Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 650 (GAU)

K. S. Ramachandran v. State of Arunachal Pradesh

2004-12-23

BIPLAB KUMAR SHARMA

body2004
JUDGMENT Biplab Kumar Sharma, J. 1. Both the writ petitions are based on same set of facts and the relief prayed for are also the same. As agreed to the learned Counsel for the parties, they were heard together and are being disposed of by this common judgement and order. 2. The Petitioners in both the writ petitions are the employees under the Respondents in the Ministerial cadre. Presently they are in the establishment of the Deputy Commissioner, Lower Dibang Valley District, Arunachal Pradesh. The District of Lower Dibang Valley came into being upon bifurcation of the original Dibang Valley District into two districts, i.e. Dibang Valley District and Lower Dibang Valley District. The place called Anini was the District Headquarter of the original undivided Dibang Valley District. With the creation of Lower Dibang Valley, the place called Roing became its District Headquarter. 3. According to the Petitioners who along with others constituted the Ministerial cadre comprising of Grade-C and D posts stood automatically transferred and deployed in the establishment of the newly created district, i.e. Lower Dibang Valley District. Be it stated here that the bifurcation and creation of Dibang Valley District was pursuant to a notification dated 14.11.01 issued by the Govt. of Arunachal Pradesh. 4. In Support of their claim for automatic transfer and deployment in the establishment of the newly created district on the basis of the principle of "as is where is", the Petitioners have pressed into service the orders dated 03.03.81, 20.05.83 and 10.09.02 (Annexures-A, B and C). These orders were issued by the Govt. of Arunachal Pradesh in the General Administration Department in exercise of its power under Article 309 of the Constitution of India in respect of bifurcation of the Ministerial cadre into two separate cadres upon bifurcation of one district to two districts. As per the said orders the incumbents of the new districts stood automatically transferred and deployed to the new district. Be it stated here that Annexure-A order dated 03.03.81 was in respect of creation of two separate districts, i.e. Lohit and Dibang Valley District from the original Lohit District. In the present case we were concerned with the Ministerial cadres of the two districts, i.e. Dibang Valley District and Lower Dibang Valley District. As noticed above, the Lower Dibang Valley District was created by curving out a portion of the original Dibang Valley District. 5. In the present case we were concerned with the Ministerial cadres of the two districts, i.e. Dibang Valley District and Lower Dibang Valley District. As noticed above, the Lower Dibang Valley District was created by curving out a portion of the original Dibang Valley District. 5. The Petitioners have also pressed into service the Annexure-D Office Memorandum dated 22.09.81. According to the Petitioners, as per the said Office Memorandum a single Ministerial cadre for each District is contemplated and for each District the Deputy Commissioner is the appointing and cadre controlling authority. It is the stand of the Petitioners that as per the guidelines laid down in the said office Memorandum, the transfer and posting in respect of the employees of the Ministerial cadre can only be within the district under the supervision of the Deputy Commissioner of the District, he being the appointing and cadre controlling authority. 6. Placing reliance on the Annexure-E and F orders dated 08.07.03 and 16.10.03, it is the stand of the Petitioners that the factum of their automatic transfer and deployment in the establishment of the newly created district of Lower Dibang Valley is amply demonstrated. Certain Ministerial cadre employees were confirmed in service on completion of the period of probation by Annexure-E order dated 08.07.03. The order was issued by the Deputy Commissioner, Dibang Valley District Thus, it is the case of the Petitioner that such order of confirmation in service of the incumbents named in the order amply demonstrate the execution of the principle of "as is where is basis" upon bifurcation of the original Dibang Valley District into two districts. By Annexure-F order dated 16.09.03 issued by the Govt. of Arunachal Pradesh in the District Administration Department the posts in Group-C and D cadre were bifurcated so as to constitute different cadres for the two districts. As per the said order the Group-C and D posts existing in the newly created Lower Dibang Valley District stood automatically transferred from the original district of Dibang Valley. The prayer made in these writ petitions is for absorption of the existing Ministerial personnel presently posted in Lower Dibang Valley District pursuant to allocation of the posts to the new district as per the said order dated 16.09.03. 