Central Administrative Tribunal - Chandigarh
Sushil Kumar vs Environment And Forest on 10 November, 2023
Reserved on 31.10.2023 Central Administrative Tribunal, Allahabad Bench, Allahabad This the day 10th of November, 2023 Third Judge Reference (Under Section 26 of Administrative Tribunals Act, 1985) Original Application No. 63/163/2023 (Pertaining to Chandigarh Bench of Central Administrative Tribunal) Hon'ble Mr. Justice Om Prakash VII, Member (J) Sushil Kumar, IFS, son of Late Sh. Vijay Kumar, age 42 years, presently working as Deputy Conservator of Forests (Territorial), Una, H.P. - 174303.
........... APPLICANT By Advocate: Shri D.R. Sharma Versus
1. Union of India through Secretary, Ministry of Environment and Forests, Paryavaran Bhawan, New Delhi - 110011.
2. State of H.P. through its Principal Secretary (Forests), H.P. Secretariat, Shimla - 171002.
3. Sh. Vikalp Yadav, IFS, presently working as Deputy Conservator of Forests (T), Rampur, District Shimla, H.P. ..........RESPONDENTS By Advocate: Shri Sanjay Goyal (for respondent no. 1), Shri B.B. Sharma (for respondent no. 2) and Shri R.K. Sharma (for respondent no. 3) 1 Order The instant matter is a third judge reference under Section 26 of Administrative Tribunals Act, 1985. While deciding the instant Original Application No. 163 of 2023, a difference of opinion arose between the two members, sitting in Division Bench of Central Administrative Tribunal, Chandigarh Bench as Hon'ble Mrs. Rashmi Saxena Sahni, Member (Administrative) has dismissed the original application while Hon'ble Mr. Suresh Kumar Batra, Member (Judicial) has allowed it. Both members have given their independent reasoning for taking different views.
2. In absence of concurrence, the judgment could not be finalized and the matter was referred to the Principal Bench of Central Administrative Tribunal for placing it before the Hon'ble Chairman to nominate a third member for hearing on such points on which difference of opinion arose between the Division Bench.
3. Vide order dated 29.08.2023, the Hon'ble Chairman was pleased to nominate the undersigned as the third member to take a decision in view of the above deadlock. The above order was communicated to the Deputy Registrar, Allahabad Bench on 06.09.2023.
4. The matter last came up for hearing before the undersigned on 31.10.2023 which was conducted online through video conferencing mode. Shri D R Sharma, learned counsel for the applicant, Shri BB Sharma, learned counsel for respondent no. 2 and Shri R K Sharma, learned counsel for respondent no 3 were present and upon hearing the rival contention of the parties in detail and meticulous examination of the entire case records, 2 the judgment was reserved. No one was present on behalf of respondent no. 1 which is the Union of India.
5. I have carefully gone through the judgment passed by Hon'ble Mrs. Rashmi Saxena Sahni, Member (Administrative) and the one passed by Hon'ble Mr. Suresh Kumar Batra, Member (Judicial). Although the brief facts of the original application have been adequately recorded in the above judgments by my learned friends, the same have been reproduced hereinbelow for the sake of better reasoning and analysis.
6. The applicant Shri Sushil Kumar, IFS joined service in the Department of Forests in Himachal Pradesh Forest Service Cadre in 2008 Batch on 24.06.2008 after which he was deputed for two years training at Dehradun from 2008 to 2010. Consequently, he was posted as Assistant Conservator of Forests, Chopal, District Shimla from 2010 to 2012. The applicant has been transferred frequently as in February 2012, he was posted as ACF, Una where he remained till August 2012. Then, he was transferred from Una to Bilaspur and posted as General Manager, R&T Factory, Bilaspur which was a senior duty post and he remained posted there from 2012 to 2014. Then he was shifted from R&T Factory, Bilaspur to work as DFO, Flying Squad, Bilaspur where he worked till 2015. In April 2015, the applicant was transferred as DFO, Headquarter in the Office of CCF Wildlife (South), Shimla where he continued only for two months. Again in 2015, the applicant was posted as DFO Renuka, District Sirmaur, H.P. where he worked till 2018. In 2018, he was again transferred to work as DFO, Shimla (T). In August 2021, the applicant was again transferred to work as DFO Renuka, District Sirmaur. Then in December 2021, just after serving four months at Sirmaur, the applicant was again transferred to work as District Project Officer, IDP Una from December 2021 to September, 2022 3 for 9 months. In September 2022, the applicant was posted as DFO, Headquarter, Bilaspur and worked for about 4 and a 1/2 months.
7. The applicant was inducted into IFS vide notification dated 31.01.2023. He was transferred vide Notification dated 14.02.2023 on the recommendations of the CSB constituted as per Notification dated 28.01.2014 issued by the Central Government and was posted as DCF(T), Una. In pursuance of the above transfer order, applicant assumed duty at Una on 14.02.2023 sending the joining report to the Principal Chief Conservator of Forests. He took the charge of Una Forest Division in pursuance of Notification on 14.02.2023 (afternoon) when Sh. Mritunjay Madhav, IFS was relieved. Suddenly, in modification of the earlier order dated 14.02.2013, respondent no. 2 issued a notification dated 17.02.2023 whereby the applicant was ordered to be transferred from the post of DCR (T) Una to DCF (T) Rampur, which is under challenge.
