Central Administrative Tribunal - Hyderabad
P Vijaya Shankar vs Directorate Of Forensic Science ... on 30 June, 2023
OA No.21/407/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/021/407/2022
Reserved on: 24.03.2023
Pronounced on: 30.06.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
P. Vijaya Shankar, S/o. P.L.N. Sastry,
Aged 57 years, Occ: Director & Scientist „E‟ (Group-A),
Central Forensic Science Laboratory, Hyderabad,
R/o. Hyderabad.
.....Applicant
(By Advocate: Mr. K.R.K.V. Prasad)
Vs.
1. Union of India, Rep. by
The Joint Secretary (Women Safety),
Ministry of Home Affairs,
North Block, New Delhi.
2. The Directorate of Forensic Science Services,
Represented by the Chief Forensic Scientist,
Block-9, 8th Floor, CGO Complex,
Lodhi Road, New Delhi - 110 003.
3. The Director,
Central Forensic Science Laboratory,
Ramanthapur, Hyderabad.
4. Dr. Rajiv Giroti,
Director & Scientist-E,
Central Forensic Science Laboratory,
Ramanthapur, Hyderabad.
....Respondents
(By Advocate: Mr. V. Vinod Kumar, Sr. PC for CG
Mr. Rajiv Giroti, PIP (R-4))
Page 1 of 12
OA No.21/407/2022
ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The applicant filed the OA seeking the following relief:
"..to call for the records pertaining to Office Order No. DFSS/2/16/2020/4126 dated 10.01.2022 transferring the applicant from Hyderabad to Pune w.e.f. 01.07.2022; and (ii) set aside and quash the said order to the extent of transfer of the applicant from Hyderabad to Pune as illegal, arbitrary; and (iii) direct the official respondents to retain the applicant at Hyderabad, the present place of posting granting all consequential benefits..
2. Brief facts of the case are that the applicant is working in the grade of Director (Group-A) in Central Forensic Science Laboratory (for short "CFSL") at Hyderabad, under the control of 2nd respondent and functions under the aegis of the 1st respondent Ministry. Promotion to the grade of Director is done from the grade of Dy. Director (Scientist-D) and the eligibility for promotion is 4 years of residency period in the feeder grade as on 1st January of the following calendar year. When the draft seniority list of Dy. Director was notified on 12.09.2019, he represented on 01.10.2019 objecting the seniority assigned to the Dy. Directors at Sl. No. 1 & 7 and they cannot be considered for promotion as Director before completion of 4 years period and the same was replied on 29.10.2010 stating that the seniority will be communicated as per OM dt. 25.04.2018. He submitted another representation on 15.01.2021 reiterating that seniority has not been finalized as per Directorate orders dt. 30.12.2013.
3. Meanwhile, the 4th respondent filed OA 480 of 2020, being aggrieved by non-consideration of his case for the post of Director & Scientist E for the year 2019 and the said OA was dismissed. However, he came up for consideration for promotion to the post of Director for the year 2021 in the eligibility list circulated on 08.09.2021 in which the name of the 4th Page 2 of 12 OA No.21/407/2022 respondent was changed from Sl. No.1 to Sl. No.7 and the name of Dr. Ikramul Haque was shown at Sl. No.1 contrary to rules, against which the applicant represented. Earlier, a proposal was sent to the Ministry on 29.07.2021 to transfer the applicant from Hyderabad to Kolkata against the transfer policy by stating that he has completed 28 years at CFSL, Hyderabad, though he joined at Hyderabad on 24.10.2017 after being transferred from Bhopal.
4. It is further submitted by the applicant, after holding personal talk/ screening on 08.09.2021, in-situ promotion order for the grade of Director/ Scientist E was issued on 10.01.2022 wherein Dr. Ikramul Haque was shown at Sl. No.1, the applicant at Sl. No.3 against the year 2020 and the Dr. Rajiv Giroti, 4th respondent at Sl. No. 5 against the year 2021. In the said order, it is mentioned that the applicant would work as Director/ Scientist „E‟ in Hyderabad on promotion and would join as Director-In- Charge, CFSL/ Pune w.e.f. 01.07.2022 in the place Dr. Sukhminder Kaur, who would join as Director, CFSL, Chandigarh. It is the contention of the applicant that, against the two vacancies of Director available, Dr. I. Haque, is posted at Chandigarh and Sri Sujay Saha, is posted at Hyderabad, as a result of, he had to be posted to Pune. Had he been placed at Sl. No.2, he would have got posting at Hyderabad. On the contrary, Sri Sujay Saha, who worked for more than 33 years at Kolkata, has been posted to Hyderabad, by transferring the applicant to Pune even before completion of 5 years tenure. In some CFSLs like Kolkata and Bhopal, more than one officer of Director grade are allowed to work. Even in Hyderabad, after proposing the impugned transfer, two Director grade Scientists were Page 3 of 12 OA No.21/407/2022 allowed to continue, which includes the 4th respondent, who was earlier wrongly given the In-charge Director post at Hyderabad after retirement of the incumbent on 31.07.2019, to favour him though he is junior to the applicant. The 4th respondent worked for about 6 years & 8 months, but he has not been transferred, but the applicant, though completed 4 years & 2 months, has been transferred to Pune, more so when he is due for retirement in 2024. He also represented that his father is bedridden due to cancer and he is taking treatment and his presence in Hyderabad is essential.
