Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty vs Ministry Of Statistics And Programme ... on 9 October, 2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 4721/2014
Reserved on: 14.08.2015
Pronounced on: 09.10.2015
Hon'ble Mr. Justice Syed Rafat Alam, Chairman
Hon'ble Dr. B.K. Sinha, Member (A)
Tushar Ranjan Mohanty
S/o Shri Rabi Narayan Mohanty
SAG Officer of the Indian Statistical
Service of 1981 Batch
Deputy Director General,
Research and Publication Unit,
Coordination and Publication Division,
Central Statistics Office,
Ministry of Statistics and Programme Implementation,
Room No.6,Wing No.6, Ground Floor,
West Block No.8, R.K. Puram,
New Delhi - 110 066.
(under impugned orders of transfer to Ajmer)
Resident of:
G-31, HUDCO Place Extension,
New Delhi-110 049. ...Applicant
(Applicant in person)
Versus
1. Union of India through
The Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi - 110 001.
2. Prof. TCA Anant,
Chief Statistician of India and Secretary,
Ministry of Statistics and Programme Implementation,
Fourth Floor, Sardar Patel Bhawan, Parliament Street,
New Delhi - 110 001.
3. Shri Ajay Kumar Mehra,
Director General and Chief Executive Officer,
National Sample Survey Office,
Ministry of Statistics and Programe Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi - 110 001. ...Respondents
(By Advocate: Shri R.N. Singh)
2
ORDER
By Dr. B.K. Sinha, Member (A):
The instant OA has been filed by the applicant assailing the two orders of the respondents both dated 17.12.2014 transferring and relieving him from his present posting/office to join the new office at Ajmer (Annexure A-1 & A-2 respectively).
2. The applicant has sought for the following relief(s):-
"8.1 to allow the present Application;
8.2 to quash and set aside the Relieving Order dated 17.12.2014 (Annexure A-1) as being bad in law;
8.3 to quash and set aside the Transfer Order dated 17.12.2014 (Annexure A-2) as being bad in law;
8.4 to grant all consequential benefits thereof;
8.5 to issue any such and further orders/directions this Hon'ble Tribunal deems fit and proper in the circumstances of the case; and 8.6 to allow exemplary costs of the application."
3. We have taken note of the fact that the OA of the applicant is voluminous, which has been matched by the counter affidavit filed on behalf of the respondents somewhat similar in volume, and the total pleadings run into 1038 pages, besides written submissions. The arguments further spanned almost three days. The applicant has also prayed for interim relief to keep in abeyance the relieving order till disposal of the OA. The Single Bench of this Tribunal vide its 3 order dated 07.01.2015 rejected the plea of the applicant for grant of interim relief. For the sake of clarity, relevant paragraphs 15 & 16 of the order are reproduced hereunder:-
"15. It is settled law that the Tribunal should not normally interfere in administrative matters such as transfers and in view of the facts of the case in which the applicant has failed to establish any malafide on the part of the respondents, this Tribunal would not like to interfere in the impugned orders dated 17.12.2014, transferring the applicant and three others and relieving him. However, since the applicant has complained that he has not been given TTA, he may submit his application for TTA, if he so desires which the respondents shall consider as per Rules.
16. In view of above discussion, the interim relief sought is rejected."
Aggrieved, the applicant preferred WP(C) No. 808/2015, which was decided by the Hon'ble High Court of Delhi, vide order dated 30.01.2015 setting aside the Tribunal's order dated 07.01.2015 on the ground that the language and tenor of the order indicate that the Tribunal had taken a final view in the matter apropos the merits of the case whereas it was only required to take a prima facie view and pass the interim order. The Hon'ble High Court has directed as under:-
"We thus make the position clear that the OA shall be finally decided by the learned CAT on the allegations levelled by the petitioner in his OA and the tentative views expressed used by the learned CAT in para 15 of the impugned order will have no bearing on the findings of the Court at the time of its final decision.
xxx xxx xxx We also direct the learned CAT to decide the OA of the petitioner as expeditiously as feasible. After the petitioner join the new place of his posting Ajmer, the respondent may also give due consideration to the request made by him for his posting elsewhere in Guwahati or Kolkata or somewhere in Northeast, as the petitioner submits that he is suffering 4 from peptic ulcer and is quite averse to the food which is available in Ajmer, Rajasthan."
Here, we also deem it proper to place on record that the applicant and the respondents are locked in a process of what promises to be a long drawn litigation. It has evolved into a war of legal attrition wherein admittedly more than 232 OAs have been filed. Nevertheless, this case is being decided on its own merits without being affected by decisions in the past.
4. The case of the applicant in very brief, notwithstanding the volume of the pleadings, is that the applicant is a direct recruit Officer of the Indian Statistical Service [ISS] of 1981 Batch, who had acted as an Intervener in OA No.1653/2010 challenging the appointment of respondent no.2, which was decided by the Tribunal vide order dated 20.10.2011 quashing the appointment of respondent no.2. However, the said order of the Tribunal was set aside by the Hon'ble High Court in WP(C) No.8124/2011 decided on 17.09.2013 without the applicant being party to that. The respondent no.2 has borne a personal animus against the applicant, who has been a whistle blower and waged relentless war against the acts of corruption and misdeeds within the Department. However, the applicant contends that he has always been at the receiving ends of the respondent 5 Ministry. The applicant was administered a recordable warning dated 26.07.2006 which was challenged by him in OA No. 1712/2006 and the Tribunal, while disposing of the OA, directed removal of the recordable warning from the records of the applicant. It was on the basis of this warning, the applicant was found 'unfit' for promotion to Senior Administrative Grade (SAG) of the ISS. The applicant challenged the same by filing OA No. 1831/2006, which was allowed by the Tribunal directing the respondents to hold a fresh DPC. The tale of injuries and wrongs grows with the passing of every year.
