Indian Council Of Agricultural ... vs Dinesh Chandra Mishra
2017 Latest Caselaw 4109 Del

$~
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+            W.P.(C) 4127/2015 & CM Nos.7490/2015, 8444/2015
                                     Reserved on: 16th February, 2017
%                                    Date of Decision: 11th August, 2017

      INDIAN COUNCIL OF AGRICULTURAL
      RESEARCH & ANR.                         .....Petitioners
                   Through: Mr. Gagan Mathur & Mr. Varun
                             Kumar, Advocates
                         Versus
      DINESH CHANDRA MISHRA                     .....Respondent
                  Through: Respondent in person

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA
      HON'BLE MR. JUSTICE CHANDER SHEKHAR
CHANDER SHEKHAR, J.

1. The petitioners, have preferred the present writ petition under Articles

226/227 of the Constitution of India, impugning the order dated 11.2.2015

passed by the Principal Bench of the Central Administrative Tribunal

(„Tribunal‟), New Delhi allowing OA No.2715/2014 filed by the

Respondent- Dinesh Chandra Mishra.

2. The respondent was initially appointed as a T-4(Senior Technical

Assistant) (Tissue Culture) in the pay scale of Rs.1640-60-2600-EB-75-

2900 in the National Bureau of Plant Genetic Resources („NBPGR‟), Pusa

Campus, New Delhi with effect from 29.3.1994. According to the Office

Memorandum dated 17.1.1994 issued by the Petitioners herein, it

specifically stated that though the respondent was offered the post at

NBPGR, New Delhi, he was liable to serve in any of the institute and/or

office of the Indian Council of Agricultural Research („ICAR‟) located

anywhere in India.

3. The respondent on 19.06.1997, on the expiry of the earlier project

was transferred/posted to Library, NBPGR, New Delhi with immediate

effect. On 19.10.1997, Respondent was transferred from Library to

Germplasm Evaluation Division [GED] at NBPGR, New Delhi. Thereafter,

on 22.06.1999 Respondent along with other Technical Staff was transferred

from Germplasm Evaluation Division [GED] at NBPGR, New Delhi to

Regional Station of NBPGR at Srinagar. On 22.06.1999, a representation

was made by the respondent which was not acceded to on account of

exigency of public interest as stated by the petitioners in their letter dated

08.07.1999. However, the respondent did not join his duties at Regional

Station, Srinagar but instead made another written request on 13.07.1999.

NBRGR in view of same, in partial modification of the order, transferred

the respondent to Regional Station, Thrissur in place of Regional Station,

Srinagar with immediate effect and relieved him on 14.07.1999. Respondent

did not join his duties at Thrissur during the years 1999-2000. Vide

application dated 21.08.2000, respondent cited domestic problems and

requested for cancellation of transfer to Regional Station at Thrissur.

Thereafter vide office order dated 30.08.2000, the petitioner No.2/NBPGR

sympathetically considering the domestic problems had deferred the

respondent‟s transfer to NBPGR, Regional Station at Thrissur and had

posted him in GED at NBPGR, New Delhi. Vide order dated 13.05.2013,

again on the request of the respondent, the respondent was transferred from

Germplasm Evaluation Division at NBPGR, New Delhi to Tissue Culture

and Cryopreservation Unit [TCCU] at NBPGR, New Delhi. Complaint

dated 28.05.2013 was received from Incharge of TCCU Division stating that

the respondent had misbehaved with the complainant [name withheld] and

disciplinary action be taken against him. On 29.05.2013, a fact finding

committee consisting of four members was constituted to examine 6

complaints against Shri D. C. Mishra forwarded by Officer Incharge,

TCCU, NBPGR, New Delhi. Committee submitted its report dated

05.06.2013 affirming that there was substance in the complaints.

4. Petitioner No.1 wrote a letter dated 15.09.2013 to petitioner No.2

stating that the respondent had sent a representation dated 02.09.2013 to the

Secretary, ICAR without routing it through the proper channel, which action

was viewed as gross indiscipline and a show cause notice for misconduct

under Rule 20(5) of the CCS(Conduct) Rules, 1965 was issued to the

respondent. On 05.11.2013, another complaint was received by petitioner

No.2 stating that the respondent came to the room of Sh.R.K.Tyagi Head of

Division of Germplasm Conservation, and had abused him. Vide office

order dated 08.11.2013 the respondent was suspended. The suspension was

subsequently revoked on 3/4.02.2014.

5. The respondent was served with the charge sheet containing 4 articles

of charge on 04.02.2014.

6. Letter dated 05.02.2014 was sent by Officer Incharge, TCCU

Division to the Senior Administrative Officer, requesting that the

respondent be transferred from TCCU as he has not undertaken, so far, any

work assigned at TCCU. The Officer Incharge, TCCU Division (name

withheld) sent a complaint dated 05.02.2014 to the SHO, Inderpuri, New

Delhi stating that the respondent came to her room, had shouted and

misbehaved with her, and therefore appropriate legal action under the Penal

Code should be initiated against the him for her safety. The NBPGR placed

the respondent under suspension with immediate effect from 5th February,

2014. NBPGR revoked the suspension of the respondent and vide office

order dated 02.08.2014 transferred him from NBPGR, Headquarter, New

Delhi to NBPGR, Regional Station, Srinagar. The Representation dated

02.08.2014 of the respondent seeking cancellation of transfer, and

representation dated 04.08.2014 that he be permitted to join duty at

NBPGR, Headquarter were not acceded to by the Competent Authority.