8. Submissions of learned counsel for the applicant is that the applicant is an IFS officer and a specific procedure has to be followed regarding the transfer of cadre post officers. The State of Himachal Pradesh has formulated a procedure for transfer of cadre officers in light of the direction passed by the Hon'ble Supreme Court of India in the case of TSR Subramanian Vs. Union of India reported in 2013 (15) SCC 732. It is next contended that the state of Himachal Pradesh constituted a Civil Services Board (hereafter referred as CSB) for considering premature transfers. On the recommendations of the CSB, the applicant was transferred vide notification dated 14.02.2023 from Bilaspur to Una. Applicant reported for joining at Una on 14.02.2023 and he took over the charge as DCF (T), Una on 14.02.2023 (afternoon) itself. A new notification / order was issued on 17.02.2023 canceling / modifying the notification / order dated 14.02.2023 4 and the applicant was again transferred to DCF (T), Rampur. It is also contended that the procedure prescribed for transfer of cadre post officers has not been followed to give effect to the transfer order dated 17.02.2023. No CSB meeting was convened for the said purpose. It is further argued that plea taken by respondent no. 2 in his counter regarding convening of the CSB meeting on 16.02.2023 is also not in accordance with the procedure prescribed under law. Since the applicant was transferred just after two days of his joining at a new place of posting therefore procedure prescribed for premature transfer ought to have been followed.
9. It is also argued that if the aforesaid plea taken by respondent no. 2 is taken into consideration, then also the CSB meeting said to have been convened on 16.02.2023 for the modification of transfer order dated 14.02.2023 is not in accordance with the provision provided under the notification dated 10.04.2015 which was adopted by the state of Himachal Pradesh. Referring to the clause 3 and 4 of the aforesaid notification, it is further argued that premature transfer could only be recommended when the reasons given for enforcing such transfer are convincing to the Board. It is also contended that clause 4 of the above notification rules that before recommending the premature transfer, CSB has to obtain the comments and views of the officers proposed to be transferred and the transfers can only be enforced in justification of those comments. Thus, referring to the aforesaid provision, learned counsel for the applicant further argued that transfer notification dated 17.02.2023 regarding premature transfer of the applicant is in utter and gross violation of the aforesaid provision. CSB's recommendations were made without paying heed to clause 4 of the notification dated 10.04.2015 and no reason as such was ever assigned to the applicant. Thus, it was argued that the instant original application be allowed and notification dated 17.02.2023 regarding transfer of the applicant be 5 canceled and as the applicant has already joined at his new place of posting in Una in pursuance of the notification dated 14.02.2023, he may be allowed to continue discharging his duties there.
10. To substantiate his claim, learned counsel for the applicant has also placed reliance upon certain case laws. For better clarity and reasoning, the said case laws are quoted hereinbelow highlighting the relevant and referred portion against each of them:
i. Learned counsel for the applicant has submitted that the instant impugned order passed against the applicant is liable to be set aside in view of the judgment dated 30.03.1993 passed by the Hon'ble Supreme Court of India in Civil Appeal Nos. 1478-79 of 1993 titled Ramadhar Pandey Vs. State of U.P. It is submitted that in the said judgment, it was held by the Apex Court that no transfer (premature or otherwise) can be enforced under the garb of "public interest" without issuing cogent and explicit reasons.
ii. Learned counsel for the applicant also submitted that in its judgment dated 13.05.2019 passed in WP © No. 342 (AP) of 2018 titled State of Arunachal Pradesh represented by the PCCF & Principal Secretary (E&F), Government of Arunachal Pradesh, Itanagar and others, the Hon'ble High Court of Gauhati held that in judicial review with respect to the modification of the order of transfer and posting, writ court would like to be satisfied that there was an overwhelming public interest involved for modification of the order of transfer and posting which was issued just a few months back. It is argued that in the instant case of the applicant, no cogent reasons were ever given for enforcing transfer in an abrupt manner.6
iii. Referring to the judgment dated 24.02.2023 passed by the Allahabad Bench of Central Administrative Tribunal in T.A. No. 1 of 2022 in W.P. No. 98 of 2022 titled Rajiv Bhartari Vs. Union of India and others, learned counsel submitted that the said case pertained to the same department where the applicant therein had taken charge of PCCF (HOFF) on 01.01.2021 and was transferred from the post on 25.11.2021 much before the minimum prescribed tenure of 2 years by violating Rule 2(a)(3) of IFS (Cadre) Amendment Rules, 2014 without getting the recommendation of the CSB, which is mandatory before making transfer of IFS cadre officers.
iv. Learned counsel for the applicant also referred to the case of Y. Chakrapani, IFS vs Union of India and others decided on 13.12.2022 by the Bengaluru Bench of Central Administrative Tribunal pertaining to the same department wherein the applicant was similarly situated with the applicant in the instant case. Declaring the transfer order as wholly illegal and arbitrary, the Court held that the Government cannot pass the transfer order to its whims and fancies. The Rules framed and guidelines issued for transferring of the officers has to be strictly adhered to. Transfer orders are made in public interest and for administrative exigencies, but the same has to be free from arbitrariness and in line with the Rules. Frequent transfer orders passed within a short span of time without assigning reasons, much less valid reasons, would give a wrong message in the public domain, resulting in colourable exercise of power.
v. Learned counsel further submitted that in the case of Deepak Tayeng vs. State of A.P. reported as 2021 (2) GaulJ 457 passed by Gauhati High Court, modification of the transfer order for accommodating some officer was under challenge. The Court held that the government did not assign convincing reasons for modifying the transfer order and in the absence of 7 such reasons, it cannot be accepted that there was any underlying public interest involved.