7. The prayer made in these writ petitions is for absorption of the existing Ministerial personnel presently posted in Lower Dibang Valley District pursuant to allocation of the posts to the new district as per the said order dated 16.09.03. 7. The cause of action for the writ Petitioners to invoke the writ jurisdiction of this Court arose with the proposed move of the Respondents to allow the transfer and posting of the Group C and D employees of the two districts permitting inter district transfer. The Petitioners became apprehensive with the issuance of Annexure-G WT message dated 17.10.03 and Annexure-H letter dated 17.10.03 by which particulars of the employees belonging to Group-C and D Ministerial cadre were sought for along with recommendations enabling to decide the case of cross transfer/posting of the staff at the Govt. level. 8. The writ petitions were entertained by order dated 07.05.04 and in the interim it was provided that status quo as on the date of the order relating to service of the Petitioner should be maintained. 9. The private Respondents who also belonged to the Ministerial cadre got themselves impleaded in both the writ petitions and filed separate applications praying for vacating the interim order passed in the writ petition. No separate affidavit in opposition has been filed by the said Respondents, but they pressed the said applications, i.e. Misc. Case No. 2189/ 04 in W.P. (C) No. 3134/04 and Misc. Case No. 2235/04 in W.P. (C) No. 3156/04 as their counter affidavits. The official Respondents although have not filed any affidavit in opposition, but supported the case of the private Respondents and produced certain documents supporting their decision for cross transfer/posting of the Group C and D employees of the said two districts. 10. According to the Respondents the earlier decision of the Government to follow the principle of "as is where is basis" upon bifurcation of one district to two districts is irrational and inequitable. Their further stand is that when the said principle was proposed to be followed in the instant case upon bifurcation and creation of Lower Dibang Valley District, widespread resentment amongst the Ministerial staff came to the forefront. Their further stand is that when the said principle was proposed to be followed in the instant case upon bifurcation and creation of Lower Dibang Valley District, widespread resentment amongst the Ministerial staff came to the forefront. According to the Respondents, the areas which were carved out from the original Dibang Valley District towards formation of the new District, i.e. Lower Dibang Valley District, are considered to be soft area in sharp contrast to the areas which remained as a part of the old district considered to be hard areas. 11. In order to give equitable relief in the matter of transfer and posting in the newly created district like the Lower Dibang Valley District, the Govt. of Arunachal Pradesh issued a letter dated 27.02.02 to both the Deputy Commissioners of Dibang Valley and Lower Dibang Valley Districts. The letter out-lined the guiding principles in the matte of transfer and posting of Ministerial staff to the newly created Lower Dibang Valley District which is considered to be a soft area. The Respondents have quoted the relevant portion of the letter which is reproduced below: In order to rationalize and to effect justice, fairplay and equity and to ensure fair deal to all serving officials, it is decided that: 1) Both the DCs of Anini and Roing will sit together preferably at Roing to finalize a separate list of staffs who have served at least 3 years in hard belt other than Roing Sub-Division and a list of officials who have not served other than Roin with year wise posting with specific order Nos. 2) Both the DCs may finalize a list basing on update entries of the Service Book of the respective officials and detailed minutes of the sitting jointly signed by both the DCs may be submitted to the Govt. at an early date, to enable the Govt. to take appropriate decision for bifurcation in due course. Till formal bifurcation of Ministerial cadres, both the DCs will continue to sit together, examine and regulate genuine cases of transfer/posting cases jointly. As you would agree and appreciate that any bifurcation of staffs without completing equitable and judicious retention of tenure of staff in both hard and soft belt will certainly put the Govt. into untenable embarrassment by legal complications. This may please be strictly adhered to an follow-up action may be taken expeditiously. 12. As you would agree and appreciate that any bifurcation of staffs without completing equitable and judicious retention of tenure of staff in both hard and soft belt will certainly put the Govt. into untenable embarrassment by legal complications. This may please be strictly adhered to an follow-up action may be taken expeditiously. 