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2005 DIGILAW 802 (PAT)

Ram Naresh Roy v. State Of Bihar

2005-09-07

S.K.KATRIAR

body2005
Judgment 1. Heard Mr. Rama Kant Sharma for the petitioner, Mr. S. Raza Ahmad, Government Pleader No. II for respondent nos. 1 to 3, and Mr. Chittaranjan Sinha for respondent no. 4 (Satyendra Kumar Choud-hary). This writ petition is directed against that part of the order bearina Notification No. 2-Stha./P1-313/2005-4341 (S) Patna, dated 30.6.2005 (Annexure-1), whereby the petitioner has been transferred from the post of Assistant Engineer, Road Construction Department, Road Subdivision, Danapur to Rajauli, in the capacity of Assistant Engineer, National High Way Subdivision, Rajauli, and respondent no. 4 has been transferred from the post of Assistant Engineer, Building Construction Subdivision No. 3, Patna, to the aforesaid position of the petitioner at Danapur. 2. According to the writ petition, the petitioner on transfer from the earlier posting had joined his aforesaid position in June 2003, and has remained there up to 30.6.2005 i.e. till the issuance of the impugned order. The respondent authorities in the Department of Road Construction issued notification No. 2-Stha./P1-308/2005- 4339(S) Patna, dated 30.6.2005 (Annexure-2), whereby as many as 176 Assistant Engineers were transferred from one Engineering Department(s) to another Department(s). Neither the petitioner nor respondent no. 4 figured in the said notification dated 30.6.2005 (Annexure-2), for the reason that the petitioner had completed two years in Danapur, and respondent no. 4 had completed six months in Patna. It is further stated in the writ petition that Subhash Prasad Yadav, a Member of the Rajya Sabha, addressed his letter dated 26.5.2005 (Annexure-4), to the Secretary, Building Construction Department, Bihar, Patna, recommending transfer and posting of respondent no. 4 from his aforesaid posting in Patna to the aforesaid position at Danapur, and one more person. That this led to the transfer of respondent no. 4 from Patna to Danapur, as a result of which the petitioner was transferred from Danapur to Rajauli. Hence this writ petition. 3. Respondent nos.1 to 3, and respondent no. 4, have filed their separate counter affidavits/supplementary counter affidavits and have supported the impugned action. 4. While assailing the validity of the impugned action, learned counsel for the petitioner submits that the impugned order is obviously not in public interest nor in exigencies of business. The petitioner has been elbowed out from Danapur pre-ma-turely to accommodate respondent no. 4, have filed their separate counter affidavits/supplementary counter affidavits and have supported the impugned action. 4. While assailing the validity of the impugned action, learned counsel for the petitioner submits that the impugned order is obviously not in public interest nor in exigencies of business. The petitioner has been elbowed out from Danapur pre-ma-turely to accommodate respondent no. 4 in his position, and that too at the behest of a Member of the Rajya Sabha, otherwise there was neither the occasion to transfer the petitioner nor respondent no. 4 who have not completed their tenures. He relies on the Division Bench judgment of this Court reported in 1985 PLJR 931 (Sri Abdul Muttalib vs. State of Bihar and others.) 5. Learned counsel for respondent no. 4 submits that the letter of the Member of the Rajya Sabha is a got-up document for the purpose of this case because it was addressed to the Building Construction Department, whereas the impugned order has been passed by the Road Construction Department. He next submits that the plea of mala fide cannot be entertained in the absence of Subhash Prasad Yadav. He relies on the order of a Division Bench of this Court reported in 2002(4) PLJR 703 (Dharam Deo Singh vs. Union of India and others). Relying on the judgment of the Supreme Court in the case of Mrs. Shitpi Bose and others vs. State of Bihar and others ( AIR 1991 S.C. 532 ), he submits that the present writ petition is not maintainable. The petitioner should have instead approached the higher authorities in the department. He lastly submits that respondent no. 4 has already joined his present position on 15.7.2005. 6. Learned Government Pleader No. II has submitted that the impugned order of transfer has been passed by the Establishment Committee comprising five persons, and is in the exigencies of business. The State Government admits receipt of the letter but was not acted upon. 7. I have perused the materials on record and considered the submissions of learned counsel for the parties. Learned Government Pleader No. II has produced the original file maintained by the State Government in routine course of business with respect to the impugned order of transfers, and has been allowed to be perused by learned counsel for the parties. He has also produced photo copies of some documents with copies served on learned counsel for the parties. Learned Government Pleader No. II has produced the original file maintained by the State Government in routine course of business with respect to the impugned order of transfers, and has been allowed to be perused by learned counsel for the parties. He has also produced photo copies of some documents with copies served on learned counsel for the parties. The issue of overwhelming significance is that the petitioner had joined the services of the Bihar Government in 1987 as an Assistant Engineer in the Road Construction Department, was posted at Ranchi, and continued up to 1988. He was