ANANTRAY MAGANLAL VYAS v. STATE — 1995 DIGILAW 89 (GUJ)

B. N. KIRPAL, CJ. ( 1 ) THIS order will dispose of Letters Patent Appeal No. 705 of 1994 as well as Civil Application No. 16 of 1995 which has been filed in the very Letters Patent Appeal. ( 2 ) IN order to appreciate the rival contentions it is necessary to set out a few facts. ( 3 ) THE appellant was appointed as Joint Director of Agriculture on 17th March 1989 It appears that a Committee prepared a select panel for appointment to the post of Director of Agriculture in the State of Gujarat. Pursuant thereto order dated 11th of November 1993 was passed whereby the appellant was promoted as Director of Agriculture but his promotion and appointment was stated to be purely temporary as per the said order. ( 4 ) IT is the case of the appellant that the Minister of Agriculture respondent No. 3 initiated a file for his transfer from the said post. According to the appellant his transfer was not to be made to the post of Director of the Gujarat State Seed Certification Agency. Thereupon a writ petition under Article 226 of the Constitution of India being Special Civil Application No. 13092 of 1994 was filed challenging the proposed transfer of the appellant to the said post of Director of Gujarat State Seed Certification Agency. By way of an amendment the appellant also challenged the validity of Rule 107 of the Bombay Civil Services Rules which inter alia permitted a person being transferred to an ex cadre post without his consent as long as that post was wholly and substantially under the control of the Government. ( 5 ) VIDE order dated 9th of December 1994 a single Judge of this Court issued rule but the interim stay which was prayed for was refused and ad interim relief granted earlier was vacated. Being aggrieved by the said order the present Letters Patent Appeal was filed. ( 6 ) ON 13th of December 1994 the Division Bench while issuing notice in the Appeal directed that status quo as on that day would be maintained. Vide order dated 26th of December 1994 the earlier order of the Division Bench was modified and it was clarified that the appellant should not be transferred outside his cadre. ( 6 ) ON 13th of December 1994 the Division Bench while issuing notice in the Appeal directed that status quo as on that day would be maintained. Vide order dated 26th of December 1994 the earlier order of the Division Bench was modified and it was clarified that the appellant should not be transferred outside his cadre. ( 7 ) ON 6th of January 1995 an order was passed by the Government whereby one Shri G. I. Patel who was the Director of Gujarat State Seed Certification Agency was promoted on provisional and temporary basis in the Gujarat Agricultural Services Class I and was appointed to the post which was being held by the appellant and the appellant simultaneously was appointed to the post of Area Development Commissioner Kadana Project Ahmedabad which was stated to have become a cadre post. On this very day i. e. On 6th January 1995 another order was passed in which it was stated that the post of Director of Agriculture in the Gujarat Agricultural Service Class I the post from which the appellant had been transferred and is the one in question was in the pay scale of Rs. 5300-6200. There was another post of Area Development Commissioner Kadana Project Ahmedabad under the Narmada and Water Resources Department which was of the same pay scale and which was being filled on deputation from amongst the officers of the said pay scale. but who belonged to the Gujarat Agricultural Service Class I. It was further stated that the matter had been under consideration for some time and the Government had decided to treat the said post of Area Development Commissioner as a temporary addition to the cadre of Director of Agriculture in the Gujarat Agricultural Service Class I. It is to this post that the appellant has been transferred to. ( 8 ) AFTER the passing of the aforesaid orders of 6 of January 1995 the present Civil Application No. 16 of 1995 was filed. ( 8 ) AFTER the passing of the aforesaid orders of 6 of January 1995 the present Civil Application No. 16 of 1995 was filed. The contention of the appellant is that the impugned orders dated 6th of January 1995 purporting to transfer the appellant from the post of Director of Agriculture to the post of Area Development Commissioner should be quashed and that the action of the respondents was clearly in violation of the interim orders which had been passed by the Division Bench of this Court on 13th December 1994 as modified on 26th December 1994 ( 9 ) AS far as the Letters Patent Appeal is concerned we find that till now no application has been made for amendment of the writ petition. The challenge in the writ petition was to the threatened transfer to the post of Director State Seed Certification Agency. Admittedly this transfer had not taken effect and on the contrary the appellant has been transferred to the post of Area Development Commissioner Kadana Project Ahmedabad. According to the respondents the said post has been encadred validly in the Gujarat Agricultural Service Class I and therefore the transfer is not invalid. The creation of post of Area Development Commissioner and the transfer of the appellant to the same will be dealt with presently. But as far as the writ petition is concerned it has clearly become infructuous because the threatened transfer to the post of Director State Seed Certification Agency has not taken place. Therefore the Appeal has to be dismissed on this ground alone. ( 10 ) IT was contended by Shri Vakil in support of his Civil Application No. 16 of 1995 that the order which was passed on 6th of January 1995 transferring the post to the Gujarat Agricultural Service and the subsequent transfer of the appellant to the said post is bad in law. ( 10 ) IT was contended by Shri Vakil in support of his Civil Application No. 16 of 1995 that the order which was passed on 6th of