N.K. SINGH

UNION OF INDIA AND ORS.

AUGUST 25, 1994

[J.S. VERMA AND K., RAMASWAMY, JJ.]

Service law-Transfer from/a sensitive and significant PosrTansfer alleged to be prejudicial to public interest-Procedure of-Evidence required.

C Service law-Transfe,-Judicial Review-Scope of-Jud1cial interference in case of ma/a fides:-When justified.

Indian Police Service-Tenure Rule 8 read with Rule I-Infraction of-Ordinarily a tenure of 5 years in Central Police Organisatio~Total period of 5 years:-May be in more than one Central Police Organisation.

Interpretation of Statutes-Harmonious Construction-Rule 8 read with Rule 1 of Tenure Ru/es:-Ordinary tenure on deputation of 5 years of JPS Officer-May not be in one Central Police Organisation but in all-Total 5 years tenure.

E Service law-Administrative Tribunals Act, 1985--Sections 14 & 22--Central Administrative Tribunal-Rejection of a/legation of ma/a fides without respondents' reply-Improper.

The appellant, N.K. singh an I.P.S. Officer of 1961 cadre, was serving as I.G., CID in Orissa, when he was placed on deputation to the Ministry F of Home Affairs for live years from where on 12.02.90 he was appointed Joint Director, C.BI. When th'e appellant was in charge of a special investigation group conducting !lome sensitive investigation regarding the St. Kitts' affairs, he was transferred from the post of Joint Director, C.B.I. to an equivalent post of I.G.P. in BSF. Aggrieved by the transfer, the G appellant filed an application before the Central Administrative Tribunal.

The a1pellant challenged bis transfer on the grounds of: (1) ma/a fides attributed to the then Prim•' Minister, Sh. Cbandrashekhar; (2) being

In contravention of the Tenure Rules regulating the period of deputation in the Centrd Police Organisation; (3) being prejudicial to public interest H as made for the ulterior purpose of scuttling the sensititve investigation

N.K. SINGH v. U.0.1. 773

of which the appellant was in charge in the C.B.I.

The respondents did not dispute the caliber and high reputation of the appellant but strongly refuted the allegation of ma/a fides and the alleged ulterior motives. They contended that the transfer '"IS due to exigencies of administration, "as a necessary incident of the appellant's service and that the reasons for the same were not judicially reviewable.

Dismissing the appeal, this Court

HELD : l.l. The element of prejudice lo public interest was only involved in transfers from sensitive and important public offices and not in all. Mere suspicion of prejudice was not enough. Strong unimpeachable evidence was needed to prove definite substanti_al prejudice to public interest unless justified on the ground of public interest and exigencies of administration. (776-F, G)

1.2. It needed to be first pleaded and proved that the replacement was D by a person not suitable for the important post and the transfer was avoidable. There was no allegation that the successor in the C.B.I. was a pliable officer or in any way inferior to the appellant or unsuitable for discharging the duties of the sensitive office. Proceeding on the assumption that the appellant's successor was also a capable. competent and upright officer the appellant's transfer was not prejudicial to public interest.

(778-B, D, G)

2.1. A harmonious construction of the provisions of Rule 8 read with Rule 1 of the Tenure Rules indicated that the ordinary tenure on deputation of five years of IPS officers appointed to the posts of Inspector General of Police from their respective cadres in the Central Police Organisations had F to be not neccessarily in any one Central Police Organisation but in all, in one or more Central Police Organisations to which they were posted.

(780-CJ

2.2. CBI and BSF both being Central Police Organisations there had been full compliance of the Tenure Rules if the appellant had a total tenure G of at least five years in the Central Police Organisations to which be was posted during the period of deputation. That need not have been be iu the CBI alone. [780-E, F)

3. There had been no adverse effect of the transfer on the appellant's service career. The transfer had been on an equivalent post and two H

A promotions had been given the.reafter. There had been a need for a competent IPS Officer in the BSF as a result of the promotion of the senior IGP of BSF. These facts reflected in the relevant record negated the plea of ma/a fides. The transfer could not be held to have been made by the then Prime Minisler to wreak his vengeance upon the appellant. That impres

B sion of the appellant, even if honestly held, was not supported by any acceptable material. (781-H, 782-A, BJ

Regina v. Commissioner of Police of the Metropolis, (1968] 2 QB 118, distinguished!.

4. Allegations of ma/a fides having been made by the appellant on affidavit, the Tribunal should not. have rejected them without even requir ing a counter affidavit to rebut them. The Tribunal's perception that the allegations did not constitute the plea of mala fides had been obviously incorrect. The Tribunal also had not appreciated the true extent of scrutiny into the matter and the grounds on which a transfer was judicially D re'1ewable. (782-E, Fl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4656 of 1993.

