1. This Court is called upon to decide whether the action of the respondent in transfering the petitioner who is working as Deputy Manager (Personnel and Administration) as Officer on Special Duty, with effect from 03-04-1995 vide his Proceedings No. II:ADM:63:95, dated 14th March, 1995 and in directing him to assist Marketing, Accounts and Purchase Departments on the matters enumerated in his proceedings No. IIL:9.1:019;051, dated 10/11-04-1995 is legal and sustainable in law.
2. By order dated 07-02-97, I directed the respondent Corporation to produce the advertisement said to have been issued in the year 1979, pursuant to which the petitioner was selected and was given posting as Personnel and Administrative Officer by the respondent Corporation in its proceedings Ref. No. HYD:II:PER253 5A dated 30-09-1982. In Memo dated 2nd December, 1995, the Corporation stated that the file is not available in the office in the following terms:
“A copy of the advertisement issued in the year 1979 against which the petitioner was recruited for the post of Assistant Executive (P & A), not traced, since the file pertaining to advertisement in the year 1979-1980 not traceable. However, documents listed in the enclosures at Sl. Nos. 11 and 12, establish the fact that the writ petitioner was recruited against the posting of Assistant Executive (P & A).”
3. The petitioner seemed to have been appointed to this post taking into consideration his past experience in Personnel and Administrative Departments in various offices enumerated in Para-3 of the affidavit filed in support of the writ petition. Thereafter by proceedings No. II:ADM:51:87:9309, dated 19th February, 1987, the petitioner was appointed as Assistant Manager again in the Personnel and Administration Department. Once again in 1992, the respondent Corporation by its proceedings dated 17th July, 1992 appointed the petitioner as Deputy Manager in Personnel and Administration Department. For the present, it is suffice to state that the Personnel and Administration Department is expected to look after the Personnel Management and Industrial Relation matters. Deputy Manager (P & A) seemed to be the head of this department and as the nature of duties are mostly administrative in nature and includes laying down policy decisions working out strategies in the area of industrial relations, personnel management, General Administration, Security and assigning duties and responsibilities to his subordinate staff. While the petitioner was working in that capacity, the respondent unit transfered his services to National Dairy Development Board, (for short ‘N.D.D.B’) Anand, till further orders stating that he needs further training and exposure in Human Resources Development (for short ‘H.R.D’) and Organisational Development (for short ‘O.D’) by Proceedings No. DL:9:1:019:P 218, dated 29th August, 1994. The said order says that the petitioner is attached to H.R.D Department of N.D.D.B for training purpose and he will be governed by the Indian Immunological Rules and Regulations. Having received the said orders, the petitioner by his representation dated 2nd September, 1994 while agreeing to proceed to N.D.D.B for training, brought to the notice of the respondent Unit that the training period was not mentioned and the order stated that he was transfered to N.D.D.B, which may not be correct. On the same day by another representation, the petitioner categorically stated that as his appointment is in respondent unit, he cannot be transfered outside the unit, more so without obtaining his express written consent for transfering his service to N.D.D.B
4. But, the respondent seemed to have not responded to these representations and the petitioner reported at N.D.D.B for training on 6th October, 1994. While he was undergoing training in N.D.D.B, the Adviser and Chief Executive of the respondent Unit issued the impugned office order in Ref. No. II: ADM:63:95, dated 14th March, 1995, redesignating the petitioner as Officer on Special Duty (for short ‘O.S.D’), with effect from 3rd April, 1995. The said order and the consequential order assigning the duties for ‘O.S.D’ by another proceedings dated 10/11-04-1995 are extracted hereunder:
“II:ADM:63:95 14th March, 1995.
OFFICE ORDER
Shri R. Sudhakar, presently working as Deputy Manager (Per. and Admn.) is redesignated as ‘OFFICER ON SPECIAL DUTY’ with effect from 3rd April, 1995, without affecting his present grade, basic pay and seniority.
Consequent to his redesignation as Officer-on-Special Duty, he is being posted at Indian Immunologicals Head Office, and shall carry out the assigned duties as per the directions of the undersigned.