January 1995 transferring the post to the Gujarat Agricultural Service and the subsequent transfer of the appellant to the said post is bad in law. ( 11 ) ORDINARILY one would have expected and that would have been a proper for a fresh writ petition being filed for the purpose of challenging the orders which have now been passed on 6th of January 1995 However as the contention is that these orders had been passed with a view to violate the interim orders passed by the Division Bench and therefore this Court has the jurisdiction in these proceedings to go into the validity of the said orders we intend to do so. ( 12 ) THE first challenge to the order dated 6th January 1995 by which a temporary addition of the post of Area Development Commissioner has been made to the cadre of the Director of Agriculture in the Gujarat Agricultural Service Class I is that in the impugned order it has been stated that the matter was under consideration with regard to the addition of the said Area Development Commissioners post to the Gujarat Agricultural Service Class I. The learned counsel submits that this statement is not factually correct. In this connection he has sought to draw our attention to an earlier order dated 11th of January 1985 whereby the posts of Area Development Commissioner were created as Ex Cadre posts of Chief Engineer/additional Director of Agriculture in lieu of posts of IAS cadre. ( 13 ) IN our opinion it is of no consequence whether the question of bringing the posts of Area Development Commissioner into the cadre of Director of Agriculture in the Gujarat Agricultural Service Class I had been under consideration for some time or not. If the Government has the power to encadre such a post then it may do so whether it had been under consideration for a long time or not. If the Government has the power to encadre such a post then it may do so whether it had been under consideration for a long time or not. In any case we do not see anything in the order of 11th January 1985 which might possibly lead us to the conclusion that the statement made in the order of 6 of January 1995 that the matter of encadring the said post was under consideration for some time is not a correct statement Mere ipse dixit of the appellant cannot be accepted in this behalf. ( 14 ) IT was then submitted that under Article 166 of the Constitution every Executive action has to take place in the name of the Governor. It was submitted that under the said Article Transaction of Business Rules have been framed and according to the said Rules the question with regard to classification and recruitment to the post is a matter to be decided by the General Administration Department and the Finance Department. The further submission in this behalf was that the Agricultural Department has passed the impugned order and the same could not have been done merely by stating it to be in the name of Governor and without the concurrence of the General Administration Department and the Narmada Department. ( 15 ) IT cannot be disputed that the Narmada and Water Resources Department is under the Government of Gujarat and therefore any order which is passed in respect thereto will have to be in the name of the Governor of the State. The first order of 11th of January 1985 whereby the two posts were made ex cadre was an order passed in the name of the Governor of Gujarat and it was stated therein that it had been issued with the concurrence of the General Administration Department and the Finance Department In the present case also it has been stated that the impugned order is By Order and in the name of the Governor of Gujarat. What is of greater significance is that this impugned order of 6th of January 1995 clearly states that it has been issued with the concurrence of the General Administration Department and the Finance Department on the Agricultural Departments Note dated 4th of January 1995 In other words for the encadring of the said post the concurrence of the requisite Departments viz the General Administration Department and the Finance Department had been taken. We therefore do not see any Constitutional or other illegality in the encadring of the said post. ( 16 ) IT was also submitted that looking at the background of the case the intention of the respondents in passing the orders of 6th of January 1995 was clearly to bypass the interim orders of this Court and this should not be allowed ( 17 ) IT is quite evident that the Area Development Commissioners post has been encadred solely with a view that the appellant may be transferred to another post within the same cadre. Whether that transfer was valid or not will be considered separately with specific reference to the allegations of mala fides but the intention of encadring the said post is very clear This is viewed by the appellant as amounting to circumventing the orders of this Court. But on the other hand the stand of the Government is that the post has been created in order to see that the order of transfer of the appellant does not in any way violate the interim orders passed by this Court. ( 18 ) IN our opinion if the Government could validly increase the cadre strength in order to achieve a valid object then such action cannot be questioned. The interim orders which had been passed by the Division Bench of course must have put the Government on guard. The interim orders clarified that transfer of an employee in accordance with law was permitted and the transfer within the cadre would ordinarily be valid. In order to ensure that such transfer within the cadre did not amount to a reduction in rank it is obvious that it was necessary to increase the cadre strength. This was achieved by the Government encadring the previously ex cadred post of Area Development Commissioner. In order to ensure that such transfer within the cadre did not amount to a reduction in rank it is obvious that it was necessary to increase the cadre strength. This was achieved by the Government encadring