Central Administrative Tribunal - Gauhati
Dr. Binoy Krishna Mandal vs Union Of India (Uoi) And Ors. on 10 October, 2001
Equivalent citations: 2003(1)SLJ25(CAT)
JUDGMENT
D.N. Chowdhury, J, (V.C)
1. The legitimacy of the order of transfer and posting of the applicant from Indian Council of Agricultural Research Complex Headquarters, Umiam to Indian Council of Agricultural Research Complex, Tripura Centre, Lembucherra vide order dated 29.6.2001 is the subject matter of the controversy that requires adjudication. A thumb-nail sketch of the basic facts relevant for the purpose of adjudication are outlined hereinbelow:
The applicant at the relevant time was holding the post of Principal Scientist (Fish and Fishery Science) in the Indian Council of Agricultural Research, Research Complex for NEH Region, Umiam, Meghalaya (hereinafter referred to as ICAR).
2. The ICAR Research Complex for NEH Region was established in the year 1975 with a view to aid and assist the agricultural development in the NEH Region of the country. It is the pioneering institute of its kind set up by ICAR that emcompasses all the disciplines of agriculture, horticulture, animal sciences, agricultural, engineering, agroforestry and fishery to cater to the research needs to the tribal areas of the NEH Region including Sikkim. The headquarters of the institute is located in Meghalaya (Umiam in Barapani), while its regional centres are located at Basar (Arunachal Pradesh), Imphal (Manipur), Kolasib (Mizoram), Jharnapani (Nagaland), Lembucherra (Tripura) and Gangtok (Sikkim).
3. While the applicant was serving as Principal Scientist (Fish and Fishery Science), the impugned order dated 29.6.2001 was passed transferring and posting the applicant from the Complex Headquarters, Umaim to the ICAR, Tripura Centre, Lembucherra with immediate effect.
The full test of the aforementioned order is reproduced below :
"No. RC(P) 61/76 Dated Umaim. the 29th June, 2001.
ORDER In the interest of Public Service and in pursuance of Concils letter DO/PS/ DDG/NRM/2001-456 dated 21.6.2001, Dr. B.K.Mandal,Principal Scientist (Fish and Fishery Science), is hereby posted of transferred from this Complex Hqrs., Umaim to ICAR Research Complex for NEH Region, Tripura Centre, Lembucherra, West Tripura.
He is also stand relieved from his duties with effect from 30.6.2001 (A.N.), so as to enable him to join at his new place of posting.
T.A./D.A. and Joining time is admissible to him as per rules."
The above order is assailed in this proceeding as arbitrary, discriminatory and unlawful.
4. The respondents contested the application and submitted their written statement denying and disputing the claim of the applicant. In answer to the plea raised by the applicant that the applicant was transferred to a place where there was no such post known as Principal Scientist, the respondents stated that the applicant was transferred to Lembucherra along with the post of Principal Scientist. It was also cotended that the post of Joint Director is a post of Research Management position and the post of Principal Scientist is a post subordinate to the Joint Director and that under those circumstances there was no illegality in posting the applicant at Lembucherra. The respondents also stated that his substitute Dr. B.K. Mahapatra, Senior Scientist assumed the charge of In-charge Fisheries Division on 30.6.2001. The respondents in the written statement also mentioned that the transfer order dated 29.6.2001 was issued pursuant to the letter dated 21.6.2001 issued by the Deputy Director General, ICAR. By the said D.O. letter dated 21.6.2001 the respondent No. 3 was asked to post the applicant at ICAR, Tripura Centre because his services were required there to serve the public interest. In the written statement the respondent No. 3 also mentioned that the minutes of the visit of the Hon'ble Chief Minister of Tripura to ICAR, Tripura Centre on 11.1.2001 as well as the letter dated 26.3.2001 issued by the Chief Secretary, Tripura to the Commissioner and Secretary, Fishery. It was in the above context the Chief Secretary, Tripura sent a D.O. letter dated 13.6.2001 to the respondent No. 2 with a request to post a Scientist of Fisheries Discipline in the Centre immediately to take up study on various aspects concerning development of Fisheries in the State. It was pursuant to the letter dated 13.6.2001 that the Office of the respondent No. 2 wrote the D.O. letter dated 21.6,2001, pursuant to which the impugned transfer order was issued.
