O.A. NO. 971 OF 2011
CP(C) 86/11 in O.A No.971/11
Wednesday, this the 11th day of January 2012
HON'BLE Dr.K.B.S RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K. NOORJEHAN, ADMINISTRATIVE MEMBER
Centre for Development of Advanced Computing
Thiruvananthapuram 695 033 - Applicant (By Advocate Mr.P Nandakumar)
1. Centre for Development of Advanced Computing (C-DAC) Vellayambalam, Thiruvananthapuram - 695 033
represented by its Executive Director
2. Head Corporate HRD
Centre for Development of Advanced Computing
Agriculture College Campus, Near District Industries Centre Shivaji Nagar, Pune - 411 005
3. R Ravindra Kumar
Centre for Development of Advanced Computing (C-DAC) Vellayambalam
Thiruvananthapuram - 695 033 - Respondents (By Advocate Mr.Sunil Jacob Jose, SCGSC)
The application having been heard on 09.01.2012, the Tribunal on 11.01.2012 delivered the following:
O R D E R
HON'BLE Dr.K.B.S RAJAN, JUDICIAL MEMBER
1. The challenge in this OA is Annexure A-5 order dated 09-11-2011 whereby the applicant, while working as Finance Manager in the Pay Band of Rs 15600 - 39100 with Grade Pay of Rs 7600 at C-DAC, Thiruvananthapuram, has been transferred against the post of Senior Administrative Officer (which though carries the same pay Band but lesser Grade Pay of Rs 6,600/-) at Mohali (post being vacant since long), and the order passed by the Head Corporate HRD, at Pune, directed the applicant to be relieved on the very same day and to take over position at Mohali on or before 18-11-2011. The order also stated that to effect smooth transfer, the applicant would hand over the duties and responsibilities which he was carrying out at C-DAC, Thiruvananthapuram, to the Executive Director, C- DAC, Thiruvananthapuram or to an officer assigned by him for this purpose.
2. The applicant in fact is to superannuate in April, 2012. Incidentally, the applicant was on leave on 09-11-2011 and in fact the information about his transfer was received by him through e-mail, sent through a Senior HRD Officer. There has been yet another Memo received through e-mail and sent by the said Senior HRD Officer, calling for an explanation on certain alleged lapse on the part of the applicant, giving just three days (and specifically mentioning that request for additional time would not be entertained). This Memorandum was, however signed by Respondent No. 3, the Executive Director.
3. Briefly stated, the applicant was earlier functioning in an organization called Steel Industrials Kerala Ltd, Thrissur (called as SILK), a Government of Kerala Undertaking. He had applied for and was appointed in the Respondents' Organization Centre for Development of Advanced Computing (C-DAC, in short) in March, 2006 and was permanently absorbed as Chief Finance Officer in C-DAC in July, 2007 (This post was later on rechristened as Finance Manager). He is thus Heading the Finance Wing of C-DAC. While so, on 16-09-2011 he was shifted to HRD vide Annexure A-1 and since the applicant's specialization is Finance, he had penned Annexure A-2 representation dated 05-10-2011. On 08-11-2011 the applicant was relieved of his duties as Head of HR&A and he was informed that further orders on his new assignment would follow. Annexure A-3 refers.
4. The applicant had earlier requested the D.G. in respect of certain disputes with regard to counting of his past service in SILK for the purpose of grant of Gratuity to the applicant. This was stated to have been approved by the then Executive Director, who was holding the charge of Director General. However, the said order was not implemented by the third respondent and this has forced the applicant to move the Tribunal in OA No. 913 of 2011 and the same, after being admitted on 03-11-2011, is pending consideration.
5. In the meantime, the applicant had been issued with the aforesaid transfer order, transferring him from Thiruvananthapuram to Mohali, vide Annexure A-5, which is under challenge before this Tribunal. The grounds of challenge in brief are as under:-
(a) The applicant's moving the Tribunal in OA No. 913 of 2011 and his objection to certain drawl of LTC by the third respondent (which resulted in his refunding the excess drawn with interest) had 'infuriated' the third respondent, who, to wreak vengeance against the applicant, had effected this transfer. (In other words, malafide has been alleged against the third respondent). The malafide is sought to be proved by the fact that the applicant who had specialization in Finance was unnecessarily shifted to HR&A and further the applicant had been issued with a memorandum.