the previously ex cadred post of Area Development Commissioner. Its encadrement has been done by a proper authority and we see no illegality having been committed in this connection The desire no doubt was that the appellant should be transferred from the post of Director of Agriculture and in order to ensure that such transfer does not suffer from any technical infirmity the cadre strength was increased. ( 19 ) IT was lastly submitted that there was no administrative exigency for the transfer of the appellant from the post of Director of Agriculture to the post of Area Development Commissioner. Both Mrs. Mehta and Mr. Vakil on behalf of the appellant contended that the transfer has been made at the behest of the Minister of Agriculture and while relying upon 1982 (1) SLR 563 it is submitted that the order suffers from mala fides as it is an abuse or fraud on the power of the Government. ( 20 ) IN the petition which was filed allegations of mala fides were alleged against Shri Shankarji Okhaji Thakore Minister of Agriculture Government of Gujarat. . ( 21 ) AN affidavit of the said Minister dated 31st of January 1995 has been filed in Court today. I; has been inter alia stated therein that he has no personal grudge on ill-will against the appellant and that the appellant had been promoted in a temporary manner. It has further been staled that the proposal to promote the appellant to the post of Director of Agriculture had been approved by him without any hesitation or reluctance as the said promotion was based on the selection which had been made by the top level Departmental Selection Committee. This averment has been made with a view to show that there was no personal animus of the Minister against Shri Vyas the appellant herein. The affidavit of Shri Thakore further goes on to state that the appellant was holding a key post in the Department of Agriculture and the Minister found that he did not possess the abilities which were requisite for the effective discharge of his duties as Director of Agriculture. The affidavit of Shri Thakore further goes on to state that the appellant was holding a key post in the Department of Agriculture and the Minister found that he did not possess the abilities which were requisite for the effective discharge of his duties as Director of Agriculture. He has further stated in the affidavit that in the area of various activities in the Agricultural Department the Minister drew the attention of the appellant on various occasions about the slackness inefficient administration etc. Giving a specific instance it has been staled that efficient distribution of area was one of the requirements but the said activity was not being carried out by the Directorate efficiently. Due to certain inaction or delay various grants available from the Central Fund could not be utilised in time and but for the Ministers intervention the Government would have lost the aforesaid sanctioned grants. Taking all these circumstances into consideration the Minister formed the opinion that the appellant deserved to be transferred from the post of Director of Agriculture and it is he viz. the Minister who mooted the proposal for the transfer of the appellant. It has been categorically stated by the Minister that he had never felt annoyed with the appellant but. . . . because of the obstructive attitude of the Director of Agriculture I have always felt that-he is not a fit person for the post of Director of Agriculture since he is not permitting smooth administration in the Department and is unnecessarily obstructing the smooth administration solely on the ground of his personal ego I say that as an elected representative of people I have to take various decisions in the interest of Government as well as in the interest of public at large. Such decisions may not be palatable to the Chief Executive working directly under the Government but that is the distinction between an elected representative of the people and the Government servant. I say that the Director of Agriculture Shri Vyas was not discharging his duties as Director so as to serve the interest of the public at large more particularly illiterate population of farmers in the State. I say that the Director of Agriculture Shri Vyas was not discharging his duties as Director so as to serve the interest of the public at large more particularly illiterate population of farmers in the State. I further say that the idea was not to victimise the petitioner but as stated above the idea was to strengthen the Department ( 22 ) THE submission of the learned counsels for the appellant is that the aforesaid averments in the affidavit of the Minister clearly show that it is at his behest that the transfer has been effected and this amounts to a fraud on his power and as the action suffers from personal and legal mala fides the same is liable to be quashed. ( 23 ) UNDER our Constitution there is clearly a separation of power between the three wings of the State viz. the Legislature the Executive and the Judiciary. Each is supposed to function within its own sphere and action of all the three wings has to be in accordance with the provisions of the Constitution. ( 24 ) IN the democratic set up of this country the Executive Wing is represented by the Government which is elected to powers as a result of adult suffrage. The elected representatives are answerable to the electorate and to the general public. It is for the Government to frame and pursue its policies and the said policies of course have to be within the framework of law. The Government lays down the policies and it is the Executive Officers of the Administrators of the Government who have to implement the came. If the policies are not implemented or if the work is not done the question of countability arises. If the contention of the learned counsels for the appellant is accepted the implication would be that the officers of the State would not be regarded as being accountable to the Government. It