Central Administrative Tribunal - Lucknow
Rashid Hussain vs Union Of India on 21 October, 2022
CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No. 332/00106/2018
Order reserved on : 22.07.2022
Order pronounced on : 21.10.2022
CORAM
HON‟BLE MR. DEVENDRA CHAUDHRY, MEMBER (A),
Rashid Hussain, aged about 53 years, son of Shri Late
Ashfaque Hussain, Religion- Muslim, Qualification- M.C.A.
Resident of Flat No. 510, F.I. Tower, 37 Cantt. Road, Lucknow
2260001.
..Applicant
By Advocate: Shri Raj Singh.
VERSUS
1. Union of India through its Secretary, Ministry of
Communication and Information Technology, New Delhi.
2. Director General, National Informatics Centre, A-Block,
C.G.O. Complex, Lodhi Road, New Delhi.
3. Deputy Director General (Pers), National Informatics Centre,
New Delhi.
4. State Informatics Officer, National Informatics Centre, Uttar
Pradesh State Unit, Yojna Bhawan, 9 Sarojini Naidu Marg,
Lucknow, U.P.
5. Joint Director (Pers.), National Informatics Centre, New
Delhi.
..Respondents
By Advocate: Ms. Prayagmati Gupta
ORDER
Per Hon‟ble Mr. Devendra Chaudhry, Member (A) The present O.A is a second round of litigation and is against the transfer order dated 14/12/2017 passed by Joint Director [Pers], National Informatics Centre ['NIC' in short hereinafter], New Delhi {respondent-5} whereby the applicant has been transferred from Lucknow to Jammu. Vide amendment application, relief is also Page 1 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors sought with regards to quashing the order dated 01/01/2018 by which the representation dated 18/10/2017 has been rejected which order was passed by the respondents in compliance of the order of this Tribunal dated 22.12.2017 with regards to disposal of representation of applicant dated 18/10/2017.
2. Per applicant, the challenge to the impugned transfer order is inter alia, on following major grounds viz: -
(i) that Jammu is a hard station posting and the impugned order is against the NIC‟s Hard Area Policy issued vide Circular dated 11/01/2017, because, the applicant has already been posted earlier to a Hard Area station - Nainital initially on 25/02/1988, wherefrom he was transferred to Moradabad on 23/09/1988 and second posting is not permissible per guidelines;
(ii) per DOPT transfer guidelines of 30/09/2009, spouse should be posted together in same station or close by station and the current posting is to Jammu while the spouse is working as a teacher at the Vidyant Hindu PG College, Lucknow, U.P. where she has joined on 01/08/1996, and moreso also because his wife has been diagnosed for breast cancer in 2016
(iii) the order is against the law laid down with regards to transfer guidelines by the Hon‟ble Supreme Court in Writ Petition (C) No. 82/2011 dated 31.10.2013, TSR Subramanian v/s UoI ['Subramanian' in short hereinafter] specifying the competent authority for any transfer as evident from the impugned order which is passed by an authority who is at variance with the authority Page 2 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors specified in the transfer guidelines dated 20/02/2014 notified by the Department of Electronics & Information Technology ['DEITY' in short hereinafter]. Hence, the impugned order is passed by an incompetent authority and so liable to be quashed.
2.1 The applicant has also placed reliance on the judgment and order of CAT, PB, New Delhi in O No. 4417/2014, order dated 05.03.2015, Vijay Pratap Sharma Vs Union of India [„Sharma‟ hereinafter] as also, CAT Chandigarh Bench in OA No. 1522/20147 order dated 22.12.2017 and some other citations.
3. Per contra, the respondents have repelled the plea of the applicant on the following grounds:
(i) That the applicant has tried to mislead the Tribunal by concealing the material fact that the orders of the Hon‟ble CAT, PB, New Delhi passed in OA No. 4417 of 2014 (Vijay Pratap Sharma Vs Union of India) dated 05.03.2015 (Annexure SA-2) to the Supplementary affidavit were challenged by the Department in the Hon‟ble High Court of Delhi by filing Writ Petition (C) No. 5158 of 2015 (Union of India & Ors. vs. Vijay Pratap Sharma) and the Hon‟ble Court in its order dated 19.04.2017 [Annexure SCR-1] has specifically observed in Para 7 as under:-
"However, we make it clear that the said order shall not form a binding precedent on the Tribunal, and in case the issue with regard to the competence of the Director General, NIC to issue order of posting/transfer arises in any other case, the same shall be independency considered, after taking into account all the material placed on record."
Therefore, the assertion by the applicant that similar relief has been granted by CAT PB in the matter of Sharma [supra] is misleading and Page 3 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors cannot be considered;
(ii) that the Director General [DG] NIC is the notified competent authority in matters of transfer of all employees of NIC and has in that capacity, issued the transfer policy vide O.M. dated 19/03/2014 [Annexure SCR-3] and the policy for Hard areas vide Circular dated 11/01/2017 [Annexure SCR-6]. That the transfer is per the policies aforesaid and hence it is by a competent authority;
(iii) the applicant has tried to mislead the Tribunal in his assertion that the O.M. dated 20/02/2014 applies for transfer of NIC employees because the same is only with regards to transfer of the employees of the Department of Electronics and Information Technology ['DEITY' in short hereinafter] and is applicable only to employees under the DEITY and not NIC which is a separate attached Office of DEITY, but with own authorization with regards to transfer matters for any level of employee including the applicant which point is clarified by DEITY itself vide letter dated 19/06/2015 [Annexure SCR-4] respectively;
(iv) that the DG NIC being the competent authority for transfer of any employee of any level in the NIC has, in compliance of the law laid down in the matter of Subramanian [supra], notified a separate Committee for recommendation of transfers of all levels of officers of NIC, which is in line with the directions of DEITY vide O.M. dated 16/04/2015 ['April 2015' in short hereinafter] which is subsequent to the O.M. dated 20/02/2014 issued by DEITY and that the O.M. dated 16/04/2015 [Annexure SCR-5] is in compliance with the law laid down by the Hon Apex court in the Subramanian [supra], matter of and all NIC officers are governed with regards to their Page 4 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors transfer matters by this Circular of April 2015 and not OM dated 20/02/2014 of DEITY as erroneously asserted to by the applicant;
(v) that the impugned transfer order has been made by the competent Committee after inviting applications vide Circular 16/01/2017 (Annexure-SCR-7) and the competent Committee vide its meeting dated 19/09/2017 transferred one Pradeep Kumar - Scientist „B‟ to NIC UP, who had been posted at Jammu for last more than 07 years. That the Committee vide its minutes dated 24/10/2017 (Annexure-SCR-9) recommended transfer of the applicant to NIC Jammu because the applicant has been posted for over 29 years at Lucknow NIC U.P. and is the senior most Scientist in level „F‟ and hence was liable to be transferred.
(vi) That Circular dated 19/3/2014 clearly lays down the transfer policy of NIC per examination by a specified Committee. The policy specified that the application request form officials posted for more than a period of 03 years in para 3.5 in a Hard area shall be considered on priority - further modified to two years vide Circular dated 11/01/2017 para-ii : Annexure SCR-6 of short counter reply dated 12/01/2018 filed by the respondents. That, hence name of Shri Pradeep Kuamr who was posted in J&K for more than seven years was considered and the applicant‟s plea of his initial posting at Nainital being a Hard station and again transfer to Jammu which is also a hard station is in violation of the said transfer guidelines, is misleading inasmuch that the posting to Nainital was for barely seven months and was ab initio done because the posting of the applicant at the time of appointment could be done only against a vacant post and when the applicant was appointment, the vacant Page 5 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors post then available was at Nainital and so the applicant had to be posted only at Nainital, as posting could be done against a vacant post only. Moreso, applicant was stationed at Nainital for barely seven months after his initial posting on being appointed in the NIC Nainital as we was transferred to Moradabad vide 23/9/1988. That since posting at a Hard station is typically for at least three years as per policy Circular dated 19/3/2014 para 3.5 referred above, hence it cannot be said that the applicant was posted for the full requisite time at Nainital -viz three years and it was for this reason that as the applicant had not done a three year posting in Nainital or any other hard area therefore, his transfer to Jammu is compliant with the transfer guidelines even if Jammu is a hard station as Nainital was;
(vii) the Director General [DG] NIC, is the Head of Department vide Circular dated 20/07/2001 of the Ministry of Information Technology and so has all the powers per the Fundamental Rules/Supplementary Rules of a HOD with regards to transfer and organizational matters except for those specified in the said Circular with regards to creation of posts, budgetary matters etc;
(viii) That the impugned transfer is therefore by a competent authority and in full compliance of the law laid down by the Hon Apex court in the matter of TSR Subramanium v/s UoI dt 31/10/2013 in CP No. 82/2011 as specified in the Circular dated 16/4/2015 [Annexure SCR-5].
3.1 Therefore, the impugned order is not in violation of any order of any Court or the notified guidelines and Circular of the Ministry / Department of the Government of India including the DEITY/Ministry of Information Technology / Ministry of Page 6 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors Communications & Information Technology and as the applicant misleadingly would wish the Tribunal to believe. Thus there are no merits in the O.A which needs to be dismissed at the admission stage.
4. Heard the ld counsels for the parties in extenso on final hearing and perused the documents filed carefully.
5. The key issue is the vires of the transfer order qua it being passed by a competent authority and in consonance with the guidelines in that respect per the rival contentions of the parties.
