii) Whether the transfer of applicant is ordered for collateral purposes.
3. As far as the first question is concerned, it would be pertinent and material to refer to Article 77 (1) of the Constitution of India in terms of which all executive action of the Government of India shall be expressed to be taken in the name of the President. In terms of Article 53 (1) of the Constitution, the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate in accordance with the Constitution. For easy reference, said Article is extracted hereinbelow:
53. (1) The Executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. As is provided in Article 77 (2), orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in the rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. For convenient reference, Article 77 (2) is extracted hereinbelow:-OA 2367/2012
Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as my be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. Article 77 (3) provide for the rule to be made by the President for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. In exercise of power conferred under Article 77 (3) of the Constitution, the President issued order dated Jan14, 1961 (Pausa 24, 1882 (S) making the rules for the more convenient transaction of business of Government of India. In terms of Rule 3 of said Rules, subject to other provisions contained therein regarding consultation with other department and submission of cases to Prime Minister, the Cabinet and its Committees and the President, all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961 shall be disposed of by, or under the general or special direction of the Minister-in charge. In terms of Rule 11 of the Government of India (Transaction of Business) Rules in each department, the Secretary (which includes the Special Secretary or Additional Secretary or Joint Secretary in independent charge of post) shall be the administrative head thereof and is responsible for the transaction of business and the careful observance of the rules in that department. Fundamental Rules which came into force with effect from 1.1.1922 applies to all Government servants whose pay is debatable to civil estimates and to any other class of Government servants to which the President may, by general or special order, declare them to be applicable. The powers delegated by the Government of India under different fundamental rules are contained in appendix -3 to FR. At serial No. 3 of appendix 3 (delegation made under FR 4), it is provided that OA 2367/2012 power to transfer a government servant from one post to another is delegated to all heads of department. For easy reference, relevant extract of appendix 3 is extracted hereinbelow:-
Sl.No. F.R.number Nature of power Authority to which the power is delegated Extent of power deleted 6-A 15 Power to transfer a Government servant from one post to another. All Heads of Department Full power
4. In terms of FR 15, the President may transfer Government servant from one post to another provided that:-
(a) on account of inefficiency or misbehaviour , or
(b) on his written request a Government servant shall not be transferred to, or except in a case covered by rule 49, appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien. For convenience of reference, said FR is extracted hereinbelow:-
FR. 15 (a) The President may transfer Government servant from one post to another provided that except-
on account of inefficiency or misbehaviour, or on his written request, a Government servant shall not be transferred to, or except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien. As has been noted hereinabove, the aforementioned power of the President to transfer the Government servant is delegated to head of the Department. The head of the Department as defined in the Government of India (Transaction of Business) Rules (supra) includes, Special Secretary, Additional Secretary and Joint Secretary. Further in terms of OM No. 15039/13/2006-Plg.Cell dated 19.02.2010, a statement of showing channel of submission of files in Union Territory Division and their disposal was circulated for compliance till further direction. As OA 2367/2012 said statement, the file relating to posting and transfer of DANI Civil and Police Service is to be finally disposed of by Joint Secretary.
5. In Sanjeevi Naidu etc.etc. Vs. State of Madras and Another (AIR 1970 SC 1102), a Constitution Bench of Honble Supreme Court viewed that neither the Councils of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government. Those matters have to be attended to and decided by various officials at various levels. When those officials discharge the functions allotted to them, they are doing so as limbs of the Government and not as persons to whom the power of the Government had been delegated. In Halsbury Laws of England Vol.I 3rd Edn. I page 70, it is observed:
Where functions entrusted to a Minister are performed by an official employed in the Ministers department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. Paras 11, 12 and 18 of the judgment read as under:-
11. We think that the above submissions advanced on behalf of the appellants are without force and are based on a misconception of the principles underlying our Constitution. Under our Constitution, the Governor is essentially a constitutional head, the administration of State is run by the Council of Ministers. But in the very nature of things, it is impossible for the Council of Ministers to deal with each and every matter that comes before the Government. In order to obviate that difficulty the Constitution has authorised the Governor under sub-article (3) of Article 166 to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He can, not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But this again he can do only on the advice of the Council of Ministers.OA 2367/2012
12. The cabinet is responsible to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard-working Minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department. In every well-planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as delegate of his Minister. He does it on behalf of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates.
