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2017 DIGILAW 463 (GAU)

Jumtum Tato v. State of Arunachal Pradesh

2017-04-19

RUMI KUMARI PHUKAN

body2017
JUDGMENT : 1. Heard Mr. Kento Jini, learned counsel for the petitioner. Also heard Mr. Kardak Ete, learned senior Addl. Advocate General, Arunachal Pradesh, assisted by Mr. Subu Tapin, learned senior Government advocate, appearing for State respondent Nos. 1 and 2, Mr. Gimi Tarak, learned counsel appearing for respondent No. 3 and Mr. Ninnong Ratan, learned counsel appearing for respondent No. 4. 2. The writ petitioner is a Chief Engineer (Power) Easter Electrical Zone, Department of Power, Government of Arunachal Pradesh and he was promoted to the said post in the year 2008. The petitioner was visited with the impugned transfer and posting order vide Memo No. PWRS/E-2313/2012/307-19 dated 17.2.2017 issued by the Commissioner of Power, Government of Arunachal Pradesh, Itanagar whereby the petitioner has been transferred and posted as Officer On Special Duty. The grievances raised by the petitioner that by the impugned order he has been attached to a non-sanctioned post and non-existent post (as per information obtained through RTI) that too by bringing one Superintending Engineer/respondent No. 3 in his place without any promotion to the post and he has been assigned the additional charges of the Chief Engineer which is presently holding by the petitioner. The post of Chief Engineer is a promotional post and replacing the respondent No. 3 to the post of petitioner is stated to be most illegal because as per service jurisprudence an officer can be replaced by another officer of the same rank but definitely not by subordinate officer. Over and above, the instant transfer order has been assailed on different count that as per policy decision of the Government vide order dated 2.6.1998 no transfer should take place in the last three months of financial year and also no employee should be transferred from the place of posting within one year of superannuation, whereas the petitioner is at the verge of retirement has only eleven months left in the service and the respondent-authority has very couraging manner by violating the Government circular issued the transfer order under some political interference. Two representations filed by the petitioner before the respondent-authorities received no response, hence, the present petition has been filed. 3. Two representations filed by the petitioner before the respondent-authorities received no response, hence, the present petition has been filed. 3. It has also been contended that as per OM No. Govemment-AP/2015 dated 10.2.2016 and OM No. CS (PR)(1)/2016 dated 11.2.2016 the functional posting of officers from lower post to higher post have been stopped but by violating the aforesaid directions the respondent No. 3 is allowed to function as a Chief Engineer. Moreover, transfer cannot be made from one cadre to another cadre unless the permission is obtained from the incumbent. Accordingly it is the case of the petitioner the respondent-authority has acted arbitrarily, whimsically and unreasonably by posting the petitioner as OSD (Special Project) against non-sanctioned post and there is no such special project which necessitated the authority to issue such illegal order. More so, the impugned order has been issued at the behest of respondent No. 4, within few days of assuming his duties as Minister of Power and entire matter processed purely on the basis of an U.O. Note issued by the respondent No. 4, only to accommodate the respondent No. 3, there being no public interest while issuing the same. 4. The petitioner is still holding and discharging the post of Chief Engineer so it is prayed to the respondent-authorities to allow the petitioner to continue his post without any disturbance, in view of the above backdrops. 5. So far as the contention of the State respondent Nos. 1 and 2, it has been submitted (in their affidavits-in-opposition), that although the post of Officer-on-Special Duty (OSD) to special project is not a sanctioned post but the same is an existing post by virtue of at the prerogative of the Government as a matter of policy decision in the interest of public service. The State Government brings and implements projects including central flagship schemes such as integrated power development schemes (‘IPDS’) in Deen Dayal Upadhyaya Gram Jyoti Yojana (‘DDUGJY’) in the State and the same needs to be guided by well experienced, technically expertise officer in the rank of Chief Engineer for effective implementation of the same and, hence, post of OSD is need-based post. The petitioner being the well-experienced person has been placed in the post of OSD to special project in the public interest and in doing so, petitioner has