Central Administrative Tribunal - Delhi
Vijay Pratap Sharma vs Union Of India Through on 5 March, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.4417/2014
Order reserved on: 26.02.2015
Order pronounced on: 05.03.2015
Honble Mr. G.George Paracken, Member (J)
Vijay Pratap Sharma,
S/o Shri I.P. Sharma
R/o D1/013, Satya Marg,
Chankyapuri, New Delhi-110021. -Applicant
(By Advocate: Shri R.K. Kapoor)
Versus
1. Union of India through
Secretary, DoPT,
North Block, New Delhi.
2. The Secretary
Department of Electronics and Information
Technology, Electronics Niketan,
6, CGO Complex, New Delhi.
3. Dr. Ajay Kumar
Director General
National Informatics Centre
Department of Electronics and Information
Technology, A-Block,
CGO Complex, Lodhi Road,
New Delhi. -Respondents
(By Advocate: Shri Rajeev Kumar)
O R D E R
The grievance of the applicant is against the Office Order No.17(1)/2014-Pers dated 17.11.2014 (Annexure A-1) posting him at NIC Cell, Department of Skill Development & Entrepreneurship with the further direction that he will report to Shri Ramesh Singh, Scientist-F. He is also aggrieved by the order of the same date, giving the responsibilities as Head of Group (HOG) in respect of NIC, Training Division held by him so far to Smt. Junu Rani Das Kailay, Scientist-G. By the same order, the respondents have directed that Dr. V. Sivaramakrishnaiah, Scientist-F will function as Head of Division in respect of Training Division, Officers and staff working in Training Division will report to him and the Dr. V. Sivaramakrishnaiah will report to Smt. Kailay.
2. The facts as stated by the applicant are that he has been working as Scientist E with the NIC (Training) Headquarter and holding the post of HOD (Training) NIC. He has stated that even though he became eligible for promotion from Scientist Grade B to C on 01.07.1998 and from Scientist Grade C to D on 01.01.1999 and from Scientist Grade D to E on 01.07.2007, all those promotions were given to him after much delay. He again became eligible for promotion from Scientist Grade E to F on 01.07.2012. As the respondents did not grant him promotion to that grade at the right time, he had earlier approached this Tribunal vide OA No.3789/2014 and this Tribunal vide its order dated 28.10.2014 directed the respondents to antedate his promotions. Thus, he became entitled for promotion from Scientist E to Scientist F from 01.07.2012. However, without complying with the aforesaid directions, the Respondent No.3 Dr. Ajay Kumar, JS & DG (NIC) transferred him from the post of HOD (Training), NIC Hqrs. to NIC Cell outside NIC Hqrs., as a punishment for approaching this Tribunal vide the aforesaid order.
3. Further, according to the applicant while he has been working in NIC as HOD (Training) in NIC Hqrs., the respondents have issued an order dated 17.11.2014 transferring him from NIC Cell outside to NIC Hqrs. and posted another person Shri CSR Krishnaiah as HOD (Training) in his place besides one Mrs. JRD Kailay as HOG (Training). According to the applicant, the aforesaid orders are in violation of the respondents OM dated 20.02.2014, according to which, it is only the Committee to recommend the transfer/posting of officers/officials of S&T cadre at the level of Scientist G & below (upto Sc. D) comprises of (i) Addl. Secretary, Deity, ii) Jt. Secretary (Pers.) and (iii) One or other GEs to be nominated by Secretary and the competent authority to accept the recommendation is the Secretary, Department of Electronics and Information Technology. Therefore, the impugned orders dated 17.11.2014 passed by the Respondent No.3 Dr. Ajay Kumar, DG (NIC) is without any authority. He has also stated that the aforesaid order is quite vindictive as he has been a whistleblower in the department and he had brought various financial and other irregularities being committed by the various officers in the department to the higher authorities. In this regard he has stated that vide order dated 29.05.2014, he was directed to function as HOG in respect of Training Division, NICHQ, in addition to his existing responsibilities. On that day itself, he made a representation to the Director General (NIC) regarding various harassments meted out to him and also regarding denial of his rightful claim in placing his name at the appropriate place in the Select List of Technical Director Scientist (E) as on 29.07.2008. The Director General (NIC) Hqrs considered his representation and in his letter dated 30.05.2014 to the Secretary, Departmental of Electronics and Information Technology stated that he was satisfied that serious procedural irregularities have been committed and since the applicant has been selected as Technical Director (Scientist E) w.e.f. 01.06.2010, his name should have been placed in the Select List of Technical Director (Scientist E) as on 29.07.2008. The DG(NIC) has also requested the Secretary, Department of Electronics and Information Technology that the aforesaid long pending request of the applicant shall be redressed by ordering for inclusion of his name in the Select List of Technical Director (Scientist E) as on 29.07.2008 with the approval of the Minister concerned. Again, the applicant, vide his letter dated 25.07.2014 wrote to the Respondent No.3 pointing out various serious irregularities by Shri H.M. Reddy, AFA (NIC) with the help of DD/IFS (N.S. Rawat) involving hundreds of crores by giving illegal, invalid financial concurrence in violation of MITs Letter No. M-11019/1/99-MS(O&M) dated 20.07.2001. On 31.08.2014, applicant made another representation to the Respondent No.3 regarding attempts for misuse of huge Training funds, allocated under New Training Policy of Govt. of India, by planting low level private vendors in place of Govt. funded organization of high international repute namely, IIM and IITs. Again on 10.10.2014, he made a representation to the Respondent No.3 regarding illegal postings/transfers in violation of the aforesaid OM dated 20.02.2014 of the Department of Electronics & Information Technology.
