Dr Biju Jacob vs The Comptroller & Auditor General Of India & Ors.

Applicant Dr.Biju Jacob is the Principal Accountant General (Audit II), Kerala, Thiruvananthapuram. He was posted as such on 8.2.2022 and taken charge on 3.5.2022. As per the standing instructions, he is entitled to have a fixed tenure of two years. Moreover, he is due for retirement on 31.5.2025, on attaining the age of 60 years. However, astonishingly, he stands transferred by Annexure A-1 order dated 12.9.2023 as Director General (Customs) in the office of the Comptroller and Auditor General of India, New Delhi. He is surprised by such a transfer for numerous reasons. He is a cancer survivor, still undergoing treatment. He has also other health related issues. He is a native of Thiruvananthapuram and is entitled to continue in Thiruvananthapuram at the fag end of service, till his date of retirement on 31.5.2025. Therefore, he challenges Annexure A-1 order to the extent of transferring him from the post of Principal Accountant General (Audit II), Thiruvananthapuram to Director General (Customs) in New Delhi.

The applicant is a 1993-batch Indian Audit and Accounts Service officer. While he was working on deputation in Oman during 2006-07, he was diagnosed with 'Non-Hodgkin's Lymphoma', a type of blood cancer. So he underwent treatment during 2006-07 in Oman and also in Muscat where his wife was working as a Doctor. Then he continued treatment in CMC, Vellore from 12.4.2007 onwards. In 2010, he was posted in Kohima as Accountant General, Nagaland. At that time, the second spell of the disease raised its ugly head and he had to continue treatment in CMC, Vellore including further cycles of chemotherapy. He had to undergo different rounds of Chemotherapy and had to be on leave for 410 days from 17.8.2010 to 30.9.2011. His ailment is known to all in the department including that of respondents 1 and 2. Considering his ailment, the respondents granted him posting at Thiruvananthapuram and then, he was on deputation to Vikaram Sarabhi Space Centre as Chief Controller from 2015 onwards and on relief therefrom, was posted as Principal Accountant General (Audit II) Thiruvananthapuram. He was also holding the charge of Principal Accountant General (Audit I), while so the order of transfer case as a bolt from the blue; Annexure A1 has been issued arbitrarily and violating all principles of service jurisprudence.

Moreover, it is submitted that there is absolutely no mention in Annexure A-1 that he has been transferred in public interest. The respondents have a liability to maintain the minimum tenure as stipulated in Annexure A 14 which was issued following the verdict of the Hon’ble Supreme Court in T.S.R Subramanian (AIR 2014 SC 263). Moreover, while working in VSSC, he had enrolled himself as a member of the Contributory Health Service Scheme which is more advantageous than the CGHS. He has been incurring large sums of money for continuous medical treatment. Even recently, he had undergone gallbladder surgery. He requires continued and periodic lab tests. Normally it has to be done in CMC Vellore, but in as a sub-centre of CMC Vellore he is taking such lab tests in Thiruvananthapuram and the benefits under the CHSS of the VSSC are not available elsewhere. On all these considerations, he attacks Annexure A-1 which is sought to be quashed and directions are sought against the respondents to allow him to continue in Thiruvananthapuram in the present post till the date of retirement on 31.5.2025.

According to the applicant, based on the dictum laid down by the Hon’ble Supreme Court in T.S.R Subramanian, the respondents are bound to honour the provision regarding tenure posting. This is evident from Annexure A-14 which says that they are bound to grant him at least a minimum tenure of two years to ensure stability and continuity. But in his case, that rule has been violated. According to him, Annexure A-1 has been passed arbitrarily, is discriminatory and violating constitutional guarantees enshrined in Articles 14, 16 and 21 of the Constitution. He further states that it is mandatory that such an order of transfer should be made only after a recommendation by the Civil Services Board, which has not been done; moreover, it is submitted that no one else has been posted in his place as Principal Accountant General (Audit II), Thiruvananthapuram and therefore, he seeks quashing of Annexure A-1 as regards his posting as Director General of Customs in the office of the Comptroller and Auditor General of India in New Delhi.