not been prejudiced in any manner as his status in the rank of Chief Engineer has not been disturbed. Further the senior most Superintending Engineer/respondent No. 3 has been temporarily allowed to take charge of the Chief Engineer for greater interest of the Department and it does not amount to superseding the charges of Chief Engineer. Moreover, the representation filed by the petitioner is devoid of merit as it is a temporary arrangement of the Government concerned and it does not violate the transfer guidelines as much as it does not affect the posting place of the petitioner at Itanagar. The place of posting of petitioner has not been changed and as such, it does not affect the preparation of pension paper of petitioner. 6. Regarding the posting of respondent No. 3, it has been submitted that the instant temporary arrangement is not made in the form of officiating/functional basis or out of turn promotion basis, but he has been just endorsed to look after the works of the petitioner for the reasons mentioned above. The respondent No. 3 being the senior most from the next lower cadre can be given the charge during administrative exigency. Further it is contended that the Hon’ble concerned Minister has every right to add an advice the placement of employee for streamlining the department for a public interest. In the matter of transfer and posting the guidelines does not give enforceable right to an employee which is always subject to action taken in the public interest. The petitioner herein has already completed normal tenure of posting for two years and he has not been transferred from one place to another place and he is in the same office premises and as such there is no question of mala fide. 7. On the next, the respondent No. 3 is the person who has been allowed to look after the charge of the petitioner who has also filed affidavit in opposition supporting the impugned transfer order. He has opposed the contention raised by the petitioner that he has been brought illegally without promotion and assigned the charge of Chief Engineer. 7. On the next, the respondent No. 3 is the person who has been allowed to look after the charge of the petitioner who has also filed affidavit in opposition supporting the impugned transfer order. He has opposed the contention raised by the petitioner that he has been brought illegally without promotion and assigned the charge of Chief Engineer. It submits that he is one of the senior most Superintending Engineer deserving promotions to the post of Chief Engineer since 15.9.2014 and the impugned order is stated to be a temporary arrangement keeping in view the large number of flagship projects that has been sanctioned by the Government of India and the Minister of Power requires the guidance and experience of senior officer like petitioner for which the impugned order has been issued in the greater public interest. It is not a case of out of turn promotion and/or functional posting of respondent No. 3 as has been contended by the petitioner. Supporting the affairs of the Minister of Power it has been contended that only for streamlining the functioning of department as well as to implement the schemes and also due to the fact that the petitioner is suffering from various ailments who has to go for frequent medical treatment, thereby hampering the smooth functioning of the department. The above arrangement has been made. There is no violation of Government order as has been indicated by the petitioner. Lastly, it is submitted that in pursuance of the impugned transfer order dated 17.2.2017, he has already submitted his joining letter on the same day, i.e., on 17.2.2017 and assumed charged of Chief Engineer on 23.2.2017, before passing of stay order by this court and as such petition is liable to be dismissed. 8. No affidavit-in-opposition has been filed on or behalf of respondent No. 4. The learned counsel appearing on behalf of respondent No. 4, Mr. Ratan, made his verbal submission on the basis of official file that has been produced before this court. Supporting the case of the other respondents (as has been narrated in their affidavit-in-opposition), it has been submitted that as the petitioner was suffering from various ailments and was unable to discharge his duty effectively so respondent No. 3 was temporarily assigned to look after the duties of the petitioner. Supporting the case of the other respondents (as has been narrated in their affidavit-in-opposition), it has been submitted that as the petitioner was suffering from various ailments and was unable to discharge his duty effectively so respondent No. 3 was temporarily assigned to look after the duties of the petitioner. Being the Minister of the concerned department, he has every right to enter into the affairs of the department for smooth functioning as well as proper implementation of the schemes of the Government through proper person/officer. 