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2004 DIGILAW 446 (GAU)

Abdul Kadir Akand v. State of Assam

2004-07-23

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. By this writ petition, the petitioner has made a challenge to an order by which his earlier order of transfer has been cancelled after implementation of the same. 2. The petitioner at the relevant point of time was serving as an Assistant Teacher in Rajagadhua Senior Madrassa. He had been serving as such in the School ever since his joining the school on 15.8.1990. By an order dated 28.1.2004 the petitioner was transferred from the said school situated in the district of Morigaoh to another school namely Kuaripukhuri Senior Madrassa in the district of Darrang which is stated to be the home district of the petitioner. The petitioner was so transferred against the vacant post which had arisen due to the retirement of the incumbent and the petitioner was transferred to the said school and the post in his own scale of pay with effect from the date of his joining. The petitioner was accommodated by such a transfer as per the request made by himself and his wife. 3. Pursuant to the aforesaid order dated 28.1.2004, the petitioner was released from his earlier School on 11.2.2004 enabling him to join the new school to which he was transferred. He submitted his joining report in the new School on 12.2.2004. However, he was not allowed to join in the school by the Superintendent of the School. By the impugned order dated 18.2.2004 the transfer order of the petitioner dated 28.1.2004 was cancelled making a grievance against which the petitioner has initiated the present writ proceeding. 4. As per the averments made in the writ petition, the impugned order dated 18.2.2004 is the outcome of the efforts made by the Superintendent of Kuaripukhuri Senior Madrassa, i.e., the respondent No. 5 to keep the petitioner away from the school so as to accommodate his own daughter as Assistant Teacher in the School. Various other grounds have been urged including the violation of the principles of natural justice. It is the case of the petitioner that he had been continuously working in the earlier school for the last 15 years away from his home district and his family. Various other grounds have been urged including the violation of the principles of natural justice. It is the case of the petitioner that he had been continuously working in the earlier school for the last 15 years away from his home district and his family. The wife of the petitioner made request to the authorities to bring her husband, i.e., the writ petitioner to his home district enabling him to stay along with his family and it was upon acceptance of such a request, the petitioner was favoured with the transfer by the aforesaid order dated 28.1.2004. However, the same was cancelled by the impugned order dated 18.2.2004 at a time when the petitioner stood already released from his earlier school and reported for duty in the new school. 5. The official respondents have filed an affidavit controverting the claim of the petitioner. The basic stand in the affidavit is that the petitioner who was holding the intermediate post : in his earlier school could not have been transferred to a Graduate post in the new School. Further stand in the affidavit is that the petitioner was favoured with the transfer without following the departmental procedure. In additions it is the stand in the affidavit that the transfer order was issued on 28.1.2004 by the then Deputy Director of Madrassa Education only a few days prior to his retirement and only a draft of the transfer order is available in the file which also does not bear the signature of the then Deputy Director of Madrassa Education. 6. A reply affidavit has been filed by the writ petitioner controverting the stand in the affidavit-in-opposition. As regards the plea of transferring the writ petitioner to a post meant for a Graduate teacher, the petitioner has placed reliance on the Notification dated 30.12.1993 by which all the existing posts of Assistant teacher in the intermediate scale of pay were upgraded to Graduate scale of pay. The respondent No. 5 filed an application being Misc. Case No. 686/2004 praying for vacating the interim order of stay of the impugned order passed by this Court. Same was pressed into service during the course of hearing as the affidavit-in-opposition against the writ petition. 7. I have heard Mr. H.N. Sarma, learned senior counsel appearing for the petitioner and Mr. A.M. Mazumdar, learned senior counsel appearing for the respondent No. 5. Mr. Same was pressed into service during the course of hearing as the affidavit-in-opposition against the writ petition. 7. I have heard Mr. H.N. Sarma, learned senior counsel appearing for the petitioner and Mr. A.M. Mazumdar, learned senior counsel appearing for the respondent No. 5. Mr. V.M. Thomas, learned Standing Counsel Education Department made submissions on behalf of the official-respondents. Mr. H.N. Sarma, learned senior counsel for the petitioner submitted that the order of cancellation of the transfer order could not have been issued without giving the petitioner any notice, more particularly when the transfer order already stood implemented. He further submitted that the impugned order having been issued on extraneous consideration same is not sustainable. Mr. A.M. Mazumdar, learned senior counsel appearing for the respondent No. 5 submitted that as per the departmental procedure, no objection certificate which is required to be obtained by the teacher seeking transfer from the authority of the school to which transfer is sought, having not been obtained by the petitioner, the order of transfer dated 28.1.2004 was illegal and accordingly the same was set right by issuing the impugned order of cancellation. Mr. V.M. Thomas, learned Standing counsel, produced the records and submitted that the order of transfer dated 28.1.2004 being not founded on transparency and the departmental procedure and there being doubt about the veracity of the same, the official respondents had to take recourse to the impugned action by way of issuing the impugned order dated 18.2.2004. 