Central Administrative Tribunal - Mumbai
Vidya Shree Bharti vs Icar on 8 May, 2025
1 OA.612/2024
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH,
MUMBAI.
ORIGINAL APPLICATION NO.612/2024
Dated this Thursday the 8th day of May, 2025
Coram: Hon'ble Mr.Shri Krishna, Member (Administrative).
Ms.Vidya Shree Bharti,
Age 46 years, presently residing at
B-1706, Vasundhara CHS, Building No.6,
Shastri Nagar, Goregaon West,
Mumbai - 400 104,
Mobile : 7666143790
Email: [email protected] .. Applicant.
( By Advocate Shri M.V. Thorat )
Versus
Indian Council of Agricultural Research (ICAR) -
Central Institute of Fisheries Education (Deemed University),
through its Director.
Address: Panch Marg, Off Yari Road, Versova,
Andheri West, Mumbai - 400 061.
Tel. No.: 022-26361446
Email.Id: [email protected] .. Respondents
( By Advocate Dr. V.B. Joshi )
Order reserved on : 04.02.2025
Order pronounced on: 08.05.2025
ORDER
The applicant has filed this O.A. under Section 19 of the AT Act, 1985 to quash and set aside the impugned order dated 08.05.2024 issued by the respondents by which she has been transferred from Mumbai and posted 2 OA.612/2024 as Officer In-Charge of the Central Institute of Fisheries Education (CIFE), Rohtak in Haryana.
2. Brief facts of the case are that the applicant was appointed as a Scientist in the year 2005 at IISS Bhopal. She was transferred to ICAR -CIFE Mumbai in 2007. Since then she is continuing in Mumbai. In 2017, she was promoted to the post of Senior Scientist. She was a guide to three Ph.D. Students and two PG students. Applicant submits that as per the policy guideline dated 30.09.2009 of the DoPT, the wife and husband working in the same office are to be mandatorily posted at the same station. She submits that the applicant and her husband both have been posted and working with the office of the respondents at ICAR -CIFE, Mumbai since 2007. 2.1. It is the case of the applicant that the applicant has been transferred from Mumbai Headquarters to Regional Centre at Rohtak, Haryana where there is no post of Senior Scientist (Soil Science) whereas Rohtak Centre is looking after the research of Aquaculture, that in the whole organization of CIFE which has five Regional Centres at Rohtak (Haryana), Kolkata (West Bengal), Motihari (Bihar), Kakinada (Andhra Pradesh) and Pawarkheda (Madhya Pradesh), there is no post of Senior Scientist (Soil Science) except at Mumbai where there are two posts of Scientist (Soil Science). She is the only Scientist of Soil Science working at Mumbai as other post was lying vacant since last five years. Now with her transfer to Rohtak both the posts in Mumbai are lying vacant.
3 OA.612/20242.2 The applicant submits that as per the ICAR Office Order F.No.41(2)/2005-Per.IV dated 26.05.2017, all cases of redeployment / transfer / diversion / adjustment / upgradation / redesignation of posts shall be done only with prior approval of Ministry of Finance. She submits that no such approval has been taken from the Ministry of Finance and thus, the impugned transfer order is in violation of the respondents own guidelines. 2.3. It is further submitted that her daughter is in XII standard and taking the coaching for JEE exams. Her second child is 8 years old. Therefore, in view of this, she represented vide her email dated 01.05.2024 to the respondents after impugned order was passed that she may be retained in Mumbai till her daughter's XII board examination along with IIT JEE advanced examination in the coming year 2025 is over as her daughter needs her at Mumbai for her career guidance. However, the said representation was rejected by the respondents on the ground that the purpose of her transfer is to advance her professional growth and enrich her experience, besides fulfilling the Institutional requirements. They have further stated that her role as Officer-in-Charge as well as an expert in the area of Soil Science and Inland Saline Soil Aquaculture Environment will be pivotal.
3. After issue of notice the respondents have filed their reply. It has been submitted that the applicant is a Senior Scientist specializing in Soil Science and has been an integral part of CIFE since 24.12.2007. The significant contributions to the NAHEP project specifically in the component 4 OA.612/2024 of soil enrichment through Biochar application have demonstrated substantial enhancements in soil and water quality, directly boosting shrimp production in culture ponds. Even the critical role of the CIFE in pioneering shrimp culture technology for inland saline aquaculture, her expertise is invaluable to farmers in Haryana, Punjab, Rajasthan and Uttar Pradesh. 3.1. It has been submitted that inland saline areas face severe challenges due to the high mineral content in soil and water. Effective shrimp culture in these regions requires the fortification of specific minerals, and Dr.Bharti's work with Biochar - a resource derived from locally available agro wastes has yielded encouraging results in this context. Not only does Biochar improve shrimp production, but it also addresses the prevalent issue of water seepage from ponds which is a significant concern at the Rohtak Centre and similar locations.
