Central Administrative Tribunal - Delhi
Shri R K Sharma vs Union Of India Through Its Secretary on 12 February, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.289/2013 Order reserved on 5th February 2013 Order pronounced on 12th February 2013 Honble Shri A.K. Bhardwaj, Member (J) Shri R K Sharma s/o Shri J C Tyagi aged about 55 years presently posted as ADG (Customs & Central Excise) DRI DZU, New Delhi r/o D-i/86, Rabindra Nagar New Delhi-3 .. Applicant (By Advocates: Shri Ajesh Luthra and Shri Nilansh Gaur) Versus 1. Union of India through its Secretary Department of Revenue Ministry of Finance, North Block New Delhi-1 2. Chairman Central Board of Excise & Customs Department of Revenue Ministry of Finance, North Block New Delhi-1 ..Respondents (By Advocate: Shri Rajeev Kumar) O R D E R
In the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, the applicant has questioned the Office Order No.05/2013 dated 7.1.2013 whereby the competent authority has ordered transfer and posting in the grade of Commissioner of Customs and Central Excise with immediate effect. In terms of the said order, the applicant is transferred from ADG, DRI DZU, Delhi to the Commissioner (Appeal), Kolkata Customs.
2. Shri Ajesh Luthra, learned counsel for applicant has contended:
no such administrative exigency or public interest, which could have warranted transfer of applicant in deviation of Transfer / Placement Policy of Group A Officers of Indian Revenue Service, is reflected in the impugned order of transfer, as per clause 5.5 of the transfer policy (ibid) in calculating the tenure/service of the applicant in an A station, the services rendered by him in Enforcement Directorate, FERA, Directorate of Prev. Operations, Intelligence Bureau, Finance & Revenue Secretariat, Ministry of State (Home), Ministry of Human Resource Development, CBEC, etc. should have been exempted, in terms of clause 5.3 of the policy, the maximum tenure of an officer including the rank of Commissioner at an A station should be for a period of 8 years, while in terms of clause 5.5 of the policy, the total tenure of the applicant in Delhi is only 3 and a half years, during his entire service career, the applicant has been pre-dominantly given non-sensitive assignments barring two occasions when he was given field posting, while the other officers remained in sensitive positions despite completion of their maximum tenure; and the promotion order dated 27.11.2012 (Annexure A-4) has not resulted in posting of any of the officers in the grade of Commissioner of Customs & Central Excise out of Kolkata, thus there is no occasion for the respondents to issue the impugned transfer order disregarding clause 2.0 (g) of the transfer policy in terms of which All annual transfer orders shall be normally issued by 30th April and, in any case, not later than 31st May of the year.
3. To buttress the aforementioned submissions, Shri Luthra referred to the impugned transfer order, Transfer/Placement Policy for Group A Officers of the IRS dated 5.4.2011, promotion order dated 27.11.2012 and amendment to the transfer policy issued on 12.6.2009. Relying upon the decision of this Tribunal in Y. Kurikesu v. The Sr. Supt. of Telegraph Traffic, Trivandrum Div. & others, (1994) 1 ATJ 71, he submitted that the expression public interest is not a magic word which can do service for anything in any situation.
4. In the counter reply filed on behalf of the respondents, it is pleaded that:
the statement made by the applicant that deputation to technical post in DRI and CEI shall not count towards calculation of stay at a particular station is not factually correct, it is not so that one can stay in a Group A station for a minimum period of 8 years before being transferred to other station. As per paragraph 5.3 of the Transfer / Placement Policy, the residency of 8 years is the maximum tenure prescribed in an A station, transfer of the applicant is ordered as per paragraph 2.5 of the transfer policy, keeping in view the overall human resource requirement and in the interest of work in the Customs and Central Excise Department; and as per paragraph 7.2 of the transfer policy, ordinarily, the tenure of an officer on a sensitive post shall be two to three years at one stretch. The policy does not envisage that an officer on completion of two or three years posting in a sensitive post should compulsorily be transferred to a non-sensitive post.
