Meghalaya High Court
Shri Salgira R Marak vs . State Of Meghalaya & Ors. on 17 September, 2020
Equivalent citations: AIRONLINE 2020 MEG 40
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 2
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 382 of 2019
Date of Decision : 17.09.2020
Shri Salgira R Marak Vs. State of Meghalaya & Ors.
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. U.K. Nair, Sr. Adv. with
Ms. V. Sharma, Adv.
Ms. S.K. Nongrum, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. A.H. Kharwanlang, GA
i) Whether approved for reporting in Yes Law journals etc.
ii) Whether approved for publication in press: No
1. The petitioner who is serving as the Director, Printing & Stationery Department, Government of Meghalaya, is aggrieved by the impugned Letter bearing No. SG.12/97/169 dated 08.08.2019 (Annexure- XVII) issued by the Respondent No. 5, by which the Respondent State, sanctioned the creation of one post of Officer on Special Duty (OSD) personal to the petitioner in the Administrative Department of the Printing & Stationery, and by impugned Notification bearing No. SG.12/97/170 (Annexure- XVIII) also issued by the Respondent No. 5 appointing the petitioner as OSD in the Administrative Department of the Printing & Stationery and the Joint Director as Director in-charge, Printing & Stationery.
WP(C) No. 382 of 2019 Page 1 of 19The petitioner had made a representation to the Respondent no. 3, but however, in the meantime, the Respondents issued another communication dated 02.09.2019 (Annexure- XX) to the petitioner stating therein that non- compliance of the Order dated 08.08.2019 (Annexure- XVIII) would amount to violation of F.R. 59 sub rule (3) of the Meghalaya F.R-S.R, 1984. On receipt of the said communication dated 02.09.2019, the petitioner again made a representation to the respondent authorities to consider his case, but till date as nothing is forthcoming, as such the petitioner is before this Court by means of the instant writ petition.
2. I have heard the learned counsels for the parties.
3. The learned Senior Counsel U.K. Nair, assisted by Ms. V. Sharma, learned counsel on behalf of the petitioner submits that the main grievance of the petitioner, is that his appointment to the post of OSD (Officer on Special Duty), is outside the cadre as enumerated in the Service Rules holding the field, namely, the Printing & Stationery (Technical) Service Rules, 1995. To bolster this contention, the Learned Senior Counsel, has read out Paragraph 11 of the Affidavit-in-Opposition, to show that the respondents themselves have admitted this position wherein, he submits it has been clearly stated that the new post is outside the Directorate. He submits that in view of the above stated position, even if the pay of the post is debitable to the Head of Accounts of the Directorate, the same would be of no consequence, inasmuch as, the respondents by their own admission have conceded that the post of OSD, is outside the Directorate cadre as per the Rules, and that the post is admittedly created in the Administration Department under a completely different hierarchy. The learned senior counsel further submits that the petitioner in his capacity as a Director, is the Head of Department, but in the new post of OSD, he would be subordinate to three other Officers in the hierarchy which will result in a complete change and degeneration in his status.
4. The learned senior counsel submits that as would be evident from the Printing & Stationery (Technical) Service Rules 1995, (herein after referred to as the 'Rules') the petitioner is holding a substantive post of the Director, Printing & Stationery, which is a senior most Grade in the composition of WP(C) No. 382 of 2019 Page 2 of 19 service, and that as per Rule 4 of the Rules, the Meghalaya Printing & Stationery (Technical) Service, only consists of the Senior Grade (Director and Joint Director), Grade-I (Deputy Director, Printing), and Grade- II (Asstt. Director, Printing). He submits that it is well settled law, that posts cannot be added temporarily to a Cadre, unless such posts already exist in the Cadre, and as such, the post of OSD being not included in the Rules of 1995, the creation of such a post is therefore in violation of the Rules and further, the same is not a post carrying duties and responsibilities of a like nature to the Cadre post within the meaning of Rule 4 of the 1995 Rules. He asserts that the impugned appointment of the petitioner to an Ex-Cadre post is nothing but a malafide intention on the part of the State respondents to remove the petitioner from his substantive post to accommodate somebody else in his place.
