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This O.A. has been filed for quashing the transfer order dated 11.11.2010 as contained in Annexure no.1 to the O.A. and order dated 12.11.2010 passed by respondent no.2 as contained in Annexure no.A-1(a) to the O.A. by means of which the representation made by the applicant against the transfer order has been rejected.

2. The case of the applicant is that she belongs to Indian Defence Estates Service (1993 Batch). She joined as Joint Cantonment Executive Officer, Delhi Cantt. Board in 1994 and subsequently she was transferred to various places. Meanwhile, she was promoted to the post of Cantonment Executive Officer (hereinafter referred as CEO for short) and was posted at Allahabad. She was transferred from Allahabad to Lucknow vide order dated 5.10.2010 (Annexure-2). She joined at Lucknow in compliance of transfer order. Her husband is also in the Army and at present he is holding the post of Colonal. She has two minor children aged about 07 and 09 years respectively. The Government of India, Ministry of Defence has issued Government order dated 5.9.1983 fixing tenure of the officers of Defence Estates Service. There are two types of posting i.e. in the Directorate and in the field office. The term of posting as CEO is 2.5-3 years (Annexure-3). After joining at Lucknow, she has completed only five weeks and therefore, in view of the aforesaid G.O., she ought to have been retained on the said post for at least 2.5-3 years. But in utter violation of the aforesaid G.O., she has been transferred from the post of CEO to the post of Joint Director, Defence Estates vide impugned order dated 11.11.2010. The impugned order purports to have been passed on administrative grounds. But in fact it has been passed with malafide intention to harass the applicant. The then Director General, Department of Defence Estates Sri Bal Sharan Singh retired from service after completing his superannuation on 31.10.2010. The applicant was posted as CEO, Lucknow by the then DGDE Sri Bal Sharan Singh. After his retirement, the officiating charge of his post was taken over by one Sri Ashok Harnal, whose post is Principal Director, Defence Estates, Southern Command, Pune. Sri Harnal was earlier superior officer of Smt. Rachel Koshy in the capacity of being Principal Director, Defence Estates, Southern Command, where she was working as CEO, Pune. By means of order dated 5.10.2010 passed by Sri Bal Sharan Singh, the then DGDE, Smt. Rachel Koshy was transferred as Joint Director, Defence Estate, Southern Command, Pune and in her place Sri B.A. Dhayalan was transferred and posted from Lucknow as CEO, Pune. Vide an order dated 8.11.2010 issued by Ministry of Defence, the transfer orders passed by the outgoing DGDE Sri Bal Saran Singh during the last two months of his retirement were directed to be reviewed in the wake of allegations of corruption in the transfer/posting of officers. On the pretext of this order, the impugned order is said to have been passed. The said order talks about only review of transfer/posting orders and for submitting of a report. The said order did not give any license or an authority to pass a fresh transfer order or cancel/modify the earlier transfer orders. But instead of submitting a report to Raksha Mantralaya as was directed in the said order dated 8.11.2010, the officiating DGDE vide his impugned order dated 12.11.2010 has modified the previous order dated 5.10.2010 passed by his predecessor which was beyond the scope of the authority given to him by order dated 8.11.2010. The Opposite parties have failed to demonstrate as to whether the allegations of corruption against outgoing DGDE were found to be true or not. It is further said that no cognizance can be taken of the bald allegations of corruption in transfer and posting without any enquiry having been carried out. Further, no action whatsoever has been taken against outgoing DGDE Sri Bal Sharan Singh till date in respect of alleged serious allegations of corruption made against him in respect of transfer/ posting within the last two months of his retirement. So far as the question of the applicant being transferred from the post of CEO to that of Joint Director is concerned, according to the applicant the post of CEO is a statutory post prescribed under Cantonment Act, 2006 and it has got clear duties assigned under Sections 25 and 26 of the Act. Whereas the post of Joint Director, Defence Estates service has got basic desk job without any statutory powers attached to it. In the case of Smt. Rachel Koshy, impugned order dated 11.11.2010 is sought to be justified by the respondents on the ground that Smt. Koshy had not completed her tenure of 2.5-3 years as CEO and, therefore, she was sought back by means of impugned order. On this analogy, the applicant having been posted as CEO, Lucknow only for about five weeks by virtue of same order dated 5.10.2010 could not have been transferred prior to completion of her tenure. Otherwise also, the respondent no.2 in the capacity of having got only officiating charge of DGDE had no power to transfer the applicant. The unceremonious removal/transfer of the applicant from the post of CEO after a short period of five weeks, patently, amounts to causing aspersion on her working and tarnishing her image in the eyes of public. The applicant has always been commended for her excellent work as would be evident from the perusal of various commendation certificates contained in Annexure no.8. The applicant moved representation on 11.11.2010 as soon as she received the transfer order, but the same has been rejected on the very next day.