5. I have heard the learned counsel for the parties and perused the records.
6. Albeit it is not so argued by Shri Luthra, learned counsel for applicant during the course of hearing, in paragraph 5.1 of the OA the applicant has raised the plea that the impugned order of transfer suffers from mala fide. It is stare decisis that mala fide is easy to allege but difficult to prove.
7. As far as the allegation of mala fide made by the applicant is concerned, it is seen that he has not impleaded anyone as party to the present proceedings in his/her personal capacity. Further, there are no substantial allegations of mala fide against the authority competent to transfer the applicant. In Gujrat Electricity Board & another v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, Honble Supreme Court viewed as under:-
4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right 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 service as he refused to comply with the order of his transfer from one place to the other
8. Also in State of U.P. & others v. Gobardhan Lal, (2004) 11 SCC 402, Honble Supreme Court ruled as under:-
7. It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for 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.
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 reasons, no interference could ordinarily be made with an order of transfer.
9. As has been held by Delhi High Court in Bureau of Indian Standards Officers Association and another Vs. Bureau of India, Standards and Others (993 III AD (Delhi) 1145), the allegations of mala fides are easy to allege but difficult to prove. Relevant excerpt of the judgment read as under:
There is no doubt that the transfer is a mere incidence of service and no officer has a right to be appointed or posted at a place of his choice permanently. Petitioner no. 2 was appointed in Head Quarters at New Delhi in the year 1976, where he continued to remain till he was transferred by the impugned order dated June 1, 1993. It was specified in the appointment order dated February 9, 1976, in clause 7 that petitioner no. 2 will be required to serve anywhere in India. He transfer was on record for quite some time and it was not as a result of sudden decision on the part of the management to victimize the petitioner no. 2 for his trade union activities, as is sought to be contended by counsel for the petitioners. It is reiterated that there is no arbitrary action in transferring the petitioner, he is the only person available and all those officers who have been similarly situated have since been transferred. The respondents have accordingly contended that the recommendations made by the Transfer Committee, as on February 18, 1993 regarding transfer of petitioner No. 3 was kept in abeyance for some time at the Associations request since he is the President. However, due to shortage of manpower at Bhopal and keeping in view that there was no other officer who could be considered for transfer in terms of the agreed guidelines, the retention of petitioner no. 2 was not possible. In the circumstances, no malafide motive can be attributed to the respondents. The options for stations of transfers from Officers including petitioner No. 2 were also obtained, as is apparent from the reading of the following circular dated March 29, 1993:-
Further to PM Department circular dated 4 March 1993 inviting options for station of transfer from officers and subsequent discussions with the representatives of BISOA on the subject, it has now been decided to obtain options for transfer from those officers at headquarters who have been posted at headquarters since December 1978 or before. Accordingly, the officers listed in annexure are requested to send their options in the enclosed proforma to the undersigned at the earliest, but not later than 6 April, 1993, through their departmental heads.
Sd/-
( B.Mukherji) Director (Personnel Management)
18. There is no doubt that certain articles appeared in the daily newspaper Nav Bharat Times, which dealt with the corruption issues against some senior officers of the respondents. The said articles were written by one Shri Krishan Mohan Singh. The respondents have not denied the publication of these articles. In fact, it has not been pleaded that the petitioner No. 2 was responsible and author of the allegations, which were contained in the newspaper articles. The respondents have, however, reiterated that the allegations made are under investigation of the Central Vigilance Commission, as well as, the Authorities and suitable action will be taken in due course.
