Central Administrative Tribunal - Delhi
Sh. Jawahar Thakur vs Union Of India Through on 19 June, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No. 1888/2015 Reserved on: 12.06.2015 Pronounced on: 19.06.2015 Honble Dr. B.K. Sinha, Member (A) Honble Mr. Raj Vir Sharma, Member (J) Sh. Jawahar Thakur, S/o late Upendra Thakur, R/o C-1/17, Bapa Nagar, New Delhi 110 003. Applicant (By Advocates: Sh. Kavin Gulati, learned Senior Counsel assisted by Sh. Nitesh Rana, Sh. Vikram Singh, Sh. S.K. Gupta and Sh. Saikat Sarkar) Versus 1. Union of India through Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi. 2. Secretary, Department of Personnel & Training, Ministry of Personnel, Pension & Public Grievances, North Block, New Delhi. 3. Establishment Officer (ACC), Department of Personnel & Training, North Block, New Delhi. 4. Mr. M.J. Joseph, C-1/45, Bapa Nagar, New Delhi 110 003. Respondents (By Advocates: Sh. Sanjay Singh, learned ASG assisted by Sh. Hanu Bhaskar for respondent nos. 1 to 3 Ms. Jyoti Singh, learned sr. counsel assisted by Ms. Tinu Bajwa and Sh. A.K. Trivedi for respondent no.4) O R D E R By Honble Dr. B.K. Sinha, Member (A):
In the instant Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant is aggrieved by the following orders of the respondents:-
(i) Order dated 13.05.2015 (Annexure A-1) temporarily upgrading one vacant HAG level post of Indian Civil Accounts Service (hereinafter referred to as ICAS) to the grade of Controller General of Accounts (hereinafter referred to as CGA) in apex scale with the designation of OSD (Accounting Reforms) for a period upto 31.03.2016 with due approval of the Appointments Committee of Cabinet (hereinafter referred to as ACC).
(ii) Order dated 13.05.2015 (Annexure A-2) posting one M.J. Joseph (respondent no.4), who had been on deputation as DG, Bureau of Indian Standard, as Controller General of Accounts (an apex level post) on ad hoc basis until further orders, while at the same time curtailing his central deputation to enable him to be prematurely repatriated to his parent cadre in public interest.
(iii) Order dated 14.05.2015 (Annexure A-3) posting respondent no.4 as CGA (an apex level post) on ad hoc basis with immediate effect till further orders under the approval of ACC.
2. The applicant has sought the following relief(s):-
(i) Quash and set aside the order dated 13.05.2015 as issued vide File No.A.32013/5/2015-AD.I (Annexure A-1) and also quash and set aside the order dated 13.05.2015 as issued vide File No. A.32013/5/2015-AD.I (Annexure A-2) and also quash and set aside the order dated 14.05.2015 (Annexure A-3).
(ii) Direct the respondents to allow the applicant to hold the post of Controller General of Accounts till his superannuation i.e. 31.12.2015 peacefully without any hindrance.
(iii) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
3. The applicant has also sought interim relief to the following effect:-
Pending final disposal of the OA, operations of the orders dated 13.05.2015 (Annexure A-1), 13.05.2015 (Annexure A-2) and order dated 14.05.2015 (Annexure A-3) may kindly be stayed and the status quo as prevailing on 12.05.2015 may be directed to be restored.
4. Earlier, when the OA came up for hearing on the question of interim prayer on 21.05.2015, this Tribunal after having heard the arguments advanced by the learned counsel for the parties stayed the operation of the impugned orders at Annexures A-1 to A-3 subject to final outcome of the OA by providing that the applicant would continue to hold the post of CGA and the respondent no.4 would be deemed to go back to the earlier post of Director General. However, prima facie, in the interest of the Nation, this Bench presumed that if the post of OSD has been created, there must be sufficient justification for creation of the said post and left it to the Government to decide as to whether the respondent no.4 would be posted as OSD in place of the applicant or he would be accommodated in the post of Director General, BIS, as the case would be. The respondents were granted three weeks time to file reply and one week thereafter to the applicant to file rejoinder on the request of the learned counsel for the respondents,. The respondents were also given liberty to file an application before the Honble Chairman to constitute a Special Bench on such application for early hearing. The case was otherwise ordered to be listed on 30.06.2015, as agreed to by the learned counsel for the parries, for hearing.
5. Aggrieved, the respondent no.4 filed MA No. 1916/2015 on 01.06.2015 seeking vacation of the Tribunals order dated 21.05.2015 directing the applicant to join on the post of CGA and further treating the respondent no.4 deemed to have gone back to the post of DG, BIS, and further seeking a direction to permit the respondent no.4 to continue as CGA till the decision of the OA as he continues to hold the post in question from 14.05.2015 till date.
6. The official respondents also filed one Miscellaneous Application bearing MA No.1920/2015 seeking recall/modification and vacation of the stay granted by the Tribunal vide order dated 21.05.2015. In the meantime, official respondents also filed a writ petition bearing WP(C) No.5764/2015 seeking vacation of the aforesaid interim order passed by the Tribunal on 21.05.2015. The writ petition was, however, dismissed as withdrawn with direction to the Tribunal for an early hearing in the matter.
7. Subsequently, the official respondents filed their counter affidavit to which the applicant has filed his rejoinder. The respondent no.4 has not chosen to file any counter affidavit but adopted the counter affidavit filed on behalf of the official respondents.
8. The OA along with the two Miscellaneous Applications bearing MA No.1916/2015 and 1920/2015 were placed before the Single Bench (Vacation Bench) where the issue was raised whether a Single Member sitting as a Vacation Bench could decide and modify/set aside the interim order passed by a Division Bench earlier. The Single Member Vacation Bench, after having heard the arguments to some length, referred the matter to the Honble Chairman of the Tribunal to either constitute a Special Bench during vacation for early hearing or to post the matter to some Division Bench in a manner as deemed fit by him. The Honble Chairman constituted a Special Bench directing the OA and aforesaid two MAs to be listed before the said Bench on 12.06.2015.
9. When the matter came up for hearing on 12.06.2015, the learned counsel for the applicant submitted that it would be more expedient to hear and decide the matter finally. This suggestion of the learned counsel for the applicant was concurred by the learned ASG and the learned counsel for the respondent no.4 and accordingly the arguments were heard at sufficient length, concluded and the matter was reserved on 12.06.2015 itself.
10. The facts of the case, as stated in brief, are that the applicant is admittedly a Member of 1979 batch of the ICAS Group-A Service. Initially, he joined as an Assistant Controller of Accounts (ICAS) in the Junior Time Scale of ICAS from where he gradually earned promotions to Senior Time Scale i.e. Additional Controller of Accounts in 1981; Deputy Controller of Accounts in 1983, Junior Administrative Grade in 1988. On 21.01.1997, the DPC held by the UPSC for considering promotion of the applicant to the SAG grade downgraded his seniority position in the panel below that of the respondent no.4 while at the time of initial recruitment, the applicant had been placed above him. Aggrieved, the applicant filed OA No.2357/1997 before this Tribunal which was allowed vide order dated 30.08.2001 quashing the impugned order dated 29.08.1997 with direction to the respondents to consider the case of the applicant for restoration of his seniority relative to respondent no.6 to 8. It is pertinent to mention that respondent no.4 in the instant OA was figured as respondent no.6 in OA No.2357/1997. The official respondents filed Review Application bearing RA No.371/2001 against the aforesaid order of the Tribunal dated 29.08.1997, which was also dismissed by the Tribunal vide order dated 23.11.2001. As a consequence of this, the official respondents implementing the Tribunals order placed the applicant over and above the respondent no.4, who was respondent no.6 in OA No.2357/1997, in the panel prepared for SAG vide order dated 08.01.2003. The respondent no.4 also approached the Honble High Court of Delhi by way of Writ Petition bearing WP(C) No.1671/2002 which was dismissed vide order dated 22.09.2011. Aggrieved, the respondent no.4 filed SLP (C) No.5625/2012 seeking ad-interim stay. The Honble Supreme Court while issuing notice to the respondents declined to pass any stay order. However, on 22.05.2013, the Honble Supreme Court passed an order to the extent that any promotion made during the pendency of the petition would be subject to final outcome of the SLP. Accordingly, the applicant was promoted as CAG vide order dated 06.06.2012 with stipulation that his promotion would be subject to final outcome of the SLP, and has continued to hold the said post till the issuance of the impugned orders Annexures A-1 to A-3.
