Central Administrative Tribunal - Delhi
Dr. Sahadeva Singh vs Union Of India Through on 19 August, 2008
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1363/2008
New Delhi this the 19th day of August, 2008.
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. N.D. Dayal, Member(A)
Dr. Sahadeva Singh,
S/o Sh. Shital Singh,
R/o 36, Jia Sarai,
Hauz Khas,
New Delhi-16. . Applicant
(through Sh. M.K.S. Menon, Advocate)
Versus
1. Union of India through
the Secretary,
Ministry of Agriculture,
Department of Agriculture & Cooperation,
Krishi Bhawan, New Delhi.
2. Secretary,
Department of Expenditure,
Government of India,
South Block, New Delhi.
3. Chief Executive Officer,
National Rainfed Area Authority,
NASC Pusa, New Delhi-12. . Respondents
(through Sh. H.K. Gangwani, Advocate)
O R D E R
Mr. N.D. Dayal, Member(A) The applicant who is Deputy Commissioner (Crops) in the pay scale of Rs.12,000-16,500/- at the Technology Mission for Integrated Development of Horticulture in North Eastern & Himalayan States (TMNE) in the Department of Agriculture & Cooperation, Ministry of Agriculture is aggrieved by the order dated 30.06.2008 (Annexure-A) by which he has been posted in National Rainfed Area Authority (NRAA) on secondment basis.
2. The applicant has recounted that having joined as Scientist (Agronomy) in the National Research Centre for Weed Science (ICAR), an autonomous body of the Ministry of Agriculture in 1989, over the years he has been steadily progressing in career having become at first Assistant Director and then Assistant Commissioner (Crops.), also receiving appreciation and higher pay scales in the line of specialization till promotion to the present post on regular basis w.e.f. 04.10.2006. His qualifications include MSc., PhD (Agronomy) and he has worked as a Scientist doing research in ICAR and gathered further experience in the Plant Quarantine and Fumigation Station, New Delhi under the Directorate of Plant Protection Quarantine & Storage, an attached office of Ministry of Agriculture. The applicant states that he has acquired the essential qualifications and experience for promotion to the post of Additional Commissioner (Crops.) in the same department in the pay scale of Rs. 14,300-18,300/- and is in fact in line for this promotion for which applications were invited on 13.03.2008. However, he has had to move the Honble Delhi High Court because there has been a mala fide attempt to withhold his case for promotion and now to post him to NRAA also to avenge imposition of a fine of Rs. 5,000/- by the Court on the respondents.
3. It is stated that there is a separate cadre of Rainfed Farming in the Ministry of Agriculture having a sizeable complement of staff but instead of transferring persons from there, the applicant has been posted to NRAA even though he is incharge of various projects which are still unfinished. By the impugned transfer order dated 30.06.2008 Sh. S.K. Bhatia, Additional Commissioner (Horticulture) has been transferred from NHM and posted in TMNE/NBM but his transfer is sought to be reconsidered at the behest of the Head of the Horticulture Division, due to the requirement to complete several pending works whereas the applicants posting is not being reconsidered.
4. We note that NRAA has been created by Order dated 03.11.2006 (Annexure A-3) to address the problems of rainfed areas, prepare watershed development programmes for integrated natural resource management and enable the systematic upgradation and management of the Countrys dryland and rainfed agriculture, focusing on issues relating to multidimensional crop., livestock, horticulture as well as landless and marginal farmers to cover all aspects of sustainable and holistic development of rainfed areas with appropriate farming and livelihood system approaches. This could involve preparation of perspective plan, identifying the target areas etc. The applicant has asserted that the validity of such a transfer in his case from a specialized nature of work, which is quite different to a separate and distinct field of work outside his cadre in Crops Division of the department, is not tenable as this would result in the loss of his expertise to the department and inadequate utilization of his services in the new area of work which has its own peculiar requirement of expertise and technology.
5. It is further submitted that by the order dated 03.11.2006 the staffing in NRAA is envisaged by suitable redeployment of personnel from the Ministries of Agriculture and of Rural Development without creation of any posts other than the Chief Executive Officer and the full time experts of the Executive Committee. This staff is to be drawn after consultation between Chief Executive Officer of NRAA and the Secretaries of the Ministries. Further, NRAA has been authorized to take additional persons on contract or on deputation basis from elsewhere, when necessary. Thus, it is contended that Paras-11 and 12 of this order which carry these decisions are violative of order dated 27.05.1977 reiterated by O.M. dated 25.10.1977 at Annexure A-4 as under:-
The undersigned is directed to say that instances have come to notice when a post sanctioned for a specific purpose in an organization is diverted for another purpose at the same or different station and / or utilized as a stand by to accommodate an officer awaiting posting orders or to make use of the services of an officer for some special item of work etc. Such diversion of posts obviously leads to the conclusion that the purpose for which the post was originally created has ceased to exist and diversion effected to cope with some new item of work, notwithstanding the fact that such arrangement is within the same cadre/organization and/or at the same or different stations. It has been decided that such cases of diversion/transfer/adjustment of posts would amount to creating new posts and therefore attract the ban orders at present in force on creation of fresh posts-vide this Ministrys O.M.No.F.14(14)-E(Coord)/77 dated 27th May 1977 and prior clearance should be obtained at the appropriate level before resorting to such a practice.