5. Faced with the prospect to promote the applicant, the respondent-Ministry suddenly suspended him w.e.f. 03.03.2008 which was followed by a minor penalty chargesheet dated 29.04.2008 and further by a major penalty chargesheet dated 30.06.2008. Both the major and minor penalty chargesheets were quashed by the Tribunal. However, the matter was brought to an amicable settlement under aegis of the Hon'ble High Court of Delhi, but the peace so engineered proved tenuous and fragile. However, the applicant submits that the acts of harassment did not cease and continued thereafter. The applicant has also contended that on 17.12.2014, he had submitted an application for voluntary retirement, which request was not acceded on 6 flimsy grounds, as the respondent no.2 wanted him to go through the travails.
6. Two other submissions of the applicant we wish to place on record before taking up the issue in this OA are that the applicant was desirous of joining the National Academy of Statistical Administration, for which he was eminently suited, but was opposed by the respondent no.3. Enquiries revealed that there was massive act of corruption in the Institute e.g. while earmarked government quarters were lying vacant, officers were drawing house rent allowances. The action of the applicant in unearthing this scam led to refund of the amount which invited the ire of the respondent no.2. The second thing that the applicant submits is that he was perceived as a protector of his lady PPS, who was subjected to sexual harassment at the hands of one D. Sai Baba, Director and Chief Vigilance Officer in the respondent-Ministry and one D.K. Sharma, Under Secretary (Vig.). The Complaint Committee in the Ministry is already seized with the matter. The applicant also refers to withdrawal of Staff Car on 20.04.2014.
7. The applicant has adduced the following arguments in support of his OA:-
(i) The transfer and relieving orders were issued on the same date. In fact, the relieving order was 7 received by him ½ hour prior to the receipt of the transfer order i.e. on 17.12.2014;
(ii) He was not given any opportunity to draw transfer TA advance [para 5.40 and 5.41];
(iii) He has been transferred to NSSO (FOD), RO, Ajmer on a post lower to the one held by him.
Thus, he has been placed under an officer, who is junior to him;
(iv) The transfer has been made because the applicant was protecting his lady PPS who had been subjected to sexual harassment at the hands of one D.Sai Baba, Director and Chief Vigilance Officer in the respondent Ministry and one D.K. Sharma, Under Secretary (Vig.)[para 4.57 page 43]. The applicant had filed complaint against them, which the Ministry is seized of;
(v) The applicant further submits that there is deep rooted bias against him on account of the fact that he had challenged the appointment of respondent no.2 as an intervener in OA No.1653/2010 decided by this Tribunal vide order dated 20.10.2011 whereby the appointment of the respondent no.2 has been quashed being illegal. Further, the applicant has been carrying out relentless crusade against the corrupt elements in 8 the respondent-Ministry including the respondent no.3 who had been illegally drawing the house rent allowance;
(vi) The applicant has further alleged that the respondent no.2 had warned him that he would see to it that the professional career of the applicant is put to a serious jeopardy. It is on account of the above factors that the applicant alleges malice against the respondents;
(vii) The applicant further submits that he had been picked out arbitrarily as there were three other offices who were included in the order of transfer dated 17.12.2014 out of which only he has been relieved on the same date while others have been allowed to continue for various periods;
(viii) The applicant has also questioned that his transfer order was made on the ground that a charge sheet had been filed against him, but that can be no administrative ground for the applicant's transfer as there are large number of officers against whom chargesheets have been filed. Moreover, the applicant has questioned the propriety of the chargesheet in OA No.502/2013 and the same has been quashed by the Tribunal vide its order dated 29.06.2015. He drew attention 9 of the Tribunal that these matters are pending here and have been motivated by deep rooted malice which the respondent no.2 bears for the applicant;
(ix) The applicant has finally submitted that as a consequence of his transfer, he will have to vacate the government quarter wherein his family is staying and they will be out on streets. He further submits that the food at Ajmer is disagreeable to his stomach because of which he has not been keeping well. Therefore, he has requested for his transfer to some other station where the food and life style are compatible to that of the applicant.
8. The respondents have filed a short reply as well as an additional affidavit wherein all the points raised by the applicant in the OA have been rebutted. The respondents submit that the transfer of the applicant is an administrative decision which has been made by CSB in a purely objective manner on 17.12.2014 on the ground that he appeared before the Tribunal against the Union of India for another charge-sheeted employee; he has been making false complaints against officers of the Ministry for which he has been charge-sheeted; non-completion of course of study and seeking permission for study leave by submission of false 10 information for which he has been charge-sheeted; possession of unaccounted immovable property and probable case of disproportionate assets under reference to CBI for unobtrusive inquiry; misuse of official vehicle (chargesheet being issued); non compliance of terms & conditions of withdrawal of motor-car advance (chargesheet being issued); unauthorized access of computer of Under Secretary (Vigilance), MOSPI (under examination).
9. The respondents have further questioned the contention of the applicant that he has been transferred eleven times stating that the applicant has also included his working from Ghaziabad as a transfer, whereas he had never been posted to Ghaziabad.
