Central Administrative Tribunal - Bangalore
Sharath B vs M/O Home Affairs on 29 March, 2021
1 OA.No.170/00444/2020/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/00444/2020
ORDER RESERVED ON 22.12.2020
DATE OF ORDER: 29.03.2021
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
Sri Sharat B, IAS
Aged about 44 years,
S/o Bheemaiah,
Jalasannidhi, Beside Jaladarshini,
Near Kalamandira,
Mysore-Mangalore Main Road,
Mysore 570005
(Working as Deputy Commissioner, Mysore District) ....Applicant
(By Shri Vikas Upadhyay, Advocate, assisted by Shri G.K. Gaurav and Shri
Ashwin Nair, Advocates)
Vs.
1. Union of India
Represented by its Secretary (Admn)
Department of Personnel & Training
Ministry of Personnel, PG & Pensions,
Government of India,
North Block, New Delhi-110 001.
2. The State of Karnataka
represented by its Secretariat
Vidhan Soudha, Bengaluru-560 001.
3. The Under Secretary to Govt of Karnataka
Department of Personnel
and Administrative Reforms (Services-4)
Vidhan Soudha, Bengaluru-560 001.
4. Smt Rohini Sindoori,
W/o Sudhir Reddy,
2 OA.No.170/00444/2020/CAT/BANGALORE
Door No B42, Corner 5th Cross House,
Kaliamma Temple Road,
Kalahasthi Nagar, T. Dasarahalli,
Bangalore 560 057 .....Respondents
(By Shri M.V. Rao, Senior Panel Counsel, for R1,
Shri Prabhuling Navadgi, Advocate General, Karnataka along with
Shri R. Subramanya, Additional Advocate General, Karnataka and
Shri M.V. Ramesh Jois, State Government Counsel for R2 and R3,
Shri Uday Holla, Senior Advocate, assisted by Ms. M.L. Suvrana, Advocate
for R4)
ORDER
PER: SURESH KUMAR MONGA, MEMBER (J)
The applicant herein is an officer of Indian Administrative Service 2011 batch Karnataka Cadre. It is his pleaded case that after having completed his training, he was posted as Assistant Commissioner, Hassan on 06.09.2013 where he remained posted uptil 31.12.2014. On 01.01.2015, he was transferred to Bidar as Chief Executive Officer, Zilla Panchayat. He remained posted at Bidar uptil 07.10.2015 and thereafter he was transferred to Mandya on 08.10.2015 as Chief Executive Officer, Zilla Panchayat. He remained posted at Mandya uptil 14.08.2018. Subsequently he was left without posting for 50 days. It is pleaded further that on 10.10.2018, he was posted as Deputy Commissioner, Raichur where he continued as such uptil 30.08.2019. On 31.08.2019, he was posted as Deputy Commissioner, Kalaburgi, where he continued uptil 27.08.2020. Thereafter, he was posted as Deputy Commissioner, Mysore on 28.08.2020.
2. It has been asserted that the applicant has obeyed all the previous transfer orders lawfully. His grievance in the present Original Application is 3 OA.No.170/00444/2020/CAT/BANGALORE that just after a period of one month, he has again been transferred from the post of Deputy Commissioner, Mysore vide order dated 28.09.2020 and according to him the said order is in violation of the law laid down by the Hon'ble Supreme Court in T.S.R. Subramanian vs Union of India AIR 2014 SC 263 wherein it has been held that there should be a minimum tenure of posting for two years for the officers of Indian Administrative Service. It has been averred that while issuing the transfer order dated 28.09.2020, no valid reason has been given to the applicant for his premature transfer. The order of transfer has been issued with the sole intention to create a vacant post to accommodate the 4th respondent by displacing the applicant herein.
3. Respondents No. 2 and 3 by way of filing a joint reply have joined the defence and opposed the prayer made in the Original Application. It has been stated that this Tribunal cannot interfere with an order of transfer unless malafide is alleged and a concrete base for such allegation is established. In the case in hand, there is no such claim or any reliable or concrete proof of malafide. The applicant's transfer order has been issued in administrative exigencies considering various circumstances and the same is in public interest. It has further been averred that the Civil Services Board was established on 31.01.2014 and the same was ordered to be kept in abeyance on 12.03.2014. In the absence of the Civil Services Board, the executive head of the State is the competent authority to effect transfers. It has further been averred that the State Government has taken the decision while keeping in view the smooth management of the situation and 4 OA.No.170/00444/2020/CAT/BANGALORE effectiveness on the eve of upcoming Dasara festival. The 4th respondent has already assumed the charge on 29.09.2020 and she is presently working as Deputy Commissioner, Mysore.
4. By way of filing an additional affidavit dated 21.10.2020, it has further been asserted by Respondents No. 2 and 3 that Mysore district is an important district particularly in the context of the Nada Habba i.e. Dasara which is conducted at International level. Conducting Dasara festival amidst pandemic is an important event in the State administration. Mysore district which is located in close proximity of the State capital, has been experiencing rampant increase of COVID-19 infection. From the month of September-October, there has been a reduction of positivity rate from 21% to 7.8%. These factors are important for district administration. It has further been averred that as per Rule 36 of the Karnataka Government (Transaction of Business) Rules, 1977 (hereinafter called as the '1977 Rules') the power of transfers and postings of the officers rests with the Chief Minister and in exercise of said power, the Chief Minister has passed the impugned transfer order.
