Full Judgment Text
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CASE NO.:
Appeal (civil) 5189 of 2005
PETITIONER:
Major General J.K. Bansal
RESPONDENT:
Union of India and others
DATE OF JUDGMENT: 23/08/2005
BENCH:
CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) No. 11258 of 2005)
G.P. Mathur, J.
Leave granted.
2. This appeal, by special leave, has been preferred against
judgment and order dated 5.5.2005 of Delhi High Court by which
Writ Petition (C) No.7387 of 2005, filed by the appellant challenging
the order dated 7.4.2005 by which he had been transferred to Defence
Research and Development Establishment (for short ’DRDE’),
Gwalior, was dismissed.
3. The plea taken by the appellant in the writ petition filed by him
before the High Court was that he belonged to Army Medical Corps
and was being shifted to a non-medical organization, which had only
one officer of Army Medical Corps and that too of the rank of Major
or Lt. Colonel. The transfer order was malafide as it had been passed
on account of his success in an earlier writ petition filed by him being
W.P. (C) No. 6131 of 2003, whereunder he had sought quashing of
certain proceedings initiated against him and on account of the
decision in the writ petition the respondents ultimately promoted him
to the rank of Major General. It was further pleaded that he had been
transferred to Gwalior in order to accommodate one Brigadier R.P.
Tripathi to the post of Director in the Institute of Nuclear Medicine
and Allied Sciences (for short ’INMAS’). The writ petition was
contested by the respondents on the grounds, inter alia, that the
appellant was absorbed in the Defence Research and Development
Organization (for short ’DRDO’), which is engaged in carrying out
scientific and technical research and development work of various
projects related to defence forces and of which both INMAS and
DRDE are branches and their terms and conditions of services are
governed by Ministry of Defence Letter dated 23.11.1979, which
provides for transfer of officers to any place in the country or outside.
Both the INMAS and DRDE, Gwalior, are system based laboratories
engaged in Research and Development activities in bio-medical fields
and it had been decided to conduct training programmes of NBC
Defence to train military, para-military staff and AMC doctors at
DRDE, Gwalior, under the present conditions. The appellant was
found suitable for undertaking the new project in the field for which
he was trained abroad at public expense. The allegations regarding
malafide action of the respondents or that he had been transferred to
Gwalior in order to accommodate Brigadier R.P. Tripathi or someone
else at INMAS was denied. After a thorough consideration of the
affidavits filed by the parties and the material on record the High
Court found that there was no substance in the appellant’s case and
accordingly dismissed his writ petition.
4. Learned counsel for the appellant mainly confined his challenge
to the transfer order dated 7.4.2005 on the ground of malafide. It was
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submitted that the appellant had an unblemished record, but on the
basis of a complaint he was attached for disciplinary action with Head
Quarter Technical Group, EME, Delhi Cantt. on 3.9.2003. Aggrieved
by the said order the appellant filed Writ Petition (C) No. 6131 of
2003 before the Delhi High Court. During the pendency of the writ
petition, the respondents issued a charge sheet for initiating General
Court Martial proceedings against him. The writ petition was allowed
by the High Court on 18.5.2004 and the order dated 3.9.2003
initiating disciplinary proceedings against the appellant was quashed.
The proceedings initiated against the appellant for holding General
Court Martial were also quashed and a direction was issued to the
respondents to declassify the result of the Promotion Board held on
4.6.2003. Feeling aggrieved by the order of the High Court the
respondents filed SLP (C) No. 11672 of 2004 before this Court, but
the same was dismissed on 30.3.2005. The post of Director, INMAS
had been advertised by DRDO on 20.1.2005, for which the appellant
had also applied. He was called for interview on 22.4.2005 at R.A.C.,
Delhi. However, an order was issued by the respondents on 7.4.2005
whereby he was informed that he is promoted to the rank of Major
General with effect from 1.2.2004. The order contained a further
direction transferring the appellant to DRDE, Gwalior against an
existing vacancy. The learned counsel has strenuously urged that the
respondents had a grudge against the appellant on account of his
having filed WP (C) No. 6131 of 2003 in Delhi High Court wherein
judgment had been rendered in his favour on 18.5.2004 by which the
disciplinary proceedings and General Court Martial proceedings
initiated against him were quashed. The transfer of the appellant to
DRDE, Gwalior had been made on account of the aforesaid malafide
reasons. The learned counsel has further submitted that DRDE,
Gwalior is one of the several laboratories functioning under the
DRDO and it is not a medical organization like INMAS and
consequently the expertise and experience of the appellant could not
be utilized in the said institute. It has also been submitted that as per
the manpower authorization of Government of India, the DRDE,
Gwalior has no vacancy of Major General, which exists in INMAS.
In order to substantiate this contention learned counsel has referred to
certain clarifications issued by the Director General, Research and
Development on 18.4.1990 and also by Ministry of Defence,
Government of India on 23.8.2004 regarding formal equation between
civilian scientists and service officers, which mention that a Scientist
’F’ would be equal to Brigadier and a post of Major General or
equivalent had been sanctioned for INMAS. Lastly, it has been urged
that the impugned transfer order has been passed in order to
accommodate an officer junior to the appellant, namely, Brigadier
R.P. Tripathi as Director of INMAS.