18. As mentioned earlier in the very nature of things, neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government. Those matters have to be attended to and decisions taken by various officials at various levels. When those officials discharge the functions allotted to them, they are doing so as limbs of the Government and not as persons to whom the power of the Government had been delegated. In Halsbury Laws of England Vol. I 3rd Edn. at p. 170, it is observed:
"Where functions entrusted to a Minister are performed by an official employed in the Minister's department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister."
Further in Samsher Singh Vs. State of Punjab and another (AIR 1974 SC 2192), another Constitution Bench ruled that the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of President in terms of which the executive power shall be exercised by the President directly or OA 2367/2012 through the officers subordinate. In the said case it is further ruled that where functions entrusted to a Minister are performed by an official employed in the Ministers Department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to the Minister. Paras 31 and 32 of the judgment read as under:-
31. Further the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the rules of business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (See Halsbury's Laws of England 4th Edn. Vol. I, paragraph 748 at p. 170 and Carltona Ltd. v. Works Commrs., (1943) 2 All ER 560 (CA)).
32. It is a fundamental principle of English constitutional law that Ministers must accept responsibility for every executive act. In England the sovereign never acts on his own responsibility. The power of the sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English constitutional law is incorporated in our Constitution. Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the constitutional head are not different. Also in Labh Singh Atma Singh Vs. Union of India and Others ( AIR 1970 V 57 C 36), it was held that Article 77 (3) enables the President to make rules for the more convenient transaction of the business of the Government of India. These rules are called the Transaction of Business OA 2367/2012 Rules. Under these Rules the business of the Government is authorized to be done by various officers on behalf of the Government. Unless a certain item of business is specified to be done by the Minister himself or by the Secretary himself, the rest of the business can be done by any of the officers of the usual hierarchy in the Ministry, starting at the bottom with the Under Secretary and ending at the top with the Secretary. Relevant excerpts of the said judgment read as under:-
.Article 77 (3) enables the President to make rules for the more convenient transaction of the business of the Government of India. These rules are called the Transaction of Business Rules. Under these Rules the business of the Government is authorized to be done by various officers on behalf of the Government. Unless a certain item of business is specified to be done by the Minister himself or by the Secretary himself, the rest of the business can be done by any of the officers of the usual hierarchy in the Ministry, starting at the bottom with the Under Secretary and ending at the top with the Secretary. The Deputy Secretary is an officer in this hierarchy. He is. Therefore, entitled to transact the business of the Government under the Transaction of Business Rules. It is not, therefore, necessary for the Government to issue any separate authorization to these officers for transaction of any particular business on behalf of the Government. As has been held in Comptroller & Auditor General of India and Others Vs. Mohan Lal Mehrotra and Others (1992) 1 SCC 20) non issuance of circular in the name of the President, relates only to the form and not to the substance, thus omission to indicate the issuance of particular order or circular in the name of President would not vitiate the same. Para 13 of the judgment reads as under:-
13. The High Court has also touched upon the validity of the impugned circular and stated that they were not issued by the President after consultation with the Comptroller and Auditor General. In the present case, the President has not issued the circular, but Comptroller and Auditor General has issued it. There was however, proper consultation between the Government and the Comptroller and Auditor General for issuing the circular. The infirmity pointed out that it was not issued in the name of the President, therefore, relates only about the form and not with regard to the substance. The circular of course, ought to have been issued in the name of the President as required under Article 148(5) of the Constitution, OA 2367/2012 as it affects the service conditions of persons in the Audit and Accounts Department. But since the Government has approved the circular and the circular was in accordance with the declared Policy of reservation, we do not want to restrain the Comptroller and Auditor General from enforcing it.
In D.S.Sharma Vs. Union of India etc. ( AIR 1970 Delhi 250), Honble Supreme Court viewed that under Article 53 (1), the executive power of the Union are vested with the President to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. In the said case, it is further held that the very purpose of Article 77 (2) is to enable certain authorized officers to authenticate the orders and Instruments on the sole ground that they are made in exercise of the executive power of the Government of India. All that the officers have to see is that the order is made by the executive as distinguished from the legislature or the Judiciary. They do not have to scrutinize the contents of the order. Para 12 of the judgment reads as under:-
Under Article 53 (1) the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinates to him in accordance with the Constitution. Under Article 73(1) subject to the provisions of this Constitution, the executive power of the Union shall extend to the matters with respect to which Parliament has power to laws. Under Article 77 (1) all executive action of the Government of India shall be expressed to be taken in the name of the President. What is the meaning of expressions executive power and executive action in the above provisions of the Constitution? They can mean only one of the following two things, namely:-
(1) the power or the action exercised or taken by the executive department of the State, or (2) only such power as is administrative in nature as distinguished from legislative or judicial power exercised by the Executive.
