Central Administrative Tribunal - Madras
R Srinivas vs Department Of Promotion And Industry & ... on 27 July, 2023
1 OA 478/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00478/2023
th
Dated Thursday the 27 day of July Two Thousand Twenty Three
CORAM : HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
R.Srinivas, S/o. Brahmam,
Aged 58 years,
Residing at Q No. 40/6, New CPWD Quarters,
2nd Avenue, Besant Nagar,
working as
Deputy Controller of Patent & Designs,
(on transfer), Chennai. ....Applicant
By Advocate Mr. Karthik Rajan for
M/s. Menon, Karthik, Mukundan & Neelakantan
Vs
1.The Union of India,
rep by the Secretary to Government,
Dept for Promotion of Industry & Internal Trade,
Ministry of Commerce & Industry,
Udyog Bhavan, New Delhi 110001.
2.Controller General of Patents Designs and Trade Marks,
Boudhik Sampada Bhavan,
SM Road, Antop Hill, Mumbai 400037.
3.Joint Controller of Patents & Designs,
Patent Office, Besant Nagar, Chennai 600090. ....Respondents
By Advocate Mr. Su. Srinivasan, SCGSC
2 OA 478/2023
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) By this OA, the applicant is praying the following reliefs:-
"1. To set aside Order No. CGPDTM-11018 (11)/1/2022-CGPO/12 dated 01.03.2023, issued by the 2nd respondent and
2. Order No. CGPDTM-12012 (12/1/2021-CGPO/24 dated 08.06.2023 issued by the 2nd respondent and pass such further or other orders as may be deemed fit and proper."
2. The brief facts of the case in nutshell are as under:-
i. The applicant was appointed as Examiner on 05.09.1994 in the office of the respondents under section 73 of the Patent Act and later rose to the rank of the Deputy Controller of Patents Office, Chennai. Under the Act, Patent Offices are established at 4 metros with head office at Kolkata. According to the applicant, the appointing authority is the Central Government and the 2 nd respondent though does not have the authority to transfer the post of Deputy Controller from the Patent Office altogether to a different establishment in the Trade Mark Registry which comes under the purview of Trade Mark Act, 1999.
However, the applicant came to be transferred on 01.03.2023 along with the post in the public interest from Patent Office, Chennai to IP Archives under the administration of Trade Mark Registry, Ahmedabad and directed to report to the Head of Office, Office of CGPDTM.
ii. The applicant further contended that the transfer policy was issued by the 2nd respondent on 03.09.2020. The applicant's transfer is punitive transfer based on the complaint given by a patent agent against the decision of the applicant to 3 OA 478/2023 refuse the patent. The said private complaint has been entertained by the 2nd respondent and sought for explanation from the applicant with regards to his decision which is quasi judicial and the net result of the said complaint, the applicant came to be transferred outside the purview of the Patent Act which is impugned in the present OA. Though the representation has been submitted through proper channel to the respondent no. 2 in accordance with the transfer policy however, there is no reply. Hence, the applicant has challenged the said transfer order in OA No. 236/2023 and vide its order dt. 13.03.2023, this Tribunal has directed the respondent to consider the representation of the applicant alongwith the OA and pass a reasoned and speaking order in accordance with law within a stipulated period by this Tribunal. Till that time, the interim protection has been granted to the applicant.
iii. Accordingly, the grievance of the applicant has been considered by the competent authority and give their order dt. 08.06.2023, the same has been rejected by detailed order.
iv. The applicant further contended that he has raised the objection on the said transfer on the ground that in the matter of transfer issued to the applicant, the mandate that for the transfer to give effect in the administrative exigencies or public interest it has to be based on the recommendations of the placement committee. However, in the matter of applicant, the same has not been done.
Moreover, as per the clause of the transfer policy, the person who are within two years of retirement should not be disturbed. However, the said benefit has been 4 OA 478/2023 denied to the applicant and the respondents have not even considered the transfer policy.
v. The applicant further contended that there were at least 20 other officers, some of them juniors, even after serving 20-21 years in one station have not been transferred. Hence, the impugned order shows that there is a total non application of mind and lack of authority when the applicant is recruited specifically for patent office, however, he has been transferred totally to different establishment. Though the said plea has been raised in the detailed representation, however the same has not been considered while rejecting the same. Hence, impugning both the orders the applicant has filed the present OA and prayed for the aforesaid relief.
3.i. After notice, the respondents have appeared through their counsel and filed detailed reply and opposed the relief on the ground that the respondent no. 2 being cadre controlling authority is having power and right to transfer the applicant.
ii. The transfer order issued by the respondent no. 2 is in the administrative exigencies and while the applicant can discharge functions under the Patents Act, 1970, if such powers are delegated by the Controller of Patents. He is a government servant and is duty bound to discharge the duties assigned to him on the administrative ground outside the realm of the Patent Act, 1970. As such there is no provision under the Patent Act that the officials appointed under the said act are for the patent examination, allied duties and functions. 5 OA 478/2023 iii. It is further contended that while several officers in the patent office are working in the administrative side of the work, it is expected that the applicant is also duty bound to work under the administrative function of the competent authority. Moreover, the applicant has no right to demand that he will only discharge quasi judicial functions under the Patent Act. It is upto the Controller of Patent who is competent to pass order under the statutory power to decide whether the quasi judicial functions under the Patent Act, 1970 are to be delegated to an officer or not and the same is clear from the unambiguous language of the Section 73 of the Act which has also been stated in the para 3 of the impugned order dt. 08.06.2023.
iv. The appointment order issued to the applicant states that he was appointed as Examiner of Patents and Designs in the Patent office issued on 05.09.1994. Moreover, the appointment order issued to the applicant in the year 1994 where it is categorically stated that he will be liable to serve in any part of India which he shall also be liable to serve in any defence service or post connected to the defence of India for the period of not less than 4 years included period spent on training if any. This order has been issued by the Controller General of Patents, Design, Trade Marks on the approval of the President of India. The said order does not say that he would be transferred to any other office at any point of time in his career.
v. Moreover in respect of his present transfer under the provision of Public Records Act, 1993. All public records to be preserved and maintained as per 6 OA 478/2023 law. The National Archives of India under the Ministry of Culture, Government of India is coordinating with all the Government Agencies for preserving and maintaining the records. Section 5 (1) of the Public Records Act, 1993 read with Rule 3 of Public Records Rules 1997, stipulates that each records creating agency shall nominate one of its officers as Records Officer to discharge functions outlined under various sections of the aforesaid Act. Each Ministry/Organisations were given specific mandate of creating such an agency for the purpose of preserving the documents/records. The "National Intellectual Archives" under the administration of the Trade Marks Registry, Ahmedabad also involves activities that do not fall under IPR laws administered by the office of the 2nd respondent. The National Intellectual Archives is tasked with receiving and preserving the voluminous technical records that had received from IP Offices all over the Country in accordance with the archival policy. The head of such a Centre / Archives should be an official with best technical expertise so as to understand, analyse, segregate and preserve the documents related to IP. Unless the official is familiar with technical details of any IP related document, he may not be able to discharge his duties in the Archives. Such an official will be supported with other staff who are familiar / expertise with trade mark, design, patent and G.I. etc. vi. Respondents further submitted that vide proceedings dated 15.04.2021, Shri Hardev Karar, Joint Controller of Patents and Designs (Level 13) who was promoted to the grade of Senior Joint Controller of Patents & Designs (Level 7 OA 478/2023 13A) on regular basis was posted at IP Archives, Ahmedabad as Officer in- charge of IP Archives, Ahmedabad.
vii. It is further submitted that on his superannuation, the applicant herein has appointed along with his post as there is no post exists in IP Archives at Ahmedabad. The 2nd respondent is competent in transferring an official along with the post in public interest and for administrative constraints. viii. The respondents submitted that for implementing the Archival Policy in the Patent Offices and the Trade Mark Registry and to comments the functioning of IP Archives, Ahmedabad a committee was constituted vide dated 07.01.2015 by the 2nd respondent.
ix. It is further submitted that vide proceedings dated 09.01.2015 Shri R.K.Pandey, Assistant Registrar of Trade Marks, TMR, Ahmedabad was designated as Officer in-charge for over all management and documentation as per Archival Policy IP Archives, Ahmedabad. Similarly, officers are being transferred to Rajiv Gandhi National Institute for Intellectual Property Management, Nagpur (RGNIIPM) from Trade Mark Patent and G.I. Offices. x. It is further submitted that vide proceedings dated 10.05.2018 one post of Deputy Controller of Patents and Designs and one post of Examiner of Patents and Designs from Mumbai was transferred to RGNIIPM, Nagpur with immediate effect until further orders by the order of the 2nd respondent. Similarly, due to increased training activities of RGNIIPM, Nagpur, one post of Assistant Controller of Patents and Designs from Patent Office, Kolkatta was 8 OA 478/2023 also transferred to RGNIIPM, Nagpur with immediate effect vide proceedings dated 13.07.2020 and the aforesaid postings, transfers and transfer of posts by the 2nd respondent to meet the organisation / establishments functioning under the overall administrative control of the 2nd respondent is being periodically made in order to meet the requirement of those establishments. In fact when specific request was made by the 2nd respondent to the Ministry of Commerce and Industry, Department of Industrial Policy and Promotion (IPR-1 Section) dated 05.09.2017 for creation of 12 posts exclusively for RGNIIPM separately from CGPDTM regular cadre was rejected stating that the proposed strength has to be carved out of CGPDTM.
4.i. It is further contended that several officers working in the patent office and were discharging their duties also in technical side, therefore, the applicant cannot claim since he has no vested right that he will work in the patent office that too in technnical side only related to grant / refusal of patent rights. ii. The respondents further contended that the two members of placement committee were on long leave on CCL and on medical grounds. The tender for scanning of IP records were for processing. Hence in the exigencies due to superannuation of a senior officer in July 2022 in IP Archives, Ahmedabad also, the office of CGPDTM is considering the possibility of further development of the office at Ahmedabad, the presence of the applicant will be very useful for the purpose and in the said circumstances, the said transfer order was issued on the ground of administrative exigencies. Moreover the applicant is claiming the 9 OA 478/2023 benefit of provision under the policy that the person who is having less than 2 years of service may not be disturbed and claiming parity with the other two officers viz., Shri. Sanjay Bhattacharya and Shri. Ashok Kumar, the Joint Controllers who were less than two years for superannuation. However, the applicant was having more than two years of service for superannuation when the transfer order was issued in the month of March, 2023. Therefore his comparision with the other two officers is irrelevant.
iii. The respondents further contended that as per the para 5.1.3 of the Transfer Policy, the officers who are having two years of service for superannuation and already posted at the station of their choice shall "normally" not be transferred. Hence the applicant cannot claim as a matter of right that he may be retained at the same place. The respondents have relied upon so many orders issued by the respondent no. 2 while issuing promotions to the employees from the Patent office and all promotees have been posted to another office of IP Archives at Ahmedabad. As well as respondent no. 2 is fully competent being statutory authority and cadre controlling authority, the power has been assigned by the Central Government to the Controller General and hence, he has been empowered to transfer the person from one office to another looking into the administrative exigencies.
