Central Administrative Tribunal - Delhi
Dr Arun Kumar Tyagi vs M/O Defence on 23 December, 2022
1
OA No. 1677/2021
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 1677/2021
Order reserved on: 17.11.2022
Order pronounced on: 23.12.2022
Hon'ble Mr. Manish Garg, Member (J)
Dr. Arun Kumar Tyagi
Age: 41 Years
Scientist D
Defence Research &Development Services (DRDS),
Defence Research & Development Organisation (DRDO),
Ministry of Defence, Government of India
S/o: Shri Rajeshwar Dayal Tyagi
R/o:
1. P-62/2
DRDO Residential Complex
Institute of Technology Management (ITM)
Landour Cantt., Mussoorie, UK-248179
2. Permanent Address:
V.P.O. Chamrawal
Police Station: Chandinagar
District: Baghpat, UP-250615
...Applicant
(By Advocate: In person )
Versus
1. Union of India
Through The Secretary
Department of Defence Research & Development
DRDO, Ministry of Defence
DRDO Bhawan, Rajaji Marg, New Delhi-110011
2. Shri K S Varaprasad
Director General (Human Resource)
DRDO, Ministry of Defence,
DRDO Bhawan, Rajaji Marg, New Delhi-110011
2
OA No. 1677/2021
3. Shri GS Gupta
Ex-Director, Directorate of Personnel (DOP) &
Ex-Officio Chairman, Grievance Cell, DRDO HQ
DRDO, Ministry of Defence,
DRDO Bhawan, Rajaji Marg, New Delhi-110011
4. Shri Sanjay Tandon
Scientist H& Director, Institute of Technology
Management (ITM),
DRDO, Ministry of Defence,
Landour Cantt., Mussoorie, UK-248179.
...Respondents
(By Advocate: Mr. Manish Kumar)
ORDER
1. Applicant in-person wishes to withdraw the Vakalatnama of his counsel and argues his matter himself. Permission is granted. With the consent of the parties, all the pending MAs are taken for final disposal as the OA itself is being disposed of.
2. In the present matter, the applicant seeks the following relief(s):
"i. call for the records of the respondents with respect to the transfer/posting of the applicant.
ii. set aside the impugned order dated 24.06.2021 and 28.06.2021 and 07.07.2021.
iii. provide protection of tenure as a Teaching Faculty as per the guidelines issued for recruiting.
iv. pass the order with cost of litigation and adequate compensation to the applicant for the harassment by the respondents.
V. pass any such other and further order which is necessary in the interest of justice."3 OA No. 1677/2021
3. Brief Facts:
3.1 The case of the applicant is that he joined the DRDO as a Research Assistant on 25.09.2006. He is presently working as Scientist-D in the Military Operational Research field.
3.2 On 15.01.2020, the DRDO issued an advertisement inviting applications from eligible and willing DRDO Scientists for urgent requirement of 08 Teaching Faculty (Scientists) at its training establishment Institutes of Technology Management (ITM), Mussorie on minimum tenure of 3 years extendable to 2 years.
3.3 Applicant was selected for the post of teaching faculty vide order dated 16.06.2020 and joined on 01.07.2020 at ITM Mussorie. The order dated 16.06.2020 is reproduced as under:
"POSTING/TRANSFER: TEACHING FACULIY AT ITM- MUSSOORIE Competent Authority has approved transfer of following officers as Teaching Faculty at ITM-Mussoorie in public interest:
Name and Designation From To (a) Shri Prithipal Singh., Sc 'C DEAL, Dehradun ITM, Mussoorie (b) Shri Jitender Singh, Sc 'F ASL Hyderabad ITM Mussoorie (c) Dr Arun Kumar Tyagi, Sc 'D ISSA, Delhi ITM, Mussoorie (d) Shri Swastik Mohan, Sc 'D' DESIDOC, Delhi ITM, Mussoorie
2. Tenure and Review of the officers will be as per Govt. of India letter No. DHRD/70578/1TM/Trg 2 Allow/2019-20/1731/D (R&D) dated 31 Oct 2019 and guidelines issued vide this Directorate letter No. DOP/05/53138/1TM/M/02 dated 08 Jan 2020."4 OA No. 1677/2021
3.4 In addition to the assigned duty of faculty, applicant was entrusted with the additional charge of Divisional Head (Works) by respondent No.4 w.e.f. 14.09.2020. 3.5 In the month of December 2020, the applicant noticed some new construction activity on Defence land around survey No.18 (also called Landour Villa) from where many water supply pipes for ITM‟s requirements are passing. Mr. and Mrs. Deepak Madhok, who are declared land mafia by the UP Govt., are having the occupancy right to Survey No.18. 3.6 Accordingly, he apprised all happenings to respondent No.4 alongwith messages, photos and videos in due discharge of duties. In the meantime, the representatives of Mr. Deepak Madhok, land-mafia challenged the applicant to be silent on the issue as even the respondent No.4 is already aware on the said construction activity. The same fact was duly conveyed to respondent No.4 by the applicant while apprising all incidences during a meeting on 17.12.2020 along with the Group Head (Works). However, since no concrete action was taken and the illegal construction was on, the applicant in due discharge of his duty forwarded e-mail to respondent No.4 on 24.12.2020 for immediate attention, consideration and necessary direction.
