Transfer order quashed /HON’BLE MR M. SWAMINATHAN JUDICIAL MEMBER /Adv MRavi/

CENTRAL ADMINISTRATIVE TRIBUNAL

CHENNAI BENCH

OA/310/00736/2023

Dated this 7th day of May, Two Thousand Twenty Four

CORAM :

HON’BLE MR M. SWAMINATHAN JUDICIAL MEMBER

K. Vasudevan,
S/o M.V. Krishnamoorthy,
Administrative Officer,
Central Council for Research in Siddha,
Tambaram Sanitorium,
GST Road, Chennai. .. Applicant

By Advocate M/s M. Ravi

Vs.

1. Union of India Ministry of Ayush rep by Secretary to Govt of India, Ayush Bhawan, B Block, GPO Complex, INA Market, New Delh.

2.The Director General (Addl. Charge),
Central Council for Research in Siddha, GST Road, Sanitorium, Tambaram, Chennai.

3.Tmt. Meenakumari,
The Director General (Addl. Charge),
Central Council for Research in Siddha,
GST Road, Sanitorium,
Tambaram, Chennai. .. Respondents

By Advocate Mr. Su. Srinivasan, SCGSC

ORDER

 (Pronounced by  Hon'ble Mr. M. Swaminathan, Judicial Member) 

 The applicant has filed the OA under Section 19 of the Administrative 

Tribunals Act, 1985 seeking the following relief:-
“ to call for the records on the file of the 2nd respondent herein in Office Order No.161/2023-24 in Proceedings F.No.1-1/2022023/DG/CCRS dated 05.08.2023 and Relieving order in Office Order No.163/2023-24 in Proceedings F.No.1.1/2022-23/DG-CCRS dated 07.08.2023 and quash the same and to direct the 2nd respondent herein to permit the applicant to continue as Administrative Officer at CCRS, Head Quarters, Chennai and refrain from causing any further harassment to the applicant herein and pass such further or other orders as this Hon’ble Tribunal deems fit and thus render justice.”

2. Brief facts of the case, as submitted by the applicant, are as under: The applicant submits that he was transferred and posted as Administrative Officer from Puducherry to the CCRS Head Quarters at Chennai only under the approval of the Secretary to Government of India, Ministry of Ayush and he joined the present station only on 31.12.2021 AN. He further submits that the current Director General, holding additional charge, lacks authority to transfer him to Bangalore, where there’s no sanctioned Administrative Officer post. Also the transfer along with the post could be done only by the 1st respondent as such the 2nd /3rd respondent do not have any power authority or jurisdiction to issue the impugned order of transfer to the applicant herein who is already Pay level 11 with grade pay of Rs.6600/-. That apart the order of transfer as such is nothing but an measure of victimisation against the applicant was left with no other option other than registering a detailed complaint against the 2nd/3rd respondent for her administrative and financial irregularities and illegalities dated 06.03.2023 and 08.03.2023 to the Chief Vigilance Officer, Ministry of Ayush as well as to the 1st respondent herein. The order is also purely punitive in nature which is barred by the ratio laid down by the Hon’ble Supreme Court of India in Union of India Vs. Somesh Tiwari. That apart, while a person holding charge in the post of Director General is not empowered to issue the impugned order herein. The coercive action also is also sought to be taken by the 2nd and 3rd respondent against the applicant and as such there is no other option for the applicant other than to approach this Temple of Justice for speedy and appropriate remedy. The impugned order itself shows the 2nd /3rd respondent herself is the complainant against the applicant which is nothing but an offshoot of the complaint registered by the applicant against her and as such even on this ground the 2nd/3rd respondent cannot be judge for his own cause and only upto the 1st respondent to decide on these issues. As such, the impugned order is liable to be set aside not only for want of competency and authority but also on the ground of malice in law.
3. The learned counsel for the applicant contended that the premises quoted under 48(6), 48(14) and the Rule 9 of the rotation transfer policy is also not at all applicable for the respondents to invoke an order of transfer. It is submitted by the applicant that the 2nd respondent do not have power to invoke the first premise under Clause 48(6) of the Bye-laws. In regard to the 2nd premise under Clause 48(6) i.e. transfer in public interest while an enquiry is in progress. In the instant case, no Charge Memo has been issued against the applicant till the date of the impugned orders and as such there is no enquiry in progress to invoke the said clause.
4. The learned counsel further contended that Clause 48(14) mentioned in the impugned order dated .05.08.2023 is also not equally applicable in
   the case of the applicant. He also quoted said clause which reads as follows:
   “In case of transfer on the basis of complaints against any incumbent alleging moral turpitude, financial embezzlement and indiscipline, the Director General shall personally satisfy himself about the need for such a transfer after making a preliminary enquiry.”

