Central Administrative Tribunal - Mumbai
Dr R Solomon Rajkumar vs M/O Agriculture on 15 June, 2018
-\-_
Iq-
l OA N0334/2017
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMAI sauce, MMMAI
ongernnr §PPLIC§TION.No.334[20l7
Dated this "F4 rDe Jami? the l§as June, 2018 '
CORAM:HON'BLE SHRI ARVIND J. ROHEE, MEMBER(J)
HON'BLE SHRI R. VIJAYKUMAR, MEMBER (A)
l. Dr. R. Solomon Rajkumar
working as Scientist, Animal Sciences
Section, ICAR~ Central Coastal
Agricultural Research Institute,
Ela, Old Goa -- 403 402, Goa,
and residing at D~l2,
Samarth Enclave, Dinesh Nagar,
Ela, Old Goa -- 403 402.
2. Dr (Mrs) Susitha Rajkumar
working as Scientist, Animal Sciences
Section, ICAR~ Central Coastal
Agricultural Research Institute,
Ela, Old Goa e 403 402,
Goa. ... Applicants
(By Advocates Shri B.K. Ashok and Ms. Ralimr Mmwj)
Versus
l. Union of India through Secretary,
Indian Council of Agricultural
Research, Department of Agricultural
Education and Research, Ministry of
Agriculture and Farmers Welfare,
Govt. of India, Krishi Bhavan,
New Delhi -- ll0 001.
2. Director Personnel
Indian Council of Agricultural
Research
Department of Agricultural Education
and Research, Ministry of Agriculture
and Farmers Welfare, Govt. of India,
Kushi Bhavan, New Delhi M ll0 001.
3. The Director, ICAR M
Central Coastal Agricultural Research
Institute, Ela, Old Goa M 403 402
Goa. ... Respondents
(By Advocate Shri Rakesh Singh alongwith Ms. Gr-zeta Raju)
».----.--.-__
M?
V%$?s~a ,. _.,=-
.-_<>=
'E-
-=I'
z_.-.-_.-.-.-_.-.:-.-.:.-.-.-;:.-.:.-.-. : :.-.-_: 5 - --._-5 :.--.;.:-.:.-.:.-.: _.-.: . . . . . . . . \ . . . . . . . . , . . . . . . . . . . . ..-.:-.-.-;-;r.-_:-. ..
--------- ........ ~~~~~
2 OANo.334/2017
O B. D R
Per : Rrvijaykumar, Member (A)
By this joint application under Section 19 of the Administrative Tribunals Act, 1985, the applicants anus are husband anui "wife, presently working under Respondent No.3, have grievances regarding the impugned order issued by Indian Council of Agricultural Research (Respondent No.1) bearing F.No.7(14)/20l6~Per.I dated 20.05.2017 (Annexure .A-- I), thereby transferring them. ix; ICAR Central Institute :fiIr Research CH1 Goats UIU3), Makhdoom i11 Mathura District of Uttar Pradesh. The following reliefs are, therefore, sought:-
"8(a) This Hon'ble Tribunal may kindly be pleased to quash and set aside the illegal transfer order No.F.No,7(l4)/20l6~Per I dated 20.05.2017 issued against ijue applicants anui allow them to work in the present place of work i.e. ICAR CCARI -- Goa.
(b) That this Hon'ble Tribunal be kindly be pleased to direct the respondents to disburse the salary by ICAR CCARI~Goa of the applicants from Lhnus 2017 till "the final decisitml of the jpresent Original Application.
(c) Pending' hearing' and further order, the Hon'ble Tribunal be pleased to direct the respondents to conduct a cadre review of All ICAR Institutes before effecting the transfer order to the applicants.
(d) Be pleased to direct the respondents not to relieve them from ICAR CCARI Goa until further orders. "
(e) zuq; other relief ndUrfi1 this Hon'ble Tribunal deems fit and appropriate to the facts of this case".
