Central Administrative Tribunal - Ernakulam
Dr.Bransdon.S.Corrie vs ) Union Of India on 13 January, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 180/00932 of 2016
Friday this the 13th day of January, 2017
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Dr.Bransdon.S.Corrie, IFS (Kerala: 1980)
aged 59 years S/o late Sydney Corrie,
Principal Chief Conservator of Forests &
Head of Forest Force, Forest Headquarters,
Vazhuthacadu, Thiruvananthapuram,
under orders of transfer as
Director, Kerala Forest Research Institute,
Peechi, Thrissur. Camp. Lily Gardens, PT Jacob Road,
Thoppumpady, Kochi.5.
. . . . Applicant
(By Advocate Mr. P.V. Mohanan)
Versus
1) Union of India, represented by Secretary
to Government, Ministry of Environment, Forest
and Climate Change, Indira Pravaravan Bhawan,
6th floor, Prithvi Block, Jor Bagh Road,
Ali Ganj, New Delhi.3.
2) The State of Kerala, represented by
Chief Secretary to Government of Kerala,
Thiruvananthapuram.1.
3) The Chairman, Civil Service Board for Indian
Forest Service, General Administration (Special
Cell) Department, Thiruvananthapuram.1.
4) Sri Suresh Chand Joshi, IFS,
Principal Chief Conservator of Forests (Vigilance)
Forest Headquarters, Vazhuthavadu,
Thiruvananthapuram.4.
5) The Principal Accountant General (Accounts & Entitlement)
PAG Office, Thiruvananthapuram,
Kerala-695001.
... Respondents
(By Advocate Mr.Ranjit Thamban - Additional Advocate General
with Advocate Mr.M. Rajeev G.P. (for R2, 3 &5)
Mr. Thomas Mathew Nellimootil for R.1.
This application having been finally heard on 04.01.2017, the Tribunal on
13.01.2017 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member This Original Application has been filed seeking quashment of Annexures A9 and A11. By Annexure A9 dated 28.10.2016 the service of the applicant who was the Principal Chief Conservator of Forests (for short PCCF) and Head of Forest Force (HoFF for short) was placed at the disposal of Science and Technology Department for being appointed as Director, KFRI on deputation basis. The post of Director, KFRI was declared equivalent in status and responsibility in the cadre post of PCCF and HoFF in the apex scale of Rs. 2,25,000/- as per IFS (Pay) Rules, 2007. It was further stated that the deputation will be governed by the terms and conditions prescribed in GO (P) No. 546/1980/GAD dated 1.12.1980.
2. One Shri Suresh Chandra Joshi IFS, PCCF (Vigilance) was put in full additional charge of the post of PCCF and HoFF. Annexure A-11 is the order dated 31.10.2016 issued pursuant to Annexure A-9 whereby the government equated the post of Director, KFRI with that of the cadre post of PCCF and HoFF in the apex scale of Rs. 2,25,000/- as per Rule 11 of IFS (Pay) Rules, 2007. Accordingly, the applicant was appointed as Director, KFRI, Peechy on deputation basis on the terms and conditions prescribed in Government order dated 01.12.1980.
3. The applicant has wide academic and impeccable credential over three and half decades of experience. His initiatives and achievements are well known to the citizens and are documented in the applicant's curriculum vide Annexure A5. In TSR Surbamanyam Vs. Union of India - (2013) 15 SCC 732 the Hon'ble Apex court directed the Centre and State Governments to constitute Civil Service Board to guide and advise the State Government on all service matters especially on transfers, postings and disciplinary action. The necessity of minimum tenure has been endorsed and implemented by the Union Government as directed by the Hon'ble Apex Court. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. The Indian Forest Service (Cadre) Rules, 1966 was amended in 2014 substituting Rule 7. In the schedule to Rule 7(1) relating to functions of the Civil Services Board (CSB) it is stated that the CSB shall make recommendations for all appointments of cadre posts and shall also examine the cases of officers who are proposed to be transferred before completion of minimum period of Service as specified under Sub Rules 3&4 of Rule 7 of IFS (Cadre) Rules. It is further stated that the CSB may recommend to the competent authority the names of officers for transfer before completion of minimum tenure with reasons to be recorded in writing. In purported implementation of the judgment of the apex court cited supra, the Government of Kerala vide order dated 5.5.2014 (Annexure A8) constituted a CSB for Indian Forest Service as well. The Board is consisted of five members namely the Chief Secretary, Senior-most Additional Chief Secretary,Principal Secretary to Department of P& AR, Principal Secretary, Forests and Principal Chief Conservator of Forests/Head of Forest Force. The applicant came to see a scrolling news item in the Television stating that the applicant was being replaced by the 4 th respondent. No previous intimation of the premature transfer was received by the applicant. The applicant represented to the Chief Secretary on 26.10.2016 seeking to review the order of removal of the applicant from the Head of Forest Force. However by Annexure A9 order dated 28.10.2016 the applicant was informed that he was placed at the disposal of the Science and Technology Department on deputation basis declaring the post of Director, KFRI as equivalent to the cadre of PCCF and HoFF. Another representation was given by the applicant vide Annexure A10. Annexure A11 is the consequential government order issued based on Annexure A9. The applicant was informed on 29.10.2016 that the 4 th respondent has assumed full additional charge as PCCF and HoFF on 28.10.2016 AN. The CSB did not meet and recommend on the applicant's transfer. The comments or views from the applicant on the proposed transfer were not called for by the CSB. Thus the applicant contends that Annexure A9 is arbitrary and was not issued in public interest. It is in violation of the directives contained in the judgment of the Hon'ble Supreme Court in TSR Subramaniam's case (supra). Annexure A9 does not specify any ground for transfer of the applicant. There was no lapse on the part of the applicant. No explanation was called for from him. The applicant was not communicated of any complaints made against him. Annexure A9 is discriminatory since all previous Heads of Forest Force held the post beyond two years or till they retired. It appears there was a deep rooted conspiracy with malafides in effecting the transfer of the applicant.
4. The second respondent stoutly opposed the claim made by the applicant contending as follows.
Annexure A9 order protects the pay of the applicant as the said order itself places him at the disposal of the Science and Technology Department in Level 17 of the Pay Matrix. The Ministry of Environment and Forests, Government of India has issued guidelines for selection. As per the guidelines the Selection Committee shall comprise of the Chief Secretary of the State as Chairperson, the Principal Secretary, Forests, Principal Chief Conservator of Forests (apex Scale) of the State and another PCCF (apex scale) nominated by Ministry of Environment and Forest Department of India. As per the decision of that committee in the meeting dated 24.11.2014 the applicant was selected as the Head of Forest Force. But the eligibility or otherwise of the applicant at the time of being selected as the Head of Forest Force is not a criterion to be taken note of while deciding the issue of his transfer in so far as the transfer was made on grounds which arose after the applicant assumed charge as the Head of Forest Force. The transfer is an incident of service. He used to arrange his tour programmes in such a manner that he very often used to be in and around Ernakulam where he is staying. This has led to a situation wherein the Head of Forest Force is usually unavailable at the Forest Head Quarters. He failed miserably in providing leadership to the State Forest Force and coordinating the entire forest force as such. He often used to prefer complaints to the government against very senior officers of the State Forest Force raising trivial issues. Hence the IFS officers Association itself represented to the government regarding the repeated complaints made by the applicant on unfounded allegations. He even sent a letter to the Chief Secretary to the effect that the question posed by a particular Member of the Legislative Assembly was made at the instance of a particular senior officer of the State Forest Force which may amount to a breach of privilege of the Legislative Assembly. The attitude of the applicant has severely affected the morale of senior officers of the State Forest Force. The government is also seized of the file pertaining to misappropriation of government funds and abuse of official postilion while he was officiating as Conservator of Forests (Social Forestry). All the note files and current files relating to such matters are available at the Government Secretariat. While issuing Annexure A9 the 2nd respondent accommodated the applicant in the post of Director, KFRI in the apex scale of Rs. 2,25,000 (revise pay) without creating any ex-cadre post in the apex scale. R2 has only equated the post of Director, KFRI in the apex scale. As such the pay of the applicant has been protected. There is no alteration in the existing cadre and ex-cadre ratio. Applicant was given a substantial part of his minimum tenure of two years. However, for the reasons mentioned earlier that the applicant failed miserably in his duty as the Head of Forest force and in providing effective leadership to the State Forest Force and in coordinating the entire force as such, it was thought that the applicant should be replaced. It is the prerogative of the government to appoint suitable offices in the top post of the Forest department. Seniority alone is not the criterion for appointment of the Head of Forest Force. Rule 7 of the IFS (Cadre) Rules does not prescribe any quorum for Civil Service Board. As such it has to be deemed that any decision of the Board has to be taken by all the members of the Board. When the applicant himself was the Head of Forest Force if the CSB is to be met it can only be inclusive of the applicant. Since no man can be a judge of his own cause the applicant cannot be a member of that CSB. As such the CSB was not convened to decide upon the issue of transfer. It is the council of ministers which has placed the applicant at the disposal of the Science and Technology Department. Therefore, no illegality can be attributed against Annexure A9 and A11 orders. No prior intimation is required to be given to the applicant before the issuance of the Government order. Transfer is not a punishment and is only an incident of service. Therefore, no stigma will be caused to the applicant for the sole reason that he was placed at the disposal of the Science and Technology Department while he was officiating as the Head of Forest Force. Transfer of the applicant from the post of PCCF&HoFF was necessary for the smooth functioning of the Department. Hence 2nd respondent prayed for dismissal of the OA.
