IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 20212 of 2011(O&M) Date of Decision: 9.11.2011. Semi Conductor Laboratory --Petitioner Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh through its Registrar & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present:- Mr. Brijesh Mittal, Advocate for the petitioner. *** PERMOD KOHLI.J (ORAL) C.M. Nos. 15196-97 of 2011 Applications are allowed. Documents Annexures P-11 to P-13 taken on record. CWP No. 20212 of 2011 This petition arises out of an order dated 14.9.2011 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short the Tribunal) allowing the O.A filed by the respondent no.2 challenging his transfer from Semi Conductor Laboratory (for short S.C.L.) to Vikram Sarabhai Space Centre (for short V.S.S.C), Thiruvananthpuram. Facts relevant for the purposes of the present petition are being noticed hereunder:- Petitioner herein was initially incorporated as a Limited Company, which was later on converted into a society under the name of S.C.L duly registered on 8.11.2005 under the Societies' Registration Act, 1856. This restructuring became effective from 1.9.2006. Respondent no.3, CWP No. 20212 of 2011(O&M) -2- who was initially an employee of the company opted for the service in the restructured society pursuant to a general notice dated 16.6.2006 issued by the company providing an option to the existing employees to elect for the service of the society or else face termination of the services. Respondent no.3, thus, adopted the society as his employer and was governed by the rules and regulations of the petitioner society as per the terms and conditions of the restructuring order. Respondent no.3 was posted in Chandigarh as Scientist/Engineer “S.F.” vide order dated 13.7.2009 issued by the Govt. of India, Ministry of Space. Respondent no.3 has been ordered to be transferred from the petitioner society to V.S.S.C, Thiruvananthpuram on working arrangement basis. The relevant extract of the order reads as under:- “ No.A.12019/8/2005-I Government of India Department of Space Antariksh Bhavan New BEL Road Bangalore-560231 July 13, 2009. OFFICE ORDER Shri Manmohan Singh, Scientist/Engineer-SF, SCL, Chandigarh is hereby transferred to VSSC, Thiruvananthapuram on working arrangement basis. He will continue to be governed under the service condition of SCL. The date of his actual relief will be decided by Director, SCL. This issues with the approval of Secretary, Department of Space. Sd/- (Manohar L Vanniar) Deputy Secretary.” CWP No. 20212 of 2011(O&M) -3- Aggrieved of the order of the aforesaid transfer, petitioner approached the Tribunal challenging his transfer primarily on the ground of want of authority and jurisdiction with the Govt. of India to transfer him from the society to another organization. It was inter alia pleaded that he being an employee of a society, Govt. of India cannot exercise any administrative control particularly in respect to the transfer outside the society to another organization which amounts to deputation. Vide the impugned judgement the O.A filed by the respondent has been allowed and order of the transfer of the petitioner set aside. The Tribunal has categorically held that the order of transfer is in the nature of a deputation and the Govt. of India, Department of Space had no authority or jurisdiction to transfer the petitioner from the society which does not have the administrative control of the Department of Space. When this case came up for consideration before us, petitioner was asked to place on record the bye laws of the society to enable this Court to examine the extent of administrative control to be exercised by the Department of Space vide order dated 2.11.2011. Pursuant to the aforesaid order petitioner has placed on record documents Annexures P-11 to P-13. Anenxure P-11 is a Memorandum of Association and rules and regulations of the society which govern and regulate the entire functioning of the society. From the Memorandum it appears that it is Govt. owned society. The initial Memorandum of Association for purposes of constitution of the society was signed by the Secretary to Govt. of India, Department of Space, Bangalore and various other Secretaries and Directors to Govt. of India. Under clause 4 of the Memorandum of Association a CWP No. 20212 of 2011(O&M) -4- Management Council of the society has been constituted for the management and governance of the society comprising of various Govt. officials and representatives of scientific organizations. The society has also framed rules of the S.C.L. Rule 11 prescribes the authorities and officers of the society and reads as under:- “11. The following shall be the authorities and officers of the Society. a. The Management Council b. The Director c. Such other authorities and officers as may be constituted/appointed as such by the Management Council and/or by the Govt.” Under Rule 12 Secretary, Department of Space, Govt. of India is the President and his nominee is the Vice President of the society. Rule 14 deals with the appointment of the officers of the society and reads as under:- “14. The Society shall establish and maintain its own office, stock-yards and workshops. Appointment to the various posts under the society shall be made in accordance with the recruitment rules framed for the purpose by the Management Council with the prior approval of the Govt.” Rule 31 deals with the management of Council. Relevant extract of the rule reads as under:- “31. The affairs of the Society shall be managed, administered, directed and controlled, subject to