Central Administrative Tribunal - Delhi
Sanjay Gihar vs Uoi And Others on 30 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 4084/2011
M.A. No.4792012 & M.A. No. 287/2013
Reserved On:03.09.2013
Pronounced on:30:09.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Sanjay Gihar
S/o Shri Radhey Shyam
R/o A-110, Shivalik Near Malviya Nagar,
New Delhi-110017. Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
UOI and Others
Through
1. Secretary,
Ministry of Home Affairs,
North Block,
New Delhi.
2. The Chief Secretary,
Govt. of NCT of Delhi
New Secretariat,
I.P. Estate, New Delhi. Respondents
(By Advocate: Shri Rajeev Kumar for Respondent No.1
Shri Vijay Pandita for Respondent No.2).
ORDER
By Honble Mr. G. George Paracken, Member (J) Applicant is a Delhi Andaman and Nicobar Islands Civil Service (DANICS for short) Officer of 1990 batch. His grievance is against the impugned order of his transfer to Andaman & Nicobar Islands. According to him, the aforesaid order of transfer is in violation of the transfer policy issued by the Respondents themselves.
2. The brief facts of the case are that the Applicant joined as a DANICS Officer under the Government of NCT of Delhi in the year 1990. While he was serving under them as Sales Tax Officer, Respondent No.1, namely, Ministry of Home Affairs which is his cadre controlling authority, vide Order No.396 dated 22.09.1994 transferred to Andaman & Nicobar Islands. There he served as Assistant Commissioner for nearly 4 years whereas, according to him, most of the DANICS Officers posted there served only for approximately 2 years. On his posting back to the Government of NCT of Delhi in 1998, he was sent on deputation to Municipal Corporation of Delhi (MCD for short). Again, he was posted to the Government of NCT of Delhi in 2003 and he served them in various capacities in different departments till he was again sent on deputation to MCD vide order dated 04.01.2008. There he was posted as Deputy Commissioner MCD with effect from 15.01.2008. While he was serving there, according to him, he was implicated in a criminal case and he remained under suspension from 31.10.2008 to 18.04.2011. On revocation of his suspension, he joined his duties with MCD on 02.05.2011. However, he came to know that an order dated 18.04.2011 has already been passed by the Respondents transferring him again to Andaman & Nicobar Islands. According to him, the said order is a punitive one as once an officer has already served in the Andaman & Nicobar Islands which is a hard station for 3 years, the Respondents could not have sent him there for a second posting particularly when several other officers senior to him are continuing in Delhi. In this regard, he has pointed out that the Government of India, Ministry of Home Affairs has already formulated the Guidelines for transfer/posting of DANICS and DANIPS officers to administer the civil administration and police administration of the UT segments, i.e., Delhi, Andaman & Nicobar, Lakshdweep, Daman and Diu and Dadra and Nagar Haveli categorized as Delhi segment and the outlying segments comprising the remaining UT segments. As per the said policy, it has to be ensured that no constituent segment serviced by the Cadre remains starved of Cadre officers and that onus to serve in the constituents outside Delhi and also in Delhi is shared among the offices equitably. Further, according to the said guidelines, the promotee DANICS/DANIPS officers will have to serve in one of the outlying segments for a minimum period of 2 years. The direct recruit officers are required to serve in the outlying segments in two spells the first spell will be of minimum 3 yeas and the second will be of minimum 2 years whereas the promotees are required to serve for 2 years. However, the number of stints and duration in outlying segments may vary subject to availability of suitable officers. They also say that the transfer and postings of the DANICS/DANIPS officer would be decided with the approval of the Joint Secretary (UT), i.e., the appointing authority. However, in order to bring transparency in the matter of transfer, in para iv of the said guidelines, it has been stated that station seniority list of officers in each grade may be prepared on the basis of the total period they have spent in Delhi from the date of entering in the service, i.e., DANICS/DANIPS and officers, normally, may be posted at the outlying segments on the basis of station seniority.