6. As regards the Hard posting at Jammu in the context of earlier posting at Nainital - another Hard station, the respondents argument wins the day that any posting to Hard area is typically for a period of at least two years, per para-ii of the guidelines of 11/01/2017 [para-9 of short count reply dated 12/01/2018 filed by respondents refers] which was three years the earlier Circular of 19/3/2014 : Annexure SCR-3 to the short counter reply filed by respondents vide 12/01/2018]. That since the applicant was at Nainital only for barely seven months and that too on account of his first posting which had to be against a vacant post and that, soon after initial posting to Nainital vide his joining at Nainital on 25/02/1988 (Annexure-A-2) was posted to Moradabad vide 23/09/1988 (Annexure-A-4) - a non-Hard location, hence there is no violation of guidelines insofar as the impugned order of posting is concerned. More so, the applicant has the highest period of residency of 29 years in the list of Scientist-F officers posted at NIC Uttar Pradesh State Centre. Therefore, this Tribunal is in agreement Page 7 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors with the assertion of the respondents that the posting to Jammu is per the NIC policy guidelines.
6.1 The applicant has in this connection alleged mala fie in a pleading dated 15/05/2018 - a reply - to the supplementary affidavit of the respondents - whereby it is stated that some other officers were more eligible but only he was transferred due to mala fide. It is trite to observe that mala fide cannot be asserted in accordance with law as laid down by the Hon Apex court in a catena of judgment according to which, for any allegation of mala fide the mal animus has to be established by arraying the party concerned and we do not have any arraying of any officer(s) by name against whom the applicant would deem to allege malafide. In fact the respondents are all arrayed as official respondents as maybe seen from the array of parties. In fact, a strong foundation has to be made and the person concerned against whom malafides are raised is necessarily to be arrayed as a party with an opportunity to comment upon, failing which the malafide would not be established in law. There is a heavy burden to be discharged in case of one who alleges malafide, as ruled by the Apex Court in Indian Railway Construction Co. Ltd. v. Ajay Kumar . Mere allegations of malafide on general basis is not apt and sufficient in law to establish it, as ruled by the Apex Court in Prakash Singh Badal v. State of Punjab . Also held by the Apex Court in B.S. Reddy v. Karnataka Urban Water Supply Board 2007 (1) SCC (L&S) 548 that the burden to establish malafide is on one who alleges it. 6.2 As regards, the supplementary affidavit filed vide M.A. No. Page 8 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors 3927 of 2017 by the applicant, he has referred the transfer policy dated 27.07.2020 which also deals with the transfer to the hard area. The same transfer policy cannot be made applicable in the case of the applicant because the transfer is of on earlier date as correctly asserted to by the respondents in their reply of 20/04/2022. The transfer policy cannot be retrospective in nature. Therefore, the whole issue of the applicant being posted to Jammu against the hard area policy of NIC is held negative against the applicant.
7. As regards spouse posting together with the applicant, the applicant has referred to Circular dated 30/09/2009 against which the respondents argument that the applicant has been in UP for 29 years and the factum that it is undisputed that the applicant has one of the highest period of residency in the list of Scientist-F officers posted at NIC Uttar Pradesh State Centre is enough to strike down applicant‟s assertion of spouse posting because, while the guidelines enable similar location posting with spouse but that cannot be a plea for being posted for entire life time of career at spouse place of posting. This is important from the point of view that the wife of the applicant is a teacher in a private aided College in Lucknow, which is a non-transferrable job and hence would for all her career would continue to be posted at Lucknow with no chance of being posted any where outside Lucknow. Hence if the applicant is contriving to stay at Lucknow for all the life time of the career of his spouse on the plea of the DOPT Circular of 2009, then alas, this is not justifiable. It has also to be clearly understood by the applicant that the transfer guidelines are just that and not an Act under the Constitution to be Page 9 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors followed to the letter without any regards to administrative requirements in matters of the government being able to post its employees. The additional plea that just because the applicant‟s wife is diagnosed with cancer hence, he should be allowed to continue is not further justifiable at a location where he has been enjoying the posting for last 29 years.
7.1 Here it would be useful to recall the law on transfer is quite clear and quite recently the Hon High Court Uttrakhand at Nainital in the matter of Dr. Parveen vs Director General on 19 March, 2019 Writ Petition No.99 of 2019 (S/B) with Stay Application No.3074 of 2019 held as under in an omnibus type of a judgment :
"..25. Transfer of a public servant, on administrative grounds or in public interest, should not be interfered with unless there are strong and compelling grounds rendering the transfer order improper and unjustifiable. (Rajendra Ch. Bhattacharjee25). Who should be transferred, and posted where, is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any operative guidelines or rules, Courts should not, ordinarily, interfere with it. (Kendriya Vidyalaya Sangathan19; S.L. Abbas1; Major General J.K. Bansal20; Abani Kanta Ray26). A government servant holding a transferable post has no vested right to remain posted at one place, and 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. (Shilpi Bose2; Major General J.K. Bansal20). A person holding a transferable post, unless specifically provided in his service conditions, has no choice in the matter of posting. (Rajendra Ch. Bhattacharjee25). Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. (Pearlite Liners (P) Ltd.27). In a transferable post, an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department, and not the Court. (Rajendra Roy28). When an employee does not join at his transferred place, he commits a misconduct. (Novartis India Ltd.29). Non-compliance with the transfer order amounts to refusal to obey the orders passed by superiors, for which the employer can reasonably be expected to take appropriate action against the employee concerned. (Pearlite Liners (P) Ltd.27).
26. Unless the order of transfer is shown to be an outcome of a malafide exercise of power or as violative of any statutory provision (an Act or rule) or is passed by an authority not competent to do so, it cannot lightly be interfered with as a matter of course or for every type of grievance sought to be made. (Gobardhan Lal3). The employer is entitled to decide, on a consideration of the necessities of administration, whether transfer of an employee should be made to a particular place. The employer is in the best position to judge as to how to distribute its Page 10 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors employees at different places. Courts/Tribunals should be wary of interfering with such orders made by the employer in discharge of its managerial functions.
If an order of transfer is made malafide, or for some other ulterior purpose, Courts/ Tribunals may interfere and set aside such an order of transfer, as mala fide exercise of power is not considered an exercise of power in law. The finding of malafide should, however, be reached by Courts/Tribunals only if there is sufficient and proper evidence and such a finding should not be reached capriciously or on flimsy grounds. (Syndicate Bank Ltd.30). Transfer orders should not be interfered with except where the transfer has been made in a vindictive manner. (Public Services Tribunal Bar Assn.24; Tushar D. Bhatt31).
27. Questions, as to whether the transfers effected are in public interest or not, are normally not examined as this would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at one particular place or to a place of his choice since transfer of a particular employee, appointed to the class or category of transferable posts from one place to another, is not only an incident, but a condition of service, necessary in public interest and efficiency in public administration. Except, in exceptional circumstances, Courts or the Tribunals do not, normally, interfere with such orders as if they were appellate authorities substituting their own decision, for that of the employer/management, with respect to such orders passed in administrative exigencies. (National Hydroelectric Power Corpn. Ltd.22 and Siya Ram32).
28. Courts or tribunals are not appellate forums to decide on transfer of employees on administrative grounds. Wheels of administration should be allowed to run smoothly and Courts/ tribunals are not expected to interdict the working of the administrative system by transferring officers to places it considers proper. It is for the administration to take appropriate decisions, and such decisions shall stand unless they are vitiated either by malice or extraneous considerations. (S.S. Kourav4). Orders of transfer should not be interfered with lightly by a Court of law in the exercise of its discretionary jurisdiction. (Anjan Sanyal33). Courts or Tribunals cannot substitute their own decisions, in the matter of transfer, for that of the competent authorities. (Gobardhan Lal3; Kendriya Vidyalaya Sangathan19; Janardhan Debanath21; National Hydroelectric Power Corpn. Ltd.22; S.L. Abbas1; B.C. Chaturvedi34; National Hydroelectric Power Corpn. Ltd.22; Major General J.K. Bansal20).
29. Since the petitioner's claim, of the transfer order being illegal, is primarily based on the ground that it is vitiated by malafides, it is necessary to take note of the circumstances under which a transfer order can be set aside on this score. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an "alien" purpose, other than the one for which the power is conferred, is malafide use of that power. Same is the position when an order is made for a purpose, other than that which finds place in the order. (Express Newspapers (P) Ltd.35). Allegations of malafides, when made, must inspire confidence in the Court and should be based on concrete material. Such allegations ought not to be entertained on the mere making of it, or on considerations borne out of conjectures or surmises. (Gobardhan Lal3). While a reasonable inference of malafide action can be drawn from the pleadings, and antecedent facts and circumstances, there must be firm foundation of facts pleaded and established, and such inference cannot be drawn on the basis of insinuations and vague Page 11 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors suggestions. (Rajendra Roy28). Vague insinuations in the application filed before the Tribunal, or in the affidavit filed in support of the Writ Petition filed before this Court, would not suffice to hold that an order of transfer is vitiated by malafides.
30. Except for a bald averment, no material has been placed by the petitioner before this Court to support the allegations of malafides. Mere use of the word "malafide" would not, by itself, justifying acceptance of such a plea. (Prabodh Sagar36). Allegations of malafides essentially raise a question of fact. It is, therefore, necessary for the person making such allegations to supply full particulars in the petition. If sufficient averments and requisite material are not on record, the court would not make a "fishing" or a "roving" inquiry. Mere assertion, vague averment or bald statement is not enough to hold the action to be malafide. It must be demonstrated by facts. Moreover, the burden of proving malafides is on the person levelling such allegations and the burden is "very heavy". The charge of malafide is more easily made than made out. It is the last refuge of a losing litigant (E.P. Royappa37; Gulam Mustafa38; Ajit Kumar Nag39; and Dhampur Sugar (Kashipur) Ltd.40). Vague allegations of malafides are not enough to dislodge the burden resting on the person who makes the same, though what is required in this connection is not proof to the hilt. The abuse of authority must appear to be reasonably probable. (Express Newspapers (P) Ltd.35). There has to be strong and convincing evidence to establish allegations of malafides specifically and definitely alleged in the petition. The presumption under law is in favour of the bonafides of the order unless contradicted by acceptable material. (Chandra Prakash Singh41; Nirodhi Prakash Gangoli42).