3. The case of opposite Parties No.1 to 4 as contained in the Counter Affidavit is that the order dated 5.10.2010 was issued when there was less than one month left for superannuation of outgoing DGDE, which became highly controversial and, therefore, with the approval of the Honble Defence Minister all transfer/posting order which were made within last two months, were directed to be reviewed. Consequently, having regard to the posting profile and past performance of the applicant, she was transferred and posted as Joint Director, Defence Estate, Central Command, Lucknow vide impugned order on administrative ground and in public interest. The order will neither change the station i.e. Lucknow nor the status of the applicant nor her pay and allowances. While posted as CEO, Allahabad Cantt. the applicant was not able to conduct the Boards meeting as per provisions of Cantonment Act. She also did not send the budget estimate in time resulting in delay even in payment of arrears etc of 6th Pay Commission. Therefore, Army authorities in Central Command had asked for immediate transfer of the applicant from the station. In the Supplementary Counter Affidavit filed by Sri N.V. Satyanarayana, CEO Cantt., Kanpur filed against the affidavit of the applicant in support of some amendments which were sought in this case, it has been averred that the President of India has been pleased to authorize Sri Ashok Harnal to discharge the duties and responsibilities of DGDE w.e.f. 1.11.2010 and by subsequent order dated 24.11.2010 Sri Harnal has also been placed in the pay scale of regular DGDE i.e. Rs. 80,000/- (fixed). As per records, only one transfer/posting orders of the officers of Indian Defence Estate Service (hereinafter referred to as IDES for short) was issued during the month of September-October, 2010 vide impugned order dated 5.10.2020 involving four officers namely Sri B.A. Dhayalan, Smt. Rachel Koshy, Smt. Bhavana Singh and Sri Puspendra Singh. After receiving the directions for review of transfers, the posting profile of the officers and tenure at their stations of posting etc. were analyzed. Besides, the past performance of the officer and vigilance background were also taken into consideration. Thereafter, revised order was issued partially modifying the transfer order made by outgoing DGDE.

27. The first point for consideration in this case, is as to whether the impugned transfer order dated 11.11.2010 passed against the applicant was against the statutory provisions and without any authority. The detail submissions in this regard and the case laws on the point relied upon on behalf of the applicant already find mention in para 10 of this order. The relevant Rule 9 of the IDES (Group A) Rules, 1985 says that all appointments to the service shall be made by the President and the postings and the transfers of the members of the Service shall be made by Director General Defence Estates. But in the present case the transfer order has not been passed by DGDE. Instead it has been passed by an officiating person namely Sri Ashok Kumar Harnal, Principal Director,Southern Command, Pune, who was given additional charge of DGDE w.e.f. 1.11.2010 as an officiating arrangement pending receipt of the approval of ACC, consequent upon superannuation of Sri Balsharan Singh, DGDE on 31st October, 2010 (Annexure CA-1 of Supplementary Affidavit dated 14.12.2010). Under Rule 9 of the IDES Rules, 1985, the power of posting and transfer vests in DGDE only. This Rule does not make any mention about officiating DGDE. According to the applicant, therefore, in view of the ratio laid down by the Honble Apex Court in the cases mentioned hereinbefore in para 10 of this order, the transfer order is void and nonest in the eyes of law. From the side of respondents, the order has been tried to be defended mainly on two grounds- firstly it has been said that definition of Director General is given in Section 2 (p) of the Cantonment Act, 2006 which is as under:-

Director General means an officer of the Indian Defence Estates Service (IEDS) appointed by the Central Government to perform the duties of the Director General, Defence Estates for the purpose of this Act and includes Senior Additional Director General and Additional Director General.

28. But the above definition does not help the respondents simply because it deals with the performance of duties by the DGDE for the purpose of the Cantonment Act, 2006 only i.e. u/s 52,54 and 55 whereas the impugned transfer order has been passed in view of the above Rule 9 of the IDES Rules, 1985 which empowers only DGDE to make postings and transfers. Moreover, the aforesaid definition merely says that Director General includes Senior Additional Director General and Additional Director General. No where it says that DGDE also includes officiating DGDE. In the present case, it was the Principal Director, Southern Command Pune, who was given additional charge of DGDE as an officiating arrangement, who has approved/ passed the impugned order. The Principal Director has been defined separately under Section 2 (ZN). Principal Director means the Officer appointed by the Central Government to perform the duties of the Principal Director, Defence Estates, the Command for the purpose of this Act and the rules made thereunder. It is note worthy that while in the definition of Director General u/s 2(p), words  for the purpose of this Act have been used as mentioned above, whereas, in the aforesaid definition of Principal Director, words used are  for the purpose of this Act and rules made thereunder. It is not on account of any inadvertence. It has been done consciously while enacting the Act. Secondly, it has been defended on the ground that besides entrusting additional charge of the post of DGDE upon Sri Harnal, the Principal Director ,Defence Estates, Pune, he was also given the pay scale of Rs. 80,000/- (fixed) with retrospective with effect from 1.11.2010 for a period of six months or till regular incumbent joins or until further orders which even is earliest. The copy of this order dated 24.11.2010 (CA-2 to Supplementary C.A. dated 14.12.2010) reads as under:-