4
.s M,
.-'/
. ./" __v<.- -.-"X
.-:¢»-'-""r' ul-
.' 'M
....... ._.........__......_....._.:_._._._.._..._...; _.,:._._.::_._._.._,................ --é;_;-5%; ;2f_;_-:-:-fig-1-----§_-3 I ;_-j;'---'--'.-.-.~:;;j§_*;::\'- M.-1: :-1+ ----------- __5i='-'-'-' -- --v- . . .. i §' ------------------:E§'§:55:€:?;
ii
3 OANo.334/2017
2. As ascertained from the website of the
organisation, the Indian Council of Agricultural Research
(ICAR) is an umbrella institution that consists of 4
deemed Universities, 64 Institutions for Research, l5
National Research Centres, 6 National Bureaus and 13
Directorates/Project Directorates. _The ICAR is managed by a Governing Council established by Act of Parliament and its Director General concurrently holds the post of Secretary, Department. of' .Agricultural Research and Education (DARE), while the Secretary of the Council concurrently holds the post of Additional Secretary, DARE and is typically an IAS Officer posted after due empanelment. Each organization established by the ICAR has a specific research mandate and all of them. put together fit into the Research, Development and Educational needs and goals of the country in its Agriculture enui Animal Husbandry sectors. Besides, the ICAR also supports Krishi Vigyan Kendras across the country which directly interact with Farmers in the field for time purposes <yf transfer <1f technology enni further development. Time ICAR Emma established eni Agricultural Research Service (ARS) to recruit Scientists in the field of Agriculture, Animal Husbandry and Veterinary Medicine as part of its Scientific Establishment and their promotions are based on fixed terms. However, in addition, under the accelerated scheme of promotion, Scientists vmifii better research cnumnui as assessed kn? a \\\\\\'L-.~_\_ L;~srar..,_.?] /, __...
__.r
' me
._1_-u=*"'
r.=r.=r.=:-:-.'-:r-:r-1r-T=15.'='.=2:-:a'='.=.'-:;.-r-'='-'=-' 217.222?.. . ' i .LI?.TIK'~"i;I?;;'<°éE,'£=£V?=??=1¥§" ""'='*. R /' "=='=F':__ V 3 ? 33%/ix \\>'-E-5:
4 OA No.334/2017
Committee are given accelerated promotion, while
continuing to work in their research field which they had accepted at time thee of recruitmente The ICAR nbdified its previous transfer guidelines for scientific personnel of ICAR issued vide Crmncil's letter No.S(l6)/76--Per.IV dated 17.11.1980 and amendments thereon, with a new "Transfer' Guidelines' issued.wwith time approval (If its Governing Body in its 228"-Meeting held on 30" September, 2013 and which was issued vide their letter dt. 20.2.2017. These Guidelines categorized Institutions emxx into "AF and "B' cetegories and prescribed the ndnimum tenure of 5/3 years apart from. making provisions including for working couples as gum: DOPT guidelines, medical grounds, etc and also established a 'Transfer Committee at the Headquarters of ICAR with Director General as Chairman and for each Institute with the Iuiector ems its Chairman in respect of Intra--Institutional transfers. 2.1 Taking note of an OM No.F.14(14)--E(Coord)/77 dt. 25¢ October, 1977 issued by the Department of Expenditure, vdmrfi1 observed ifium: it luni come ix) notice that there were posts sanctioned for a specific purpose in an organization were diverted for another purpose at the same or different station and/or utilized as a standby to accommodate an officer. The note observed that the diversion of posts in this matter leads to the conclusion that the purpose for which the post was originally created had ceased to exist and diversion is effected to cope with someynew item of work, whether on the same or different H. iii i ' .
ii is
|; '\ '
.= ___.
' ,.41 ---r.:...,,,
_.,- Id:-1:-'-_
\._
I.
_,.,_-.":_f-,-Z1"
_.__-1r.'==.="
__:.-._,.-
____._;|.,,.\ n
._~ .-.-'r" " E-
-----
5 OA No.334/2017
stations. Tfins note concluded that this would amount to
creating a new post and would require prior clearance from inns Department <xf Expenditure. It ii; evident iinm; the unearthing of this old requirement was linked to a realization that the ICAR situation of deployment of Scientific Officers was not in accordance with its specific mandate as disaggregated to its various subordinate organizations. Therefore, ICAR issued an office order dt. 26"- May, 2017 recording the deliberations of time Governing Body im1.ius 239" nesting in which it was decided to strictly follow the circular of the jDepartment cm? Expenditure enui that ihenceforth, all cases cxf re--deployment, transfer, diversion, adjustment, up~gradation, re--designation.cuf posts shall ins done only with the approval of the Ministry of Finance (DOE) vide OM (supra) dt. 25.10.1977 and OM No.7(1)E.Co.ord.~1/2017 dated 12.4.2017 as amended from time to tjnmn Based on this concurrent exercise, a letter was sent to both applicants on 8.11.2016 setting the general background of their service anni mentioning that ai thorough review had been done in 2010 by revisiting the various disciplines of the ARS and the Institute--wise cadre strength was revisited ill 2011 after detailed consultation with every Institute, including a consideration of their future operational needs and requirement. On this basis, it was informed. to .Applicant No.1 that he was recruited and belonged to the ARS discipline of Livestock Product Technology (LPT) for which there was no sanctioned post in _.,.-.-\:e;_ :5 °'\°1-., ' =.5 "'¢-.....-' .-~\-,.
s1 /
if . _/ K
eiw.-=='--.»~= = qr
um?
