Judgment :- M. Thanikachalam, J. The petitioner, aggrieved by the order of the Central Administrative Tribunal dated 10.8.2004, which refused to quash the order of respondents 2 & 3, has filed this writ petition. 2. The petitioner was working as Assistant Director (Medical), in the third respondent institution, which is under the control of the second respondent. The second respondent had issued an order, transferring the petitioner from the third respondent institution, to Regional Medical Research Centre (in short RMRC) Belgaum, along with post as per the letter No.NIE/ESTT/P-12(4)2004/753 dated 25.6.2004. On the basis of the council's letter referred above, the third respondent relieved the petitioner from National Institute of Epidemiology (in short NIE), Chennai to report for duty at RMRC, Belgaum. Aggrieved by the said order, the petitioner moved the Central Administrative Tribunal (in short CAT), the first respondent herein, complaining that the order of transfer was issued without power and authority, that too with malafide intention, to take vengeance against the petitioner, at the instigation of the fourth respondent, Dr. M.D. Gupte, Director, NIE, Chennai. 3. Respondents 2 to 4 in their separate detailed counters, opposed the application. Respondents 2 & 3 have contended inter alia, that the transfer is an incident of service and it should not be interfered with generally by the courts and tribunals, unless and until it is shown, it is violated by malafides or in violation of rules, that the second respondent being the Director General of Indian Council of Medical Research (in short ICMR) has full power to transfer even the petitioner along with post in the interest of administration, that in the petition, no malafide is attributed against the transferring authority viz., the second respondent and in this view, challenging the transfer is unsustainable, and that in the transfer effected, the fourth respondent has no role, except suggesting the transfer, which was also under the direction of ICMR. In this view, they have opposed the application for quashing the transfer order, praying for its sustenance. 4. In this view, they have opposed the application for quashing the transfer order, praying for its sustenance. 4. The fourth respondent herein had countered the allegations of malafide against him, denying all the allegations are false, further submitting that in fact, on some of the occasions, he had recommended this petitioner for certain assignments, which were beneficial to him, that in the transfer, he has no role, whereas as per the rules and regulations and by laws of the council, the Director General, being the appointing authority, for the post of Assistant Director has full power for transferring an employee of the council, from one posting to another or transferring a lien with respect to an employee. It is the further case of the fourth respondent, that the Director General, who is the competent authority, had decided to transfer scientists from other centers, along with the post to Belgaum, since there was a ban for recruitment, considering the administrative convenience and absence of scientists at Belgaum. In this view, he would urge in the counter, along with other contention, that he is not at all responsible, for the transfer of the petitioner along with the post, thereby praying for its dismissal. 5. In this view, he would urge in the counter, along with other contention, that he is not at all responsible, for the transfer of the petitioner along with the post, thereby praying for its dismissal. 5. The Central Administrative Tribunal, considering the rival contentions of the parties, as well as the submission made by the learned respective counsel, has come to the conclusion, that as a follow up of the recommendation and proposal by the fourth respondent, at the request of the council, on the ground that the applicant's service could be better utilized at the new center, a transfer was made along with the post, that the applicant has not pleaded any malafides against the Director General, who is the competent authority and not the third respondent and in this view, the plea of malice was not at all substantiated, which should follow, it is unacceptable to vitiate the transfer order, that the Director General of ICMR is the competent authority, since power is vested with him under Rule 37 of the Rules and Regulations of the ICMR and that the past practice of the second respondent had disclosed that the Director General has been exercising full powers for shifting of the post in the research cadre upto the level of the Deputy Director, including vacant post from one institute to another in the interest of carrying out research work, which practice had got the concurrence and approval of the authorities, which had not been questioned or objected to, so far and in this view, though there is no specific provisions under the bye laws of the institute, by which the power of transfer along with post has not been vested on the Director General, such powers came to be exercised by virtue of the practice adopted in the council, which cannot be challenged. On the above conclusion, the application filed by the writ petitioner, challenging the order of the transfer of the applicant, along with the post, came to be dismissed on 10.8.2004, which is under challenge in this writ petition. 