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2005 DIGILAW 747 (PAT)

Krishna Kumar Sinha v. State Of Bihar

2005-08-19

AFTAB ALAM, REKHA KUMARI

body2005
Judgment Rekha Kumari, J. 1. This letters patent appeal is directed against an order by which the writ petition filed by the appellant-petitioner was neither allowed nor disallowed but was disposed of with certain directions. As a result, the appellant finds himself worse-off than he was before coming to the court. 2. The matter relates to a dispute between the appellant and respondent no. 4 (both members of the Bihar Administrative Service) with regard to the posting as Block Dev. Officer/Circle Officer, Patna Sadar. The appellant filed the writ petition challenging notification no. 3673, dated 17.6.2005 by which, within six weeks of his transfer to Munger, respondent no. 4 was brought back as Block Dev. Officer, Patna Sadar. The learned Single Judge took the view that the appellant had remained posted in the district of Vaishali for an inordinately long time and similarly respondent no. 4 had managed to stay in Patna for a very long time. He, therefore, directed the concerned authorities in the Government to reconsider the matter of their transfer and to post them both at places outside the districts of Patna and Vaishali. Thus, the petitioner who moved the court against the loss of the post of Block Dev. Officer, Patna Sadar to respondent no. 4 was slapped with the order that he should be shifted out of Patna and Vaishali alongwith respondent no. 4. 3. Learned counsel for the appellant submitted that the order coming under appeal was based on certain premises some of which were contrary to facts while some others were founded on the subjective perception of the Hon ble Judge rather than on the materials on record. He pointed out that the order under appeal began with the observation: "Both petitioner and respondent no. 4 are the fortunate employee of the State of Bihar. Since the date of joining the service, while the petitioner has managed to remain in the district of Vaishali, respondent no. 4 has managed to remain in the district of Patna." 4. This would give an impression that the appellant and respondent no. 4 were similarly placed and in the matter of postings and both of them equally received undue favours from the Government. 5. 4 has managed to remain in the district of Patna." 4. This would give an impression that the appellant and respondent no. 4 were similarly placed and in the matter of postings and both of them equally received undue favours from the Government. 5. The order under appeal proceeded to make the following observation: "There are many officers who have managed to remain either in Patna or near Patna for many years and have not seen the other districts of the State of Bihar. As noticed above, petitioner and respondent no. 4 are also among such officers." 6. It would thus appear that it was a common practice in the Government to give a chosen few the choice postings leaving the large majority of the employees uncared for. And that the case of the petitioner and respondent no. 4 illustrated this malpractice. Then after a few words on what was expected from a good administration, the order gave the direction to post both the petitioner and respondent no. 4 outside Patna and Vaishali. 7. Learned counsel for the-petitioner submitted that the first and the central premise of the order that in the matter of postings the petitioner was shown undue favour and in this regard he was at par with respondent no. 4 was incorrect and unfounded. The finding was recorded without reference to the relevant facts and the order was remarkable in that it did not mention any date or a single place of posting of either the petitioner or respondent no. 4. Counsel further submitted that it was a simple case in which the petitioner tried to show that he was removed from a particular post with the sole object to accommodate respondent no. 4 and bring him back to Patna. But the learned Single Judge greatly enlarged the scope of the case and brought in issues that a Division Bench hearing a P.I.L. would have approached with the greatest care and caution. 8. To show that the petitioner and respondent no. 4 had completely different kinds of postings, counsel for the petitioner submitted before the court the details of their postings in a tabular form: Appellant Respondent No. 4 8.11.1997 Biharsharif (Nalanda) as May, 1995 Patna as to to Trainee Dy. 12.12.1998 Trainee Dy. Collector. Dec,1996 Collector 23.12.1998 Bidupar& Sahdei, 28.12.1996 B.D.O., Patna to Vaishali to Sadar for 8.7.2002 (Rural Area). 13.7.2001 4 ½ years. 12.12.1998 Trainee Dy. Collector. Dec,1996 Collector 23.12.1998 Bidupar& Sahdei, 28.12.1996 B.D.O., Patna to Vaishali to Sadar for 8.7.2002 (Rural Area). 13.7.2001 4 ½ years. 9.7.2002 CO., Hajipur 14.7.2001 B.D.O., to Sadar only to Bakhtiarpur, 31.3.2004 for 1 ½ 26.11.2001 Patna. 