The respondents have seriously opposed the contentions in the O.A. They have challenged the very maintainability of the O.A. Citing various authorities, they said that it is the prerogative of the competent authority, the employer to transfer the employee. The applicant is a senior All India Service personnel and his services are very much required in the office of Director General of Customs and therefore, it is in the betterment of organisational interest that he has been transferred. According to the respondents, he was transferred on humanitarian considerations only. He will get better medical facilities in New Delhi in the All India Institute of Medical Sciences, etc. where such facilities are available. Similarly, the minimum tenure claimed by the applicant cannot always be insisted upon. Such a condition is subject to the administrative exigencies. Here, the services of the applicant are necessary in New Delhi and therefore it was to tap his experience and expertise that he has been posted in the office of the Controller General of India in the Customs wing. Moreover, referring to Annexure R2 series applications filed by the applicant, it is submitted that in 2022 and 2023, the applicant had made representations for deputation to the post of Chairman of the Pension Fund Regulatory and Development Authority (PFRDA) and then to the post of whole-time Member, Securities and Exchange Board of India (SEBI) and also as the Deputy Governor of Reserve Bank of India, then as the Member (Law) of the Pension Fund Regulatory and Development Authority of India. These posts are located either in New Delhi or in Mumbai and therefore, after having made such representations, he cannot say that he should not be transferred out of Thiruvananthapuram. Moreover, on 9^th July 2023 to 7^th August 2023, he had been to Israel, Armenia and Jordan on official work and that means, his claim that he should be retained in Thiruvananthapuram has no basis.

According to the respondents, such a transfer is effected on the basis of the recommendations made by the Civil Services Board I and therefore, he cannot take the contention that the recommendations of the Board were not taken.

According to the respondents 1 and 2, the applicant was transferred to New Delhi in administrative exigencies only, in public interest and the contentions raised by him have no force of law and therefore, the application is sought to be dismissed.

The applicant filed a detailed rejoinder reiterating the contentions in the Original Application. According to him, the argument that he has advanced such contentions for continuing his posting at Thiruvananthapuram is not correct. It is his entitlement to continue there during the fixed tenure. He had joined the present post on 3.5.2022 only and within a short span of about one year and 4 months, he has been transferred, which is illegal.

The applicant has disputed the contention that he is transferred on the basis of the recommendations made by the CSB-I. So, he wanted the respondents to produce the minutes of the said Board meeting. Moreover, the respondents have shown special interest in the case of the 4^th respondent. Even though applicant is the senior officer, he was not granted the controlling post of Principal Accountant General (Audit I), but he has no complaint about it. Still, he ought to have been permitted to retire from Thiruvananthapuram, especially in the given health conditions, which are known to the respondents.

Referring to Annexure R-2 series representations for deputation given by him, according to the applicant, that do not mean that he may get such postings. Even if it is obtained, there is no guarantee that he may take up such deputation. His recent visit abroad was purely on official grounds; considering his medical conditions, he was accompanied by his wife and additional expenditure had to be met by him for the travel of his wife. According to the applicant, Annexure A1 is not issued taking into account relevant considerations, it is bad in law and therefore is liable to be interfered with.

I heard Shri.T.C.Govindaswamy for the applicant and Shri.V.V.Ashokan,Sr Advocate for the respondents 1 and 2.

According to the learned counsel for the applicant, apart from the fact that the applicant is undergoing treatment for blood cancer, he had also undergone surgery for gallbladder recently. Referring to various documents he said that he has to undergo periodic blood tests and other tests which are normally done at C.M.C Vellore, such blood tests can be done in Thiruvananthapuram also. Moreover, the CHSS facility extended to him as a special case is advantageous to him, when such facilities availed, CGHS facilities are not available to him and therefore, if he is allowed to continue in Thiruvananthapuram, he will be able to manage his health properly. Referring to Annexure A-14 and Advanced Law Lexicon, the learned counsel pointed out that 'generally' means, as a general rule, the two years fixed tenure is the general rule and transferring him before the expiry of the tenure is an exception but reasons for adopting such an exceptional course should have been stated, which has not been done. In this connection, he has relied on the decision in T.S.R Subramanian’s case and also the decision in Dr.T.P.Senkumar v. Union of India and Others ((2017) 6 SCC 801).

