OP (CAT) No. 28 of 2017-Z - Sreekala S Pillai v Union of India and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940 OP (CAT).No. 28 of 2017** **OA.NO.180/00321/2015 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ---------** ## **PETITIONER/APPLICANT:** **SREEKALA S PILLAI, D/O.SRI.R.SREEDHARAN PILLAI, SENIOR HINDI TRANSLATOR, SUBSIDIARY INTELLIGENCE BUREAU, TRIVANDRUM, RESIDING AT T.C. 7/1250, (2), "KARTHIKA", VATTIYOORKAVU P.O, TRIVANDRUM - 695 013.** **BY SRI.O.V.RADHAKRISHNAN,SENIOR ADVOCATE ADVS.SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.P.ABDUL NISHAD** ## **RESPONDENT(S)/RESPONDENTS:** **1. UNION OF INDIA, REPRESENTED B Y THE DIRECTOR, INTELLIGENCE BUREAU, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI - 110 001.** **2. JOINT DIRECTOR, INTELLIGENCE BUREAU, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI - 110 001.** **3. JOINT SECRETARY, DEPARTMENT OF OFFICIAL LANGUAGES, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI - 110 001.** **4. ADDITIONAL DEPUTY DIRECTOR, SUBSIDIARY INTELLIGENCE BUREAU, THIRUVANANTHAPURAM - 695 001.** **2/-** **-2-** **OP (CAT).No. 28 of 2017** ## ***ADDL.R5 IMPLEADED** ## ***R5: SECRETARY,** **GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS,** **DEPARTMENT OF OFFICIAL LANGUAGE, NDCC-II (NEW DELHI CITY CENTRE) BHAVAN, B WING, 4TH FLOOR, JAI SING ROAD, NEW DELHI-110 001.** ***ADDL.R5 IS IMPLEADED AS PER ORDER DATED 28/03/2017 IN IA.NO.423/2017.** **R1 TO ADDL.R5 BY SRI.N.NAGARESH,ASSISTANT SOLICITOR GENERAL OF INDIA SRI.K.SHRI HARI RAO, CGC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 28-03-2018,THE COURT ON 12-04-2018 DELIVERED THE FOLLOWING:** **sts 13/4/2018** ## **OP (CAT).No. 28 of 2017 (Z)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 PHOTOCOPY OF THE ORIGINAL APPLICATION 180/000321/2015 FILED BY THE PETITIONER. EXHIBIT P2 PHOTOCOPY OF THE ORDER DATED 22-04-2015 OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. EXHIBIT P3 PHOTOCOPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 1,2 AND 4 EXHIBIT P4 TRUE COPY OF THE REJOINDER TO THE REPLY STATEMENT FILED BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED ON BEHALF OF RESPONDENTS 1,2 AND 4 EXHIBIT P6 TRUE COPY ADDITIONAL REJOINDER FILED BY THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE PETITIONER. EXHIBIT P8 PHOTOCOPY OF THE ORDER DATED 17-11-2016 IN OA/180/00321/2015 OF THE HON'BLE CAT, ERNAKULAM. EXHIBIT P9 PHOTOCOPY OF THE REPRESENTATION DATED 29-11-2016 OF THE PETITIONER TO THE 3RD RESPONDENT.** **EXHIBIT P10 PHOTOCOPY OF THE REPLY LETTER NO.5/20/2016-OL(SERVICE) DATED 03-01-2017 OF THE 3RD RESPONDENT ALONG WITH ENGLISH TRANSLATION.** **EXHIBIT P11 PHOTOCOPY OF THE RECRUITMENT RULES, 2006 CENTRAL SECRETARIAT (OFFICIAL LANGUAGE SERVICE) (GROUP "A' AND 'B' POSTS) RULES, 1983 AND THE CENTRAL SECRETARIAT (OFFICIAL LANGUAGES SERVICE) (GROUP 'A' AND 'B' POSTS) PUBLISHED IN THE GAZETTE OF INDIA DATED 03-11-2006 NOTIFICATION DATED 31-10-2006.** **EXHIBIT P12 PHOTOCOPY OF THE RECRUITMENT RULES, 2015 CENTRAL SECRETARIAT (OFFICIAL LANGUAGE SERVICE) (GROUP 'A' AND 'B' POSTS) PUBLISHED IN THE GAZETTE OF INDIA EXTRA ORDINARY DATED 07-05-2015 NOTIFICATION DATED 07-05-2015.** **2/-** **-2-** ## **OP (CAT).No. 28 of 2017 (Z)** - **EXHIBIT P13 PHOTOCOPY OF THE SCREEN-SHOT OF THE DIVISIONS OF MHA, RETRIEVED FROM THE OFFICIAL WEB-SITE OF MINISTRY OF HOME AFFAIRS.** - **EXHIBIT P14 PHOTOCOPY OF THE SCREEN-SHOT OF THE CENTRAL POLICE ORGANISATION RETRIEVED FROM THE OFFICIAL WEB-SITE OF MINISTRY OF HOME AFFAIRS** - **EXHIBIT P13 & P14 IN IA.NO.275/2018** - **EXHIBIT P13 PHOTOCOPY OF THE LETTER DATED 21/01/2017 OF THE PETITIONER TO THE JOINT DEPUTY DIRECTOR IT, SUBSIDIARY INTELLIGENCE BUREAU, TRIVANDRUM.** - **EXHIBIT P14 PHOTOCOPY OF THE LETTER DATED 30/01/2017 OF THE PETITIONER TO THE DEPUTY DIRECTOR, SUBSIDIARY INTELLIGENCE BUREAU, TRIVANDRUM.** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R3(a) TRUE COPY OF THE LETTER DATED 15/4/2005 OF THE MINISTRY OF HOME AFFAIRS ADDRESSED TO THE DIRECTOR OF INTELLIGENCE BUREAU.** - **EXHIBIT R3(b) TRUE COPY OF THE ORDER DATED 20/3/2015 OF THE 2ND RESPONDENT.** - **EXHIBIT R5(a) TRUE COPY OF THE LETTER DATED 15/4/2005 OF THE MINISTRY OF HOME AFFAIRS.