10. The learned counsel for the respondents Shri R.N. Singh submits that since the transfer of the applicant, further action is presently under contemplation in consultation with CVC. While admitting that the applicant had sought voluntary retirement, the learned counsel submits that the voluntary retirement is covered under Rule 48 of CCS (Pension) Rules, 1972. Moreover, the notice for voluntary retirement has to be explicit and without any condition subject to acceptance of the same by the appointing authority with a condition that there are no disciplinary proceedings pending or contemplated or any 11 other proceedings are pending before the court of law against the government servant seeking voluntary retirement.
11. Learned counsel for the respondents has vehemently denied the existence of any malice against the applicant. It was submitted that the applicant himself is responsible for his actions. This was purely an administrative transfer, the instances of which have already been cited before the CSB while considering his transfer. He further submitted that it is the administrative prerogative of the department to decide where an officer would be posted. Since the presence of the applicant had become disruptive, action had been taken by the Board after due and fair consideration. Learned counsel further submitted that no downgrading in the status of the applicant has been done. He further submitted that in posting the applicant to Regional Office Ajmer, the Zonal Offices of FOD provides training to the officers and staff of Zone and coordinates various activities of Zone. There is no reporting system of RO to the concerned ZO. As such, he also rebutted the argument that the DDG of ZO, Jaipur is junior to the applicant and that the applicant is not required to report through JAO. Moreover, as the situation is prevalent in many ROs/ZOs of the FOD, where the junior officer is at ZO and senior is at RO and the same is not 12 particular to the case of the applicant [page 215 of the paper book].
12. Learned counsel for the respondents also drew our attention to the observation of this Tribunal in OA No.2723/2012 clubbed with OA No.3782/2012 wherein the claim of the applicant relating to seniority was dismissed and he had been held guilty of vexatious litigation.
13. The respondents, vehemently denying the charge of sexual harassment, submitted that the same had been enquired into and found without substance, therefore, action was being taken against the applicant for making false allegations and sullying the reputation of senior officers of the department.
14. The applicant filed a rejoinder rebutting the points raised in the counter affidavit. He has submitted that the department has been acting vindictively towards him and different minor penalty charge-sheets issued to him are the best examples of this bias. He has also replied to the charge- sheets. For instance, regarding possession of unaccounted immovable property, the applicant submits that 'As a matter of fact, the applicant is the poorest officer of the Indian Statistical Service who has put in at least 33 years of service and for that matter may be the poorest. The applicant has 13 already submitted all property papers to the respondent Ministry and have also represented to the Respondents in the matter. However, what the applicant fails to understand is that how will the Central Bureau of Investigation be in a better position to investigate the matter if the Applicant is in Ajmer. The applicant would be grateful if the Applicant could be educated on the issue. The applicant has also reiterated the fact that he had higher number of transfers in the respondent Ministry.
15. The respondents have also filed an additional affidavit where it has been submitted that under S.R. 191.A (Annexure R-17) it is for the competent authority to declare what authority shall be the Controlling Officer for travelling allowance purposes, of each Government servant or class of Government servants. As per GOI instructions dated 12.08.1994, all officers of the rank of Under Secretary and above are declared their own Controlling Officer. However, the applicant being not clear from vigilance angle was not declared his own Controlling Officer, instead DDG, ZO, Jaipur was declared the Controlling Officer in respect of gazetted and non-gazetted staff of RO. The DDG, ZO, Jaipur is the only Controlling Officer in respect of the staff of RO, Ajmer alone and the statement that the former has been 14 made the Controlling Officer of the applicant is denied by the respondents.
16. The applicant also filed reply to the additional affidavit of the respondents dubbing it as an afterthought design to delay the proceedings. The documents submitted by the applicant would clearly indicate that a Zonal Officer has been made his Controlling Officer. The applicant has also given examples where one V. Parmeswaran, ISS-1980 (Annexure A-42), DDG, Pune Regional Office, who has been recommended issuance of a major penalty chargesheet, has been declared the Controlling Officer of the Pune Regional Office. One B.K. Tyagi, DDG, ISS-1982, who was issued a chargesheet on 22.11.2012 and transferred from Ajmer to Guwahati Zonal Office and subsequently to Bhopal, has been declared as Controlling Officer (Annexure A-44). The fact that Regional Office is under Zonal office is proved by Organizational Chart (Annexure A-11) and the facts remained that the move was designed to humiliate the applicant. Further, the applicant has reiterated his earlier submission that his transfer to Ajmer serves to kill two birds with one stone for the reason that it would weaken his capacity to contest the litigation against the respondent, and further it would be inconveniencing if he gets evicted from the government quarter in Delhi.
15
17. We have patiently heard the applicant, who appears in person, and Sh. R.N. Singh, learned counsel for the respondents. We have also carefully gone through the pleadings and other documents so adduced by the parties.
18. We begin with by taking note that certain facts are well admitted by the parties, e.g. transfer and relieving orders both were issued on 17.12.2014; the relieving order had been served earlier than the transfer order upon the applicant; the applicant was relieved on the same date and technically even prior to the service of the transfer order; other three officers included in the impugned transfer order were relieved on subsequent dates; one such officer i.e. B.K. Tyagi had got his transfer changed in quick succession; the applicant is posted in Reigional Office, Ajmer and for many matters the office has to use the Zonal Office for reporting and other purposes; the Zonal Officer, Jaipur is admittedly junior to the applicant; the applicant was not given sufficient opportunity to draw transfer TA and wind up other affairs. The above facts being admitted, our task is relatively simplified and we are required to adjudicate upon the following issues:-
(i) Whether the impugned transfer of the applicant has been made in undue haste?16
(ii) Whether the Regional Office, Ajmer, where the applicant has been transferred, is subordinate and inferior to the Zonal Office?
