Central Administrative Tribunal - Gauhati
Amit Sahai, Ifs vs State Of Assam And Ors. on 13 February, 2002
Equivalent citations: 2003(1)SLJ152(CAT)
ORDER
D.N. Chowdhury, Vice Chairman
1. This application under Section 19 of the Administrative Tribunals Act, 1985 has arisen and is directed against the order dated 20.11.2001 transferring and posting the applicant as Deputy Conservator of Forests attached to the Conservator of Forests, Lower Assam Social Forestry Circle, Bongaigaon. A thumbnail sketch, relevant for the purpose of adjudication of the O.A. is summed up below:
The applicant is a member of the Indian Forest Officer (IPS for short), recruited under Section 7 of the IPS (Recruitment) Rules, 1966 read with Section 8 of the IFS (Appointment by Competitive Examination) Regulations, 1967, allocated to the Assam Wing of the Assam-Meghalaya Joint Cadre. The applicant, on his return from Central deputation, by order dated 9.8.2000 was posted as Divisional Forest Officer, Aie Valley Division, Bongaigaon. The said order was modified by order dated 6.9.2000 and he was appointed as Divisional Forest Officer, Western Assam Afforestation Division on temporary basis and posted at Manikpur. By order dated 11.6.2001 the applicant thereafter was transferred and posted as Divisional Forest Officer, Aie Valley Division, Bongaigaon. By the same order the respondent No. 4 was also transferred and posted as Deputy Conservator of Forests attached to the Conservator of Forests. Lower Assam, Social Forestry Circle, Bongaigaon. It was stated that the order of transfer dated 11.6.2001 was challenged in W.P. (C)No.4193of2001 and by order dated 15.6.2001 the said application was dismissed. The matter was further assailed in Writ Appeal No.219of 2001 against W.P. (C)No. 4193/2001 and by order dated 13.9.2001 the said Writ Appeal was also dismissed. By the impugned order dated 20.11.2001 the respondent No. 1 passed the following order transferring and posting the applicant and respondent No. 4 in the respective places as indicated by the Joint Secretary, Government of Assam:
"No. FRE. 68/2001/15: Shri K. Hazarika, Deputy Conservator of Forests, attached to the Conservator of Forests, Lower Assam Social Forestry Circle, Bongaigaon is in the interest of public service transferred and posted as Divisional Forest Officer, Aie- Valley Division, Bongaigaon with effect from the date he takes over charges vice Shri A. Sahai, IPS, transferred.
No. FRE.68/2001/15-A: Shri A. Sahai, IPS, Divisional Forest Officer, Aie-Valley Division, Bongaigaon is in the interest of public service is transferred and posted as Deputy Conservator of Forests attached to Conservator of Forests, Lower Assam (SF) Circle, Bongaigaon with effect from the date be takes over charge vice Shri K. Hazarika, Deputy Conservator of Forests transferred."
The legality of the aforesaid order is thus challenged in this proceeding as arbitrary, discriminatory and unlawful and vioiative of Article 14 of the Constitution of India.
2. The respondent Nos. 1, 2 and 4 contested the case. The respondent Nos. 1 and 2 in their written statement filed through the Joint Secretary, Government of Assam, Forest Department, denied and disputed any impropriety in passing the impugned order of transfer. In para 8 of the written statement the respondent Nos.l and 2 stated that some proposals were made by the State Government for the triennial review of the IPS Cadre including the Aie-Valley Division in the senior scale. The Government of India by Notification dated 9.11.1995 earmarked 22 out of 33 Territorial Deputy Conservator of Forests posts for cadre officers. The State Government, however, has not, so far, made any Division-wise identification of 22 posts of Territorial Divisions for cadre officers (IPS).
3. The respondent No, 4 submitted a separate written statement opposing the claim of the applicant. The respondent No. 4 refuted the claim of the applicant that the post of Divisional Forest Officer, Aie-Valley Division is a cadre post. The respondent No. 4 in the written statement contended that the order of transfer was made bonafide in the public interest. It was also contended that the power to transfer is totally vested on the employer and unless the order is patently malafide or unlawful, such order is not the subject matter of judicial review.
4. We have heard Mr. B.K. Sharma, learned Sr. Counsel assisted by Mr. S. Sarma and Mr. U.K. Goswami, on behalf of the applicant, Mrs M. Das, learned Government Advocate, Assam, Mr Gautam Uzir, learned Counsel for the respondent No. 4 and also Mr. A.K. Choudhury, learned Addl. C.G.S.C., at length.
5. Mr Gautam Uzir, learned Counsellor the respondent No. 4, time and again reminded us of the constriction and restriction of judicial review in the area of exercise of discretionary power. Indubitably, transfer of an officer from one place to another is in the domain of the employer, pointedly mentioned by Mr Uzir. Judicial review is not an appeal in disguise. Mr. Uzir also contended that an order of transfer is not to be lightly interfered while exercising jurisdiction under Section 19 of the Administrative Tribunals Act, 1985. The learned Counsel for that purpose also referred to the decision of the Supreme Court in the case of State Bank of India v. Anjan Sanyal and Ors., (2001) 5 SCC 508=2001 (3) SLJ 270 (SC).