(b) The applicant is to superannuate in April, 2012 and normally, transfer within the last two years is not resorted to. (c) The applicant having been holding a post carrying a Grade Pay of Rs 7600/- has been shifted to hold a post at Mohali which carries a lower Grade pay of Rs 6,600 only, which is impermissible, as the same amounts to reduction in rank.
(d) The issue of the transfer order is by an authority, who is not competent to issue such an order.
(e) The transfer order is punitive in character.
6. At the time of admission hearing on 11-11-2011, an order of status quo as on that date was passed, as it was stated that the applicant was not relieved. However, on the next date of hearing, the Tribunal was informed by the counsel for the Respondents that the applicant stood relieved on 09-11- 2011 itself. Hence, with the conflicting statement, it was ordered that while the status quot would continue, the case be expedited for final disposal.
7. Respondents 1 and 2 have contested the O.A. The third respondent having been impleaded in his personal capacity, the reply confined only to the official respondents and not to the third respondent in his individual capacity. Certain preliminary objections as to non jointer of necessary party etc., had been raised. Their main contentions on merit, are explained in para 12 to 16 of their reply, which is reproduced below:- "12. The Applicant was transferred to C-DAC, Mohali center to look after the entire Administration and finance of the entire Centre without any loss of designation/salary. The applicant was issued with a relieving certificate from C-DAC (T) services on 09.11.11 to enable him to take charge in CDAC, Mohali. Moreover the Applicant has not reported for duty on 9th November 2011 without intimating the reporting officer or submitting any lave applications to the office. The Transfer/Relieving Order was communicated through Mail & Courier and the Applicant also received the same. The transfer order states that C-DAC, Thiruvananthapuram has agreed to spare the services of Shri K.R.K Menon to take care of the administrative and finance functions at C-DAC, Mohali. The transfer order does not state that the applicant was transferred as Senior Administrative Officer or to a specific lower post.
13. As regards the grounds urged by the applicant, it is submitted that in view of the factual submissions alone, the O.A is only to be dismissed, since no tenable grounds have been brought out by the applicant, warranting interference by this Hon'ble Tribunal.
14. It is submitted that Executive Director is competent to issue a transfer order within the center. The 2nd respondent is the competent and authorized person of CDAC by Director General to issue a Transfer order to person from one center to other center within India. There is no iota punitiveness in the transfer of the applicant to Mohali. The same is purely in the interest of the organization, based on the requirements and interest of the organization and as per the transfer policy, which is therefore fully justified. The Memo issued to the applicant for his attitude and misbehavior towards the Executive Director, appointing authority, is as per the Conduct Rules and is not a punishment.
15. It is submitted that C-DAC never mentioned the scale of pay and designation of the post. The Relieving Order was issued to the applicant along with his Last Pay Certificate for th purpose of the same pay to be continued at C-DAC Mohali Centre.
16. C-DAC is an Autonomous body of Ministry of Information Technology and having it's own Rules and Regulations and Byelaw's. As per the transfer policy, any employee can be transferred at anytime/anywhere in India as per the requirement of the C-DAC Organization, which is specifically mentioned in his appointment order. He was transferred to Mohali within the Rule of C-DAC only, which cannot be termed as a punishment posting as stated in his application. "
8. The applicant had filed his rejoinder meeting every paragraph of the reply and reiterating his contentions as contained in the OA. He has also annexed certain documents relating to the mode of service of transfer order etc., through e-mail and speed post. He has also stated that strange enough, he was prohibited from entering the office premises at Thiruvananthapuram and further when he had entered his cabin, a security personnel was posted in front of his cabin, an unusual practice, as per the applicant.
9. Respondents have filed an additional reply wherein they have added a copy of the findings relating to the LTC matter of the executive director. They have also annexed a copy of communication from a private courier through which the transfer order was sought to be served upon the applicant and the intimation thereof stating that the applicant had refused to entertain the same.
10. Counsel for the applicant has submitted that the chronological sequence of events of the case would manifest that the transfer order is not on bona fide basis and malafide smacks at each stage. He has submitted that each and every ground specified in the OA holds good and he has supported his contentions by the following authorities:- (a) Order dated 19-09-2007 of the Principal Bench R.S. Sharma vs Kendriya Vidyalaya Sangathan.