5. The respondents have filed a detailed counter affidavit in this
Court. It is averred therein that DRDO was established in 1958 under
the Ministry of Defence and the head of this Organization is a civilian,
namely, the Scientific Adviser to the Defence Minister, Government
of India. The principal work and mandate of this Organization is
research, design and development of new weapons, sensor system,
communication systems and force multipliers. The research and
development work is carried out by a network of 50 laboratories/
establishments located across the country and in variety of disciplines
like electronics, missiles, telecommunication, rockets, radars and life
sciences, etc. After the terrorist attacks and the imminent specter of
chemical and biological warfare looming large in the form of
chemical weapons and anthrax and other bio-warfare agents and the
possible possession of nuclear weapons by non-State terrorist outfits,
the research in the field of NBC defence has acquired a sense of
urgency. Due to these reasons the structure and composition of
DRDO had to necessarily undergo rapid, qualitative and quantitative
changes in the light of the fast development that have taken place in
the field of science and technology the world over. There are
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approximately 7000 scientists working in more than 50 laboratories
and the strength of service officers is slightly more than 300. The
appellant is a permanently seconded service officer from Army
Medical Corps to DRDO. The service conditions of personnel in
DRDO are governed by Defence Research Development Service
Rules (DRDS), 1979, which clearly provides that the officers may be
posted to any appointment in the Research and Development
Organization on the basis of their qualification and experience and/or
as required in public interest. The organizational structure of DRDO
is divided into six distinct fields. The INMAS and also DRDE,
Gwalior, are placed in the same group under "Life Sciences". Both
the institutions are engaged in research in biomedical field. In view of
peculiar nature of work, a different kind of system of manpower
management has been adopted. The Organization has been
empowered to activate the number of posts to the extent considered
essential for its work.
6. It is further averred that in accordance with the above
mentioned policy, the post of Major General sanctioned in the regular
establishment of INMAS was withdrawn and the post of Lt. General
was transferred from the pool vide letter dated 2.12.2004.
Consequently, there is no post of Major General in INMAS as on date.
However, one post of Major General has been given to DRDE,
Gwalior. The Vigilance Branch of the Army Head Quarters had
received a preliminary report of CBI according to which there was a
prima facie case of submitting false disability certificate by the
appellant to secure admission of his daughter in an engineering
college, i.e., Netaji Subhash Institute of Technology, Delhi. The
Vigilance Branch after having found substance in the complaint had
imposed a DV ban on the appellant vide letter dated 29.8.2003. A
decision was taken to proceed against him. Consequent upon which
he was attached with an army unit vide order dated 29.8.2003. On
account of the aforesaid order, the assessment of the Selection Board
regarding the appellant had to be kept in a sealed cover as a matter of
policy. After the decision of the writ petition by the Delhi High Court
and the dismissal of the SLP by this Court, the DV ban was revoked
on 31.3.2005. As a result of this declassification of result he was
found to be recommended for promotion and accordingly he was
promoted to the rank of Major General on 7.4.2005.
7. It is further averred in the counter affidavit that the appellant
along with several others had applied for the post of Director,
INMAS, which is in the rank of Scientist-G. The Selection Board
comprised of persons of international repute as external experts,
including those who do not belong to the cadre of DRDO. The
selection process was completed by RAC and Brigadier R.P. Tripathi
was finally selected for the said post and an offer of appointment has
been issued in his favour on 20.5.2005. The DRDE, Gwalior, which
is engaged in the development of antidotes, prophylactic drugs,
diagnostic kits and other defensive and protective equipments against
chemical and biological threats, submitted a request vide their letter
dated 7.3.2005 that there was a need for the services of a senior
medical officer, who could handle the task of medical management in
the event of actual combative engagement of the armed forces. The
matter was discussed by the top management of DRDO in its meeting
held on 21.3.2005 when it was decided to post the appellant at DRDE,
Gwalior, in public interest. This decision was taken before the
pronouncement of the order in SLP by this Court, while the
recommendation of the Selection Board for the appellant’s promotion
to the rank of Major General was still in a sealed cover. Lastly, it has
been submitted that the Defence Research and Development
Organization (respondent No. 3) is not at all concerned with the
disciplinary proceedings initiated by the Army authorities against the
appellant. The respondent No. 3 was not even a party to the Writ
Petition (C) No. 6131 of 2003, which was filed by the appellant in the
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Delhi High Court. The availability of the post of Director, INMAS at
this period of time, viz., 1.4.2005 was purely coincidental as Lt.
General T. Ravindranath, Director, INMAS, had submitted an
application on 6.12.2004 seeking pre-mature retirement from service
with effect from 31.3.2005, which request was accepted on 18.2.2005
and he was allowed to retire from service on 31.3.2005. It is also
averred that DRDO (respondent No. 3) had acted with utmost
bonafide and the appellant had not been posted to DRDE, Gwalior, on
account of any malafide reasons.