The latter meaning could be placed on these provisions only if Chapter I of Part V of the Constitution were concerned with the distinction between different kinds of powers such as judicial legislative and executive according to the quality or the content of the power. But such a distinction has no relevance to OA 2367/2012 Chapter I of Part V of the Constitution inasmuch as the only division contemplated by Part V is between the three great departments of the State, namely, the Executive, the Legislature and the Judiciary, irrespective of the kinds of powers which may be exercised by each of them. It would follow, therefore, that the expressions executive power and executive action in this context mean the power or the action of the Executive. The adjective executive denotes that part of the State which is exercising the power. It is the source of the power which is designated thereby and not the nature or the quality of it. Therefore, so long as the source or the author of the power is the Executive, the provisions of Chapter 1 of Part V of the Constitution would apply whether the nature of the power is strictly administrative or not. Therefore, when Article 77 (2) says that orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, all orders and instruments made by the President are contemplated.
It is immaterial if a particular order or instrument is administrative or rule making that is, subordinate legislation in character. The very purpose of Article 77 (2) is to enable certain authorized officers to authenticate the orders and instruments on the sole ground that they are made in exercise of the executive power of the Government of India. All that the officers have to see is that the order is made by the Executive as distinguished from the Legislature or the Judiciary. They do not have to scrutinize the nature or the contents of the order. In fact, they would not have the power to sit in judgment over such orders of the Government. It is not open these authorized officers to refuse to authenticate an order of the Government on the ground that the contents of the order are not administrative but are legislative in character. Article 77 would be unworkable if every order and instrument would have to be scrutinized by the authorized officers with a view to determine if it is administrative in nature. In fact, some orders would be partly administrative and partly legislative and it would be impossible for anyone to decide whether it should be regarded as executive or legislative only.
The provisions of Article 77(2) are fundamental and have to be broadly construed. To construe them narrowly would be to defeat their very purpose and to subject action taken thereunder to the uncertainty of challenges and litigation. This is why Article 77(2) further enacts that the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. We are therefore of the view that the executive power or the executive action of the President in Chapter I of Part V of the Constitution is not restricted to the exercise of powers which are entirely administrative in nature but is broad enough to include rule-making as distinguished from the power to issue ordinances which are Sovereign Legislation and not subordinate legislation like rule-making. Therefore, the authentication of a OA 2367/2012 statutory instrument made by the President in exercise of the powers conferred on him by the proviso to Article 309 has to be authenticated under Article 77(2) of the Constitution in the same way as an administrative order made by him has to be authenticated thereunder. In Jaipur Development Authority and Others Vs. Vijay Kumar Data and Another (2011) 12 SCC 94) relied upon by the learned counsel appearing for applicant, the issue raised related to a Notification dated 13.05.60 issued under Section 4 of the Rajasthan Land Acquisition Act, 1953. In the said case a declaration under Section 6 was issued on 3.5.1961. Initially 65 khatedars filed claims for compensation and subsequently this figure swelled to more than 137 because those who purchased land after issuance of notification under Section 4 and their nominees/sub-nominees also filed claim for compensation. Certain persons who had purchased land in 1963, i.e. much after the publication of notification under Section 4 and declaration under Section 6, filed a suit for injunction against defendant/appellant. The suit failed. The respondent in CA No.7374/2003 before Honble Supreme Court who had purchased the plot from N filed an application under Section 83 of the Jaipur Development Authority Act, 1982 questioning notice issued by the appellate authority for auction of two plots. Considering the transaction between the persons who purchased the land also from Khatedar and subsequent purchase of plots by respondents as a nullity, the Appellate Tribunal dismissed the application taking a view that respondents had no locus to challenge the proposed auction. The Writ Petition filed against the said order was dismissed by the learned Single Judge of High Court observing that dispute regarding title of plot could not be decided under Article 226 of the Constitution. The Division Bench upheld the order of the Single Judge but entertained and accepted an altogether new case put forward by the petitioners that in terms of policy decision OA 2367/2012 dated 6.12.2001 taken by the said Government and other passed by another Division Bench in Rajasthan High Court v. State of Rajasthan the petitioners were entitled to regularization of plots in question. Said order of Division Bench was challenged before Honble Supreme Court in Civil Appeal No. 7374/2003. It was in the aforesaid backdrop that the Honble Supreme Court ruled that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. The said letter dated 6.12.2001, was neither expressed in the name of the Governor nor was it authenticated in the manner prescribed by the rules. The letter merely referred to the discussion made by the committee and the decision taken by it. Such decision, of course, by no stretch of imagination could be treated as a policy decision of the Government. In the present case, it is not so that the Joint Secretary (UT) has taken any policy decision. The said authority has only exercised the power of the Government as its limb in issuing an administrative order. In Sanjeevi Naidu etc.etc. Vs. State of Madras and Another (AIR 1970 SC 1102), the Constitution Bench has categorically ruled that neither the Councils of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government. Those matters have to be attended to and decided by various officials at various levels. When those officials discharge the functions allotted to them, they are doing so as limbs of the Government and not as persons to whom the power of the Government had been delegated.