6. Heard the learned counsel for the petitioner, Mr. Balan Haridoss, the learned senior counsel Mr. Raju Ramachandran for respondents 2 & 3 and Mr. V.K. Rao, learned counsel appearing for R4. 7. 6. Heard the learned counsel for the petitioner, Mr. Balan Haridoss, the learned senior counsel Mr. Raju Ramachandran for respondents 2 & 3 and Mr. V.K. Rao, learned counsel appearing for R4. 7. The learned counsel for the petitioner submitted, (i) that the Tribunal having come to the conclusion that there is no power to transfer a person along with the post, had erroneously dismissed the application, on the ground that in view of the past practice, the order is sustainable, which is not the case of the respondents also, (ii) that despite materials supplied to establish malafide, the Tribunal had committed an error in not accepting the same, (iii) that transferring the petitioner along with the post, which would amount to creation of post of Assistant Director, which power is not vested with the Director General and if at all, it could be done only by the Governing body of the council, which facts have been overlooked by the Tribunal and (iv) that the Memorandum of Association, Rules, Regulations and Bylaws have not specifically vested the power of transfer along with post as far as the petitioner and post are concerned, in favour of the Director General and in this view, it should be held that the order of transfer is without authority and liable to be quashed. On the above grounds, the main thrust of the learned counsel for the petitioner is, that the order dated 25.6.2004, is without competency, tainted with malafide, liable to be set aside, for which, the interference of this Court is necessary. 8. Mr. Raju Ramachandran, the learned senior counsel appearing for respondents 2 & 3 and Mr.V.K. Rao appearing for the fourth respondent submitted that in the transfer of the petitioner along with post, the fourth respondent had no role, except suggesting, that too at the direction of the council and therefore, the malafide attributed to the fourth respondent could not have any bearing in the transfer order issued by the second respondent, against whom no malafide of any kind is attributed. In this view, they would contend that the order of transfer is not liable to be challenged or to be set aside on the ground of malafide. 9. In this view, they would contend that the order of transfer is not liable to be challenged or to be set aside on the ground of malafide. 9. The learned senior counsel further submitted, that the Memorandum of Association, Rules, Regulations and Bylaws, absolutely vest power with the Director General of ICMR, to transfer the petitioner along with the post and therefore, questioning the competency of the second respondent, who issued the order of transfer, has no base or it cannot have any legal sanctity. In support of the above contentions, our attention was drawn to various provisions of the Rules, Regulations and Bylaws. We have given our anxious and deep thought to the submission of the learned counsel for both parties and also carefully and meticulously gone through the pleadings, as well as the rules and regulations and by laws governing the ICMR. 10. The submission of the learned counsel for the petitioner, that the transfer order of the petitioner is tainted with malafide, is not acceptable to us also, as rightly submitted by the learned counsel for the respondents, since no malafide has been attributed against the transferring authority viz., the second respondent/Director General of Indian Council of Medical Research. In the original application No.564/2004, some accusations were made only against the third respondent therein, who is the Director of NIE, Chennai. The Director General of ICMR is not under the control of the Director of NIE, whereas the third respondent is under the control of the second respondent. Therefore, the allegations in the original application that the third respondent had prevailed upon the second respondent, to issue the order of transfer, to a place where there is no post of Assistant Director, is not acceptable to us. If any allegations have been made attributing malafide to the second respondent, who had issued transfer order, then only it could be considered effectively, so as to test the legality of the transfer order, regarding its validity. The allegations that the fourth respondent herein had developed animosity against the applicant and some how he wanted to victimize him, appear to us, as the inventions of the petitioner, to challenge the transfer order and we find no merit acceptable in nature. 11. The allegations that the fourth respondent herein had developed animosity against the applicant and some how he wanted to victimize him, appear to us, as the inventions of the petitioner, to challenge the transfer order and we find no merit acceptable in nature. 