Central Administrative Tribunal - Delhi
Dr. Ram Prakash Rai vs Central Council For Research In ... on 9 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 4326/2010 New Delhi this the 9th day of May, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) Dr. Ram Prakash Rai, S/o Late Shri S.N. Rai, B-1/1080, Vasant Kunj, New Delhi-110070 .Applicant (Through Shri K.K. Rai, Sr. counsel with Shri S.K. Pandey) Versus 1. Central Council for Research In Ayurveda And Siddha through its Director General, Jawaharlal Nehru Bhartiya Chitiksa Evam Homoeopathy Anusandhan Bhawan, No. 61-65, Institutional Area, Opp. `D block, Janakpuri, New Delhi-110058 2. Union of India, Ministry of Health and Family Welfare, Through Secretary (AYUSH), Red Cross Bldg., Parliament Street, New Delhi 3. Shri Jeevan Das, The then Dy. Director of Central Council for Research in Ayurveda and Siddha, Jawaharlal Nehru Bhartiya Chitiksa Evam Homoeopathy Anusandhan Bhawan, No. 61-65, Institutional Area, Opp. `D block, Janakpuri, New Delhi-110058 Currently posted as: Director Ministry of Environment and Forest CGO Complex, Lodhi Estate, New Delhi 4. Central Council for Research in Siddha, Through its Director, Central Research Institute (Siddha) Arumbakkam, Chennai-600 106, Tamil Nadu Presently at: Department of AYUSH, 2nd Floor, Red Cross Bldg, Parliament Street New Delhi .Respondents (Through Shri V.K. Rao, Sr. counsel with Shri Vaibhav Kalra) O R D E R Mr. L.K.Joshi, Vice Chairman (A):
This OA has been filed by the Applicant challenging the office order number 1636/2010 dated 01.09.2010 issued by the first Respondent, Director General, Central Council for Research in Ayurveda and Siddha (CCRAS) transferring him from Delhi to Chennai without his consent and the order number 1742/2010 dated 17.09.2010, relieving him from his present posting. He is seeking the following relief:
(i) Quash the office order No. 1636/2010 dated 01.09.2010 and officer order No. 1742/2010 dated 17.09.2010 issued by the respondent No.1;
(ii) Direct the Respondent No. 1 to allow the applicant to discharge his duty at Delhi with Respondent No.1.
2. The facts giving rise to the filing of the OA have been recounted hereafter. The Applicant joined the first Respondent on 02.02.1982 as Hindi Assistant (Translator) by direct recruitment. He was promoted as Hindi Officer in 1992. In 2010 a separate Central Council for Research in Siddha was constituted by bifurcating the existing Central Council of Research in Ayurveda and Siddha (CCRAS). The other Council resulting from this division was Central Council for Research in Ayurveda Science. The third Respondent, Jeevan Das, then Deputy Director (Administration) of the CCRAS, initiated a note on 12.04.2010, proposing transfer of one post of Hindi Officer, along with the incumbent, to the newly created Central Council for Research in Siddha. The Central Council for Research in Siddha was registered under the Tamil Nadu Registration of Societies Act, 1975 on 27.07.2010. By the impugned order dated 01.09.2010 the Applicant and one Vasudevan, Administrative Officer, were transferred to Central Council for Research in Siddha at Chennai. The said Vasudevan was transferred to the new organisation after seeking his option for the same. The Applicant was, however, not given any option in this regard. Two other officials, namely, Rajkumar, Office Superintendent and R B Chakraborty, Assistant were also transferred to the newly created Council, but with the condition that they would remain in that organisation till its office functioned in Delhi and after that they would revert to the first Respondent. On 06.09.2010 the Applicant made a representation to the Director of the fourth Respondent, Central Council for Research in Siddha against his transfer. He made another representation on 07.09.2010 to the Director of the first Respondent against his transfer. Meantime, an order dated 09.09.2010 was issued indicating the posts along with manpower transferred to the Central Council for Research in Siddha. As regards the post of Hindi Officer, it was mentioned in the order that the unit-wise break up would be decided by the Central Council for Research in Siddha. By order dated 17.09.2010 the Applicant was relieved from the service of the first Respondent in order to join the fourth Respondent, that is, the Central Council for Research in Siddha. The Applicant made a representation to the Secretary, Department of Ayurveda Yoga Unani Siddha Homeopathy (AYUSH), against his transfer to Chennai in the Central Council for Research in Siddha. Meanwhile, the transfer of the Applicant was stayed by the Minister for Health and Family Welfare, till the decision in his representation, which was communicated by the Joint Secretary (Coordination) to the Secretary (AYUSH) and others by his note dated 07.10.2010. Eventually, on the rejection of his representation, the Applicant was transferred to Chennai and relieved from his posting of Hindi Officer, CCRAS by the impugned orders. These orders were stayed by this Tribunal, at the time of admission on 23.12.2010.