5. The applicant has filed rejoinder to rebute the contentions raised by the respondents in their counter and submitted that purposefully, the applicant's case has not been put up before the placement committee when the members are very 10 OA 478/2023 much available. Moreover, the transfer has been effected as punitive. When there is no power vested with the respondent no. 2. According to the applicant, Central Government is the competent authority to transfer the post from one place to another place.
6. The respondents have filed additional reply to rebute the contentions raised by the applicant in his rejoinder.
7. The applicant has also filed the memo as the respondents have relied upon the attachment of salaries and other benefits to the Headquarters at Patent Office, Mumbai.
8. The applicant has relied upon the following judgments:-
i. Order of Hon'ble Supreme Court dt. 02.11.1978 in Civil Appeal No. 2764 of 1977 in the case of Smt. S. R. Venkataraman Vs. Union of India and ors [(1979) 2 SCC 491];
ii. Order of Hon'ble Madras High Court dt. 04.02.1992 in Writ Petition No. 6554 of 1990 in the case of S. Gnanasambantham Vs. Tamil Nadu Cement Corporation Ltd and anr;
iii. Order of Hon'ble Supreme Court dt. 06.05.2009 in Civil Appeal No. 3298 of 2009 in the case of Swaran Singh Chand Vs. Punjab Electricity Board and ors [(2009) 13 SCC 758];
iv. Order of Hon'ble Supreme Court dt. 09.01.2013 in Civil Appeals No. 162 of 2013 with No. 163 of 2013 in the case of Kavi Raj and ors Vs. State of Jammu and Kashmir and ors [(2013) 3 SCC 526];11 OA 478/2023
v. Order of the Hon'ble Supreme Court dt. 31.10.2013 in Writ Petitions (C) No. 82 of 2011 with No. 234 of 2011 in the case of T.S.R.Subramanian and ors Vs. Union of India and ors [(2013) 15 SCC 732];
vi. Order of the Jabalpur Bench of this Tribunal dt. 17.04.2015 in OA 849/2014 in the case of Dr. Puneet Gandhi Vs. Union of India and ors [2015 SCC OnLine CAT 2772];
vii. Order of the Chandigarh Bench of this Tribunal dt. 07.04.2017 in OA No. 140/2017 and batch in the case of Sanjeet Sharma and ors Vs. Union of India and ors [2017 SCC OnLine CAT 49];
viii. Order of the Hon'ble Supreme Court dt. 06.04.2023 in Criminal Appeal No. 1010 of 2023 in the case of Totaram Vs. State of Madhya Pradesh and anr [2023 LiveLaw (SC) 289].
9. The respondents have also filed memo in response to that as well as relied upon the following judgments:-
i. Order of the Hon'ble Supreme Court dt. 25.08.1994 in Civil Appeal No. 4656 of 1993 in the case of N.K.Singh Vs. Union of India and ors [(1994) 6 SCC 98];
ii. Order of the Hon'ble Supreme Court dt. 31.07.2009 in Civil Appeal No. 7976 of 2009 and batch in the case of Rajendra Singh etc.etc Vs. State of UP & ors;
iii. Order of the Principal Bench of this Tribunal dt. 19.06.2015 in OA No. 1888/2015 in the case of Sh. Jawahar Thakur Vs. Union of India and ors.;12 OA 478/2023
iv. Judgment of the Hon'ble Supreme Court dt. 15.01.2020 in Civil Appeal No. 8989 of 2019 in the case of Rajneesh Khajuria Vs. M/s. Wockhardt Ltd.
& anr;
v. Order of the Hon'ble Supreme Court dt. 25.02.2020 in Civil Appeal No. 1809 of 2020 in the case of Punjab and Sind Bank and ors Vs. Mr. Durgesh Kuwar;
vi. Order of the Hon'ble Delhi High Court dt. 01.11.2022 in WP (C) No. 12441 of 2022 in the case of Sumit Dagar Vs. Union of India and ors [2022/DHC/004574].
10. Heard both sides and perused the records.
11. Learned counsel for applicant submits that on 05.09.1994, the President was pleased to offer the appointment to the applicant as Examiner of Patents and Designs in the Patent Office. Accordingly, the applicant has been posted in the Patent Office. Moreover during his entire tenure, the applicant came to be transferred about 5 times. The applicant has been presently working in the rank of Deputy Controller of Patents in the Patent Office at Chennai. On 01.03.2023, all of a sudden, the applicant came to be transferred from his present office to IP Archives under the administration of the Trade Marks Registry, Ahmedabad along with post with immediate effect on the ground of public interest.
12. Learned counsel for applicant has argued that the said transfer is issued by the respondent no. 2 who is an incompetent authority to transfer the applicant along with post and the respondents have not followed with the transfer policy 13 OA 478/2023 wherein the person who is having less than 2 years service for his retirement cannot be transferred. When the impugned transfer order has been issued, at that time the applicant was having 2 years and 2 months approximately for his superannuation.
13. Learned counsel for applicant has submitted that the said transfer is nothing but punitive in nature since one of the agent has raised some complaint against the applicant wherein a clarification has been sought from the applicant for refusal of the order for application for the patent and meeting was fixed at Mumbai. Though the applicant has submitted his explanation since the Deputy Controller of Patents and Designs was not satisfied with his explanation, therefore for immediate action on the grievance of the patent agent, the applicant came to be transferred from his present place to the IP Archives, Ahmedabad which is outside the purview of the patent office.
14. The respondent no. 2 is not having any power to transfer the post or to create a post and only Central Government is having such powers and under the Patent Act, only four offices have been established at Mumbai, Chennai, New Delhi and Kolkata.
15. Moreover, when the applicant belongs to one cadre, he has been posted to another cadre, as such, respondent no. 2 does not have such power to transfer the applicant as well as no sanction for such transfer has been issued by the Government. Therefore, the said impugned transfer order has to declared as without power as the applicant came to be transferred to a foreign post. 14 OA 478/2023
16. Learned counsel for applicant further argued that when the similar person's request has been considered to the choice posting on the ground that they are having less than two years of service, the applicant's request ought not to have been denied, thereby the respondents have made discrimination with the applicant who has rendered almost 34 years of service in the office of the respondents under the Patent Act and had rendered his service to the utter satisfaction of the respondent government. Therefore, the learned counsel for applicant has alleged malice in law for the said act of the respondents in respect of issuing such transfer.
17. Learned counsel for applicant in support of his contentions has relied upon the judgment dt. 04.02.1992 passed by the Hon'ble High Court of Madras in WP No. 6554 of 1990 in the case of S. Gnanasambantham Vs. Tamil Nadu Cement Corporation Ltd and anr. While dealing into the similar issue wherein the person along with his post has been transferred to another office, the Hon'ble High Court has considered the issue at length and also raised the question over the power when the authorities have tranferred the person from one department along with post to another department. It was observed thus, "6. What has been done in the case before me is one post of Senior Accounts Officer is transferred from the Registered Office to Alangulam Cement Works and then the petitioner was transferred and posted to that post. Whether it can be done in I view of orders of Mohan .J. is the question. That apart, whether the Managing Director has got the power to transfer a post to another office, so to say, the Cement Works at Alangulam, especially when the post is created in the Registered Office. I do not see any power is vested with the Managing Director to pass such an order in the Articles of Association, viz., the Service Rules, which have been produced before. I am not able to accept the arguments of the Learned Senior counsel for the respondents that the Managing Director has got powers delegate to pass the impugnec order. This is a case where a post has been transferred from the Registered Office to Alangulam and the petitioner is posted 15 OA 478/2023 there. Before Mohan. J. (as he then was) in the above mentioned case, a post was created and the petitioner in that case was transferred. So except for different procedure adopted, I do not think the principle differs. What the principle decided by Mohan. J. (as he then was) in the above mentioned case on the Articles of Association and Service Rules, do not enable to transfer of the individual along with the post. The same has been done here also. I see no difference in the difference decided by Mohan J. (as he then was) in the abovementioned case. With respect, I follow the same. In view of the fact that the Articles of Association of Service Rules do not empower the Managing Director of the Respondents to transfer a post from the Registered Office, leave alone the creation of post, the impugned order has to be set aside."
18. Learned counsel for applicant has relied upon the order passed by the coordinate Bench at Jabalpur in OA No. 849/2014. Vide its order dt. 15.04.2015, the Tribunal dealt a similar issue and observed thus, ".....
4. The main issue involved in this Original Application is whether the Director General, ICMR was competent to transfer the applicant along with post from BMHRC to NIREH.
7. The respondents have not produced any document to support their contention that BMHRC is one of the Centres run by ICMR directly It is apparent from the resolution dated 12.1.2012 (Annexure R-2) that the Department of Health Research, Ministry of Health and Family Welfare has been entrusted with the administrative control of the BMHRC, Bhopal by the Department of Atomic Energy. However, there is no order to make it as a 'Centre' of ICMR. If BMHRC and NIREH are independent units under the umbrella of ICMR then Director General, ICMR will not be competent to transfer posts from one organization to another. For that purpose, the organisation getting the post shall have to get it created for it by following the due procedure. Further, there is nothing on record to show that the applicant has been included in HRSC cadre and all the scientific posts of these two organizations are part of HRSC cadre, which has Director General, ICMR as cadre control authority. In this view of the matter, I am of the considered opinon that the Director General, ICMR had no authority to transfer the post of applicant from BMHRC to NIREH and, therefore, the impugned order dated 31.10.2014 (Annexure A-1) passed by the respondents under the authority of the Director General, ICMR, transferring the applicant along with her post from BMHRC to NIREH is not sustainable in the eyes of law and is liable to be quashed.
8. Before the matter is parted with, as regards the contention raised by counsel for the applicant that since the applicant made a complaint against the respondent No. 4, the official respondents should have transferred the person against whom the complaint was made and not the person who had made the complaint, since no bias has been alleged against the Director General, ICMR, who has passed the speaking order dated 3/31.10.2014 (Annexure R-4/5) after 16 OA 478/2023 considering all pros and cons of the matter and the report of the committee, I do not find any force in this applicant and the same is accordingly rejected."
19. Learned counsel for applicant placing reliance upon the above judgments stated that the facts and the merit involved in the present OA has been considered and are exactly the same. Hence, it is applicable in the matter of the present applicant.
20. Learned counsel for the applicant further relies upon the order passed by the co-ordinate Bench at Chandigarh in OA No. 140/2017 and connected cases in the matter of Sanjeet Sharma and others wherein again dealing into the similar issue in the matter of employees who have been transferred outside one cadre that to without their consent on the ground of public interest. The Tribunal observed thus, "3. The matrix of the facts, culminating in the commencement, relevant for disposal appointed on their respective posts, in different departments of the Chandigarh Administration, in pursuance of the different statutory recruitment rules, Annexure A-3 (Colly), by means of the different appointment letters, Annexure A-4 (Colly). As consequences thereof, they were working on different Group 'B' & 'C' posts, in different Departments, before their transfer. The Administrator of U.T. Chandigarh, was stated to have framed the impugned intra-transfer Policy dated 13/18.5.2015 (Annexure A1), in respect of Group 'A', 'B', 'C' & 'D' officers/officials (Ministerial/Technical) in public interest. In pursuance of the impugned intra-transfer Policy/notification, the applicants, along with other 199 employees, were transferred to the different departments, vide impugned order dated 31.1.2017 (Annexure A-2), by the Secretary Personnel, Union Territory Administration. Similarly, the applicants in other connected OAS were also transferred vide impugned orders therein, in pursuance of same transfer policy, Annexure A-1.
