Central Administrative Tribunal - Lucknow
G.P. Upadhyaya, I.A.S. vs Union Of India (Uoi) And Ors. on 2 September, 1999
JUDGMENT A.K. Misra, Member (A)
1. By the present O.A., the applicant has prayed that the following orders be quashed:-
"(a) Order dated 29.10.98 passed by Executive Director (Personnel), Food Corporation of India, New Delhi (respondent No. 2), whereby the applicant was directed to hand over charge to Joint Manager (General), Regional Office, Food Corporation of India, Lucknow and report to Food Corporation of India Headquarters latest by 2.11.98.
(b) Order dated 29.10.98 passed by Joint Secretary (Policy), Ministry of Food & Consumer Affairs, Government of India, New Delhi (respondent No. 4), whereby the applicant was relieved of his duties and was attached to Food Corporation of India Headquarters at Delhi.
(c) Order dated 10.12.98 passed by the Ministry of Personnel, Public Grievances and Pensions, Government of India, New Delhi through its Director (respondent No. 5), whereby the Appointments Committee of the Cabinet accorded the ex-post facto approval to the transfer of the applicant from the post of Senior Regional Manager, Food Corporation of India, Lucknow to the Headquarters Office of Food Corporation of India at New Delhi w.e.f. the date on which he was actually transferred under the orders of Food Corporation of India. By this order, the Appointments Committee of the Cabinet also approved the proposal for pre-mature repatriation of the applicant to his parent cadre i.e. the State of Sikkim."
2. The applicant is a member of the Indian Administrative Service (in short I.A.S.) and belongs to 1987 batch of directly recruited officers. By order issued by the President, the applicant was appointed as Senior Regional Manager (in short SRM) in the Food Corporation of India (in short FCI), U.P. Region and was posted at Lucknow w.e.f. 17.7.97. The order appointing the applicant as SRM, FCI, U.P. Region, inter alia, provided that the applicant's deputation will commence on 17.7.97 and will come to an end on 16.7.2002 or until further orders, which ever is earlier. By order dated 29.10.98 passed by Executive Director (Personnel) [in short E.D. (P)], FCI, the applicant was transferred from Lucknow to Headquarters of FCI at Delhi. The aforesaid transfer order was given ex-post facto approval. By order dated 10.12.98 passed by department of Personnel & Training, the proposal for pre-mature repatriation of the applicant to his parent cadre was also approved by the Appointments committee of the Cabinet (in short ACC).
3. The learned counsel for the parties have been heard and pleadings on record have been perused.
4. Briefly stated the contention of the applicant is that having been appointed as SRM, FCI, U.P. Region at Lucknow under orders issued by Government of India, he could not be transferred by the FCI to New Delhi vide order dated 29.10.98 passed by the E.D.(P), FCI. It has also been contended on applicant's behalf that the term of deputation was to come to an end on 16.7.2002 and, therefore, he could not have been repatriated to his parent cadre to Sikkim before the expiry of his tenure in the FCI. As regards his transfer from Lucknow to New Delhi, it was submitted on the applicant's behalf that since the applicant is a member of IAS and had been posted on deputation to FCI by the President of India, the ED(P), FCI was not competent to transfer him from Lucknow to the Headquarters office at Delhi. In this regard, it was also inter alia submitted that the applicant could have been transferred only by the President of India. It was brought to our notice that the transfer of the applicant made by the E.D.(P), FCI, was in violation of Rule 6 (5) of the IAS Cadre Rules, 1954 (in short Rules of 1954). It was also brought to our notice that the order transferring the applicant from Lucknow to the FCI Headquarters at Delhi, was not passed by the competent authority and, therefore, the transfer order could not be sustained. It was submitted in this regard that the respondent Nos. 2 & 4, who passed the applicant's transfer order, were not the competent authority in his case and, therefore, the order passed by them, was without jurisdiction. In this regard, it was brought to our notice that FCI Staff Regulations Act of 1971 (in short Act of 1971) does not apply to the applicant because the applicant was not an employee/officer of the FCI, but he is a member of IAS and has been appointed by the Government of India. It was contended that the