5. The legitimacy of the action of the respondents is the key issue requiring adjudication in this proceeding. Mr. B.K. Sharma, learned Sr. Counsel, assisted by Mr. S. Sarma, learned Advocate, contended that the order of transfer was passed patently in contravention of the Agricultural Scientific Service Rules and more particularly the transfer policy engrafted in Chapter 5 of Rule 20 of the Rules. The learned Sr. Counsel submitted that the rules and the policies of the ICAR are equally binding on the respondents. As per Clause 3 of the Transfer Policy to Scientists over 55 years of age was not to be disturbed from the existing place of their work without their consent as far as possible. Referring to the rules, the learned Sr. Counsel pointed out that the respondents fell into error in transferring the applicant unilaterally without taking him into confidence. The normal rule is that an officer above 50 years of age was not to be transferred and in the instant case the respondents failed to assign any reason, not to speak of good reason, for transferring the applicant unilaterally, who, admittedly, is 57 years of age.
6. Mr K.N. Choudhury, learned Sr. Counsel, assisted by Mr B.C. Das, learned Advocate, appearing of behalf of the respondents stated that as per the policy a Scientist over 55 years of age was not to be disturbed as far as possible. But, these are only guidelines which does not have any statutory force. It does not confer any right on the ICAR employee to be stationed in a particular place. The transfer was made in the public interest and public interest is to outweigh the private interest.
7. Mr B.K. Sharma, learned Sr. Counsel further contended that the impugned order of transfer is nothing but a purported order that was passed in a most reckless and arbitrary fashion. Pointing out to the communication between the Government of Tripura vis-a-vis the ICAR leading to the passing of the order of transfer, the learned Sr. Counsel for the applicant submitted that the impugned order was passed in an illegal fashion and extraneous consideration overlooking the relevant consideration.
8. Countering the arguments of Mr B.K. Sharma, Mr K.N. Choudhury, learned Sr. Counsel for the respondents, submitted that what is concerned in judicial review is the decision making process and not the merits of the decision. Transfer is a condition of service. The ICAR on assessment of the relevant facts thought it fit to transfer and post the applicant at Lembucherra in Tripura to serve the public interest and the decision of the ICAR is not subject to appeal. A proceeding under Section 19 of the Administrative Tribunals Act, 1985 is only confined to judicial review concerning the legality of the decision making process. Since there is no contravention of the statutory rules, nor there is any infirmity in the decision making process there is no scope from interference by the Tribunal in an application under Section 19. Mr B.C. Das, learned Counsel for the respondents, supplementing the arguments of Mr K.N. Choudhury, learned Sr. Counsel, further submitted that the decision that was taken by the respondents to transfer and post the applicant at Lembucherra was done in the public interest only with a view to provide prompt relief in the Tripura Centre, one of the backward sectors of the North Eastern Region.
9. To assess the relevant aspects of the matter it would be pertinent to refer to the events relied upon by the respondents for transferring the applicant to Lembucherra from the Headquarters. The respondents in the written statement referred to the visit of the Hon'ble Chief Minister of Tripura to ICAR. Tripura Centre on 11.1.2001. The minutes of the meeting sent by the Joint Director to the Director, mentioned the concerns expressed by the Chief Minister about the research achievements of different experiments and their applicability to the farmers of Tripura. In the minutes there was an incidental reference of the Secretary's (Fisheries) observations of the importance of fisheries department with reference to Tripura where enough area under water bodies was available, but production of table fish was quite low and he emphasized the need for the strengthening of the fishery discipline at the Centre. The Secretary desired that the ICAR Centre would identify better breeds of fish for the State and also identify the endangered species of fishes and their reintroduction from the other parts of the country. The Joint Director, ICAR clarified the position and stated that the ICAR was working on the identification of endangered species and their reintroduction from other parts of the country and collaboration for the introduction and evaluation of new and better breeds of fishes shall be sought from the other ICAR institutes. After the aforementioned visit of the Chief Minister of Tripura, the Government of Tripura through the Chief Secretary issued a communication to the Commissioner, Agriculture, Secretary, ARDD, Secretary, Fisheries vide communication dated 26.3.2001. The full text of the same is reproduced below :
"The following issues came up for informal discussion in the Council of Ministers on 26 March 2001 on which action may be taken by the concerned Secretaries immediately :
"Arrangement for coordination between ICAR and State Government Departments on regular basis and taking help of ICA in integrated area based projects. Chief Minister and concerned Ministers to hold meeting with the ICAR and concerned Departmental officers. Letter to be sent to Government of India from the Chief Secretary and the Chief Minister for filing up vacant posts in ICAR to be put up."
