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2014 DIGILAW 893 (GAU)

Pragya Nanda Das v. State of Assam

2014-09-19

UJJAL BHUYAN

body2014
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. D.K. Das, learned counsel for the petitioner and Mr. B. Goswami, learned Standing Counsel, Water Resources Department, Assam. Also heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. F.U. Borbhuiya, learned counsel for respondent No. 3. None has appeared for respondent No. 4. By way of this petition under Article 226 of the Constitution of India, petitioner has challenged the legality and validity of the notification dated 23.07.2014, issued by the Secretary to the Govt. of Assam, Water Resources Department (Annexure-C to the writ petition), whereby respondent No. 3 has been transferred and posted as Executive Engineer, Silchar Water Resources Division, Silchar vice the petitioner, who has been transferred and posted in place of respondent No. 3 as Deputy Director (Planning) in the office of the Addl. Chief Engineer, Cachar & Hills, Water Resources Department, Silchar. 2. As stated above, petitioner is serving in the rank of Executive Engineer in the Water Resources Department, Govt, of Assam. Challenge to the transfer order has been made on the ground that the same has not been issued in the public interest, but is a collusive product of respondent Nos. 3 & 4, as a lot of funds have been presently released to the Silchar Water Resources Division for execution of various projects. It is contended that with an eye on the huge funds that are being released, impugned transfer is being orchestrated to remove the petitioner from his posting and to post respondent No. 3 in his place. In other words, the allegation is that there is mala fide exercise of power while issuing the impugned order. It is the further contention of the petitioner that there is no departmental proposal for transfer of the petitioner, who was transferred to his present posting at Silchar less than 1 year ago. No approval of the Chief Minister has also been obtained as per applicable Govt, guidelines. 3. This Court by order dated 30.07.2014 had issued notice and in the meanwhile, stayed the impugned notification dated 23.07.2014. 4. Respondent No. 2 in his affidavit has stated that Silchar Water Resources Division comprises of 8 Assembly segments. Role of Executive Engineer of Silchar Water Resources Division is, therefore, quite crucial. 3. This Court by order dated 30.07.2014 had issued notice and in the meanwhile, stayed the impugned notification dated 23.07.2014. 4. Respondent No. 2 in his affidavit has stated that Silchar Water Resources Division comprises of 8 Assembly segments. Role of Executive Engineer of Silchar Water Resources Division is, therefore, quite crucial. Minister of State (Ind.), Excise and Sports & Youth Welfare, who is an MLA from Barak Valley, and another MLA of Barak Valley had complained in writing against the petitioner before the Chief Minister, who made an endorsement on 12.07.2014. Accordingly, proposal to transfer the petitioner was made which received the approval of the Chief Minister on 23.07.2014. Public representation was also received against the petitioner. Transfer proposal of the petitioner was initiated not because of interference of the two MLAs, but due to the direction of the Chief Minister. By the impugned order, petitioner has been transferred from the post of Executive Engineer, Silchar Water Resources Division to the post of Deputy Director (Planning) in the office of Addl. Chief Engineer, Cachar & Hills. Both the offices are situated in Silchar town. The two posts are of the same cadre having the same pay and allowances. It is however specifically stated by respondent No. 2 that on a representation made by the wife of the petitioner before the Chief Minister requesting not to transfer him, the matter was processed and, ultimately, the Minister, Water Resources Department asked respondent No. 2, vide his note dated 01.08.2014 to stay the transfer of the petitioner till further instruction. In the meanwhile, interim order passed by this Court on 30.07.2014 was received in the office of respondent No. 2, whereafter formal notification was issued on 02.08.2014 staying the operation of the impugned order. Respondent No. 2 has contended that there is no infirmity in the issuance of the impugned order, which was not issued on the interference of any political leader or MLA, but on the basis of the direction of the Chief Minister and the Departmental Minister. Petitioner has not been transferred to any distant place. 5. Respondent No. 3 has also filed affidavit. It is stated that impugned transfer was made in the public interest with the approval of the Chief Minister after observing necessary official procedure. Petitioner has not been transferred to any distant place. 