5. It is emphatically contended by the applicant that he joined at Hyderabad on 24.10.2017 on being transferred from Bhopal and he is entitled to continue for 5 years at the current station, whereas, Smt. K.B. Jena, Director, Kolkata and the R-4 have completed more than 29 years and 6 ½ years of service respectively at a single station, but they are not disturbed. Therefore, his transfer to Pune in order to favour the 4th respondent, is illegal. The applicant represented on 10.02.2022, but it did not have desired result. Hence, the present OA.
6. This Tribunal passed an order of status quo as on 28.06.2022 in respect of relieving of the applicant and the said order is in force.
7. The respondents 1 to 3 filed a reply statement, stating that the applicant has been granted promotion as Director & Scientist E in Level-13 of the Pay matrix under the Modified Flexible Complementing Scheme and his seniority has not been overlooked. Against the two Director-in-Charge positions, since Dr. I. Haque, an expert in DNA and manning the State-of- the-art DNA lab in CFSL, Chandigarh was getting superannuated on 30.06.2022 i.e. less than a year, it was decided to retain him in Chandigarh Page 4 of 12 OA No.21/407/2022 and after his retirement, Smt. Sukhminder Kaur would be posted at Chandigarh w.e.f. 01.07.2022 and the applicant, being the next senior most and experienced officer, would be posted in Pune as Director-in-charge w.e.f. 01.07.2022. Shri Sujay Saha was posted in the vacant position at Hyderabad as he was the next senior most. Smt. Kananbala Jena and Dr. Rajivi Giroti, being juniors, were given the benefits of in-situ promotion without making them as In-charge of any CFSL and they would be considered as and when vacancies arise in Director-in-charge position. Being an officer with all India transfer liability, the applicant can be posted anywhere in administrative exigency or public interest. Therefore, upon grant of in-situ promotion, with the approval of competent authority, has been posted as Director & Scientist E.
8. Respondent No.4 also filed reply statement wherein he stated that the applicant joined as ACIO (Documents) in 1990 in the office of the Government Examiner Questioned Documents (GEQD) at Hyderabad and he continuously worked at Hyderabad for more than 28 years. The office of GEQD along with its officers and staff was merged with CFSL in 2010. The applicant worked at CFSL, Bhopal, from 08.06.2015 to 12.10.2017 i.e.