5. A rejoinder has been filed by the applicant refuting the averments contained in the reply statement. Specific averments are seen made with reference to the Annual Performance Appraisal Report of the applicant (Annexure A13) which would speak for itself. The applicant was awarded the Full Bright Indo American Fellowship in 2008 and Full Bright Nehru Academic and Social Excellence Award in 2016. Receipt of other awards are also mentioned. The rule which has been introduced in implementation of the judgment of the Hon'ble Supreme Court includes providing minimum tenure so that government servants can execute their minimum service for the welfare of the people. But such fair principles are thrown to winds. The grounds now raised were existing at the time when the applicant was selected. Those allegations continued to exist even after the applicant took charge and performed duties as Head of Forest Force for more than one and half years. The duties, responsibilities and functionalities of the Director, KFRI are inferior in nature to that of the PCCF and HoFF.
6. Annexure A12 is the representation given by the applicant to the Chief Secretary on 28.10.2016 which has been produced along with MA 1227/2016.
7. An additional reply statement is filed narrating the allegations raised by the applicant against other Senior IFS Officers. The government is seized of the file relating to misappropriation of huge sum of money and misuse of official position while he was holding the post of Conservator of Forests, Social Forestry. The new government which came to power in May, 2016 observed the performance of the applicant for a substantial period and it is based on the same, decision was taken to transfer the applicant from the post of Head of Forest Force.
8. An additional rejoinder is seen filed by the applicant disputing the averments raised in the additional reply statement and contending that there has been a deep rooted conspiracy to transfer the applicant from the post of Head of Forest Force.
9. The points for consideration are whether Annexure A9 and A11 orders are liable to be set aside and whether the first respondent should be directed to appoint the applicant as PCCF and Head of Forest Force as sought for by the applicant?
10. Annexure A7 is the notification dated 28.1..2014 issued by the Govt. of India, Ministry of Personnel, Public Grievances and Pension, New Delhi. By Annexure A7 Indian Forest Service (Cadre) Rules, 1966 was amended. Rule 7 of IFS (Cadre) Rules, 1966 as amended in 2004 pertaining to postings is to the following effect:
'7. Postings. - (1) All appointments of cadre officers shall be made on the recommendation of the Civil Services Board as specified in the Schedule annexed to these rules. (2) All appointments to cadre posts referred to in sub-rule (1) shall be made-
(a) in the case of a State Cadre, by the State Government; and
(b) in the case of a Joint Cadre, by the State Government concerned:
Provided that the Central Government or the State Government may transfer a cadre officer for the purpose of filling leave vacancies or for making temporary arrangements for a period not exceeding three months, delegate its power of making appointments to cadre posts to Heads of Departments.
(3) A cadre officer, appointed to any cadre post shall hold office for at least two years unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding two months.
(4) A cadre officer, appointed to any ex-cadre post shall hold office for such period as may be specified by the State Government for that post, unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding two months.
(5) The Central Government or the State Government as the case may be, transfer a cadre officer before the minimum specified period on the of the Civil Services Board as specified in the Schedule annexed to these rules:
Provided that the Competent Authority may reject the recommendation of the Services Board by recording the reasons therefor.'
11. The schedule therein shows the composition of Civil Services Board (CSB) which is as follows:
1. Composition of the Civil Services Board:
Every State Government shall constitute a Civil Services Board which shall of-
(i) Chief Secretary - - Chairman
(ii)Senior most Additional Chief Secretary or Chairman, Board of Revenue or Financial Commissioner or an officer of equivalent rank and status - - Member
(iii)Principal Secretary or Secretary, Department of Personnel in the State Government - - Member Secretary
(iv)Principal Secretary or Secretary, Forest - Member
(v)Principal Chief Conservator of Forests - Member
12. Rule 3 therein deals with the procedure to be followed which says that CSB shall seek detailed justification from the administrative department of the concerned State Government for the transfer of an officer before the specified tenure, for which the CSB should consider the report of the administrative department along with any other inputs it may have from other reliable sources, obtain the comments or views of the officer proposed to be transferred based on the circumstances presented to it in justification of the proposal have from other reliable sources; not make recommendation for premature transfer of Cadre Officers uncles it has been satisfied itself of the reasons for such premature transfer. The proviso therein says that competent authority may reject the recommendation of the Civil Services Board for the reasons to be recorded in writing. Based on Annexure A7, Annexure A8 order was issued by the Government of Kerala on 5.5.2014. CSB was constituted based on the direction issued by the Hon'ble Supreme Court in one of the writ petitions which was disposed of by the apex court. It was pursuant thereto IFS Cadre Amendment Rules was passed as has been stated in Annexure A7. Para 5 of Annexure A8 mentions about Rule 2(3) of IFS (Cadre) Rules which stipulates that the cadre officer appointed to any cadre posts shall hold the office for at least two years unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding two months. It is further stated that Sub Rule 4 of Rule (2) of IFS Cadre Rules stipulates that the cadre officer appointed to any ex-cadre posts shall hold office for such period as may be specified by State Government for that post. It was further clarified that rules specifically provide that the competent authority will have the authority to overrule the recommendation of the CSB by recording the reasons in writing. Regarding the constitution of the Board it is mentioned that so far as IFS Officers are concerned, the Board consists of:
(i) Chief Secretary - - Chairman
(ii)Senior most Additional Chief Secretary or Chairman, Board of (Revenue or Financial Commissioner or an officer of equivalent rank and status - - Member
(iii)Principal Secretary or Secretary, Department of Personnel in the StateGovernment - - Member Secretary
(iv)Principal Secretary or Secretary, Forest - - Member
(v)Principal Chief Conservator of Forests - - Member In the Schedule to Annexure A7 the 5 th member is the Principal chief Conservator of Forests.
13. The main plank of the contention raised by the applicant is that there could be no difficulty to place the matter regarding transfer to the CSB even though the applicant cannot sit as a member of the CSB. When the issue comes up for consideration there could be no difficulty for other members to decide on the issue, provided there is majority, it is contended.