(iii) Whether the impugned transfer order is hit by mala fide?
(iv) What relief, if any, could be granted to the applicant?
19. Insofar as the first of the issues is concerned, we start by recognizing that to stay at a particular place of posting is not an indefeasible right. Where an employee will serve is the prerogative of the employer. The superior courts in various decisions have prohibited interference by Tribunals/Courts in normal circumstances.
20. In Shilpi Bose versus State of Bihar [AIR 1991 (SC) 532], the Hon'ble Supreme Court held as under:-
"4.In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department."17
This has also been impressed upon in case of Union of India vs. S.L. Abbas, [(1993) 4 SCC 357] wherein the Hon'ble Supreme Court held as under:-
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration."
In yet another decision in State of U.P. Vs. Gobardhan Lal [(2004) 11 SCC 402], the Hon'ble Supreme Court held 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 off 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 grievances sought to be made. Even administrative guidelines for regulating transfer 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 thee 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.18
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."
The above position has also been taken note of in National Hydroelectric Power Corpn. Limited vs. Shri Bhagwan [2001 (8) SCC 574] and State of M.P. and Another Vs. S.S.Kourav and Others [1995) 3 SCC 270]. However, it is not that the Hon'ble Supreme Court has completely prohibited intervention by Tribunals/Courts in all cases of transfer. In fact, Tribunals/Courts are the custodian of people's rights and liberties and they are required to make intervention where the transfer order either violates any of the rights guaranteed under Articles 14 & 16 of the Constitution of India or made against some provision of Statute or hit by mala fide.
21. In A.L.Kalra vs. Project and Equipment Corporation of India Ltd. [(1984) 3 SCC 316], the Hon'ble Supreme Court has ruled out all such transfers which happen to violate the provisions of Articles 14 & 16 of the Constitution. 19 For the sake of clarity, we extract relevant paras of the order, which read thus:-
"19. The scope and ambit of Article 14 have been the subject matter of a catena decisions. One facet of Article 14 which has been noticed in E.P. Royappa vs. State of Tamil Nadu, (1974) 2 SCR 348, deserves special mention because that effectively answers the contention of Mr. Sinha. The Constitution Bench speaking through Bhagwati,J. In a concurring judgment in Royappacase observed as under [SCC para 85.p.38: SCC (L&S) P.200]:
"The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose,J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violative its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; once belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, constitutional law and is therefore violative of Article 14, and if it affects any manner relating to public employment, it is also violative of Article 16. Articles 14 & 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.
This view was approved by the Constitution Bench in Ajay Hasia case. It thus appears well-settled that Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessary involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal of (sic) protection by law. The Constitution Bench pertinently observed in Ajay Hasia case and put the matter beyond controversy when it said "wherever therefore, there is arbitrariness in State action whether it be of the Legislature or of the executive or of an 'authority' under Article 12, Article 14 immediately springs into action and strikes down such Station action." This view was further elaborated and affirmed in D.S. Nakara vs. Union of India, (1983) 1 SCC 305. In Maneka Gandhi vs. Union of India (1978) 2 SCR 621, it was observed that Article 14 strikes at arbitrariness in State action and ensures, fairness and equality of treatment. It is thus too late in the day to contend 20 that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Article 14."
22. In a recent decision in Jawahar Thakur V/s. Union of India [OA No.1888/2015 decided on 19.06.2015], this Tribunal has examined in depth the issue relating to right of an employee to continue on any particular post and answered accordingly, which reads thus:-
"31. Right now we are dealing only with the issue that whether a Government employee has a right to hold onto a post once appointed or conversely what is the right of the Government to transfer/post out one of its employees. In answer to this, we have already provided the decisions of the Hon'ble Supreme Court as cited above. These decisions go a long way to hold that that a person has no right to hold onto the post once appointed or conversely the Government has right to transfer out an employee unless otherwise hit by one of the conditions as we have mentioned earlier; the tribunals/courts are not superior appellate authorities; it is the employer who is the best judge of where an employee is to be deputed; even if there be guidelines and they are infringed the same is not to be called into question where such transfer is made in public interest; the jurisdiction of the court arises only where the transfer is hit by malafide or is made in violation of some statutes; and the transferred employee is to obey the transfer order before he challenges it in the court. In this case, the issues of malafide and procedural irregularities are subject to discussion in the following part of the order. Right now it suffices to state that the applicant or for that matter any Government employee has no right to hold onto the post. The issue is accordingly answered against the applicant."
23. We are also swayed by the fact that the Bangalore Bench of this Tribunal in Mahesh Joshi versus vs Union of India [CAT Bangalore in OA No 383 of 2006, 2008(1) CAT 82] took steps to quash the transfer order of Doordarshan Director, which had been made at the behest of the instructions of a Minister and held as under:- 21
"41. We have noted the transfer policy in All India Radio and Doordarshan in paragraph 30 supra. From the early reply filed by the official respondents it is seen that they have considered the transfer policy in the matter of transfer of Shri Mukesh Sharma DDK Mumbai(see paragraph 3 of the reply where it is stated that Shri Mukesh Sharma had served DDK Mumbai for more than the normal tenure, it was considered desirable to shift him to another station). However, when it comes to the applicant no such consideration was given. Thus, it is a clear case attracting the provisions of Article 14 and 16 of the Constitution as explained by the Supreme Court in the decisions referred to earlier in this order. We have already held the transfer was not in public interest nor on administrative grounds.
