Central Administrative Tribunal - Ahmedabad
Rajendra Singh vs D/O Agriculture on 14 March, 2022
(CAT/AHMEDABAD BENCH OA NO.354/2021) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.354/2021
With MA No.10/2022 & MA No.392/2021.
Dated this the 14th day of March, 2022.
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Sh. Dr. A.K. Dubey, Member (A)
1. Shri Rajendra Singh,
Son of Shri Pyarelal,
Age: 54 years, serving as Deputy Director
In the office of the respondents,
Residing at: D/79 shakti Nagar,
Gandhidham - 370 201. ...Applicant
(By Advocate Mr. M. S. Trivedi)
Vs
1. The Union of India, through
The Secretary,
Ministry of Agriculture & farmers Welfare
Department of Agriculture,
Cooperation and farmers Welfare,
Krishi Bhavan, Dr. Rajendra Prasad Road,
New Delhi - 110 001.
2. The joint Secretary (PP)
Ministry of Agriculture & Farmers Welfare
Department of Agriculture,
Cooperation and Farmers Welfare,
Krishi Bhavan, Dr. Rajendra Prasad Road,
New Delhi - 110 001.
3. Plant Protection Advisor,
Directorate of Plant, Protection Advisor,
Quarantine and Storage,
Ministry of Agriculture & Farmers Welfare
Department of Agriculture,
Cooperation and Farmers Welfare,
NH-IV, Faridabad, Haryana - 121 001.
(CAT/AHMEDABAD BENCH OA NO.354/2021) 2
4. Deputy Director,
Government of India,
Ministry of Agriculture and Farmers Welfare,
Directorate of Plant, Protection Quarantine &
Storage, Regional Plant Quarantine Station,
Plot No. NU-10-B-80, Shaktinagar,
Gandhidham, Kachchh - 370 201.
5. Dr. C. S. Patni, IPM (Hqrs),
Notice to be served through
The Joint Secretary (PP)
Krishi bhavan, Dr. Rajendra Prasad,
New Delhi - 110 001. ...Respondents
(By Advocate Mr. H. D. Shukla)
ORAL(ORDER)
Per: Hon'ble Shri Jayesh V. Bhairavia, Member (J)
1. Aggrieved by the order dated 02.08.2021(Annexure A/1), whereby, the applicant herein has been transferred from RPQS, Kandla to HQRS Faridabad, applicant has filed the present OA, under section 19 of the Administrative Tribunal Act, 1985, seeking following reliefs:-
"8 (A) That the Hon'ble Tribunal be pleased to allow this petition.
(B) That the Hon'ble Tribunal further be pleased to hold/declarre that the impugned ex-facie, illegal, arbitrary, unjust and constitutional order No. 02.02.2020 - Admn. I dated 02.08.2021 issued by the respondents regarding premature transfer of the applicant from RPQS - Kandla to HQRS Faridabad and vise respondent No.5, contrary to the policy instructions of the respondents on the subject matter, is nonest in the eyes of law. (C) That the Hon'ble Tribunal be pleased to quash and set aside the impugned ex-facie, illegal, arbitrary, unjust and unconstitutional order No.02.02.2020 - Admn. I dated 02.08.2021 issued by the respondents regarding premature transfer of the applicant from RPQS-Kandla to HQRS Faridabad and vise respondent No. 5, contrary to the policy instructions of the respondents on the subject matter, qua applicant.
2. Mr. M. S. Trivedi, learned counsel for the applicant submits as under:
2.1 The applicant herein was promoted to the post of Deputy Director (Plant Pathology) which is GCS - „Group A‟ Post (non-ministrial) (CAT/AHMEDABAD BENCH OA NO.354/2021) 3 w.e.f 31.12.2019. While he was working at Jhalndhar had requested for his transfer in Western Zone and accordingly he was posted at Kandla i.e., RPQS in the month of November 2020.
Hardly 10 months are over at kandla, again he has been transferred vide impugned order dated 02.08.2012 (Annexure A/1) to Headquarter Faridabad. Hence, this OA.
2.2 It is submitted that the impugned pre-mature transfer order is contrary to the instructions contained in the Transfer Policy-2018, which was published vide OM dated 31.07.2018 (Annexure A/2). 2.3 It is submitted that as per Para V (I), the tenure of officers/official at one station has been prescribed. According to it for Group -A officer working at sensitive category of offices the maximum tenure of 3 years and for non sensitive 5 years has been prescribed. Further, it is also prescribed that total tenure of an official (sensitive + non-sensitive) at one station should not exceed more than 8 years at a time.
