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1998 DIGILAW 312 (GAU)

Aswini Kumar Sinha v. State of Tripura

1998-10-30

A.K.PATNAIK, B.N.SINGH NEELAM

body1998
A. K. Patnaik, J. — This is an appeal against the judgment and order dated 12.8.98 of the learned Single Judge in Civil Rule No.257 of 1998 (1998 (3) GLJ 99). 2. The facts briefly are that by order dated 6.6.1998 the appellant/petitioner, who was working as an UD Clerk in the office of the Engineer In-chief, Public Works Department (Establishment Section II) Agartala, was transferred to the office of the SDO (Electrical) Electrical Sub Division, Sonamura under Electrical Division No. VIII, Bishalgarh. Aggrieved by the said transfer order, the appellant/ petitioner filed Civil Rule No.257 of 1998. His case in the said civil rule was that he was the Treasurer of the State Committee of the Tripura Employees' Action Committee, which was recognised by the Govt. of Tripura by Memorandum dated 16.12.89 and that as such Treasurer of such a recognised Association he could be transferred only with the approval of the Departmental Minister concerned as per the Memorandum dated 28.2.1994, of the Govt of Tripura, Appointment and Services Department. The learned Single Judge however found that even though at the time when the impugned transfer order was issued, no approval had been taken from the Departmental Minister concerned for the transfer of the appellant/ petitioner, subsequently approval was taken from the Departmental Minister concerned, and, hence the defect, if any, in the transfer order had been cured by the subsequent approval by the Minister concerned and accordingly dismissed the writ petition by the impugned judgment and order. 3. Mr. BB Deb, learned counsel appearing for the appellant/petitioner, submitted relying on the decision of the Allahabad High Court in the case of Mohammad Ali vs. State of UP, AIR 1958 Allahabad 681, that there was difference between an act to be done subject to the approval of the competent authority and an act to be done with the approval of the competent authority. According to Mr. Deb, while an act which was required to be done subject to approval of the competent authority could be done without prior approval of the competent authority and would be valid so long as the said act had not been disapproved by the competent authority, an act which was required to be done with the approval of the competent authority could only be done with the prior approval of the competent authority. Mr. Mr. Deb also cited a decision of the Supreme Court in the case of LIC of India vs. Escorts Ltd, AIR 1986 SC 1370 , in which on an interpretation of the Reserve Bank of India Act, the Supreme Court held that the Reserve Bank of India was not bound to give ex post facto permission whenever it was found that business had been started or shares had been purchased without its previous permission. Mr. Deb further submitted that in any case the special circumstances under which the approval was not taken from the Minister concerned at the first instance and was taken only after the transfer order was issued transferring the appellant/petitioner, have not been disclosed to the concerned Minister in the file nor have been disclosed to this Court, and on these facts the Court should not hold the transfer which was required to be made with prior approval of the Minister concerned to be a valid transfer. Mr. Deb further submitted that the Memorandum dated 28.2.94 providing for transfer of office bearers of recognised Associations only with the approval of the Departmental Ministers concerned would have statutory force inasmuch as there is no statutory provision in the field and it has been held by the Apex Court in several decisions that where there is no statutory provision in a particular field, executive authorities can issue administrative or executive instructions to cover the field. Mr. Deb submitted that since the executive instructions contained in the Memorandum dated 28.2.1994 of the Govt of Tripura, Appointment and Services Department are the only provisions in the field and there is no statutory provision to the contrary, the said executive instructions have statutory force. 4. Mr. BK Bhattacharjee, learned Advocate General, Tripura, on the other hand, contended that it would be clear from the Memorandum dated 28.2.1994 that they are only executive guidelines laid down by the Govt with regard to transfer of office bearers of recognised Associations. He further submitted that it is settled by the Apex Court in various decisions regarding transfer of Govt servants that such guidelines laid down by the executive authorities donot confer any right on the Govt servants and that the Court will interfere only where there is violation of statutory provisions and not violation of an administrative guideline. He further submitted that it is settled by the Apex Court in various decisions regarding transfer of Govt servants that such guidelines laid down by the executive authorities donot confer any right on the Govt servants and that the Court will interfere only where there is violation of statutory provisions and not violation of an administrative guideline. He further contended relying on the meaning of the word 'approve' as given in Corpus Juris Secundum, Vol. 6 that it would include confirmation and ratification and, therefore, where the word 'approve' is used in an administrative guideline such approval can be obtained from the competent authority even after the order, which requires to be approved, is passed. According to learned Advocate General, Mr. Bhattacharjee, where the expression 'approval' is used in a statutory provision there would be scope for the Court to hold that such approval should be taken first before the act requiring approval is done. But in the instant case, the Memorandum dated 28.2.1994 is only an administrative instruction stating that the transfer of office bearers of recognised Associations would be done with the approval of the Departmental Ministers concerned. Learned Advocate General also produced the records which were placed before the concerned Minister in which the Minister has granted approval to the transfer of the appellant/petitioner on 11.7.98. 5. It is true as has been submitted by Mr. Deb that in the Memorandum dated 28.2.1994, it has been clearly provided that three State level office bearers and two Sub Divisional level office bearers of recognised Associations, namely, President, Secretary General and Treasurer, can be transferred with the approval of the Departmental Minister concerned and that normally transfer orders of such office bearers are to be passed only after the approval is taken from the Departmental Minister concerned and that a transfer order of an office bearer issued without the approval of the Departmental Minister concerned would be contrary to the said Memorandum confirmation and ratification and, therefore, where the word 'approve' is used in an administrative guideline such approval can be obtained from the competent authority even after the order, which requires to be approved, is passed. According to learned Advocate General, Mr. Bhattacharjee, where the expression 'approval' is used in a statutory provision there would be scope for the Court to hold that such approval should be taken first before the act requiring approval is done. According to learned Advocate General, Mr. Bhattacharjee, where the expression 'approval' is used in a statutory provision there would be scope for the Court to hold that such approval should be taken first before the act requiring approval is done. But in the instant case, the Memorandum dated 28.2.94 is only an administrative instruction stating that the transfer of office bearers of recognised Associations would be done with the approval of the Departmental Ministers concerned. Learned Advocate General also produced the records which were placed before the concerned Minister in which the Minister has granted approval to the transfer of the appellant/petitioner on 11.7.1998. 6. It is true as has been submitted by Mr. Deb that in the Memorandum dated 28.2.94, it has been clearly provided that three State level office bearers and two Sub-Divisional level office bearers of recognised Associations, namely, President, Secretary General and Treasurer, can be transferred with the approval of the Departmental Minister concerned and that normally transfer orders of such office bearers are to be passed only after the approval is taken from the Departmental Minister concerned and that a transfer order of an office bearer issued without the approval of the Departmental Minister concerned would be contrary to the said Memorandum. Having considered all these facts, amongst others, which have been stated in the file, the Minister concerned approved the transfer order of the appellant/petitioner on 11.7.1998. The defect in the initial transfer order therefore stood cured with effect from 11.7.1998 when it received the approval of the concerned Minister. On these facts therefore we are of the view that no relief can be granted to the appellant/petitioner against the impugned transfer order, and the learned Single Judge has rightly dismissed the civil rule by the impugned judgment and order. 7. For the reasons stated above, this writ appeal stands dismissed. However, considering the entire facts and circumstances of the case, we make no order as to costs.