** - **EXHIBIT R5(b) TRUE COPY OF THE ORDER DATED 20/3/2015 OF THE 2ND RESPONDENT.** **/TRUE COPY/** **P.S.TO JUDGE** **sts 13/4/2018** ## _**K.SURENDRA MOHAN & P.V ASHA, JJ.**_ **----------------------------------------------------O.P(CAT) No.28 of 2017-Z ----------------------------------------------------** _**Dated this the 12[th] day of April, 2018**_ ## _**JUDGMENT**_ ## _Asha, J._ Applicant in O.A.No.180/00321/2015 has filed this original petition aggrieved by Ext.P8 order of the Central Administrative Tribunal. The O.A was filed challenging her transfer as per Annexure-A1 order issued by the 2[nd] respondent, which is part of Ext.P1. As per Annex.A1 order the petitioner, who has been working as a Senior Hindi Translator, was transferred from SIB, Trivandrum to SIB, Vijayavada. The order was passed by the Joint Director of the Intelligence Bureau with a request to the controlling officer to relieve her within one month. It was also ordered therein that the request of the petitioner for cancellation of transfer order or further retention should be examined personally by the head of the SIB before forwarding the same to IB Headquarters and while forwarding such request, there shall be clear recommendations citing grounds by the head of the SIB. 2. The case of the petitioner is that the Joint Director of **O.P(CAT) No.28 of 2017-Z** 2 Intelligence Bureau is not competent to transfer her. The petitioner is a member of Central Secretariat Official Languages Service (CSOLS). She was initially recruited and appointed as a Junior Hindi Translator as per Annex.A3 order dated 12.11.2001 issued by the Under Secretary to the Government, Department of Secondary and Higher Education, Ministry of Human Resources Development. It was stated therein that “consequent upon the nomination based on Central Secretariat Official Language Service (Junior Translator) Examination 2000, _Deputy Secretary (Admn)_ is hereby appointing Kumari Sreekala A.S as Junior Hindi Translator on temporary basis in Dept. of Secondary and Higher Education ….”. As per Annex.A4 dated.5.6.2002 of the Department of Official Language, the petitioner was transferred from Department of Education to Intelligence Bureau (Trivandrum Branch). As per Annexure A5 order the petitioner was transferred from Intelligence Bureau Trivandrum to Directorate General of Shipping, Mumbai. This order was also issued by the Department of Official Language. Thereafter as per Annexure A6 order dated.10.9.2008 of the Department of Official Language the petitioner was transferred from the Directorate General of Shipping, Mumbai and posted to Ministry of Defence, Delhi. Thereafter as per Annexure-A7 order dated 27.10.2009 **O.P(CAT) No.28 of 2017-Z** 3 issued by the Department of Official Language the petitioner was transferred from Ministry of Defence to Intelligence Bureau, New Delhi considering her personal request. A copy of this letter was marked to the Intelligence Bureau New Delhi for the joining of the petitioner in the place of Smt.Beena Rajalekshmi. The petitioner's case is that all the orders of transfers were being issued by the Department of Official Language. On the other hand, Annexure-A1 order by which she was transferred to SIB, Vijayawada is issued by the 2[nd] respondent in the Intelligence Bureau. The petitioner submits that the 2[nd] respondent is not competent to transfer her. 3. Ext.P11 is the Recruitment Rules governing the conditions of service of group A and B posts in the Department of Official Languages. The CSOLS (Group A & B Posts) is a service constituted under Rule 3 of CSOLS (Group A&B Posts) Rules, 2006 (hereinafter referred to as `Rules 2006'). Rule 2(c) defines `duty post' to mean any post in the service, whether permanent or temporary, as specified in schedule 1. As per Schedule 1 there are 421 posts of Junior Translators in the Service and these posts are in grade VI and classified as Group B non gazetted. There are 194 posts of Senior Translators which are in Grade V and classified as group B non gazetted. As per Rule 6, which provides for initial constitution of **O.P(CAT) No.28 of 2017-Z** 4 service, a person holding group A & B duty