Shri R. Sudhakar should report for duty to the undersigned at Indian Immunologicals Head Office, on 3rd April, 1995.
“Advisor and Chief Executive”
“IIL:9:1;019:05110/11-04-1995
Shri R. Sudhakar
Officer on Special Duty
On assuming duties at the Head Office, the following will be your assignments:
1. You shall assist Marketing, Accounts and Purchase Departments on the following matters:
2. You shall make a comprehensive study of sundry debtors list which is already made with the following classifications:
i) Age-wise segregation.
ii) Category-wise segregation such a milk union/Govt. and trade.
iii) Classification in a, b, c, d considering the amount of outstanding.
iv) Correspondence to be made with all the sundry debtors on the basis of above, and should any discrepancies regarding invoice and any other documents arise, these are to be obtained from Marketing/Accounts and sent to the sundry debtors.
B. Considering the pattern of payment by the various milk union, which have a history of delayed payments, Marketing Department should be advised not to extend any credit whatsoever to those unions who are defaulters.
C. Coordination with the various Regions and advising them to follow-up with the debtors through their field personnel wherever correspondence is continuing and results are not obtained.
D. Similarly to study the sundry debtors from trade parties and advise Marketing Department to withhold any further credits to these parties wherever the parties have flouted the credit norms.
E. Intimate Assistant Manager (P & A) to send legal notices to those who have not paid for more than six months and similarly, to send legal notices to parties whose cheques have bounced.
F. Taxes and Octoroi matters.
G. Matters concerning insurance claims and other claims such as Railway authorities.
H. Ascertaining the lost and damaged material in transit and co-ordination with despatch/depot/insurance company.
As Shri R.K.P Verma, Manager (Marketing) is heading the overall administration in the Head Office, you shall report to him till further instructions.
Adviser and Chief Executive
Copy to General Manager for information.
CC: Shri R.K.P Verma Manager (Marketing)
CC: All Departmental Heads.”
5. Aggrieved by the said orders, the present writ petition is filed by contending that as the petitioner was recruited for a post in a department specialised in Human Resources and Organisational Development, he cannot be transfered and redesignated as ‘O.S.D’ and direct him to assist Marketing, Accounts and Purchase Departments in which he is neither having expertised knowledge nor experience. Such an action is arbitrary and the same is liable to be interdicted by this Court in exercise of its power of judicial review under Article 226 of the Constitution of India. In support of his contention, he has also relied on an unreported judgment of this Court in T. Rama Murthy v. Vice-Director and Managing Director, Nizam Sugar Factory, W.P No. 1111/92, dated 17th July, 1992.
6. Having failed to get an interim order, the petitioner seemed to have reported to duty as ‘O.S.D’ and it will be useful to extract the office order dated 11th September, 1996 issued by the respondent to know the mind of the respondent Unit in removing the petitioner from the post of Deputy Manager (P & A):
“OFFICE ORDER
Shri R. Sudhakar, Officer on Special Duty is hereby informed that he is authorised to issue legal notices on behalf of Indian Immunologicals through Indian Immunologicals approved legal advisors, to sundry debtors for collection of outstanding amounts.
All concerned are requested to co-operate in this matter.
Chief Executive”
7. The respondent Unit in its counter as usually raised the plea of non-maintainability of the writ petition such as private contract of employment, commercial transactions etc., though the Unit can be treated as instrumentality of the State. The respondent Unit nextly relying on Clauses 3, 9 and 10 of the letter of appointment contends that the petitioner is liable to be posted to any post and he can also be transfered to another department of the Unit or field duties. Nextly, while the respondent admitting that the petitioner was appointed in the department of Personnel and Administration, stated that he was also looking after the legal work of the organisation as there was no separate legal department. It is also their contention that Engineering, Production and Quality Control Department etc., can be treated as technical and all other jobs, posts or departments should be considered as non-technical and as such the petitioner's services can be transferred from one Non-technical Department to another Non-technical Department more so, when the occasion demands in the high interests of the Unit. The respondent Unit further contends that out of total sale turnover of about Rs. 11.5 crores about Rs. 4.00 crores are due from various creditors and the petitioner was posted as ‘O.S.D’ to take special care for realisation of this amount. They have also contended that this is not the first occasion where personnel of the respondent Corporation were entrusted with special work and gave some examples in support of their action. It is interesting to note the last contention of the respondent Corporation in Para 4, which is reproduced hereunder:
“x x x x This writ petition is filed only to fish out the material which the Management is likely to rely upon before the Enquiry Officer.”