14. Admittedly the CSB did not meet with regard to the decision to be taken to transfer the applicant. It is vehemently argued by the learned cousnel for the applicant that the other officers who held the post as PCCF and Head of Forest Force continue in their office till their retirement. The rule also says that the period should be at least two years or till the date of retirement and so it does not restrict the tenure of two years. In any event the minimum tenure is two years and so before the expiry of the period of two years the officer cannot be transferred or sent on deputation whereas in the case on hand the applicant was not allowed to continue till the expiry of two years tenure provided under the rules. Rule/paragraph 5 of Annexure A7 says that the Central Government or the State Government as the case may be, may transfer a cadre officer before the minimum specified period on the recommendation of the CSB as specified in the Schedule annexed to these rules. Therefore, it is strenuously argued by Shri PV Mohanan, the learned counsel for the applicant that here is a case where the applicant did not complete the full tenure of two years prescribed under the rules. It is also a case where the first respondent did not constitute a CSB to decide or recommend on the question of transfer of the applicant and so Annexures A9 and A11 orders are per se illegal. It is further argued that the tenure of two years should be ensured by the first respondent unless it is a case where the CSB makes recommendations for his transfer as mentioned in Rule/Paragraph 4 of the Cadre Rules, 1966 as amended. The learned Additional AG would submit that Sub Rule 5 of Rule 7 itself makes it clear that the competent authority may reject the recommendation of the CSB, for reasons to be recorded. Therefore, according to the respondents the ultimate authority is the Government. So far as the case on hand is concerned, the decision to place the applicant at the disposal of Department of Science and Technology and thereafter to the KFRI, Peechi was not taken by a single member (Minister of Forests) but by the Council of Ministers. It was a collective and unanimous decision taken by the State Government and as such it can never be said that there is malice, prejudice, bias or non- application of mind in the transfer of the applicant, it is further contended by the respondents. The rule says that the report given by the CSB is only recommendatory in nature and it is further made clear that the competent authority may reject the recommendations. Hence the applicant's plea that since no decision was taken by the CSB, Annexures A9 and A11 orders are liable to be quashed is denuded of any merit. It is vehemently argued by the learned counsel for the applicant that since the order of transfer of sending the applicant on deputation was issued before the completion of the tenure of two years, the applicant should have been given notice and the concurrence of the CSB ought to have been sought but they did not do so and so these factors would scuttle the plea raised by the respondents that the decision to place the applicant at the disposal of the Science and Technology was done fairly and properly. But it was only a pretext to send the applicant unceremoniously out of the post of Head of Forest Force occupied by him such a hasty decision was taken, the learned counsel for the applicant submits.
15. It is also contended by the applicant that the necessity of minimum tenure was endorsed and implemented by the Union of India and it has been accepted by the State Government also as can be seen from Annexure A8. Such a minimum tenure was fixed in order to enable the officers to achieve their professional targets and also to function as effective instruments of public policy. It is also argued that repeated shuffling or transfer of officers would run counter to the necessity of good governance whereas minimum assured service tenure would ensure efficiency in the service delivery and increased efficiency which would actually boost the morale of such officers whereas repeated transfer or shuffling would demoralize the efficiency of such honest officers. There can be no dispute regarding the point so raised by the applicant. It is not disputed that the applicant was appointed as the PCCF and HoFF in the apex scale of pay of Rs. 80,000 w.ef. 1.12.2014 vide Annexure A3. It is also not disputed that the applicant is the senior most officer amongst the IFS officers serving in the State. It is stated that the former Head of Forest Force held that post from 27.9.2008 till he proceeded on deputation to KSEB on 14.12.2011. That is; he had completed 3 years and 3 months in that post. The officer who succeeded him held that post till retirement. But that was for less than two years.
16. With regard to the functions of CSB it is submitted by the applicant that the CSB shall examine the cases of officers who are proposed to be transferred before completion of minimum period of service and the CSB may consider for transfer before the tenure fixed under Sub Rules 3&4 of Rule 7 of IFS (Cadre Rules) based on such circumstances as it thinks fit. Therefore, according to the applicant the CSB alone can suggest transfer of the applicant before the expiry of the tenure fixed whereas here the CSB admittedly did not meet to consider the transfer of the applicant. Therefore, the very basic requirement for effecting transfer was not complied with by the respondents and so on that ground itself Annexures A9 and A11 are liable to be set aside, Shri PV Mohanan, learned counsel for the applicant submits. The fact that the applicant who himself is PCCF and HoFF would be one of the members of the CSB, does not mean that the CSB should not recommend and take a decision at all as to whether the PCCF (the applicant) is to be transferred or not, the applicant contends. The learned counsel would further submit that Rule 7 states that the CSB should consider the report of the Administrative department along with any other inputs it may have from other reliable sources, obtain the comments or views of the officer proposed to be transferred based on the circumstances presented to it in justification of the proposal and not make a recommendation for premature transfer of Cadre Officers unless CSB has been satisfied itself of the reasons for such premature transfer and as such it was incumbent on the respondents to have obtained the views of the applicant with regard to the proposed transfer but admittedly the CSB did not meet at all and no opinion was obtained; that also would make the position pejorative, the applicant contends.
17. As can be seen from the statements made in the original application, the applicant was also aware of the fact that the proposal for transfer was considered and decision was taken in the cabinet meeting. It is stated that the applicant was told by the Forest Minister on 26.10.2016 at about 8.30 pm after he came to know the transfer from the news channel. According to him he had submitted before the Minister that the transfer was not legal as the CSB did not meet to examine and recommend the applicant's transfer as mandated in Annexure A7 amended Rules and Annexure A8 order of the Government. Though the 4 th respondent was also impleaded in this case no relief has been claimed against him since it was clarified by the respondents and is borne out from record also that the 4 th respondent was only put in full additional charge of Head of Forest Force and that he was not appointed as PCCF or HoFF.
18. As can be seen from Annexure A4 the IFS Cadre strength in Kerala is one PCCF and HoFF and two other Principal CCFs (one holding the post of Chief Wildlife Warden) and the other (Principal Chief Conservator of Forests (Forest Management). It is not in dispute that the Head of Forest Force is a selection post and is in the apex scale having the pay scale at Level 17 - Rs. 80,000 (pre-existing) and now of Pay Matrix Rs. 225000 (fixed) while that of the two PCCFs the scale of pay is at Level 16 pay matrix Rs. 2,05,400 -2,24,100 in terms of IFS Pay Rules. Therefore, as can be seen from Annexure A4 at present there is only one cadre post of Principal CCF and Head of Forest Force in the apex scale Level 17 and two cadre posts of PCCF in the grade pay at Level 16 as just stated above. It is contended by the applicant that no ex-cadre post can be created at the apex scale. It is contended by the applicant that the Head of Forest Force heads and leads the Kerala Forest Department and is responsible for effective and efficient management of the States Forest. He is to provide support to increase greenery outside the Forest. It is stated that the Head of Forest Force is the Technical Adviser of the government on matters relating to forestry. The applicant claims to have adopted a professional approach in working and had taken a bold stand and as such he had so many achievements at his credit.
19. A civil servant has to function fearlessly with integrity and independence and for that purpose the frequent transfer at the sweet will and pleasure of the Government would be a stumbling block and it was in view of those factors the Hon'ble Apex Court issued directives based on which Annexure A7 amendment was brought into effect, it is argued. It was based on Annexure A7/Annexure A8 order was also issued by the Government but there has been a flagrant violation of all those directions contained in the judgment of the Hon'ble Apex Court and Annexures A7 and A8 in the matter of transfer of the applicant, it is vehemently argued by Shri PV Mohanan, the learned counsel for the applicant. Countering the allegation made in the reply statement that there were some complaints against the applicant , it is contended by the applicant that all those factors were available when he was appointed as the PCCF and HoFF. It is further stated that normally when a new government takes charge there would be some shuffling in the bureaucracy; it is usually done within a month or so but the applicant had been working smoothly for about five months which would suggest or indicate that there was no reason for the Government at the appropriate time to shift the applicant but all on a sudden without notice or without getting any decision or report of the CSB Annexure A9 and A11 orders were issued, he further contends. Thus according to the applicant there was a deep rooted conspiracy to unceremoniously unseat the applicant from the post of PCCF/HoFF. Since the grounds raised by the respondents in the reply statement were existing at the time when the applicant was selected, it is clear that such wanton and wild allegations are now made only to cause a slur on the unblemished service record of the applicant, the applicant further contends. The conspirators who wanted to oust the applicant from the post of Head of Forest Force were actually persons indulged in or somehow or other helping or assisting poachers and persons of doubtful characters. The applicant had been mercilessly sent out of the post of Head of Forest Force, he argues. There can be no doubt that in order to achieve professional target it would require at least the minimum time and so if an officer is sent out in the middle the implementation of the whole project would get defeated. According to the applicant the words 'at least two years' is only prescriptive and not restrictive and so there can be no doubt that the applicant can be allowed to continue till the date of his retirement in 2017.
