Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1896/2008 This the 17th day of January 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Dr. V.K. Kashyap S/o late Shri N.D. Kashyap R/o National Institute of Biologicals A-32, Sector 62, NOIDA (UP) ..Applicant (By Advocates: Shri P.P. Khurana, senior counsel and Shri Kamal Khurana, counsel along with him) Versus 1. Union of India through its Secretary Ministry of Health & Family Welfare Government of India, Nirman Bhawan New Delhi 2. The Chairman General Body & Governing Body National Institute of Biologicals Ministry of Health & Family Welfare Govt. of India A-32, Sector-62, Institutional Area Phase-II, NOIDA-201301, UP 3. Dr. Jotna Sokhey Addl. D.G. & Project Director National Aid Control Organization (NACO) Chandralok Building Janpath, New Delhi ..Respondents (By Advocates: Shri Naresh Kuashik for respondents 1 & 2, Shri Raju Ramchandran, senior counsel and Shri V.K. Rao, counsel for respondent 3 along with him) O R D E R
Shri Shanker Raju:
It is trite law that when a statutory power is conferred on an authority, it has to be exercised within the four corners of the statute, as ruled by the Apex Court in Karnataka State Financial Corporation v. N. Narasimahaiah & others, (2008) 5 SCC 176.
2. An Executive order when termed as a policy decision is not beyond the pale of judicial review. The grounds to interfere have been laid down by the Apex Court in D.D.A., N.D. & another v. Joint Action Committee Allottee of SFS Flats & others, 2007 (14) SCALE 507 with the following observations:
59. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty gritties of the policies, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.
60. Broadly, a policy decision is subject to judicial review on the following grounds:
if it is unconstitutional;
if it is de hors the provisions of the Act and the Regulations;
if the delegatee has acted beyond its power of delegation;
if the executive policy is contrary to the statutory of a larger policy.
3. Posting and transfer of an employee either in public interest or in administrative exigencies is per trite law not amenable to judicial review unless suffers from vice of arbitrariness, malafide and is in contravention of statutory rules as well as Article 14 of the Constitution of India, as ruled by the Apex Court Major General J.K. Bansal v. Union of India, (2005) 7 SCC 227.
4. With the above position of law, this OA is directed against an order dated 29.8.2008 whereby the applicant, who has been functioning on deputation as Director, National Institute of Biologicals, NOIDA (for short NIB), has been attached with the office of Director General, Indian Council of Medical Research (for short ICMR) with direction to hand over the charge of the post of Director of the Institute and with a further direction to respondent No.3 to take over the charge as acting Director, NIB with immediate effect. By an order passed by this Tribunal on 2.9.2008, status quo has been maintained restraining official respondents to force the applicant to join new place of posting.
5. For better understanding, a brief factual matrix is relevant so is highlighted. NIB being an autonomous body is under the control of Government of India through Ministry of Health & Family Welfare as per the Byelaws and Memorandum of Association with certain aims to develop and validate standards for quality control testing procedures for biological and immuno biological products. The governing body comprises Secretary (Health), Secretary (Family Welfare), Director General of Health Services and Director General of ICMR, as one of the Members apart from others. The Director is defined under clause 2 (6) of the Byelaws and his appointment as per the rules is by way of direct recruitment or by deputation with the prior approval of ACC. Clause 18 of the Memorandum describes functions and powers of the Director where both executive and administrative powers have been vested under the rules. One of the conditions is to comply with the directions of Ministry of Health & Family Welfare, Government of India and reporting the matter to the governing body. As per the Byelaws framed, appointing authority for the post of Director, which is a Group A post, is provided under clause 18.1 of the Byelaws. Selection for the post of Director shall have to be made by a special committee appointed by general body and approved by the Government for a tenure of five years not extending beyond the age of 60 years, which may be extended upto 62 years and simultaneously the tenure can be terminated on three months notice for the reasons to be recorded by the general body.