11. As rightly pointed out by the learned counsel for the fourth respondent, at certain point of time, the request of the petitioner, for certain assignment has not been recommended, considering the circumstances existed at that time, when there was some other occasion to lift or help the petitioner or to equip him more, in fact, indisputably, the fourth respondent had recommended the name of the petitioner. In an office, the supervising authority or the controlling authority, has to take decision considering the existing circumstances, for the welfare of the institute and its better administration. While exercising that kind of jurisdiction, if an administrator refused to accede to any request of the employee, that could not be always treated as malafide or he is developing animosity against that person. In this case, probably considering the better administration of NIE, as pointed out by the learned counsel, some of the request of the petitioner has not been favoured by the fourth respondent. In our considered opinion, those things are most irrelevant, since the fourth respondent is not the competent authority, to issue order of transfer, the admitted fact being, he has not issued any transfer order also on his own. Admittedly, no malice or ill will or malafide had been attributed to the action of the second respondent herein. In the absence of any allegations against the second respondent, we are unable to persuade ourselves, to accept the contention of the learned counsel for the petitioner, that the order of transfer is tainted with malafide, warranting our interference, to quash the order of the transfer. 12. The learned counsel for the petitioner questioning the power, authority and competency of the second respondent, invited our attention to bylaws, which governs the council. Rule 29 of the Rules and Regulations of ICMR reads: "The Governing Body shall have general control of the affairs of the Council and authority to exercise all the powers, and perform all the acts and deeds of the Council consistent with the aims and objectives of the Council". Rule 29 of the Rules and Regulations of ICMR reads: "The Governing Body shall have general control of the affairs of the Council and authority to exercise all the powers, and perform all the acts and deeds of the Council consistent with the aims and objectives of the Council". Rule 33 of the Rules and Regulations of ICMR empowers the Governing Body, to delegate the power to the Executive Committee, the Director General, etc. Rule 36 says that the Executive Committee will perform such duties and exercise such powers as may be laid down from time to time in the Bylaws, resolutions or otherwise by the Governing Body. 13. On the above basis, the learned counsel for the petitioner submits, that only the Governing Body alone has the power to transfer the petitioner along with post and as such the Director General has no power at all, further since the bylaws have not specifically stated, that the Director General of the second respondent has authority or power to transfer the Assistant Director along with post. Though the submission is so attractive, mere reading of the above rules alone, by going through the other provisions of the bylaws, we are unable to persuade ourselves, to subscribe our view, thereby quashing the proceedings, concluding that the Director General has no authority or he lacks competency. 14. The learned senior counsel for respondents 2 & 3 emphasizing the power of the Director General, to transfer the petitioner along with post invited our attention to Rule 37, which reads: "Subject to such bylaws and resolution as may be prescribed by the Governing Body, the Director-General may exercise all such powers and do all such acts as may be required for the proper conduct of the affairs of the Council." The rules and bylaws were prescribed by the Governing Body. The position being so, when Rule 37 says the Director-General may exercise all such powers and do all such acts as may be required, for proper conduct of the affairs of the council, then it should be presumed, unless it is specifically barred by any other laws or rules, the Director General is the competent authority, to transfer the petitioner along with post, for the better administration and proper conduct of the affairs of the council. It is the specific case of respondents 2 & 3, that because of the ban imposed by the Government from recruiting officers or staff, it was decided by the council to transfer some of the post along with officer to Belgaum, where the service of the scientists are very much required, for certain specific purpose. In this view alone, though there is no post of Assistant Director (Medical) at RMRC, Belgaum, the Director General had transferred the petitioner along with the post. As submitted by the learned senior counsel for respondents 2 & 3, the petitioner alone has not been singled out, and some other officers have also been transferred along with the post. In this view also, the malafide eclipsed, the further fact being, as contemplated under Rule 37, the Director General is the competent authority to transfer the petitioner along with the post, in which power we are unable to entertain any doubt, which is further strengthened by other provisions, available in the bylaws. 