20. The respondents would contend that there would have been no difficulty for the government to wait for one month more since even otherwise the applicant was to complete his tenure of two years by 30.11.2016. It is only on 28.10.2016; hardly one month before the expiry of the period of the tenure of 2 years, Annexure A11 dated 31.10.2016 was issued which itself would indicate that the Government had to take a decision at the earliest in view of the serious allegations levelled against the applicant. The respondents would contend that only because the applicant wanted to depict a rosy picture of himself certain aspects had to be highlighted in the additional reply statement. There were ever so many vigilance inquiries and other sorts of inquiries against the applicant, numbering to 27, shown in the additional reply statement. It is contended by the applicant that all those matters were pertaining to the years prior to the appointment of the applicant as Head of Forest Force. Even though such allegations were made still the applicant was found fit for appointment to the post of PCCF/HoFF and so according to the applicant that itself will make it clear that all those allegations made earlier against the applicant were false. Item 24 to 27 are the complaints which had surfaced after the applicant had taken charge as Head of Forest Force. The learned Additional Advocate General would submit that all those allegations/files were not earlier placed before the competent authority evidently because the applicant was in a position to control and dominate the office and thereby it was possible for him to push all those files under the carpet and that was why these files did not see the light of the day. Only later all these files were raked up and placed before the new Government. Ever so many allegations of fraud, misappropriation etc., did surface according to the respondents. Item No.27 speaks of the Government file dated 9.11.2016 which shows that the Additional Chief Secretary had proposed to initiate disciplinary action against the applicant and to get legal opinion on initiating action against other retired officials as well. There were other complaints also against the applicant. Respondents would contend that a perusal of the files regarding vigilance inquiry and other enquiries conducted against th applicant numbering to 27 for the period from December 2005 would give a clear picture as to how and what the applicant was. Any Government in power cannot tolerate or shut their eyes to such activities, the respondents contend. The learned Additional AG would submit that these aspects had to be placed before the court only because of the fact that the applicant wanted to project himself as a well dignified officer of high discipline, decorum, integrity, uprightness etc. The contention that there was a coterie against the applicant to oust him from the post of Head of Forest Force and that the said coterie was always eager to have their operation and to have unhindered favouritism and nepotism has been strongly countered by the respondents.
21. It is unnecessary for this Tribunal to dwell much on those allegations since the only point that remains for consideration is whether the first respondent had acted fairly and legally in passing Annexures A9 and A11 orders or whether those orders are to be set aside or interfered with. As stated earlier the main ground that has been projected by the applicant is that though the pay of the applicant was protected, as can be seen from Annexures A9 and A11, that alone is not sufficient to hold that the applicant was placed in an equivalent post; in other words the pay alone is not the decisive factor.
22. It is contended by the applicant that though several allegations are made in the additional reply statement as has been stated above no memo was even issued and no explanation was called for from the applicant and as such those entries or remarks made in those files cannot be made use of against the applicant as it would amount to denial of natural justice. It is further stated that the order dated 5.11.2016 which was stated to be the remark or report dated 5.11.2016 shown as item No.27 in the additional reply statement speaks of only some of the allegations against the applicant which came to light after the issuance of Annexure A11 order dated 31.10.2016 and no credence can be given to such a report or action initiated against the applicant after 31.10.2016. It is argued on behalf of the respondents that it is not something which sprang up like anything after 31.10.2016 but it was based on the detailed report and other aspects conducted earlier, which can be discerned from the concerned file, that such a report was given by the Additional Chief Secretary. There can be no doubt that the Additional Chief Secretary has no axe to grind in the matter nor can there be any allegation of malice or bias against the Additional Chief Secretary and as such the contention that such a report was given on 5.11.2016 after Annexure A11 to justify first respondent's action cannot be given weight at all. It is too tenuous to be countenanced.
23. It is contended by the respondents that the applicant who is a resident of Ernakulam used to arrange his tour programmes in such a manner that he could be in and around Ernakulam and so it led to a situation where the Head of Forest Force was used to be unavailable many a time at the Forest Headquarters. Thus it is stated that the applicant miserably failed in providing effective leadership to the State Forest Force and in coordinating the entire Force as such. The applicant being the Head of Forest Force should be a role model for other officers but he himself was doing this sort of activities, it is alleged. It is further contended that the applicant used to prefer complaints to the Government against various senior officers of the Stat Forest Force raising trivial issues which caused serious resentment among the IFS Officers which ultimately led the IFS Association itself to make a representation the Government regarding the repeated complaints made by the applicant against such officers. According to the respondents the allegations made by the applicant were later found to be unfounded. Therefore, according to the respondents the applicant was actually indulged in activities detrimental to the institution as such. When the matter reached such a situation the applicant made another ground against himself. He sent a letter to the Chief Secretary to the effect that the question posed by a particular MLA of the Kerala Legislative Assembly was at the instance of a particular senior officer of the State Forest Force, which according to the respondents may even amount to breach of privilege of the State Assembly.
24. So many such instances were highlighted by the respondents to contend that the applicant's performance was totally unsatisfactory and was not expected of from the Head of Forest Force who has to head and lead the institution in a proper manner. According to the respondents the applicant's approach or attitude in sending frivoulous complaints against his fellow IFS officers in fact affected the morale of some of the senior officers of the State Forest Force and has even affected the day to day functioning of the Forest Force. These are the factors which weighed with the Government to think that there is no alternative other than to remove the applicant from the post of Head of Forest Force. According to the respondents there are files pertaining to the misappropriation of government funds, abuse of official position while the applicant was officiating as the Conservator of Forests (Social Forestry) etc., Those allegations did weigh with the Government to see that he should not be allowed to remain in the post of Head of Forest Force.
25. Shri P.V Mohanan the learned counsel appearing for the applicant has strenuously argued that though the post of Director of KFRI was also placed in the apex scale of Rs. 2,25,000/- and thus the pay of the applicant was protected it cannot be treated as an equivalent post to that of PCCF&Head of Forest Force since that post does not carry the duties and responsibilities of a like nature to that of PCCF/Head of Forest Force. The learned counsel has relied upon the decision of the Constitution Bench of apex court in EP Royappa Vs. State of Tamilnadu -AIR 1974 SC 555. That was a case where the applicant who was an IAS Officer was posted to act as Chief Secretary to the Government w.e.f. 30.11.1969. By order dated 27.6.1972 the Government of Tamilnadu accorded sanction for creation of a temporary post of Officer on Special Duty in the grade of Chief Secretary to the Government for a period of one year from the date of appointment or till the need for it ceased whichever was earlier. By the same order the petitioner therein was transferred and appointed as Officer on Special Duty in the post so sanctioned. He challenged the orders appointing him as Officer on Special Duty. The first contention raised by him was that he was transferred to a post which is not a post carrying duties and responsibilities of a like nature to the cadre post within the meaning of Rule 4 of IAS (Cadre) Rules, 1954. The plea raised therein was that under Rule 9 of IAS (Pay) Rules, 1954 no member of service shall be appointed to a post other than a post specified in Schedule III unless the State Government concerned who under its control or the Central Government in respect of post under its control as the case may be make a declaration that the said post is equivalent in status and responsibility to a post specified in the said schedule. Therefore, it was contended in that case that the petitioner who was a cadre post holder, holding the post of Chief Secretary cannot be posted to a non-scheduled post without a declaration that the non-scheduled post is equivalent in status and responsibilities to a schedule post. This contention is of no avail to the applicant herein, the learned counsel for respondents submits in view of the fact that there is a clear declaration in Annexure A9 order itself which reads:
'....The post of Director, KFRI is declared equivalent in status and responsibility to the cadre post of Principal Chief Conservator of Forests & Head of Forest Force in the apex scale of Rs. 2,25,000 (Rupees two lakhs twenty five thousand only) as per Rule 11 of IFS (Pay) Rules, 2007.....'