19. Reliance is placed on the judgment of the Supreme Court in E.P.Royappa v. State of Tamil Nadu and another AIR 1974 Supreme Court 555, wherein it was held that the burden of establishing mala fides is very heavy on the person, who alleges it. The allegations of mala fide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
20. In the present case, the sole ground, on which petitioners have based their case, is that newspaper reports raised corruption issues against the respondents and in view of the role, played by the Association in highlighting these issues, petitioner no.2, who is the President of petitioner no.1, was transferred to Bhopal. This was also with a view to scuttle the trade union activities of the petitioners. These circumstances do create suspicion, but suspicion cannot take the place of proof. Proof needed in the present context is always of high degree and the plea of mala fide, which has been placed before us, cannot be held to come to that level. The judgment of the Supreme Court, as referred above, has been relied upon by the Division Bench of this Court in Ghanshyam Singh v. Union of India and others 41 (1990) Delhi Law Times 96, wherein the plea of mala fide was rejected on the ground that a mere allegation that respondent no. 4 (the then Chief Minister) was actuated by improper motive, based on surmise, contained in a few Press clippings, cannot be made basis of investigation by the Court. The judgment in Express Newspapers Pvt Ltd (supra) also reiterates the proposition that vague allegations of mala fide are not enough and abuse of authority must appear to be reasonably probable.
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24. In the facts of the present case, the petitioners have not discharged the burden of proof resting on them to impugn the order on the ground of mala fide. The respondents have filed their counter affidavits reiterating that the transfer of petitioner No. 2 was routine and in accordance with the policy of transfer and there is no personal malice against him. There is no infraction of any statutory provision by transferring the President of the association from Headquarters nor the same has been pleaded. We have also perused the record and find it difficult to sustain the plea of mala fides, merely on the basis of Press reports, which do not even indicate that petitioner no.2 was the author of such reports. The high degree of proof, which is necessary to uphold such a contention, has not been placed before us by the petitioners.
10. Further in Airports Authority of India Vs. Rajeev Ratan Pandey and Others (2009 (8) SCC 337), Honble Supreme Court viewed that a bald statement in the supplementary affidavit cannot be considered as convincing and cogent material to accept the aforementioned plea. Para 6 of the judgment reads as under:-
6. The writ petition was filed by Respondent 1 on 1-6-2009 which contains no allegation that the transfer order has been issued maliciously. For the first time in a supplementary affidavit filed on 3.7.2009, the allegations of mala fides have been made by respondent 1. Prima facie, we have no doubt that the allegations of mala fides are afterthought. Moreover, except the bald statement in the supplementary affidavit, there is no convincing and cogent material placed by Respondent 1 in proof thereof. Thus finding no substance in the plea of mala fide raised by the applicant, I reject the same.
11. However, it is seen that in terms of clause 2.0 (g) of the Transfer/ Placement Policy for Group A officers of the IRS, All annual transfer orders shall be normally issued by 30th April and, in any case, not later than 31st May of the year. In the present case, the impugned order is issued in the month of January. According to the applicant, in transferring him to Commissioner (Appeal), Kolkata Customs, the respondents disregarded clauses 2.0 (g), 5.3 and 5.5 of the transfer policy (ibid). In paragraph 4.2 (C) of the OA, he has made elaborate allegation of violation of policy. Such allegation is also reiterated by him in paragraph 5.4 of the OA. In terms of amendment to transfer policy issued on 12.6.2009, the total tenure of an officer in an A station during his entire service upto and including the rank of Commissioner has been increased from 6 years to 8 years and the overall cap/ceiling of 22 years on total tenure of an officer in all A stations (combined) during his said service (including all the exempted position as also the tenure of Central deputation to other Ministries/ Departments) has been removed. For easy reference, clauses (a) & (b) of the aforesaid amendment letter are reproduced hereinbelow:-
a. The total tenure of an officer in an A station, during his entire tenure upto and including the rank of Commissioner, has been increased from 6 years to 8 years (Para-5.3 of the Policy).
b. The overall cap/ceiling of 22 years on total tenure of an officer in all A stations (combined) during his entire tenure upto and including the rank of Commissioner (including all the exempted position as also the tenure of Central Deputation to other Ministries/ Departments) has been removed (Para-5.6 of the Policy).