According to the learned counsel, it is ridiculous to say that he has been transferred to New Delhi on humanitarian considerations. He is a known patient of blood cancer undergoing treatment from 2006 onwards. Therefore, it cannot be heard that he has been transferred to New Delhi at the fag end of his service on humanitarian considerations.

On the other hand, according to the learned Senior Counsel representing respondent nos.1 and 2, transfer is the prerogative of the competent authority respondent nos.1 and 2; the applicant was transferred in public interest only in the exigencies of service, for protecting organisational interests which outweigh personal inconveniences of the applicant. He reiterated that best medical facilities are available in New Delhi. The applicant is one of its senior officers, and therefore, his services are very much required in the office of Comptroller and Auditor General of India. Therefore, in order to tap his services only, he is transferred and in the absence of any malafides alleged by the applicant, the Court cannot interfere with the same. Therefore, he prayed for dismissing the application.

At the time of admitting the O.A on 18.9.2023, an interim order was passed directing the respondents to keep the transfer of the applicant in abeyance. That order continues. On the strength of that order, the applicant continues in Thiruvananthapuram.

The applicant is a 1993 batch Indian Audit and Accounts Service Officer. His official profile is not in dispute. From the averment of both sides, it appears that the applicant had served the office of the Accountant General, Thiruvananthapuram initially from 1995 to 2002 as Deputy Accountant General. Then, from 2002 to 2005, he was Senior Deputy Accountant General in Rajkot in Gujarat. From 2005 to 2010 he had been in Oman and Muscat on deputation. It was during this period that he was diagnosed as a patient of 'Non-Hodgkin's Lymphoma', a type of blood cancer for which initially treatments were obtained in Oman and Muscat. It also appears that during that period his wife, a Doctor was working in Muscat and initial treatments were done abroad. Later, he started taking treatment from Christian Medical College Vellore. During that period, he was transferred as Accountant General, Kohima in Nagaland. But after some time, second spell of the disease surfaced and he had to be on leave for 410 days from 17.8.2010 to 30.9.2011. Thereafter, it appears, he was again posted at Thiruvananthapuram for about a year. From Oct 2011 to 2015, he was in Thiruvananthapuram and was then granted a deputation to VSSC as Chief Controller of Accounts. He worked as such from 23.3.2015 to 3.1.2022. From 4.1.2022 to 3.3.2022, he was on leave for two months and thereafter, was posted as the Principal Accountant General (Audit II), Thiruvananthapuram on 8.2.2022 but owing to administrative reasons, he could assume charge only on 3.5.2022.

From the arguments of the learned counsel for the applicant as well as the learned Senior Counsel, it is clear that for about 17 years out of the entire service, the applicant had been working in Thiruvananthapuram. It is also not denied that the applicant has been given maximum accommodation by the respondents facilitating his treatments from 2006 - 2007 onwards till the impugned order of transfer made in 2023.

In other words, absolutely no malafides is alleged against the respondents in effecting the transfer. During the course of the argument, I had put a specific question to the learned counsel for the applicant as to whether there is any imputation of malafides in issuing Annexure A-1 transfer. But the learned counsel fairly submitted that he does not say that there is any act of malafides, but according to him, such a transfer has been given on extraneous considerations, may be to favour somebody and in that way, the applicant has become the victim. In the absence of any such malafides on the part of the respondents, there is no meaning in saying that the transfer is vitiated on extraneous considerations.

The respondents have also submitted that the transfer was made on the recommendations of the Civil Services Board 1. The applicant has insisted that they should be directed to produce the minutes of the said Board. But, I do not think that such a course is to be made. When the respondents who are responsible officers make the submission in writing that the transfer was effected on the recommendations of the CSB, there cannot be any reason to go behind it and insist on the production of the minutes. Therefore, such a request is unwholesome.

The applicant is a senior officer with All India transfer liability. As said earlier, covering major part of his service, he had been working in Thiruvananthapuram either on regular posting or on deputation. He had been away for three years in Rajkot in Gujarat and then for a short spell in Kohima in Nagaland. On his own request, he was sent on deputation to Oman and Muscat, may be to join his spouse. It is very obvious that the respondents had been showing him maximum indulgence in the matter of posting. Therefore, there is little meaning in saying that he should not have been transferred from Thiruvananthapuram, disregarding the provisions regarding tenure of two years provided in Annexure A-14.

