Dr. (Mrs.) Mercy Helen vs Indian Council Of Philosophical ...
2010 Latest Caselaw 817 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C.) No. 7369/2009

                                 Judgment Reserved on: 03.02.2010

%                               Judgment Delivered on: 11.02.2010


#     Dr. (Mrs.) Mercy Helen
                                                           ..... Petitioner

!                          Through: Mr. M.C. Dhingra, Advocate.

                                   Versus

$     Indian Council of Philosophical Research and Others
                                               .....Respondents

^                          Through: Mr. K.C. Mittal, Advocate.


CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1.    Whether reporters of Local paper may be allowed to see
      the judgment? YES
2.    To be referred to the reporter or not? YES
3.    Whether the judgment should be reported in the
      Digest? YES

S.N.AGGARWAL, J
      Aggrieved by her transfer from Delhi to Lucknow, the petitioner has

filed this writ petition seeking quashing of her transfer order dated

01.12.2008. The operation of the impugned transfer order was stayed by

this Court vide interim order dated 06.03.2009 and the said interim order

is continuing till date.

2.    The petitioner was appointed as Director (Planning & Research)

with Indian Council of Philosophical Research (in short 'the Council') vide

appointment letter dated 13.05.2003 with a stipulation that she may be

required to serve in any office of the Council anywhere in the country.


W.P.(C.) No. 7369/2009                                     Page 1 of 15
 Her initial posting, however, was at New Delhi. In December 2004, she

was given the additional charge of the post of Director (Administration &

Finance) and was later on given further additional charge of Member-

Secretary also.   The additional charge of Member-Secretary remained

with her till 13.10.2007 when Member-Secretary of respondent No. 1

Council was appointed.     She was relieved of the additional charge of

Director (Administration & Finance) w.e.f. 23.01.2008 upon appointment

of Dr. Surendra Kumar as Director (Administration & Finance). Now, vide

impugned transfer order dated 01.12.2008, she has been transferred as

Director, Academic Centre of respondent No. 1 Council at Lucknow. She,

aggrieved by her said transfer, has challenged the impugned transfer

order inter alia on the following grounds:

   (i) She has been transferred to a non-existent post because there is no

      post of 'Director, Academic Centre' in the respondent No. 1 Council;

   (ii) She having been recruited for and appointed to the post of 'Director

      (Planning & Research)' could not have been moved to some other

      post, i.e., 'Director, Academic Centre';

   (iii)There are no rules, regulations or policy of transfer in the

      respondent No. 1 Council;

   (iv)The Chairman and Member-Secretary of the Council have personal

      vendetta and a prejudice against her and want her out of their way

      so that they could promote Shri Vimal Kumar Jaggi as Private

      Secretary; and

   (v) There was no compelling reason for posting the only female

      Director rank officer to Lucknow, more so, when male officers were

      also available and it was known to the respondents that the

      petitioner is herself ailing, she has a school going daughter and an



W.P.(C.) No. 7369/2009                                      Page 2 of 15
       ailing husband.