6. In the present case, in terms of FR 6 read with Appendix 3 (supra) and OM No.15039/13/2006-Plg. Cell dated 19.02.2010, the Joint Secretary (UT) being Head of the Division is entrusted with the function OA 2367/2012 of transfer/ posting of DANI Civil and Police Service- (i) JAG and above (ii) selection grade and grade II. Further in terms guidelines for transfer and posting of IAS/IPS officers of Joint AGMU cadre, 2010, the transfer and posting of Chief Secretary/Administrator and the senior most police officer heading the police force in State/UT may be decided with the approval of Home Minister in consultation with the Chief Minister of the State concerned. Para 9 of the said guidelines read as under:-
The transfer and postings of Chief Secretary/Administrator and the senior most police officer heading the police force in State/UT may be decided with the approval of Home Minister in consultation with Chief Ministers of States concerned. A panel of 3 names can be suggested to Chief Ministers of the States, who may convey their response with reasons thereof on the panel within a period of 15 days. After considering the response received from the Chief Minister, the MHA may issue the orders for posting of Chief Secretary/Administrator/Director General of Police. In case no response is received within a period of 15 days, the MHA may decide the matter at its own level. The transfer and posting of other officers may be decided at the level of Home Secretary, except in the case of Junior Scale Officers whose transfer and posting may be decided by Joint Secretary (UT). As can be seen from aforementioned para 9, the transfer and posting of other officers may be decided at the level of Home Secretary, except in the case of Junior Scale Officers whose transfer and posting may be decided by Joint Secretary (UT). Thus, the Joint Secretary (UT) is even competent to order transfer and posting of the Members of IAS/IPS, i.e. the services superior to DANIPS. Once the Joint Secretary (UT) can exercise the power to transfer and posting of the Member of IAS/IPS in AGMU cadre, it would lead to anomalous situation to declare him bereft of such power in respect of Members of DANIPS. In Jayantilal Amratlal Shodhan Vs. F.N.Rana (AIR 1964 SC 648), it is held that where a general order is issued even by an executive authority which confers power exercisable under a statute, and which thereby in substance modifies or adds to the statute, such conferment of powers must be OA 2367/2012 regarded as having the force of law. Para 17 of the judgment reads as under:-
17. In this connection we may refer to the decision of this Court in The Edward Mills. Co. Ltd., Beawar v. State of Ajmer, (1955) 1 SCR 735 : ( (S) IR 1955 SC 25) which illustrates the view which we have expressed. It was held in the Edward Mills case. (1955) 1 SCR 735 : ( (S) IR 1955 SC 25) that an order made under S. 94(3) of the Government of India Act, 1935, was notwithstanding the repeal of the Government of India Act, 1935, by Art. 395 of the Constitution, law in force. By S. 94 (3) of the Government of India Act, 1935, a Chief Commissioner's Province had to be administered by the Governor-General acting to such extent as he thinks fit through the Chief Commissioner to be appointed by him in his discretion. On March 16, 1949, the Central Government issued a notification in exercise of its powers under S. 94(3) of the Government of India Act. 1935, directing that the functions of the appropriate Government under the Minimum Wages Act. 11 of 1948, would in respect of every Chief Commissioner's Province be exercised by the Chief Commissioner. After the commencement of the Constitution the Chief Commissioner of Ajmer purporting to act as the appropriate Government published a notification in terms of S. 27 of the Act of his intention to include "employment in the textile mills" as an additional item in Part I of the Schedule, and issued the final notification directing that "the employment in textile industry" be added in Part I of the Schedule. The validity of the orders of the Chief Commissioner was challenged on the ground, among other that the order of the Governor-General under S. 94(3) of the Government of India Act was not "law in force" within the meaning of Art. 372 of the Constitution. It was urged that without delegation of fresh authority by the President under Art. 239 of the Constitution, the Chief Commissioner of Ajmer was not competent after the enactment of the Constitution to function as the appropriate Government under the Minimum Wages Act and therefore all steps taken by the Chief Commissioner under the provisions of the Act including the issue of the final