Central Administrative Tribunal - Jodhpur
Hanumana Ram vs Forest And Environment on 18 October, 2023
1 (OA No.290/00313/2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00313/2023
Pronounced on : 31.10.2023
Reserved on : 18.10.2023
CORAM
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE DR. AMIT SAHAI, MEMBER (A)
Hanumana Ram S/o Shri Thakur Ram, aged about 55 years, R/o
151, Laxmi Vihar Colony, Near Madhuban, Jodhpur.
.......Applicant
By Advocate: Mr. Manish Parihar along with Mr. Joginder
Bharti.
Versus
1. Union of India through Secretary, Ministry of Environment,
Forest & Climate Change, Indira Paryavaran Bhawan, Jor Bagh
Road, Jor Bagh, New Delhi-110003.
2. The Additional Chief Secretary, Forest, Environment and
Climate Change, Government of Rajasthan, Jaipur, Rajasthan-
302006.
3. The Principal Secretary, Department of Personnel,
Government of Rajasthan, Government Secretariat, Jaipur,
Rajasthan-302006.
4. The Principal Chief Conservator of Forest (Head of Forest
Force), Rajasthan-Aranya Bhawan, Jhalana Institutional Area,
Jaipur, Rajasthan-302001.
5. Sunil S/o Unknown aged about 41 years at present posted at
Conservator of Forest (Monitoring and Evaluation), Bikaner
(Raj.)-334001.
........Respondents
By Advocate: Mr. K.S. Yadav (R-1), Mr. Kamal Dave (R-2 to R-4),
Mr. Ramit Mehta along with Ms. Lata Jain (R-5).
2 (OA No.290/00313/2023)
ORDER
Hon'ble Mr. Justice Rameshwar Vyas, Member (J)
1. Being aggrieved by the impugned transfer order dated 26.08.2023 (Annexure A/1), whereby the applicant has been transferred from the post of Chief Conservator of Forest, Bikaner to the post of Chief Conservator of Forest, Ajmer and the respondent no.5, Mr. Sunil, Conservator of Forest (Monitoring and Evaluation), Bikaner, was given additional charge of Chief Conservator of Forest, the applicant has preferred this Original Application challenging the transfer order so far as it relates to the applicant and respondent no.5.
2. Facts of the case in brief are as under:-
The applicant is a member of the Indian Forest Service (IFoS), 2005. He was promoted from the post of Conservator of Forest (Wildlife), Jodhpur to the post of Chief Conservator of Forest (Wildlife), Jodhpur vide order dated 20.06.2023 (Annexure A/3).
Thereafter, vide order dated 07.08.2023 (Annexure A/4), he was again transferred from the post of Chief Conservator of Forest (Wildlife), Jodhpur, Rajasthan to the post of Chief Conservator of Forest, Bikaner, pursuant to which he joined at Bikaner on 09.08.2023. It is pertinent to mention here that vide the same 3 (OA No.290/00313/2023) order dated 07.08.2023, the respondent no.5 Mr. Sunil was transferred from the post of Conservator of Forest (Monitoring and Evaluation), Bikaner to the post of Conservator of Forest, Pali. Vide impugned order dated 26.08.2023 (Annexure A/1), the respondent no.5 was again posted at Bikaner as Conservator of Forest (Monitoring & Evaluation), in suppression of his previous order to Pali with giving him additional charge of the post of Chief Conservator of Forest which the applicant was holding since 09.08.2023. The impugned transfer order was issued during the period when the applicant was under Mid Cadre Training (MCT) Programme from 14.08.2023 to 01.09.2023, after handing over the charge of his post to respondent no.5 Mr. Sunil, Conservator of Forests (M&E), Bikaner, before proceeding for training.