3. Manifold contentions have been raised by the learned senior counsel for the Applicant. It has been urged that the Department of Official Language has issued Office Memorandum number 13035/3/95-OL (P&C) dated 27.07.2004, which gives guidelines for posting of Hindi Officer and which, inter alia, states that:
The norms for creation of minimum number of Hindi posts to ensure the implementation of the Official Language Policy of the Central Government were first circulated under this Department Office Memorandum No. 13035/3/80-OL/C) dated 27th April, 1981. These norms were revised and circulated vide O.M. No. 13035/3/88-OL(C) dated 5.4.89. The norms relating to the minimum number of Hindi posts have been reconsidered to further rationalize them so that the necessary posts for translation as well as implementation of the Official Language Policy could be created. Hence, the following guidelines may be followed regarding the minimum number of Hindi posts for translation as well as implementation of the Official Language Policy:-
. . .
1.2 (i) One Hindi Officer (Assistant Director (OL) in each attached/ subordinate office having 100 or more ministerial employees. It was argued that there were 1300 employees with the first Respondent, whereas the number of employees with the fourth Respondent, Central Council for Research Siddha, was less than hundred and, therefore, was not eligible for posting of Hindi Officer. In view of this, the third Respondent, Jeevan Das, wrongly recorded in his note dated 12.04.2010 about allocation of manpower to Central Council for Research in Siddha that one post of Hindi Officer, along with the incumbent, was also proposed to be transferred to the newly created Council so as to ensure effective implementation of the Official Language policy. The learned senior counsel would contend that the above guidelines would apply to the first Respondent, CCRAS, in the light of the conditions of service of the employees of the first Respondent, which provide that the rules applicable to the Central Government Servants would apply mutatis mutandis to the employees of the first Respondent. This is prescribed in paragraph 47 of the conditions of service. The said paragraph has been extracted below:
47. In respect of matters not provided in these regulations the rules as applicable to Central Government servants regarding the general conditions of service, pay, allowances T.A. and daily allowance, foreign service terms, deputation in India and abroad, etc. and orders and decisions issued in this regard by the Central Government from time to time shall apply mutatis mutandis to the employees of the Central Council. The first Respondent misled the Minister of State in the note dated 04.10.2010, submitted to the latter, about the Applicant's representation, in which it was mentioned that the above quoted instructions in the Office Memorandum of 27.07.2004 did not apply to Central Autonomous Bodies. It was totally contrary to the provisions of the conditions of service of the employees of the first Respondent. It was pointed out that the first Respondent still needed the services of Hindi Officer, as was evident from the fact that one Gulshan Kapoor, an employee of the first Respondent, had been given the charge of officiating Hindi Officer. An inspection report dated 14.03.2011 was placed before us by the learned counsel for the Applicant, in which details of inspection tour of one of the institutions under the first Respondent at Thiruvananthapuram had been given. We have taken this document on record, as the same fact has been pleaded by the Applicant in his additional affidavit dated 13.04.2011 in paragraph viii. This has not been disputed by the Respondents. It has further been pointed out that the first Respondent had proposed to the second Respondent, Ministry of Health and Family Welfare, for creation of a higher post of Deputy Director (Official Language) as far back as the year 2005, as per the proposals placed on pages 148 to 156 of the paper book. A request had been made for creation of one post of Deputy Director and four posts of Hindi Officer/Assistant Director (Official Language). The first Respondent, making a reference to the aforesaid communication of the year 2005, again sent a letter dated 31.01.2011 to the second Respondent for creation of posts. It was further argued that the Respondents had been trying to justify the posting of the Applicant to Chennai on the ground that the Central Council for Research in Siddha was located at Chennai and promotion of official language in the South needed an officer of the rank of Hindi Officer. However, it was submitted that the Central Council for Research in Ayurveda Science also had its offices in Cheruthuruthy, Bangalore (2), Hyderabad, Thiruvananthpuram, Vijayawada and Chennai, which also needed action for promotion of official language. The learned