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2005 DIGILAW 25 (GAU)

Robin Sarma v. State of Assam

2005-01-12

I.A.ANSARI

body2005
JUDGMENT I.A. Ansari, J. 1. By this judgment and order, I propose to dispose of WP (C) Nos. 7602 and 8255 of 2004, for, both these writ petitions are closely inter-related and the same have been heard together. 2. Heard Mr. P.K. Goswami, learned senior counsel, assisted by Mr. A.M. Buzarbaruah, learned Counsel for the Petitioner, and Mr. P.K. Mushahary, learned Senior Government Advocate, appearing for the State Respondents. I have also heard Mr. P.C. Deka, learned senior counsel, assisted by Mr. K. Medhi, learned Counsel, appearing on behalf of the private Respondent, namely, Respondent No. 4. 3. By the Notification, dated 25.03.04, the Petitioner's recommendation for promotion to the rank of Executive Engineer (Civil) under Water Resources Department was approved and by order, dated 08.09.04, the Petitioner was promoted as Executive Engineer (Civil), Water Resources Department, and posted as Executive Engineer, Diphu Water Resources Division, with Headquarter at Diphu. However, to the posting order of the Petitioner, Karbi Anglong Autonomous District Council re-acted by issuing a letter, dated 15.09.2004, addressed to the Respondent No. 2, namely, Secretary to the Government of Assam, Department of Water Resources, expressing their inability to accept the service of the Petitioner on the ground that no prior "No Objection Certificate" for the Petitioner's posting at Diphu had been obtained by the Government from the said Council in terms of Clause H of the Government Office Memorandum No. HAD-57/95/316, dated 31.12.96. In Partial modification of the order, dated 08.09.04, aforementioned, the Petitioner was, then, vide order, dated 29.09.04, transferred and posted as Executive Engineer, Guwahati East E and D Division, with Headquarter at Guwahati, replacing the private Respondent, i.e. Respondent No. 4. Though the Petitioner reported for duty and submitted his joining report on 30.09.04 at 4 p.m., the incumbent of the post to which the Petitioner had been transferred, namely, Respondent No. 4 did not hand over the charge to the Petitioner on the ground that the said order, dated 29.09.2004 (whereby the Petitioner had been posted in the place of the Respondent No. 4) had been modified subsequently by order, dated 30.09.04, staying thereby the order, dated 29.09.2004, aforementioned until further order by the Department concerned. Aggrieved by the order, dated 30.09.2004, aforementioned, whereby the Petitioner's transfer to the post occupied by the Respondent No. 4 was stayed, the Petitioner impugned the same in WP(C) No. 7602/04 seeking, inter alia, a direction staying the operation of the impugned order, dated 30.09.04, aforementioned. While issuing notice of motion, on 04.10.04, this Court stayed the order, dated 30.09.04, aforementioned until returnable date i.e. 13.10.2004. While the matter stood so poised, the Notification/order, dated 29.09.04, was modified by Notification, dated 12.10.2004, and the Petitioner was posted, on promotion, as Executive Engineer (Quality Control) Water Resources Department with Headquarter at Guwahati with immediate effect relieving thereby the incumbent thereof, who was holding the additional charge of the office of the Executive Engineer (Quality Control). It is this order, which stands impugned in WP(C) No. 8255/04. 4. Before proceeding any further, it is pertinent to note that the State-Respondents have not filed any affidavit-in-opposition, but they have produced the whole record for perusal of the Court. However, the Respondent No. 4 has filed his affidavit-in-opposition and also an additional affidavit, his case being, briefly stated, thus: Before the transfer order, dated 29.09.2004, was given effect to, the said transfer order already stood stayed by the Government, on 30.09.2004, in the public interest inasmuch as the service of the Respondent No. 4 was considered essential in Guwahati East E and D Division, for, the Respondent No. 4 has prepared some project/schemes for preservation of erosion by river Brahmaputra, some of these schemes being the schemes of "Anti Erosion measures to protect Soalkuchi Town from the erosion of river Brahmaputra P.H" and "FDR and Restoration Dharapur and Garal Area D/s of Dhoptoala Bazar from erosion of River Brahmaputra from Ch. 5500 to 7000 m. for the year 2004-2005" and also the scheme of "Drainage of Sport Complex for National Games, 2005 at Sarusajai Area". 