1.4.2004 Waiting for 26.11.2001 PA. to Honble to posting. to Minister, 12.4.2004 26.2.2003 Patna. 12. 4.2004 C.O. 27.2.2003 B.D.O. Patna Sadar. to 2.4.2004 Phulwari, Patna 9 The counsel pointed out that after doing his training in the district of Nalanda, the appellant was posted in the district of Vaishali and he remained in that district till 31.3.2004. For a period of three years and seven months out of his total stay in that district he was posted in the blocks of Bidupur and Sahdei which are rural postings in every sense of the term and was posted as the Circle Officer, Hajipur Sadar (the head quarters of the district) only for a period of one and half years. On 31.3.2004 he was relieved from Hajipur and on 1.4.2004 came to the departmental head quarter waiting for posting. On the other hand, respondent no. 4 did his training at Patna and continues to remain here ever since except for a few days at Munger. He even managed to stay in Patna for over a year on the ex-cadre post as P.A. to a Minister. Learned counsel submitted that in the matter of postings, therefore, the appellant and respondent no. 4 were as different as chalk from cheese and it would be quite unreasonable, unfair and unjust to bracket them together as equal in receiving undue favours from the State. 10. Coming to the present dispute counsel for the appellant submitted that the appellant was posted as Circle Officer, Patna Sadar on 12.4.2004. A few days before that, on 3.4.2004 respondent no. 4 was posted as Block Dev. Officer, Patna Sadar. It was around that time that the State Govt, took steps to fill up the posts of Block Dev. Officer/Circle Officer that lay vacant for a long time in about 120 blocks of the State and with a view to tone up the field administration it was decided to vest the powers and functions of both the posts (Block Dev. Officer and Circle Officer) in one officer of the rank of Deputy Collector. Officer/Circle Officer that lay vacant for a long time in about 120 blocks of the State and with a view to tone up the field administration it was decided to vest the powers and functions of both the posts (Block Dev. Officer and Circle Officer) in one officer of the rank of Deputy Collector. In pursuance of the Government decision a large number of officers were transferred from one place to another to fill up the vacant posts of Block Dev. Officer/Circle Officer in the different blocks. In that process respondent no. 4 too was transferred from Patna as Block Dev. Officer, Munger Sadar, Munger vide notification no. 2419, dated 2.5.2005 and as per the Government decision the appellant was also given the charge of Block Dev. Officer, Patna Sadar. Respondent no. 4 made a representation against his transfer to Munger which was rejected by the departmental authorities on 30.5.2005. He then came to this court in CWJC No. 7074 of 2005 challenging his transfer to Munger. In the writ petition he never disclosed the total period of his stay at Patna nor did he state that the representation filed against his transfer was turned down by the departmental authorities on 30.5.2005. Before this court he challenged his transfer on the plea that he had joined Patna Sadar as Block Dev. Officer on 3.4.2004, i.e. a few days before the appellant joined the block as Circle Officer on 12.4.2004 and, therefore, in terms of the Government policy it was the appellant who should have been shifted from there. What was termed as the Government policy was a letter, dated 8.4.2005 from the Commissioner & Secretary, Department of Rural Development to the Advocate General, Bihar. In that letter it was stated that where-ever two officers were posted in a Block/Anchal, the one who had been there longer but had not completed three years would be allowed to stay so as to complete the normal tenure of three years, and the one who was posted at that station later would be shifted to the vacant post. Needless to say that this so called Government polity was subject to the qualification that it would apply as far as possible. 11. Counsel for the appellant submitted that though in the writ petition filed by respondent no. 4 (CWJC No. 6750 of 2005) the present appellant was impleaded as respondent no. Needless to say that this so called Government polity was subject to the qualification that it would apply as far as possible. 