5. The respondents still filed one more additional affidavit dated 09.12.2020 stating therein that the applicant has been given posting as Managing Director, Karnataka Silk Marketing Board Limited, vide order dated 29.09.2020 and the said order is not under challenge in the present Original Application. The applicant has not even reported for duty since 29.09.2020. He was also proposed to be posted as General Observer by the Election Commission of India for General Elections of Bihar Assembly but 5 OA.No.170/00444/2020/CAT/BANGALORE he was not available on duty and hence he failed to adhere with the orders of the Election Commission. It has further been averred that the applicant was tested COVID positive in Mysore Medical College and Research Institute, Mysore on 30.09.2020 and he intimated the authorities in this regard on 18.10.2020 and sought for medical leave through email. The applicant further claimed that he was on medical treatment in Bhavani Hospital, Mysore and claimed that he remained admitted in the said hospital on 18.10.2020 for acute lower back pain with spondylitis. Further, while producing the medical certificate dated 24.10.2020 issued by the Manipal Hospital, Bangalore, the applicant claimed that he was suffering from acute lower back spasm and needs absence from duty for two weeks with effect from 24.10.2020. Another certificate dated 12.11.2020 from the same very hospital also certify that he was suffering from lower back spasm following dislocation of L4 and L5 in the spinal cord with left lower limb radicuropathy and needs absence from duty for two weeks with effect from 12.11.2020. The certificate dated 28.11.2020 issued by New Priyadarshini Hospital, Mysore also certifies that the applicant is suffering from ailments and a period of absence from duty by two weeks from 28.11.2020 is absolutely necessary for restoration of his health. On 02.11.2020 at 2.34 PM the applicant sent a communication through email claiming that his leave may be extended. Similar emails were sent by him on 15.11.2020, 01.12.2020 and 02.12.2020 seeking extension of leave on health grounds. The medical leave which he is seeking through e-mail does not disclose any specific date by which he would be able to assume the duty. Meaning thereby, the 6 OA.No.170/00444/2020/CAT/BANGALORE applicant is seeking medical leave without any outer limit. Under these circumstances, the Government has issued show cause notice on 25.11.2020. In the circumstances, he being not in a position to assume duty, it has become obvious that he is not in a position to take up the charge as Deputy Commissioner of Mysore.
6. The respondent No. 4 by way of filing her separate reply, has stated that she has been subjected to frequent transfers. She has been transferred on five occasions till date. Now she has been posted as Deputy Commissioner, Mysore by the 3rd respondent for better administration, particularly in view of worsening COVID-19 situation in Mysore district and the failure of the applicant to improve it over the last one month of his tenure. The applicant cannot claim that he has a right over the said post as every post in government is for public service and the government is bound to act in public interest. As on date there is no Civil Services Board functioning in the State of Karnataka and as such, the applicant cannot allege violation of any rule. Whatever the transfer and posting orders, the applicant has received till date, those were not through the Civil Services Board. Being the beneficiary of the said orders, the applicant cannot now turn around and contend that his transfer should have been in terms of Rule 7 of the Indian Administrative Service (Cadre) Rules, 2014. The Rules nowhere mentioned that reasons are required to be recorded for making a premature transfer. The contention of the applicant that the impugned transfer order is issued succumbing to the political pressure to 7 OA.No.170/00444/2020/CAT/BANGALORE accommodate respondent No. 4, has been denied. The Respondent No. 4 has thus prayed for dismissal of the Original Application.
7. Heard learned counsels for the parties.
8. Shri Vikas Upadhyay, learned counsel for the applicant, submitted that pursuant to directions issued by the Hon'ble Supreme Court in Subramanian's case (supra), the Central Government while exercising its power under Section 3 (1) of the All India Services Act, 1951 (hereinafter called as the '1951 Act') in consultation with the Governments of the States concerned notified the Indian Administrative Service (Cadre) Amendment Rules, 2014 (hereinafter called as '2014 Amendment Rules') and substituted the provisions of Rule 7 in the '1954 Rules'. According to said amendment, the State Government constituted the Civil Services Board vide Government Order dated 31.01.2014 and there was no occasion with the Government to issue a further order dated 12.03.2014 to keep the Civil Services Board in abeyance. It is the contention of learned counsel for the applicant that there was no such power available with the respondents to avoid the mandate of the '2014 Amendment Rules' by way of issuing the Order dated 12.03.2014. According to learned counsel, the applicant's premature transfer could not have been ordered without taking recommendations of the Civil Services Board.
9. Shri Upadhyay further submitted that by virtue of Government Order dated 12.03.2014 it was only the constitution of the Civil Services Board which was ordered to be kept in abeyance provisionally. So far as the 8 OA.No.170/00444/2020/CAT/BANGALORE provisions of Rule 7 (3) of the '2014 Amendment Rules' are concerned, those remained totally unaffected as the Government Order dated 12.03.2014 does not talk anything about them. According to learned counsel, the mandate of Rule 7 (3) of the '2014 Amendment Rules' is still operative and, therefore, the applicant's tenure to the post of Deputy Commissioner, Mysore cannot be curtailed by issuing the impugned order.
