Central Administrative Tribunal - Jodhpur
Hemant Gagal vs Forest Education on 3 August, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 290/00125/2023
Reserved on : 01.06.2023
Jodhpur, this the 3rd August, 2023
CORAM
Hon'ble Mrs. Jasmine Ahmed, Judicial Member
Hon'ble Dr Nandita Chatterjee, Administrative Member
Hemant Gagal S/o Shri Dharam Pal Gagal, aged about 54
years, resident of Type-IV/10, AFRI Campus, New Pali Road,
Jodhpur.
[Presently working as Under Secretary, Indian Council for
Forestry Research and Education (ICFRE) - Arid Research
Forest Institute (AFRI), Jodhpur.
Transferred to Indian Council for Forestry Research and
Education (ICFRE)-TFRI, Jabalpur]
...................Applicant
By Advocate : Mr. S.K. Malik.
Versus
1. The Union of India through the Secretary, Ministry of
Forest and Environment and Climate Change, MOFCC,
Indira Paryavaran Bhawan, Jorbag Road, New Delhi 110
003.
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2. The Indian Council of Forestry Research and Education
through its Secretary, PO New Forest, Dehradoon 248006-
Uttrakhand.
3. The Director, Indian Council of Forestry Research
Education (ICFRE) - Arid Research Forest Institute
(AFRI) - AFRI, New Pali Road, Jodhpur.
4. Shri M. R. Baloch, Director, Indian Council of Forest
Research and Education (ICFRE) - Arid Research Forest
Institute (AFRI), New Pali Road, Jodhpur.
By Advocates : Mr. Sanjeev Johri, Sr. Advocate alongwith
Mr Shubhankar Johri (R-1 to R-3), and Mr Lalit Purohit
alongwith Mr Amit Chhangani (R-4)
........Respondents
ORDER
Per Mrs. Jasmine Ahmed Aggrieved with the transfer order dated 17.04.2023 (Annex. A/1), the applicant, who is working on the post of Under Secretary in the respondent-department, has filed the instant Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs :
(i) by an appropriate order or direction, the order dated 17th April, 2023 (Annex. A/1) transferring and posting the applicant from ICFRE-AFRI, 3 Jodhpur to ICFRE-TFRI Jabalpur, may kindly be declared illegal and be quashed and set aside.
(ii) by an appropriate order or direction, the order dated 18th April, 2023 (Annex.....) relieving the applicant from the post of Under Secretary, to join at Jabalpur , ICFRE TFRI, may kindly be declared illegal and be quashed and set aside.
(iii) By an appropriate order or direction, the representation submitted by the applicant may kindly be considered in appropriate perspective and his transfer and posting to Jabalpur may kindly be cancelled and he may be ordered to be continued at ICFRE-AFRI, Jodhpur on the post of Under Secretary with all consequential benefits and directions.
(iv) Any other appropriate order or direction which this Hon'ble Tribunal may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the applicant.
2. Brief facts of the case are that the applicant herein is working on the post of Under Secretary in the respondent Institute, has been transferred vide order dated 17.04.2023 (A/1) from Jodhpur to Jabalpur, which is approx. 1000 kms 4 away. In pursuance of transfer order dated 17.04.2023, the respondent No. 3 relieved the applicant for joining his new place of posting vide order dated 18.04.2023 (Annex. A/2). Aggrieved with his transfer order and subsequent relieving order, while preferring representation dated 18.04.2023 (Annex. A/4) to the Director General, ICFRE, Dehradoon, the applicant approached this Tribunal challenging both orders mainly on the ground of alleged malafide against respondent No. 4 Mr M.R. Baloch who is the Director, ICFRE, Jodhpur.
3. Learned counsel for the applicant narrating the facts, inter-alia, stated that apart from seeking relief against the impugned transfer order on the grounds of personal problems, the transfer order dated 17.04.2023 has been challenged on the ground of malafide exercise of power on the part of the Director who is party in person as respondent No. 4. Learned counsel narrated following incidents for alleging malafide exercise of powers by respondent No. 4 :
(a) Referring to letter dated 10.07.2019 (Annex. A/5), learned counsel states that respondent No. 4 alleged that the 5 applicant that retained the joining report of one Smt Rekha Dadhich, Assistant in his office in order to mislead respondent No. 4 and to allow indirect financial benefits to Smt. Rekha Dadhich, Assistant, whereas, the applicant was on leave during that week.