vi. Learned counsel referred to the judgment passed by the Hon'ble High Court of Allahabad in the case of Ram Raj Vs Basic Shjiksha Parishad and connected matter, reported in 1996 (4) SCT 406 submitting that the Court held that issue of transfer is a rule and cancellation thereof is an exception. Therefore, there should be a reason justifying the exception. There cannot be an exhaustive illustration of reasons. It depends on the necessity for making the exception either on the part of the administration or for some reason special to the person transferred as may have weighed with the administration. In order to support the exception, reasons should either be apparent or be asserted. Court can always scrutinize the reasons and find out the justification for the exception. Such reasons may either be found out from the order itself or from such other material as may be available before the Court.
vii. Similarly, referring to the judgment passed by the Hon'ble Gauhati High Court in the case of Ruokuolhoulie Angami Vs. State of Nagaland and others reported in 1997 (2) GauLJ 122, learned counsel submitted that the Court held that if the transfer order made in public interest is allowed to be taken away by another cryptic order modifying, canceling or keeping in abeyance of the transfer order without assigning any reasons, it ceases to be in public interest.
viii. Learned counsel for the applicant referred to the judgment passed by the Hon'ble High Court of Calcutta in case of Rajesh Singh Vs UOI reported in 2016 SCC OnLine Cal 5984 and submitted that the Court held that when an exception to the general rule is sought to be made out, some reasons 8 justifying the exception should be preferred and those reasons should be independent of the jargons that are used in arbitrary and whimsical orders. If it is truly necessary to transfer an employee prior to his completion of the regular tenure at a posting, some reasons in brief should be indicated so that the same may be tested. It is trite law that transfers cannot be made on a punitive basis or on the whims of superiors by merely citing certain jargons.
ix. Asserting that if modification of transfer order has been done merely for the purpose of accommodating someone as is in the instant case, it amounts to colourable exercise of power without application of mind and such transfer cannot be said to have been made in public interest, learned counsel for the applicant has placed reliance upon the judgment passed by Lucknow Bench of Central Administrative Tribunal in the case of Jitendra Kumar Saxena vs UOI reported in 2000 (3) ATJ 657, judgment passed by the Orissa Bench of Central Administrative Tribunal in case of Subash Chandra Prusty vs Secretary Govt. of Orissa and others reported in 2001 (2) Ori. Law Rev. 20 and judgment passed by the Hon'ble High Court of Himachal Pradesh in case of Satyawan Mehta Vs State of Himachal Pradesh reported in 2021 (1) SimLC 239.
x. Similarly, referring to the judgment passed by the Ernakulam Bench of Central Administrative Tribunal in case of K P Prasad Vs UOI and others reported in 2004 (3) ATJ 97, learned counsel submitted that the Court quashed the transfer order of the applicant therein on the ground that authorities failed to show that there has been any administrative exigency in transferring the applicant or the decision to transfer him was taken in public interest after application of mind to all the relevant facts.
9xi. Learned counsel also submitted that in the judgment passed by Hon'ble High Court of Jharkhand in the case of Dharmendra Kumar vs State of Jharkhand reported in 2014 (29) SCT 612, in the case of Manoj Kumar Mishra vs State of Jharkhand reported in 2014 (19) SCT 450 and in the case of Zakir Hussain vs State of Assam passed by Hon'ble Gauhati High Court and reported in 2001 (3) GauLJ 428, it was held therein that once the transfer order is made in public interest, subsequent orders canceling or superseding must be supported with sufficient reasons. If such an order is passed in a cryptic manner without assigning any reasons that would seem to be not in public interest, it is liable to be set aside.
xii. Similarly, learned counsel submitted that the Hon'ble High Court of Jharkhand in the case of Ram Prasad Mahto vs State of Jharkhand, reported in 2003 (1) JCR 427 held that though it is open to the State / Competent Authority to transfer an employee from one place to another or re-transfer from the subsequent place, but once a Notification of transfer takes effect, the incumbent joins in pursuance of such order of transfer, such Notification of transfer spend up its force and thereafter nothing substantive remains to be recalled / rescinded. Learned counsel further submitted that the above view was also taken by the Hon'ble Patna High Court in the case of Mahmood Azam Siddique Vs State of Bihar reported in 2000 (3) PLJR 139.
xiii. Learned counsel for the applicant also submitted that in the case of Shyam Kumar Singh Vs State of MP reported in 2022 (2) JabLJ 502, Hon'ble High Court of Madhya Pradesh held that if an order of transfer is made on extraneous or unacceptable reasons then judicial review of such an order is permissible.
10xiv. Learned counsel for the applicant also referred to the judgment passed by the Hon'ble High Court of Himachal Pradesh in case of Sunita Devi Vs. State of HP reported in 2020 (2) SLJ 536 submitting that in the said judgment, it was held by the Court that Ministers / elected representatives may recommend the transfer of an employee. However, the transfer orders are ultimately to be issued by the Administrative head after independent application of mind that too after subjective satisfaction without being influenced by the recommendations so made by the elected representatives.
xv. Learned counsel for the applicant also referred to the judgment dated 01.12.2020 passed by the Hon'ble High Court of Karnataka in WP No. 11455 of 2020 submitting that the Court explained the meaning of "public interest" in the said judgment strongly validating the fact that public interest explicitly means the interest of the State and the citizens and the same must be looked after while issuing orders of transfer.