Again in Para 6, it is stated as hereunder:
“The petitioner was duly issued with a chargesheet and duly suspended, pending enquiry.”
8. These two averments itself will prove that the petitioner's transfer was effected by the respondent Unit not in the exigencies of the administration but pending enquiry into certain charges levelled against the petitioner. It is always open to the respondent Unit to keep an employee under suspension for the reasons to be recorded in writing and the employer need not resort to removing the employee from the post held by him without keeping under suspension under the guise of exercise of the powers of transfer vested in it more so to an unconnected post. Such an action on the part of the respondent Unit is nothing but arbitrary exercise of power and this Court is bound to set at knot the injustice done to the petitioner as arbitrariness in exercise of power is anti-thesis to Article 14 of the Constitution of India. On this ground itself the writ petition has to be allowed.
9. Even on merits, it is not in dispute that the petitioner was appointed way back in 1982 in the Personnel and Administration Department of the respondent Unit on the basis of an advertisement, wherein the qualifications prescribed seemed to be for the post of Assistant Executive (P & A) as shown by the respondent Unit in their memo dated 2nd December, 1995 which was also extracted supra.
10. But, from the impugned office order, it is seen that while the petitioner was redesignated as ‘O.S.D’ he was directed to assist Marketing, Accounts and Purchase Departments. The job requirements of the ‘O.S.D’ and the Deputy Manager (P & A) are extracted hereunder:
“Duties And Responsibilities Assigned To The Post Of ‘O.S.D’
“Duties And Responsibilities Assigned To The Post Of D.M (P & A)
1. To assist Marketing, Accounts and Purchase Department.
1. Authorised to act as Employer Appointing Authority for recruitment and as Disciplinary Authority in respect of workmen category of P. & A Department, at the Head Office and Plant, Additional charge of RHRC Department.
2. To make comprehensive study of sundry debtors with classifications to make correspondence with sundry debtors.
2. Allocation of duties to P & A Department officers and staff and effective monitoring of Department, independently.
3. To advice the Marketing Department not to extend credit sales to milk Unions.
3. To look after recruitment manpower planning, industrial relations, H.R.D activities.
4. Coordination with regions and advising them to follow up with debtors.
4. Liasion with statutory Authorities, obtaining various statutory clearances for the project implementation.
5. To advise Marketing Department to withhold credit to trade parties.
5. Bilateral union negotiations with the union for wages, negotiations, allowances, bonus and discipline.
6. Intimate Assistant Manager (P & A) to send legal notices.
6. Representing Organisation before the Courts, Central and State Statutory authorities. Authorised to enter into Agreements, Settlements with the Trade Union.
Complete Incharge of legal matters of Head Office and plant.
Representing N.D.D.B and its subsidiary units before judicial Authorities, Arbitrations and Consumer Forum cases.
7. Taxes, Octroi matters Insurance Claims, Coordination with depots to ascertain lost and damaged materials.
7. Co-ordination with all the Department Heads for maintenance of harmony and cordial human relations. Close monitoring with State Revenue Department for allotment of land for construction of Head Office building.
Maintenance of House Building allowances to employees and legal scrutiny of the documents etc.
11. The qualifications required for holding the posts in the department of Personnel and Administration and Marketing as evidenced from the advertisement given by the respondent Unit are deduced hereunder:
“Advertisement for Recruitment of Marketing Personnel
“Advertisement for Recruitment of Marketing Personnel and Administration
Post: Deputy General Manager (Mktg.)