12. On the strength of the above letter dated 27.02.02 the Govt. of Arunachal Pradesh in the District Administration department sent a WT message dated 17.10.03 to the Deputy Commissioner, Dibang Valley District with information to the Deputy Commissioner, Lower Dibang Valley District seeking details of Group-C and D Ministerial staff under their control as per the available records in personal files and service books in order to decide the case of cross transfer/posting of the said staff at the Govt. level. The Govt. of Arunachal Pradesh also issued a letter dated 17.10.03 in tune with the said W.T. message. After the said developments, the Deputy Commissioner, Dibang Valley District issued a letter dated 06.11.03 addressed to the Secretary to the Govt. of Arunachal Pradesh in the District Administration Department furnishing the details of service particulars of all Group C and D Ministerial staff. In the letter suggestion was made that both the Deputy Commissioners should be called to Itanagar for a joint meeting in the presence of the said Secretary. 13. According to the Respondents the Petitioners while moving the writ petitions sup pressed the factual aspect of the matter, but for which the interim order would not have been passed. It is the plea of the Respondents that the writ Petitioners although knew about the aforesaid developments, deliberately sup pressed the same with the sole purpose of obtaining interim order in their favour. Be that as it may, in a nutshell, it is the case of the Respondents that having regard to the hardship which is normally followed in adhering to the principle of "as is where is basis", the Govt. of Arunachal Pradesh arrived at a consensus decision to allow cross transfer/posting in respect of the Group C and D employees of the two districts which originally formed the single cadre falling in the district of the then Dibang Valley District. 14. I have heard Mr. I Ahmed, learned Counsel for the Petitioners and Mr. C.K. Sarma Baruah, learned Advocate General, Arunachal Pradesh. I have also heard Mr. 14. I have heard Mr. I Ahmed, learned Counsel for the Petitioners and Mr. C.K. Sarma Baruah, learned Advocate General, Arunachal Pradesh. I have also heard Mr. P.K. Tiwari, learned Counsel for the private Respondents. 15. Mr. Ahmed during the course of argument projected the stand of the Respondents as discussed above. He submitted that the Government of Arunachal Pradesh having all along followed the principle of "as is where is basis" in the aftermath of creation of a new district, same is required to be followed in the instant case also. Placing reliance on the aforementioned Office Memorandum dated 22.09.81, he submitted that no inter district transfer is permissible in respect of Group-C and D employees. 16. Mr. C.K. Sarma Baruah, learned Advocate General produced certain documents pertaining to the minutes of the meeting held in office chamber of the Deputy Commissioner, Lower Dibang Valley District with effect from 05.04.02 to 11.04.02 in connection with bifurcation of Group-C and D posts and for consideration of genuine transfer case of Group-C and D employees. He also placed reliance on certain other documents conveying the policy decision of the Govt. to allow the gross transfer/posting of the Group-C and D employees of the two districts. He submitted that such a policy decision was adopted having regard to the position which had emerged due to following the principle of "as is where is basis". Placing reliance on the decision of the Apex Court as reported in : AIR 2004 SC 4121 (Virendra Nath Thr. P.A. Holder R.R. Gupta v. Mohd. Jamil and Ors. he submitted that the Petitioners can not make any grievance in the matte of transfer and posting unless the same is founded on any malafide or colourable exercise of power. He also submitted that there being no statutory violation in the decision by the State Government to allow cross transfer/posting, the writ Court will be reluctant to interfere with such policy decision. 17. Mr. P.K. Tiwari, learned Counsel for the private Respondents argued in tune with the submissions made by the learned Advocate General. He also submitted that there being no statutory violation in the decision by the State Government to allow cross transfer/posting, the writ Court will be reluctant to interfere with such policy decision. 