_.............._......__........._................._.._.___.................___...._-......___.3:____......---1=;_:---~;5;--7if;:.§:=§,:,1&=é§_;.F.====.v.-.2:5gtxirzgigj3:§':;i§Q;€q:'§;;:§....--..§I.*{@E$Y;I$;._-;;._@_..<..§..\...;<>~<-Q;;)3x>T;f.fE¥LY§§,kI¥--y,~>g§<¢;-€--xygg g§<;\§<g;sm$,§'§;\§:§ __________________ 6 OA No.33-4/2017 the Institute where he was presently posted and no Scientist was deployed prior to his joining that Institute. In the case of Applicant No.2, it was mentioned that she belonged to the ARS discipline of Veterinary" Pathology eumi the Institute "where she imas presently posted had two sanctioned posts and two Scientists were deployed there before she joined the Institute. Both. were intimated. that as thorough examination vmnflri be nede rni the cmders cxf the Hen'ble Minister for Agriculture--cumMPresident ICAR to examine all the distortions in posting of Scientists and in case the distortions could not be rectified and the applicants fell in that category, they" would. need to lbe "transferred. Accordingly, three options for posting were invited indicating vacancies available in each discipline and was to be preferred. by" the applicants within seven days. However, applicants failed to indicate any options, which they argue, was because they did not have a common centre where the couple could be accommodated. Following this, a letter" was sent. by email ix; the applicants in File No.7(14)/20l6--Per.I cfil. 08.05.2017 mentioning time review and informing that S00 Scientists were issued such notices and after reconciliation of information, the figure reduced to 604. Of these, 49 were working in phased out discipline, 67 were working against posts for which incumbents were recruited from multiple disciplines, 20 Scientists were recruited from closely held subjects such as Animal Health for a position in Fish Health etc and ___./.-fir.-__ |._ .
5! .=' -
!l 'L .-
ii .
.>.< -. __
.~ 5...= I,-I /' -/__.y.- - 'flu _ -R
'€
_-_-=»<*':F
<£=."-'="""
. . . ,..,a-a
r is] s.<aas"
7 OAN0334/2017
such Scientists had developed expertise in the recruited
posts. Hence, the distorted position reduced to 468. In first phase, 97 Scientists were transferred as per their options. Thereafter, the Cadre Review Committee headed by the DG, ICAR identified a number of Scientists for transfer. This was preceded by cmmsideration of representations of the applicants forwarded in letter File No.1(218)/14/Estt. cfig. 6.3.2017, where ii; was stated kg? the Director of the Central Coastal Agricultural Research Institute (CCAPI) that .Applicant. No.1 could. ibe accommodated jll the vacant rmsition cxf Poultry Science although he was a Scientist of Livestock Products Technology and was managing the Poultry Seed Project since February, 2014 based on his Master's Degree in the subject. He also recommended that Applicant No.2 who was Veterinary" Pathology iii working cni the :mandate <nf the Institute. All these reasons including a need to keep the couple together was taken into consideration by the ICAR as ;U: emerges from E1 study of inns correspondence. Of these reduced number of scientists for transfer, 57 Scientists including time applicants wanna transferred jil public interest vide impugned orders Pile No.7(14)/2016- Per.I dated 20" May, 2017 and this has been contested in time present application. Apparently, time distorted position of 468 Scientists after reduction of 97 Scientists transferuai as per their options was further reduced to 289 and then a figure of 81 was arrived at, out of which 57 persons were ordered for transfer, which _..-="-':->._ Q 5. -.
. ___ .
.- -. .
\i'"<.I>.». ' mfi
--~.~§*>""
,.--;.<-*-
-:- I'
.:-'- -" "'
Lw-1-""
11:?
................... . \ 1""as __ _ '=3. .. ii i?* _D 8 OA No.334/2017 included the present applicants. It is also necessary to mention that the applicants were invited for a discussion at ICAR Headquarters and their views were also ascertained in person before the transfer orders were issued transferring both the applicants to a single station which is the CIRG, Makhdoom at Mathura, U.P.