12. In reply to paragraph 4.2 (A) to (C) of the OA, the respondents have tried to explain that the tenure of 8 years in an A station is not minimum but maximum tenure. However, they have not put forth any circumstances, which warranted transfer of applicant in terms of clause 2.5 of the transfer policy which reads as under:-
2.5 Notwithstanding anything contained in the Transfer Policy, Government may, if necessary in public interest or in an administrative exigency, transfer or post any officer to any station or post
13. Learned counsel for respondents produced copy of order dated 30.1.2013 whereby the representation made by the applicant regarding his transfer to the post of Commissioner (Appeal), Kolkata Customs is rejected. In the said order also, the respondents have tried to justify the impugned transfer order on the basis of the provisions of paragraph 2.5 of the transfer policy, i.e., Notwithstanding anything contained in the Transfer Policy, Government may, if necessary in public interest or in an administrative exigency, transfer or post any officer to any station or post. It is settled position of law that to serve the public interest or in an administrative exigency, an officer holding transferable post can be transferred to any station or post and no reasons are required to be recorded for issuance of such order. However, as has been held by the Division Bench of this Tribunal in Amit Sahay v. State of Assam & others, 2003 (1) SLJ 152 (CAT), a policy formulated to regulate the transfer can be departed only for good and weighty reason. Said judgment was followed by this Tribunal in O.A.No.3214/2012 decided on 29.10.2012. Relevant excerpt of the judgment in the aforesaid case reads as under:-
8. As alluded earlier the applicant took over charge of the post of Divisional Forest Officer, Aie-Valley Division only on 4.7.2001. Hardly four months after, the impugned order of transfer dated 20.11.2001 was issued scuttling the tenure of the applicant. It is the State Government which has laid down its policy fixing a normal tenure of three years. Mr Uzir submitted that it was only a guideline and not a statutory instrument. Admittedly, the rules contain a mandatory flavour. Executive policies are meant for guidance. Guidance are also meant to be obeyed. Such policy guidelines generated expectation conferring some benefits. A Government servant legitimately expects that those policies are to be followed. The rule of legitimate expectation is founded on basic principles of justice and fair play. Legitimate expectations are not to be readily thwarted. The safeguard of legitimate expectation has its root in the constitutional principle of rule and law that calls for legality, regularity, predictability and certainty in the Government dealings. The expectation cannot endure for all times. It can, of course be revoked cither by express or implied representation. It can also be superseded. We were not made aware that the policy of tenure positing had ever been supcrceded. A policy formulated can be departed from, but there must be some good and weighty reasons. No justifiable reasons are ascribed as to why in this fashion the applicant's tenure of posting at Aie-Valley Division had to be brought to an end abruptly and despatch him to a non descript post four months after his assignment.
9. Mrs M. Das, learned Government Advocate, Assam appearing on behalf of respondent Nos. 1 and 2 promptly referred to the orders by the Governor dated 20.11.2001 mentioning that the transfer was made in the interest of public service. Mr. Uzir added that transfer is an incident and condition of service and such orders are passed in the public interest and efficiency of public administration. As pointed out earlier, there is no dispute on the principle of transfer. No Government servant or employee has a legal right for being posted in a particular place. Transfer of a public servant made on administrative ground or in public interest is not to be interfered with unless there are strong and pressing ground rendering the transfer order illegal on the violation of statutory rules or on the ground of malafides. We have already discussed the matter in the preceding paragraphs and reached the conclusion that the transfer order was made contrary to the statutory provisions. However, to consider the plea of the respondents that the transfer was made in public interest, we called for the records. On perusal of the records it transpired that the Hon'ble Minister, Forests/HAD etc. sent the Memo No. M/HAD/F/M/19/2001 dated 16.10.2001 addressed to the Secretary, Forests. By the said communication the Hon'ble Minister issued the following instruction.