posts in the CSOLS on the date of commencement of the Rules shall be a member of the service in the respective grades. The 2006 Rules were notified on 31.10.2006 when the petitioner was holding the post of Junior Hindi Translator based on Annexure A3 order of appointment. Rule 4 (1) provides for the duty posts which are included in various grades of service, their number and scales of pay as specified in schedule I. As per sub rule 2, the break up of the duty posts included in the service and the names of the participating ministries or departments or organisations in which these posts exist shall be as specified in schedule II. Sub rule 3 provides that Government may include in the service any post other than those included in schedule II or exclude from the service any post included in the said schedules in consultation with the Union Public Service Commission or Staff Selection Commission. Schedule II of the Rules provide for the posts in various ministries, break up of the post included in the CSOLS (Group A & B posts) and the names of the Ministries/Departments/attached offices participating in the service in which these posts exist. Schedule II includes Ministry of Defence, Ministry of Human Resource Development, Ministry of Home Affairs, etc. Intelligence Bureau is included as sl.no.20. The schedule II contains 108 names of **O.P(CAT) No.28 of 2017-Z** 5 Ministries/Departments and attached offices participating in the service under it, where the A&B posts of the service exist. As per Rule 5 the persons appointed to duty posts under Rule 6 and persons appointed to duty posts under Rule 7 shall be the members of service. As per Rule 10 appointment of the members to the service shall be made by the controlling authority for all the posts in the Ministries, Departments and attached offices participating in the service. Controlling authority is defined under Rule 2(b) to mean Government of India in the Ministry of Home Affairs, Department of Official Language. As per Rule 11 a member of the service is liable to serve anywhere in India. 4. In supersession of the 2006 Rules, Ext.P12 Rules, viz. CSOLS (Group A & B Post), Rule 2015 came into force on 1.5.2015. As per Rule 6 the persons holding the Group A or B duty posts in the service on the date of commencement of these rules shall be members of the service in the respective grades. Junior Translator and Senior Translator continue to be in Group B non gazetted post. There are 320 posts of Senior Translators and 347 posts of Junior Translators in Schedule I. In Schedule II, Senior Translator in Intelligence Bureau New Delhi is included as Sl.No.152. among other offices. Subsidiary Intelligence Bureau (SIB), Patna, SIB 6 ## **O.P(CAT) No.28 of 2017-Z** Hyderabad and SIB Trivandrum are included at Sl.Nos.153 to 155. 5. The case of the petitioner is that SIB Vijayawada to which she was transferred as per Annexure A1 order is not a participating office included in Schedule II. Being a member of CSOLS, she is liable to be transferred only against a duty post in an office included in Schedule II. Apart from that the transfer can be ordered only by the Controlling authority, which is Government of India, Official Language Department. Therefore, her transfer is without authority and contrary to rules. Even after the rules were amended in 2015, the SIB Vijayawada is not included as a participating office in Schedule II. The Joint Director of Intelligence Bureau, who issued Annexure A1 order is not the controlling authority with respect to the CSOLS. 6. Respondents 1, 2 and 4 filed Ext.P3 reply statement before the CAT stating that Annexure-A1 was an order posting the petitioner within the Intelligence Bureau and therefore the 2[nd] respondent was competent to post the officers who were transferred to the Intelligence Bureau. It was stated that the petitioner joined the SIB Trivandrum as Junior Hindi Translator on 19.11.2009 on being transferred from the Intelligence Bureau Headquarters, New Delhi as per Annexure-R1 order dated 4.11.2009, which was also **O.P(CAT) No.28 of 2017-Z** 7 issued by the Deputy Director. She had not objected to the authority of the respondent in issuing that order. Hence