Central Administrative Tribunal - Kolkata
Ravi Shankar Choudhary vs Council Of Scientific & Industrial ... on 21 June, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A.No. 350/289/2024 Date of order: 21.06.2024
Present : Hon'ble Mr Rajnish Kumar Rai, Judicial Member
Ravi Shankar Choudhury,Son of Sri Harihar
Prasad, aged about 47 years, working as
Store and Purchase Officer(SPO),
CSIR-CMERI, Durgapur, residing at
D11/23/2. CMERI Colony, Durgapur,
PIN -713209, West Bengal
...........Applicant
- VERSUS-
1. Union of India, service through the
Secretary, Ministry of Service and
Technology, Government of India,
Technology Bhavan, New Mehrauli
Road, New Delhi - 110016;
2. The Director General, Council of
Scientific & Industrial Research,
having office at Anusandhan Bhawan,
2, Rafi Marg, New Delhi - 110001;
The Senior Deputy Secretary,
Council of Scientific & Industrial
Research, having office at Anusandhan
Bhawan,2, Rafi Marg, New Delhi - 110001;
...........Respondents
For the Applicant : Mr. Arpa Chakraborty, counsel
For the Respondents : Mr. Bharat Bhushan, counsel
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ORDER
This O.A. has been filed by the applicant challenging the order dated 24.01.2024 as well as the Office Memorandum dated 23.02.2024 with regard to his transfer from SPO,CSIR-CMERI, Durgapur to IICT, Hyderabad. In the instant O.A., the applicant has sought for the following reliefs:-
"a) Office Order of Transfer being No.3-4©/2024-E.I dated 24.01.2024 issued by the respondent no.3 as well as the office memorandum dated 23.02.2024 issued by the respondent No.2 with respect to the applicant are not tenable in the eye of law and as such the same should be quashed;
b) An order do issue directing the respondent authorities not to disturb the service of the applicant in his present capacity and thereby to allow him to discharge his duty as SPO at CSIR-CMERI, Durgapur;
c) To grant all consequential benefits;
d) To certify and transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed for in (a) and (b) above;
e) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
2. From perusal of the record it appears that the applicant had earlier approached this Tribunal by way of O.A.No.350/206/2024 which was disposed of at the admission stage vide order dated 09.02.2024 with a direction upon the respondents to consider the representation of the applicant dated 25.01.2024 addressed to the Director General, Council for Scientific and Industrial Research, Anusandhan Bhawan, New Delhi.
3. Consequent to the direction given by this Tribunal vide order dated 09.02.2024, the representation of the applicant dated 25.01.2024 was considered and disposed of by passing an order dated 23.02.2024 by which the prayer of the applicant was rejected and he was directed to comply with the transfer order issued vide CSIR O.M. dated 24.01.2024 with immediate effect. 3
4. After exchange of pleadings the O.A. has been finally heard at the admission stage.
5. Facts in brief are that the applicant was initially appointed as a Section Officer (S&P) in IHBT, Palampur on 18.03.2005. During his tenure from 2005, the applicant was transferred and posted at various places including Dehradun, Kolkata, New Delhi, Dhanbad, Lucknow and at present he is posted at Durgapur. Submission of the Learned Counsel for the applicant is that the applicant has been transferred 8 times at different places and has not completed three years of service at the present place of posting i.e. Durgapur as per Clause IV (1)(iii) of the "Guidelines for Transfer and Posting of Group 'A', 'B' Common Cadre Officers of CSIR", which states that "every CCO will be required to serve at least one tenure (03 years) at one of the difficult stations. After the difficult station posting, next posting of the CCO will be considered in his/her preferred station, as soon as feasible." Learned counsel for the applicant has submitted that the transfer order of the applicant was issued in violation of Clause 5A of the aforesaid Transfer Guidelines, which states that "Request for retention at the present station may be considered upto the end of board examination in case the child (ren) is/are studying in 10th or 12th Class and the CCO and concerned has already intimated this fact in advance." Learned Counsel for the applicant further submitted that the elder daughter of the applicant has reached Class-10 for the academic session 2024-2025 and prayed for quashing of the impugned orders dated 24.01.2024 and 23.02.2024 on that ground.
6. Per contra, the respondents have submitted that during the period of service of the applicant he availed two transfers on his own request i.e. for the period from 2006 to 2009 at Dehradun and from 2011 to 2014 at Dhanbad. Moreover, the applicant stayed at Lucknow for the period from 2014 to 2021 and posted at three different research institutes which were in public interest and cannot be attributed 4 to the number of transfers as alleged by the applicant. The respondents' counsel further submitted that as per Clause IV.3 of the TPC Guidelines dated 01.01.2019 "Notwithstanding any provision of these guidelines, the Group 'A' CCOs are liable to be transferred at any time to any CSIR Establishment by DG, CSIR in public interest (i.e. functional needs or in public interest0. In case of Group 'B' CCOs this authority vests in JS (Admn.), CSIR." Learned Counsel for the respondents has also stated that CSIR is a pan India organization having 37 Labs/Institutes and no officer has any vested right for posting at any particular place. He has submitted that the applicant was transferred on administrative ground from SPO,,CSIR-CMERI, Durgapur to IICT, Hyderabad which is one of the developed cities in India having many central Government departments, MNCs, PSUs and all the educational and medical facilities. The respondents' counsel has averred that on the date of transfer i.e. 24.01.2024, the elder daughter of the applicant was studying in Class-IX, therefore, the ground taken by the applicant with regard to Para 5(A) of the Transfer Policy dated 01.01.2019 cannot be acceded to. The respondents have denied the contention of the applicant regarding favouritism in Transfer Policy and submitted that it is the prerogative of the competent authority to transfer an employee working under its administrative control and to look into the efficiency and overall management of the institution, therefore, keeping in view the administrative exigencies, the competent authority is free to transfer any employee at any time to any of the institutes of CSIR in public interest and as per functional needs.