5. Respondent No. 3 has also filed affidavit. It is stated that impugned transfer was made in the public interest with the approval of the Chief Minister after observing necessary official procedure. It is further stated that wife of the petitioner had also submitted a representation through the MLA of Dholai Constituency, and as per endorsement of the Chief Minister, the Departmental Minister asked the departmental authorities on 01.08.2014 to stay the order of transfer till further instruction. Allegation made by the petitioner that the impugned order has been issued because of the pressure exerted by local ML As has been denied. It is contended that performance of the petitioner has been very disappointing, which has led to public resentment seeking his transfer from Silchar Water Resources Division. Though transfer has been made, there is no change of station. Both the stations are in Silchar town. 6. Mr. Das, learned counsel for the petitioner has submitted that from the pleadings exchanged, it is now quite evident that petitioner has not been transferred in the exigencies of service, but because of the wholly unjustified and unwarranted interference of respondent No. 4 and the Sports Minister. While conceding that Ministers and MLAs being public representatives do have a role in conveying public grievances, thereby seeking transfer and posting of Govt, officials, he, however, submits that it is the departmental authority, which has to take the final decision based on administrative exigency and public interest. In the present case, there is nothing on record to show that the departmental authorities had made an assessment of administrative exigency and public interest to warrant transfer of the petitioner, rather it is a blatant case of political interference by MLAs and Ministers who are in no way connected with the functioning of the Water Resources Department. 7. Mr. B. Goswami, learned Standing Counsel, Water Resources Department has produced the record. He submits that the Department has issued the impugned order not because of interference of MLAs and Ministers, but because of the endorsement of the Chief Minister on the grievance expressed by the public representatives against the petitioner and who had sought his transfer. All procedures were followed while issuing the impugned transfer order. He submits that the Department has issued the impugned order not because of interference of MLAs and Ministers, but because of the endorsement of the Chief Minister on the grievance expressed by the public representatives against the petitioner and who had sought his transfer. All procedures were followed while issuing the impugned transfer order. He, however, fairly admits that as a matter of fact, on a representation submitted by the wife of the petitioner, which had the endorsement of the Chief Minister, the Departmental Minister had put up a note on 01.08.2014 staying the impugned transfer order until further instruction, independent of the stay order passed by this Court on 30.07.2014. 8. Mr. H.R.A. Choudhury, learned Senior Counsel for the respondent No. 3 vehemently opposed the submissions made by Mr. Das, learned counsel for the petitioner. He submits that transfer is an incident of service and a Govt, official is duty bound to comply with orders of transfer of the Govt He further submits that there is widespread grievance against the functioning of the petitioner because of which there were public complaints against the petitioner. Petitioner has not been transferred to any far flung or distant place; he has been transferred from one office to another office in the same town i.e., Silchar. Learned Senior Counsel has placed reliance on the following decisions of the Apex Court as well as of this Court to contend that interference in matters of transfer and posting in exercise of power of judicial review is not permissible, except on limited ground of mala fide and violation of statutory rules, neither of which have been infringed in the present case and that request of MLA or Minister for transfer would not render a transfer order invalid:-- "i) (2007) 8 SCC 150 (Mohd Masood Ahmed v. State of U.P.), (ii) (2009) 15 SCC 178 (Rajendra Singh v. State of UP), (iii) (2010) 13 SCC 306 (State of Haryana v. Kashmir Singh), (iv) 2003 (I) GIT 530 (State of Assam & Ors. v. Dilip Kumar Das & Anr.), (v) 2004 (3) GLT 295 (Paresh Choudhury v. State of Assam & Ors.), (vi) 2006 (3) GLT 624 (Kalyan Kr. Sarkar v. Alok Kanti Paul Choudhury & Ors.) (v) 2008 (2) GLT 786 (State of Assam v. Ranjit Chandra Barman & Ors.), (vi) 2011 (4) GLT 724 (State of Assam v. Dilip Kumar Sarma & Ors.)." 9. Sarkar v. Alok Kanti Paul Choudhury & Ors.) (v) 2008 (2) GLT 786 (State of Assam v. Ranjit Chandra Barman & Ors.), (vi) 2011 (4) GLT 724 (State of Assam v. Dilip Kumar Sarma & Ors.)." 