5OA No. 1677/2021 3.7 On 30.12.2020, Respondent No.4 wrote an accusing email to the applicant asking the relevance and intention of email dated 24.12.2020. Thereafter, respondent No.4 started harassing the applicant on the issue by passing uphill tasks solely to the applicant despite being aware of the fact that the applicant is restlessly engaged in his regular work of faculty and study program connected therewith.
3.8 On 11.02.2021 during inspection, the applicant dealt with the land-mafia party which lead to some hot talks without any further complications in the matter. But surprisingly, applicant was issued a show cause notice on 11.02.2021 from respondent No.4 regarding alleged trespassing and action taken at Survey No.18. It is submitted that applicant was relieved from the duties of Divisional Head (Works) by virtue of show cause notice without even waiting for the reply of show cause notice from the applicant.
3.9 In this compelled situation, the applicant had no option other than to report the said harassment to the Grievance Cell/Higher Authorities with the hope that the attention of the Government, on the encroachment of the Government land, will also be highlighted. Accordingly, he submitted a representation dated 16.02.2021 to respondent No.3, who was ex-officio Chairman, Grievance Cell, DRDO, HQ for apprising 6 OA No. 1677/2021 about the harassment inflicted upon him by issuing show cause notice without any official complaint and malafide presumption of the fact that he was a trespasser and Survey No.18 belonged to the encroachment with request for protection. He sent a copy of the representation to respondent No.2 also.
3.10 Applicant also highlighted the corrupt practices of respondent No.4 viz. (i) withdrawal of training allowance in violation of Govt. guidelines having a huge financial implication of approx. Rs.50,000/- per month (ii) unauthorised usage of heating plant for his residential purpose having a huge financial implication of Rs.10,000/- per day. The applicant also sought permission to report to CVC on the issue of training allowance which was never allowed. 3.11 Thereafter, respondent No.4 visited DRDO HQ on 23- 24.06.2021 and transferred the applicant from ITM, Mussorie to ARDE, Pune with immediate effect vide order dated 24.06.2021 wherein no administrative exigency/ground was stated therein. The impugned transfer order reads as under:
"DOP/05/53138/ITM/M/02 24 Jun 2021 To The Director The Director ITM ARDE Mussoorie Pune 7 OA No. 1677/2021 POSTING/TRANSFER: Dr AK TYAGI, Sc D. Competent Authority has approved the transfer of Dr AK Tyagi, Sc „D' from ITM, Mussoorie io ARDE, Pune in public interest with immediate effect.
2. Relieving and joining reports of the officer may please be sent to this Directorate (Pers (DRDS-III) & (DRDS- I & II).
(Romi Sinha) Addl Dir/Pers (DRDS-III) for Director of Personnel"
3.12 The applicant submitted a representation on 28.06.2021 against the impugned transfer order to respondent No.4, who replied vide email dated 28.06.2021 in a very vague manner. 3.13 He then submitted a representation dated 29.06.2021 to respondent No.1 after receiving negative reply from respondent No.4. Respondent No.1 rejected the applicant‟s representation vide communication dated 07.07.2021 without passing a reasoned and speaking order, which reads as under:
"To Dr A K Tyagi, Sc „D‟ ITM Mussoorie Subject: REPRESENTATION AGAINST POSTING/ TRANSFER: DR A KTYAGI, SC 'D', ITM, MUSSOORIE Further to this HQ letter of even number dated 29 Jun 2021, it is intimated that your representation dated 29 June 2021 has been considered and not agreed to by the competent authority on the ground that your transfer to ARDE, Pune is guided by public interest.
2. You are, therefore, directed to immediately comply with the transfer order issued vide Order No. DOP/05/531381/TM/M/02 dated 24 Jan 2021. It is also intimated that non-compliance will be viewed seriously and 8 OA No. 1677/2021 will entail appropriate disciplinary action for violation of CCS (Conduct) Rules, 1964.
3. This has approval of the competent authority."
Hence this OA.