After all, the provision regarding tenure in Annexure A-14 cannot be given undue importance. It is only guidelines. As held by the Hon'ble Supreme Court in numerous authorities, such guidelines cannot take the force of law. It may guide the respondents in the matter of transfer and postings. But it cannot be given unwanted emphasis to hold on in one place for one reason or the other. In Annexure A 14 itself it is made clear that the guidelines will not apply to cases of transfers on administrative grounds and exigencies of work.

Dr.T.P Sen Kumar’s decision cannot come to the rescue of the applicant. It is evident that such a decision was rendered in a different context. Dr.T.P.Sen Kumar was an Officer of the Indian Police Service and was governed by the provisions of the Kerala Police Act. Section 97 of the Kerala Police Act specifies that the State Govt. shall ensure a minimum tenure of two years for the State Police Chief. But here, the applicant does not have the support of any such statutory mandate to continue in his post for a minimum of two years. Annexure A-14 cannot take the force of law and therefore, such an argument cannot hold good.

Moreover, it is the definite case of the respondents that the transfer has been given in the exigencies of service, for safeguarding organisational interests. Even though Annexure A-1 does not specifically say that it is made in public interest, it can be assumed that such transfers and postings were made in the public interest only. In the absence of any malafide, which is not alleged or proved, it should be presumed that such transfers were made in public interest only.

The fact that he has only 19 more months left for retirement, cannot be blown out of proportion to continue in Thiruvananthapuram. It is for the respondents to say and decide where an employee should be posted and in such matters, the employee has little voice. The specific case of the respondents is that it is only in exigencies and administrative convenience that he has been transferred to Delhi. Even though the contention that he has been transferred on humanitarian considerations cannot be adopted, still, New Delhi is a place where higher medical centres are available, so it cannot be thought that it is done to cause him trouble.

As mentioned earlier, absolutely no malafides is alleged, and no motive can also be inferred from the transfer. The contention that he is enjoying the benefits of CHSS so that he should be allowed to continue in Thiruvananthapuram, cannot be accepted. Evidently, he is pursuing treatment in CMC, Vellore. For that purpose, he cannot insist that he should be allowed to continue in Thiruvananthapuram. Better lab facilities are available all over the country. Therefore, such an argument cannot be accepted in right earnest.

In my assessment, the arguments raised by the applicant to allow him to continue in Thiruvananthapuram till his date of retirement pale in to insignificance in the light of Annexure R-2(a) series representations given by him. Annexure R-2(a) is a request for forwarding his application to the post of Chairman PFRDA, in New Delhi. Annexure R-2(b) is a request for the post of whole time Member in the Securities and Exchange Board of India, which is located in Mumbai. Similarly, he has applied for the post of Deputy Governor in the Reserve Bank of India and also Member (Law) of the Pensions and Regulatory Board and Development Authority. In fact, Annexure R-2 series documents completely eclipse his grounds based on medical or personal reasons to allow him to continue in Thiruvananthapuram.

As adverted to earlier, the respondents have always been considerate to the applicant. He has been granted optimum accommodation and was given postings at Thiruvananthapuram whenever possible. He was also given a deputation in VSSC and he continued as such from 2015 onwards till his repatriation and posting as Principal A.G, Thiruvananthapuram. It has also come out that, he had been on leave from 04.01.2022 to 03.03.2022 before repatriation. In fact, there are reasons to think that he was made to avail leave and repatriation was delayed to advance his interests only, that is awaiting the occurrence of the vacancy in the A.G's Office for accommodating him. After having given so much accommodation and showing indulgence, when he was transferred, in the exigencies of service, he cannot be heard to say that it is vitiated in any manner.

After considering all the relevant aspects and also bearing in mind various principles laid down by the Hon'ble Apex Court in the matter of transfer and postings of officers, I am not convinced that any overwhelming reasons are made out by the applicant for interfering with the Annexure A-1 order. Therefore, the O.A is dismissed. No costs. Interim order shall stand vacated.

Annexure-R2(c): A true copy of the letter dated 24.03.2023 submitted by the applicant.

Annexure-R2(d): A true copy of the letter dated 25.08.2023 submitted by the applicant.