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2004 DIGILAW 630 (GAU)

Prasanna Kumar Nath v. State of Assam

2004-12-16

BIPLAB KUMAR SHARMA

body2004
Judgment : B.K. Sharma, J. 1. This writ application is directed against an order dated 7.8.2004 by which the petitioner has been transferred from Nalbari to Bongaigaon and the respondent No. 5 has been transferred from Mangaldoi to Nalbari to the replacement of the petitioner. 2. By a Notification dated 14.7.2002, the petitioner, a member of the Assam Civil Service and whose services was placed at the disposal of the Panchayat and Rural Development Department was appointed as Project Director and posted at the DRDA, Nalbari to the replacement of the respondent No. 5. Prior to that, the respondent No. 5 had functioned as the Project Director, DRDA, Nalbari for the period from 16.9.1997 to 24.7.2002. 3. Pursuant to the said Notification dated 14.7.2002, the petitioner joined as Project Director, DRDA, Nalbari and according to him he could detect many irregularities including financial irregularities committed by the respondent No. 5 during his tenure as the Project Director, DRDA, Nalbari. Various irregularities purportedly committed by the respondent No. 5 had been highlighted in the writ petition and the purported steps undertaken by the petitioner to streamline the functioning of the DRDA, Nalbari. 4. According to the petitioner, various politicians of the area including the MLAs of the various Legislative Constituencies in the district of Nalbari directed the petitioner to act in a particular manner as desired by them in the matter of implementation of the various developmental activities. According to him, refusal to act as per the dictates of the said politicians attracted their wrath against the petitioner. The petitioner has annexed some of the recommendations made by the members of the Legislative Assembly as Annexure 7-series. 5. By the impugned Notification dated 7.8.2004, the position which stood at the time of transfer of the petitioner to Nalbari by the aforesaid Notification dated 14.7.2002 has been revived by posting the respondent No. 5 there and transferring the petitioner from Nalbari to Bongaigaon. It is the case of the petitioner that his defiance to act according to the dictates of the politicians led to the issuance of the impugned order dated 7.8.2004. Further case of the petitioner is that the respondent No. 5 against whom serious allegations have been levelled could not have been transferred to Nalbari to the replacement of the petitioner who undertook the task of the smooth implementation of various projects. Further case of the petitioner is that the respondent No. 5 against whom serious allegations have been levelled could not have been transferred to Nalbari to the replacement of the petitioner who undertook the task of the smooth implementation of various projects. Another ground urged by the petitioner is that he is yet to complete the normal tenure of three (3) years at Nalbari as emphasised under Office Memorandums dated 4.2.2002 and 22.5.2002 and that he could not have been transferred from Nalbari even before completion of the normal tenure of three (3) years without the approval of the Chief Minister. 6. The official-respondents as well as the private-respondent have filed their affidavits denying the allegations made by the petitioner. It is the case of the respondent No. 5 that the allegations made against him are all untrue and that no enquiry is pending against him. As per the affidavit filed by the official-respondents, although there is no categorical denial of the involvement of the respondent No. 5 on the irregularities pointed out by the petitioner, their stand in the affidavit is that no decision has yet been taken for taking any action in this regard. 7. Mr. A.C. Barbora, learned counsel for the petitioner assisted by Mr. U.K. Nair submits in tune with the averments made in the writ petition. He submitted that the mala fide exercise of power is writ large on the face of it towards issuance of the impugned order inasmuch as against the good functioning of the petitioner at Nalbari, the same very respondent No. 5 who was earlier transferred from Nalbari on the face of serious allegations against him is once again sought to be brought to Nalbari to the replacement of the petitioner. Referring to the various recommendations made by the members of the Legislative Assembly making demand to act in a particular manner by the petitioner, Mr. Barbora submitted that the impugned order of transfer is not founded on any bona fide exercise of power, but has been issued at the behest of the said politicians. 8. Mr. N. Dutta, learned senior counsel appearing for the respondent No. 5 assisted by Mr. B.D. Goswami on the other hand submitted that the petitioner must not think himself to be indispensable at Nalbari. 8. Mr. N. Dutta, learned senior counsel appearing for the respondent No. 5 assisted by Mr. B.D. Goswami on the other hand submitted that the petitioner must not think himself to be indispensable at Nalbari. He submitted that even if there was any recommendations by the members of the Legislative Assembly to the petitioner, there was nothing wrong in it, they being the members of various Panchayats. As regards the allegations of mala fide and colourful exercise of power towards issuance of the impugned order, Mr. Dutta submitted that such an argument is not at all tenable in absence of any cogent materials. He finally submitted that no enquiry is pending against the respondent No. 5 and it is the petitioner alone who has levelled unfounded allegations against the respondent No. 5. 9. Ms. R. Chakraborty, learned State counsel made submissions in reference to the averments made in the affidavit-in-opposition filed by the State-respondents. She submitted that the transfer order having been issued in public interest, no interference is called for in the matter. In addition to the submissions made by her, she also produced the records. 10. I have considered the submissions made by the learned counsel for the parties and the materials available on records. I have also gone through the records produced by the learned State counsel. This court is not called upon to embark upon the veracity or otherwise of the allegations made against the respondent No. 5. However, it is on record that certain allegations were levelled against him and the official-respondents in their affidavit without any specific denial of the same have only stated that no decision has been taken as yet to proceed against the respondent No. 5. Thus, the possibility of taking action against the respondent No. 5 is not ruled out. In such a situation, the question for consideration is as to whether it would be prudent and expedient to bring the same very respondent to the same place in which he had earlier worked for the aforesaid period and when the allegations against him are pertaining to his incumbency at Nalbari during the said period. 