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2020 DIGILAW 182 (GAU)

Deepak Tayeng v. State of Arunachal Pradesh

2020-02-11

KALYAN RAI SURANA

body2020
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. D. Panging, learned counsel for the petitioner. Also heard Mr. T. Jamoh, learned standing counsel for the Education Department (respondents No.1 to 4), and Mr. I. Chowdhury, learned senior counsel, assisted by Mr. S. Biswakarma, the learned counsel for the respondent No.5. 2. The case of the petitioner in this writ petition filed under Article 226 of the Constitution of India is that in the interest of public service, by an order No. 29/2019 dated 25.11.2019, the Education Department had transferred him and 28 others. At the relevant time, he was serving as In-Charge Deputy Director of School Education (hereinafter referred to as "DDSE" for short), Yinkiong, Upper Siang District cum- DDSE HQ and he was transferred and posted as DDSE, Roing, Lower Dibang Valley. The post which he was supposed to join was being held by the respondent No.5. Accordingly, the petitioner was released from his previous place of posting by virtue of a release order dated 29.11.2019 and he joined his new place of posting on 02.12.2019 by submitting his joining report to the Deputy Commissioner, Lower Dibang Valley, Roing. The information about the joining of the petitioner to his transferred post of DDSE, Roing was duly conveyed to the Secretary, Govt. of Arunachal Pradesh, Department of Education by W.T./Fax message dated 02.12.2019. However, the respondent No.5 was adamant and reluctant, as such, he did not hand over the charge by remaining absent. Accordingly, the petitioner apprised the Deputy Commissioner, Roing and the Secretary, Govt. of Arunachal Pradesh, Department of Education about the same by his letter dated 09.12.2019. However, the Secretary, Govt. of Arunachal Pradesh, Department of Education by an order dated 11.12.2019, partially modified the transfer order dated 25.11.2019, inter-alia, retaining the respondent No.5 as DDSE, Roing and transferring the petitioner as DDSE, Longding, where the respondent No.5 was supposed to go, and that it was clarified therein that the modification would be in force till March, 2020. The order dated 11.12.2019, thereby modifying the transfer order has been put to challenge in this writ petition. 3. The learned counsel for the respondent has submitted that the normal tenure of two years of the officers under transfer was over. The order dated 11.12.2019, thereby modifying the transfer order has been put to challenge in this writ petition. 3. The learned counsel for the respondent has submitted that the normal tenure of two years of the officers under transfer was over. It is also submitted that the respondent No.5 had taken a plea that he was a decorated officer and there were representations by public to retain him at Roing and, as such, it is submitted that the modification of the petitioner''s transfer order is not sustainable because of utter absence of any overwhelming public interest, necessitating his transfer immediately after joining the post. It is also submitted that the respondent No.5 took a plea that he had submitted a representation against transfer. In that regard, it is submitted that there is no government policy in force to stay transfer on a mere asking of the officer under transfer, as such, even if the transfer was stayed on submitting representation, the impugned order was not sustainable. The learned counsel for the petitioner has relied on the following cases, viz., (i) Zakir Hussain Vs. State of Assam & Ors., (2001) 3 GauLT 67 ; (ii) Tohelisumi Vs. State of Nagaland & Ors., (2009) 2 GauLT 956 , (iii) Ojing Jamoh Vs. The State of Arunachal Pradesh & 5 others, W.P.(C) 342(AP)/2018, decided on 13.05.2019. 4. Per contra, the learned standing counsel for the Education Department and the learned senior counsel for the respondent No.5 have made their respective submission to sustain the impugned order. Despite issuance of notice, the State Respondents No.1 to 4 have not filed their affidavit- in- opposition, but at the time of hearing, the learned standing counsel for the Education Department has produced the record. It is submitted that due to exemplary work done by the respondent No.5, the local MLA had made a request to the Minister of Education, Govt. of Arunachal Pradesh on 29.11.2019 to retain the place of posting of the respondent No.5 at Roing for betterment of the education system as he had brought about positive changes in the Education scenario. Accordingly, the Minister of Education by his note dated 02.12.2019, had directed the respondent No.5 to be retained at Roing and to transfer the petitioner to Longding. Accordingly, the Minister of Education by his note dated 02.12.2019, had directed the respondent No.5 to be retained at Roing and to transfer the petitioner to Longding. It is submitted that the Education Department had not only considered the request for retaining the respondent No.5, but had also considered representations submitted by three other officials under transfer. The learned senior counsel for the respondent No.5 had submitted that the transfer of the petitioner outside Roing would disturb his personal life as his son was studying in Class- VIII and his examination was scheduled in the month of March, 2020. It is submitted by his another representation dated 27.11.2019, the respondent No.5 had informed the Secretary (Education) about various works initiated by him, for which his retention at Roing should be considered. It is also submitted that in view of his achievements and works done, there was nothing wrong for a political person to move the Government with public grievance that was associated with his transfer, which the public perceived may run counter to the steps taken by the petitioner. In this regard, he has referred to the representations submitted by various organizations including two MLAs for retaining the petitioner at Roing. It is submitted that the petitioner has not been able to demonstrate that the order of retaining the