2.4 Further, Para IV of the said Policy relates to Rotational Transfer.
In Para IV (a) it has been stipulated that officers holding identified sensitive post/stations will be transferred on completion of the tenure fixed from time to time as specified in Para I above (i.e., Para 5(I) of the said guideline). Therefore, it is submitted by the learned counsel that the applicant who is holding Group-A post cannot be transferred pre-maturely vide impugned order dated 02.08.2021, since he had joined the Kandla-Gandhidham only in the month of November 2020.
2.5 It is also contended that Para VI of the Policy of 2018 prescribed parameters for posting. The Sub-Para (h) of Para VI reads as under:-
"If anything adverse against any officer/official comes to the notice of this Ministry, in any form, then that officer/official will be transferred out of the station where he/she is posted, even before the completion of prescribed minimum tenure".
By referring to the aforesaid clause (h) of Para VI of the Transfer Policy - 2018, learned counsel Mr. Trivedi, vehemently submits (CAT/AHMEDABAD BENCH OA NO.354/2021) 4 that in the case of applicant, there is no finding or any reason assigned by the competent authority which can be said "anything adverse" against the applicant herein. Therefore, the impugned order of transfer is in contravention of the Policy of 2018. 2.6 It is submitted that as per Para-VI of the said Policy the transfer committee is constituted from time to time by the Department of Agriculture, Cooperation & Farmers Welfare. As per the terms of the Policy, said committee shall consider and recommend the transfer/posting of officers. Based on the said recommendation the competent authority has taken decision to transfer the applicant. Since, in the investigation report there was nothing adverse against the applicant, the competent authority ought not to have issued impugned transfer order in contravention of the Transfer Policy. Therefore, the impugned order is bad in law and requires to be quashed and set aside.
3. Per contra, the respondents have filed their reply and denied the contentions of the applicant. Mr. H. D. Shukla, counsel for the respondents mainly submits as under:-
3.1 The applicant herein was transferred to Kandla from Jhalandhar vide order dated 16.10.2020 and he joined on 11.11.2020.
However, on account of several complaints against the applicant, with regard to irregularities/malpractices etc at RPQS Kandla, were issued from 2 Custom House Agencies (CHAs). The competent authority had made necessary inquiries through a team of departmental officers. The Inquiry Report along with necessary inputs were submitted by the Inquiry Team on 09.06.2021 to the concerned authorities (Annexure R/1 refer). Consequently, by following the due process, the competent authority found it appropriate to transfer three officers from RPQS, Kandla including the applicants herein vide impugned order dated 02.08.2021. 3.2 It is submitted that the Transfer Policy - 2018, stipulate more particularly the guidelines stipulated in Para VI (h) provides the transfer of the officer if anything adverse against him comes to the (CAT/AHMEDABAD BENCH OA NO.354/2021) 5 notice of the Ministry in any form then the said officer will be transferred out of station where he is posted, even before the completion of prescribed minimum tenure. Therefore, it is not correct on the part of applicant to claim or state that before completion of 3 years of tenure he cannot be transferred. 3.3 It is submitted that Para VII of the Transfer Policy clarifies that this Policy offers only general guidelines to the competent authority and does not constitute Rules. It also does not, in any manner, restrict the powers of competent authority to take decision with regard to the posting of the personnel for administrative reason or on administrative ground, as also in the exigency of work. Therefore, the impugned transfer order has been issued by duly empowered competent authority.
3.4 Learned counsel submits that in catena of judgments the Hon‟ble Apex Court held that 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 present case, the respondents have followed the due process before issuance of transfer order dated 02.08.2021, which is in question herein.
Learned counsel submits that the competent authority is empowered to regulate the posting of officer working in the department including the applicant herein and by following due process and to its subjective satisfaction passed the impugned order. There is no material on record to suggest any malafides against the respondents or passed by an authority not competent to do so. Therefore, learned counsel for the respondents requests this Tribunal not to interfere with the just administrative decision which is under challenge herein.
3.5 It is submitted that vide impugned order dated 02.08.2021, applicant was transferred and he was relieved 03.08.2021 by order dated (Annexure A/4). However, the applicant on his own wish did not report on his posting till date and approached this Tribunal. Lastly, it is submitted that transfer of an employee is not only an (CAT/AHMEDABAD BENCH OA NO.354/2021) 6 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 contra, in the law governing or conditions of service and 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. In this regard, he placed reliance on the judgment passed by Hon‟ble Apex Court in the case of State of UP Vs Gobardhan Lal reported in (2005) SCC (L&S) 55 and the judgment passed in the case of S C Saxena Vs UOI & Ors., reported in (2006) SCC (L&S) 1890 and submits that applicant is not entitled for any relief as prayed for.
