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2020 DIGILAW 57 (CHH)

DHANUSH SINGH NETAM v. STATE OF CHHATTISGARH

2020-01-13

GOUTAM BHADURI

body2020
JUDGMENT Goutam Bhaduri, J. - This is second round of litigation. The petitioner, who is working as Sub Divisional Officer, has been transferred from Sub-Division No.II Jagdalpur Distt. Bastar to Sub-Division Dornapal vide order dated 17.08.2019 which was under challenge in first round of litigation i.e., WPS No.6669 of 2019 wherein this Court on 30.08.2019 has passed the following order : "1. The challenge in the present writ petition is to the order Annexure P-1 dated 17.08.2019. Vide impugned order, the petitioner has been transferred from the office of SDO, SubDivision No.II, Jagdalpur to SDO, Sub Division, Dornapal. 2. The challenge is on the ground that the petitioner has been working in scheduled area for more than 10 years and he has already worked at the place where he is now being transferred vide the impugned order. Counsel for the petitioner submits that as per the transfer policy, a person who has already worked in a scheduled area should not be transferred again in a scheduled area whereas the petitioner now is being sent to a core scheduled area from a scheduled area. Another ground which the petitioner has raised is that in the transfer policy itself there is a clause of not to send the officers more than 55 years of age to a scheduled area and in the instant case, the petitioner has crossed the age of 56 years. Therefore, if at all, if the respondents intend to transfer the petitioner on administrative exigency, the respondents under the transfer policy ought to have considered the posting of petitioner to a non-scheduled area. 3. Given the aforesaid facts and circumstances of the case, let the petitioner make a detailed representation to the respondents within a period of 10 days from the date of receipt of certified copy of this order and the respondents in turn shall consider the same within a further period of 45 days from the date of receipt of the representation. 4. Till the representation is decided, the effect and operation of the impugned order so far as the petitioner is concerned shall remain stayed. 5. The writ petition accordingly stands disposed off". 2. Thereafter, the petitioner has filed representation but the same has been decided on the ground that since the petitioner has not filed any application that he should be transferred from scheduled area, therefore, he is not kept out of scheduled area. 5. The writ petition accordingly stands disposed off". 2. Thereafter, the petitioner has filed representation but the same has been decided on the ground that since the petitioner has not filed any application that he should be transferred from scheduled area, therefore, he is not kept out of scheduled area. It is contended that factually the averments are wrong in view of Annexure P-8, which shows that the petitioner has made an application in 2008 to transfer him out of scheduled area as he spent considerable time in scheduled area. It is further submitted that the brother of petitioner has died in a blast of Naxalite and as such the petitioner has prayed to be transferred to the non-scheduled area and as per the Transfer Policy of the State, normally the persons who are more than 55 years of age, are not transferred to the Core Scheduled Area. It is further submitted that the petitioner has spent more than 27 years in the scheduled area, therefore, he being more than 55 years, should not be transferred to core scheduled area. 3. During the course of arguments, the petitioner has relied on relevant part of Chhattisgarh Hand Book, which contains the Instructions relating to Transfer Policy and would submit that as per Clause 1.5 transfer policy, normally the persons who have already spent in scheduled area for a considerable period are being transferred to non-scheduled area and the persons who are more than 55 years of age are not to be posted in core scheduled area. He further referred to the order dated 28.12.2008 passed by the Additional Secretary, P.W.D. vide Annexure P-7 on a representation of another person namely Santosh Kumar Sonwani and would submit that on similar ground, the transfer of the said person was considered whereas the case of the petitioner has been put to discrimination. Referring to the Transfer Policy, he placed reliance in order dated 07.01.2020 passed by this Court in WPS No.27/2020 and would submit that under the circumstances, the transfer of th petitioner ought to be cancelled. Clauses 1.5 & 2.5 of the Transfer Policy would be relevant here and quoted below : 4. Clause 1.5 purports that the person who has spent in scheduled area are normally transferred to non scheduled area and the person who is more than aged 55 years not to be transferred to core scheduled area. Clauses 1.5 & 2.5 of the Transfer Policy would be relevant here and quoted below : 4. Clause 1.5 purports that