4. Aggrieved thereby, the applicants have preferred the present OAs, challenging the impugned intra-transfer Policy, Annexure A-1 and transfer orders, Annexure A-2, on the following grounds:
"(i) That the service conditions of the applicants are governed by the separate specific Recruitment Rules belonging to a particular cadre. They have separate seniority lists and their posts are not inter-transferable under the Recruitment Rules and they have not consented for such transfer orders. But, by over-riding statutory recruitment rules, the administrative orders have been issued, which 17 OA 478/2023 are not legally sustainable in view of the law settled by Hon'ble Apex Court in a catena of judgments, inter-alia, holding that administrative orders cannot supersede the statutory recruitment rules and, as such, the policy, Annexure A-1 and consequently the transfer orders, Annexure A-2, which have been issued in pursuance to the policy, Annexure A-1, are liable to be quashed.
(ii) That it is equally well settled that no employee can be transferred outside one's cadre without his/her consent but in the present case, there is no consent of the applicants and they are being forced to serve another department outside their cadres and as such, impugned order, Annexure A-2, is unsustainable in the eyes of law and is liable to be quashed.
......
......
22. A bare perusal of the terms and conditions of the impugned inter-cadre transfer policy, Annexure A-1, would suggest that the Secretary (Personnel)/Special Secretary (Personnel) shall be competent authority to order inter-cadre transfer and as per clause (ix), the terms and conditions contained in the original offer of appointments shall stand modified to the extent of Inter- Departmental Transfer only, which cannot legally be done. It is now well settled principle of law that the terms and conditions of initial appointment of the employees, cannot unilaterally be ordered to be modified retrospectively, completely changing the competent authorities conditions, which is not legally permissible. There should be some legal power flowing either from Constitutional or statutory provisions empowering the Administrator to frame such inter-cadre transfer policy, nullifying the relevant statutory rules framed under Article 309 of the Constitution of India, which is clearly lacking in the present case. Thus, the administrative policy, having the effect of nullifying the statutory rules, indeed, is not legally sustainable, which was framed by UT Administration, not only dehors the statutory recruitment rules, but even contrary to the opinion of its Law Department.
23. Having so derived powers under Article 309 of the Constitution of India, different statutory recruitment rules of the different departments of the U.T. Administration, Annexure A-3 (Colly) were framed to regulate the service conditions of the employees of the U.T. Chandigarh, containing different terms and different conditions and different hierarchy of posts and different competent authorities etc. In pursuance of the statutory rules, the applicants were appointed under different procedures of the recruitment, in different posts by the different authorities and they are governed by different terms and conditions of service. .....
.....
31. A similar question Delhi in the case of Prem Parveen v. Union of India, (1973) 2 SLR 659, and it was held that normally it was raised before the Hon'ble High Court of I have the range of their transferability determined within that cadre. Logically by it is to be expected that the Government employees who join a particular cadre would does not stand to reasons that a person who is recruited to a particular cadre should be compelled against his wishes to serve outside the cadre even when the permanent I post to which he holds a lien exists within that 18 OA 478/2023 cadre. Same view was reiterated by Gujarat High Court in Bhagwati Prasad G. Bhatt v. State of Gujarat, (1997) 1 GLR 562, in the following manner:
"21. Having examined the matter on principle, it is now necessary to some of the decided cases to which my attention was invited at the hearing of this petition. In State of Mysore v. Papanna, 1971 (2) Service Law Reporter p. 48, question arose whether the services of a person belonging to Mysore Civil Service would stand transferred to the University set up under the University of Agricultural Sciences Act, 1963. The answer was in the negative. Mr. Takwani, however, urged that in that case on the transfer of services, the petitioners ceased to be in civil service of the State and that weighed with the Supreme Court. In the Present case, the petitioner has not ceased to be servant of the Gujarat State and that he holds lien on the post of Police Inspector. It is true that what weighed with the Supreme Court was that on the transfer of the services of the petitioner to the University he ceased to be civil servant of the State. That aspect does not arise for consideration in the matter before me and, therefore, the decision would not be of much help. Mrs. Mehta, however, drew my attention to Prem Parveen v. Union of India, (1973) 2 S.L.R. 659. That is a case more or less akin to the case before me. In that case the petitioner who was a confirmed upper division clerk under the Directorate of Extension, Ministry of Food and Agriculture, Community Development and Cooperation (Department of Agriculture) New Delhi was transferred to the regional station. He challenged the order of transfer. The Court posed a question thus: Has the Government right to transfer a confirmed permanent Government servant against the latter's will outside his cadre The answer was in the negative. On behalf of the Union of India reliance was placed on Fundamental Rule 15 which confers power on the proper authorities to transfer Government servants from any post to a post even outside the cadre. Rejecting this contention the Court held that it does not stand to reason that a person who is recruited to a particular cadre should be compelled against his wish to serve outside the cadre even when the permanent post to which he holds a lien exists within the cadre.
22. Thus on principle and authority, it appears clear that a person belonging to a cadre cannot be deputed or transferred outside the parent department and outside the cadre. He can be sent on deputation but that too with his consent. Deputation cannot be without the consent of the person to be deputed.
32. There is yet another aspect of the matter, which can be view entirely from a different angle. In the written statement filed by the respondents, a plea has been taken that the policy to effect transfers from one Department to another, has been formulated to improve administrative efficiency and to curb the malpractices. It has been argued that many of the employees have remained in sensitive posts for a long time because the cadre is small and, therefore, have developed vested interest, while remaining in that Department. A perusal of the impugned orders would reveal that the transfers have been made at the level of Superintendent, Assistant Superintendent, and Assistant etc. The plea taken by learned Senior counsel for the applicants that a person from Transport 19 OA 478/2023 Department shifted to Health Department or from Engineering Department to Education Department, will be unable to effectively deal with the issues of that Department because he/she had dealt with a different subject prior to this transfer, has considerable force, as obviously such a situation is going to lead to administrative inefficiency, rather than efficiency.
33. One cannot doubt the noble intention of the respondents in formulating the impugned inter-cadre transfer policy, Annexure A-1, but it is also true that there has to be some mechanism to shift/replace such employees, who have remained for long on a sensitive desk and have developed vested interests and possibly, the impugned policy addresses this problem to some extent, but the fact remains that any such policy has to be within the four corners of law and has to be legally sustainable. Hence, it is held that the impugned policy, Annexure A-1, does not pass the test of legality and thus, not sustainable as such. Even if somebody commits any misconduct, as is apprehended by the respondents, then he/she can effectively be dealt with by initiating disciplinary proceedings under the statutory rules. Nobody can stop the Competent Authority, to exercise such powers of disciplinary proceedings against erring officers/officials.
34. Now adverting to the second question as to whether an employee can be transferred from one department to another department without his consent, in this regard, it may be added here that in the absence of any constitutional or statutory legal sanction, to frame inter-cadre transfer policy, an employee cannot legally be transferred from one cadre to a different cadre, governed by different statutory rules.
35. Even this issue has also been clinched by the law laid down by Hon'ble Apex Court in the case of Kavi Raj v. State of Jammu & Kashmir, (2013) 3 SCC 526, wherein having considered the inter-cadre posting/transfer, it was ruled that an employee can only be transferred to a post against which he is selected which would ensure his stationing, within the cadre of posts, under his principal employer unless his posting is regulated differently, by statutory rules, governing his conditions of service. It was also held that in absence of any such rules, an employee cannot be posted or transferred beyond his cadre to which he is selected, without his willingness/readiness. Sequelly, it was held by Hon'ble Supreme Court in the case of V. Jagannadha Rao v. State of A.P., (2001) 10 SCC 401, that a government servant is liable to be transferred to a similar post in the same cadre which is a normal feature and incidence of government service and he cannot be transferred without his consent to another cadre.
36. Likewise, it was also held in OA. No. 622-CH-1996 titled Baldev Krishan v. Union of India, decided on 16.8.1996 (Annexure A-8), by this Tribunal that a person cannot be sent outside his cadre, except with his consent and transfer of one official to another office under a different employer is not permissible. It was also held that by mere addition of the conditions that they shall continue to draw their salaries against the posts on which they were working prior to the issuance of the orders, and shall enjoy the benefits available to them on those posts, do not mollify the effect of the order which remains illegal.
......."
20 OA 478/2023
21. Learned counsel for applicant in his support relied upon the order passed by the Hon'ble Supreme Court in Civil Appeal No. 162 of 2013 in the matter of Kavi Raj and others Vs. State of Jammu & Kashmir (2013) 3 SCC 526 along with connected matters. Vide its order dt. 09.01.2013 while dealing into the matter of transfer from one cadre of one department to another cadre of another department, the Hon'ble Court observed thus, "23.8. .........the appellants must be deemed to be substantive employees of the cadre of Assistant Surgeons of the Directorate of Health Services. There is therefore no room for any doubt, that the appellants were substantively appointed to the Directorate of Health Services, and not in the Directorate of Medical Education.
24. Before concluding, it is essential to deal with certain inferences drawn by the learned Single Judge of the High Court. According to the learned Single Judge, prior consent of an employee is imperative, binding, peremptory and mandatory, before he is posted on deputation outside his parent department. No statutory rule has been brought to our notice, requiring prior consent of an employee, before his deployment against a post beyond his parent cadre. The mere fact, that the appellants consent was not sought before their posting at the Government Medical College, Jammu (and/or at the hospitals associated therewith) would not, in our view have any determinative effect on the present controversy. Broadly, an employee can only be posted (or transferred) to a post against which he is selected. This would ensure his stationing, within the cadre of posts, under his principal employer. His posting may, however, be regulated differently, by statutory rules, governing his conditions of service. In the absence of any such rules, an employee cannot be posted (or transferred) beyond the cadre to which he is selected, without his willingness/readiness. Therefore, an employee's posting (or transfer), to a department other than the one to which he is appointed, against his will, would be impermissible. But willingness of posting beyond the cadre (and/or parent department) need not be expressly sought. ......."
22. Learned counsel for applicant further relied upon the order passed by the Hon'ble Supreme Court in Criminal Appeal No. 1010 of 2023 in the matter of Tota Ram Vs. State of Madhya Pradesh and anr. Vide its order dt. 06.04.2023, he has started his contentions in respect of complaint raised by one of the patent applicant and the clarification/explanation has been sought for by 21 OA 478/2023 the competent authority. Thereby, he has relied upon the order of the Hon'ble Supreme Court of India wherein the Hon'ble Court observed thus, "......
7 While entertaining the Special Leave Petition, this Court, by its order dated 24 February 2023, issued notice and passed the following order:
"......
3 We are, prima facie, of the view that this is an eminently fit and proper case for the grant of bail even at this stage. Moreover, there was, prima facie, no justification for the High Court to call for an explanation from the trial judge for having granted bail. Such orders of the High Court seriously affect the independence of the district judiciary in considering applications for bail in appropriate cases. "
.....