The above clause ought not to have been invoked by the 2nd respondents as the impugned orders of transfer are not mere transfer of a person alone but the impugned orders are noting but order of transfer of the applicant along with the post and hence the said clause has been wrongly quoted by the respondents. He also argued that even on the basis of complaint against any incumbent, the transfer order cannot be issued straight away, the Director General shall have to personally satisfy himself about the need for such a transfer after making the preliminary enquiry. In order to avoid unjustified, punitive orders of transfer, a safety net has been provided in the Bye-laws.

5. The learned counsel for the applicant submitted that in the present case, the 2nd respondent herself who is the complainant and hence by giving a go by to the safeguard, the 2nd respondent has converted herself to be the Judge of her own cause which is impermissible in law. It is settled legal provision that nobody can be a Judge of his own cause. Thus clause 48 (14) cannot be invoked in the case on hand as the impugned order is nothing but a transfer of the applicant along with post, even otherwise the 2nd respondent has not reported to any higher authority and such higher authority has made a preliminary enquiry to invoke 48 (14). He further contended that the 2nd respondent, who issued the impugned order of transfer was herself the complainant and she herself without even referring the matter to higher authority to conduct an enquiry had become judge of her own cause and she had adjudged that the applicant has committed misconduct and insubordination and thus rendered the impugned order of transfer as a punitive transfer without any authority.
6. The learned counsel for the applicant submitted that even 48 (13) could not be invoked in the present case. He contended that the said provision also makes it abundantly clear that such transfer has to be done in public interest and after obtaining necessary approvals wherever required. The provision by itself makes it clear that it shall be done only after obtaining necessary approvals wherever required. It clearly states that approval of the Executive Committee is must and in case of urgency with the approval of the Chairperson of the Executive Committee. When it has been clearly mentioned that the Director General shall transfer the post along with the incumbent from Institute/Unit to another and certifying explaining the reasons that this has been done in the public interest and after obtaining necessary approvals wherever required, therefore, there is no question of issuing an order of transfer initially and thereafter getting expost facto approval.
7. He contended that in the given case, the applicant has been transferred even on 05.08.2023 itself without obtaining any approval and the OA has also been filed before this Tribunal challenging the validity of the same. It cannot be said that when the matter was sub judice if the matter involved utmost urgency for the Chairperson of the Executive Committee to sanction approval in an order with reference to the OA in subject column. It is neither the case of the 1st Respondent nor the 2nd Respondent that there was any requirement for transfer either on administrative or on technical ground for transfer of post of Administrative Officer CCRS HQ from Chennai to Bengaluru and hence the impugned order dated 13.10.2023 also suffer from total non-application of mind that there is no premise at all available in this case that would warrant to invoke 48 (13).
8. He further contended that when the transfer of the post of Administrative Office HQ from Chennai to Bengaluru is in public interest, which is also a mandatory requirement as provided in the Bye laws also is to be considered. The very nomenclature of the post itself would clearly reveal that the Administrative Officer, HQ and it is admittedly Chennai is the HQ of the Council. Hence, there cannot be any public interest in transferring the post of Administrative Officer CCRS HQ from Chennai to
   Bengaluru.
9. He finally concluded that the act of the 2nd respondent clearly smacks malice in law. In terms of judgment of the Hon’ble Apex Court in UOI Vs Somesh Tiwari & others and the Judgment of the Division Bench of the
