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1999 DIGILAW 640 (PAT)

Dayanand Bhagats v. State of Bihar

1999-07-23

S.N.JHA

body1999
JUDGMENT S.N. Jha, J.- This writ petition has been filed seeking three-fold relief as hereunder: (a) direction to the respondents to allow the petitioner to continue on the post of Director, Agriculture, until regular appointment to the post is made, (b) direction to the respondents to consider the case of the petitioner for appointment/promotion to the post of Director, (c) direction to the respondents not to fill up the post of Director, Agriculture from amongst the officers of the Indian Administrative Service (IAS) and/or officers of the Indian Council of Agricultural Research (ICAR). 2. The petitioner is a member of Bihar Agriculture Service Class I holding the post of Additional Director, Agriculture, on substantive basis. He is also presently officiating as Director, Agriculture. It was stated at the Bar that except for a brief spell of three months he has been functioning as Incharge Director since 1992 itself. There was unanimity between the counsel for the parties including the intervenors that the post of Director should be filled up on regular basis. Although doubts were expressed from some quarters regarding eligibility of the petitioner for appointment to the post, I do not wish to go into that question. The eligibility of the petitioner and others is to be considered by the Bihar Public Service Commission and the State Government at the first instance. In that view of the matter counsel for the parties very fairly did not make any serious argument on the point. There was consensus that the case of the petitioner also is to be considered for appointment to the post. 3. The thrust of the argument of the counsel for the parties was whether the petitioner should be allowed to continue as Incharge Director, Agriculture, until regular appointment to the post is made or an officer of IAS/ICAR should be posted/appointed in the meantime. This, indeed, is the scope of this writ petition. It may be mentioned here itself that during the pendency of the case, on 22.5.99 a decision has been taken at the Government level to post two officers of the IAS as Director at Patna and Ranchi. The petitioner filed I.A. No. 7344/99 seeking a restraint order against respondent-State from issuing any notification appointing any IAS officer to the post. On 3.6.99 this Court passed an order of status quo. 4. The petitioner filed I.A. No. 7344/99 seeking a restraint order against respondent-State from issuing any notification appointing any IAS officer to the post. On 3.6.99 this Court passed an order of status quo. 4. Shri Ram Balak Mahto, learned counsel for the petitioner, submitted that the decision to appoint an IAS officer as Director, Agriculture, has been taken at the instance of the Minister Incharge, Agriculture, Sri Ghulam Sarwar, who himself acted at the behest of the intervenors herein, for extraneous considerations. He submitted that after one of the intervenors herein Sheopujan Baitha failed to obtain any favourable order in LPA No. 2274 of 1997 and CWJC No. 9919 of 1997, and attempt to secure favourable order in LPA No. 2274 of 1997 and CWJC No. 9919 of 1997, and attempt to secure favourable order in a public interest letigation (CWJC No. 10707 of 1997) also failed, things started moving at the Government level to remove the petitioner from the post which he has been holding for 7 years except for a period of three months. He referred to various orders passed by this Court. He also referred to the minutes of the Minister Incharge dated 7.4.99 and submitted that the Minister had developed so much bias against the petitioner that he passed an order for his immediate suspension and initiation of a departmental proceeding against him. He pointed out that the mind of the Minister is reflected by the fact that he directed the State Minister, Incharge Agriculture, to carry the file himself and get the intervenors Sheopujan Baitha and Arjun Prasad Mishra posted as Directors at Patna and Ranchi respectively. Shri Mahto also referred to the notes of the then Chief Secretary, Shri V.S. Dubey, dated 15.4.99 and submitted that the Chief Secretary had expressed his reservations to correctness or propriety of the order regarding suspension of the petitioner and posting/appointment of Sheopujan Baitha and Arjun Prasad Mishra as Directors. He, instead, recommended that as a temporary measure for a period of six months, IAS officers may be posted as Director, Agriculture at Patna and Ranchi, in view of the circumstances prevailing in the Agriculture Department. It was submitted that the circumstances were those created by the Minister Incharge, Agriculture Shri Ghulam Sarwar. 5. He, instead, recommended that as a temporary measure for a period of six months, IAS officers may be posted as Director, Agriculture at Patna and Ranchi, in view of the circumstances prevailing in the Agriculture Department. It was submitted that the circumstances were those created by the Minister Incharge, Agriculture Shri Ghulam Sarwar. 