Central Administrative Tribunal - Delhi
Rakesh Goswami vs Govt. Of Nctd on 15 March, 2023
1
OA No.458 of 2023
Court No.6 (item No.07)
Central Administrative Tribunal
Principal Bench; New Delhi
OA No.458/2023
Reserved on: 06.03.2023
Pronouncement on: 15.3. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
1. Mr. Sachin Sharma
Age 44 Son of Late Sh. Ghanshyam Sharma
Resident of 443, Sanskriti Apartments,
Sector 19B,Dwarka, New Delhi 110075
Applicant.
(Through Advocate: Sh. Sanjeev Ralli, Sr. Advocate with
Mr. Piyush M.Dwivedi, Mr.Shubham Yadav, Ravi Kant
Yadav and Mr. Chetanya Baweja)
Versus
1. UOI, Through
DPIIT, Ministry of Commerce and Industry,
Udyog Bhawan,
New Delhi-110011.
2. CGPDTM,
Office of the Controller General of Patents,
Designs & Trademarks, Registry
Boudhik Sampada Bhawan,
Plot No.32, Pocket 1, Sector 14, Dwarka
New Delhi-110078
3. Director, O/ of CGPDTM
Officer of The Controller General of Patents,
Designs & Trade marks, Designs &
Trademarks,
Registry
Boudhik Sampada Bhawan
Plot No.32, Pocket I, Sector 14 Dwarka,
New Delhi-110078.
-Respondents
(Through Advocate: Mr.T.Singhdev with Mr.
Aabhas Sukramani, Mr.Tanishq Srivastava and Mr.
Mohit for R-2 and 3, Mr.Ranjan Tyagi)
2
OA No.458 of 2023
Court No.6 (item No.07)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
1. Sh Sachin Sharma, Deputy Director in the Office of Director General Patents, Designs, Trademarks & Registry, the applicant, has filed the present OA challenging the Transfer and Reallocation of Work order dated 19.12.2022 vide which the applicant was transferred to Chennai Office of the organization with reallocated work responsibilities.
2. The brief facts of the case are as follows:-
The present applicant joined as Assistant Registrar, Trade Marks and Geographical Indications (Group A Gazetted Service) on 28.10.2011 at the Mumbai Office of the Directorate of Patents, Designs, Trade Marks & Registry. He was promoted as Deputy Registrar, Trade Marks & GI on 5.4.2018 and posted at the Ahmedabad office of the Directorate. He joined at Ahmedabad on 1.5.2018. He was transferred to the Delhi Office on 11.11.2020, after nearly two and half years on his own request. On 19.12.2022 the impugned transfer-cum-work reallocation was issued by the Office of DG,Patents, Designs, Trade Marks & Registry. In this order, the present applicant was 3 OA No.458 of 2023 Court No.6 (item No.07) shifted to Chennai Office in the Capacity of Deputy Registrar, GIR, Chennai and was also designated Head of Office , GI at Chennai. On 20.12.2022, the applicant made a request representation to Respondent No.2 via e-mail to postpone his transfer to 31stMarch , 2023 on the ground that he has been transferred prematurely (before the expiry of stipulated period of tenure), on health grounds, death of a relative during pandemic, and education of his children who are studying in Schools (the eldest being in class 10) and for his frequent visits to his home town Bareilly. He did not get a favourable response from the Respodent-2. On 18.01.2023, the applicant made another representation stating that his father expired on 09.1.2023. He also mentioned that his children are in class 10, 7 and 4 respectively and under these circumstances his transfer would create a lot of hardship to the family of the applicant. On 23.01.2023, the applicant was relieved from the Delhi Office, vide letter no. TMR/DEL /ADMIN /Office Order /2022-23/ AD-952 Dated 23.01.2023. Being aggrieved by this, the applicant has come in the present OA challenging the impugned order seeking the following relief:4
OA No.458 of 2023
Court No.6 (item No.07) (I.) To declare the impugned transfer order dated 19.12.2022 as perverse, malafide and without application of mind thus contrary to the OM dated 09.01.2020. (II.) To set aside the impugned transfer order dated 19.12.2022 keeping in view the OM dated 09.01.2020.
