Central Administrative Tribunal - Delhi
Hon Ble Mr. Justice Syed Rafat Alam vs Union Of India on 13 December, 2013
Central Administrative Tribunal Principal Bench, New Delhi OA No.2602/2012 MA No.2544/2012 MA No.3365/2012 Reserved on: 13.08.2013 Pronounced on: 13. 12.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Shankarsan Dash s/o Late Shri Gopal Chandra Dash, r/o 14 LF Babar Place Todarmal Road, New Delhi-110001. Age 56 years Working as : Inspector General of Police ..Applicant (By Advocate : Shri A.K. Behera) Versus 1. Union of India Ministry of Home Affairs, Government of India, Through the Secretary 2. Govt. of NCT of Delhi Delhi Secretariat, I.P. Estate, New Delhi-110002. 3. The Principal Secretary (Home & Vigilance) GNCTD, Delhi Secretariat, IP Estate, New Delhi. 4. Government of Arunachal Pradesh, Through Chief Secretary, Itanagar, Arunachal Pradesh (Through Principal Resident Commission, New Delhi). 5. The Joint Cadre Authority of IPS AGMUT Cadre, Through Joint Secretary (UT), Government of India, Ministry of Home Affairs, North Block, New Delhi-110001. Respondents. (By Advocates : Shri R.N. Singh and Shri Rajiv Ranjan Mishra) O R D E R By Dr. B.K. Sinha, Member (A) :
The instant Original Application filed on 08.08.2012 under Section 19 of the Administrative Tribunals Act, 1985, is directed against the impugned order dated 03.08.2012 rejecting the representation of the applicant preferred against order dated 16.05.2012 vide which the applicant was ordered to be transferred to the State of Arunachal Pradesh in the rank of Deputy Inspector General of Police. During the pendency of this OA, the respondents have issued another order vide the OM dated 17.09.2012 transferring the applicant as IG Police to the Government of Arunachal Pradesh, which has also been impugned in this OA.
2. The facts of the case, in brief, are that the applicant is a Delhi, Andaman and Nicobar Islands Police Service (hereinafter referred to as DANIPS) officer of 1979 batch. It is the case of the applicant that after having rendered meritorious service for 22 years, he was inducted into Indian Police Service (hereinafter referred to as IPS) in April, 2002 and was assigned the duties of a Deputy Commissioner of Police under the Commissionerate System. Subsequently, on 19.08.2009, the applicant was promoted to the post of Deputy Inspector General of Police when he was holding the post of Additional Commissioner of Police, Anti-Corruption Branch, Government of National Capital Territory of Delhi, under the direct administrative control of the Directorate of Vigilance, Govt. of NCT of Delhi. It is further the case of the applicant that he was one of the six persons who were in the zone of consideration for promotion to the post of Inspector General of Police equivalent the post of Joint Commissioner of Police in the Commissionerate System in the year 2012. A DPC for consideration of the above six persons for promotion to the aforesaid post was held on 22.03.2012. The DPC, after having followed the due process, found the applicant fit and recommended him for promotion. Accordingly, the applicant was promoted to the post of Inspector General of Police equivalent to the post of Joint Commissioner of Police in the Commissionerate System vide order dated 28.06.2012. However, the applicant contends that just before the promotion order dated 28.06.2012 could be issued, the respondent no.1 had issued order dated 16.05.2012 transferring the applicant from Anti-Corruption Branch, Delhi to Arunachal Pradesh in the capacity of Additional Commissioner of Police equivalent to Deputy Inspector General of Police in that State. It is the case of the applicant that the respondent nos. 2 & 3 showed their inability to relieve the applicant owing to the fact that he headed the Anti-Corruption Branch and requested the respondent no.1 to continue the applicant in his current assignment. The said request was not acceded to but a relieving order was issued on 02.07.2012. Pursuant thereto the Directorate of Vigilance, Govt. of NCT of Delhi issued a further relieving order on 12.07.2012. The formality of handing over and taking over of charges took place when an officer was notified to take over charge from the applicant. The applicant being Additional Commissioner of Police was the Head of Office of the Anti-Corruption Branch, having the personal custody of secret service funds as well as several other sensitive investigative files. He could not, therefore, be relieved from the responsibilities of the post completely at the drop of the hat without prior arrangements being made.
3. The respondent no.1 promoted the applicant to the post of Inspector General of Police (hereinafter referred to as IGP) in the pay scale of Rs.37400-67000 plus Grade Pay of Rs.10,000/- with immediate effect vide Memorandum dated 28.6.2012 and in turn, the respondent no.2 promoted the applicant vide OM dated 2.7.2012, a copy of which has been placed as Annexure A/5However, on the same date, the applicant was relieved vide Memo dated 2.7.2012 from the Anti Corruption Branch, Government of NCT of Delhi, to join at Anunachal Pradesh with immediate effect. On 4.7.2012, the applicant represented to the respondents requesting for retaining him at Delhi. The respondent no.1 issued letter dated 6.7.2012 warning the applicant of the consequences, if he failed to take up his new assignment in Arunachal Pradesh. The said representation was rejected by the respondents vide order dated 11.7.2012. The Directorate of Vigilance, Government of NCT of Delhi, also issued an order dated 12.7.2012 relieving the applicant to take up his new assignment in Arunachal Pradesh. On 3.8.2012, the applicant was informed that he had not done hard posting for two years in IPG rank and, therefore, he was directed to immediately comply with the order dated 16.5.2012. The applicant thereupon moved the instant OA on 8.8.2012 and was granted a stay order on 9.8.2012. However, on 17.9.2012, the respondent no.1 issued another letter stating therein that the applicant was transferred to Govt. of Arunachal Pradesh vide Order dated 16.5.2012. This order further goes to say that it was being issued in compliance with the Order dated 13.9.2012 issued by the Central Administrative Tribunal. On 17.9.2012, this case came up for hearing and this Tribunal after having heard the learned counsels for the parties, took the view that as the applicant was being transferred in the same capacity, i.e., IGP within his own Cadre, namely, Arunachal Goa Mizoram Union Territories Cadre (hereinafter referred to as AGMU Cadre), there appeared no reason to extend the stay order. This Tribunal, therefore, vacated the interim order which was passed on 9.8.2012. On 17.9.2012, the respondent no.1 issued another letter directing the applicant to join at his new place of posting, i.e., Arunachal Pradesh as IGP. As the order dated 16.5.2012 has been overtaken by the Order dated 17.9.2012, the applicant filed the amended OA with the permission of this Tribunal, seeking the following reliefs:-
i. call for the records of the present case;
ii. set aside the Impugned Letter dated 03rd August 2012 issued by Respondent No.1, rejecting the representation of the Application dated 24th July 2012.