11. The applicant submits that the respondent no.4 decided to go on deputation as a Director General, BIS while having lien in the cadre of Additional Director of Accounts a post admittedly lower than the one held by the applicant. The applicant further submits that the respondents arbitrarily issued the impugned orders dated 13.05.2015 (Annexure A-1) and 14.05.2015 (Annexure A-3) whereby a regular incumbent of the post has been displaced by another incumbent having lien in the lower post without having followed the due process of law.
12. The learned counsel for the applicant has submitted the following points during the course of oral submissions:-
(i) The action of the respondents vide the impugned orders suffer with legal malice. While conceding that the Government have a right to create the post under Rule 4(3) of the Indian Civil Accounts Service (Group A) Recruitment Rules, 2006 (hereinafter referred to as Rules of 2006), the learned counsel for the applicant submitted that this creation of posts needs to be need based and hedged in by the requirement of equity and good faith. The post should not be created as subterfuge to displace regularly appointed incumbents from their posts. Therefore, the power under Rule 4(3) of the Rules ibid is not unfettered power and is subject to the afore restriction.
(ii) The learned counsel for the applicant has used the following arguments in support of his allegation of malice at law:-
(a) Cadre restructuring has been given effect to in the ICAS cadre vide order passed in March, 2015. The learned counsel for the applicant questioned the need to create another post at apex level in the footsteps of the cadre re-structuring
(b) Learned counsel for the applicant further submitted that Government Accounting Standards Advisory Board for Union and the States has already been constituted vide order dated 12.08.2002 headed by the Deputy Comptroller and Auditor General (Accounts) as its Chairperson technically discharging the same functions for which the post of OSD had been created vide order dated 13.05.2015.
(c) The entire exercise was attended by shrouded in opaqueness and carried on an infernal hurry. The applicant was on leave when the impugned orders were issued and he was relieved on the same date. This demonstrates that the respondents were determined to get rid of the applicant and had, therefore, carried out the exercise in form of a coup.
(d) Pointing out serious contradictions and the sifting stand of the respondents, the learned counsel for the applicant drew our attention to para 9 of the Tribunals order dated 21.05.2015 passed in this OA where three serious allegations are said to have been leveled against the applicant including that of financial irregularities. These allegations must have been made under instructions, it was contended by the learned counsel for the applicant, but on whose and how is not known. On the other hand, counter affidavit of the respondents goes ahead to state that the applicant is being selected on account of his competence and there is not even a hint of financial irregularities. The official respondents are, thus, saying three things on three different dates at different fora i.e. on the date 21.05.015 during the course of arguments on the question of interim relief, in their counter affidavit and before the Honble High Court of Delhi in the Writ Petition in order to justify their action. This tantamount to mala fide which is an exercise of the official power just to achieve their desire of removing the applicant from the post of CGA.
(e) The applicant submits that the impugned order dated 13.05.2015 (Annexure A-1) does not mention the job profile, quality of assistance, who will be assessing the performance of the applicant, reporting hierarchy etc. etc. This indicates that the post of OSD to which the applicant has been selected and posted is beneath the dignity of his stature and thereby it stands compromised.
(iii) The applicant further alleges that the procedures have been given a go-bye. The respondent no.4 is still working against the post of Additional Controller General of Accounts in the pay scales of Rs.75000-80000/- from where he stands to be promoted to the grade of CGA (RS.80000/- fixed) vide Schedule-II under Rule 5(1)(b) and Rule 10(1) by a DPC comprising Chairman/Member, UPSC, Finance Secretary and Secretary (Expenditure) under Rule 10(2) of the Rules ibid. As such, upgradation of the respondent no.4 is against the rules.
(iv) The learned counsel for the applicant heavily relied upon paras 82,83 and 84 of the decision of Five Judges Bench of the Honble Supreme Court in E.P. Royappa V/s. State of Tamil Nadu & Another [1974 (4) SCC 3]. While admitting that this decision had declined the application of the petitioner for setting aside his transfer order as being malafide on grounds of allegations against the Chief Minister. However, Honble Bhagwati, J., Y.V. Chandrachud and V.R. Krishna Iyer, JJ, in a dissenting note had held equivalence is to be sought not only in pay but in attending conditions of service as well. Referring to Rule 9 (2) of the Indian Administrative Service (Pay) Rules, 1954, Honble Judges in their dissenting note submitted that in case the State Governments want to appoint a member of the Indian Administrative Service to a non-cadre post created by it, it cannot do so unless it makes a declaration setting forth the cadre post to which such non-cadre post is equivalent in status and responsibility. This is not an idle formality to be dispensed with but is a sine qua non. There must be equivalence in status and responsibility not only in matters of pay alone but also in terms of nature and responsibilities of the functions and duties attached to the post so that he has dignity equivalent to the post that he had relinquished.
(v) Referring to the argument of the learned counsel for the respondents that the OA is barred by Section 20 of the A.T. Act, the learned counsel for the applicant submits that plain reading of Section 24 makes it clear that it is not mandatory and there could be exceptions to it. In the instant case the manner in which the applicant was evicted from his post makes it incumbent that the Court exercises its power under the exceptions and it has done the right thing to hear the matter and grant the interim order vide order dated 21.05.2015.
13. The learned ASG appearing for the official respondents has strongly rebutted the arguments of the applicant in the following terms:-
(i) The learned ASG made it plain that Government had not been party in the seniority related dispute between the respondent no.4 and the applicant. It dutifully implemented the orders of the Tribunal and published the seniority list in the year 2003. The official respondents have fully complied with the orders of the Honble High Court and this personal dispute had in no way eclipse the judgment of the official respondents. They had supported and appointed the applicant vide order dated 13.05.2015 to the post of CGA. Therefore, the allegation of malice could not have been leveled against the official respondents.
(ii) Arguing strongly, the learned ASG submitted that accounting reforms are the need of the hour. They cannot be postponed to another date. The applicant, who is having undisputed expertise in the matter, has, therefore been selected for the post in order to bring his unquestioned expertise to this task till he superannuates on 31.12.2015. The Government wants to lay down a 10 years road map for this purpose. Referring to Wednesbury principle, the learned ASG submitted that it is not the decision which matters but the process of decision is of utmost significance. Here, the bona fides of the decision should not be questioned. Considering the importance of the matter, the applicant should have jumped at this opportunity and not challenged it in such an infernal hurry.
(iii) Referring to the legal mala fide, the respondents citing the decision of the Honble Supreme Court in Collector (District Magistrate) Allahabad & Anr. V/s. Raja Ram Jaiswal [1985 (3) SCC 1] contended that burden of proving the allegations lies upon the person who alleges it. He has also to establish as to how he is getting prejudiced by the act particularly when his position is adequately safeguarded.
(iv) The learned ASG further submitted that the seniority of the applicant has no where been disturbed. The applicant continues to be at no.1 and this status will continue even in his next posting of OSD. The applicant has not been able to establish as to how he has been put to prejudice. Hence, the allegation of mala fide does not have legs to stand.
14. The learned counsel appearing for the respondent no.4 has submitted as under:-
(i) The applicant had submitted an application on 19th or 20th of May, 2015 and proceeded to file this OA without even having waited for 48 hours. This renders the OA is barred by Section 20 of the A.T. Act. There was no reason stated as to why he could not wait for six months. This shows how eager he is to stick on to the post in question.
(ii) The respondent no.4 had already joined the post on 14.05.2015 and is in office. He stood relieved in terms of the order dated 13.5.2015. The applicant has misrepresented the facts before misrepresented the facts before this Tribunal to convey the impression that he was still occupying the post of CGA.
(iii) The learned counsel for the respondent no.4 submits that her case is protected under FR 15 which otherwise permits the Government to remove/transfer any government employee from one post to any other.