5. The learned Senior counsel then argues that as per the respondent's contentions, it has been sought to be made to appear that the competent authority has examined in detail the need for creation of the post of OSD, as also the need for 'transferring' the petitioner to the said post in public interest, which however is belied, as there is absolutely nothing on record to show as to what kind of administrative exigencies arose to warrant the same. It is also submitted that, the respondents have repeatedly used the word 'transfer' whereas the instant case does not relate to transfer at all, inasmuch as, the petitioner has been 'appointed' to a post of OSD, a post, which is not borne in the Cadre as per the Rules of 1995. Learned counsel contends that a transfer may happen inside the cadre, but an ex cadre transfer cannot take place. It is reiterated by the counsel that the present case is also not a case of transfer, as is evident from the impugned Notification dated 08.08.2019, but rather a fresh appointment order, which is not permissible.
6. The learned Senior counsel then avers that equal pay in the post of OSD, as is reflected by the sanction of the post and appointment order, cannot be the sole determining factor on the equation of status and responsibility of the post without there being equivalence of duties, responsibilities and status in addition to the post being created in the cadre where the petitioner is presently serving. He contends that by the affidavit of the respondent's itself, it is stated that the transfer of the petitioner to the post WP(C) No. 382 of 2019 Page 3 of 19 of OSD, would elevate him in the hierarchy as he would no longer be a part of the Directorate. This he submits only goes to show that the petitioner is sought to be removed from his cadre in the name of administrative exigencies and this clear admission on the part of the respondents, really clinches the issue as to the removal of the petitioner from his cadre which could not have been done in this manner.
7. The learned Senior counsel then submits that the post of OSD not being included in the cadre strength under the Rules of 1995, is in pith and substance an ex-cadre post, and outside the cadre of the Recruitment Rules for the post/cadre of the petitioner. He submits that the same therefore, is an ex- cadre post and the appointment could not have been effected without first obtaining the consent of the petitioner. The appointment to the ex-cadre post of OSD, he contends, and the action of the respondents to coerce the petitioner into joining as OSD by giving up his post vide Notification dated 02.09.2019, failure of which would be taken to be a violation of FR-SR Meghalaya Rules, is unlawful, illegal and needs interference by this Hon'ble Court.
8. The learned Senior counsel has in support of his submissions has placed reliance on the following decision to buttress his case as noted at para 13;
(i) A.K. Bhatnagar v. Union of India [(1991) 1 SCC 545] that 13 "On more than one occasion this Court has indicated to the Union and the State Governments that once they frame rules, their action in respect of matters covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to Article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often government themselves get trapped on account of their own mistakes or actions in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules. There shall be no order as to costs."
In the instant case he submits, the respondents admittedly have deviated from the Rules while creating the post of OSD and posting the petitioner against WP(C) No. 382 of 2019 Page 4 of 19 the said post personal to him, which is admittedly not in the cadre strength under the Rules. Moreover, he submits, irrespective of pay, his status is also diminished. The learned senior counsel then refers to Rule 26 of the Printing & Stationery (Technical) Service Rules, 1995, and contends that Rule 26 is absolutely not applicable in the case of the petitioner, inasmuch as, the relaxation clause does not apply to changing the recruitment rules altogether, and submits that it is nothing but a case of colourable action, and misuse of power with malice in law, by the respondents and that the impugned notification is in violation of Article 309 of the Constitution of India.
9. Learned Senior counsel then places the case of State of Punjab & Others v. Inder Singh & Others [(1997) 8 SCC 372], and submits that the appointment cannot also come within the definition of deputation, as no consent was ever taken from the petitioner, and instead the impugned notifications were issued to him in violation of rules and laws holding the field, while sending him and/or appointing him to the post of OSD outside the cadre laid down in the Rules.
10. The learned Senior counsel then cites the case of Umapati Choudhary v. State of Bihar and Anr. reported in (1999) 4 SCC 659 and reiterates his submissions that this is not a case of transfer, but of the petitioner being assigned from one cadre to another cadre and that even if there be any necessity at all, in public interest to meet any exigency, the same must be consensual. The whole exercise of putting the petitioner in the post of OSD, being outside the cadre, as per Rules he contends, is unsustainable in law, as no one can be transferred/appointed outside the cadre without his consent as also in the case of deputation, which involves the consent of an employee being obtained to go on deputation/appointment as OSD being outside his Cadre.