transferred to the Headquarters of the Road Construction Department, Patna, in 1988 and has ever since remained in Patna in different wings of the Engineering Departments of the Bihar Government except a brief period of six months at Muzaffarpur. He was transferred from Patna to Road Division No. I, Muzaffarpur, which he had joined on 15.1.2002, and remained there till 24.6.2003. He was transferred to the Road Construction Department, Road Subdivision, Danapur, by order dated 21.6.2003. In other words, the admitted position is that the petitioner has remained in Patna for a total period of sixteen years out of a total length of eighteen years of service so far. The petitioner is obviously a great favourite of the functionaries of the State Government and has, therefore, managed to remain in Patna for such an abnormally long length of time defying all administrative norms. His powers of machination appear to be of an abnormally high order, and the State administration appears to be at his beck and call. Woe betide the massive faith reposed in those in charge of government of this State. Therefore, no exception can be taken to the petitioners transfer to Rajauli even though he has completed only two years of service at Danapur. In that view of the matter, I do not feel the necessity of examining the remaining questions raised by the petitioner. 8. This, however, does not conclude matters. Respondent no. 4 was on the earlier occasion transferred from one section of the Building Construction Department in Patna to another section of the same department in Patna by Notification dated 17.12.2004 (Annexure-6 to the second Supplementary Affidavit of the petitioner), and has by the impugned order managed his transfer to Danapur. 8. This, however, does not conclude matters. Respondent no. 4 was on the earlier occasion transferred from one section of the Building Construction Department in Patna to another section of the same department in Patna by Notification dated 17.12.2004 (Annexure-6 to the second Supplementary Affidavit of the petitioner), and has by the impugned order managed his transfer to Danapur. The aforesaid letter of the Member of the Rajya Sabha dated 26.5.2005, recommending transfer of respondent no. 4 to Danapur, seems to have escaped the attention of the respondent authorities while carrying out the aforesaid chain of transfers dated 30.6.2005, whereby 176 Assistant Engineers were transferred from one Department to another Department. The concerned file produced by the learned Government Pleader No. II dealing with the impugned order of transfer shows that seven Assistant Engineers have been transferred. The file started at the level of the Deputy Secretary on 30.6.2005 had passed through a number of functionaries including the Adviser (Road Construction), and the entire process including issuance of the notification was completed during the course of the day. The extraordinary speed with which the action was taken speaks volumes as to the pressure exerted by the letter of the Member of the Rajya Sabha. Except making a mechanical recital by the Deputy Secretary in the beginning of his note that the transfer was being proposed from the administrative angle as well as in exigencies of business, no statement is to be found in the original file as to what it really means in this context, nor a word of it has been explained in the counter affidavits. The respondent authorities have admitted receipt of the letter but have denied its effect on the impugned order. Paragraph-6 of the supplementary counter affidavits of respondent nos. 1 to 3 is reproduced hereinbelow: "That with regard to the averments made in paras 3 and 4 of the reply to the counter affidavit it is stated that the said letter of Member of Parliament addressed to Secretary, Building Construction Department was received in the Road Construction Department inadvertently. The letter of Member of Parliament is dated 26.5.05. The first establishment committee meeting was held on 28.6.05. Accordingly, transfer order of 176 Assistant Engineers was issued after obtaining the approval of Advisor on 30.6.05. The letter of Member of Parliament is dated 26.5.05. The first establishment committee meeting was held on 28.6.05. Accordingly, transfer order of 176 Assistant Engineers was issued after obtaining the approval of Advisor on 30.6.05. Further, it is stated that on the date of above meeting the said letter was already in the office but no cognizance was taken of that letter." No attempt has been made to explain the need and the occasion to issue the impugned order in a situation when 176 Assistant Engineers had been transferred by notification dated 30.6.2005. (Annexure-2). The respondent authorities have obviously suppressed the influence exercised by the Member of the Rajya Sabha and the Government has made a brazen attempt to confront this Court with its conclusion that the impugned order of transfer is in the interest of administration and is in the exigencies of work. 9. Law is well settled that in case a challenge is made to an administrative action, it becomes the duty of the respondent authorities to place the relevant materials before the Court leading to the impugned order. The tendency of the Bihar Government and its functionaries, which has become habitual, to confront this Court with its conclusions, cannot be countenanced, otherwise the power of judicial review conferred on this Court by the Constitution of India shall be rendered nugatory, and the Government and its functionaries would become the arbiter of the impugned action which is constitutionally