11. Counsel for the appellant submitted that though in the writ petition filed by respondent no. 4 (CWJC No. 6750 of 2005) the present appellant was impleaded as respondent no. 6, it was disposed of, on the first day of its listing without issuing any notice to the appellant or even without calling for a counter affidavit from the State. As a result the court remained unaware that respondent no. 4 (writ petitioner in that case) had a continuous stay at Patna from May, 1995 to April, 2004 and his representation against his transfer to Munger was already rejected by the departmental authorities. Consequently, that writ petition was disposed of by order, dated 9.6.2005 asking respondent no. 4 to first join the transferred post and then to make a representation to the Commissioner & Secretary in the light of the so called Government policy relied upon by him. In the concluding part of the order it was observed as follows: "In the event authorities are satisfied that the petitioner has been transferred from the present place of posting contrary to the policy decision and is otherwise not inconvenient to continue him at his present place of posting his representation should be considered favourably." 12. On the strength of the order of this court respondent no. 4 made a representation. It yielded the desired result and he got the posting that he wanted. By notification no. 3673. dated 17.6.2005 the earlier notification, dated 2.5.2005 transferring him to Munger was cancelled and he was directed to continue as the Block Dev. Officer, Patna Sadar, Patna. 13. Now it was the turn of the appellant-petitioner to come to this court. He filed CWJC No. 7074 of 2005 challenging the notification no. 3673, dated 17.6.2005 by which respondent no. 4 was directed to continue as Block Dev. Officer, Patna Sadar, Patna. Initially by an interim order passed in the writ petition the operation of the notification, dated 17.6.2005 was stayed and the Dist. Magistrate, Patna was directed to relieve respondent no. 4 immediately with a further direction to him to join at Munger. In pursuance of the interim direction respondent no. 4 was relieved from Patna Sadar on 2.7.2005. Initially by an interim order passed in the writ petition the operation of the notification, dated 17.6.2005 was stayed and the Dist. Magistrate, Patna was directed to relieve respondent no. 4 immediately with a further direction to him to join at Munger. In pursuance of the interim direction respondent no. 4 was relieved from Patna Sadar on 2.7.2005. But finally the learned Single Judge disposed of the writ petition with a direction to the concerned authorities to pass fresh order of postings for the appellant-petitioner and respondent no. 4 and to post them outside the districts of Patna and Vaishali. 14. These are all the facts of the case in brief. 15. Counsel for the appellant-petitioner as already noted above contended that the learned Single Judge passed the order in a very general way with no reference to the actual facts of the case. 16. Mr. Rajeshwar Prasad, G.P. VI simply stated that the order of the learned Single Judge was passed in presence of the Secretary, Department of Rural Development and the concerned authorities in the State Government were legally bound to follow the direction of the court. He studiously avoided taking any stand in support or in opposition of the order coming under appeal. 17. Counsel appearing for respondent no. 4 did not try to controvert the facts that are noted above. He, however, submitted that the writ petition filed by the appellant was mis-conceived and it was not maintainable. Learned counsel submitted that the appellant was posted as Circle Officer and respondent no. 4 as Block Dev. Officer, Patna Sadar. By notification, dated 2.5.2005 respondent no. 4 was transferred to Munger as Block Dev. Officer and by the later notification, dated 17.6.2005 his transfer to Munger was cancelled and he was retained as Block Dev. Officer, Patna Sadar. According to him, this left the appellant petitioner un-affected and he had no cause of action to maintain the writ petition. The submission is plainly untenable in view of the Government decision that the functions and duties of both the officers would vest in the same officer and as a matter of fact the appellant petitioner was also given the charge of Block Dev. Officer, Patna Sadar and as a consequence of the impugned notification dated 17.6.2005, steps were initiated for shifting him from Patna. A letter, dated 23.6.2005 was issued in that regard. Officer, Patna Sadar and as a consequence of the impugned notification dated 17.6.2005, steps were initiated for shifting him from Patna. A letter, dated 23.6.2005 was issued in that regard. In the writ petition the appellant-petitioner filed I.A. No. 2951 of 2005 bringing on record that letter and seeking the courts permission to challenge it too. I, therefore, find no substance in the submission that the appellant-petitioner was not affected by the impugned notification, dated 17.6.2005 and he had no cause of action to maintain the writ petition. 18. On hearing counsel for the parties at some length and on going through the materials on record, I am plainly of the view that in the matter of postings the appellant-petitioner and respondent no. 4 are not comparable and the learned Single Judge bracketted them together and put them at par because the relevant facts were not properly brought to his notice. 