9. Submissions made by learned counsel for the parties have been considered. I have also perused the record produced by Mr. Goswami, learned Departmental Counsel. 10. It is true that transfer is an incident of service and the administration is the best judge to decide whom to transfer and where to post which officer. Courts would not ordinarily interfere with the orders of transfer unless mala fide is manifest or there is violation of statutory provisions. It is also true that recommendation of an MLA or a Minister, per se, would not render an order of transfer invalid. The decisions relied upon by Mr. Choudhury, learned Senior Counsel, reiterate well recognized legal principles governing law relating to transfer and posting of Government servants. There is no dispute to the propositions laid down in those decisions. 11. Having noticed the legal position, the record produced by the learned Departmental Counsel may now be perused. 12. On 12.07.2014, Anamul Haque, MLA, Sonai and Sri Ajit Singh, Minister of State, Excise, Sports & Youth Welfare, Assam (Anamul Haque signed on 10.07.2014) had put up a joint note before the Chief Minister alleging that petitioner is inefficient and corrupt. Therefore, he should be removed from his present posting as Executive Engineer, Water Resources Division, Silchar and in his place, respondent No. 3 should be posted. Chief Minister made an endorsement on 12.07.2014 asking the Departmental Minister to consider. The Departmental Minister in turn made an endorsement on 15.07.2014 asking the respondent No. 2 to do the needful It was on that basis that a note was prepared by the respondent No. 2 for transfer of the petitioner and respondent No. 3 vice versa. 13. Most interestingly, Sri Ajit Singh, Minister of State puts up another note before the Departmental Minister on 17.07.2014 i.e., just five days after his note to the Chief Minister that petitioner has held the post of Executive Engineer in the Silchar Water Resources Division for only nine months. Departmental Minister was, therefore, requested to allow the petitioner to continue in the said post. He went on to say that his earlier correspondence may be treated as cancelled. Departmental Minister was, therefore, requested to allow the petitioner to continue in the said post. He went on to say that his earlier correspondence may be treated as cancelled. But astonishingly, on the very next day i.e., on 18.07.2014, the said Sri Ajit Singh and Anamul Haque again put up a joint note before the Departmental Minister referring to their earlier note dated 12.07.2014. The Departmental Minister was vehemently requested to remove the petitioner from his present posting and to post respondent No. 3 in his place. It was stated that if the petitioner is allowed to stay at Silchar any longer, it would be detrimental to public interest and no flood management work will be executed at all because of his inefficiency. Surprisingly, Sri Ajit Singh made no reference at all to his note to the Departmental Minister on the previous day (17.07.2014), whereby he had requested retention of the petitioner in the post of Executive Engineer, Silchar Water Resources Division on the ground that he has held the post for only nine months. 14. A complaint is seen in the record which is signed by 8 persons, either as Secretary or as President of certain organizations. Whether it is a co-incidence or not, one cannot say, but the date of the complaint and the date of the first note of Anamul Haque is the same i.e., 10.07.2014. By this complaint, allegations have been made against the petitioner, therefore he should be transferred, and it is stated that their local MLA, Anamul Haque had also raised their grievance on the floor of the Assembly. 15. Interestingly, though the Secretary (respondent No. 2) in his note dated 19.07.2014 referred to the public complaint, but he did not deem it fit to verify the authenticity of the same. None of the 8 organizations appear to be registered bodies and the signatories had also not identified themselves by giving their address or contact telephone numbers. 16. It was in such circumstances that the impugned transfer order dated 23.07.2014 was issued. 17. In the meanwhile, Smti. Gitanjali Das, wife of the petitioner submitted a representation before the Chief Minister on 22.07.2014. She stated that because of vested interest and political pressure, her husband was being transferred though he had worked for only nine months in the present station. 17. In the meanwhile, Smti. Gitanjali Das, wife of the petitioner submitted a representation before the Chief Minister on 22.07.2014. She stated that because of vested interest and political pressure, her husband was being transferred though he had worked for only nine months in the present station. The representation was forwarded by one Sri Girindra Mallik, MLA, Dholai with the endorsement that petitioner is discharging his duties efficiently. The Chief Minister made an endorsement on 23.07.2014 to the Departmental Minister on the body of the said representation that the petitioner should continue. 