(III.) To pass any other appropriate orders or directions as this Hon‟ble Tribunal feel fit and proper in the facts of the present case.
3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his additional affidavit to the same.
4. On admission and issuance of notice to the respondents, and hearing both the parties Interim Relief was granted by this tribunal on 15.2.2023 stating that the respondents shall not give effect to the impugned transfer order.
5. The main grounds on which the applicant has prayed the prayed relief is that keeping in view the facts and circumstances of the case, the transfer -cum-
reallocation order dated 19.12.2022 is biased, malafide and issued as punitive measure and hence it is bad in law and action. The applicant in his OA and his counsel during arguments have tendered the following in support of their claim:
5OA No.458 of 2023
Court No.6 (item No.07)
(i) The transfer order dated 19.12.2022 issuded by Respodent No.2 is contrary to the „mandated‟ Transfer Policy of the Organisation issued on 9.1.2020. The applicant has been transferred out after spending merely two years where as the stipulated tenure is 4 years for Deputy Registrars.
As per clause 4.1of the said Transfer Policy, the normal station tenure shall be 5 years.
(ii) The transfer order violates the provision of transfer policy (Clause 2.1), which states that the transfer of Group „A‟ and „B‟ officers shall be effected based upon the recommendations of the Placement committee . In the instant case, there was no recommendation of the Placement Committee.
(iii) The transfer -cum-reallocation order is in effect transferring the applicant to a non-existent post in Chennai. The post in Chennai was held by an officer of Assistant Registrar Rank and the incumbent there was holding charge of both Trademarks as well as GI . By splitting the Trade mark and GI work responsibilities into two separate Trade Mark and GI Offices ( Two officers have been designated as Head of Office of the respective divisions), the RespodentNo.2 has virtually transferred the applicant to a non- existent position.
(iv) The transfer and reallocation has been effected selectively. The applicant is the only official who has been relocated from the present place of posting. The other officials mentioned in the transfer order have been retained in their respective work stations.
(v) The transfer-cum-reallocation order has been issued in a particular manner in respect of the applicant as a punitive measure because he did not comply with the illegal orders of Respondent no.2 in respect of a Qausi-judicial matter pertaining to one Mr. Upesh Kumar. The 6 OA No.458 of 2023 Court No.6 (item No.07) applicant has mentioned meetings, WhatsApp messages and e-mail (27.10.2022 and subsequently on 9.11.2022, 15.11.2022 4.11.22 and 18.11.2022 ), regarding alleged pressure by Respondent No.2 in respect of the case of Upesh Kumar. (He has not produced the copies of such e-mails, notice/ proceedings of the meeting or emails).
(vi) The Respondent No.2 has not considered the genuine hardship and difficulties of the applicant and his family (education of his children, the unfortunate death of applicant‟s father, poor health of the applicant) while not considering his request to cancel the transfer order.
6. The counsel for the applicant argued that the transfer order is bad in law as it violated the mandated provision of the Transfer Policy dt 9.1.2020. The second ground averred by him is that the transfer order smacks of bias, malafide, and punitive which is contrary to the reasonable expectations of a government employee from a model employer like government of India. To buttress his arguments he cited the Doctrines of Reasonable Expectations vs Public Interest expounded by the Apex Court in the case of Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4731 of 1992, where it was held that :
7OA No.458 of 2023
Court No.6 (item No.07) "8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process."
.......
"9. In Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 :
(1984) 3 All ER 935 (HL)] the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power. The impugned action was upheld as reasonable, made on due consideration of all relevant factors including the legitimate expectation of the applicant, wherein the considerations of national security were found to outweigh that which otherwise would have been the reasonable expectation of the applicant. Lord Scarman pointed out that "the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subjectmatter". Again in Preston, in re [1985 AC 835 : (1985) 2 All ER 327] it was stated by Lord Scarman that "the principle of fairness has an important place in the law of judicial review" and "unfairness in the purported exercise of a power can be such that it is an abuse or excess of power". These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. Shri A.K. Sen referred to Shanti Vijay and Co. v. Princess Fatima Fouzia [(1979) 4 SCC 602 : (1980) 1 SCR 459] which holds that court should interfere 8 OA No.458 of 2023 Court No.6 (item No.07) where discretionary power is not exercised reasonably and in good faith."