11. Learned counsel for the respondent no. 3 vehemently opposes the contention of the applicant's counsel and argues that applicant has not approached before the Tribunal with clean hands. Notification dated 14.02.2023 regarding the transfer of cadre officers has not been published on the website nor was it communicated to the applicant. No communication was made to any authority on behalf of the State regarding transfer made through the notification dated 14.02.2023. The applicant had not made it clear as to how he obtained the transfer orders said to have been made on 14.02.2023. It is also argued that applicant reported for his joining on 14.02.2023 itself and taking account of the distance between both the places i.e., where the applicant was earlier posted and Una, it is impossible for him to have joined on the same day. It is also argued that a person who has not 11 approached before the Court with clean hands is certainly not liable to be granted any relief whatsoever.
12. Learned counsel for the respondent no. 3 also argued that the transfer order dated 17.02.2023 was issued on the basis of recommendations made by the CSB convened on 16.02.2023. It is further argued that the entire procedure prescribed for dealing with premature transfer has been followed in the instant case. It is also argued that on receiving the input and other information from the reliable sources, transfer notification order dated 14.02.2023 was kept in abeyance on 16.02.2023 and a new notification on the basis of recommendation made by the CSB was issued on 17.02.2023 modifying the earlier transfer order dated 14.02.2023. Thus, it was argued that there is no illegality or infirmity in the transfer order dated 17.02.2023. The applicant had joined Una in a hasty manner for the ulterior motives better known to him only. To substantiate his arguments, learned counsel for the respondent no. 3 referred to the documents annexed with the application itself and further argued that no inconvenience would occur to the applicant if he complies with the direction given in the notification dated 17.02.2023. If this fact be taken into consideration that applicant has joined Una in the span of just one day and probably he has not taken his family with him, it can be asserted that no inconvenience or difficulty would cause to the applicant if he shifts to his new place of posting at Rampur and therefore, the latest posting order is liable to be complied by the applicant without much ado. It is also argued on behalf of respondent no. 3 that representation had also been made to the competent authority regarding respondent no. 3's transfer to Una as his wife who is a judicial officer is currently posted at Una. There is a government's policy regarding transfer on spouse ground and due to this reason, a mistake occurred in the notification dated 14.02.2023 was modified / rectified vide notification dated 17.02.2023. It is 12 also argued that a government servant has no right to be posted at a particular place for an inordinate period of time. Thus, referring to the entire documents annexed with the counter affidavit, it is also argued that notification dated 17.02.2023 was issued in accordance with law. Since the applicant has not approached before the Tribunal with clean hands and has filed this original application during holidays, thus, it is evident from the fact and circumstances of the case itself that applicant obtained the notification dated 14.02.2023 in an arcane manner and therefore, hurriedly joined at Una on the same date. There is no malice of fact nor malice in law in issuing the transfer notification order dated 17.02.2023.
13. To substantiate his claim, learned counsel for the respondent no. 3 has also placed reliance upon certain case laws. For better clarity and reasoning, the said case laws are quoted hereinbelow highlighting the relevant and referred portion against each of them:
i. Learned counsel for the respondent no. 3 referred to the judgment passed by the Apex Court in the case titled Ramjas Foundation and others Vs Union of India and others reported in 2011 (1) RCR (Civil) 176 and submitted that in the said judgment, the Court held that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief. Learned counsel submitted that the instant case of the applicant is liable to be adjudged in the context of the law laid down in above judgment and his plea be dismissed accordingly as he did not approach the Court with clean hands.
ii. Learned counsel for the respondent no. 3 also submitted that the transfer order dated 17.02.2023 does not, in any way, vitiate the law laid 13 down by the Apex Court in the case of TSR Subramanian and others Vs Union of India and others reported in 2014(1) SCT 255 as in the said judgment, the Apex Court had observed the necessity of fixed tenure of a civil servant at a particular place with the objective of providing stability to the civil servant ensuring efficiency in administration. But in the instant case, the applicant cannot be expected to have acquired any sort of stability at Una merely within a period of three days and he also cannot be expected to have taken some administrative and official working at Una.
iii. Referring to the judgment passed by the Apex Court in the case of SK Nausad Rahaman Vs UOI reported in 2022 AIR (SC) 1494, learned counsel submitted that in the said judgment, the Apex Court held that an employee has no fundamental right to posting or transfer at a particular place but the state should consider family life while crafting policy. And accordingly, the applicant was considered for transfer to Una where his wife was already working as a judicial officer. Learned counsel submitted that the same law was also upheld in the case of Bank of India Vs Jagjit Singh Mehta reported in 1992 (1) SCT 161. Similarly, referring to the judgment passed by the Principal Bench of Central Administrative Tribunal in OA No. 1888 of 2015 titled Jawahar Thakur Vs UOI, learned counsel submitted that in the said judgment, the Tribunal held 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 public interest.
iv. Learned counsel for respondent no. 3 also referred to the judgment passed by the Hon'ble High Court of Delhi in W P © No. 6311 of 2020 titled Amarjeet Singh Dagar Vs Union of India and others decided on 07.03.2022 submitting that in the said judgment, the Hon'ble High Court held that an employee in a transferable job has no vested right to remain posted at one 14 place - Courts should not readily interfere with the transfer order which is made in the public interest and for administrative reasons, unless the transfer is made in violation of any mandatory statutory rule or on the ground of mala fide.