respondent No.5 at Roing was arbitrary, or mala fide or was in violation of statutory provisions. It is submitted that the executive instructions of providing two year tenure had no statutory force and did not prohibit the competent authority to retain the respondent No.5 at his previous place of posting. It is also submitted that the power to retain the respondent No.5 at Roing was the executive privilege of the Government, which is not amenable to judicial review. It is submitted that as the impugned order had modified the order of transfer dated 25.11.2019, it would not affect the unilateral joining of the petitioner at Roing because the respondent No.5 did not hand over his charge and by virtue of the order dated 11.12.2019, he has continued to work at Roing as DDSE. It is submitted that as the impugned order had modified the order of transfer dated 25.11.2019, it would not affect the unilateral joining of the petitioner at Roing because the respondent No.5 did not hand over his charge and by virtue of the order dated 11.12.2019, he has continued to work at Roing as DDSE. The learned senior counsel for the respondent No.5 has submitted that the Secretary (Education) had given an appreciation letter dated 29.03.2019 to the respondent No.5 for his accomplishments and that for his services rendered, the respondent No.5 was awarded a silver medal by the State on the occasion of the Independence Day, 2019 celebration. The learned senior counsel for the respondent No.5 has placed reliance on the case of (i) Mohd. Masood Ahmad Vs. State of U.P. & Ors., (2007) 8 SCC 150 , and (ii) Director of School Education, Madras & Ors. Vs. O. Karuppa Thevan & Anr., (1994) Supp2 SCC 666 . 5. Perused the departmental file bearing No. ED2/GAZ/654/2019 of Establishment Branch (GAZ) regarding transfer and Posting of DDSE, as produced by the learned standing counsel for the Education Department. Accordingly, the learned counsel for the parties have been informed about its contents and the file was then made over to the learned counsel for the petitioner and learned senior counsel for the respondent No.5 for their perusal. It is seen that the departmental order to retain the respondent No.5 was initiated on the basis of request dated 29.11.2019, made by the local MLA to the Minister of Education, Govt. of Arunachal Pradesh. Thus, the process initiated by the Education Department to retain the respondent No.5 was not on the basis of his representation. 6. In the case of Director of School Education, Madras, the Supreme Court of India, without laying down any law in this regard, had passed the following order:- wxyz "2) However, the learned counsel for the respondent, contended that in view of the fact that respondent''s children are studying in school, the transfer should not have been effected during mid-academic term. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the tribunal, direct that the appellant should not effect the transfer till the end of the current academic year." zyxw 7. However, in the present case in hand, the records produced by the Education Department does not show that the Department had made a move to retain the respondent No.5 on the strength of his representation to allow him to be retained because the transfer was a mid-term transfer, which would adversely affect the studies of his son. Therefore, the case of Director of School Education, Madras (supra) cannot be applied to the facts of this case in hand. 8. In the case of Mohd. Masood Ahmad (supra), the Supreme Court of India, had held as follows:- wxyz "8) Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter affidavit filed on behalf of respondent Nos. 1 & 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State government is certainly within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of an M.P. or MLA would be vitiated. It all depends on the facts & circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order." zyxw 9. There can be no hard and fast rule that every transfer at the instance of an M.P. or MLA would be vitiated. It all depends on the facts & circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order." zyxw 9. Having regard to the said ratio, on facts, it is seen in this case that the Government had taken an exercise of transfer of as many as 29 officers. The transfer order was passed on 25.11.2019, which was to take place with immediate effect. As per the contents of the said order, it was issued with prior approval of the Government vide U.O. No. 2526 dated 11.10.2019. The Deputy Commissioner, Upper Siang District, Yingkiong had released the petitioner by release order dated 29.11.2019, and the petitioner had reported to the Deputy Commissioner, Lower Dibang Valley District regarding his joining on 02.12.2019, which was in turn communicated by WT/ Fax message to the Secretary (Education) on 02.12.2019 itself. On 02.12.2019, the Minister (Education) had issued a direction to retain the respondent No.5, and to post the petitioner at Longding. The concerned file moved before many officials, but no note was put up to the effect that the petitioner had already joined as DDSE in Roing. Thus, it appears that the vital information that the petitioner had already reported and joined his new place of posting on 02.12.2019 was withheld by the officials of the Department while moving the concerned file, although the Deputy Commissioner, Roing had informed the Secretary (Education) that the petitioner had reported about joining his assigned post. Thus, by suppression of material fact, it was made to appear as if the petitioner had not joined his place of posting. This action of withholding material facts in the concerned file cannot be accepted to be bona fide by any stretch of imagination, accordingly, such suppression of material facts is held to be mala fide and with a view to mislead officials before whom the said concerned file was moved. Therefore, the power to retain the respondent No.5 at the same place and the transfer of the petitioner to the place of posting of the respondent No.5 is not actuated by bona fide public interest, but the order has been passed at the dictates of the Minister of Education. Therefore, the power to retain the respondent No.5 at the same place and the transfer of the petitioner to the place of posting of the respondent No.5 is not actuated by bona fide public interest, but the order has been passed at the dictates of the Minister of Education. Therefore, in this case, it appears that while passing the impugned order, the concerned officials had mortgaged their conscience to please political persons like MLAs and Ministers and did not make any mention in the concerned file that the petitioner had already submitted his joining report as DDSE, Roing before the Deputy Commissioner, Lower Dibang Valley, Roing. 