3.    In response to this writ petition, Mr. Godabarisha Mishra, Member-

Secretary, Indian Council of Philosophical Research at New Delhi has filed

counter affidavit on behalf of the respondents.       It is stated that the

petitioner has not approached the Court with clean hands and has wilfully

and knowingly distorted and misrepresented the facts. The respondents

have stated in their counter affidavit that the petitioner under the rules &

regulations of the Indian Council of Philosophical Research (ICPR) is liable

to be transferred anywhere in the country and is liable and obliged to

serve the respondents in any of the offices whether Lucknow or any other

part of the country. The transfer of the petitioner is stated to have been

effected in the administrative exigencies as the Academic Centre at

Lucknow is meant to undertake multifarious activities and provides a high

level academic atmosphere.      It is denied that the petitioner has been

transferred to a non-existing post, as alleged in the writ petition. It is

stated that a Director looked after the affairs of the Centre at Lucknow

until 2005 when he was transferred to New Delhi office.         The Indian

Council of Philosophical Research (ICPR) is stated to be one organisation

and the Academic Centre situated at Lucknow is stated to be its integral

part. The ICPR currently had three Directors in the same scale of pay and

privileges and they are designated as Director (Administration &

Finance), Director (Planning & Research) and Director (Academic). These

Directors have been assigned different responsibilities for administrative

reasons and convenience.       Any of the Directors could be asked to

function from the Academic Centre in Lucknow, if the exigency of service

and public interest so warrants.      The respondents have stated that

Dr.Arun Mishra, Director (Academic) was functioning from the Academic



W.P.(C.) No. 7369/2009                                      Page 3 of 15
 Centre in Lucknow.       The Director posted at Lucknow, in addition to

his/her assigned responsibilities, also acts as the Administrative Head of

the Academic Centre by virtue of seniority and is, therefore, appended

the designation of the Director of the Academic Centre. The respondents

have explained the reasons in their counter affidavit that compelled them

to transfer the petitioner from Delhi to its Academic Centre at Lucknow

The reasons that weighed with the respondents to transfer the petitioner

at its Academic Centre at Lucknow were that she is the senior most

among the three Directors and that she had acted earlier as Director

(Administration & Finance) and also looked after the work of the Member-

Secretary, when that post was vacant. The other reason for transfer of

the petitioner to Lucknow was that she had earlier served at Lucknow as

Programme Officer of the ICPR at its Academic Centre.         For all these

reasons, the respondents felt that the petitioner would be more suitable

and would be able to re-locate the Academic Centre in the newly

acquired building and would help to plan and build a new campus than

the other Directors.     The respondents have denied that the impugned

transfer is on account of any malafide much less as alleged by the

petitioner in her petition. They have also disputed the personal medical

grounds set up by the petitioner to stall her impugned transfer.        The

respondents have submitted that the impugned transfer of the petitioner

is in the administrative exigencies and in the best interest of the ICPR

and they have, therefore, prayed for the dismissal of the present writ

petition.

4.    The petitioner has filed her rejoinder to the counter affidavit of the

respondents and in her rejoinder, she has denied the averments made by

the respondents in their counter affidavit and in reply thereto, she has



W.P.(C.) No. 7369/2009                                      Page 4 of 15
 reiterated and reasserted her pleadings contained in her petition as

correct.   She has reasserted her prayer for quashing of the impugned

transfer order.

5.    I have heard Mr. M.C. Dhingra, learned counsel who appeared on

behalf of the petitioner and also Mr. K.C. Mittal, who appeared on behalf

of the respondents. I have also perused their written arguments and also

the entire material available on record.

6.    The main plank of arguments of Mr. Dhingra, who appeared on

behalf of the petitioner, was that the post of Director (Planning &

Research), to which the petitioner was appointed, is not interchangeable

with the post of Director (Academic) and, therefore, according to him, the

transfer of the petitioner as Director, Academic Centre at Lucknow, is

against a non-existent post. This argument was countered by Mr. Mittal,

appearing on behalf of the respondents, stating that there are three

posts of Director in the Council and they are described as Director

(Planning & Research), Director (Academic) and Director (Administration

& Finance) only for the sake of administrative convenience. According to

Mr. Mittal, there are two substantive posts of Director and one post of

Director (Administration & Finance) under the recruitment rules of the

Council.   He contended that in the face of the recruitment rules, the

petitioner should not be allowed to take any advantage on account of

any confusion created by her because of the nomenclature namely

Director (Planning & Research) and Director (Academic).

7.    In view of the above rival submissions made by the counsel for the

parties on the point of nomenclature of the three posts of Directors in

ICPR (respondent No. 1 herein), the first and the foremost question that

arises for consideration is whether the three posts of Directors, described



W.P.(C.) No. 7369/2009                                     Page 5 of 15
 as Director (Planning & Research), Director (Academic) and Director

(Administration & Finance), are independent to each other and if so,

whether an incumbent manning any of these three posts can be assigned

the additional responsibilities of the other two posts.