19. I am further of the view that in the facts and circumstances of the case a direction to the Government authorities to post both the appellant-petitioner and respondent no. 4 at places outside the districts of Patna and Vaishali was uncalled for. A direction of this kind only expresses the courts indignation and anger over a given set of facts. Beyond that it does not achieve anything. The maladministration in the Government can be set right if there is a will from within. Any ad hoc and sporadic directions by the court cannot cure the ills of administration. Just as a direction to hear two old cases out of turn will not clear the courts back log and will not solve the problem of delayed justice. 20. In another case in C.W.J.C. No. 8351 of 1990, in a similar fact situation a Bench of this court found that both the writ petitioner and the private respondent of that case were trying to stay on a particular post in Forbisganj on the strength of recommendations of political leaders. In that situation the Bench gave a similar direction to the one in the case in hand vide order, dated 21.3.1991. The relevant portion of the order is as follows: "Without considering the merit of the case, we feel that in the interest of justice, both should be directed to be placed outside Forbisganj. In that situation the Bench gave a similar direction to the one in the case in hand vide order, dated 21.3.1991. The relevant portion of the order is as follows: "Without considering the merit of the case, we feel that in the interest of justice, both should be directed to be placed outside Forbisganj. The Director Secondary Education, Human Resource DevelopmentDepartment, Government of Bihar shall take immediate steps in transferring both the petitioner and respondent no. 5 out-side Forbisganj." 21. It is significant to note that the Supreme Court did not approve of the direction and in a brief order, dated 10.5.1991 passed in Civil Appeal No. 2451 of 1991 [arising out of S.L.R (Civil) No. 8690 of 1991] observed and directed as follows: "The High Court has directed the transfer of the appellant and respondent no. 5 outside the district. It seems to us that the High Court was in error in making the order. The High Court ought not to have made the order in question. We allow the appeal and direct the High Court to dispose of the matter afresh and in accordance with law." 22. Coming now to the Government policy relied upon by respondent no. 4 it has to be observed that the scheme of transfer as envisaged in the letter of the Commissioner & Secretary, dated 8.4.2005 is a reasonable, well-meaning and well-intended scheme. It is, however, not statutory in nature and it could not be rigidly applied in all cases regardless of the other relevant facts and circumstances. The safeguard to this effect is in the scheme itself that begins with the qualification that it should be applied as far as possible. In any event it cannot be applied with the colourable intent to perpetrate someones stay at a particular place of posting many times beyond the normal period. I have, therefore, no hesitation in holding that the scheme has no application in the case of respondent no. 4 and he cannot take its advantage in order to continue as Block Dev. Officer, Patna Sadar, Patna. 23. In the light of the aforesaid findings, I am unable to sustain the order passed by learned Single Judge. It is accordingly set aside. As a consequence of the order under appeal being set aside all actions taken or orders passed on that basis also fall to the ground. Officer, Patna Sadar, Patna. 23. In the light of the aforesaid findings, I am unable to sustain the order passed by learned Single Judge. It is accordingly set aside. As a consequence of the order under appeal being set aside all actions taken or orders passed on that basis also fall to the ground. Also set aside is the notification, dated 17.6.2005 by which respondent no. 4 was directed to continue as Block Dev. Officer, Patna Sadar, Patna. 24. The concerned authorities are directed to issue fresh order(s) of postings for the appellant-petitioner and respondent no. 4 in the light of the observations made in this judgment. In passing the order the concerned authorities shall take into consideration the relevant rules, the Government norms and the earlier places of postings of both the appellant and respondent no. 4. In passing the order(s) of their postings the authorities shall primarily consider the best interests of the departmental work. The authorities shall not be fettered by any other direction or any subjective considerations. Fresh orders with regard to the appellant- petitioner and respondent no. 4 should be issued as early as possible and in any case within two weeks from today. 25. In the result, this appeal is allowed to the extent indicated above but with no order as to costs. 26. I agree.