17. Mr. P.K. Tiwari, learned Counsel for the private Respondents argued in tune with the submissions made by the learned Advocate General. Tracing back the history of creation of new districts from the old district of Lohit, he submitted that the areas which were carved out from the Dibang Valley District being soft areas in sharp contrast to the hard areas which remained with the original Dibang Valley District, naturally great resentment followed among the employees for adhering to the principle of "as is where is basis". He submitted that the Government in the appropriate level upon adopting policy decision to allow cross transfer/posting in respect of Group-C and D employees of the two districts, sought for service particulars of the employees to take a decision in the matter of their transfer/posting. He submitted that on the basis of such policy decision the process of cross transfer /posting of the employees of the two districts was at the verge of completion. However, in view of the interim order passed by this Court everything came to standstill. He submitted that in absence of any malafide and colourable exercise of power, the policy decision adopted by the State Govt. on the basis of sound principle of equity and good conscience, same cannot be interfered with in exercise of the power of judicial review under Article 226 of the Constitution of India. 18. I have considered the elaborate arguments advanced by the learned Counsel for the parties and the materials available on record. The Petitioners have pressed into service justifying their plea of consistently following the principle of "as is where is basis" on the basis of the earlier orders passed by the Government of Arunachal Pradesh under similar circumstances of creation and bifurcation of a new district from the old district. On those occasions the Govt. of Arunachal Pradesh took a consensus decision to follow the principle of "as is where is basis". 19. On those occasions the Govt. of Arunachal Pradesh took a consensus decision to follow the principle of "as is where is basis". 19. On perusal of the orders which are marked as Annexures-A, B and C it will be seen that upon bifurcation of a new district from the original district it was expressly provided that the posts along with the incumbents falling in the respective new districts would stand automatically transferred and deployed in the newly created districts. However, same is not the situation in the instant case. No such decision was conveyed by the Respondents upon bifurcation of a new district, i.e. Lower Dibang Valley District from the original Dibang Valley District, rather it is on record that by Annexure-F order dated 16.09.03 it was only in respect of the posts which were stated to be automatically transferred to the newly created district. Along with the said order dated 16.09.03, a statement of Group-C and D posts to be retained in the establishment of the Deputy Commissioner, Dibang Valley District, Anini and to be bifurcated to the establishment of the Deputy Commissioner of the newly created district of Lower Dibang Valley, Roing was enclosed. 20. Thus, unlike the earlier occasions, on this occasion there was no automatic transfer and deployment of the incumbents in the newly created district along with the posts. This is well reflected on perusal of the Annexure-A, B and C orders dated 03.03.81, 20.05.85 and 10.09.02 in comparison to the Annexure-F order dated 16.09.03 concerning the instant case. This is precisely the reason as to why the Petitioners have prayed for a direction to the official Respondents to fill up bifurcated strength allotted to Lower Dibang Valley District by the said order dated 16.09.03 by observing deploying the Petitioners who are presently posted in the Lower Dibang Valley District. 21. The Petitioners cannot make a claim for their automatic transfer and deployment upon bifurcation of the new district, i.e. Lower Dibang Valley District. On earlier occasions there was a consensus decision of the Government and nobody raised any grievance against the same. However, unlike on those occasions as noticed above, on this occasion no such decision of automatic transfer and deployment of the staff was conveyed. Rather the decision to bifurcate the posts as reflected in Annexure-F order dated 16.09.03 was only conveyed. 22. However, unlike on those occasions as noticed above, on this occasion no such decision of automatic transfer and deployment of the staff was conveyed. Rather the decision to bifurcate the posts as reflected in Annexure-F order dated 16.09.03 was only conveyed. 22. Having regard to the incongruous situation which had emerged upon following the principle of "as is where is basis" the official Respondents took a consensus decision as a matter of policy to allow the cross transfer/posting upon scrutiny of the service particulars of the employees. In this connection, the Respondents followed due procedure of discussion etc. between the two Deputy Commissioners and the Secretary of the concerned department, Govt. of Arunachal Pradesh. Initially the matter was scrutinized upon furnishing of service particulars of the incumbents by the respective Deputy Commissioners as was called for. The final stage had arrived towards actual transfer and deployment of the incumbents in the two districts. However, in the meantime the present writ proceedings were initiated by the Petitioners without making any disclosure of the said policy decision adopted by the State Govt. The case was projected to be the one requiring adherence to the principle of "as is where is basis". 