31. While exercising the power of judicial review, the High Court should not readily accept the charge of malus animus laid against the State and its functionaries. The burden to prove the charge of malafides is always on the person who moves the court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to malafides. The Court should resist the temptation of drawing dubious inferences of malafides or bad faith on the basis of vague and bald allegations or inchoate pleadings. (Jasbir Singh Chhabra43).
32. Where a case is almost entirely based on mala fides, the person alleging malice should furnish the necessary particulars for the allegation, and should prove malus animus indicating that the respondent was actuated either by spite or ill will against him or by indirect or improper motives, failing which it is not obligatory for the respondents to deal with it in detail in their reply. Both direct and circumstantial evidence, as well as the respondents' admission and the surrounding circumstances of the case, are admissible to establish lack of bona-fides, or bad faith. (Kedar Nath Bahl44). It is for the person seeking to invalidate an order to establish the charge of bad faith. Such a charge may be made easily or without a sense of responsibility, and that is why it is necessary for Courts to examine it with care and attention. (S. Pratap Singh45; Kedar Nath Bahl44).
The citations of the Hon Apex court by the ld respondents counsel in counter reply dated 20/04/2022 to the supplementary affidavit are old hand citations concerning SC Saxena [{2006} 9 SCC], SS Kourav Page 12 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors [JT 1995(2) SC 498], Anjal Sanyal [2001 (3) SC 436 which are summated in the above encyclopedic citation of the Hon High Court Allahabad. This Tribunal is afraid that it cannot do anything to give any iota of consideration on this plea to the applicant. 7.2 Hence on the basis of above analysis the issue of being posted together with spouse per the DOPT guidelines is held in negative against the applicant.
8. As regards the challenge to the NIC Policy itself being notified by DG NIC who the applicant asserts is a non-competent authority in light of the DEITY Circular of 20/02/2014, the applicant‟s challenge to the transfer policy of 19/03/2014 [Annexure SCR-3] and also the transfer policy guidelines issued vide date 11/01/2017 [Annexure No-3 : compilation-II of O.A / Annexure SCR-6] by the NIC, is highly misplaced inasmuch that -
(a) none of these documents no-where state that the transfer of a certain level of officers will be by the Ministry or the Department of the Government of India relating to NIC
(b) In fact it is such a misleading assertion of the applicant who in para-J of the „Grounds‟ takes support to the transfer policy of 11/01/2017 for making his plea qua Hard posting which policy is issued by the DG NIC and now when it comes to transfer per the policy he is challenging the very same authority. If this is not an example of the height of approbation and reprobation doctrine what else can be, one wonders?.
8.1 At this juncture it would be useful to recall the doctrine of approbation and reprobation. The ld counsels may it is sure recall, Lord Atkin‟s remarks on the doctrine of approbate and reprobate Page 13 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors which has been quoted in many a judgments. He observed that this doctrine applies in a situation when a person has to make a choice between two rights but he cannot choose both. If he chooses one between the two, then cannot afterwards choose to assert the other. Lord Blackburn observed on similar lines that when a man has to choose one or the other of two inconsistent things and when he has made his election, there cannot be a retraction from the option so chosen. In HALSBURY‟S Laws of England it has been further observed:
The doctrine of approbate and reprobate is a species of estoppel which lies in between estoppel by record and estoppel in pais. The doctrine of election is based on the rule of estoppel and the principle that one cannot approbate and reprobate is inherent in it. The doctrine of election and underlying doctrine of approbate and reprobate is a rule of equity. Where a person knowingly accrues the benefits of an instrument, he is estopped from denying the validity or the binding effect of such instrument. "
The principle of approbate and reprobate is based on the maxim "allegans contraria non est audiendus", which means that when one utters statements contradictory to one another the same shall not be heard. It is also another principle of the doctrine of approbate and reprobate that it is an application of the doctrine of election. Its operation is confined to reliefs claimed with respect to the same transaction and as also to the persons who are parties to that very transaction. The principle of election in essence, does not forbid a party from claiming the same relief against parties who are different persons in an altogether different suit. Relief can also be claimed in respect of the same property even if the grounds of relief are different and inconsistent. In situations where there is absolutely no election between two alternative and mutually exclusive remedies or two Page 14 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors alternative courses of action, the principle of estoppel by election would not apply. If the parties take up a particular stand before the Court at one stage of the litigation it is not open to them to further approbate and reprobate and to rescind from that position. It is trite to in fact state that the doctrine has firm foundation in our jurisprudence. Following case laws refer -
i. Rupchand Ghosh v. Sarveswar Chandra, (1906) 33 Cal 915 ii. Jaikaran Singh v. Sita Ram Aggarwala, AIR 1974 P 364 iii. Yamunabai Purushottam Deogirikar v. Mathurabhai Nilkanth Choudhuri, AIR 2010 (NOC) 109 (Bom) iv. In HALSBURY‟S Laws of England 4th Edn., Vol. 16, para 1507, page. 1012 v. MPB v LGK [2020] EWHC 90 vi. Bhabu Ram v. Baij Nath Singh, AIR 1961 SC 1327 vii. CIT v. V. MR. P. Firm Muar, (1965) 1 SCR 815 : AIR 1965 SC 1216 : (1965) 56 ITR 67 viii. Union of India v. Bridge & Roof Company (I) Limited, 2006 SCC OnLine Cal 158 : (2006) 2 CHN 263 : (2006) 3 ICC 432 : (2006) 3 Arb LR 428 at page 267 ix. Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366 x. Union of India v. Muralidhara Menon, (2009) 9 SCC 304 xi. Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd., (2011) 10 SCC 420 xii. R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683 xiii. Bhagwat Sharan v. Purushottam, (2020) 6 SCC 387 xiv. Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd. [(1921) 2 KB 608] Therefore, suffice it to say that the plea that the transfer policy per the grounds by the applicant above that it is not issued by a competent authority is not tenable. The issue of competency of the Page 15 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors DG NIC with regards to transfer of the applicant will be discussed in more detail in the later part of this judgment.
9. This brings us to the last substantive plea of the impugned order not being passed by competent authority per the law laid down by the Hon Apex court and the circular of DEITY of 20/02/2014 relied upon by the applicant. This plea of the applicant is easily debunked at the outset itself by the clarification dated 05/03/2018 and the earlier O.M. of 19/6/2015 of the Ministry under whom the NIC functions as an attached office. Relevant portions are extracted below:
Circular dated 20/02/2014:
"No. 8(1)/2014/Pers.I Ministry of Communications & Information Technology Department of Electronics & Technology 6, CGO Complex, Lodi Road, Electronics Niketan New Delhi: 110003 Dated: 20.02.2014 OFFICE MEMORANDUM Subject: Constitution of Committees for recommending posting/ transfer of Deity's officers/officials-regarding The undersigned is directed to refer to DoPT's communication no. 11013/10/2013-Estt.A dated 27.12.2013 on the subject cited above. In compliance of Supreme Court's judgment dated 31.10.2013 in WP (Civil) no. 82/2011, it has been decided to constitute various committees for S&T/non S&T in DeitY, the details of which are given below:-
Sl No. composition of the Committee Competent Authority to accept the recommendations
(a) For officers of S&T cadre (Sc. „G‟ holding the position of GC) (I) Secretary, DeitY Hon'ble MCIT (II) Addl. Secretary, DeitY
(b) For officers of S&T cadre at the level of Sc. „G‟ & below (upto Sc.
„D‟)
(i) Addl. Secretary, DeitY Secretary, DeitY
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CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors
(ii) Jt. Secretary (Pers.)
(iii) One of other GCs to be nominated by Secretary ......................
2. The committee while recommending posting/transfer would keep in view the workload, requirement, individual hardships, past posting profile, nature of duties attached to the post and CVC guidelines etc. However, any officer can be transferred by the Competent Authority at any time on administrative grounds.
Sd/-
(R.P. Pradhan) Deputy Secretary"
-------------------------------
O.M. dated 05.03.2018:
भारत सरकार Government of India इले क्ट्रॉनिकी और सूचिा प्रौद्योनिकी मंत्रालय Ministry of Electronics & Information Technology इले क्ट्रॉनिक्स निकेति, 6, सी जी ओ कॉम्पले क्स, िई निल्ली- 110003 Electronics Niketan, 6, CGO Complex, New Delhi-110003 Website: www.melty.gov.in PNG 8(1)/2014-Pers.I नििांक Date 5.3.2018 To, The Director General National Informatics Centre CGO Complex New Delhi - 110003.
Subject: Transfer/Posting of NIC personnel - reg. Madam Reference is invited to NIC proposal contained in File No. 1(1)/2018Pers. on the above mentioned subject.