3.2. It has been submitted that Dr. Bharti underwent specialized training from November 8, 2022 to December 12, 2022 on the application of Biochar in the Remediation of Environmental Contaminants at CSIRO, Australia. This training, sponsored by the Institute, equipped her with advanced knowledge of Biochar application methods, further enhancing her capability to drive this innovation. Dr. Bharti, with her agricultural background, has limited exposure to srimp culture ponds, particularly in inland saline water. The novel application of Biochar in aquaculture demands rigorous field trials to refine and confirm its effectiveness before it can be 5 OA.612/2024 widely recommended to farmers. These trials require at least two crop cycles, spanning two years, to achieve conclusive results. Therefore, applicant's posting at the Rohtak Centre is crucial. It allows her to conduct the necessary field trials, refine the technology and provide empirical evidence of its benefits. Her presence at Rohtak for this period is not just a strategic decision but an essential step to ensure the broader interest of the Institute and the shrimp farmers in inland saline affected areas. By validating and optimizing this breakthrough technology, the applicant's work at Rohtak will play a pivotal role in transforming the aquaculture practices in these challenging environments, ultimately benefiting countless farmers and contributing to sustainable agricultural development. This posting is essential to leverage her expertise, ensure the success of the Biochar application, and facilitate its adoption across inland saline regions, aligning with the institute's mission to drive innovation and support the farming community.
4. The applicant has filed rejoinder to the reply submitted by the respondents. It has been submitted that the respondents have repeatedly pleaded that the government and / or respondent have specially sent the applicant to Australia to undergo special international training and, therefore, she is an asset and, therefore, far more valuable employee of the respondent. However, very conveniently, the respondent for obvious reasons have suppressed material facts that in fact in reality, applicant was sent to Australia in the year 2022 and 43 others similarly situated employees like the applicant 6 OA.612/2024 were also sent for similar international training. Therefore, the respondent have once again suppresses material facts from this Tribunal and merely on this ground the present O.A. of applicant deserves to be granted. It is relevant to mention that out of the 43 employees sent for international training, 14 employees belonging to different disciplines of the fisheries / aquaculture were trained in sustainable aquaculture technology in Asian Institute of Technology, Thailand. Therefore, those 14 employees have infact being trained to carry out specific work which is shown to be required at the regional center Rohtak. In short, there are nearly 14 people over and above applicant who are far more qualified and trained to take the charge of Rohtak Center. 4.1. It has been submitted that if entire reply of the respondents is perused, it nowhere even minutely whispers anything about cadre strength and/or applicant's post being available at Rohtak Center. In short, the entire reply of the respondent does not deny the contention of the applicant that the applicant cannot be transferred to a place where her post is not made available. A similar situation had arisen where an employee of ICAR-CIEF was transferred to some Regional center where his/her cadre strength / post did not exist. Looking at such a situation, the Apex Body i.e. the ICAR has the occasion to deal with the similar issue as in the present case. The ICAR had then issued a letter dated 23.11.2017 directing the respondent director of CIEF-Mumbai to withdraw the transfer order as there were no post sanctioned in the regional center in respect of the transferred employee. The said letter 7 OA.612/2024 further directed the respondent that such practice of intra-institutional transfer of scientist in absence of sanction strength in the place where the Scientist is to be transferred should not be initiated in future. The said letter further strengthens the claim of the applicant by stating that for the purpose of requirement of Scientist of Specific Discipline at a Regional Station which is not available in the sanctioned strength of the Regional Station, appropriate action of the redeployment of the post from one center to another may be proposed by institute through Fisheries division to Ministry of Finance seeking approval for the same. The above mentioned past case is identical in nature with the issue raised by the applicant and the apex body i.e. ICAR had directed the respondent to not to adopt such steps in future. 4.2. It has been submitted that the applicant was appointed in ICAR in the year 2005 and got married in 2006. At that time her husband was posted in Mumbai. Therefore, she had applied for transfer from ICAR - IISS Bhopal to ICAR - CIFE Mumbai. However, the said transfer was allowed only after cadre strength / post commensurate to the Discipline of the applicant was made available. Therefore, it is clear that any transfer of an employee goes through only when there is vacant post especially cadre strength in that particular discipline only. She is working as assigned / appointed as Major Guide to one Ph.D. and 2 students undergoing Masters Degree. Over and above these 3 students, applicant is also teaching in all 9 courses in academic year which adds up to 50 more students. In short, there are in all 53 students 8 OA.612/2024 which are dependent upon the applicant on a daily basis for undergoing practical, theory, classroom, research and other guidance. If the applicant is transferred to Rohtak Center, admittedly no person/employee will be occupying the post of Soil Scientist in CIFE Mumbai. The respondents are ready to invite guest and special faculty from sister institutes but are not ready to accommodate their own specialized employee at a post available in Mumbai. Thus, the attempt by the respondents to invite guest faculty is a far fetched dream.
4.3. It has been submitted that applicant's daughter is undergoing 12th Standard college from Maharashtra Board through PACE Junior Science College located at Andheri, Mumbai. The said institute is not only famous for coaching students for IIT Medical whereas it also runs its own college. Since, her daughter belong to Maharashtra Board and the academic year of the same is already began, it is absolutely impossible to accommodate her daughter during academic year in some other part of the country where Maharashtra Board is not there. The respondents have time an again pleaded that the transfer of the applicant was done under public interest. However, no transfer can be done in public interest especially when there are no equivalent and sanctioned post / cadre strength commensurate to their discipline of the applicant. Therefore, even though transfer is the integral part of the service every employee have inherent and legal right as well as fundamental right to challenge arbitrary transfer order.