4. Per contra, learned counsel for respondents contended that applicant holds the post of Scientist-D in DRDO. He belongs to Defence Research & Development Service (DRDS) cadre with an All India Service liability. Scientists of different streams are inducted in DRDS cadre and the applicant has core specialisation in the discipline of Operational Research in the specialised field of Military Operational Research with an experience of around 14 years. DRDO develops various products related to National Defence and there are different laboratories situated around the country. The applicant was chosen to impart training to other DRDS officers at ITM, Mussorie and he joined on 01.07.2020. His primary responsibility was to prepare and deliver assigned lectures from time to time. He was granted Training Allowance @24% of basic pay to compensate the work related to faculty assignments. He was also given the responsibility of Divisional Head (Works) by respondent No.4, as all faculties are entrusted with additional responsibility. His basic job was to liaise with EMU officials for day-to-day maintenance activities related to ITM, Mussorie. It is contended that applicant on his own accord formed an opinion about 9 OA No. 1677/2021 relationship between respondent No.4 and a private party Mr. Deepak Madhok. He accused respondent No.4 of conspiring with Mr. Deepak Madhok for encroaching Defence land but he never put up a single document to prove this fact. The applicant was given a free hand by respondent No.4 to ascertain the extent of encroachment. He was also advised to liaison with any external agency but he failed to carry out any of the duties entrusted upon him.
5. It is further submitted that the transfer order of the applicant was issued by the Competent Authority, which observed that as a faculty, his performance is not appreciable. His average feedback score was under 4 out of 5 in the academic year 2020-21. His activities were vitiating the atmosphere and hampering/disrupting regular chores. It is further submitted that the guidelines framed vide DOP letter no.DOP/11/110059/ITM/02 dated 15.01.2020 inviting applications for the appointment of teaching faculty at ITM, Mussorie do not override the public interest and terms and conditions of joining letter of the applicant. The tenure of posting of a teaching faculty at ITM is governed by Government of India letter dated 31.10.2019. Therefore, guidelines provide for an indicative tenure of a faculty in receipt of Training Allowance to continue without any public interest. It is further submitted that the applicant was 10 OA No. 1677/2021 transferred on selection as faculty and was paid full allowances including composite transfer grant as applicable. He was provided full support from the Institute including manpower for shifting of his personal effects. As his current transfer is also in public interest, he will again be provided with the allowances which are admissible to him.
6. Heard applicant in person and Sh. Manish Kumar, learned counsel for respondents and perused the written submissions and pleadings on record.
7. Analysis:
7.1 It is the main contention of the applicant, that it is a tenure posting as per clause 2 (a) of the guidelines/OM dated 31.10.2019 and there was no clause either in the nature of any contract or otherwise where the tenure posting can be curtailed. In this regard, he relies upon guidelines for teaching faculty at ITM, Mussoorie dated 08.01.2020 (Annexure A-6). The relevant portion of the same reads as under:
"(b) EXTENSION OF TENURE:
Tenure of scientists as faculty will be three years from the date of joining ITM Tenure of scientists at ITM is extendable by 1 year in public interest on the basis of recommendation of both Director, ITM and DG (HR) and approval of Secretary DD (R&D) & Chairman DRDO. Further extension of another 01 year in public interest would also be on the basis of recommendations of both Director, ITM & DG (HR) and approval of Secretary DD(R&D) & Chairman DRDO. In both 11 OA No. 1677/2021 cases, DOP will issue the necessary orders. If the stay is beyond 5 years, it will be without training allowance.
(c) REVIEW:
Performance of faculty will be subject to systematic yearly reviews by M With the following attributes. Director, ITM will compile the following information and submit a report to DG (HR).
(i)Number of sessions taken
(ii) Avarage score of faculty feedback
(iii) Number of research publication during ITM tenure (iV) Compilation of case examples, case studies (V) Invited talks delivered outside ITM.
In case performance is not deemed satisfactory by Director, ITM & DG (HR), the faculty may be sent back to the parent lab/est."
7.2. Further, attention has been drawn to para 5.8 which reads as under:
"5.8. Because the impugned orders are bad in law and vindictive on account of the facts that the respondent no. 4; unilaterally, arbitrarily and abruptly issued defective movement/relieving order without issuance of no- dues/clearance certificate with the sole intent of giving no reaction time to him for submitting representation in this regard from the strength of ITM, denied applicant to his legal right of applying for transfer advance, and also unauthorisedly debar entry of the applicant in office as well as not let him to collect his belongings from office which establishes vengeance and vindictiveness of the respondent no. 4. Thus, the process of executing/ implementing relieving from the office is biased, manipulated, managed, humiliating and mala-fide as no proper procedures and social etiquettes for relieving were followed."
