Major
General J.K. Bansal Vs. Union of India & Ors [2005] Insc 428
(23 August 2005)
Cji
R.C. Lahoti, G.P. Mathur & P.K. Balasubramanyan
(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 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 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
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."
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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