Central Administrative Tribunal - Delhi
Birender Singh vs Indian Council Of Agricultural ... on 26 March, 2025
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C-3/Item-1 OA-2990/24
Central Administrative Tribunal
Principal Bench, New Delhi
O.A./2990/2024
M.A./2742/2024
M.A./3391/2024
Reserved on:10.03.2025
Pronounced on: 26.03.2025
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
Birender Singh, T-3 Driver, Group`C'
Aged about 49 years
S/o Shri Chhattar Singh
R/o C-3/211, Lodhi Colony,
New Delhi-110003
(Through Shri M.K. Bhardwaj, Advocate)
VERSUS
1. Indian Council of Agricultural Research
Through its Secretary
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi-110001
2. The Director (TS & WS)
Indian Council of Agricultural Research,
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi-110001
3. Shri Anshul Gupta
Under Secretary (TS & WS)
Indian Council of Agricultural Research,
Krishi Bhawan,
Dr. Rajendra Prasad Road,
New Delhi-110001 ...Respondents
(Through Shri Gagan Mathur, Advocate)
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C-3/Item-1 OA-2990/24
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A):
1. The present original application has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking quashing of the order dated 26.06.2024 (impugned order) issued by the respondents transferring the applicant along with post from ICAR headquarters to KVK Shikohpur, Gurgaon under ICAR- IARI, New Delhi.
2. When the matter was taken up on 2.08.2024, the learned counsel for the applicant pressed for interim relief seeking stay of the impugned order. This Tribunal vide order dated 27.08.2024 directed that status quo in respect of the applicant's posting should be maintained. The status quo continues till date.
3. Factual Matrix 3.1 The applicant was appointed as Driver with the ICAR in the year 2009. The cadre structure for Drivers at ICAR ranges as T-1 to T-5. The applicant continued to be working at the level of T-1 (Driver) until March 2016 with the ICAR (HQ) itself. In March 2016, the applicant was away on transfer to IARI and returned in July 2016 as T-1 Driver at ICAR itself. In the year 2014, the applicant was extended time bound pay scale of T-2 Driver and in August 2024 as T-3 Driver. By virtue of an order dated 26.06.2024, the 3 C-3/Item-1 OA-2990/24 applicant has been transferred to KVK, Shikohpur, Gurgaon an institute of the ICAR. Aggrieved by the said transfer, the applicant has filed the present OA seeking the following reliefs:
"1. To quash and set aside the impugned Order No. 1(1)/2022/Estt./IV dated 26.06.2024 (A-1). ii. To direct the respondents to allow the applicant to continue at ICAR HQrs., Delhi.
iii. To declare the action of respondents in transferring the applicant from ICAR HQrs. to KVK Sikopur as illegal and direct the respondents to continue the applicant in Delhi. iv. to allow the OA with cost.
v. To pass any such other order as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
4. Notices were issued to the respondents and they have filed their counter reply to which the applicant has also filed his rejoinder.
5. Submission by the learned counsel for the Applicant:
5.1 Learned counsel for the applicant, while assailing the said order, submits:
(i) the applicant has been transferred in public interest along with the post illegally and arbitrarily, the same was not permissible in law,
(ii) the order has been passed by the Under Secretary who is not the competent authority to pass the order, 4 C-3/Item-1 OA-2990/24
(iii) the only reason for transfer was to accommodate one Shri Bharat Singh at ICAR itself, from the order itself, it is clear that it was not a transfer per se, as the applicant has been transferred along with the post. Though, he confirms that the transfer is permissible but transfer along with the post cannot be done by the respondents. He submits that post of technical cadre from T-1 to T-5 is not transferable in light of the policy of the respondents, annexed at page 46 of the OA, dated 19.03.2020 and revised policy dated 19.03.2021 placed at page 40 of the OA. He refers to para 26 of the policy dated 19.03.2020 and para 2 of policy dated 19.03.2021, which are reproduced as under:-
"xxvi) The above guidelines will also be applicable to the technical personnel recruited in Krishi Vigyan Kendras (KVKs) belonging to ICAR. In these cases, transfer can take place only from KVK of one Institute to KVK of another Institute i.e. the technical personnel recruited in a KVK can be transferred only to another KVK"
"2. Director of the Institute is the Competent Authority for intra-institutional transfer in the case of Category 1, Category II and Category III technical staff of the institute, KVKs and Regional Stations/ Centres under his/her institute"
iv) The two policies do not allow the respondents to transfer the incumbents from ICAR Head Quarters to other institutions. These guidelines only provide for intra- institutional transfer and that too, with the approval of the Competent Authority, which has not been done in the present matter.