11. The learned counsel to further his submissions has also placed strong reliance on the case of Takhelmayum Thoiba Singh v. State of Manipur & Ors. reported in 2008 (2) GLT 718, wherein he submits that it has been held that the post of OSD is not a transferable post and consent WP(C) No. 382 of 2019 Page 5 of 19 having not been obtained, the transfer order cannot be sustained. In the instant case too, the Senior counsel contends, the petitioner having not been transferred, but directly appointed as an OSD, outside his service cadre and that too without his consent, the impugned Notifications dated 08.08.2019 and the Notification dated 02.09.2019 are liable to be set aside and quashed.
12. Learned Senior counsel also submits that the case of the petitioner is squarely covered by the decision reported in 2013 (1) GLT 267 (Mangsatabam Imomacha Singh v. State of Manipur) where in the said case also, the petitioner was transferred and posted as Secretary from the post of Chief Engineer when the post of Secretary (Technical) was not included in the cadre strength, and in pith and substance, the post was an ex-cadre post, and it was held that the petitioner could not have been transferred outside his cadre, that too, without obtaining his consent.
13. The learned Senior counsel lastly submits that the impugned actions including the impugned Notifications/Orders/Letters are not sustainable in law and are liable to be interfered with, and directions are liable to be issued to the respondents to maintain the continuity of the service of the petitioner as Director, Department of Printing & Stationery, Government of Meghalaya with all consequential benefits, including salary.
14. The State respondents have resisted the writ petition and filed their affidavit in opposition, advanced oral arguments and also filed their written arguments. Mr. A. Kumar, the learned Advocate General while opening his arguments has submitted that the writ petitioner, has no case whatsoever, inasmuch as, the creation of the post, transfer and direction to restrain the respondents from giving effect to the same, cannot be the subject matter of judicial review. He submits that the creation of posts is a prerogative of the Government and the same being a policy decision the scope of judicial review is limited, and that the said creation was based on assessment of several aspects such as necessity, availability of resources and administrative considerations. He submits that the same being a policy decision it cannot be construed to be arbitrary and therefore, no interference is warranted. In support of the arguments as on the point of 'creation of post' the learned WP(C) No. 382 of 2019 Page 6 of 19 Advocate General has relied upon the following decisions which have been supplied in the written arguments and are as follows:
i. M Ramanatha Pillai v State of Kerala (1973 (2) SCC 650) "14. ... The power to create or abolish a post is not related to the doctrine of pleasure. It is a matter of governmental policy.
Every sovereign Government has this power in the interest and necessity of internal administration. The creation or abolition of post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, the continuance and the abolition of post are all decided by the Government in the interest of administration and general public."
ii. State of Tamil Nadu v. AmalaAnnai Higher Secondary School, (2009) 9 SCC 386 "15. Last but not the least, the High Court erred in directing the present Appellant 1 to sanction one post of Junior Assistant to Respondent 1, AAHS School from 1-6-1994 overlooking and ignoring that creation and sanction of posts is the prerogative of the executive and the courts cannot arrogate to themselves a purely executive power."
iii. Union of India v. Pushpa Rani, (2008) 9 SCC 242 "37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
He therefore submits that the decision to create the post being a policy decision was within the exclusive domain of the Executive, judicial review is limited. Learned AG also further submits that there is no allegation of malice WP(C) No. 382 of 2019 Page 7 of 19 or non-application of mind, and therefore there is no case to seek judicial review of the decision.