9. As against the stand taken by the respondents, the petitioner herein choose to file affidavit-in-reply wherein it has been specifically contended that as admittedly there is no sanction post of OSD for the special project then how the respondent-authorities can say that the OSD post is in existent, which is not only illogical but also confusing. It is urged that respondent No. 3 though may be senior most Superintending Engineer but he cannot be given the promotional post by throwing out the higher senior officer to a non-existent post (misnomer). All other averments are repetitions of the petition. 10. As regards the Office Memorandums dated 10.2.2016 and 11.2.2016 which have been mentioned by the petitioner vide Annexure 4 series, it can be found that the Government of Arunachal Pradesh, by the said Office Memorandums, has made a direction that no officiating posting or promotion outside the merit/seniority on functional basis, should be allowed to junior level functionaries. In that regard, the Chief Secretary to the Government of Arunachal Pradesh, Itanagar, had issued the following guidelines vide O.M. dated 11.2.2016: “3. It has been decided that henceforth, no officiating/functional promotion outside the seniority/merit would be allowed to any junior level functionaries of any Dept/Organizations/Offices of the Government of Arunachal Pradesh. In case, any officiating/functional arrangement is required to be made for a short period in exceptional circumstances, the same may be considered only as an exception for which written approval of the Chief Secretary has to be obtained in advance. 4. Meanwhile, it is hereby directed that all irregular officiating/functional appointments and out of turn promotions made are to be cancelled forthwith and the lower level functionaries must be reverted back from the irregularly appointed higher posts to the original substantive posts from which they were promoted/appointed on officiating/functional basis. Therefore, all Prl. 4. Meanwhile, it is hereby directed that all irregular officiating/functional appointments and out of turn promotions made are to be cancelled forthwith and the lower level functionaries must be reverted back from the irregularly appointed higher posts to the original substantive posts from which they were promoted/appointed on officiating/functional basis. Therefore, all Prl. Secretaries/Secretaries & Heads of Departments are directed to comply the above instructions accordingly with intimation to the Secretary to the Governor for information of HE. 5. Compliance report on the above instructions should be submitted within 10 days of receipt of the OM.” 11. Mr. Jini, learned counsel for the petitioner, has basically centered around his argument under contention that impugned transfer order has been issued most arbitrarily undermining the long experience and expertise of senior officer like petitioner, that too, he has been forcefully thrown to a non-existent and ex-cadre post and replaced by a junior officer without taking any consent of the petitioner, at the behest of the respondent No. 4 only to accommodate respondent No. 3, while the petitioner is at the verge of superannuation. Further, deliberation of the learned counsel for the petitioner, is that, at best, the petitioner could have been posted to other post of similar rank and the respondent-authorities by flouting their own government Circular has allowed the respondent No. 3 to officiate, the promotional post. 12. In support of the contention that the transfer outside the cadre cannot be effected without the consent of the transferee, the learned counsel for the petitioner has referred the decision of R. Thansanga v. State of Mizoram, 2002 (3) GLT 646, T. Thoiva Singh v. State of Manipur, 2008 (2) GLT 718 and M. Imomacha Singh v. State of Manipur, 2013 (1) GLT 267. 13. Further, the learned counsel has referred the decisions as reported in Sarvesh Kumar Augusty v. Jal Nigam, (2003) 11 SCC 740, and (1993) 4 SCC 357 , wherein, it has been held that the transfer orders required to be affected on the basis of set norms of guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians. Similarly, in another decision referred by the learned counsel for the petitioner M. Imomacha Singh v. State of Manipur, 2012 (4) GLT 808, wherein, it has been held that while making temporary arrangement to hold the charge of promotional post, a junior officer cannot be allowed to hold the charge as long as senior officer is available. 