3. According to the Applicant, as per the aforesaid station seniority, he is very junior and 21 senior officers are there who are not even been transferred once in their career and posted out of Delhi and 18 officers are there who have been posted out of Delhi only once. The names of those officers are as under:-
Officers who are senior to the Applicant but never transferred out of Delhi:-
1. Shri J.S. Sindhu
2. Shri Krishnan Kumar
3. Shri R.N. Mangla
4. Shri V.K. Beniwal
5. Shri P.C. Jain
6. Ms. M.K. Garg
7. Shri S.N. mishra
8. Shri Devender Singh
9. Shri Rakesh Bhatnagar
10. Shri S.K. Bhandari
11. Shri Bansi Lal Sharma
12. Shri Umesh Kumar
13. Shri J.P. Aggarwal
14. Shri Sudhir Mahajan
15. Shri G.g. Barapatra
16. Shri Ajay Kumar Singla
17. Shri Tarsem Kumar
18. Shri S.K.S. Yadav
19. Shri D.N. Singh
20. Shri S.S. Sidhu
21. Ms. Rashmi Singh Officers who are senior to the Applicant but transferred only once so far:-
Shri Lakhpat Rai Gar Shri Ajay Kumar Singh Shri Tarsem Kumar Shri S.S. Sindhu Shri Suresh Gupta Shri Verendra Kumar Shri Verendra Kumar Shri Azimul Haque Shri Mukesh Prasad
10. Shri V.K. Harit
11. Shri Ramesh Chandra Meena
12. Shri V.K. Gupta
13. Shri M.R.M. Rao
14. Shri S.K. Jain
15. Shri H.P. Singh
16. Shri S.B. Shashank
17. Shri Vijendra Singh
18. Ms. Shashi Kaushal
4. Applicant has, therefore, made a representation to the Respondent No.2 on 05.05.2011 and requested it to cancel his transfer order as the same was made contrary to the policy and violative of Articles 14 and 16 of the Constitution of India. He has also stated that the aforesaid order is a part of his being victimized and harassed by the Respondents starting with his suspension from service and implication in a false criminal case. He has also stated that even after 3 years of registering the case against him, no charge has been framed in the criminal court so far. Further, according to him, the Respondents were determined that he should not remain in Delhi so that he could defend the aforesaid criminal case registered against him. Otherwise there was no other reason for the Respondents to transfer him while the aforesaid 39 officers who are senior to him and who have never been transferred or only once transferred to Andaman & Nicobar Islands are still working in Delhi.
5. As the Respondents have not taken any action on his aforesaid representation, earlier he has filed OA No.1713/2011 before this Tribunal and the same was disposed of by this Tribunal vide order dated 09.05.2011 with the direction to the Respondents to consider his representation and to pass reasoned and speaking order within 2 weeks. On receipt of the aforesaid order, they allowed him to join MCD with effect from 02.05.2011 vide their Office Order dated 20.05.2011 but the Respondent No.1, vide its impugned letter dated 23.5.2011 informed the Respondent No.2, namely, the Chief Secretary, Government of NCT of Delhi that his representation has been rejected and he shall be relieved immediately with a direction to report to the Andaman & Nicobar Islands Administration without further delay. By the said letter, the Respondent No.1 has stated that the transfer of the Applicant was not a routine one but it was as per the observations of the Suspension Review Committee that since the investigation in corrupt case against him was being done by the ACB, Delhi, it would be appropriate to post him to Andaman and Nicobar Islands on revocation of his suspension and it could have been issued by the MCD. As the copy of the said order was not communicated to him and when he came to know about it, he challenged it before the Tribunal vide OA No.1971/2011 and this Tribunal granted interim protection to him by directing the Respondents to continue him in Delhi by maintaining the status quo. According to the Applicant, the aforesaid letter was illegal as, once he had joined the duty in MCD as per his terms of appointment on deputation, the Respondent No.1 and 2 had no jurisdiction to issue the relieving order. Even though, Respondents attempted to relieve him in violation of the aforesaid order, they continued to maintain status quo, after he has again approached this Tribunal for Contempt of Court. As the impugned order dated 23.05.2011 passed on receipt of his representation dated 05.05.2011 has not been communicated to him so far, this Tribunal directed the Respondents to produce a copy of the same in the court. Accordingly, they produced the same on 15.11.2011 in the court and handed over to the Applicant. Thereafter, this Tribunal disposed of the aforesaid OA giving liberty to the Applicant to challenge the same in a fresh OA.