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C-3/Item-1 OA-2990/24 v) page 16 of the MA No. 3391/2024 filed on
11.09.2024, confirms that the KVK Sikopur, Gurgaon is a plan project for a period of five years and, therefore, the KVK Sikopur, Gurgaon, could not have a permanent post.
vi) the respondents themselves, by way of additional affidavit filed on 14.10.2024, placed the Technical Services Rules of ICAR, which confirm that in case of transfer of post, approval of the Administrative Secretary of the Department of Expenditure is necessary.
6. Submission by learned counsel for the respondents:
6.1 The learned counsel for the respondents, relying on the counter affidavit filed by the respondents, states that the Secretary, ICAR, Respondent No.1, is competent to transfer any employee belonging to the ICAR Technical Services constituted under the ICAR Technical Services Rules, 1975 from one ICAR institute to another. The institutes like the Krishi Vigyan Kendras (KVKs) are functioning directly under ICAR institutes. This power of the Secretary, ICAR being the "Head of Administration" of the ICAR includes transferring such employees along with their posts. The applicant in his OA has cited the OM dated 12.04.2017 issued by the Department of Expenditure, Ministry of Finance regarding creation, Revival, continuation and transfer of posts in various 6 C-3/Item-1 OA-2990/24 Ministries and departments of Govt. of India. However, ICAR being an autonomous organization adopted these instructions only on 4.01.2024. However, before issuance of these instructions on 4.01.2024, the respondents had transferred a post of Technical (Driver) from KVK Shikohpur to ICAR headquarters. The parent organization of KVK, Shikohpur, Gurgaon i.e. IARI New Delhi requested the ICAR Head Quarters to restore the post of Driver at KVK, Shikohpur. The Respondent No.1, facing the difficulty of getting the post revived at KVK Shikohpur through Ministry of Finance, restored the Staff Strength of this KVK by transferring the present applicant back to KVK, Shikohpur from ICAR Headquarters along with post. This restored the staff strength at this KVK. Hence, the action by Respondent No. 1 is legitimate and it does not violate any instructions of the Ministry of Finance or ICAR. 6.2 The learned counsel for the respondents further avers that the applicant belongs to the T-3 cadre under the ICAR Technical services and such cadre is an all-India Cadre.
Hence, the applicant is liable to be transferred to any institute in India in public interest. As per catena of judgments by the Apex Court, transfer is an incident of service and no employee has any vested right to be posted at any particular location. Hence, the applicant can not 7 C-3/Item-1 OA-2990/24 claim to remain in ICAR head quarters for all the times to come.
6.3 The learned counsel for the respondent further refers to the Transfer Policy issued on 19.03.2021 (Annexure-R3) governing the Employees belonging to the ICAR Technical Services. According to this policy, the technical staff are liable to be transferred to anywhere in India and transfer can take place from KVK to an Institute of ICAR and vice - versa.
7. The matter was heard at length and was reserved for orders by the Tribunal on 13.12.2024.
7.1 Matter was spoken to on 3.01.2025 and the respondents were requested to provide assistance with respect to the following queries/clarifications:-
i) What are the planned and non-plan budgets of
(a) KVK Sikohpur, Gurgaon; (b) IARI, New Delhi and;
(c) ICAR Headquarters for the year 2021-2022 till 2024-2025?
ii) What was the staff structure projected and sanctioned strength approved in the respective organisations of (a) KVK Sikohpur, Gurgaon and (b) IARI, New Delhi for the financial year 2021-2022 till 2024-2025?8
C-3/Item-1 OA-2990/24
iii) Who is competent to change the staff structure as approved by the budgets or otherwise of (a) KVK Sikohpur, Gurgaon; (b) ICAR Institutes like IARI, New Delhi and; (c) ICAR Headquarters? The respondents are requested to support the answer with supporting documentary evidence.
