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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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