6. As per Byelaws 17, on foreign service / deputation of employee of the Institute, he may be transferred and sent on deputation whether within or outside India as per rules framed and as per the orders of Government of India issued from time to time.
7. As per the power under Schedule I of the Byelaws, clause 20 gives power to the Director to make appointment and to transfer a lien under FR 14 (B) of a subordinate employee. As per clause 62, any alternation in the Byelaws shall require the prior approval of the governing body.
8. Apart from the Byelaws, NIB Recruitment Rules, 1994 have been promulgated w.e.f. 22.4.1994 where Institute is defined under Rule 2 (a) as National Institute of Biologicals and the appointing authority as defined under Clause 16 of the Byelaws. Selection is provided under Rule 6 where one of the modes is deputation through search-cum-selection committee.
9. Rule 11 of the rules ibid prescribes that the officers appointed shall be liable to serve anywhere in India and outside with power of relaxation to the governing body as provided under Rule 12.
10. With the above background of Byelaws and Rules, applicant, who was earlier working in Central Forensic Laboratory (CFL), Calcutta and in pursuance of an advertisement issued by NIB on 7.2.2003, applied for the post of Director. On interview by search-cum-selection committee, an appointment letter was issued on 31.1.2005. Neither in the advertisement issued nor in the appointment letter, there is any stipulation as to the transferability of applicant as Director to any other place. Applicant made an application as he was below the age of 60 years to exempt the post of Director from the rule of permanent absorption and his appointment was for five years w.e.f. 5.4.2005. However, without any prior notice issued to him and any explanation memo, etc. on his alleged functioning not in the interest of Institute, abruptly the respondents attached the applicant to the post of Director General, ICMR and posted one respondent No.3 as acting Director, NIB. This has been assailed in the present OA.
11. Shri P.P. Khurana, learned senior counsel for applicant, at the outset, states that after the finding of search committee, applicants appointment was approved by ACC in July 2003 with concurrence by the general body in absence of any inter-changeability between NIB and ICMR and there being no statutory rule for transfer of the applicant while on deputation, there exists no inherent power to transfer the applicant. As such, the impugned order passed by the administrative authorities beyond the power vested in them as per the rules is coram non judice.
12. Learned senior counsel would also contend that if there is any alleged misconduct on which a contemplated proceeding is proposed, transfer is not the remedy. Applicant if proceeded with a minor penalty, the competent authority is to act and for a major penalty, applicant is to be repatriated back to CFL for which a request has been made.
13. Learned senior counsel contended that the complaints made for alleged misconduct have not been known to him and this came to his knowledge only through the counter reply, as before this neither any notice was issued to the applicant nor was any explanation sought. Moreover, it is stated that from the overwhelming evidence, it transpires that the applicant under the guise of attachment has since been transferred and rested off the powers of the Director.
14. Learned senior counsel would also contend that the question of public interest would only come when there is any power lies with the respondents to exercise such attachment. As Institute being autonomous body and ICMR has a separate autonomous sanctity, he cannot be transferred outside the cadre without his consent and for which the dicta of the Apex Court in Jawaharlal Nehru University v. Dr. K.S. Jawalkar & others, 1989 (3) SLR 730 has been relied upon.
15. Learned senior counsel would also contend that in ICMR, the discipline of applicant in which he has expertise and for which he had been appointed in NIB as Director, would be practically of no use and would go waist. Accordingly, it is stated that the Central Government entrusted with the power to attach the applicant with ICMR and while relying upon DOPT OM of 3.7.2006 where procedure for appointment in autonomous Institute through ACC is detailed. It is stated that no appointment would be permissible without approval of ACC. Relying upon clause 10 of Byelaws, it stated that even entrusting additional charge in such a case requires the approval of the ACC, which has not been sought in the present case.
16. Learned counsel would also rely upon DOPT OM of October 1997 to contend that in case of lateral shift of officers, the proposal requires the approval of ACC and for pre-mature repatriation, ACC has to give its approval. Relying upon clause 12, it is stated that for any additional charge / arrangement, as before hand, approval of the ACC is required.