v. Referring to the judgment dated 04.02.2022 passed by the Hon'ble Telangana High Court in Writ Appeal No. 651 of 2021 titled Komatireddy Janakiram Reddy Vs The State of Telangana, learned counsel for the respondent no. 3 submitted that in the said judgment, the Hon'ble High Court had defined the term "Fraud" and successive developments that take place in consequence to the said Fraud. The Court held that once it is transpired that a certain thing has been achieved or certain benefit has been taken by means of fraud, the scope of judicial review becomes nascent and no remedy is liable to be granted to the offender. In the instant case of the applicant, he obtained the transfer order date 14.02.2023 in a clandestine manner and thus applicant's plea cannot be acceded to.
vi. Similarly, referring to the judgment dated 14.03.2000 passed by the Apex Court in Civil Appeal No. 2087 of 2000 titled United India Insurance Co. Ltd. Vs Rajendra Singh and others, learned counsel submitted that the Hon'ble Court held that no Court or Tribunal can be regarded as powerless to recall its own orders if it is convinced that the order was secured by fraud or misrepresentation as fraud and justice cannot dwell together.
vii. Also, referring to the judgment dated 27.10.1993 passed by the Apex Court in Civil Appeal No. 994 of 1972 titled S P Changalvaraya Naidu (dead) Vs Jagannath (dead) learned counsel for the respondent no. 3 submitted that the Court held that judgment or decree obtained by playing fraud on the Court is a nullity and nonest in the eyes of law and such a 15 decree has to be treated as nullity by every court whether superior or inferior and can be challenged in any Court.
viii. Further referring to the judgment dated 20.11.2018 passed by the Hon'ble High Court of Orissa in WP © No. 12853 of 2007 titled Sujata Patra Vs the Vice Chancellor, Utkal University and others, learned counsel submitted that the Court held that there is no illegality if government / respondents' authority retrace their earlier order (transfer or any other one) and pass a fresh one on the ground that earlier order was defective or suffered any legal or administrative discrepancy. Similarly, reference was made to the judgment dated 16.07.1991 passed by the Hon'ble High Court of Punjab and Haryana in CWP No. 13991 of 1990 titled Raj Kumar Batra Vs. State of Haryana submitting that in the said judgment, the Hon'ble Court held that there a decision of the government which is factually correct cannot be interfered by the court merely on the ground that the decision has been taken after a long delay and government can undo a wrong any time. Further, where the factual position is not in dispute, the Government is not required to record a judgment while deciding the dispute regarding seniority or deciding representation.
ix. Similarly, learned counsel for the respondent no. 3 also placed reliance upon the judgment dated 01.10.1993 passed by the Apex Court in Civil Appeal No. 3056 of 1991 titled Managing Director, ECIL, Hyderabad Vs. B Karunakar and submitted that in the said judgment, the Hon'ble Court held that a Court or Tribunal should not mechanically set aside order of punishment on the ground that the report of inquiry officer / authority was not furnished to the delinquent officer.
1614. Learned counsel for the respondent no. 2 i.e., the State of Himachal Pradesh argued that effect and operation of the notification dated 14.02.2023 was kept in abeyance on 16.02.2023 and a new notification was issued on 17.02.2023 modifying its earlier notification dated 14.02.2023. It is also argued that on receiving the information of the officers of the department, meeting of CSB was convened on 16.02.2023 for considering the fact as provided under the notification dated 10.04.2015. CSB meeting was convened and fresh recommendations were made by the Board and only in light of that recommendation, notification dated 17.02.2023 was issued. Applicant ought to have complied with the notification dated 17.02.2023 but instead he approached before the Tribunal through the present OA for protecting his illegal act dated 14.02.2023. It is also argued that since notification dated 14.02.2023 has been modified vide notification dated 17.02.2023, notification dated 14.02.2023 has lost its efficacy and it need not be dragged upon herein. The fact of the matter is that the applicant ought to have joined at his new place of posting in compliance to the notification dated 17.02.2023 which he didn't do. Learned counsel for the respondent no. 2, referring to his counter affidavit, further argued that prayer made in the OA is not liable to be allowed and thus the OA may be dismissed.