9. .........After the charge-sheet was submitted before the competent Court under Section 173 of the Code of Criminal Procedure 1973, the appellant moved for bail afresh. The order passed by the Trial Judge granting bail on the ground that the charge-sheet had been submitted and that the other accused were on bail was eminently fair and reasonable. The order of the High Court directing that the appellant be arrested immediately and seeking an explanation from the Second Additional Sessions Judge was wholly disproportionate and was not warranted. Such orders of the High Court produce a chilling effect on the District judiciary........."
23. According to the learned counsel for applicant when the applicant is doing his duties in accordance with the powers granted to him, moreover in respect of the application filed by the said patent agent, he has considered his other applications. However, the competent authority has neglected the said fact thereby calling such explanation from applicant is also beyond the scope of the competent authority. Learned counsel for applicant submits that the applicant's case has not been placed before the placement committee, in support he has relied upon the order passed by the Hon'ble Supreme Court in Writ Petition (C) No. 82 of 2011 in the matter of T.S.R.Subramanian and ors Vs Union of 22 OA 478/2023 India and ors with connected matters. Vide its order dt. 31.10.2013, the Hon'ble Court has noticed that in the matter of transfer of IAS/IPS officers there are frequent transfers without even allowing officers to complete their normal or minimum tenure. Therefore, observing the frequent interference, the Hon'ble Court has directed the respondents therein to form a committee of Civil Services Board (CSB) and place the transfer proposals before the said committee and observed thus, "33. CSB, consisting of high ranking in service officers, who are experts in their respective fields, with the Cabinet Secretary at the Centre and Chief Secretary at the State level, could be a better alternative (till the Parliament enacts a law), to guide and advise the State Government on all service matters, especially on transfers, postings and disciplinary action, etc., though their views also could be overruled, by the political executive, but by recording reasons, which would ensure good governance, transparency and accountability in governmental functions. Parliament can also under Article 309 of the Constitution enact a Civil Service Act, setting up a CSB, which can guide and advice the political executive transfer and postings, disciplinary action, etc. CSB consisting of experts in various fields like administration, management, science, technology, could bring in more professionalism, expertise and efficiency in governmental functioning.
34. We, therefore, direct the Centre, State Governments and the Union Territories to constitute such Boards with high ranking serving officers, who are specialists in their respective fields, within a period of three months, if not already constituted, till the Parliament brings in a proper legislation in setting up CSB.
35. We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritize various social and economic measures intended to implement for the poor and marginalized sections of the society."
23 OA 478/2023Learned counsel for applicant submits that though the respondents have formed the placement committee, however, the same has not been followed strictly. Morever, particularly in the matter of the applicant, his case has not been placed before the placement committee though the respondents have formed the same consisting of three members. Morever, when the respondents have specifically brought on record, the office order dt. 12.05.2023 wherein it has been declared that the Patent Office at Mumbai as the office for all administrative and establishment purpose in respect of the officers of Patent office, who were posted at Trade Marks Registry (TMR) & IP Archive, Ahmedabad. The Head of Office, TMR, Ahmedabad shall monitor day to day attendance of the Officers posted at Ahmedabad and shall also maintain their leave record. The leaves shall be approved by the Head of Office, Patent Office, Mumbai with intimation to Head of Office, TMR, Ahmedabad. The salary and all the administrative and establishment matters with respect to the officers of Patent Office posted at Ahmedabad would be taken care by the Patent Office at Mumbai based on the attendance date furnished by the Head of Office, TMR, Ahmedabad. Though the said order has been issued with the approval of the Controller General of Trade Marks Registry, learned counsel for applicant has raised objection on the said office order on the ground that this office order cannot take retrospective effect since in the matter of applicant transfer order was issued on 01.03.2023. Moreover, neither in the reply nor in the additional reply, the respondents have referred this letter and taken any plea and in the absence of specific plea in their 24 OA 478/2023 reply/additional reply, the respondent are not allowed to modify the same and place reliance on the said office order.
24. Learned counsel for applicant has also placed his reliance on the order passed by the Hon'ble Supreme Court in Civil Appeal No. 2764 of 1997 in the matter of Smt. S. R. Venkataraman Vs. Union of India (1979) 2 SCC 491 decided on 02.11.1978 to justify the contention raised by the applicant in respect of malice in law and relied upon the observation of the Hon'ble Supreme Court which observed thus, "5. We have made a mention of the plea of malice which the appellant had taken in her writ petition. Although she made an allegation of malice against V. D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is, however, quite different. Viscount Haldane described it as follows in Shearer v. Shields:
A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.
Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause."
25. Learned counsel for applicant has also relied upon the order passed by the Hon'ble Supreme Court in Civil Appeal No. 3298 of 2009 in the matter of Swaran Singh Chand Vs. Punjab State Electricity Board and ors (2009) 13 SCC 758 decided on 06.05.2009 where the Hon'ble Court observed thus, "18. In a case of this nature the appellant has not alleged malice of fact. The requirements to comply with the directions contained in the said circular letter 25 OA 478/2023 dated 14.08.1981 were necessary to be complied with in a case of this nature.
Non-compliance whereof would amount to malice in law. [See Managaer, Government Branch Press and Another v. D.B. Belliappa (1979) 1 SCC 477, Smt. S.R. Venkataraman v. Union of India and Another (1979) 2 SCC 491 and P. Mohanan Pillai v. State of Kerala and Others (2007) 9 SCC 497]. Thus, when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable."
26. Learned counsel for applicant further submits that when the impugned transfer order was issued in the month of March, 2023 at that time, the applicant was having 02 years 02 months for his superannuation. However, after intervention of this Tribunal, now the applicant is having even less than 2 years tenure to attain superannuation. Accordingly, learned counsel for applicant prays that the OA be allowed.
27. On the other hand, learned counsel for respondents has strongly opposed the arguments raised by the applicant on the ground that the applicant cannot claim the relief as a matter of right on transfers. Altogether it is the prerogative of the respondent competent authority looking into the departmental exigencies/administration. Since the applicant is being a very experienced person if the department feels that his service is needed in the public interest at large for the organisational interest, the respondent no. 2 is competent to transfer the applicant at any post which comes under his purview.
28. Learned counsel for respondents has further argued that the applicant has no right to demand that he will only discharge quasi judicial functions under the Patent Act. It is upto the Controller of Patent who is competent to pass order under the statutory power to decide whether the quasi judicial functions under 26 OA 478/2023 the Patent Act, 1970 are to be delegated to an officer or not and the same is clear from the unambiguous language of the Section 73 of the Act which has also been stated in the para 3 of the impugned order dt. 08.06.2023. The appointment order issued to the applicant states that he was appointed as Examiner of Patents and Designs in the Patent office issued on 05.09.1994. Moreover, the appointment order issued to the applicant in the year 1994 where it is categorically stated that he will be liable to serve in any part of India and this order has been issued by the Controller General of Patents, Design, Trade Marks on the approval of the President of India. The said order does not say that he would be transferred to any other office at any point of time in his career. Moreover in respect of his present transfer under the provision of Public Records Act, 1993. All public records to be preserved and maintained as per law. The National Archives of India under the Ministry of Culture, Government of India is coordinating with all the Government Agencies for preserving and maintaining the records. Section 5 (1) of the Public Records Act, 1993 read with Rule 3 of Public Records Rules 1997, stipulates that each records creating agency shall nominate one of its officers as Records Officer to discharge functions outlined under various sections of the aforesaid Act. Each Ministry/Organisations were given specific mandate of creating such an agency for the purpose of preserving the documents/records. The "National Intellectual Archives" under the administration of the Trade Marks Registry, Ahmedabad also involves activities that do not fall under IPR laws administered by the 27 OA 478/2023 office of the 2nd respondent. The National Intellectual Archives is tasked with receiving and preserving the voluminous technical records that had received from IP Offices all over the Country in accordance with the archival policy. The head of such a Centre / Archives should be an official with best technical expertise so as to understand, analyse, segregate and preserve the documents related to IP. Unless the official is familiar with technical details of any IP related document, he may not be able to discharge his duties in the Archives. Such an official will be supported with other staff who are familiar / expertise with trade mark, design, patent and G.I. etc.
29. It is also pointed out that vide proceedings dated 15.04.2021, Shri Hardev Karar, Joint Controller of Patents and Designs (Level 13) who was promoted to the grade of Senior Joint Controller of Patents & Designs (Level 13A) on regular basis was posted at IP Archives, Ahmedabad as Officer in-charge of IP Archives, Ahmedabad.
30. It is further pointed out on his superannuation, the applicant herein has appointed along with his post as there is no post exists in IP Archives at Ahmedabad. The 2nd respondent is competent in transferring an official along with the post in public interest and for administrative constraints. It is further pointed out that for implementing the Archival Policy in the Patent Offices and the Trade Mark Registry and for the functioning of IP Archives, Ahmedabad a committee was constituted vide dated 07.01.2015 by the 2nd respondent.
31. It is further submitted that vide proceedings dated 09.01.2015 Shri 28 OA 478/2023 R.K.Pandey, Assistant Registrar of Trade Marks, TMR, Ahmedabad was designated as Officer in-charge for over all management and documentation as per Archival Policy IP Archives, Ahmedabad. Similarly, officers are being transferred to Rajiv Gandhi National Institute for Intellectual Property Management, Nagpur (RGNIIPM) from Trade Mark Patent and G.I. Offices.
32. It is further submitted that vide proceedings dated 10.05.2018 one post of Deputy Controller of Patents and Designs and one post of Examiner of Patents and Designs from Mumbai was transferred to RGNIIPM, Nagpur with immediate effect until further orders by the order of the 2nd respondent. Similarly, due to increased training activities of RGNIIPM, Nagpur, one post of Assistant Controller of Patents and Designs from Patent Office, Kolkatta was also transferred to RGNIIPM, Nagpur with immediate effect vide proceedings dated 13.07.2020 and the aforesaid postings, transfers and transfer of posts by the 2nd respondent to meet the organisation / establishments functioning under the overall administrative control of the 2nd respondent is being periodically made in order to meet the requirement of those establishments. In fact when specific request was made by the 2nd respondent to the Ministry of Commerce and Industry, Department of Industrial Policy and Promotion (IPR-1 Section) dated 05.09.2017 for creation of 12 posts exclusively for RGNIIPM separately from CGPDTM regular cadre was rejected stating that the proposed strength has to be carved out of CGPDTM. Several officers working in the patent office and were discharging their duties also in technical side. The applicant cannot claim 29 OA 478/2023 since he has no vested right that he will work in the patent office that too in technnical side only related to grant / refusal of patent rights.
33. To support his contentions, learned counsel for respondents has drawn attention of this Tribunal to the office order dt. 07.01.2015 and pointed out that the applicant is not the first person who has been posted to the IP Archives at Ahmedabad. Even prior to the said order, other officers who are working in the Patent Offices at New Delhi, Mumbai and Kolkata have been posted to IP Archives, Trade Marks Registry, Ahmedabad. Learned counsel for respodnents further relied upon the office order dt. 09.01.2015 and pointed out that one Shri. P. K. Pandey, Assistant Registrar of Trade Marks Registry, Ahmedabad is discharging duties as Officer incharge as per archival policy of IP Archives, Ahmedabad.
34. Learned counsel for respondents further relied upon the office order dt. 10.05.2018 by which one post of Deputy Controller of Patents and Designs and Examiner of Patents and Designs is transferred to RGNIIPM, Nagpur with immediate effect.