notification fixing the minimum rates of wages for the employment in the textile mills in the State of Ajmer was illegal and ultra vires. The question which therefore fell to be determined in the Edward Mills' case, (1955) 1 SCR 735 : (AIR 1955 SC 25) was whether the order made by the Central Government under S. 94 (3) of the Government of India Act 1935, could be regarded as "law in force" within the meaning of Art. 372 of the Constitution. It was urged that an order may fall within the definition of existing law but it cannot be included within the expression "law in force" in Art. 372 of the Constitution. Mukherjea J. speaking for the Court in that case observed that there was no distinction between the expression "existing law" used in Art. 366(1) and the expression "law in force" occurring in Art. 372 of the Constitution that the words "law in fore" as used in Art. 372 are wide enough to include not merely a legislative enactment but also a regulation or order which has the force of law, and that an order made by the Governor-General under S. 94(3) investing the Chief Commissioner with authority to administer a province, is really OA 2367/2012 in the nature of a legislative provision, which defines the rights and power of the Chief Commissioner in respect of that province falls within the purview of Art. 372 of the Constitution and being "law in force" immediately before the commencement of the Constitution continues to remain in force under cl. (1) of the Article. In our view, the Edward Mills' case, (1955) 1 SCR 735 : ( (S) AIR 1955 SC 25) strongly supports the conclusion that the notification issued by the President conferring authority upon the Commissioner to exercise the powers of the appropriate Government in the matter of land acquisition under the Land Acquisition Act has the force of law because even though issued by a executive authority, Courts are, if challenged, bound to recognise and give effect to the authority conferred by the notification. We see no distinction in principle between the notification which was issued by the Governor-General in Edward Mills' case, (1955) 1 SCR 735 : ( (S) AIR 1955 SC 25) and the notification with which we are dealing in this case. This is not to say that every order issued by an executive authority has the force of law. If the order is purely administrative, or is not issued in exercise of an statutory authority it may not have the force of law. But where a general order is issued even by an executive authority which conferes power exercisable under a statute, and which thereby in substance modified or adds to the statute, such conferment of powers must be regarded as having the force of law. In the aforementioned legal and factual backdrop, it is held that Joint Secretary (UT) is competent to exercise the power of the Government under Rule 13 of National Capital Territory of Delhi, Admaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra & Nagar Haveli (Police Service) Rules, 2003 and can transfer member of DANIPS, irrespective of their grades.
7. It was next contended by Mr. A.K.Behera, learned counsel for applicants that in view of the provision of Rule 2 (j) read with Schedule 1 thereto, the applicants being in JAG Gr.I (Group A) are not transferable outside NCT of Delhi, i.e. to outlying segment. Rule 4 of said Rules provided that duty post included in the various grade, their number and scale of pay on the date of commencement of these rule shall be as prescribed in Schedule 1 in terms of s which 10 % and 20 % of the sanctioned strength of the posts in the service need to be non-functional grade of JAG Gr. I and selection grade respectively and ought to be operated within the respective number of posts in Part B and C of the Schedule. Rule 4 (2) permits the temporary additions or alterations to the duty posts in various grades from time to time. Schedule I (see Rule 4 (1) only gives the break up of various duty posts, i.e. their name, number and scale of pay. It no where indicates that the Member in JAG Gr.I and II are not transferable to outlying segment. Learned counsel appearing for applicant has made attempt to draw force from the details of the posts given in various parts of the said Schedule. According to him, the posts mentioned in Part B, i.e. JAG Gr. I and II can be manned in Delhi only and these are the posts in entry grade and selection grade which are meant in Govt. of NCT of Delhi as well as in outlying segment. The Schedule I (See 4 (1) attached to Notification (Rules) dated 6.08.2003 was modified in terms of G.S.R. 403 (E) dated 11.06.2009. As is mentioned in the said GSR, total sanctioned strength of DANIPS is 434 with the following breakup.
