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2000 DIGILAW 220 (CAL)

State of West Bengal v. Chirantan Sarkar

2000-05-02

MAHEMMAD HABEEB SHAMS ANSARI, S.B.Sinha

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JUDGMENT S.B. Sinha, J. This writ application is directed against the judgment and order dated 20th May, 1999 passed by the West Bengal State Administrative Tribunal in Case No. O.A.- 7841 of 1998 whereby and whereunder the application filed by the respondent No.1 herein was allowed. 2. The said respondent was appointed as a Staff Officer Instructor under Home (Civil Defence) Department, Government of West Bengal functioning in terms of the Civil Defence Act, 1968. The State did not frame any rule as regard the transfer of the employees. A writ application was filed by the General Secretary of West Bengal Civil Defence Service Officers' Guild against the State of West Bengal questioning certain orders of transfer which came up for consideration before G.N. Ray, J (As His Lordship then was) and by a judgment and order dated 29th August, 1989 the said application was allowed. The said decision is reported in 1999(1) CLJ 381, it was held: "The administrative exigency and/or public interest must be fulfilled before passing the order of transfer against an employee. A transfer is a very important incidence of service and often the order of transfer which may appear innocuous cause serious hardship to the concerned employee. It should be noted in this connection that how best the service of a Government employee can be utilised must be left to the wisdom of the employer and for that purpose, to the appropriate authorities in a public service. Whether the service of a Government employee can be better utilised in some other place is not a justiceable issue in a court of law. It will be sufficient to sustain an order of transfer if it can be shown that the service is a transferable one and by the impugned order of transfer, no condition of service or the norm laid down for such transfer has been violated and that a proper consideration of administrative exigency and/or public interest has been made by the concerned authority and on being satisfied of such administrative exigency and/or public interest, the order of transfer has been made. It, however, appears to me that for about 26 years, the Civil Defence Organisation has been set up in the State of-West Bengal and a Permanent Staff is being maintained in the Civil Defence Department under the Ministry of Home Affairs, Government of West Bengal. It, however, appears to me that for about 26 years, the Civil Defence Organisation has been set up in the State of-West Bengal and a Permanent Staff is being maintained in the Civil Defence Department under the Ministry of Home Affairs, Government of West Bengal. But unfortunately no condition of service, rules for promotion, the norm for transfer etc. have been framed as yet for the permanent employees in the Civil Defence Organisation. Any executive instruction in the aforesaid matter has also not been placed before this Court by the learned Counsel appearing for the State respondents. Even the duties required to be performed by the officers of the Civil Defence Organisation have not been indicated and Mr. Mukherjee has submitted before this court that in the absence of any policy and/or guidelines indicating the duties and functions to be performed by the officers of Civil Defence Organisation of the State Government; such officers are often directed to do errand and trival jobs completely dissociated with the ex parte and training of such officers. It is for want of any specific policy of utilizing the officers in suitable jobs concerning the Civil Defence Department tl1ey are directed to attend such errand and trivial duties merely on the basis ofthe ipso dixit of the superior authority." 3. It has further been held: "In the facts of the case, it appears to me, there is some force in the contention of Mr. Mukherjee that no proper consideration of effective utilization of the concerned officers have been made and orders of transfers have been made at random without application of mind to the relevant factors concerning an order of transfer. In the aforesaid circumstances, this writ petition is disposed of by staying the impugned orders of transfer for a period of three months from today. The employees including the members of the officers of the Guild represented by the petitioner Shri Mukherjee suffering the order of transfer may make representative against impugned orders of transfer passed against such officers within four weeks from today. Such representation should be considered by the appropriate authority after taking into consideration of relevant factors concerning an order of transfer and thereafter pass necessary orders of transfer and/or to give effect to the impugned orders of transfer with such modification as would appear just and proper. Such representation should be considered by the appropriate authority after taking into consideration of relevant factors concerning an order of transfer and thereafter pass necessary orders of transfer and/or to give effect to the impugned orders of transfer with such modification as would appear just and proper. This order however, will not affect the posting of the officers who have already joined their respective place of posting in terms of the impugned orders of transfer." 