9 OA.612/20244.4. It has been further submitted that it is surprising to come across the respondent's plea that the applicant should not misuse the scheme of couple convenience. On the contrary, it is every employee's fundamental right to enforce their legal right to seek benefits of welfare legislation and/or scheme floated by the department of Central Government. On the contrary, such schemes are meant for being used or reap benefits by the employees and are also often advertised and published by the Government with sole objective of having a smooth governance. It is relevant to mention at this stage that over and above the students and teaching and guidance work, the applicant is also undertaking 4 important projects assigned by respondent institute and ICAR. In short, there are 4 projects under way at CIEF Mumbai and the same cannot be proceeded ahead in absence of the applicant or via online mode as it requires physical infrastructure which is already made available only at CIFE institute at Mumbai.
4.5. It has been submitted that very recently i.e. 04.07.2024, the Apex Body of ICAR had issued a letter to respondent stating as follows:
i. References are being received from the Institute in the Council seeking guidance on various issues. In certain cases, it has been observed that Institutes have taken decisions in a unilateral manner without affording reasonable opportunities to the affected parties. ii. This has led to unnecessary litigation and many a times when such decisions are challenged by the aggrieved party the Institute is unable to defend its position in appropriate courts of law leading to undesired embarrassments and administrative inconveniences which 10 OA.612/2024 could have very well been avoided had a proper procedure been followed.
iii. It may be appreciated that the chance to present one's views or objections before being deprived of a right by government authority is one of the principles of natural justice. In short, before an order is passed against any person, reasonable opportunity of being heard must be given to him/her. This would help in avoiding arbitrariness and ensure fairness in the system.
iv. The Institutes are strictly advised to ensure that whenever any such administrative actions are contemplated, fair and reasonable opportunity may be afforded to anticipated affected parties and only after evaluating all facts and circumstances such actions may be initiated by issuing appropriate speaking orders. This issues with the approval of Secretary, ICAR.
In view of the above it is clear that by such repeated administrative order issued by the apex body the candidate / applicant are not been given fair opportunity and routine decisions are taken in unilateral manner by the respondent herein.
4.6. It has been submitted that on 13.06.2024, the respondent department had issued a circular thereby endorsing the mandate handbook on delegation of power in ICAR. The said handbook reiterates that a prior sanction and approval of Ministry of Finance is necessary for transfer/deployment/diverting employee from one place to another where there is no post.11 OA.612/2024
4.7. The applicant submitted copy of HAHEP's Faculty International Training Program, letter dated 23.11.2017 (Exh-R-2) and letter dated 04.07.2024 (Exh.R-4) issued by ICAR, Krishi Bhavan, New Delhi.
4.8. Thereafter, additional affidavit was also filed by the applicant enclosing therein copy of letter dated 29.06.2017 (Exh.Z-1) issued by ICAR regarding transfer order of Dr. M. Goswami, Principal Scientist (Fish Genetics & Breeding) letter dated 23.11.2017 (Exh.Z-2) regarding transfer order of Dr. Ajit Kumar Verma, Sr. Scientist (Land & Water Management), and copy of OM dated 02.07.2020 (Exh.Z-3) regarding revised cadre strength of DR-
Scientist, DR-Sr. Scientist and DR-Pr. Scientist.
5. The respondents have also filed additional affidavit in reply placing therein copy of judgment of Hon'ble Supreme Court in the case of Namrata Verma Vs. State of Uttar Pradesh and Others, 2021 SCC OnLine SC 2337 and copy of judgment in the case of SK. Nausad Rahaman and others Vs. Union of India and others, (2022) 12 SCC 1.
6. During final arguments, the learned counsel for both the sides have argued their cases on the basis of pleadings, documents on record and various rulings.
6.1 Mr. Thorat, learned counsel for the applicant submitted a copy of Office Memorandum dated 02.07.2020 issued by Indian Council of Agricultural Research, New Delhi showing the cadre strength of CIFE, Mumbai Headquarters and Regional Centre - Kolkata, Kakinada, 12 OA.612/2024 Powerkheda, Rohtak, Motipur and Lucknow. He demonstrated that there are 20 disciplines which are having sanctioned strength posts at CIFE, Mumbai. He submitted that it is the chart that the Soil Science has 2 sanctioned posts at Mumbai Headquarters and there are no posts for the scientist of Soil Science discipline at any of the Regional Centre i.e. Kolkata, Kakinada, Powerkheda, Rohtak, Motipur and Lucknow. He further submitted that at the Regional Centre, Rohtak where the applicant has been posted by impugned order posts of only three disciplines i.e Aquaculture, Fish Health and Fish Nutrition are available. There is no post of Soil Science discipline available at Rohtak. Therefore, the transfer of the applicant is in violation of OM dated 02.07.2020. 6.2 Mr. Thorat would further argue that when the applicant was posted at Mumbai, one post was vacant. Now with the transfer of the applicant, both the posts at Mumbai are lying vacant and no one has been posted in her place. The applicant has represented to the respondents that her daughter is studying in 12th standard and preparing for the coaching and she has one 8 years old son. He submits that Indian Council of Agricultural Research, New Delhi has issued Office Memorandum dated 01.10.2020 containing transfer guidelines for Agricultural Research Scientist (ARS) wherein it has been mentioned that these guidelines will be followed scrupulously for effecting inter-institutional & intra-institutional transfer of ARS Scientists of ICAR. He drew my attention to page 1 of the Transfer Policy (Page 22 of the OA) in which Inter-Institutional Transfer has been defined as 'Transfer from one one 13 OA.612/2024 institute to other institute including Regional Centre/Station'. Intra- Institutional Transfer has been defined as 'Transfer from Institute Headquarters to Regional Station/Centre or vice versa or from one Regional Station/Centre to another Regional Station/Centre of the same institute'. He submitted that as per para 1 of transfer policy Transfer on administrative reasons, a scientist can be transferred by DG, ICAR on administrative grounds on the recommendations of Headquarters Transfer Committee in public interest under this provision "To correct imbalance in the cadre strength of scientists in various disciplines at different institutes and also within an Institute including Regional Station/Centre/Unit'. It means that where there are excess working strength than the sanctioned strength the imbalance can be corrected by transferring excess number of scientist. However, in the case of the applicant, out of two sanctioned posts at Mumbai, one post was already lying vacant and by transferring the applicant to Rohtak, both the posts will be vacant and it will create imbalance. Thus, the transfer of the applicant is not to correct the imbalance but to create imbalance which is in violation of the transfer policy.