10. Shri Upadhyay still further submitted that in terms of the '2014 Amendment Rules', a power was conferred upon the State Government to constitute the Civil Services Board. The said power, having been once exhausted, cannot be recalled and the Government Order dated 12.03.2014 keeping the Civil Services Board in abeyance, being without authority of law, is liable to be ignored. In support of his arguments, learned counsel relied upon a judgment of the Hon'ble Supreme Court in Lachmi Narain Vs Union Of India & Ors 1976 (2) SCC 953.
11. Shri Prabhuling Navadgi, learned Advocate General, Karnataka, at the very outset while opening his arguments submitted that the applicant's transfer vide order dated 28.09.2020 has been ordered purely in administrative exigencies and the same being in public interest cannot be interfered with by this Tribunal. While referring to a judgment of the Hon'ble Supreme court in Shilpi Bose vs State of Bihar AIR 1991 SC 432, learned Advocate General submitted that the order of transfer made in public interest and for administrative reasons cannot be interfered with unless the said order is issued in violation of any mandatory statutory rules or on the ground of malafide. Since the applicant has not pleaded malafide against 9 OA.No.170/00444/2020/CAT/BANGALORE the competent authority, therefore, he has no case to contest the order of his transfer.
12. Learned Advocate General while drawing our attention towards Rule 36 of the '1977 Rules' submitted that the Chief Minister being the competent authority has rightly ordered the applicant's transfer within the domain of his power. Since the Civil Services Board was in abeyance, therefore, the competent authority was not required to take any recommendation before issuance of the applicant's transfer order. The law cannot compel the performance of an impossibility and, therefore, no fault can be found in the order impugned herein.
13. Learned Advocate General while referring to another judgment of the Hon'ble Supreme Court in State of U.P. vs Gobardhan Lal 2004 (11) SCC 402 further submitted that the transfer of an employee is not only an incident inherent in the terms of his appointment but also implicit as an essential condition of service. A government servant cannot be allowed to remain posted on a particular place as long as he requires.
14. In order to justify the Government Order dated 12.03.2014, learned Advocate General placed reliance upon the provisions of Section 21 of the General Clauses Act, 1897 (hereinafter called as the '1897 Act') and submitted that the State Government has rightly kept in abeyance the Civil Services Board.
15. Shri Uday Holla, learned Senior Advocate who represented the Respondent No. 4, submitted that there is no prayer in the Original 10 OA.No.170/00444/2020/CAT/BANGALORE Application for quashing the Government Order dated 12.03.2014 vide which the Civil Services Board was ordered to be kept in abeyance. Since the Civil Services Board is not operational in the State of Karnataka, therefore, no fault can be found with the applicant's transfer order. Shri Holla while drawing our attention towards the provisions of Section 21 of the '1897 Act' further submitted that the government was well within its power to issue the order dated 12.03.2014 to keep the Civil Services Board in abeyance. According to learned senior counsel, the competent authority has issued the applicant's transfer order purely for administrative reasons and the same cannot be interfered with by this Tribunal.
16. Learned senior counsel while referring to a judgment of the Hon'ble High Court of Karnataka in P. Vasantha Kumar, IAS Vs Union of India (Writ Petition No. 4881/2020 decided on 03.03.2020) further submitted that the directions issued by the Hon'ble Supreme Court in Subramanian's case (supra) are general in nature and, therefore, the State Government cannot be compelled to adhere with the minimum tenure of posting of an officer.
17. We have thoughtfully considered the rival contentions of learned counsels for the parties and have also perused the record.
18. Article 312 of the Indian Constitution provides that the Parliament may by law regulate the recruitment and the conditions of service of the persons appointed to the All India Services including the Indian Administrative Service, common to the Union and the States. Before even commencement of the Constitution, the Government of India issued the Indian Civil 11 OA.No.170/00444/2020/CAT/BANGALORE Administrative (Cadre) Rules and the Indian Police Service (Cadre) Rules. Although these rules, in so far as they are not inconsistent with the Constitution, are continued in force by Article 313 of the Constitution, they authorized the regulation of only such items relating to the conditions of service as had already been settled. Many matters relating to the conditions of service of such officers were only decided after the Constitution had come into force. It was felt necessary that the Parliament should provide the requisite statutory authority to enable the Government of India to carry on the day-to-day management of the two All India Services and also to take and promulgate decisions on matters relating to the recruitment and the conditions of service and the '1951 Act' was enacted by the Indian Parliament. The enactment was aimed at to regulate the recruitment and the conditions of service of persons appointed to the All India Services common to the Union and the States.
19. Section 3 (1) of the '1951 Act' makes a provision that the Central Government may, after consultation with the Governments of the States concerned, make rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Service. Section 3 (2) of the said Act further makes a provision that every rule made by the Central Government under this section and every regulation made under or in pursuance of any such rule, shall be laid, as soon as may be after such rule or regulation is made, before each House of Parliament while it is in session. While deriving power from Section 3 (1) of the '1951 Act', the Central Government in consultation with the Governments of the States concerned 12 OA.No.170/00444/2020/CAT/BANGALORE promulgated the '1954 Rules'.
20. Pursuant to Rule 4 (1) of the '1954 Rules', the Central Government in consultation with the Governments of the States concerned further promulgated the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 (hereinafter called as the '1955 Regulations')
21. Pre '2014 Amendment Rules', Rule 7 (c) (i) of the '1954 rules' made a provision that the Central Government may determine the tenure of all or any of the cadre posts specified for the States concerned in Item 1 of the Schedule to the '1955 Regulations' in consultation with the State Governments concerned. Sub Rule (c) (ii) of Rule 7 further made a provision that a cadre officer appointed to any post for which the tenure has been determined, shall hold the minimum tenure as prescribed except in the event of promotion, retirement, deputation outside the State or training exceeding two months.