14. As against the contention that has been raised by the respondent side that the status of the petitioner not affected by the impugned order, it has been submitted by the learned counsel for the petitioner that the mere fact the post of the petitioner carried the same scale of pay is not enough in judging that the status of the petitioner as Chief Engineer and the OSD are equivalent post. The true criteria for equivalence is the status and nature of responsibility of the duties attached to the two posts. It has been vehemently urged that while the post of OSD is a non-existent post, all averment made by the respondents is of no substance and accordingly, the impugned transfer order, though it has been termed as a temporary arrangement can no way illegally sustainable. 15. Per Contra, the contention of the learned counsel for all the respondents is that the transfer being within the power of government in terms of FRs 11 and 15, the petitioner cannot challenge the impugned order, by which he has been transferred as OSD to the special project. In this respect, the learned counsel for the respondent No. 4 has referred the decision Union of India v. S.L. Abbas, (1993) 4 SCC 357 . The learned counsel for the respondent Nos. 1 and 2 Mr. Ete, learned senior Addl. Advocate General, by relying decision of the E.P. Rovappa v. State of T.N., (1974) 4 SCC 3 , S.L. Abbas, (supra), N.K. Singh v. Union of India, (1994) 6 SCC 98 , 2011 (4) GLT 724, State of Assam v. Dilip Kr. The learned counsel for the respondent Nos. 1 and 2 Mr. Ete, learned senior Addl. Advocate General, by relying decision of the E.P. Rovappa v. State of T.N., (1974) 4 SCC 3 , S.L. Abbas, (supra), N.K. Singh v. Union of India, (1994) 6 SCC 98 , 2011 (4) GLT 724, State of Assam v. Dilip Kr. Sharma, 2008 (2) GLT 786, it has been contended that an order of transfer is an incident to the Government Service and a Government Servant is at the disposal of the Government and merely because the order has been made at the behest of the Minister of the concerned Department, the petitioner cannot challenge the transfer order unless such decision is vitiated by mala fides or infraction of any professed norms or principle governing the transfer. Accordingly, it has been contended that the Minister of the concerned Department, who is well aware about the status of officers of the Department has rightly decided the matter of posting of petitioner and the court has limited power for judicial review in such matter of transfer. 16. The learned counsel for the respondent No. 3 has also justified the impugned order on the ground that it is a temporary arrangement for streamlining the function of the Department and there is no necessity to interfere into the aforesaid order. 17. I have considered the rival contention of both the parties and gone through the documents annexed as well as perused official file that has been produced. It appears from the official file No. PWRS/E-2313/2012 that has been produced before the court that the Minister of Power and Industries himself moved the Office Note on 13.2.2017 as follows: “It has been noticed that the Chief Engineers of Western and Central Electrical Zone have to visit New Delhi very frequently for undertaking medical checkup after undergoing major surgeries in the recent past which effect the functioning of Zonal Officers. Since, we are in the flag end of financial year and, therefore, in the interest of work, it is proposed to allow the following senior Superintending Engineers of Power (Elect.) Department to look after the charges as below with immediate effect. 1. Shri Gumdo Doji, SE(E) to look after the charges of Western Electrical Zone. 2. Shri C.T. Namchoom, SE(E) Miao to look after the charges of Chief Electrical Inspector in addition to his present assignment. 3. 1. Shri Gumdo Doji, SE(E) to look after the charges of Western Electrical Zone. 2. Shri C.T. Namchoom, SE(E) Miao to look after the charges of Chief Electrical Inspector in addition to his present assignment. 3. Shri Bar Takum, SE (E) Ziro to look after the Charges of Central Elect. Zone. 4. Shri Rubu Tago, SE (Elect.), Nig to look after the charges of SE (Elect.) Ziro in addition to his present assignment. While doing so we may advise both the incumbents Chief Engineers (Power) of WEZ and CEZ to avail leave on medical ground till such time they became fit enough to discharge their duties upto the desired level and make them OSD technical to Minister/HCM.” 18. On approval of the aforesaid proposal, the impugned transfer order was issued on 17.2.2017, whereby the petitioner has been appointed as OSD to the special project. The aforesaid order itself reveals that it is a pure matter of transfer although the word temporary arrangement has been used. It is also undisputed facts that the post of OSD is non-existent post at the time of passing the order till date. In that view of the matter, the impugned transfer order is palpably illegal and cannot be sustained in law. This warrants interference of the court and on the ground alone, the impugned transfer order can be quashed and set aside, without going to all other contentions raised by the learned counsel for the petitioner. 