B Sanctioned strength (1) Specific posts under Government of the 315 National Capital Territory of Delhi.
(2) Specific posts under Andaman and 10Nicobar Islands Administration.
Specific posts under Lakshadweep 1Administration.
Specific posts under Daman and Diu 2Administration.
Specific posts under Dadra and Nagar 1Haveli Administration.
(6) Deputation, Leave and Training Reserve 105
434
As per amended Schedule of posts, total sanctioned strength in JAG Grade 1 and JAG Gr. II is 54 with the following breakup:
Part B Posts in the Junior Administrative Grade I and Junior Administrative Grade II Posts under Government of the National Capital Territory of Delhi.
OA 2367/2012
Additional Deputy Commissioner of Police
(Indian Reserve Battalion) 15
Additional Deputy Commissioner of Police
(Delhi Armed Police Battalion) 10
(iii) Additional Deputy Commissioner of Police
(District Headquarters) 13
(iv) Additional Deputy Commissioner of Police
(Crime and Railway) 2
(v) Vice-Principal, Police Training College 1
(vi) Additional Deputy Commissioner of Police
(Police Control Room) 2
(vii) Additional Deputy Commissioner of Police
(Provision and Lines) 1
(viii) Additional Deputy Commissioner of Police
(Special Branch) 1 (ix) Additional Deputy Commissioner of Police
(Traffic) 2
(x) Additional Deputy Commissioner of Police
(Vigilance) 2
(xi) Additional Deputy Commissioner of Police
(Licensing) 1
(xii) Additional Deputy Commissioner of Police
(Special Task Force)
(xiii) Additional Deputy Commissioner of Police 2
(Economic Offences Wing)
(xiv) Additional Deputy Commissioner of Police
(Crime against Women Cell) 1
Total 54
From the said Schedule it can be inferred that most of the duty post to be meant by the officers in JAG Gr.I and JAG-Gr.II level are in NCT of Delhi and the post in outlying segment are to be manned by the officers in entry grade or selection grade. However, the said Schedule cannot be made basis to arrive at conclusion that the member of the DANIPS in JAG Gr.I or II cannot be posted to outlying segment at all. In terms of OM dated 19.02.2010, the Joint Secretary (UT) is competent to take final view in the matter of posting and transfer of DANI Civil and Police Service in JAG Gr. I and above grades. As has been held hereinabove, such power is exercisable by him to allocate a member of the service to any administration for posting in terms of Rule 12. The posting of DANIPS officer within administration in terms of Rule 12 is to be regulated by the administrator only. Besides, as is indicated in Rule 4 OA 2367/2012 the Government may from time to time make temporary addition and alteration to the duty posts in various grades. Also in terms of guidelines dated 10.02.2009 (Annexure A-9 annexed to OA 2367/2012), the DANIPS officers are liable to be transferred from one Union Territory to another. Said policy does not make any exception in respect of officers in JAG Grade. Relevant excerpts of said policy/guidelines for transfer/posting of DANICS/DANIPS officers read as under:-
The Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services (DANICS) and Delhi Andaman and Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Police) Services (DANIPS) provide officers to administer the Civil and Police Administration, respectively, of the Union Territory segments i.e. Delhi Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli ( to be categorized hereinafter as Delhi and the outlying segments comprising the remaining UT segments). DANICS and DANIPS officers are liable to be transferred from one Union Territory to the other.
2. It has to be ensured that no constituent segment serviced by the Cadre remains starved of Cadre officers and that onus to serve in the constituents outside Delhi and also in Delhi is shared among the officers equitably. In the interest of cadre management and transparency in transfer/posting of the DANICS/DANIPS officers, following guidelines for transfer/ posting of DANICS/DANIPS officers are framed.