The ICAR also referred to the communication sent by the Chief Secretary, Government of Tripura to the Director General, ICAR and Secretary to the Government of India requesting the respondent No. 2 to focus attention on its staffing and resource allocation vis-a-vis the State's economic development. The above communication was sent on 13.6.2001 which is reproduced below:
"Dear Shri Paroda, There is a unit of ICAR in Tripura. The State Government feels that the ICAR unit in Tripura needs to play a far more important and bigger role in the development of agriculture, horticulture, fisheries, animal husbandry, etc., than it does now.
2. It is understood that the ICAR unit does not have adequate staff to undertake this task. For a State like Tripura, with its economy totally dependent on the Primary Sector and which does not have any Agricultural University, the ICAR unit needs to be properly equipped to help the State and its farmers. This is so in respect of fisheries and animal husbandry also. The Fisheries Department of the State Government has a specifically requested that at least 4(four) Scientists should be posted in the ICAR unit and ii should take up study of the following topics:
"Study on genetical degradation of fishes 'Artificial propagation of threatened specials of fishes 'Survey of. Aquatic flora and fauna 'Study on Soil and water fertility for enhancing fish production Right now there is only one Fishery Scientist available in the ICA unit.
3. I would request you to kindly get an in-depth review carried out of the activities of the ICAR unit in Tripura, its staffing and resource allocation in the context of the importance this unit has in the State's economic development....."
On receipt of the letter dated 13.6.2001 the Deputy Director General directed the ICAR, NEH Region to post the applicant, Dr B.K. Manda, Principal Scientist with immediate effect. The said letter is reproduced below :
"My dear Dr. Verma, Kindly find enclosed a copy of D.O. leter received from the Chief Secretary, Govt. of Tripura, Agartala for providing some relief to the State in terms of manpower. The State Govt. is specifically interested in the initiative related with fisheries where they have lot of potentials. You may, therefore, post Dr . Mondal, Pri. Scientist (Fisheries) with immediate effect so as to provide some relief to the region. These kind of requests are being sent by the State repeatedly and at least above said proposal will provide a prompt minimum relief......"
10. I have heard the learned Counsel for the parties at length. The respondents were earlier ordered to produce the connected records and hearing of the case was adjourned on three occasions for production of the records. However, no records were made available, Mr B.C. Das, learned Counsel for the respondents, on the last day of hearing produced a photocopy of the letter dated 13.6.2001, which was already annexed to the written statement as Annexure R-4. No other documents could be produced by the respondents. It is, no doubt, true that posting and transfer is within the domain of the employer. For managing the administrative affairs it is within its competence to post and transfer individuals in public interest. The executive is authorised to exercise its discretion. Judicial review is not an appeal in disguise. The power of administration, as alluded, rests on the executive authority. But then, whether the exercise of administrative discretion is lawful or not can only be judged and decided by the Courts of Law as well as the Tribunals which are meant to see that the discretion exercised is according to law. The discretion to post an employee is not a monarchial right or grace and favour in a democratic country where rule of law prevails. Discretion conferred, howsoever wide such discretion may be, such discretion is not unfettered and absolute. All power has its constitutional end point. Arbitrary exercise of power and unfettered discretion is what the law repudiates to endorse. Unbridled exercise of discretion is the antithesis of law - unfettered exercise of discretion is incongruous in a system based on rule of law. As stated earlier discretion is not a pleasure or predilection and not mere arbitrary right of a monarch. It embodies discernment, good sense and judiciousness. Discretion necessarily implies good faith in public duty. Conferment of power under the constitutional set-up comprises of trust to be exercised reasonably in good faith for public purpose to attain the lawful object, as was aptly observed and underlined by Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175 at 190:
"The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law."