Rules, Bye- laws and orders of the Society, by the Management Council of the Society.” Under Rule 36 (iii) the Management Council has again been conferred the authority and power to appoint officers. The relevant extract reads as under:- CWP No. 20212 of 2011(O&M) -5- “iii. With the approval of the Govt., appoint various scientific, technical, administrative and other officers and staff of the Society, fix their remuneration and define their duties.” Rules 45 and 46 empowers the Chairman to conduct the business of the society and exercise such powers as may be delegated to him by the Management Council. Rule 47 specifically confers power upon the Director in respect to the general supervision and disciplinary control over the officers and staff of the society and reads as under:- “47. He shall subject to the provisions of these Rules and Bye-laws and decisions of the Management Council and Chairman, exercise general supervision and disciplinary control over the officer and the staff of the Society, and prescribed their duties and functions.” Learned counsel for the petitioner has also referred to an office memo dated 17.6.2010 issued by the Govt. of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training. While referring to clauses 3.1 and 3.2 (d) reproduced hereunder, it is argued that the Govt. of India has absolute control to transfer and depute a person from one organization to another. “3.1 The terms deputation/foreign service will cover only those appointments that are made by transfer on a temporary basis provided the transfer is outside the normal field of deployment and is in public interest. The question whether the transfer is outside the normal field of deployment or not will be decided by the authority which controls the service or post from which the employee is transferred. 3.2 (d) Arrangements necessitated by staff imbalances arising on re-organisation of offices on the same or different stations, subject to the specific condition that no deputation (duty) allowance will be admissible in such cases.” CWP No. 20212 of 2011(O&M) -6- We have heard learned counsel for the petitioner at length. It is indisputed that the respondent no.3 is an employee of the petitioner society, which is governed and regulated by the Memorandum of Association and the rules, referred to above. Even though, the society was constituted as a Govt. owned and controlled society, however, its status is that of an autonomous body. We have carefully gone through the various clauses of the Memorandum of Association which have been reproduced herein above. All pervasive controls of the society vests with the Management Council including administrative, supervisory and financial. Thus, the Management Council is the only governing authority in the society. There is absolutely no provision in the Memorandum of Association or the rules, wherein the Govt. can exercise the administrative or managerial control over the society. All that is required is the appointments of the officers of the society can be made with the prior approval of the Govt. and nothing beyond that. In so far the memo dated 17.6.2010 is concerned, its application is prescribed under Rules 2 and 2.1 which read as under:- “2. Application 2.1 These orders will apply to all Central Govt. employees, who are regularly appointed on deputation/foreign service in accordance with Recruitment Rules of the ex-cadre posts, under the same or some other Departments of Central Govt. or under the State Governments/Union Territories Administration/Local Bodies or under Central/State P.S.Us/Autonomous Bodies etc. set up or controlled by Central/State Governments provided the foreign service under such PSUs/autonomous bodies has been permitted in relaxation of appointment on immediate absorption basis. These orders will also cover the cases of regular appointment CWP No. 20212 of 2011(O&M) -7- on deputation/foreign service of employees of State Government/local bodies etc. as well as PSUs/Autonomous Bodies of Central/State Governments as per recruitment rules in the Central Government.” From the above clauses of the Memorandum, it appears that this Memorandum is applicable in respect to deputation/foreign service of the Central Govt. employees for ex-cadre post to the State Govt., U.Ts, Local Bodies, Central/State P.S.Us, Autonomous Bodies set up by Central or State Governments. It is, however, specifically provided that such deputation/foreign service is subject to the recruitment rules of the concerned organization. Thus, the deputation or transfer to ex-cadre post is permissive only if the rules so provide. Neither in the Memorandum of Association of the petitioner society nor from the rules, referred to above any authority vests with the Central Govt. or for that matters Department of Space to transfer an employee or officer of the petitioner society to any of the organizations outside the society. It is settled law that though the transfer is an exigency of service, however, the same can be on any post borne on the cadre of service. Transfer to any post outside the cadre of service is in the nature of deputation. Such a deputation can be ordered without the consent of the employee. No such power vests with the Department of Space, Govt. of India to transfer the respondent no.3 from the petitioner society to any ex- cadre post. On the basis of the above position, we do not find any infirmity in the order of the Tribunal. This petition is, accordingly, dismissed in limine. (PERMOD KOHLI) JUDGE (TEJINDER SINGH DHINDSA) JUDGE 9.11.2011. lucky Whether to be reported? Yes.