8.    The Respondent No. 1 Council is a Government society registered

under the Societies Registration Act, 1860.      The said Council has laid

down service regulations known as ICPR Service Regulations, 1991. The

schedule appended to these regulations specifies the posts which existed

in the Council.   The said schedule mentions three Director level posts,

namely (i) Director (Administration & Finance), (ii) Director (Planning &

Research) and (iii) Director (Academic).          On account of the said

nomenclature given to these three Director level posts in the Schedule,

the petitioner has tried to create a confusion that these three posts are

independent of each other and a person appointed against any one of

these three posts cannot be transferred to either of the other two posts.

In order to appreciate the rival contentions of the counsel for the parties

and also to ascertain the factual position, this Court vide its order dated

01.02.2010 directed the respondents to state on affidavit the details of all

the incumbents selected by them to the three posts of Directors with

particulars of their posting from time to time after joining of service.

They were also directed to produce the original record before the Court

for its perusal on the next date. Pursuant thereto, the Member-Secretary

of the respondent No. 1 Council has filed his affidavit on 02.02.2010 in

which he has given the details of the persons appointed to the three

posts of Directors in the Council from time to time. The original record

was also produced before the Court and was perused by me.

9.    As per affidavit filed by the Member-Secretary pursuant to Court



W.P.(C.) No. 7369/2009                                      Page 6 of 15
 order dated 01.02.2010, there is an Academic Centre of the Council at

Lucknow, which is to be headed by a Director and not by a Director

(Academic).          There is no post of Director (Academic) under the

recruitment rules, which is clear from the Annual Reports of the Council

from 1984-85 to 1988-89 annexed with the said affidavit. There is no

post of Director (Planning & Research) and Director (Academic) under the

recruitment rules but they are being so described only because of

administrative convenience.            The Selection Committee for the post of

Director (Academic), Director (Planning & Research) and Director

(Administration & Finance) held interviews on July 5-7, 2002 and

recommended appointment of the following:

       (i) Dr. V. Raman for the post of Director (Academic);

       (ii) Dr. Mercy Helen for the post of Director (P&R); and

       (iii)Shri M.P. Gupta for the post of Director (A&F).

Since the above posts remained vacant from the year 1999, the Ministry

of Human Resource Development was approached by the Council for

revival of these posts, for which approval was given vide Ministry's letter

No.F.4-17/2002-U.3 dated 06.05.2003, contents of which are extracted

below:

"
                                      No.F4-17/2002-U.3
                                     Government of India
                         Ministry of Human Resource Development
                       Department of Secondary & Higher Educational
                                            *****

Shastri Bhawan, New Delhi.

6th May 2003 To Prof. R C Pradhan, Member Secretary, Indian Council of Philosophical Research, 36, Tughlakabad Institutional Area, M.B. Road, Near Batra Hospital, New Delhi - 110 062.

Subject:- ICPR, New Delhi - Proposal for revival of three posts of Director.

Sir, I am directed to refer to your letter No.8-5/2002-02/(A&F)ICPR dated 6 th August

2002 on the above subject and to say that the proposal for revival of three posts of Director in ICPR has been considered in consultation with Ministry of Finance. The proposal has been agreed to subject to fulfillment of following conditions by ICPR:-

(i) Surrender of five existing posts {Programme Officer (1), Assistant (1), UDC (1) and Junior Stenographer (2)} with immediate effect and surrender of three more posts by 2006 as and when three incumbents of non academic posts vacate their posts due to retirement/resignation.

(ii) To achieve the desired ratio between academic and non-academic staff in phased manner by abolishing 75% of non-academic posts falling vacant in a year till the desired ratio is achieved as recommended by ERC.

2. ICPR is requested to furnish an action taken report in this regard to this Ministry.

Yours faithfully, Sd/-

(S N Burman) Director Tel.23070837"

10. After the revival of the above three posts of Director in the Council,

the petitioner Dr. Mercy Helen had joined as Director (Planning &

Research) on 13.05.2003.