(b) Referring to letter dated 10.06.2021 (Annex. A/9) issued to the applicant by respondents No. 3, learned counsel for the applicant states that issue of appointing Dr. Sangeeta Singh, Scientist -E as head of Forest Protection Division was approved by the Director Incharge (Link Officer) in absence of respondent No. 4 and on her appointment, the respondents No. 4 got annoyed. On the verbal instructions of respondent No. 4, the applicant withdrew the order of appointment of Dr. Sangeeta Singh. However, in order to harass the applicant, unnecessary warning was issued to the applicant vide letter dated 10.06.2021.
(c) Referring to letter dated 02.03.2020 (Annex. A/10), learned counsel for the applicant states that the applicant has been alleged to issue appointment letters to 15 researchers 6 without approval of the competent authority, whereas, respondent No. 4 asked him to issue such appointment letter through one Dr. Tarun Kant, Scientist - F, yet the applicant issued warning vide letter dated 08.06.2021.
(d) Referring to leave application dated 11.04.2022 (Annex.
A/13), learned counsel for the applicant stated that the attitude of respondent No. 4 is highly discriminatory towards the applicant which is reflected from the incident that the applicant applied for two days' leave due to sickness of his mother, but he has been denied the same by respondent No.
4. However, other person namely Saraj Lal Meena, Assistant Technical Officer has been allowed the leave. And
(e) in order to indicate malafide attitude of respondents No. 4 towards the applicant, learned counsel for the applicant stated that the applicant has been entrusted with the charge of Library Incharge which is to be manned by Group-B technical staff whereas the applicant is holding a Group - A administrative post and the transfer order is the result of all the incidents narrated hereinabove as well as raising of 7 grievance by the applicant in regard to allotment of Type-V accommodation.
4. Vide order dated 26.04.2023 issued by this Tribunal, the applicant was granted interim protection to the extent that the respondents will not compel the applicant to join his new place of posting in pursuance of impugned transfer order as well as relieving order, and further directed the respondents to decide the representation dated 18.04.2023 (Annex. A/4) preferred by the applicant in the meantime. The respondents rejected the representation of the applicant vide order dated 09.05.2023 (Annex. R/1) and learned counsel for the respondents No. 1 to 3 filed joint reply on behalf of respondents No. 1 to 4.
5. Learned counsel for the respondents, denying the alleged malafides by the applicant, inter-alia, stated that the transfer of the applicant is based upon the administrative exigencies alongwith another person and the transfer order has been issued by the Indian Council of Forestry Research and Education, Dehradun which is the headquarter of 8 different research Institutes located throughout the country. The transfer of the applicant is in public interest and well within the contours of administrative exigencies, and personal difficulties within the family as narrated are trying to make the instant OA more like a mercy petition instead of the redressal of grievance within the legal domain. The transfer in question is nothing to do with the incidents of applicant's service being portrayed by him that the same has taken place due to annoyance of the respondent No. 3, rather the transfer order has been issued on collective basis by the headquarter.
6. The respondent No. 4 has also filed separate reply and denied the allegations of malafides against him, stating that a detailed reply has already been filed by the respondents No. 1 to 3 jointly as he has also been impleaded in his official capacity and he adopts such reply.
7. Heard learned counsel for the parties.
8. Learned counsel for the applicant, inter-alia, states that there is no administrative exigency or public interest mentioned in the impugned transfer order. On issuance of 9 transfer order dated 17.04.2023, the applicant has immediately been relieved on 18.04.2023 without giving any breathing time to him. The incidents narrated by the applicant [preceding paragraph 3] clearly reflects that respondent No. 4 was continuously harassing the applicant and had malafide intentions against him which lead to issuance of impugned transfer order and as soon as transfer order dated 17.04.2023 came to be issued, the respondents No. 4 immediately relieved the applicant vide order dated 18.04.2023 without giving the applicant breathing time, which is a colourable exercise on the part of respondents No. 4. Learned counsel for the applicant further states that apart from this, wife of the applicant is suffering from Lumbosacral Spine disease, his daughter is pursuing CA degree course and applicant's parents, who are 78 and 75 years of age, are also not keeping good health. Although the respondent No. 4 did not provide the applicant any breathing time, yet the applicant able to prefer a representation dated 18.04.2023 (Annex. A/4) in this regard to the respondents, but the same has not been accepted vide 10 order dated 09.05.2023 (Annex. R/1) filed by the respondents No. 1 to 3 with their reply. He thus states that looking at the colourable exercise of powers and malice of respondents No. 4 against the applicant resulting into impugned transfer order and relieving order, both orders may be quashed and set aside by this Tribunal. In support of his arguments, learned counsel for the applicant relied upon the following judgments of Hon'ble Supreme Court/Central Administrative Tribunal :
(1) Somesh Tiwari Vs UOI & Ors, (2009) 2 SCC 592 (2) Ramadhar Pandey Vs State of U.P. and Ors, 1993 SCC (L&S) 918.