6. It has been elaborated that every post is sanctioned for a specific purpose with necessary budgetary support and cannot be diverted without concurrence of the Ministry of Finance in accordance with the orders and instructions of the Government. The order dated 25.10.1977 has been noticed by the Tribunal in OA-405/2008 decided on 28.04.2008 (Annexure A-10) wherein it has been observed that the ban is still continuing. Therefore, it was not open to the respondents to decide open redeployment of staff without creation of posts in the absence of prior clearance at the appropriate level in Government. There is no specific mention of any such clearance having been taken from the Ministry of Finance or other competent authority in the order dated 03.11.2006.
7. The applicant has drawn attention to the Blacks Law Dictionary meaning of Secondment from which it appears that it implies temporary transfer to other employment/position. He submits that there is no provision for secondment in the order dated 03.11.2006 which only authorizes NRAA to take additional personnel on contract or on deputation basis.
8. In the above background, the applicant is seeking the setting aside of the transfer order dated 30.06.2008 as well as Para-11 and 12 of the order dated 03.11.2006 to the extent of it being in violation of Government Order dated 27.05.1977. He further seeks to be continued as Deputy Commissioner (Crops.) at the TMNE.
9. When this matter was initially taken up on 07.07.2008, a statement was made on behalf of the respondents that the applicant already stands relieved, which was disputed. It was further stated that the applicants representation has been rejected on 03.07.2008 but counsel for applicant claimed that the same has not been communicated. Later, status quo as on date was directed by the Tribunal on 17.07.2008.
10. In their written reply, the respondents have opposed the prayer of the applicant and stated that in the offer of appointment for the post of Assistant Commissioner (Crops.) in 1999 (Annexure R-1A) it had been clearly mentioned that the applicant was likely to serve anywhere in India or abroad in the exigencies of public service. Having taken up the appointment as well as subsequent promotion to the post of Deputy Commissioner (Crops), it is incumbent upon him to accept his posting to NRAA. It is clarified that no separate cadre has been created in NRAA and there are no Recruitment Rules to be framed. The officers/staff are to be posted on secondment basis, which according to the Chambers dictionary means temporary transfer to any position, and they would continue to draw salary from their departments without any adverse implication for promotion, which would continue to be governed by the cadre rules concerned. It has been submitted that the NRAA was set up under the Department of Agriculture & Cooperation itself and is a part of the same. The order of Ministry of Finance dated 25.10.1977 is not relevant as the post of Deputy Commissioner (Crops.) held by the applicant has not been diverted to NRAA and the applicant would continue to hold the same as he has been posted only on secondment basis like other officers and staff and for this purpose, therefore, no prior sanction of Ministry of Finance is required.
11. With regard to specialization of the applicant, the respondents have stated in Paras 3(b)(c) and (d) of the reply that:-
On his appointment to the post of Assistant Commissioner (Crops) in the Department of Agriculture & Cooperation with effect from 29.6.99, Dr. Sahadeva Singh was posted in the Rainfed Farming Systems (RFS) Division of the Department for five years upto 25.6.2004 (Annexure R-3A). While working in RFS Division, he was entrusted with the work relating to the monitoring of the implementation of Project viz. National Watershed Development Programme for Rainfed Areas (NWDPRA) upto June 2004. He has also handled work relating to budgetary and financial matters pertaining to Watershed Development Council (WDC) which is a unit under RFS Division.
He has handled the projects on Watershed Development and had a close interaction with research aspects on Watershed Development in Rainfed areas.
He has participated in group training course on Sustainable Water Resources Development on Agricultural & Rural Areas in Japan from 21.5.2033 to 31.7.2003.
12. It has been further clarified that the representation of the applicant dated 30.06.2008 against his transfer was replied to by letter dated 03.07.2008 (Annexure R-6) and he was relieved by order of the same date (Annexure R-7). Both were sent to his residence. As per endorsement on Annexure R-7 the applicant refused to sign office copy of the order. This O.A. was filed the next day on 04.07.2008.