set aside the Impugned Order of transfer dated 16th May 2012, issued by Respondent No.1, whereby the Applicant was ordered to be transferred to the State of Arunachal Pradesh in the rank of Deputy Inspector General of Police.
Declare that the Order dated 28th June 2012 (Annexure A 4) is a composite Promotion Cum Posting Order relating to the Applicants Promotion and Posting as an Inspector General of Police or in the alternative Direct the Respondents to immediately issue necessary Posting Orders in the rank of Inspector General of Police in the cadre where vacancy is available against Sanctioned Post; where such anomalies and aberrations do not exist.
Set aside the Impugned Order of transfer dated 17th September 2012, issued by Respondent No.1, whereby the Applicant was ordered to be transferred to the State of Arunachal Pradesh in the rank of Inspector General of Police.
Pass any other order or directions which this Honble Tribunal thinks fit and proper in the facts and circumstances of the case.
4. The applicant has mainly relied upon the followings grounds for his Application:-
(i) The impugned order dated 16.5.2012 is not sustainable, as it has been overtaken by the event of promotion of the applicant to the grade of IGP vide Order dated 28.6.2012 and, therefore, the said transfer order had been rendered un-implementable. The applicant had all sensitive investigative files as also have the personal custody of secret service funds, could not have been relieved without the orders of the competent authority. In this respect, the applicant has relied upon Rule 78 of the General Financial Rules, 1963. The learned counsel for the applicant also questioned the contention of the respondents that the order of transfer dated 16.5.2012 stipulated that the applicant was to be relieved within a period of 15 days from the date of issuance of the order. This fact would lead to creation of piquant situation as the applicant was serving under the Govt. of NCT of Delhi and the order had to be ratified rectified by the Govt. of NCT of Delhi before the applicant could be formally relieved.
(ii) The applicant has further questioned the legal validity of the transfer order dated 17.9.2012 mainly on two counts. In the first place, the power to transfer the applicant working in the AGMU Cadre, being the Joint Cadre, lay with the Joint Cadre Authority (JCA) and not with the Ministry of Home Affairs. In the second place, on 17.9.2012, when the applicant had been transferred to the Government of Arunachal Pradesh, there was no vacant post of IGP, which he could occupy. The applicant contests that on the same very date when the applicant was transferred to the Government of Arunachal Pradesh as IGP, the number of vacancies in the rank of IGP in the State of Arunachal Pradesh has been enhanced to five by the Ministry of Home Affairs. The learned counsel for the applicant pleaded that this was beyond the competence of Ministry of Home Affairs, as extension in the cadre strength can only be undertaken under the provisions of the Government of India (Allocation of Business) Rules and IPS (Fixation of Cadre Strength) Regulations, 1955, wherein for this purpose, the Ministry of Personnel, Public Grievances & Pension, Department of Personnel & Training has been empowered and not the Ministry of Home Affairs. The learned counsel for the applicant has further submitted that so called upgradation of strength of the posts in the rank of IGP vide order dated 17.9.2012 had been taken hastily without taking the objection of the State of Arunachal Pradesh into account that there was no requirement of IGP while there was demand of officers in the rank of DIGs. Consequently, the illegality that has been pointed out by the applicant is that it was the Joint Cadre Authority constituted under Rule 4 of the All India Service (Joint Cadre) Rules, 1972, alone which was competent to take decisions as to who were required to serve in the constituent States. In the case of disagreement, the matter would stand referred to the Central Government. Thus, the power to transfer cadre officer(s) from one segment to another has been conferred upon the Joint Cadre Authority and not the Ministry of Home Affairs.