Post: Assistant Manager (P & A)
Qualifications:
Qualifications:
MEA with Degree in Veterinary Science Pharmacology/Science
1st Class/higher II Class Post Graduate Degree in Personnel Management/Labour Laws.
Job Description:
Job Description:
Job involves heading of total Marketing/Sales Operations, besides being overall incharge of all commercial operations. Responsible for conceptulisation and implementation of innovative marketing strategies and shall build up all India Sales Distribution network and develop aggressive marketing/sales team to meet the growth oriented targets, should be outstanding and result oriented leader with strong roots in pharmaceutical/veterinary product marketing.
Dealing with all the functions of personnel and industrial relation matters, union negotiations and factory administration in reputed and professionally managed organisation in a responsible position.
Experience:
Experience:
15 to 18 years experience in marketing pharmaceutical/veterinary products. Exposure to export/international marketing will be an added advantage.
7/8 years experience in reputed and professionally managed organisation in a responsible position.
12. From the above it is seen that while the personnel working in Personnel and Administration Department are more concerned with recruitment of manpower, planning and Industrial Relations and has on work with other statutory authorities, negotiations with Unions for maintaining industrial peace and representing the organisations before various Courts, State and Central Governments and other authorities and the petitioner by virtue of the position held by him, he is now acting as Head of this Department. But, by the impugned proceedings as well as the assignment of duties as reiterated in its order dated 11th September, 1996, which are extracted supra, his duties were brought down from that of an employer to that of issuing legal notices through its legal advisors to the sundry debtors for collection of the outstanding amounts.
13. From the job experience of a Deputy Manager (Marketing) extracted supra, it is seen that realisation of the debts purely rests upon the personnel working in marketing Unit, but not on the personnel working in Personnel and Administration Department.
14. The respondent states that pursuant to the minutes of the Managing Committee at its 48th meeting held on 9th January, 1995, the Chief Executive issued the impugned order. In the said minutes, Item No. 6 relates to sundry debtors and the same is produced hereunder:
“Sundry Debtors:
The Chairman expressed his dissatisfaction regarding the customer's outstandings which have increased by 19%, while the sales have shown an increase by 8.4% only. Adviser informed that our client profile includes mainly Co-operatives, Dairy Federations/Unions and Government Departments and hence the delay in collection. Chairman advised that attempts to reduce the debts should be made. The adviser informed that all efforts are being made to bring down the outstanding by the end of 31st March, 1995.”
15. This resolution never directed the Chief Executive to appoint the petitioner as ‘O.S.D’. In the said meeting the Adviser informed the Managing Committee that he is taking all efforts to bring down the outstanding by the end of 31st March, 1995. The Adviser and Chief Executive, being the Head of the Organisation entrusted to look after day to day affairs of the Unit and is expected to safeguard the interests of the Unit, has to take all necessary steps to realise these debts by pulling the personnel working in marketing division. The duties and responsibilities of the officers working in the marketing division will not be coming to an end by selling the products of the Unit introducing innovative marketing strategies, but they are bound to realise the sale consideration of the products from the purchasers. Hence, the entire responsibility of realising the debts rests on the Adviser and Chief Executive, who is having the entire administrative control over the organisation, with the help of the personnel working in the marketing division. Having failed in their duties they cannot pick-up a person, more so a Head of the Department and post him as ‘O.S.D’ curtailing all his powers as Deputy Manager. Such an action is nothing but, colourable exercise of the power vested in him and the same was pressed into service more as a punitive measure to remove the petitioner from his duties and responsibilities as Deputy Manager (P & A), and posting him to a post which is not at all a post equivalent to the post held by the petitioner. In fact, by the impugned proceedings, the petitioner was demoted from the position of Head of the Department to that of a ministerial rank i.e, as per the proceedings dated 11th September, 1996, he is expected to send legal notices to the sundry debtors approved by the legal advisers of the Unit. The respondent Corporation cannot simply contend that there is no change in the emoluments and no prejudice is caused to the petitioner.