15. To substantiate his claim, learned counsel for respondent no, 2 has placed reliance upon several case laws which have been enumerated below. The legal summary / conclusion of all those case laws as have been pleaded by the counsel for the respondent no 2 is also recorded subsequently:
Law laid down by the Apex Court in the case of E P Royappa Vs State of Tamil Nadu reported in (1974) 4 SCC 3; B Varadha Rao Vs State of Karnataka reported in (1986) 4 SCC 131; Union of India and others Vs. H N Kirtania reported in (1989) 3 SCC 445; Shilpi Bose (Mrs.) and others Vs 17 State of Bihar and others reported in 1991 Supp (2) SCC 659; Union of India and others Vs S L Abbas reported in (1993) 4 SCC 357; Chief General Manager (Telecom) N.E. Telecom Circle and another Vs Rajendra CH. Bhattachargee and others reported in (1995) 2 SCC 532; State of M P and another Vs SS Kourav and others reported in (1995) 3 SCC 270; Union of India and others Vs Ganesh Dass Singh reported in 1995 Supp (3) SCC 214; Abani Kanta Ray Vs State of Orissa and others reported in 1995 Supp. (4) SCC 169; National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and Shiv Prakash reported in (2001) 8 SCC 574; Public Services Tribunal Bar Association Vs State of UP and another reported in (2003) 4 SCC 104; Union of India and others Vs Janardhan Debanath and another reported in (2004) 4 SCC 245; State of UP Vs Siya Ram reported in (2004) 7 SCC 405;
State of U P and others Vs Gobardhan Lal reported in (2004) 11 SCC 402; Kendriya Vidyalaya Sangathan Vs Damodar Prasad Pandey and others reported in (2004) 12 SCC 299; Somesh Tiwari Vs Union of India and others reported in (2009) 2 SCC 592; Union of India and others Vs Muralidhara Menon and another reported in (2009) 9 SCC 304; Rajendra Singh and others Vs. State of Uttar Pradesh and others reported in (2009) 15 SCC 178 and State of Haryana and others Vs Kashmir Singh and another reported in (2010) 13 SCC 306. The conclusion may be summarized as follows:
a. Transfer is a condition of service. b. It does not adversely affect the status or emoluments or seniority of the employee. c. The employee has no vested right to get a posting at a particular place
or choose to serve at a particular place for a particular time. d. It is within the exclusive domain of the employer to determine at what place and for how long the services of a particular employee are required.
18e. Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor should it be passed under political pressure.
f. There is a very little scope of judicial review by Courts / Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
g. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence. h. The person against whom allegations of malafide is made should be impleaded as party by name.
i. Transfer policy or guidelines issued by State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel.
j. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children as consideration of these views fall within the exclusive domain of the employer.
k. If the transfer order is made in mid-academic session of the children of the employee, the Court / Tribunal cannot interfere. It is for the employer to consider such a personal grievance.
16. I have considered the rival contentions advanced by the parties and gone through the documents on record and also perused the judgments referred.
17. Before delving into the controversy, it would be in the fitness of things to reproduce the questions of law which have been raised by Hon'ble Mrs. 19 Rashmi Saxena Sahni, Member (Administrative) for not concurring with the judgment passed by Hon'ble Mr. Suresh Kumar Batra, Member (Judicial). The same is reproduced herein below:
" i. Whether transfer order of the applicant issued in public interest on 14.02.2023 after recommendations of CSB be modified vide order dated 17.02.2023 also issued in public interest shifting him from Una to Rampur within three days?
ii. Whether as per notification dated 28.01.2014 (Rule 7(3), the applicant is entitled to hold office for two years and whether respondent no. 2 can be allowed to deviate from the policy?
iii. Whether transfer order from Una to Raipur is without approval of CSB and if yes, then is it contrary to DoP&T instructions and judgment in the case of TSR Subramanian Vs. Union of India?
iv. Whether transfer of the applicant alleged to have been done to adjust respondent no. 3 by following due process is sustainable in light of various judicial pronouncements? "
18. It's evident from the record that the applicant was working at the post of DFO, Bilaspur. A notification dated 14.02.2023 was issued by respondent no. 2 whereby the applicant and some other officers were transferred to new places. The records also reveal that the applicant had joined at a new place of posting namely Una on 14.02.2023 itself. Charge was taken over by him on 15.02.2023. Records further reveal that none of the parties dispute the issuance of notification dated 14.02.2023. Only submissions on behalf of the learned counsel for the respondent no. 3 is that notification dated 14.02.2023 had not been published nor sent to the Competent Authority nor to the applicant or any of the other officers transferred through the notification. Respondent no. 2 i.e., the State of Himachal Pradesh has not disputed the 20 fact regarding issuance of notification dated 14.02.2023. It is also evident from the record that notification dated 14.02.2023 was kept in abeyance by the respondent no. 2 on 16.02.2023. Plea taken by respondent no. 2 and 3 is that after keeping the notification dated 14.02.2023 in abeyance, Civil Services Board (CSB) meeting again convened on 16.02.2023 where the notification dated 14.02.2023 was modified in respect of a few officers whereby applicant was again transferred from Una to Rampur.
19. Since none of the parties have challenged the issuance of notification dated 14.02.2023 which was issued by respondent no. 2 on the recommendation of CSB, therefore, there is no need to discuss the legality of the notification dated 14.02.2023. Respondent no. 3's plea is that notification dated 14.02.2023 has not been published nor was issued upon the applicant or any of the parties and therefore applicant ought not to have joined at new place of posting at Una in a hasty manner. Before plunging into the fact regarding joining of the applicant at Una in pursuance of notification dated 14.02.2023, I find it fit to consider as to whether notification dated 17.02.2023 was issued complying with the direction given in TSR Subramanian (supra) case and as per guidelines laid down by the respondent no. 2 while adopting directions given in notification dated 10.04.2015. It has been averred by the learned counsel for the respondent no. 2 that respondent no. 2 in pursuance to the directions of the Apex Court given vide judgment dated 31.10.2013 in WP (Civil) No. 82/2011 titled T S Subramanian Vs. Union of India & Others and consequently notification dated 28.01.2014 issued by Ministry of Personnel, Public Grievances and Pensions, DoP&T, New Delhi, constituted a Civil Services Board for recommending the transfer and posting of the Indian Forest Service Officers of H.P. Cadre. As per para 1.3 of the said notification dated 10.04.2015, the 21 Board shall consist of following in respect of Indian Forest Service Officers of Himachal Cadre:
1. Chief Secretary - Chairman
2. Additional Chief Secretary or Pr. Secretary - Member
3. Pr. Secretary or Secretary, Department of Personnel - Member Secretary
4. Addl. Chief Secretary/Pr. Secretary or Secretary Forest - Member
5. Director Chief Conservator of Forest - Member Further, para 3 of the notification dated 10.04.2015, issued by the respondent no. 2 prescribes the parameters for the functioning of the Board. As per para 3(d), the Board may recommend to the competent authority the names of the officers for transfer before the completion of minimum tenure with reasons to be recorded in writing.
20. I have carefully perused the record of the CSB meeting said to have been convened on 16.02.2023 and found that three of the committee members including the Chief Secretary, Chairman have convened the meeting whereas only two of them have signed the minutes of the meeting which demonstrates that only two members had actually participated in the meeting. It is pertinent to mention here that if there were five members in the committee, the meeting should have been convened on the basis of participation of at least three members. The said procedure was not adhered to in the instant case as the perusal of the Proceedings of Civil Services Board Meeting held on 16.02.2023 under the Chairmanship of Chief Secretary, Government of Himachal Pradesh reveals that it contains the signature of only two members namely the Pr. Secretary (Forests) to the Govt. of HP and the Chief Secretary to the Govt. of HP who was the 22 chairman of the Board. And the signature column against the name of one other member namely Pr. CCF (HoFF) HP was left vacant. For the sake of clarity and unambiguity, a copy of the above proceedings dated 16.02.2023 is reproduced herein below:
21. It would also be in the fitness of things to record that during the course of above proceedings dated 16.02.2023, nowhere it has been cogently and transparently elucidated as to what had transpired in just two days which 23 compelled the competent authority concerned to cancel / modify the transfer order dated 14.02.2023 thereby issuing a fresh one on 17.02.2023 on the strength of which or should I say under the garb of which the applicant was posted to Rampur. Even if the modification / rectification of the transfer order dated 14.02.2023 was the need of the hour for any so called "public interest", respondents ought to have followed the provisions enshrined in the notification dated 28.01.2014 a mention of which has already been done in the preceding paragraphs. According to Rule 7(3) of the said notification, a cadre officer appointed to any cadre posting shall hold office for two years.
The cadre officer may be transferred prior to tenure of two years only on promotion or if he is sent on deputation outside the State or training exceeding two months. The applicant does not fall under any of the conditions aforementioned. Even if it is assumed that premature transfer of the applicant herein was a dire necessity at that time, para 3 of the notification dated 10.04.2015 in accordance with which respondent no. 2 had constituted the Civil Services Board for recommending the transfer and postings of IFS officers of HP Cadre, clearly states that the Board may recommend the names of the officers for transfer before the completion of minimum tenure with reasons to be recorded in writing. It appears that CSB failed to act in accordance with the provisions prescribed in the above notification as it did not record any reason for premature transfer of the applicant within three days. A careful perusal of the remarks column on the note-sheet in respect of transfer of the applicant, reveals that it was specifically recorded that "Vide government order dated 14.02.2023, Sh. Sushil Kumar, IFS has already joined as DCF (T) Una on 14.02.2023 and therefore further transfer of the above said officer may cause unnecessary litigation." However, the said objection was clearly overlooked by the CSB during the course of its meeting. This leaves an indelible blot on the very manner in which the CSB proceedings were conducted as the requisite 24 provisions were not adhered to and thus any recommendations carved out of the said proceedings is bad in law and suffers from infirmity and arbitrariness.
22. Further, casting aspersions on the applicant for the sole reason that he joined Una in a hasty manner certainly does not hold water. A plain perusal of the transfer order dated 14.02.2023 shows that it was mentioned in the order itself that the officers shall assume their new assignment immediately. So, if any officer / official under transfer joins the new place of posting immediately in accordance with the directions issued by the competent authority, no adverse inference can be drawn against the said official / officer.
23. Thus, I am of the view that the limited questions which were required to be deliberated upon in the instant controversy have probably been addressed in the preceding paragraphs of the instant judgment. However, a synopsis of the answers to each of the question is given below:
i. Whether transfer order of the applicant issued in public interest on 14.02.2023 after recommendations of CSB can be modified vide order dated 17.02.2023 also issued in public interest shifting him from Una to Rampur within three days?
Conclusion: In view of the numerous judgments passed by the Apex Court and several other judicial forums across the country which have been relied upon and recorded in earlier paragraphs of this judgment, I absolutely concur with the fact that it is within the realm of the government / department / competent authority to rectify its mistakes for the sake of better administrative machinery and public interest. However, the said "public 25 interest" should be adequately explained in letter and spirit thereby leaving no scope for conjecture, malice and incongruity. As far as the instant case is concerned, it is an admitted fact that the transfer order dated 14.02.2023 was issued in public interest following the recommendations made by the CSB in its meeting held on 24.01.2023. Subsequently, just within three days, another transfer order dated 17.02.2023 was issued thereby rectifying the transferred place of posting in respect of a few officers including the applicant herein. Respondents' authorities were required to explain the reasons for enforcing such a premature transfer of the applicant as the statutory rules say so but no cogent reasons were ever issued. Furthermore, as has been quoted in preceding paragraphs, CSB meeting held on 16.02.2023 and minutes recorded consequently suffer from certain discrepancies as several observations / facts were not only not paid heed to but were completely overlooked. Thus, I held that, perhaps it was in the administrative domain of the respondents to modify the transfer order dated 14.02.2023 thereby issuing a fresh order dated 17.02.2023 but the same was liable to be done in accordance with the specific rules clearly explaining the "public interest"
operating therein but they failed to do so. Thus, it is clear that modification / notification dated 17.02.2023 issued by respondent no.2 is not in public interest as no reasons were assigned in the course of issuing it. This would be clear from the minutes of CSB meetings held on 16.02.2023 which have already been quoted at page no. 23 of this judgment.
ii. Whether as per notification dated 28.01.2014 (Rule 7(3), the applicant is entitled to hold office for two years and whether respondent no. 2 can be allowed to deviate from the policy?