6.3 Mr. Thorat has drawn my attention to para 8(ii) of the transfer policy which says that 'The transfer of scientists should not result in lowering of scientific sanctioned strength of any institute or Regional Station/Centre/Unit below 50%. But by the impugned transfer order, the respondents have lowered the sanctioned strength of Institute at Mumbai to 0% 14 OA.612/2024 as against permissible limit of 50%. Thus, the transfer order needs to be quashed and set aside on the ground of violation of clause (ii) of para 8 of transfer policy alone.
6.4 Mr. Thorat further drew my attention to Exhibit R-4 (Page 225 of the OA) regarding the instructions of ICAR, New Delhi dated 04.07.2024 regarding affording reasonable opportunity to the affected parties. In this communication, the ICAR written letters to all its field for information that 'It has been observed that Institutes have taken decisions in an unilateral manner without affording reasonable opportunities to the affected parties. This has led to unnecessary litigation and many a times when such decisions are challenged by the aggrieved party the Institute is unable to defend its position in appropriate courts of law leading to undesired embarrassments and administrative inconveniences which could have very well been avoided had a proper procedure been followed. It may be appreciated that the chance to present one's views or objections before being deprived of a right by government authority is one of the principles of natural justice. In short, before an order is passed against any person, reasonable opportunity of being heard must be given to him/her. This would help in avoiding arbitrariness and ensure fairness in the system. The Institutes are strictly advised to ensure that whenever any such administrative actions are contemplated, fair and reasonable opportunity may be afforded to anticipated affected parties and only after evaluating all facts and circumstances such 15 OA.612/2024 actions may be initiated by issuing appropriate speaking orders. Mr. Thorat submits that thus the respondents were required to give an opportunity to the applicant before effecting her transfer to the place where there is no post available to her cadre of Soil Science. Therefore, order is bad in law being in violation of their own guidelines.
6.5 Mr. Thorat has further drawn my attention to the order dated 26.05.2017 Appendix-III. The order issued by the ICAR says as under:
"The issue of re-deployment/transfer/diversion/adjustment/up- gration/re-designation of various positions in ICAR has been deliberated upon by the Governing Body in its 239th meeting and it has been noticed that a post is sanctioned with the approval of the Competent Authority/Ministry of Finance for a specific purpose and for a particular place/institute. As per the relevant guidelines of the MoF, a post sanctioned for a specific purpose in an Organisation could not be redeployed/diverted for another purpose. The cases of transfer /redeployment /up-gradation/diversion/adjustment/re- designation of posts would amount to creation of new post with simultaneous abolition of adjusting post and prior approval of MoF is required for the same as per prescribed procedure. The GB has recommended and approved by the President, ICAR and Minister of Agriculture & Farmers Welfare that ICAR should follow the procedure laid down by Ministry of Finance, Government of India.
Accordingly, in supersession of all earlier orders on the subject, henceforth, all cases of redeployment /transfer /diversions/adjustment/up gradation/re-designation of posts shall be done only with prior approval of MoF, in accordance with the guidelines of Govt. of India issued vide Om No.F-14(14)-E(Coord)/77 dated 25.10.1977 and OM No.7(1) E.Co-ord.-1/2017 dated 12.04.2017, as amended from time to time."
[Emphasis supplied] 6.6 Mr. Thorat argued that the impugned transfer order is in violation of the above office order as transferring the applicant to Rohtak where there 16 OA.612/2024 is no post will amount to create post at Rohtak and abolish the post at Mumbai which would require prior sanction of Ministry of Finance, Government of India. Thus, the impugned transfer order was in violation of even this office order.
6.7 Mr. Thorat has further drew my attention to Exhibit Z-1 (Page 243 of OA) which is a letter issued by Indian Council of Agricultural Research, New Delhi dated 29th June, 2017 to the Director, ICAR-Central Institute of Fisheries Education, Mumbai i.e. respondent No.2 in respect of transfer of Dr. M. Goswami, Principal Scientist (Fish Genetics & Breeding) on his transfer from ICAR-CIFE, Mumbai to ICAR-CIFE Regional Station, Powarkheda. The communication states as under:
"The issue has been examined in the Council and the undersigned has been directed to state that the issue of transfer of Dr. M. Goswami, Principal Scientist from CIFE, Mumbai to CIFE RS, Powarkheda though an intra-institutional transfer, however as Dr. Goswami appointed as Dr- Sr. Scientist (Fish Genetics & Breeding) and there is no sanctioned post of Sr. Scientist in the discipline of Fish Genetics & Breeding at CIFE RS Powerkheda, therefore, he cannot be posted at CIFE RS Powerkheda.