senior counsel for the Applicant would contend that in these circumstances it was not far fetched to infer that the Respondents were making a deliberate attempt to push the Applicant out of Delhi. Relying on State of Haryana Vs. Shri Desh Raj Sangar and another, (1976) 2 SCC 844, it was argued that the decision about not retaining the post in Delhi had not been taken in good faith and hence liable to be set aside. In the cited case the post of Panchayati Raj Election Officer in the Panchayat Department of the State Government was abolished because of extreme financial stringency and the services of the respondent therein, who was holding the post, were dispensed with. It was held thus in this case by the Honourable Supreme Court:
7. Whether a post should be retained or abolished is essentially a matter for the Government to decide. As long as such decision of the Government is taken in good faith, the same cannot be set aside by the court. It is not open to the court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Art 311. In M. Ramanatha Pillai v. State of Kerala, (1974) 1 SCR 515 Ray C J speaking for the Constitution Bench of this Court observed;
"A post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311(2)."
It was further observed:
"The abolition of post may have the consequence of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post, the government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post."
Reliance has also been placed on Somesh Tiwari Vs. Union of India and Others, (2009) 2 SCC 592, in which it was held that:
16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
. . .
21. For appreciating the effect of such an order, we may also notice the order dated 19-10-2005 which has been reproduced by the High Court in its impugned judgment, the relevant portion whereof reads thus :
"2. As per Para 9.1 of the New Transfer Policy, Government may, if necessary in public interest, transfer or post any officer to any station or post. Para 9.2 of the policy stipulates that an officer against whom the CVC has recommended initiation of vigilance proceedings, should not normally be posted or remain posted at the station where the cause of the vigilance proceedings originated. He shall also not be posted on a `sensitive' charge. This restriction will remain in operation till such time the vigilance matter is not closed.
3. In the case of Shri Tiwari, he belongs to Madhya Pradesh and on enquiry into complaint of working on caste biased ideology he was to be over dependent upon a set of officers, apparently giving an impression that he (is) working on caste biased ideology. These circumstances have necessitated his transfer from Bhopal Central Excise Commissionerate to Shillong Commissionerate."
No vigilance enquiry was initiated against him. The order of transfer was passed on material which was non-existent. The order, therefore, not only suffers from total non-application of mind on the part of authorities of Respondent 1, but also suffers from malice in law.
4. It was further argued that the creation of Central Council for Research in Siddha was not a result of bifurcation of the existing CCRAS, but creation of a new organisation altogether, as would be evident from the fact that the Central Council for Research in Siddha was registered for the first time on 27.07.2010 under the Tamil Nadu Registration of Societies Act, 1975. Certificate of registration has been placed on Annex A-13. Therefore, the Respondents have placed the services of the Applicant under a new employer, without obtaining his consent for the same. It was argued that the whole incident was a result of conspiracy by the third Respondent, Jeevan Das, Deputy Director of CCRAS. The said Jeevan Das became inimical towards him when he was made a witness for the prosecution in a case against Dr. G S Lavekar, erstwhile Director General of CCRAS, under Section 3 (1) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. The third Respondent had been constantly subjecting the Applicant to harassment to ensure that he would depose in favour of Dr. G S Lavekar. The third Respondent issued a notice to the Applicant on 24.07.2008 alleging that he was absent from duty on 23.07.2008 without any authority, although the Applicant had already applied for leave and submitted his application to the Administrative Officer (Establishment). The third Respondent issued another notice to the Applicant on 07.08.2008 that he was absent from duty without leave being sanctioned to him and because of that an important meeting had to be postponed. It was a routine meeting as accepted by the third Respondent in his earlier note dated 29.07.2008. The Applicant gave a reply to both the notices. However, the third Respondent treated the period from 23.07.2008 to 25.07.2008 as dies non. On 19.08.2008 the third Respondent issued a notice to the Applicant on the basis of