8. Before we advert to the submissions made by the learned
counsel for the appellant, it will be useful to take notice of the law
regarding the scope of interference in a writ petition filed under
Article 226 of the Constitution assailing an order of transfer.
9. In Mrs. Shilpi Bose and others vs. State of Bihar and others
AIR 1991 SC 532, the appellants, who were lady teachers in primary
schools, were transferred on their requests to places where their
husbands were posted. The contesting respondents, who were
displaced by the appellants, challenged the validity of the transfer
orders before the High Court by filing a writ petition under Article
226 of the Constitution, which was allowed and the transfer orders
were quashed. This Court allowed the appeal and set aside the
judgment of the High Court by observing as under: -
"In our opinion, the courts should not interfere
with a transfer order which are made in public interest
and for administrative reasons unless the transfer orders
are made in violation of any mandatory statutory rule or
on the ground of mala fide. A Government servant
holding a transferable post has no vested right to remain
posted at one place or the other, he is liable to be
transferred from one place to the other. Transfer orders
issued by the competent authority do not violate any of
his legal rights. Even if a transfer order is passed in
violation of executive instructions or orders, the Courts
ordinarily should not interfere with the order instead
affected party should approach the higher authorities in
the Department..................................."
10. In Union of India and others vs. S.L. Abbas AIR 1993 SC 2444,
the respondent was working at Shillong in the office of Botanical
Survey of India and his wife was also working there in a Central
Government office. He was transferred from Shillong to Pauri in the
hills of U.P. (now in Uttaranchal). He challenged the transfer order
before the Central Administrative Tribunal on medical ground and
also on the ground of violation of guidelines contained in the
Government of India OM dated 3.4.1986. The Tribunal allowed the
petition and quashed the transfer order. In appeal this Court set aside
the order of the Tribunal and observed as under: -
"Who should be transferred where, is a matter for
the appropriate authority to decide. Unless the order of
transfer is vitiated by mala fides or is made in violation
of any statutory provisions, the Court cannot interfere
with it. While ordering the transfer, there is no doubt, the
authority must keep in mind the guidelines issued by the
Government on the subject. Similarly if a person makes
any representation with respect to his transfer, the
appropriate authority must consider the same having
regard to the exigencies of administration. The
guidelines say that as far as possible, husband and wife
must be posted at the same place. The said guideline
however does not confer upon the Government employee
a legally enforceable right."
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11. Similar view has been taken in National Hydroelectric Power
Corporation Ltd. vs. Shri Bhagwan and another (2001) 8 SCC 574,
wherein it has been held that no Government servant or employee of a
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 another 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 though they were the appellate authorities substituting their
own decision for that of the management.
12. It will be noticed that these decisions have been rendered in the
case of civilian employees or those who are working in Public Sector
Undertakings. The scope of interference by courts in regard to
members of armed forces is far more limited and narrow. It is for the
higher authorities to decide when and where a member of the armed
forces should be posted. The Courts should be extremely slow in
interfering with an order of transfer of such category of persons and
unless an exceptionally strong case is made out, no interference
should be made.
13. The detailed counter affidavit filed by the respondents clearly
shows that it was the Vigilance Branch of the Army Head Quarters,
which had taken the decision to proceed against the appellant. He was
attached with an Army unit vide Head Quarters Western Command
order dated 29.8.2003. The decision to initiate General Court Martial
proceedings was also taken by the Army authorities. The impugned
transfer order dated 7.4.2005 has been passed by the Defence
Research and Development Organization, Ministry of Defence. The
Selection Board for the post of Director INMAS consisted of persons
of international repute as external experts including those, who do not
belong to the cadre of DRDO. The appellant was considered for the
post of Director, INMAS, but was not selected and Brigadier R.P.
Tripathi was selected for the said post. Thus, the appellant could not
have functioned in INMAS. A post of Major General has been given
to DRDE, Gwalior and it was considered in public interest to post the
appellant on the said post. The contention raised by the appellant that
the transfer order has been passed on account of malafide reasons has,
therefore, absolutely no substance and is wholly devoid of merit.
14. The learned counsel for the appellant has also urged that the
appellant moved an application for leave on 16.8.2005 before the
Director, DRDE, Gwalior and in the said application he had described
himself as ’Associate Director’. However, while sanctioning the
leave, the Director scored out the words ’Associate Director’. The
contention of the appellant is that in the additional affidavit, which
was filed on behalf of the respondents before the Delhi High Court, it
was stated that the appellant would be designated as Associate
Director. The learned counsel produced a photocopy of the leave
application in order to substantiate his submission. Since this
document has been produced during the course of the hearing of the
appeal, the learned counsel for the respondent was not in a position to
give any reply. We do not consider it necessary to make any
observation regarding the status of the appellant in DRDE, Gwalior.
The appellant has already been promoted to the rank of Major General
and we have no reason to doubt that he would be given the status to
which he is entitled by virtue of the rank currently being held by him.
15. The appeal lacks merit and is dismissed with costs.
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