26. The learned counsel for the applicant would submit that mere declaration of a nature as mentioned above will not serve the purpose but it has to be tested with respect to the duties and responsibilities of the Head of Forest Force vis-a-vis the Director, KFRI. The status and duties of Head of Forest Force can never be compared to that of the Director, KFRI, the applicant contends. According to the respondents to discharge the functions of the Director, KFRI specialized experience is required and that is why the applicant was chosen to be posted as Director KFRI. The respondents would contend that when the Government after due deliberation declared that the post of KFRI is equivalent to that of PCCF and Head of Forest Force, that declaration cannot be simply ignored by the applicant stating that the duties and responsibilities of the two posts are different in nature. Here, it is not a case where the post was added temporarily to the cadre. The post was already in existence but it was made equivalent to that of PCCF/Head of Forest Force. According to the respondents since the government made a declaration that such a post is equivalent in status and responsibility to that of PCCF and Head of Forest Force, and when the applicant was appointed to that post, it cannot be said that there is any illegality in passing Annexure A9 order consequent to which Annexure A11 was issued.
27. The learned counsel for the applicant would submit that in order to get over the difficulty of the principles laid down in Royappa's case (supra) the first respondent by a subtle device tried to create an impression that both posts are equivalent in status, but in fact it is the other way around. The respondents would contend that the post of Director KFRI is not inferior to that of PCCF and HoFF. It was held by the Supreme Court in Royappa's case in para 79 that it would be open to a member of the service to contend, notwithstanding the declaration of equivalence, that the non-cadre post to which he is appointed is in truth and reality inferior in status and responsibility to that occupied by him and his appointment to such non-cadre post is in violation of Article 311 or Article 14&16 of the Constitution of India. It was held that the burden of establishing this would undoubtedly be very heavy and the Court would be slow to interfere with the declaration of equivalence made by the government. It was further held that the Government would ordinarily be the best judge to evaluate and compare the nature and responsibilities, the functions and duties attached to the different posts with a view to determining whether or not they are equivalent in status and responsibility. When the government has declared equivalence after proper application of mind to the relevant factors the court would be reluctant to venture into the unchartered and unfamiliar field of Administration and examine the correctness of the declaration of equivalence made by the Government. Therefore, the learned Addl.AG would submit that there is nothing on record to show that the Government had acted unfairly or that there was non application of mind and there is no material to show that the declaration of equivalence made by the Government is unacceptable. Since the burden is on the applicant to prove that the declaration of equivalence made by the Government is unacceptable for one reason or the other and when there is no tangible material to hold that the two posts are not equivalent in status and responsibility, the declaration made by the Government has to be accepted as correct since that is the ratio propounded by the Hon'ble Supreme Court in Royappa's case.
Of course, it was also held by the Hon'ble Supreme Court that the State Government cannot artificially create equivalence by saying that a particular non-cadre post, whatever be the nature and responsibilities of the functions and duties attached to it, shall be in the rank or grade of any cadre post it lies and that the State Government has to apply its mind and make an objective assessment of the nature and responsibilities of the functions and duties and determine which is the cadre post to which such non-cadre posts should be regarded equivalent in status and responsibility and then only it can make a declaration of equivalence. So far as the case on hand is concerned there is a clear declaration of equivalence in regard to the duties and responsibilities as can be seen from Annexure A9 dated 28.10.2016. Shri Mohanan the learned counsel for the applicant would submit that though ultimately the relief as prayed for was not granted in Royappa's case, since the petitioner therein had accepted the appointment without demur as he thought that the post of Deputy Chairman was of the same rank and carried the same emoluments as the post of Chief Secretary so far as the case on hand is concerned the applicant joined the post of Director, KFRI subject to the objection raised by him and it was so recorded by this Tribunal also that his taking charge as Director KFRI would be subject to the final outcome of this OA. Therefore, it is not a case that he voluntarily accepted the post and took charge as Director, KFRI. Though there may be slight difference in the nature and responsibilities or the functions and duties attached to the two posts still it cannot be said that the posts are not equivalent.
28. In Royappa's case it was also held that what has to be seen for equivalence is the status and the nature and responsibility of the duties attached to the two posts. Merely giving the salary of one post to the other does not make for equivalence. Therefore, the apex court was not prepared to accept the thesis that the post of Officer on Special Duty was equivalent in status and responsibility to the post of Chief Secretary as claimed by the respondents therein. But it was also held that equally it is not possible for the court to hold based on the materials on record that the post of Officer on Special Duty was inferior in status and responsibility to the post of Chief Secretary though prima facie it does appear to be so. Ultimately it was held by the Supreme Court that it is not possible to hold that the petitioner was arbitrarily or unfairly treated or that equality was denied to him when he was transferred from the post of chief Secretary and in his place Shri Sabanayakam his junior was promoted and confirmed. Further it was held that challenge based on Articles 14 and 16 must therefore, fail. According to the Additional AG these observations will actually run counter to the case pleaded by the applicant. In any event no acceptable material has been placed by the applicant to contend that the post of KFRI is inferior in status to that of PCCF and HoFF. The Government had declared the post of Director, KFRI equivalent in status and responsibility to that of PCCF and HoFF. That is to be accepted as correct as there is no material to hold otherwise.
29. The applicant contends that hearing an officer before an order having adverse consequence is passed is both reasonable and preemptive of arbitrariness and denial of this administrative fairness is constitutional anathema except for good reasons. So far as the case on hand is concerned it is not a case that any real urgency, where public interest demand or public interest does not brook even the minimum time needed to give a hearing and as such the impugned orders suffer from the vice of arbitrariness and undue haste which would smack of malafides, the applicant contends. The learned counsel for the applicant has relied upon the decision of the Hon'ble Supreme Court in State of Punjab and others Vs. Gurdial Singh and others - - AIR 1980 SC 319 where, with regard to malafides in the jurisprudence of power it was held by the apex court '........Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. .....b� Obj00DFF062 It was also held that if the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not a legicidal. It was also held that the action would be only where the object is to reach an end different from the one for which the power is entrusted, guided by extraneous consideration, good or bad , but irrelevant to the entrustment. Therefore, it is argued on behalf of the respondents that so far as the case on hand is concerned, it can never be said that the object of issuing the impugned orders was not legitimate nor can it be said that it was actuated by malice or prompted by extraneous considerations. Since the order was passed based on the decision taken by the cabinet no malice can be attributed against the cabinet and so it cannot be said that the custodian of power was influenced in its exercise by considerations outside those for promotion of which the power was vested. To put it pithily it cannot be said that there was colourable exercise of power. It is further argued by the learned counsel for the applicant that where the power is conferred to a particular purpose it has to be exercised reasonably and in good faith to effectuate the purpose but where power is exercised for extraneous or irrelevant considerations or reasons it is unquestionably a colourable exercise of power which can be termed as fraud on power and so it is vitiated. The principle enunciated by the Supreme Court in Gurdial Singh's case cited supra was followed by the apex court in The Collector (District Magistrate), Allahabad and another Vs. Raja Ram Jaiswal - - AIR 1985 SC 1624. The facts of this case as delineated earlier do not persuade us to hold that there was a colourable exercise of power.