The counsel for the applicant averred that the facts and circumstances mentioned in the OA point out the arbitrariness, malafide and biasedness on the part of Respodent no.2 in passing the impugned order. The transfer to place having no position, mid-tenure transfer, transfer as a punitive action for not obeying illegal pressure, violation of transfer Policy in not holding meeting of Placement Committee , etc point to biasedness, malafide on the part of Respondent no.2. The personal hardships (children‟s education and family tragedy and poor health of applicant ) were also brushed aside. All these point to failure of the tests of reasonable expectations from a model employer like Government of India.
7. The counsel for the applicant further cited the judgments of the Apex Court in Civil Appeal arising out of WP No 1137 of 2018 in Mrs X vs Registrar General, High Court of Madhya Pradesh &Anr decided on 10.2.2022. This judgment has also reiterate the principle of drawing balance between the Doctrines of Reasonable Expectation Vs Doctrine of Public 9 OA No.458 of 2023 Court No.6 (item No.07) Interest as it was discussed in the Food Corporation (supra) case. It was held that the petitioner had legitimate expectation in view of the provisions of the relevant Transfer Policy. Secondly, the Apex court in this judgment has drawn attention to the judgment of the Supreme Court in Kumari Shrilekha Vidyarthyi and Ors vs Sate of U.P. and Ors wherein it was discussed the onus to prove unbiasedness on the part of the state when reasonable facts and circumstances points to a preponderance of presence of bias in transfer orders. The counsel for the applicant draws to the facts and circumstances in case of the applicant and stated that in analogy of the judgment of the Apex court in Kumari Shrilekha Vidyarthi ( supra) case, it is up to the respondents to nullify the allegations of baisedness in the passing of the impugned transfer order. The respondents, he argued, have failed to do so.
8. The counsel for the respondents drew attention of the Tribunal to substantiated facts and circumstances of the case as mentioned in the counter affidavit by the respondents and rebutted the allegations of baisedness, malafide and violation of any statutory provision in issuance of the transfer-cum-reallocation 10 OA No.458 of 2023 Court No.6 (item No.07) of work order dated 19.12.2022 (impugned order). He based his arguments on the following:
(i) That transfer is ordinarily an incident of service and the Tribunals and Courts should not interfere with such transfers. There are several judgments‟ by the Apex Court and the High Court‟s upholding the prerogative of the Government (the employer) to transfer an employee in public interest. The impugned transfer order has specifically mentions that it is a reallocation of work responsibilities and in respect of the applicant it has specifically mentioned that " * Shri Sachin Sharma, Deputy Registrar of TM& GI is hereby transferred to GIR , Chennai in public interest with immediate effect."
(ii) The allegations of malafide and bisedness have been invented by the applicant much after the transfer dated 19.12.2022. In his initial e-mail representation, the applicant has not taken any of these stands as taken in the OA and argued by the counsel for the applicant during arguments.
These are after thoughts by the applicant. Initially, the applicant accepted the transfer order without any objection that he was transferred to a non-existent position at Chennai , nor he alleged the absence of the recommendations of the Establishment committee , nor premature transfer before expiry of 5 years tenure at Delhi. He only requested for stay of the transfer till March 2023 on account of the ongoing academic session of his school going children and his poor health. In the subsequent representation, he requested the cancellation of the transfer order in view of the family circumstances on account of death of his father. In both these representations, he never alleged any bias, malafide, non-existent post etc. which have been invented as an afterthought to perpetuate his stay at Delhi. At each stage of representations, pleadings in the OA etc the applicant is inventing new grounds to 11 OA No.458 of 2023 Court No.6 (item No.07) allege bisedness and malafide on the parts of the respondents.
(iii) The counsel for the applicant refuted the allegation that the applicant was transferred to a non-existent post. He cited several instances in the past when the officers in the rank of deputy registrar have been posted at Chenai (Documents III, IV &V produced at the time of argument and part of file). Similarly, the allegation that there is no post of Deputy Registrar GIR at Chenai is counter to the organizational structure of the Organization (Documents-I &II produced at the time of argument and part of file.)