11. The vacant posts of Director were again advertised in 2003 and the

Selection Committee which met during March 23-25, 2004 selected the

following two persons:

(i) Dr. Arun Mishra, Director (Academic);

(ii) Sh. P.S. Patil, Director (A&F) on deputation.

12. On the basis of the decision of the Selection Committee, the letter

of appointment was issued to Dr. Arun Mishra and Shri P.S. Patil for the

appointment of Director (Academic) and Director (A&F) respectively on

March 29, 2004. As per the appointment letter, both of them were

posted at Delhi only. Shri P.S. Patil, who joined as Director (A&F) on

30.04.2004, left the Council on 27.12.2004 to join his parent organisation

on repatriation in public interest. Dr. Arun Mishra joined the Council on

02.04.2004 and is still continuing in the same position. Dr. A.K.

Mukhopadhyaya, Programme Officer, was in-charge of the Academic

Centre at Lucknow during the period from 1990 till his death, i.e.,

29.11.2005 except from 18.09.1998 to 07.07.1999 when Dr. Kanchan

Saxena working in the post of Director, Academic Centre was holding the

post of Director (Academic) on deputation and she repatriated to her

parent department on 07.07.1989. Dr. Arun Mishra, Director (Academic)

was temporarily transferred to Lucknow during 14.02.2006 to 12.05.2006

to take up the responsibility of shifting the Academic Centre office and

library in the newly rented building in PCF Building at Lucknow as the

Butler Palace was vacated. He was called back vide office order dated

12.05.2006 to ICPR Office, New Delhi.

13. Dr. Mercy Helen, Director (Planning & Research) was given

additional responsibility of Director (Administration & Finance) w.e.f.

December 2004 after the repatriation of Shri P.S. Patil, Director

(Administration & Finance) and this additional charge remained with her

up to January 2008 when Dr. Surinder Kumar joined as Director

(Administration & Finance) on permanent basis. Dr.Surinder Kumar

resigned from the Council and was relieved of his duties w.e.f.

01.06.2009. Dr. Arun Mishra, Director (Academic) is holding additional

charge of Director (Administration & Finance) from 01.06.2009 till date.

14 From the above, it is clear that the petitioner who was appointed as

Director (Planning & Research) also held the additional charge of the post

of Director (Administration & Finance) for a considerable time from

December 2004 till January 2008. Even Dr. Arun Mishra who was

appointed as Director (Academic) has been given additional charge of

Director (Administration & Finance) from 01.06.2009 till date. All this

goes to show that there was no embargo on an incumbent appointed with

a particular designation either as Director (Planning & Research) or

Director (Administration & Finance) or Director (Academic) to hold the

charge of the post of other two Directors mentioned above. In fact, a

perusal of the approval letter of the Ministry dated 06.05.2003, by which

three posts of Director in the Council were revived (extracted above),

shows that in fact, there are three posts of Director in the respondent No.