2. The matter has been examined in the Ministry and the following is informed/clarified:
(a) Meity OM No. 8(1)/2014-Pers.I dated 20.2.2014 (copy enclosed) regarding Transfer/Posting Committee is NOT applicable in r/o NIC as it pertains to the personnel of this Ministry's Headquarters only. The Transfer/Posting Policies of the Attached Offices viz. NIC and STQC Dte., along with the OM dated 20.2.2014 ibid has already been forwarded to DOPT vide our OM of even number dated 14.3.2014 (copy enclosed), for information in compliance to the judgment of the Hon'ble Supreme Court dated 31.10.2013 in WP(Civil) No. 82/2011.Page 17 of 45
CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors
(b) This Ministry vide OM No.M-11019/1/99-MS(O&M) dated 20.7.2001 (copy enclosed) has already declared DG(NIC) as the 'Head of Department' under Rule 13(2) of Delegation of Financial Power Rules, 1978 (DFPR-1978). Consequently, all powers vested in the Ministries/Departments stand delegated to DG(NIC), except the following:
(i) creation of posts:
(ii) write-off of losses; and
(iii) re-appropriation exceeding 10% of the original budget provision.
(c) Reference is also invited to M/o Finance OM No. P.10(13 E. Coord/75 dated 8.3.1975 (copy enclosed) vide which it has been clarified that this delegation of powers to the Head of the Department is in respect of all the sets of Rules, vir Delegation of Financial Power Rules, General Financial Rules and Fundamental Rules & Supplementary Rules, delegations made by the Government under FR-6, full power to transfer a Government servant from one post to another under FR-15, lies with the Head of Department viz. DG(NIC) in this case (copy enclosed). Hence, DG(NIC) is fully competent to transfer any officer of NIC in her capacity as Head of Department.
(d) Further, under Rule 13(3) of DFPR-1978, the Head of a Department may, by an order in writing, authorize a Gazetted Officer serving under him to exercise to such extent, as may be specified in that order, all or any of the powers conferred However, the Head of the on the Head of Department. Department shall continue to be responsible for correctness, regularity and propriety of the decisions taken by the Gazetted Officer so concerned.
3. In view of the above, it is reiterated that MeitY OM No. 8(1)/2014Pers.I dated 20.2.2014 is NOT applicable in the case of NIC personnel and that DG(NIC), in her capacity as Head of Department, is fully competent to transfer any NIC personnel in accordance with its Transfer/Posting
4. NIC File No. 1(1)/2018-Pers. is returned herewith.
5. This issues with the approval of Secretary.
Yours faithfully.
Sd/-
(Trilok Chandra) Director (Personnel) Tele: 24364591 Email: trilok [email protected] .....................
The Circular is buttressed by the earlier Circulars / OM dated 20/07/2001, 19/06/2015 and 26/11/2015 - also on the matter of powers of DG NIC. The same read as under:
Page 18 of 45
CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors O.M. dated 20/07/2001:
"No. M. 11019/1/99-MS (O&M) Ministry of Communications & Information Technology Electronics Niketan 6, CGO Complex, Lodi Road, New Delhi, Dated: 20.07.2001 ....
....
Subject: Delegation of powers under Delegation of Financial Powers Rules, 1978.
Sir, In exercise of the powers conferred by rule 13(2) of the Delegation of Financial Powers Rules 1978, I am directed to convey the sanction of the President to the delegation of all powers vested in the Ministries /Department of the Government of India under the aforesaid Rules to you subject to the condition that you will have no power in respect of the following:
(a) Creation of posts;
(b) Write off of losses; and
(c) Reappropriation of funds exceeding 10 per cent of the original budget provision for either of the primary units of appropriation or sub-head, i.e. the primary unit or sub-head from which the funds are being reappropriated or the primary unit or sub-head to which the funds are to be reappropriated, whichever is less.
2. The powers delegated to you shall, by this letter, be exercised by you in consultation with the JS&FA, Ministry of Information Technology (MIT) and the fact of such consultation incorporated in the relevant sanctions.
3. The exercise of the delegated powers shall be governed by procedural and other instructions issued by the Government of India from time to time in so far as they are applicable to the Ministry of Information Technology.
Yours faithfully, Sd/-
(Smt. P.M. Singh) Jt. Secretary to the Govt. of India
----------------------------------
Page 19 of 45
CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors Annexure SCR-4 - dated 19/06/2015 "No. 16(4)/2013/Pers.I Ministry of Communications & Information Technology Department of Electronics & Technology 6, CGO Complex, Lodi Road, Electronics Niketan New Delhi: 110003 Dated: 19.06.2015 .....
...
Subject: Clarification of applicability of DeitY's OM No. 8(1)/2014-Pers.I dated 20.02.2014 on the employees of NIC regarding their postings and transfers enabling DG, NIC to file affidavit in the Hon'ble High Court of Delhi-reg.
Sir, I am directed to refer to your letter No. 18(15)/2014-Pers/264 dated 03.06.2015 on the above subject and to say that O.M. 8(1)/2014-Pers.I dated 20.02.2014 is not applicable to the employees of NIC.
2. Reference is also invited to this Departments letter No. M-11019/1/99-MS (O&M) dated 20.07.2001 (copy enclosed) conveying the sanction of the President regarding Delegation of Power to the Director General, National Informatics Centre, New Delhi.
3. In view of Para 2 above, it is informed that the DG (NIC) has all the power referred therein, including power to transfer all the employees of the National Informatics Centre.
Sd/-
(Naresh Kumar) Section Officer"
------------------------------------
O.M. dt 26.11.2015 - Annexure : SA2 "Government of India Ministry of Communications and Information Technology Department of Electronics and Information Technology No. M-11017/1/2014-MS (O&M) Date: 26.11.2015 The Director (General) National Informatics Centre (NIC) A-Block, CGO Complex, New Delhi - 110003 Subject: The Delegation of Powers in the National Informatics Centre (NIC), Page 20 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors Department of Electronics & Information Technology (Deity).
Sir, Reference is invited to the National Informatics Centre (NIC)'s proposal vide note dated 19/02/2015 requesting various amendments in Rule 13 and 21 of DFPR and Rule 46 of Fundamental Rules in the Delegation of Powers of NIC issued vide this Department's Office Order of even number dated 17/07/2014, 21/10/2014 and 16.01.2015.
2. In this regard, it is clarified that vide this Department letter No. M11019/1/99-MS (O&M) dated 20.07.2001 the Director General (NIC) was declared as Head of Department of NIC. Subsequently, in this Department's letter No. M-11019/1/99-MS (O&M) dated 20.07.2001, addressed to DG (NIC), it was stated that "In exercise of the powers conferred by rule 13(2) of the Delegation of Financial Powers Rules 1978, Deity conveyed the sanction of the vested in the President to the power delegation of all Ministries/Departments of the Government of India under the aforesaid Rules, to DG(NIC) subject to the condition that DG, NIC will have no power in respect of the following: the
(a) creation of posts;
b) write off of losses; and
(c) re-appropriation of funds exceeding 10 per cent of the original budget provision for either of the primary units of appropriation or sub-head, i.e. the primary unit or sub-head from which the funds are being reappropriated or the primary unit or sub-head to which the funds are to be reappropriated, whichever is less.
The powers delegated to DG (NIC) shall, by that letter, be exercise by him in consultation with the JS&FA, Ministry of Information Technology (MIT) [now Department of Electronics and Information Technology (Deity)] and the fact of such consultation incorporated in the relevant sanctions.
The exercise of the delegated powers shall be governed by procedural and other instructions issued by the Government of India from time to time in so far as they are applicable to the Ministry of Information Technology IDP) [now Department of Electronics and Information Technology]*.
3. The provisions of above mentioned letters dated 20.07.2001 (relating to declaring DG(NIC) as Head of Department and delegating the Powers to DG(NIC) under Rule 13(2) of DFPR, 1978 are still operative as mentioned in Para 2 above.
4. Further, attention is invited to Rule 13(3) of DFPR, 1978 which states that The Administrator or Head of a Department referred to in sub-rule (2) may, by an order in writing, authorize a Gazetted Officer serving under him to exercise to such extent, as may be specified in that order, all or any of the powers conferred on such Administrator or Head of Department under sub-rule (1) or sub-rule (2). The Administrator or Head of a Department shall, however, continue to be responsible for the correctness, regularity and propriety of the decisions taken by the Gazetted Officer so authorized."
5. In view of Para 2, 3 and 4 above, since the Department (Deity) has already delegated the powers to DG, NIC, it is for DG, NIC to consider Page 21 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors re-delegating the delegated powers to any of the Gazetted Officer under the provisions of Rule 13(3) of Delegation of Financial Powers Rules, 1978.
6. As regard to Delegation of Power for payment of Honorarium under Rule 46 of Fundamental Rules, the Rule specified the limit of Rs. 2,500/- for Head of Department. As such the request of NIC to enhance it to Rs. 5,000/- is not tenable being not in accordance with the provisions of Fundamental Rules.
7. In view of the above, National Informatics Centre may take necessary action in the matter.
This issues with the concurrence of IFD, Deity, and approval of Secretary.