3. The applicants have argued that they are currently managing some important Projects at their current station i11 Goa. IU: is an 'IV category station where they have worked for two and a half years. Applicant No.1 who was recruited in the field of Livestock Product Technology _is_a1 Principal Investigator cnf the Poultry Seed Project at this Institute and there are no other Investigators for this Project. His claim for retention 1M5 that Ina obtained NLSc. iJ1 Poultry Science before joining the ARS, but despite his request, somebody else has been accommodated. The Applicant 2 has been working on prevalence and pathology of economically important snui emerging <iiseases cflf livestock IJ1 coastal region of this nation through All India Coordinate Research Project (AICRP) on Animal Diseases Monitoring and Surveillance and Institute research projects. They allege mala fides iJ1 creating inn: vacancies en: CIRG, Makhdoom which were Inn: available previously anni were created by transferring two Scientists to Kolkata and to Goa. They also allege that after transferring 97 Scientists out of 468, inns balance IYKL Scientists should lnnma been given notice, but only 81 were given notice on 9.5.2017 to apply _.--'-"W-_.:_ :5 '2 : -
2
ri :_ .
I, . _.
|: '= ->
'F .=. 11'";
£6! J.
P
HF I
-- -- K ». <2 ....-
9 OA No-.334/2017
for online transfer and to indicate options within five
days. This suggests that 289 Scientists were also
adjusted vmifinnn: any justification. They refer ix; the
recommendations of Director, CCARI, Goa who had
recommended their retention and which had been ignored by the ICAR Headquarters. Apart from claiming reference to the transfer policy guidelines for the purpose of tenure of 5 years, they have also put forward the excuses that they have two children of 5 years and 7 months of age and that the parents of Applicant 2 are aged and are taking medical treatment at Goa, by which they wish that adjustments of pmsting shouhd be done by respondents to retain them at Goa just as it has been done for other Scientists.
4. The respondents have pointed out to nds--joinder or wrong description of parties by inclusion of the Union of India, The Director Personnel, ICAR and the CCARI, Goa. They pointed out iflnn: the ICAR is as Society to ins sued through the Secretary, ICAR only and this needs to be corrected. They" pointed rnn; to 'the ZUJ. India. Service obligation of ARS Scientists and that every Scientist of the ICAR 1&3 required ix; work ;h1 the area cflf his/her specialization which is not the case in the present applicants and is the basis for the distortion that has been identified kn; the ICAR. They point cnn: that the entire issue has been examined by the duly constituted Committee of the ICAR and opportunity was given initially for choice, discussions were held including personal .;-
r "Wm
"__- I
'il
I
rjme-
"\-:-
' Sr
._,-p»< 5
*1
-------------- "--" *****
10 OAN0334/2017
interaction and further opportunity for options was given before passing orders. He insists that no additional post was created at CIRG, Mathura simply to shift the applicants.
5. In rejoinder, applicants have attempted to punch holes iii the list.<xf persons who innms been retained by adjustments cxf posts in.i1ns Table annexed.ix3 the letter File No.7(14)/20l6--Perwl dated 4.5.2017 and say that in a similar way 213 Scientists were adjusted against some other discipline and argued that some benefaction should be extended to them. Further, they say that a list of 81 Scientists enclosed for transfer in the same letter has been reduced ix; 57 Scientists which nnnnns that about 25 Scientists have either" been absorbed. or not yet Ibeen transferred. This, according to applicants, is basis for nepotism, favoritism, discrimination. and. regionalisni in the impugned transfer order. According to the applicants, if the guidelines of the Ministry of Finance had been properly followed all these re--designated posts would also amount to creation of posts which would violate the guidelines and the failure to transfer them is, according to them, illegal and arbitrary. Ckmung'ix> the present Institute where they are presently working there are 20 sanctioned posts against 26 posted and 3 have already been transferred. Another I3 are Lrequired ix: be 'transferred because they are surplus and this further three includes the applicants. The applicants claim that under the transfer policy, seniors at the station should be
->- .
E H30" .._ ,1-"xv
-I:='"¢I»J ._=,,1.14?.) _ -
.-
;.-:-- '
N?
ESP
:.-_:_:_-._-.:-;__:E:E-_€=_;:EI§_;:.:=:;-:;E-:_§-;§:::;:;::;::{.-'.=:-:-'-'-'- '¥>'->'-'-' '"- -"' "'-7-I?=I-5:':5:':"T"""'""'-7"'?
""" " "5 5; 3 Y HMMHE'............. .:§~; §,~__-< if-1?-"§'-}§\"§"\" {Xi ER E {E2 E § ii--97----- 11 OA No.334/2017 transferred first emni have identified cthers jJ1 various fields including one scientist in Veterinary Pathology and according ix: them, lms has kxmni preferred.:fimr retention although his subject is not availabbe at Goa and he has apparently been adjusted in some other discipline. Therefore, the applicants allege that respondents have not implemented their own transfer policy. As for Movement to CIRG Makhdoom, they say that two Scientists already occupied. post in inns IPT discipline. In. respect of Veterinary Pathology one gxnn; is already occupied tn; a Scientist. This means, according to them, they would be surplus even at CIRG, Makhdoom. They also cite the cases of one Dr.E.B.Chakurkar, Principal Scientist (Animal Reproduction) and Dr.M.Thangam, Principal Scientist (Vegetable Science) who are working in Goa for 25 and 18 years respectively and therefore, the transfer policy is not being observed. Applicant 1 also claims that he has submitted as project proposal under inns Rashtriya Krishi Vikas Yojana (RKVY) for hygienic meat and fish production and value addition in Goa and this proposal is 'in the process of being considered. While desiring to be adjusted against the post of Poultry Science which he is currently occupying, he has also sought relief for getting permission for undertaking a Doctorate in Livestock Product Technology.