4. Pursuant to or in furtherence of the aforementioned observations, guidelines were framed by the State, the relevant provisions whereof are as under: "5(1). Transfer of each officer who has been due for such transfer in accordance with policy laid down in this order shall normally be made rotation ally within different zones & that shall be done on the basis of longest stay at a particular place of posting at the initial stage; 5(II). In case the spouse of the officer is in service, transfer would normally be made in a manner so that both can stay together as far as possible; 5(V1). Exceptions to the general principles of transfer should be made in the following cases:- a) Where transfer is necessary on administrative ground; b) Where there is a patient in the family suffering from a chronic or serious disease and the officer applies for a transfer to a zone where facilities for such treatment of the patient are available. In such a case the normal period of stay of a person in a particular zone may also be extended, provided the prayer is supported by a Medical Certificate from a Govt. Hospital; c) Transfer of a person hailing from the hill areas shall ordinarily be confined to those areas only." 5. The Civil Defence Act, 1968 was enacted to make provision of Civil Defence and matters connected therewith. 6. Section 3 empowers the Central Government to make Rules for Civil Defence pursuant whereto rules were framed known as Civil Defence Rules, 1968. 7. The State Government in terms of the section 4 of the said Act is empowered to constitute Civil Defence Corps. The State Government is also empowered to appoint Controller Director of Civil Defence as also members of the Corps. The Controller so appointed is the Disciplinary Authority of the employees under his control. 8. 7. The State Government in terms of the section 4 of the said Act is empowered to constitute Civil Defence Corps. The State Government is also empowered to appoint Controller Director of Civil Defence as also members of the Corps. The Controller so appointed is the Disciplinary Authority of the employees under his control. 8. Section 9 empowers the Central Government to make regulations for carying out the object containing in Chapter III of the Said Act. 9. In respect of various other matter, power had been conferred both upon the Central Government and State Government. The Central Government has also framed regulations in exercise of its power under section 9 of the Civil Defence Act known as Civil Defence Regulations, 1968. 10. Before proceeding to consider the matter further, it may be noticed that the Government of West Bengal in exercise of its power conferred upon it under the proviso appended to Article 309 of the Constitution of India framed rules known as West Bengal Defence Cadre Rules, 1991. 11. The question as to whether the service conditions of the members of Civil Defence Corps can be fixed by the State Government or not came for consideration before the Hon'ble Supreme Court of India in S.K. Mukherjee vs. Union of India & Anr., reported in AIR 1994 SC 2485 , wherein it was held that the State Government is authorised and empowered to lay down service conditions in respect of the members of Corps. 12. The contention of respondent was that although he was appointed to the post in July 1992, thereafter in terms of the said guidelines, he had not been transferred. It has been contended that contrary to the letter and spirit of the said policy decision some officers have been kept in Zone 'A' or 'B' for more than 13 years. The respondent filed an application before the competent authority for his transfer in terms of clause 5(ii) of the said transfer policy guidelines but no order had been passed. 13. Before the ld. Tribunal, it was submitted on behalf of the petitioner herein that it can pass order of transfer as and when need therefor arises in exigency of situation. 14. The Id. 13. Before the ld. Tribunal, it was submitted on behalf of the petitioner herein that it can pass order of transfer as and when need therefor arises in exigency of situation. 