The case should be reviewed accordingly under intimation to the Council."
The applicant is similarly placed as Dr. M. Goswami and, therefore, she could not have been transferred from Mumbai to Rohtak where there is no post in the discipline of Soil Science.
6.8 Mr. Thorat drew my attention to another letter of ICAR dated 23.11.2017 which has also been addressed to respondent No.2 involving the 17 OA.612/2024 transfer of Dr. Ajit Kumar Verma, Senior Scientist (Land & Water Management) whereby he was transferred to CIFE, Kolkata from CIFE, Mumbai. The communication states as under:
"Sub: Transfer of Dr. Ajit Kumar Verma, Sr. Scientist (Land & Water Management) from CIFE, Mumbai to CIFE, Kolkata Centre
- reg.
Sir, I am directed to invite a reference to the representation dated 30.10.2017 of Dr. Ajit Kumar Verma, Sr. Scientist (Land & Water Management) regarding his transfer from CIFE, Mumbai to CIFE, Kolkata Centre.
In this context the undersigned has been directed to state that it has been decided that the transfer order in r/o Dr. Ajit Kumar Verma may be withdrawn as there is no post sanctioned in CIFE, Regional Station, Kolkata in the respective discipline of Dr. Ajit Kumar Verma, Sr. Scientist.
Further, the Competent Authority has desired that such practices of intra-institutional transfers of Scientists in absence of sanctioned strength at the place where the Scientist is to be transferred, should not be initiated in future. In context of intra- institutional transfers, Council's guidelines should be adhered to.
For the purpose of requirement of Scientists of specific discipline at a Regional station which is not available in the sanctioned strength of the Regional Station, appropriate proposal of redeployment of post from one centre to the other may be proposed by the Institute through Fisheries Division to Ministry of Finance seeking approval for the same."
6.9 Mr. Thorat submits that even in the case of Dr. Ajit Kumar Verma, Sr. Scientist (Land & Water Management), the ICAR has directed that requirement of Scientists of specific discipline at a Regional station which is not available in the sanctioned strength of the Regional Station, appropriate 18 OA.612/2024 proposal of redeployment of post, from one centre to the other may be proposed by the Institute through Fisheries Division to Ministry of Finance seeking approval for the same. He submits that in the case of the applicant, no such proposal has been submitted to the Ministry of Finance for their approval and, therefore, without approval of the Ministry of Finance, she could not have been transferred to Rohtak.
6.10 Mr. Thorat has placed reliance on the decision of Hon'ble High Court of Andhra Pradesh in Writ Petition No.1281/2021 dated 20.01.2021 wherein the Petitioner was transferred from Kalakada to Vijilapuram on administrative ground and the same was quashed by the Hon'ble High Court. He further placed reliance on the decision of Hon'ble Allahabad High Court in the case of Ashok Kumar Singh Vs. State of U.P. and others, 1997 SCC OnLine All 972 wherein it was held that an employee cannot be transferred to a post, which is outside the cadre without his consent. 6.11 Mr. Thorat placed reliance on the decision of Hon'ble High Court of Madhya Pradesh in the case of Ripudaman Singh Yadav Vs. State of M.P. and others, 2019 SCC Online MP 1658 wherein it has been held that "the Court requests the State and its functionaries to keep the aforesaid principle in mind while subjecting transfers particularly of such public servants whose children are in Class 11th and 12th". He further placed reliance on the decision of Hon'ble Supreme Court in the case of Babita Thakur Vs. State of Himachal Pradesh and others, 2011 SCC Online HP 2289 wherein it has 19 OA.612/2024 been held that "the underline principle for transfer is public interest or administrative exigency. In the instant case, neither there was any public interest nor any administrative exigency necessitating the transfer of the petitioner from Government Primary School, Chadyara (Sadar) to Government Primary School, Khanyari (Chachoit-1)". He further placed reliance on the decision of Hon'ble High Court of Judicature at Mumbai in Writ Petition No.1862/2012 dated 07.11.2012 in the case of Dr.Vinod Shankarlal Sharma and 61 others Vs. The State of Maharashtra and another, in which it has been held that "The posts in which the Doctors are required to discharge their service under bond must be posts for which the qualifications for recruitment stipulate the holding of a D.M. or M.Ch degree. The post of Registrar and Senior Resident, which are meant for students who are undergoing the relevant degree course, shall not be allotted to super- specialized students who have successfully completed their D.M. or M. Ch degree courses".
6.12 Therefore, he submits that the applicant, being Senior Scientist (Soil Science), cannot be transferred as Officer-in-Charge, CIFE, Rohtak which deals with Aquaculture.
6.13 Mr. Thorat would argue that in view of the fact that the applicant could not have been transferred to Rohtak where there is no sanctioned post of Soil Science and which has been in violation of respondents' transfer policy as well as the direction of ICAR, the transfer order was bad in law and requires 20 OA.612/2024 to be quashed and set aside.
