UNION OF INDIA Vs. M M CHOLAN

JUDGEMENT

(1.) THE first respondent herein belongs to the Indian Company Law Service. He was transferred to Chennai from the Post of Deputy Director, Policy, Ministry of Company Affairs, New Delhi, by an order dated 13.12.2005, at his request. But, within a period of seven months, he was once again transferred from the said post to Calcutta as Deputy Director (Inspection) by order dated 17.7.2006. Challenging the said order, the first respondent herein has filed O.A.No.531 of 2006 before the Tribunal on the averments that as per the transfer policy issued by the Government, no transfer can be made within a period of three years and as such, the impugned order of transfer passed within a period of seven months is liable to be set aside. It is further stated that the order of transfer is against the Government Order dated 30.9.2002 and was passed at the instance of the third petitioner herein viz. the Regional Director, Southern Region and who from the beginning does not want the first respondent to continue in Chennai. It is further stated that the first respondent has made representation dated 30.6.2006, but, in spite of that, the transfer order has been passed. He further submitted that his daughter was studying 1st year B.Sc. in Women's Christian College, Chennai and his son is studying in plus one in SBOA School, Chennai and the transfer order has been made in the middle of the academic year.

(2.) THE petitioners and the second respondent herein, who are the respondents 1 to 4 in the O.A. have filed a reply statement denying the allegations of the applicant and further submitting that the Central Bureau of Investigation had filed a case of disproportionate assets against the applicant, and on their recommendations, the applicant was placed under suspension w.e.f. 10.7.2000. On the recommendations of the CBI and the concurrence of the Central Vigilance Commission, sanction for prosecution had been given for the prosecution of the applicant under the Prevention of Corruption Act on 31.3.20003 and the case is pending in the special CBI Court, Chennai. THE suspension of the applicant was revoked on 16.3.2005 and he was posted as Deputy Director at Headquarters of Ministry of Company Affairs, Shastri Bhavan, New Delhi. Later, by the order dated 13.12.2005, the applicant was transferred on his own request to the post of Deputy Official Liquidator in the Office of the Official Liquidator, High Court, Chennai and as the said transfer from Headquarters to Chennai was on his own request, the applicant cannot claim that this order was also issued on administrative exigencies.

(3.) THE applicant/first respondent herein has filed a rejoinder refuting the contents of the counter filed by the writ petitioners herein before the Tribunal stating that it is the normal practice in the Ministry of Company Affairs that an Officer is retained in his post for a period of three years in case of single-officer stations and about five years in case of multiple officer stations and the Ministry follows this practice for almost all officers. Some officers have been retained in their posts for more than five years and in some cases even upto seven years, however, in the applicant's case alone, he has been transferred in the course of a year or even less many times. It is settled law that the administrative instructions are applicable when the rules are silent on a particular aspect and therefore, the first writ petitioner cannot be allowed to escape from his responsibilities by reducing the decision to a 'guideline'. THE case of disproportionate assets has no relevance to the case at hand.