15. We have carefully considered the pleadings as also the documents so submitted by the parties concerned and have also gone through the official record so submitted by the official respondents in a sealed cover. We have patiently heard the arguments advanced by the learned counsel for the parties and on the basis of which following issues emerge germane to a decision in this case:-
(1) Whether a government employee has any right to hold onto a post once appointed or conversely what is the right of the Government to transfer/post out one of its employees?
(2) Whether the action of the respondents is attended by mala fide?
(3) Whether the transfer of the applicant is in violation of rules or vitiated by procedural irregularities?
(4) What relief, if any, could be granted to the applicant?
16. We now take up the first of the issues, normally the first to be decided in any form of contestation involving the claim of an employee to continue on a post. The term transfer has been defined in Rules 18 Supplementary Rules: Transfer means movement of a Government servant from one headquarter station in which he is employed to another such either:
a) to take up duties of a new post,
b) in consequence of his change of headquarters or station. Here we hold that transfer involves movement from one post to another or a change in headquarter. Posting on the other hand is appointment against a post and connotes the right to hold a post. Transfer is different from posting in the as it generally movement over a distance but not necessarily as person can be transferred from one Department to another. It may safely be inferred on this account that transfer includes posting.
17. FR 11 provides in no unambiguous terms: Unless in any case, it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by the proper authority without claim for additional remuneration whether the services required of him are such as would ordinarily be remunerated from general revenues from the local funds or from the funds of a body incorporated or not, which is wholly or substantially owned or controlled by the Government. In other words this provision implicitly commands that the Government employee serves at the pleasure of the President and at he is duty round the clock. The Government can deploy him wherever it deems fit and proper and in whatever manner it likes.
In this regard, we begin our examination with the provisions of the Indian Civil Accounts Service (Group A) Recruitment Rules, 2006 (referred hereinafter as the RR 2006) that admittedly, governs both the applicant and the respondent no.4. Rule 12 of these Rules provides that Officers of the service shall be liable for transfer anywhere in India. This liability of transfer would not only include transfer to other station but the term transfer would also encompass transfer to other post, amounting to lateral shifting to equivalent post. In this regard, arguments have been raised that as per the ICAS Recruitment Rules 2006, transfer of an employee can only be made in the Grade and to no other post and further that the post of OSD (Accounting Reforms) has been created without having amended the Rules and without having followed the procedures prescribed. This post does not even find a mention in Schedule-II of the RR 2006. Under Rule 4(1) of the Recruitment Rules, 2006, postings of officers could only be made against duty posts within the cadre. In this regard, we need to extract the provisions of Rule 4 which define the grades and strength of the service:-
(1) The grades and authorized strength of various grades of the duty posts of the Service on the appointed day shall be as specified in the Schedule.
(2) After the appointed day, the authorized strength of the duty posts of various grades of the Service shall be such as may, from time to time, be determined by the Government.
(3) The authority competent to make an appointment to a grade may make temporary or permanent additions to that grade, as it may deem necessary from time to time subject to any general or special order that may be issued by the President.
18. It appears from a plain reading of the provisions that Rule 4(3) of the Recruitment Rules, 2006 is in three parts: (i) that the appointing authority may make additions to a grade in either temporary or permanent manner; (ii) these additions shall be subject to deemed necessity or special order issued by the President; and (iii) such orders may be issued from time to time. We shall advert to these provisions in due course while dealing with issue no.2. However, it suffices to say here that the power to make temporary or permanent additions to any grade and to appoint any person against those grades as per the deemed necessity, which includes perceived necessity, is a statutory right of the appointing authority. The Honble Courts in a number of decisions have held that transfer is an incidence of service and it is not an inalienable right of an employee to hold any particular post. It cannot, as a consequence of this, be asserted as a matter of right that an employee will stick to a particular post. This Tribunal in OA No. 2533/2012 decided on 22.03.2013, which though lacking in binding character has a good deal of persuasive value, has held as under:-
8. It is more than stare decisis that transfer is an incidence of service and it is for the executive/administration to decide how to and where to use its employees subject to the conditions of their appointment in the best interest of the organization and public service. It is not always possible and feasible to record strong reasons for allowing an officer to continue at a particular station for a few years or more or less. Still in the interest of fairness and transparency, while issuing a transfer order, the continuous stay of an officer at a particular station or in a particular area, before he is transferred out, may be indicated in a column against their names. Similarly to reflect the application of mind regarding the transfer and posting of all the officers, the period spent by the officers who have not been transferred out may also be indicated in a separate list. In such situation, no one would have an impression that he is given discriminatory or step motherly treatment in the organization. There is no gainsaying that the attitude, tendency and stimulation in life differs from person to person. Likewise, the attitude of all the employees towards service may not be same. In the circumstances, the authorities are bound to give different treatment to their employees in utilizing his/her services. Said different treatment cannot be called discriminatory or arbitrary each time. Giving such different treatment may also be one of the exercises of fairness only. An officer discharging his duty with all devotion, dedication and involvement, giving 100 per cent out put, may be desired to be kept posted at same station for a longer period, while at the same time, some other officer performing his job half-heartedly with lesser devotion, maybe shifted to a different station either to a place where he can work with better devotion or to a place where even lesser level of sincerity and devotion may not be detrimental to the organization. All these are the factors which may be observed by the concerned authority in day to day affairs and not by the Courts/Tribunal. It is for these reasons that Hon'ble Supreme Court has repeatedly emphasized that the Courts or Tribunals should refrain from interfering with transfer matters. Nevertheless, it may be suggested that unless covered by Section 8 of the Right to Information Act, 2005, when at the time of transfer of officer it is noticed that certain other persons are allowed to stay at class 'A' station/stations or an area for a longer period and the incumbent with lesser period is posted out, in the transfer order the reasons may be mentioned in the form of remarks. Even when such reasons concern the efficiency or deficiency in service, the same would not be construed as adverse remarks in the career of an officer and would not be vitiating the transfer order in any manner. Under no circumstances, a remark in appreciation of an officer who is allowed to stay for comparatively longer period would give rise to a cause of action to an officer who is transferred.
9. In the case of Laxmi Narain Mehar v. UOI & Ors., JT 1997 (1) 24 Page 460, Hon'ble Supreme Court viewed that in view of the express indication for need of experienced staff at the respective places, the transfer order cannot be said to be arbitrary. Relevant excerpts of said judgment read as under:-
1. The petitioner was transferred from Kota to Mumbai on the administrative ground as indicated in the order. The petitioner approached the Administrative Tribunal. The Central Administrative Tribunal, Jabalpur by its order dated November 28, 1996 has dismissed the same. Thus the special leave petition.
2. Learned Counsel for the petitioner contend that the petitioner was transferred on compassionate grounds and the transfer is not valid in law. Though he might have been transferred on compassionate grounds, in view of the express indication in the order giving reasons for the transfer, i.e. need of experience staff at the respective places, the transfer order cannot be said to be arbitrary. Then it is contended that the Scheduled Castes, is entitled to be considered for retention of his posting nearest his home town. It is true that the instructions have been issued as reproduced at Page 18 of the paper book to that effect, yet they would be subject to the administrative exigencies. It is stated that the services of the experienced officer were necessary and so the transfer order came to be made. It is true that as far as possible, the convenience of the officer belonging to Scheduled Castes and Scheduled Tribes may be considered and he may be posted near the home town, but the authority has power to transfer him when the administrative need arise. It is further contended that the petitioner had made allegations against the officers and the transfer is a vindictive measure of punishment. It is seen that he was transferred on account of administrative exigencies.
3. Under the circumstances, we do not think that there is any justification to interfere with the impugned order. The petitioner, if so advised and is desirous may take a representation before the Appropriate Authority and the Appropriate Authority may consider it on merits.
19. This decision has been supported in a number of case decided by this Tribunal. In the case of L.B. Shahdadpuri v. UOI & Ors., 1992 (2) ATJ Page 582, Mumbai Bench of this Tribunal ruled that even in order to have a proper and congenial atmosphere and in public interest and to avoid inconvenience to public, the respondent could transfer an official and it could not be called as a punitive transfer. In Chaman Lal v. UOI & Ors., 1996 (1) ATJ CAT (Chand.) 226, this Tribunal viewed that the transfer of an employee, when he is being proceeded in departmental proceedings, cannot be called punitive.