FCI Act restricts the FCI to frame regulations only in respect of its own officers and employees other than Secretary of the FCI. In support of this contention, our attention was drawn to DCRG Regulations of 1967 of the FCI, according to which Government servants on deputation, are not covered under these regulations of the FCI, Although, the FCI Staff Act of 1971 duly recognised appointments on deputation from Central & State Governments, but such regulations applied only to officers and employees of the Corporation. Further, it was stated that prior to the appointment of the applicant on deputation as SRM in the FCI, his consent was duly taken and he gave his willingness to come on deputation as SRM in the FCI at Lucknow in view of higher status, better salary and perks attached to this post. He had given the willingness for deputation to the FCI and for his posting at Lucknow. It was, therefore, argued that it was not open to the E.D.(P), FCI, (respondent No. 2) to transfer him from Lucknow to New Delhi, without obtaining his willingness. In this regard, it was also submitted that since the applicant was a Member of IAS, only the Government of India could exercise jurisdiction to pass orders transferring the applicant from Lucknow to New Delhi. Further, it was submitted that the transfer of officers belonging to IAS has necessarily to be notified in the official gazette and no such notification was issued in the case of the applicant, when he was transferred from Lucknow to New Delhi. It was also stated that in order to validate the transfer order dated 29.10.98 passed by E.D.(P), FCI (respondent No. 2), an order was subsequently passed on 10.12.98 by the Ministry of Personnel, Public Grievances & Pensions according ex-post facto approval of the applicant's transfer from Lucknow to New Delhi. Further, it was stated that as per terms of appointment of the applicant on deputation contained in Government of India, Ministry of Food & Consumer Affairs letter No. F-5-5/97-FCI dated September '97, the applicant was deputed to serve for a period of five years as SRM in the FCI with his headquarters at Lucknow. Since this order was issued by the Government of India fixing his tenure in the FCI at Lucknow for a period of five years from 17.7.97 to 16.7.2002, it was not open for the E.D. (P), FCI to transfer him from Lucknow to FCI Headquarters at Delhi. In doing so, the FCI not only acted beyond its jurisdiction, but also superseded the order issued by the Government of India whereby the applicant was posted at Lucknow for a tenure period of five years.
5. As regards the pre-mature repatriation of the applicant, it was brought to our notice that by letter No. F-5-5/97-FCI September '97 issued by the Ministry of Food & Consumer Affairs the applicant had been posted as SRM in the FCI for a tenure period of five years commencing from 17.7.97 and terminating on 16.7.2002. It was argued that the said tenure posting contained higher status perquisites better salary. Further, it was argued that the applicant's willingness was taken for the said tenure posting of five years. In the light of these facts, it was submitted that it was not open for the Government of India to curtail his tenure, as has been done by order dated 10.12.98 passed by the department of Personnel & Training whereby the applicant has been repatriated pre-maturely to his parent cadre of Sikkim. It was also argued that while deputing the applicant for a fixed tenure of five years in the FCI, the consent of the Government of Sikkim was also obtained in accordance with Rule 6 of the Rules of 1954. However, no such consent of Government of Sikkim or of the applicant was taken while passing an order of pre-mature repatriation to his parent cadre. The order of pre-mature repatriation was also stated to suffer from a legal infirmity in as much as order of pre-mature repatriation was not issued in the name of the President of India. In this regard, our attention was drawn to Article 77 of the Constitution of India, which deals with the conduct of business of the Government of India and provides that all executive action of the Government of India shall be expressed to be taken in the name of the President of India. Article 77(2) further provides as under:-
"Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President and the validity of an order or instrument which is so authenticated shall not be called, in question on the ground that it is not an order or instrument made or executed by the President".