Yours faithfully, Sd/-
(R.C. Saluja) Director"
9.1 Thus, nothing further needs to be thus seen, once the controlling Ministry of NIC has clarified the powers with regards to DG NIC by the O.M. dated 05/03/2018 and the earlier Circular of 20/07/2001, 19/6/2015 and 26/11/2015 extracted above - as the applicant is heavily relying on their testimony with regards to the Circular for asserting that the DG NIC is not competent to transfer employees within NIC of Group „A‟ or Scientist-F level. More importantly for the purpose of transfer - it is clarified that all powers are delegated except - creation of posts, write-off of losses and re-appropriation with regards to budgetary provision. Quite patently transfer is an authority which stands delegated to the DG NIC with regards to any level of transfer - importantly even Group -A except creation of posts of any level. The O.M. dated 20/07/2001 clearly states that powers regarding creation of posts is with Government and has nothing to do with delegation with regards to transfer powers. The O.M. extract above makes it clear. In fact, the 2001 Circular is in consonance to the circular cited by the applicant viz Page 22 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors letter dt 19/12/2000 [Annexure RA-1] cited by the applicant to contradict the assertion of the respondents that NIC DG does not have powers to transfer Gp A / Scientist-F level officers. The point raised by the applicant that the appointment to the Gp A posts is by the Ministry/Department in the Govt of India and hence the DG NIC does not have the power to transfer Gp „A‟ officers is puerile and liable to be thrown into a shredder because appointment and transfer are two different administrative domains in the government and are with different levels of authorities. The power of appointment being with the government Department does not mean that the transferring authority also vests in the Department /Ministry -
DEITY / MEITY / MCIT whatever the nomenclature be from time to time. What is important is that the applicant is misconceiving the appointment authority versus the power to transfer an employee.
These are two different things. Transfer is different from appointment or creation of a post. Transfer follows once post is created and an employee is posted on that post. It has nothing to do either with creation of post or appointment to a post. Transfer is not an appointment. It is an incidence of service and not appointment which is the way a person is born into the service. This major and fundamental distinction has been missed by the applicant and he is trying to mislead the Tribunal into accepting the misconceived belief that appointment and transfer are identical in service jurisprudence and per law. For that matter the applicant has not challenged any of the O.Ms / Circulars of authority delegations to the DG NIC including the ones cited by the respondents and cited in this judgment above. Mere harping on the point that the transfer is not Page 23 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors be competent authority and so a violation of law laid down by Hon Apex court in matter of Subramanian [supra] is asserting a wrong point of law and akin to flogging a dead horse inorder to wake it up to get up and start cantering. The applicant is also unaware of the functioning of the Ministries of the Govt of India when he asserts that the clarification of 19/06/2015 extracted above is by a Section Officer. All letters of outward communication by any level of the Ministry are issued after approval of the competent authority within the Ministry/Dept. If that were not so then going by the same unjustifiable argument the clarification of 05/03/2018 issued under the signature of the Director should also be ultra vires and with that the assertion in the clarification that the MEITY circular of 20/02/2014 extracted above is applicable only and only to the officers within the MEITY.
9.2 In fact if one looks at the 20/02/2014 Circular extracted above carefully nowhere does it refer to NIC. It is only with regards to transfer of officers of the Department of Electronics and Information Technology within the overall Ministry of Communication and Information Technology consequent to the compliance of the DOPT circular of 27/12/2013 which followed the verdict of Hon Apex court in the matter of Subramanian [supra].
9.3 Therefore, the above Circulars / OMs indisputably establish the authority of the DG NIC to transfer all the employees in NIC and the issue of the applicability of the Circular of 20/02/2014 asserted to by the applicant is held in the negative against him.Page 24 of 45
CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors
10. Now as regards the issue of transfer being by a Competent Committee notified by the competent authority - the DG NIC - the Circulars of 16/4/2015 and O.M. dated 22/4/2015 are relevant which read as under:
O.M. dated 16/04/2015:
"No. 17(3)/2015-Pers.
Government of India Ministry of Communications and Information Technology Department of Electronics and Information Technology National Informatics Centre A-Block, CGO Complex, Lodi Road, New Delhi-110003 16th April, 2015 OFFICE MEMORANDUM Subject: Constitution of Committees for recommending posting/transfer of NIC Officers/Officials- regarding.
In pursuance of the Hon'ble Supreme Court's judgment dated 31.10.2013 in Writ Petition (Civil) No. 82/2011 and DoP&Ts Communication No. 11013/10/2013-Estt.A dated 09.01.2014 and 27.01.2014, it has been decided to re-constitute the posting/transfer committees in National Informatics Centre (NIC) on the lines of committees constituted by Department of Electronics & Information (DeitY) vide OM No. 8(1)/2014-Pers.I dated 20.02.2014 for S&T/non-S&T Officers/Officials of NIC, for Inter-State transfers as per the details given below:-
Sl. Level of Composition of the Competent
No. Officers/Officials to be Committee authority to accept
considered for transfer the
recommendation
(a) For Officers of S&T Director General, NIC
cadre (Scientist "G")
(b) For Officers of S&T
1) 1) DDG(Pers.) Chairman
cadre (Scientists
2) DDG* Member
"F" and below upto
Scientist „D‟) Director General,
3) DDG* Member
For Officers/Officials of
4) 1) DDG* Chairman NIC
(c )
S&T cadre (Scientist 2) Scientist Member
"C" and below) and
3) Scientist Member
Gazetted Officers
( Non-S&T cadre)
(d) For Non-Gazetted 1)Director Chairman
officials (Non0S&T
cadre) (senior-one)
2)Director Member
3)JD(Pers.) Member
Page 25 of 45
CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors *To be nominated by Director General, NIC
2. The above Committee while recommending posting/transfer would keep in view of the workload, organizational requirements, individual hardships, past posting(s)/transfer(s) profile, nature of duties attached to the post and CYC guidelines etc.
3. The powers for postings/transfers of NIC officials within the State/UT from one NIC office to another in the State/UT, both in public interest and on compassionate grounds with the recommendations of the respective NIC State Coordinator have already been delegated by Director General, National Informatics Centre to all State Informatics Officers vide Circular No. 17(5)/2015-Pers. Dated 16.09.2014 and No. 21(1)/2014-Pers. Dated 15.10.2014 respectively.
4. Director General, NIC being the Head of the Department will have the powers for posting/transferring any Officer/Official inter-Group/Division at NIC HQ and also from State/UT to NIC Hq and vice-versa on exigencies arising on administrative grounds/functional needs of the organization in public interest as per the terms and conditions stipulated in the appointment order.
5. The Committee at Sl. No. (b) at para-1 above would also review the existing NICs transfer policy, and also recommend formula to fix the manpower strength of NIC States/UT Units as well as Divisions/Sections at NIC Officials/Officers. The Committee will submit its report within one month from the date of issue of this OM.
6. This Office Memorandum supersedes the earlier OM No. 17(8)/2013-Pers. Dated 21.05.2014 and issues with the approval of Secretary, DeitY.
( G.N. Kalia) Joint Director(Pers.)
--------------------
O.M. dated 22/4/2015 from 3rd supplementary of
respondents counsel
"No.17(3)/2015-Pers.
Government of India Ministry of Communications & Information Technology Department of Electronics & Information Technology National Informatics Centre A-Block, CGO Complex, Lodi Road, New Delhi - 110 003 22 April, 2015 OFFICE MEMORANDUM It has been decided with the approval of the Competent Authority to constitute a committee with the following composition for recommending posting / transfer of NIC #Officers / Officials of S&T Cadre (Scientist "F" and below upto Page 26 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors Scientist "D");
a) DDG (Pers & Admn) -------------- Chairman
b) Shri G.K.Gaur, DDG -------------- Member
c) Shri Vishnu Chandra, DDG ------------ Member
2. The committee would also review the existing NIC's Transfer Policy, and recommend a formula to fix the manpower strength of the NIC States/ UT Units as well as Divisions / Sections at NIC Hqr with respect to the S&T / Non-S&T officials and policy for rotational transfer all NIC officials/officers.
3. The Committee should submit its report within one month from the date of issue of this Office Memorandum.
4. This order comes into force with immediate effect and until further orders.
Sd/-
(G.N.Kalia) Joint Director (Pers.)"
------------------------------
Clearly the Circular of 16/4/2015 and 22/4/2015 together state that there shall be a Committee for transfer of officers of various levels including that of the applicant who is a Scientist of level-F and who will be the members of such a Committee. So the key part of the law per Subramanian [supara] is complied with per above Circular.
11. As regards the citations by the ld applicant counsel, these do not help the applicant inasmuch that:
i. the CAT PB judgment in O.A 4417/2014 has not discussed the Circular of 05/03/2015 as the same was perhaps not available then although the assertion of the powers of DG NIC is very much given in the body of the judgment- para-7 of the judgment. In fact para-10 discusses some issue of malafide in transfer which is nowhere the case here and in any case for Page 27 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors malafide, array of the concerned respondent(s) has to be made in persona as the entire Department cannot be held as being biased or having mala fide against the applicant per law laid down on mala fide by the Hon Apex court in a catena of judgments.
ii. The order of CAT Chandigarh of 22/12/2017 in O.A 1522/2017 is an interim order and does not discuss the Circular of 2015 again in its body and has simply perhaps relied on the judgment of the CAT PB in O.A 4417/2014 judgment dated 05/03/2015 Vijay Pratap Sharma v/s UoI & Ors.
iii. The situation in CAT Cuttack Bench of order dated 21/12/2017 is similar.
iv. As regards the judgment of the Hon High Court Delhi in WP [C] 5158/2015, UOI v/s Vijay Pratap Sharma, the Hon High Court has held in the operative portion paras 6/7 of the judgment that -
"..6. Since the petitioner has accepted the impugned judgment and implemented the same, we are not inclined to interfere with the same by recalling the order...
7. However, we make it clear that the said order shall not form a binding precedent on the Tribunal, and in case the issue with regard to the competence of the Director General, NIC to issue order of posting/transfer arises in any other case, the same shall be independently considered, after taking into account all the material placed on record.."