20. The Hon'ble Supreme Court in Mrs. Shilpi Bose and Others v. State of Bihar and Others 1991 Supp.(2) SCC 659 went into in the issue of guidelines and has upheld the authority of the employers to transfer the employee in the following words:-
4. In our opinion, the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide, A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders.
21. In State of U.P. and Others v. Goverdhan Lal, : 2004 (3) SLJ 244 (SC) it has been held thus:-
8. It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision of (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the Competent Authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
9. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmise and except for strong and convincing reasons, no interference could ordinarily be made within an order of transfer.
From the aforementioned, it is evident that the posting to any particular place is not a legal right. Article 14 guarantees equality before law only. Right to equality is a positive concept. One can allege violation of Article 14 only where there is enforceable legal right. In the absence of such right, question of discrimination or violation of Article 14 does not arise.
22. In the case of Moti Ram Deka v. General Manager, North East Frontier Railways, AIR 1964 SC 600, the Honble Supreme Court has held as under:-
154. The Rule, it is true, does not expressly provide for guidance to the authority exercising the power conferred by Rule 148, but on that account the Rule cannot be said to confer an arbitrary power and be unreasonable, or be in its operation unequal. The power is exercisable by the appointing authority who normally is, if not the General Manager, a senior officer of the Railways. In considering the validity of an order of determination of employment under Rule 148, an assumption that the power may be exercised mala fide and on that ground discrimination may be practised is wholly out of place. Because of the absence of specific directions in Rule 148 governing the exercise of authority conferred thereby, the power to terminate employment cannot be regarded as an arbitrary power exercisable at the sweet will of the authority, when having regard to the nature of the employment and the service to be rendered, the importance of the efficient functioning of the rail transport in the scheme of our public economy, and the status of the authority invested with the exercise of the power, it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public interest or on grounds of administrative convenience. Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully, and possibility of abuse of power will not invalidate the conferment of power. Conferment of power has necessarily to be coupled with the duty to exercise it bona fide, and for effectuating the purpose and policy underlying the rules which provide for the exercise of the power. If in the scheme of the rules, a clear policy relating to the circumstances in which the power is to be exercised is discernible, the conferment of power must be regarded as made in furtherance of the scheme, and is not open to attack as infringing the equality clause. It may be remembered that the rules relating to termination of employment of temporary servants and those on probation, and even those relating to compulsory retirement generally do not lay down any specific directions governing the exercise of the powers conferred thereby. The reason is obvious: the appointing authority must in all these cases be left with discretion to determine employment having regard to the exigencies of the service, suitability of the employee for absorption or continuance in the cadre and the larger interests of the public being served by retaining the public servant concerned in service. In my view Rule 148(3) cannot, therefore, be regarded as invalid either as infringing Art. 311 (2) of the Constitution or as infringing Art. 14 of the Constitution. For the same reasons Rule 149(3) cannot also be regarded as invalid.
23. In yet another case in Major General JK v. Union of India & Ors. 2005) 7 SCC 227, the Honble Supreme Court was categorically in his pronouncement that no employee has the right to remain posted at a place as under:-
11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management.
12. It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made.
24. We have also taken note of the fact that the appointment in the grade of Controller General of Accounts is not a tenure appointment. There is nothing in the Rules to provide that a person once appointed shall have a minimum fixed tenure nor has it been provided by means of any administrative instructions. In some certain cases, like that of Defence Secretary, Secretary Home Affairs, Cabinet Secretary etc. the Central Government have, by means of executive instructions, prescribed a minimum period for the post. In the instant case, no such prescription has been made. Therefore, there is nothing by way of protection of tenure rule coming to the aid of the applicant.
25. The Governments right to post an employee against a duty post in the grade or even to a non-cadre post is unquestioned. It is as per the discretion of the Government. It is also being followed in practice, though in principle it has been considered in many cases. As per the recommendations of the Administrative Reforms Commission, Collector could have a fixed tenure of three years; District Collector could have fixed tenure, they are to be posted out as Joint Secretaries in the State Government or even against a Public Sector Unit Post as a matter of routine. Like, a person serving as Chief Secretary may be posted as Additional Member Board of Revenue or some newly created post. This is not questioned anywhere. In the case of State of Madhya Prades Vs. S.S. Kourav & Ors. (1995)3 SCC 270, the Honble Supreme Court have clearly held as under:-
4. The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation .
26. This is not to say that discretion of the Government is unfettered and absolute. It is, of course, fettered if being hit by malafide or against public interest or in violation of some specified statutes or being issued by the incompetent authority, then the courts acquire jurisdiction to interfere in the same.
27. In P. Rushkaran v. Coir Board and Anr. 1979 I L.L.J. 139, the Honble High Court of Kerala has held as under:-
13 ...It cannot be disputed that an employer has a right to transfer his employee. An employee accepts employment fully knowing that he is liable to transfer from place to place for administrative reasons and in the interests of the employer. This is one of the conditions of service. No employee can demur or cavil at an order of transfer. It is only when an order of transfer is made otherwise than in public interest or for no administrative reasons and in the circumstances amounting to punishment or with mala fide intentions, that the transfer order gets exposed to challenge.
28. This principle had been further upheld in Somesh Tiwari v. Union of India & Ors. AIR 2009 SC 1399 wherein the following has been observed:-
"19. On perusal of the records, I find that the order of transfer is on administrative exigencies. The applicant has All India transfer liability. An order of transfer should normally be eschewed and should not be countenanced by the Tribunal as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the station concerned. This is for the reason that Tribunals cannot substitute their own decisions in the matter of transfer for the of (sic) competent authorities of the State and even allegations of malafide when made must be such as to inspire confidence in the court or as based on concrete materials and ought not to be entertained on the more making of its or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made an order of transfer.
29. The Honble Apex Court is categorical in upholding the right of the employer to transfer the employee. In the case of Union of India & Ors. v. S.L. Abbas reported in (1993) 4 SCC 357, the Honble Supreme Court has held:-
6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority. Fundamental Rule 15 says that the President may transfer a Government servant from one post to another. That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed mischief to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere wit it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.
30. The Apex Court further goes ahead to the extent of holding that an employee is obey the transfer order before he earns a right to challenge the same in Gujarat State Electricity Board vrs Atma Ram Sunagomal Poshni (1989) 2 SCR 357 and further that even if there be non-compliance with the with the provisions of the posting norms, order of transfer will not be vitiated;
2. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.
31. Right now we are dealing only with the issue that whether a Government employee has a right to hold onto a post once appointed or conversely what is the right of the Government to transfer/post out one of its employees. In answer to this, we have already provided the decisions of the Honble Supreme Court as cited above. These decisions go a long way to hold that that a person has no right to hold onto the post once appointed or conversely the Government has right to transfer out an employee unless otherwise hit by one of the conditions as we have mentioned earlier; the tribunals/courts are not superior appellate authorities; it is the employer who is the best judge of where an employee is to be deputed; even if there be guidelines and they are infringed the same is not to be called into question where such transfer is made in public interest; the jurisdiction of the court arises only where the transfer is hit by malafide or is made in violation of some statutes; and the transferred employee is to obey the transfer order before he challenges it in the court. In this case, the issues of malafide and procedural irregularities are subject to discussion in the following part of the order. Right now it suffices to state that the applicant or for that matter any Government employee has not right to hold onto the post. The issue is accordingly answered against the applicant.