22. An exception was also carved out in Rule 7 (c) (iii) stating therein that an officer may be transferred before the minimum prescribed tenure on the recommendation of a Committee on Minimum Tenure constitution of which was specified in the Schedule annexed to '1954 Rules'. A perusal of Schedule annexed to '1954 Rules' prescribed the composition of the Committee on Minimum Tenure constituted by the State Government. Clause 2 of the Schedule specified the functions of the Committee and it was stated therein that the Committee on Minimum Tenure shall examine the cases of officers who are proposed to be transferred before completion 13 OA.No.170/00444/2020/CAT/BANGALORE of minimum tenure as determined for Item 1 of the Schedule to the '1955 Regulations'. Clause 2 (c) of the Schedule stipulated that the Committee on Minimum Tenure shall recommend the names of officers to Competent Authority for transfer before completion of minimum tenure with reasons to be recorded in writing. A complete procedure was also prescribed in Clause 3 of the Schedule for making such a recommendation.
23. To deal with the case in hand it will be fruitful to refer here the provisions of Regulation (2) of the '1955 Regulations' which stipulates that the posts borne on, and the strength and composition of the cadre of the Indian Administrative Service of the various States shall be as specified in the Schedule to '1955 Regulations'. As per clause 11 of the said Schedule annexed to '1955 Regulations', a minimum tenure for a Deputy Commissioner has been prescribed as two years in the State of Karnataka.
24. It appears from the record made available to this Tribunal by the State Government that the Committee on Minimum Tenure as prescribed in the '1954 Rules' was never constituted in the State of Karnataka. Even the provisions of '1955 Regulations' fixing the tenure of the officers in the cadre of Indian Administrative Service were not being followed.
25. It appears that the similar kind of practices were taking place in other States of the country as well and, therefore, the Writ Petition (Civil) No. 82/2011 T.S.R. Subramanian vs Union of India came to be filed before the Hon'ble Supreme Court under Article 32 of the Constitution making therein the following prayer:
14 OA.No.170/00444/2020/CAT/BANGALORE
'i. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the Respondents to create an independent Civil Service Board or Commission, both at the Centre and the State based on recommendations by the Hota Committee, 2004 (para 5.09, para 5.11, Main Recommendations No. 38); the 2nd Administrative Reforms Commission, 2008 (10th Report, para 9.8); the statement adopted at the Conference of Chief Ministers on Effective and Responsive Administration, 1997;
ii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the Respondents to fix tenure for civil servants ensuring stability based on recommendations by Jha Commission 1986 (para 7.2); Central Staffing Scheme 1996 (para 17.01, para 17.02, para 17.03, para 17.12), the 2nd Administrative Reforms Commission, 2008 (10th Report, para 8.7, para 9.8, para 17.5); Hota Committee Report, 2004 (Main Recommendations No.
39);
iii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the Respondents to mandate that every civil servant formally record all such instructions/directions /orders/suggestions which he/she receives, not only from his/her administrative superiors but also from political authorities, legislators, commercial and business interests and other persons/quarters having interest, wielding influence or purporting to represent those in authority based on the principles recognized by Rule 3(3)(ii)(iii) of the All India Services Conduct Rule 1968 and as implicitly recognized by the Santhanam Committee Report, 1962 (section 6, sub-para 33 [iii]). iv. Pass any other or such further order or orders as may be deemed fit and proper in the facts and circumstances of the present case.'
26. In the said Writ Petition, the State of Karnataka was also arrayed as one of the respondents. The Writ Petition was finally allowed by the Hon'ble Supreme Court on 31.10.2013 with directions to the Centre and to the State Governments to constitute Civil Services Board with high ranking serving officers within a period of three months. A further direction was issued to issue appropriate directions to secure providing of minimum tenure to various civil servants as well. The directions as contained in paragraph 29, 30 and 31 of the said judgment are reproduced here as under: 15 OA.No.170/00444/2020/CAT/BANGALORE
'29. We, therefore, direct the Centre, State Governments and the Union Territories to constitute such Boards with high ranking serving officers, who are specialists in their respective fields, within a period of three months, if not already constituted, till the Parliament brings in a proper legislation in setting up CSB.
30. We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance.
Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritize various social and economic measures intended to implement for the poor and marginalized sections of the society.
31. We, therefore, direct the Union State Governments and Union Territories to issue appropriate directions to secure providing of minimum tenure of service to various civil servants, within a period of three months.'
27. Immediately after pronouncement of the aforesaid judgment by the Hon'ble Supreme Court, the matter was dealt with by the Government of Karnataka on 26.12.2013. A proposal was submitted to the competent authority to constitute the Civil Services Board comprising of Chief Secretary as Chairman, the Additional Chief Secretary as Member, the Principal Secretary or Secretary, Department of Personnel and Administrative Reforms as Member and the Deputy Secretary/Joint Secretary/Additional Secretary, DPAR (Services) as Convener of the said Board in respect of the officers of Indian Administrative Service. It was also proposed to extend two years' minimum tenure policy in respect of IAS officers in the State of 16 OA.No.170/00444/2020/CAT/BANGALORE Karnataka. The said proposal was approved by the competent authority on 25.01.2014.