a false complaint made by one Gulshan Kapoor, Hindi Assistant in the CCRAS. The Applicant served a notice on the third Respondent on 25.08.2008 asking for his apology and payment of compensation for the constant harassment and humiliation the third Respondent was inflicting on him. It is also alleged that the third Respondent humiliated him on 05.09.2008, while he was discussing some matter with Administrative Officer (Establishment). The Applicant also made a complaint in the Police Station, Hari Nagar, against the former Director of CCRAS, Dr. G S Lavekar, and the third Respondent about the continued harassment by them. It was further alleged that the third Respondent called the Applicant to his chamber on 25.03.2010 and threatened him with dire consequences, if he deposed as a witness before the Sessions Judge in the case against Dr. G S Lavekar. The Applicant mentioned this fact in his deposition before the court. These facts have been recorded in his statement before the court, a copy of which has been annexed at A-10 and in the order annexed at A-12. It was submitted that these facts have been enumerated in paragraphs 4.4 to 4.14, yet the third Respondent had not filed any reply to these allegations of mala fides in spite of notice. It would amount to admission on the part of the third Respondent. Reliance was placed on Express Newspapers Pvt Ltd Vs. Union of India and Others, (1986) 1 SCC 133, in which in paragraph 116 it was, inter alia, held that:
"116................................. Where mala fides are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability."
5. It was urged that no employee could be transferred by an organisation to another organisation under the new employer without the consent of the employee. While consent was taken from one of the employees transferred along with the Applicant, yet his consent was not taken. Another instance was placed before us in which seven employees of the CSMRIASDD, an institution under the first Respondent, were given an opportunity to give their willingness to join the Central Council for Research in Siddha. On 08.11.2010 the Administrative Officer of the first Respondent wrote to the Director of CSMRIASDD to seek the willingness of the following officials:
Research Officer (Chemical);
Research Assistant (Chemical);
Research Assistant (Botany);
Laboratory Technician;
Laboratory Attendant;
UDC;
Safaiwala.
It was contended that in view of the fact that willingness of all those who were transferred to the Central Council for Research in Siddha was taken, whereas no such option was given to the Applicant. It was urged that this was hostile discrimination by the first Respondent against the Applicant. Reliance has been placed on Jawahar Lal Nehru University V. K S Jawatkar and others, 1989 Supp. (1) SCC 679, in support of the argument that the consent of the employee is necessary before transferring him to a new employer. The facts in the cited case reveal that the appellants before the Honourable Supreme Court had established a Centre of Post Graduate Studies at Imphal and appointed the respondent therein as Assistant Professor on regular basis. In 1981 the appellants decided to transfer the Centre to the Manipur University. By an order of the Governor under the Manipur University Act, 1980 an order was passed transferring the members of the Centre to the Manipur University. The Honourable Supreme Court held thus:
7. In this appeal the main contention of the appellant is that the respondent was appointed at the Centre of Post-graduate Studies, Imphal, and when the Centre was transferred to the Manipur University, his services were automatically transferred to that University, and consequently he could not claim to be an employee of the appellant University. The argument proceeds on the assumption that the Centre of Post-graduate Studies at Imphal was an independent entity which existed by itself and was not a department of the appellant University. The submission proceeds on a fallacy. The Centre of Post-graduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity, the appellant University set up and organised the Centre at Imphal and appointed a teaching and administrative staff to man it. Since the Centre represented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant University and no law can convert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondents consent. When the Manipur University Act provides for the transfer of the services of the staff working at the Centre of Post-graduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provision enabling such transfer of employment but only on the assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget ; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law is clear, that no employee can be transferred, without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in support of this conclusion.