From the Judgment and Order dated 5.4.91 of the Central Administrative Tribunal, New Delhi in 0.A. No. 733 of 1991.

Ram Je.thmalani, Ms Lata Krishnamurthi, and Abani Kumar Sahu for the Appeallant.

Altaf Ahmed, Additional Solicitor General, A.D.N. Rao, l'. Parmeshwaran, Ms. Anil Katiyar and Ms. Sushma Suri for the Respondent In No. l & 4:

G.L. Sanghi and Dr. B.S. Chauhan for the Respondent in No. 2 ..

G In-prson in Respondent in No. 3.

The Judgment of the Court was delivered by

VERMA, J. The appellant N.K. Singh belongs to the Indian Police Service and i• an officer of the 1961 batch allocated to the State cadre of H Orissa. The appellant was posted as I.G., C.I.D. in Orissa when he was

' N.K. SINGHv. U.0.1. [VERMA.'J.] 775

brought on deputation to an equivalant post of Joint Director in the A Central Bureau of Investigation (C.B.I.) in February 1990. By a notification dated 7.2.1990 issued by the Government of Orissa, the services of the appellant were placed on deputation to the Ministry of Home Affairs in the Government of India for a period of five years and by notification dated 26.2.1990 issued by the Government of India he was appointed Joint B Director in the C.B.I. until further orders w.e.f. 12.2.1990. The appellant was working in this capacity in the C.B.I. and was lncharge of a Special Investigation Group conducting some sensitive investigations. By an order dated 21.3.1991 which was served on the appellant on 26.3.1991, the appellant was transferred from the post of Joint Director, C.B.I. to the C Border Security Force (B.S.F.) in an equivalent post of l.G.P. Aggrieved by his tranofer from .C.B.I. to B.S.F., the appellant filed an application before the Central Administrative Tribunal on 25.3.1991 challenging his transfer on certain grounds. The Tribunal has dismissed that application, by the impugned order dated 5.4.1991. Hence this appeal by special leave. D

There is no dispute that the impugned transfer from C.B.I. to B.S.F., both of which are Central Police Organisations, has no adverse consequence on the service career and prospects of the appellant and the transfer of the appellant to B.S.F. was in an equivalent post of the rank of I.G.P. It has also been fairly stated by learned counsel for the appellant E that the appellant has not suffered any setback in his service career by this transfer inasmuch as he was promoted in due course in the B.S.F. in the year 1992 to the rank of Additional Director General of Police and then promoted further to the rank of Director General in the Bureau of Police Research and Development Branch of the B.S.F. in January 1994. The real F grievance of the appellant ventilated by his learned councel is that the appellant has been Ceased out of the sensitive post in the C.B.I. as Incharge of the Special Investigation Group investigating into the St. Kitts affair wherein there are allegations of forgery of some documents and of involvement in that forgery of some persons having political patronage, G because of his impeccable reputation as an officer beyond approach. On this basis the transfer of the appellant from C.B.I. to B.S.F. is challenged on the groud of malafides attributed mainly to the then Prime Minister of India, respondent No. 2, Shri Chandrasekhar. It is further urged that the appellant's transfer from the C.B.I. is prejudicial to public interest since it H

A is with a view to scuttle the s<:nsitive investigation. The incidental reference to respondent No. 3. Dr. Subramanyam Swami, the then Union Law Minister is not m•terial and, therefore, does not merit any further reference. It must be placed on reco:rd that on behalf of the respondents, the calibre and high reputation of the appellant were not disputed but the B allegation of malafides was strongly refuted as also the alleged ulterior motive for the transfer while contending that the transfer of the appellant from C.B.I. to B.S.F. was due to exigencies of administration and not for the purpose of removing the appellant from the post he held in the C.B.I.

Respondent No. 2 while vehemently denying the allegation of malafides has c asserted that the appellant's trani.fer was a necessary incident of his service and the reasons in the instant case are not judicially reviewable.

The Central Administrative Tribunal has rejected the appellant's application without even requiring counter affidavits to be filed by the respondents. This indeed was an unusual course to adopt when the appel- D !ant had alleged malafides on the. basis of certain facts. For this reason, in this appeal, the parties were required to file their affidavits and both sides were heard at length with reference to the averments made in their affidavits.