iv) Is the Secretary, ICAR, competent to alter the staff structure of a KVK, an ICAR Institute or ICAR Headquarters, that is, transfer the staff along with post without the approval of the Governing Body of ICAR and/or without reference to the Department of Expenditure?
v) The learned counsel for the respondents in his submission on 13.12.2024 has referred to a statement regarding staff structure of Drivers at ICAR Headquarters as reproduced in the order dated 13.12.2024. He has further stated that the cadre of Drivers is a dying cadre. The relevant instructions by the competent authority to declare the cadre of Drivers as dying cadre be produced.
vi) When a cadre is declared as a dying cadre then as and when a vacancy in the cadre arises due to retirement, death or resignation or termination of an incumbent, the post is abolished. However, perusal of 9 C-3/Item-1 OA-2990/24 the statement recorded in the submission of learned counsel for the respondents shows that despite retirement of certain drivers since 2021-22 the number of sanctioned posts remained static at 12. What are the reasons for this anomaly or the violations of the instructions by the Department of Expenditure, Government of India?
8. The respondents were requested to furnish the above clarifications within two weeks from the date of receipt of a certified copy of this order by way of an affidavit. Further, the interim order given vide order dated 13.12.2024 was allowed to continue till further orders. 8.1 The respondents vide their affidavit dated 5.03.2025 have submitted certain clarifications in compliance of the order dated 3.01.2025, which is on record.
9. Analysis 9.1 The position that the competent administrative authorities have a prerogative to redeploy or transfer an employee for better utilization of human resources of the organization for furtherance of organizational mission objectives have been well settled in several case laws by the Apex Court. The employee in a transferable job does not have any vested right to remain at a particular place or post. The earliest in this genre of case law is the Gujarat 10 C-3/Item-1 OA-2990/24 Electricity Board Vs Atmaram Sungomal Poshani (CA No.3561 of 1986 decided on 31.03.1989). This judgment of the Apex Court has been reiterated in a series of judgments by the Apex Court such as:
1. Union of India vs S.L. Abbas, CA no. 2348 of 1993 decided on 27.04.1993;
2. Public Services Tribunal Bar Vs State of U.P. & Another decided on 29.01.2003 [Appeal (civil) 3947 of 2001;
3. State of U.P. & Ors Vs Gobardhan Lal, C.A. 408 of 2004 decided 23.03.2004 9.2 In Shilpi Bose (Mrs.) & ors. Vs. State of Bihar & ors., 1991 Supp (2) SCC 659, the Apex Court has held that:
"4. In our opinion, the Courts should not interfere with a transfer Order which are 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."
9.3 Redeployment in the form of transfers inter alia should also satisfy the test of reasonable expectations of the employees to be treated fairly and such administrative action should not be based on mala fide, bias and unreasonable factors. There are several judgments of the Apex Court which have moderated the absolute power of the government/ administrative authorities in the matters of transfer. The earliest of this genre is the judgment of the 11 C-3/Item-1 OA-2990/24 Apex Court in E.P. Royappa Vs State Of Tamil Nadu & Anr,1974 AIR 555, where the Apex Court has held that:
"It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilize the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colorable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration that even administrative actions should be just and fair."
Subsequently, a series of judgments by the Apex Court have reiterated and substantiated this view. These judgments are: -
(i) B Varadha RaoVs State of Karnataka and Ors., AIR 1986 SC 1955
(ii) Union of India & Ors Vs H.N. Kirtania, 1989 AIR 1774
(iii) Kumari Shrilekha Vidyarthi etc. etc. Vs State of U.P. and Others,1991 AIR 537
(iv) Food Corporation of India Vs Kamdhenu Cattle Feed Industries, Civil Appeal No. 4731 of 1992
(v) Chief General Manager (Telecom) N.E. Telecom Circle & anr. Vs Shri Rajendra Ch.