15. With regard to the transfer of the petitioner to the post of Officer on Special Duty in the Administrative Department, the learned Advocate General submits that the petitioner has not questioned his transfer to the post of Officer on Special Duty on the ground that it is outside cadre and that this plea is outside cadre in essence has been taken during the course of arguments. The learned Advocate General then draws the attention of this court to the representation of the petitioner placed as Annexure 19 of the writ petition at page 31, and submits that the grievance of the petitioner in the said representation, is only to the effect that his appointment to the post of Officer on Special Duty will demean his technical experience and it is not the case of the petitioner from his representation dated 21.08.2019 that the said post is outside the cadre. The learned Advocate General then contends that a perusal of the note leading to the creation of the post as placed at Annexure I of the Affidavit-in-Opposition at page 24, shows that Government is in dire need of creating a post of this nature to upgrade and modernize its Printing Presses throughout Meghalaya. It is also argued that, even assuming without admitting that the said post is outside the cadre, there is no requirement to seek consent in express terms and that consent can also be implied. In this context the learned counsel places reliance on the case of Kavi Raj and Others versus State of Jammu and Kashmir and Others (2013) 3 SCC 526, wherein the Hon'ble Supreme Court held in paragraph 24 as under:-
"24. ... No statutory rule has been brought to our notice, requiring prior consent of an employee, before his deployment against a post beyond his parent cadre. The mere fact that the appellants' consent was not sought before their posting at Government Medical College, Jammu (and/or at the hospitals associated therewith) would not, in our view have any determinative effect on the present controversy. ... But willingness of posting beyond the cadre (and/or parent department) need not be expressly sought. It can be implied. It need not be in the nature of a written consent. Consent of posting (or transfer) beyond the cadre (or parent department) is inferable from the conduct of the employee, who does not protest or consent such posting/transfer."WP(C) No. 382 of 2019 Page 8 of 19
The Learned Advocate General then reiterates that the petitioner never protested against the transfer on the ground that the same is outside the cadre post and as a matter of fact, the petitioner gave the consent to be Officer on Special Duty in the Administrative Department subject to petitioner being allowed to hold the charge of Director Printing and Stationery. It is also submitted, that the petitioner did give the consent for holding the post of Officer on Special Duty and the plea that no consent was obtained, assuming without admitting that the post of Officer on Special Duty is outside cadre, is misconceived.
16. The next limb of argument of the learned Advocate General is that the Post of Officer on Special Duty is Part of the Cadre, and to buttress this contention has placed reliance on the following facts which are summarized as follows :-
i) Rule 6 (1) of the Printing and Stationery (Technical) Service Rules, 1995 clearly provides that the strength and composition of the service shall be such that may be determined by the Governor from time to time.
The Rule thus clearly gives power to alter the strength and composition of the service by the Governor. In other words, it is open to the Government to alter the strength and composition of the service at any time.
ii) The reliance of the petitioner on Rule 6 (2) of the Rules to contend that the strength of service and post mentioned in Schedule I to the Rules are the only posts in the cadre is misconceived. Rule 6 (2) merely indicates strength of service and post at the commencement of these Rules. Even in Rule 6 (1) there is no reference that strength and composition of the service can be altered only by amending Schedule I. It can be done even without amending the Rules. The same has been done by notification after obtaining the sanction of the Governor.
The learned Advocate General then further submits that the fact that the post is part of the cadre is also reflected from the notification bearing No. SG.12/97/169 dated 8.08.2019 (Annexure 29 to the writ petition) which says WP(C) No. 382 of 2019 Page 9 of 19 that the expenditure is debitable to the Head of Account which is "2058 STATIONERY AND PRINTING - 103 - GOVT PRESSES (01) Press Administration 01 Salaries - General 2019- 2020". This he asserts clearly indicates that the post is part of the cadre as the salary is being drawn from the same Head from which salary is being drawn for others in the cadre.
The learned Advocate General to distinguish the finding in the case of Mangsatabam Imomacha Singh vrs. State of Manipur 2013 (1) GLT 267, relied upon by the petitioner, submits that in the cited case, the Learned Single Judge of the Gauhati High Court held that the post is outside cadre because salary to the post was paid from the Head of Accounts of General Administration. Learned counsel, submits that one of the determinants for coming to a conclusion as to whether a post is part of the cadre, is the source through which salary will be disbursed to the incumbent holding the newly created post, and in the present case, the salary is debitable from the same Head from which others in the cadre are getting the salary which shows that the post is not outside the cadre. The learned Advocate General has also drawn the attention of this court to paragraph 10 of the Affidavit-in-Opposition at page 18, which he contends the Government has clearly maintained that newly created post is part of the cadre of Printing and Stationery and that even in the rejoinder, the petitioner has not rebutted to the same.