19. However, this court deem it fit to discuss the other important feature of the case of the respondent. It is the plea of the respondent in their affidavit that the petitioner herein has been temporarily allowed to the post of OSD to the Special Project in the public interest for implementation of project. But such plea is found quite contradictory after going through the relevant file of the Department that has been produced before this court (as mentioned above). The respondent No. 4 being the Minister of Power, Government of A.P., suo motu made an U.O. note (as has been mentioned above) that as the petitioner is suffering from ill health and frequently undergoing medical check-ups so he was advised to avail leave or make him OSD. Such a finding on the part of respondent No. 4 is not supported by any other official correspondence. Such a finding on the part of respondent No. 4 is not supported by any other official correspondence. That apart, the file should have been moved from the Department concerned along with necessary documents as well as actual status of the petitioner and the fact that the ongoing projects has been hampered for the inaction of the petitioner. There is nothing emerging in this aspect that no report was obtained in this regard prior to issuance of the impugned order. It is suffice to hold the arbitrariness on the part of the respondent-authority while passing the impugned order and the discretion has been exercised without sound principle of law. The petitioner is at the verge of superannuation and it is hard to accept the rational of the State respondent in allowing a junior officer to hold the charge of Chief Engineer and thereby what public interest is being served by such order. 20. In M. Imomacha Singh (supra) para 5, it has been held that the law relating to transfer in public employment that as long as senior officer is available, a junior officer cannot be allowed to hold the charge of higher post until such post is filled up on regular basis, if no longer res integra. More so in the given case as per the standing O.M. issued by the Government, a junior officer cannot be allowed to officiate even on functional basis which is not followed by the respondent-authority while passing the impugned order. It is also quite surprising as to how the State respondent tried to justify such transfer of the petitioner to a non-existent post, not to speak of same cadre. 21. The learned counsel for the respondent No. 3 has submitted in his affidavit that the transfer has already been carried out and effected as such question of quashing does not arise. This submission cannot be sustained as the impugned order is not only a case of arbitrariness but also in violation statutory provision. The Apex Court by a Constitutional Bench in E.P. Royappa v. State of T.N., (1974) 4 SCC 3 held that articles 14 and 16 strikes at arbitrariness of the State action and to ensure fairness, the State action must be based on valid and relevant principles which are applicable alike to all similarity situated and it must not be guided by extraneous and irrelevant consideration. In the instant case, the impugned order has been issued without all fairness to the petitioner as he has not been given any opportunity of being heard prior to passing such order and he has been replaced by a junior officer. There is nothing more than arbitrary than this action of the State Government. Although, there is limited scope for judicial review of transfer matter and normally transfer order issued by authority is not interfered with except in case where the transfer order is in violation of statutory provisions and is fraught with arbitrariness and mala fide and the case in hand is apparently hit by the aforesaid principles which have already been discussed above and also settled by the Apex Court times and again. 22. From what has been discussed in the foregoing paragraphs, this court is of the considered opinion that the impugned order, dated 17.2.2017, is fraught with palpable illegality and also without sanction of law and cannot sustain in the eye of law. 23. The instant writ petition, therefore, succeeds. Resultantly, the impugned transfer order, dated 17.2.2017, is hereby quashed and set aside. The petitioner will continue his substantive post he holds in the cadre and at the place he is presently continuing. The State respondents will do the needful as about the private respondent No. 3. 24. No order as to costs. 25. The writ petition accordingly stands disposed of. 26. Return the concerned file to the learned Government Advocate.