It is the case of the applicant that the applicant has been transferred with a view to accommodate respondent no.5 and the transfer order was not made in public interest. The respondent no.5 was holding the post of Conservator of Forest (M&E), which requires at least 18 years of service for promotion to the post of Chief Conservator of Forest, meaning thereby, he has to work for more than 4 years to be eligible for promotion as Chief Conservator of Forest. It is averred that within a period of two months, the applicant has been transferred thrice, therefore, the 4 (OA No.290/00313/2023) need arose to challenge the impugned order dated 26.08.2023 (Annexure A/1) before the Tribunal. The order has been passed in gross violation of the provisions contained under notification dated 28.01.2014 (Annexure A/8) whereby the Indian Forest Service (Cadre) Amendment Rules, 2014 came into force.
As per Rule 7 (3) of the Amendment Rules, 2014, "A cadre officer appointed to any cadre post shall hold office at least 2 years unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding 2 months." Vide impugned order the applicant has been transferred within a period of one month after joining at Bikaner which is against the provisions of the Forest Service Rules.
3. In the present matter, the impugned order is not in consonance with the Indian Forest Service Rules as also with the principles laid down by the Hon'ble Apex Court in various judgments including the judgments rendered in the matter of T.S.R. Subramanian & Ors. Vs. Union of India and Ors. in Writ Petition (Civil) No.82/2011 and in the matter of Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar, (2017) 5 SCC 496.
With the above case, the applicant has prayed for setting aside the impugned transfer order dated 26.08.2023 (Annexure 5 (OA No.290/00313/2023) A/1) qua the applicant and the private respondent no.5.
4. In the preliminary reply filed on behalf of respondents no.2 to 4, it is averred that the impugned order has already been carried out. Relying on the judgment passed by the Hon'ble Supreme Court in the case of Gujarat Electricity Board Vs. Atma Ram Sugnomal Poshni, (1989) 2 SCR 357, it is averred that no employee has indefeasible right to remain at one place of posting and also that transfer is incidence of service. It is also the reply of the respondents that even if a transfer order is passed in violation of executive instructions or order, the Court ordinarily should not interfere with the order instead, affected party should approach higher authority. It is also averred that transfer on administrative ground or public interest are not open to courts or tribunal interference unless malafide, illegal or in violation of statutory rules.
5. In the reply filed on behalf of private respondent no.5, it is averred that transfer of State employees is within the exclusive domain of the executives. No interference should be done with orders passed in the interest of administrative exigencies. It is the reply of the respondents that posting at a particular location cannot be claimed as a matter of right and in the absence of any cogent material on record evincing mala fides on the part of the 6 (OA No.290/00313/2023) respondent authorities, the present application is nothing but a bundle of bald averments, which ought to be dismissed by this Tribunal in limine. It is the case of the respondents that the applicant has not availed the alternate remedy available for redressal of his grievances. In this regard, he placed reliance on the provisions of Section 20 of the Administrative Tribunals Act, 1985. While denying the violation of Rule 7(3) of the Indian Forest Service (Cadre) Amendment Rules, 2014, it is the case of the respondents that it is not the applicant alone, who has been transferred thrice as there are many officials who have been transferred thrice vide orders dated 20.06.2023, 07.08.2023 and 26.08.2023. The applicant also referred the filing of S.B. Civil Writ Petition No.13552/2023 before the Hon'ble Rajasthan High Court, Jodhpur as also one OA No.495/2023 filed before the Central Administrative Tribunal, Jaipur, and, DB Civil Writ Petition No.15365/2023 filed before the Hon'ble Rajasthan High Court, Jodhpur. While referring above, it is the case of the respondent that applicant is forum hunter. The respondent defended the transfer order on the ground that on account of paucity of the available officers of IFS cadre it became necessary for the State to handover charge of the post of Chief Conservator of Forest to the Conservator of Forest.
7 (OA No.290/00313/2023)
It is the reply of the respondents that on his transfer to Pali, the competent authority taking cognizance of his grievance posted him back to the post of Conservator of Forest-cum-Chief Conservator of Forest, Bikaner, and, in compliance of the above order, the respondent no.5 assumed the charge of Conservator of Forest-cum-Chief Conservator of Forest, Bikaner on 27.08.2023. If transfers and postings are to be declared illegal for want of recommendation of a Civil Services Board, this would render all postings and transfers of Forest Cadre Officers in Rajasthan illegal, including applicant's Bikaner posting orders also, which have been issued also apparently in disregard of these rules. It is also averred that the applicant is a habitual litigant and doing forum hunting practice which is unethical and professional misconduct. While by way of elaborate submissions made in the reply, the respondents prayed to dismiss this OA.
