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2018 DIGILAW 615 (JK)

Madan Gopal Samyal v. State of J&K

2018-08-06

SANJEEV KUMAR

body2018
JUDGMENT : Sanjeev Kumar, J. 1. In this petition, the petitioner has assailed the legality of Government Order No. 89-PW (R&B) of 2018, dated 16.02.2018 to the extent it pertains to the retention of respondent No. 4 in the Rural Engineering Wing of the Rural Development Department. The petitioner is also aggrieved of Government Order No. 50-RD & PR of 2018, dated 14.03.2018, whereby the respondent No. 4 has been posted as Assistant Engineer Stores in place of the petitioner and the petitioner has been transferred and posted as In-charge Assistant Engineering, REW Block, Keerian Gandyal against an available vacancy. Both the petitioner and respondent No. 4 are substantively holding the post of Junior Engineers borne on the cadre of Jammu & Kashmir Public Works (R&B) Subordinate Service and are holding the post of Incharge Assistant Engineers (Civil) in their own pay and grade. For quite some time both the petitioner and respondent No. 4 are serving in the Rural Engineering Wing of the Rural Development Department after their services were placed at the disposal of the Rural Development Department by their parent department. Though, both are working in the Rural Engineering wing of the Rural Development Department, and are conveniently posted, yet the dispute between the two appears to be for a posting which both of them perceive as a "prize posting." The present case, therefore, depicts a classical example of depleting standards of morality and ethics. 2. The learned counsel appearing for the parties in their effort to satisfy the insatiable greed of their clients have made best possible endeavour to exploit the lacunas in the law by raising some of fine questions of law for adjudication. 3. Before I proceed to deal with the rival contentions, it would be worthwhile to give brief resume of the factual antecedents leading to the filing of this litigation. Vide Government Order No. 362-PW (R&B) of 2014, dated 14.08.2014, respondent No. 4 came to be placed as Incharge Assistant Engineer (Civil) in his own pay and grade, pending clearance by the DPC/PSC. The department of Rural Development posted the respondent No. 4 as Incharge Assistant Engineer in Block Bhoond (Kathua). Vide Government Order No. 265-RD & PR of 2014, dated 01.09.2014. The department of Rural Development posted the respondent No. 4 as Incharge Assistant Engineer in Block Bhoond (Kathua). Vide Government Order No. 265-RD & PR of 2014, dated 01.09.2014. After having served in Block Bhoond (Kathua) for almost three years, the respondent No. 4 came to be transferred from Block Bhoond to Block Mandli vide Government Order No. 244-RD & PR of 2017, dated 31.08.2017. It appears that the respondent No. 4 was not happy with his posting in Block Mandli, therefore, did not join in compliance to the order dated 31.08.2017 (supra). The Department of Rural Development issued another order i.e. Government Order No. 253-RD & PR of 2017, dated 08.08.2017 modifying the order of transfer of respondent No. 4 to Mandli and posted him as Assistant Engineer Stores Kathua against available vacancy. While respondent No. 4 was working as I/C Assistant Engineer Stores, Kathua, there was further development in the matter. The Government in Public Works Department vide Order No. 381-PW(R & B) of 2017, dated 16.10.2017 placed the services of the petitioner at the disposal of Rural Development Department and on 27.12.2017 vide Government Order No. 511-PW (R & B) of 2017, services of respondent No. 4 were recalled to the parent department. The petitioner who was awaiting order of adjustment in the Rural Development Department was posted as Assistant Engineer Stores Kathua by the Department of Rural Development & Panchayati Raj vide Government Order No. 22-RD & PR of 2018, dated 24.01.2018. The petitioner readily complied with the order and joined his services in the office of Executive Engineer, REW Division, Kathua. The respondent No. 4, as is apparent from the sequence of events referred to above, was not in the mood to leave his assignment in the Rural Development Department which he might have perceived more lucrative than the one in his parent department and, therefore, appears to have managed his posting back in the Rural Development Department. This is so apparent from Government Order No. 89-PW (R&B) of 2018, dated 16.02.2018. A careful perusal whereof would indicate that the respondent No. 4, though repatriated on 27.12.2017, had not reported for duty in his parent department and was virtually unauthorizedly absent, unless it is shown that he was on leave duly sanctioned by the competent authority. This is so apparent from Government Order No. 89-PW (R&B) of 2018, dated 16.02.2018. A careful perusal whereof would indicate that the respondent No. 4, though repatriated on 27.12.2017, had not reported for duty in his parent department and was virtually unauthorizedly absent, unless it is shown that he was on leave duly sanctioned by the competent authority. Be that as it may, respondent No. 4 not only succeeded in his retention in the Rural Engineering Wing of the Rural Development Department but also managed his posting back as Assistant Engineer Stores/Technical Officer to Executive Engineer, REW, Kathua. In his attempt, to come back as Assistant Engineer Stores, he succeeded