42. Viewed from any angle it does not inspire confidence in us to hold that the order transferring the applicant from DDK, Bangalore to DDK Chennai was made on administrative grounds or in public interest. On the other hand the admitted facts, it is seen that the 6th Respondent MP had requested the for shifting the applicant immediately from Bangalore; the said request was made to the Hon;ble Minister for Information and Broadcasting personally and that the Ministry was pressing hard for the comments of the applicant time and again by the way of reminders. It is also evident that no satisfactory reply could be given to the 6th respondent from the Ministry on the request made by him for about three months and it is only to pacify him that the applicant has been transferred as requested by the 6th respondent. From, these circumstances it is clear that the transfer of the applicant was made malafide within meaning of the expression as clarified by the Court in Gurdial Singh's case supra. Thus, it is clear that the transfer of the applicant was not on administrative groundsnor on public interest but by the way of colourabale exercise of the power vested in the second respondent without any bonafide and for extraneous reasons. The action is bad because the true object was to reach an end different from the one for which power is entrusted to the second respondent.
43. Though, as held by the Constitution Bench of the Supreme Court in EP Royappa's case (supra) the burden of establishing malafides is very heavy on the person who alleges malafides in view of the discussions above and our findings above the said burden is discharged. It is made clear that we have arrived at the aforesaid findings only on the basis of the admitted facts and by the way of reasonable inference drawn from the admitted facts.
44. For these reasons the impugned order of transfer cannot be sustained. It is accordingly quashed. In the circumstances of the case there will be no order to as to costs."22
24. At the end, we infer that while the general position appears to be that the courts should be extremely chary in making any interference in the matters of transfer and should allow the administration to function, it is not that the administration has a free hand to do whatever it likes. It has to function under its constitutional liability and the general norms. Where it oversteps in disregarding the provisions of Articles 14 & 16 of the Constitution or makes transfer in a punitive manner or out of mala fide or against any express provisions of law, Tribunals/Courts have the responsibility to intervene in such matters. Now, we proceed to see as to whether the charges of haste which have been levelled against the respondents are found sticking and unnatural to the functioning of the department.
25. In order to appreciate the issue in a proper perspective, we have to re-visit the sequence of events that took place on the fateful day, i.e., 17.12.2014. We find that the respondents have enclosed a copy of the proceedings of the meeting of the Civil Services Board (CSB) for ISS officers of SAG and above level held on 17.12.2014. We do not have the advantage of having the file which could have indicated as to what was in the minds of the respondents while preparing such a proposal. However, since the pleadings are large and voluminous enough to be placed in three volumes, 23 there is sufficient material on record on the basis of which we are in a position to arrive at a satisfactory conclusion. For that matter, we do not have to go far but look at the contents of Annexure R-1, as detailed above. We find that the composition of the CSB included the respondent no.2, who has been impleaded personally as a party on account of serious allegations of malafide. The meeting was to consider the cases of transfers and postings of SAG and above level officers and considered only cases where transfers were being undertaken on administrative grounds. Besides the applicant, there are three other officers including M. Mallick, DDG (IS Wing), Kolkata; T.K. Sanyal, DDG, NSSO (FOD), Ranch; and V.K. Gupta, DDG, M/o Women & Child Development, Delhi. We find that the list of charges against the applicant have been made out in detail in form of seven charges. For the sake of developing greater clarity, we extract the proceedings and onwards journey of the same, as under:-
"iii. Shri T.R. Mohanty, DDG, RPU, CSO, Delhi: The following cases of misconduct/irregularities are pending against Shri T.R. Mohanty:
a) Appeared in CAT against Union of India on behalf of another applicant (Charge-sheet for minor penalty issued with approval of Hon'ble Minister).
b) Making false complaint against an officer of the Ministry (Charge-sheet for minor penalty issued with approval of Hon'ble Minister)
c) Non-completion of course of study and seeking permission for study leave by submission of false 24 information and suppression of facts (charge-sheet for minor penalty issued with approval of Hon'ble Minister).
d) Possession of unaccounted immovable property and probable case of disproportionate assets under reference to CBI for unobtrusive inquiry with approval of Hon'ble Minister (CVC and DoPT concurred).
e) Misuse of official vehicle (Hon'ble Minister has approved initiation of disciplinary proceedings (charge-sheet being issued)].
f) Non-compliance of the terms and conditions for withdrawal of motor car advance and non hypothecation of the vehicle (Hon'ble Minister has approved initiation of disciplinary proceedings (charge-sheet being issued).
g) Unauthorized access to the computer of Under Secretary (Vigilance), MoSPI (under examination).
In view of the above, the CSB recommended his transfer on administrative grounds.
xxx xxx xxx
sd/-
(J.S. Gupta)
Deputy Secretary
17.12.2014
DDG (Admn.)
Sd/-/ 17.12.2014
A.S.
Sd/-/ 17.12.2014
DG, NSSO
Sd/-/ 17.12.2014
Secretary
Sd/-/ 17.12.2014
Hon'ble Minister
Sd/-/ 17.12.2014
Secretary
Sd/-/ 17.12.2014
DG, NSSO
Sd/-/ 17.12.2014"
25
It would appear that the minutes were drafted immediately thereafter and the file was routed through DDG (Admn.), A.S., DG, NSSO; Respondent no.2 and then to the Hon'ble Minister on 17.12.2014 and the file returned on the same date. The orders were also issued on the said date i.e. 17.12.2014. It is not controverted that the relieving order was served upon the applicant half an hour before the order of transfer. While speed in government functioning is certainly appreciated but when it becomes post-haste, then a view needs to be taken and this post-haste gives rise to lingering doubts as to how the file could have travelled from the office to the conduct of the meeting and obtaining the approval of the Hon'ble Minister and relieving the applicant.