02 years, 04 months and 06 days and this was his only transfer during his entire service. He has been transferred on promotion as Director & Scientist E as Head of Office (HOO) to CFSL Pune, on administrative grounds, which is covered under Para 3.1 of the Rotational Transfer Policy, dt. 07.06.2016. He was promoted under FCS from Deputy Director (Biology) & Scientist D to the post of Director & Scientist E, whereas the applicant was promoted from Deputy Director (Documents) & Scientist „D‟ Page 5 of 12 OA No.21/407/2022 to the post of Director and Scientist E. The 4th respondent worked at Chandigarh and was attached to CFSL, Kolkata and then worked at Pune, before joining at Hyderabad, but, the applicant worked at Hyderabad for 28 years and he was never transferred to other units of Kolkata, Chandigarh, Pune, Guwahati and Shimla except his transfer to Bhopal for a short period. He submitted that Hon‟ble Courts held that public interest and administrative exigencies are far more important than personal convenience of an employee. He has cited several judgments of the Hon‟ble Supreme Court on the subject of transfer
9. The applicant filed rejoinder and stated that there is no concept of seniority for granting in-situ promotion. Initially, the 4th respondent did not find place in the select list of 2000 since he did complete 4 years residency period, but, he was considered for the in-charge arrangement from 31.07.2019 to February 2021. When it comes to displacement, a different justification is given to retain the 4th respondent at Hyderabad. In regard to the averment of the respondents that Dr. I. Haque was posted as Director at Chandigarh being the DNA expert and his ensuring retirement on 30.06.2022, the applicant stated that, if this were to be true, then, after the retirement of Dr. I. Haque, the 4th respondent, who is the sole DNA expert in the grade of Director should have been posted at Chandigarh, instead of posting Smt. Sukminder Kaur, who is an expert in Chemical Science. In April 2021, when the post of Director in CFSL, Chandigarh was vacant, Sri M.C. Joshi, on his in-situ promotion, as Director was transferred to CFSL, Hyderabad though he was due to retirement on 31.12.2021. This shows that different yardsticks for different officials are being applied. Earlier, in Page 6 of 12 OA No.21/407/2022 the OA 480/2020 filed by the 4th respondent, the official respondents took stance that the concept of junior-senior is not applicable in Flexible Complementing Scheme/ Modified Flexible Complementing Scheme, since in-situ promotions are personal to the officer and are not related to the availability of vacancy, whereas, in the counter filed in the present case, they say that applicant, being senior to the 4th respondent and Smt. K.B. Jena, has been transferred to CFSL, Pune to assume responsibilities of higher post. Para 1.1 of the Transfer Policy circulated on 07.09.2016 mandates that Rotational transfer of all Group „A‟ Officers shall be decided by the competent authority prescribed by the Ministry of Home Affairs, on the recommendations of Placement Committee-I headed by the Director- cum-Chief Forensic Scientist and comprising of at least 2 more members. But, no such Placement Committee-I was convened and without such recommendations, his transfer has been ordered. Thus, the impugned order is a nullity being violative of the transfer policy.
10. The 4th respondent also filed additional reply to the rejoinder of the applicant stating that earlier all the Directors & Scientist E were transferred and posted as Head of Office of each Laboratory by the order of Ministry of Home Affairs without there being any recommendations of Placement Committee and he cited the names of 8 such officers.
11. During the pendency of the OA, the applicant filed MA 560/2022, filing certain additional material obtained by him under RTI Act, 2005 and stated that as per the Notings of the 2nd respondent dt. 01.11.2021, 08.11.2021 and 14.12.2021 show that Dr. I. Haque was retained at Chandigarh due to his retirement on 30.06.2022, but not as a DNA Expert Page 7 of 12 OA No.21/407/2022 and likewise, Dr (Smt.) Sukhminder Kaur was transferred from Pune to Chandigarh on her request in the place of Dr. I. Haque, but not due to the reason stated in the reply affidavit. It is further stated that, from the Notings, it is clear that Smt. K.B. Jena and Dr. Rajiv Giroti, were allowed to continue at CFSL, Kolkata and Hyderabad respectively due to pendency of cases and in public interest. Further, Biology and DNA Divisions of Hyderabad Branch headed by Dr. Rajiv Giroti has 29 cases pending as on 31.10.2021, but the Questioned Documents Division headed by the applicant has 375 cases pending. Despite lot of pendency in his wing at Hyderabad, the applicant has been transferred in order to favour the 4th respondent. Thus, there is inconsistency in the stands taken by the respondents vis-à-vis each individual. As per the Transfer Policy, recommendation of the Placement Committee-I is a must as per clause 1.1 and as evident from information issued under RTI Act, no such meeting of Placement Committee-I was convened and the decision was taken by the 2nd respondent and thus, it is violative of the transfer policy.
12. The 4th respondent also filed reply to the MA 560/2022 filed by the applicant, wherein it is stated that the Notings obtained under RTI Act and filed by the applicant are of no use since he was transferred with promotion as Director & Scientist E on administrative grounds, which he accepted. The transfer of the applicant is covered by Para 3.1 of the Rotational Transfer Policy, but not under para 4.2 as claimed by him. Ministry of Home Affairs, who is the competent authority, on the recommendations of DFSS, New Delhi, would approve the transfers of Director & Scientist E on Page 8 of 12 OA No.21/407/2022 administrative grounds at any time to function as Head of Office of each laboratory.
13. Heard learned counsel for the parties at length and perused the pleadings and material available on record.
14. The short issue that arises for consideration is whether the transfer of the applicant from Hyderabad to Pune is legally sustainable.
