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2016 DIGILAW 140 (GAU)

Ghanashyam Nath v. Homeswar Kalita

2016-02-26

HRISHIKESH ROY, MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. Unmistakably, the transfer of an employee belongs to the province of the employer. Juridically speaking, the rule is not to tinker with it; the exception is to set it right if it offends the professed norms reiterated in a catena of decisions of the Apex Court as well as of this Court. We are conscious of the scope of judicial review and of the limited power in interfering with an administrative order, primarily that of a transfer, which would not ordinarily call for interference unless it can be shown to be clearly arbitrary or vitiated by mala fides or there exists infraction of any professed norms or principles governing the transfer. 2. In the case in hand, the transfer order dated 9.10.2015 issued under the hand of the Director of Higher Education, Assam takes centre-stage. However, while deciding the present proceedings, recourse must also be had to an earlier order of transfer dated 27.6.2014 passed by the same authority. The learned Single Judge having set aside and quashed the transfer order dated 9.10.2015, we are made to decide two appeals i.e. W.A. 399/2015 filed by Dr. Ghanashyam Nath and W.A.26/2016 preferred by the State of Assam. Both the appeals being laid on the same premises with challenge made to the judgment and order dated 10.12.2015 in W.P.(C) 6492/2015, as such, both are taken up together for decision by a common order. 3. Dr. Ghanashyam Nath, the appellant in W.A.399/2015, served as the Principal of Gauhati Commerce College (in short GCC). Due to certain untoward incident taking place at GCC on 2.6.2014 leading to a law and order situation involving certain teachers, steps were initiated by the Government in the Higher Education Department for taking action against the section of teachers and for transferring Dr. Nath from GCC. Incidentally, the untoward incident had occurred in the office chamber of the Principal. The eventual fall-out was the issuance of the order dated 27.6.2014 under the hand of the Director of Higher Education (in short DHE), whereby the appellant Dr. Nath was transferred to K. C. Das Commerce College, Guwahati (in short KCDC) in place of the respondent no.1/writ petitioner i.e. Dr. Homeswar Kalita and Dr Kalita was brought in as Principal of GCC. W.P.(C) 3360/2014 was filed by Dr. Nath was transferred to K. C. Das Commerce College, Guwahati (in short KCDC) in place of the respondent no.1/writ petitioner i.e. Dr. Homeswar Kalita and Dr Kalita was brought in as Principal of GCC. W.P.(C) 3360/2014 was filed by Dr. Nath, basically challenging the letter of the DHE dated 20.6.2014 whereby the President of the Governing Body of GCC was informed of the views of the Government for transferring Dr. Nath. An interim order dated 1.7.2014 was passed in W.P.(C)3360/2014 restraining the authorities from passing any consequential order of transfer pursuant to the communication dated 20.6.2014. The ground of challenge was on lack of competency of the DHE to pass the transfer order dated 27.6.2014. However, the said writ petition was withdrawn from file by Dr. Nath on 1.9.2014. 4. Consequent upon withdrawal of the writ petition from file, Dr. Kalita joined at GCC as Principal on 15.9.2014 on the strength of an order dated 4.9.2014 issued by the DHE. 5. As against the transfer order dated 27.6.2014, a representation was made by the wife of Dr. Nath before the Chief Minister of Assam on 2.1.2015. Revocation of the transfer order was sought on grounds that service of Dr. Nath is not transferrable in view of the provisions under the Assam College Employees (Provincialisation) Act, 2005 (in short Act 2005). In addition, it was also represented that she is suffering from breast cancer since 2005 and constant attention of her husband was required to take care of her health. Dr. Nath also made a representation to the DHE on 26.2.2015 for revocation of the transfer order primarily harping upon his status consequent upon exercise of option under Section 3 (d) of the Act 2005. On 8.10.2015 a letter was issued by the Higher Education Department addressed to the DHE, Assam informing the Government’s decision to effect the transfer and posting of Dr. Ghanashyam Nath as Principal of GCC and Dr. Homeswar Kalita as Principal of KCDC. This was followed by the order of transfer dated 9.10.2015 issued by the DHE, which was the subject matter of challenge in WP(C) 6492/2015 instituted by Dr Kalita. 6. The said W.P.