4. The applicant has also stated that on receipt of the impugned transfer orders dated 17.11.2014, he made a representation on the same date to the Secretary, Department of Electronics & Information Technology stating that the said orders were illegal and malafide. He has also stated that it was issued without any authority by the Respondent No.3 as the OM dated 20.02.2014 was issued by the Department of Electronics & Information Technology in compliance of the Supreme Courts judgment dated 31.10.2013 in WP (Civil) No.82/2011. Again, he has sent a reminder to the Secretary, Department of Electronics & Information Technology on 24.11.2014. As no action was taken on those representations, he has filed this OA seeking a direction to quash and set aside both the impugned orders dated 17.11.2014.
5. Learned counsel for the applicant has also relied upon the judgment of the Honble Supreme Court dated 31.10.2013 in the case of T.S.R Subramanian & Ors. vs. Union of India & Ors. AIR 2014 SC 263. It is in pursuance to the aforesaid directions that the respondents have issued an Office Memorandum dated 20.02.2014 regarding constitution of Committee for recommending posting and transfer of officers/officials of the Department of Electronics & Information Technology. Therefore, any transfer/posting in violation of the aforesaid order shall be held to be illegal and non-existence. He has also stated that no tenure for NIC Scientists have been fixed by the respondents so far and at present NIC Scientists are allowed to remain on a particular post for decades or some times during the whole of their career as the same post held by them are upgraded under Flexible Complementing Scheme (FCS). However, at the whims and fancies of the higher authorities, transfers and postings are made even in the slightest displeasure of the DG(NIC).
6. Learned counsel for the applicant also pointed out that in terms of the aforesaid impugned transfer order, he has required to report of an officer who is Scientist-F whereas earlier he was reporting to Shri H.P. Sharma, who was Scientist-G and HOG (Training). Hence it is a clear downgrading of his status and it is in violation of the principles of natural justice and fair play. He has also stated that the impugned order is a reiteration for the earlier Original Application filed before this Tribunal for backdating his promotion/seniority. Again, he has stated that while he being an officer of impeccable integrity was transferred from the post of HOD (Training), he brought back Ms. JRD Kailay, DDG or HOG (Training) although she was removed from the post of HOG (Training) earlier as he was involved in creation of farse SFC of Rs. 99 crores as per farse skill development plan which was rejected by Planning Commission. By the aforesaid order, the Respondent No.3 has also brought back Mr. VSR Krishnaiah as HOG (Training), who was also removed from the said post just a year back as he was responsible for stalling ongoing MDPs at Govt. funded Institute of high repute IIM Lucknow.
7. The respondents have filed their reply stating that the Director General is the administrative Head of NIC and he discharges both financial and administrative responsibilities within the ambit of the delegated powers. At NIC Headquarters, a large number of Application Divisions exist which provide total Informatics support to the Ministries and Departments of the Central Government. NIC Computer Cells are located in almost all the Ministries, Bhawans of the Central Government. The promotions of the S&T officers are governed by the FCS. They have also stated that NIC is under the Department of Electronics & Information Technology and it has got its own administrative set up. They have also stated that OM dated 20.02.2014 has been issued by the Department of Electronics & Information Technology and it is applicable only to their employees and not to the officials of NIC because NIC has got its own set up and have DG, who is Head of Department. They have also stated that postings and transfers are made by the competent authority taking into consideration the administrative exigencies and necessities in the department.
8. As far as the applicant is concerned, he is a Group-A/Class I Officer and as part of the service condition, he is liable to be transferred anywhere in India. A new Department of Skill Development and Entrepreneurship has been formed by the Government of India in 2014. The respondent being a Scientific and Technical Organization, is supporting the Government at Central and State level in implementing of Information Technology in the process of governance. Further according to them, in a meeting with the respondent department officials, the officials of the department of Skill Development have strongly desired to position highly skilled and relatively young IT team. Accordingly, a new set up was needed to be established in the department of Skill Development. Therefore, the applicant and one Scientific Officer/Engineer-SB had been posted to the newly created department. As the applicant had relevant experience of training and skill development working with NIC Training Division, he is considered to be able to meet the demands of well planned ICT design for Department of Skill Development and entrepreneurship. They have also stated that the transfer of the applicant is from one Division to another Division within New Delhi and it has been issued with the approval of the Competent Authority. It was done in public interest and in administrative exigencies of service. They have also denied any malafide or violation of any statutory rules while transferring the applicant. As a result of the posting order neither his status nor his salary has been affected and, therefore, there is no valid reason for challenging the impugned order.