8. It is further contented by the applicant that the impugned Posting/Transfer order is liable to be quashed on the following grounds:
12OA No. 1677/2021
(i) The said posting/transfer order is contrary to law of promissory estoppel inasmuch as it was a tenure posting and therefore there is a breach of contract as posting/transfer in fact reduce his tenure posting of three years. He further lays emphasis on the principle of doctrine of legitimate expectation as possessing a well qualified educational qualification and experience, he was given the posting at ITM Musoorie for transfer of three years.
(ii) It is a matter of fact that since the passing of the impugned order, the applicant has not joined the placed of posting till date.
9. In support of his submission, the applicant further contended that it is against the dicta laid down by Hon'ble Apex Court in Case No. W.P.(C) 7079/2012 titled Indian Council Of Agricultural Research & Ors. Vs. Sanjeev Kumar Tyagi & Ors. where the Apex Court held "That pertaining to scientists, the traditional theory of exigencies of service, which inherently applies to apply administrative functioning, may strictly not be applicable. It is not a to mechanist exercise to see that the post to which a scientist is sent on transfer is equivalent. The exercise has to primarily focus on the subject expertise of the scientist and whether 13 OA No. 1677/2021 compatible research facilities are available at the place where the scientist is posted. What use would it be to send a nuclear physicist to a missile centre?"
10. It is further submitted that it is against the dicta laid down by Hon'ble Apex Court in Raj Bahadur Sharma Vs. Union of India, (1998) 9. SCC 458 wherein it is held that "A relieving order could be passed when certain functional responsibilities are to be carried out by the transferred employee. For example, handing over of the charge, classified documents, registers, commercial documents, cash etc., as the case may be."
11. It is further argued that the Apex Court in Dharmendra Kumar Saxena vs State of UP &. Ors, Writ A No. 36766 of 2013 has held that "the guidelines are made to follow it and not to breach it without any justifiable reasons".
12. Alternately, it has been argued that by making the transfer/posting, he has been reduced in rank. He further relies upon Debesh Chandra Das vs UOI, (1969) 2 SCC 158 wherein it is laid down that "if a govt. employee has to be sent away from a tenure post before expiry of the period of tenure, Article 311(2) must be complied with if the reversion is to a post lower in rank than the post held on tenure; or there is a stigma attached to the order of reversion, that is to say, if the 14 OA No. 1677/2021 reversion is not due to a pure accident of service but his work and conduct is alleged to be unsatisfactorily". In the case of Amar Nath Bhatia vs. Union of Delhi, 1987 Serv LR 10 (Del CAT), it has been held that "Where a transfer order has a penal effect on his pay, Article 311 (2) would be attracted" and therefore the impugned order is in blatant violation of principal of natural justice.
13. On the other hand, learned counsel for the respondents has drawn my attention to the DRDO guidelines based on DOP&T instructions wherein he also relies upon review clause as was argued by the applicant, which reads as under:
"REVIEW Performance of faculty will be subject to systematic yearly reviews by ITM with the following attributes. Director, ITM will compile the following information and submit a report to DG (HR).
(i) Number of sessions taken
(ii) Avarage score of faculty feedback
(iii) Number of research publication during ITM tenure
(iv) Compilation of case examples, case studies
(iv) Invited talks delivered outside ITM.
In case performance is not deemed satisfactory by Director, ITM & DG (HR), the faculty may be sent back to the parent lab/est."
14. In case performance is not deemed satisfactory by Director, ITM & DG (HR), the faculty may be sent back to the parent lab/estt.
15OA No. 1677/2021
15. Attention has also been drawn to the submission made by the learned counsel during the course of the final hearing that the department has taken action and issued memo of charge sheet against the applicant for not obeying the order Transfer/posting to which the applicant is already replied and denied the charges vide communication dated 06.11.2022.