(ii) The learned counsel appearing for the applicant has further rebutted the argument of the respondents that the power is being exercised by the Ministry of Home Affairs through the process of delegation. The applicant has relied upon the case of Nazir Ahmed vs. The King-Emperor, (1935-36) 63 Indian Appeals 372, which provides that where a power is given to do a certain thing in a certain way, the thing must be done in that way, to the exclusion of all other methods of performance, or not at all. This was further supported by the decision of the Honble Supreme Court in the case of Ramana Dayaram Shetty vs. International Airport Authority of India and others, (1979) 3 SCC 489, and decision of concurrent Bench of this Tribunal at Calcutta in OA No.70/AN/2012 in the case of Shamser Bahadur Singh Deol vs. Union of India and others decided on 25.7.2012. The learned counsel for the applicant refutes the contention of the respondents that in the case of K.K. Maheshwari vs. Union of India and others, OA No.3323/2012 decided on 20.12.2012, the OA was dismissed despite the fact that both the cases of Shamser Bahadur Singh Deol (supra) and the issue of Joint Cadre Authority had been raised. The learned counsel for the applicant also contests the proposition of the respondents that two cases were different in material facts and since there was a judgment of concurrent Bench of this Tribunal, the matter should have been referred to the Full Bench for decision. Learned counsel for the applicant further relied upon the decision in the case of Marathwada University vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132, wherein the Honble Supreme Court has held that if a statutory power has been given to an Authority or Body, then the said statutory power has to be exercised by that Authority or Body alone and nobody else. The Court goes ahead to hold that if there is no provision in the statute for further delegation of the statutory power, there can be no such delegation. On the strength of the above, the learned counsel for the applicant submitted that there could not be any sub-delegation of the power of Joint Cadre Authority.
5. Counter affidavit has been filed separately by respondent no.1 wherein the following grounds have been submitted that:-
(i) transfer is an ordinary incident of service and, therefore, does not result in alteration of any of the conditions of service of his disadvantage. The respondent no.1 relied upon the case of B. Varadha Rao vs. State of Karnataka and others, AIR 1986 SC 1955, wherein the Honble Supreme Court had held that continued posting at one station or in one department of the Government is not conducive to good administration. The learned counsel for the respondent no.1 further relied upon the following cases in support of his contention: (1) Gujarat Electricity Board and another vs. Atmaram Sungomal Poshani, 1989 SCR (2) 357, wherein the Honble Supreme Court held that If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other. There is no dispute that the respondent was holding a transferable post and under the conditions of service applicable to him, he was liable to be transferred and posted at any place within the State of Gujarat. The respondent had no legal or statutory right to insist for being posted at one particular place.. In the said case, the Honble Supreme Court further held that Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order..; (2) Union of India and others vs. S.L. Abbas, 1993 AIR 2444, wherein the Honble Supreme Court held that To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions.; (3) State of UP vs. Siya Ram, (2004) 7 SCC 405, wherein Honble Supreme Court has pointed out that unless an order of transfer is shown to be malafide or is in violation of statutory provisions, it is not open to interference by the Court; (4) State of Punjab vs. Joginder Singh Dhatt, AIR 1993 SC 2386, the Honble Apex Court held that This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting.; (5) National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan, (2001) 8 SCC 574, as also in the case of Rajendra Singh vs. State of U.P. and others, (2009) 15 SCC 178, the Honble Supreme Court has held that :
6. 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].
7. 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. AIR 1991 SC 532, this Court held :
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to 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."
(6) Major General J.K. Bansal vs. Union of India and others, 2005 (7) SCC 227, the Constitution Bench of the Honble Supreme Court noted the law regarding the scope of interference by the courts as follows:-
9. In Mrs. Shilpi Bose and others vs. State of Bihar and others AIR 1991 SC 532, the appellants, who were lady teachers in primary schools, were transferred on their requests to places where their husbands were posted. The contesting respondents, who were displaced by the appellants, challenged the validity of the transfer orders before the High Court by filing a writ petition under Article 226 of the Constitution, which was allowed and the transfer orders were quashed. This Court allowed the appeal and set aside the judgment of the High Court by observing as under
: -
"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. 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."
10. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444, the respondent was working at Shillong in the office of Botanical Survey of India and his wife was also working there in a Central Government office. He was transferred from Shillong to Pauri in the hills of U.P. (now in Uttaranchal). He challenged the transfer order before the Central Administrative Tribunal on medical ground and also on the ground of violation of guidelines contained in the Government of India OM dated 3.4.1986. The Tribunal allowed the petition and quashed the transfer order. In appeal this Court set aside the order of the Tribunal and observed as under: -
"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. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."
11. Similar view has been taken in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574, wherein it has been held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary 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 though they were the appellate authorities substituting their own decision for that of the management. (7) S.C. Saxena vs. Union of India, 2006 STPL (LE) 37619 SC, the Honble Supreme Court has held that a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. To strengthen his arguments, respondent no.1 relied upon also on the cases of State of UP vs. Gobardhan Lal, (2004) 11 SCC 402, Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others, JT 2004 (9) SC 185, Rajendra Rao vs. Union of India, AIR 1939 SC 1236, State Bank of India vs. Anjan Sanyal, (2001) 5 SCC 508, Union of India vs. N.P. Thomas, AIR 1993 SC 1605, Union of India and others vs. H.N. Kirtania, 1989 SCR (3) 397, Bank of India vs. Jagjit Singh Mehta, [1992] 1 S.C.C. 306, State of Haryana vs. Kashmir Singh, (2010) 13 SCC 306, Chief General Manager (Telecom) Vs. Shri Rajendra Ch. Bhattacharjee, 1995 SCC (2) 532, and Mohd. Masood Ahmad vs. State of U.P. & others, 2007 (11) SCALE 271.