4. The applicant has filed his rejoinder and reiterated the contentions stated in the OA. Additionally, learned counsel for the applicant submits that in Para VI of the reply of the respondents it has been mentioned that on account of various complaints received by the respondents a team comprising two officers were constituted and had prepared report which has annexed with the said reply. From perusal of the said report it can be seen that there was nothing adverse found against the applicant. In fact, the irregularities reported by the applicant herein to the higher authorities have not been considered in his true spirit and for no fault of his the applicant has been transferred pre-maturely. Further, it is submitted that the applicant has filed present OA not only opposing his transfer but also for the reason that when there is nothing adverse against him, the respondents in contravention of the transferred guidelines/policy arbitrarily issued the impugned transfer order. Hence the prayers sought in this OA be allowed.
5. Heard the counsel for the parties at length and perused the material on record.
6. It is settled principle of law that the scope of judicial review in matters of transfer of a Government servant to an equivalent post without any adverse consequence on the service or career prospects in very limited (CAT/AHMEDABAD BENCH OA NO.354/2021) 7 being confined only to the grounds of malafide and violation of any provision of statutory Rules. The Hon‟ble Supreme Court, in the case of Rajendra Singh and Ors. Vs. State of Uttar Pradesh & Ors., reported in (2009) 15 Supreme Court Cases 178 in Para 8 by referring the judgment passed in State of UP Vs Gobardhan Lal reported in (2005) SCC (L&S) 55 held as under: -
"8. 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.
Further, in Para 9 by referring the dictum laid down in the case of Shilpi Bose Vs State of Bihar reported in (1992) SCC (L&S) 127, the Hon‟ble Apex Court held as under:
"9. The Courts are always reluctant in interfering with the transfer or an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar, 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..........."
7. At this stage, it is also important to mention that the Hon‟ble Apex Court in the case of State of UP Vs Gobardhan Lal reported in (2005) SCC (L&S) 55, in Para 7 held as under:-
".....Even administrative guidelines for regulating transfer or containing transfer policies at best may afford an opportunity (CAT/AHMEDABAD BENCH OA NO.354/2021) 8 to the officer or servant concerned to approach their higher authorities but cannot have the consequences of depriving or denying the competent authority to transfer a particular officer to any place in public interest and as is found necessitated by exigency of service as long as the officer status is not affected adversely and there is no infraction of any carrier prospects such as seniority, scale of pay and secured amendments. Further it has been held in the same judgment that the Court has often reiterated that the order of transfer made even in transgression of administrative guideline cannot also be interfere with, as they do not confer any legally enforceable right unless shown to be vitiated by malafides or made in violation of any statutory provision."
Further, in Para 8, it has been held as under:-
"8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Court or Tribunal as though they are Appellate Authorities over such orders, which could assess niceties of the administrative needs and requirements of the situation concerned. This is for the reason Courts or Tribunal cannot substitute their own decisions in the matter of transfers for that of competent authorities of the state and even allegations of malafide when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertain the mere making of it or on consideration born out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
8. By keeping in mind the aforesaid settled principle of law, in the present case, it is noticed that Sub-Para 7 of Para VIII of the Transfer Policy - 2018 declared by the competent authority vide OM dated 31.07.2018 amply, made it clear that the instructions contained in the Transfer Policy does not in any manner restrict the power of competent authority to take decision with regard to posting of the personnel. The said provision contained in Sub-Para 7 reads as under:-
"Notwithstanding the principle/norms of RTP laid down in this policy, in the exigency of work or on administrative grounds or for administrative reasons, transfer/posting can be made disregarding any one or more of the provision made therein. This Policy offers only general guidelines to the competent authority and does not constitute Rules. It also does not, in any manner, restrict the powers of competent authority to take decision with regard to posting of the personnel".(CAT/AHMEDABAD BENCH OA NO.354/2021) 9
Therefore, whether, anything adverse found or not against the applicant herein with regard to complaints received by the respondents, even otherwise, the competent authority is empowered to pass the order for posting of applicant. The competent authority is empowered to take appropriate decision with respect to transfer / posting of their employee including the applicant herein in the interest of better administration and management of the concerned department. Thus, in light of the clarification stipulated in the said Transfer Policy - 2018, the submission of the applicant that in absence of anything adverse against the applicant the competent authority ought not to have passed the impugned order of transfer of the applicant is not tenable. Even otherwise, in absence of any concrete material to establish any malafides against the competent authority or its incompetency to pass the impugned decision, the impugned decision of transfer of the applicant cannot be said to be suffers from any legal infirmities.
9. In view of above discussion, as also in light of the principle of law laid down by Hon‟ble Apex Court with respect to scope of judicial review in the matter of transfer of Government servant as referred herein above, in our consider opinion, the OA lacks merit for any interference with the impugned decision. Accordingly, the OA stands dismissed. MA pending if any also stands disposed of. No orders as to costs.
(Jayesh V Bhairavia) Member(J) PA (CAT/AHMEDABAD BENCH OA NO.354/2021) 10