she is estopped from challenging Annexure-A1 transfer order issued in similar circumstance. The respondents admitted that the petitioner was recruited to the Department of Official Languages and she was provided by that Department. According to the 2[nd] respondent, the deployment of the Hindi Translators provided by the Department of Official Language, is exclusively within the ambit of the 2[nd] respondent. It is further stated that SIB Vijayawada was a sub unit of SIB Hyderabad and on bifurcation of Telengana from Andhra Pradesh it started functioning recently as an independent SIB with the existing strength. In view of the urgent requirement of Hindi Translator at Vijayawada, the petitioner, who was the seniormost and had completed 5 years at SIB Trivandrum was transferred to SIB Vijayawada. As against one post of Senior Hindi Translator and one post of Junior Hindi Translator, four persons were working at SIB Trivandrum. It was stated that the transfer of the petitioner was purely on administrative requirement and there was no malice or injustice. Department had not acceded to her request to allow her to continue at Trivandrum. It is their case that the Hindi Translators deputed by the Department of Official Languages are under the administrative **O.P(CAT) No.28 of 2017-Z** 8 control of the 2[nd] respondent, who is competent to transfer among the various units in accordance with the requirement. It was alleged that the petitioner did not produce Annexure-R1 order while producing AnnexuresA4 to A7, which are orders issued posting her from one Department to another. 7. In Ext.P4 rejoinder, the petitioner stated that there is no post of Senior Hindi Tanslator at Vijayawada and she cannot be transferred to a lower post. She reiterated that it is for the cadre controlling authority – the Department of Official Languages, which can transfer her. She stated that she was promoted as Senior Hindi Translator by the Department of Official Languages. She reiterated that the requirement of Junior Hindi Translator at Vijayawada cannot be met with by her transfer. She also stated that in Annexure-A7 order, it was specifically stated that she was transferred in the place of Mrs.Beena Rajalekshmi, who was working in SIB Trivandrum and it was not a transfer to the Headquarters. She also stated that the post which is held by her cannot be shifted by IB without the consent of the Department of OL. 8. Along with the additional reply statement the respondents produced Annexure-R1(b) order dated 13.4.2005 issued by the Ministry of **O.P(CAT) No.28 of 2017-Z** 9 Home Affairs addressed to the Director of Intelligence Bureau conveying sanction of the competent authority for delegation of powers to Director, Intelligence Bureau for transfer of Headquarters for the post upto the level of Director for a period of one year. It was ordered therein that for transfer above the lowest level of Group A posts for period exceeding one year prior approval of this Ministry and Ministry of Finance shall be obtained. The respondents also produced Ext.Rl(c) order issued on 28.12.2012, by which the petitioner was granted promotion as Senior Hindi Translator. It was also stated that the petitioner's promotion was only on adhoc basis; there was no sanctioned post of Senior Hindi Translator at SIB Vijayawada; she was transferred to SIB Vijayawada on station seniority basis. It was stated that the petitioner was continuing in the present station for the last more than 6 years; the respondents are competent to transfer the petitioner on administrative exigencies. It is stated that before the transfer of the petitioner to the SIB Trivandrum, IB Headquarters required a vacancy of JHT created at SIB Trivandrum consequent to the relieving of Smt.Beena Rajalekshmi. 