6. During the final hearing, the learned. counsel for both parties were heard at length and with reference to the scientific staff strength details for Goa and CIRG, _:;\.-. 1-_, .'-' -' "
-1 .1
|'1' ~=.i./
-..
2' &=-=="'
ji .¢.--
-===~ "F
.-» ;-'- .5. F
-------~- is - - - - 1.. . ----- -
12 OANo.334/2017
Makhdoom, Mathura, U.P.
7. The facts and circumstances involved in this
matter and the connected statute, guidelines and judicial
precedents have been duly considered.
8. (X1 the issue cxf mis--joinder cxf parties, ii: is apparent that the ICAR is registered under the Societies Registration Act and can be sued only through its Secretary anus concurrently holds the gxnn; of Additional Secretary in the Ministry. Since this is an independent position, it is only appropriate that only the Secretary of ICAR should be impleaded as respondent and no other person including the DG, President of the governing body, Director (Personnel) or the incorrectly described Secretary, DAR who is atiually the DG. Therefore, the list of respondents as arrayed is amended to read Secretary ICAR, Pusa, New Delhi alternately Krishi Bhavan, Dr.Rajendra Prasad Road, New Delhi which is how the respondents described this in the various letters.
9. As elaborately' read. out iii the =description <of the facts of inns case, the ICAR Inns a national mandate which is disaggregated into various disciplines and distributed into its various organizations throughout the country. The Zn%3 is a imxfl. employed ins achieve 'this mandate in each of the sectors and sub--sectors grouped as distinct organizations and thereby achieve the mandate of the various individual organizations and institutions within its fold, so that they will work harmoniously so as to achieve the objectives which the nation has set before __,;-1-.
._:"
=.I lg .'|' ;_| "-1-, -.-_~__ .-.'
-! _:_| "'-'=--..
_z -'-.-. __ In.-i
? -P ..-»*'"'>-
k?"
====»=""
W
13 OA_No.33-4/2017
the ICAR. 'The Scientists appointed to inns.ARS, as also
explained by the applicants, are recruited into specific
disciplines after a recruitment examination and which may
or may Inn; agree ill specific sub--disciplines with their
original specialization at the Master's level.
Thereafter, their research, career and promotions will be
guided only fur their output i11 regard ins this area cm?
specialization that innmg have accepted.vnnn1 they joined
service. Perhaps at as very senior level, innmg could be
managing composite projects that cover a different number of sub--sectors and sectors etc. including positions such as Directors (Hf Institutes etc. However, at inns base level every Scientist is expected to further his assigned and accepted area cm? research and Inn; in unrelated and different sectors. It is apparent from a reading of the correspondence that the ICAR had mis~managed its cadre of Scientists to such an extent that it was working according to the personal objectives of the Scientists and not the national objectives which had prescribed the mandate for ICAR. The various instructions of the Ministry of Finance in the Department of Expenditure only reflect this priority and the deliberations of the ICAR over the past years only reflect their concern at the utter misdirection of the Institute and the rnnni to Q?"