impermissible. Reference may be made to the judgment of the Delhi High Court in the case of Prem Parveen vs. Union of India and others [1973(2) Vol. 9 Services Law Reporter 659], wherein a similar situation had arisen. The petitioners transfer was challenged before the Delhi High Court which was with the professed object of exigency of business, was a routine transfer, and was a bona fide order. In spite of opportunities afforded to the respondent authorities, they refused to disclose the justification as to how the petitioners transfer was in the exigencies of business. The following observations in para-8 of the judgment are illuminating: "...Mr. Chadha however expressed his inability to place any other record before me and maintained that as respondents have stated in the return that the transfer has been made in the exigency of service, this was sufficient material to show that the action was bona fide. Stated so broadly this argument cannot be accepted. Chadha however expressed his inability to place any other record before me and maintained that as respondents have stated in the return that the transfer has been made in the exigency of service, this was sufficient material to show that the action was bona fide. Stated so broadly this argument cannot be accepted. This argument assumes that just because the government has stated that the transfer was bona fide, it is an end of the matter, and the same cannot be examined by the court to determine for itself whether the order was bona fide or not. This line of defence has been rejected by their Lordships of the Supreme Court in Barium Chemicals Ltd. and another vs. Company Law Board and others (A.I.R. 1967 Supreme Court 295) in the following words: "ft is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion of certain definiteness." So I must reject the argument that it is not incumbent on the Government to place full materials before the court when a challenge is made to a transfer as being mala fide. In the present case, however, apart from the bare allegation that the transfer was maia fide no other material or details have been placed on record by the petitioner. He has thus not discharged the initial burden on him to show that the transfer was on account of mala fide action of the respondents. In that view, even if the respondents have not given fuller details, the petitioner unfortunately can derive no benefit. I am of the opinion that the petitioner has thus failed to make out a case of mala fide and must, therefore, reject the challenge on this ground." The present case, however, is different in two respects from Prem Parveens case. The present petitioner has discharged his primary onus that the impugned order is based on extraneous considerations and is irrational. Secondly, the respondent authorities have produced the original records relating to impugned order, and have also produced photo copies of a few other documents. 10. The present petitioner has discharged his primary onus that the impugned order is based on extraneous considerations and is irrational. Secondly, the respondent authorities have produced the original records relating to impugned order, and have also produced photo copies of a few other documents. 10. I had the occasion to follow the same in my judgment in the case of Hindeutsch Impex Pvt. Ltd. vs. The State of Bihar and Others [ 2000(2) PLJR 140 ], paragraph 9.1 of which is set out herein-below for the facility of quick reference: "9.1 This Court expresses its strong displeasure on the approach of the respondent authorities in confronting this Court with their conclusion, rather than making a sincere effort to justify their action by placing full materials before the Court enabling the Court to reach its own conclusions. Reference may be made to the judgments reported in 1973(2) S.L.R. 659 (Prem Praveen vs. Union of India, as well as 1980(1) S.L.R. 788 (P.C. Saxena vs. State of M.P.). This Court is thus not convinced about the mode and manner in which the respondent authorities have reached the conclusion which is unsupported by cogent" logic. In fact, the Court gets an impression that the respondent authorities were in an undue anxiety to reject the petitioners claim, providing only an apology for reasoning for the reason that it was faced with the order dated 19.1.96 of this Court (Annexure-15)". it would bear repetition that except the formal denial in the counter affidavits of the respondent authorities, no effort at all has been made to explain the 4,0i*jR?ci ttct u^iKHpicb c£fecb >i" in a situation when the transfer of both the petitioner as well as respondent no. 4 is premature, and the M.Ps. letter is on record. This Court rejects the Governments conclusion of self certification and declares the impugned action to be premature, an act of grave favouritism, brought about by external influence, and wholly devoid of even semblance of "cbl4fed t& l^lkHPW ^fegfar". It is indeed a matter of infinite shame for the State Government that it has allowed its administration to be at the beck and call of such petty functionaries as Assistant Engineers. Such unscrupulous persons are eating into the vitals of our polity. 11. I must at this stage deal with the statement made in paragraph 7 of the supplementary counter affidavit of respondent nos. Such unscrupulous persons are eating into the vitals of our polity. 