   Hon’ble Madras High Court, order, dated 30.06.2022, in the case of Tamil Nadu Agricultural University Vs Doctor Akila and others in a batch of cases where the setting aside the order of transfer on the ground of malice in law and in violation of Government orders was upheld by the Division Bench would squarely applicable to the present case. He contended that a reference has been made to the decision of the Hon’ble Apex Court in the case of Kunwar Pal Singh Vs State of UP reported in AIR (2007) 05 SCC 85 wherein it was observed that “the principles is well settled that where any statutory provision provides a particular manner of doing a particular act, then that thing or act must be done in accordance with the manner prescribed thereof in the Act”
10. Ultimately, Mr. M. Ravi, the learned counsel for the applicant submitted that when the applicant has complained against the 3rd respondent and it is only at the 3rd respondent’s complaint against the applicant, the impugned orders of transfer came to be issued. When there are complaint and counter complaint between two officers, the higher officer cannot become the judge of her own cause and issued an order penalizing the other official. The 3rd respondent cannot pass any order of transfer without the approval of the next higher authority, ie.. the 1st respondent, herein. The impugned order is not only issued with mala fide motives and illegalities but also suffer from the wise of malice in law. Hence, the same is liable to be set aside and the applicant is entitled to the relief prayed for by him.
11. On the contrary, the learned counsel representing the respondents vehemently opposed the assertions made by the learned counsel for the applicant. He contended that the applicant’s transfer from CCRS HQ in Chennai to SCRU Bengaluru was a consequence of his aggressive misconduct and highly inappropriate behaviour during the regular meeting on 04.08.2023, chaired by the 2nd respondent, who was then serving as the Director General of CCRS on an additional charge basis. On that day, the applicant openly challenged the authority of the Director General and proceeded to humiliate her and other senior officers of the Council. Consequently, his continued presence at CCRS HQ was deemed undesirable, intolerable, and detrimental to the Council’s interests, as it was disrupting the conducive working environment.
12. The learned counsel further argued that the proposed transfer was communicated to the Secretary (Ayush) cum Chairman of the Executive
    Committee via a confidential DO letter (NO.1-1/2022-23 DG-CCRS) dated
    04.08.2023, sent through email at 8:21 PM and via WhatsApp at 8:42 PM on the same day. Given the urgency of the matter, the Secretary, Ayush, promptly consented to the transfer on the same day, as conveyed through WhatsApp after office hours, upon being apprised of the applicant’s behaviour and attitude. The transfer order was subsequently issued on 05.08.2023 by the Director General under Bye-laws 48(6) and 48(14), as well as in accordance with Para 9 of the Rotational Transfer Policy issued by the Ministry. Bye Law No.48(10) of CCRS explicitly states the Council’s right to transfer an official at any time on administrative grounds.
13. Furthermore, the events detailing the applicant’s misconduct and insubordination on 04.08.2023 were officially documented and forwarded to the Secretary, Ayush, on 09.08.2023, seeking approval for the transfer and initiation of disciplinary proceedings. This was reiterated in a letter dated 10.10.2023 addressed to the Ministry by CCRS. The formal approval/order for the transfer of the Administrative Officer’s post from CCRS HQ to SCRU Bengaluru was granted by the Secretary cum Chairman of the Executive Committee under Rule 48(13) of the Bye-laws while approving the draft counter affidavit on 13.10.2023. Hence, both orders were issued by competent authorities, making them administratively and legally sound.
14. The learned counsel emphasized that the applicant’s misbehavior and arrogance left the respondents with no choice but to either suspend or transfer him immediately to uphold discipline. However, opting for a lenient approach, the applicant was only transferred, exercising administrative powers vested in the Director General (Additional Charge) as the 2nd respondent. It was asserted that the transfer was not punitive but rather a measure to enforce discipline in the public interest and the exigencies of administration. Referring to the office order (No.D-15020/119/2017-RD dated 21.11.2022) issued by the Ministry of Ayush, it was highlighted that the 2nd respondent possessed all administrative and financial powers of a regular Director General, except for statutory powers under CCS (CCA)
    Rules, thereby justifying the transfer as an administrative action within the