(C) 6492/2015 was allowed and the transfer order dated 9.10.2015 was quashed primarily on the grounds that the Departmental Minister imposed his opinion on the Commissioner & Secretary of Higher Education and on the DHE to transfer Dr. Nath from KCDC to GCC. 6. The said W.P.(C) 6492/2015 was allowed and the transfer order dated 9.10.2015 was quashed primarily on the grounds that the Departmental Minister imposed his opinion on the Commissioner & Secretary of Higher Education and on the DHE to transfer Dr. Nath from KCDC to GCC. It was also held that the statutory powers vested with the said authorities stood abdicated and, in fact, it was the Departmental Minister who acted on behalf of the statutory authority. Also, the transfer order dated 9.10.2015 was not issued in normal course and/or in public or administrative interest or in the exigencies of service but the same had been made only to accommodate Dr. Nath for undisclosed reasons. While reaching the conclusion, the learned Single Judge took note of a host of decisions rendered by the Apex Court on the scope of judicial review in matters of transfer and the law governing the transfer of a Government Servant. 7. Mr. M K Choudhury, learned senior counsel representing the appellant Dr. Ghanashyam Nath opens his arguments to say that Dr. Nath is not a government servant and therefore not amenable to the jurisdiction of the DHE. In support, Mr. Choudhury submits that the appellant Dr. Nath had decided to continue in the existing terms and conditions of service by exercising option under Section 3(d) of the Act 2005 and, therefore, his service conditions are governed under the provisions of the Assam Non-Government College Management Rules, 2001 and it is the Governing Body of the College and not the DHE having any say on his conditions of service. The submission, therefore, is that the service of Dr. Nath is not transferrable and, in fact, he could not have been shifted out even by the first transfer order dated 27.6.2014. Supporting the second transfer order dated 9.10.2015, the same is sought to be justified by contending that the first transfer order having been issued by way of a mistake, the same was corrected by the subsequent order dated 9.10.2015, thereby bringing back Dr. Nath to his original post of Principal at GCC. Refuting any haste in issuing the transfer order dated 9.10.2015, it is submitted that the process for curing the mistake had been initiated consequent upon the representation filed by his wife on 2.1.2015. Mr. Choudhury also submits that no grievance could be raised by Dr. Nath to his original post of Principal at GCC. Refuting any haste in issuing the transfer order dated 9.10.2015, it is submitted that the process for curing the mistake had been initiated consequent upon the representation filed by his wife on 2.1.2015. Mr. Choudhury also submits that no grievance could be raised by Dr. Homeswar Kalita as regards any frequency of the transfer orders, in as much as, Dr. Kalita did not question the first transfer order dated 27.6.2014 despite the same having been issued within 20 months from his date of joining as Principal at KCDC. Mr. Choudhury also contends that the issue that had been raised before the learned Single Judge as regards the status of Dr. Nath consequent upon the exercise of option under Section 3(d), was left totally unanswered. On the scope of judicial review of transfer and limited power of judicial interference, Mr. Choudhury placed reliance in the case of Mohd. Masood Ahmad v. State of U.P. and others reported in (2007) 8 SCC 150 and in State of Assam v. Ranjit Chandra Barman, reported in 2008 (2) GLT 786. 8. In respect of the connected appeal i.e. WA 26/2016, Mr. M Choudhury, learned counsel representing the Higher Education Department submits that the transfer order dated 9.10.2015 do not suffer from any infirmity. It is contended that the said transfer order dated 9.10.2015 was initiated pursuant to the representation made by the wife of Mr. Nath as against the first order of transfer dated 27.6.2014. In the said representation it was expressed that the service of her husband was not transferrable in view of the fact that her husband had voluntarily opted out of provincialisation of his service in terms of the provisions under the Act 2005. The said representation also expressed that displacement of her husband by way of transfer would cause difficulties as she required constant attention of her husband to tend to her medical problems. Mr. Choudhury submits that for the fact that service of Dr. Nath was not transferrable, as such, the same