9. Along with Ext.P6 additional rejoinder, the petitioner produced Annexure-A12 order issued on 30.12.1983, which was issued in the light of **O.P(CAT) No.28 of 2017-Z** 10 the clarifications sought from various Ministries/departments regarding the distribution of duties related to the CSOLS between Department of Official Language as the Controlling authority and the ministries/departments and attached offices as the participating offices of CSOLS. After considering the matter with the Department of Personnel and Administrative Reforms, it was made clear that the Department of Official Languages will take action on six topics mentioned therein. Transfer from one cadre unit to another cadre unit is serial no.2 mentioned therein. After allocating the 6 topics including transfer to the Department of OL, paragraph 2 of that order made it clear that matters relating to daily administrative matters like pay fixation, payment of pay and allowances, increments, sanctioning of leave, travelling and daily allowances would be dealt with by the concerned Ministries/departments/attached offices, apart from disciplinary matters. As per Annexure-A13 order issued on 11.2.2014, the Director, Department of OL requested all officers of CSOLS to forward the option for transfer in case they require transfer in accordance with the transfer policy. 10. The CAT disposed of the O.A, as per Ext.P8 order. However, the CAT held that the transfer within the offices under the 2[nd] respondent was not liable to be interferred with and it found that Department of Official **O.P(CAT) No.28 of 2017-Z** 11 Languages will come into picture only in the case of interdepartmental transfers. Allocation of work within a department comes within the domain of that department, in accordance with its requirement. Stating that the petitioner has not produced any order where the OL Department has issued intra-departmental transfers it was stated that transfer from SIB Trivandrum to SIB Vijayawada was a transfer within the cadre and Annexure-A12 order deals with transfers from one cadre unit to another cadre unit. The CAT found that the Department of Official Languages did not have any role in the matter of transfer from one office to another under the very same Department. It was found that the Department of OL did not come into picture in the transfer of applicant from Intelligence Bureau Delhi to Intelligence Bureau Trivandrum. Even though the allocation of officials to various departments rests with the officials of the department, that department would not have any role in the deployment of such officials within the allottee department. It was further found by the CAT in para.13 as follows: “13. Annexure A-13 Transfer Policy issued by Department of Official Language states that officials/officers who have completed 5 years service in a Ministry/Department/Attached Office will be transferred as per option given by them. Applicant has some domestic and personal problems which necessitates her continuance in Trivandrum. Applicant having completed 5 years in Intelligence Bureau, Trivandrum if unwilling **O.P(CAT) No.28 of 2017-Z** 12 to work in Intelligence Bureau, Vijayawada will submit such an option for being transferred to any other Central Government office in Trivandrum within 15 days of the receipt of a copy of this order. The Department of Official Language will transfer the applicant as per option submitted, subject to availability of vacancy in the opted office/station cited within 90 days from the date of receipt of such an option. If no vacancy is available, the cadre controlling department will try to accommodate the applicant in Central Government Departments where vacancy exists. But if the applicant does not accept the said appointment or if there is no vacancy available in Trivandrum the order of transfer to Vijayawad will come to operate.” 11. The petitioner thereupon submitted Ext.P9 representation before the Department of OL pointing out her personal problems and her requirement to be at Trivandrum and requested for a posting at Trivandrum on compassionate grounds. As per Ext.P10 order dt.3.1.2017 the Department of OL informed the petitioner that there is only 1 vacancy of Senior Translator available in SIB Trivandrum, among the notified participating offices for posting of CSOLS officers. Since there is no vacancy in any other offices in Trivandrum, the petitioner was directed to join Vijayawada as per Annexure-A1 order and as directed by the CAT. The petitioner filed this writ petition at that stage challenging Ext.P8 order also along with Ext.P10 order. Relying on Ext.P11 and P12 rules, the petitioner asserted that she is not liable to be transferred to Vijayawada and that there is no order of transfer by a competent authority. 