To conclude his submissions on this particular point, learned counsel submits that the post of Officer on Special Duty is not a civil post in the Department within the meaning Article 320 of the Constitution which would require the State to consult the Public Service Commission in making appointment to such post, but the same being a part of the cadre of technical service, the Public Service Commission was not consulted.
17. The learned Advocate General has also dwelt on the fact that monetary benefits of the petitioner have not been affected in any manner and submits that even otherwise, there is neither any reduction in pay benefits, nor any allegation that any person junior to the petitioner has been installed at a senior position. Reliance is placed by the learned counsel in the decision rendered in a matter concerning creation of post of Officer on Special Duty in WP(C) No. 382 of 2019 Page 10 of 19 the case of E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 wherein it was held as under:
"33. On an objective consideration we find that the two posts were created for discharging functions requiring very high calibre and specialized experience and must be counted as no less responsible than the topmost Cadre posts. Finding suitable officers for such specialized jobs is always a difficult problem for the administration. The Cadres do not always overflow with superabundance of specialized experience. The choice, therefore, becomes limited. The Administration has also to take into account the willingness or otherwise of an officer to take up a new job which may not invest him with wide executive powers which he wields while holding even less important posts. The choice in the present case fell on the petitioner when the post of the Deputy Chairman was created and then again when the post of Special Officer was created."
37. The posts of Deputy Chairman, Planning Commission and Officer on Special Duty are equal in status and responsibility. The services of Cadre officers are utilised in different posts of equal status and responsibility because of exigencies of administration and employing the best available talent in the suitable post. There is no hostile discrimination in transfers from one post to another when the posts are of equal status and responsibility.
88. ... So long as the transfer is made on account of exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not open to attack under Articles 14 and
16."
The learned Advocate General further submits that an employee has no right to insist on a transfer/posting to a particular post, as long as his monetary benefits are not adversely affected, and contends that in the instant case, the scale of pay level in case of Officer on Special Duty is also 21, which is identical to post of Director, therefore there is no violation of Article 14 or 16 as alleged.
In addition to the submissions already advanced, the learned Advocate General reiterates that firstly, even on merits, the creation of the post of Officer on Special Duty is well within the interest and necessity of internal administration, and that the petitioner, with his technical background and expertise, is qualified to assist and advise the administrative department by giving technical inputs which would increase efficiency and productivity; and secondly, it is entirely upon the competent authority to decide when, where WP(C) No. 382 of 2019 Page 11 of 19 and at what point of time, a public servant is to be transferred from his present posting. Transfer he avers, is not only an incidence but an essential condition of service, and it does not affect the conditions of service in any manner and there is no vested right to be posted at a particular place. Learned counsel has placed the following decisions in support of his stand; B. Varadha Rao v. State of Karnataka and Ors. (1986) 4 SCC 624; Shilpi Bose v. State of Bihar1991 Supp (2) SCC 659; Union of India v. N.P. Thomas 1993 Supp (1) SCC 704; Union of India v. S.L. Abbas 1993 AIR 2444; Ramadhar Pandey v. State of U.P. &Ors., 1993 Supp. (3) SCC 35; State of U.P. v. Dr. R.N. Prasad, 1995 (Supp) 2 SCC 151; Abani Kante Ray v. State of Orissa, 1995 (Supp) 4 SCC 169.