(iii) The transfer policy is only a guideline and it has several clauses allowing the competent authority to transfer the employees before tenure, without recommendations of the Establishment committee and reallocated place /station depending upon the exigencies of administration and serving the greater purpose of managing the affairs of the responsibilities assigned to the Directorate effectively and efficiently. Hence, mere absence of the recommendation of the Establishment committee, the transfer before tenure or during the mid-session of academic year of school going children should not constitute biasedness, malafide nor it should constitute punitive action on the part of the respondents.
9. The counsel for the respondents cited the following Judgments‟ in support of his arguments;
(i) Gujarat Electricity Board & Anr. Vs. Atmaram Sungomal POSHANI- (1989) 2 SCC 602- Para 4
(ii) Union of India Vs. S.L. Abbas- (1993) 4 SCC 357- Paras 5,7& 8
(iii) Nation Hydroelectric Power Corporation Ltd.
Vs. Shri Bhagwan & Ors. -(2001) 8 SCC 574- Para 5 12 OA No.458 of 2023 Court No.6 (item No.07)
(iv) State of UP & Ors. Vs. Gobardhan Lal-
(2004) 11 SCC 402- Para 7&8
10. The Apex Court in Gujarat Electricity Board vs Atmaram Sungomal Poshani CA No 3561 0f 1986 decided on 31.3.1989 held that :
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his serv- ice as he refused to comply with the order of his transfer from one place to the other."13 OA No.458 of 2023
Court No.6 (item No.07)
11. In the instant case, the counsel for the respondent argued that the applicant has tried to avoid to go to Chennai merely because it will cause discomfort to him and his family. The Apex court in Union of India vs S.L. Abbas CA no 2348 of 1993 decided on 27.4.1993 has again reiterated similar position. The relevant para 6 of this judgment states:
":6. 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. ....
He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
12. Again the Apex Court in National Hydroelectric Power Corporation Ltd vs Shiv Bhagwan&Anr CA no. 1095-96 0f 2001 decided 11.9.2011 held that:
"5. On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our attention has been invited to, we are of the view that the High Court 14 OA No.458 of 2023 Court No.6 (item No.07) was not justified in interfering with the impugned orders of transfer. It is by now well-settled and often reiterated by this Court that no Government servant or employee of public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4.1.1 of the Seniority Rules interdicts any transfer of the employees from one Office or Project or Unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance."15 OA No.458 of 2023
Court No.6 (item No.07)
13. In State of UP &Ors Vs. Govardhan Lal CA 408 of 2004 decided 23.3. 2004 it was again held that:
Para 6 "Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer 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 official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not 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."
Para 8 "A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing 16 OA No.458 of 2023 Court No.6 (item No.07) reasons, no interference could ordinarily be made with an order of transfer."
14. In view of the facts and circumstances of the instant case and the case laws cited by the counsel for the respondents, the counsel for the respondents argued that there is no a priori reasonable ground to hold the presumption that the impugned order dated 19.12.2022 suffers from malafide and biasedness. Hence, it was bounden duty of the applicant to prove the allegation of biasedness and malafide. The burden cannot be shifted to Government of India that it‟s action is devoid of any biasedness and malafide. The party alleging such biasedness should adduce evidence and produce documents to bring resanable presumption of malafide and baisedness. The applicant has failed to produce the documents based on which he alleges that Respondent No.2 excreted pressure relating one quasi-judicial matter and because of his non-compliance, he has been victimized. Secondly, the counsel for the respondents, citing the aforementioned judgments averred that the transfer policy is mere guidelines and these is ample scope for the government to transfer the employee suspending any other clause of such guidelines for administrative 17 OA No.458 of 2023 Court No.6 (item No.07) exigencies. The public interest weighs heavily against the relative discomfort of individual employee in relocation to a new place of posting.