26. It could be inferred from the experience that this kind of movement of file is not natural. The normal course of action is that an agenda notice is prepared and circulated with the approval of the Chairman some days prior to the meeting. When the meeting takes place, minutes of the meeting of the meeting are prepared signatures of the members are obtained by circulation, it is then sent to the Minister-in-Charge for his approval through the Secretary of the Department. The return journey of the file is also through the Secretary, which is then endorsed to the Administration Section for issuance of orders; transferred 26 employees are then given time to draw their Travelling TA allowance to proceed to the place of posting.
27. It has been argued by Shri R.N. Singh, learned counsel for the respondents that since it was a matter of administrative transfer where there is a need to be prompt and speedy, the movement of file was done the way it has been. However, what attracts our attention is that the speed has become so fast that the matter has moved over to the category of post-haste. Admittedly, the applicant was given no time to draw the advance towards Travelling Allowance. Once a person is unilaterally relieved, his existence insofar as that office is concerned, ceases. There are so many matters comprising the process of winding up and we find that this normal courtesy has not been extended to the applicant. The applicant, by all means, a senior officer in SAG scale and to say the least he was deserving of some courtesy in this regard. Thus, we conclude the instant issue that the transfer of the applicant was made post-haste.
28. In this regard, one has to refer to the decision of the Hon'ble Supreme Court in NOIDA Entrepreneurs Association versus NOIDA & Ors. [2011 (6) SCC 508] wherein the petitioner had sought allotment of some residential and industrial plots alleging illegalities and irregularities against a large number of ex-administrators 27 including one Neera Yadav - respondent no. 7 therein. The Court in its examination found that contracts had been awarded without due procedure of tender. The Hon'ble Court relied upon earlier decisions in Swantraj & Ors. v. State of Maharashtra [AIR 1974 SC 517]; Commissioner of Central Excise, Pondicherry v. ACER India Ltd. [(2004) 8 SCC 173]; and Sant Lal Gupta & Ors. v. Modern Co- operative Group Housing Society Ltd. & Ors. [JT (2010) 11 SC 273)] to reiterate the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud", which means" "whenever a thing is prohibited, it is prohibited whether done directly or indirectly". For the sake of better clarity, we extract the relevant portion of the judgment, which reads thus:-
"26. In Jagir Singh v. Ranbir Singh & Anr., AIR 1979 SC 381, this Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance."
While deciding the said case, the Court placed reliance on the judgment in Fox v. Bishop of Chester, (1824) 2 B &C 635, wherein it has been observed as under:-
"To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined."
27. The second work had been allotted to M/s Techno Construction Co. worth Rs.1.00 crore without inviting fresh tenders etc., on the ground that earlier a contract for execution of similar work i.e. construction of road had been awarded to it. In view of the fact that there was no urgency, such a contract should not have been awarded. Undoubtedly, the respondent no.4 is guilty of proceeding in haste and that amounts to arbitrariness.
28. While dealing with the issue of haste, this Court in the case of Bahadursinh Lakhubhai Gohil v.
Jagdishbhai M. Kamalia & Ors., (2004) 2 SCC 65, 28 referred to the case of Dr. S.P. Kapoor v. State of Himachal Pradesh & Ors., AIR 1981 SC 2181 and held that:
".....when a thing is done in a post-haste manner, mala fide would be presumed."
29. In Zenit Mataplast Private Limited v. State of Maharashtra & Ors., (2009) 10 SCC 388, this Court held :
"Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law".
30. Thus, in case an authority proceeds in undue haste, the Court may draw an adverse inference from such conduct. It further creates a doubt that if there was no sufficient reason of urgency, what was the occasion for the respondent no.4 to proceed in such haste and why fresh tenders had not been invited."
However, before we draw inference regarding the illegality of the act done by the respondents based on post-haste, we would also like to examine collateral facts while dealing with the other issues.
29. Insofar as the second of the issues is concerned, the applicant has given Organizational Chart of the respondent Department, which is being extracted as under:-
"ORGANIZATION CHART OF NSSO Director General National Sample Survey Office Additional Director Additional Director Additional Director Deputy Director Survey Design & Field Operations Data Processing Coordination & Research Divn. Divn.(HQ), New Divn. (HQ), Kolkata. Publication Divn.
Kolkata. Delhi & Faridabad. New Delhi. North Central East North- South West DP DP DP DP DP DP Zone Zone Zone East Zone Zone Centre Centre Centre Centre Centre Centre
Jaipur Lucknow Kolkata Guwa- Bang- Nag- Nagpur Delhi Kolkata B'lore Ahem- Gir Hati lore pur.
RO RO RO RO RO RO 29 As per the above organizational chart, the organization is headed by DG, NSSO. He is assisted by ADG (Field Operation). There are six zones including the North Zone located at Jaipur. The office of RO, Ajmer is located under the North Zone. This is the hierarchical chart. Admittedly, the In-charge of North zone is four years junior to the applicant. We find merit in the argument of the applicant that reports and returns of the office of RO, Ajmer are submitted to the North Zone at Jaipur where they are consolidated and then submitted to the Headquarters. The argument put forth by the learned counsel for the respondents that the offices do not denote hierarchy is not worthy of credence because the Government of India functions in a hierarchical method. The very fact that there is a line of reporting confirms this hierarchy. Moreover, the ACRs of the In-charge of regional offices are normally written by the Zonal In-charge, who has the power of visit and supervision over the ROs. It has not been denied that in normal circumstances the In-charge of Zonal Office is senior to the Regional Office and has the power of superintendence, direction, visit and the power to grant leave to the staff of the Regional Office. The argument put forth by the learned counsel for the respondents that the In-charge of Zonal Office has not been made the Controlling Officer of the 30 applicant who continues to report directly to the Headquarters is not worthy of credence. It is an admitted fact that this arrangement made for the applicant is an extraordinary arrangement because it is not every day that an officer of SAG's seniority gets posted to Regional Office.