18. In rounding off his submissions, the learned Advocate General submits that from the point of settled law as laid down by the Hon'ble Supreme Court, and from the facts of the case it is evident that, (i) matters concerning creation/abolition of posts is within the exclusive domain of the executive and are in the realm of 'policy decision'; (ii) Judicial review in matters of concerning 'policy decisions' is limited (iii) No employee has any vested right to be to be posted at a particular place.; and (iv), neither is there any downgrading, as Firstly, the petitioner has been appointed to a post higher in hierarchy. Secondly, the post of Officer on Special Duty has been created after factoring in the administrative necessity and the technical competence of the petitioner. Thirdly, there is no difference in the pay scale or seniority. Fourthly, there is no allegation of any subordinate officer being promoted over the petitioner and Fifthly, there are no allegations of malice, and (v) The petitioner has violated the discipline and refused to join the new post despite the order of the State Government and his actions are subversive of discipline and disobedience of the order of the State Government especially F.R 59 (3) of Meghalaya Fundamental Rules and Subsidiary Rules, 1984 which clearly says as under:-
"F.R. 59 (3) Not more than one day's joining time shall be allowed to a government servant to join a new post within the same station or which does not involve a change of residence WP(C) No. 382 of 2019 Page 12 of 19 from one station to another. For this purpose the term same station, will be interpreted to mean the area falling within the jurisdiction of the municipality or corporation including such suburban municipalities, notified areas or cantonments as are contiguous to the named municipality, etc."
19. Finally in conclusion the learned Advocate General submits that the petitioner having violated the service laws is liable to be dealt in accordance in law, and there has been no violation of any legal or fundamental rights of the petitioner, and the writ petition being devoid of merit deserves to be dismissed with cost.
20. Having heard the learned counsels at length, it seems that the entire dispute and grievances as put up, are centered around the following, whether the petitioner had been consigned from one cadre to another, whether the posting of the petitioner is in the nature of, Deputation, Transfer or Appointment and whether the same had been done in violation of the statutory rules governing the service of the petitioner.
21. The services of the petitioner who was serving as the Director, Printing & Stationery, Government of Meghalaya is governed by the Printing & Stationery (Technical) Service Rules of 1995. These rules were framed under Article 309 of the Constitution of India and as the title suggests is a technical service of Meghalaya. Rule 4 of the Rules gives the composition of service and the same is reproduced herein below: -
"4. Composition of the Service:- (1) The service shall consist of the following grades and posts:-
(I) Senior Grade (1) Director Printing and Stationery (2) Jt. Director (II) Grade I Deputy Director (Printing) (III) Grade II - Asstt. Director (Printing) (2) The categories of posts in clause (i), (ii) and (iii) of Sub-rule (1) shall form an independent cadre. Members of the lower cadre shall WP(C) No. 382 of 2019 Page 13 of 19 not claim for appointment to any of the higher cadre except in accordance with the provisions made in these Rules."
A perusal of the above quoted Rule, for the purposes of the instant case is concerned, shows that in the senior grade in the services consist of a Director and a Joint Director and the petitioner was serving in the senior grade.
22. Rule 6 provides for the strength of service and is also reproduced herein below:-
"6. Strength of the Service :- (1) The strength and composition of the service shall be such as may be determined by the Governor from time to time.
(2) At the commencement of these Rules, the strength of the service and posts therein shall be as shown in Schedule I."
23. The petitioner therefore, as per the Rules by virtue of being the Director in the senior grade, was holding a regular and substantive post in the Department of Printing & Stationery (Technical). It also noted that his holding of the post of Director was by virtue of his being promoted to the said post as per the service rules.
24. A perusal of the impugned Notifications both dated 8.8.2019, reflect that the respondents had created the post of Officer on Special Duty personal to the petitioner and his being relieved of the post of Director on his assumption of the newly created post of OSD. This action of the respondents on a careful examination has created a piquant situation and thrown up many questions which merits careful consideration by this court. The stand of the respondents as seen and noted, is that it is a plain transfer of a Government servant from one equivalent post to another. However, on examination, the same cannot be regarded to be a case of transfer, inasmuch as, the Notifications clearly speak that vide the sanction accorded for the post, the petitioner was appointed as OSD in the Administrative Department of Printing & Stationery. The appointment letter dated 08.08.2019 is reproduced herein below:-
WP(C) No. 382 of 2019 Page 14 of 19"GOVERNMENT OF MEGHALAYA PRINTING AND STATIONERY DEPARTMENT ORDERS BY THE GOVERNOR NOTIFICATION Dated Shillong the 8th August, 2019 No. SG. 12/97/170 - Consequent upon the creation of 1(one) post of Officer on Special Duty in the Administrative Department of Printing and Stationery vide sanction letter No. SG.12/97/169 dated 8th August, 2019, the Governor of Meghalaya is pleased to appoint Shri Salgira R. Marak, Director of Printing and Stationery, Shillong as Officer on Special Duty in the Administrative Department of Printing and Stationery in the scale of pay level 21 with effect from the date of taking over charge and until further orders.