(b) Order dated 1st September, 2010 in OA No. 1965 of 2010 of the Principal Bench - S.K. Chopra and others vs Union of India and others.
(c) Judgment dated 17-05-2007 in CA No. 2697 of 2007 of the Apex Court - Tejshree Ghag and others vs Prakash Parasharam Patil and others (2007) 6 SCC 220
(d) Ramesh Chandra Tyagi (Dr) vs Union of India (1994) 2 SCC 416
11. It has been argued by the counsel for the applicant that different stands have been taken in the reply and additional reply in respect of competence of the second respondent to issue the transfer order.
12. Senior Central Government Standing Counsel justified the issue of transfer order and also submitted that the applicant having been relieved on 09-11-2011 itself, had not cared to move out.
13. Arguments were heard and documents perused. Admittedly, the applicant is due for superannuation in April, 2012, which is just a little above five months from the date of transfer order. It is seen from the communication dated 03-11-2011 exchanged between the Head Corporate HRD and the Executive Director that the requirement in the HRD is a competent officer to be spared who "can be transferred to Mohali for a period of one year, to start with." Thus, if any transfer is to be justified, it should be such that the incumbent transferred should have sufficient time for superannuation and not five months plus. According to the counsel for the applicant, there are as many as three senior administrative officer, one of whom could have been transferred. Such a transfer would not result in a person being transferred to a post carrying less pay etc., as in the case of the applicant. It is not known as to what prevented the respondents from transferring any one of the Senior Adminsitrative Officers. The transfer of the applicant to a place unrelated to his specialization (Finance) does not appear to be in the interest of the Institution.
14. The applicant has been functioning in the Finance Wing as its head and his specialization is certainly only in that field. The requirement at Mohali is "senior personnel with Administrative experience" vide para 6 of the reply. Logically, a person in the field of Finance would be good at finance and comparatively less in other fields. Strangely, in their additional reply, the respondents have stated that the applicant's performance in the Finance Activities was not commendable but he was found to be very good in Public relations, general administrative and Human Resources related activities and his performance in the Personnel and Administrative Department is rated as very good. Para 2 of the additional reply refers. Public relations/Human Resources related activities include cordial move with colleagues, superiors and subordinates as well. Showering appreciations upon the applicant on the public relations and HR related activities on the one hand and issuing memorandum, alleging insinuations leveled against the applicant vide Annexure A-4, do not go in tandem. The contents of para 2 of additional reply appears to be tailor made to justify the transfer of the applicant.
15. The transfer order indicates that the applicant has to hand over charge of Finance wing to the Executive Director. Without waiting for the same, the respondents have issued relieving order vide Annexure R-2. Normally, in respect of the Head of a Wing, there shall be proper handing over and taking over. Again, it is understandable if there is a pressing urgency to fill up the post of Senior Administrative Officer at Mohali. Admittedly, the post is lying vacant for about two years. Thus, issue of transfer order directing relieving of the applicant on the same date confirms the indecent haste shown by the respondents. Equally hasty is the alleged relieving order, which cannot stand legal scrutiny when the same was issued even without completing the handing over-taking over.