in dislodging the petitioner who had been posted as Assistant Engineer Stores only on 24.01.2018. All this was facilitated by the respondent-Rural Development Department by issuing Government Order No. 50-RD & PR of 2018, dated 14.03.2018. It is this order, as a matter of fact, the petitioner is aggrieved of. Having heard learned counsel for the parties and perused the record, this Court in the first blush thought it to be a case of transfer simpliciter ordered in the interest of administration but on careful scrutiny found that the transfer of the employees particularly belonging to the engineering wings of the State is a fast growing industry. The transfers are not made in the interest of administration, as is envisaged under Rule 27 of the Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 but are resorted to accommodate blue eyed persons at perceived prize posting for ulterior considerations. 4. The manner in which the respondent No. 4 has been posted from time to time speaks volume about the unholy nexus between some of the engineers and the officers in the administrative department concerned. The placement of services of the engineers working in the Public Works Department at the disposal of Rural Development Department is totally arbitrary without there being any rational yardstick or guidelines. The Jammu & Kashmir Rural Development (Gazetted) Service constituted vide SRO 285 of 2003 does not have a cadre of Assistant Engineers of its own, though the posts of Junior Engineers are borne on the Jammu and Kashmir Rural Development/Sanitation (Subordinate) Service constituted vide SRO 178 of 2007. The Jammu & Kashmir Rural Development (Gazetted) Service constituted vide SRO 285 of 2003 does not have a cadre of Assistant Engineers of its own, though the posts of Junior Engineers are borne on the Jammu and Kashmir Rural Development/Sanitation (Subordinate) Service constituted vide SRO 178 of 2007. As per the Jammu & Kashmir Rural Development (Subordinate) Service Recruitment Rules, the posts of Junior Engineer in the Rural Development Department are required to be filled up by appointment of eligible candidates recommended by the J & K Services Selection Board, there is no provision for transfer/deputation of the Junior Engineers from the Public Works Department to the Rural Development Department. As noted above, there is no cadre of Assistant Engineers borne on the Rural Development (Gazetted) Service. How the Assistant Engineers from Public Works Department are posted in the Rural Engineering Wing of the Rural Development Department is something which the respondents need to explain. 5. Learned counsel appearing for the State-respondents could not point out any provision in the Rules except referring to Article 52-C of the Jammu & Kashmir Civil Service Regulations. A bare reading of Article 52-C would indicate that it provides for only deputations of government servants to non-governmental organizations, including Corporations, Companies, autonomous bodies etc. within or outside the State or to the Central Government or other State Government and such deputations were governed by the standard terms and conditions of deputation contained in Schedule-XVIII. There is no provision in the CSR which would provide for deputation from one government department to another government department. The provisions contained in Article 52-B which provided for deputation of a government servant from one department of the State to the other department has since been deleted from the statute book vide F.D. Notification SRO 192, dated 28.05.2007. 6. With the deletion of Article 52-B from the CSR, no deputation of government servant from one department to another department is permissible and the only deputations permissible are those specified in Article 52-C. This brings me to the question as to whether in absence of any specific provision for deputation contained in the CSR providing for deputation of government employee from one department of the government to another, can the services of an employee of one department be placed at the disposal of other department, if yes under what circumstances? 7. 7. In this regard it may be pointed out that the statutory rules of the some of the services make a specific provision for a particular post of technical nature or otherwise requiring some special expertise to be filled up by way of deputation from the concerned department which manages cadre of such posts. Like the post of Director, Rural Development is provided to be filled up by transfer from the J&K Administrative Service and this is so specifically provided in the Jammu & Kashmir Rural Development (Gazetted) Service Recruitment Rules, 2009 but there is no such prescription insofar as the post of Assistant Engineer is concerned. The post of Assistant Engineer (Civil) is borne on the J&K Public Works Department (Gazetted) Service and, therefore, the incumbents appointed as Assistant Engineers (Civil) in the Public Works (R& B) Department are required to be transferred in any part of the State of Jammu & Kashmir in any post borne on the cadre of such service or clause. This is so amply made clear in Rule 27 of the J&K Civil Services (Classification, Control and Appeal) Rules. 