As there is prima facie merit in the allegation regarding improper Collegium & mala fides, interim stay on transfer of ITAT Member cannot be vacated

Hon’ble Shri. Sunil Kumar Yadav, Judicial Member, posted at Lucknow, filed a case before the Central Administrative Tribunal (CAT), Lucknow Bench, claiming that his transfer, within a span of one year, from Lucknow to Chennai, which was then modified from Lucknow to Kolkota was “arbitrary and with a malafide intention” and contrary to the guidelines laid down in Ajay Gandhi vs. V. B. Singh (2004) 2 SCC 120. By an interim order dated 19.11.2012, the CAT stayed operation and implementation of the impugned transfer order. The UOI and the President of the Tribunal filed an application seeking vacation of the stay order. HELD by the CAT:

The interim order has been passed on the basis of a prima facie case that the impugned transfer order has not been made by a proper Collegium in accordance with the guidelines laid down in Ajay Gandhi‘s case and also on the ground of alleged mala fides against the present officiating president of the ITAT. A new point has now been raised by the transferred Member that the ACC (Cabinet Committee of Appointment) has not yet accorded approval on the proposed appointment of Shri Karwa as officiating President of the ITAT on the ground that by such appointment there is a supersession of three persons and as there is no difference between an appointment in a substantive capacity and an officiating capacity, the appointment requires to be considered first by the Selection Committee. This approval may or may not come in due course of time and then only the exact status of the competent authority i.e. the President, ITAT, would be ascertained. For the present, prima facie, this point is in favour of the applicant. As regards the point of proper Collegium, the requirement in Ajay Gandhi is that the President should consult two senior Vice Presidents and not the two Vice Presidents available. It has been alleged that though the two Senior Vice Presidents were available for the Collegium, they were ignored in an arbitrary manner and in utter defiance of the law. Prima facie there appears to be some substance in the submission. A prima facie case has also been made out as regards the allegation of malafides. Consequently, there is no substantial and sufficient ground for vacating the interim order dated 19.11.2012