1 Council and the nomenclature given to them as Director (Planning &

Research), Director (Academic) or Director (Administration & Finance) is

only for administrative and official convenience. This conclusion is also

strengthened from the contents under the heading 'Organisational Set-

up' given in the Annual Reports of respondent No. 1 Council for the years

1984-85 to 2007-08 on record. It shall further be significant to mention

that the Government got a work measurement study of respondent No. 1

Council conducted by Staff Inspection Unit on or around 2003-04 and the

copy of the report of the Staff Inspection Unit dated 12.10.2004 is at

page 171 of the paper book. The consolidated statement of existing

functional and assessed strength of respondent No. 1 Council is annexed

with the said report of Staff Inspection Unit as Annexure IV at page 186

and a perusal of the same shows only the posts of Director without any

classification of them either as Director (Planning & Research) or Director

(Academic). The petitioner herself has annexed the recruitment rules

applicable to these three Director level posts which are at pages 50-51 of

the paper book and a perusal of the same shows that recruitment rules

are made by the Council only for recruitment to the post of Director and

not for Director (Planning & Research) or Director (Academic). Under the

circumstances, it cannot be said that the post of Director (Planning &

Research) and that of Director (Academic) are independent and

substantive posts or that incumbent appointed to any one of these two

posts cannot be assigned the responsibilities of the other post. Hence, I

do not find any merit in the argument of Mr.Dhingra, who appeared on

behalf of the petitioner, that the transfer of the petitioner from Delhi to

Lucknow is against a non-existent post. In fact, the petitioner holding the

post of Director (Planning & Research) vide impugned transfer order has

been entrusted with the responsibility of restructuring, planning &

developing the Academic Centre of the Council at Lucknow and to head

the said Centre.

15. I also do not find any merit in the argument of counsel who

appeared on behalf of the petitioner that the impugned transfer of the

petitioner is arbitrary and illegal as there are no rules, regulations or

policy on transfer. The appointment of the petitioner as Director

(Planning & Research) vide appointment letter dated 13.05.2003

stipulates that she may be required to work in the office of the Council

anywhere in the country. The respondents were well within their right to

transfer the petitioner as per terms & conditions contained in her

appointment letter. The law is well-settled that the transfer of a public

servant from one place to another is made in the exigency of service and

should not be interfered with by the Courts unless they are shown to be

incompetent in the sense that the authority issuing the order has no

jurisdiction to do so or found to be vitiated by malafides or extraneous

considerations.

16. In State of U.P. & Others Vs. Gobardhan Lal, (2004) 11 SCC 402, it

was held by the Hon'ble Supreme Court that transfer is the prerogative of

the authorities concerned and Court should not normally interfere in such

transfers. It was further held in the said case that the allegations of

malafides must be based on concrete material and must inspire the

confidence of the Court. The same view was taken by the Hon'ble

Supreme Court in Kendriya Vidyalaya Sangathan Vs. Damodar Prasad

Pandey & Others, (2004) 12 SCC 299, wherein it was held that transfer is

an incidence of service, who should be transferred and where is a matter

for the authority to decide.

17. In the present case, the petitioner has alleged malafides against

the Chairman and Member-Secretary of respondent No. 1 Council in

transferring her from Delhi to Lucknow vide impugned transfer order.

Mr.Dhingra, learned counsel who appeared on behalf of the petitioner,

had argued that the petitioner has been transferred from Delhi to

Lucknow because she had refused to oblige the Chairman of the Counsel

to select and appoint Shri Vimal Kumar Jaggi as his Private Secretary

ignoring the recruitment rules meant for the said post. The learned

counsel had pointed out that since the petitioner did not want to

succumb to the pressure of the Chairman, she had recused herself from

the Screening Committee on personal grounds as per note dated

27.08.2008 and this, according to him, prompted the respondents to

transfer her out of Delhi as a personal vendetta. This argument is

countered by Mr.Mittal, counsel on behalf of the respondents, who

submitted that there was absolutely no pressure from the respondents on

the petitioner and, according to him, the allegations of malafide made by

her are totally afterthought and false. He pointed out that in terms of

ICPR Recruitment Rules, 1991, there is no provision for Screening

Committee for the post of Private Secretary but in order to scrutinise the

applications and to shortlist the candidates, it was a usual practice to

appoint a Screening Committee which consist of officers from the

Ministry, ICPR or even outside. Dr. Surinder Kumar in his note dated

19.08.2008 proposed the name of Shri Devender Kumar, Under

Secretary, Ministry of HRD and Shri Desh Raj, Under Secretary, Ministry of

HRD as members of the Screening Committee. However, Mr.Godabarisha

Mishra constituted the Screening Committee comprising of Dr. Surinder

Kumar, Director (Administration & Finance) and the petitioner Dr. Mercy

Helen, Director (Planning & Research) for scrutinizing the applications for

the post of Private Secretary vide note dated 19.08.2008. At that time,

the petitioner was not working as Director (Administration & Finance). It

was submitted that since there was dispute regarding eligibility of Shri

Vimal Kumar Jaggi for his appointment as Private Secretary, legal opinion

was sought by the Department from Shri Rajiv Sharma, Advocate, who

vide his letter dated 12.08.2008 gave opinion that the query regarding

qualification and eligibility of Shri Vimal Kumar Jaggi may be addressed to

the UGC and consequently the Member-Secretary put a note dated

24.08.2008 (at page 313 of the paper book) which reads as under:

"Pending the reply from the Ministry and UGC, Shri Jaggi

may be short listed for the interview."