8. I have considered the rival submissions made by the learned Counsel for the parties. I have also gone through the materials available on records including the official file and the register produced on behalf of the respondents. The petitioner was transferred from Rajagadhua Senior Madrassa in the district of Morigaon to Kuaripukhuri Senior Madrassa in the district of Darrang by the order dated 28.1.2004. Pursuant to the said order he was released from his earlier school on 11.2.2004 by Annexure-B letter. Thereafter the petitioner reported for duty in the Kuaripukhuri Senior Madrassa but was not allowed to do so by the respondent No. 5. It was at that stage the impugned order dated 18.2.2004 was issued cancelling the transfer order. Pursuant to the said order he was released from his earlier school on 11.2.2004 by Annexure-B letter. Thereafter the petitioner reported for duty in the Kuaripukhuri Senior Madrassa but was not allowed to do so by the respondent No. 5. It was at that stage the impugned order dated 18.2.2004 was issued cancelling the transfer order. Whatever may be the grounds for such cancellation of the transfer order which stood already implemented at least by way of release of the petitioner from his earlier school, before cancellation of the same the petitioner was not put to any kind of notice and the impugned order of cancellation was issued behind his back. There has, thus, been flagrant violation of the principle of natural justice and the petitioner has been made to suffer without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving a hearing in the matter. This is more so having regard to the allegations made in the writ petition and the reply affidavit. 9. I have gone through the records produced by the learned Standing Counsel, Education Department. The following revelations are made from the records. The wife of the petitioner made a request to the competent authorities of the Education Department for transfer of her husband on specified grounds such as her husband being away from the family since 1990 and other house-hold difficulties. Similar petition was also made by the petitioner himself. Such request made by them were entertained by the official respondents on the basis of the guidelines formulated for such transfer. A copy of the office memorandum laying down the guidelines for such request transfer has been made available as Annexure A to the affidavit-in-opposition filed by the official-respondents. 10. Pursuant to the request made by the petitioner and his wife, more particularly his wife, as stated above, the matter was proceeded at the official level. The Deputy Director of Madrassa Education endorsed a note on 5.1.2004 and placed the matter before the Director of Secondary Education for approval of the proposal for transfer of the petitioner from his former school to the later school. The proposal was approved by the Director of Secondary Education, Assam on 21.1.2004. The Deputy Director of Madrassa Education endorsed a note on 5.1.2004 and placed the matter before the Director of Secondary Education for approval of the proposal for transfer of the petitioner from his former school to the later school. The proposal was approved by the Director of Secondary Education, Assam on 21.1.2004. It was only pursuant thereto the transfer order in question dated 28.1.2004 was issued transferring the petitioner from Rajagadhua Senior Madrassa to Kuaripukhuri Senior Madrassa by order dated 28.1.2004. 11. When the matter rested thus the Director of Secondary Education, Assam by his note dated 16.2.2004 called for the file and ordered to cancel the transfer order. No reason for such a course of action was assigned in the note. However, on perusal of the records there is no difficulty in finding out the real reason behind. On 16.2.2004, the Vice Chairman, SLSE on 20-point programme/Govt. of Assam who incidentally happens to be the Ex-Chief Minister of Assam endorsed a note to the Director of Secondary Education Assam as follows: DO No. ……. Dated 16.2.2004 To The Director, Secondary Education, Govt. of Assam, Dispur. I have to inform you that I have come to know that Mr. Abdul Qadir, Asstt. Teacher, Rajagadhua Senior Madrassa, is transferred to Kuaripukhuri Senior Madrassa in Darrang Dist. I am president of the Managing Committee of Kuaripukhuri Senior Madrassa. I request you to cancel the order immediately. Sd/- Vice Chairman, SLSE 20-Point Programme, Govt. of Assam, The Director of Secondary Education, Assam endorsed a note on the body of the said letter of the Chief Minister to the Deputy Director of Madrassa, Education on the same date, i.e., 16.2.2004 to put up the file to him to see the case. It was pursuant thereto the file was put up to him and he immediately passed the order on 16.2.2004 itself to cancel the earlier order of transfer dated 28.1.2004. Thus, everything was done on 16.2.2004 itself. 