(i) The tenure of the DANICS/DANIPS officers in the outlying segments will be as follows:
The promotee DANICS/DANIPS officers will have to serve in one of the outlying segments for a minimum period of 2 years. The direct recruit officers are required to serve in the outlying segments in two spells- the first spell will be of minimum 3 years and the second will be of minimum 2 years. However, the number of stints and duration in outlying segments may vary subject to availability of suitable officers. In the circumstances the contention of the applicant that DANIPS officer in JAG Gr.I are not transferable from one administration to another or out of NCT is negated. However, the fact that in terms of Schedule 1 ( See Rule 1) which suggests that most of the duty post in JAG Gr.I or II are in Delhi and in practice the DANIPS officer in said grade are not normally posted to outlying segments need to be considered by the OA 2367/2012 competent authority in the helm of affairs to take best decision keeping in view the interest of administration and welfare of individual employee as well.
8. A power can be said to be exercised for collateral purpose, when it is exercised to achieve an object other than what for which it is conferred. In the present case, learned counsel appearing for applicant submitted that it is not so that the Chief Secretary Andaman & Nicobar administration, Administrator of Lakshadweep administration and Administrator of Daman & Diu Administration needed services of DANIPS officers in JAG Grade, but it is the Section Officer who asked for requirement of DANIPS officers for posting to ex-cadre posts in the outlying segment administered by them. However, it is not so that such requirement explored by Ministry of Home Affairs received negative response. As has been held explained in counter reply filed on behalf of respondents (i) The DD&DNH administration vide his letter dated 23.06.2012 had sent requirement of 2 JAG level officer of DANIPS, (ii) the Lakshadweep administrator vide its letter dated 22.03.2012 had requested that in view of coastal security upgradation in the light of Somalian pirates etc., 5 DANIPS officers were required to be earmarked for Lakshadweep; and (iii) the A&NI administration vide its letter dated 22.06.2012 had sent requirement of DANIPS at various levels. Thus it was only in view of requirement of various outlying segment that the transfer of applicant is ordered by Joint Secretary (UT). The applicants have not produced any material on record to establish that the object to be achieved by respondents by transferring them out is not in the interest of administration and exigency of service, but some other object. Mere writing of a letter by Ministry of Home Affairs to concerned Chief OA 2367/2012 Secretary/Administrator in outlying segment cannot be accepted as conclusive evidence to accept the plea of collateral purpose.
9. Normally the order of transfer on administrative grounds cannot be questioned as vitiated by bias. Very recently in Registrar General, High Court of Judicature of Madras Vs. R.Perachi & Ors. (2011) 12 SCC 137), Honble Supreme Court held that transfer is an incident of service and one cannot make a grievance if a transfer is made on administrative ground. Relevant excerpts of said judgment read as under:-
22. In the context of transfer of a government servant we may refer to the dicta of this Court in N.K.Singh v. Union of India (1994) 6 SCC 98) where this Court observed in AIR para 22 as follows:-
23 Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in pubic interest, to the departmental heads subject to the limited judicial scrutiny indicted.
23. In State of M.P. v. S.S.Kourav the Administrative Tribunal had interfered with the transfer order of the respondent and directed him to be posted at a particular place. It is relevant to that while setting aside the order of the Tribunal this Court observed in para 4 of its judgment as follows:
4.The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual OA 2367/2012 background or foundation. In this case, we have seen that on the administrative grounds the transfer came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
31. As seen above, the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances the decision of the then Chief Justice to transfer him outside that district could not be faulted. In State of UP and others Vs. Gobardhan Lal (2004 (11) SCC 402), it is held that the transfer of an employee is not only an incident in-herent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or condi-tions of service. In the said case it was further held that challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are appellate authorities over such orders. Paras 7 and 8 of the judgment read as under:-
7. It is too late in the day for any Gov-ernment servant to contend that once ap-pointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident in-herent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or condi-tions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statu-tory provision (an Act or Rule) or passed by an authority not competent to do so, an or-der of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulat-ing transfers or containing transfer policies at best may afford an opportunity to the of-ficer or servant concerned to approach their higher authorities for redress but OA 2367/2012 cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the offi-cial status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emolu-ments. This Court has often reiterated that the order of transfer made even in trans-gression of administrative guidelines can-not also be interfered with, as they do riot confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tri-bunals as though they are Appellate Authori-ties over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribu-nals cannot substitute their own decisions in the matter of transfer for that of compe-tent authorities of the State and even alle-gations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjec-tures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. In Gujarat Electricity Board v. Atmaram Poshani (AIR 1989 SC 1433), Honble Supreme Court viewed that the transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and for efficiency in the public administration. Para 4 of the said judgment reads as under:-
4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is OA 2367/2012 open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.