(ii) The respondent no.1 further submitted that in accordance with the service conditions of IPS officers of AGMU cadre, the applicant is liable to serve at any of the constituents of AGMU cadre and Arunachal Pradesh is one of the constituents of the AGMU cadre. In order to bring transparency to share onus of service in hard area by IAS/IPS officers of AGMU cadre, the respondents have framed a Policy/ Guidelines for posting/transfer of officers in 2010. The said transfer policy envisages that an IPS Officer is liable to serve four tenures in outlying segments out of which one tenure in DIG and below scale and one tenure in IG level and above are to be done in hard areas. Since the applicant has served only for three and five months in hard areas and has been serving at Delhi since 2006, his transfer in hard area is very much on the cards. According to this policy, the applicant could be made to serve in any of the constituents of AGMU cadre, Arunachal Pradesh being one of them. It has further submitted that representation of the applicant against his transfer had been duly considered by the respondent no.1 and had been rejected on administrative grounds. The fact that the applicant has feigned illness just to wad this transfer and gone on medical leave speaks volumes of his misconduct.
(iii) Learned counsel for the respondent no.1 has strongly contended that posting/transfer of cadre officers from one segment to another shall be made by the respondent Ministry to facilitate management of AGMU cadre; a Joint Cadre Authority under Chairmanship of Union Home Secretary has been constituted and in its meeting held in October, 1989, it was decided that the function of transfer/posting of cadre officers from one segment to another would remain with the Ministry of Home Affairs as per Para B (i) of the Minutes of the said meeting. Learned counsel for respondent no.1 has strongly contended that Government of India is the competent authority to create and upgrade the post(s). The right of the Government of India to create post(s) remains unquestioned as the applicant has not chosen to challenge the same. The applicant has joined his new place of posting at Arunachal Pradesh after several procrastinations as such the contest has become infructuous. Learned counsel for respondent no.1 further submitted that the order of transfer dated 16.5.2012 merged into the order of transfer dated 17.9.2012 and as such, it does not exist. Learned counsel for the respondents has strongly contended that the OA is bereft of any merit and deserves to be dismissed out right.
6. The respondent no.2 has also separately filed counter affidavit supporting the case of the respondent no.1. It has been stated therein that respondent no.2 issued relieving order on 2.7.2012 in response to the order of transfer of the applicant dated 16.5.2012 with the approval of Lt. Governor of Delhi and finally, the applicants representation was rejected on 11.7.2012 and the applicant was relieved on 12.7.2012 for taking up the new assignment.
7. The respondent no.4 has also filed counter affidavit wherein it has been stated that although there were only two sanctioned posts of IGP in the State of Arunachal Pradesh. However, at the time of the impugned transfer of the applicant as IGP, five IGPs were presently posted against the sanctioned strength of two. The respondent no.4 further stated that notification dated 30.03.2010 pertaining to the Cadre Strength is a matter of record and the authorized cadre strength of Indian Police Service as on 1.1.2012 is also a matter of record. It has further been submitted that the respondent no.4 has not issued any notification regarding the up-gradation/creation of three additional posts of IGPs. The respondent no.4 has drawn attention of the respondent no.1 vide his letter dated 20.6.2012 addressed to the Joint Secretary (UT), Ministry of Home Affairs, with regard to imbalance in the cadre strength and has declined having ever made any proposal for upgradation of three posts of DIGP to the post of IGP. This was supported by learned counsel for other respondents as well.
8. The applicant has filed his rejoinder wherein the following points have been submitted that :-
(i) the applicant has been granted antedated notional seniority in the IPS cadre from the year 1994. Therefore, his transfer liability in the IPS cadre commenced from the year 2002 onwards only. He cannot be equated with the direct recruit IPS Officers for complying with the provisions of Para 7 of the transfer policy of the year 2010. This is the second time, the applicant has been transferred to a hard area within a period of six years whereas 37 direct recruits IPS officers have merely done one year hard area service in a service span of 18 to 20 years.
(ii) The applicant has been posted against a non-sanctioned and non-existent post whereas he can only be transferred against a vacant and duly sanctioned and notified cadre and ex-cadre post.
(iii) The applicant has complied with blatantly illegal order which has not been issued by the competent authority. The Government being the modal employer should not compel its employees to comply with such type of illegal orders.
(iv) The applicant has strongly denied that there was any delegation of powers to Ministry of Home Affairs, as such, his transfer was in the absence of specific provisions for the same. In this regard, learned counsel for the applicant relied upon the cases of Pramod K. Pankaj vs. State of Bihar, (2004) 3 SCC 723 at 730; Marathwada University vs. SBR Chavan, AIR 1989 SC 1582; and Mela Ram vs. State of Rajasthan, AIR 1984 Raj. 1984. The applicant has further submitted that on 28.6.2012 only two sanctioned posts of IGP in AGMU Cadre in the State of Arunachal Pradesh in existence. This was brought to the notice of the respondent no.1 who, vide letter dated 14.8.2012, committed a blatantly illegal act in directing the respondent no.4 to gainfully utilize the services of IGP officers against the DIGP grade posts in gross violation of statutory rules and the Honble Supreme Court decision in Tej Shree Ghagh etc. vs. Prakash Paqrashuram Patil and others in Apeal No.2697/2007.
9. The respondent nos.1 and 5 have filed sur-rejoinder wherein they have by and large reiterated the following facts that :-
(i) the Honble Supreme Court has time in and time out discouraged the Court from interfering with the transfer.
(ii) they denied that the guidelines of transfer/posting of IAS/IPS officers of joint AGMU Cadre is only applicable to direct recruit (RR) officers but it is also applicable to all the IPS officers. The IPS officers are liable to serve 4 tenures in outlying segments out of which one tenure in DIGP and below scale and one tenure in IGP level and above are to be done in hard areas. The respondent no.1 is governing the AGMU Cadre of IPS officers and in 1989, when UT Cadre was renamed as AGMU Cadre to facilitate management of IPS officers, a Joint Cadre Authority was formed which decided that the matters of transfers will be dealt with by the Ministry of Home Affairs (UT Division). The respondent no.1 has upgraded 3 DIGP posts to IGP posts on 14.9.2012.