7. Heard Learned Counsel for the parties, perused the entire record and considered the submissions of the Learned Counsel for the parties.
8. It is admitted fact that the applicant belongs to CSIR Common Cadre Officer and the very purpose of his service is to serve CSIR Labs/Institutes located across pan India. The job of Common Cadre Officer(CCO) is transferable and accordingly 5 after his first posting at Palampur in the year 2005 he was transferred to Dehradun on own request and then from 2009 to 2011 he worked at Kolkata in Public interest. He was transferred to New Delhi for a short period of one month and thereafter to Dhanbad on his own request and worked there for more than three years. He was further posted at Lucknow for the period from 2014 to 2021 in different research institutes i.e. CDRI, NBRI, IITR etc. and thereafter transferred to Durgapur in 2021 in Public interest. Therefore, it is clear that the applicant has completed more than three years at Durgapur and his turn for transfer to another place has come and accordingly he has been transferred to Hyderabad vide order dated 24.01.2024.
9. So far as the grievance of the applicant as mentioned in the representation dated 25.01.2024 is concerned, the respondents have considered/dealt with all the points raised by the applicant and disposed of the representation by way of a reasoned and speaking order dated 23.08.2024. The applicant has failed to substantiate his case with regard to illegality in the order dated 23.08.2024 whereby his prayer for retention at Durgapur was rejected.
10. In this regard it would be pertinent to refer to a catena of decisions of Hon'ble Supreme Court in the following cases :-
(i) Shilpi Bose Vs. State of Bihar AIR 1991 SC 532, the Hon'ble Apex Court held that a transfer order, even if, is issued to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because transfer orders were passed on the request of the concerned employees. No person has a vested right to remain posted to a particular place, and unless the transfer order is passed in violation of any mandatory rule, the High Court had no jurisdiction to interfere with the transfer 6 orders. Relevant extract is quoted as under:
"if the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because the transfer order were passed on the request of the employees concerned. The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are liable to be transferred from one place to the other. The transfer orders had been issued by the competent authority, which did not violate any mandatory rule, therefore, the High Court had no jurisdiction to interfere with the transfer orders."
(ii) That, in Rajendra Rai vs. Union of India 1993 (1) SCC 148 and Union of India vs. N.P. Thomas 1993 Suppl. (1) SCC 704, it was said that the Court should not interfere with the transfer orders unless there is a violation of some statutory rule or where the transfer order was mala fide.
(iii) That, in N.K. Singh vs. Union of India JT 1994 (5) SC 298, the Court said, "Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinising all transfers ..............."
(iv) Further, in the case of State Bank of India vs. Samarendra Kishore Endow (1994(1) SLR 516) the Hon'ble Supreme Court has held that a High Court or Tribunal has no power to substitute its own discretion for that of the authority. In this case, the Apex Court had further observed that the power of judicial review is mean "to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court". 7
(v) That, in Abani Kanta Ray vs. State of Orissa and others 1995 Suppl. (4) SCC 169 the Hon'ble Supreme Court observed, "It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer."
(vi) The Hon'ble Apex Court in the case of Union of India & Anr. Vs. G. Ganayutham, (1997) 7 SCC 463, observed as follows:-
"We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the Court and Tribunals in our country can only go into the matter, as a secondary reviewing Court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU test. The choice of the options available is for the authority; the Court/ Tribunal cannot substitute its view as to what is reasonable."
(vii) That, in Union of India Vs. Janardhan Debanath JT 2004 (2) SC 371, the Hon'ble Apex Court held that:-
"No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice 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 malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally 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 employer/management ............"
11. From perusal of the aforesaid citations and decisions of Hon'ble Supreme Court, it appears that court should not normally interfere in the transfer order if that is not otherwise violative of statutory provisions or passed with mala fide 8 intention. Transfer is an exigency of service and it is in the domain of executive to place one person at a particular place for effective administration.
Hon'ble Supreme Court in the case of G. Ganayutham (supra) and Janardhan Debanath (supra) has discussed the interference of the Tribunals/courts into the executive orders passed by the administration as a secondary review court to find out the role of executive or the administrator with regard to action taken in exercise of statutory powers. In the present case, we find that the transfer of the applicant was purely an executive action exercised as per statutory power and such action was just and valid.
12. In view of the aforesaid facts and circumstances and the law laid down by the Hon'ble Supreme Court (supra), this Tribunal is of the opinion that no interference is called out in the transfer order of the applicant dated 24.01.2024 and the speaking order dated 23.02.2024. Accordingly, the O.A. is dismissed at the admission stage being devoid of any merit. Interim order, if any, stands vacated. No order as to costs.
(Rajnish Kumar Rai) Judicial Member sb