5. Shri Mahto also submitted that the charge on the basis of which the petitioner is sought to be proceeded against and which is sought to be made the basis for remaining (sic) him from the post relate to the period 1982-83 and 1983-84 from which he has already been exonerated vide Annexures 13 and 14. Therefore, in the absence of any fresh charge it would be unjust to remove him from the post during the interregnum when the stage is now set for making regular appointment to the post. Shri Mahto conceded that it is the discretion of the Government to post IAS officers as Director, Agriculture, which is an ex cadre post, but contended that where the decision originates from the ante chamber and is actuated by mala fide, it is open to the court to strike down the decision. He submitted that the Government as a model employer is expected to act fairly with its employees. 6. Shri S.K. Ghose, learned Additional Advocate General No.2, submitted that the decision to post IAS officers as Director, Agriculture, has been taken on the basis of the notes of the Chief Secretary Shri V.S. Dubey, who in para 9(Ga) of his notes dated 15.4.99 had clearly opined that since none of the members of the Bihar Agriculture Service possesses the qualification for the post of Director, Agriculture, and the ICAR has also expressed its inability to make available the services of its officers, in the circumstances as an interim arrangement, for a period of six months until regular appointment is made on the post, officers of the Indian Administrative Service may be posted as Directors at Patna as well as at Ranchi. Shri Ghose submitted that apart from the charges which have been specified in the memo of charges vide Annexures Band B/1 relating to the period 1982-83 and 1983-84, fresh charges have been levelled against the petitioner vide Annexure-C series and Annexure-D to the counter affidavit. Shri Ghose submitted that apart from the charges which have been specified in the memo of charges vide Annexures Band B/1 relating to the period 1982-83 and 1983-84, fresh charges have been levelled against the petitioner vide Annexure-C series and Annexure-D to the counter affidavit. Sri Ghose submitted that it is the discretion of the Government to post any person as Director, Agriculture, and if it does not want the petitioner to continue on the post, the court should not interfere. He submitted that the petitioner has no legal right to continue on the ex cadre post of Director. 7. Shri Abhay Kumar Singh, learned counsel appearing for the intervenor Sheopujan Baitha and Sri Sunil Kumar Singh appearing for the intervenor Arjun Prasad Mishra, submitted that there are ample materials against the petitioner available in the Government files but they have not been brought on record before this Court. They referred to file no. 1/AG 67/97, particularly the note of the Agriculture Production Commissioner dated 16.10.97 therein, file no. 51/96 and another file, the number of which was not presently available, in which allegations against the petitioner have been dealt with. Counsel requested that this Court should call for the files and examine the same for coming to the right conclusion. 8. The suggestion to call for the files referred to by the counsel for the intervenors, is quite unacceptable. This Court is not supposed to sit as court of appeal over the decisions of the State Government. The scope of judicial review under Articles 226/227 of the Constitution is well known. The Court is supposed to examine the correctness or otherwise of the decision-making process and not the correctness or otherwise of the decision itself. It is true that where the decision is the result of malafide on the part of the decision-making authority or based on extraneous consideration or arbitrary, it is open to this court to strike down the decision and direct the authority to take a fresh decision. It is to be seen whether in the facts of the case any interference by this court is called for. 9. As noted above, the thrust of the argument of Shri Ram Balak Mahto, on behalf of the petitioner, was that he is sought to be removed from the post of Director at the instance of the Minister Incharge Shri Ghulam Sarwar, who has developed bias against him. 9. As noted above, the thrust of the argument of Shri Ram Balak Mahto, on behalf of the petitioner, was that he is sought to be removed from the post of Director at the instance of the Minister Incharge Shri Ghulam Sarwar, who has developed bias against him. The relevant file does not bear out the submission. It rather appears that the proposal regarding appointment/posting of Director, Agriculture, is pending since long and as early as on 19.7.98 the Chief Minister had passed an order for filling up the post of Director amongst the officers of the IAS or ICAR on deputation. This fact was, in fact, mentioned in the show cause of the Agricultural Production Commissioner in MJC 1454 of 1997, vide Annexure A to the State's counter affidavit. Thereafter, request was made to the Director General, ICAR, to send a panel of officers. After sometime, the Director General, ICAR, expressed his inability to send any panel. It was stated at the Bar that Sri Ghulam Sarwar took over as Minister Incharge, Agriculture later, and when the aforesaid decision was taken to post officers of the IAS/ICAR as Director, Agriculture on 19.7.98, Sri Raghunath Jha was the Minister Incharge. The present order of the Chief Minister passed on 22.5.99 cannot, therefore, be said to be an order passed at the instance of Sri Ghulam Sarwar. As a matter of fact, Sri Ghulam Sarwar had recommended the names of Sri Sheopujan Baitha and Arjun Prasad Mishra, the intervenors herein, the Chief Minister apparently did not agree with him. She rather agreed with the then Chief Secretary Shri