14. Also in Y. Kurikesus case (supra), this Tribunal viewed that the expression public interest is not a magic word which can do service for anything in any situation. Paragraph 6 of the said judgment reads as under:-
6. Be that as it may, since applicant has raised his grievances in Annexure. VIII before the third respondent, Director General. I am of opinion that the Director General should consider the matter instead of this Tribunal dealing with it. He will specifically examine, (a) whether any public interest supports the order of transfer, (b) whether there was discriminatory treatment between koshi and the applicant, and (c) whether any known or justifiable principle motivated the transfer. He will also impress the need to act without arbitrariness on his subordinate officials even in routine administrative matters. The interim order of stay granted by a Bench of this Tribunal on 18.3.1993 will ensure of the benefit of applicant, till a final decision is taken by the third respondent, Director General, on Annexure. VIII.
15. Further in K.P. Prasad v. Union of India & others, 2004 (3) ATJ 97, this Tribunal while dealing with the legality, propriety and correctness of the impugned order in the said case has held as under:-
8.. But from the materials available on record can it be held that the transfer was to meet the exigencies of service? I requested the learned counsel for the official respondents to show from the pleadings and materials on record as to what is the administrative exigency that necessitated the transfer of the applicant. The counsel first stated that Thiruvanathapuram Doordarshan Kendra does not have a post to hold the applicant and secondly he stated that the service of the applicant at Silchar is urgently needed to meet the administrative exigencies. However, the allegation in the application that there are six sanctioned posts is not disputed, if, Thiruvananthapuram Doordarshan Kendra need only three Film/ Video Editors, the excess sanctioned posts would have been abolished or shifted elsewhere.. From what is stated above it is clear that the official respondents have not been able to show that there has been any administrative exigency in transferring the applicant or that the decision to transfer the applicant has been taken in public interest after application of mind to all the relevant facts.
16. Also in Dr. Ravi Shankar v. Union of India & others, 2005 (1) ATJ 104, this Tribunal has held as under:-
9.. Non disclosure of the reason is a fundamental defect which cannot be supplemented by fresh reasons in the shape of Affidavits. We get support of our view from the decision of the Honble Supreme Court in the case of Mohinder Singh (Supra) wherein it has been laid that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned in that order. Relieving of the applicant alone whereas the transfer order was with reference to two persons is nothing but the discrimination against the applicant. The respondents have not been able to demonstrate as to why the other official namely Shri Pandey was retained at Lucknow and the applicant was relieved and asked to join at New Delhi. The discrimination is writ large on the face of record and sufficiently proved that extraneous considerations have been taken into account in relieving him alone.
17. Also in Bashisht Narain Singh v. Union of India & others (O.A.No.362/2012) decided on 10.1.2013 relied upon by the learned counsel for respondents, this Tribunal ordered as under:-
12. Having regard to the discussion made hereinabove and also keeping in view the preposition of law laid down by the Honble Apex Court as discussed hereinabove, this Tribunal finds itself handicapped in interfering with the impugned transfer order. However, in furtherance of the transfer order, after joining at the place of posting, the applicant may make a representation before the authorities concerned and it is provided that if such a representation is made, the same shall be disposed of expeditiously say within a fortnight from the date it is submitted, in accordance with law by means of a speaking and reasoned order. With these observations, O.A. is disposed of. No order as to costs.
18. In view of the aforementioned, the OA is disposed of with direction to the respondents to pass fresh order in the representation dated 8.1.2013 made by the applicant recording weighty reasons for departing from clauses 5.5 and 5.6 of the aforesaid transfer policy, unless the reasons for transfer fall in exceptions enumerated in Section 8 of Right to Information Act, 2005. Needful may be done within a period of four weeks from the date of receipt of a copy of this order. Till then, the impugned transfer order, qua the applicant, may not be given effect to by the respondents. No costs.
( A.K. Bhardwaj ) Member (J) /sunil/