7. Dr. V.B. Joshi, learned counsel for the respondents, on the other hand, submitted that transfer is an incidence of service and the applicant is liable to be transferred anywhere in the country. He submitted that Soil Science is related to Aquaculture. There is a demand for Soil Science person at Rohtak to promote production of shrimp in Punjab & Haryana. He submitted that the Centre of Haryana, Rohtak was a need of a scientist from Biochar and Soil Science.
7.1 The applicant is a senior scientist of Soil Science - Soil Chemistry/Fertility/Microbiology). He has submitted that the applicant submitted the report for assessment for the period 27.06.2017 to 26.06.2020 on this topic. He would argue that the applicant was deputed to Australia for one month for training in 2022 for a special purpose. Therefore, keeping her experience, she has been posted to Rohtak. He submitted that prior to posting of the applicant, One Ms. Babitha Rani, a Senior Scientist (Aqua Culture) was also posted for two years and her tenure got over and she has been brought back to Mumbai. He submitted that Dr. Shobha Rawat, Senior Scientist and Dr. Shashi Bhusan, Senior Scientist have also been posted as Officer-In- Charge to different Centres and they have been brought back. He argued that the applicant was guiding three Ph.D students before her transfer to Rohtak. 21 OA.612/2024 However, two students have already left and only one remains and, therefore, the applicant can guide him through phone.
7.2 Mr. Joshi would further argue that Transfer Committee, formed under clause (ii) of clause 6 of Transfer Policy issued vide OM dated 01.10.2010 by the ICAR, has considered the suitability of the applicant and recommended her posting to Rohtak. He produced minutes of the meeting for perusal. Therefore, the impugned order was passed in public interest. He submitted that as per clause (iv) of para 6 of the Transfer Policy, 'the Headquarter Transfer Committee is empowered to recommend transfer of a scientist from one institute or at its Regional Station/Centre/unit. Such scientists shall not be transferred by the Institute Transfer Committee for a period of five years without prior approval of the Council'. Mr. Joshi would further argue that as per letter dated 23.11.2007 issued by ICAR, transfer of Dr. Ajit Kumar Verma, Senior Scientist (Land & Water Management) from CIFE, Mumbai to CIFE Kolkata was also effected. Mr. Joshi placed reliance on the decision of Jodhpur Bench of Central Administrative Tribunal in OA No.290/00550/2024 in the case of Arun Kumar Sharma Vs. Indian Council of Agricultural Research & 3 Ors. decided on 14.01.2025 wherein one scientist (Agronomy) of ICAR, Central Arid Zone Research Institute, Jodhpur was transferred to Leh and he challenged the transfer order before the Jodhpur Bench of CAT. The Tribunal was pleased to dismiss the OA with the direction that he may represent to the competent authority who shall consider his 22 OA.612/2024 grievance sympathetically and pass appropriate orders. 7.3 Mr. Joshi further placed reliance on the decision of Principal Bench of this Tribunal in OA No.677/2023 decided on 09.05.2023 in the case of Ashutosh Gautam Vs. Indian Council of Agricultural Research & Anr. pertaining to a case of Assistant legal Advisor who was re-designated as Law Advisor and was transferred to a post of Assistant Legal Advisor. He challenged the transfer order on the ground that a Legal Advisor cannot be transferred to the post of Assistant Legal Advisor. The Tribunal held that the transfer was done in public interest and he was directed to make a representation to the respondents who will direct to consider it and thereafter to approach the Tribunal, if his grievance still subsists. 7.4 Mr. Joshi has further placed reliance on the judgement of Hon'ble Supreme Court in the case of SK Nausad Rahaman and Others Vs. Union of India and Others, (2022) 12 SCC 1 wherein it was held that Court in exercise of judicial review cannot direct executive to frame particular policy though legitimacy of such policy can be assessed on touchstone of constitutional parameters.
8. Mr. Thorat in his rebuttal has drawn my attention to page 223 (Exhibit R-2) regarding the letter dated 23.11.2007 issued by ICAR which specifically mentions that 'For the purpose of requirement of Scientist of specific discipline at a Regional Station which is not available in the sanctioned strength of the Regional Station appropriate proposal of 23 OA.612/2024 redeployment of post from one Centre to other may be proposed by the Institute through Fisheries Division to Ministry of Finance seeking approval for the same'. He submitted that no such approval was taken from the Ministry of Finance which is mandatory requirement and, therefore, the impugned order needs to be quashed and set aside.
9. It can be seen that the respondents themselves have failed to observe its own policy in its true letter and spirit resulting into the extinction of the legitimate expectation which arose out of the transfer policy in question as declared by the respondent itself. In this regard, he referred to the following observations made by the Apex Court in Food Corpn. Of India Vs. Kamdhenu Cattle Feed Industries [(1993) 1 SCC 71] "8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of t h e claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-
arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent." 24 OA.612/2024
10. I have considered the submissions of learned counsels for both the sides and also gone through the pleadings and documents filed on record, different judgements/orders relied upon by the parties and the minutes of meeting of transfer committee.
11. Before proceeding to discuss on the merits of the present case and to comment upon the correctness and legality of the impugned transfer order dated 08.05.2024, it is made clear that this Tribunal is not oblivious of the settled preposition of law that an employee does not have a fundamental right to be posted at a place of his/her choice, and transfers are conditions of employment unless there are specific policy/guidelines/rules against such transfer. The employer has the authority to transfer an employee, as they are the ones who decide where the person will be posted and how long they will be needed there, but it is always necessary to pass a transfer order justly, fairly, and reasonably - not capriciously or irrationally.