28. Before the State Government could notify the aforesaid decision with regard to constitution of Civil Services Board and the minimum tenure policy, the Central Government while exercising its power under Section 3 (1) of the '1951 Act', in consultation with the State Governments concerned, notified the '2014 Amendment Rules' on 28.01.2014. By virtue of Rule 2 (a) of the said Amendment Rules, Rule 7 in the '1954 Rules' was substituted with the following rule:
'2. In the Indian Administrative Service (Cadre) Rules, 1954,--
(a) for rule 7, the following shall be substituted, namely:--
"7. Postings.-(1) All appointments of cadre officers shall be made on the recommendation of the Civil Services Board as specified in the Schedule annexed to these rules. (2) All appointments to cadre posts referred to in sub-rule (1) shall be made--
(a) in the case of a State Cadre, by the State Government; and
(b) in the case of a Joint Cadre, by the State Government concerned:
(3) A cadre officer, appointed to any cadre post shall hold the office for at least two years unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding two months.
(4) A cadre officer, appointed to any ex-cadre post shall hold office for such period as may be specified by the State Government for that post, unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding two months.
(5) The Central Government or the State Government as the case may be, may transfer a cadre officer before the minimum specified period on the recommendation of the Civil Services Board as specified in the Schedule annexed to these rules:17 OA.No.170/00444/2020/CAT/BANGALORE
Provided that the Competent Authority may reject the recommendation of the Civil Services Board by recording the reasons therefor.'
29. The Schedule annexed with the '2014 Amendment Rules', specified the composition of the Civil Services Board, its functions and the procedure for making recommendation to transfer an officer before the completion of specified tenure. Clause 1 of the Schedule prescribes that every State Government shall constitute a Civil Services Board comprising of (i) Chief Secretary as Chairman (ii) Senior most Additional Chief Secretary or Chairman Board of Revenue or Financial Commissioner or an officer of equivalent rank and status as a Member (iii) Principal Secretary or Secretary, Department of Personnel in the State Government as Member Secretary.
30. As per clause 2 of the Schedule, the Civil Services Board shall make recommendation for all appointments of cadre officers and it shall examine the cases of officers who are proposed to be transferred before completion of minimum tenure of service as specified under sub-rule (3) and (4) of Rule 7 of the '1954 Rules'. The Board may also consider for transfer of an officer before the tenure fixed under sub-rules (3) and (4) of Rule 7 of the '1954 Rules' based on such circumstances as it thinks fit and it will recommend the names of officers to the competent authority for transfer before completion of minimum tenure with reasons recorded in writing. A detailed procedure has also been prescribed in Clause 3 of the Schedule which stipulates that the Civil Services Board shall seek detailed justification from the administrative department of the concerned State Government for transfer of 18 OA.No.170/00444/2020/CAT/BANGALORE an officer before the specified tenure. It shall consider the report of the administrative department along with any other inputs it may have from other reliable sources; obtain the comments or views of the officer proposed to be transferred based on the circumstances presented to it in justification of the proposal and it shall not make recommendation for premature transfer of a cadre officer unless it has satisfied itself of the reasons for such premature transfer.
31. The '2014 Amendment Rules' were notified by the Central Government on 28.01.2014. The Government of Karnataka was already in the process and by that time it had taken a decision to constitute the Civil Services Board and also to prescribe a minimum tenure policy. Accordingly, Government Order No. DPAR 976 SAS 2013, Bangalore dated 31.01.2014 was issued and the Civil Services Board was constituted for the officers of the Indian Administrative Service in the State of Karnataka. The Board comprised of the Chief Secretary as Chairman, Additional Chief Secretary as Member, Principal Secretary or Secretary, Department of Personnel and Administrative Reforms as Member Secretary and Deputy Secretary/Joint Secretary/Additional Secretary, DPAR (Services) as Convener. A perusal of the Government Order dated 31.01.2014 further reveals that a minimum tenure of two years was prescribed for the officers of the Indian Administrative Service in terms of sub-rule (3) of Rule 7 as substituted by virtue of Rule 2 of the '2014 Amendment Rules'.
32. However, in a cabinet meeting held on 03.03.2014, after an informal discussion, it was decided to keep in abeyance, temporarily, the Civil 19 OA.No.170/00444/2020/CAT/BANGALORE Services Board as constituted vide Government Order dated 31.01.2014 and to continue to follow the earlier procedure. It was also decided to constitute a Cabinet Sub-Committee to suitably advise. Accordingly, a Cabinet Sub-Committee was constituted on 06.03.2014 under the Chairmanship of the Hon'ble Minister for Law and Justice, Human Rights and Parliamentary Affairs.
33. A perusal of the record as produced by the respondents reveals that while examining the issue, in the process of constitution of the Cabinet Sub- Committee, a question was also posed, as to whether the State Government is legally competent to keep the order constituting the Civil Services Board in abeyance and whether it will amount to contempt of directions issued by the Hon'ble Supreme Court.
34. Faced with the situation, the Chief Secretary ultimately referred the matter to learned Advocate General for his advice on 16.05.2014 and in turn the learned Advocate General on 07.10.2014 while tendering his advice stated that awaiting the decision of the Cabinet into the matter, a Review Petition be preferred before the Hon'ble Supreme Court immediately.