The allegation of malafide made by the petitioner against the Chairman

does not appear to be convincing and appears to be imaginary and an

afterthought and seems to have been made by her to stall the impugned

transfer order. The petitioner is a highly placed officer working in

respondent No. 1 Council. She, as per her own, had recused from the

Screening Committee on her personal grounds on 27.08.2008. The

impugned transfer order was passed by the respondents after about four

months thereafter. In case, there was any truth in the assertion of the

petitioner that she was pressurized by the Chairman to appoint Shri Jaggi

as Private Secretary, then she must have raised a protest in black &

white during the time that elapsed between the date of her recusing, i.e.,

27.08.2008 and the date of her transfer, i.e., 01.12.2008. Till she was

transferred vide impugned transfer order, she had no complaint of any

kind either against the Chairman or the Member-Secretary. In fact, prior

to her impugned transfer, she was given additional responsibilities not

only of the post of Director (Administration & Finance) but also of the

Member-Secretary of the Council and was declared Head of the Office

also. This shows that the respondents have been acknowledging and

appreciating the good work of the petitioner from time to time and have

transferred her to Lucknow in extreme administrative exigencies and in

the interest of respondent No. 1 Council as it wanted to reconstruct, plan

and develop its Academic Centre at Lucknow which was virtually lying

closed since 2005. On the basis of material that has been placed on

record, it cannot be said that the transfer of the petitioner was on

account of any malafide or extraneous consideration.

18. There is also no merit in the case of the petitioner that she should

not have been transferred to Lucknow as she and her husband are ailing

and that her daughter is a school going child and had to appear for Board

examination. It is a matter of record that immediately on receiving the

impugned transfer order, the petitioner went on medical leave for 74

days and when she was declared medically fit, she applied for Earned

Leave on medical grounds. However, immediately on getting stay of

impugned transfer from this Court, she re-joined her duties with the

respondent No. 1 and is stated to be attending the office regularly. This

shows that she had applied for Earned Leave on medical grounds only to

avoid her impugned transfer. The ground cited by her in her Earned

Leave application disappeared as she rejoined the duties as soon as the

stay order against impugned transfer was given by this Court. If the

petitioner is healthy to attend duty in the New Delhi office of the ICPR,

the respondents have every reason to believe and presume that her

health condition is not a valid reason for her not joining as Director at

Lucknow. The real reason appears to be that she does not want to move

to Lucknow. The other reason given by the petitioner against the

impugned transfer is that her daughter is in school and her husband is

chronically ill, is also not a good reason for interfering with the impugned

transfer order. Lucknow, where she has been transferred, has excellent

schools and other facilities she need to pursue her studies. The condition

of the husband of the petitioner is unlikely to change whether he is in

Delhi or Lucknow. The petitioner had joined the service with respondent

No. 1 Council with eyes wide open that her service was transferable

anywhere in the country and now when she has been transferred, she

cannot be allowed to stall the said transfer on the ground of her personal

convenience. Her transfer from Delhi to Lucknow appears to be in the

interest of the institution and, therefore, cannot be interfered with by the

Court in the present proceedings.

19. In view of the foregoing and having regard to the facts and

circumstances of the present case, I do not find any merit in the

challenge to the impugned transfer order made by the petitioner in the

present writ petition. This writ petition, therefore, fails and is hereby

dismissed but with no order as to costs. The interim order granted by

this Court on 06.03.2009 is vacated.

FEBRUARY 11, 2010                                      S.N.AGGARWAL
'BSR'                                                     [JUDGE]