necessitated revoking of the transfer order. The further contention of Mr. Choudhury is that the findings of the learned Single Judge to the extent that the orders dated 24.4.2015 and 3.5.2015 of the Departmental Minister do not disclose any reason towards effecting the transfer order dated 9.10.2015, is an incorrect finding and not borne out of the records. The further contention of Mr. Choudhury is that the findings of the learned Single Judge to the extent that the orders dated 24.4.2015 and 3.5.2015 of the Departmental Minister do not disclose any reason towards effecting the transfer order dated 9.10.2015, is an incorrect finding and not borne out of the records. Also, there was no basis on which the learned Single Judge could hold that the transfer order had been passed only with a view to accommodate Mr. Nath. It is not a case that the Commissioner and Secretary of Higher Education Department as well as the DHE, Assam had abdicated their statutory duties and had submitted to the jurisdiction of the Departmental Minister. In the same breath, Mr. Choudhury submits that even if Dr. Nath had been transferred at the instance of the Departmental Minister, the same cannot be a valid ground of challenge and to this end relies upon the decision in State of Assam v. Dilip Kumar Sarma and others, reported in 2011 (4) GLT 724. Taking it further, Mr. Choudhury submits that the respondent/writ petitioner cannot harp upon violation of the transfer guidelines/policy issued by the Govt. of Assam in issuing the transfer order within two years of posting in a particular place sans the approval of the Chief Minister, inasmuch as, the said guidelines are mere instructions without any statutory backing and not enforceable in the Court of law. The said guidelines, according to Mr. Choudhury, cannot have the consequence of depriving or denying the competent authority to transfer a particular officer from one place to another in public interest. To this end, Mr. 9. Mr. AC Borbora, learned Senior counsel representing the writ petitioner i.e. Dr. Homeswar Kalita submits that Dr. Kalita was unnecessarily made to move from one college to another and that too within a period of 16 months, thereby causing serious prejudice to him. Mr. Borbora submits that the transfer order dated 9.10.2015 is in contravention of the Office Memorandum dated 9.9.1992 and 6.8.2013 and the same had not been issued on account of any administrative exigency and/or public interest but only to accommodate Dr. Nath. In this respect it is contended that the present Education Minister was earlier a member of the Governing Body of GCC and on that account maintained a close proximity with Dr. Nath. Referring to the provisions under the Act 2005, Mr. Nath. In this respect it is contended that the present Education Minister was earlier a member of the Governing Body of GCC and on that account maintained a close proximity with Dr. Nath. Referring to the provisions under the Act 2005, Mr. Borbora contends that the Principals of provincialised Colleges constitute an independent common cadre and the services are transferable from one college to another. It is submitted that immunity from transfer is not available to Dr. Nath despite having exercised option to be governed under the existing terms and conditions under the control of the Governing Body. 10. Mr. KN Choudhury, learned Senior counsel representing the Governing Body of Gauhati Commerce College, makes reference to the duties of the Governing Body as prescribed under Rule 18 of the Rules, 2001 as well as to the definitions of “college” and “provincialisation” as given under the Act 2005. Mr. Choudhury submits that the Gauhati Commerce College is an institution within the definition of “college” and also highlights the effect of provincialisation of service under the Act 2005. In this context Mr. KN Choudhury refers to Section 3 (c) of the Act 2005 to say that all Principals of provincialised colleges constitute an independent common cadre and the service of the Principals of the provincialised colleges are transferrable. Referring to Section 6 thereof, Mr. Choudhury delineates the power of the DHE as the appointing authority which, by necessary implication, also includes the power to transfer a Principal from one college to another. According to Mr. Choudhury, although the proviso to Section 6 provides for delegation of some of the powers of the appointing authority to the Governing Body of the colleges, as that may be provided in the Rules, the competency of the Governing Body to issue order of transfer is conspicuously absent