30. In consideration of the above discussion, we have no option except to arrive at the conclusion that the Regional Office at Ajmer is directly in line of hierarchy below the Zonal office which is again below the Head office. It also leads to the conclusion that normally it is not headed by an officer of the rank of the applicant.
31. Insofar as the third of the issues is concerned, the term 'malice' has been defined in State of Punjab and Another V/s. Gurdial Singh & Ors. [1980(2) SCC 471] wherein the Hon'ble Supreme Court has held as under:-
"9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the 31 order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act."
32. The decision rendered in State of Punjab versus V.K. Khanna & Ors. [2001 (2) SCC 330] has come for a fuller treatment wherein the Hon'ble Supreme has held that there is an onus upon the government to act fairly. Howsoever grave the provocation may be, the State Government never renege from its responsibility of good faith, fairness and justice. For the sake of clarity, we extract the relevant paras as under:-
"5. Whereas fairness is synonymous with reasonableness - bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or ill will'. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a malafide move which results in the miscarriage of justice (see in this context Kumaon Mandal Vikas Nigam v. GiriJa Shanfcar Pant & Ors.1. In almost all legal enquiries, "intention as distinguished from motive is the all important factor' and in common parlance a malicious act stands equated with an intentional act without just cause or excuse. In the case of Jones Brothers (Hunstanton) Ltd. v. Steuens2, the Court of Appeal has stated upon reliance on the decision of Lumley v. Gye3 as below :
"For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye, where Crompton, J. said that it was clear that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master nd servant by harbouring and keeping the servant after he has quitted his master during his period of service commits a wrongful act for which is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse : Bromage v. Prosser, [1825(1) C. & P. 673], 32 "Intentionally" refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as, for instance to rebut a plea of privilege in defamation, malice in fact has to be proved."
6. In Giri;'a Shankar Pant's case (supra) this Court having regard to the changing structure of the society stated that the modernisation of the society with the passage of time, has its due impact on the concept of bias as well. Tracing the test of real likelihood and reasonable suspicion, reliance was placed in the decision in the case of Parthasarthy (S. Parthasarthy v. State of Andhra Pradesh4), wherein Mathew, J. observed :
"16. the tests of "real likelihood" and "reasonable suspicion"
are really incon- sistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reason- able man would in the circumstances infer that there is real likelihood of bias. the Court must look at the impression which other people have. This follows from the principle that Justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not con- duct the enquiry; nevertheless, there must be a real likelihood of bias. Sur- mise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring of- ficer will be prejudiced against the delin- quent. the Court will not inquire whether he was really prejudiced. If a reasonable man would think on the ba- sis of the existing circumstances that he is likely to be prejudiced, that is suffi- cient to quash the decision (see per Lord Denning, H.R. in Metropolitan Prop- erties Co. (F.G.C.) Ltd. v. Lannon and Others, etc.: 1968(3) WLR 694 at 707). We should not, however, be understood to deny that the Court might with greater propriety apply the "reasonable suspicion" test in criminal or in proceedings analogous to criminal proceedings."
7. Incidentally, Lord Thankerton in Franklin v. Minister of Town and Country Planning, opined that the word 'bias' is to denote a departure from the standing of evenhanded justice. Girja Shan/car's case (supra) further noted the different note sounded by the English Courts in the manner following:
"27. Recently however, the English Courts have sounded a different note, though may not be substantial but the automatic disqualification theory rule stands to some extent diluted. the affir- mation of this dilution however is de- pendent upon the facts and circum- stances of the matter in issue. the House of Lords in the case of Reg. v. Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No. 2) (2000(1) A.C. 119) observed : "In civil litigation the matters in issue will normally have an economic im- pact; therefore a judge is automati- cally disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in 33 the present case, the matter at issue does not relate to money or economic advantage but is con- cerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judge's decision will lead to the pro- motion of a cause in which the judge is involved together with one of the parties."
Lord Brown Wilkinson at page 136 of the report stated:
"It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25/11/1998 would lead to a position where judges would be unable to sit on cases in- volving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct. the facts of this present case - are exceptional. the critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order/to argue for aoarticular result; (3) the judge was a director of a char- ity closely allied to A.I. and sharing, in this respect, A.I.s' objects. Only in cases where a judge is taking an ac- tive role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be con- cerned either to recuse himself or disclose the position to the parties. However, there may well be other ex- ceptional cases in which the judge would be u'sll advised to disclose a possible interest."
Lord Hutton also in Pinochet's case (supra) observed :
"There could be cases where the In- terest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the pro- ceedings could shake public confi- dence in the administration of jus- tice as much as a shareholding (which might be small) in a public company involved in the litigation."