(3) CAT Lucknow Bench judgment in the case of Dr Ravi Shankar Vs UOI & Ors in OA No. 137/2004 decided on 03.12.2004.
9. On the other hand, learned counsels for the respondents No. 1 to 3 and respondent No. 4 vehemently opposed the arguments of learned counsel for the applicant that the impugned orders have been passed due to alleged malafides on the part of respondent No. 4. Learned counsel for the respondents No. 1 to 3, inter-alia, stated that the impugned transfer order dated 17.04.2023 has been passed by the 11 Director General and not by the respondent No. 4. This OA has been devised hurling wild allegations of malafides against respondent No. 4 in order to continue to enjoy only at one station where the applicant has been working for last nearly 32 years. It is very unfortunate aspect of the matter that the applicant has been showing nuisantic attitude intentionally against the respondents No. 4. Learned counsels for the respondents thus prayed for dismissal of the OA. In support of their arguments, learned counsels for the respondents relied upon following judgments :
(1) UOI Vs Deepak Niranjan, (2020) 3 SCC 404. (2) Rejendra Singh Vs State of U.P., (2009) 15 SCC 178. (3) Govt. of AP vs. G. Venkata Ratnam, (2008) 9 SCC 345. (4) State of UP Vs Govardhan Lal, (2004) 11 SCC 402. (5) UOI Vs S.L. Abbas, (1993) 4 SCC 357.
(6) Shilpi Bose Vs. State of Bihar, 1991 Supp (2) SCC 659. (7) Subhash Srivastava Vs The ICAR, (2015) SCC ONLine Rj. HC 11156.
(8) Dr Mala Rathore Vs UOI, ICFRE, AFRI, CAT Jodhpur Bench judgment in OA No. 192/2018 dated 24.04.2019.
10. We have heard learned counsels for the parties and perused the material available on record.
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11. Apart from family circumstances, the main ground of the applicant for challenging transfer order dated 17.04.2023 and relieving order dated 18.04.2023 is allegations of malafides against respondent No. 4 who is party in his official capacity as well as in person. It is settled law that the impugned transfer order can be termed as illegal if it is an outcome of malafides. The allegation of mala fide has two aspect to it, one is malice in law and other is malice in fact. The sole plea of the applicant on this account is that, the respondent No. 4 is having personal bias or grudge, which resulted in issuance of the impugned transfer order. In support of his plea for establishing malafides, the applicant brought on record certain documents in support of some incidents averred in this OA.
12. On perusal of letters dated 10.07.2019 (Annex. A/5), 10.06.2021 (Annex. A/9), 08.06.2021 (Annex. A/12), it is found that issue of Child Care Leave in respect of one Smt Rekha Dadhich, complaint of Dr Sngeeta Singh and the issue of appointment of JRFs raised by the applicant, in order to 13 establish alleged malafides of respondents No. 4, have already attained finality in the year 2021 itself, i.e. prior to issuance of transfer order of the applicant. Interestingly, neither the applicant challenged these findings before the superior authority, nor the competent authority initiated any departmental proceedings and issued only warning to the applicant which is not a statutory punishment. Be as it may, these issues raised herein by the applicant had already attained finality in the year 2021 itself, that too after providing opportunity of hearing to him, hence, no malafides can be discerned out of these documents against the applicant by respondents No. 4, as alleged by him.