is clear to us that the Government is represented by the Council of Ministers and it is to the respective Ministers that the Officers of the Ministry would be accountable. ( 25 ) WE find in difficult to accept the contention that if a Secretary of a Ministry does not obey or carry out the lawful orders passed by the Minister then in such a case the Minister is helpless and is reduced to a mere spectator. ( 25 ) WE find in difficult to accept the contention that if a Secretary of a Ministry does not obey or carry out the lawful orders passed by the Minister then in such a case the Minister is helpless and is reduced to a mere spectator. As long as the orders passed by the Minister which would ordinarily reflect the policy of the Government in power are within the four corners of the law and are not arbitrary then it is the duty of the Officers of the Ministry concerned to carry out the said order. This is not to be understood to mean that a Minister is free to act in any manner in which he likes. Any action which is taken as a result of personal or legal mala fides is liable to be struck down. If any order or direction is issued by the Minister solely with a view to unduly favour a particular person at the expense of others the same would be regarded as mala fides. The other side of the coin is that if an act or a direction of the Minister is as a result of personal animus against an employee in which case such mala fide order which is passed would again be regarded as being invalid. If a Minister asks a subordinate official to do any illegal or unlawful act or if the orders passed are contrary to law then of course the subordinate official would be within his right not to obey such illegal and unlawful orders and if any action is taken against an employee who refuses to carry out an illegal or unlawful order then any transfer or action against the employee on this account will also be vitiated. Any such order which is passed or a direction given would be regarded as arbitrary and would be violative of Article 14 of the Constitution. On the other hand if an order or direction which is given by the Minister is not contrary to any law but has been issued with a view to pursue or to further the policies of the Government then if the employee does not carry out the directions which have been lawfully given to him then in our opinion the Minister would be within his rights to ask for a transfer of such an employee. There is merit in the contention of respondent No. 3 that the elected Government is answerable to the people at large and if it is found that an officer is not in a position to carry out his duties efficiently then such bureaucratic inefficiency should not be allowed to stand in the way of the smooth functioning of the Government which is in the larger public interest. Bureaucratic delays and inefficiency have now become unfortunately proverbial. Perhaps time has now come to have a fresh look on the question of transfers which are made at the behest of Ministers but for good and valid reasons. Just as no transfer can be made ordinarily with a view to favour any person at the cost of another one or with a view to punish an officer because of the personal animus of the Minister similarly action not supported by reason or an arbitrary action will also be quashed. However transferring of an official who is unable to deliver the goods and to carry out his duties efficiently where such transfer does not amount to a reduction in rank and the transfer is not to a post outside the cadre and is not as a result of any personal mala fides then in our opinion such a transfer merely because it is made at the beheast of the Minister would not be open to challenge. We are satisfied in the present case that the action which has been taken for transferring the appellant from the post of Director of Agriculture is not as a result of any personal or legal mala fides. We see no reason to disbelieve the affidavit of the Minister when he says that the attitude of the appellant was obstructive and he was not a fit person for the post of Director of Agriculture. ( 26 ) IT was sought to be contended by Shri S. B. Vakil that whether the person was fit or not was not for the Minister to decide. We are afraid we are unable to agree with this contention. ( 26 ) IT was sought to be contended by Shri S. B. Vakil that whether the person was fit or not was not for the Minister to decide. We are afraid we are unable to agree with this contention. The Director of Agriculture holds a key post in the Department of Agriculture and in a State where the majority of the population consists of farmers it is imperative that the post of Director of Agriculture is manned by a person who is able to discharge his duties efficiently and in the interest of public at large. The Minister of Agriculture would undoubtedly know about the nature and functioning of the Director of Agriculture E and if he satisfied honestly that the Director of Agriculture is not able to work efficiently then by seeing that he is transferred without in any way reducing him in rank cannot be regarded as an act of victimisation or an illegal act. In the present case the transfer to the newly encadred post cannot be regarded as the appellant having been reduced in rank. The two posts carry the same pay scale and have the same status. Apart from the fact that the promotion of the appellant was only temporary the decision to encadre a post so as to transfer the appellant to the said post cannot be regarded as being bad in law. ( 27 ) WE therefore come to the conclusion that the transfer in question does not amount to violation of this courts interim order passed in the Letters Patent Appeal; and nor is there any infirmity in the encadring of the post of Area Development Commissioner in the Gujarat Agricultural Service Class I. As a result thereof the Appeal as well as the Application are both dismissed. Notices are discharged. Letters Patent Appeal Dismissed. .