9911796707
TMI Blog2005 (8) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. v. State of Bihar and Ors. (1991)IILLJ591SC, 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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