13. Apart from above, in order to attribute malifide on the part of respondent No. 4, the applicant averred that he has been denied leave for a particular period whereas another person has been granted the same for that particular period, the applicant has been entrusted the charge of below level Group-B technical as he was made Library Incharge. and, APAR for the year 2021-2022 in respect of Saroj Sisodia 14 graded by him as 'Excellent' as reporting officer was downgraded by respondent No. 4 as 'Very Good' in the capacity of Reviewing Officer. In our considered view, one instance of non-grant of leave to the applicant cannot be said to be bias of respondent No. 4 against the applicant and as per applicant's own averments, one who has been sanctioned leave was holding the post of Assistant Technical Officer having different duties and responsibilities though the respondents came up with reasons for the same, however, we do not find any merit in this allegation even to look into the reasons put forth by the respondents. Administrative arrangement of entrusting charge of Library in charge to the applicant is also not enough for this Tribunal to sustain the allegations of mala fides against the respondent No. 4. In exigencies of government work, it is the discretion of the superior authority to make administrative arrangements and additional charge of the applicant is nothing but an administrative arrangement and not such a charge which would downgrade the dignity of the applicant in any way. So 15 far as issue of APAR is concerned, it is the prerogative of the Reviewing Officer to upgrade or downgrade the grading of the person reported upon if he does not agrees with the assessment of Reporting Officer and this cannot be construed as any bias against the Reporting Officer. Rather malafides, if any, can only be alleged by the person reported upon. Hence, the allegations of malafides against respondent No. 4 alleged by the applicant, in order to challenge impugned transfer order dated 17.04.2023 which has been issued by the Director General, is found to be baseless.
14. In fine, on the basis of discussions as noted above, this Tribunal would infer as under :
(i) That, the applicant's allegations of malafide against respondent No. 4, is neither established on the basis of malice in law nor malice in fact.
(ii) The transfer order dated 17.04.2023 (Annex. A/1 to the OA) was indeed issued in public interest as the reference to TTA/joining time in such orders would only be admissible as per Rules to such employees who are 16 transferred in public interest and for administrative reasons.
(iii) It is significant to note the fact that the transfer order dated 17.04.2023 has been issued by the Secretary of Indian Council of Forestry Research and Education, namely, respondent No. 2, under the directions of the Director General, ICFRE (not impleaded as respondent herein). Admittedly, there are no allegations against the competent authority namely the Director General, ICFRE under whose directions, the said transfer orders have been issued or against the respondent No. 2 who had merely conveyed the transfer orders to the concerned offices. The applicant has also not alleged or been able to establish that respondent No. 4, against whom the allegations of malafide have been levelled, was in a position to influence the office of Director General, ICFRE so as to induce the Director General to direct the applicant's transfer from Jodhpur to Jabalpur. 17
15. Further, the transfer order per se which was approved by the Director General, ICFRE, can, under no circumstances be said to be violative of the settled norms of transfer given the fact that the applicant has been in Jodhpur since last 32 years. In addition, vide the same orders, one Shri N.K. Shringi has also been transferred from Jabalpur to ICFRE Headquarters thereby precluding any scope of discrimination between the transferees. There being no allegations of malafide against the Director General, ICFRE who has ordered such transfer or the respondent No. 2 who had conveyed such transfer orders, any scope of such transfer order being tainted with malice, is not sustained.
As held in Rajendra Roy Vs Union of India, (1993) 1 SCC 148, to establish inferences on malafide action there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. Further, in Union of India Vs S.L. Abbas, (1993) 4 SCC 357, the Hon'ble Apex Court held that an order of transfer is an incident of Government service. 18 Who should be transferred where, is a matter for the appropriate authority to decide. Unless the orders of transfer is vitiated by malafide or is made in violation of any statutory provisions, the Court cannot interfere with it. In such backdrop, this Tribunal would not deem it fit to interfere with the transfer order dated 17.04.2023 as impugned in the instant OA.
16. Furthermore, as per CCS (Joining Time) Rules, Rule 4 clause (1) joining time shall be granted to a Government servant on transfer in public interest to enable him to join the new post either at the same station or new station. Also as per para 5(1) of the said Rules, such joining time shall commence from the date of relinquishment of charge of the old post. In this context, there is nothing illegal or arbitrary in the relieving order of the applicant dated 18.04.2023 (Annex. A/2 to the OA), which was issued in compliance to Director General's order dated 17.04.2023, and once so relieved, the applicant was at liberty to avail of joining time as per CCS (Joining Time) Rules. Accordingly, this Tribunal is 19 of the considered opinion that the applicant's challenge to the relieving order dated 18.04.2023 (Annex. A/2 to the OA) fails.
17. This OA is therefore found to be devoid of merit and deserves to be dismissed.
Ordered accordingly with no orders as to costs.
[Dr. Nandita Chatterjee] [Jasmine Ahmed] Administrative Member Judicial Member Ss/-