Shri. E.D.R. Tariang, Joint Director, Printing and Stationery will temporarily officiate as Director in-charge Printing and Stationery in the scale of pay level 19 with immediate effect and until further orders.
Sd/- Shri M.R. Synrem Commissioner & Secretary to the Govt. of Meghalaya Printing & Stationery Department Memo. No. SG.12/97/170-A, Dated Shillong the 8th August, 2019 Copy to :-
1. P.S. to Chief Minister, for kind information of the Chief Minister.
2. P.S. to Minister Incharge Printing and Stationery Department for kind information of the Minister.
3. P.S. to Chief Secretary for kind information of the Chief Secretary.
4. P.A. to Commissioner & Secretary to the Govt. of Meghalaya, P&S Department
5. P.A to Secretary, Printing and Stationery Department
6. Joint Secretary, Printing and Stationery Department
7. Director Printing & Stationery, Meghalaya, Shillong
8. The Accountant General (A&E) Meghalaya, Shillong
9. Personnel & A.R. (A) Department
10.Finance (E.C.I) Department
11.Director Printing & Stationery, Meghalaya, Shillong. He is requested to publish the above Notification in the next issue of the Meghalaya Gazette.
12.Treasury Officer, Shillong South
13.Nazir, Meghalaya (Civil) Secretariat for information and necessary action.
14.Guard File.
By order etc, Sd/-
( Smti. O.D. Mairom ) Under Secretary to the Govt. of Meghalaya Printing and Stationery Department"
25. Another aspect of this appointment that cannot escape scrutiny, is that though touted by the respondents to be a case of simple transfer of the WP(C) No. 382 of 2019 Page 15 of 19 petitioner, but here again even if it is taken to be a transfer, the same has been done to a newly created post which is not borne in the cadre of the Printing & Stationery (Technical) Service Rules of 1995, therefore an ex-cadre post. A plain meaning of 'cadre' as understood is the strength of service or part of a service, which therefore clearly implies that the new post of OSD cannot be taken to be part of the strength of the service in the cadre of Printing & Stationery (Technical) service. Though, arguments have been put up by the respondents, that it is not the case of the petitioner that the post is outside the cadre, and that even if assuming that the said post is outside the cadre there is no requirement to seek consent in the express terms, as held in the judgment of Kavi Raj and Others versus State of Jammu and Kashmir and Others (2013) 3 SCC 526, this argument is noted but not accepted. In a posting beyond the cadre of selection, an employee usually cannot be posted or transferred without his consent. In the cited case the persons had joined to their new posting and the consent was taken to be implied. However, in the instant case, no consent was sought from the petitioner and moreover he did not join to the post of OSD to enable the respondents to contend that there was tacit acceptance of the transfer beyond his cadre. Schedule 1 to the Rules, and the post mentioned therein clearly go to show that the posting or transfer was beyond the cadre in which the petitioner was selected.
26. Another factor which has been stressed by the respondents to justify that the post of Officer on Special Duty is part of the cadre, is by stating that the salary of the petitioner is being drawn from the same Head from which salary is being drawn for others in the cadre. This contention also will not change the fact that the said post of OSD is an ex-cadre post, inasmuch as, the source of the salary is not the sole determining factor to define as to whether the said post is within or outside the cadre.
27. Another stand taken by the respondents that the composition of service can be altered without amending Schedule 1 to the Rules, and that the Rules provide that it is open to the Government to alter the strength and composition of the service at any time, also does not seem convincing or of any assistance to the case of the respondents. The Rules, have been framed under Article 309 of the Constitution of India and as such have a binding effect and enjoins the respondents to act and regulate the service as per the Rules as WP(C) No. 382 of 2019 Page 16 of 19 framed. In this context, the judgment cited by the petitioner and quoted earlier i.e. A.K. Bhatnagar v. Union of India [(1991) 1 SCC 545 is most relevant and wherein it has been held that once Rules are framed, the Union and State Governments' action, in respect of matters covered by the Rules should be regulated as such. Another limb of argument that the actions of the respondents was as per Rule 26 of the Rules which is a relaxation clause and which also have been quoted earlier in this judgment also cannot justify the impugned actions, inasmuch as, a relaxation clause cannot apply for facilitating the changing of the Rules as has been done in this case, which has essentially touched upon the manner of recruitment which is the basis for the composition of the cadre. Rule 26 on a plain reading which for convenience is extracted herein below reads as follows.