(28) Incidentally in Locabail (Locabail (U.K.) Ltd. v. Bay/ield Properties Ltd., 2000 Q.B. 451), the Court of Appeal upon a detail analysis of the oft cited decision in Reg. v. Gough [1993 A.C. 646] together with the Dimes case, (3 House of Lords Cases 759): Pinochet case (supra), Australian High Court's decision in the case of re J.R.L., Ex parte C.J.L. :
[1986(161) CLR 342] as also the Federal Court in re Ebner [1999(161) A.L.R. 557], and on the decision of the Constitutional Court of South Africa in President of the Republic of South A/rican v. South A/rica Rugby Football Union, [1999(4) S.A. 147], stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. the Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed :
"By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animos- ity 34 between the Judge and any mem- ber of the public involved in the case; or if the judge were closely acquainted with any member of the public in- volved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the Judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his abil- ity to approach such person's evi- dence with an open mind on any later occasion; or if on any question at is- sue in the proceedings before him the judge had expressed views, par- ticularly in the course of the hear- ing, in such extreme and unbalanced terms as to throw doubt on his abil- ity to try the issue with an objective judicial mind (see Vakuta v. Kelly. 1989 (167) C.L.R. 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous consid- erations, prejudices and predilections and bring an objective judgment to bear on the issues before him. the mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party wit- ness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat, every applica- tion must be decided on the facts and circumstances of the individual case. the greater the passage of time be- tween the event relied on as show- ing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."
(29) The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case - a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient."
In yet another decision in Kumaon Mandal Vikas Nigam Ltd. Versus Girja Shankar Pant & Ors. [2001 (1) SCC 182] wherein the Hon'ble Supreme Court has included the test of reasonableness and held that while fairness is synonymous with reasonableness, bias stands for spite or ill-will. It is further held that the general statement is not 35 sufficient for the purpose of establishing malafide or ill-will and there must be cogent evidence available on record to arrive at this conclusion, intention is the main ingredient. As distinguished from malafide motive, a malicious act is to be equated with an intentional cause with just cause or excuse. Hence, mens rea in criminal act, intention is also all important. Therefore, we proceed to examine the issue in relation to intention and the acts which have been alleged by the applicant.
33. We have already seen that there was post-haste in pushing through the transfer of the applicant and relieving him. To get the transfer TA is a right of every employee who gets transferred which in the instant case is denied to the applicant. We do not see as to how the argument of the learned counsel for the respondents helps the applicant when he stood relieved even prior to getting the transfer order, and there was no way he could draw his transfer TA. We have examined similar issue in a case pertaining to the same organization in Naresh Kumar Sharma versus Union of India & Ors. [OA No.294/2015 decided on 12.02.2015] wherein it has been held that a transferred employee must be provided with transfer TA advance and other transfer dues.
36
34. It is well admitted fact that there has been a long running battle between the applicant and the respondents which have resulted in filing of almost 213 cases. Some of these cases have also been decided by this Bench and in some of them mala fide was alleged by the applicant merely on the ground that he had been an intervener in OA NO. 1653/2010, which resulted in appointment of respondent no.2 being quashed, and we had ruled out malice merely on this ground. However, in the instant case, the story goes much beyond. We have also found that the applicant has been posted to a regional office which is one step below in the hierarchy to the Zonal office and the Zonal officer is several years junior to the applicant. We have already held in issue no.2 that whatever be the argument, the fact remains that a senior officer in SAG scale is serving in a Regional office, which is directly below the Zonal Office in hierarchy. This leaves us with no other conclusion except to say that the purpose appears to humiliate the applicant.
35. We further take note of the fact that other three officers also got transferred along with the applicant on administrative ground and none of them was relieved post- haste in the manner the applicant was, without even having received the transfer order. We find that the argument of the applicant that he was relieved before even receiving the order 37 of transfer has not been adequately rebutted by the respondents either in their pleadings or during the course of arguments. Surely, heavens would not have fallen if the applicant had been allowed to continue for another 24 hours during which he could draw his Transfer TA and other related dues. We also find that the action of the respondents in meeting out a differential treatment to the applicant is outright discriminatory and intentional. Thus, on the basis of the afore discussion, we find institutional malice getting established against the respondents.
36. Insofar as the fourth of the issues is concerned, we would briefly sum up the facts. A good part of the case is admitted and we have taken note of the fact that the case of the applicant was processed and even order issued in a single day with few office hours to spare. We have also arrived at the conclusion that the applicant was relieved without the benefit of transfer TA and the general courtesy; in this the applicant was singled out as the other officers, who were transferred by the same letter in the same transactions on administrative grounds were allowed to continue and left at liberal pace as compared to the applicant; we also hold that the applicant has been deliberately humiliated by posting him to work in a Regional office, the Zonal officer of which is junior to the applicant 38 and that regional office is directly in line of hierarchy below the zonal office. We have noted that the general law that the government despite provocation and litigation has the responsibility not to act with malice and in a fair and equitable manner and at no time can it renege from this responsibility. In the instant case, we find it otherwise. We do recognize that the parties have locked horns and in the heat of the battle, they are likely to travel beyond the rules. However, it is not for the Government to take that defence. We are satisfied that malafide is writ large on the entire chain of incidence leading to the transfer of the applicant and there could be no escape from it.
37. In view of above discussion, we find merit in the instant Application and the same is allowed with the following directives:-
(i) The impugned transfer order dated 17.12.2014 is quashed and set aside;
(ii) We recognize that because of the strained relationship between the parties, the posting of the applicant back to the same office would be against the administrative propriety. In the facts of the case, it is provided that the respondents shall consider to give the applicant some other posting, preferably in another office located at Delhi or as per the option to 39 be exercised by the applicant within a period of fifteen days from the date of receipt of certified copy of this order;
(iii) There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /AhujA/