12. Respondents 1, 2 and 4 filed counter affidavit reiterating their **O.P(CAT) No.28 of 2017-Z** 13 contentions before the CAT. Apart from that they objected to the filing of the writ petition pointing out that Ext.P10 was an order issued on the basis of direction in Ext.P8 order of CAT and in case the petitioner had any grievance she should have approached the CAT and after submitting representation and after it was rejected the petitioner cannot be heard to challenge Ext.P8 order of CAT. They supported the conclusion of the CAT stating that the Intelligence Bureau has the authority to deploy the officers in accordance with their requirement. It was stated that power under Rule 12 of the CSOLS Rules is vested with the respective participating units. According to them, the participating units are vested with the power to even remove or dismiss a member from service and therefore the contention that it does not have any authority to transfer is without any merit. It is stated that the petitioner was only nominated by the Department of Official Langauge; she was actutally appointed to the post by Under Secretary, Ministry of HRD. She was posted to SIB Trivandrum as per Annexure-R1 order. She was enjoying all benefits available to the staff of IB without any objection. It was stated that the IB Headquarters and 3 SIBs are specified in Schedule II of Ext.P12. Even then deployment of the staff to other SIBs is done from within the sanctioned strength of IB to ensure proper **O.P(CAT) No.28 of 2017-Z** 14 implementation of official language policies. It is also stated that in case the entire cadre strength of 31 CSOLS members allotted to IB New Delhi is deployed exclusively with IB Headquarters their services would remain unutilised. Therefore, power is delegated to Director, IB for transfer of the posts to the Headquarters and therefore the petitioner's transfer is not illegal. It is stated that the matter regarding transfer of CSOLS members is not specified in recruitment rules. For which no specific provision is made in the rules which shall be governed by rules applicable to other Central civil services in general. Therefore, the transfer of the petitioner in accordance with the requirement cannot be said to be illegal and the Department of OL comes in the picture only in the event of transfer from one cadre unit to another cadre unit and not transfer within another department. 13. Separate counter affidavit was filed on behalf of the 3[rd] respondent in which also the very same contentions were raised. It is stated that as per Ext.R3(a) the Ministry of Home Affairs has delegated power of transfer to Director IB and therefore there was nothing illegal in AnnexureA1. 14. The petitioner filed reply affidavit to both of the counter affidavits reiterating her stand that SIB is not a participating office and **O.P(CAT) No.28 of 2017-Z** 15 Director is not the competent authority and therefore Annexure-A1 order is a nullity. She pointed out that the Department of OL had issued Annexure-A7 order on 27.10.2009 and the Dy.Director IB issued a consequential posting order based on Anne.A7. 15. The 5[th] respondent has also filed counter affidavit producing Ext.R5(b) order which is the same as Annexure-A1. It was stated that as per Annexure R5(a) order dated 13.04.2005 the Director was authorised to issue orders of transfer. It was stated that petitioner's transfer to SIB, Trivandrum from Headquarters IB was by the Director, consequent to her transfer to IB. 16. In the reply affidavit petitioner stated that her transfer as per Annexure A7 was from Ministry of Defence to Intelligence Bureau, New Delhi, to be posted in the place of Smt.Beena Rajalekshmi, who was working at SIB, Trivandrum, which is clear from Annexure A7. It was also stated that Ext.R1(a) was issued referring to Annexure A7 order. Reply affidavit was filed to that counter affidavit also. 17. We heard the learned Senior Counsel Sri. O.V.Radhakrishnan for the petitioner and the learned Central Government Counsel