9. Learned counsel for the respondents has also relied upon the judgment of the Apex Court in the case of State Bank of India vs. Anjan Sanyal & Ors. 2001 (3) Supreme 436 wherein it has been held that an order of transfer of an employee is a part of service conditions and such order of transfer is not required to be interfered with, lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court find that either the order of malafide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order. They have also relied upon the judgment of the Apex Court in the case of State of Madhya Pradesh and Others vs. S.S. Kourav & Ors. JT 1995 (2) SC 498, wherein it has been held that the Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the court 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 malafide or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
10. I have heard Shri R.K. Kapoor, learned counsel for the applicant and Shri Rajeev Kumar, learned counsel for the respondents. I have also perused the departmental file made available by the learned counsel for the respondents. It is seen that the prayer of the applicant in this OA is to pass a direction quashing both the illegal, malafide and unauthorized transfer/posting orders- 17(1)/2014-Pers dated 17.11.2014 & 1(1)/2014-Pers dated 17.11.14 where the said orders-one transferring the applicant from HOD (Training), NIC Headquarters to NIC Cell outside NIC Headquarters & the other one nominating another person VSR Krishnaiah as HOD (Training) & Mrs. JRD Kailay as HOG (Training) being in contravention of DeitYs OM dated 20.02.2014 (issued in compliance to the Honble Supreme Courts judgment dated 31.10.2013). There was also an interim prayer to stay those orders. This Tribunal issued notice on both the main prayer and the interim prayer on 12.12.2014. Notice on interim prayer was issued returnable on 19.12.2014. Thereafter, at the request of the respondents, the case was adjourned to 22.12.2014, 24.12.2014, 09.01.2015, 13.01.2015 and 22.01.2015. But the respondents purposely did not file any reply. Therefore, this Tribunal heard the parties on interim relief and stayed the impugned orders on 22.01.2015. The applicant has made the Union of India through its Secretary, Department of Personnel & Training, the Secretary, Department of Electronics and Information Technology and Dr. Ajay Kumar, Director General, National Informatics Centre as the respondents. The main contention of the applicant in this OA is that the impugned orders of his transfer and nomination of other officers Shri VSR Krishnaiah and Mrs. Junu Rani Das Kailay as HOG (Training) and HOD (Training) respectively was due to the personal prejudices of the respondent Dr. Ajay Kumar. Those orders were passed on the direction of Dr. Ajay Kumar in his capacity as Director General, NIC. But the reply affidavit was filed only by Respondent No. 3 through Shri Gorakh Nath Kalia, Joint Director, National Informatics Centre working under Dr. Ajay Kumar, Director General, National Informatics Centre. The said deponent, of course, supported the action taken by the respondent Dr. Ajay Kumar. His contention is that the Respondent-Dr. Ajay Kumar being the administrative head of NIC, he has both the administrative and financial powers and the applicant was transferred under his direction in the public interest and in the exigencies of service. His further contention is that the applicant was found to be most suited for the post to which he has now been transferred. In my considered view such am averment on the part of the respondent is quite deceptive. The applicant was admittedly holding the post of Scientist E with the NIC (Training) Headquarter and serving as the HOD (Training) NIC. Now he has been transferred and posted outside NIC Hqrs after posting another officer in his place. Of course, transfers and postings of officers are incidents in service and when they are made in the public interest and in the exigencies of service, the Courts and Tribunals have no role to interfere in them. But if there is malafide and violations of the rules/instructions with regard to such transfer, the Court would look into them. In this case, the respondents have not denied that transfer and postings of Scientist are governed by the provisions contained in OM dated 20.02.2014, according to which, only the competent Committee can recommend the transfer/posting of officers/officials of S&T cadre at the level of Scientist G & below (upto Sc. D). The said Committee comprises of (i) Addl. Secretary, Deity, ii) Jt. Secretary (Pers.) and (iii) One or other GEs to be nominated by Secretary and the competent authority to accept the recommendation is the Secretary, Department of Electronics and Information Technology. But the impugned orders are issued on behalf of the Director General, NIC. It is also noticed that the representation made by the applicant to the Respondent No.2 has not been even considered. It has also not filed any reply in this Original Application even after repeated opportunities granted to it.
11. I, in the above facts and circumstances of the case, allow this O.A. and hold that the impugned orders at Annexures A-1 & A-2 dated 17.11.2014 are illegal as they are issued without proper authority. Hence, they are quashed and set aside. Consequently, the Respondent No.3 shall restore the position held by the applicant immediately by passing appropriate order. There shall be no order as to costs.
(G. George Paracken) Member (J) cc.