16. The applicant has been holding a post which carries a grade pay of Rs 7,600/-. His transfer is admittedly to fill up the vacancy in the post of Senior administrative Officer. Vide Annexure A-8, the post of Senior Administrative Officer carries a grade pay of Rs 6,600/-. As the respondents have referred to CCS (Conduct) Rules, 1964 and CCS(CC&A) Rules, 1965 vide Annexure A-4, it is presumed that F.R. also is applicable to the applicant. If so, F.R. 15 specifically prohibits transfer of any government servant to a post lower than the one held by the individual. The said rule reads as under:- "(a) The President may transfer a Government servant from one post to another provided that except - (1)on account of inefficiency or misbehavior, or
(2)on his written request,
a Government servant shall not be transferred
to, or except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the post on which he holds a lien. "
17. Telescoping the above Rule upon the case of the applicant, it is evident that unmindful of the prohibition imposed by the above F.R. the respondents have issued the impugned transfer order. The authority cited by the counsel for the applicant vide (2007) 6 SCC 320 applies fully to the facts of the case. In that case, the Apex Court has held as under:- An order of transfer cannot prejudicially affect the status of an employee. If orders of transfer substantially affect the status of an employee, the same would be violative of the conditions of service and, thus, illegal. Transfers must be made to an equivalent post. (See Ramadhar Pandey v. State of U.P. (1993) Supp (3) SCC 35 Hussain Sasan Saheb Kaladgi v. State of Maharashtra (1998) 4 SCC 168 and P.C. Wadhwa v. Union of India AIR 1964 SC 423 )
18. As regards the competence of the authority who had issued the transfer order, though the said order reflects that the same has been issued with the approval of the competent authority, neither the relevant records nor any orders of the competent authority had been made available for our perusal. Again, in their reply and additional reply, there is sharp deviation in respect of the competence of the authority which had issued the transfer order. (See para 14 of the reply - "the 2nd respondent is the competent and authorized person of CDAC by Director General to issue a Transfer order to person from one center to other center within India" and contrast the same with para 17 of the additional reply, "It is true that the 2nd respondent is not the approving authority for approving office orders, but he is the issuing authority for officer orders of CDAC-Corporate Office origin as per CDAC Norms. ... He was only releasing a decision approved by the approving authority.")
19. Even if the contentions of the respondents that the authority which issued the order of transfer only conveyed the order passed by the competent authority as contained in the additional reply are held as correct, then again, the least that is required in such case is to produce the records containing such approval by the competent authority. The counsel for the applicant is right when he invited our attention to the decision of the Apex Court in the case of Ramesh Chandra Tyagi Dr. vs Union of India (1994) 2 SCC 416, wherein the Apex Court has held as under:-
Taking up the transfer order it is undisputed that the competent authority to transfer the appellant was the Secretary of the department whereas the order was passed by the Director General. It was attempted to be defended by claiming that the power of transfer was delegated. But despite grant of time no order delegating the authority could be produced. The learned counsel appearing for Union of India had to concede that no order of delegation was on record. We are not prepared to infer delegation because there were orders on the record which indicated that subsequently the Secretary had delegated the powers. It is not delegation earlier or later which is material but whether any delegation existed on the date when the transfer order was passed. Further it is necessary to mention that the respondents having taken definite stand in the written statement that the transfer order was approved but did not produce the record in the trial court nor could they substantiate it even in this Court, there is no option but to hold that the order was not passed by the person who alone was competent to do so. The transfer order issued by the Director General, thus, being contrary to rules was non est in the eye of law.
20. From the sequence of events as narrated above and as contained in the pleadings, it is evident that the transfer of the applicant is not in public interest but to achieve certain extraneous purpose. It is apt to refer to the observation of the Apex court in the case of State of Punjab vs Gurdial Singh (1980) 2 SCC 471, wherein the Apex Court has held as under:-
9. The question, then, is what is malafides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power -- sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions -- is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion.
21. The counsel submitted that from Mid November, 2011 the applicant had been prevented from attending the office at Thiruvananthapuram and he could not as such perform his duties, despite a status quo order passed by the Tribunal. The Applicant has also filed a contempt petition No. 86 of 2011 against the third respondent. The counsel submitted that in all fairness the respondents should treat the period of absence which was caused due to the recalcitrant attitude of the respondents as duty for all purpose. He has referred to para 13 of the rejoinder.
22. Keeping in view the overall conspectus of the case, it is evident that the action on the part of the respondents cannot stand judicial scrutiny. The transfer order is not in public or administrative interest. Hence, the impugned Annexure A-5 order is quashed and set aside. Consequently, the relieving order issued in pursuance of the said transfer order also becomes non est. The applicant shall be retained at C-DAC, Thiruvananthapuram forthwith and as regards the period of absence, it is for the applicant to move a representation directly to the Director General for necessary decision. The OA is allowed. Respondents shall permit the applicant to resume duty forthwith on production of a certified copy of this order.
23. Though the conduct of the respondents makes them liable to pay cost, the sober way of presentation of the case by the Senior Central Government Standing Counsel dissuades us from levying any cost. Hence no costs.
(Dated, this the 11th day of January, 2012)
K. NOORJEHAN DR.K.B.S RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv