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Kerala High Court · body

1993 DIGILAW 490 (KER)

Mohanan Nair v. State of Kerala

1993-10-22

G.H.GUTTAL

body1993
Judgment :- 1. The petitioner is a Surgeon in the Health Services Department of the State Government. He impugns the validity of the order dated 13-8-1993 (Ext.P3) transferring him to a place not disclosed in the order and the order (Ext.P4) of the same date transferring and posting him to Primary Health Centre (P.H.C.) Vechuchira, Pathanamthitta District. 2. The facts out of which the petition arises are these. The petitioner requested a transfer to a place near to his native place in Pathanamthitta District. By order No.EAI-51290/93 DHS dated 31-5-1993 he was transferred to the General Hospital, Pathanamthitta. He secured a house after paying advance rent. His child has been admitted in a school. He has settled down at Pathanamthitta. 3. The order of transfer from the General Hospital, Pathanamthitta, is impugned on two grounds. (i) The impugned orders have been made by the Director of Health Services "on instructions from the Minister of Health to favour the 6th respondent." It is malafide. (ii) The authority to transfer belongs to the Director of Health Services. By making the transfer only because the minister instructed him to do so, the Director abdicated his duties thereby vitiating the exercise of his discretion. 4. Ground (B) of the memorandum of the petition contains a specific allegation that the Minister of Health instructed the Director to transfer the petitioner to favour the respondent No.6. This argument was advanced on the 16th October, 1993. The petition was then adjourned on the application of the Government Pleader to enable the respondent Nos.1 to 4 to file a counter-affidavit. A statement signed by Senior Superintendent, Directorate of Health Services, Trivandrum, has been filed. No attempt is made even to deny the allegation made in the petition that the transfer was made on the instruction of the Minister to favour the respondent No.6.1 have treated the statement as the counter-affidavit on behalf of respondents 1 to 4. 5. Learned Government Pleader produced the entire file relating to the transfer of the petitioner. I read the file. There is a note written by the Director of Health Services. The Director records that the Minister told him that he had received complaints against the petitioner. The note proceeds to state that the Minister directed the Director of Health Services to transfer the petitioner "on administrative grounds", preferably to a smaller institution. I read the file. There is a note written by the Director of Health Services. The Director records that the Minister told him that he had received complaints against the petitioner. The note proceeds to state that the Minister directed the Director of Health Services to transfer the petitioner "on administrative grounds", preferably to a smaller institution. There is, therefore, conclusive evidence in Government's file which shows that the transfer was directed by the Minister. The note docs not record that the Director had proposed the petitioner's transfer from the General Hospital, Pathanamthitta. 6. In view of the note by the Director of Health Services who is the respondent No.2 and the absence of an assertion by the respondents 1 and 2 that the Director, on a critical examination of the Minister's direction decided to transfer the petitioner, I hold that the Director made the impugned order in blind obedience to the Minister's direction. 7. The Minister, no doubt, directed the transfer of the petitioner "on administrative grounds." The question is whether this direction by itself introduces the element of malafides. If the Minister has received complaints against certain officer it would not be inappropriate for him to direct the attention of the authority empowered to transfer, to such complaints. The fact that the minister directed the transfer by itself does not justify an inference that the transfer was made with a view to favour the respondent No.6. No nexus between the minister's act and the transfer of the respondent No.6 is discernible. Therefore I am unable to hold that the transfer of the petitioner is vitiated by malafides. 8. The next question is: What is the effect of the blind uncritical acceptance of the minister's direction, on.the validity of the order of transfer? It is considered in the following paragraphs. 9. The power of the Director to transfer employees is intended to be exercised to ensure efficiency. This is done by posting suitable persons at appropriate places, where they can perform effectively and in a variety of other ways which, broadly stated, constitute administrative exigencies. 10. A public authority may not act outside its powers. This principle is the centre piece of administrative law. (Administrative Law - H.W.R. Wade, Fifth Edition, Page 38). Administrative acts or orders which are ultravires are void in law. This basic principle of administrative law has been extended to various situations. 10. A public authority may not act outside its powers. This principle is the centre piece of administrative law. (Administrative Law - H.W.R. Wade, Fifth Edition, Page 38). Administrative acts or orders which are ultravires are void in law. This basic principle of administrative law has been extended to various situations. A new facet of the doctrine of ultravires, is illustrated by this case. If delegation of power is one side of the coin, the other side is represented by surrender or abdication of authority. The authority to transfer belongs to the Director of Health Services. It is he who can exercise his discretion and decide whether the administrative exigencies demand the petitioner's transfer from the general. Hospital, Pathanamthitta. He issued the order of transfer entirely on the direction of the minister. This is not to suggest that the minister has no authority to suggest transfer of the petitioner. But the exercise of discretion by the Director requires that he examines the ministers' suggestion critically and comes to an independent conclusion about the need to transfer the petitioner. Where, as in this case, the authority who possesses the power to transfer makes the order of transfer on the direction of the minister without critically examining it, such authority surrenders his authority to the minister. When the authority is so abdicated in favour of the minister what the Director of Health Services has done, by the order of transfer, is not an exercise of authority. He has surrendered or abdicated his authority. Therefore the authority to transfer has been exercised by the wrong hands. The resultant order therefore does not flow from the lawful authority. The order is therefore void. 11. A classic case of such abdication and surrender of authority is found in Rowjee v. The State of Andhra Pradesh (AIR 1964 SC 962). In that case the scheme for nationalisation of transport on a certain route adopted by the State Road Transport Corporation on the direction of the Chief Minister was struck down. In Simms Motor Units Ltd. v. Minister of Labour and National Service (1946 (2) A11.E.R.201) the direction of the minister to the national service officer always to reinstate employees in certain cases was held to be invalid and the order of reinstatement to be without exercise of discretion. In Simms Motor Units Ltd. v. Minister of Labour and National Service (1946 (2) A11.E.R.201) the direction of the minister to the national service officer always to reinstate employees in certain cases was held to be invalid and the order of reinstatement to be without exercise of discretion. In Ellis v. Dubowski ((1921) III KB 621) the licensing committee had the authority to grant licence under the Cinematograph Act, but it attached a condition that no film would be shown unless it has been certified for public exhibition by the British Board of Films Censors, thereby abdicating its authority in favour of the British Board of Film Censors. Another instance of the abdication of authority is found in Achyutananda Behera v. State of Orissa & Ors. (1985 (2) SLR 16) where the transfer was made on the instructions of a Member of Parliament. 12. The consensus of judicial opinion is that if an authority exercising power acts on the direction of another person, without critically examining it, such authority abdicates or surrenders his power, rendering his action ultra vires or without authority. Consider the facts of this case. The Minister in his direction noted by the Director refers to complaints received by him against the petitioner. If there were complaints which made it undesirable to keep the petitioner at Pathanamthitta, the Director undoubtedly possesses the power to transfer the petitioner. But the Director never applied his mind to the worth of the supposed complaints. No enquiry into the truth of the complaints was made by the Director. To borrow the language of the Orissa High Courtin Achyutananda Behera's case (1985 (2) SLR 16), the Director "acted on the prodding" of the minister and acted on the "dotted lines". 13. In my opinion therefore the Director abdicated his authority and surrendered it to the minister. The resultant order of transfer impugned in this petition is ultravires and therefore void. 14. The question is whether an order transferring an employee before completing the normal period of 3 years at a station is valid was also urged. But in the view which I have taken of the impugned order it is unnecessary to decide this question. 15. For all these reasons this O.P. is allowed. 14. The question is whether an order transferring an employee before completing the normal period of 3 years at a station is valid was also urged. But in the view which I have taken of the impugned order it is unnecessary to decide this question. 15. For all these reasons this O.P. is allowed. The impugned order of transfer No.EAI/76527/93 DHS dated 13-8-1993 (Ext.P3) in so far as it transfers the petitioner from the General Hospital, Pathanamthitta, and the order No.EAI-80781/93/DHS dated 13-8-1993 (Ext.P4) posting the petitioner to P.H.C. Vechuchira are hereby quashed. The petitioner shall continue to be posted at General Hospital, Pathanamthitta, as if the impugned orders were never made.