17. Learned counsel has also relied upon DOPT OM of 8.11.1991 regarding pre-mature repatriation and has also relied upon various information received by him under RTI Act to substantiate his claim.
18. On the other hand, Shri Naresh Kaushik, learned counsel for official respondents states that the tenor of counter reply as to referral to inherent power is incidentally what has been passed against the applicant to whom transfer liability applies under the statutory rules is an order of attachment by referring to the various misconduct allegedly committed by the applicant. It is stated that the applicant would have been suspended but reaching short of it, the order of attachment in public interest has been issued without affecting service conditions of the applicant and since no prejudice has been caused by non-alteration of any conditions of service in administrative exigencies, the act of the respondents is permissible.
19. Learned counsel would contend that by continuous presence of the applicant there has been a total administrative failure in the Institute and as the transfer is not prohibited under the rules, it has to be read for effecting larger public interest.
20. Shri Raju Ramchandran, senior counsel and Shri V.K. Rao, learned counsel for respondent No.3 along with him has vehemently referred to the recruitment rules and in this regard the appointing authority has been referred to in the Byelaws 16.1. While relying upon clause 11, though an inconsistent plea to that of official respondents has been taken, learned senior counsel states that the impugned order is justified, as the employees of NIB are liable to serve anywhere in India. As such the appointing authority having posted the applicant even on transfer to ICMR, the impugned order falls short of suspension and placing the applicant at disposal of another Medical Institute, which is controlled by the appointing authority, would not amount to either change of cadre or posting to a different organization to attract any prior reasonable opportunity to show cause.
21. We have carefully considered the rival contentions of the parties and perused the material on record.
22. Interpretation of rules and statute has several principles to follow. However, in service jurisprudence an intention of legislature has to be gathered from the language used on literal meaning and Court is precluded to fill up the gaps, as ruled by the Apex Court in Uco Bank & another v. Rajinder Lal Capoor, (2008) 5 SCC 257.
23. A harmonious construction and a welfare legislation has to be interpreted liberally. It is also trite law that when the statute is clear, no words cannot be added or subtracted and also any interpretation, which makes the very aim and object of the Act redundant, shall not be followed as ruled in Sanjay Singh & another v. U.P. Public Service Commission, Allahabad & another, (2007) 1 SCC (L&S) 870.
24. When an Institute comes into being as an autonomous body, the only control of the Government is as per the memorandum and rules framed therein. Admittedly, NIB is an autonomous body with a pre-dominant object of developing quality control testing procedures for biological and immuno biological products and to provide training for qualified quality. Accordingly, ICMR, which is also incidentally an Institute for Medical Research in existence to the earlier NIB, what necessitated creation of this autonomous body parallel with ICMR is a well defined distinct object. Accordingly, NIB when advertised the post of Director in 2003 through an advertisement, it can be legally inferred that being an autonomous body Institute, apart from experience in research, training, manufacturing and quality control in biologicals viz. vaccines and blood products for at least 15 years have been sought. Accordingly, applicant, who was fully eligible as per the laid down criteria, applied for the post of Director and a selection was held by a special Selection Committee appointed by the general body and approved by the Government and after the interview, applicants appointment does not show in the memorandum of conditions having all India transfer liability, as NIB has no branch or sub-unit functioning at different places in the matter. However, in the case of applicant, who held a lien in CFL, the selection was for appointment on deputation and as per the terms and conditions it is initially for five years and till the applicant attains 60 years, whichever is earlier. As the applicant would not have attained the age of superannuation of 60 years even after completion of the tenure, was appointed for a period of five years, which commences from 2005 and would have completed in 2010.