8. Inasmuch as the transfer of the Centre of Post-graduate Studies from the appellant University to the Manipur University could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the appellant University. The transfer of the Centre of Post-graduate Studies to the Manipur University may be regarded as resulting in the abolition of the post held by the respondent in the appellant University. In that event, if the post held by the respondent is regarded as one of a number of posts in a group, the principle last come, first go will apply, and someone junior to the respondent must go. If the post held by him constitutes a class by itself, it is possible to say that he is surplus to the requirements of the appellant University and is liable to be retrenched. But it appears that the respondent has been adjusted against a suitable post in the appellant University and has been working there without break during the pendency of this litigation, and we cannot, therefore, permit the appellant University to retrench him. It was further argued that when the note was put up to the Minister for Health and Family Welfare on the representation of the Applicant, the Under Secretary of the Ministry added to the note that the Director General of the first Respondent had informed that there were several allegations against the Applicant, including the allegations of sexual harassment of a female employee, also noting that the inquiry thereon had not been brought to logical conclusion. Other complaints referred to in the note of the Director General included filing of false rent receipts, supporting baseless allegation against the former Director General, making anonymous complaints against higher officers of the Council and disobeying the administrative order of transfer to Chennai. The learned senior counsel would contend that the allegations pointed out by the DG were obviously bogus and irrelevant. These were included only to cause prejudice in the mind of the Minister. It was further argued that the note of the DG of the first Respondent was dated 10.11.2010 and it was included in the note of the Under Secretary, which was recorded on 09.11.2010. It was argued that this would show the extent of prejudice against the Applicant that the Respondents had to resort to such interpolations in the note.
6. The learned senior counsel for the Respondents initially challenged the contention of the Applicant that the Office Memorandum dated 27.07.2004, already adverted to above, about fixation of norms for number of posts for Hindi, was applicable to the first and the fourth Respondents. He, however, later on conceded that the aforesaid Office Memorandum was applicable to the Respondents. He, however, urged that the Office Memorandum was not mandatory and that the observation in the note dated 12.04.2010, proposing the transfer of the post of Hindi Officer along with the incumbent, recorded by Jeevan Das, was the interpretation of the author of the note. It was further argued that although, as per the policy, a Hindi Officer could be posted where there were more than one hundred ministerial employees, but keeping in mind that the Central Council of Research in Ayurvedic Science was located in Delhi and most of the employees and staff working in Delhi was familiar with Hindi and the Council for Research in Siddha was located in the South, it was felt that the Hindi Officer should be posted to the latter Council. It was further argued that in the Council for Research in Ayurvedic Sciences, there were two Hindi Assistants, working presently, it was felt that they could look after the work efficiently. The sum and substance of the argument was that the Hindi Officer was needed more in Chennai than in Delhi.
7. It was further contended that the allegation of mala fides against Jeewan Das had not been adequately supported by the facts placed before the Tribunal by the Applicant and it was not sustainable. It was pointed out that the order dated 07.08.2008, by which the period between 23rd of July to 25th July 2008 has been declared dies non was passed with the approval of the Director General. Jeevan Das could not be blamed for it. The Applicant never made any complaint against the third Respondent while both of them were working under the first Respondent. It was contended that the case about which reference was made by the Applicant was not between him and Jeevan Das. It was a criminal case against the former Director General, in which the Applicant was a witness. It was contended that the order of transfer of the Applicant was passed by the Minister and not by the third Respondent, Jeevan Das. In this context our attention was drawn to the following portion of the note of the Director General of the first Respondent:
(ii) The proposal for transfer of Dr. Rai to CCRS along with post was the result of a conscious decision, after consultation with D/o AYUSH. Given below is the relevant extract of the Note approved by Honble HFM, in his capacity as the President of the Governing Body of the Council, for transfer of posts from CCRAS to CCRS, which clearly reflects the clarity of thought in the matter.