There are two aspects of transfer of a public servant holding a sensitive and important post. One: aspect relates to the private rights of the public servant as an individual pertaining . only to his service career. The other is concerned with prejudice to public interest irrespective of the individual interest. The element of prejudice to public interest can be. involved only in transfers from sensitive and important public offices and . not in all transfers. Mere suspicion or likelihood of some prejudice to public interest is not enough arid there must be strong unimpeachable evidence to prove definite substantial prejudice to public interest to make it a vitiating factor in an appropriate case unless it is justified on the ground of larger public interest and exigencies of administration. Such cases would G be rare and this factor as a vitiating element must be accepted with great caution and circumspection.

It the instant case, Shri J ethmalani has attempted to inteprate the two aspects to widen the range of attack, even though the case pleaded is J:I only of ma/a fides. However, we have considered both the aspects since

N.K. SINGH v. U.0.1. [VERMA, J.] 777

certain facts pleaded to urge malafides may relate to public interest as well. Ai

Shri Ram Jethmalani, learned counsel for the appellant did not dispute that the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of malafides and violation of any specific provision or guideline regulating such transfers amounting to arbitrarine'5. In reply, the learned Additional Solicitor General and the learned counsel for respondent No. 2 did not dispute the above principle, but they urged that no such ground is made but; and there is no foundation to indicate any prejudice to public interest.

In substance, the appellant's case, as projected by Shri Jethmalani, combining the two aspects is that the then Prime Minister, respondent No.

2, Shri Chandrasekhar was annoyed with the appellant because he felt embarrassed by the investigation made by the appellant of his compaint of D phone tapping; Shri Chandrasekhar was also interested in the so-called Godman Nek Chand Ghandhi alias Chandraswarni against whom allegation of forgery of some documents relating to the St. Kitts' affair was being investigated by the appellant; and therefore, to avoid any further embarrassment to Chandraswami as well as to wreak vengeance for the embarrassment in the phone tapping incident caused to him by the appeUant, he had directed the transfer of the appellant from the C.B.I. to the B.S.F.

There is no allegation that the appellant was replaced in this investigation .. by a pliable or less competent officer who may have facilitated the aUeged ulterior purpose.

Shri J ethmalani submits that the present case falls within the narrow scope of judicial review permitted in such cases since the transfer of the appeUant was prejudicial to public interest being made for the ulterior purpose of scuttling the sensitive investigation of which the appeUant was incharge in the C.B.I. It is urged that promotion of public interest must G govern the exercise of all public power and its negation vitiates the action taken. This is the gravamen of the charge levelled against the then Prime Minister, Shri Chandrasekhar (respondent No. 2) aod constitutes the substance of the plea of malafides. The question is, whether the ground is made out.

A fransfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchial superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of B a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and it5 absence is sufficient to exclude this factor from consideration as a •itiation element in the impugned C transfer. Accordingly, this aspect requires consideration at the outset.

It is significant that there is no allegation by the appellant that his successor in the C.B.I. was a pliable officer or that he was in any manner inferior to the appellant or unsuitable for discharging the duties of the sensitive office in the C.B.I. In fact there is not even a mention made at D any stage of the appellant's successor in the C.B.I. or his credentials or even a whisper against him of any kind. He has neither been named nor impleaded as a party. It is, therefore, not a case where the inferior quality of the successor-in-office would by itself support the appellant's contention that the object of transfer was to scuttle the sensitive investigation which E was being conducted by the C.B.l. under the supervision of the appellant.

Even though we have looked into the particulars relating to the progress of that investigation by the C.B.I. after the appellant's transfer only for the purpose of satisfying ourselves tha.t public interest.has not been jeopardised, yet the facts of the present case and the context of absence of any allegation of the unsuitability of the successor-in-office, are sufficient to require no further consideration of this aspect in the present context. In the present case, we must proceed on the assumption that the appellant's successor in the C.B.I. was also a capable, competent and upright officer like him and, therefore, the appe1lant's transfer from the C.B.l. to the B.S.F. was not. prejudicial to public interest. There is nothing else in the G present casewhich requires any further examination of the public element for testing the legality of the impugned transfer.

The remaining scrutiny must now be confined to the private rights of the appellant based on the pleas of malafides and contravention of the H Tenure Rules regulating the period of deputation in the Central Police

N.K. SINGH V. u.o.r. [VERMA, J.] 779

Organisations.

Shri Jethmalani has contended that according to the Tenure Rules, the appellant was entitled to continue on deputation in a Central Police Organisation ordinarily for a period of five years; . and he having been posted on deputation in the C.B.I. because of his background of experience B in the investigative field, he should have been continued in the C.B.I. for the entire period of five years. On this basis, the appellant claims that his transfer,'with the background of annoyance of the then Prime Minister Shri Chandreasekhar, was at least against the spirit of the Tenure Rules and supports the allegation of malafides.