16. Learned counsel further relies upon the judgment of Shilpi Bose & Ors. Vs State of Bihar, 1991 Supp (2) SCC 659, wherein Hon'ble Supreme Court has categorically ruled that "In our opinion, the Courts should not interfere with a transfer Order which is made in the 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 16 OA No. 1677/2021 Administration which would not be conducive to the public interest. The High Court overlooked these aspects in interfering with the transfer Orders." In absence of any order by the government, the applicant has failed to establish the guarantee that he seeks from the government to keep him in a faculty position even if his deployment is advantageous in other places. The court orders referred by the applicant have no relevance in the present case. The matter in this regard for a transfer in the public interest has been made crystal clear by Hon'ble Apex Court in Addison's Paints' & Chemicals Ltd. V, Workman, AIR 2001 SC 436, held that refusal to report for duty upon transfer amounts to misconduct. Even if the transfer order is bad for some reason, the employee must ensure compliance of the order first and then raise the issue with the employer for redressal of his grievance. Being a government servant the expectations of the applicant that he may be kept posted at a particular place so that he may gain teaching experience, whereas government requires his services elsewhere are illegitimate. In Shilpi Bose (supra), the Hon'ble Apex Court has held that the order of transfer/posting "issued by the competent authority did not violate any of her legal rights." The employee holding a transferable post cannot claim any vested right for his/her posting at a particular place. From the aforementioned, it is evident that posting to any particular 17 OA No. 1677/2021 place is not a legal right. Article 14 guarantees equality before the law only. Right to equality is a positive concept. One can allege a violation of Article 14 only where there is an enforceable legal right. In the absence of such a right, the question of discrimination or violation of Article 14 does not arise. This fact has also been upheld by this Tribunal in Jawahar Thakur vs. Union of India in OA No.1888/2015 decided on 19.06.2015.
17. It is a known fact that the DRDO was established in the year 1959 by amalgamating Defence Science Organisation and some of the technical development establishments. A separate Department of Defence Research and Development was formed in 1980 which later on administered DRDO with its almost 30 laboratories/ establishments (there were almost 52 labs before merging). Most of the time the Defence Research Development Organisation was treated as if it was a vendor and the Army Headquarters or the Air Headquarters was the customers. Because the Army and the Air Force themselves did not have any design or construction responsibility, they tended to treat the designer or Indian industry at par with their corresponding designer in the world market. If they could get a MiG-21 from the world market, they wanted a MiG-21 from DRDO. Under DRDO there are 46 Cluster Laboratories/Establishments, 3 HR Institutions 18 OA No. 1677/2021 including the Institute of Technology and Management (ITM), 8 other institutions and 9 Centres for Excellence.
18. In the present case, ITM consist of Management Council, which is an Apex body of ITM to see the overall development of infrastructure, image building and address the issues relating to discipline and procedural bottlenecks. The Council meets twice a month and comprises of Director (Chairman), all Gp./Div. Heads and special invitees as per agenda.
19. The Academic Council is also the apex body of ITM to evolve policy on overall course design, academic collaborations, faculty development and provide solution for improving the course curriculum. The Council comprises of Director (Chairman), Dean (Academic), Group Head Training and all Faculty Members. The meeting of the Council takes place once in a week.
20. The applicant in the present case has been transferred from ITM Mussorrie to ARDE Pune which is involved in task of armament of R&D to achieve self-sufficiency in the said filed. Perusal of the record shows that as per the advertisement, it was clear that posting was subject to "Review", i.e., "the performance of the faculty post at ITM would be subject to systematic yearly reviews by ITM as per Guidelines issued by DOP vide letter no.DOP/05/53138/ITM/02 of Jan 08, 2020". 19 OA No. 1677/2021
21. From bare perusal of the advertisement, the column "Tenure" specifies as under:
"1) 3 years from the date of joining ITM.
2) Extendable by 1 year on the written request of individual recommendation of Director ITM and GD (HR) & approval by Secretary DD(R&D) and Chairman DRDO.
3) Further extendable for another 1 year as per Sl. No.(2) above.
4) In both the cases of extension, i.e. (2) & (3) above, DOP will issue the necessary orders.
5) After serving the tenure, scientists will be asked to submit 3 options, which may include going back to the parent lab, based on his/her qualification/experience to decide place of posting."
22. It is also relevant to mention herein that the "Job Profile"
as mentioned in the advertisement is as under:-
"1) To design, develop and coordinate training courses of ITM.
2) To prepare & deliver sessions in a selected vertical of ITM, viz., Technology Management (TM), Project Management (PM), Material Management (MM), Organizational Behaviour (OB) or as decided by Director ITM.
3) Research & publication in selected core area.
4) Interaction with Institutes of Excellence & DRDO stakeholders in the selected vertical.
5) Interaction with DRDO labs for compilation of case examples & case studies.
6) Laboratory/ project experience sharing for DRDO specific inputs.
7) Directing staff for management projects/consultancies.
8) Plan up-gradation & development of selected vertical.
9) Any other related job given by the Director ITM."20 OA No. 1677/2021
23. Pursuant to the same, guidelines are also issued on 08.01.2020 wherein it was stipulated that:
"(b) EXTENSION OF TENURE:
Tenure of scientists as faculty "will" be three years from the date of joining ITM. Tenure of scientists at ITM is extendable by 1 year in public interest on the basis of recommendation of both Director ITM and DG (HR) and approval by Secretary DD(R&D) and Chairman DRDO. Further extension of another 01 year in public interest would also be on the basis of recommendations of both Director ITM and DG (HR) and approval by Secretary DD(R&D) and Chairman DRDO. In both cases, DOP will issue the necessary orders. If the stay is beyond 5 years, it will be without training allowance.