25. Byelaws indicate that an employee of the Institute may be transferred or sent on deputation within or outside India as per the rules and orders of the Government of India in force from time to time. However, the statutory rules promulgated in 1994 define Institute as NIB and it does not include any other Institute within the ambit. The transfer liability as per rule 11 of the Rules is to the officers of the Institute and it does not specify, as an exception, the post of Director. As such, it has to be deemed that the definition of officers referred is inclusive of Director. However, officers appointed are liable to serve anywhere in India and outside cannot be construed so liberally that other than the NIB, one could be posted. Had there been any intention there would have been certainly a statutory rule to the effect that between all autonomous organizations falling within the jurisdiction and controlled by the Central Government, there is inter transferability in absence of which we cannot add and subtract to Rule 11. An intent that the transfer referred to is transfer to any other place not even an office attached to NIB or a branch of NIB, the aforesaid liability of transfer on all India basis, in our considered view, has an object sought to be achieved with a reasonable nexus as a criteria under Article 14 of the Constitution, as in case of NIB getting into any collaboration or arrangement in furtherance to carry out the object of the place where the arrangement has been made may be treated as an attached office / part of the NIB and the person could be asked to serve there. This has also been inserted with a view that after contingency if establishing more offices of NIB all over India, persons are to be transferred in exigencies.
26. In the rules and Byelaws whatever has not been provided in the saving clause has to be inferred from the analogous Government of Indias order issued from time to time. In case of recruitment by deputation as per laid down methodology in DOPT OM of 17.11.2000, there is no provision that a person on deputation without his consent could be transferred to another department to which he had not consented as his borrowing department. It is relevant to quote the case of Jawaharlal Nehru Universitys case (supra) where in case of an employee on transfer of the center of Post Graduate Studies of Jawaharlal Nehru University to Manipur University, an automatic transfer without the consent has been ordered, which is deprecated on the ground that one could not be transferred without its consent notwithstanding any statutory provision.
27. No doubt, when power exists any act may not be nomenclatured as such within the plain language of the source of power, yet it would be valid. However, once there has been no power to transfer as pre-dominantly the procedure laid down by the DOPT for appointment in autonomous bodies as per 2006 and 1997 OMs ibid any transfer, pre-mature repatriation or entrusting additional duties, prior approval of ACC is must. In case of lateral shift of officers though working in Central Government requires approval of ACC. In case of additional charge arrangements, it shall also require an approval of ACC.
28. In the light of above, we do not find approval of ACC while the applicant was attached to ICMR. A different entity with a separate autonomy merely because Central Government being the appointing authority of Director and also the controlling authority through Ministry of Health & Family Welfare would not absolve them from seeking prior approval from ACC, as for one set of Institutes, i.e., NIB, the Central Government may act as an appointing authority but once the applicant is being deputed to another autonomous institute where the conditions of service are different and the duties attached to the post vary from the duties on which the applicant had been appointed, this would amount the act of the Government to interfere and infiltrate into the arena of extraneous issue and without jurisdiction. Once power does not exist within the for corners of the rules and statutes, whatsoever public interest or administrative exigencies involved without such power, an act dehors the rules would not assume the jurisdiction and the order would be nullity in law.
29. The Apex Court in Institute of Chartered Financial Analysts of India v. Council of the Institute of Chartered Accountants of India, (2007) 12 SCC 210 clearly ruled that when the statutory authority transgresses its jurisdiction, the decision making process is nullity in law.
30. What is permissible to be interfered in a policy decision is only the decision making process, as ruled by the Apex Court in Reliance Energy Limited & another v. Maharashtra State Road Development Corporation Limited & others, (2007) 8 SCC 1 that an act of the administrative authority amenable to be interfered when it suffers from illegality, irrationality and procedural impropriety.
31. The aforesaid law is well defined by the Apex Court in Ganesh Bank, Kurundwad Limited & others v. Union of India & others, (2006) 10 SCC 645 where the duty of the Courts is laid down to confine itself to the question of illegality, error in law, violation of principles of natural justice, unreasonable and unfair decision. Fairness is a sine qua non of administrative action and has to be tested on the touchstone of reasonableness.
32. In the above context, as per decision in N. Narasimahaiahs case (supra), an exercise of statutory powers has to be within the four corners of the statute.