In the detailed counter-affidavit filed by Shri Chandrasekhar, respondent No. 2, there is a categorical denial of the allegations made against him. He has asserted that even though he was unhappy with the manner in which the appellant handled the investigation into his complaint of tapping

of his telephone but that had nothing to do with his transfer from the C.B.I. D to the B.S.F. which was made in the ordinary course and according to the exigencies of administration. It is also contended that the appellants transfer was an ordinary incident of his service which had no adverse effect on his service career. The appellant was transferred to the B.S.F. in an equivalent post and since then he has also earned two promotions in the E B.S.F .. which came to him in dne course. It is further urged that the Tenure Rules which provide ordinarily a tenure of five years on deputation in the Central Police Organisations do not contemplilte the entire period of five years in one Central Police Organisation alone and, therefore, the B.S.F. also being a Central Police Organisation, there was no infraction even of F the Tenure Rules.

As for the effect of the transfer personally on the appellant, it is undisputed that there was no adverse effect thereof on the appellant's service career. The transfer of the appellant from the C.B.I. to the B.S.F. was on an equivalent post and the appellant was given two promotions G thereafter in due course as and when the promotions became due to him.

There was also no infraction of any rules or professed gnidelines as a result of the appellant's transfer from the C.B.I. to the B.S.F.

Rule 8 of the Tenure Rules for l.P.S. Officers to which reference has H

A been made by Shri Jethmalani pro; ides that JPS Officers appointed to the posts of Jnspeclor General of Police directly from their respective cadres will have a tenure of five years. This has to be read along with Rule 1 thereof which _says that JPS officers with a minimum service of seven years would ordinarilv be considered for induction in the Central Police Or- B ganisations and in the event of their not being found suitable they would be repatriated to their State cadres. A harmonious construction of the prmisions in these rules indicates that the ordinary tenure on deputation of five years of IPS officers appointed to the posts of Inspector General of Police from their respective cadres in the Central Police Organisations to C which they are posted has to be not necessarily in any one Central Police

Organisations but in nli, in one or more Central Police Organisations to which they are posted. It is, therefore, clear that the officers found suitable for being continued on deputation in the Central Police Organisations have an ordinary tenure of five years not necessarily in one Central Police Organisation but in all, in the Central Police Organisations to which they D are posted. These may be more than one also. The emphasis is on the total period of deputation in Central Police Organisations being five years and not on the entfre deputation continuing only in one Central Police Organisation.

Admittedly, C.B.I. and B.S.F. are both Central Police Organisations and, therefore, there is full compliance of the Tenure Rules if the appellant has a total tenure of at least five years in the Central Police Orgamsations to which he is posted during the period of deputation. This need not be in the C.B.I. alone. Obviously, this is the manner in which the Tenure Rules have been construed and understood in their application to the officers on deputation. A letter - MHA U.O. No. 1-21021/21/90- Pers. JII - dated 14.6.1991 of the Ministry of Home Affairs contained in the record produced by the learned Additional Solicitor General at the hearing before us relating to the appellant, reads at under :-

'Subject : Appointment of Shri N:K. Singh, JPS (Ori:61) as IG in

BSF.

DG BSF may please refer to their u.o. No. 11/5028/91-Pers/BSF

j "

N.K. SINGHv. U.0.1. [VERMA J.J 781

dated 29.5.91 on the above subject.

Shri N.K. Singh, JPS came on central deputation as Joint Dircctro, CBI w.e.f. 12.2.90 and transferred to B.S.F. as IG w.e.f. 2.4.91. As such, his normal term of 5 years will expire on 31.5.1995."

There is thus no infraction of the Tenure Rules in any manner by the B transfer of the appellant from the C.B.I. to the B.S.F.

From the relevant record produced by the learned Additional Solicitor General, it is also clear that the proposal for transfer of the appellant from the C.B.I. to the B.S.F. as Inspector General of Police C emanated in the ordinary course from the Ministry of Home Affairs and was occasioned by the urgent need to fill the post of Inspector General in the B.S.F. with a suitable officer consequent upon the promotion of tho seniormost Inspector General in the B.S.F. as Additional Director General, B.S.F.; and the appellant was considered a suitable officer; for appointment to that post. That proposal of the Ministry of Home Affairs was approved D in due course by the higher authorities including the Prime Minister.