5500 to 7000 m. for the year 2004-2005" and also the scheme of "Drainage of Sport Complex for National Games, 2005 at Sarusajai Area". For implementation of these schemes and other projects, the presence of Respondent No. 4 was considered necessary by the authorities concerned., Similarly, during his tenure as an Assistant Executive Engineer in Guwahati East E and D Division, between 05.09.97 and 30.11.01, the Petitioner had failed to complete the construction of Pump house to drain out water from river Bharalu, but as the Government was keen to complete the said project/schemes before on set of monsoon, the Respondent No. 4 successfully completed the construction of pump house to drain out water from the Bharalu river to prevent submerging of the Guwahati City. As the order, dated 29.09.2004, aforementioned was already stayed by order, dated 30.09.2004, the Respondent No. 4 did not hand over the charge to the Petitioner. The writ Petitioner had merely submitted his joining report, but the charge of the office of the Executive Engineer was not taken over by him. It is the discretion of the Respondent/authorities concerned to utilize the service of any of the officials in the interest of public and the writ Petitioner has not suffered at all, for, he has remained posted at Guwahati only and the impugned order, dated 30.09.2004, aforementioned has not caused any adverse effect on the career of the Petitioner. The impugned transfer order was not actuated by any malfide or arbitrariness nor does the same suffer from political interference. The impugned order was passed for purely administrative reasons as some important flood control projects/schemes have been entrusted to the Respondent No. 4, which have just been commenced, but not yet completed. The schemes, which have been prepared by Respondent No. 4 by dint of his vast experience in the Division concerned, and the schemes, which the Government, as already indicated hereinabove, is in seisin of, and the works assigned to the Petitioner are in the interest of the State and as the presence of the Respondent No. 4 is essential for effective supervision at the time of implementation of the project, the order, dated 30.09.04, was passed by the Government. The impugned order, dated 30.09.2004, can, in no way, be regarded as reveting the Petitioner to the cadre of the Assistant Executive Engineer. 5. The impugned order, dated 30.09.2004, can, in no way, be regarded as reveting the Petitioner to the cadre of the Assistant Executive Engineer. 5. Before entering into the merit of the two writ petitions, what needs to be pointed out is that the Petitioner challenges the impugned transfer order, dated 30.09.2004, aforementioned on the ground that the same suffers from political interference, arbitrariness and that the same had the effect of reverting the Petitioner to the rank of the Assistant Executive Engineer. In view of the fact that the Petitioner's promotion had not been effected by the order, dated 30.09.2004, and in view also of the fact that the Petitioner had, eventually, been posted as the Executive Engineer (Quality Control) under Water Resources Department, the Petitioner's grievance that the impugned order, dated 30.09.2004, had the effect of reverting him to the post of the Assistant Executive Engineer has no substance. 6. It is also worth noticing that there is, admittedly, in force an Office Memorandum, dated 22.05.2002, which lays down the policy for transfer and posting of Government officials. That this Office Memorandum, dated 22.05.2002, has to be strictly followed is abundantly clear from the fact that it is stated therein that no exception is to be made under any circumstances in the said policy of transfer. As per this Office Memorandum, dated 22.05.2002, the months of December and January would constitute the "transfer season" and the Department/Directorate concerned would be competent to effect transfer and posting of Government officials during the "transfer season" if the official concerned has completed 3 years at the place of posting. What is, however, imperative to note is that this Office Memorandum, dated 22.05.2002, states, in no uncertain words, that the transfer order outside the "transfer season" i.e. in any month other than the months of December and January, would require the approval of the Chief Minister, the only exception being when the order of transfer is made, on promotion, against a vacant post or when an officer, on having completed 3 years at the place of posting, is moved to fill up a post, which has fallen vacant due to death, retirement, etc., or when the transfer order is made on disciplinary ground. In short, no transfer of a Government official is possible outside the months of December and January without the approval of the Chief Minister unless the transfer is either on disciplinary ground or to a vacant post. A microscopic reading of the Office Memorandum, dated 22.05.2002, clearly shows that for all transfer orders, which are made outside the "transfer season", the overall authority is the Chief Minister unless the transfer order falls under one of the exceptions incorporated in the transfer policy, namely, when the transfer is made on promotion against a vacant post or against a post, which has fallen vacant due to death, retirement, etc. or on disciplinary ground. 7. In the case at hand, the transfer order, dated 29.09.2004, posting the Petitioner in the place of Respondent No. 4, was admittedly, made in the month of September, which does not fall within the expression "transfer season". It also follows, as a corollary, that this transfer order ought to have been made with the prior approval of the Chief Minister, for, apart from the fact that the transfer order was made outside the "transfer season", the transfer order of the Petitioner had not been made, on promotion, against any vacant post or against the post, which was lying vacant due to death, retirement, etc. The question, therefore, which, now, arises, is as to whether the transfer order, dated 29.09.2004, had the approval of the Chief Minister. 