Anil Kumar Chakraborty v. Union of India and Ors. — 1998 DIGILAW 2 (GAU)

The petitioner who is a junior teacher of the Survoday Public School (shortly known as SP School) under 26 Assam Rifles at Agartala has by means of this application under Article 226 of the Constitution of India, sought for quashing his order of transfer dated 3.6.1997 vide order No.A/V-A/95-96/Pt/068 mainly on the ground that the aforesaid order of transfer has been passed in violation of the circular viz. Standard Operative Procedure (Annexure 6) issued by the Director General of Assam Rifles as according to that circular (Standard Operative Procedure) a civil category staff working in the soft category can work at a particular station for four years which is extendable to five years. The two other grounds on which the aforesaid order of transfer has been challenged are that the respondent No.4 viz. the Deputy Commandant. OC Rear. 26 Assam Rifles has no jurisdiction to issue such an order of transfer and that this order of transfer is malafide as this order has been passed in order to accommodate one Smti Sabita Chakraborty, a junior teacher working under 11 Assam Rifles. 2. The petitioner has also stated that soon after receipt of this order of transfer he submitted a representation to the authority for allowing him to stay here and retain the quarters until the examination of his daughter was over. It has been stated that even though this representation was duly forwarded, the authority did not pass any order on this representation and hence this writ petition. 3. The respondents resisted this writ petition by filing an affidavit-in-opposition wherein it has been contended, inter alia, that this writ petition is not maintainable in view of the provisions laid down under section 14 of the Administrative Tribunal Act, 1985 (for short the Act) as the post which the petitioner is holding is a civil post. The respondents also denied the material averments of the writ petition and contended further that the Standard Operative Procedure was amended subsequently and hence in view of the Standard Operative Procedure as referred to by the petitioner does not entitle the petitioner to stay in a station and retain the quartets for a period of over two years. It is averred that this order of transfer was passed in the interest of public service and as such it was not in violation of the policy. It is averred that this order of transfer was passed in the interest of public service and as such it was not in violation of the policy. It has been further contended that the movement order was issued by the respondent No.4 on behalf of the authority as per instruction and as such there was nothing illegality in the order. 4. As regards the allegation that the order of transfer was malafide it has been averred that the case of Sabita Chakraborty was considered on merit by the Director General of Assam Rifles and it is not a fact that in order to accommodate Smti Sabita Chakraborty the impugned order of transfer was passed. The respondents, therefore, prayed for dismissal of the writ petition in limine. 5. In view of the contentions of the respondents the first question which calls for decision in this writ petition is whether in view of secti6n 14 of the Act the High Court has jurisdiction to deal with the matter. Mr. KN Bhattacharjee, the learned Senior Central Govt.. Standing Counsel appearing on behalf of the respondents has at the very outset argued that in pursuance of Article 3 23 A of the Constitution of India, the Administrative Tribunal Act, 1985 was passed and the Central Administrative Tribunal established under section 4 (1) thereof was available to the present petitioner as the post he is holding is a civil post. 1% precise what Mr. Bhattacharjee has quite emphatically argued for most of the time of his arguments is that in view of the provisions laid down under section 14 of the Act a writ Court has no jurisdiction to entertain such an application. It has, therefore, to be determined whether the Central Administrative Tribunal could entertain the petition of the petitioner. To determine this question what is necessary to be looked into is whether the post the petitioner is holding is a civil post or not as Mr. Dhar, the learned counsel appearing on behalf of the petitioner has argued that in view of the provision laid down under section 2 of the Act, the provision of the Act shall not apply to any member of such a force. Section 2 of the Act reads: "2. Act not to apply to certain person. Dhar, the learned counsel appearing on behalf of the petitioner has argued that in view of the provision laid down under section 2 of the Act, the provision of the Act shall not apply to any member of such a force. Section 2 of the Act reads: "2. Act not to apply to certain person. The provisions of this Act shall not apply to- (a) any member of the naval, military or air forces or of any other armed forces of the Union:........." 6. In drawing my attention to the provisions laid down under section 2 of the Act it has been argued by Mr. Dhar that the petitioner is a member of the unit of the Assam Rifles and as such the Administrative Tribunal has no jurisdiction to entertain the application of the petitioner. It has necessary to mention here that neither side has placed before me the Assam Rifles Act or the Rules thereof. However, on going through the Assam Rifles Act, 1941. I find that the term 'Civilian' has nowhere been defined. Similarly, 'civil post' has also not been defined in the Act. The Act is also silent as to whether a teacher alike the petitioner is a member of the force or not. I have, therefore, considered the facts which are available from the documents filed in this case and took the decision of Supreme Court rendered in the case of State of Assam & others vs. Kanak Chandra Dutta, AIR 1967 SC 884 where it has been observed by their Lordships under para 9 of the judgment that there is no formal definition of 'post' and 'civil post'. It has been further observed by their Lordships that sense in which they are used in the services chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Article 310 from a post connected with' defence '.It is a post on the civil as distinguished from the defence side of the administration. It has also been observed by their Lordships that the existence of the relationship of master and servant may be established by the presence of all or some of the indicia, in conjuction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged bolder of a post. 7. 