14. The Id. Tribunal, however, relying on or on the basis of decision of the Apex Court in the Hon'ble Supreme Court of India vs. K.P. Joseph and Ors., reported in AIR 1973 SC 303 ; Dr. Amarjit Singh Ahluwalia vs. The State of Punjab & Ors., reported in AIR 1975 SC 984 and Jagathigowda, C.M. & Ors. vs. Chairman, Cauvery Gramina Bank & Ors., reported in 1996 (9) SCC 677 , held that the policy decision adopted by the State Government should be given effect to. It was directed: "In the above view of the matter, the application is allowed and the respondents, particularly respondent No.2, are directed to transfer the applicant to either zone 'A' or zone 'B' in terms of Home (Civil Defence) Department's Notification No. 1285-HCD, dated 22.2.1995 within eight weeks from the date of communication of this judgment. No order is made as to costs in the facts and circumstances of the case." 15. Mr. Milan Bhattacharyya, the ld. Counsel appearing on behalf of the appellant submitted that the application by the respondent herein was barred under the law of limitation. It was, further, submitted that the guidelines framed by the State Government of West Bengal having no statutory force, the same could not have been directed to be implemented. According to the ld. Counsel as the Apex Court in S.K. Mukherjee's case (supra) has laid down that the State Government may fix rules as regards service conditions of the members of the Corps, it has an exclusive jurisdiction to pass an order of transfer as and when necessity arises therefore. 16. Mr. S.K. Mukherjee, the ld. Counsel appearing on behalf of the respondent on the other hand, submitted that as the guidelines have been framed pursuant to the order of this court, the same should be fully given effect to. 17. It is true that guidelines relating to the transfer had not been framed by that State in exercise of its statutory power. Counsel appearing on behalf of the respondent on the other hand, submitted that as the guidelines have been framed pursuant to the order of this court, the same should be fully given effect to. 17. It is true that guidelines relating to the transfer had not been framed by that State in exercise of its statutory power. However, the guidelines for transfer were framed under Notification dated 22nd February, 1995 issued by the Governor which would clearly show that the same had been issued by the State Government in exercise of its power under Article 162 of the Constitution of India as the same had been issued in the name of the Governor. 18. It is now well settled by reason of a catena of decisions of the Apex Court that the State may issue Executive Instruction in respect of such matter which are within the legislative competence and such executive instruction will leave the force of statute (See Sanat Ram Sharma vs. State of Rajasthan, reported in AIR 1967 SC 1910 ). 19. It is also well settled that when a policy decision is made by the State, the same is required to be implemented. Any deviation or in departure of the policy decision would attract the wrath of Article 14 of the Constitution of India. Reference in this connection may be made to State of Mysore & Anr. vs. H. Srinivasmurthy, reported in 1976(1) SCC 817 . 20. In the Hon'ble Supreme Court in Jagathigowda, C.M. & Ors. vs. Chairman, Cauvery Gramina Bank & Ors., reported in 1996(9) SCC 677 , gave effect to the guidelines issued by NABARD in the matter of grant of promotion to the employees employed in the Rural Banks in terms of the provisions of the Regional Rural Banks Act, 1976. Thus, it cannot be said that the State can act arbitrarily or whimsically in implementing or not implementing its policy of transfer. The guidelines relating to transfer as is evidenced by the aforementioned Notification dated 22.2.1995 clearly envisage that the rotational transfer would be made but no sufficient or cogent reason had been assigned by the petitioner herein either before the Tribunal or before this court as to why the said policy decision could not be acted upon. 21. The factual statements made by the respondent herein had not been denied or disputed. 21. The factual statements made by the respondent herein had not been denied or disputed. Thus, the Tribunal, in our considered opinion, had rightly come to conclusion that the State had arbitrarily not given effect to its own policy decision. As regard the question of the limitation, we are of the view that inaction on the part of State in implementing its policy decision gives rise to continue cause of action and thus, the obligation of the respondent herein before the ld. Tribunal was not barred by limitation. 22. We, however, in modification of the impugned order, keeping in view, the well settled principles of law as propounded by the Apex Court in State of West Bengal vs. Nur Uddin Mallick, reported in 1998(8) SCC 143 , direct the State Government to implement the policy decision of transfer of the concerned employee including the petitioner. Such consideration must be made as expeditiously as possible and not later than three months from the date of communication of the order. 23. Before parting with the case, however, we place it on record that Mr. Bhattacharyya on instruction stated that the proposal of rotational transfer is under active consideration by the State. 24. This application is disposed of with the aforementioned directions and observations. However, in the facts and circumstances of this case there will be no order as to costs. Later 25. Urgent xerox certified copy of the judgment, if applied for, be given on priority basis. Application is disposed of.