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Madhya Pradesh High Court · body

2015 DIGILAW 918 (MP)

Ashok Singh Chauhan v. State of M. P.

2015-09-02

SUJOY PAUL

body2015
ORDER 1. With the consent, finally heard. 2. This is second visit of the petitioner before this Court against the order dated 15.6.2015, whereby, he was transferred to Chanderi (Ashok Nagar). The petitioner earlier filed Writ Petition No.3758/2015 which was disposed of by this Court on 24.6.2015. This Court directed the petitioner to prefer a representation and in turn directed the respondents to decide the same, in accordance with law. The said representation is rejected by impugned order dated 12.8.2015. 3. Shri D.P. Singh submits that in obedience of the order passed in the first round, petitioner preferred a detailed representation, Annexure P-10, dated 27.6.2015. Amongst other grounds, he raised ground No.4 which is related with rule 24 of National Cadet Corps Rules, 1948. By taking this Court to the said statutory rule, it is contended that said statutory protection must be extended in favour of the petitioner. The authority while deciding the representation has not dealt with the said aspect. 4. Prayer is opposed by Shri Amit Bansal by contending that reasoned order has been passed. 5. I have heard learned counsel for the parties and perused the record. 6. Rule 24 of the National Cadet Corps Rules, 1948 reads as under :- “24. Transfer – (1) The transfer to another unit of the Senior Division of an officer who has been posted to a unit of that Division shall be authorized by the Ministry of Defence, Government of India. (2) If the proposed transfer is to a unit of the Senior Division in another State, the Ministry of Defence, Government of India, shall consult the State Government in whose jurisdiction the unit is located, and obtain their concurrence to the transfer. (3) The transfer to another unit of the Junior Division of an officer posted to a unit of that Division shall be authorized by the State Government. (4) An officer of the Senior Division who desires to be transferred shall submit his application in writing, through the Principal of the college, to the Vice-Chancellor of the University or to the Director of Public Instruction as may be specified in his behalf by the State Government and shall, in the application, state his reasons for desiring the transfer and unit to which he desires to be transferred. The Vice-Chancellor or the Director of Public Instruction shall then forward the same through the State Government to the Ministry of Defence, Government of India, together with his recommendations. (5) An officer of the Junior Division, who desires to be transferred shall submit his application in writing through the Headmaster, to the Director of Public Instruction and shall, in the application, state his reasons for desiring the transfer and the unit to which he desires to be transferred.” 7. A plain reading of Annexure P-3 makes it clear that Rules are made in exercise of powers conferred by section 13 of the National Cadet Corps Act, 1948. Thus, the Rules appear to be statutory in nature. 8. In the opinion of this Court, when petitioner relied on said rule in his representation, it was obligatory on the part of the respondent No.3 to decide his representation after taking into account the said rule. In other words, all contention raised by the petitioner in his representation should have been dealt with. The impugned order does not contain any reason as to why ground No.4 in the said representation did not suit the respondents. The respondents have not assigned any reason as to why ground No.4 cannot be applied in the case of the petitioner. Reasons are heartbeat of conclusion. In absence of reasons, conclusion cannot sustain judicial scrutiny. 9. In Kranti Associates Private Limited v. Masood Ahmed Khan [(2010) 9 SCC 496], the apex Court emphasized the need to assign reasons. Relevant portion of the said judgment reads as under :- “(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior Courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system. (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process” 10. The impugned order has become vulnerable because there is no application of mind on ground No.4 of the representation. 11. Resultantly, the order dated 12.8.2015 is set aside. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process” 10. The impugned order has become vulnerable because there is no application of mind on ground No.4 of the representation. 11. Resultantly, the order dated 12.8.2015 is set aside. The matter is remitted back before respondent No.3 to re-consider the representation and pass a reasoned order, in accordance with law. 12. Needless to mention that till decision is taken petitioner shall continue at the present place of posting. 13. Petition is allowed to the extent indicated above. No cost.