the person who has spent in scheduled area are normally transferred to non scheduled area and the person who is more than aged 55 years not to be transferred to core scheduled area. A perusal of the representation Annexure P-6 would show that it was categorically stated therein by the petitioner that he is more than 55 years of age and the ground was raised that he may not be transferred to the core scheduled area as he is more than 55 years. The perusal of the representation also shows that the petitioner has narrated the fact that he has spent considerable time in scheduled area and core scheduled area. As against this fact, while rejecting the representation, the following substantial order was passed : 5. The rejection of representation would show that it was rejected mainly on the ground that the petitioner has not made any application to place him out of scheduled area or core scheduled area. The said rejection order appears to be completely misconceived as it is against the transfer policy. It is obvious that the person who has followed the direction of the State and has served in Core Scheduled Area and scheduled area, in absence of his request he cannot be continuously posted in the core scheduled area or scheduled area. That apart, the application Annexure P-8 would show that on 24.09.2019 specific request was made by the petitioner that his brother has died due to Naxalite blast, therefore, he may be transferred to the other place i.e., non-scheduled area. 6. Taking into consideration the rejection of representation as against the averments made in the application it appears that cursorily the same has been decided whereas in respect of similarly situated person Santosh Kumar Sonwani, his representation was allowed by the same authority by passing the following order : 7. On comparing to the order dated 28.12.2019 (Annexure P-7) passed in respect of other officer Mr. Santosh Kumar Sonwani, there appears to be an apparent discrimination on the face of the impugned order dated 27.12.2019 (Annexure P-1) while deciding the representation of the petitioner. 8. On comparing to the order dated 28.12.2019 (Annexure P-7) passed in respect of other officer Mr. Santosh Kumar Sonwani, there appears to be an apparent discrimination on the face of the impugned order dated 27.12.2019 (Annexure P-1) while deciding the representation of the petitioner. 8. Further, the Supreme Court in the case of Secretary and Curator, Victoria Memorial Hall Versus Howrah Ganatantrik Nagrik Samity and others, (2010) 3 SCC 732 has laid down the law that even the administrative orders must be supported by specific reasons and while deciding an issue, the authority is bound to give valid reasons for its conclusion. Paras 40, 41 & 42 of the said judgment would be relevant and quoted below : "40. It is settled legal proposition that not only an administrative but also a judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hall-mark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justicedelivery system, to make known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind." (Vide State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 and State of Rajasthan v. Sohan Lal, (2004) 5 SCC 573 ). 41. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar, (2003) AIR SC 4664 ; Vishnu Dev Sharma Vs. State of U P, (2008) 3 SCC 172 ; SAIL Vs. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar, (2003) AIR SC 4664 ; Vishnu Dev Sharma Vs. State of U P, (2008) 3 SCC 172 ; SAIL Vs. STO, (2008) 9 SCC 407 ; State of Uttaranchal Vs. Sunil Kumar Singh Negi, (2008) AIR SC 2026 ; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta, (2009) AIR SC 2328 ; Ram Phal Vs. State of Haryana, (2009) 3 SCC 258 ; Mohd Yusuf Vs. Faij Mohammad, (2009) 3 SCC 513 ; and State of H P Vs. Sada Ram, (2009) 4 SCC 422 ]. 42. Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as to why his application has been rejected." 9. When the principles enunciated in Secretary and Curator, (2010) 3 SCC 732 (supra) are translated in juxtaposition with the order passed by the Secretary dated 27.12.2019 (Annexure P-1) and are compared to the grounds mentioned in the representation of the petitioner, certainly it shows that no valid reasons have been disclosed in the impugned order. Consequently, it does not satisfy the principles laid down by the Supreme Court. 10. In view of the above discussion, the order dated 27.12.2019 passed by the Additional Secretary, State of Chhattisgarh, P.W.D., is set aside. The matter is remitted back to the Additional Secretary to decide the case of petitioner afresh within a period of 60 days from the date of presentation of this order taking into consideration the grounds raised in the application of petitioner and likewise other petitions. Till then, the impugned transfer order in respect of the petitioner shall not be given effect to. 11. With such observation/direction, this writ petition stands finally disposed off.