7. In the instant case, on going through the records I find that the petitioner was at first appointed as 'Naik' by the Director General of Assam Rifles and while serving in 4th Assam Rifles as Naik, he was temporarily appointed as junior teacher against some vacancy of 24 Assam Rifles and this order of appointment was also passed by the Director General of Assam Rifles. The records show that the school in which the petitioner has been working is also under the control of the Assam Rifles and that the petitioner is under the direct control of the Commandant, 26 Assam Rifles. The records further show that the petitioner draws his salary from Assam Rifles. All these facts if taken together will clearly indicate that petitioner is a member of the force although the term 'member of the force' has not been defined in the Assam Rifles Act, 1941. 8. I have already stated above that neither party produced the Act or the Rules thereof. The Rules have not been made available before the Court and as such I am unable to say whether any definition has been given in respect of the term 'member of the Force'. There is virtually nothing on record to show that the petitioner shall not be subject to Assam Rifles Act and Rules. There is factually no material before me to hold that the petitioner's case falls outside the Assam Rifles Act and the Rules thereof. The Act nowhere says that such a staff shall not be subject to the Assam Rifles Act and Rules. Therefore, considering all these aspects I am of the view that it cannot be held that the post the petitioner is holding is not connected with the defence or its service is not a defence service. This finding cannot, however, dispose of this writ petition as some other important question which is involved here has also to be determined. 9. That question is whether the impugned order of transfer has been passed in violation of the policy. Before entering into this controversy it may be stated that the order of transfer is an incident of Govt.. service. Therefore, the petitioner is liable to transfer and hence who should be transferred where is a matter for the appropriate authority to decide. That question is whether the impugned order of transfer has been passed in violation of the policy. Before entering into this controversy it may be stated that the order of transfer is an incident of Govt.. service. Therefore, the petitioner is liable to transfer and hence who should be transferred where is a matter for the appropriate authority to decide. Unless the order of transfer is shown to have been passed in violation of any statutory provision or is shown to have been vitiated by malafides, the Court cannot interfere with it. In the instant case,-the petitioner has alleged that his order of transfer has been passed in violation of the Standard Operating Procedure. According to the petitioner as per the guidelines set forth in the Standard Operating Procedure the petitioner being in civil side of the unit he is entitled to remain at a particular station for a period of four years which is extendable to five years, but in his case, the authority did not abide fey this guidelines and passed the impugned order before expiry of the period of four years. 10. The contention of Mr. Bhattacharjee, the learned counsel appearing on behalf of the respondents is that normally an employee like petitioner can, retain the quarters for a period of only two years. But in the present case the petitioner has been staying in the quarters for more than three years. It has also been argued that the order for vacating the quarters has been passed by OC Rear on behalf of the Commandant and as such there is no illegality. It may be a fact that the order has been passed by the OC, Rear on behalf of the Commandant. But on going through the guidelines set forth in this Standard Operating Procedure I find that there is a specific instruction that normally posting will be ordered during December/January to co-ordinate with the academic session. But in the instant case, the impugned order of transfer was passed in the month of June. Therefore, the petitioner submitted a representation to the authority for consideration of his case until the examination of his daughter was over. This Court passed an interim order staying the operation of the order of posting. But this time the period the petitioner sought for is over. Therefore, the petitioner submitted a representation to the authority for consideration of his case until the examination of his daughter was over. This Court passed an interim order staying the operation of the order of posting. But this time the period the petitioner sought for is over. Therefore, if the order of transfer is now given effect to, the petitioner cannot say that he has been prejudiced. It has, of course, been contended that this order of transfer is vitiated by malafides. Mr. Dhar submits that this order of transfer has been passed only to accommodate Smti Sabita Chakraborty, This Sabita Chakraborty has not been made a party. Moreover, act of malafides have not been proved. The burden of establishing malafides lies on the person who alleges it ( AIR 1974 SC 555 , EP Royappa vs. State of Tamil Nadu & another). The Standard Operating Procedure which Mr. Dhar has referred to contain instructions which are irfthe nature of guidelines. They do not have statutory force. 11. Therefore, in view of the above facts and for the reasons stated above, this petition deserves no consideration and accordingly it is dismissed. It is, however, made clear that the authority should dispose of the representation of the petitioner within a period of three (3) weeks and until it is disposed of, the petitioner may not be released. Under the circumstances, there would be no order as to costs.