10. We have carefully gone through the pleadings and documents available on the file of the case and have patiently heard the arguments advanced by the counsels for respective parties.
11. At the very outset, it is stated that the order of transfer dated 16.5.2012 stands merged with the transfer order dated 17.9.2012. Hence, the pleadings and arguments regarding legality of the said order and its quashment are no longer valid. However, we take note of the fact that this transfer order had been issued at a time when the applicant was in the grade of DIGP and his promotion to the rank of IGP was imminent. Since his promotion took place in the rank of IGP on 28.6.2012, we do agree that thereafter his transfer to the State of Arunachal Pradesh become un-implemementable. The question could well arise that when the order of transfer dated 16.5.2012 clearly stipulates that he would stand relieved, why he made such a delay in getting relieved on 12.7.2012. Here we find substance in the arguments of the applicant that the applicant was serving in one of the constituents of AGMU Cadre, namely, Govt. of NCT of Delhi. Any transfer order before its compliance has to be confirmed by immediate authority under which the officer is serving. In the instant case, the officer was serving under Govt. of NCT of Delhi, which issued the orders of relieving on 12.7.2012. We also take a note of the fact that having been first promoted to the grade of IGP the applicant could not have been made to serve on a lower grade of DIGP in the State of Arunachal Pradesh. In other words, the order reliving was in respect of transfer order which has since been overtaken by the promotion of the applicant which had the result of making it un-implementable. Although this defect was cured to certain extent by the fresh order of transfer dated 17.9.2012, still the original defect in the relieving order is continued. However, since the two orders have been merged, the relief sought for quashing of the order dated 16.5.2012 to our mind has rendered infructuous. Let this issue rest at this.
12. The second issue to be considered is that whether the respondent no.1, that being the Govt. of India, Ministry of Home Affairs, was competent to issue the impugned order of transfer. In other words, the question is that who is competent to transfer the applicant the Joint Cadre Authority for AGMU cadre or the Ministry of Home Affairs in exercise of delegated powers. We start our examination by looking at the All India Services Act, 1951. This Act was framed under Article 312 of the Constitution of India for regulating the recruitment, and the conditions of service of persons appointed to the All-India Services common to the Union and the States in order to enable the Government to carry on the day-to-day management of the All India Services and also to take and promulgate decisions on matters relating to the recruitment and the conditions of service from time to time. Sub-section (1) of Section (3) of this Act provides that The Central Government may, after consultation with the Governments of the States concerned, 1[including the State of Jammu and Kashmir] 2[and by notification in the Official Gazette] make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All-India Service. In exercise of this power, the India Police Service (Cadre) Rules, 1954 were promulgated, which provides as under:-
In exercise of the powers conferred by sub-section (1) of section (3) of the All-India Services Act, 1951 (LXI of 1951), the Central Government after consultation with the Governments of the States concerned, hereby makes the following rules, namely-
1. Short title.
These rules may be called the Indian Police Service (Cadre) Rules, 1954.
xxx 2(b) 'Cadre post' means any of the posts specified 1[under item 1 of each Cadre in the schedule to the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955];
xxx
4. Strength of Cadres. - (1) The Strength and composition of each of the cadres constituted under Rule 3 shall be as determined by regulation made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made shall be as in force immediately before the commencement of these Rules.
(2) The Central Government shall, at intervals of every three years, re-examine the strength and composition of each such Cadre in consultation with the State Government or the State Government concerned and may make such alterations therein as it deems fit:
Provided that nothing in the sub-rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any Cadre at any other time:
Provided further that the State Government concerned may added for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts. In other words, what has been provided in the aforequoted IPS (Cadre) Rules, 1954 is with regard to promulgation of Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 under sub-rule (1) of Rule 4 of the Indian Police Service (Cadre) Rules, 1954. The strength and composition of the cadre shall be as per the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 and under Rule 4 (2), this was subject to revision in every three years. However, under the proviso, the Central Government can alter the strength and composition of any cadre at any time. It logically follows that under the Regulations, a duty has been cast upon the Central Government to alter the strength and composition of any cadre in consultation with the States. In any case, re-examination has been made mandatory in every three years. The Regulation published vide Notification dated 30.3.2010 provides in respect of State of Arunachal Pradesh as follows:-
Senior Duty Posts under Government of Arunachal Pradesh 29 Director General of Police 1 Inspector General of Police 1 Inspector General of Police (Law & Order) 1 Deputy Inspector General of Police, East Range 1 Deputy Inspector General of Police, West Range 1 Deputy Inspector General of Police, Central Range 1 Deputy Inspector General of Police, Intelligence 1 Deputy Inspector General of Police, HQ/Training 1 Deputy Inspector General of Police, Crime 1 It is noted that 29 posts of IPS officers, include one post of Director General of Police and two of IGP, that being Inspector General of Post and Inspector General of Post (Law & Order) besides six posts of Deputy Inspector General of Police. It appears from this notification that this has been issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training after having undertaken a cadre review as per sub-section (1) of Section 3 of the All India Services Act, 1951 read with sub-rules (1) and (2) of Rule 4 of the Indian Police Service (Cadre) Rules, 1954. We agree with the argument of the learned counsel for the applicant that this is a statutory notification made by the competent authority. The State of Arunachal Pradesh has also stated in their counter affidavit in paras 4 and 5, which reads as follows:-
4. The deponent humbly submits that there are only 02 (two sanctioned posts of Inspector General of Police in the respondent no.4, however, at present 05 (Five) IGPs are presently posted. It is further submitted that Notification dated 30.03.2010 pertaining to the Cadre Strength is a matter of record. It is further submitted that the authorized Cadre Strength of Indian Police Service as on 01.01.2012 is also matter of record.