(C) REVIEW:
Performance of faculty will be subject to systematic yearly reviews by ITM with the following attributes. Director, ITM will compile the following information and submit a report to DR (HR).
(i) Number of sessions taken
(ii) Average score of faculty feedback
(iii) Number of research publication during ITM tenure
(iv) Compilation of case examples, case studies
(v) Invited talks delivered outside ITM.
In case performance is not deemed satisfactory by Director, ITM & DG (HR), the faculty may be sent back to the parent lab/est."
24. "Tenure" of posting was in terms of GOI letter No. DHRD/70578/ITM/Trg Allow/2019-20/1731/D(R&D) dated 31 Oct 2019.
25. It is also seen that vide communication dated 16.06.2020, the Competent Authority had approved the "transfer of the officers" as Teaching faculty Act, ITM Mussorrie in public interest of 4 Scientists including that 21 OA No. 1677/2021 of the applicant. It is very much clear from office communication dated 16.06.2020 that the "Tenure and Review of the officers will be as per Govt. of India letter No.DHRD/70578/ITM/Trg Allowance/2019-20/1731/D (R&D) Dated 31 Oct 2019 and guidelines issued vide this Directorate letter No.DOP/05/53138/ITM/M/02 dated 08 Jan 2020."
26. As can be seen that FR 15-A itself contemplates as under:
"F.R.15. (a) The President may transfer Government servant from one post to another provided that except-
(1) On account of inefficiency or misbehaviour, 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."
27. Hon‟ble Apex Court in Director of School Education Madras and others vs. O.Kauppa Thevan, 1994 SC Supl. (2) 666 wherein it is held that "the Tribunal has erred in law in holding that the respondents employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration." 22 OA No. 1677/2021
28. As can be seen from the above provisions, it is clear from the guidelines dated 16.06.2020 and 08.01.2020, the word "Will" has been used rather than word "Shall". Therefore, in the matter of transfer, more particularly, in the light of the procedure regarding transfer as well as Fundamental Rule 15(a), the tenure of service as faculty, the word "Will" cannot be construed to be word "Shall". The Doctrine of Legitimate Expectation or principle of promissory estoppels cannot be applied in the matter of transfer/posting. Alternatively, it can also be seen that the word "Will" cannot be construed to mean inevitable "shall". It is only to create a promise in the form of contractual obligation. Neither it cast any duty and/or future action as distinguished to the word "Shall" which in necessary corollary would mean as on duty and used as to "impose" a duty or capable or having marked usage, command „imperative‟, „must‟, „mandatory‟ without any discretion. In the facts of the present case, it is not disputed that the tenure of the applicant commence from 01.07.2020 and continued for a period of over one year. The initial order dated 16.06.2020 of the applicant was itself a transfer/posting order, whereby Competent Authority had approved the transfer of the applicant in public interest which was subject to "review". It can also not be ignored that initially the applicant was appointed vide office order dated 18.09.2006 wherein it was 23 OA No. 1677/2021 also stipulated that the applicant was liable to be served anywhere in India and was bound by the CCS (Conduct) Rules, 1964. The applicant has accepted the terms and conditions and joined the services of the respondent- DRDO. It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law maker. The Courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a Statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the Statute.
29. Further, as per Standing Operating Procedure (SOP), the posting and transfer on compassionate grounds cannot be 24 OA No. 1677/2021 treated as matter of right. The posting of DRDO personnel to a particular Lab/Estt is based on their technical qualification, domain knowledge and organizational interest in a judgment in National Hydroelectric Power Corporation Vs. Shri Bhagwan & Others, (2001) 8 SCC 574, the Hon'ble Supreme Court of India held as under:
"No government servant or employee of a public undertaking has any legal right to be posted forever in any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other 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 mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or tribunals cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned."
30. Now coming to the law of transfer, in the light of the principle laid down in judicial pronouncement, it is well settled law that the transfer/posting in public interest is not liable to be interfered with unless and until it is established that the same is made by way of malafide or punishment. The Hon‟ble High Court of Uttarakhand in the case of Dr. Parveen vs. Director General, WP (C) No.99/2019 held as under:
"27. Questions, as to whether the transfers effected are in public interest or not, are normally not examined as this would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public 25 OA No. 1677/2021 undertaking has any legal right to be posted forever at one particular place or to a place of his choice 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 in public interest and efficiency in public administration. Except, in exceptional circumstances, Courts or the Tribunals do not, normally, interfere with such orders as if they were appellate authorities substituting their own decision, for that of the employer/management, with respect to such orders passed in administrative exigencies. (National Hydroelectric Power Corpn. Ltd. and Siya Ram).