6. It was submitted that while the order posting the applicant on deputation in FCI at Lucknow was expressed to have been issued in the name of the President of India, the order dated 10.12.98 of the applicant's pre-mature repatriation to his parent cadre of Sikkim was not issued in the name of the President of India. It was brought to our notice that while an officer automatically reverts to his parent cadre on completing the tenure of his deputation and in such cases neither the order of repatriation is issued nor the consent of the State Government is necessary, the same is not true in a case where an officer is repatriated to his parent cadre prior to completion of his tenure. Since the applicant was repatriated to his parent cadre, much before the completion of his tenure, the order of repatriation could be issued only after obtaining the consent of the State Government and such an order of premature repatriation could only be issued in the name of the President of India. Since in the order of repatriation dated 10.12.98 passed in the case of the applicant, both the ingredients were missings, the said order of repatriation suffered from legal infirmity. Further, it was contended on behalf of the applicant that pre-mature repatriation of the applicant to his parent cadre was punitive and stigmatic in as much as the applicant would suffer loss in salary, perks and status. It was submitted in this regard that reason for repatriation as stated in the Counter reply of the respondents, was the applicant's unsatisfactory performance. In this regard, it was stated that it was necessary to follow the procedure prescribed by Article 311(2) of the Constitution of India, which reads as under;-
"Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State:-
(1) xxx xxx xxx (2) No such persons as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
7. Further, it was brought to our notice that tenure of five years could not be curtailed because appointments on deputation are made under the Central Government Staffing Scheme and pre-mature repatriation could be made only under two eventualities, one of which is the request made by the officer concerned himself on the ground of some personal reasons and the other eventuality would be pre-mature repatriation on administrative grounds. It was brought to our notice that no personal request was made by the applicant for pre-mature repatriation and the order dated 10.12.98 of pre-mature repatriation did not mention that such repatriation was being made on account of administrative grounds. It was also submitted that in the order of deputation, the period of deputation is stated to commence from 17.7.97 and was to come to an end on 16.7.2002 or until further orders, which ever is earlier. It was contended that such a citation stating that the deputation will be for a fixed period or until further order is made in a routine manner and in the normal course and pre-mature repatriation can be made only in the two eventualities mentioned hereinbefore. It was also stated on behalf of the applicant that the applicant had brought about a perciptible improvement in the functioning of the FCI in less than two years in a number of ways. It was stated that within two years the procurement office and wheat had gone-up by more than 300% as compared to the last couple of years. Besides all the targets fixed by the FCI were not only achieved, but were also exceeded. It has also been claimed that labour problems were solved and about half dozen depots of FCI, which were lying closed for the last 4-5 years, were opened and started functioning. Further, it was claimed that in the short period, during which the applicant had worked as SRM, there was a record disposal of vigilance cases, phenomenal savings of crores of Rupees under the head OTA, reduction in expenditure in Telephones and Vehicles maintenance and finalisation of a large number of DCRG cases. It was stated that even on facts, there was no justification to repatriate the applicant prior to the expiry of his tenure on the ground of unsatisfactory performance. Further, it was stated that no such order has actually been issued by the Government of India, department of Personnel & Training. In this regard, it was brought to our notice that since the Appointments Committee of Cabinet (in short ACC) had only accorded approval to the proposal of pre-mature repatriation of the applicant, it cannot be said that any formal order had been issued by the ACC whereby the applicant could be repatriated prior to completion of his tenure. In support of the contention that the order of pre-mature repatriation was punitive & stigmatic, our attention was drawn to the allegation that a large number of complaints were made by the labour union and the staff union of the FCI alleging multifarious irregularities committed by the applicant involving procuring sub-standard foodgrains, acquiring assets in a posh locality at Lucknow and receiving kick backs in the appointments of labour. Since the provisions of Article 311(2) were not invoked despite the fact that the pre-mature repatriation was stigmatic and punitive, such pre-mature repatriation was stated to be bad in law.
8. On behalf of the respondents, a preliminary objection was raised stating that the respondents Nos. 2 & 3 i.e. the Executive Director (Personnel) FCI, New Delhi and Joint Manager (General), FCI, U.P. Region, Lucknow were not covered within the jurisdiction of this Tribunal and further that since the applicant was serving on deputation in the FCI, this Tribunal did not have any jurisdiction to entertain the petition filed by the applicant. In this regard, our attention was drawn on behalf of the respondents to Section 14 of the Administrative Tribunals Act, 1985, under which FCI has not been notified.