11. I have perused the records produced by the learned State counsel. The records do not indicate any incapacity or lacuna in the style of functioning of the petitioner. 11. I have perused the records produced by the learned State counsel. The records do not indicate any incapacity or lacuna in the style of functioning of the petitioner. The only reason assigned for transfer of the petitioner vis-a-vis the respondent No. 5 is the request made by the MLA, Dharmapur Constituency in the district of Nalbari. A note was given by the said MLA to the Chief Minister of the State and the note also bears the signatures of three others whom the learned State counsel identified as three MLAs. The note reads as follows: HON'BLE CHIEF MINISTER Undersigned would like to request you to kindly transfer the present Project Director, DRDA, Nalbari, Sri P. Nath and in his place Sri Subhas Buragohain, ACS, Additional Deputy Commissioner, Mangaldoi may kindly be ordered to be posted as Project Director, DRDA, Nalbari in the greater interest of the public. Sd/- M.L.A. Dharmapur Constituency, Nalbari. 1. Sd/- M. L. A. 2. Sd/- M.L.A. 3. Sd/- M.L.A. 12. From the aforesaid note given by the particular M. L. A., nothing is discernible as to why the petitioner was required to be transferred from Nalbari and the respondent No. 5 against whom allegations were made pertaining to his incumbency as Project Director, DRDA, Nalbari should be once again brought to the same place. Had it been a case of recommendation of the transfer of the petitioner only, perhaps the things would have been different. However, the MLA by endorsing the note to the Chief Minister not only suggested the transfer of the petitioner, but even indicated as to whom should be brought in his place. This is how public interest is sought to be served. 13. The note was endorsed to the Chief Minister on 29.7.2004 and the Chief Minister on the same very date approved the same without assigning any reason. Such approval assigned by the Chief Minister directing the Commissioner of the department to proceed in the matter, does not indicate any reason for the same which is against the own guidelines framed by the State Government and implementation of which has been emphasized time and again. Such approval assigned by the Chief Minister directing the Commissioner of the department to proceed in the matter, does not indicate any reason for the same which is against the own guidelines framed by the State Government and implementation of which has been emphasized time and again. As per the said guidelines, laid down by Office Memorandums dated 4.2.2002 and 22.5.2002 (Annexure-9 and 10 to the writ petition), whenever public interest demands that an officer should be transferred from his place of posting even before completion of three years in the place, proper justification and ground may be recorded in writing for the transfer. In the Office Memorandum dated 4.2.2002 while reiterating the guidelines laid down in earlier Office Memorandum dated 19.9.1992, the decision of this Court in the case of Dayal Das v. State of Assam and Ors. passed in W.P(C) No. 5216/2001 directing compliance of the guidelines has also been referred to. By the Office Memorandum dated 22.5.2002 strict compliance of the earlier guidelines has been emphasized and direction has been issued not to make any exception under any circumstances. 14. In reference to the aforesaid Office Memoranda, learned counsel for the respondent No. 5 argued that they are only directory and not mandatory. There is no dispute in respect of the same. However, the question arises as to what for such guidelines are framed. Is it only to violate the same and then to say that these guidelines are not mandatory. Guidelines are always guidelines and not like statutory rules. However, the State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here and there. 15. The said guidelines themselves having laid down the need for proper justification for premature transfer before completion of the three years normal tenure in a particular station and the approval of the Chief Minister, can the recommendation made by the said MLA not only for the transfer of the petitioner but also as to who would replace him can be said to be the proper justification as emphasized under the said Office Memoranda, I am of the considered opinion that the answer will be an emphatic "No". The concept of public interest cannot be misused as has been done in the instant case. The concept of public interest cannot be misused as has been done in the instant case. Transfer of the petitioner was resorted to on the basis of the note given by the MLA without recording any reason justifying the premature transfer of the petitioner. Not only that, by the same very note, the respondent No. 5 who was the earlier incumbent at Nalbari before the petitioner and against whom allegations were made pertaining to the said incumbency has been sought to be brought to the same very place and post. The Chief Minister of the State also obliging the desire of the particular MLA granted his approval to the transfer and the impugned Notification dated 7.8.2004 was issued by the departmental authorities without any cross-checking of the attending circumstances. 16. It is in the above context the Apex Court in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. as reported in [2001] 3 SCR 1146 made the following observations: 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 the 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 discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore C. Ltd. are instructive and apposite. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore C. 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. 17. For the foregoing reasons I have no hesitation to hold that the impugned order is not founded on any bona fide exercise of power involving any public interest but the same has been issued as per desire of a particular MLA or MLAs. Possibly this is the precisely reasons as to why the interim order passed in favour of the writ petitioner was not interfered with by the Division Bench when the same was carried on appeal by the respondent No. 5 by filing Writ Appeal No. 315/2004. This Court in the case of Jibeswar Thakuria and Ors. v. State of Assam and Ors. as reported in 2004 (1) GLT 347, under similar circumstances allowed the writ petitions by setting aside and quashing the impugned orders of transfer. As submitted by the learned counsel for the petitioner, the said judgment has been affirmed on appeal by dismissing the appeals preferred against the judgment. 18. Writ petition stands allowed. The impugned order dated 7.8.2004 (Annexure-8) stands set aside and quashed leaving the parties to bear their own costs. Petition allowed