6. The Applicant has challenged the aforesaid impugned order dated 23.05.2011 in this OA on the ground that it was issued without application of mind as none of his contentions raised in the representation dated 05.05.2011 have been considered. According to him, he was singled out when other 8 officers, namely, Shri R.P. Singh, Shri P.N. Jha, Smt. Vimla Chaudhary, Shri Krishan Kumar, Shri Joseph Tudu, Shri P. Anand Rao, Shri R.K. Sharma & Shri P.S. Tolia have been facing same allegations in the same FIR and all of them are continuing in the same place of their posting. In addition, he has also stated that, there are a number of DANICS officers who were placed under suspension on account of their arrest in criminal cases but none of them were transferred out on revocation of their suspension. The details as given by the Applicant are as under:-
(1) K.C. Aggarwal was suspended after a CBI case and after revocation he was posted in Delhi itself.
(2) B.R.S. Rathore was arrested by CBI and placed under suspension. When his suspension was revoked he was not transferred out of Delhi.
(3) J.K. Jain was arrested by CBI in Daman. After revocation of suspension he was posted as Director (SW) in Daman.
(4) Krishan Kumar has been charge sheeted by CBI in several cases but he is posted as Dy. Commissioner in MCD in Delhi. He has not been transferred out of Delhi even once.
(5) J.S. Sandhu, J.P. Aggarwal, Rakesh Bhatnagar and several other officers continue to hold sensitive posts even after being charge sheeted by CBI. They have also not been posted out of Delhi even once.
7. Further, according to the Applicant, the competent authority to transfer the DANICS Officer is the Joint Secretary (UT) and not the Suspension Review Committee. He has also stated that the Government of NCT of Delhi where he is presently serving, had written a letter to the Additional Secretary (UT) that on revocation of his suspension, he is not likely to influence any investigation and the said letter was issued with the approval of the Chief Secretary of Delhi who is also the Chief Vigilance Officer of the Government of NCT of Delhi.
8. Further, according to the Applicant, contrary to what is stated in the aforesaid impugned order, the Suspension Review Committee has never recommended his transfer as is evident from the minutes of Review Committee held on 07.04.2011. In fact, the Review Committee held in its note that the officer is hardly in a position to influence the remaining process of investigation, if any, or to influence the witness or to influence the process the grant of prosecution sanction. Therefore, the action of the Respondents in transferring him by referring to the decision of the Review Committee is highly unjustified and unfair.
9. He has, therefore, filed this Original Application seeking the following reliefs and interim relief:-
Relief sought:
(i) To quash and set aside the impugned transfer order dated 18.04.2011, relieving order dated 25.05.2011 and order dated 23.05.2011 served on 15.11.2011.
(ii) To direct the respondents to effect transfer to DANICS Officers including applicant strictly as per Station Seniority prepared in terms of para 2 (iv) and other paras of transfer guidelines.
(iii) To allow the OA with cost.
(iv) To pass any such other order as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
INTERIM RELIEF Pending final adjudication of the OA, it is humbly prayed that this Honble Tribunal may be pleased to stay the effect of impugned transfer order dated 18.04.2011 and relieving order dated 25.05.2011.
It is relevant to note that the applicant has not been relieved from his present place of posting.
Pass any other order as this Honble Tribunal may deem fit and proper to the facts and circumstances of the case.
10. During the pendency of this OA, Applicant has filed MA No. 287/2013 challenging the order dated 29.01.2013 issued by the Respondents relieving him with immediate effect with the direction to report to the Andaman & Nicobar Islands Administration. However, the counsel for the parties have submitted that the status quo with regard to the transfer and posting of the Applicant is still being maintained in terms of this Tribunals order in this OA dated 01.02.2013.