    Director General’s purview.
15. Regarding Bye Law 46(13), which addresses the transfer of posts between units on administrative and technical grounds, it was argued that the Director General must personally ascertain the necessity of such transfers and certify the reasons in the public interest, obtaining necessary approvals where required. In this case, prior permission from the Executive Committee was not obtained due to the urgency stemming from the applicant’s disruptive behaviour on 04.08.2023. The counsel asserted that in urgent situations, approval from the chairperson or the Executive Committee could be sought ex post facto, particularly given the turmoil caused by the applicant’s actions, necessitating the swift restoration of office discipline and decorum.
16. Mr. Su Srinivasan, the learned SCGSC argued that the Secretary of the Ministry of Ayush (MOA) is fully cognizant that there exists only one Administrative Officer position within the entirety of the CCRS. Therefore, the transfer of the incumbent inherently implies the transfer of the position itself. Nevertheless, formal approval for this transfer was requested through a DO letter dated 09.08.2023 (R-VII). Subsequently, the applicant commenced duties at the new SCRU unit in Bengaluru on 14.09.2023. However, due to standard administrative procedures, written approval from the Secretary of MOA was not conveyed until 13.10.2023. Consequently, the applicant’s pay and allowances up to September 2023 were disbursed solely from the CCRS HQ, not the SCRU in Bengaluru. Furthermore, the issuance of the Last Pay Certificate occurred only on 26.10.2023, with the office order No.293/2023-24 for the transfer of the position being issued on
    01.11.2023.
17. The learned Counsel contends that the applicant occupies a transferable position, and no statutory rule prohibits such transfers.
    Therefore, transfers under 48 (6) and 48 (14) of the Bye law are legitimate, and subsequent approval by the Secretary validates the transfer order. Even if there were any irregularities in the initial transfer order, the absence of the post until the Secretary’s approval meant that the applicant’s pay was sourced solely from the CCRS HQ, not the Bengaluru office. Additionally, even if there were breaches of bye laws or transfer policies, the Hon’ble Supreme Court has held in numerous cases that applicants possess no vested right to remain in a specific location, nor can they enforce such bye laws or transfer policies, as they serve merely as indicators of transfer.
18. Lastly, the learned counsel argues that there are no allegations of mala fide in the Original Application and no individuals are implicated on grounds of malfeasance. Consequently, the transfer order should not be contested. As the transfer of the applicant, along with the position, does not impact his service, he has no grounds for grievance. Thus, the OA should be dismissed.
19. The following decisions were relied on by the learned counsel for the Respondents :
    (i) Judgment, dated 07.03.2022, of the Hon’ble Delhi High Court, reported in 2022 LiveLaw (Del) 183 (Para No.24 & 26)
    (ii) Judgment, dated 11.09.2001,of the Hon’ble Apex Court reported in (2001) 8 SCC 574 (Para No.5)
    (iii) Judgment, dated 25.02.2020, of the Hon’ble Apex court reported in (2020) 19 SCC 46 (Para No.17)
    (iv) Judgment, dated 19.11.1990, of the Hon’ble Apex Court reported in (1991 Supp) 2 SCC 659 (Para No.4)
    (v) Judgment, dated 14.11.2022, of the Hon’ble High Court of P&H at Chandigarh in CWP -22233-2022 (Para No.5)
    (vi) Judgment, dated 13.03.2024, of the Hon’ble Apex Court in Civil Appeal No.4129 of 2024, (Para No.13).
20. The applicant has filed a rejoinder to which the respondents have filed a reply statement, reiterating their respective contentions made in the OA and the reply statement.
21. I have considered the submissions made by the respective counsels at length and also perused the pleadings and the materials placed on record. I have also carefully gone through the judgments referred to by both the sides. The Rules, Regulations and Bye-laws contained in the Memorandum of Association of Central Counsel for Research in Siddha, issued by the
    Department of Ayush was also perused by me.
22. On consideration of the arguments advanced by the learned counsel on both the sides, the following questions are framed to be addressed in the present case:
    Question No.1: Whether 48 (6) & 48 (14) of Bye laws invoked by the 2nd respondents is proper and legal?

