DR. RAMESH CHANDRA TYAGI versus UNION OF INDIA AND ORS.

Citation: [1994] 1 S.C.R. 915 · Decided: 11-02-1994 · Supreme Court of India · Bench: R.M. SAHAI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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DR. RAMESH CHANDRA TYAGI 
A 
v. 
UNION OF INDIA AND ORS. 
FEBRUARY 11, 1994 
[R.M. SAHA! AND DR. A.S. ANAND, JJ.] . 
B 
Service Law: Transfer-Appellant, a man of high achievement and dis-
tinction in Science-Transferred to a place neither suitable nor proper for 
him-Transfer order passed by authority not competent to do scr-Appellant's 
refusal to comply with trans/ er order-Disciplinary proceedings initiated--Ex C 
paTte order of dismissal of appellant passed-Held, transfer order being not 
passed by competent authority and being contrary to mies was non est in the 
eye of law-Consequently order of dismissal falls automatically. 
The appellant, a man of high achievement and distinction in science, D 
was offered a supernumerary post in 1971 by Government of India and was 
appointed Temporary Principal Scientific Officer (Gazetted Class-I) sub-
ject to approval of Union Public Service Commission. He was regularised 
in 1972 on the said post. In 1978 he was awarded S.S. Bhatnagar Award. 
On 29th February, 1977 the appellant was directed to hand over E 
charge of his activities at Delhi and to join at Institute of Armament 
Technology, Pune on a.post ca1·rying same salary but which, according to 
Director of the Pune Institute, was neither suitable nor proper for the 
appellant. The appellant approached the civil court but as a result of a 
meeting with the Secretary of the Department he was permitted to remain F 
at Delhi and was put on deputation for one year and at IIT, Delhi and the 
suit was withdrawn. Later he approached the civil court again seeking 
declaration that the transfer order was malicious and bad as it was not 
only motivated but was not passed by the Secretary who alone was com-
petent to transfer him. In February, 1980 when appellant's deputation at 
IIT came to an end, he was directed to join at Pune. · 
G 
The respondents in their written statement pleaded t.hat the order 
passed by Director General was approved by the competent authority, but 
failed to produce the same and ultimately they relied on delegation of 
power. In the meantime, the department started disciplinary proceedings H 
915 
916 
SUPREME COURT REPORTS 
[1994) 1 S.C.R. 
·A against the appellant for not complying with the order passed in 1980 
directing the appellant to join at Pune. These proceedings came to an end 
ex·parte in 1981 and the appellant was dismissed from service. The litiga· 
tion between the parties ultimately led to the instant appeal by special 
leave. 
B 
Allowing the appeals, this Court 
' 
HELD: 1.1. The transfer order being not passed by the person 
competent to do so, and being contrary to rules was non est in the eye of 
law. The competent authority to transfer. the appellant ~ 
the Secretary 
C of the Department whereas the order was passed by the Director General. 
No order delegating the authority has been produced, and it was ultimately 
conceded that no order of delegation was on record. It is not possible to 
infer delegation because there was orders on the record which indicated 
that subsequently the Secretary had delegated the powers. It is not delega· 
D tion earlier or later which is material but whether any delegation existed 
on the date when the transfer order was passed. Further the respondents 
took a definite stand in the written statement that the transfer order was 
approved but did not produce the record in the trial court nor they could 
substantiate it even in this Court. [920~E-H] 
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1.2. The second order of transfer directing the appellant to join after 
he returned from his deputation came to an end in 1980 was not a fresh 
order either by the Secretary or even the Director General and the appel· 
lant was directed to join at Pone in pursuance of the earlier order passed 
in 1977. From.the records it is beyond doubt that the appellant was again 
directed to be transferred to Pune not on a fresh order of transfer but on 
the same order as the noting in the file reads, 'that orders of trpnsfers to 
IAT still stand and have not been cancelled.' It was this note which was 
approved by the authority concerned and it was directed that, 'he should 
be posted to IAT'. Since the earlier order being invalid, obviously did not 
exist in eye of law, the second order of transfer founded on it, too, could 
G not stand. [921-A·C] 
1.3. The transfer order being invalid or non est, the order of dismiss-
al of the appellant for not complying with the same falls automatically. 
[922-C] 
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