5. The deponent submits that the respondent no.4 has not issued any Notification regarding the up-gradation/creation of the 3 additional posts of IGPs. Therefore, it does appear from the above that at the time of issuance of the transfer order dated 17.9.2012, there was no vacancy in the post of Inspector General of Police in the State of Arunachal Pradesh in the AGMU Cadre. A note here has to be taken of the earlier request of Government of Arunachal Pradesh vide its letter dated 20.6.2012 drawing the attention of the respondent no.1 that the Government was finding it difficult to accommodate one more officer in the IGP grade in the State.
13. Now we deal with the arguments advanced by the respondents that on the same date, when the second order of transfer was issued, i.e., 17.9.2012, the number of posts in the rank of IGP in the State of Arunachal Pradesh had been raised to five posts by the Ministry of Home Affairs. Thus, when the second transfer order was issued to the applicant, there was one vacancy available in the State of Arunachal Pradesh. However, when we look at the Notification dated 30.3.2010, we find that it has been issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training. We have also seen that two conditions have been laid down for undertaking the revision of cadre strength consultation with the State and re-examination of the strength and composition of each cadre. In other words, this exercise has to be undertaken in a systematic manner and not in haphazard manner. Of course, scope and right have been provided as seen earlier in the proviso to undertake revision in matters where there is urgency. However, there is nothing on record to indicate that there was any urgency in this matter and the revision had to be taken for the sake of this urgency. Contrary, we are constrained to note that the basic issue of imbalance between the post of DIGP and IGP has not been addressed at all rather the situation appears to have been exaggerated on account of adding more posts of IGP contrary to the need in the State. The only urgency that appears to re-examine is that of compelling the applicant to join in the State of Arunachal Pradesh. This we believe is a very unprofessional manner of dealing with such parturient situation of the State. In this regard, the applicant has relied upon the case of K. Prasad and others vs. Union of India and others, 1988 (Supp) SCC 269, where though this point relates to Indian Forest Service, but their rules are pari materia with the rues of Indian Police Service. In this regard, a ratio has been laid down that the revision of cadre strength has to be undertaken in consultation with the State. The same ratio would also be applied with under Rule 4(2) of the Indian Police Service (Cadre) Rules, 1954.
14. We now deal with the issue as to which organ of the Central Government would qualify the term Central Ministry in respect of the revision of the cadre strength. Learned counsel for the applicant has relied upon Rules 2 and 3 of the Government of India (Allocation of Business) Rules, 1961 which, inter alia, provides as under:-
2. Allocation of Business - The business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to these rules (all of which are hereinafter referred to as "departments").
3. Distribution of Subjects (1) The distribution of subjects among the departments shall be as specified*# in the Second Schedule to these Rules and shall include all attached and subordinate offices or other organisations including Public Sector Undertakings concerned with their subjects and Sub-rules (2), (3) and (4) of this Rule.
(2) The compiling of the accounts of each Department shall stand allocated to that Department with effect from the date from which the President relieves, by order made under the first proviso to sub-section (1) of Section 10 of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971; the Comptroller and Auditor General from the responsibility for compiling the accounts of that Department.
(3) Where sanction for the prosecution of any person for any offence is required to be accorded
a) If he is a Government servant, by the Department which is the Cadre Controlling authority for the service of which he is a member, and in any other case, by the Department in which he was working at the time of commission of the alleged offence;
b) If he is a public servant other than a Government servant, appointed by the Central Government, by the Department administratively concerned with the organisation in which he was working at the time of commission of the alleged offence; and
c) In any other case, by the Department which administers the Act under which the alleged offence is committed;
Provided that where, for offences alleged to have been committed, sanction is required under more than one Act, it shall be competent for the Department which administers any of such Acts to accord sanction under all such Acts. It appears from the aforementioned provisions of Rule 2 that recruitment, promotion, morale of services, reservation of posts etc. have been attached to the Department (Ministry of Personnel, Public Grievances and Pensions). Likewise, the IPS (Pay) Rules, 2007 have also been issued by the Ministry of Personnel, Public Grievances and Pensions), Department of Personnel & Training as herein below:-
G.S.R. 108 (E). In exercise of the Powers conferred by sub-section (1) of Section 3 of the All India Services Act, 1951 (61 of 1951) and in supersession of the Indian Police Service (Pay) Rules, 1954, except as respects things done or omitted to be done before such supersession, the Central Government after consultation with the Governments of the States concerned, hereby makes the following rules, namely:-
1. Short title and commencement, (1) These rules may be called the Indian Police Service (Pay) Rules, 2007. It is apparent from the above that it is the Ministry of Personnel, Public Grievances and Pensions which is responsible for the purposes of making alternation and modification in the IPS cadre strength. Further, we also note that any violation or breach of exercise of powers under the Government of India (Allocation of Business) Rules, 1961 would be illegal and consequently null and void. Law has been clearly laid down in this regard by the Honble Supreme Court in the case of Express Newspapers Pvt. Ltd and others vs. Union of India and others, (1986) 1 SCC 133. Para 113 of the above-mentioned judgment provides as under:-
113. In terms of the Government of India, (Allocation of Business) Rules, 1961, all matters relating to the property of the Union, allotment of Government lands in Delhi, administration of Government estates under the control of the Ministry of Works & Housing and the administration of the Land & Development Office, are matters exclusively vested in the Ministry of Works & Housing vide Entries 1, 6 and 23 (1) in the Second Schedule under the head 'Ministry of Works & Housing'. In the light of the said directive, as further confirmed by the constitutionally enacted regulations, the power over the allotment of nazul lands, administration of leases in Delhi and the control and administration of Land & Development Office in particular and the property of the Union in general are subjects vested solely under the control of the Ministry of Works & Housing. In the premises, by such transfer of authority, the Chief Commissioner of Delhi and necessarily his successor, the Lt. Governor, became bereft of his powers to control and administer the lease and any attempt by respondent No. 2 to set up a claim that the Lt. Governor is the authority empowered to administer the lease is wholly frivolous and untenable and must be rejected. Now, we take up the issue that who is responsible for effecting the transfer Joint Cadre Authority or the Ministry of Home Affairs. We have already taken note of the argument of the learned counsel for the respondents that this power was delegated to the Ministry of Home Affairs by the Joint Cadre Authority in 1989. In this regard, we need to look at the terms of the All India Service (Joint Cadre) Rules, 1972. These rules have been made in exercise of powers conferred by sub-section (1) of Section (3) of the All Indian Service Act, 1951 by the Central Government after consultation with the Government of State concerned. Rules 1, 2, 4 and 5 of the All India Service (Joint Cadre) Rules, 1972 provide as hereunder:-
