Transferred Simply Based On Minister's Note: CAT Allahabad Reinstates IFS Rajiv Bhartari As Uttarakhand’s Principal Chief Conservator Of Forest

The Central Administrative Tribunal, Allahabad (Nainital Circuit) has ordered to reinstate Rajiv Bhartari, a senior Indian Forest Service (IFS) officer as the Principal Chief Conservator of Forest (PCCF) of Uttarakhand, who was allegedly transferred out of the post in an extra-legal manner on the basis of a note prepared by the Minister of Forest.

While setting aside the transfer order, Justice Om Prakash observed-

“Except to assertion in the pleading, nothing is on record to show that applicant career was blemish or any charge sheet had been served upon him at the time of impugned transfer order. If for the sake of argument this fact that applicant was not performing his duty very well on the post of PCCF (HOFF) is taken into consideration, then also at least procedure prescribed for transfer should have been followed.”

Bhartari is a 1986 batch IFS officer. By an order dated December 31, 2020, he was promoted to the post of PCCF/ HoFF and he took the charge on January 1, 2021. Subsequently, by an order dated November 25, 2021, he was transferred to the post of Chairman, Uttarakhand Biodiversity Board, which is normally occupied by a Joint Secretary Level Officer. Thus, being aggrieved, he challenged the transfer order before the Tribunal.

It was submitted for Bhartari that the said transfer was ordered before the minimum prescribed tenure of 2 years by violating the Rule 2(a)(3) of IFS (Cadre) Amendment Rules, 2014. It was further contended that his transfer was made without getting the recommendation of the Civil Services Board (‘CSB’) by violating Rule 2(a)(5) of the IFS (Cadre) Amendment Rules, 2014.

It was also argued that the impugned order has been passed against the law laid down by the Apex Court in T.S.R. Subramanian v. Union of India. The Tribunal was informed that though Bhartari has made representations before the Chief Secretary, Govt. of Uttarakhand against the order, but no reply has been given.

On the contrary, the opposite parties argued that as per the Uttarakhand Biological Diversity Rules, 2015, only a person who is ranked not lower than the Joint Secretary or its equivalent under the Govt. of India or has retired from such post is eligible to be appointed on the post of Chairman, Uttarakhand Biodiversity Board. Hence, they refuted the claim that the post of Chairman, Uttarakhand Biodiversity Board is a lower post.

It was further stated that PCCF (HoFF) is a member of the CSB and therefore, owing to the doctrine of nemo judex in causa sua, he could not have been a part of it for his own transfer. It was also alleged that Bhartari, while holding the post of PCCF (HoFF), failed to take appropriate action to stop illegal activities in the Corbett Tiger Reserve, Ramnagar despite repeated letters sent to him by its Director.

Tribunal’s Observations

After hearing the arguments for both the sides, the Tribunal noted that certainly no CSB meeting was held in the present matter, which was mandatory as it was a case of pre-mature transfer. After the CSB gives its recommendations, it is for the competent authority to either accept or reject the same.

The CAT acknowledged that Bhartari himself was one of the members of the CSB. However, it clarified that meeting could have been held in his absence. It took note of the law laid down by the Supreme Court in Shri Ishwar Chndra v. Shri Satyanarain Sinha and Ors., wherein it was made clear that in absence of one of the members of the committee, meeting of the board/committee cannot be held to be invalid.

"Thus, if applicant himself was one of the members of the Board/committee, and he could not participate in the board meeting, being under consideration zone, then also other committee members could conduct the board meeting," the Tribunal said.

The CAT also observed that the Bhartari's transfer was made on the basis of simply a note prepared by the concerned minister. Disapproving such extra-legal procedure, it held,

“No such procedure has been prescribed in any statutory law, rule or regulation to transfer the cadre post officer only on the basis of note prepared by the concerned minister without recommendation of the CSB, which is not justifiable and Court is of the opinion that injustice has been done to the applicant and therefore he is entitled for relief claimed in the instant OA.”

The Tribunal also rejected the plea advanced by the opposite parties that Bhartari is set to retire from service within a few months and therefore, he cannot be reinstated in the previous position.

It reiterated the position of law as has been settled by a catena of rulings by the Apex Court that when an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal. The CAT, inter alia, referred to the decision of the Court in Somesh Tiwari v. Union of India and Ors., wherein it was observed,

“…It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal…”

Resultantly, the Tribunal allowed the application directing the opposite parties to reinstate Bhartari as the PCCF (HoFF), the post he was holding before the impugned transfer.

Case Title: Rajiv Bhartari v. Union of India & Ors.

Case No.: T.A. NO.1/2022 in W.P. No. 98/2022

Counsel for the Applicant: Abhijay Negi & Snigdha Tiwari, Advocates

Counsel for the Respondents: T.C. Agrawal, Sachin Mohan Singh Mehta & Aman Rab, Advocates

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