30. The learned Additional Advocate General has produced the file relating to the transfer, complaints against the applicant etc. It is seen that a memorandum was submitted by the IFS Association Kerala Unit to the Hon'ble Minister for Forests on 6.11.2015. It was signed by the President, Secretary and Treasurer of that Association. Several complaints of non- coordination by interference in work of all wings, imposition of personal perception on the whole department, unproductive meetings conducted in inappropriate way, mismanagement of IFS cadre, inefficient additional charge, lack of transparency and so many such complaints; altogether 11 in total are seen narrated in the said memorandum given to the Minister. It is seen from the very same file that the applicant had sent a letter to the Principal Secretary to Government, Forests and Wild Life Department on 20.11.2015 against the IFS officer who is the President of the Association alleging indiscipline and unprofessional acts of the said officer etc. There is another complaint dated 15.1.2015 addressed to the Principal Secretary, Forests and Wildlife Department in which the additional Principal CCF (Vigilance) has stated that CCF (Vigilance) is expected to function independently and impartially, which also shows certain complaints having been raised against the applicant herein. It appears that a complaint was given to the Hon'ble Prime Minister by the President of one of the political parties, pointing out corruption, irregularities etc, in the Kerala Forest Department.
31. It is also submitted by the learned Additional Advocate General that a question was asked in the Kerala Legislative Assembly (Question No.3357) relating to senior IFS officials to which the Head of Forest Force has reported that the needle of suspicion points to SG Maheshkumar IFS etc. It seems after considering all the aspects the Chief Secretary and Additional Chief Secretary suggested that no action is warranted. It appears from the file that the applicant had raised a suspicion regarding the modus operandi in approaching the MLA to put questions etc. Anyway that file was closed since it was opined that no action was necessary in the case. According to the learned Additional AG so many complaints were raised against the functioning of the applicant herein. Another file shows that the applicant had given complaint on 1.8.2015 to the then Chief Minister of Kerala. The press report relating to Elephant and Tiger poaching etc., and about 'negative actions of wild life pottery etc.' are reported. In the said complaint he had mentioned about officers in the 'coterie' including retired officers. The names of those officers are seen mentioned in Paragraph 7 of that complaint. He had also sent a complaint to the Chief Secretary on 10.7.2015 about the alleged dereliction of duty, disobedience of orders, misbehavior etc., of certain officers particularly about an IFS Officer who is the President of the IFS Association. On going through this file it would appear that there was ego conflict between IFS Officers and that so many complaints and counter complaints were raised against the officers by the opposite wing. Complaints are raised against the applicant also.
32. Another file produced by the respondents in this case is regarding the allegation that the applicant used to be invariably away from headquarters on several days and that he used to be always in Kochi or nearby areas as he has got a house in Kochi. The tour programme is arranged in such a way to make his stay at Kochi as official and for that purpose some tour programmes were used to be sent to make it appear that he is on official tour. The file produced to that effect may probabalise the plea raised by the respondents. The applicant would contend that no action whatsoever was taken by any of his superiors pointing out any illegality or irregularity in making such tour programme or leaving the headquarters and so such contentions cannot be raised by the respondents at all. The learned Senior Counsel/Additional Advocate General would submit that it is not necessary that on each of those occasions a show cause memo should be issued to such an officer of PCCF but it is only a matter to be seen from the file that the applicant was always keen and interested to be at Kochi to meet his own personal requirements.
33. Another file has also been placed before us to show that there was a report submitted by Director of Vigilance and Anti Corruption Bureau on 11.5.2006 to the Principal Secretary to Government which was pertaining to the misuse of official position and misappropriation of Government money by the officials of Social Forestry Ernakulam. It was stated that there is no evidence to register a case but it could be seen from the report that though documents may show that expenditure might have been properly accounted, it was doubted whether the money shown to have been expended as per the vouchers, had been properly utilized for the purpose shown therein. For example; in one case though 44800 saplings had been shown to have been planted in three plantations no planted plants were seen there and so it was stated that mere auditing of accounts will not bring out the truth behind it. Therefore, it was suggested that the Forest Department should conduct a through inspection and audit of the accounts and bring out the irregularities in the matter. During the relevant time, (according to the respondents) the applicant was in charge of the Social Forestry. These files have been produced by the respondents to counter the contention raised by the applicant that there was no complaint whatsoever against him and that he is an officer of impeccable integrity, but according to the respondents the file so produced will disprove the plea so raised by the applicant. It is submitted on behalf of the respondents that the files would show that there were ever so many irregularities, complaints etc. In other words, the plea raised by the applicant that there were no adverse reports in his ACRs/APARs and so there was no justification for not allowing him to continue in that post is bereft of merit, the respondents contend. Be that as it may, it is not necessary to probe into all these aspects since we are not looking into the aspect as to whether there had been such serious complaints against the applicant. That is a matter to be dealt with separately if any such complaint is made or inquiry is ordered.
34. Learned Additional Advocate General has also placed before us the copies of the Government orders pertaining to this matter. This has been produced by the respondents to show that the Minister for Forests, Animal Husbandary Dairy Development placed before the Chief Minister the proposal/suggestion to post the applicant as the Director, Kerala Forest Research Institute,(KFRI) Peechy. This note file also contains the note dated 03.10.2016 explaining the reasons as to why the applicant was sought to be replaced. The note put by the Minister for Forests shows that request was made by him explaining the necessity to transfer him from the present post and that for complying with the legal and administrative requirements he should be allowed to continue in the apex scale already being drawn by him. It is inter alia stated therein that the performance of the applicant was under observation. The observation/comment made in that regard shows that the applicant consistently failed in co-ordinating all wings of Forest Department; he was found lacking in competence to give technical advice to the Government in important policy matters relating to Forest Department; he was indirectly helping the forces at work to grab forest land resources and that he was found indulging in activities contrary to the established stand taken by the Government. So many other shortcomings or failures on his part are also stated therein. In this context the learned Additional AG also points out that there were various complaints given by the IFS Association complaining of the unbecoming behaviour, activities, etc. of the applicant. The learned Additional AG submits that it is only to clear any doubt in the mind of the Court that the file has been produced and it is not intended to cause harm to anybody.
35. It is vehemently argued by the learned counsel for the applicant that no notice or memo was ever issued to the applicant suggesting any irregular or illegal activities on the part of the applicant and so simply because some complaints were given by the Officers, it cannot be said that those allegations should have been simply swallowed as the gospel truth by the Minister for Forests or by the Government as a whole. But this is countered by learned Additional AG pointing out that for each and every complaint it will not be practical or conducive to initiate action and so the Government machinery will always see that such officers are replaced so as to avoid unnecessary controversies or complaints. In such matters it is not feasible or practicable to initiate action based on each and every complaint. Therefore, the fact that disciplinary action was not taken earlier or that memo was not issued to the officer/applicant is no reason to say that allegations mentioned earlier were not true. The fact that there were specific complaints against the applicant with regard to the activities undertaken which he was in charge of Social Forestry and similar department are matters now being scanned carefully by the Government. These aspects according to the respondents have been highlighted here only to fortify the contention that there were justifiable and weighty reasons to transfer the applicant from the present post. Even though the Minister of Forests was competent to pass an order of transfer in the manner indicated earlier in order to avoid a plea of prejudice or bias towards the applicant or predilection towards any other person the matter was brought to the notice of Hon'ble Chief Minister to place it in the Cabinet and the council of Ministers (the Cabinet) unanimously decided to transfer him from the present post and appoint him as Director, Kerala Forest Research Institute (KFRI), Peechy on deputation basis.
36. There was one other reason to place the matter before the Cabinet. It was not possible for the CSB to look into the matter because the applicant himself was the member of the Board. No quorum was prescribed as per the Annexure A7 or Annexure A8. So if the decision of CSB was to be obtained it can only be by the CSB in entirety. As the applicant was the member of the CSB he cannot sit as the member. Therefore, the Minister of Forests thought it fit to avoid taking the decision by himself but in his wisdom thought it fit to place it before the Cabinet to have a collective decision. This will set at naught the plea of bias or malice levelled by the applicant.