11. I must at this stage deal with the statement made in paragraph 7 of the supplementary counter affidavit of respondent nos. 1 to 3 and is reproduced hereinbelow: "7. That the averments made in para 3 of reply to the counter affidavits are matter of record to be seen in light of the averments already made in para 6 above. However, it is further stated that as per the Resolution dated 25.10.1980 the transfer posting are generally given effect in the month of May-June and November-December and as such the transfer of the petitioner has been made as per routine matter." This puerile statement is yet another brazen attempt to mislead this Court. The transfer of the petitioner as well as respondent no. 4 is pre mature, having completed only two years and a mere six months respectively. There was no occasion to transfer them. The plea of mala fides advanced by the petitioner is further reinforced. 12. I do not feel the necessity to consider the issue raised at the Bar whether or not a Member of the Rajya Sabha is entitled to recommend to the Government for transfer of a public servant. I have in substance confined myself to the question whether or not the transfers of respondent no. 4 and the petitioner are in the exigencies of business. I have no manner of doubt that the petitioner has been transferred from Danapur to Rajauli to accommodate respondent no. 4 in his place at Danapur, which is manifest from the letter of the Member of the Rajya Sabha. A similar situation had arisen before the Calcutta High Court in the case of Dr. (Smt.) Pushpika Chatterjee vs. The State of West Bengal, reported in 1972 Service Law Reporter 911, paragraphs 13 and 17 of which are relevant in the present context and are set out hereinbelow for the facility of quick reference: "13. It is no doubt true that orders of transfer of Government servants like any other Government administrative or executive order are passed invariably for administrative purposes or in public interest. Such order normally are outside the purview of examination by courts of law. It is no doubt true that orders of transfer of Government servants like any other Government administrative or executive order are passed invariably for administrative purposes or in public interest. Such order normally are outside the purview of examination by courts of law. It is also the law, as observed by this Court in (1) Mihir Kumar Sarkar vs. State of West Bengal, 75 C.W.N. 831 (46), that an executive decision or action or an administrative decision is liable to be struck down if it is used malafide or for a collateral purpose." "17. Considering all this it appears to me that the order transferring the petitioner to Kurseong with which we are concerned here, was not for public interest as stated in the affidavit-in-opposi-tion nor it was for administrative purposes as has been submitted. It is patently for the purpose of retaining Dr. Mukherjee at the Siiiguri Hospital. The order therefore is for collateral purpose and is malafide and cannot be sustained. I am of the opinion that this is a fit case where the order of transfer should be interfered with even though no civil or evil consequences would follow from such order. As against the personal allegations made by the petitioner against the officers of the Medical Directorate I think I should refrain from dealing with such allegations as it is not necessary to consider the same. I am also not relying on the circular enunciating the principles of postings and transfers of Medical Officer as it does not appear to have been issued by statutory authority and thus contain merely executive instructions." 13. Respondent no. 4 appears to be a great achiever in life. He joined the services of the Bihar Government on 7.5.1997, and has admittedly continued to remain in Patna and Danapur ever since then covering a period of eight years. He was in one section of the Building Construction Department in Patna up to 17.12.2004, and was transferred to another section of the same department in Patna by the aforesaid notification dated 17.12.2004 (Annexure-6 to the second supplementary affidavit of the petitioner), has beervable to garner support of a Member of the Rajya Sabha and managed his transfer to Danapur by the impugned order in six months time. As stated hereinabove, the speed with which the transfer proposal of respondent no. As stated hereinabove, the speed with which the transfer proposal of respondent no. 4 from Patna to Danapur was cleared speaks volumes of his capacity to manage extra-constitutional support and the extraordinary influence exercised by the Member of Rajya Sabha. Let there be no favourites in the State Government actuated by ulterior motives and devoid of public interest. This Court is not attempting to interfere with the Governments administrative powers of transfer and deployment of its work force, but is surely keen to stamp mala fide acts, and is trying to promote justice. The respondent authorities must carry out the transfer policy with uniformity and sense of justice. Let no impression be created that favourites thriving on machinations alone would be posted in the important places in Bihar. 14. Let the State Government pass a fresh order of transfer with respect to respondent no. 4 in the light of the discussions and the observations made hereinabove, the relevant rules, the Government norms, and the earlier places of postings of respondent no. 4. The Chief Secretary may also initiate disciplinary action against him for managing external influence on the State Government for his transfer. Let the orders be passed within a period of two weeks from today. 15. This writ petition is accordingly disposed of. Let copy of this order be handed over to Mr. S. Raza Ahmad, learned Government Pleader No. II, for the needful, and also to be forwarded to the Chief Secretary.