8. In other words, in the above backdrop, we have to determine if the order, dated 29.09.2004, posting the Petitioner in the place of Respondent No. 4 had the approval of the Chief Minister. The records produced by the learned Senior Government Advocate clearly show that no such approval was obtained before posting the Petitioner in the place of the Respondent No. 4. The transfer order, dated 29.09.2004, therefore, was in clear contravention of the Office Memorandum, dated 22.05.2002, aforementioned and since such a transfer order, as the one under consideration, could have been made only with the approval of the Chief Minister, it cannot be said that the Chief Minister did not have the power to stay the order, dated 29.09.2004, when the same had not been made with his approval. 9. 9. Coupled with the above, what the records reveal is that a note was submitted to the Chief Minister by the Minister of State, Planning and Development, Finance and GD Department, bringing it to the notice of the Chief Minister that the Respondent No. 4 had prepared some project reports and schemes concerning the flood season and his continuation in Guwahati East E and D Division was required. When the matter was so brought to the notice of the Chief Minister, he passed an order, on 29.09.2004 itself (i.e. the date on which the transfer order, dated 29.09.2004, was made) staying the said transfer order. In fact, when the Petitioner, pursuant to the order, dated 29.09.2004, aforementioned, reported for his duty at Guwahati East E and D Division, the said transfer order already stood stayed. 10. The Chief Minister's interference in the present case, as the records reveal, cannot be said to have been actuated by any political consideration nor can the same be held to be arbitrary and/or illegal inasmuch as the materials placed before the Chief Minister were to the effect that the Respondent No. 4 had prepared some schemes in respect of the flood season and his continuation in the Guwahati East E and D Division was essential. Since the Chief Minister is, undoubtedly, a competent authority and the transfer order, dated 29.09.2004, was contrary to the Government's own policy, interference by the Chief Minister cannot be said to be undesirable and/or an out-come of political interference. Even if, on the basis of the materials on record, two views were possible and the Chief Minister, who has the control over all the transfers and postings of Government officials, chose to take one of such views, the writ Court would not substitute its own view in place of the view which the Chief Minister has taken unless the action of the Chief Minister is found to be arbitrary and/or malafide. No such thing is discernible from the records. This apart, the Petitioner's promotion has been made with the approval of the Chief Minister and his posting as Executive Engineer (Quality Control) under the Water Resources Department has not caused his reduction in rank. Far from this, he has remained posted at Guwahati as an Executive Engineer. No such thing is discernible from the records. This apart, the Petitioner's promotion has been made with the approval of the Chief Minister and his posting as Executive Engineer (Quality Control) under the Water Resources Department has not caused his reduction in rank. Far from this, he has remained posted at Guwahati as an Executive Engineer. On the other hand, the transfer order, dated 29.09.2004, was against the policy of the Government and its subsequent stay by the Chief Minister was for cogent reasons, which cannot be ignored by this Court. It needs to be borne in mind that a writ Court does not sit as a Court of appeal on the action of the Government transferring an employee from one place of posting to Anr. It is only when a transfer order is malafide, arbitrary and/or contrary to law or public interest, interference by a writ Court may become possible, but even then, such interference would be greatly circumscribed. 11. In the case at hand, as already indicated hereinabove, the Chief Minister's order, dated 29.09.2004, staying the transfer order, dated 29.09.2004, cannot be said to be arbitrary, illegal and/or suffering from any political interference. The Minister of State, Planning and Development, Finance and GD Department, can very well bring it to the notice of the Chief Minister, when an officer is in seisin of some important schemes for flood season, that the officer's continuation in the Division is warranted. In respect of transfer orders, which are made outside the "transfer season", since Chief Minister's approval is required, bringing of such an information to the notice of the Chief Minister cannot be said to be an interference, particularly, when the records do not reveal at all that the Department concerned raised any objection to the continuation of the Respondent No. 4 in Guwahati East E and D Division. Far from this, the order, dated 29.09.2004, was, subsequently, modified