12. After the aforesaid development, a note was put up in the file to DDME on 16.2.2004 itself incorporating the request made by the said ex-Chief Minister to cancel the order of transfer and the order of cancellation ordered by the DSE. As per the said note a draft of the impugned order was also put up. 12. After the aforesaid development, a note was put up in the file to DDME on 16.2.2004 itself incorporating the request made by the said ex-Chief Minister to cancel the order of transfer and the order of cancellation ordered by the DSE. As per the said note a draft of the impugned order was also put up. Things moved in quick succession and the Director of Secondary Education, Assam by his note dated 18.2.2004 ordered for immediate cancellation of the transfer order dated 28.1.2004. Thereafter, the impugned order dated 18.2.2004 came to be issued. No other reason is discernible in the file for cancellation of the earlier transfer order dated 28.1.2004. As against the issuance of the transfer order dated 28.1.2004 after observing the necessary formalities such as obtaining the approval of the Superintendent of the earlier school, approval of the Director of Secondary Education, Assam, due regard to the Annexure A office memorandum dated 28.10.2003 annexed to the affidavit-in-opposition filed by the official respondent, etc., justifying the transfer of the petitioner on cogent grounds, the only ground for cancellation of the same by the impugned order dated 18.2.2004 is the aforesaid note endorsed to the Director of Secondary Education, Assam by the ex-Chief Minister. 13. From the above, it is crystal clear that the private interest of the ex-Chief Minister having no nexus with the Education Department was given preference and the impugned order of cancellation dated 18.2.2004 came to be issued to oblige the said ex-Chief Minister. The revelation made from the records leads to the irresistible conclusion that the Director of Secondary Education, Assam at the helm of affairs totally misused his power towards issuance of the impugned order. I am tempted to quote the observations of the Apex Court in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. as reported in [2001] 3 SCR 1146 : In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this court has held that a statutory authority vested with jurisdiction must exercise it according to its own direction ; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in Purtabpore Co. Ltd. are instructive and apposite. Executive Officers may in exercise of their statutory discretions take into account. Considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the Policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. 14. I now deal with the contention raised in the affidavit-in-opposition by the official respondents as well as on behalf of the respondent No. 5, although the same are not required to be dealt with once it is found and held that the impugned order came to be issued on extraneous consideration as per the revelation made from the records. None of the contentions raised in the affidavit was made the foundation towards issuance of the impugned order of cancellation of the transfer order. All the grounds urged in the affidavit have been projected only after filing of the writ petition as could also be gathered from the file produced by the learned Standing Counsel, Education Department. As has been observed by the Apex Court in the case of Mohinder Singh Gill v. Chief Election Commissioner as reported in [1978] 2 SCR 272, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order in the beginning may, by the time it comes to court on account of a challenge, get validated by additional ground later brought out. Otherwise, an order in the beginning may, by the time it comes to court on account of a challenge, get validated by additional ground later brought out. The Apex Court authentically quoted the observations in the case of Commissioner of Police, Bombay v. Govdhandas Bhanji as reported in [1952] 1 SCR 135 which is reproduced below: Public order, publicly made in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the Officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 15. However, I proceed to deal with the stand taken in the affidavit and the arguments advanced on that basis. As regards the stand in the affidavit that the petitioner who was drawing the intermediate scale of pay could not have been transferred to a post meant for a graduate teacher, there cannot be any confusion in respect of vacancy and post. The transfer order itself specified that the petitioner has been transferred against the vacancy in his own scale of pay. Thus, there is no question of providing any higher pay to the petitioner. Moreover as reflected in the affidavit-in-reply, the Govt. of Assam in the Education Department by its Notification dated 30.12.1993 upgraded the then existing posts of Assistant teacher to that of Graduate scale of pay. The petitioner was appointed prior to the issuance of the Notification, i.e., in 1990. However, this is immaterial in view of the fact that the petitioner was transferred against a vacancy in his own scale of pay. 16. As regards the plea of non-observation of the departmental procedure, the plea has been placed without highlighting anything as to in what manner there was violation of the departmental procedure. I have perused the Annexure A office memorandum dated 28.10.2003 laying down the guidelines for inter-district transfers as per which the applicant is