6. Heard learned counsel for the parties and perused the material available on record as also the written submissions filed by both the counsels.
7. Learned counsel for the applicant contended that impugned transfer order is in violation of Statutory Rules. It is also not in the public interest. The applicant has been transferred within a period of one month with a view to accommodate respondent no.5. 8 (OA No.290/00313/2023)
It is the submission of the learned counsel for the applicant that the observations made by Jaipur Bench of this Tribunal in the order dated 16.02.2021 in the matter of Ashok Kumar Mahariya Vs. UOI regarding non constitution of Civil Service Board are just passing remarks and has no precedential value. It is further submitted that there is no absolute bar to approach the tribunal without exhausting remedies available at department level. When the impugned transfer order was passed, the applicant was undergoing an official training from where he posted a representation to the respondent authority which has not been decided till date. It is further contended that private respondent tried to mislead this Bench by stating that the applicant is habitual litigant.
8. On the contrary, learned counsel for respondents no.2 to 4, Mr. Kamal Dave, submitted that in view of the judgment passed by the Central Administrative Tribunal, Jaipur, in OA No.325/2020 in the matter of Ashok Kumar Mahariya Vs. UOI & Ors., the applicant cannot challenge the transfer order on the ground of non constitution of Civil Services Board. It is also contended that the applicant without waiting for decision on his representation, approached this Tribunal. He also contended that before approaching this Tribunal, the applicant tried unsuccessfully to 9 (OA No.290/00313/2023) invoke the jurisdiction of Hon'ble Rajasthan High Court as also Central Administrative Tribunal, Jaipur. The applicant has no vested right to remain on a particular post. Transfer is prerogative of the Government. Therefore, learned counsel for the respondents prayed to dismiss this OA.
9. Learned counsel for private respondent no.5 argued that in view of the provisions of Section 20 of Administrative Tribunals Act, 1985, the applicant is not entitled to avail the legal remedy without waiting for decision on the representation filed by him on 27.08.2023 which was delivered to the office of respondents on 07.09.2023. It is the case of the respondents that applicant has not challenged the action of the respondents in not constituting the Civil Services Board. It is also submitted by learned counsel for the respondents that on account of paucity of officers in the rank of IFoS, the additional charge has been given to the persons holding the post of Conservator of Forest. The applicant did not challenge his previous transfer order from Jodhpur to Bikaner. Therefore, he cannot challenge transfer from Bikaner to Ajmer.
10. It is also contended by learned counsel for the respondents that there are a large number of decisions by the Hon'ble Apex Court where it has been made clear that the officers serving with the Government should be prepared to work where they are posted 10 (OA No.290/00313/2023) and the transfers should not be interfered by the Courts/Tribunals unless there is a clear evidence of bias, extraneous considerations or violation of rules and guidelines. Though there is an apparent, general violation of rules, it is not specific only to the applicant. The applicant has not shown any convincing reason to lead to any suspicion of bias or malice.
It is also contended that as per submission made by learned counsel for the respondents that the action of the applicant in invoking the wrong jurisdiction is known as "forum shopping"
which is unethical.
11. The stay order in favour of Mr. Sharda Pratap Singh was obtained on the strength of the interim order passed in the matter of Rajiv Choudhary which OA was already dismissed on 11.08.2022. It is also contended by learned counsel that after decision in the matter of Ashok Kumar Mahariya (supra), the applicant cannot say that in the absence of recommendations of Civil Services Board (CSB), the transfer order is in violation of rules. Therefore, counsel for the respondents prayed to dismiss this OA.