Thereafter, on 08.08.2014 the respondent instead of joining work at regional

station of NBPGR at Srinagar, filed an OA No. 2715/2014 before the

Tribunal.

7. The Tribunal vide order dated 18.09.2014 rejected the prayer for

interim relief seeking stay of transfer of the respondent holding that prima

facie there was no violation of any statutory provision or rules in the transfer

of the respondent, however, the respondent did not join at Srinagar. The

respondent against the aforesaid order filed a petition bearing W.P.(C) No.

7107/2014 in this court, against order dated 18.09.2014 which was

dismissed on 03.11.2014.

8. The Tribunal, however, later allowed OA No.2715/2014 of the

respondent on 11.02.2015, holding that the impugned transfer order dated

2.8.2014 has been passed for extraneous reasons and not to serve any public

interest or to meet any exigency of service. It was nothing but a penal

action. Accordingly, the transfer was quashed and set aside.

9. The petitioners, aggrieved by the aforesaid impugned order of the

Tribunal, dated 11.02.2015 have filed the present writ petition. It is stated

that the respondent was appointed with the specific provision and that as per

Clause 4 of the office memorandum dated 17.01.1994 the headquarters of

the respondent would be at NBFTCR, NBPGR, New Delhi for the present,

but he would be liable to serve in any institute and/or office of ICAR

located anywhere in India. The respondent accepted the aforesaid

memorandum and joined petitioner No.2.

10. It is the case of the petitioners that the respondent was transferred

vide order dated 22.6.1999 along with various other technical staff from

Germplasm Evaluation Division (GED) at NBPGR, New Delhi to Regional

Station of NBPGR at Srinagar. The representation made by the respondent

dated 22.6.1999 was duly considered, but was not acceded to on account of

exigency of public interest vide office order dated 8.7.1999. However, the

respondent, despite the above aforesaid order, did not join his duties at

Regional Station, Srinagar, but made a written request to the petitioners for

partial modification of the transfer order, thereby transferring him to

Thrissur, instead of Srinagar, but the respondent did not join his duties at

Thrissur. Vide an application dated 21.08.2000, the respondent, citing

domestic problems, requested for cancelling the transfer to Regional Station

at Thrissur. Petitioner No.2, vide office order dated 31.08.2000, considering

the domestic problems of the respondent, sympathetically deferred the

transfer of the respondent to NBPGR, Regional Station at Thrissur and

posted him in Germplasm Evaluation Division at NBPGR, New Delhi.

Again, on the request of the respondent, the petitioner No.2, vide office

order dated 13.05.2013, transferred the respondent from Germplasm

Evaluation Division at NBPGR, New Delhi to Tissue Culture &

Cryopreservation Unit [TCCU] at NBPGR, New Delhi.

11. The petitioners further state that the transfer of the respondent was

made with a view to give him an opportunity to work independently and in

pursuance of the requirements for establishing a Clonal Repository of

temperate crops at the Central Institute of Temperate Horticulture, Srinagar

in collaboration with the Regional Station, NBPGR, Srinagar. The Clonal

Repository would be under the TCCU Division and would undertake

regeneration of clonal materials for distribution and research in improved

methods of collection, evaluation, propagation, preservation and distribution

in public interest for the smooth functioning of the TCCU Division of

NBPGR at New Delhi and Regional Station of NBPGR at Srinagar. The

respondent, instead of joining at Regional Station of NBPGR at Srinagar,

filed OA No. 2715/2014 before the Tribunal.

12. The respondent has relied upon the impugned order of the Tribunal

and submitted that his transfer was not in public interest or due to exigency

of service but was a penal and punitive action passed for extraneous reasons.

13. We have perused the entire record, including the pleadings of the

parties and the documents placed on record, as well as the impugned

transfer order which was passed by the Petitioners on 2.8.2014, which has

been set aside and quashed by the Tribunal. The impugned order was passed

almost two years and ten months back. It was therefore pleaded that no

useful purpose will be served while setting aside or disturbing the impugned

order of the Tribunal. However, we would clarify that transfers are

incidences of service and a grievance cannot be made if a transfer order is

passed on administrative grounds and as per law. The order would be valid,

unless arbitrariness or mala fides or another stigma such as bias is made out,

or if it contravened any statutory provision.

14. In the context of transfer of a government servant, we may refer to the

judgment in the matter of N.K. Singh v. Union of India, AIR 1995 SC 423,

holding as under:

"....Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subjects to the limited judicial scrutiny indicated."

15. In Airports Authority of India v. Rajeev Ratan Pandey, 2009(8) SCC

337, it has been held as under:

"In a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer."