28. Courts or tribunals are not appellate forums to decide on transfer of employees on administrative grounds. Wheels of administration should be allowed to run smoothly and Courts/ tribunals are not expected to interdict the working of the administrative system by transferring officers to places it considers proper. It is for the administration to take appropriate decisions, and such decisions shall stand unless they are vitiated either by malice or extraneous considerations. (S.S. Kourav). Orders of transfer should not be interfered with lightly by a Court of law in the exercise of its discretionary jurisdiction. (Anjan Sanyal). Courts or Tribunals cannot substitute their own decisions, in the matter of transfer, for that of the competent authorities. (Gobardhan Lal; Kendriya Vidyalaya Sangathan; Janardhan Debanath; National Hydroelectric Power Corpn. Ltd.; S.L. Abbas; B.C. Chaturvedi; National Hydroelectric Power Corpn. Ltd.; Major General J.K. Bansal).
29. Since the petitioner's claim, of the transfer order being illegal, is primarily based on the ground that it is vitiated by malafides, it is necessary to take note of the circumstances under which a transfer order can be set aside on this score. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an "alien" purpose, other than the one for which the power is conferred, is malafide use of that power. Same is the position when an order is made for a purpose, other than that which finds place in the order. (Express Newspapers (P) Ltd.). Allegations of malafides, when made, must inspire confidence in the Court and should be based on concrete material. Such allegations ought not to be entertained on the mere making of it, or on considerations borne out of conjectures or surmises. (Gobardhan Lal). While a reasonable inference of malafide action can be drawn from the pleadings, and antecedent facts and circumstances, there must be firm foundation of facts pleaded and established, and such inference cannot be drawn on the basis of insinuations and vague suggestions. (Rajendra Roy). Vague insinuations in the application filed before the Tribunal, or in the affidavit filed in support of the Writ Petition filed before this Court, would not suffice to hold that an order of transfer is vitiated by malafides.26 OA No. 1677/2021
30. Except for a bald averment, no material has been placed by the petitioner before this Court to support the allegations of malafides. Mere use of the word "malafide" would not, by itself, justifying acceptance of such a plea. (Prabodh Sagar). Allegations of malafides essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite material are not on record, the court would not make a "fishing" or a "roving" inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be malafide. It must be demonstrated by facts. Moreover, the burden of proving malafides is on the person levelling such allegations and the burden is "very heavy". The charge of malafide is more easily made than made out. It is the last refuge of a losing litigant (E.P. Royappa; Gulam Mustafa; Ajit Kumar Nag; and Dhampur Sugar (Kashipur) Ltd.). Vague allegations of malafides are not enough to dislodge the burden resting on the person who makes the same, though what is required in this connection is not proof to the hilt. The abuse of authority must appear to be reasonably probable. (Express Newspapers (P) Ltd.). There has to be strong and convincing evidence to establish allegations of malafides specifically and definitely alleged in the petition. The presumption under law is in favour of the bonafides of the order unless contradicted by acceptable material. (Chandra Prakash Singh; Nirodhi Prakash Gangoli).
31. While exercising the power of judicial review, the High Court should not readily accept the charge of malus animus laid against the State and its functionaries. The burden to prove the charge of malafides is always on the person who moves the court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to malafides. The Court should resist the temptation of drawing dubious inferences of malafides or bad faith on the basis of vague and bald allegations or inchoate pleadings. (Jasbir Singh Chhabra).
32. Where a case is almost entirely based on mala fides, the person alleging malice should furnish the necessary particulars for the allegation, and should prove malus animus indicating that the respondent was actuated either by spite or ill will against him or by indirect or improper motives, failing which it is not obligatory for the respondents to deal with it in detail in their reply. Both direct and circumstantial evidence, as well as the respondents' admission and the surrounding circumstances of the case, are admissible to establish lack of bona-fides, or bad faith. (Kedar Nath Bahl). It is for the person seeking to invalidate an order to establish the charge of bad faith. Such a charge may be made easily or without a sense of responsibility, and that is why it is necessary for Courts to examine it with care and attention. (S. Pratap Singh; Kedar Nath Bahl).