immediately carry out corrections. In this process, it is also apparent, that
they have adopted a sympathetic approach by adjusting the original principle to the extent that was possible according to innmr The applicant has alleged nepotism, .< _.-§ §. -
'r .-
_:_:- :: --.-_....:.__|;'|:Iv
'flip
:":-.-:-.-.-.-.-.---------------"------""""'-""131:"""""""""""""====z=:=saas.=.z:-:.'=:-:='-vi:2Es:-:szav.1=r:-rm:-zrss""""""""""§"'*-*-=.=.=-:-a=:.' """*"""""=-mg-==-= Q \ =5' --------~;;--"Q--agsjgy ":9 "\\\ {,3
14 OANo.334/2017
favoritimn, discrimination enni regionalism ill the final
impugned transfer order for 57 Scientists. The list of
persons ins has identified are, an: first view, evidently
continued distortions. But these are issues of Institute
policy and considerations of Scientific relevance in
regard to each persons demand of specialization and the
working area in which they were adjusted and the
sacrifices innn;"would have.in> make iJ1 case they"<n> not
perform. A look at the entire list of 272 and 81 persons
does not suggest any regionalism or favoritism or
discrimination of any kind. Nor have the applicants shown
any manner by which they have not been properly considered and adjusted to the best extent possible. It is settled law that the burden of proving mala fides rests on the person making it and in this case, the applicant has only pointed to some distortions that might be evident on a superficial view of as lawman but needs investigation by the authority itself. However, the applicant cannot escape from the overt fact that his request for retention at Goa is itself a request to perpetuate distortions, the very opposite of this policy. In case they were not willing to be posted together, they could have indicated and accordingly asked inn: an exception in: the transfer policy" guidelines vuuxs1 adopts inns DOPT {guidelines for keeping a couple together. In that case, they could have got different kinds of postings, but the applicants have not chosen this route and have instead adopted an aggressive line in) twist the greater mandate cm? ICAR to
-1.:--_..\_ '.,-_ : .5 ',:""'=_-.
-E 4%-'=|;'-""'°-r-¢\="', . ' H sf
'3-. I" I,
_""-'\-"i ___<.-.1'i5'*'\
_U_.w _..
I51
F
----------------------------------------------ii 15 OAN0334/2017 suit their personal convenience in a manner which had been done in the past and which had evidently grievously affected the purposes of the ICAR.' The enmnicants have not understood clearly that they are employed in ICAR for national purposes and not as a matter of charity for them to demand specific places of posting and then, if not obliged, to make allegations on various counts.
10. The applicants have enclosed a list of vacancies in CIRG, Makhdoom, which shows that in the field of Veterinary Pathology, there is one post of Principal Scientist, one post of Senior Scientist and one post of Scientist. Against. these innnns posts, Scientists available are cnns Principal Scientist snni one Scientist. Similarly in the field of LPT, there are three posts which include two (Hf Scientists and cnns of Senior" Scientist against which two Scientists are posted. Adverting to the promotional policy enni the project oriented work.cnf the ICAR¢ the Senior Scientist. and. Principal Scientist. are mere designations with greater project responsibility. Therefore, if inns Principal Scientist jas available, the other two can well be at the Scientist level and the person occupying the so--called vacancy of Senior Scientist can. well. be= a Scientist. and. by "virtue of accelerated promotions, a re~designation amongst the 3 available persons can take place. This analogy also applies to the discipline of Livestock Product Technology (LPT).
Therefore, in terms of Ahnexure A--l4 enclosed by
applicants, it is clear that there are posts available for
_,.--=¢._
<- .
51 I
-':
_-_| -'.-;i_ -
E .=::-*5'°'=--.1.-.-e_-_1.,..___ ,1
-.. _._<-
z' '-
'-""" er" :1
F. |
>>- ~ ~ ~ ~~<~~~~~~~~~~~~"I §> zs fr m\\asa\<?'?*$"'""'*"""
16 OA No.334/2017
the applicants at CIRG Makhdoom. The applicants have also
alleged that certain persons were transferred nerely to
accommodate them at CIRG, Makhdoom. It is noted from
their submissions at .Annexure .A--15 that Dr.R.B.Sharma,
Principal Scientist LPT was transferred to ICAR
Headquarters on 16.4.2015, two years prior to their
transfer. Dr.Shivsharanappa, Scientist (Veterinary
Pathology) was transferred to ICAR Goa on 21.04.2015, two
years prior to the transfer of applicants and he was also the target of their ire since they wished him to be transferred rather than Applicant 2. Dr.Manjunatha Reddy, Scientist (Veterinary Pathology) vnns transferred ins PD- ADMS, Bengalurti on. 25.6.2012, five years jprior in: the transfer (Hf the applicants. DrLArunkumar Das Emnentist (LPT) was transferred to ERS, IVRI, Kolkata for two years from 10.5.2013 and. has ibeen retained thereafter. Therefore, the allegations of the applicants are completely" baseless. The .Annexure also jprovides information that Dr.Souvik Paul, Scientist (Veterinary Pathology) who has been adjusted against the vacant post of Veterinary Pethology"vnmin1 was vacant 1J1 addition to the vacancies now being filled up by the applicants, but is a Scientist in Veterinary Parasitology and a proposal has been sent ans 17.4.2017 to adjust rua1;u1 the vacant post cm? Veterinaryw Pathology. However, tfinn; does :not indicate the nonmavailability of posts for the applicants who can have no grievance whatsoever except for distortion involved and which needs to be considered evidently by the ._ ;# "*.
! 1 '. "=1.
. I I I £-
.*:-*="'
_:_;__m__. .......................................................................