9. On behalf of the respondents, it was submitted that under Sub-rule 3(a) of the Regulation 7 of Act of 1971, appointments in the Corporation can be made to any post on ad hoc basis by deputation of suitable officers from the Central Government or State Governments or Public Sector Undertakings. It was submitted that officers taken on deputation are also subject to the conduct Rules and disciplinary rules of FCI Act of 1971. It was submitted that it was within the competence and jurisdiction of the head of the FCI to utilise the services of any officer or employee including an employee on deputation in the best interest of the Corporation. For this purpose, it was within the competence and jurisdiction of the FCI to transfer any officer or any employee to any station. In this view of the matter, it was argued that the FCI was fully competent to transfer the applicant from Lucknow to FCI headquarters at Delhi notwithstanding the fact that according to the terms and conditions of deputation, the applicant had been posted as SRM in the FCI with his headquarter at Lucknow. It was also submitted on behalf of the respondents that the applicant was transferred by the Corporation vide order dated 29.10.98 from Lucknow to New Delhi in the light of a large number of complaints alleging irregularities committed by the applicant during the short period of two years of his functioning as SRM, FCI, Lucknow. It was submitted in this regard that even the performance of the applicant was not upto the mark and, therefore, his continuance as SRM at Lucknow was not in public interest. It was also submitted that Article 311(2) of the Constitution of India cannot be said to have been infringed by the FCI in the light of the fact that Article 311 (2) provides that a person being a member of civil service of the union or and All India Service or a civil service of a state shall not be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. It was stated that the transfer of the applicant from Lucknow to Delhi did not amount either to his dismissal or removal or reduction in rank and accordingly no inquiry as contemplated under Article 311(2) was necessary. In the counter affidavit sworn on behalf of Department of Personnel, Public Grievances & Pensions, Government of India, it has been stated that pre-mature repatriation of the applicant did not amount either to his dismissal or removal or even reduction in rank, because the applicant had come on deputation at Lucknow as SRM on a special pay of Rs. 500/- per month. It was categorically stated that the applicant did not come to Lucknow as SRM on promotion. The special pay of Rs. 500/- drawn by the applicant in the FCI was attached to the post and the applicant would lose this pay even if the applicant was repatriated to his parent cadre on completion of tenure. It is also averred by the respondent No. 5 that the applicant's contention, that his deputation as SRM in Lucknow conferred on him a higher status was his own imagination and was in no way related to the terms of deputation offer. The contention that he was enjoying better perks as SRM, FCI was also stated to be a myth. Further, it was stated that pre-mature repatriation of the applicant did not cause any stigma on him. On the contrary, pre-mature repatriation of the applicant was stated to have been made in public interest. It was also brought to our notice that the transfer of the applicant made by order dated 29.10.98 by E.D.(P), FCI (respondent No.2) was also ratified and endorsed by the department of Personnel & Training by order dated 10.12.98 and, therefore, the said transfer order passed by the FCI did not suffer from any infirmity. In this regard, it was also pointed-out that since the said order of transfer has been approved by the ACC on 10.12.98, it cannot be said that the said order, in any way, voilated Central Staffing Scheme-a scheme which, in any case, did not have any statutory force.
10. In so far as the preliminary objection raised by the respondents regarding jurisdiction of this Tribunal is concerned, the same, in our view, is not sustainable. As already stated above, the applicant belongs to IAS and as per Rule 6(5) of the Rules of 1954, a member of Indian Administrative Service, whose services are placed at the disposal of a Corporation by the Central Government or by the Government of a State will be deemed to be a member of service in connection with the affairs of the union or the state as the case may be. Since the applicant in the present case belongs to IAS cadre and was on deputation in the FCI, for all purposes concerning the conditions of service, he would be under the control of the Central Government. Since the present O.A. has been filed by a member of IAS, who was on deputation to FCI, this Tribunal will have jurisdiction in the matter. Reliance for this purpose is placed on the decision of Allahabad High Court in the case of Dr. Sri Krishna v. Union of India and Ors., (1990)5 SLR 251, where the court came to the conclusion that officers of the Central Government belonging to a Civil Service, who go on deputation to a society/corporation come within the jurisdiction of this Tribunal. We, therefore, hold that the present O.A. is maintainable.
11. As regards the question whether E.D.(P) FCI (respondent No. 2) was competent to pass an order dated 29.10.98 transferring the applicant from Lucknow to headquarters office at Delhi, reliance is placed on Rule 6(5) of the Rules of 1954, according to which even though the applicant was working on deputation with FCI, he would continue to be under over all control of the Government of India. As discussed in the immediately preceding paragraph by virtue of Rule 6 (5) of the Rules of 1954, the applicant would continue to be under the over all control of the Central Government and FCI would not have any jurisdiction. In our opinion, therefore, the transfer of the applicant from Lucknow office to Headquarters office at Delhi was without jurisdiction. Realising the mistake the department of Personnel & Training issued the order dated 10.12.98 whereby ex-post facto approval of the transfer of the applicant from Lucknow to Headquarters office at New Delhi was accorded. In case, FCI was competent, by itself, to transfer the applicant, the order dated 10.12.98 issued by the department of Personnel & Training granting ex-post facto approval to the order of transfer issued by the ED(P) FCI was not necessary. Accordingly, we hold that the order dated 10.12.98 issued by the Department of Personnel & Training would not validate an invalid transfer order issued by the ED(P) FCI (Respondent 2),
12. Resides, by an affidavit filed on behalf of the respondents, it was stated that the applicant had resorted to corrupt practices and it was found on a preliminary enquiry made by the FCI that he had acquired certain moveable properties at New Hyderabad, Lucknow, in the name of his father-in-law's mother. Besides, there were complaints against him of procuring sub-standard foodgrains for FCI, of receiving kick-backs in the appointment of labour at Faizabad and Barabanki and of posting corrupt and inefficient staff on strategic and sensitive posts. The irregularities committed by him, were stated to be under investigation by the CBI also. In the light of these allegations made on behalf of respondent No. 1, it was submitted on behalf of the applicant that his transfer order passed by the FCI, was malafide and was borne-out of malice and cannot be said to be in public interest and accordingly the transfer order dated 29.10.98 shifting the applicant from Lucknow to New Delhi was stated to be bad in law. Reliance for this purpose was placed on the following case law:
(1) Ram Adhar Pandey v. State of U.P. and Ors., 1993 (Supp.) (3) SCC 35. (2) N.K. Singh v. Union of India and Ors., 1994 (6) SCC 98=1994(3) SLJ 37 (SC). (3) Arvind D. Dhande v. State of Maharastra, 1997 (6) SCC 169. (4) C. Ramanathan v. Acting Zonal Manager FCI (Madras), 1980(1) SLR 309. (5) Sham Rao Chandrappa Kamble v. Dy. Engineer Panchayat Samiti, 1998 (2) SLR 418.