12. Having regard to the rival submissions made by learned counsel for the parties and perusal of the material available on 11 (OA No.290/00313/2023) record it reveals that on promotion from the post of Conservator of Forest to the post of Chief Conservator of Forest, the applicant was posted as Chief Conservator of Forest (Wildlife) Jodhpur on 20.06.2023. Thereafter within a period of two months, he was transferred from the post of Chief Conservator of Forest (Wildlife) Jodhpur to Chief Conservator of Forest Bikaner to which did not make any grievance. After joining at Bikaner, he was undergoing Mid Career Training (MCT) from 14.08.2023 at Dehradoon in compliance of the order issued by DoP. Before proceeding for training he handed over the charge of post of Chief Conservator of Forest, Bikaner to respondent no.5 Mr. Sunil, who was at the time under transfer from the post of Conservator of Forest (Monitoring and Evaluation) Bikaner to the post of Conservator of Forest, Pali. Vide impugned order, the applicant was transferred to the post of Chief Conservator of Forest, Ajmer. It is pertinent to note that one Mr. Sharda Pratap Singh vide same order was transferred from the post of Conservator of Forest, Ajmer to Conservator of Forest, Pali in place of respondent no.5 Mr. Sunil and the transfer order dated 07.08.2023 qua the private respondent no.5 Mr. Sunil from the post of Conservator of Forest, Bikaner to Conservator of Forest, Pali was not replaced. Mr. Sharda Pratap Singh, got an interim stay order in his favour by Jaipur Bench of this Tribunal vide order 12 (OA No.290/00313/2023) dated 08.09.2023 in OA No.477/2023. It is pertinent to note vide same transfer order dated 26.08.2023, Mr. Sunil was accommodated at Bikaner. Additionally, he was given charge of the post of Chief Conservator of Forest, Bikaner which is impugned herein.
13. It is not in dispute that the applicant is in the rank of Chief Conservator of Forest, whereas respondent no.5 is in the rank of Conservator of Forest. It is also not in dispute that vide impugned transfer order, the applicant was transferred within 20 days of his joining at Bikaner as Chief Conservator of Forest. It is also not in dispute that no special reason has been disclosed for transferring him within a short period of one month. Though the impugned order says this transfer is in the public interest, however, the respondent State failed to indicate any public interest which would be served in the transferring senior officer within a period of one month. Rule 7(3) of Indian Administrative Service (Cadre) Amendment Rules, 2014 provides that a cadre officer, appointed to any cadre post shall hold office for at least two years unless in the meantime, he/she has been promoted, retired or sent on deputation outside the State or training exceeding two months. In the present case, the applicant has been transferred within a period of one month not on account of the situation mentioning 13 (OA No.290/00313/2023) above. It is true that the applicant cannot challenge the legality of the transfer on the ground of absence of recommendations of Civil Services Board since the same has not been constituted. However in view of the statutory provisions for tenure posting of two years, frequent transfers should be avoided unless it is in the public interest to do so. It is also true that the State has every right to decide the place of posting of the officers of the cadre, yet the State is supposed to act in just and reasonable manner, keeping in view the public interest in mind. We are of the view that frequent transfer cannot be construed in public interest when made without any cogent reason. In the present matter sequence of the events inspires that impugned transfer order qua the applicant and the respondent no.5 was issued with a view to accommodate the respondent no 5 who was under transfer from Bikaner to the post of Conservator of Forest, Pali, at the time of receiving the charge from the applicant at the time of his proceeding for training. When the applicant was under training ,vide impugned order, the respondents 5 was not only accommodated at Bikaner on the post of Conservator of Forest (Monitoring and Evaluation), Bikaner, but he was also given additional charge of the post of Chief Conservator of Forest, which the applicant was holding before proceeding for training. It is not in dispute that at present the 14 (OA No.290/00313/2023) private respondent no.5 is not eligible for regular posting on the post of Chief Conservator of Forest. He is junior to the applicant. By saying so we are not disputing the authority of the State for giving additional charge, of the post of Chief Conservator of Forest to an officer holding the post of Conservator of Forest. We want to say that such type of arrangement should not undermine the basic principles of natural justice as also the statutory requirement of completion of tenure posting. The action taken by the respondent by issuing the impugned order suggests that the competent authority acted not in a just and reasonable manner while transferring the applicant within a period of 20 days from the date of his joining at Bikaner. It is true that it is the prerogative of the State to make transfer in public interest prior to completion of tenure posting yet the same must not be made with a view to favour a particular officer by way of making frequent transfer of others. In case of T.S. Subramanian & Ors. Vs. Union of India & Ors. in Writ Petition (Civil) No.82/2011, the Hon'ble Apex Court has observed as under:-
"We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective 15 (OA No.290/00313/2023) instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritize various social and economic measures intended to implement for the poor and marginalized sections of the society."