23. The Annexure-D office Memorandum dated 22.09.81 has been pressed into service to buttress the argument that the Petitioners being under the control of the Deputy Commissioner, Lower Dibang Valley District and the said Deputy Commissioner being the appointing and cadre controlling authority, there cannot be any transfer of the Petitioners from the Lower Dibang Valley District to Dibang Valley District and for that matter to any other district. Clause 12 of the said Office Memorandum was highlighted during the course of the hearing which speaks about authority of transfer and posting within the same office and from one office to another office. 24. Before proceeding to deal with the guidelines provided in Clause 12 under the head of "Transfer and Posting" it will be appropriate to refer to the subject on which the Office Memorandum was issued. It was issued on the subject of "guidelines for management of district Ministerial (J) cadre under each Deputy Commissioner". Various parameters have been laid down in the said office Memorandum towards management of the district Ministerial cadre under the control of the each Deputy Commissioner. It was issued on the subject of "guidelines for management of district Ministerial (J) cadre under each Deputy Commissioner". Various parameters have been laid down in the said office Memorandum towards management of the district Ministerial cadre under the control of the each Deputy Commissioner. It is in that context, the authorities are prescribed under Clause 12, in respect of transfer and posting within the same office and from one office to another office. There is nothing to indicate that inter district transfer is not permissible. Learned Counsel for the Petitioners submitted that as per Clause 12 of the office memorandum the inter district transfer is impliedly ruled out. I am afraid that no such interpretation can be given to Clause 12 of the said office Memorandum. 25. A new kind of situation had emerged with the bifurcation and creation of a new district, i.e. Lower Dibang Valley District. Originally it stood an integral part of the earlier Dibang Valley District. Had there been no bifurcation of a new district, the Petitioners could not have projected the kind of argument as was projected placing reliance of Clause 12 of the said office Memorandum. At the time of issuance of the said office Memorandum dated 22.90.81, the kind of situation which has now emerged with the creation of the new district by curving out the areas from the old district of Dibang Valley was not visualized and naturally could not have been visualized. Apart from the fact that the said office Memorandum cannot be said to be a bar for inter district transfer, even if the same is to be held to be the correct position, then also the Petitioners cannot claim to remain posted in the new district. The office Memorandum will have to be understood and pursued taking into account the composite district of Dibang Valley. The Petitioners cannot place reliance on the said office Memorandum merely because a new district has been carved out from the original district of Dibang Valley. 26. The Petitioners have not denied the plea of the private Respondents that the newly created district of Lower Dibang Valley comprises of the area known as soft area and that the Dibang Valley District as it stands after the bifurcation comprises of hard area. The concept of "hard posting" and "soft posting" is not unknown to transfer and posting. 26. The Petitioners have not denied the plea of the private Respondents that the newly created district of Lower Dibang Valley comprises of the area known as soft area and that the Dibang Valley District as it stands after the bifurcation comprises of hard area. The concept of "hard posting" and "soft posting" is not unknown to transfer and posting. Often in the transfer guidelines issued by the various Ministries and Departments, the concept of "heard posting" and "soft posting" is introduced. In the normal parlance an employee with hard posting is entitled to get consideration for soft posting and vice-versa. Merely because the Petitioners happened to be (sic)e employees posted in the newly created district of Lower Dibang Valley, cannot claim to be remained posted their throughout their entire service career in the same district posting to which is considered to be a soft area posting. If this is allowed, there will be discrimination in the matter of soft and hard area posting. The private Respondents are in the establishment of the old Dibang Valley District which is considered to be a hard area posting. If the kind of argument advanced by the Petitioners is to be accepted, same will lead to violation of equality clause enshrined in the Constitution of India. Some with hard area posting will have to be remained posted there throughout the service career without any chance of transfer and posting to soft area. On the other hand, the Petitioners who were blessed with soft area posting at the time of bifurcation and creation of the new district will be with further blessings by remaining in the soft area throughout their service career. 