15. Learned counsel for the applicant vehemently argued that the applicant has been transferred, without any recommendations of the Placement Committee as per para 1.1 of the Rotational Transfer Policy and that too, before completion of his tenure and therefore, the impugned transfer of the applicant is null and void. He further argued that the applicant has been transferred while favouring the 4th respondent by retaining him at Hyderabad. The respondents have adopted different yardsticks in the matter of transfer of different individuals. As the applicant is due for retirement in 2024, he is entitled to be retained at Hyderabad.
16. On the other hand, learned Counsel for the respondents 1 & 3 and the 4th respondent, appearing in person, submitted that the transfer of the applicant is not a rotational transfer and he has been transferred on administrative grounds and the same is governed by Para 3.1 of the Transfer Policy. They argued that merely because the transfer of the applicant was not done on the basis of the recommendations of Placement Committee, that by itself would not make the transfer a nullity and many others were transferred in the same manner. They further argued that the Page 9 of 12 OA No.21/407/2022 applicant continuously stayed at Hyderabad for about 28 years, except for a period of little over 2 years when he transferred to Bhopal.
17. On careful examination of the material on record and the arguments of both sides, it is clear that the transfer of the applicant has been made by the competent authority on administrative grounds due to promotion. Admittedly, the applicant worked for more than 28 years at Hyderabad and he was transferred only once to Bhopal for about 2 years 4 months, whereas the 4th respondent, with whom, the applicant is comparing himself, has worked in other places in the past.
18. I have carefully gone through the transfer policy. Para 1.1 of the Transfer Policy relied upon by the applicant is as under:
"Rotational transfer of all Group „A‟ Officers shall be decided by the competent authority prescribed by the Ministry of Home Affairs, on the recommendations of Placement Committee-I headed by the Director-cum-Chief Forensic Scientist and comprising of at least 2 more members."
Whereas, Para 3.1 of the said Policy, cited by the respondents, is as follows:
"3. Provisions regarding meeting of the Placement Committees:
3.1 Except for transfers on administrative grounds due to promotion and vacancies arising during the course of a year or mutual transfers on request or transfer on account of extreme medical grounds or serious disciplinary ground cases or such other extra ordinary reasons, the general transfers (transfer of employees who have completed the maximum prescribed tenure) would be considered normally once in a year, well before the start of academic session, preferably in the month of January/ February for which the process would be initiated during the month of November / December of the preceding year."
On perusal of the transfer policy, more particularly, the above paras of the policy, it is clear that the transfer of the applicant is governed by para 3.1 extracted supra. It has been held by the Hon‟ble Supreme Court that Page 10 of 12 OA No.21/407/2022 where the pay, position and seniority were not affected, the transfer order would not be punitive [Registrar General, High Court of Judicature at Madras v. R. Perachi, AIR 2012 SC 232].
19. It is settled law that transfer is an incident of service and a Government Servant has no vested right to remain posted at a place of his choice and he is liable to be transferred from one place to the other, as held by the Hon‟ble Supreme Court in the following judgments:
(i) Shilpi Bose v. State of Bihar, 1991 Sup (2) SCC 659:
"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."
(ii) Union of India & ors v. SL Abbas, (1993) 4 SCC 357:
"An order of transfer is an incident of Government Service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it."
(iii) Rajendra Singh vs State of U.P. & Ors, (2009) 15 SCC 178:
"5. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402].
Page 11 of 12
OA No.21/407/2022
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. "
(iv) SK Nausad Rahaman & Ors. v. UOI, 2022 (4) SCALE 626:
"24 xxxx Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."
20. Thus, transfer being an incident of service and the guidelines laid down for affecting transfer not being enforceable conditions of service, an order of transfer, even if made in violation of such guidelines, would by itself does not furnish the ground for interference by the Tribunal. Executive instructions for transfer of Government servants are in the nature of guidelines and do not confer a legally enforceable right. [Union of India & Ors. v. S.L. Abbas, (1993) 4 SCC 357:: AIR 1993 SC 2444]. If there are statutory provisions including rules governing transfer, then the employer has to exercise the power of transfer according to such rules. If, however, transferability is governed only by executive instructions or guidelines, it appears that the employer can deviate from such instructions or guidelines in the exigencies of administration.
21. In view of the above position, this Tribunal does not find any merit in the case of the applicant and the OA is accordingly dismissed. Interim Order already granted is vacated. Pending MA(s), if any, shall stand disposed of. No order as to costs.
(SUDHI RANJAN MISHRA) JUDICIAL MEMBER //evr// Page 12 of 12