Bhattacharjee, 1995 AIR 813 12 C-3/Item-1 OA-2990/24
(vi) National Hydroelectric Power Corporation Ltd Vs Shri Shiv Bhagwan & Anr, 2001 (8) SCC 574
(vii) Union of India and Ors Vs Sri Janardhan Debanath and Anr, AIR 2004 SC 1632
(viii) Mohd. Masood Ahmad Vs State of UP & others., 2007 (8) SCC 150
(ix) Somesh Tiwari Vs Union of India and Others:
(2009) 2 SCC 592
(x) Punjab and Sind Bank & Ors. Vs. Mrs. Durgesh Kuwar, 2020 SCC Online SC 774
(xi) Ms. X Vs Registrar General, High Court of Madhya Pradesh & Anr, WP No 1137 of 2018, decided on 10.2.2022.
In State of UP & Ors Vs Gobardhan Lal (supra), the Apex Court held that:
"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 Apex Court in Somesh Tiwari Vs. Union of India, Civil Appeal No.7308/2008, has further elaborated this concept of malice/malafide if irrelevant/extraneous factors are considered while deciding the representation. The Apex 13 C-3/Item-1 OA-2990/24 Court held that it amounts malice in law. The Apex court in this case held that:
"19. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. "20. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
9.4 Having analysed the position in respect of judicial review of administrative action in the form transfer of employees, it should not escape our notice that the Apex Court has not outrightly denied any scope for judicial review of transfers effected by administrative authorities. The Shilpi Bose (Supra) case has also categorically held that such administrative actions could be subjected to judicial review if (a) there is violation of statutory rules and
(b) if the action of the authorities suffers from mala fide. 9.5 In the instant case, the applicant has alleged both violation of Recruitment Rules and Transfer Policy governing the technical services as well as malafide on the part of respondents in transferring the applicant along with 14 C-3/Item-1 OA-2990/24 post to accommodate others and bye-passing the period of stay and tenure of others in ICAR headquarters.
10. The basic issue here is not the prerogative of Respondent no.1 to transfer any employee belonging to the ICAR technical Services. Here the crucial issues are:
a) Whether Respondent No.1 has the authority to transfer any employee belonging to the technical services from one institute to another along with post and whether such transfer violates the statutory rules and guidelines issued by the Ministry of Finance, the DO&PT and adopted by the Governing Body of ICAR.
b) Whether the action of the Respondent No.1 is liable to be quashed because it amounts to colourful exercise of power.
11. It is not be out of place to analyse the functions, administrative structure and delegation of powers of various functionaries of ICAR and the Rules and policies governing the services of employees under the ICAR Technical Services.
11.1 The Indian Council of Agricultural Research (ICAR) is an autonomous organisation under the Department of Agricultural Research and Education (DARE), Ministry of Agriculture and Farmers Welfare, Government of India. Formerly known as Imperial Council of Agricultural Research, it was established on 16thJuly 1929 as a 15 C-3/Item-1 OA-2990/24 registered society under the Societies Registration Act, 1860 in pursuance of the report of the Royal Commission on Agriculture. The ICAR has its headquarters at New Delhi. The Council is the apex body for co-ordinating, guiding and managing research and education in agriculture including horticulture, fisheries and animal sciences in the entire country. With 113 ICAR institutes and 74 agricultural universities, whose research funding is largely met by ICAR, spread across the country this is one of the largest national agricultural research systems in the world. The ICAR has two tiers of Institutes directly under its control: i) The ICAR head quarters with various Divisions, (ii) the ICAR research Institutes (113) and their numerous sub-centres/ regional research centres/stations. The ICAR funds all Krishi Vigyan Kendras under
appropriate Schemes approved by the Ministry of Finance/ Union Parliament through budgetary exercises. The ICAR funds nearly 728 KVKs in the country. The distribution of the KVKs are follows:
The distribution of KVKs under different institutions: Agricultural Universities 499 ICAR Institutes 71 NGOs 100 State Governments 37 16
C-3/Item-1 OA-2990/24 Other Educational Institutions 21 Total 728 The 71 KVKs including the KVK, Shikohpur, Gurgaon are funded through the appropriate Scheme (the KVK Scheme) of the central government through ICAR. The KVKs of ICAR institutes are the implementing arms of the scheme and the manpower are funded through the scheme. In other words, the KVK employees are on deputation from the ICAR- Institutes to manage the Scheme for a particular region. The KVKs have no permanent post created nor they do have permanent employees of its own. The staff structure of each KVK is approved under the Scheme.