The said view was reiterated in UOI v. H.N.Kirtania ( 1989 (3) SCC 445), State of UP and Ors V. Gobardhan Lal with D.B. Singh v. D.K.Shukla and Ors ( 2004) 11 SC 402) and K.N.Bhardwaj v. LIC (WP (C) No.4422/2008 decided on 3.12.2010). In Shanti Kumari Vs. Regional Deputy Director, Health Services, Patna Division, Patna and Ors (1981) 2 SCC 72), it s held that the transfer of a Government servant may be due to exigencies of service or due to administrative reason. The Court cannot interfere in such matters. Para 2 of the judgment reads as under:-
2. Having heard learned counsel for the parties, we are of the opinion that the High Court rightly declined to interfere with the impugned order. Transfer of a Government servant may be due to exigencies of service or due to administrative reason. The Courts cannot interfere in such matters. Shri Grover, learned counsel for the appellant, however, contends that the impugned order was in breach of the Government instructions with regard to transfers in the Health Department. If that be so, the authorities will look into the matter and redress the grievance of the appellant. In view of the law laid down by Honble Supreme Court as above, the order of transfer cannot be interfered lightly.
10. As far as the decision of Honble Supreme Court in the case of Parkash Singh and Others Vs. Union of India and others ( 2006) 8 SCC 1) relied upon by learned counsel for applicant is concerned, in the said case, Honble Supreme Court suggested that there should be a OA 2367/2012 Police establishment board in each State which shall decide all transfers, postings, promotions and other service related matters of officers below the rank of Deputy Superintendent of Police. Relevant excerpts of the judgment reads as under:-
Police Establishment Board.
There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also be authorized to make appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotion/transfer/disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.
The board as suggested above when constituted, can regulate the transfer and posting within the State only. The situation in the present case is not such. The issue involved is not the transfer of the applicant within a particular Union Territory or within Govt. of NCT of Delhi only. In view of the constitution of the cadre of DANIPS, they are transferable from one Union Territory to another Union Territory. The Chief of Police in said territories is different. Undisputably, Union Territories are administered by Central Government through Ministry of Home Affairs. Thus ideally it is Ministry of Home Affairs alone which can regulate the transfer and posting of members of DANIPS.
11. It is noted hereinabove that the Joint Secretary (Pers) Administration of Daman & Diu, Department of Personnel & Administrative Reforms, Secretariat, Daman had written a letter on OA 2367/2012 22.03.2012 to Section Officer, Government of India, Ministry of Home Affairs informing him that the said UT administration does not have any ex-cadre post to officiate the DANIPS Officer. Further in terms of letter No.1/364/96-PER/Part.II/439 dated 16.05.2011 (Annexure A-5 to OA 2367/2012) the said administration informed the Joint Secretary (UT), Government of India, Ministry of Home Affairs that the administration faces difficulty in payment of salary to the JAG level DANIPS officers. Reliance is also placed on behalf of applicant on letter No. U-14014/1/2004-ANL dated 1.11.2010 to buttress the plea that the DANIPS officer in JAG Gr. I and II are not required in outlying segment. But again these are the issues not open for the Court or Tribunal to examine. It is for the competent authority to take a view regarding utilization of the services of the employee/officer subjected to its command and control. In the circumstances, the interference with the impugned orders is declined. However, it is directed that before said orders are implemented, the Secretary, Ministry of Home Affairs would examine and consider the factual position, i.e. (i) the transfer and posting of DANIPS officer in JAG Grade I and II to outlying segment is not routine and normal phenomenon, (ii) in terms of letter No.1/364/96-PER/Part.II/439 dated 16.05.2011 and letter dated 22.03.2012 (Annexure A-5 and A-6 to OA 2367/2012) the administration of Daman & Diu, Department of Personnel and Administrative Reforms has expressed that the said administration had no ex-cadre post meant to be officiated by DANIPS officers and it is difficult for the administration to pay the salary to the JAG level of DANIPS officer and (ii) letter dated 1.11.2010 (Annexure A-5 to OA 2368/2012) wherein it is indicated that the Ministry of Finance ( Department of Expenditure) had not agreed to the proposal of Lakshadweep administration for creation of post of OA 2367/2012 Additional Superintendent of Police under said administration. Outcome of such consideration would be communicated to applicants.
Subject to aforementioned, OAs stand disposed of. No cost.
( A.K.Bhardwaj) Member (J) sk