Xxx xxx xxx 27 OA No. 1677/2021
46. No rule which requires an employee to be put on notice, before a transfer order is passed, has also been brought to our notice. The Tribunal has examined the matter in great detail, and has held that the manner in which an organization should be run is for those, at the helm of its affairs, to decide; and Courts/Tribunals lack expertise in such matters. The view taken by the Tribunal cannot be said to be a view which could not have been taken at all, for it is only then would this Court be justified in exercising its certiorari jurisdiction, under Article 226 of the Constitution of India, to interfere."
31. After going through the facts of the case, it is seen that the impugned order of rejecting the representation is by virtue of the order dated 07.07.2021, which is a non-speaking and non-reasoned order. As per the respondents‟ Office Memorandum issued by DOP&T from time to time dated 01.01.1999, 11.01.2002, 19.04.2010, 06.06.2013, 31.08.2015, it is a mandate upon the Ministries and Departments that any final reply or decision on a representation shall contain and cover all points raised by him and in cases where representation of the Government servant is rejected on the grounds, therefore, should be clearly indicated. Further, reasons best known to the respondents, instead of giving the option in terms of Clause „C‟ to the applicant to revert back to his parent department, i.e. ISSA Delhi, the applicant was transferred to ARDE Pune.
32. In the present case, on bare perusal of the impugned order of rejection, as already highlighted above, is a non- speaking and non-reasoned one and contrary to the 28 OA No. 1677/2021 guidelines, as highlighted above, in various OMs. It is also settled law of Hon‟ble Apex Court in decision rendered in Param Singh & Ors. vs. State of UP & Ors., Special Appeal No.1163/2018, wherein it is held that "if a transfer is made against the executive instructions or transfer policy, the competent authority must record brief reason in the file for deviating from the transfer policy or executive instructions and the transfer must be necessary in the public interest or administrative exigency. If an officer/employee, who is aggrieved by his/her transfer, makes a representation to the competent authority, his/her representation must be decided objectively by a reasoned order. ...... A policy/ policy decision/ policy matter is made by Government after considering all the points from different angles, while framing the policy the Government also takes into consideration the administrative efficiency and other incidental matters. Once the Government takes a policy decision, it is obligatory on its officials to execute its policy in the right earnest and to achieve the objects of the policy. The rule of the law casts a duty on the administrative functionaries to act within the framework of the law, be it law made by the legislature, subordinate legislation or executive orders issued under Article 73 and 162 of the Constitution."
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33. In a recent judgment passed by the Hon‟ble High Court of Delhi in Amarjeet Singh Dagar vs. Union of India and others, WP (C) No.6311/2020 decided on 07.03.2022, it is held as under:
"23. At the outset, it must be emphasised that an employee in a transferable job has no vested right to remain posted at one place. The Courts should not readily interfere with the transfer order which is made in the public interest and for administrative reasons, unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead, the affected party should approach the higher authorities in the concerned department. If the Courts continue to interfere with day-to- day transfer orders issued by the Government and/or its subordinate Authorities, there will be complete chaos in the administration which would not be conducive to the public interest. Interference under Article 226 of the Constitution of India is permitted only where the Court finds either the transfer order is mala fide or that the service rules prohibit such transfer or that the Authorities issuing the order were not competent to pass the same. It must be remembered that transfer ordinarily is an incidence of service and must be left to the discretion of the Authorities concerned, which are in the best position to assess the necessities of the administrative requirements of the situation. The Courts must maintain judicial restraint in such matters. {Refer: Shilpi Bose (Mrs.) & Ors. vs. State of Bihar & Ors., 1991 Supp. (2) SCC 659; Mohd. Masood Ahmad vs. State of Uttar Pradesh & Ors., (2007) 8 SCC 150; State of Haryana vs. Kashmir Singh & Anr., (2010) 13 SCC 306; and Major Amod Kumar vs. Union of India, (2018) 18 SCC 478)}.
24. In Punjab and Sind Bank & Ors. vs. Durgesh Kuwar, 2020 SCC OnLine SC 774, the Supreme Court summarised the principles applicable to transfer orders, as under:
"17. We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the 30 OA No. 1677/2021 Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law."
34. The present OA is devoid of merits in so far as setting aside order of transfer is concerned. Hence, the OA is partly allowed to the extent that the only direction which can be given in the present matter is to the effect that the impugned order dated 07.07.2021 is liable to be set aside on the short point that it is a non-speaking and non-reasoned order. The Competent Authority is directed to dispose of the representations dated 28.06.2021 and 29.06.2021 by passing a reasoned and speaking order without being influenced by the observation made herein above within a period of 45 days from the date of receipt of certified copy of the order by following the principles of natural justice. There shall be no order as to costs.
( Manish Garg ) Member (J) /sd/