18. On 24.07.2014, Anamul Haque, MLA, Sonai and Sri Girindra Mallik, MLA, Dholai put up a joint note before the respondent No. 2 with a copy to the Departmental Minister that in the interest of public service, respondent No. 3 may be allowed to hold the charge of Executive Engineer, Silchar Water Resources Division, as he is competent and efficient in comparison to the petitioner. Shockingly, the Secretary was requested not to give effect to the earlier recommendation of Sri Girindra Mallik, MLA in favour of the petitioner. 19. If the above was not enough, Sri Gautam Roy, Minister, PHE then entered the scene. He puts up a note before the Chief Minister on 30.07.2014 that petitioner was given the present posting only nine months back, further stating that petitioner is an efficient and a dynamic officer. Sri Gautam Roy stated that transfer of the petitioner during this flood period is not desirable and that the Department should be instructed not to transfer him at this point of time. 20. Not to be left behind, Smti. Susmita Dev, M.P. wrote to the Water Resources Minister on 29.07.2014 that petitioner is discharging his duties with efficiency and integrity. She stated that since the petitioner is implementing various important projects under her parliamentary constituency, petitioner's transfer order should be cancelled and he should be allowed to work at Silchar for larger interest of the public. 21. The above narration of events indeed portrays a very depressing state of affairs. As has been seen above, the same public representatives had made contradictory requests just within a span of few days, first to transfer the petitioner, then to cancel the transfer and then again to transfer the petitioner. 21. The above narration of events indeed portrays a very depressing state of affairs. As has been seen above, the same public representatives had made contradictory requests just within a span of few days, first to transfer the petitioner, then to cancel the transfer and then again to transfer the petitioner. Then again, one group of MLAs and Minister wants the transfer of the petitioner while another group of Minister and MP wants him to continue. Each one of them professes to be guided by public interest. This is indeed a sorry state of affairs. In this sordid drama, none of the participants have come out unscathed. Departmental Minister and Departmental Secretary seem to have been bombarded with one conflicting request after the other from the public representatives. 22. In the case of Tarlochan Dev Sharma v. State of Punjab & Ors., reported in (2001) 6 SCC 260 , the Hon'ble Supreme Court observed that in the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. It was held as follows:-- "16. In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd. are instructive and apposite. Executive Officers may in exercise of their statutory discretions take into account consideration of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated, we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave it at that and say no more on this issue." 23. Thus having regard to the unusual interest shown by a number of MLAs and MPs and Ministers in the transfer and posting of the petitioner and respondent No. 3 with contradictory position, the impugned order dated 23.07.2014 does not appear at all to be in the exigencies of service or in the public interest The file notings do not indicate that the Department had made any independent assessment of administrative exigency as to warrant transfer of petitioner and respondent No. 3. In such circumstances, Court is of the view that the matter may require reconsideration by the Departmental Secretary. In such circumstances, Court is of the view that the matter may require reconsideration by the Departmental Secretary. Matter is, therefore, remanded back to the respondent No. 2, who shall consider the entire matter about the desirability or otherwise of the transfer and posting of the petitioner and respondent No. 3 as per his own discretion keeping in mind administrative exigency and public interest and without letting any extraneous factors to influence his decision making. Respondent No. 2 shall apply his own mind and act in accordance with law. He shall pass appropriate order(s) within a period of 30 days from the date of receipt of a certified copy of this order. The impugned order dated 23.07.2014 would abide by such decision that may be taken by the respondent No. 2. Till then, the interim order passed on 30.07.2014 shall continue. 24. Writ petition is allowed to the extent indicated above. No costs. Record produced by Mr. B. Goswami, learned Standing Counsel, Water Resources Department is returned back.