16. It is now well settled principle in administrative law, that an officer holding a particular rank/position can be transferred and posted only to a post which is equivalent to that post in all respects, otherwise, it amounts to effecting the status held by the incumbent. I have no hesitation to hold that by the impugned order, the position of the petitioner is adversely effected, whereby he will be looked down by not only the employees of the respondent Unit, but also by others in the Society.
17. Hence, under the guise of a transfer order, practically the Adviser and Chief Executive cannot impose a punishment on the petitioner without conducting any enquiry and without giving him an opportunity to explain the adverse circumstances that have come to the notice of the respondent Unit.
18. Coming to the other contention of the respondent Unit that various appointment orders given to the petitioner clearly indicate that the petitioner is liable to be transfered to any other department or post etc. Having accepted the appointment order, it is not to open the petitioner to question the impugned order. In support of their contention, they relied on Clauses 3 and 9 of the appointment order dated 17th July, 1992, wherein the petitioner was appointed as Deputy Manager (P & A). Such a contention was negatived by this Court in a well considered un-reported judgment in Nizam Sugar Factory case stated supra. In that writ petition the Nizam Sugar Factory transfered and posted the Deputy Manager (Marketing) as General Manager (Machinery Division) at Nagarjuna Sagar, as the petitioner therein, was also holding a Post-Graduate Degree in Engineering and at times he worked as in-charge General Manager to Machinery Division. In a well considered judgment my brother Sri Parvatha Rao, J., having reviewed the entire case law on transfers under the State and the instrumentalities of the State recorded the following finding:
“I am not inclined to agree with the submission of the learned Counsel for the respondent. The said condition has to be understood in the context of the appointment of the petitioner to the post of General Manager (Marketing) for which post alone the petitioner applied pursuant to the advertisement issued by the Company. In the context, the said condition can only mean that the petitioner can be transferred to the post of General Manager (Mktg.) in any other department or unit of the Company and not to any other post involving responsibilities unrelated to marketing and in fact alien to marketing. The said condition has to be interpreted in a reasonable manner keeping in view the fact that the petitioner applied for and was selected and appointed specifically to the post of General Manger (Marketing). It cannot be disputed that marketing is a specialised field in modern corporate management and requires special skills, abilities and experience. The mere fact that the petitioner possesses an Post Graduate Degree in Engineering or Production Engineering does not entitle the management to pluck out the petitioner from his chosen specialised field and foist him in some other field with which though he may be acquainted, he has long back given up having chosen to specialise in marketing. I am of the view that what the management has done is something akin to transferring an Orthopeadist as a Thoracic Surgeon or a professor in Economics as a professor in organic chemistry.”
19. Their Lordships of the Delhi High Court in S.K Shrivatsav v. Union of India, 1971 SLR 454 while adjudicating a similar question of law recorded the following findings:
“The extent of the power to transfer would, therefore, depend on the nature of the conditions of service of the Government Servant concerned. For instance, if a person is specifically recruited, say through Public Service Commission, for one particular post with the implication that he is not being recruited to any service but is being appointed to only one post, than the range of his transferability would be restricted, x x x x x x x x x x x x x x x. While Article 311(2) ordinarily deals with removal from service just as it deals with dismissal from service, a subtle distinction between removal and dismissal is conceivable. The dismissal of a person also always terminates his services. But one can conceive of a rare case in which a person occupies a single post to which he is recruited and in which he has been confirmed as such. If such a person is transferred to a totally different post which has nothing to do with the post for which he was recruited and in which he has been confirmed, then such a transfer will not only be outside the scope of the power of transfer given to the Government by Fundamental Rule 15 but it is also arguable that it may constitute a removal of such a person from the post held by him. In such a case, though the services of a person may not come to an end, the person may complain of removal from a post as distinguished from removal from service. If the person had a right to hold the post from which he was transferred and the transfer was illegal, he may be entitled to the protection of Article 311(2) on the ground that he was removed contrary to Article 311(2).