in the Rules 2001. The submission, therefore, is that the Act 2005 as well as the Rules 2001 do not place any embargo on the DHE to cause transfer of the Principal of a provincialised college from one college to another. As regards the intervention caused by the Departmental Minister, Mr. KN Choudhury fairly submits that ordinarily the Departmental Minister being the Executive Head can certainly intervene in the matter of transfer but that power is available only when it is recognized by law. As regards the intervention caused by the Departmental Minister, Mr. KN Choudhury fairly submits that ordinarily the Departmental Minister being the Executive Head can certainly intervene in the matter of transfer but that power is available only when it is recognized by law. In the instant case, the intervention of the Departmental Minister is termed as irregular and illegal, inasmuch as, the Act 2005 confers power upon the DHE alone to exercise that power without abdicating the same to any other authority. In support of his contentions, Mr. Choudhury relies upon the case of The Purtabpore Co. Ltd. v. Cane Commissioner of Bihar and ors., reported in 1969 (1) SCC 308 . In addition, Mr. Choudhury also submits that Dr. Nath cannot claim to have a good service career, in that, there are complaints of defalcation of money and high-handedness which are well within the knowledge of the Governing Body of Gauhati Commerce College. 11. Facts pleaded by respective parties have been noticed. The issue for determination is whether the order of transfer dated 9.10.2015 suffers from infraction of professed norms, that is, whether the same is vitiated on account of violation of statutory provisions or vitiated by mala fide or is shown to be clearly arbitrary. In the instant case, the element of mala fide can be ruled out as neither any categorical pleadings had been made by the writ petitioner nor any such allegation had been laid against any authority arrayed in individual capacity. Before reaching a conclusion, this Court would likely to touch upon one aspect of the matter to clarify all doubts in future. 12. Both the transfer order dated 27.6.2014 and 9.10.2015 had been issued under the hand of the Director of Higher Education, Assam. Dr. Ghanashyam Nath, despite pleading lack of competence of the DHE to effect his transfer, had implicitly submitted to the jurisdiction of the DHE by joining at KCDC pursuant to the first transfer order dated 27.6.2014 although an initial challenge was made in WP(C) 3360/2014 but subsequently withdrawn. While supporting the second transfer order dated 9.10.2015, his categorical stand is that the same do not call for interference. For whatever reasons the aforesaid two transfer orders had been issued, the fact remains that both had been passed under the hand of the DHE, Assam. This Court is conscious of the fact that acquiescence on the part of Dr. While supporting the second transfer order dated 9.10.2015, his categorical stand is that the same do not call for interference. For whatever reasons the aforesaid two transfer orders had been issued, the fact remains that both had been passed under the hand of the DHE, Assam. This Court is conscious of the fact that acquiescence on the part of Dr. Nath in submitting to the jurisdiction of the DHE would not ipso facto tantamount to conferring power upon DHE to effect his transfer short of any prescription under the law. Admittedly, the service conditions of Dr. Nath are governed under the provisions under the Rules 2001. The terms and conditions of his service is regulated by the Governing Body of the College on account that he had exercised option to continue in the existing terms and conditions of service under Section 3(d) of the Act 2005. Although under Rule 18 of the Rules 2001 the Governing Body is empowered to appoint a person in connection with the affairs of the college, the said power cannot be extended to effect transfer of the Principal of the College to any other College. The service of the Principals of provincialised Colleges being transferrable in view of Section 3(c) of the Act 2005 and reading the said provision in sync with Section 6 of the said Act, the power to transfer only lies within the domain of the Director of Higher Education, Assam. The exercise of the power of transfer if extended to the Governing Body would only usher in an incongruous situation as, apparently, the Governing Body of one particular college cannot have any say in the affairs of any other college, not to speak of dislodging the Principal of the other college by means of transferring the Principal of its own college to the other institution. A reading of the provisions under the aforesaid Act and the Rules leaves no room for doubt that it is only the Director of Higher Education, Assam in whom vests the power to transfer the Principal of provincialised colleges from one institution to the other, including such Principals who had exercised option under Section 3(d) of the aforesaid Act 2005. 