Sri. Srihari Rao for respondents. **O.P(CAT) No.28 of 2017-Z** 16 18. The question to be decided is whether the 2[nd] respondent is competent to transfer the petitioner and whether she could be transferred to SIB Vijayawada. It is an admitted fact that the petitioner is a member of CSOLS. She is governed by Ext.P12 Recruitment Rules. She is holding a duty post viz Senior Translator, included in Schedule I, as provided in Rule 4. When she is a member of service she should be holding a duty post sanctioned in any of the participating ministries or departments or organisations included in Schedule II. Though Government has every authority to include any more posts in the Schedule II, as per Sub rule 3 of Rule 4, so far SIB Vijayawada is not included in it. Schedule II includes Ministry of Defence, Ministry of Human Resource Development, Ministry of Home Affairs, etc. Intelligence Bureau is included as sl.no.20. Though Schedule II includes the names of SIB Trivandrum and SIB Hydearbad, SIB Vijayawada is not included in it and hence it is not a participating office. As per Rule 10 appointment of the members to the service shall be made by the controlling authority for all the posts in the Ministries, Departments and attached offices participating in the service. Controlling authority is defined under Rule 2(b) to mean Government of India in the Ministry of Home Affairs, Department of Official Language. ## **O.P(CAT) No.28 of 2017-Z** 17 19. As seen from Annexure A12 in Ext.P1, transfer from one cadre unit to another cadre unit is to be done only by the Controlling authority, viz the Department of Official Languages. The authority for the participating offices is only to deal with matters relating to pay fixation, sanctioning of leave, sanctioning of increment, pay and allowances, disciplinary proceedings, etc. In the light of Ext.P12 recruitment rules read with Annexure A12 in Ext.P1, it is clear that the authority to transfer the petitioner vests only within the controlling authority. A reading of the Schedule would show that each of the participating departments are shown there independently. SIB, Trivandrum, SIB Hyderabad, IB, New Delhi are shown as separate offices in which Group A and B posts of the Department of Official Languages exist. The distribution of posts to each of the SIBs is made separately. Therefore, there is no basis for the contention that the SIBs come under IB and they can deploy the members of the service in any of the offices under the IB. Such an interpretation will make the provisions in Ext.P12 rules, especially Rules 4 to 6 and 10 as well as the schedule, meaningless. 20. The contention of the respondents that the power to transfer is delegated, relying on Ext.R3(a), is unsustainable. Ext.R3(a) does not refer to **O.P(CAT) No.28 of 2017-Z** 18 CSOLS. It is only a letter from Director (PF) to Director (IB). On the other hand, Annexure A12 order specifically refers to the clarifications sought from the participating departments and ordered that the transfers from one cadre unit to another cadre unit shall be made by Official Language Department. It also made it clear that only daily administrative matters need to be dealt with by the participating offices. 21. It is pertinent to note that Department of OL had in AnnexureA13 order, which is part of Ext.P6 produced along with the additional rejoinder of the applicant, issued the transfer policy of officers/officials of CSOLS. It is seen that clause 8 of this transfer policy provides that Department of OL “preserves right to transfer any officer/official on work arrangement or at any special circumstances”. While issuing the transfer policy, nothing is mentioned regarding the authority of the participating office to make any posting within the offices under it. It is also pertinent to note that Schedule II does not involve all the offices under one Ministry or all department or a particular Headquarters or office. At the same time, the offices are mentioned specifically. The transfer policy is also issued by the Department of OL. While issuing this there is no delegation to the Head of the Department or any other Departmental office. Therefore, the order **O.P(CAT) No.28 of 2017-Z** 19 Annexure-A1 issued by the 2[nd] respondent posting the petitioner to SIB, Vijayawada is without authoiry. 