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1993 DIGILAW 368 (PAT)

Surendra Paswan v. State Of Bihar, Irrigation Deptt

1993-08-27

R.N.PRASAD, S.B.SINHA

body1993
Judgment S. B. Sinha, J. 1. In this writ application the petitioners have prayed for issuance of an appropriate writ for quashing the Notification dated 7-4-1993 as contained in Annexure-14 to the writ application as also the Notification dated 22-4-1993 an contained in Annexure-15 thereto. 2. The petitioner No.1 working in the irrigation department of Master planning and Designs, Circle No.2 and the petitioner Nos, 2 to 14 are working in Master Planning and Designs, Circle No.4 and the petitioner Nos.15 to 32 are working in Master Planning and Designs in Circle No.5 in walmi. All the said employees are working in the Irrigation Department. 3. The petitioners have contended that their promotions are due since long. According to the petitioners, whenever their turn for promotion came, they were transferred from one circle to another circle. 4. According to the petitioneis, whenever a transfer is made from one circle to another circle, the Chief Engineer becomes entitled to prepare a fresh gradation list of the said cadre. 5. According to the petitioners, several gradation lists were prepared in terms whereof they became entitled for promotion. 6. The petitioners have stated as follows : "that although the Notification No.507 dated the 8th October, 1986 in Memo No.5/d4-105/86 of the State Government some gazetted and non-gazetted employees of Master Planning and design of Circle No.2 and Division Nos.4 and 5 were transferred to Management Cell and the petitioners were left to be absorbed later on in the different circle Divisional establishment after declaring them to be surplus. That when after creation of Management Cell and after transfer of some of the Gazetted and non-gazetted posts to it, other posts which were left unabsorbed were put temporarily under the master Planning and Design Circle No.1 and it was decided that in future further direction will be issued for them. A resolution to this effect was passed on 7-9-87 in a meeting held under the chairmanship of Shri G P. Tiwari, Engineer-in-Chief-Cum-Additional Commissioner etc. cum-Special Secretary, Irrigation department of the Bihar State Government. " 7. The petitioners have inter alia contended that in Walmi one gradation list was prepared for all the employees and in that list the names of the petitioners were also included as would be evident from the letter No.173 dated 24-3-92 as contained in Annexure-10 to the writ application. 8. cum-Special Secretary, Irrigation department of the Bihar State Government. " 7. The petitioners have inter alia contended that in Walmi one gradation list was prepared for all the employees and in that list the names of the petitioners were also included as would be evident from the letter No.173 dated 24-3-92 as contained in Annexure-10 to the writ application. 8. When the matter of grant of promotion to the petitioners arose, allegedly the impugned order of transfer dated 7-4-1993 as contained in annexure-14 to the writ application was issued whereby the petitioners working in Walmi Master Planning Design Division Nos.4 and 5 were transferred to Aurangabad under the Chief Engineer, Irrigation, Aurangabad. 9. In the said Notification it has been stated that the Division Nos.4 and 5 would as Planning and Design Quality Control Division, Aurangabad. 10. The petitioners have also brought on records, the Notification dated 13-5-1993 as contained in Annexure-16 of the reply to the counter affidavit wherein it was directed that such persons who would give up their seniority and lien may remain at Walmi By reason of the said letter, options had been invited from the concerned employees. 11. Our attention has also been drawn towards the letter dated 12-7-1993 as contained in Annexure-18 of the reply to the counter-affidavit whereby the petitioners had been directed to join their transferred posts either at ranchi or Aurangabad within fifteen days. 12. Our attention has also been drawn towards the letter dated 17-3-1993 as contained in Annexure-17 of the reply to the counter-affidavit from a perusal whereof it appears that some persons have to be transferred from khagaul to Walmi. 13. The learned counsel appearing on behalf of the petitioners submitted that from the aforementioned fact it would be evident that the orders of transfer as contained in the Notification dated 7-4-1993 (Annexure-14) was passed mala fide in order to deprive the petitioners from their right of being considered for promotion. 14. It has been further submitted that in view of the fact that persons who gave up their seniority were permitted to remain at Walmi goes to show that posts at Walmi are available. 15. It was further submitted that normally Class-TV employees are not transferred from one division to another division. 16. 14. It has been further submitted that in view of the fact that persons who gave up their seniority were permitted to remain at Walmi goes to show that posts at Walmi are available. 15. It was further submitted that normally Class-TV employees are not transferred from one division to another division. 16. The learned counsel appearing on behalf of the State, however, submitted that the Walmi project was being executed under World Bank scheme and the work where the petitioners had been working are complete. The State Government has, therefore, taken a policy decision to adjust the petitioners so that they may get their salaries. 17. It was further pointed out that it is not a case of independent transfer but it is a case of shifting of the office. 18. In this connection, our attention has been drawn to the counter affidavit filed by the State wherein it has been stated as follows :- "that the Master Planning and Design Circle No.2 was existing in patna without any Supdt. Engineer, since last 5-6 years. The posts of Supdt. Engineer of the circle was taken back for adjustment in Management Cell of Water Resources Deptt. In other words, the aforesaid Circle was functioning without any Head and virtually without any work. Hence, all the employee within the circle were subsequently got attached with WALMI. Meanwhile, the work load of WALMI increased manifold, due to proposed creation of a big WALMI complex including construction of administrative building, residential houses and hostel building and various other allied works. Keeping in view the increased work load of WALMI the other two divisions namely master Planning division No.4 and 5 were also attached with walmi Khagaul, vide Notification No.733 dated 8-5-91. "that since the construction activities of WALMI have been now mostly completed, Master Planning and Design circle No.2 attached temporarily with WALMI had no work On the other band, Konar Circle No.2 at Bagodar was functioning without sufficient numbers of supporting official staff. Thus, in order to ensure and smooth functioning of Konar Circle at Bagodar all the employees of Master Planning Circle No.2 