11.1 It is also settled principle of law that the extent of judicial scrutiny in transfer decisions is very limited and the Courts/Tribunals will do so in cases where the transfer order violates a transfer policy or has been passed in violation of any Statutory Rule, or where executive instructions confer some kind of special privileges under special situation, such guidelines/instructions, in absence of any statutory rules would have to adhere to and followed by a State as a model employers. It has been held by Hon'ble 25 OA.612/2024 Apex Court that the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, which is a necessary concomitant of the rule of the law.
11.2 In this regard, it is profitable to refer some of the judgments passed by the Hon'ble Apex Court on the point of scope of Judicial Scrutiny in the matter of transfer of a Government employee i.e., (i) Union of India Vs S. L. Abbas reported in (1993) 4 SCC 357, (ii) Rajendra Singh and Ors. Vs. State of Uttar Pradesh & Ors., reported in (2009) 15 SCC 178, (iii) State of UP Vs Gobardhan Lal (2005) SCC (L&S) 55, (iv)Shilpi Bose Vs State of Bihar (1992) SCC (L&S) 127,
(v) State of M P & Ors. Vs S. S. Kourav & Ors., (vi) S R Venkatraman Vs Union of India 1979 (2) SCC 491, (vii) S C Saxena Vs Union of India 2006 (9) SCC 583, (viii) Ms. X vs. Registrar General, High Court of Madhya Pradesh and another, reported in (2022) 14 SCC 187).
12. It is not in dispute that the applicant is a Scientist of Soil Science discipline. It is also not in dispute that as per the cadre strength submitted by the respondents, there are sanctioned posts of Scientist (Aquaculture), Scientist (Fish Health) and Scientist (Fish Nutrition) only at Regional Station, Rohtak and thus there is no post of Soil Science. On the other hand, the posts of Soil Science Scientist are available at CIFE, Mumbai Headquarters only and out of 2 sanctioned posts, one post was already lying vacant. Thus, with 26 OA.612/2024 the transfer of the applicant, both the posts would fall vacant.
13. Regarding the submission of the learned counsel for the respondents that transfer is an incidence of service, the same is not in dispute. However, the transfer has to be in accordance with the rules and the Transfer Policy and statutory instructions issued by the ICAR which are binding on the respondent No.2. It is seen from the respondents own submission that transfer of Dr. Ajit Kumar Verma, Sr. Scientist (Land & Water Management), CIFE Mumbai to CIFE Kolkata was withdrawn by the ICAR vide order dated 23.11.2007 on the ground that there is no post sanctioned in CIFE Regional Centre, Kolkata in the respective discipline of the Dr. Ajit Kumar Verma, Senior Scientist. It was further directed that the Competent Authority has desired that such practices of intra-institutional transfers of Scientists in absence of sanctioned strength at the place where the Scientist is to be transferred, should not be initiated in future. In context of intra-institutional transfers, Council's guidelines should be adhered to. It has been further directed that For the purpose of requirement of Scientist of specific discipline at a Regional Station which is not available in the sanctioned strength of the Regional Station appropriate proposal of redeployment of post from one Centre to other may be proposed by the Institute through Fisheries Division to Ministry of Finance seeking approval for the same. Thus, it is clear that for any transfer of a Scientist of a discipline to a place where there is no such post, prior approval of the Ministry of Finance is required. Admittedly, no such 27 OA.612/2024 approval was taken.
13.1 ICAR has further issued instructions dated 04.07.2024 (Page 225 Exhibit R-4) states that 'The Institutes are strictly advised to ensure that whenever any such administrative actions are contemplated, fair and reasonable opportunity may be afforded to anticipated affected parties and only after evaluating all facts and circumstances such actions may be initiated by issuing appropriate speaking orders'. Admittedly, no such fair and reasonable opportunity was granted to the applicant before effecting the impugned order.
13.2 It is further seen that in the case of one Dr. M. Goswami, Principal Scientist (Fish Genetics & Breeding), who was transferred from CIFE, Mumbai to CIFE, Regional Station, Powarkheda by the respondent No.2, ICAR vide letter dated 29.06.2017 on the basis of email dated 07.05.2017 sent by Dr. M. Goswami, has directed the respondent No.2 that as Dr. Goswami appointed as Senior Scientist (Fish Genetics & Breeding) and there is no sanctioned post of Senior Scientist in the discipline of Fish Genetics & Breding as CIFE RS Powerkheda, therefore, he cannot be posted as CIFE RS Powerkheda. Thus, it is clear from the above instructions/communication of respondent No.1 to 2 that as per their own instructions, a Senior Scientist cannot be transferred to a place where there is no post in her discipline and secondly, that for any such transfer, the prior approval of Ministry of Finance is required to be obtained for submitting proposal through Ministry of 28 OA.612/2024 Fisheries. The respondents have failed to explain as to why the case of the applicant is at a different footing than the case of Dr. M. Goswami and Dr. Ajit Kumar Verma whose transfers have already been withdrawn as per the orders of the respondent No.1 discussed herein before.
14. Admittedly, no such approval from Ministry of Finance was taken. Regarding the submission of Mr. Joshi that she was given one month training in Australia that cannot change the fact that prior approval of the Ministry of Finance was not taken which is mandatory requirement.