Shri Jethmalani rightly urged that the record is bound to show that nothing unusual was done and the inference of malafides should be drawn by reading in between the lines and taking into account the attendant E circumstances. We have referred to the record only to mention that there is nothing therein to suggest that the transfer was unusual. No other suspicious circumstance is made but to permit the contrary inference. No roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinised with reference to the private rights F of an individual. There is thus no basis to accept the appellant's contention that his transfer was occasioned by ma/afides of the then Prime Minister on account of his annoyance with the appellant for the reasons stated or that it was in any manner contrary to the requirements of the Tenure Rules.

There is also material to indicate that there was need of a competent G JPS officer in the B.S.F. for being appointed to the post of Inspector General of Police as a result of the seniormost !GP of the B.S.F. being prompted and appointed to the post of Additional Director General, B.S.F.

As the record shows, that was the reason for moving the appellant from the C.B.I. to the B.S.F. to fill the vacancy created in the B.S.F. of a senior H

A !GP therein. These facts reflected in the relevant record negative the plea ..- of ma/afide urged by the appellant, even assuming that the appellant honestly believes in the correctness of his stand. The appellant's transfer cannot, therefore, be held to have been made by the then Prime Minister to wreak his vengeance upon the appellant. This impression of the appel- • B !ant, even if honestly held, is not supported by any acceptable material. "°

It is not necessary to refer lo the several decisions cited by Shri Jethmalarii since the grounds for judicial review of a transfer and the limits thereof are settled and not in dispute. One decision on which particular

c emphasis was laid by Shri Jethmailani may however be referred. That decisioL is Regina v. Commissioner of Police of the Metropolis, (1968) 2 Q.B. 118, which is clearly distinguishable. That relates to the performance of a duty and holds that a police officer owed a duty to the public to enforce the law which he could be compelled to perform and that his discretion in the matter was not absolute. In the facts of this case and the D reasons for _which we have reached the conclusion that the appellant's transfer from the C.B.I. to the B.S.F. is not vitiated. we do. not find this decision of any assistance. ·;

We may observe that we do not approve of the manner in which the

E Tribunal proceeded to decide the case. Allegations of malafides having been made by the appellant on affidavit, it is difficult to fathom how the Tribunal rejected them without even requiring a counter-affidavit to rebut them. The Tribunal's perception that the allegations made on affidavit by the appellant even without any rebuttal do not constitute the plea of

F malafide, is obviously incorrect. The Tribunal also did not appreciate the true extent of scrutiny into such a matter and the grounds on which a transfer is judicially reviewable. The conclusion we have reached in the present case is for the reasons given by us and not those which impelled the Tribunal to reject the appellant':; claim.

,.-

G We are impressed by the track record of the appellant and the uninhibited ac1cnowledgement and acclaim of his calibre and credentials •• even by the respondents in spite of the serious unsubstantiated accusations

made by the appellant against them. The future promotions earned by the appellant in due course are recognition of his merit and the assurance that H his needless excursion into the arena of litigation to challenge a mere

N.K. SINGH v. U.0.1. [VERMA, J.] 783

transfer not detrimental to his career prospects has fortunately not had any A adverse influence against him.

However, acceptance of the appellant's claim would imply that no other officer in the C.B.l. is competent and fit to conduct the sensitive investitgation and his successor would stand automatically discredited B without any such allegation being made or hearing given to him. That indeed is a tall order and impermissible in this proceeding where the other officers are not even participants. The tendency of anyone to consider himself indispensable is undemocratic and unhealthy. Assessment of worth must be left to the bonafide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a C government servant in a transferable service is a necessry incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account serveral factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere D may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchial superiors to make that decision. Unless the decision is vitiated by malafides or interaction of any professed norm of ,,, principle governing the transfer .. which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers E and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated.

The private rights of the appellant being unaffected by the transfer, he would have been well advised to leave the matter to those in public life who felt aggrieved by his transfer to fight their own battle in the forum available to them. The appellant belongs to a disciplined force and as a senior officer would be making several transfers himself. Quite likely many of his men, like him, may be genuinely aggrieved by their transfers. If even

a few of them follow his example and challenge the transfer in courts, the G appellant would be spending his time defending his actions instead of doing the work for which he holds the office. Challenge in courts of a transfer when the career prospects remain uneffected and there is no detriment to the government servant must be eschewed and interference by courts should be. rare, only when a judicially manageable and permissible ground H

A is made out. This litigation was ill-advised.

We do hope that this would be a passing phase in the service career of the appellant and his crusader's zeal would be confined to the sphere of his official activity for improving the image and quality of public service of the police force, in which he holds a high office. By achieving that purpose, he would render much greater public service. These observations are apposite in the present context.

The appeal is dismissed for the reasons given by us. No costs.

A.G.

Appeal dismissed.