11.1 There is nothing left to be said after this direction and so the question of jurisdiction qua NIC was never decided by the Hon High Court Delhi. For the ld applicant counsel to even take support of this judgment in asserting that the impugned order is ultra vires as held Page 28 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors by various citation is a massive misreading of the judgments. Even the citation of CAT Ranchi in O.A 051/042/2015, Soumitra Ghosh vs UOI, dated 15/03/2018 is against the applicant inasmuch that it holds the misreading of the applicant therein with regards to assertion that the 20/02/2014 Circular is applicable which the applicant in the case in hand is repeating ad nauseam. The counter reply filed by the respondents against the supplementary affidavit citing the Ghosh [supra] judgment also asserts this and so the citation harms the applicant more than it helps. The citation abstract below would make this clear:
"Evidently, the preamble of the aforesaid OM makes a reference to the OM dated 20.02.2014 issued by the DeitY and states that on similar lines, committees have been constituted for the officers of NIC. Thus, the scheme of the two OMs is quite clear. Both operate for different sets of employees and they are not in conflict with each other. The OM dated 20.02.2014 issued by DeitY in which the committees are headed by Secretary/Additional Secretary/ JS etc. pertains to the officers of Science and Technology cadre and other gazetted and non-gazetted officials under the Department. It appears that the Ministry of Communication and Information Technology, DeitY has another set of Scientists and staff different from NIC. On the similar lines, committees comprising of DDGs/Scientists have been constituted for transfer of Scientists and officials of NIC. The OM dated 16.04.2015 also bears the approval of the Secretary, DeitY which makes it clear that he has endorsed these committees...
Hon'ble Delhi High Court has left the issue of the competence of DG, NIC open. It is clear from the judgment of the Principal Bench dated 05.03.2015 that it pre-dates the OM dated 16.04.2015. Therefore, that judgment is no longer valid on this question of law. On the basis of the aforesaid discussion, we hold that the OM dated 16.04.2015 (Annexure R/4) is the applicable circular for posting and transfer of NIC officers..."
12. As regards the point of no order / decision of the duly constituted Committee of the NIC concerning the transfer of the applicant - the minutes of the concerned meeting of the Committee dated 24/12/2017 [Annexure SCR-9] recommending the transfer of Page 29 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors the applicant by the State level Committee and those dated 11/12/2017 filed by respondents in 3rd Supplementary vide Annexure SA-2 clearly prove that the competent Committee met and approved the transfer of the applicant. The abstracts below testify to this:
Annexure SCR-9 Subject: Replacement against Transfer under Hard Location Transfer Policy To: sio@up-nic............ Dated: 10/24/17 01.16.PM To, Joint Director (Personnel) NIC HQ, New Delhi.
Subject: Decision of the State Transfer Committee of NIC Uttar Pradesh State unit.
Dear Sir, The State Transfer Committee of NIC, Uttar Pradesh State Unit has recommended the name of Rashid Husain (1106)-Scientist-F for posting to NIC-Jammu and Kashmir State against Pradeep Kumar (6243)-Scientist-B as per provision of Hard Area Policy No. 17(03)/2015-Pers. Dated 11.01.2017 for a period of 2 years.* Sd/- Sd/- Sd/-
(Shri Ajay Gopal Bhatariya) (Shri Parwaiz Islam) (Shri Ashesh Kr. Agarwal) Scientist-F Scientist-E Scientist-F (State Informatics Officer) - NIC-Uttar Pradesh State *Mr. Rashid Husain (1106) has given representation to SIO-UP& copy to DG (NIC) regarding exemption from transfer to hard Area. Put up for kind perusal and consideration.
-----------------------------
Minutes of meeting of 11/12/2017:
Minutes of the Meeting held on 11th December, 2017 in the Chamber of Shri Deepak Chandra Misra, Scientist-G and Chairman to look into the transfer cases on Extreme Compassionate ground.
The following members of duty constituted Committee vide Officer Memorandum No:17(3)/2015-Pers. Dated 22/041/20105 met on 11/12/2017 for recommending posting/transfer of NIC S&T Officers/ Officials (Scientist-D and above):-
(i) Shri D.C. Misra, Scientist-G - Chairman
(ii) Shri G.K. Gaur, Scientist-G - Member
(iii) Shri Vishnu Chandra, Scientist-G - Member
Page 30 of 45
CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors
2. The duly constituted Transfer Committee of NIC States have recommended 14 S&T Officers as replacement against 17 officials/officers transferred from Hard Area/Remote Locations as for three states no replacement has been required since three officers have been transferred from hard area to hard area. Subsequently, duly constituted Transfer Committee (Scientist D and above) has recommended the following cases as replacement for Hard Area/Remote Locations for 2 years.
Sl. No. Employee Name Designation Present place of Recommended (Code) posting place of posting 1 Shri M.S.V. Scientist -E NIC Andhra NIC Andaman Subrahmanyam Pradesh State and Nicobar [1545] Centre, State UT Unit Amaravathi 2 Shri Ganapath Scientist-E NIC Tamil Nadu NIC Andaman V.B. [505] State Centre, and Nicobar Chennai State UT Unit 3 Shri Bhupinder Scientist-F NIC, Punjab NIC Jammu & Singh Saini State Centre, Kashmir State [1087] Chandigarh Unit, Srinagar 4 Shri Ramesh Scientist-F NIC, Yamuna NIC Jammu & Kumar Gupta Nagar District Kashmir State [2060] Centre, Unit, Srinagar Haryana 5 Shri Rashid Scientist-F NIC Uttar NIC Jammu & Husain [1106] Pradesh State Kashmir State Unit, Lucknow Unit, Srinagar 6 Shri Inderjit Scientist-F NIC, NIC Jammu & Singh [1384] Chandigarh UT Kashmir State Unit, Unit, Srinagar Chandigarh 7 Shri Balraj Scientist-F NIC, NIC Jammu & Kumar Dhingra Nawanshar Kashmir State [ 1372] District Centre, Unit, Srinagar Punjab
--- --- -- --
--- --- -- --
12 Ms. Gurbachan Scientist-D NIC Agra NIC
Kaur [1341] District Centre, Uttarakhand
Uttar Pradesh State Unit,
Dehradun
(Vishnu Chandra) (G.K. Gaur) (Deepak Chandra Misra)
Member Member Chairman
----------------------
Clearly the transfer was initiated by recommendation of a Committee and then taken up by the Committee competent with regards to the Page 31 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors applicant vide its meeting of 11/12/2017 above. The assertion that the minutes of 11/12/2017 are post-dated is not adequately defended inasmuch that he has based his averment on the ground that the same were not referred to in earlier submissions of the respondents. If that is the plea then, the applicant has also cited several documents in various pleadings filed since the first pleading of the O.A [un-amended]. What is also to be noticed is that the 11/12/2017 minutes are not made especially for the applicant if such was the attempt to present a fabricated post incident document. It involves officers of level higher than dealt with earlier. As regards the absence of mention of the Minutes in the order of this Tribunal dated 22/12/2017 directing the respondents to decide the representation dated 18/10/2017, it cannot be held straight away that the minutes of 11/12/2017 did not exist. More so, the order of 22/12/2017 does not for that matter discuss any issue by any Committee with regards to the impugned transfer order as is evident from examination of the order itself which is primarily focused on the disposal of the representation dated 18/10/2017 and the issue of (a) posting in a Hard area asserted to by the applicant, (b) applicant‟s wife being a teacher at a local Lucknow college which is a private aided institution and that her post is non-transferable apart from her being diagnosed for cancer and having two minor children [second un-numbered para of the judgment refers]. Therefore, support from the order of 22/12/2017 and for that matter order dated 01/01/2018 and that of Tribunal dated 08.01.2018 not discussing the minutes of 11/12/2017 cannot be conclusive proof to debunk the minutes of 11/12/2017 which evidently includes so Page 32 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors many officers other than the applicant and so as per evidence available, this Tribunal cannot hold the Minutes as being post-dated. What has to be also understood is that the position of law on appreciating evidence in service jurisprudence is way different from that of a criminal proceedings inasmuch that in service jurisprudence, preponderance of incident or fact asserted is assessed whereas in criminal matters the evidence has to be beyond any shadow of doubt because of the much more grave nature of the criminal proceedings with respect to life and liberty of a citizen. It is trite to observe that the standard of proof in a civil case is proof on the balance of probabilities, and that this means that the party bearing the burden of proof must prove that the case is more probable than not. In criminal cases the evidence led has to be beyond doubt. In Bank of India Vs. Degala Suryanarayana (1999) 5 SCC 762, it is held by the Apex Court as under:
"11. Strict rules of evidence are not applicable to departmental enquiry proceedings.."
In Lalit Popli Vs. Canara Bank, (2003) 3 SCC 583, Supreme Court has held as under:
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena.) In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.
Thus per the law laid down the Minutes of 11/12/2017 cannot Page 33 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors be set aside as post facto and so they stand in their applicability in the case hand. Therefore, this point is settled against the applicant.
12.1 Further, as regards the citations given by the applicant, they have been dealt with individually at length. What is also to be appreciated is that the orders of the court are to be read for what they are and not for what is not specified therein. The Hon Apex court in the matter of:
(i) Rajbir Singh Dalal vs Chaudhari Devi Lal University & ... on 6 August, 2008, Author: M Katju, Bench: Altamas Kabir, Markandey Katju, CIVIL APPEAL NO_4908 OF 2008 [Arising out of Special Leave Petition (Civil) No. 19142/2006] has held as under:
"Observations of Courts are neither to be read as Euclid`s theorems nor as provisions of the statute ........ These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."