15. I have gone through the records of case thoroughly and heard the arguments by the both counsels carefully. The assertion by the applicant and averment by his counsel regarding the biasedness, malafide on the part of Respondents is not borne out from the facts and circumstances of the case. The transfer order dated 19.12.2022 has not singled out the applicant. The reallocation -cum- transfer order involves five more officials. The allegation of non- existent post of Deputy Director at Chennai office is not sustainable in view of the documentary evidence produced by the counsel for the Respondents (Additional documents-III,IV & V). Because it is transfer prior to 5 years tenure and because the applicant‟s children are in Schools and the applicant has health and family issues, the transfer order cannot be considered as biased and based on malafide intentions. I agree with the contention of the counsel for the respondents that the allegation regarding punitive action based on vendetta because the applicant did not comply with the alleged illegal 18 OA No.458 of 2023 Court No.6 (item No.07) pressure in respect of one quasi-judicial case is not substantiated by documentary evidence. It is easier to allege such pressure in organizations dealing with quasi-judicial matters.
16. The argument by the counsel for the applicant that the present transfer case fails the Doctrine of Reasonable Expectations by an employee from the model employer i.e. the Government of India falls flat. On the other hand, the Government as custodian of Public interest has also reasonable expectations from its civil servants. A group "A‟ officer is supposed to serve anywhere in the country. That is the basic service condition for such officers. Moreover, it is the prerogative of the employer to transfer his employee at any point of time and to any work station based on administrative exigencies. The transfer policies are framed keeping in view effective deployment of manpower for the purpose of discharging the responsibilities of the organization in service public affairs. It is part of the Human Resources Management policy of the Government to provide better opportunities to officers for excellence and more planned approach to cadre planning. Effective Utilization of service of an employee is in the very core 19 OA No.458 of 2023 Court No.6 (item No.07) of administrative exigency. The public interest is more or equally important as the reasonable expectations of the employee being treated fairly and impartially in respect of personal hardships and difficulties. Somewhere, public interest weighs above the personal comfort of the employees. Referring to Shilpi Bose case (supra) and Gujarat Electricity Board v. Atmaram Sungomal Poshani, 1989 (2) SLR 684 (SC), The Delhi High Court in Union of India vs Yogender Mittal WPC 6726/2015 held that a judicial review of an administrative action is of course permissible, but orders of transfer are interfered when:-
"(a) the transfer is malafide or arbitrary or perverse;
(b) when it adversely alters the service conditions in terms of rank, pay and emoluments;
(c) when guidelines laid down by the department are infringed;
(d) when it is frequently done and lastly;
(e) if there is a statutory infraction."
In the instant case, none of the above five conditions are attracted. In the instant case, the applicant did not join at the new place of posting as a discipline civil servant after being relieved from office at Delhi . He could have joined at the new place of posting and then 20 OA No.458 of 2023 Court No.6 (item No.07) would have submitted representation regarding his personal difficulties. Instead of joining at the place of posting, i.e., Chennai, he presented one alibi by another to perpetuate his stay at Delhi. When he was transferred after two years from Ahmedabad to Delhi he willingly accepted. When, for administrative exigency , he was prematurely transferred to Chennai , he protests. The system should not work only for the comfort and advantage of the employee at the detriment of public interest. Reasonable expectation of the government from government servant regarding public service to the general public, and governance efficiency cannot be sacrificed at the altar of convenience of balance for the employee only.
17. That being the case, the OA fails to satisfy the Tribunal regarding the allegations of bias, malafide and vindictiveness. Nevertheless, the applicant has already availed interim relief from this Tribunal in the form of the order which directs the respondents not to enforce the transfer order till further orders. This is now month of March and almost the end of academic session. Hence, the major personal difficulty of the applicant regarding mid-academic session transfer has taken care of. It is further ordered that the applicant 21 OA No.458 of 2023 Court No.6 (item No.07) shall not be relocated to Chennai till 31.3.2023. This was the request the applicant made to the respondents in his first representation after the issuance of transfer order dated 19.12.2022. As regards, the reallocation of the work responsibilities and splitting of the position of Deputy Director, Trade Mark and GIR to two positions regarding Trademark and GIR , it is my view that it is the prerogative of the administrative Department to do so in best interest of the organization and the public interest. It is up to the Respondent No.1, i.e., Secretary, DIIP to look into the matter and take appropriate action, if any warranted.
18. The OA is disposed of in above terms. There shall be no order as to costs.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /mk /