11. Both the Respondents have filed their separate replies. The Respondent No.2 relying upon the judgment of the Apex Court in State of M.P. and Another Vs. S.S. Kourav and Others 1995 (3) SCC 270 submitted that there is no scope for interference by this Tribunal and the transfer of the Applicant was on administrative grounds. The relevant part of the said judgment reads as under:-
The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by 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 by mala fides or by extraneous consideration without any factual background foundation.
12. It also relied upon the judgment of the Apex Court in State of U.P. and Others Vs. Gobardhan Lal 2004 (11) SCC 402 wherein it has been held unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statu-tory provision (an Act or Rule) or passed by an authority not competent to do so, an or-der of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. The relevant part of the said judgment reads as under:-
Transfer of an employee is not only an incident in-herent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or condi-tions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statu-tory provision (an Act or Rule) or passed by an authority not competent to do so, an or-der of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulat-ing transfers or containing transfer policies at best may afford an opportunity to the of-ficer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the offi-cial status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emolu-ments. This Court has often reiterated that the order of transfer made even in trans-gression of administrative guidelines can-not also be interfered with, as they do riot confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
Further, it has relied upon the Apex Court judgment in the case of Union of India Vs. S.L. Abbas 1993 (4) SCC 357 wherein it has been held that transfer is an incident of service and the constraints and norms which the High Court observes while exercising in such matters apply equally to the Tribunal created under Art.323-A of the Constitution also. The relevant part of the said order reads as under:-
An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority." Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, - though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Executive instructions are in the nature of guidelines. They do not have statutory force.
The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in service matters. This is evident from a perusal of Art. 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art. 323-A of the Constitution.
13. It has also relied upon the judgment of the Apex Court in Shilpi Bose (Mrs.) Vs. State of Bihar 1991 Suppl.(2) SCC 659 wherein it has been held that the courts should not interfere with the transfer order which is made in the public interest and for administrative reasons and the present case falls in that category and the judgment of Apex Court in the case of National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan 2001 (8) SCC 574 reiterating that a public servant has no legal right to be posted forever at a particular place. They have also relied upon the judgment of the Honble High Court of Delhi in W.P. ( C) No. 1098/2011 - Virendra Kumar Awasthi Vs. U.O.I. & Others. The relevant part of the said judgment reads as under:-
Calling in question the legal propriety of the order dated 2nd February, 2011 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short, tribunal) in O.A. No. 409/2011 whereby the tribunal has declined to interfere with the order of transfer of the applicant-petitioner from Delhi on promotion to Daman and Diu on the ground that there is no violation of the statutory rule or mala fide in passing of the order of transfer and further the foregoing of the promotion cannot be binding on the respondent employer to cancel the order of transfer.
2. Regard being had to the reasons given by the tribunal, we are not inclined to entertain the writ petition. However, we are disposed to extend the period of joining at the transferred place till 15th April, 2011. No disciplinary action shall be taken against the petitioner for such non-joining as we have extended the period.
3. With the aforesaid observations, the writ petition stands disposed of.
Copy of this order be given dasti to the learned counsel for the parties under signature of the Court Master.
14. The Respondent No.1 in its reply has submitted that in the last meeting of the Suspension Review Committee held on 07.04.2011, it decided to revoke the suspension of the Applicant and to give him only a non-sensitive posting. Thereafter, the competent authority revoked his suspension and decided to post him in Andaman & Nicobar Islands. Accordingly, necessary order was issued on 18.04.2011 transferring him to Andaman & Nicobar Islands. They have also stated that the Applicant being a DANICS officer is liable to be posted in any of the UTs covered under DANICS including Andaman & Nicobar Islands. Thus, by posting him with the approval of the competent authority without any mala fide against him, the Respondents have done nothing wrong which needs intervention of the Tribunal. Moreover, transfer is an incident of service and employee can be posted at any place at the discretion of the administration in public interest. The investigation in connection with the corruption case (due to which he was kept under suspension) in which he is a party, is being carried out by the Anti Corruption Branch, Government of NCT of Delhi. Therefore, it would not be proper to allow him to stay in Delhi. Therefore, he was posted in outlying segments.