11.2 Various functionaries of ICAR including Respondent No.1 exercise their power over administrative and financial matters as per the Delegation of Powers in ICAR issued on 31st May, 1995, amended from time to time by the governing Body of the ICAR.
11.3 ICAR is a society named Indian Council of Agricultural Research, a Society registered under the Societies' Registration Act, 1860. The following are the relevant extracts regarding various authorities and the delegation of powers under the Memorandum of Association of the Society:17
C-3/Item-1 OA-2990/24 "5. Powers of the Society The Indian Council of Agricultural Research is a Society registered under the Societies Registration Act, 1860.
As per Rule 16 of the Rules and Bye-laws of the Society, the ICAR shall have, subject to such restrictions as the Government of India may impose and subject to such guidelines as the Government of India may issue from time to time, in this behalf, full authority to perform allacts and issue such directions as may be considered necessary, incidental or conducive to the attainment of the objects enunciated in the Memorandum of Association of the Society. Authorities of the Society The followings are the authorities of the Society:
(i) President
(ii) Vice-President
(iii) Governing Body
(iv) Director-General DELEGATION OF POWERS 5
(v) Secretary
(vi)Chairman, Agricultural Scientists' Recruitment Board
(vii) Director (DARE)
(viii) Such other persons/bodies, committees or panels as may/shall be constituted orappointed by the Government of India, the Society or the Governing Body.
Powers Vested under the Rules and Bye-laws and Those Delegated Thereunder Schedules I to VI indicate the extent of powers vested in the Director-General, the Secretary, and other officers in the 1CAR, the Chairman/Secretary, ASRB, the Directors of ICAR Institutes/NRCs/Project Directorates, the Project Co-ordinators, the Zonal Co-ordinators and the Management Committees of the ICAR. Unless otherwise provided by any general or special rule or order, it shallbe within the competence of an authority to exercise the powers delegated to another authority subordinate to it. Powers of the Governing Body
1. Powers of the Governing Body
(a) The Governing Body shall exercise all executive and financial powers of the Society including those vested in or conferred or to be conferred on it by or under any statute subject nevertheless in respect of expenditure to such limitations as the Government of India from time to time may impose.
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(b) In particular and without prejudice to the generality of the foregoing provisions, the Governing Body shall have the Power, subject to the provisions of these Rules and Byelaws framed thereunder to:
(i), (ii) , (iii)
(iv) create posts, categorize posts and personnel in the Council;
3. Powers of the Secretary
(a) The Secretary shall exercise all administrative and financial powers as have been conferred on him under the Rules of the Indian Council of Agricultural Research, those of the 'Head of the Department', under the various rules and regulations of the Government of India and such of the Powers as may be delegated to him from time to time.
(b) The Secretary, shall or any member of the Governing Body, if so, authorized by aresolution passed in that behalf by the Governing Body, may execute all contract deedsand other instruments on behalf of the Society or the Governing Body.
(c) For the purpose of Section 6 of the Societies Registration Act (XXI of 1860), the Secretary shall be considered the Principal Secretary of the Society. The Secretary may authorize any other officer of the Society in writing to sign and verify pleadings on his behalf.
(d) The Secretary may, in writing, delegate such of his powers as he may consider necessary to any officer subordinate to him.
(e) In respect of the 1CAR Headquartering the Institutes/Laboratories etc., the Secretary shall exercise all the powers of the 'Head of the Department' for the purpose of various Rules and Regulations of the Government of India as amended from time to time and applicable mutatis-mutandis to the Council till such time the Council frames and enforces its own Rules and Regulations in this behalf.
(f) The Secretary shall have the power to file and defend suits or other proceedings by or against the Council and to compromise, settle or refer to arbitration to any dispute relating to the Council.