20. Their Lordships further held as follows:
The rule is that the Government has the power to transfer a Government servant within the range of transferability even if such a transfer results in loss of some advantages to the Government servant concerned. It is only by way of an exception to this rule that it can be shown that the order was by way of a camouflage with the real intention to punish the Government servant. The petitioner has to show in such a case that the Government has committed fraud on the power which it undoubtedly possess. It would be a rare case when the petitioner succeeds in proving such a fraud on the power.”
21. In the above judgment Sri Parvatha Rao, J., held that “the test therefore is whether the petitioner is appointed to one of the posts in a group of inter-transferable posts, or to a post constituting a class by itself. If the petitioner is appointed to a post which is a class by itself, he cannot be transferred to another post unless he agrees to such transfer.”
22. From this it is seen that an officer/employee in an establishment can be transferred to another post of similar nature of duties, but it should be to an equivalent cadre or post, but not otherwise.
23. Admittedly, the petitioner herein is not only an employee of Personnel and Administration Department of the respondent Unit but he is heading the Unit and exercising the powers of an employer as well as a disciplinary authority and was entrusted with various responsibilities and duties in running the administration of the Unit and maintaining industrial peace. Hence, the post to which he was appointed is a class by itself. Whereas the post to which now he was sought to be transferred is entrusted with ministerial work, which amounts to reduction in rank and status.
24. There remains two more contentions raised by the respondent Unit.
25. The contention of the respondent is that as part of the General Administration, which is a non-technical one, the petitioner has to assist all technical and administrative departments and he could be transfered to any Non-technical Department or post runs counter to the advertisement given by the respondent Unit for appointment to the post of Manager (P & A), which is as follows:
“MANAGER (PERSONNEL AND ADMINISTRATION)
We are a leading Veterinary Biological Manufacturing Unit in the country. To cope with our expanding operations we are looking for a highly successful and seasoned professional to look after our Personnel and Administration Department. The incumbent should be able to deal with people in the organisation at all levels. His predominant responsibilities would include close interaction with people to assess Human Resources (HR) needs, formulating HR policies, compensation packages, generating appropriate recruitment, appraisal, promotion, training and development practices. He would also be expected to make significant contributions in evolving a healthy and conducive work-culture within the organisation. A Postgraduate in Behavioural Science with 12-15 years of relevant experience is a must. The present total remuneration will be between Rs. 1.5 to Rs. 1.6 lakhs per annum (under upward revision). Besides we offer good perks such as PF, Gratuity LTC, Medical Insurance and Superannuation.
Candidates meeting the above criteria may please apply within 15 days with a detailed bio-data and recent passport size photograph to
THE CHIEF EXECUTIVE INDIAN IMMUNOLOGICALS ROAD No. 44, JUBILEE FULLS, HYDERABAD-500033.”
26. Hence, I have no hesitation to reject the contention of the respondent Unit that the department of the Personnel and Administration is not a specialised one and it is general in nature.
27. Likewise, the respondent Unit filed innumerable correspondence to show that the petitioner was not only representing the respondent Unit in various Courts but also corresponding with the legal advisers of the Unit in Court matters. It is also their case that the petitioner is a law graduate. Hence, he was chosen to that post. Once again a look at the job requirements, in particular Clause 6 makes it abundantly clear that it is one of the responsibilities entrusted to the Deputy Manager (P & A), when he was able to discharge his functions satisfactorily, while discharging other functions as Deputy Manager (P & A), I do not find any reason for the Adviser and Chief Executive to redesignate the petitioner as ‘O.S.D’ and direct him to do one of the functions attached to the post Deputy Manger (P & A) by taking away all other functions and responsibilities. For all these reasons, I hold that the impugned action of the Adviser and Chief Executive of the respondent Unit is nothing but a colourable exercise of power and suffers from the vice of arbitrariness and offends Article 14 of the Constitution of India.
28. Accordingly, the impugned order dated 14th March, 1995, is quashed with a consequential direction to the respondent Unit to restore the petitioner to the post of Deputy Manager (P & A) forthwith.
29. The writ petitioner is allowed accordingly, with costs. Advocate fee Rs. 5,000/-.