32. Insofar as the second issue is concerned, the applicant has alleged malice at law against the respondents. We have taken note of the argument on both sides and any repetition of the same would simply contribute to the bulk of the order. We have further mentioned that the applicant has made heavy reliance upon paras 74, 75, 76, 77, 82, 83 and 84 of the decided case of Honble Supreme Court in E.P. Royappa v. State of Tamil Nadu & Another (supra). Royappa was appointed as Chief Secretary consequent to the retirement of the previous incumbent on Thiru Ramakrishnan. The relevant order read: "is promoted and posted to act as Chief Secretary to Government vice Thiru Ramakrishnan. I.C.S. who has been granted refused leave with effect from 14th November. 1969". Subsequently the status and rank of the Chief Secretary was enhanced by making the pay of the Chief Secretary equal to the Secretary to the Government of India. In the meantime the DMK was returned to power following elections and the applicant was posted out as Deputy Chairman Planning Commission a newly created post. When he proceeded on leave the post was allowed to lapse to be revived upon his return. After the petitioner was transferred from the post of Deputy Chairman and appointed officer on Special Duty, an order dated 29th June, 1972 was passed by the State Government abolishing the post of Deputy Chairman sanctioned under the earlier order dated 6th June, 1972, sanctioning the creation of a new post of Deputy Chairman "in the grade of First Member, Board of Revenue" on a pay of Rs. 3,000/-. The relevant parts of the order are reproduced as below:-
82. The petitioner is, however, on firmer ground when he bases his challenge under R. 9, sub-r. (1) of the Indian Administrative Service (Pay) Rules, 1954. Rule 9, in so far as material, provides as follows:
"(1) No Member of the Service shall be appointed to a post other than a post specified in Schedule III, unless the State Government concerned in respect of posts under its control, or the Central Government in respect of posts 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.
(2) The pay of a member of the Service on appointment to a post other than a post specified in Schedule III shall be the same as he would have been entitled to, had he been appointed in the post to which the said post is declared equivalent.
(3) xx xx xx (4) Notwithstanding anything contained in this rule, the State Government concerned in respect of any posts under its control, or the Central Government in respect of any posts under its control, may, for sufficient reasons to be recorded in writing, where equation is not possible, appoint any member of the Service to any such post without making a declaration that the said post is equivalent in status and responsibility to a post specified in Schedule III.'' This rule is intended to provide a safeguard for the protection of a member of the Indian Administrative Service. Sub-r. (1) enacts that no member of the Indian Administrative Service shall be appointed to a post other than a post specified in Schedule III, or in other words, to a non-cadre posts unless the Government makes a declaration that such non-cadre post is "equivalent in status and responsibility'' to a post specified in the said Schedule, i.e., to a cadre post. If the State Government wants to appoint a member of the Indian Administrative Service to a non-cadre post created by it, it cannot do so unless it makes a declaration setting out which is the cadre post to which such non-cadre post is equivalent in status and responsibility. The making of such a declaration is a sine qua non of the exercise of power under sub-r. (1). It is not an idle formality which can be dispensed with at the sweet will of the Government. 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. The Government would ordinarily be the best judge to evaluate and compare the nature and responsibilities of the functions and duties attached to different posts with a view to determining whether or not they are equivalent in status and responsibility and when the Government has declared equivalence after proper application of mind to the relevant factors, the Court would be most reluctant to venture into the uncharted and unfamiliar field of administration and examine the correctness of the declaration of equivalence made by the Government. But where it appears to the Court that the declaration of equivalence is made without application of mind to the nature and responsibilities of the functions and duties attached to the non-cadre post or extraneous or irrelevant factors are taken into account in determining the equivalence or the nature and responsibilities of the functions and duties of the two posts are so dissimilar that no reasonable man can possibly say that they are equivalent in status and responsibility or the declaration of equivalence is mala fide or in colourable exercise of power or it is a cloak for displacing a member of the Indian Administrative Service from a cadre post which he is occupying, the Court can and certainly would set at naught the declaration of equivalence and afford protection to the civil servant.
83. Turning first to the appointment of the petitioner as Deputy Chairman, State Planning Commission. It was made by the order dated 7th April 1971. The Government by this order sanctioned the creation of a temporary post of Deputy Chairman "in the grade of Chief Secretary'' and appointed the petitioner to this post, stating that he would be entitled to the same rank and emoluments as admissible to the Chief Secretary. Howsoever favourably to the State Government we may try to read this order, it is not possible to discern in it any trace of a declaration that the State Government found, on an objective assessment of the nature and responsibility of the functions and duties attached to the post of Deputy Chairman, that it was equivalent in status and responsibility to that of Chief Secretary. It is one thing to create a post of Deputy Chairman in the grade of Chief Secretary and another to determine, on an objective assessment of the nature and responsibilities of the functions and duties that the post of Deputy Chairman is equivalent in status and responsibility to that of Chief Secretary. Here the State Government seems to have proceeded on the hypothesis that it can create a non-cadre post in the rank or grade of any cadre post it likes, irrespective of the nature and responsibilities of the functions and duties attached to such non-cadre post and that would be sufficient compliance with the requirement of Rule 9, sub-r. (1). But that hypothesis is plainly incorrect. 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 likes. 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 post can be regarded as equivalent in status and responsibility and then only it can make a declaration of equivalence. This exercise does not seem to have been gone through by the State Government when it made the order dated 7th April, 1971 sanctioning the creation of the post of Deputy Chairman and appointing the petitioner to that post.
84. So far as the question of validity of the appointment to the post of Officer on Special Duty is concerned, we think that this appointment also suffers from the same infirmity. ..what we have said above in regard to the order dated 7th April, 1971 must apply equally in relation to these two orders dated 26th June, 1972 and 27th June, 1972. It is clear, for reasons we have already discussed while dealing with the order dated 7th April, 1971, that in making these two orders dated 26th June, 1972 and 27th June, 1972, the State Government proceeded on the wrong assumption that it can create a non-cadre post in the rank or grade of any cadre post it likes, regardless of the nature and responsibilities of the functions and duties attached to such non-cadre post. The State Government first created the post of Officer on Special Duty in the rank of Member. Board of revenue and on the very next day, because it was decided that the petitioner should be appointed to that post, converted it in to one in the grade of Chief Secretary. This shows clearly that the State Government did not apply its mind and determine on an objective appraisal of the nature and responsibilities of the functions and duties attached to the post of Officer on Special Duty whether it was equivalent in status and responsibility to the post of Member, Board of Revenue or to the post of Chief Secretary. The nature and responsibilities of the functions and duties attached to the post of Officer on Special Duty could not change in a day and indeed it was not the case of the respondents that they changed at any time. If that be so, how could the post of Officer on Special Duty be declared to be equivalent in status and responsibility to the post of Member, Board of Revenue on one day and to the post of Chief Secretary, on the very next day ? Either it was equivalent to the post of Member, Board of Revenue or equivalent to the post of Chief Secretary. But it could not be equivalent to one post at one time and to another post at another time, when the nature and responsibilities of the functions and duties attached to it remained the same. This establishes beyond doubt that, in making the orders dated 26th June, 1972 and 27th June, 1972, the State Government did not apply its mind and objectively determine the equivalence of the post of Officer on Special Duty, but gave it a rank or grade according as who was the officer going to be appointed to it.
33. The basic argument just to recapitulate the issue was that while arguing before the Division Bench of the Tribunal on 21.05.2015, the learned counsel for the respondent nos. 1 to 3 had submitted that there were charges of serious irregularities against the applicant. However, subsequently, that matter has been dropped against the applicant in the counter affidavit filed by them and has not been argued. Learned counsel for the respondent nos. 1 to 3 could not have made such serious averments before the court unless briefed to that effect. This denotes a shifting stand of the respondents. The applicant has also questioned the exigencies cited for the appointment of respondent no.4 to the post of CGA and posting the applicant against the post of OSD vide the impugned order dated 13.5.2015. The applicant has accused the respondents of saying three things on three different days. It has further cited as an example of malice at law operating against the applicant saying that no DPC has been met in respect of respondent no.4 and yet he has been promoted which is totally dehors the rules. The exigency is actually a pretended administrative exigency as asserted by the applicant. The learned ASG appearing for the respondents 1-3 on the other hand has submitted that area of operation of duties, scope of work etc. have been assigned for the post of OSD and further that a similar batch is already in existence of which the applicant as Director was already a Member. It is also stated that while fairly conceding that the judgment in case of E.P. Royappa v. Stte of Tamil Nadu & Anr, (supra) was in favour of the Government having the right to make postings but a view had also been taken that this right was not unfettered right and could only be exercised provided the post offered was an equivalent post carrying the same dignity and should not have been made with the intention of putting another person in his place. In this regard, we first start by examining the decisions as taken by Honble Supreme Court regarding what is malice at law.