1. Short title, application and commencement.
(1) These rules may be called the All-India Services (Joint Cadre) Rules, 1972.
(2) They shall apply to a Joint Cadre constituted for any group of States other than the joint Cadre of Union territories.
(3) They shall come into force on the date of their publication in the official Gazette. 2. Definitions.
In these rules, unless the context otherwise requires,-
(a) "Joint Cadre Authority" means the Committee of Representatives referred to in Rule 4. 4. Committee of representatives.
(1) There shall be Committee consisting of a representative of each of the Governments of the Constituent States to be called the Joint Cadre Authority.
(2) The representatives of the Governments of the Constituent States may either be members of the All-India Services or Ministers in the Council of Ministers of the Constituent States, as may be specified by the Government of Constituent States. 5. Duties and functions of the Joint Cadre Authority.
(1) The Joint Cadre Authority shall determine the name of the members of the All India Services, who may be required to service from time to time in connection with the affairs of each of the Constituent State and the period or periods for which their services shall be available to that Government (2) Where there is a disagreement on any matter among the members of the Joint Cadre Authority, the matter shall be referred to the Central Government for decision and the Governments of the Constituent States shall give effect to the decision of the Central Government. It clearly emerges from a plain reading of the Rules cited above that it is the Joint Cadre Authority which has been entrusted with the task to decide the transfer of the officers/members of the IPS Cadre to different constituent segments. It is only in the case of disagreement that the matter has to be referred to the Central Government for decision.
15. The question would now arise here that whether the Central Government, having been given the dominant position, can exercise the powers on behalf of the Joint Cadre Authority in all conditions. In this regard, the applicant has relied upon the case of Nazir Ahmed vs. The King Emperor, (1935-36) 63 Indian Appeals 372, wherein it has been held by the Honble Privy Counsel that The rule which applied is a different and not less well recognized rule namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods are necessarily forbidden. The applicant has also relied upon the case of Uttar Pradesh Upbhokta Sehkari Sangh Limited through its Managing Director and Branch Manager vs. Vijay Shankar Rai, 2006 (7) ADJ 585. In the case of Ramana Dayaram Shetty vs. International Airport Authority of India and others, (1979 3 SCC 489, the Honble Supreme Court has further held that :
....It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Vitarelli v. Seaton (1959) 359 US 535 : 3 L Ed 2d 1012 where the learned Judge said :
An executive agency must be rigorously held to the standards by which it professes its action to be judged. ...... Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. .......This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword. This Court accepted the rule as valid and applicable in India in A. S. Ahluwalia v. State of Punjab (1975) 3 SCR 82 : (AIR 1975 SC 984) and in subsequent decision given in Sukhdev v. Bhagatram, (1975) 3 SCR 619 : (AIR 1975 SC 1331), Mathew, J., quoted the above-referred observations of Mr. Justice Frankfurter with approval. It may be noted that this rule, though supportable also as emanating from Article 14, does not rest merely on that article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr. Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution but evolved it purely as a rule of administrative law.
16. The Calcutta Bench of this Tribunal was faced with an identical question in OA No.70/AN of 2012 in the case of Shamsher Bahadur Singh Deol vs. Union of India and others decided on 25.7.2012. In this case, the coordinate Bench of this Tribunal has clearly held relying upon the provisions of the All India Service (Joint Cadre) Rules, 1972 that it is the Joint Cadre Authority which has to decide which officer of the cadre is to serve in which constituent of States. It is only in the case of disagreement that the mater shall stand referred to the Central Government. However, the learned counsel for the respondents submitted that the aforesaid decision was challenged in the Writ Petition before the Honble Calcutta High Court which held that it was not to be cited as a precedent. The learned counsel for the applicant has argued that this order of the coordinate Bench of this Tribunal was only by way of obiter dicta. Had the Honble High Court intended otherwise, they would have stuck down the order. However, we do not propose to go into the controversy regarding the nature of the order of the Honble High Court of Calcutta. Therefore, we do not propose to rely upon the order of the coordinate Bench.