13. In the above cases, it was held that the transfer based on allegations made in complaints against an officer, was motivated by malice and personal vendetta and such transfer would not be in public interest and cannot be sustained. Since in the case of the applicant, the transfer appears to be motivated on the basis of complaints which were under investigation, the said transfer order dated 29.10.98 passed by E.D. (P) FCI (respondent No. 2), in our view is vitiated on this score also. Consequently, the order dated 30.10.98 passed by respondent No. 2 relieving the applicant from the charge of SRM FCJ Lucknow and directing the Joint Manager (General) to resume charge of SRM U.P. Region, Lucknow w.e.f. 30.10.98 is also vitiated. As a natural corollary the order dated 29.10.98 passed by Joint Secretary (Policy), Ministry of Food & Consumer Affairs directing that the applicant be relieved of his duties as SRM, FCI, U.P., Luckno w and be attached to FCI Headquarters, New Delhi w.e.f. 29.10.98 also gets vitiated.
14. As regards the question of curtailing five year term of deputation by the ACC by order dated 10.12.98, a perusal of the said order reveals that in the first place the ACC accorded ex-post facto approval to the transfer of the applicant from Lucknow to Headquarters office of FCI at Delhi. Secondly, this order shows that the ACC has approved the proposal of pre-mature repatriation of the applicant to the State of Sikkim, which is his parent cadre. This order (dated 10.12.98) issued by the department of Personnel & Training also states that the decision taken by the ACC should be implemented after the stay granted to the applicant by this Tribunal is vacated and further the transfer of the applicant to Delhi and his pre-mature repatriation would be subject to out-come of the applicant's petition pending before this Tribunal.
15. The order dated 10.12,98 issued by the department of Personnel & Training says that the proposal of pre-mature repatriation of the applicant to his parent cadre was approved by the ACC. The order, in question, is not a formal order or pre-mature repatriation and hence is not enforceable because what was approved by the ACC was only the proposal of pre-mature repatriation.
16. The order appointing the applicant on deputation as SRM, FCI at Lucknow is expressed in the name of the President of India as required by Article 77 of the Constitution of India. It was argued before us on behalf of the applicant that the order of pre-mature repatriation dated 10.12.98 was not expressed in the name of the President of India. Since we have held that the order, in question, was not a formal order of repatriation and was only a proposal, we do not think it necessary to express any opinion on the question whether the order of pre-mature repatriation should have been issued in the name of the President of India as required by Article 77 of the Constitution of India. For the same reason, we also refrain from expressing any opinion on the question whether the applicant's pre-mature repatriation was punitive and stigmatic although the said question was also argued at length before us on behalf of the applicant.
17. For the reasons discussed in paragraph No. 11, the transfer order dated 29.10.98 passed by E.D.(P), FCI (respondent No. 4) is quashed. Consequently, the order dated 29.10.98 passed by Joint Secretary (Policy), Ministry of Food & Consumer Affairs (respondent No. 4) ratifying the applicant's transfer to Headquarters office of FCI at Delhi is also quashed. Further in the light of the discussion made in paragraph Nos. 12,13,14 & 15, the order dated 10.12.98 issued by the department of Personnel Public Grievances & Pensions (respondent No. 5) is also quashed.
18. In the result, the O.A. is allowed with no order as to costs.