(g) For the purpose of Section 6 of the Societies Registration Act (XXI of 1860), the Secretary shall be considered the Principal Secretary of the Society. 19
C-3/Item-1 OA-2990/24 11.4 From the above, the power to create, abolish, change the staff structure of any ICAR institute including the sub- centres and regional centres lies with the Governing Body of ICAR. The Secretary of ICAR, Respondent No.1 does not have such powers as per the delegation of powers reproduced above. Furthermore, the ICAR being fully funded by Government of India, it is subject to the restrictions imposed bythe Ministry of Finance and subject to Parliamentary control through budgetary approvals. Each Scheme managed by ICAR and the staff structure is approved by the Ministry of Finance, Department of Expenditureas approved by the CCEA for the Scheme and as per the broad budgetary outlay approved by the Parliament for the Demand for Grants for the Ministry of Agriculture and Farmers Welfare. The detailing of staff and its composition is subject to the approval of the Department of Expenditure while approving the detailed breakup of the expenditure and staff structure, including the staff salary for various kinds of posts sanctioned under the budget. The creation etc. of posts by the governing body is subject to the overall control of Department of Expenditure. It is not an absolute power vested with the governing body, and under no circumstances Respondent no.1 is authorized to do so.
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C-3/Item-1 OA-2990/24 11.5 The respondents have failed to bring to our notice any delegation of power duly approved by the Governing body subject to the overall over sight of Ministry of Finance, which gives the power to the Respondent no.1 to change the staff structure, number of posts of the ICAR Headquarters and/or the ICAR institutes. Similarly, the respondents have failed to cite any such regulation/ guideline/ circular which gives such power to alter the staff structure, number of posts of any KVK.
11.6 The action of the Respondent No.1 in transferring employees belonging to the Technical Cadre from one institute to another along with post is same as abolishing the post from where the employee gets posted out and creating a post in the institute to which he/she is posted. Accordingly, such exercise amounts creation and abolition of sanctioned posts in ICAR institutes and as discussed above, the rules and bye-rules of the ICAR does not empower Respondent no.1 with such powers. Hence, the order dated 26.06.2024 by the Respondents under sanction from Respondent No.1 is without any statutory power and against the byelaws of ICAR Society. Apart from that, as it has been rightly averred by the learned counsel for the applicant, it violates the instructions issued by the Department of Expenditure, Ministry of Finance vide m dated 12.04.2017. Clause 5.1 of the said OM states: 21
C-3/Item-1 OA-2990/24 "5.1 Deemed Abolition & Revival of posts:
a. All posts, except newly created posts, kept in abeyance or remaining vacant for a period of more than 2 years in any Ministry Department/ Attached office/ Subordinate office/ Statutory body, would be considered as 'deemed abolished unless an exemption has been given at the time of sanctioning the post. b. A post falling into the category of deemed abolished cannot be filled up prior to obtaining its 'revival' from Department of Expenditure.
c. Statutory posts, the name and level/ pay scale of which is specifically provided for in an Act of Parliament, are exempted from falling in the category of "deemed abolished" on remaining vacant for a period of more than 2 years. Only the posts mentioned in Statute may be considered Statutory, not their support staff.
d. Newly created posts (posts which have been sanctioned recently by Department of Expenditure Cabinet), which do not have RRs would fall under the category of "deemed abolished" after a period of 3 years from the date of creation unless it is clarified that this relaxation would not be applicable to those newly created posts which have existing RRs. e. Revival of posts would be considered in rare and unavoidable circumstances only.
f. Proposals for revival of posts may be referred to this Department on file, along with the prescribed checklist issued by this Department (Annexure-II). Separate checklist may be prepared for each post. Proposals received without proper checklist would not be considered."