34. In State of Punjab & Ors. Vs. Gurdial Singh, (1980) 2 SCC 471, the term malafide has been defined as follows:-
9. The question then, is what is mala fides in the jurisprudence of power? 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 satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act.
35. Further, this Tribunal has gone into the question of malafide in the matter of R.K. Rai Vs. Union of India & Ors. (OA No. 3132/2012 decided on 12.01.2015) and held that the applicant had alleged malafide but had done nothing to discharge the onus of proof and hence, the plea of malafide would not become a basis for a decision.
36. In Ravi Yashwant Bhoir versus District Collector, Raigad [2012 (4) SCC 407], the Honble Supreme Court after having examined its own 47 previous decisions held as under:-
MALICE IN LAW :
37. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law.Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. Legal malice or malice in law means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745).
37. In Institute of Law v. Neeraj Sharma, Manu/SC/0841/2014, the Honble Supreme Court has held as under:-
29. Further, we have to refer to the case of Akhil Bhartiya Upbhokta Congress v. State of M.P. and Ors. (2011) 5 SCC 29, wherein this Court has succinctly laid down the law after considering catena of cases of this Court with regard to allotment of public property as under:
50. For achieving the goals of justice and equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and the State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good......In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of the rule of law.
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59. In Kasturi Lal Lakshmi Reddy v. State of J&K, Bhagwati J. speaking for the Court observed: (SCC pp. 13-14, para 14)
14. Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid....
61. The Court also referred to the reasons recorded in the orders passed by the Minister for award of dealership of petrol pumps and gas agencies and observed: (Common Cause case, SCC p. 554, para 24)
24. ... While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category....
62. In Shrilekha Vidyarthi v. State of U.P. the Court unequivocally rejected the argument based on the theory of absolute discretion of the administrative authorities and immunity of their action from judicial review and observed: (SCC pp. 236, 239-40)
29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional....
In the light of the above mentioned cases, we have to record our finding that the discretionary power conferred upon the public authorities to carry out the necessary Regulations for allotting land for the purpose of constructing a public educational institution should not be misused.
38. In Prakash Singh Badal v. V.K. Khanna & Ors, (2001) 2 SCC 330, the Honble Supreme Court has held as under:-
2. The concept of fairness in administrative action has been the subject matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same independant upon the facts and circumstances of each matter pending scrutiny before the Court and no straight jacket formula can be evolved therefor. As a matter of fact fairness is synonymous with reasonableness : and on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed - it is the appreciation of this common man's perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not.
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7. Incidentally, Lord Thankerton in Franklin v. Minister of Town and Country Planning, opined that the word 'bias' is to denote a departure from the standing of evenhanded justice. Girja Shan/car's case (supra) further noted the different note sounded by the English Courts in the manner following:
"27. Recently however, the English Courts have sounded a different note, though may not be substantial but the automatic disqualification theory rule stands to some extent diluted. the affir- mation of this dilution however is de- pendent upon the facts and circum- stances of the matter in issue. the House of Lords in the case of Reg. v. Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No. 2) (2000(1) A.C. 119) observed : "In civil litigation the matters in issue will normally have an economic im- pact; therefore a judge is automati- cally disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is con- cerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the pro- motion of a cause in which the judge is involved together with one of the parties."
Lord Brown Wilkinson at page 136 of the report stated:
"It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25/11/1998 would lead to a position where judges would be unable to sit on cases in- volving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct. the facts of this present case - are exceptional. the critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order/to argue for aoarticular result; (3) the judge was a director of a char- ity closely allied to A.I. and sharing, in this respect, A.I.s' objects. Only in cases where a judge is taking an ac- tive role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be con- cerned either to recuse himself or disclose the position to the parties. However, there may well be other ex- ceptional cases in which the judge would be u'sll advised to disclose a possible interest."
Lord Hutton also in Pinochet's case (supra) observed :
"There could be cases where the In- terest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the pro- ceedings could shake public confi- dence in the administration of jus- tice as much as a shareholding (which might be small) in a public company involved in the litigation."
(28) Incidentally in Locabail (Locabail (U.K.) Ltd. v. Bay/ield Properties Ltd., 2000 Q.B. 451), the Court of Appeal upon a detail analysis of the oft cited decision in Reg. v. Gough [1993 A.C. 646] together with the Dimes case, (3 House of Lords Cases 759): Pinochet case (supra), Australian High Court's decision in the case of re J.R.L., Ex parte C.J.L. : [1986(161) CLR 342] as also the Federal Court in re Ebner [1999(161) A.L.R. 557], and on the decision of the Constitutional Court of South Africa in President of the Republic of South A/rican v. South A/rica Rugby Football Union, [1999(4) S.A. 147], stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. the Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed :
"By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animos- ity between the Judge and any mem- ber of the public involved in the case; or if the judge were closely acquainted with any member of the public in- volved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the Judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his abil- ity to approach such person's evi- dence with an open mind on any later occasion; or if on any question at is- sue in the proceedings before him the judge had expressed views, par- ticularly in the course of the hear- ing, in such extreme and unbalanced terms as to throw doubt on his abil- ity to try the issue with an objective judicial mind (see Vakuta v. Kelly. 1989 (167) C.L.R. 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous consid- erations, prejudices and predilections and bring an objective judgment to bear on the issues before him. the mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party wit- ness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat, every applica- tion must be decided on the facts and circumstances of the individual case. the greater the passage of time be- tween the event relied on as show- ing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."
(29) The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case - a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient."
39. Before going for analysis of the allegations leveled against the respondents, we deem it necessary to go into what the Honble Supreme court had held in E.P. Royappa v. State of Tamil Nadu & Anr. (supra). Admittedly, the petitioner - E.P. Royappa was a member of Indian Administrative Service in the Cadre of the State of Tamil Nadu. On August 2, 1968 the petitioner was confirmed in the Selection Grade of the IAS w.e.f. may 22, 1961. There were 8 Selection Grade posts in the State of Tamil Nadu. The petitioner was No.4 in that list. The petitioner in the years 1964, 1965, 1966, 1968 and 1969 was pasted to act as Fifth Member, Board of Revenue; fourth Member, Board of Revenue; Third Member, Board of Revenue; Second Member, Board of Revenue. On April 5, 1969 the petitioner was posted to act as Second Member, Board of Revenue. On July 11, 1969 the petitioner was posted to act as Additional Chief Secretary. On July, 1969, the post of Additional Chief Secretary was temporarily created in the grade of Chief Secretary for a period of one year. The State Government further directed that the post of Chief Secretary to Government, Additional Chief Secretary to Government and the First Member, Board of Revenue were deemed to be in the same category and they were inter-changeable selection posts. On November 13, 1969, the petitioner was posted to act as Chief Secretary to Government. On April 7, 1971, the petitioner was appointed as Deputy Chairman of the State Planning Commission. In June, 1972, the Government of Tamil Nadu had accorded sanction to the creation of a temporary post of Officer on Special Duty in grade of Chief Secretary to Government for a period of one year from the date of appointment or till need for it ceased, whichever was earlier. The petitioner had challenged this order stating that the Chief Minister of the State had been inimically disposed of the same and harboured ill-will. Therefore, the petitioner questioned his posting as OSD on the ground of malafide. However, the same was rejected by the Honble Supreme Court on the ground that the petitioner had failed to establish any violation of fundamental rules; he had not objected to his initial posting as Deputy Chairman; he had not substantially appointed as Chief Secretary; and there was no allegations relating to Chief Minister.
40. The applicant in the instant case has further submitted that in a minority view, the Honble Justice Bhagwati held that the right to post out the petitioner was not an absolute right and equivalence of the post just did not lie in salary but in dignity of the office, including nature and responsibilities duties attached to the post; other status being equal to that of the post being relinquished and other collateral attached to the office. The applicant had argued that his case is stood on better footing than E.P. Royappa, as he had been regularly appointed as Controller General of Accounts being duly promoted by the DPC and that he had been posted to a newly created post with no defined duties, staff structure and even a place to sit.