Question No.2:

(i) Whether the order dated 13.10.2023 issued by the 1st Respondent by invoking 48 (13) of the Bye law is just and proper?

(ii) Whether it is correct on the part of the Respondent to state that the initial transfer of the applicant by order dated 05.08.2023 & 07.08.2023, the applicant only transferred from Chennai to Bengaluru and only on 13.10.2023 the post of Administrative Officer CCRS HQ was transferred separately from Chennai to Bengaluru?

23. It is seen that Guidelines for Transfers was mentioned under Clause 48 of the Bye-laws. At the outset, it is stated that in order to have transparency in transfers in the Central Counsel, the following guidelines shall be applicable. It is worthwhile to extract the relevant portions of the guidelines for the purpose of this case, as hereunder:
    “48 (6 ) Transfers of all officials including those of Group ‘C & D’ staff maybe resorted to as an alternative to suspension of the official or in public interest while an inquiry is in progress.

48(13) In situations where on administrative and technical grounds, some posts are required to be transferred from one institute/unit to another, the incumbents holding such posts would be transferred along with posts. The Director General shall personally satisfy himself about the necessity of transfer of such post along with the incumbent from one unit to another and certify explaining necessary approval where ever required. This should be done with the prior approval of the Executive Committee and in case of urgency, with the approval of the Chairperson of the Executive Committee.

48(14) In case of transfer on the basis of complaints against any incumbent alleging moral turpitude, financial embezzlement and indiscipline, the Director General shall personally satisfy himself about the need for such a transfer after making a preliminary enquiry.

48(15) While making transfers, Director General may ensure that the on-going research work is not affected adversely due to the transfer of a technical officer/Scientist for a particular unit.”

24. Bye-law 48(6) of the guidelines reads as follows:

“Transfers of all officials including those of Group “C & D” staff may be resorted to as an alternative to suspension of the officials or in public interest while an inquiry is in progress”

The first part of the said guideline that transfer can be resorted to as an alternative to suspension. Whether the 2nd respondent who is holding the additional charge and also the complainant has any authority to suspend the applicant is a million-dollar question, which is impermissible in law. With regard to the other part “or in public interest while an inquiry is in progress” also cannot be invoked against the applicant, since no Charge Memo has been issued to the applicant till the impugned transfer order is passed.
Hence, invoking 48(6) by the respondents is bad in law.

25. Bye-law 48(14) of the guidelines reads as follows:
    “In case of transfer on the basis of complaints against any incumbent alleging moral turpitude, financial embezzlement and indiscipline, the Director General shall personnel satisfy himself about the need for such a transfer after making a preliminary enquiry.”

It could be seen from the records that the 2nd respondent who is holding only Additional Charge of the post of Director General and who is also the complainant has converted herself to be the Judge of her own cause, which is impermissible in law. It is not open to the 2nd respondent to invoke Clause 48(14) of the Bye-law to transfer the applicant along with the post, without even referring the matter to the higher authority to conduct a preliminary enquiry. Hence, I am of the considered opinion that Bye-law 48(14) has been invoked in an arbitrary manner by the 2nd respondent.