33. In the above backdrop, the order passed by the official respondents assuming in law to be a valid exercise, it would not have been legal, except when the applicant as per Rule 11 of the rules, was transferred to ICMR. However, attachment of the applicant with ICMR without an order of transfer and further methodology as per the Government rules and posting of another person and direction to relinquish the charge and report to Director General, ICMR is in fact under the guise of an order to oust the applicant by curtailing his tenure as Director. No doubt, the services are not affected, yet the posting of the applicant as Director, NIB has been discharged.
34. The Apex Court has recently laid down the concept of naked discrimination in P. Venugopal v. Union of India, (2008) 5 SCC 1 to hold that before curtailing the tenure, one has to be accorded an opportunity to show cause and reasons must be recorded in support of the order.
35. Though the order attaching the applicant does not contain any reasons but on supplementing the reasons in the counter reply, the plea of the respondents is that the applicant had been involved in so many charges of misconduct. As such to save the organization set up, applicant has been posted, otherwise he would have been placed under suspension or even his tenure would have been curtailed on pre-mature repatriation. This plea, first of all, when does not find mention in the order, cannot be now supplemented in the counter reply, as ruled by the Apex Court in Hindustan Petroleum Corporation Ltd. v. Dairus Shapur Chenai & others, (2005) 7 SCC 627
36. We have seen the records. Insofar as the alleged misconduct of the applicant is concerned, except proceeding to Lucknow without approval, the alleged charges, which found basis of the attachment of the applicant with ICMR, have been introduced as an after-thought only in the counter reply for which neither any prior reasonable opportunity has been afforded nor has any explanation been sought from the applicant. This is a clear-cut violation of principles of natural justice.
37. Moreover, a detachment now shown as supported with other secondary document shows that it is the applicant who has been divested of the power of Director, NIB and has been made to work in ICMR for which his expertise would be of no avail. This is not in good public administration and such type of act when the prior consent of the applicant has not been sought is neither in the administrative exigencies nor in public interest.
38. Another aspect of the matter is that the Government servant is liable to be transferred, which cannot be interfered in judicial review. However, when the act is malafide in derogation of the statutory rules where insofar as the deputationist is concerned, there is no power to transfer the applicant outside the Institute or cadre. The transfer, even assuming it to be a transfer, the same cannot be exercised.
39. We have also seen the counter reply filed by the official respondents where in reply to para 5.5 of the OA, it is maintained that though clause 11 of the Rules prescribes eligibility of officers to serve anywhere in India or / and outside, there has been no formal transfer with its nuances and connotations in the case of the applicant. He has been temporarily re-located in exercise of the inherent powers in public interest to run the wheels of administration moving. This is very illogical and amounts to approbate reprobate simultaneously. On one hand, this has been reflected that the person is not transferred but simultaneously it is maintained that it is a temporary re-location, the power of which has not been traced either in the Byelaws or in the statutory rules. As such, being an administrative authority attachment with ICMR without transferring the applicant in its entirety is not in accordance with rules, would amount to exceeding the jurisdiction for which no power exists under the rules.
40. As regards disciplinary proceedings, the same are not surfaced as per the law against the applicant. However, nothing precluded the respondents to resort suspension of the applicant, as an employee of the Institute or even repatriation to the parent cadre would have been one of the modes to ensure smooth functioning of administration but to achieve that a methodology not approved in law cannot be resorted to. We do not approve & subscribe the view of the departmental authorities for which rules and law shall take its own course.
41. However, we have no hesitation to rule that the order passed by the official respondents attaching the applicant with ICMR is beyond the scope of rules and being an administrative authority, the act of the Government is not in consonance with law.
42. Resultantly, the OA is allowed. Order dated 29.8.2008 with regard to attachment of the applicant with ICMR is set aside. Respondents are directed to continue the applicant as Director, NIB forthwith, with all consequences in law. No costs.
43. Interim order dated 2.9.2008 passed by the Tribunal is made absolute.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/