16. In Registrar General, High Court of Judicature at Madras v. R.

Perachi, AIR 2012 SC 232, it was held that "In the present case the pay,

position and seniority of the first respondent was not affected by the

impugned transfer, and therefore, the same could not be said to be punitive

merely because his promotional chances got affected due to the transfer.

Hence, there was no question of providing him any opportunity of hearing

at that stage before affecting the transfer, and the order of transfer could

not be faulted on that count as well." It was further held that "No

observations were made against him, nor was any stigma attached."

17. In P.K. Chinnasamy v. Government of Tamil Nadu & Ors., (1987) 4

SCC 601, it has been held as under:

"4. In a democratic polity as ours, the bureaucracy works as the pivot for running the administration. So far as the State is concerned, matters of policy and the ultimate responsibility for running the administration is obviously on the apex body-the Council of Ministers and the Executive Head-the Governor. It cannot be lost sight of that every public officer is a trustee and in respect of the office he holds and the salary and other benefits which he draws, he is obliged to render appropriate service to the State. The scheme postulates that every public officer has to be given some posting commensurate to his status and circumstances should be so created that he would be functioning so as to render commensurate service in lieu of the benefits received by him from the State. If an officer does not behave as required of him under the law he is certainly liable to be punished in accordance with law but it would ordinarily not be

appropriate to continue an officer against a post and provide no work to him and yet pay him out of the Consolidated Fund."

18. In Union of India & Ors. v. Sri Janardhan Debanath & Anr., (2004)

4 SCC 245, it was held as under:

"9. ....No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned.

The manner, nature and extent of exercise to be undertaken by Courts/Tribunal in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions-status, service prospects financially and same yardsticks, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward

administrative exigencies to ensure smooth functioning of the administration."

19. In National Hydroelectric Power v. Shri Bhagwan, [(2001) 8 SCC

574], the Supreme Court held thus:

"5. ....It is by now well-settled and often reiterated by this Court that no Government servant or employee of public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned."

20. In Govt. of AP v. G. Venkata Ratnam,(2008) 9 SSC 345 ,decided on

21.7.2008, it was held thus:

"8. ....The Court then purports to remind itself that transfer is an incidence of service and is not to be lightly interfered with. It proceeds to elaborate that this judicial policy is based on two reasons, one the continuance of an employee of the State Government at one particular place for a long time is likely to create undesirable consequences like creation of vested interests and misuse of the power that comes with the employment under the State and the other being the exigencies of the administration requiring the service of a particular person at a particular place."

21. Interestingly, the respondent in his original application has stated that

he was ready to accept transfer if the same was passed following the service

rules and had taken into consideration his areas of specialization. Thus, the

contention of the respondent that he cannot be transferred, or he has been in

Delhi for the last 20 years, or others have not been transferred and only

those recruited through Agricultural Research Scientists Recruitment Board

can be transferred, is untenable and misconceived. The service is

transferable. It is a different matter that the respondent or others may not

have been transferred.

22. The Tribunal in the impugned order has referred to the factual matrix

and on perusal of the departmental file concluded that the transfer in

question was nothing but a penal action and not in public interest or due to

exigency of service. The transfer order was passed simultaneously with the

revocation of the suspension on 2nd August, 2014, and, therefore was

punitive in nature. The impugned order records that the respondent was

issued charge-sheet on 4th February, 2014. Further, the contention was that

the transfer of the respondent to Srinagar, a far off place, where there was no

post of Senior Technical Assistant (Tissue Culture) was not justified.

23. After the writ petition was filed and notice was issued, the petitioners

were asked to obtain instructions as to whether the respondent could be

posted in any of the divisions in the headquarters in Delhi. This request was

not found to be feasible and was rejected. The contention of the respondent

was that the Regional Station, Srinagar does not have any post or position in

the laboratory to accommodate him. The petitioners have however,

contested the said contention stating that in the meeting held with all the

heads of the division and other Officers-in-Charge of the Units on 27th May,

2014, the matter was discussed and a decision was taken regarding

development of Clonal Repository of temperate fruits at Srinagar.

24. Be that as it may, we find that the transfer order was passed on 2 nd

August, 2014, almost 3 years back. While allowing the present writ petition,

we would call upon the petitioners to have a fresh look and examine whether

or not the respondent is required to be posted in terms of the order dated 2 nd

August, 2014, or the respondent could be posted to any location, depending

upon exigency, administrative requirement and keeping in mind the

qualification and area of work of the respondent. In other words, we expect

that the petitioners would pass a fresh posting order, as deemed appropriate

and proper.

25. With the aforesaid observations and directions, the writ petition is

allowed and the impugned order dated 11th February, 2015 is quashed. OA

No.2715/2014 filed by the respondent would be treated as dismissed. In the

facts and circumstances of the case, there would be no order as to costs.

26. Accordingly the writ petition is disposed of, with no order as to costs.

CM Nos.7490/2015 and 8444/2015 are also disposed of.

(CHANDER SHEKHAR) JUDGE

(SANJIV KHANNA) JUDGE 11th AUGUST , 2017 tp