15. Regarding the order of CAT, Jodhpur Bench in the case of Arun Kumar Sharma (supra), it is not clear whether the applicant in that case was a scientist and whether the post of his discipline was available at Leh or not? Moreover, it is not clear from the order of the Tribunal whether the specific instructions of the ICAR regarding prior approval of the Ministry of Finance was brought to the notice of the Hon'ble Bench. Therefore, the said judgement is not applicable to the facts of the present case.
15.1 Coming to the second order relied upon by Mr. Joshi decided by the Principal Bench in the case of Ashutosh Gautam (supra), I find that the same pertains to Assistant Legal Advisor who was later on designated as Law Officer. It has not been demonstrated that there was no cadre post at Kolkata which formed the basis for deciding his case. Therefore, this order is also not applicable to the facts of the case.
29 OA.612/202415.2 Regarding reliance on the judgement of the Hon'ble Supreme Court in the case of S.K. Nausad Rahaman and Others (supra), it is seen that Hon'ble Supreme Court has also held that The State's interference in the rights of privacy, dignity and family life of persons must be proportional. This Court in Akshay N. Patel V. RBI, (2022) 3 SCC 694 held that the framing of policy must meet an integrated proportionality analysis which answers whether the measure is: (1) in furtherance of a legitimate aim; (ii) suitable for achieving the aim; (iii) necessary for achieving the aim; and (iv) adequately balanced with the rights of the individual. Admittedly, the respondent No.1 has specifically directed that in case of transfer to a place where there is no sanctioned post, proposal has to be moved to Ministry of Finance through Ministry of Fisheries for prior approval. No such prior approval was taken in the case of the applicant. Moreover, the ICAR has already directed to cancel the transfer of Dr. Ajit Kumar Verma and Dr. M. Goswami on this ground alone. Therefore, in view of the specific violation of their own policy, the argument that it was incidence of service or it was in public interest does not hold good. Therefore, the arguments of the respondents are rejected.
16. A Three Judges of Hon'ble Supreme Court in the case of Bhavnagar University Vs. Patitana Sugar Mill (P) LTD. And Others, (2003) 2 SCC 111 has held that "It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all". Admittedly, respondent No.1 has issued order dated 30 OA.612/2024 26.05.2017 directing all the field formation that "The cases of transfer /redeployment /up-gradation/diversion/adjustment/re-designation of posts would amount to creation of new post with simultaneous abolition of adjusting post and prior approval of MoF is required for the same as per prescribed procedure. The GB has recommended and approved by the President, ICAR and Minister of Agriculture & Farmers Welfare that ICAR should follow the procedure laid down by Ministry of Finance, Government of India". 16.1 The above order was issued in accordance with the guidelines of Government of India issued vide OM No.F-14(14)-E(Coord)/77 dated 25.10.1977 and OM No.7(1) E.Co-ord.-1/2017 dated 12.04.2017. Thus, the respondents were duty bound to take prior approval of the Ministry of Finance for transferring the applicant to a place where there is no sanctioned post in her discipline. Thus, the impugned order is bad in law in violation of a specific instructions issued by the Ministry of Finance and also by the respondent No.1.
17. Regarding the submission of Mr. Joshi that transfer order was passed as per recommendation of the transfer committee. I have seen the minutes of meeting dated 06th May, 2024 produced by Dr. Joshi. It simply says that after detailed discussion and the guidelines and also work exigencies, the committee recommended the transfer. However, there is not even one word as to why the applicant was being transferred for what reason, what public interest was involved and why the transfer was being recommended in violation of OM dated 02.07.2020, in violation of para 8(ii) of the Transfer 31 OA.612/2024 Policy and in violation of order dated 26.05.2017 of the respondent No.1 and also in violation of Ministry of Finance OM No.F-14(14)-E(Coord)/77 dated 25.10.1977 and OM No.7(1) E.Co-ord.-1/2017 dated 12.04.2017. Therefore, the transfer order is bad in law on the above grounds.
18. On the other hand, I find force in the argument of learned counsel for the applicant that the transfer was in violation of para 8(ii) of the transfer policy and specific instructions issued by the Ministry of Finance and also by the respondent No.1 and also in violation of the laid down policy that prior approval of the Ministry of Finance is required. I further find force in his argument that no sanctioned strength of Soil Science is available at any of the Centres of the respondent No.2 other than its Headquarters Mumbai. Therefore, I find force in his argument that the applicant could have not been transferred to Rohtak.
19. In view of the above discussion, it is prima facie clear that the committee has not taken into consideration the requirement of prior approval of the Ministry of Finance and that a Scientist cannot be transferred to a place where there is no sanctioned post of her discipline as per the direction of ICAR. Under these circumstances, the impugned transfer order dated 08th May, 2024 is unsustainable and is liable to be quashed and hereby quashed. However, it is open for the Competent Authority to place the matter before the Transfer Committee for re-consideration which is obliged to take into account the pre- conditions of approval of the Ministry of Finance and sanction of post at the 32 OA.612/2024 proposed place of posting in the discipline of the applicant, prior to issuing any transfer order, by the Competent Authority.
20. The Original Application is, accordingly, allowed. Pending MAs, if any, stand closed.
21. There shall be no order as to costs.
(Shri Krishna) Member (A) h/ma.
Digitally signed by Milan Jackson Alphanso
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