35. Learned counsel for responents further relies upon the office order dt. 13.07.2020 as the decision has been taken in view of the increased training activities at RGNIIPM, Nagpur, thereby, one post of Assistant Controller from Kolkata was transferred to RGNIIPM, Nagpur with immediate effect. Learned counsel for respondents further argued that though the proposal was submitted to the Ministry for revival of 12 posts of RGNIIPM, Nagpur, however by 30 OA 478/2023 communication dt. 18.09.2017, the same has been not approved by the Ministry.
36. In support of his contentions, learned counsel for applicant has relied upon the order passed by the Hon'ble High Court of Delhi in WP No. 12441 of 2022 in the matter of Sumit Dagar Vs Union of India and ors (2022/DHC/004574). Vide its order dt. 01.11.2022, the Hon'ble High Court has considered the issue in respect of transfer of the petitioner therein who was working at Indira Gandhi International Airport, New Delhi to Mangalore station and the allegation was levelled against the respondent authority that the said order is issued in violation of the transfer policy and observed thus at para 10, "10. I also find merit in the respondent's plea that even if the transfer of an employee like the petitioner, who is in a transferable job, is in violation of executive guidelines, the Court ought not to normally interfere with the transfer unless a ground of malafide is made out. In this regard, reference may be made to following extracts of the decision in Amarjeet Singh Dagar (supra) which read as under:-
23. At the outset, it must be emphasised that an employee in a transferable job has no vested right to remain posted at one place. The Courts should not readily interfere with the transfer order which is made in the public interest and for administrative reasons, unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead, the affected party should approach the higher authorities in the concerned department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and/or its subordinate Authorities, there will be complete chaos in the administration which would not be conducive to the public interest. Interference under Article 226 of the Constitution of India is permitted only where the Court finds either the transfer order is mala fide or that the service rules prohibit such transfer or that the Authorities issuing the order were not competent to pass the same. It must be remembered that transfer ordinarily is an incidence of service and must be left to the discretion of the Authorities concerned, which are in the best position to assess the necessities of the administrative requirements of the situation.
The Courts must maintain judicial restraint in such matters. (Refer: Shilpi Bose (Mrs.) vs. State of Bihar, 1991 Supp. (2) SCC 659; Mohd. Masood Ahmad vs. State of Uttar Pradesh, (2007) 8 SCC 150; State of Haryana vs. Kashmir Singh, (2010) 13 SCC 306; and Major Amod Kumar vs. Union of India, (2018) 18 SCC 478)).
31 OA 478/2023
24. In Punjab and Sind Bank &Ors. vs. Durgesh Kuwar, 2020 SCC OnLine SC 774, the Supreme Court summarised the principles applicable to transfer orders, as under:
"17. We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law." "
37. Learned counsel for respondents further relied upon the order passed by the Hon'ble Supreme Court in the matter of Punjab and Sindh Bank Vs. Durgesh Kumar in Civil Appeal No. 1809 of 2020. While dealing into the transfer, the Hon'ble Supreme Court has observed thus, "17. We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus. Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law."
38. Learned counsel for respondents further relied upon the order dt. 19.06.2015 passed by the Principal Bench in OA No. 1888/2015 in the matter of Sh. Jawahar Thakur Vs. Union of India and ors wherein it has been observed thus, "25. The Governments right to post an employee against a duty post in the grade 32 OA 478/2023 or even to a non-cadre post is unquestioned. It is as per the discretion of the Government. It is also being followed in practice, though in principle it has been considered in many cases. As per the recommendations of the Administrative Reforms Commission, Collector could have a fixed tenure of three years; District Collector could have fixed tenure, they are to be posted out as Joint Secretaries in the State Government or even against a Public Sector Unit Post as a matter of routine. Like, a person serving as Chief Secretary may be posted as Additional Member Board of Revenue or some newly created post. This is not questioned anywhere. In the case of State of Madhya Prades Vs. S.S. Kourav & Ors. (1995)3 SCC 270, the Honble Supreme Court have clearly held as under:-
4. The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation .
26. This is not to say that discretion of the Government is unfettered and absolute. It is, of course, fettered if being hit by malafide or against public interest or in violation of some specified statutes or being issued by the incompetent authority, then the courts acquire jurisdiction to interfere in the same.
27. In P. Rushkaran v. Coir Board and Anr. 1979 I L.L.J. 139, the Honble High Court of Kerala has held as under:-
13 ...It cannot be disputed that an employer has a right to transfer his employee.
An employee accepts employment fully knowing that he is liable to transfer from place to place for administrative reasons and in the interests of the employer. This is one of the conditions of service. No employee can demur or cavil at an order of transfer. It is only when an order of transfer is made otherwise than in public interest or for no administrative reasons and in the circumstances amounting to punishment or with mala fide intentions, that the transfer order gets exposed to challenge.
.....
31. Right now we are dealing only with the issue that whether a Government employee has a right to hold onto a post once appointed or conversely what is the right of the Government to transfer/post out one of its employees. In answer to this, we have already provided the decisions of the Honble Supreme Court as cited above. These decisions go a long way to hold that that a person has no right to hold onto the post once appointed or conversely the Government has right to transfer out an employee unless otherwise hit by one of the conditions as we have mentioned earlier; the tribunals/courts are not superior appellate authorities; it is the employer who is the best judge of where an employee is to be deputed; even if there be guidelines and they are infringed the same is not to be called into question where such transfer is made in public interest; the jurisdiction of the court arises only where the transfer is hit by malafide or is made in violation of some statutes; and the transferred employee is to obey the transfer order before he challenges it in the court. In this case, the issues of malafide and procedural irregularities are subject to discussion in the following part of the order. Right now it suffices to state that the applicant or for that matter any Government employee has not right to hold onto the post. The issue 33 OA 478/2023 is accordingly answered against the applicant.
......
36. In Ravi Yashwant Bhoir versus District Collector, Raigad [2012 (4) SCC 407], the Honble Supreme Court after having examined its own 47 previous decisions held as under:-
MALICE IN LAW :
37. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law.Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. Legal malice or malice in law means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745)."
39. Learned counsel for respondents further relies upon the order dt. 25.08.1994 passed by the Hon'ble Supreme Court in Civil Appeal No. 4656 of 1993 in the matter of N. K. Singh Vs. Union of India [(1994) 6 SCC 98]. While dealing into the issue of transfer in public interest, Hon'ble Supreme Court has considered the issue of transfer from significant post to another establishment which is an equivalent post andthe employee was transferred from CBI to BSF. Hon'ble Supreme Court observed thus, "13. In the detailed counter-affidavit filed by Shri Chandrashekhar, Respondent 2, there is a categorical denial of the allegations made against him. He has asserted that even though he was unhappy with the manner in which the appellant handled the investigation into his complaint of tapping of his telephone but that had nothing to do with his transfer from the CBI to the BSF which was made in the ordinary course and according to the exigencies of administration. It is also contended that the appellant's transfer was an ordinary incident of his service which had no adverse effect on his service career. The appellant was transferred to the BSF in an equivalent post and since then he has 34 OA 478/2023 also earned two promotions in the BSF which came to him in due course. It is further urged that the Tenure Rules which provide ordinarily a tenure of five years on deputation in the Central Police Organisations do not contemplate the entire period of five years in one Central Police Organisation alone and, therefore, the BSF also being a Central Police Organisation, there was no infraction even of the Tenure Rules.
14. As for the effect of the transfer personally on the appellant, it is undisputed that there was no adverse effect thereof on the appellant's service career. The transfer of the appellant from the CBI to the BSF was on an equivalent post and the appellant was given two promotions thereafter in due course as and when the promotions became due to him. There was also no infraction of any rules or professed guidelines as a result of the appellant's transfer from the CBI to the BSF.
15. Rule 8 of the Tenure Rules for IPS Officers to which reference has been made by Shri Jethmalani provides that IPS officers appointed to the posts of Inspector General of Police directly from their respective cadres will have a tenure of five years. This has to be read along with Rule 1 thereof which says that IPS officers with a minimum service of seven years would ordinarily be considered for induction in the Central Police Organisations and in the event of their not being found suitable they would be repatriated to their State cadres. A harmonious construction of the provisions in these rules indicates that the ordinary tenure on deputation of five years of IPS officers appointed to the posts of Inspector General of Police from their respective cadres in the Central Police Organisations to which they are posted has to be not necessarily in any one Central Police Organisation but in all, in one or more Central Police Organisations to which they are posted. It is, therefore, clear that the officers found suitable for being continued on deputation in the Central Police Organisations have an ordinary tenure of five years not necessarily in one Central Police Organisation but in all, in the Central Police Organisations to which they are posted. These may be more than one also. The emphasis is on the total period of deputation in Central Police Organisations being five years and not on the entire deputation continuing only in one Central Police Organisation. ....
17. From the relevant record produced by the learned Additional Solicitor General, it is also clear that the proposal for transfer of the appellant from the CBI to the BSF as Inspector General of Police emanated in the ordinary course from the Ministry of Home Affairs and was occasioned by the urgent need to fill the post of Inspector General in the BSF with a suitable officer consequent upon the promotion of the seniormost Inspector General in the BSF as Additional Director General, BSF; and the appellant was considered a suitable officer for appointment to that post. That proposal of the Ministry of Home Affairs was approved in due course by the higher authorities including the Prime Minister.
18. Shri Jethmalani rightly urged that the record is bound to show that nothing unusual was done and the inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances. We have 35 OA 478/2023 referred to the record only to mention that there is nothing therein to suggest that the transfer was unusual. No other suspicious circumstance is made out to permit the contrary inference. No roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinised with reference to the private rights of an individual. There is thus no basis to accept the appellant's contention that his transfer was occasioned by mala fides of the then Prime Minister on account of his annoyance with the appellant for the reasons stated or that it was in any manner contrary to the requirements of the Tenure Rules.
19. There is also material to indicate that there was need of a competent IPS officer in the BSF for being appointed to the post of Inspector General of Police as a result of the seniormost IGP of the BSF being promoted and appointed to the post of Additional Director General, BSF. As the record shows, that was the reason for moving the appellant from the CBI to the BSF to fill the vacancy created in the BSF of a senior IGP therein. These facts reflected in the relevant record negative the plea of mala fide urged by the appellant, even assuming that the appellant honestly believes in the correctness of his stand. The appellant's transfer cannot, therefore, be held to have been made by the then Prime Minister to wreak his vengeance upon the appellant. This impression of the appellant, even if honestly held, is not supported by any acceptable material. .....
22. We are impressed by the track record of the appellant and the uninhibited acknowledgement and acclaim of his calibre and credentials even by the respondents in spite of the serious unsubstantiated accusations made by the appellant against them. The future (sic further) promotions earned by the appellant in due course are recognition of his merit and the assurance that his needless excursion into the arena of litigation to challenge a mere transfer not detrimental to his career prospects has fortunately not had any adverse influence against him. "
40. Learned counsel for respondents further argued that the Hon'ble Supreme Court while passing the order in the matter of Rajendra Singh Vs State of UP & ors in Civil Appeal No. 4975 of 2009 along with another appeal. By its order dt. 31.07.2009, referring to its observations passed by the Hon'ble Supreme Court in the matter of Shilpi Bose (Mrs.) & ors Vs. State of Bihar & ors, the Hon'ble Court had observed thus, "6. 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.) & Ors. v. State of Bihar & Ors.1, this Court held :36 OA 478/2023
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. 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."