13. Having delineated the power of the DHE, Assam in effecting transfers, we now proceed to determine the legality and validity of the transfer order dated 9.10.2015. 13. Having delineated the power of the DHE, Assam in effecting transfers, we now proceed to determine the legality and validity of the transfer order dated 9.10.2015. As alluded to above, the element of any mala fide in issuing the transfer order dated 9.10.2015 do not stand for consideration short of any categorical pleadings or impleadment of parties by name. Although the case laws cited by the appellants portrays the scope of judicial review even in a case where intervention has been made by an MLA or a Departmental Minister, the line has to be drawn as to the permissible extent of intervention of the Minister concerned. Also, it has to be seen whether the competent authority had exercised his statutory powers or simply complied with the dictates of the Minister by signing on the dotted lines. This is the test that will determine the legality and validity of the transfer order dated 9.10.2015. 14. We have perused the records in original produced by Mr. M Choudhury, learned counsel representing the Education Higher Department. The Govt. File No.AHE.42/2015 pertains to review of the transfer order dated 27.6.2014. The opening Office Note dated 6.2.2015 makes mention of the representation made by the wife of Dr. Ghanashyam Nath, addressed to the Chief Minister, Assam, which had been duly endorsed to the Commissioner and Secretary, Higher Education Department. A subsequent Office Note dated 6.5.2015 indicates that an order had been passed by the Minister, Education in respect of transfer of Dr. Ghanashyam Nath and posting him as Principal of Gauhati Commerce College vice Dr. Homeswar Kalita. The order of the Minister, Education is of 24.4.2015 directing the Additional Chief Secretary, Education for issuing necessary notification for urgent transfer and posting as follows: ‘Sri Ghanashaym Nath, Principal, KC Das Commerce College, Guwahati be transferred and posted as Principal of Gauhati Commerce College, Guwahati vice Sri Homeswar Kalita transferred and vice versa.’ This was followed by another note dated 3.5.2015 of the Minister, Education, bringing to the notice of the Addl. Chief Secretary, Education, of the earlier note regarding transfer and posting and of the fact that the same had not materialised. Request was made to take appropriate steps at the earliest. On 26.5.2015 a note was put up to the Addl. Chief Secretary indicating the filing of the case by Dr. Nath against the first transfer order dated 27.6.2014 and withdrawal of the same. Request was made to take appropriate steps at the earliest. On 26.5.2015 a note was put up to the Addl. Chief Secretary indicating the filing of the case by Dr. Nath against the first transfer order dated 27.6.2014 and withdrawal of the same. The Office Note also indicates that the Government has the authority to transfer Principals of provincialised colleges under the Provincialisation Act, 2005. Referring to the note of the Minister, Education, an observation was made that necessary orders be given in that regard. A note was also put up to the Minister, Education with regard to the untoward incident that took place on 2.6.2014 at Gauhati Commerce College. Mention was made that five Assistant/Associate Professors of the college had been suspended and the DHE had also initiated disciplinary proceedings by appointing an Enquiry Officer and a Presenting Officer and that the conclusion of the enquiry would take some time. The note indicated that it would be prudent to consider the transfer proposal at a later stage, that is, after disposal of the disciplinary proceedings. The Minister, Education, endorsed a note to the effect that the DHE be asked to complete the disciplinary proceedings within two months i.e. by 30.9.2015 positively. What followed thereafter was preparation of a draft transfer order, which had been approved by the Chief Minister, Assam as well as by the Minister, Education, with an endorsement that Dr. Ghanashyam Nath will move first. On 8.10.2015 the Joint Secretary to the Govt. of Assam, Higher