11.7 The respondents in their counter affidavit have stated that this OM was applicable to all Ministries and Departments, not to autonomous bodies under Ministries and Departments. The Ministry of Finance issued separate letter on similar lines for autonomous bodies on 4.01.2024 and ICAR adopted the said instructions on 12.02.2024. 22
C-3/Item-1 OA-2990/24 11.8 Even we go by the assertion by the respondents that they adopted the Ministry of Finance guidelines on 13.02.2024, Respondents have issued impugned order on 26.06.2024, thereby violating the guidelines while transferring the applicant along with post, which amounts to abolishing a post at ICAR Headquarters and creating a post in ICAR-IARI (KVK, Shikohpur). Again Respondent No.1 is not authorized for such creation and abolition of posts.
11.9 The KVKs in general and those directly under the ICAR institutes are largely funded through the 100% Central Scheme called "KVK Scheme". The staff structure in each KVK is approved by the CCEA while approving the Scheme. The employees are drawn from the strength of the parent institute. Hence, the staff structure of KVKs cannot be altered by the Institute under which the KVK function unless the Institute itself maintains its overall sanctioned strength. In the instant case, there is no such evidence that IARI has maintained the staff strength of T-III Drivers when the drivers are posted out to ICAR Headquarters along with post nor when T-III drivers are posted along with posts to IARI including its KVKs. On this count, the action of the Respondent No.1 is also contrary to the approved Scheme of the CCEA which approves the KVK Scheme. 23
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12. Both the counsels have relied on the transfer policy governing the employees of the ICAR Technical Services.
The applicant in the OA has relied on the Transfer Policy dated 19.03.2021 issued by the Respondents. As per this policy, under heading Intra Institutional Transfer, clause 2 reads:
"2. Director of the Institute is the Competent Authority for intra-institutional transfer in the case of Category I, Category II and Category III technical staff of the institute, KVKs and Regional Stations/Centres under his/her institute."
The above does not give automatically the competency to Respondent No.1 to effect intra or inter-institutional transfers.
12.1 The applicant has stated in the grounds of the OA that the action of the respondents in issuing the transfer order dated 26.06.2024 also violated their own transfer policy. This Tribunal has gone a step beyond plain "transfer" and as analyzed above, it is of the view that the transfer along with post amounts to creation and abolition of posts. Hence, the impugned order not only violates the transfer policy of the respondents, when we consider it as a plain transfer, but it is also not backed by authority to creation/abolition of posts when such transfer is "Transfer along with posts".
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C-3/Item-1 OA-2990/24 12.2 When this Tribunal asked the Respondents to clarify whether Respondent No.1 is competent to alter the staff structure (reducing or increasing the number of posts) in a KVK or ICAR institute or ICAR headquarters by transferring employees along with post, vide their affidavit dated 6.03.2025 (answer to query no.4), they have admitted that the Secretary ICAR (Respondent No.1) is not competent to alter the staff structure of any ICAR institute, KVK, or ICAR Headquarters. They have stated the case at hand a plain transfer, which this Tribunal does not accept. The case at hand is a Transfer along with post, which is distinctly and substantially different from a plain Transfer.
13. Conclusion 13.1 In view of the above analysis, this Tribunal is of the view that the respondents while ordering the transfer of the present applicant from ICAR headquarters to KVK Shikohpur, along with post, have violated the statutory provisions in ICAR bye-laws and policy instructions issued by the Ministry of Finance vide their OM dated 12.04.2017, Transfer Policy of the Respondents dated 19.03.2021. However, the applicant has failed to substantiate the allegation of malafide and colourful exercise of power by the respondents transferring the present applicant along with post from ICAR Headquarters to a KVK under an ICAR Institute. The Apex Court in Gobardhan Lal (supra) has 25 C-3/Item-1 OA-2990/24 held that "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 allegations of malafide, bias and colourful exercise of power have not been corroborated by any concrete material. This Tribunal is not convinced by the pleadings of the applicant and averment by his counsel in this regard.
14. In view of the above, the present OA is allowed and the Transfer order dated 26.06.2024 (impugned order) issued by the respondents is hereby quashed. The respondents shall allow the present applicant to work as T- III Driver at the ICAR Headquarters. However, the Respondents are at liberty to reshuffle its staff including the present applicant on a future date following the applicable bye-laws of the ICAR Society, guidelines issued by Ministry of Finance and its own transfer policy. No order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta) Member (A) Member (J) /dkm/