17. In the case of K.K. Maheshwari vs. Union of India and others, OA No.3323/2012 decided on 20.12.2012, the applicant - K.K. Maheshwari, who is an IPS officer of 1980 Batch belonging to AGMUT Cadre was transferred vide order dated 11.9.2012. He challenged that order on the ground that he had already done two hard postings and spent three years each in hard areas. However, he had been transferred to hard area within a year of his return. The applicant therein has further argued that the impugned order of transfer was contrary to the guidelines, as his retirement was due within a period of two years and he was entitled to request posting of his choice. The case of Shamsher Bahadur Singh Deol vs. Union of India and others (supra) had been cited in the said case. The argument regarding the Joint Cadre Authority being the competent authority has also been taken in the instant case. However, the coordinate Bench of this Tribunal had held that the order of transfer had been issued by the respondents taking into account all the provisions of the guidelines for transfer and posting and thus in view of the case of Union of India and others vs. S.L. Abbas (supra) that the guidelines do not confer on any employee any enforceable right to challenge the transfer order. The learned counsel for the respondents vehemently argued that in view of this judgment of the coordinate Bench, the matter cannot be decided in favour of the applicant and has to be either referred to a Full Bench or most preferably dismissed altogether. However, the learned counsel for the applicant has argued that the facts of the case of K.K. Maheshwari vs. Union of India and others (supra) are different and as such the same would not apply to the facts of the present case. We find from the order that though the issue of Joint Cadre Authority being the only competent authority to decide the issue of transfer, the Tribunal had neither discussed the concerned rules nor the All India (Joint Cadre) Rules. Here we have already taken a note of the judgment in the case of Nazir Ahmed vs. The King-Emperor (supra) as well as Ramana Dayaram Shetty vs. International Airport Authority of India and others (supra) as also Uttar Pradesh Upbhokta Sehkari Sangh Limited through its Managing Director and Branch Manager vs. Vijay Shankar Rai (supra). These judgments clearly provide that where the rules so stipulate then a thing has to be done in the same manner or not to be done at all. Reading the above judgments, we find that the issue of competence of the Ministry of Home Affairs or the Ministry of Personnel, Public Grievances and Pensions has not been gone into at all in the said decision of the Coordinate Bench. Therefore, we find that the decision in K.K. Maheshwari vs. Union of India and others (supra) does not act as a bar or a barrier to decide the issue in the instant case.
18. As regards the issue of exercise of delegated powers, it is well accepted that there has to be a provision for delegation of powers. However, we find that All India Services (Joint Cadre) Rules do not provide for any such delegation of powers. This is because the Parliament of the Country had already delegated the limited powers to frame rules under the All India Services Act, 1951 to the Central Government. It is well accepted that delegated powers cannot be further sub-delegated. This principle has been well recognized in Marathwada University vs. Seshrao Balwant Rao Chavan, (1989) 3 SCC 132. In this case, respondent Seshrao Balwant Rao Chavan was a Deputy Registrar of Marathwada University. One Yelikar, who was working then as a Controller of Examinations, proceeded on leave and the respondent was directed to function in his place. During this period, there was a complaint in respect of printing work and upon inquiry it was found that the claims were in excess. However, there was another inquiry in which one Chavan, the respondent in this case, went to the Vice Chancellor to initiate appropriate inquiry, purporting to act on the exercise given to the Executive Council. The Honble Supreme Court had held that :
28. These principles of ratification governing transactions of a company where the general body is the repository of all powers cannot be extended to the present case. We were also referred to the decision of the Court of Appeal in Barnard v. National Dock Labour Board, (19-53) 1 All ER. 1113 and in particular the observation of Denning L. J., (at pp. 1118 and 1119) :
"While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication. In Local Government Board v. Arlidge (2) the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the board to sit as a board to decide all these cases. but I see nothing impracticable in that. They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a time.
"Next. it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has already done. The effect of ratification is to make it equal to a prior command, but as a prior command, in the shape of delegation, would be useless, so also is a ratification."
29. These observations again are of little assistance to us since we have already held that there was no prior delegation of power to the Vice-Chancellor to take disciplinary action against the respondent. There was no Subsequent delegation either. Therefore, neither the action taken by the Vice-Chancellor, nor the ratification by the Executive Council could be sustained.
19. Now we come to the issue as to what relief, if any, can be provided to the applicant. In this regard, we clearly held two things: (1) the transfer order of the applicant had been made at a time when there had been no post of IGP and (2) the argument of the respondent no.1 that it had the authority to create the post has been considered and conclusively rejected. We, therefore, hold that the impugned transfer order has been made by the incompetent body, i.e., Ministry of Home Affairs, as the Joint Cadre Authority is the only competent authority. We accept all the rulings in respect of the fact that transfer is a prerogative of the employer and a necessary condition of service. It is only the employer, who knows the best where to place the officer. However, we further hold that in the instant case, the impugned order of transfer dated 17.9.2012 is ab initio illegal as it has not been made by the competent body. Therefore, the respondents are directed to consider the transfer of the applicant against a vacancy legally provided by the competent body.
20. In view of the various issues having been decided, the way that they have been present OA succeeds with the following directives:-
The impugned order dated 3.8.2012 is quashed and set aside;
The impugned order of transfer dated 17.9.2012 transferring the applicant to the State of Arunachal Pradesh in the rank of IG is quashed and set aside;
The respondents are directed to consider the posting of the applicant to any constituent unit where vacancy exists as per the extent rules and policies.
There shall be no order as to costs.
(Dr. B. K. Sinha) (Syed Rafat Alam)
Member (A) Chairman
/ravi/