7. In N.K. Singh v. Union of India & Ors.2, 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.
8. Insofar as the transfer of Writ Petitioner from Ghaziabad-IV to Hapur-II is concerned, the High Court found that the transfer order has not affected his service conditions AIR 1991 SC 532 (1994) 6 SCC 1998 and pay and other benefits attached to the post which was held by him. As a matter of fact, the High Court did not find any flaw in the transfer of the Writ Petitioner from Ghaziabad-IV to Hapur-II. 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 37 OA 478/2023 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.""
The respondents have also raised contentions that in the interest of department, the efficient persons have been posted at the transferred place. To support this, Learned counsel for respondents has drawn the attention of this Tribunal on their additional reply statement.
41. He further relied upon the order passed by the Hon'ble Supreme Court in Civil Appeal No. 8989 of 2019 in the matter of Rajnish Khajuria Vs. M/s. Wockhardt Ltd and anr. By its order dt. 15.01.2020 has considered the issue of said transfer, malice in law and malafide and observed thus, "14. The act of transfer can be unfair labour practice if the transfer is actuated by mala fide. The allegations of mala fide have two facets - one malice in law and the other being malice in fact. The challenge to the transfer is based upon malice in fact as it is an action taken by the employer on account of two officers present in Conference. In a judgment reported as State of Bihar & Anr. v. P.P. Sharma, IAS & Anr.6, this Court held that mala fide means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. As far as second aspect is concerned, there is a power of transfer vested in the employer in terms of letter of appointment. Even in terms of the provisions of the Act, the transfer by itself cannot be said to be an act of unfair labour 6 1992 Supp (1) SCC 222 practice unless it is actuated by mala fide. Therefore, to sustain a plea of mala fide, there has to be an element of personal bias or an oblique motive. This Court held as under:
"50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and ( ii) whether the administrative action is 38 OA 478/2023 contrary to the objects, requirements and conditions of a valid exercise of administrative power.
51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.
xx xx xx
59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. Malice in law is not established from the omission to consider some documents said to be relevant to the accused. Equally reporting the commission of a crime to the Station House Officer, cannot be held to be a colourable exercise of power with bad faith or fraud on power. It may be honest and bona fide exercise of power. There are no grounds made out or shown to us that the first information report was not lodged in good faith. State of Haryana v. Ch. Bhajan Lal [1992 Supp (1) SCC 335 : JT 1990 (4) SC 650] is an authority for the proposition that existence of deep seated political vendetta is not a ground to quash the FIR. Therein despite the attempt by the respondent to prove by affidavit evidence corroborated by documents of the mala fides and even on facts as alleged no offence was committed, this Court declined to go into those allegations and relegated the dispute for investigation. Unhesitatingly I hold that the findings of the High Court that FIR gets vitiated by the mala fides of the Administrator and the charge-sheets are the results of the mala fides of the informant or investigator, to say the least, is fantastic and obvious gross error of law."
15. In another judgment reported as Prabodh Sagar v. Punjab State Electricity Board & Ors.7, it was held by this Court that the mere use of the expression "mala fide" would not by itself make the petition entertainable. The Court held as under:
"13. ... Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner has become more of a liability than an asset and in the event of there being such a situation vis-à-vis an employee, the employer will be within his liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Board's employees also provide for voluntary (sic compulsory) retirement, a person of 39 OA 478/2023 the nature of the petitioner, as more fully detailed hereinbefore, cannot possibly be given any redress against the order of the Board for 7 (2000) 5 SCC 630 voluntary retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word "mala fide" by the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration has been noted in this judgment in extenso. ..."
16. In a judgment reported as HMT Ltd. & Anr. v. Mudappa & Ors.8, quoting from earlier judgment of this Court reported as State of A.P. & Ors. v. Goverdhanlal Pitti9, it was held that 'legal malice' or 'malice in law' means 'something done without lawful excuse'. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. The Court held as under:
"24. The Court also explained the concept of legal mala fide. By referring to Words and Phrases Legally Defined , 3rd Edn., London Butterworths, 1989 the Court stated: (Goverdhanlal case [(2003) 4 SCC 739], SCC p. 744, para 12) "12. The legal meaning of malice is 'ill will or spite towards a party and any indirect or improper motive in taking an action'. This is sometimes described as 'malice in fact'. 'Legal malice' or 'malice in law' means 'something done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others.' "
It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or 8 (2007) 9 SCC 768 9 (2003) 4 SCC 739 personal ill-will or spite on the part of the State. It could only be malice in law i.e. legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."
....
21. We do not find that the appellant has laid any foundation to allege a malice in law. As mentioned in the judgments referred to above, malice in law would be something which is done without lawful excuse or an act done wrongfully and willfully without reasonable or probable cause. There is power of transfer in the letter of appointment. The appellant has stayed at Sagar for almost 20 years. If an employee is transferred after 20 years and that to the place of headquarters of a company, it cannot be said that the act of transfer was done without lawful excuse. No inference can be drawn that an act was done from ill feeling or spite."
40 OA 478/2023
42. Learned counsel for respondents has drawn attention of this Tribunal to the additional reply statement to rejoinder of the applicant and contended that the transfer order dt. 01.03.2023 is not passed under any provisions of the Patents Act, 1970. As such, the said act does not deal with the transfers. It is passed on the administrative side while discharging the function under the Patent Act, 1970. If such powers are delegated to the Controller of Patents, he being a government servant, he is duty bound to discharge the duties under the administrative side even outside the realm of the Patent Act, 1970 and there is no provision under the Patent Act that the officer appointed under the Patent Act has to be posted only in the Patent Office or to a post related to the allied duties and functions while several officers under the Patent office are working in the administrative side as and when they are expected. Therefore, the applicant is also duty bound to work in the post which comes under the administrative functions of the competent authority. Since the applicant himself admitted in his rejoinder which pleaded that there are several senior officers viz., two Senior Joint Controllers of Patents and atleast 8 Joint Controllers of Patents working in the patent office who could be posted in the IP Archives and it is not disputed that several officers working in the patent office were and are being given to discharge their duties in non-technical side, therefore, the applicant does not have any vested right and claim that he will work only in the patent office that too in technical side connected to grant and refusal of the patent rights.
43. It is further argued that when an officer is working on administrative side, 41 OA 478/2023 he has no right as such to also keep discharging the quasi-judicial functions under the Patent Act, 1970. It is upto the Controller of Patents to decide whether to assign the quasi judicial functions to the officer or not. The same is clear from the section 13 of the Act.
44. It is further argued that the organisational chart which shows IP Archives as a part of Trade Marks Registry, Ahmedabad. Just because IP Archives is at Ahmedabad that does not mean that only Trade Mark Registry officers should be the one administering it and he has reiterated his submissions made in reply and argued that vide various proceedings, various officers from the Joint Controller of Patents and Designs were promoted to the grade of Senior Joint Controller of Patents and Designs on regular basis and were posted at IP Archives, Ahmedabad. As the officer in charge who was due for his superannuation, hence the applicant herein has been appointed along with his post as no such post existed in IP Archives, Ahmedabad.
45. Learned counsel for respondents further argued that by office order dt. 01.03.2023 which clearly stated that the applicant will report to the Head of Office/CGPDTM, Mumbai. It is clear that though the IP Archives under the administration of Trade Marks Registry, officers those who are transferred to patent office will report to Head of Office, CGPDTM, Mumbai only and not to the office of Trade Marks Registry.
46. Learned counsel for respondents submits that since two members of the placement committee were on long leave with CCL and on medical grounds, 42 OA 478/2023 moreover, tender for scanning of digitisation of IP records was on process at that point of time and this is the reason why the transfer of the applicant was not placed before the transfer committee as need has been felt due to the superannuation of the senior officer of the patent office in July 2022 who was posted in IP Archives, Ahmedabad. Also, the office of CGPDTM is considering the possibility of further development of the office at Ahmedabad and considering the long service rendered by the applicant in the organisation as being one of the senior most officer, his experience and service would be very useful for the office to serve public interest. In the circumstances, the order of transfer was issued due to administrative exigencies. Even though as alleged by the applicant that his case was not placed before the transfer committee in the circumstances it will not give any realm to allege that the transfer was not in order. Further it is argued that the transfer order was issued in administrative exigencies and the respondent no. 2 is competent to transfer along with post in public interest and in administrative constraints and he being cadre controlling authority.
47. Learned counsel for respondents further argued that the officers under different cadres (Assistant Controller, Deputy Controller, Joint Controller) from patent office have been transferred from patent office to Ahmedabad by order of respondent no. 2 by office orders dt. 21.02.2023, 02.05.2023 and 01.06.2023 and the aforesaid posting from the transfer of posts by respondent no. 2 was to meet the organisational functions of the respondent no. 2 is being periodically 43 OA 478/2023 made that too to meet the establishment requirement of the organisation. To support his contention, learned counsel for respondents has relied upon the order passed by the Principal Bench at New Delhi in the matter of Sachin Sharma Vs. Union of India and ors in OA No. 458/2022. Vide its order dt. 06.03.2023, the Tribunal has considered the issue of transfer issued by the very same authority being the cadre controlling authority against the employee who was serving in the office at New Delhi as Deputy Registry in the Trade Marks Registry and was posted to the office of Geographical Indications, Chennai on the same post, however with reallocation of work and observed thus, "5. The main grounds on which the applicant has prayed the prayed relief is that keeping in view the facts and circumstances of the case, the transfer-cum- reallocation order dated 19.12.2022 is biased, malafide and issued as punitive measure and hence it is bad in law and action. The applicant in his OA and his counsel during arguments have tendered the following in support of their claim:
(i) The transfer order dated 19.12.2022 issued by respondent no. 2 is contrary to the 'mandated' Transfer Policy of the Organisation issued on 9.1.2020. The applicant has been transferred out after spending merely two years where as the stipulated tenure is 4 years for Deputy Registrars. As per clause 4.1 of the said Transfer Policy, the normal station tenure shall be 5 years.
(ii) The transfer order violates the provision of transfer policy (Clause 2.1), which states that the transfer of Group 'A' and 'B' officers shall be effected based upon the recommendations of the Placement Committee.
(iii) The transfer-cum-reallocation order is in effect transferring the applicant to a non-existent post in Chennai. The post in Chennai was held by an officer of Assistant Registrar Rank and the incumbent there was holding charge of both Trademarks and GI. By splitting the Trade mark and GI work responsibilities into two separate Trade Mark and GI Offices (Two officers have been designated as Head of Office of the respective divisions), the Respondent No. 2 has virtually transferred the applicant to a non-existent position.
(iv) The transfer and reallocation has been effected selectively. The applicant is the only official who has been relocated from the present place of posting. The other officials mentioned in the transfer order have been retained in their respective work stations.