27. In the above backdrop and upon consideration of the grievance which according to them is a legitimate one, the Government of Arunachal Pradesh took a policy decision allowing cross transfer/posting of the employees of the two districts upon verification of their service particulars, same cannot be said to be an arbitrary exercise of power. As to under what circumstances the Government of Arunachal Pradesh on earlier occasions followed the principle of "as is where is basis" on creation and bifurcation of new district from the original district is not known. There may be hosts of considerations towards taking a particular policy decision at the Government level. As to under what circumstances the Government of Arunachal Pradesh on earlier occasions followed the principle of "as is where is basis" on creation and bifurcation of new district from the original district is not known. There may be hosts of considerations towards taking a particular policy decision at the Government level. Merely because a particular principle was followed upon creation of a new district in the past, the Petitioners cannot claim that the same very principle should be followed in their case also. Unlike those cases, the Government in the instant case took a conscious decision only to bifurcate and deploy the posts to the respective districts. As regards to the posting of the incumbents, it took a policy decision to allow cross transfer/posting of the employees in consideration of their service particulars. Such a policy decision cannot be said to be without any basis and to be the result of an arbitrary, malafide or colourable exercise of power. As discussed above, such policy decision is also not violative of any statutory provision already in existence. 28. This Court on an earlier occasion and under similar circumstances decided W.P.(C) No. 682(AP)/01. The writ petition was disposed of by order dated 15.10.04 a copy of which was produced by Mr. Tiwari, learned Counsel for the private Respondents during the course of hearing. In that case, the Petitioners had challenged the transfer order dated 28.03.2000 by filing W.P.(C) No. 96(AP)/ 2000 which was disposed of by order dated 31.08.2000 providing consideration of the representation of the Petitioners. The representation was disposed of by order dated 12.09.2000 rejecting the prayer of the Petitioners. One of the grounds assigned towards such rejection was to provide opportunity to others to serve at a soft place from hard place and vice-versa from time to time and the pendency of numerous representations for such soft posting. It was observed that there would be denial of justice to the incumbents who were serving in hard place for years together. Considering the grounds assigned towards rejection of the prayer of the Petitioners in that case, this Court declined to interfere with the order of transfer which was subsequently challenged by the Petitioner by filing W.P.(C) No. 682(AP)/2001 after the representation was disposed of in the negative. 29. Considering the grounds assigned towards rejection of the prayer of the Petitioners in that case, this Court declined to interfere with the order of transfer which was subsequently challenged by the Petitioner by filing W.P.(C) No. 682(AP)/2001 after the representation was disposed of in the negative. 29. In view of the above, I am of the considered opinion that the prayers made in the writ petition cannot be granted. It is within the competence and jurisdiction of the Government to evolve a particular policy decision in the matter of transfer and posting of the Group-C and D employees of the erstwhile Dibang Valley District and the newly created Lower Dibang Valley District. No interference is called for to the policy decision of the Government in the matter of transfer and posting of the incumbents who are posted in the said two districts. I do not find any arbitrariness, unreasonableness and malafide exercise of power and so also any statutory violation towards adopting the said policy decision. Consequently, the writ petitions are liable to be dismissed. 30. Both the writ petitions stand dismissed. Interim orders passed on 07.05.04 stand vacated. There shall be no order as to costs. Petition dismissed