One post of Hindi Officer, along with the incumbent is also proposed to be transferred so as to ensure effective implementation of Official Language Policy/ instructions of the Govt. of India and its promotion and propogation in the various National Institutes/ Autonomous Bodies/ Research Councils/Institutes of D/o AYUSH located in the southern States of India. It may, therefore, be seen that the decision to transfer Dr. Rai to CCRS was not influenced by any person but was a collective decision on the part of the Council and the Department of AYUSH and the same was approved by Honble HFM, in his capacity as the President of the Governing Body of the Council. It was also argued that the aspect whether an officer should be posted to Delhi or Chennai could not be gone into in judicial review. It was pointed out that in the office order dated 09.09.2010, the reference that the placement of Hindi Officer would be decided by the Central Council for Research in Siddha did not mean, as argued by the learned counsel for the Applicant, that the said Council would decide about the Applicant's posting in Central Council for Research in Ayurveda Science or in the Central Council for Research in Siddha, but it only meant that the latter would decide as to where to post the Hindi Officer in one of its four units. It was further contended on behalf of the Respondents that the Central Council for Research in Siddha was created as a result of bifurcation of the first Respondent and it was not a new organisation. It could not be construed to mean that the Applicant had been transferred to a new employer. The learned senior counsel would further contend that it was not necessary to give an option to the Applicant because there was only one post of Hindi Officer. This averment has been made in paragraph 8 of the counter affidavit of the first Respondent, which reads thus:
8) That the Applicant urged before the Ld. Tribunal that option to choose either one Council were obtained from all the incumbents shifted to CCRS (Siddha Council) except him. The statement of the Applicant is totally incorrect. The incumbents posted exclusively in the Siddha Units on the date of bifurcation were posted to CCRS (Siddha Council) without obtaining any option. Options were obtained from those units where a few posts are to transfer/re-locate to CCRS (Siddha Council) and where the cadre strength in each category is more than one. In the case of the Applicant there was only post of Hindi Officer in the mother Council and the Honble Minister for Health and Family Welfare in his capacity as President of the Governing Body approved the posting of Hindi Officer in the new CCRS (Siddha Council) for effective implementation of the Official Language Policy.
8. We have also perused the file of the first Respondent dealing with the representation of the Applicant.
9. On consideration of the arguments of the learned counsel for the parties, it is clear that the Respondents, while submitting the notes to the Minister, had indulged in supressio veri, suggestio falsi. The correct facts regarding the applicability of the Office Memorandum dated 27.07.2004, about fixation of norms for creation of posts for implementation of official language policy, have already been adverted to above. It was wrongly suggested that the policy was not applicable to Central Autonomous Bodies. It had earlier been denied by the Respondents that the policy applied to the Central Autonomous Bodies, but their stand later on changed and it was submitted that it was the personal opinion of the author of the note. Similarly the interpolation in the note sheet of 09.11.2010 of the report dated 10.11.2010 of the Director General of the first Respondent regarding complaints against the Applicant was also not justified. Moreover, the allegations were half baked and seemed to have been placed on record only to cause prejudice in the mind of the Minister. There are definitely specific allegations of mala fides against the third Respondent, who has not chosen to give any reply in spite of notice being served on him. The proposal about transferring the post of Hindi Officer along with the incumbent was not properly considered inasmuch as the aspect regarding norms of posting of officers for implementation of official language were not considered at all and the facts regarding obtaining the consent of the concerned officer was not examined. We are unable to agree with the argument of the Respondents that it was not necessary to seek the consent of the Applicant because there was only one post of Hindi Officer. No rules have been cited or placed on record to justify this statement that consent would be necessary if the number of employees in a cadre is more than one and would not be necessary if there was only one post. The argument that the posting of the Applicant was needed more in the Central Council for Research in Siddha than in the Central Council for Research in Ayurveda Science, because the former is located in the South and the latter in the North, is obviously an afterthought. The former Council also has several offices in the South and the number of employees in that Council far exceeds the number in the latter Council. Moreover, the Respondents have been making efforts to increase the manpower to deal with the work of official language as late as March 2011 and have asked an officer of the rank of Hindi Assistant to officiate as Hindi Officer, yet inexplicably justification is given for posting of the Applicant to Chennai. The transfer of the Applicant cannot be considered to have been made in good faith in the absence of proper application of mind and consideration of all the issues and rules in this regard. It cannot therefore be sustained.
10. The impugned orders are, therefore, quashed and set aside on the basis of above analysis, with liberty to the Respondents to re-submit the matter to the Minister after placing all the correct facts on record and bringing to the Minister's notice the relevant rules in this regard. The reconsideration shall be completed within two months of the receipt of a certified copy of this order. Till such time as the matter is reconsidered by the Minister, the Applicant will be permitted to work in the capacity of Hindi Officer. There will be no orders as to costs.
( L.K.Joshi ) (V.K.Bali ) Vice Chairman (A) Chairman /dkm/