22. Secondly there cannot be any posting to an office which is not included in Schedule II. The finding of the CAT that transfer from SIB, Trivandrum to SIB Vijayawada is a transfer within the cadre, cannot be correct, in view of the fact that each of the participating offices with separate serial numbers in the Schedule II are to be reckoned as a separate cadre. 23. It is therefore the controlling authority who is competent to fill up the vacancies in any of the offices included in Schedule II. Going by Rule 10, appointment of members to the service is to be made by the controlling authority for all the posts in Ministries/Department and attached offices participating in the service. The petitioner, who is holding the post of Senior Hindi Translator classified as a Group B post, a member of service as provided in Rule 5 read with Rule 6, is liable to be appointed only in a post in an office coming under schedule II in accordance with Rule 4. 24. The respondents as well as CAT took the view that the petitioner did not object to the order of the Joint Director of IB when she was posted at Trivandrum. The petitioner has denied this allegation pointing out Annexure A7 order and the endorsement in it stating that her transfer to **O.P(CAT) No.28 of 2017-Z** 20 IB itself was against the vacancy at SIB Trivandrum in the place of Ms.Beena Rajalekshmi. Even assuming that the petitioner did not challenge an order issued by the Director, that by itself will not confer any power on the Joint Director to issue orders without authority. That cannot be a reason for validating an illegal action not permitted by the recruitment rules Ext.P12 or Annexures A12 and A13. There cannot be an estoppel against statutory rules. Thus Annexure-A1 order is not only vitiated by the fact that it is not issued by the competent authority namely, controlling authority, but is also vitiated by the fact that the transfer was to an office not included in Schedule II. 25. In the above view of the matter, we are of the considered opinion that the CAT was not right in upholding the transfer. As rightly contented by the learned Senior Counsel for the petitioner, relying on the judgment of the Apex Court in **Marathwada University v. Seshrao balwant Rao Chavan: AIR 1989 SC 1582,** it is settled law that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. The order of transfer which is issued by an authority not competent and contrary to rules satisfy all the parameters for interference. 26. The learned CGC pointed out that Ext.P10 is an order passed by **O.P(CAT) No.28 of 2017-Z** 21 the Department of OL and therefore the petitioner has to join SIB Vijayawada. But even then she did not join duty. It may be true that the petitioner has completed several years in the present station and even after issuance of Annexure-A1 order, about 3 years lapsed. However, as pointed out by the learned Senior Counsel Ext.P10 order only rejects her representation for a posting at Trivandrum while directing to join Vijayawada in tune with Annexure-A1 order. In fact there is no order of transfer by the controlling authoirty posting her at Vijayawada. Moreover, there should be an order issued by the Government of India. That apart, there cannot be a posting at Vijayawada which is not included in Schedule II. On that ground also, Ext.P10 cannot be sustained. 27. The learned Senior Counsel pointed out that even though an interim order directing to maintain status quo was granted by this Court, the respondents took the stand that the petitioner was already relieved and the petitioner does not have a post as at present. As we have found that Annexure-A1 order is without authority, the respondents shall regularise the period of her absence . In the result, we set aside Annexure-A1, as well as Ext.P8 and Ext.P10 orders. It is made clear that the respondents will be free to pass **O.P(CAT) No.28 of 2017-Z** 22 fresh orders strictly in accordance with law. The original petition is allowed accordingly. _Sd/-_ _**K.SURENDRA MOHAN Judge** Sd/-_ _**P.V.ASHA Judge** rtr/_