....-< ".a._-_.;-/-:»,___________ .,. § _§ 51 _ ;/) >Y-Q gag )z€;-as xxx? """
17 OA.No.334/2017
ICAR based on their mandate for Makhdoom and the nature of the respective domains, on which aspect this Tribunal can express no serious opinion as it falls entirely within the executive's and scientific domain.
ll. As regards the issue of tenure and other matters raised. by inns applicants kg? reference. to inns transfer guidelines iSSU€d.jJ1 2016, and which.rnnv subsist in the ICAR system, the present transfer proposals have little to do with.zs general transfer policy. 'The problem is innn; the ICAR Units are not conforming to the mandate in terms of the personnel that they require and' simply working without any objective which is clearly a waste of valuable scarce resources that the Government of India could rather divert to more useful pursuits within the system free from distortions. Where transfers are affected purely on Science considerations and imased <n1 project :needs, "the transfer policy guidelines of the ICAR would hardly apply. In the present case, as seen from the concern of the establishment to accommodate the couple at the same place based on their wishes and in the face of the lack of options or any expressions of disminterest that they would not like to stay together, the Committee established and chaired by the DG, ICAR has evidently performed its duty and it cannot be challenged in the unreasonable manner in which inns applicants lnnns sought in) do iii this application.
12. We may mention here that the law on transfer of ..-*"'-'='='T. Government servant and the scope of power of ::::;_./_ __. . .
fl.
;s~ ....,.
B U"?-A .3;-,1
C?
""""""""""""""" T < r =r-- - " " __T \» 2 § W» is $11 <<x x\\ >@\
18 OA No.334/2017
judicial review vested in this Tribunal to interfere with the transfer order issued by the Competent Authority is well settled. The scope is limited based on the following judicial pronouncements:~
a) State Bank of India Vs. Anjan Sanyal & Ors. {2001(3) Supreme 436}, in which it has been held that order of transfer of EH1 employee is ea part of the Service conditions and such order <n5 transfer is run; required to be interfered with lightly kgrea Court of law in exercise of its discretionary jurisdiction, unless the Court finds that either time order is mala fide cm: that. the service rules prohibit such "transfer or that the authorities, who issued the order, had no competence to pass the order.
in State of Madhya Pradesh and Ors. vs. S.S. Kburav {JT 2995 (2) SC 498}, in which it has been held that :~ "The Courts or Tribunals are not appellate forums ix; decide on transfers of officers on administrative grounds. Zfiua wheels of"
administration should .be allowed to run ' smoothly' and the courts or Tribunals are run: expected to interdict tflma working (If the administrative system Zn? transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either 132 nmlafides or lg? extraneous consideration without any factual background foundation. In this case was have seen that cni the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting" an officer at a _particular _'__.==»==--w;\_ 1 ~~~~~~*-=;':/ ¢'q:,,_-",1-r" '1; _ .;f_¢,-
I -:
. fir _. - _,.-»-* _,. _
.»=' M
'fr'.
.-.--" ' ,-K'?
.:»=""
"""""""_' i ' ' ' ' '7"""" ' ii R'""'*'T 19 OANo.334/2017 place".
(c) When the transfer order was challenged on the ground of mala fide, it has been held in N.K. Singh Vs. Union of India {(1994) 28 ATC 246}, that -scope of judicial review to interfere vU1fl1 the 'transfer' order .is elaborately considered and it has been held that interference is justified only in case of malafide or infraction of any professed norm or principle. It is also held that where career prospects remained. unaffected. and Lno detriment jas caused, challenge tn) the transfer must kna eschewed. 1%; is also held that vnuni transfer iaa challenged on malafide procedure for determining, it is stated to the effect that the Court will look into the records only and not enter into a roving inquiry.
(d) In S.C. Saxena vs. Union of India & Ors. {(2006) 9 SCC 583}, it has been held that "a government servant cannot disobey transfer order 'by not reporting at the place of posting and then go to a court to ventilate his grievances. It ji5 his duty ix) first report for work where he is transferred and makes a representation as ix) what may kna his personal problems. Such tendency of not reporting at the place of posting and indulging i11 litigation ;needs Ti) be curbed".
HM In Rajendra Singh vs. State of UUP.
{20l0 (1) SLR (SC) 633}, it has been held that "a Government servant has no vested right to remain posted. at a place of his choice, nor he can insist that he must be posted at one place of \<|..._,_ "-
~ s-=......;,-;.=;» _ _,-5».
||||-\.'c='-'M'. I
ciifi
'1.-P'
---- " ""' ' i in " *¢Kv%§@~'§§<i=M
20 OANo.334/2017
his choice. Eka is liable ix) be
transferred in the administrative
exigency from one place to the other.