"The Governor, is satisfied that the operation of any of the provisions of these rules causes undue hardship in any particular case or cases or results in any particular post or posts being left unfilled for want of person (s) possessing the minimum experience as specified by these rules for promotion to such post (s), may dispense with or relax the requirement of any of these Rules to such extent and subject to such conditions, as may be considered necessary for dealing with the case in a just and equitable manner, or, for meeting the exigencies of public interest Provided that the case of any person shall not be dealt with in any manner less favorable to him than that provided under these Rules".
Thus, it can clearly be seen that nowhere does Rule 26 cover the impugned actions that had been resorted to by the respondents.
28. On a question of deputation and as to whether the posting of the petitioner would amount to one, the same is also in the negative. Deputation as held in State of Punjab & Others v. Inder Singh & Others [(1997) 8 SCC 372], summarises the concept as follows-
"the concept of 'deputation' is well understood in service law and has a recognized meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of their deputation the employee has to come back to his parent department to occupy the same position unless in the WP(C) No. 382 of 2019 Page 17 of 19 meanwhile he has earned promotion in his parent department as per the Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post."
Therefore, on the application of the law as laid down by the Hon'ble Supreme Court the case of the petitioner can in no manner be termed to be 'on deputation' as the post was created personal to the petitioner as evidenced by the sanction for creation of the post and moreover no consent was ever obtained.
29. On the point of limits of judicial review over a policy decision, as contended by the respondents, and that the creation, abolition and transfer of post is the prerogative of the Government done in administrative necessity, the stand of the respondents would be correct, if the impugned actions are not contrary to any constitutional or statutory provision. However, in the present case, what has unraveled is that the petitioner has been sought to be appointed in the guise of a transfer, to a newly created post which is outside the cadre, a fact further fortified by the statements made by the respondents in Para 11 of the affidavit-in-opposition wherein it has been categorically stated as follows:
"in fact, the transfer of the petitioner to the post of OSD would elevate him in the hierarchy as he would no longer be part of the Directorate but would be elevated to the administration department in the Government and would directly be subordinate only to the Joint Secretary, the Secretary and the Commissioner & Secretary respectively. The petitioner would bridge the gap between the Government and the Directorate and therefore not be answerable to the Directorate nor would he be subordinate to the Director". (Emphasis supplied) This declaration by the respondents on affidavit leaves little room for doubt as to the flawed decision making process embarked upon by the respondents in the creation of the post of OSD personal to the petitioner and outside the cadre which is in clear violation of the Rules. The impugned Notification that states that the petitioner is appointed to the post of OSD, carries with it the meaning that the petitioner who is confirmed in the cadre of the Technical services in the department would no longer hold his permanent post in which WP(C) No. 382 of 2019 Page 18 of 19 he had been employed under the Rules. Though the Courts have no role in determining the criteria, method and manner of recruitment or selection, ample jurisdiction is available to interfere into actions which are patently arbitrary or vitiated in any manner.
30. Without delving into other issues raised, such as the pending representation of the petitioner, the inescapable conclusion that is arrived at after discussion and due consideration, is that the impugned Notifications Letter bearing No. SG.12/97/169 and No. SG.12/97/170 respectively, both dated 08.08.2019, are unsustainable in law as being issued in violation of the statutory Rules, and both are accordingly set aside and quashed. Resultantly also the communication dated 02.09.2019 being consequential to the other impugned notifications does not survive for consideration and is also set aside and quashed.
31. The writ petition is accordingly allowed, and disposed of.
32. No order as to costs.
(H.S. Thangkhiew) Judge Meghalaya 17.09.2020 "V. Lyndem PS"
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