have been shifted there vide Notification mentioned above. In the changed context, it does not justify the attachment of the two divisions with walmi and they are virtually surplus without any work. That the Chief Engineer, Aurangabad. Thus, in order to ensure and smooth functioning of Konar Circle at Bagodar all the employees of Master Planning Circle No.2 have been shifted there vide Notification mentioned above. In the changed context, it does not justify the attachment of the two divisions with walmi and they are virtually surplus without any work. That the Chief Engineer, Aurangabad. through his various letters have been urging since long for creation of a Planning and Design division and a quality control Division within his jurisdiction. It will be pertinent to mention that a Planning and Design division is essential for initiation and formulation of schemes and design of its various components. Similarly, a quality control division is also necessary to keep a close watch over the quality of execution and control of specification thereof keeping in view the Govt. has decided to shift the above mentioned offices. In view of the facts and circumstances elaborated hereinabove, the govt, decision communicated vide Notification No 1439 dated 7-4-93 is fully justified in the larger interest of public works for which the Govt. is fully empowered. It is further submitted that the Govt. can not endeavour to keep such Divisions and Circle permanently at one place which does not justify its existence with respect to its workload, otherwise it will simply, be tantamount to pay without work. That so far the question, of seniority or position in the gradation list of any employees is concerned, it will ba safeguard as per prevalent rules and norms. It appears from the contents in the previous paras that the petitioner is concerned only about his promotion which he apprehends will be affected due to transfer of these Division/circles. This is simply based on imagination and misapprehension. There are prescribed rules and norms to fix up inter alia seniority of such employees who get transferred due to Govt. decisions However, all cares and precaution as required will be taken to safeguard the seniority of the petitioner who is under transfer due to aforesaid Notification. 19 It is, therefore, contended that as work at Walmi was being done with 100% financial assistance under the USA1d programme, the work came to end in the month of December, 1992 and Circle Nos.4 and 5 are running without any work. 20. 19 It is, therefore, contended that as work at Walmi was being done with 100% financial assistance under the USA1d programme, the work came to end in the month of December, 1992 and Circle Nos.4 and 5 are running without any work. 20. It has been further stated as follows :- "that with regard to the statements made in paragraph 7 of the writ application, it is stated that it is true but the employees are being transferred on the ground that they are surplus and there is no work. So, in the interest of public work they are being transferred for which the Govt. has power and is within the jurisdiction of Govt. This kind of transfer is not a routine transfer and circular quoted above is applicable in the matter of routine transfer. That with regard to the statements made in paragraph 24 of the writ application needs no comment. The posts are permanent but the Govt. has powers to transfer even permanent circle and divisions to anywhere in the interest of work and this is in vogue. " 21. It has been further contended that the matters of transfer of the petitioners are pending in the Irrigation Department. 22. In this case, this court is not concerned with non-grant of the promotion to the petitioners. 23. It has not been disputed by the petitioners that work at Walmi where they had been working are over. 24. However, it appears that a training centre is being operated therein, as would be evident from Annexure-17 itself that some persons from Khagaul are to be transferred from the training centre at Walmi. The petitioners are not working at the training centre and, thus, Annexure-17 has no relevance in the facts and circumstances of the case. 25. It is true that options had been asked for from those persons who intend to give up their seniority and remain at Walmi but it must be felt that the same is a matter of policy decision of the State of Bihar and the said policy decision has been principally arrived so as to adjust some employees at Walmi or near about. 26. 26. In view of the fat that the entire office has been shifted to Aurangabad for the reasons stated in the Countar-affidavit filed by the State, we do not find any merit in the contention of the petitioners that the impugned orders of transfer dated 7-4-1993 and 22-4 1993 as contained in Annexures 14 and 15 to the writ application had been passed malafide or for colateral purposes. 27. It is now well known that this court may interfere with a policy decision of the State only if the same is found to he wholly arbitrary, 28. In U. P. Financial Corporation V/s. Gem Cap (India) Pvt. Ltd and others, reported in 1993 (2) SCC 299 it has been held as follows : "the obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. The doctrine is complementary to the principles or natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this court as far back as 1970 in A K Kraipak v, union of India. Even so the extent of Judicial scrutiny/judicial review in the case of administrative action can not be large than in the case of quasi-judicial action. If the High Court can not sit as an appellate authority over the decisions and order of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorties. In the matter of an administrative action, it is well known, more than one choice is available to the administrative authorities, they have a certain amount of discretion available to them. They have "a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. " (Lord Diplock in Secretary of State for Education and Science V/s. Metropolitan Borough counsel of Tameside The court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court intervene. 29. For the reasons aforementioned, there is no merit in this writ application and the same is dismissed. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court intervene. 29. For the reasons aforementioned, there is no merit in this writ application and the same is dismissed. 30. However, we may observe that keeping in view of the policy decision of the State Government as also the directives as contained in annexure-8 to the writ application, the question of granting promotion to the petitioners should be taken up by the concerned authorities at an early date. 31. We hope and trust that the matter of grant of promotion to the petitioners who may be found eligible for the same shall receive expeditious considerations from the concerned Authorities. 32. This application is dismissed with the aforementioned observations but in the facts and circumstances of the case, there will be no order as to costs.