15. We have heard the learned counsel for the Applicant Shri M.K. Bhardwaj and the learned counsel for the Respondents Shri Rajeev Kumar. Law regarding transfer is well settled. Transfer in relation to service, reduced to simple terms, means a change of employment within an organization. It being an incident of public service, it does not require the consent of the employee. Further, as held by the Orissa High Court in Jogendra Mohanty Vs. State of Orissa, and others, 1979(1) S.L.R. 892(9) guidelines are not enforceable particularly at the instance of the employee concerned as they do not create any right to the officer. Again in B. VARADHA RAO Vs. STATE OF KARNATAKA AND OTHERS 1986 (4) SCC 131, the Apex Court held as under:-
"The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants."
In the same vein, the Apex Court in Union of India Vs. N.P. Thomas 1993. Supp.(1) SCC 704 held that the Government employee holding a transferable post has no vested right to remain in a particular place of posting itself and cannot claim as a matter of right, the posting in that place even on promotion. In Abani Kanta Ray Vs. State of Orissa 1995 Supp.(4) SCC 169 and in Amarjit Singh Ahluwalia (Dr.) Vs. State of Punjab 1975 (3) SCC 503 also the Apex Court held that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer.
16. However, though in a case of fixation of pay, a different view as taken by the Apex Court in Union of India Vs. K.P. Joseph & Others 1973 (1) SCC 194 wherein it was held that generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. Further, the Apex Court has held in the said judgment to say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area. The said principle was applied in the case tender in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others 1979 (3) SCC 498 wherein it has been held that it is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Again, in Union of India Vs. S.L. Abbas 1993 (4) SCC 357 the Supreme Court observed that while ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. It was continued in the same judgment that although it is the managements prerogative to decide who should be transferred and where, the decision must be taken for administrative needs. Then what is exigencies of administration or administrative exigency has been considered in K.B. Shukla Vs. Union of India 1979 (4) SCC 673 wherein it has been held as under:-
26. It is true that formation of opinion by the Central Government as to the existence of 'exigencies of the service' requiring appointment by such method, is a pre-requisite for the exercise of the power. But the formation of such opinion is a matter which, in view of the peculiar nature of the function and the language of the provision, has primarily been left to the subjective satisfaction of the Government. Indeed, it is as it ought to be. The responsibility for good administration is that of the Government. The maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. Therefore, the Government alone is best suited to judge as to the existence of exigencies of such a service, requiring appointments by transfer. The term 'exigency' being understood in its widest and pragmatic sense as a rule, the court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it, is vitiated by mala fides, dishonesty, extraneous purpose, or transgression of the limits circumscribed by the legislation.
17. In the instant case, the position is little different. The admitted facts are that the Applicant has already completed a tenure of four years in Andaman and Nicobar Islands from 1994 to 1998. As is not disputed by the Respondents that there are at least 21 officers of DANICS serving in Delhi continuously without subject to even one transfer. Similarly, there are 18 officials who are senior to the Applicant who served one term in the Andaman and Nicobar Islands. Therefore, transfer of the Applicant again to the Andaman and Nicobar Islands is in violation of the guidelines for transfer/postings of DANICS/DANIPS officers as well as in violation of Article 14 of the Constitution. Moreover, it is also not the case of the Respondents that the Applicant is again sent to Andaman and Nicobar Islands due to any exigency of service.
18. Now let us look at the impugned order of transfer of the Applicant dated 18.04.2011. According to the said order, on revocation of his suspension, the Suspension Review Committee recorded that he may be given a non-sensitive posting. The Respondent No.2 in its impugned letter dated 23.05.2011 has also informed the Chief Secretary, Government of NCT of Delhi that his transfer was not as a matter of routine transfer but as per the observation of the Suspension Review Committee. It has also stated in the said letter that the Committee had observed that since the investigation in corruption case against him was being done by the ACB, Delhi, it would be appropriate to post him to Andaman and Nicobar Islands on revocation of his suspension. However, the contention of the Applicant was that the Suspension Review Committee has never recommended his transfer as it would be evident from the minutes of Review Committee held on 07.04.2011. In fact, the Review Committee has held that the officer is hardly in a position to influence the remaining process of investigation, if any, or to influence the witness or to influence the process the grant of prosecution sanction. Therefore, the action of the Respondents in transferring him by referring to the decision of the Review Committee is highly unjustified and unfair.