41. On the other hand, we take note of the argument of the respondent no.4 that it has been incorrectly argued by the learned counsel for the applicant that in case of E.P. Royappa v. State of Tamil Nadu (supra) there are two judgments: E.P. Royappa (1) and E.P. Roypaa (2). There is nothing like that. The so-called E.P. Royappa is equally categorical that right to transfer his employees resides in the Government by virtue of FR-15 which provides that a Government Servant can be transferred substantially or appointed to officiate in a post carrying less pay than the Member of the permanent post on which he held a lien or would have held the lien had his lien not been suspended under Rule 14. It was open to the Government to appointment him on a post or to officiate in a post carrying pay not less than what he was entitled to in selection grade. Honble Justice Bagwati in his judgment, which is not in a form of dissenting note, took note of the fact that the post of Chief Secretary is highly sensitive post and that the duties of the Chief Secretary have become complex with the change of nature of the State. For the sake of greater clarity, para 87 and 88 of the judgment in the case of EP Royappa (supra) are extracted below:-
87. Now, two important considerations must weigh with us in determining one approach to these questions. First, the post of Chief Secretary is highly sensitive post. It is a post of great confidence - a linchpin in the administration - and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. The Chief Minister as the head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the Government. If, therefore, for any valid reason the Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may legitimately, in the larger interests of administration, shift the Chief Secretary to another post, provided of course that does not involve violation of any of his legal or constitutional rights. There can be no question in such a case as to who is right and who is wrong. The displacement of the Chief Secretary from his post in such a case would not be arbitrary and it would not attract the inhibition of Articles 14 and 16. It may, however, be pointed out that such an action would not, we think, ordinarily be taken except for the most compelling reasons, because, if resorted to without proper justification, it would tend to affect the political neutrality of the public service and lead to demoralisation and frustration amongst the public servants.
88. Secondly, with the vast multitudinous activities in which a modern State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of intellect and specialised experience. It is always a difficult problem for the Government to find suitable officers for such specialised posts. There are not ordinarily many officers who answer the requirements of such specialised posts and the choice with the Government is very limited and this choice becomes all the more difficult, because some of these posts, though important and having onerous responsibilities, do not carry wide executive power and officers may not, therefore, generally be willing to be transferred to those posts. The Government has in the circumstances to make the best possible choice it can, keeping in view the larger interests of the administration. When, in exercise of this choice, the Government transfers an officer from one post to another, the officer may fell unhappy because the new post does not give him the same amplitude of powers which he had while holding the old post. But that does not make the transfer arbitrary. So long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not open to attack under Arts. 14 and 16.
42. We could say the same in the case of Controller General of Accounts and the changing requirements of the post. Therefore, the Governments decision to appoint the respondent no.4 to the post of Controller General of Accounts does not look unnatural when considered in light of the modern day requirements of administration, including accounting and accountancy.
43. We further take note of para 92 of the judgment in E.P. Royappa v. State of Tamil Nadu (supra) that burden of establishing malafide is very heavy on the person who alleges it and that the allegations of malafides are more easily made than proved. The very seriousness of such allegations demands proof of a high order of credibility. This view has been further supported in case of Babulal Choukhani v. Western India Theatres Ltd. and Anr. Manu/WB/0186/1957. Further this very Tribunal in the case of R.K. Rai & Anr. Vs. Union of India (supra) have gone into the instances of malafide alleged by the applicant in that case:-
56. In view of these decisions, we can arrive at a synthesized view that malafide is easy to allege than to prove; it must be proved by facts; the burden of proving malafide lies upon one who alleges it; this burden must be discharged to the hilt; the law of natural justice demands that the persons against whom the allegation of malafide is leveled should be given an opportunity to appear and to disprove the facts.
57. In view of the aforesaid discussion, it is our considered opinion that malafide is not a matter of narration of sequence of event but it also requires to be proved by facts. We take up examination of other facts in light of these decisions. We take note of the argument of the respondents that the applicant in OA No.3132/2014 was not the only person who had conducted investigation of the cases relating to killing of Sohrabuddin Sheikh and Tulsiram Prajapati. It is an agreed position, as it would appear from the judgment in Sohrabuddins case, that murder appears to have been committed and applicant was instrumental in arresting some of the police officers who had been charged with having committed the murder. However, as stated earlier, we would like to stay clear of the controversy as the matter is pending consideration in another court, but we take into account that after this incident, the applicant has been promoted twice to the rank of DIG and subsequently to that of IGP by the same State Government against whom he has alleged malafide. Normally, when malafide enters the arena, promotion would be the first casualty. The fact that the promotion might have been delayed as has been alleged by the applicant in OA No.3130/2014, cannot be an evidence of malafide, as such a delay is not exclusively with respect of the applicant, but is a common factor to the entire batch as such. Procedural delays are not uncommon in the administration. To allege malafide on this account does not appear to be a very fair proposition.
44. Now we come to the grounds of challenge based on malafide exercise of power which have already been cited. We have already found in respect of issue no.1 that no employer has a right to stick to a particular post and conversely the Government has right to post a person as per his choice and the same cannot be question unless found to be hit by malafide. We further note of the arguments of the respondents that despite the Government, which had appointed him to the post of CGA vide order dated 6.6.2012, had allowed the applicant to function on this post almost for a period of 2 = years. The same Government had taken a neutral position in a dispute going on between him and the respondent no.4 and had offered him the post despite the fact that it was under litigation. Therefore, the charges of malafide would not stick to the instant case. This issue is accordingly against the applicant.
45. We also find that the entire case of the Government is driven by the need to bring about the changes in the Government Accounting System. It is difficult not to take note of the reason offered for this change. One need not hold a degree in Chartered Accountancy to infer that the Government system is highly archaic, error prone and lacking in accountability to serve the needs of the modern State. We have looked at the file no. 98245/JS (Pers)/2015 and found it tempting to reproduce the reasons for this change:-
3. Controller General of Accounts (CGA) is the Principal Accounts Adviser to the Govt. of India and is responsible of establishing and maintaining a technically sound management accounting system. While the vision of CGA as an accounting organization is to strengthen Governance through excellence in public financial management, its mission is to administer an effective, credible and responsive system for budgeting payment and accounting, provide world class robust Government vide integrated financial information system as well as develop new paradigms of internal audit for improved transparency and accountability.
4. Cadre restructuring proposal of Indian Civil Account Service has been recently approved by the Cabinet. The crux of the cadre review proposal is that there is large scale increase in volume of transactions across Ministries and its new Departments and Projects and therefore new offices are to be set up. It was also stated in the proposal that internal audit function performance by CGA needs to be strengthen across Government. The same was on the basis of recommendations of Second Administrative Reforms Commission which has in their report on strengthening Financial Management System has recommended creation of a robust financial information system in the Govt. and strengthening the internal audit mechanism in the Ministry and Deptt. of the Government of India.
5. While creation of manpower is one aspect of the issue. The other issue that needs to be considered is how the latest development in the field of Information Technology can be leveraged for strengthening the financial management system and how CGA as an organization can bring out accounting reforms in the coming years so that a sufficiently robust system of Govt. accounting is put in place. With the devolution of more funds to the States as well as delegation of more powers to the Central Ministries and Deptts. It is felt that the issues concerning accounting reforms while leveraging IT needs to be carried out on an urgent basis.
7. Shri Jawahar Thakur, ICAS (1979) is currently the Controller General of Accounts and has been heading the Organization since 1/7/2012 (approximately 3 years). The officer is having experience in revenue accounting and he has been involved in implementation of CPSMS and electronic delivery of payment services. In view of his experience in Government Financial Management System by using information Technology, Shri Jawahar Thakur, ICAS presently holding the post of CGA may be considered for the proposed post.
46. We do not think that there is any scope of disagreement with the need to make these changes and the same cannot be questioned or rubbished as a figment of imagination. These needs are real. The present accounting system has a root that believes in 19th century and is a real constraint to emerge of a modern Government. Therefore, the Government cannot be blamed for being in hurry.
47. It is also taken note of the argument of the learned counsel for the respondents that the changing in accounting system is not an overnight process. It is not like a software regarding attendance of employees. It is far too complex and touches to the root of the financial arrangements contained in Part-XII of the Constitution. Therefore, the decision to first lay down road map for these changes is important landmark and cannot be questioned as such. It is also evident that this decision has been endorsed by the Secretary Expenditure and has the approval of the Honble Finance Minister and of the ACC. This desire of the Government to bring about reforms, for which it perhaps has not time to waste, cannot be construed as proof of burden. To the contrary, they appear to be a proof of bonafide on the part of the Government in terms of his commitment in its election manifesto. Thus, we find that there are no grounds that allegation of malafide is not supported by the facts.
48. In respect of the second issue, we have already gone into the matter of financial or procedural irregularities. FR-15 bestows upon the Government right to transfer his employees. For the sake of greater clarity, FR-15 is being reproduced as below:-
F.R.15.(a) The President may transfer Government servant from one post to another provided that except-
(1) on account of inefficiency or misbehavior, or (2) on his written request, a Government servant shall not be transferred to, or except in a case covered by Rule-49, appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien. This Rules holds that the right to transfer a Government servant from one post to another is unequivocal except on the grounds given i.e. inefficiency or on his written request where the provisions of Rule 49 will apply. FR-49 deals with appointment of Government servant to an additional post or against ex cadre post.
49. The DoP&T OM dated 05.11.2012 provides modality for fixing the pay of a Government servant on transfer to the lower post/scale under FR 15(a). In the instant case, since the applicant has been transferred to another post in the same grade of pay i.e. Rs. 80,000/- (fixed), the application of Rule 15-A does not apply. The facts remain undisputed.
50. Here, we have already taken note of the arguments from both sides. We have also noted that the respondents have not violated any rules in respect of effecting the transfer order. Rather their right to make transfer is confirmed under Rule 4(3) of the ICAS Recruitment Rules, 2006 and FRs 11 & 15. However, what has attracted our adverse notes is that the respondent no.4 has been ordered to be appointed as a Director, CGA in the Apex Scale of Rs. 80000/- (fixed) on ad hoc basis until further orders. However, in the counter affidavit filed on behalf of respondent nos. 1 to 3, the respondent no.4 is shown junior to the applicant and is drawing a lesser pay scale than the applicant. For the sake of clarity, we extract from the counter affidavit of the respondent nos. 1 to 3:-
4.12 In reply to the para, it is submitted that the respondent no.4 continues to be junior to the applicant and is drawing a lesser pay-scale than the applicant and even on ad-hoc posting as CGA will continue to draw the pay-scale as was being drawn by him prior to the coming in effect of order dated 13.05.15 and 14.05.15. This was also supported by the oral submissions. Therefore, we have no reason to doubt it. The right of the Government to appoint a person from a lower post to a higher post is unquestioned. However, what has irked us is that the Government could have followed the normal course that demand appointment of the respondent no.4 to the DPC and then appointed him to the post of CGA. This it has waived in view of urgency which we have already considered and found justified. We also feel that the entire vision of changing in the Accounting System could have been better unfolded. That the applicant is asking question about his role and seeking arrangement is not fully credible as he has been involved with the task and as CGA, he cannot claim not to have knowledge; we still feel that the thing could have been better handled without producing the rancor. Of course, issues like office accommodation and subordinate staff should not arise at this level and could have been better handled. At the same time, we do not find that these issues stand to vitiate the impugned orders particularly, in view of the afore decisions in respect of afore issues (i) to (iii). There is no statutory violation as we have already noted that Rule 4(3) of the Recruitment Rules 2006 and FR-15 gives ample power to the Government to transfer employees and the same cannot be questioned. There are also supported by a catena of decisions as some of which have been cited in this case. Accordingly, without wasting many words, we decided this issue against the applicant.
51. In conclusion, we take stock of the situation. We find that right to transfer his employees resides in the Government subject to there being rules to contrary and test of malafide. We also find that employee has no right to seek posting of his choice and remain posted against a particular post, particularly, when it is not a tenure post and there are rules for transfer out of this post. We have further noted that the charges of malafide leveled against the respondents have not been proved. There are a series of decision of the Honble Supreme Court and even of this Tribunal which provide emphasis on the burden of proof casts upon the person making these allegations. In the instant case, we find that allegations of malafide are at best flimsy and they do not stick. It stands to reason that the Government, which have appointed the applicant in face of Honble Supreme Courts orders and have retained him in the post for more than 2 = years, cannot be suddenly accused of malafide. Moreover, we have not found the burden of proof casts upon the applicant not getting discharged even in a remote manner. We have perused the concerned file of the Government and take note of the anxiety of the Government to bring about qualitative improvements in their accounting system and their anxiety to take advantage of the vast experience of the applicant for this. We have noted the respondents cannot be blamed by any stretch of imagination for their anxiety to replace an archaic and redundant accounting system in the Government which has long served to outlive its utility and imposes a heavy efficiency burden of the system. We also categorically reject that a person can only perform, if he is allowed to occupy a particular post and every post that has been created by the Government has a purpose and there are opportunities in every post to serve the country. We find it regrettable that once should lose sight of this fact and indulge in wanton litigation. Examples are not lacking in abundance where employees have made the best of use of the worst of postings.
52. We, however, take notice that the entire exercise could have been implemented with a better finesse. As noted, these do not serve to vitiate the impugned orders as they do not constitute violation of statues or allegations have failed test of malafide.
53. Before parting, we would like to remind that our Constitution is governed by a delicate balance of powers. We also take note of Biblical Command: render unto Caesar the things that are Caesar's and to God things that are God's. (Smt. Indira Gandhi Vs. Raj Narayan AIR 1975 SC 2299). The Honble Supreme Court has held in this case as under:-
534. We know that Semitic prophets, as messengers of God, also became rulers wielding both spiritual and political temporal power and authority although to Jesus Christ, who never sought temporal power, is ascribed the saying: "render unto Caesar the things that are Caesar's and to God things that are God's". According to the theory embodied in this saying, spiritual and temporal powers and authorities had to operate in different orbits of power altogether. Another theory, however, was that the messenger of God had been given the sovereign will of God Almighty which governed all matters and this could not be departed from by any human authority or ruler. In the practical administration of justice, we are informed, Muslim caliphs acknowledged and upheld the jurisdiction of their Kazis to give judgment against them personally. There is an account of how the Caliph Omar, being a defendant in a claim brought by a jew for some money borrowed by him for purposes of State, appeared in person in the Court of his own Kazi to answer the claim. The Kazi rose from his seat out of respect for the Caliph who was so displeased with this unbecoming conduct that he dismissed him from office. (See: Sir A. Rahim's "Muhammadan Jurisprudence", (1958) p. 21).
535. ''The theory, therefore, that there should be a separation of functions between the making of laws, the execution of laws, and the application of laws, after ascertaining facts satisfactorily, is not new. It is embedded in our own best traditions. It is dictated, if by nothing else, by common sense and the principle of division of labour, without an application of which efficient performance of any duties cannot be expected.
54. In the instant case, we feel that the delegation of power is well scripted; the Lord prohibits encroachment upon the domain of the Caesar thereby impliedly providing that he himself shall also not commit such an act. Such encroachments serve to weaken Caesar. A weak and inefficient Caesar does not serve anybodys cause, least of all the cause of Lord for he becomes incapable of ensuring justice for the masses. Therefore, the lesson is that like Khalif Umar, Lord sticks to self defined boundaries and has respect for Caesar. In the instant case, granting any relief to the applicant would be tantamount to Lord making inroads into the territory of Caesar. Though, we have already held that deviation from procedures and pleadings hurried made only to be retracted subsequently do not serve to vitiate the impugned order they are best avoidable. No matter howsoever pressing is the urgency, the traditional routes and the defined procedures need to be adhered to, lest the official respondents render themselves open to charges of malafides. The lesson is not at all lost: make Haste Caesar, by all means, but Slowly. With these words, we find the OA devoid of merits and the same is, therefore, dismissed with no order as to costs.
(Raj Vir Sharma) (Dr. B.K. Sinha) Member (J) Member (A) /lg/