Conclusion: It is not disputed that on the strength of the notification dated 28.01.2014, the applicant was liable to hold office for two years from the 26 date he got transferred to a new place. However, it is an established fact that transfer is an incidence of service and the competent authority / government / department is well within its right to make premature transfer as was done herein. This aspect has been upheld time and again by several judicial forums across the country including the Apex Court the relevant portions of which have already been quoted in the previous paragraphs of this judgment. However, even if I assume that it was a grave necessity on the part of respondent no. 2 to deviate from its policy stated in the above notification for the purpose of transferring the applicant, it was equally important for it to have elucidated the reasons for enforcing the premature transfer but the same was not done.
iii. Whether transfer order from Una to Raipur is without approval of CSB and if yes, then is it contrary to DoP&T instructions and judgment in the case of TSR Subramanian Vs. Union of India?
Conclusion: It may not be the fact that applicant's transfer from Una to Rampur was without approval of the CSB but as has been highlighted in the preceding paragraphs, certainly many observations were overlooked and ignored by the CSB in the course of enforcing the said transfer. The meeting of CSB was held on 24.01.2023 under the Chairmanship of Chief Secretary, Government of Himachal Pradesh and subsequently, 20 officers of Himachal Pradesh including the applicant were transferred to various places and the applicant was transferred and posted as DCF (T) Una. Applicant joined at his new place of posting on 14.02.2023 itself. Respondents argued that on 16.02.2023, upon receiving requests regarding transfer / adjustment of HPFS officers, it was desired to put up a proposal for modification / transfer / posting / cancellation of notification dated 14.02.2023 in respect of 12 officers before the CSB. According to the note of proceedings on 16.02.2023 27 under the chairmanship of Chief Secretary Government of H.P., a meeting was convened on 16.02.2023 and after discussion, it was decided to transfer six officers including the applicant from Una to Rampur and the respondent no. 3 vice versa. A notification dated 17.02.2023 was issued by respondent no. 2 in this regard, but astonishingly against a discussion of transfer of only six officers by the CSB, total 16 officers were ordered to be transferred vide impugned notification dated 17.02.2023. The proceedings of the CSB meeting held on 16.02.2023 is also not having signatures of one of the Members of CSB i.e., Pr. CCF (HoFF) which indicates that manipulative exercise was carried out during the process. Transfer order dated 17.02.2023 cannot be stated to be issued on the strength of recommendations of CSB meeting held on 16.02.2023 as quorum of members was not fulfilled.The CSB consisted of 5 members and under any circumstances, at least three members must be present during the proceedings. It cannot be made clear whether three members actually participated in the meeting or not as only two members have signed the minutes. Therefore, CSB meeting held on 16.02.2023 and recommendations advanced consequently cannot be held as sacrosanct for want of quorum and recommendation made by the CSB is not sustainable as the same is also in contradiction of the guidelines laid down in TRS Subramanian case (supra).
iv. Whether transfer of the applicant alleged to have been done to adjust respondent no. 3 by following due process is sustainable in light of various judicial pronouncements?
Conclusion: As regards to the question whether the applicant was transferred to accommodate respondent no. 3, it would be in the interest of justice to mention that nothing about any sort of request made by respondent no. 3 for transfer to Una on spouse grounds has been mentioned / discussed 28 in the note of proceedings of CSB's meeting held on 16.02.2023. Contention of the respondent no. 3 that he has a better claim for transfer to Una than the applicant is without any valid ground. As such, transfer of respondent no. 3 to Una in place of the applicant vide notification dated 17.02.2023 is in violation of Rules as well as the mandate of Hon'ble Supreme Court of India in the case of TSR Subramanian (supra). A perusal of documents on record and contemplation over the submissions raised across the bar conspicuously reveals that respondent no. 3 has always been adjusted / transferred time and again during the course of his service on the basis of spouse ground. On the other hand, applicant herein has been transferred more than ten times in a service span of twelve years. Therefore, modification of transfer vide order dated 17.02.2023 cannot be held to be in public interest. Even the Hon'ble Supreme Court while dealing with a case of transfer on spouse grounds titled Bank of India Vs. Jagjit Singh reported in 1992 (1) SCT 161 has observed that:
"There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of All-India Services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any 29 appointment in an All-India Service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of All-India Service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places."
24. Therefore, in accordance with the aforesaid conclusions, I concur with the view taken by Hon'ble Mr. Suresh Kumar Batra, Member (Judicial). I am of the unequivocal opinion that the instant case of the applicant is liable to be allowed and is accordingly, allowed. Notification dated 17.02.2023 is hereby quashed and set aside to the extent of transfer of the applicant and respondent no. 3. No costs.
25. Third judge reference stands decided accordingly.
(Justice Om Prakash VII) Member (Judicial) (Ritu Raj) 30