19. We have, therefore, called for the departments file for our perusal. According to the Minutes of the said Committee dated 07.04.2011, the further continuance of the suspension of the Applicant was not desirable, as on his reinstatement, he is hardly in a position to influence the remaining process of grant of prosecution sanction. Further, the Committee recorded that on his reinstatement, he may be given a non-sensitive posting.
20. However, while implementing the aforesaid recommendation of the Suspension Review Committee, Shri Vyomesh Pant, Section Officer working with the Respondent No.1 misled his higher authorities including the concerned Director, Joint Secretary and the Minister of State by recording falsely in his note that the Suspension Review Committee had decided that on revocation of the Applicants transfer he will join Andaman and Nicobar Islands. The relevant part of his note is as under:-
The Committee, after considering the facts and circumstances of the case, has recommended that the suspension of Shri Sanjay Gihar may be revoked and on his reinstatement, he may be given a non-sensitive posting. The minutes of the meeting of the Committee may be seen at pages 229-232/cor. XXX XXX XXX The suspension review committee has also decided that on revocation of suspension Shri Sanjay Gihar will join Andaman and Nicobar Island. Necessary orders to that effect may be communicated separately.
Thereafter, the same officer prepared the impugned letter dated 18.04.2011 sent to the Chief Secretary, Government of NCT of Delhi informing him also that the Applicant was being posted to Andaman and Nicobar Islands on the recommendation of the Suspension Review Committee and requested him to relieve him immediately. The relevant part of the said letter reads as under:-
3. Further, the Competent Authority has also decided on revocation of suspension, Shri Gihar will join Andaman and Nicobar Island Administration.
4. It is, therefore, requested that on revocation of his suspension, he may be relieved immediately and directed to report to Andaman and Nicobar Islands Administration.
21. Thereafter, when the Applicant submitted his representation against the said transfer, the same Section Officer examined it again and again put up a misleading note on 09.05.2011 stating that since the transfer of the Applicant to Andaman and Nicobar Islands was on the reconsideration of the Suspension Review Committee, his request cannot be accepted. He also added in his note that the Committee recommended his transfer to Andaman and Nicobar Islands because of the investigation of the corruption case against him was being done by the ACB, Delhi. The relevant part of his note was as under:-
In his representation, Shri Gihar has mentioned that he has already served in A&N Islands and his name is not in the station seniority list. He has also given a list of officers senior to him who had never served in the outlying segments. It may, however, be observed that Shri Gihar was transferred to A&N Islands as per the decision of Suspension Review Committee and not as a matter of routine transfer. The Committee had observed that since the investigation in corruption case is being done by the ACB, Delhi, it would be appropriate to post Shri Gihar at Andaman, In view of the above, Shri Gihar may be directed to join A&N Islands immediately as per DFA.
Sd/-
(Vyomesh Pant) Section Officer 9.5.2011.
22. From the above factual position, it is seen that it is due to the misleading and false statement of the aforesaid Section Officer Shri Vyomesh Pant, the Applicant was again transferred to Andaman and Nicobar Islands for a second term irrespective of the fact that he had already served there for about 4 years and several other officers senior to him in the DANICS are stay put in Delhi without having been transferred to the outlying segments of the DANICS for even once and several other persons senior to him are there who have served there only once.
23. In the above facts and circumstances of the case, it is seen that the reason stated in the impugned order for the transfer of the Applicant to Andaman and Nicobar Islands is absolutely baseless and it was issued by Shri Vyomesh Pant, Section Officer working with the Respondent No.1 after obtaining the approval of the competent authority by furnishing them totally false information.
24. In view of the above position, the OA is allowed and the impugned transfer order dated 18.04.2011 and relieving order dated 25.05.2011 are quashed and set aside.
25. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh