On 3rdJune, The Chandigarh bench of the Central Administrative Tribunal (CAT) dismissed the plea of a visually impaired Haryana cadre IAS officer seeking to invalidate an order of the Haryana government transferring him from the post of Fatehabad deputy commissioner (DC) to that of director-general, Swarna Jayanti Haryana Institute of Fiscal Management (SJHIFM).

CAT DISMISSES VISUALLY BLIND IAS OFFICER’S PLEA TO STAY HIS TRANSFER

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Facts in Brief:

  • Upon selection in IAS, Ravi Prakash Gupta was initially allocated to Chhattisgarh, and pursuant to a policy decision for transfer of disabled persons, he was transferred to Haryana cadre in October 2015 and posted as additional secretary (finance).
  • Gupta argued that he was posted as Kaithal DC in 2016, but was transferred as director, food, and supplies within seven months.
  • In 2017, Gupta said, he was again transferred and then given charge of director, medical education and research, chief vigilance officer, Huda (now known as Haryana Shahari Vikas Pradhikaran).
  • Aggrieved by the transfer orders, Gupta moved to CAT seeking direction to the Haryana government to allow him to complete his tenure as DC, Kaithal. However, his plea was dismissed by the tribunal.
  • The IAS officer then moved against the CAT order in the Punjab and Haryana High Court, where his plea was allowed, and the Haryana government was asked by the High Court to consider Gupta’s plea. Gupta was then posted as DC Fatehabad in December 2019.
  • He was again transferred from the post in May 2020 during COVID -19 outbreak. He challenged the transfer in CAT Chandigarh. He had alleged that his transfers were against Rule 7 of Cadre rules and IAS (Cadre) Amendment Rules, 2016. His second argument was that he was not given any reason in writing to be transferred.

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Legal Stand Point:

Rule 7 of Cadre Rules. Rule 7 (3) and (5) of the Cadre Rules read as under:-

“7. Posting.-

(1) All appointments of cadre of officers shall be made on the recommendation of the Civil Services Board as specified in the Schedule annexed to these rules:-

(3) A cadre officer, appointed to any cadre post shall hold the office for at least two years, unless in the meantime he or she has been promoted, retired or sent on deputation outside the State or training exceeding two months.

(5) The Central Government or the State Government as the case may be, may transfer a cadre officer before the minimum specified period on the recommendation of the Civil Services Board as specified in the Schedule annexed to these rules.”

Indian Administrative Service (Cadre) Second Amendment Rules, 2016, whereby they have amended sub rule 3 to rule 7 of Cadre Rules, as under:-

“3. Procedure.—

(1)(a) The Civil Services Board may obtain the information from the Administrative Department of the State concerned or any other relevant sources while considering the transfer of an officer before completion of specified tenure.

(b) The Civil Services Board shall submit annual report on 1st January to the Central Government about the date of the Civil Services Board meetings in the prescribed Form annexed to the Schedule and also upload the same on the website of the concerned State Government or Union territory in public domain.

 (2) The Competent Authority may amend, modify or reject the recommendation of the Civil Services Board for the reasons to be recorded in writing.”

Also Read – High Court Stay Transfer Order Dismissed by CAT Tribunal

In Union of India v. S.l. Abbas1993 (4) SCC 357, it was held by the Supreme Court that who should be transferred where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of any statutory provisions, the Court cannot interfere with it.

In Major General J.K. Bansal vs. Union of India(2005) 7 SCC 227 and State of MP vs. S.S. Kourav (1995) 3 SCC 20 the Supreme Court observed that the Courts or Tribunals are not appellate forums to decide on the transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly, and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places.

In SC. Saxena vs. UO.I (2006) 9 SCC 583 State of UP vs. Gobardhan Lal(2004) 11 SCC 402 it was held by the Supreme Court that it is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fide or by extraneous consideration without any factual background foundation.

Also Read – Chandigarh Police Service Matters at CAT Tribunal

Analysis:

As per Sub-rule 3 of Cadre Rule 7, a cadre officer, appointed to any cadre post, shall hold the office for at least two years, unless in the meantime, he or she has been promoted, retired, or sent on deputation outside the State or training exceeding two months. Sub-rule 3 is required to be read in conjunction with sub-rule 5. Sub-rule 5 provides that the Central Govt. or the State Government, as the case may be, may transfer a cadre officer before the minimum specified period on the recommendation of the Civil Services Board as specified in the Schedule annexed to these rule. In pertinent case, the order of transfer of petitioner is based on recommendations of CSB. Thus, the petitioner’s argument that he has not completed a minimum of two years as DC of Fatehabad should be rejected as per sub-rule 3 read with sub-rule5 of rule 7, and an officer can be transferred even before two years. Further, the Haryana government in its affidavit has shown that he completed nearly 36 months as DC in both Kaithal and Fatehabad.

Concerning his argument of not given any reason in writing, the Haryana government argued that the Union government had on 24th March imposed the lockdown in the country and asked the state governments to take effective steps to check the spread of the pandemic. In this context, the role of DC’s/DM’s was considered crucial, and accordingly, after discussions, the department of personnel thought it fit to transfer the same incumbents of such posts from their districts. It was submitted that the impugned order had been posted in consonance with Cadre Rules, on the recommendations of the Civil Services Board (CSB). Haryana government presented the minutes of the meeting to the CAT, and hon’ble justices agreed to the reasons provided in the meeting. They held that “While recommending the case of the applicant, the Board has recorded the reasons in the file produced by respondent no.2, which we have perused minutely.”

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It is also to be noted that transfer is a policy decision and comes within the executive’s ambit. Thus, there should be minimal interference in transfer matters by the judiciary. There should be no interference unless there is mala fide intention or statutory violation. The Supreme Court has reaffirmed this proposition in several cases. A spate of such cases have been underlined above. CAT took cognizance of the same and held that “courts do not interfere with transfers which are made in the 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.” As in this case, there was no violation of the statutory rule, and there was no argument of mala fide intention from the petitioner’s side, the petition was quashed.

For case specific advice, please contact Punjab Haryana High Court Best/Expert Lawyers Advocates for Service Matter, Cat Tribunal, Chandigarh Panchkula Mohali. Zirakpur Kharar Derabassi

This post is written by Gourav Kathuria

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