26. In view of the above findings, the question No.1 answered against the respondents.
27. The next question that is to be decided is whether Bye-law 48(13) has been invoked in a proper manner or not. The said bye-law clearly envisages the transfer of an incumbent holding a post from one Institute to another only when on administrative and technical grounds, the post is required to be transferred. Even according to the respondents, there is no such requirement and there is no such administrative and technical grounds upon which the post has to be transferred. Further, it is also clearly mentioned in the said bye-law, the transfer along with post can be resorted to with the prior approval of the Executive Committee and in case of urgency, with the approval of the Chairperson of the Executive Committee. In the instant case, no such prior approval has been obtained by the 2nd respondent. Assuming that the applicant was initially transferred without the post and the post was subsequently transferred is not all convincing. A post cannot be transferred separately which is not in Bye-law 48. Also 48(13) never talks about ex-post facto sanction. Thus, there is no justifiable ground adduced by the respondents in invoking Clause 48(13) of the Byelaws to transfer the applicant on punitive grounds. Therefore, it is concluded that the 2nd questions also answered in favour of the applicant and is against the respondents.
28. That apart, the Office Memorandum issued by the Government of India, Ministry of Finance, Department of Expenditure dated 12.04.2017, wherein under Clause 7 it has been clearly stated under the Caption
    “Transfer of Post”, that post sanctioned for a specific purpose in an organization may not be diverted to another purpose at the same or different station. Cases of transfer/diversion/adjustment of post would amount to creation of new post which simultaneously abolishing of existing post and prior approval of Department of Expenditure is required for the same. It is also seen that the said Memorandum has been issued with the approval of the Finance Minister.
29. The impugned transfer order dated 05.08.2023 states that pending initiation of disciplinary proceedings in connection with the arrogant behaviour and insubordination for a lack of devotion to duties, the applicant has been transferred to Bengaluru. According to the applicant, the said transfer was necessitated for the complaints he has made against the 2nd/3rd respondent for her administrative and financial irregularities, to the Chief Vigilance Officer, Ministry of Ayush as well as to the 1st respondent. It is to be noted when the applicant joined as Administrative Officer in the CCRS Head Quarters, Chennai, on 31.12.2021, he cannot be transferred along with the post to Siddha Clinical Research Unit, Bengaluru. This has violated the Ministry of Finance, Department of Expenditure OM dated
    12.04.2017, cited supra. The post of Administrative Officer, CCRS, Head Quarters has been sanctioned for a specific purpose of running the administration in the Head Quarters and the same ought not to have diverted on the ground of punitive grounds against an individual to a different station. It is clear, by the transfer of the applicant to Bengaluru Unit, where there is no substantive post of Administrative Officer, the applicant is being reduced to hold a post with less powers.
30. The applicant also challenged the validity of the transfer order on the ground that the 2nd respondent is holding additional charge of the post of Director General. Further, when he made complaint against the 2nd respondent, she cannot issue the transfer order without even referring the matter to the higher authority. It is also well settled principle that where any statutory provisions provides a particular manner for doing a particular act, then that thing or act must be done in accordance with manner prescribed therefor in the Act. The respondents have failed to follow the
    Guidelines issued under the Clause 48 of the Bye-laws as well as the
    Ministry of Finance OM dated 12.04.2017.
31. In view of the above findings, I am of the considered opinion that the applicant has made out a case for quashing of the orders impugned in the OA. Accordingly, the impugned orders dated 05.082023 and 07.08.2023 are quashed and set aside. Resultantly, a direction is given to the 2nd respondent to issue an appropriate order to the applicant to continue as Administrative Officer at CCRS, Head Quarters, Chennai. The said direction shall be complied forthwith.
32. The OA is allowed in the above terms. No order as to costs. (M. SWAMINATHAN) MEMBER(J) 07 .05.2024 mas