It is luflri that transfer cxf an employee is not only an incident
inherent ill the terms cxf appointment, but also implicit as an essential condition of service in the absence of any specific intention ix: the contrary."
(f) In State of U.P. Vs. Gobardan I-al {2004 (2) SC SLJ 42}, it is stated that Courts or Iaibunals cannot substitute their cnni decisions in.iflua matter of transfer for that of competent authority. If malafide are alleged as the ground for cancellation of transfer order, then it;rmnn; be such as tun inspire confidence ill the Court or based on concrete materials. Mere allegations of malafide are not sufficient to hold in favour of the employee.
(g) Union of India Vs. S.L.Abbas, 1993 (2) SLR 585 (Supreme Court) in which it has been held that :~ "Transfer is an incidence ofservice. Matters of transferfloosttng are best left to the judgment of the employer Orders of transfer would be open to challenge only if the same have been passed in violation of statutory provision or are vitiated by malafides. Terms and conditions contained in a transfer policy/guidelines do not vest an erzforeceable right in an employee. "
(h) The aforesaid decision in
S.L.Abbas case has been referred. by
the Hon'ble High Court of Punjab and
Haryana in a recent decision dated
25 . 10 . 2 O17 in CW? No.24075/2017, Neha Sood
.--"SI
rc' pa
R-
-.4
.-
-
til'
n'l.)\|\'\-Al 'Q -. »\_ . »_._.i 1 i
re
21 OANO-.334/2017
Vs. State ofP:mjab. Although it was a case
in which. the petitioner upon having
been selected for the post of Lecturer (Information and Technology), she has been issued posting order ix) join at Government Polytechnic College, Bathinda. She was also aggrieved by memo dated 12.10.2017 whereby her request for adjustment cu: the post of Lecturer in Government Girls Polytechnic College, Patiala rather than at Bathinda was declined".
13. From the above discussions, it is settled law that the scope of judicial review to interfere with a transfer order is limited and the power of judicial review vested in this Tribunal to interfere with such orders should be exercised with due care and caution in the light of the settled principles as stated above. In 'the present case, the competency of respondents (as corrected above) who issued the impugned transfer order has run: been challenged and only some issues of bias and violation of the provisions of the General Transfer policy guidelines have been urged without any valid basis.
14. In the circumstances, this O.A. lacks merits and is accordingly dismissed. During final arguments when the applicant pointed to certain types of distortions that had been adjusted, in support of his claim to perpetuating distortions in his case, the learned 1 .
1
"<,. '.
-. '-"'*-'-~-<'.<<,.____
.. ., :3
;»" km-=1--"I;-..., -Iii': '
=3 /-1*
..-_../;-_=.-: -q;-;\'..r-
-G55"
.,. r.. .- .- .- ~ \¢\ < 2 §\\ > §***$*i
22 OANQ-.334/2017
counsel for respondents was not able to fully explain the circumstances of those distortions and their details thereof. Considering that we have supported the decision in this case based on the policy mandate to correct such types cu? distortions and given that the adjustments are of a technical kind which are not in the domain of expertise of this Tribunal and we cannot ordinarily interfere, it is necessary to issue a direction to the Secretary, Ministry of Finance in the Department of Expenditure to initiate a performance audit of the ICAR system and its constituent organizations including" the :funding" for £GH< to examine ijf each of tfiumn are achieving their mandates and whether they are structured to do so and more jparticular; whether' their' staff' qualifications and individual research careers into which they were recruited Emma compatible vfiJfi1 the research requirements cm? each constituent organization of time ICAR and which analysis would. then feed into the overall performance audit for the ICAR itself. This exercise shall ideally be completed within a period of Ema: months from. vreceipt cm? these orders. Considering that time applicants have amnaged.tx> continue in the present station following the issue of the impugned orders dt. 20.5.2017 for more than one year and thereby, affecting kxnfli the research aandates <n5 the Insitute at :3. .--i.,_.__,_H__ _ ..:
i 5.-'1'"
- F"'T§' ..»..
'is,-,.-I-".:-'Y it/*'""
.~° __,.-
Q-1r.::='-/"' E-
-er
.........:;_.:;; ------------------------------------------------------------------------- "'<f* X '''''T'
23 OANo.334/2017
Goa anmi the Institute en: Makhdoom, kxnfil applicants are
directed to report at their transferred station without
availing any leave or any joining time or transfer
1
allowances including lump sum transfer grant. The legal
costs shall also be borne by the applicants.
M if s
(R . |-l-
l_|¢ 91
r) - (A . . Rohee)
.Member dministrative) Member(Judicial)
B.
| 52 er