10. The Secretary, Govt. of Arunachal Pradesh did not assign any reason in the impugned order dated 11.12.2019, for modifying the transfer order dated 25.11.2019. Therefore, in the absence of reasons, it cannot be accepted that there was any public interest involved in passing the impugned order. Rather, the absence of assigning any reason makes the said impugned order arbitrary and unreasonable and it was passed at the whims and caprice of the concerned officials, which cannot be sustained on facts and in law. 11. In the case of Zakir Hussain (supra), cited by the learned counsel for the petitioner, this Court had held as follows:- wxyz "7) ... It is correct that in exercising the discretionary powers so conferred on the Government in dealing with transfer matters which is its prerogative, the authority must act with all fairness and reasonableness. The authority must not be allowed to exercise such power arbitrarily or within its whims and fancies." zyxw 12. In the case of Tohelisumi (supra), the Division Bench of this Court had relied upon the observations made by the Supreme Court of India in the case of Tarlochan Dev Sharma vs. State of Punjab, (2001) 6 SCC 260 , wherein it was observed as follows:- wxyz "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 (1995) 5 SCC 302 : (1995 AIR SCW 3543 : AIR 1995 SC 2390 ), 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 the Purtabpur Company Ltd., AIR 1970 SC 1896 , are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of 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." zyxw 13. When the authorities are required to modify the order of transfer for accommodating some officer, they are required to assign overwhelming public interest. In this case, no reason whatsoever was assigned. In respect of the petitioner and respondent No.5, the file so produced, only contains the note by the concerned MLA to the Minister (Education), on which the Minister of Education, Cultural Affairs, etc. had issued a direction to retain the respondent No.5 and to transfer the petitioner to Longding. There is no representation by the respondent No.5 in the file produced. Moreover, no one is disputing that the respondent No.5 was not a dedicated or decorated officer, but while transferring him by order dated 25.11.2019, the authorities are deemed to be aware of his activities and his decorations, yet the competent authorities had transferred him, by assigning that the transfers was in public interest. Moreover, no one is disputing that the respondent No.5 was not a dedicated or decorated officer, but while transferring him by order dated 25.11.2019, the authorities are deemed to be aware of his activities and his decorations, yet the competent authorities had transferred him, by assigning that the transfers was in public interest. It is expected that every officer posted in a particular place will work dedicatedly, but it does not mean that if one officer had initiated a particular programme, the Government had given him a personal responsibility to see that until the programme concludes, such officer must be stationed at one place alone, which would be against the transfer policy existing in the State. Therefore, such a stand by the respondent No.5 that he is required to implement development works initiated by him has absolutely no merit. 14. Thus, in view of the discussions above, the Court has no hesitation to set aside the impugned order No. 32/2019 under Memo No. ED.2/GAZ/ 654/2019 dated 11.12.2019 issued by the Under Secretary (Education), Govt. of Arunachal Pradesh, in so far as the petitioner, namely, Deepak Tayeng and the respondent No.5, namely, Ego Doye are concerned. It is made clear that this order would not affect the two other DDSEs named therein. 15. As a consequence of setting aside of the said impugned order No. 32/2019 under Memo No. ED.2/GAZ/ 654/2019 dated 11.12.2019, the respondent No.2, i.e. the Secretary (Education), Govt. of Arunachal Pradesh is directed to pass consequential orders of restoring the transfer order No. 29/2019 under Memo No. SEDN-46/92, Vol-III Pt. dated 25.11.2019, in so far it relates to the petitioner and the respondent No.5. Such order shall be passed within a period of 14 (fourteen) days from the date of receipt of a certified copy of this order. 16. The respondent No.2, i.e. the Secretary (Education), Govt. dated 25.11.2019, in so far it relates to the petitioner and the respondent No.5. Such order shall be passed within a period of 14 (fourteen) days from the date of receipt of a certified copy of this order. 16. The respondent No.2, i.e. the Secretary (Education), Govt. of Arunachal Pradesh shall also pass appropriate orders so that the petitioner is not deprived of his salary and other emoluments from the date of passing of the impugned order dated 11.12.2019 in the event the petitioner has not joined his transferred place of posting at Longding in view of the order dated 18.12.2019, passed by this Court in connection with this writ petition, by which it was directed that status quo in respect of the posting shall be maintained by the parties and the period of absence, if any shall not constitute break in service. 17. The writ petition stands allowed on terms as indicated above, leaving the parties to bear their own cost. 18. The Court Master shall return the departmental file to the learned standing counsel for the Education Department.