37. The learned counsel for the applicant has also relied upon the Constitution Bench decision of Hon'ble Supreme Court in S.N. Mukerji v. Union of India AIR 1990 SC 1984 where it was held that recording of reasons by an administrative authority serves a salutary purpose; namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making and the said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. It was held:
'.....In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.'
38. Drawing inspiration from what have been quoted above the learned counsel for the applicant submits that the impugned order does not speak of reasons which prompted the respondents to transfer him from the post of PCCF & HoFF and to post him as Director of KFRI which according to the applicant is inferior in status, duty and responsibility. But the learned Additional AG would submit that so far as the case on hand is concerned, the decision was taken by the council of Ministers / Cabinet and so there would not be any discussion regarding the reasons which necessitated the transfer of the applicant from the post of PCCF & HoFF to the Director KFRI since it has to be assumed that the Cabinet had deliberated upon the requirement of his replacement. It is further submitted that the Tribunal cannot sit in judgment over the decision of Council of Ministers as an Appellate Authority to find whether the reasons which weighed with the Cabinet is justifiable and acceptable. It is further submitted that since the decision was taken by the Cabinet, it must also be held that it was done in the larger public interest and, therefore, the applicant cannot expect the Council of Ministers to note down the entire reasoning which prompted them to take the decision as aforesaid.
39. The learned Additional AG has relied upon the decision in Francis Vs. Karunakaran Nambiar, 1994 KHC 398=(1994) 2 KLT 651 to fortify his submission that on the principles of collective responsibility whatever decision taken by the council of ministers is to be taken as the Cabinet Decision. It is stated that even if some members of the Cabinet dissented at the time when the matter was discussed, once decision is taken it is taken as Cabinet Decision. It was held therein that the court cannot inquire into the decision of the Cabinet or the mode in which aid and advice was tendered to the Governor. Therefore, it is submitted that in the instant case a decision was taken by the council of ministers/cabinet and as such it would be impermissible for the court to go into the matter as to whether there was a proper application of mind or proper discussion etc. Since the decision was taken by the Cabinet itself, even if there was any procedural irregularity as contended by the applicant that the Civil Service Board did not meet to pass an order of transfer, the effect of the said illegality gets obliterated or cured by the fact that the Cabinet itself took the decision to replace the applicant from the post of PCCF & HoFF and to appoint him as the Director, KFRI.
40. It is argued by the learned counsel for the applicant that as the applicant was removed from the post of PCCF and HoFF actually a stigma is cast which would affect the pride and honour of the applicant. An example has been pointed out by the applicant that a probationer can be terminated but if on the other hand the termination is preceded by an observation or comment that his conduct and character are such that he is unfit or unsuitable to the post, then certainly that would be a stigma cast on him affecting his future prospects. Anyway it is not necessary to dwell much on those aspects as we are not of the opinion that any stigma or aspersion was cast on the applicant by the impugned orders.
41. The decision rendered by the Hon'ble Supreme Court in M.Sankaranarayanan Vs. State of Karnataka and others - (1993) 1 SCC 554 = 1993 KHC 848 has also been referred to in this connection. There, the appellant Shri Sankaranarayanan was appointed as Chief Secretary to the Karnataka Government. The post of Additional Chief Secretary was encadred by notification dated 30.1.1987 with the same pay as of the post of Chief Secretary. The post of Secretary, High Power Committee was created by the State Government in 1989 with the designation Chairman, Karnataka Development Board. That post was declared equivalent in status and responsibilities to the cadre post of Additional Chief Secretary under Rule 9 of IAS (Pay) Rules. The posts of Chief Secretary, Secretary High Power Committee and Additional Chief Secretary carried equal pay. On 3.1.1991 the cabinet of Karanataka took a decision to have a change of Chief Secretary and pursuant thereto the Chief Minister on 4.1.1991 declared that the post of Secretary, High Power Committee was equivalent in status and responsibilities to the post of Chief Secretary of the Government and transferred the appellant, Sankaranarayan to the post of Secretary, High Power Committee with immediate effect and appointed the 4th respondent Shri Prabhakar Rao to the post of Chief Secretary to the Government. It was contended before the Hon'ble Supreme Court that the declaration of equivalence was issued post facto on 5.1.1991 and so it cannot cure the initial defect of not declaring equivalence of the post in question prior to the order of transfer made on 3.1.1991. Though allegation of malice of facts was put forward that was denied by the State of Karnataka and the Chief Minister of Karnataka. Thy contended that the posts of Secretary, High power Committee was equivalent to the post of Additional Chief Secretary and such a declaration was made long back and the Additional Chief Secretary and the post of Chief Secretary were also equivalent and inter-changeable. The C.A.T after considering the facts and circumstances of the case came to the finding that the freedom to choose the person as a Chief Secretary to the liking of the Chief Minister and the cabinet on whom there is absolute confidence is an undisputed prerogative and such a decision becomes unassailable when it is made in a bonafide manner following the statutory formalities to such selection and appointment. In support of that, the decision of the Hon'ble Supreme Court in EP Royappa (supra) and other decisions were relied upon. The Tribunal came to the finding that the applicant had no subsisting right to remain as Chief Secretary and it was the prerogative of the Chief Minister and the cabinet to take a decision to appoint a person to the post of Chief Secretary in place of the appellant to whom the Cabinet and the Chief Minister had confidence. The Tribunal accepted the contention of the respondents therein that in order to avoid any embarrassment and complication the State Government had made a declaration on 4.1.1991, prior to the transfer of the appellant, that the post of Secretary, High Power Committee was equivalent in status to the post of Chief Secretary but the formal authenticated order declaring the said equivalence was issued only on the next day; namely 5.1.1991. It is noticed that a declaration was made by the State Government so that a cadre officer belonging to the I.A.S may be transferred to the non-cadered post of Additional Chief Secretary but later on the post of Additional Chief Secretary was encadered on the basis of triennial review. It was contended that the question of equivalence comes only when one post is outside the cadre post of Indian Administrative Service. Though it was vehemently argued before the Supreme Court that the declaration of equivalence was post facto (that is after the transfer order dated 3.1.1991), it was argued by the Attorney General that if there has been a declaration under Rule 9(1) of IAS (Pay) Rules, the post must be held to be equivalent irrespective of the fact that because of the rules of business one of the two equivalent posts enjoy some advantage or privilege. After considering the respective contentions it was held by the Hon'ble Supreme Court that the appellant therein was not able to lay any firm foundation warranting a finding that the impugned order of transfer was passed malafide and/or for an oblique purpose in order to punish the appellant and/or to humiliate him. It is pointed out that it may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of malafide from the facts pleaded and established but such inference must be based on factual matrix and such factual matrix cannot remain in the realm of surmise or conjecture. Though arguments were addressed in that behalf the Hon'ble Supreme Court held that it was unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn. Though it was vehemently contended that the impugned order was invalid for want of declaration of equivalence under Rule 9(1) of IAS (Pay) Rules, it was held that there had been a declaration when the re-designated post of Secretary, High Power Committee was established and that the said post was equivalent to the post of Additional Chief Secretary. The positive stand taken by the State Government that the post of Chief Secretary and Additional Chief Secretary are equivalent was accepted. It was held by the Tribunal that if at all there was only a technical violation for which no interference is called for. Accepting the said contention, ultimately the view so taken by the Tribunal was upheld by the Hon'ble Supreme Court in the decision cited supra. This decision per force applies to the facts of this case.
42. The learned Additional AG has placed reliance on the decision of the Kerala High Court in CV Mohankumar Vs. University of Kerala and others - 2007 KHC 5779 = (2007) 4 KLT 879 wherein it was held:
'...... When the enabling provision prescribes a quorum, the meeting of the Committee could be transacted with that minimum and it can be transacted with that minimum number of members being available, without the entire committee being available. The provision of fixing a quorum is essentially to ensure that meeting goes through even in the absence of some of the members, provided the minimum requisite, as prescribed as the quorum, is available. But in a situation where no quorum is prescribed by the enabling provision, it is not the law that the Committee can decide without sitting in terms of the provision of law. In the absence of a prescription as to quorum being made by the relevant laws, the Committee can function only if all its members are available and sitting......'