(ii) The Hon High Court Allahabad, in the matter of Anil Kumar vs Central Administrative Tribunal ... on 2 March, 2017, Bench:
Sudhir Agarwal, Ravindra Nath Mishra-II, SERVICE BENCH No. -
4718 of 2017 has held as under:
"14. We find that sometimes matters are argued by learned counsel for petitioner(s) by relying on certain authorities, bereft of relevant facts and law, which were in consideration before Court in those cases and without looking into facts of their individual case and relevant provisions of law. This approach, many a times, not only causes an unnecessary harassment to poor litigant, who being a Labourer, obviously is not well aware of legal niceties, many a times follow Page 34 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors advise tendered to him by counsel, and that is how continue to indulge in the process of litigation from one stage to another and waste his energy, time and also exhaust his funds, whatever may be available to him which obviously he may have arranged with great difficulty. A time has come when counsel must realize their obligation and duty to tender a correct and proper advise to litigants in respective cases which would not only avoid harassment to poor litigants but also save precious time of Courts also.
15. We find it appropriate to place on record and take judicial cognizance of the fact that Courts across the Country are choked with litigations, substantial part whereof includes cases which, if would have been scrutinized by counsels in their Chambers themselves, in a careful and appropriate manner, may not have come to Court. Almost every day, we find that a large number of cases coming to Court are based on no substantial ground or even otherwise try to raise dead or worthless issues or even otherwise can be said to be frivolous. This Court, i.e., Allahabad High Court at Allahabad and Lucknow, both, has almost 2.5 to 3 lacs cases instituted every year, in the last five years and substantial chunk thereof is dismissed in limine since cases involve either no issue worth adjudication by Court or are otherwise dead or litigants have rushed to Court at a pre-mature stage. Frivolous and groundless institution of cases is obviously a serious menace to the Institution of Justice which has obligation of imparting justice to all within a reasonable time. Such cases consume time and obstruct entire system and infrastructure. Courts are already facing multifarious constraints including lesser number of Courts, inadequate supporting staff and otherwise poor infrastructure. Still if residuary productive resources are allowed to be used for handling genuine causes, substantial justice and public interest in a better way may be served but such resources stand decapitated in attending cases filed only to take chance or sometimes to take benefit of delay by prolonging dead issues and worthless causes. It is high time when every stakeholder in the system of justice, must understand and cooperate, in serving purpose and objective of system in a more effective manner than wasting Court's time in the cases involving dead issues or worthless causes or otherwise frivolous matters..."
None of the citations by the applicant are able to help him with regards to facts of the case at hand as discussed in earlier part of this judgment. Hence while bestowing more than adequate discussion on the issue of minutes, this Tribunal is not convinced of the assertions by the applicant with regards to quashing the transfer for a person who is enjoying the posting at Lucknow for the last 29 years and who is also taking the specious plea that he should be posted with the spouse who by own admission is in a non-transferrable job as teacher of an aided private College at Lucknow. The applicant cannot have the Midas boon of staying in Page 35 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors Lucknow life-long till the end of his career and in defiance of the needs of the employee-respondents to post its officers as per administrative needs.
13. In fact following citations support the assertion of the respondents that the applicant has no case to quash his transfer as typically held in a catena of judgments of the Hon High Courts and Hon Apex court. Thus:
(i) the Hon High Court Allahabad has in the matter of SERVICE SINGLE No. - 2375 of 2019 Petitioner :- Satish Kumar Dwivedi Respondent :- State Of U.P. Thru Prin. Secy. Home Deptt. & Ors.
- Hon'ble Saurabh Lavania, J. in matter of transfer held as under:
"In the case of Rajendra Singh Vs. State of U.P reported in (2009) 15 SCC 178, the Hon Apex court, decided on 31/7/2009 held as under:-
"3.The transfer order dated July 31, 2007 came to be challenged by the Writ Petitioner before the High Court of Allahabad, Bench Lucknow. While challenging the legality of the transfer order, Writ Petitioner set up the grounds that he joined as Sub-Registrar, Ghaziabad, Sadar-IV only a month back; that the transfer order has been issued on the complaint of one Radhey Lal, Sanyojak Dalit Morcha Sangharsh Samiti, Lucknow and that the order of transfer was arbitrary, stigmatic and suffers from non-application of mind.
8. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires.
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. AIR 1991 SC 532, this Court held:
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 Page 36 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors 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. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders.
10. In N.K. Singh v. Union of India and Ors. (1994) 6 SCC 1998, this Court reiterated that the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision.
12. As regards Respondent No. 5, the High Court considered the matter thus: .....in our view, it is evident that the respondent No. 5 also can not be said to be an Officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad and in this regard, it appears that I.G. (Stamps) did not give correct information to the Principal Secretary. However, it can not be held that the respondent No. 1 in passing order dated 31st July, 2007 has acted maliciously or for extraneous reasons amounting to malafide. Once the basic ground of challenge to the impugned order of transfer that the same is malicious in law falls, we do not find any reason to interfere with the impugned order of transfer, transferring the petitioner from Ghaziabad to Hapur. It is not the case of petitioner that his transfer is contrary to rules or has been issued by an authority who is not competent. It is well settled that an order of transfer is amenable for judicial review on limited grounds namely it is contrary to rules or has been passed an incompetent authority or is a result of malafide. In view of admission on the part of the respondent No. 1 in his Counter Affidavit that the respondent No. 5 has been found guilty of serious misconduct for causing loss to the Government revenue by acting without jurisdiction and colluding evasion of stamp duty, in our view transfer of the respondent No. 5 to Ghaziabad can not be sustained in view of further admission on the part of the respondent No. 1 that the interest of department requires posting of an honest and efficient person at Ghaziabad.
13. It is difficult to fathom why the High Court went into the comparative conduct and integrity of the petitioner and Respondent No. 5 while dealing with a transfer matter. The High Court should have appreciated the true extent of scrutiny into a matter of transfer and the limited scope of judicial review. Respondent No. 5 being a Sub-Registrar, it is for the State Government or for that matter Inspector General of Registration to decide about his place of posting. As to at what place Respondent No. 5 should be posted is an exclusive prerogative of the State Government and in exercise of that prerogative, Respondent No. 5 was transferred from Hapur-II to Ghaziabad- IV keeping in view administrative exigencies.
14. We are pained to observe that the High Court seriously erred in deciding as to whether Respondent No. 5 was a competent person to be posted at Ghaziabad-IV as Page 37 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors SubRegistrar. The exercise undertaken by the High Court did not fall within its domain and was rather uncalled for. We are unable to approve the direction issued to the State Government and Inspector General of Registration to transfer a competent officer at Ghaziabad-IV as SubRegistrar after holding that Respondent No. 5 cannot be said to be an officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad-IV. The High Court entered into an arena which did not belong to it and thereby committed serious error of law." In the case of Union of India Vs. Janardhan Debnath and Anr reported in (2004) 4 SCC 245 has held as under:-
"3. Background facts sans unnecessary details are as follows: The respondents were working in the Postal Services Department. They were transferred from Agartala Division to Meghalya Division by order of transfer dated 10.9.2002. Feeling aggrieved by the order, the respondents (writ petitioners) along with two others moved the Central Administrative Tribunal at Guwahati (in short the 'Tribunal'). The Tribunal after hearing the parties directed the authorities to consider the representations made by the two lady applicants who were co-applicants along with the respondents within one month. So far as the present respondents are concerned, no interference was made by the Tribunal with the order. Challenging the decision of the Tribunal, the writ petitions were filed. The grounds on which the writ petitions were filed were (a) the transfer orders of the two respondents were in violation of the provisions of Rule 37 of the Posts and Telegraphs Manual. Volume IV (in short 'the Manual') read with D.G. Posts Letter No. 20-12/90-SPBI dated 23.8.1990; (b) the transfer is in violation of Rule 15 of the Fundamental Rules (in short 'FR 15') and (c) the inter Divisional transfer would effect the seniority and promotional prospects of the writ petitioners and (d) the transfer order was passed as a measure of penalty.
4. The Union of India took the stand that the transfer was done in public interest and on account of exigencies of administration. It was pointed out that the respondents not only misbehaved with the Director (Postal Services), a senior lady officer, she was confined and dragged from one room to another and this was done with a view to force her to withdraw the charge sheet against the Deputy Post Master. She was abused in filthy language and was physically manhandled. This conduct was certainly unbecoming of an employee and with a view to enforce discipline and to avoid recurrence of such unfortunate incident, they were transferred. There was no violation of either Rule 37 of the Manual or FR 15. The High Court accepted the prayers made in the writ petitions and held that transfer was impermissible in terms of Rule 37 and was in violation of FR 15. It was as a measure of penalty and the seniority and the promotional prospects were likely to be affected.
9. A bare reading of Rule 37 shows that officials of the Department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers were not to be ordered except when advisable in the interests of public service. The transfers can be made subject to conditions laid down in FR 15 and 22. The appellant has indicated as to why and under what circumstances the transfers were thought proper in the interests of public service. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') had gone into the question Page 38 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr.,
12. That brings us to the other question as to whether the use of the expression 'undesirable' warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. The Union of India (1964)ILLJ418SC to contend that whenever there is a use of the word 'undesirable' it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression 'undesirable' in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature an extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
13. Additionally, it was pointed out by learned counsel for the Union of India that as indicated in the special leave petition itself there was no question of any loss of seniority or promotional prospects. These are the aspects which can be gone into in an appropriate proceeding, if at all there is any adverse order in the matter of seniority or promotion. It was also submitted that transfer was within the same circle i.e. the North Eastern Circle and, therefore, the question of any seniority getting affected by the transfer prima facie does not arise. 14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehavior is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the Page 39 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors question of holding an enquiry to find out whether there was misbehavior or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirements, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as costs."