Education Department addressed a letter to the Director of Higher Education, Assam, informing that the Govt. of Assam in the Higher Education Department had decided to effect transfer and posting of Dr. Ghanashyam Nath, Principal, KC Das Commerce College to Gauhati Commerce College and Dr. Homeswar Kalita, Principal, Gauhati Commerce College to KC Das Commerce College and, accordingly, a direction was made to take necessary action allowing Dr. Ghanashyam Nath to move first. On such directions, the DHE, Assam issued the second transfer order dated 9.10.2015, which was the subject matter in WP(C) 6492/2015 and in the writ appeals before us. 15. Homeswar Kalita, Principal, Gauhati Commerce College to KC Das Commerce College and, accordingly, a direction was made to take necessary action allowing Dr. Ghanashyam Nath to move first. On such directions, the DHE, Assam issued the second transfer order dated 9.10.2015, which was the subject matter in WP(C) 6492/2015 and in the writ appeals before us. 15. The reference made to the Office Notes and the Notes of Minister, Education, is only to ascertain as to whether the transfer order dated 9.10.2015 was solely at the behest and direction of the Minister, Education or was there any exercise independently taken by the DHE, Assam, who is the competent authority to effect the transfer. Apparently, the transfer order dated 9.10.2015 was engineered by the Minister, Education, with no independent application of mind on the part of the DHE, Assam. This brings us to the law laid down in the case of Purtabpore Co. Ltd. v. Cane Commissioner of Bihar (supra). In the said case reference was made to the power of the Central Govt. under Clause 6 of the Sugar Cane (Control) Order, 1966 which had been expressly delegated to the Cane Commissioner, besides the State Govt. of Bihar. Amongst the powers dealing with regulation, distribution and movement of sugarcane, the Cane Commissioner was also conferred with the power to reserve any area where sugarcane is grown. It was in this context that the order of the Cane Commissioner was examined vis-à-vis the role played by the Chief Minister. The Apex Court upon examination of the available materials concluded that the Chief Minister had imposed his opinion on the Cane Commissioner. The Apex Court held that the power exercisable by the Cane Commissioner is a statutory power and he alone can exercise the said power and while doing so he cannot abdicate his responsibility, not even in favour of the State Govt. or the Chief Minister. It was further held that it was not proper for the Chief Minster to have interfered with the function of the Cane Commissioner, inasmuch as, the Chief Minister is not an authority recognized under Clause 6 of the Control Order, 1966. or the Chief Minister. It was further held that it was not proper for the Chief Minster to have interfered with the function of the Cane Commissioner, inasmuch as, the Chief Minister is not an authority recognized under Clause 6 of the Control Order, 1966. It was further held that executive officers entrusted with statutory discretions may in certain cases be obliged to take into consideration the policy of a Minister or the Government but the same will not absolve the executive officers from their duty to exercise their personal judgment in individual cases unless explicit statutory provisions has been made for accepting binding instructions by a superior. 16. In the instant case, what stares in the face is that the order of transfer dated 9.10.2015 was actually put in motion by an authority not competent to do so and the DHE had only subscribed to it by following the directions of the Govt. in the Higher Education department, who in turn had been directed by the Departmental Minister to effect the transfer. By no means, the said transfer order dated 9.10.2015 can be termed as a valid exercise of power by the DHE, Assam, who is the sole authority statutorily obliged to exercise the power of transfer uninfluenced by any opinion of any other authority, including that of the Minister, Education. The interference of the Departmental Minister strikes at the root of the transfer order dated 9.10.2015, rendering the same as non-est in the eye of law. 17. From the foregoing discussions, the inevitable conclusion is that the present appeals do not merit consideration and are liable to be dismissed, which is accordingly done. The judgment and order under appeal do not warrant interference. Both the appeals stand dismissed, however, without any order as to costs. Records produced by Mr. M Choudhury are returned herewith.