V.S. Dubey. It may be mentioned here that Shri Dubey had recommended the names of Shri Deepak Prasad, IAS and Sri Rajeev Kumar, IAS for being posted as Directors at Patna and Ranchi respectively. The Chief Minister agreed with the proposal as regards posting of Shri Deepak Prasad at Patna. As regards Ranchi, she directed that a fresh proposal be submitted. In these premises, I do not find any substance in the submission that the impugned decision has been taken at the instance of the Minister Incharge Shri Ghulam Sarwar. No malafide has been alleged against either Shri V.S. Dubey the then Chief Secretary or Smt. Rabari Devi, the Chief Minister. The post of Director, Agriculture, as stated above, is an ex cadre post. No malafide has been alleged against either Shri V.S. Dubey the then Chief Secretary or Smt. Rabari Devi, the Chief Minister. The post of Director, Agriculture, as stated above, is an ex cadre post. While the members of the Bihar Agriculture Service Class I possessing the requisite qualification for appointment to the post may be entitled to be considered for such appointment, they cannot claim any legal right to be posted as Incharge Director nor they can resist the posting of an IAS officer or, for that matter, an officer of the ICAR. 10. It is true that the petitioner has been functioning as Incharge Director for quite sometime but this does not confer upon him any legal right to continue on the post. As a matter of fact, until his promotion to the post of Additional Director in February 1998, he was holding the post of Joint Director on substantive basis. The submission that old and stale charge of the period 1982-83 and 1983-84 have been raked up for initiating departmental proceeding in order to stall the case of the petitioner for being considered for appointment to the post appears to be attractive. However, unless the proceeding which has already been initiated against the petitioner is quashed by a competent court, it is not possible to ignore the fact. In fairness to the intervenors it may be stated here that according to them the file in which those charges were being dealt with was kept by the then Minister Incharge in his personal custody in order to help the petitioner and it was only after he demitted the office that the file could be traced out. This, according to the intervenors, occasioned the delay. I do not wish to go into this submission. It is open to the petitioner to challenge the initiation of the proceeding. At that stage the question as to whether the delay was bona fide or the result of laches on the part of the concerned authorities of the Government can be gone into by the concerned court. 11. At the same time, if it is a fact that old charges nave been raked up with a malafide motive, to pre-empt the case of the petitioner from being considered, it would be only just and proper to protect his interest. 11. At the same time, if it is a fact that old charges nave been raked up with a malafide motive, to pre-empt the case of the petitioner from being considered, it would be only just and proper to protect his interest. The Chief Secretary in paragraph 9 (kha) of his notes dated 15.4.99 had observed that the Agriculture Department may be directed to consolidate the pending allegations against the petitioner and take necessary action after proper examination. As stated above, counsel for the intervenors had referred to certain fresh allegations. It is not clear as to whether the so called allegations contained in Annexures C series or Annexure D do constitute any charge against the petitioner. Since no decision at the Government level has been taken, in that regard I do not propose to make any comments. However, in the facts and circumstances, it would only be just and proper to direct that all pending or proposed proceeding should be disposed of within a time-frame. The period of six months from today should be sufficient for the purpose. In order to protect the interest of the petitioner it would be appropriate to further direct that until final decision on the charges as aforesaid is taken one post of Director should be kept reserved for him so that in the event of favourable result, his case may be considered against that post. This order is without prejudice to the rights of the petitioner to challenge the legality of the pending or proposed proceeding and such order as may be passed on his petition which he may file in that regard. 12. In the facts and circumstances of the case, the decision of the Government to post officers of the Indian Administrative Service as Director, Agriculture, cannot be said to be mala fide or arbitrary. The post of Director is an ex cadre post and the petitioner has no right to hold the same. If the Government in its discretion decides to post IAS officers, he cannot make any grievance in law. That is the prerogative of the Government with which the court would not like to casually interfere, unless the decision is found to be the result of mala tide or extraneous considerations or arbitrary. No such case has been made out to warrant interference. 13. That is the prerogative of the Government with which the court would not like to casually interfere, unless the decision is found to be the result of mala tide or extraneous considerations or arbitrary. No such case has been made out to warrant interference. 13. In the result, the writ petition is dismissed, but subject to the observations and directions mentioned above.