In the present matter, the respondents did not disclose any public interest which will be fulfilled by transferring senior officer within a period of one month by giving additional charge to a junior officer. It is true that the applicant has no right to remain on particular post, however, same principle apply to respondent no.5, who cannot say on behalf of the State that the decision to give additional charge has been taken on account of paucity of officers. It is the prerogative of the State to make arrangement looking to the availability of officers, however, while making so arrangement, the respect and dignity of senior officers of All India Services should not be shacked by frequently transferring them without disclosing any reason.
14. Learned counsel for the respondents during arguments argued that interim order dated 08.09.23 obtained by Mr Sharda Prasad from Jaipur Bench in OA 477/23 relying on the interim order passed in the matter of Rajiv Choudhary's case (OA no 56/19) which was already dismissed by the Jaipur bench on 11.08.2022.
The above argument is totally irrelevant for deciding the 16 (OA No.290/00313/2023) issue involved in the present matter hence rejected. We cannot be guided by any interim order made in the matter of other Forest Officer.
So far as, the contention of the learned counsel for the respondent no.5 to the effect that the applicant is habitual litigant and also Forum hunter, record reveals that after issuance of the transfer order, the applicant directly approached the Hon'ble High Court of Rajasthan, Jodhpur by filing a Civil Writ Petition No.13552/2023, and the same was dismissed as withdrawn with liberty to approach the Central Administrative Tribunal. Thereafter the applicant approached Jaipur Bench of this tribunal. Order sheet dated 15.09 .2023 reveals that the above OA was withdrawn with liberty to file it before appropriate forum. Record also discloses that after failing to obtain interim relief from this Bench, the applicant filed DB Writ Petition before Hon'ble Rajasthan High Court which was disposed of by directing this tribunal to decide the OA at the earliest. Learned counsel for the private respondent termed the above litigation as forum hunting. It is true that the applicant was not right in directly availing the writ jurisdiction, however, in the facts and circumstances of the matter, we cannot term the action of the applicant as forum hunting and reject the otherwise genuine, claim of the applicant on this count alone. The 17 (OA No.290/00313/2023) respondents did not produce any other evidence in support of his allegation that the applicant is a habitual litigant. Record reveals that it is the second instance of challenging the transfer order which does not make him habitual litigant.
So far as, the contention of the learned counsel for the respondents that the applicant has not exhausted the available remedy before approaching this Tribunal, it reveals the applicant made a representation on the very next date of issue of his transfer order which was not decided by the respondent. In transfer matters one cannot wait for long for decision on his representation. There is no absolute bar in provisions of section 20 of the Central Administrative Tribunal 1985 in approaching the Tribunal without exhausting the remedy available to the applicant. Therefore, this OA cannot be rejected on the ground of approaching this Tribunal without waiting for decision on the representation made by him.
15. Balance of convenience also lies in favour of the applicant .In case of allowing the OA the respondent would not be disturbed from Bikaner whereas in case of rejecting the OA the applicant has to move to Ajmer.
16. The other objections raised by learned counsel for the 18 (OA No.290/00313/2023) respondent no.5 are also rejected as not substantial.
17. Consequently, the impugned transfer order dated 26.08.2023 (Annexure A/1) qua the applicant and respondent no.5 is liable to be quashed and set aside, therefore, the same is quashed and set aside. The respondents are directed to permit the applicant to assume the post of Chief Conservator of Forest, Bikaner, immediately. The respondents are also directed to regularize the period from 01.09.2023 till his joining at Bikaner on the post of Chief Conservator of Forest.
(AMIT SAHAI) (RAMESHWAR VYAS) MEMBER (A) MEMBER (J) sv