(v) The transfer -cum-reallocation order has been issued in a particular manner in respect of the applicant as a punitive measure 44 OA 478/2023 because he did not comply with the illegal orders of Respondent no. 2 in respect of a Qausi-judicial matter pertaining to one Mr. Upesh Kumar. The applicant has mentioned meetings, WhatsApp messages and e-mail (27.10.2022 and subsequently on 9.11.2022, 15.11.2022, 4.11.22 and 18.11.2022), regarding alleged pressure by Respondent No. 2 in respect of the case of Upesh Kumar. (He has not produced the copies of such e-mails, notice/proceedings of the meeting or emails).
(vi) The Respondent No. 2 has not considered the genuine hardship and difficulties of the applicant and his family (education of his children, the unfortunate death of applicant's father, poor health of the applicant) while not considering his request to cancel the transfer order.
.......
8. The counsel for the respondents drew attention of the Tribunal to substiated facts and circumstances of the case as mentioned in the counter affidavit by the respondents and rebutted the allegations of baiseness, malafide and violation of any statutory provision in issuance of the transfer-cum- reallocation of work order dated 19.12.2022 (impugned order). He based his arguments on the following :
(i) That transfer is ordinarily an incident of service and the Tribunals and Courts should not interfere with such transfers. There are several judgments' by the Apex Court and the High Court's upholding the prerogative of the Government (the employer) to transfer an employee in public interest. The impugned transfer order has specifically mentions that it is a reallocation of work responsibilities and in respect of the applicant it has specifically mentioned that " * Shri Sachin Sharma, Deputy Registrar of TM & GI is hereby transferred to GIR, Chennai in public interest with immediate effect."
(ii) The allegations of malafide and bisedness have been invented by the applicant much after the transferdated 19.12.2022.
In his initial e-mail representation, the applicant has not taken any of these stands as taken in the OA and argued by the counsel for the applicant during arguments. These are after thoughts by the applicant. Initially, the applicant accepted the transfer order without any objection that he was transferred to a non existent position at Chennai, nor he alleged the absence of the recommendations of the Establishment committee, nor premature transfer before expiry of 5 years tenure at Delhi. He only requested for stay of the transfer till March 2023 on account of the ongoing academic session of his school going children and his poor health. In the subsequent representation, he requested the cancellation of the transfer order in view of the family circumstances on account of death of his father. In both these representations, he never alleged any bias, malafide, non-existent post etc which have been invented as an afterthought to perpetuate his stay at Delhi. At each stage of representations, pleadings in the OA etc the applicant is inventing new grounds to allege biseness and malafide on the parts of the respondents.
(iii) The counsel for the applicant refuted the allegation that the 45 OA 478/2023 applicant was transferred to a non-existent post. He cited several instances in the past when the officers in the rank of deputy registrar have been posted at Chennai (Documents III, IV & V produced at the time of argument and part of file). Similarly, the allegation that there is no post of Deputy Registrar GIR at Chennai is counter to the organizationsal structure of the Organization (Documents-I & II produced at the time of argument and part of file.)
(iii) The transfer policy is only a guideline and it has several clauses allowing the competent authority to transfer the employees before tenure, without recommendations of the Establishment committee and reallocated place/station depending upon the exigencies of administration and serving the greater purpose of managing the affairs of the responsibilites assigned to the Directorate effectively and efficiently. Hence, mere absence of the recommendation of the Establishment committee, the transfer before tenure or during the mid-session of academic year of school going children should not constitute biasedness, malafide nor it should constitute punitive action on the part of the respondents. ........
11. In the instant case, the counsel for the respondent argued that the applicant has tried to avoid to go to Chennai merely because it will cause discomfort to him and his family. The Apex Court in Union of India vs. S. L. Abbas CA No. 2348 of 1993 decided on 27.4.1993 has again reiterated similar position. The relevant para 6 of this judgment states:
"6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority".
Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute..... He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force."
12. Again the Apex Court in National Hydroelectric Power Corporation Ltd vs Shiv Bhagwan & anr CA No. 1095-96 of 2001 decided 11.9.2011 held that :
"5. On a careful consideration of the submissions of the learned counsel on either side and the relevant rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well-settled and often reiterated by this Court that no Government servant or employee of public Undertaking has any legal right to be posted forever at any one particular place since 46 OA 478/2023 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 malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4.1.1 of the Seniority Rules interdicts any transfer of the employees from one Office or Project or Unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance. "
13. In State of UP & Ors. Vs. Govardhan Lal CA 408 of 2004 decided 23.3.2004 it was held that:
Para 6 "Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. "
Para 8 "A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which 47 OA 478/2023 could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. "
14. In view of the facts laws and circumstances of the instant case and the case laws cited by the counsel for the respondents, the counsel for the respondents argued that there is priori reasonable ground to hold the presumption that the impugned order dated 19.12.2022 suffers from malafide and biasedness. Hence, it was bounded duty of the applicant to prove the allegation of biasedness and malafide. The burden cannot be shifted to Government of India that it's action is devoid of any biasedness should adduce evidence and produce documents to bring resanable presumption of malafide and baisedness. The applicant has failed to produce the documents based on which he alleges that Respondent No. 2 excreted pressure relating one quasi- judicial matter and because of his non-compliance, he has been victimized. Secondly, the counsel for the respondents, citing the aforementioned judgments averred that the transfer policy is mere guidelines and these is ample scope for the government to transfer the employee suspending any other clause of such guidelines for administrative exigencies. The public interest weighs heavily against the relative discomfort of individual employee in relocation to a new place of posting.
.....
16. The argument by the counsel for the applicant that the present transfer case fails the Doctrine of Reasonable Expectations by an employee from the model employer i.e. The Government of India falls flat. On the other hand, the Government as custodian of Public interest has also reasonable expectations from its civil servants. A group "A" officer is supposed to serve anywhere in the country. That is the basic service condition for such officers. Moreover, it is the prerogative of the employer to transfer his employee at any point of time and to any work station based on administrative exigencies. The transfer policies are framed keeping in view effective deployment of manpower for the purpose of discharging the responsibilites of the organization in service public affairs. It is part of the Human Resource Management policy of the Government to provide better opportunities to officers for excellence and more planned approach to cadre planning. Effective Utilization of service of an employee is in the very core of administrative exigency. The public interest is more or equally important as the reasonable expectations of the employee being treated fairly and impartially in respect of personal hardships and difficulties. Somewhere, public interest weighs above the personal comfort of the employees. Referring to Shilpi Bose case (supra) and Gujarat Electricity Board V. Atmaram Sungomal Poshani, 1989 (2) SLR 684 (SC), The Delhi High Court in Union of India Vs. Yogender Mittal WPC 6726/2015 held that a judicial review of an 48 OA 478/2023 administrative action is of course permissible, but orders of transfer are interfered when:-
"(a) the transfer is malafide or arbitrary or perverse;
(b) when it adversely alters the service conditions in terms of rank, pay and emoluments;
(c) when guidelines laid down by the department are infringed;
(d) when it is frequently done and lastly;
(e) if there is a statutory infraction;"
In the instant case, none of the above five conditions are attracted. In the instant case, the applicant did not join at the new place of posting as a discipline civil servant after being relieved from office at Delhi. He could have joined at the new place of posting and then would have submitted representation regarding his personal difficulties. Instead of joining at the place of posting ie., Chennai, he presented one alibi by another to perpetuate his stay at Delhi. When he was transferred after two years from Ahmedabad to Delhi he willingly accepted. When, for administrative exigency, he was prematurely transferred to Chennai, he protests. The system should not work only for the comfort and advantage of the employee at the detriment of public interest. Reasonable expectation of the government from government servant regarding public service to the general public and governance efficiency cannot be sacrificed at the altar of convenience of balance for the employee only."
48. Learned counsel for respondents submits that almost, the same allegations has been levelled by the concerned employee including the transfer being punitive with malafide as well as not placed before the placement committee and also at lower post. All the issues have been dealt in detail by the Tribunal as observed above.
49. Learned counsel for respondents further relied upon the various orders issued by respondent no. 2 giving posting on promotion to the officers from one office to another office, the persons who are working in the patent office on promotion have been posted in IP Archives, Ahmedabad as well as other employees working under the control of respondent no. 2 have been transferred along with post from the Patent Office to the RGNIIPM, Nagpur. Therefore, respondent no. 2 has acted within his purview as having the power to issue the 49 OA 478/2023 transfer along with the post. Moreover, neither the applicant nor the applicant's counsel has alleged that against the complaint of the patent agent there was indulgence or any sort of pressure upon the applicant to revise his decision by the respondent authorities. As such, the respondents acted within the four corners of the Patent Act, 1970 and called for an explanation from the applicant on the complaint of the patent agent accordingly. Hence, the points raised by the applicant in OA as well as rejoinder and memo alleging the transfer is punitive, without power and against transfer policy are baseless, beyond the scope of policies as well as law.
50. It is to be noted that on the point of the office order dt. 12.05.2023 relied upon by the learned counsel for respondents, though by memo, learned counsel for applicant has raised objection and to respond it learned counsel for respondents has relied upon the sub section 2 of Section 22 of the Administrative Tribunals Act, 1985 and submitted that the Central Administrative Tribunal is not bound by the procedure laid down in Civil Procedure Code 1908. Upon the said response, the learned counsel for applicant has gave up his objection.
51. It is to be noted that the said transfer has been effected in the administrative exigencies. It is to be noted that in the order of Hon'ble High Court of Madras in the matter of S. Gnanasambantham (supra) which is relied upon by the applicant in respect of transfer along with post, the Hon'ble Court has opined that the Managing Director was not having any such powers to pass 50 OA 478/2023 the impugned transfer order, the memorandum of articles of association is not helpful for it.
52. It is to be noted that the another order passed by the co-ordinate Bench at Jabalpur in the matter of Dr. Puneet Gandhi wherein the person who was working as Professor and Head, Department of Research, Bhopal Memorial Hospital and Research Centre (BMHRC) has been transferred to National Institute for Research in Environment Health (NIREH), Bhopal along with post wherein the issue of power of Director General, ICMR was questioned on his competency. The respondents therein have not produced any document to support their contentions to show that the BMHRC is one of the centre run by the ICMR directly.
53. It is to be noted that in the matter of Sanjeet Sharma and others (supra) in batch of OAs relied upon by the learned counsel for applicant in his support that the respondent no. 2 is not competent authority to transfer the applicant along with post, the co-ordinate Bench at Chandigarh has considered the issue at length and observed that the applicants are having different service conditions as well as different hierarchy of the post and their authorities are also different as competent authorities and the said transfers are basically outside cadre.
54. It is also to be noted that another order passed by the Hon'ble Supreme Court in the matter of Kavi Raj and ors (supra), wherein it was observed that broadly, an employee can only be posted (or transferred) to a post against which he is selected. This would ensure his stationing, within the cadre of posts, under 51 OA 478/2023 his principal employer. His posting may, however, be regulated differently, by statutory rules, governing his conditions of service. In the absence of any such rules, an employee cannot be posted (or transferred) beyond the cadre to which he is selected, without his willingness/readiness. Therefore, an employee's posting (or transfer), to a department other than the one to which he is appointed, against his will, would be impermissible. But willingness of posting beyond the cadre (and/or parent department) need not be expressly sought. Learned counsel for applicant is harping on that since willingness from applicant has not been sought.
