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TMI Blog1994 (8) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant was working in this capacity in the C.B.I. and was Incharge 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 Border Security Force (B.S.F.) in an equivalent post of I.G.P. Aggrieved by his transfer 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. 2. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 and 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 be rare and this factor as a vitiating element must be accepted with great caution and circumspection. 5. It the instant case, Shri Jethmalani has attempted to integrate the two aspects to widen the range of attack, even though the case pleaded is only of mala fides. However, we have considered both the aspects since certain facts pleaded to urge malafides may relate to public interest as well. 6. Shri Ram Jethmalani, learned Counsel for the appellant did not dispute that the scope of judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of 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 its absence is sufficient to exclude this factor from consideration as a vitiation element in the impugned transfer. Accordingly, this aspect requires consideration at the outset. 10. 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 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-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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 B.S.F. which came to him in due 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 contemplate 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 the Tenure Rules. 14. 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 thereafter in due course as and when the promotions became due to him. There was also no infraction of any rules or professed guidelines as a result of the appellant's transfer from the C.B.I to the B.S.F. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, IPS came on central deputation as Joint Director , 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 transfer of the appellant from the C.B.I. to the B.S.F. 17. 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 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 the senior most 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 in due course by the higher authorities including the Prime Minister. 18. 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 betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, we do not find this decision of any assistance. 21. We may observe that we do not approve of the manner in which the 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 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's claim. 22. We are impressed by the track record of the appellant and the uninhibited acknowledgement 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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