required to submit his application in the proper format to be prescribed by the Director of Secondary Education and that such application is required to be submitted through the Head of the school/ institution. I have perused the Annexure A office memorandum dated 28.10.2003 laying down the guidelines for inter-district transfers as per which the applicant is required to submit his application in the proper format to be prescribed by the Director of Secondary Education and that such application is required to be submitted through the Head of the school/ institution. All these formalities were observed by the petitioner and his case was recommended for transfer by the authorities of the Rajagadhua senior Madrassa. The transfer of the petitioner was also approved by the Director of Secondary Education, Assam as per the note given by the Deputy Director of Madrassa Education proposing and detailing the reasons for such transfer. It was on that basis and after observance of due formalities the transfer order dated 28.1.2004 came to be issued. 17. As regards the plea of availability of only a draft of the order in the file without bearing the signature of the DDME, I have verified the entire records. There are various such draft orders in the file which are also not signed by any authority. Needless to say that a draft order need not necessarily be signed. The present Deputy Director of Madrassa Education who has sworn the affidavit has even gone to the extent of making a statement in paragraph 5 that the transfer order dated 28.1.2004 is not an officially issued order. Such a statement made in the affidavit is incorrect inasmuch as the issue register produced by the learned standing counsel, Education Department clearly bears the testimony of the issuance of the transfer order dated 28.1.2004. There was nothing wrong in issuing the transfer order dated 28.1.2004 by the then DDME before his retirement on 31.1.2004 on attaining the age of superannuation. No mala fide or colourable exercise of power has been attributed to the said DDME. Merely because the transfer order dated 28.1.2004 was issued three days prior to his retirement, it cannot be said that the transfer order was issued illegally. The then DDME continued in his office till 31.1.2004 and was legally entitled, competent and within his jurisdiction to issue orders as per rules. The transfer order dated 28.1.2004 was issued as per the approval accorded by the Director of Secondary Education, Assam and the DDME did not issue the same of his own. 18. Mr. The then DDME continued in his office till 31.1.2004 and was legally entitled, competent and within his jurisdiction to issue orders as per rules. The transfer order dated 28.1.2004 was issued as per the approval accorded by the Director of Secondary Education, Assam and the DDME did not issue the same of his own. 18. Mr. A.M. Mazumdar, learned senior counsel appearing for the respondent No. 5 emphasized the need for issuance of the no objection certificate by the authority of the school to which the petitioner was transferred as stipulated in the transfer guidelines. Such a plea is wholly untenable when the transfer of the petitioner was duly approved by the Director of Secondary Education, Assam upon consideration of the attending circumstances and the request made by the petitioner and his wife. Such approval was accorded on the basis of an elaborate note furnished by the DDME in which reference was also made to the transfer guidelines as contained in the office memorandum dated 28.10.2003. However, as observed above, all the pleas raised on behalf of the respondents fall through upon revelation made from the records that none of those grounds as urged in the affidavit and in the application for vacating the stay order passed in favour of the petitioner was the foundation towards issuance of the impugned order dated 18.2.2004. The only grounds for issuance of the same was the request made by the ex-Chief Minister and that too without assigning any reason. 19. The Director of Secondary Education, Assam occupying a key position obliged the ex-Chief Minister by issuing the impugned order dated 18.2.2004 within one day of making the request giving a complete goodbye to the principles involved in natural justice and administrative fair play and also to the elaborate procedure followed in transferring the petitioner which was more or less akin to the transfer guidelines formulated by the aforesaid office memorandum dated 28.10.2003. The sorry state of affairs with the Education Department of Assam about which much is being talked about is easily discernible with the kind of attitude and mentality with which the responsible officers of the department like the Director of Secondary Education works and strides to strive the much cherished goal of the Education Department. 20. For the foregoing reasons and discussions, I have no hesitation in setting aside and quashing the impugned order dated 18.2.2004 (Annexure E). 20. For the foregoing reasons and discussions, I have no hesitation in setting aside and quashing the impugned order dated 18.2.2004 (Annexure E). The petitioner should be allowed to join in the new school, i.e., Kuaripukhuri Senior Madrassa if not already allowed to join granting him all consequential benefits including salary, etc., which necessarily will also cover the period during which he was illegally kept away from the school by not allowing him to join. 21. The writ petition stands allowed leaving the parties to bear their own cost. Petition allowed