13. It is submitted that the decision not to create any post for NRAA has been taken with approval of the Ministry of Finance. It is wrong for the applicant to say that his promotion is withheld. He stood promoted on regular basis as Deputy Commissioner (Crops) from 04.10.2006. In fact his plea for promotion with effect from 28.06.2004 was dismissed by the Tribunal by its order dated 17.01.2007 in OA-2125/2005 (Annexure R-13), which was challenged before the Honble High Court of Delhi in WP-5549/2007 in which counter-affidavit was filed with delay subject to payment of fine of Rs.5,000/-. It is revealed that another Writ Petition has been filed by the applicant against order dated 16.05.2005 passed in OA-2182/2004 on an earlier seniority issue. The respondents submit that 4 posts of Additional Commissioner (Crops) in the pay scale of Rs. 14,300-18,300/- were circulated and advertised for filling up on deputation basis (including short term contract) and as per the Recruitment Rules, the departmental officials in feeder category who are in direct line for promotion will not be considered for promotion/appointment on deputation. As such, the question of consideration of the applicants case against this advertisement does not arise. He is a feeder grade officer for promotion to the post of Additional Commissioner, which depends upon his eligibility and availability of vacancy. There is no mala fide. The applicant has himself worked in the relevant area gaining experience of Rainfed Farming Systems as well as National Watershed Development Programme. Further, an Assistant Commissioner from Rainfed Farming Systems Division has also been posted to NRAA. It is considered more practical to send officers from different divisions keeping in view their work experience and workload of the divisions, rather than denuding the Rainfed Farming System/NRA Division in which there are already four vacant posts of Deputy Commissioners out of seven and one is filled only on ad hoc basis.
14. No rejoinder has been filed by the applicant, whose counsel declined the opportunity on 15.07.2008 as per order sheet of that date.
15. We have heard the learned counsel for both the parties and perused the pleadings. A perusal of the order dated 03.11.2006 reveals that the NRAA was set up with a two-tier structure consisting of a Governing Board and the Executive Committee after decision by the Government of India in order to address the problems of Rainfed areas and for their sustainable development. As per the order, a large number of Ministries would be represented in the NRAA along with eminent experts in different fields such as Water Management, Agriculture/Horticulture/Animal Husbandry & Fisheries/Forestry and Watershed Development. This policy decision of the Government reflects an in-depth evaluation of the problem and application of mind so as to evolve the concept of NRAA and implement the same. The bona fides of the government and the public interest behind this initiative is manifest from the details of the order issued which makes clear not only the objective and mission of the NRAA but also its terms of reference and mandate besides the manner in which it would be staffed. It also shows that the NRAA would have its own budget and how the initial expenditure would be met. There is no reason why the written commitment of the respondents that the Ministry of Finance was consulted while drawing up the proposal of NRAA be not taken as correct in the absence of any material on record in contradiction. There can be little doubt that the decision of the Government regarding budgetary provision for NRAA and initial expenditure as well as the provision regarding induction of man power, would normally have to be preceded by suitable consultation and concurrence of the Ministry of Finance. The endorsement of a copy of this order to the AS&FA, Department of Agriculture and Cooperation, Ministry of Agriculture points to his association with and prior knowledge of the setting up of NRAA. It is not the case of the applicant that after the issue of the order dated 03.11.2006 there has been any objection raised by the Ministry of Finance with regard to the same and especially Para 11 and 12, which the applicant has assailed.
16. It is apparent that the word secondment has not been mentioned in the order dated 03.11.2006 but it has been envisaged that the Ministry would suitably re-deploy staff with no creation of posts other than the Chief Executive Officer and full time experts. Since secondment implies a temporary movement and the applicant would retain appointment on the original post which is not diverted, such posting would appear to fall within the scope of this order by way of a suitable redeployment. The order further provides for consultation between the Chief Executive Officer, NRAA and the Secretaries concerned before such staff is drawn and for taking additional personnel on contract or deputation from elsewhere, which are accepted modes of inducting man power. It is well settled that creation and abolition of posts lies within the domain of the executive authorities and ordinarily it is not for the Court to sit in judgment over such policy matters. The Apex Court in Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal and Others (2007(8)SCC 418) while not ruling out judicial review of policy decisions where shown to be arbitrary, unreasonable or violative of statutory provisions, observed that a Court of Law is not expected to propel into the uncharted ocean of government policies.
17. It is also settled law that postings and transfers are an incident of service. We do not find that there has been any violation of statutory rules or that any infirmity is noticeable in the action taken by the respondents. Even the plea of mala fide is not substantiated, in the facts and circumstances of the case. It is observed that while on the one hand the applicant had gained experience and expertise over a period of time in the Crops Division of the Ministry, he had also worked for many years in the Rainfed Farming Systems division, a fact that has been suppressed by him in the O.A. His averments regarding persecution by the authorities being a General Secretary of the Officers Association and about the reasons for litigation in the Honble High Court of Delhi are found to be ambiguous and misleading. If a proposal was made to postpone the transfer of Sh. S.K. Bhatia, it cannot be said that a similar approach must have been adopted in the applicants case as well, because it is for the administrative authorities to decide upon the priority of work and manage the same keeping in view the availability of officers and staff and not for the Court to step into such matters. It has been made clear by the respondents that the promotional and career prospects of the applicant would not suffer and that he would continue to hold the post of Deputy Commissioner (Crops.) As such no civil consequences appear to have been visited upon the applicant by the impugned posting order.
18. We, therefore, do not find sufficient grounds to accede to the prayer of the applicant. The interim order is vacated and the O.A. is dismissed without any order as to costs.
(N.D. Dayal) (V.K. Bali) Member(A) Chairman /vv/