55. It is to be noted that in respect of the power of the competent authority to seek for clarification, the judgment relied upon by the applicant passed by the Hon'ble Supreme Court in the matter of Tota Ram Vs. State of Madhya Pradesh & Anr (supra) in Criminal Appeal No. 1010 of 2023 wherein the interference of the Hon'ble High Court has been questioned on suo moto cognisance. It is also to be noted that on the point the matter has not been placed before the placement committee he has relied upon the ordder of Hon'ble Apex Court in the case of T.S.R.Subramanian and ors Vs Union of India and ors (supra) wherein the issue involved was related to frequent transfers of Civil Servant Officers.
56. It is to be noted that as recorded above all the judgments relied upon by the learned counsel for applicant are regarding either the respondents are not supporting themselves with any documents where the power has been vested 52 OA 478/2023 with them while transfering the employee along with post or transfer of that employee is totally in different establishment which is not controlled by that authority who has issued the transfer. Hence, ratio of the judgments/orders relied upon by the applicant on the ground that respondent no. 2 is not competent at all to transfer the applicant along with post are not applicable to the facts of the present OA. Since respondent no. 2 who is the cadre controlling authority having been assigned all the powers to post the employees as well as promote the employees and issue the transfer/postings along with their posts and the same has been followed in various occassions even prior to the present transfer order and even after the applicant's transfer, respondent no. 2 has issued various promotion orders wherein the persons from the patent offices from Chennai, Delhi and Kolkata have been promoted to the higher post and even posted to the IP Archives, Ahmedabad.
57. Hence, I do not find any force in the submissions of learned counsel for applicant. It is to be noted that in the order of the Hon'ble Supreme Court in the case of T.S.R.Subramanian (supra) relied upon by the learned counsel for applicant to support his contention it was observed that there is frequent interference which is not good for the organisational interests since Civil Servants of India are not having stability on joining according to the political and other considerations and not in the public interests. Therefore, on the observation, the Court has opined and directed the government to form a Civil Services Board consisting of high ranking Civil Service officers such as Chief 53 OA 478/2023 Secretary from the Centre and Chief Secretary at State level could be better alternative (till Parliament enacts a law), to guide and advise the State Government on all service matters, especially on transfers, postings and disciplinary action etc.
58. It is to be noted that in the present case the said transfer has been effected purely on the need and administrative exigency. As such, the applicant has completed his tenure and looking to the exigencies of the service as held by the Principal Bench in OA 458/2023 in the case of Mr. Sachin Sharma Vs. Union of India and ors (supra), it is not necessary even to seek the approval of the placement committee and for the organisational interests, the competent authority can take immediate decision and the same is under their prerogative.
59. It is to be noted that the as far as the judgments of the Hon'ble Apex Court in the cases of Smt. S. R. Venkataraman (supra) and Swaran Singh Chand (supra) relied upon by the applicant to support his contentions on the malice in law relied upon by him are concerned, since I do not find any proposition has been made out on facts of the case, hence both the cases are not applicable to present case.
60. On the other hand, order passed by the Principal Bench in OA 1888/2015 in the matter of Shri. Jawahar Thakur (supra), for malice in law, this Tribunal has held that, "36. In Ravi Yashwant Bhoir versus District Collector, Raigad [2012 (4) SCC 407], the Honble Supreme Court after having examined its own 47 previous decisions held as under:-
MALICE IN LAW :54 OA 478/2023
This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law.Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. Legal malice or malice in law means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745)."
61. It is to be noted that learned counsel for applicant tried to link the clarification sought by the authority in respect of the complaint raised by one of the patent agent. The applicant himself has granted approval to the patent application of the said agent prior to rejection of the said patent application in which complaint has been raised. Even thereafter, the applicant has granted approval to the said patent agent in his subsequent application too.
62. It is to be noted that under the power vested with the competent authority in the Patent Act, he acted within four corners of the Act. The competent authority is having all the powers for as and when the complaints received from any of the patent agents they can seek clarification from any of the officers. For taking such routing action 'malice in law' cannot be imported. Even the applicant has not pleaded that he was coerced, warned or intimidated to pass orders in any particular manner. Admittedly, no such allegation is made against the respondent no. 2. It is to be noted that when the person who is on 55 OA 478/2023 superannuation, more particularly when the organisation is in the need and looking to the experience possessed by the applicant if the decision has been taken keeping in mind the public interest, I do not find that the action of the respondents is contradictory to any of the law as well as the rules.
63. Moreover, in the matter of Sachin Sharma (supra) who was posted as Deputy Director in the office of Director General Patents, Designs and Trade Marks Registry who had been transferred and posted to the Chennai office in the capacity of Deputy Registrar, for the transfer cum reallocation order of the applicant therein it was also alleged that without any recommendation of placement committee, the said transfer has been effected and the said transfer is punitive in nature as well as with intention since he did not comply with the legal areas of the respondent no. 2 in respect quasi judicial matters pertaining to one of the applicant. Moreover, while issuing the said transfer, respondent no. 2 has not considered the genuine hardship and difficulties of the applciant. While dealing into the issue, it is held that it is by now well settled and often reiterated that no government servant or employee of public undertaking has any legal right to be posted for ever at any particular place since transfer of any particular employee appointed to the class or category of transferable post at one place or another is an incident of service and efficiency unless in public interest unless the order of transfer has been passed with malice in law and in violation of statutory provisions prohibiting any such transfers.
64. It is to be noted that as such, the applicant is unable to prove any malafide 56 OA 478/2023 and malice in law. Moreover, as held by the Hon'ble Apex Court in the matter of Union of India Vs. S. L. Abbas (supra) in Civil Appeal No. 2348 of 1993 dt. 27.04.1993, the order of transfer is an incident of government service, FR 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". The respondent is liable to transfer anywhere in India is not in dispute.
65. It is also to be noted that the Hon'ble Supreme Court in the matter of State of UP & ors Vs. Govardhan Lal (supra) had held that, "A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
66. Moreover there is no reasonable ground made out by the applicant to hold 57 OA 478/2023 the presumption that the impugned order dt. 01.03.2023 suffers from malafide and malice. It is bounden duty of the applicant to prove the allegations on bias and malafide and the burden cannot be shifted to Government of India to prove that the action is devoid of any bias and malafide. Though the applicant alleged such bias and malafide, but no supporting evidence has been produced except certain communication/correspondence between applicant and competent authority who has sought clarification in respect of complaint from the patent agent and that does not give any scope to allege malice in law or make any allegations on the said transfer since the applicant has not made any specific statement or averment in this OA or rejoinder or statement that there is any pressure from the competent authority who was entertaining the said complaints of the patent agent to pass favourable orders on the said patent application. As pointed out by the respondents that in the administrative exigencies, an officer can be posted to work on administrative side also outside the realm of Patent Act, 1970.
67. It is to be noted that the respondent no. 2 who is the cadre controlling authority of all the establishments/divisions which come under him, he has been assigned with the powers of transfer along with posts. In the matter of applicant though the applicant has been transferred from the present place from patent office, Chennai to the IP Archives, Ahmedabad, neither his pay or salary as well as other monetary beneifts or career progression have been affected and his service has been attached and under the control of the Mumbai Patent Office, 58 OA 478/2023 O/o CGPDTM. It is further to be noted that the government on the point of public interest also has reasonable expectations from its civil servants.
Moreover, a Group A Officer is supposed to serve anywhere in the country which is a basic service condition of such officers. Also it is the prerogative of the employer to transfer his employee at any point of time and to any work station based on the administrative exigencies. The transfer policies are framed keeping in view the effective deployment of work for the purpose of public affairs. It is part of the human resource management policy of the government to provide better opportunities to its officers for the effective utilisation of their services during administrative exigencies. The public interest is more and equally important as the reasonable expectation of the employee being treated fairly and impartially in respect of personal hardships, difficulties. Somewhere, the public interest is above the personal comforts of the employees as observed by the Hon'ble Supreme Court in the matter of Shilpi Bose (Mrs.) & ors Vs. State of Bihar & ors (supra) and Hon'ble Delhi High Court in Union of India Vs. Yogender Mittal (supra) had held that judicial review and administrative action is of course permissible but the order of transfers are interfered when (a) the transfer is malafide or arbitrary or perverse; (b) when it adversely alters the service conditions in terms of rank, pay and emoluments; (c) when guidelines laid down by the department are infringed; (d) when it is frequently done and lastly; (e) if there is a statutory infraction. However, in the present case none of the condition has been satisfied by the applicant as recorded above. The said 59 OA 478/2023 transfer has been effected purely in the administrative exigencies. The respondent no. 2 who is having power to transfer the applicant along with his post and the same is not in punitive nature. Nowhere it is stated and no convincing material is placed to say that it is intentional and with a malafide as well as malice in law. The applicant has not produced any material or pointed from the statutory rule under which the applicant is working, any express provision which prohibits from transferring him/post from Patent Office, Chennai to IP Archives, Ahmedabad. In the absence of any such statutory provision, the employer has prerogative power to transfer his employee under FR - 15 to meet the administrative exigencies in the public interest.
68. Learned counsel for applicant submitted that according to the transfer policy that the person who is having less than 2 years period for his superannuation shall not normally be transferred and such request has been considered in the matter of other employees. It is to be noted that such requests have been considered according to their choice by the authority since they were having completely less than 2 years tenure. Moreover, in the matter of the applicant, when the transfer order was issued on 01.03.2023, he was having more than 2 years tenure. It is totally at the discretion of the respondent competent authority to consider the said request and as per the policy normally such officer not to be transferred.
69. In view of the above, there is no merit in the matter. Hence no interference is called for in the transfer order dt. 01.03.2023 and speaking order 60 OA 478/2023 dt. 08.06.2023 which are rightly passed by the respondent no. 2 under the discretionary power and in the administrative exigencies.
70. Accordingly, the OA is dismissed. The interim order dt. 05.07.2023 thus stands vacated. No order as to costs.
71. At this juncture, learned counsel for applicant requested stay to the order passed by this Tribunal. Learned counsel for respondents strongly opposed the same on the ground that the respondents have established and justified the transfer of the applicant transferring to IP Archives under the administration of TMR, Ahmedabad along with post with immediate effect and immediately thereafter he has to report to the Head of Office, O/o. CGPDTM in the administrative exigencies. However, because of the intervention of this Tribunal, almost from last 5 months, the same could not be effected to fulfil administrative exigencies.
72. It is to be noted that the matter has been considered thoroughly in detail and after verifying all the aspects and objections raised by the learned counsel for applicant, since the same does not stand in the eyes of law as the said transfer has been made by the respondents in the administrative exigencies when one of the officer who was from the office of Patents and Designs was promoted to the higher grade and posted at IP Archives, Ahmedabad and on his superannuation, the applicant has been appointed along with post to look after the administrative work. It is also to be noted that the applicant is due for transfer and has not made out the case on merit. Moreover as held by the 61 OA 478/2023 Hon'ble Supreme Court, in the matter of transfer, the employee has to first obey the transfer order and join at the transferred place and thereafter agitate his grievances if any.
73. In view of the said guidelines as well as for the reasons recorded above, I do not find any reason to extend the stay order. Hence, the request for stay is rejected with advice to the applicant to report at the transferred place immediately after receipt of relieving orders and thereafter he may submit his grievance to the authorities whatsoever in nature.
(Lata Baswaraj Patne) Member (J) 27.07.2023 SKSI