35. A period of more than 6 years has elapsed. Neither the Cabinet Sub- Committee has submitted its report nor any Review Petition has been preferred before the Hon'ble Supreme Court in Subramanian's case (supra). Even the Cabinet Sub-Committee as constituted on 06.03.2014 also stands dissolved, as pointed out by learned Advocate General during the course of hearing, with the change of political executive. In such a scenario, 20 OA.No.170/00444/2020/CAT/BANGALORE can the State Government keep the Civil Services Board in abeyance for an indefinite period which, in any case, is contrary to the directions issued by the Hon'ble Supreme Court in Subramanian's case (supra) as well as the '1954 Rules' as amended up to date pursuant to the directions of the Hon'ble Supreme Court.
36. The Civil Services Board was constituted by the State Government vide order dated 31.01.2014 and just after a period of about 3 months, the said Board was ordered to be kept in abeyance on 12.03.2014. As has already been noticed in the earlier part of this judgment, the Committee on Minimum Tenure never remained in existence even before the '2014 Amendment Rules'. The conventions which are sought to be relied upon to support the order of transfer impugned herein have not been brought on record. According to the stand maintained by the respondents, the transfer order impugned herein has been issued by the competent authority in view of Rule 36 of the '1977 Rules'.
37. In the facts and circumstances of the case, the question which arises for consideration of this Tribunal is, as to whether the State Government was competent to keep the Civil Services Board in abeyance by way of an order dated 12.03.2014 and, if it was not competent to do so, whether the competent authority could issue the order of applicant's transfer curtailing his minimum tenure of two years as prescribed in the '1955 Regulations'.
38. It has come up on record that the State Government never constituted a Committee on Minimum Tenure in terms of the unamended '1954 Rules'. It 21 OA.No.170/00444/2020/CAT/BANGALORE is only when the Hon'ble Supreme Court issued the directions to Central Government and the State Governments to constitute the Civil Services Board, the '1954 Rules' were amended and a provision for establishing a Civil Services Board was made therein. A perusal of the Notification dated 28.01.2014 vide which '2014 Amendment Rules' were notified, reveals that the amendment in the Rules were brought about in consultation with the Governments of the States concerned. The fact cannot be ignored that the State of Karnataka was also a party respondent before the Hon'ble Supreme Court in Subramanian's case (supra).
39. In view of the mandate of the Hon'ble Supreme Court as well as the '2014 Amendment Rules', the State Government constituted the Civil Services Board by way of a Government Order dated 31.01.2014. The power as conferred upon the State Government by virtue of the '2014 Amendment Rules' stood exhausted. To a pointed query posed to learned Advocate General as to whether the State Government is inclined to not to follow the dictum of the Hon'ble Supreme Court and also wish to take a departure from the '2014 Amendment Rules' which, in any case, were promulgated in consultation with all the State Governments concerned, learned Advocate General very fairly stated that it was never the intention of the State Government as the law declared by the Hon'ble Supreme Court is the law of the land and, therefore, the State Government is bound to follow the same.
40. In view of the above, we endeavoured to find out a reason behind the order dated 12.03.2014 keeping the Civil Services Board in abeyance but 22 OA.No.170/00444/2020/CAT/BANGALORE nothing tangible could be traced out from the records as produced before us by the respondent State Government. We do not think that the State Government is entitled to change the whole nature of policy as enshrined in the '2014 Amendment Rules', which are amended by the Central Government in consultation with the State Governments concerned pursuant to the directions issued by the Hon'ble Supreme Court in Subramanian's case (supra).
41. Once the '2014 Amendment Rules' became operative, any defect in its provisions cannot be removed until the rules are further amended by the Central Government in consultation with the State Governments concerned while deriving powers from section 3 (1) of the '1951 Act'. The whole exercise which has proceeded to keep the Civil Services Board in abeyance is a result of unguided power. It appears that while issuing the order dated 12.03.2014, the authorities remained oblivious about the fact that the power bestowed upon the State Government by virtue of '2014 Amendment Rules' stood exhausted when the Government Order dated 31.01.2014 was issued constituting the Civil Services Board.
42. It is a well enunciated principle of law that a person to whom power is entrusted can do nothing beyond the limits which circumscribe the power. Reference in this regard may be made to the Hon'ble Supreme Court judgment in Lachmi Narain (supra). In the case in hand, the mandate which the '2014 Amendment Rules' gave to State Government was to constitute a Civil Services Board with a discretion to a limited extent to make variations of nomenclatures of the designations of the proposed members to constitute 23 OA.No.170/00444/2020/CAT/BANGALORE the said Board. The State Government while making those little variations has already exhausted its power and constituted the Civil Services Board comprising of the Chief Secretary as Chairman, Additional Chief Secretary as Member, the Principal Secretary or Secretary, Department of Personnel and Administrative Reforms as Member Secretary and the Deputy Secretary/Joint Secretary/Additional Secretary, DPAR (Services) as Convener.
43. After issuance of the Government Order dated 31.01.2014, it became incumbent upon the competent authority to follow the tenure policy in the matter of postings and transfers of the members of the Indian Administrative Service in the State of Karnataka. The tenure of posting can be curtailed only on the recommendations of the Civil Services Board which, in any case, before making recommendation for curtailing the tenure, is bound to follow the procedure as enumerated in Clause 3 of the Schedule to '2014 Amendment Rules'.