by the Department concerned and the Petitioner has been posted as the Executive Engineer (Quality Control) in the various Department in which he had been serving. Far from this, the order, dated 29.09.2004, was, subsequently, modified by the Department concerned and the Petitioner has been posted as the Executive Engineer (Quality Control) in the various Department in which he had been serving. Thus, shorn off the allegations and counter-allegations of the efficiency or otherwise, which the writ Petitioner and the Respondent No. 4, have levelled against each other, what is of paramount importance to note is that the Petitioner has been transferred outside the "transfer season", which definitely required the approval of the Chief Minister in terms of Clause 3 of the Office Memorandum, dated 22.05.2002, secondly, the Petitioner has been transferred to, and posted, as Executive Engineer (Quality Control) under Water Resources Department, which has not caused reduction in the Petitioner's rank and, thirdly, he has remained posted at Guwahati. 12. Coupled with the above, it needs to be noted that no contempt proceeding has been initiated against the State Respondents for wilfully disobeying the interim direction passed, on 04.10.2004, in WP(C) No. 7602/04, staying the operation of the Notification, dated 30.9.2004, aforementioned. In this regard, it is of paramount importance to note that even in a case, where contempt proceeding has been initiated, the Court may, in an appropriate case, instead of diverting its attention to contempt proceedings, hear the main application or the writ petition itself in order to bring an end to the controversy raised. Court has the discretion to tell a contemnor that he would not be heard and would not be allowed to participate in the Court proceedings unless the contempt is purged; but this is not an inflexible rule of practice and not a rigid rule of law. In such cases, the Court's discretion shall be guided and governed by the facts and circumstances of a given case. If the facts of a given case so justify, the Court may form an opinion that the contempt is not so grave that the contemnor be restrained from participating in the Court's proceedings until the contempt is purged and that the interests of justice would be better served by concluding the main proceedings instead of diverting to, and giving priority to, hearing the contempt proceeding. In such a case, the Court may proceed to hear both the matters simultaneously or independently of each other or in such order, as it may deem proper. In such a case, the Court may proceed to hear both the matters simultaneously or independently of each other or in such order, as it may deem proper. (See AIR 2003 SC 2177 in the matter of Anil Panjwani). 13. Great emphasize has been laid by Mr. P.K. Goswami, learned senior counsel, on the fact that once a transfer order has been made, it cannot be changed unless it can be shown to be in public interest. Reliance, in support of this proposition, has been placed by Mr. Goswami on (1993) 4 SCC 357 (Union of India and Ors. v. S.L. Abbas), 2001 (3) GLT 67 (Zakir Hussain v. State of Assam and Ors.) and 1998 (3) GLT 183 (Ashim Kr. Baruah and Ors. v. Tanushyam Borgohain and Ors.). There can be no dispute with the proposition of law as advocated by Mr. Goswami. The difficulty is in applying the law to the factual matrix of the present case. The impugned order, dated 30.09.2004, aforementioned, cannot, for the reasons, which I have already assigned, be termed as not an order made in public interest nor can the subsequent order, 12.10.2004, posting the Petitioner as Executive Engineer (Quality Control), in the Department of Water Resources, be termed as contrary to the interest of the general public. There can be no doubt that since at the time of issuing notice of motion, as already indicated hereinabove, this Court had passed an interim direction staying the order, dated 30.09.04, till 13.10.04, it was undesirable on the part of the Government to make any further modification of the said transfer order without the leave of this Court. However, as the action of the Government could not be shown to be in wilful defiance of the authorities of this Court, the materials on record do not reveal that the said action of the Government has caused any prejudice to the Petitioner and the same cannot be termed as an order suffering from arbitrariness, malafide and illegality and/or undue political interference, this Court is firmly of the view that the impugned order, dated 12.10.04, aforementioned posting the Petitioner as Executive Engineer (Quality Control) under the Water Resources Department does not call for any interference by this Court in exercise of its writ jurisdiction. 14. In the result and for the foregoing reasons, these writ petitions fail. 14. In the result and for the foregoing reasons, these writ petitions fail. The interim direction passed, on 04.10.04, in WP (C) No. 7602/04, shall accordingly stand vacated and both the writ petitions shall stand dismissed. No order as to costs. 15. Hand over the Govt. records to the learned Senior Government Advocate, Assam. Petition dismissed.