8. It may be out of place to refer to Rule 23 of the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010, which for facility of reference is reproduced hereunder:- "23. Intra and inter-cadre transfers:-A member of the State, Divisional or District cadre shall be transferable only within his own cadre and shall in no case be transferable from one Divisional cadre to another Divisional cadre or District Cadre, or from one District cadre to another District cadre or Divisional cadre post: Provided that for posts in Leh and Kargil Districts, notwithstanding any other provision contained in these rules, members of any of the State, Divisional or District cadres may be transferred for such tenure as the Government may deem appropriate from time to time. In all such cases the lien and promotion prospects of such members shall be protected in their parent cadre." 9. A conjoint reading of Rule 27 of the J&K Civil Services (Classification, Control and Appeal) Rules and Rule 23 of the J&K Civil Services Decentralization and Recruitment Rules, 2010 would make it abundantly clear that transfer from one cadre to another and from one service to another is not permissible under any circumstances. A conjoint reading of Rule 27 of the J&K Civil Services (Classification, Control and Appeal) Rules and Rule 23 of the J&K Civil Services Decentralization and Recruitment Rules, 2010 would make it abundantly clear that transfer from one cadre to another and from one service to another is not permissible under any circumstances. Viewed, thus, the transfer and posting of the Junior Engineers and Assistant Engineers of the Public Works (R&B) Department to the Department of the Rural Development Department are in violation of the aforesaid Rules. The Government, therefore, needs to take a serious note of the aforesaid fact and take remedial measures so that the statutory Rules are not violated by it or its officers without being accountable. 10. Coming to the facts of the case, as noted above, I have no hesitation to hold that the order impugned has been issued to accommodate the respondent No. 4 and, therefore, suffers from malice in law. Reference in this regard is invited to the observations of the Supreme Court made in paragraph Nos. 5 and 6 of the judgment rendered in the case of B. Varadha Rao vs. State of Karnataka and Others, AIR 1986 SC 1955 , which for facility of reference are reproduced hereunder:- "5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied to the disadvantage of the concerned Government servant. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap vs. State of Maharashtra and Others, (1985) 2 LLJ 73. We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. The learned Judges were dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the Government policy with a view to accommodate one Dr. R.P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the Government has power to transfer its employees employed in a transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa vs. State of Tamil Nadu and Another for the positivistic view that equality is antithetic to arbitrariness and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed: "It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration that even administrative actions should be just and fair. The observation that transfer is also an implied condition of service is just an observation in passing. It is the basic principle of rule of law and good administration that even administrative actions should be just and fair. The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government service, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules. 6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conductive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer." 11. The impugned order dated 16.02.2018 directing retention of respondent No. 4 in the Rural Engineering Wing of the Rural Development Department and subsequent order of posting the petitioner back to his earlier place of posting i.e. Assistant Engineer Stores Kathua are vitiated in law and therefore, cannot be sustained, yet the petitioner who in the process has been dislodged and posted in REW Block Keerian Gandyal is also not prejudiced in any manner, unless he too has an eye on the perceived prize posting i.e. Assistant Engineer Stores/Technical Officer to the Executive Engineer, REW, Kathua. 12. In view of the foregoing discussion, this petition is allowed. 12. In view of the foregoing discussion, this petition is allowed. The order impugned dated 16.02.2018 insofar as it pertains to the retention of respondent No. 4 in Rural Engineering Wing, Rural Development Department and Government Order dated 14.03.2018 insofar as it pertains to the posting of respondent No. 4 as Assistant Engineer Stores/Technical Officer to the Executive Engineer, REW, Kathua, are quashed. The respondents are free to fill up the post of Assistant Engineer Stores/Technical Officer to Executive Engineer, REW, Kathua by posting an appropriate person eligible to hold the post. 13. Before parting, I would like to bring this state of affairs in the notice of the Chief Secretary of the State for taking appropriate remedial measures in the matter and to take effective steps to streamline the process of transfer and postings of engineers in various government departments. It is expected that the Chief Secretary would take note of the observations made herein above and come up with a rational policy of transfer and posting of the engineers in various departments of the State. Let a copy of this order be sent to the Chief Secretary by the Registry of this Court.