44. The argument of Shri Uday Holla, learned senior counsel, in unison with learned Advocate General that in view of the provisions of Section 21 of '1897 Act', the State Government was competent to issue the order dated 12.03.2014 can hardly be accepted in view of the principles laid down by the Hon'ble Supreme Court in Lachmi Narain (supra).
45. During the course of hearing, on a query being posed to learned Advocate General as to point out the provision of law conferring power upon the State Government to issue an order like the order dated 12.03.2014 to 24 OA.No.170/00444/2020/CAT/BANGALORE keep the Civil Services Board in abeyance, the learned Advocate General remained unable to cite any such provision.
46. An order issued without any authority of law, in our considered view, can be termed to be invalid and ineffective right from the date of its inception and the same being non-est in the eye of law can never be acted upon.
47. A Division Bench of the Hon'ble High Court of Kerala in the matter of T. Chandran and Others Vs. Union of India and Others 2004 (5) SLR 674 while enumerating various principles to be followed in the matter of judicial review has held that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution of India or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. It has further been held that the repository of power should act within the bounds of the power delegated and should not abuse his power.
48. Admittedly, in the case in hand the power was exhausted by the State Government in terms of '2014 Amendment Rules' when the Government Order dated 31.01.2014 was issued. There was no such power in the '2014 Amendment Rules' to keep the outcome of the said order in abeyance at a subsequent point of time. The power which was conferred upon the State Government by virtue of '2014 Amendment Rules' cannot be construed to be a recurring power. In our considered view, the Government Order dated 12.03.2014 keeping the Civil Services Board in abeyance for an indefinite 25 OA.No.170/00444/2020/CAT/BANGALORE period is not only contrary to the directions given by the Hon'ble Supreme Court in Subramanian's case (supra) but it is also in defiance of a mandate given by the '2014 Amendment Rules' which, in any case, were promulgated by the Central Government in consultation with the State Governments concerned while deriving the powers form the provisions of Section 3 (1) of the '1951 Act'.
49. While highlighting the importance of the All India Services in the administrative system of the Indian democracy, Sardar Vallabhbhai Patel, a great visionary, while addressing the Constituent Assembly on 10th October, 1949 stated that the Union will go - you will not have a united India, if you do not have a good All India Service which has the independence to speak out its mind, which has a sense of security that you will stand by your word. The relevant extract is reproduced here as under:
'If you want an efficient all-India service, I advise you to allow the services to open their mouth freely. If you are a Premier it would be your duty to allow your Secretary, or Chief Secretary, or other services working under you, to express their opinion without fear or favour. But I see a tendency today that in several provinces the services are set upon and told. "No, you are servicemen, you must carry out our orders." The Union will go - you will not have a united India, if you have not a good all-India service which has the independence to speak out its mind, which has a sense of security that you will stand by your word and that after all there is the Parliament, of which we can be proud, where their rights and privileges are secure. If you do not adopt this course, then do not follow the present Constitution. Substitute something else. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx This Constitution is meant to be worked by a ring of Service which will keep the country intact. There are many impediments in this Constitution which will hamper us, but inspite of that, we have in our collective wisdom come to a decision that we shall have this model wherein the ring of Service will be such that will keep the country 26 OA.No.170/00444/2020/CAT/BANGALORE under control.' (Constituent Assembly Debates, Vol. X, Book No. 5, 10th October, 1949)
50. It appears that taking note of the worsened situation as the various State Governments failed to constitute the Committee on Minimum Tenure and also failed to ensure the minimum tenure of posting to the members of the All India services, Writ Petition (Civil) No. 82/2011 T.S.R. Subramanian vs Union of India came to be filed before the Hon'ble Supreme Court and resultant effect of the judgment in the said case is that the Central Government has come up with the '2014 Amendment Rules'.
51. We do not see any reason with the Government of Karnataka to find out the ways and means to defeat the provisions of the '2014 Amendment Rules'.
52. The argument of Shri Uday Holla, learned senior advocate, while referring to a judgment of the Hon'ble High Court of Karnataka in the matter of P. Vasantha Kumar Vs Union of India (Writ Petition No. 4881/2020 decided on 03.03.2020), that the directions issued by the Hon'ble Supreme Court in Subramanian's case (supra) are general in nature and, therefore, no fault can be found with the order dated 12.03.2014 whereby the Civil Services Board has been ordered to be kept in abeyance, cannot be countenanced as it appears that the true facts were not brought to the notice of the Hon'ble High Court by the litigating parties therein.
53. A perusal of para 8 of the judgment in P. Vasantha Kumar (supra) reveals that even the Hon'ble High Court was not apprised about the 27 OA.No.170/00444/2020/CAT/BANGALORE constitution of the Civil Services Board by the State Government vide order dated 31.01.2014.
54. Similarly, the judgment of this Tribunal in OA No. 167/2018 decided on 17.04.2018 can also not be pressed into service as recently the Hon'ble High Court of Punjab and Haryana in Ravi Prakash Gupta Vs Union of India & Ors. (Civil Writ Petition No.16460/2018 decided on 05.12.2018) while interpreting the provisions of '2014 Amendment Rules' quashed the transfer order of an officer of the Indian Administrative Service of Haryana Cadre and directed the respondents to reconsider his case in accordance with law.