11. The respondents in the instant case referred to the D.O. letter of the Chief Secretary, Government of Tripura dated 13.6.2001 for the transfer of the applicant to Agartala from the Headquarters. Admittedly, the applicant was in the Complex Headquarters and the post of Principal Scientist was a post meant for the Headquarters. By the communication dated 13.6.2001 the Chief Secretary only requested the Director General. ICAR to take a fresh initiative so that Tripura could play a more significant role in the development of fisheries, horticulture, animal husbandry etc. In that context the Chief Secretary mentioned about the inadequacy of the staffing pattern in the ICAR unit at Lembucherra in Tripura. It was basically a request to increase the staffing pattern. In that context in respect of Fisheries Department it specifically requested for posting of our Scientists at ICAR unit at Lembucherra to take up the study on genetical degradation of fishes, artificial propagation of threatened species of fishes etc. The said communication also mentioned that at the relevant time there was only one Scientist available and requested for three Scientists. It never requested for a Principal Scientist. The Chief Secretary accordingly requested the Director General, ICAR to carry an indepth review of the activities of the ICAR unit in Tripura, its staffing and resource allocation in the context of the importance of the unit in State's economy. Basically it was a letter asking for resource allocation and for increase of the staffing pattern. The said letter under no circumstances was meant for posting and transfer of the Principal Scientist. The communication dated 21.6.2001 itself pointed out that such requests were sent by all the States repeatedly. It is not a problem of Tripura alone. Study of genetical degration of fishes and the development of fisheries is not confined to Lembucherra unit only. Similar problems time and often crop up in other units also. The applicant in his rejoinder referred to one of the communications from the Government of Arunachal Pradesh for deputing a Fishery Scientist to Arunachal Pradesh to overcome the situation faced by the administration due to the mortality of the Mahseer in the Sally Lake. The respondent in the instant case failed to address itself to the relevant issue raised in the letter and instead mechanically ordered for posting and transfer of the applicant to Tripura on extraneous consideration other than lawful consideration. The Deputy Director General in a most reckless and mechanical fashion advised the Director to post the Principal Scientist from the Headquarters that too, without taking the applicant into confidence and the Director, respondent No. 3, mechanically exercised his discretion at the instance of the Deputy Director General without applying his mind. It may also be mentioned that the letter dated 21.6.2001 seemingly received on 25.6.2001 as revealed by Annexure R-5 to the written statement was forwarded to the Administrative Officer for necessary action. The matter was thereafter processed on 27.6,2001 as reflected in Annexure R-6 to the written statement, and put up before the authority. The note was later on put up before the Director, ICAR with the following note:
"As per the direction of DDG (NRM) vide his letter P.321 /C, Dr B .K. Mandal, P.S (Fisheries) is to be posted to ICAR, Tripura Centre with immediate effect. In this connection, Dr Mandal may be transferred alongwith the post. Also, it may be treated as "in the interest of public service" and he will be entitled TA/DA & joining time etc., as per rules. The effective date of his relieve may be decided by the C/A."
The same was put up before the C.A. and approved on the same date vide direction that he should be relieved on 30.6.2001. Why that extraordinary step was taken to transfer and post an individual and relive him without even giving him joining time to join in the post is not even discernible/As revealed that as per the aforesaid note the applicant was to be transferred to Lembucherra alongwith the post, in the impugned order of transfer dated 29.6.2001 ordering to relive the applicant on 30.6.2001, Dr B.K. Mahapatra, Sr. Scientist (Fishery) was requested to take over charge from the applicant on or before 30.6.2001, though the very office was transferred alongwith the applicant. Admittedly, the transferring authority was the Director, ICAR and the Director, in the instant case, mechnically acted on the order of the Deputy Director General. The relevant aspects were overlooked and the decision making authority plunged into the collateral object, and thus passed the impugned order. No reason as such were assigned also as to why a Scientist over 55 years of age had to be disturbed from the existing place of his work without his consent.
12. On consideration of all the aspects of the matter the impugned order of transfer dated 20.6.2001 is seemingly arbitrary and therefore, unsustainable in law and is liable to be quashed. The same is accordingly set aside and quashed.
13. The application is allowed to the extent indicated with costs.