15. It is an admitted position, at RMRC Belgaum, there is no post of Assistant Director (Medical), which is available at NIE, Madras. Since there was no post at RMRC, Belgaum, transferring the petitioner along with the post would amount to creation of new post, which power is not vested in the second respondent, is the submission of the learned counsel for the petitioner. In aid, our attention was drawn to Appendix I-Sl.No.3, where clause (3) gives power to the Director General, for creation of post and other establishment matters. In this, the proviso says, where there is no specific provision in the budget, prior approval of the Executive Committee of the Council should be obtained. Appendix I Sl.No.III (7) & (8) says: Sl.No. Powers Extent 7. Creation of temporary posts. Full powers to sanction creation of posts carrying scale of pay, the maximum of which does not exceed Rs.2750/- p.m., provided: (i) there is a provision for such posts in the budget, and (ii) concurrence of the FA of the ICMR has been obtained. Provided further that where there is no specific provision in the Budget, prior approval of the Executive Committee of the Council should be obtained. 8. Conversion of temporary posts into permanent posts. Provided further that where there is no specific provision in the Budget, prior approval of the Executive Committee of the Council should be obtained. 8. Conversion of temporary posts into permanent posts. Full powers in respect of such posts which he has powers to create provided conversion is in accordance with the general percentages and principles as may be laid down by the Council. As per the proviso, prior approval of the Executive Committee of the Council had not been obtained. Further, the conditions contemplated in Appendix I Sl.No.III (8) are not available in this case and therefore, it was submitted that the Director General has no authority, to transfer the petitioner, along with the post, since it would amount to creation of post. By going through the provisions carefully, we are unable to agree. The petitioner was transferred along with post and therefore, question of provision in the budget and its prior approval of the Executive Committee of the council, may not be necessary in this case. Since it is not the creation of temporary post or new post at Belgaum, except relocation of the post, question of conversion or creation of post, had not arisen, and therefore, prior approval of the council also, would not arise for consideration. 16. The submission of the learned senior counsel appearing for respondents 2 & 3, that power does exist with the Director General of the second respondent is fully justified, as seen from Appendix I Sl.No.XIV (80), which reads: If we read Appendix (I) Sl.No.XVI (80) along with Rule 37, it is manifestly clear, and undoubtedly also, that the Director General, Indian Council of Medical Research has "full power" to transfer an employee of the Council not only from one post to another, but also along with post, since Rule 37 contemplates, that the Director General is competent to do all such acts, as may be required for the proper conduct of the affairs of the council. In this case, as picturised in the counter, in order to maintain the office at Belgaum and to continue its activities, the post of Assistant Director is necessary and since the creation of new post is banned, for the better administration and proper conduct of the affairs of the council, the Director General thought it fit, to transfer the petitioner along with post, in which we are unable to find any malafide or lack of power or incompetency, as the case may be. 17. The Tribunal, basing on the principle laid down by the Supreme Court in N. SURESH NATHAN AND ANOTHER vs. UNION OF INDIA AND OTHERS ( AIR 1992 SC 564 ) that if the past practice is based on one of the possible constructions which can be made of the rules, then upsetting the same now would not be appropriate, considered the case of the transfer of the petitioner and by going through certain materials, had come to the conclusion, that it is apparent that the Director General has been exercising full powers of shifting of the post in the research cadre up to the level of the Deputy Director. In this view, it justified the transfer. However, this point was not urged by either counsel. The learned senior counsel for respondents 2 & 3 has not justified the transfer on the basis of the past practice, whereas his main contention was that bylaws vest the power in the Director General of ICMR, which we have already discussed and accepted. In this view, though for different reason, the order of dismissal shall stand. 18. In our considered opinion, the bylaws, rules and regulations created by the council have given full power to the Director General as hereinbefore mentioned adverting to Rule 37 and Appendix-I Sl.No.18. In this view of the matter, it is not possible to interfere with the findings of the Tribunal viz., the dismissal of the application. In the result, the writ petition is devoid of merits and the same is dismissed. Considering the facts and circumstances of the case, the parties are directed to bear their respective costs. W.P.M.P.No.28162 of 2004 is closed.