55. In view of a judgment of the Hon'ble High Court of Rajasthan in Union of India & Ors. Vs Bhanwar Lal Jajoria (DB Civil Writ Petition 6520/2003 decided on 19.04.2018), the judgment of this Tribunal in OA No. 167/2018 cannot be preferred over the aforesaid judgment of the Hon'ble High Court of Punjab and Haryana in Ravi Prakash Gupta (supra).
56. In Bhanwar Lal Jajoria (supra), Jaipur Bench of this Tribunal, while deciding the Original Application, observed that the decision of this Tribunal shall have to be preferred to a decision rendered by a Division Bench of the Hon'ble High Court of Punjab and Haryana and, while negating the said observations, the Hon'ble High Court of Rajasthan arrived at a conclusion that the Tribunal is bound by the decision of the Hon'ble High Court.
57. After holding the Government Order dated 12.03.2014 as invalid right from its inception and non-est in the eye of law, we would have 28 OA.No.170/00444/2020/CAT/BANGALORE straightaway quashed the applicant's transfer order, being in violation of the provisions of the '1954 Rules' as amended up to date, but we are constrained to put a restraint by posing a question to ourselves as to whether this Tribunal can enter into the arena of the competent authority in the matter of transfer and postings of the members of the All India Services; Whether we can assume the role of Civil Services Board and can enter into an exercise as stipulated in Clause 3 of the Schedule annexed to the '2014 Amendment Rules'. We are afraid, we cannot enter into such an arena in view of the principles laid down by the Hon'ble Supreme Court through various judicial pronouncements.
58. In Shilpi Bose vs State of Bihar AIR 1991 SC 432, the Hon'ble Supreme Court has held that the court should not interfere with a transfer order which is made in public interest and for administrative reasons unless the said order is made in violation of any mandatory statutory rule or on the ground of malafide.
59. In Union of India and Ors vs S.L. Abbas 1993 SCR (3) 427 it has been held by the Hon'ble Supreme Court that an order of transfer is an incidence of service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it.
60. To the same effect, in State of U.P. vs Gobardhan Lal 2004 (11) SCC 402, the Hon'ble Supreme Court has held that the transfer of an 29 OA.No.170/00444/2020/CAT/BANGALORE employee is not only an incident inherent in the terms of his appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law of governing or conditions of service. In view of the principles laid down by the Hon'ble Supreme Court in the said report, a government servant cannot be allowed to remain posted on a particular place or position as long as he desires.
61. In State of Haryana vs. Kashmir Singh (2010) 13 SCC 306, the Hon'ble Supreme Court has further ruled that the transfer ordinarily is an incidence of service and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal.
62. Though in the case in hand, apparently, while looking at the first instance, violation of '2014 Amendment Rules' has taken place but we cannot ignore the special provisions of Rule 7 (5) of the '2014 Amendment Rules' read with Clause 3 of the Schedule annexed thereto which stipulate that the minimum tenure of posting can be curtailed on the recommendation of the Civil Services Board upon which it has been made incumbent to follow the procedure as specified therein in the Schedule. At the time when the applicant's transfer order was issued, there was no declaration available to the effect that the order dated 12.03.2014 is invalid right from its inception, therefore, the competent authority in its wisdom took a decision to transfer the applicant by curtailing his minimum tenure. Such an irregularity, in our considered view, can be cured and the ends of justice will be met if the order of applicant's transfer is revisited by the competent authority after taking recommendation from the Civil Services Board which, in any case, is bound 30 OA.No.170/00444/2020/CAT/BANGALORE to follow the procedure as prescribed in Clause 3 of the schedule annexed to '2014 Amendment Rules' before making such a recommendation.
63. In our considered opinion, we cannot enter into the question of administrative exigencies which prevailed upon the competent authority to take the decision with regard to applicant's premature transfer but still we cannot ignore the depositions made by the respondents in their additional affidavits dated 21.10.2020 and 09.12.2020 filed during pendency of the Original Application wherein apart from citing the instances of the event of Dasara Festival and the situation of COVID-19 pandemic, it has also been pointed out that the applicant has even failed to abide by the directions of the Election Commission of India whereby he was proposed to be posted as a General Observer of the Bihar Assembly General Elections.
64. In the conspectus of discussions made hereinabove, we hold that the order dated 12.03.2014 issued by the Government to keep the Civil Services Board in abeyance is invalid and ineffective since the date of its inception and being non-est in the eye of law, cannot be acted upon henceforth. Let the glory of the orders passed by the Hon'ble Supreme Court in Subramanian's case (supra) be restored and the '1954 Rules' as amended up to date be abided by the State Government.
65. Accordingly, the Original Application is disposed of with a direction to the competent authority to revisit the applicant's transfer order dated 28.09.2020 after taking recommendations from the Civil Services Board which shall follow the procedure as enumerated in the '1954 Rules' as 31 OA.No.170/00444/2020/CAT/BANGALORE amended up to date. In the facts and circumstances of the case, we further deem it appropriate to issue a direction to Civil Services Board to afford an opportunity of hearing to the applicant before making such a recommendation to the competent authority. The whole exercise shall be undertaken within a period of one month from the date of receipt of a certified copy of this order.
66. Ordered accordingly. There shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER (A) MEMBER (J)
/ksk/