43. Relying on the same the learned Additional AG has argued that admittedly no quorum was fixed as per Annexure A8. In the absence of a quorum having been prescribed the CSB can function only if all the members are available. If all the members are to be made available then it would be a case where the applicant who is the Principal Chief Conservator of Forests and Head of Forest Force who is one of the members himself should also sit as the member of the CSB. No doubt it is impermissible in view of the fact that he cannot sit as a judge in his own cause. Therefore, it was not possible for the CSB to meet and decide the question of transfer of the applicant from the post of Head of Forest Force. Though the facts dealt with in the aforesaid decision may not be exactly identical to this case, the principle of law enunciated therein is equally applicable to the facts of this case, the learned Additional AG submits. Therefore, according to the learned Additional AG there was nothing wrong in not convening the CSB for the purpose of discussing and deciding the issue of transfer of the applicant.
44. The learned counsel for the applicant has relied upon the decision of the Division Bench of the High Court of Kerala in Principal Karuna Medical College Vs. Admission Supervisory Committee and others - WP(C) No. 17328/2014 dated 10.4.2015 and submits that the decision of the Single Bench in Mohankumar (supra) cannot be accepted as the correct principle of law. In the Karuna Medical College case, (supra) while considering Section 4 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee Regulation of Admission, Fixation of Non- exploitative Fee and other Measures to ensure equity and excellence in professional Education) Act it was found that the Act does not contain any provision prescribing quorum for the meting of the admission supervisory Committee and on that basis the contention was raised that a meeting to be valid should be valid with all members present and that therefore, the decisions which are impugned in the writ petitions being that of the Chairman and another member are illegal. Section 5 (3) of that Act says that the Committee shall have the power to regulate its own procedure in all matters arising out of the discharge of its functions. Considering the fact that the members of the committee other than the educational experts belonging to Scheduled Caste/Scheduled Tribe Committee are all Secretaries to the Government and the Commissioner for Entrance Examination having multifarious official duties to discharge, it was held that the legislature has incorporated such a provision fully being conscious of the practical difficulties which the committee would otherwise face in transacting the business. In Section 4(2) of the Act mentioned above it was said that there was no provision either in the Act nor in the Rules made thereunder regarding quorum of the Committee and it was observed that there is practical difficulty in transacting the matters coming up for discussion of the committee in the absence of the majority of the members at the meeting. The committee decided that in the absence of at least two members Chairman and one member can transact all routine matters of the committee including hearing of complaints, taking evidence etc. Taking note of the earlier case law it was held by the Division Bench that since the committee itself has, in exercise of its power under Section 4(2) and 5(3) adopted its own procedure for the conduct of its business and when the impugned orders are in compliance with the procedure thus adopted, the petitioners cannot be heard to contend that the committee has acted without quorum and therefore, its decision is illegal.
45. The decision of the apex court in Punjab University, Chandiarh s. Vijay Singh Lamba --(1976 (3) SCC 344) and Ram Bharosey Agarwal Vs. Har Swarup Maheshawari (1976) 3 SCC 435 were referred to by the Division Bench in the case cited supra. It was found by the Division Bench 'reading of the judgments referred to above shows that according to the Supreme Court so far as committees are concerned it is generally left to the committees themselves to fix the quorum for their meetings and in the case of a court if by law any matter is required to be heard; say by a Bench of three judges there is no power in those three Judges to resolve that only two of them will form a quorum. The learned counsel for the applicant would submit that in the light of these judgments it was incumbent on the CSB to take a decision and fix a quorum for their meeting and to decide the issue but admittedly the CSB did not meet at all. The facts dealt with in the Division Bench decision are not identical to the facts of this case. There is no provision in Annexure A8 which empowers the CSB to decide as to the quorum nor does it empower the committee to have its own procedure in the matter of convening of meeting or the decision making process. Therefore, the CSB was not authorized to have a procedure of its own and then take upon itself the decision as to how the quorum is to be fixed etc.
46. It may be argued that even if quorum is not fixed if the majority of the members were present and if there could be no difficulty to convene a meeting and if that majority decides one way that could have been accepted as the decision. There is another line of thinking also that in a case of this nature the first respondent could have addressed the Union of India to depute another officer in the rank of PCCF from the Forest/Environment Ministry of Union of India to be a member of the CSB and to decide the issue relating to the transfer of the applicant. Such procedures are not prescribed as per Annexure A8. There could be no guarantee that such a decision would be upheld by the Court, the respondents apprehend.
47. The decision of the Supreme Court in A.K. Kripak and others Vs. Union of India - 1969(2) SCC 262 = (1969 KHC 240 has also been relied upon in this connection. That was a case where the Chief Conservator of Forests was a member of the Selection Board. Mr. Naqishbund was the Chief Conservator of Forests. He was one of the persons to be considered for selection and as such it was held that under the circumstances it was improper to have included him as a member of the selection board. It was held by the Supreme Court that it is against all canons of justice to make a man judge in his own cause. It was held:
'15.........He was one of the persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the committee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of this participation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of Naqishbund to keen out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates. ' It was observed that at the time when the selection was made the members of the Selection Board other than Naqishbund were not likely to know that Basu had appealed against his supersession and that his appeal was pending before the Sate Government. Though it was argued that even if it was a case where Mr. Naqishbund could not have participated in the deliberation of the selection board while it considered the suitability of Basu, Baig and Kaul there was no ground to set aside selection of other officers. The Hon'ble Supreme Court did not agree with the said submission and ultimately the Civil Appeal was allowed setting aside the selection since it was found that Mr. Naqishbund was a party to the preparation of the select list, in order of preference, where he was shown as Sl.No. 1 in the list.
48. In the light of the aforesaid decision it can never be contended that the CSB could have met, the applicant being one of the members of that Board. If the applicant is excluded then the committee could not have met since all the members were not there. Since the quorum was not prescribed it was not possible to hold that majority of the members would form the quorum. Therefore, according to us there was nothing wrong in not convening the CSB in the matter of transfer of the applicant.
49. The learned Additional AG would submit that the decision in Mohankumar cited supra which unequivocally held that where no quorum is prescribed the committee cannot decide and in the absence of a prescription as to quorum the committee can function only if all the members are available to hold sitting. When that was the decision of the High Court, it can be said that the first respondent was well advised not to have the CSB meeting as it was not possible to hold the meeting since one of the members was the applicant himself.
50. It is further argued on behalf of the respondents that the left over service of the applicant was only one month and three days to complete the tenure of two years. Since the 4 th respondent already assumed the charge, the applicant had to take charge as the Director of KFRI. No doubt it was made clear by the Tribunal that his assumption of charge would be subject to final outcome of this OA. Be that as it may, the only period for which the applicant could have made a claim was only for one month and three days. That stood expired on 30.11.2016. Even if it is assumed for the worst position that there was slight irregularity in the non-convening of the CSB that defect got cured or obliterated in view of the fact that the matter was placed before the Cabinet and it was a collective decision that was taken by the Cabinet which was got executed by transferring the applicant to the post of Director, KFRI. Therefore, the action taken by the first respondent cannot be said to be malafide, punitive or vindictive.
51. We do appreciate the strenuous effort made by Shri PV Mohanan the learned counsel for the applicant but despite the persuasive and attractive submissions made by the learned counsel, we cannot agree with the plea that the transfer (Annexure A8 and A11) is malafide or illegal.
52. To sum up we hold that there was no illegality in the procedure adopted by the respondents in passing Annexures A9 and A11 orders. The contention that Annexures A9 and A11 orders are vitiated by malafides is found to be untenable. He was transferred to the post of Director, KFRI which has been declared equivalent to the post of PCCF and HoFF. Therefore, considering all the aspects we find no reason to interfere with Annexures A9 and A11 orders. Accordingly this Original Application is dismissed. No costs.
(Mrs. P. Gopinath) (N. K. Balakrishnan) Administrative Member Judicial Member kspps