Another Division Bench of this Court in a judgment reported in 2010 SCC Online ALL 1152 Inre: Dr. Anil Kumar Pradhan Vs. State of U.P has held as under:-
"3. Mr. Manish Kumar, learned Counsel for the petitioner submits that after being selected through U.P. Public Service Commission, the petitioner was appointed on the post of Medical Officer on 14.2.1988 and while working as such, he was promoted on the post of Senior Consultant at S.S.P.G. District Hospital, Varanasi in the month of September, 2009. He submits that pursuant to the oral complaint being moved by unknown person, opposite party No. 6-Hon'ble Minister, Medical and Health, U.P. Civil Secretariate, Lucknow, summoned the petitioner, to which the petitioner tendered his explanation, wherein it has been stated that the patient was not operated prior to one month as his hemoglobin was below 5% and as soon as his hemoglobin was above 10%, he had operated the patient. He submits that there is no complaint ever made against the petitioner in his 22 years of service. Further, the impugned transfer order has not been passed either in public interest or in administrative exigency and as such, the petitioner has been transferred merely on the dictate of the Hon'ble Minister. He also submits that it is the policy decision of the Government that no one will be transferred during financial year 2010-11.
16. One more important aspect of the matter is that the government servant does not have right not to comply with the transfer order without there being any interference or otherwise protection given by the Court or by the superior authority and to keep on filing petition after petition challenging the order in the High Court. Government servant can not claim that he should be posted at a particular place for a particular period. The transfer is an incidence of service. The posting of government servant by issuing transfer order is a natural requirement in service law. The transfer is effected keeping in mind the exigency of service, and in public interest or for administrative reasons. It is the sole discretion of the appointing authority to post the government servant at any place where he/she is more required. Of course, if transfer order has been passed in violation of any statutory Provision or Rule or is a result of mala fide or bias of the authorities, then that can be subjected to scrutiny by the Court but unless the order so suffers, the High Court will, normally, not interfere in the transfer order.
17. In the instant case, there is admittedly a complaint against the petitioner. The petitioner fully knows about that complaint as is evident from the stand taken in the Page 40 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors writ petition itself. The plea of the petitioner that he cannot be transferred on such a complaint deserves to be rejected outright. It may be mentioned that instead of initiating disciplinary proceedings against the petitioner on the ground of a charge of negligence in performing his duties, he has only been required to be transferred."
When the facts of the instant case are seen in the light of the principles of law laid down by the Hon'ble Supreme Court in the case of R.Perachi (supra), Rajendra Singh (supra) and Janardhan Debnath (supra) what clearly comes that from the point of view of the administration that even if complaints are there, the employee can be transferred out of unit/place concerned.
So far as the judgment in the case of Somesh Tiwari (supra) over which reliance has been placed by learned counsel for the petitioner suffice to state that subsequent to the said judgment of the year 2008, the Hon'ble Supreme Court has considered the matter in the case of R. Perachi (supra) in the year 2011 as well as in the case of Rajendra Singh (supra) in the year 2009 and as such the aforesaid subsequent judgments would prevail. Consequently, having considered the aforesaid facts and submission as well as the law laid down by the Hon'ble Supreme Court, no interference is required with the impugned order dated 11.01.2019. Accordingly, writ petition is dismissed. The point to be understood any transfer, interference of courts has to be slow and only in exceptional circumstances. This is because transfers are carried out per policy and policy itself is an executive instruction ab intio ipso facto and is not a statutory subordinate legislation. Therefore, a transfer policy guideline can, therefore, not acquire the authority of the statutory rules because the rules cannot be amended by executive orders and a transfer policy can be amended and is amended from time to time by the executive authority.
(ii) This is fortified in the matter of K.A. Nagamani v. Indian Airlines, 2009 (5) SCC 550 in which it has been held that "....mere administrative rules are not legislation of any kind. They are in the nature of statements of policy and the practice of government departments, statutory authorities, whether published or otherwise. Statutory rules, which are made under the provisions of any enactment and regulations, subject to Parliamentary approval stand on entirely different footing. The administrative rules are always considered and have repeatedly been held to be rules of administrative practice merely, not rules of law and not delegated legislation and Page 41 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors they have no statutory force. Mere description of such rules of administrative practice as "rules" does not make them to be statutory rules. Such administrative rules can be modified, amended or consolidated by the authorities without following any particular procedure(emphasis supplied). There are no legal restrictions to do so as long as they do not offend the provisions of the Constitution or statutes or statutory rules as the case may be.,,"
(iii) In fact, it has also been held quite clearly in the matter of Ajaya Kumar Das v. State of Orissa, 2011 (11) SCC 136 that whatever may be the efficacy of the executive orders or circulars or instructions, statutory rules cannot be altered or amended by executive orders or circulars or instructions nor can they replace the statutory rules. Such being the distinction between rules and executive instructions, it is quite clear that the impugned transfer orders are at best by way of executive instructions, which can be amended from time to time by competent executive authority who need not to refer the legislature for framing Transfer Policy or any such authority which concerns Rule making power required under the Constitution such as w.r.t. conditions of the service of the applicant. Thus, the plea that the impugned transfer orders are statutory rules and regulations to be followed at the pain of disregard to the Constitution or the Legislature or such Rule making body is not tenable. In fact, the transfer orders are executive instructions and source of guidance only in view of the several Apex court rulings.
It would be well to begin this interesting task by appreciating that the whole business of transfer, based on the universe of rulings on the matter, can be looked at from some key view-points namely (i) nature of Transfer (ii) competent authority issuing the order (iii) rights of the concerned public servant or employee against a said transfer (iv) transfer as being exigencies of service, (v) transfer on Page 42 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors grounds of malafide / by way of punishment / victimization/ with malice etc., (vi) representations challenging transfers (vii) issues of natural justice (viii) protection under Article 14 and 16 of the Constitution (ix) nature and force of transfer Guidelines/Instructions (x) Consequences of non-compliance with transfer order and (xi) interferences of the Courts in the matter of transfers. With respect to the nature of transfer, it is laid down again and again that the transfer is always understood and construed as incident of service (B.Varadha Rao v. State of Karnataka, 1986 (4) SCC 624. That, transfer is not a change in the conditions of service and it is to be well understood that the transfer of a government servant who is appointed at a particular cadre of transferable posts from one place to other place is an ordinary incident of service and therefore, does not result in any alternation of any of the condition of service to government servant‟s disadvantage.
(iii) Similarly, in the matter of Gujarat Electricity Board v. Atamaram Sungomal Poshani, 1989 (2) SCC 602, it has been held that ".....Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules (emphasis supplied), as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.."
(iv) This position is further buttressed by another bunch of rulings concerning the transfer as an exigency of service. These include: T.D. Subramanian v. Union of India, 1981 (4) SCC 150 and Laxmi Page 43 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors Narain Mehar v. Union of India, AIR 1997 SC 1347. On the issue of transfer violating Constitutional rights under Article 14 and 16, it has also been held in the matter of E.P. Royappa v. State of Tamil Nadu, 1974 (4) SCC 3 that so long as the transfer has been made on account of exigencies of administration it would not be open to attract under Article 14 and 16. In fact, in the matter of Sreedam Chandra Ghosh v State of Assam, 1996 (10) SCC 567, it has been held that when the Government views non-compliance of the transfer order as a serious indiscipline on the part of the erring officers and when the person complains of the non-compliance to the court, the court necessarily have to give effect to the order and give directions from enforcement thereof (emphasis supplied). Even dismissal on account of refusal to join at the place of transfer has been held valid as State of Punjab v Baldev Singh, Conductor, 1998 (9) SCC 325 (emphasis supplied). As regards interference of the Courts in the matter of transfer, it is trite to observe that the Hon Apex Court has consistently frowned often on stays granted by lower courts. Here also there is a bunch of rulings on the matter such as in the matter of Shanti Kumari v Regional Deputy Director, Health Services, Patna, 1981 SCC (L & S) 285, Union of India v. H.N. Kirtania, 1989 (3) SCC 447 etc. In fact to go a step further, the courts have been advised not interfere with the matter of transfer even in the writ jurisdiction - State of Punjab v. Joginder Singh Dhatt, AIR 1993 SC 2486 and also on administrative grounds as in the matter of State of M.P. v. S S Kourav, 1995 (3) SCC 270, Union of India v. Ganesh Dass Singh, 1995 SCC (L&S) 1142 etc. The comprehensive analysis heretofore Page 44 of 45 CAT Lucknow Bench- OA No. 332/00106/2018- Rashid Hussain vs. UoI & Ors qua the rulings of the Hon‟ble Apex Court and various courts weigh heavily in, in the favour of non-interference in transfer matters except in very exceptional circumstances. In the instant matter we do not find the same as analysed above in sufficient detail.
14. Hence, we find it difficult to interfere with the impugned transfer orders. We quote the famous Sir H.J. Kania (1890-1951), the 4th Chief Justice of the Federal Court of India which functioned as the highest court of the land till the Supreme Court was established on 28th January 1950 wherein he continued as the first CJI. He has said that "No man is above the law. And no man below it; nor do we ask any man‟s permission when we ask him to obey it.."
15. In conclusion therefore, on the basis of the reasoning and the discussions in the foregoing paras, the plea of the applicant in the OA for quashing of the impugned transfer order and the related orders qua the representation do not hold water and are liable to fail and fail. The OA is accordingly liable to be dismissed and is dismissed.
16. No costs. Pending MAs, if any, stand disposed of.
(Devendra Chaudhry) Member-A JNS Page 45 of 45