6. There cannot be any demurral on the proposition put forward by Mr. Uzir and the Tribunal while exercising the power under Section 19 of the Administrative Tribunals Act is required to conform to the accepted policies and principles pertaining to judicial review. Judicial review is not an appeal against the merits of the decision. It is only meant to be exercised basically for upholding the rule of law and to keep going the constitutional norms or to maintain the constitutional standards. An officer of the Government cannot claim any vested right to any particular post and a member of the All India Service is expected to serve anywhere in India. As alluded, transfer and posting of officers indubitably is a Governmental business belonging to a discretionary area. The Constitution, the lex Supreme, however, defined the parameters of power. All power has its legal limits. Discretionary exercise of power must also emit from a legal pedigree. Unfettered discretion is what the Courts refuse to countenance. Discretionary power is to be exercised for valid and lawful purpose. The applicant belongs to the All India Forest Service, He can only be posted to a cadre post as enjoined under the IPS (Cadre) Rules, 1966. The IPS (Cadre) Rules, 1966, the IPS (Pay) Rules, 1968 and all the cognate Rules are meant to provide a safeguard to the members of the Indian Forest Service. The Rules are intended to ensure that a member of the IPS is not elbowed out to a non-cadre post which is inferior in status and responsibility. The statutory framework is deviced, devising a potent palladium against unjust, unreasonable and unequal treatment from the administration. The jurisprudential motif is demonstrated in the decision rendered by the Supreme Court of India in E.P. Royappav. State of Tamil Nadu, AIR 1974 SC555; T.N. Administration Service Officers' Association and others v. Union of India, (2000) 5 SCC 728.
7. All appointments and postings in the cadre posts are to be made by the State Government through the officers of IPS Cadre. The Scheme of All India Services Act, 1951 read with the rules clearly speaks of manning the important posts in the administration of the State. Statutorily, these officers are protected from postings in any insignificant post. By statutory mechanism the Central Government is entrusted with the responsibility of identifying such posts and to identify in the cadre. Admittedly, the post of Deputy Conservator of Forests attached to the Conservator of Forests cannot be said to be a cadre post. At any rate, the post of Deputy Conservator of Forests attached to the Conservator of Forests cannot be said to be equivalent to the post of Divisional Forest Officer in the Aie-Valley Division, Bongaigaon. As per IPS (Pay) Sixth Amendment Rules, 1995 there are 22 posts of Deputy Conservator of Forests. In the Territorial Division, one post of Deputy Conservator of Forests is for Assam State Zoo and two posts of Deputy Conservator of Forests are for Wildlife. There is no such cadre post of Deputy Conservator of Forests attached to the Conservator Forests. It may also be mentioned that in the order of the Governor dated 11.6.2001 under the signature of the Principal Secretary, Government of Assam, Forest Department, pursuant to the order of the High Court, the State Government pointed out that the post of Divisional Forest Officer, Territorial, Aie-Valley Division is one of the 33 posts of Territorial Division, of which 22 were reserved for IPS officers, The same order also indicated that at the relevant time there were only 9 IPS officers in these posts and the said fact was highlighted by the Director General of Forests and Special Secretary, Ministry of Environment and Forests by communication dated 27.4.2001 addressed to the Chief Secretary, The State Government accordingly took a conscious decision by the aforesaid order not to post the respondent No. 4 in the post of Divisional Forest Officer, Territorial, Aie-Valley Division. Mr Gautam Uzir, learned Counsel for the respondent No. 4, however, contended that there is no bar for the Government to change the view on lapse of time. As such there in no prohibition, but then, here is a case where the Government took a conscious decision not to post the officer concerned and no overwhelming reasons are ascribed for change of its opinion. At least no materials were furnished to show that there was change of circumstances after the aforesaid order dated 11.6.2001 was passed. In our view, in the circumstances, the posting of the applicant as Deputy Conservator of Forests attached to the Conservator of Forests is contrary to the statutory provisions enjoined in the Cadre Rules and IPS Pay Rules.
8. As alluded earlier the applicant took over charge of the post of Divisional Forest Officer, Aie-Valley Division only on 4.7.2001. Hardly four months after, the impugned order of transfer dated 20.11.2001 was issued scuttling the tenure of the applicant. It is the State Government which has laid down its policy fixing a normal tenure of three years. Mr Uzir submitted that it was only a guideline and not a statutory instrument. Admittedly, the rules contain a mandatory flavour. Executive policies are meant for guidance. Guidance are also meant to be obeyed. Such policy guidelines generated expectation conferring some benefits. A Government servant legitimately expects that those policies are to be followed. The rule of legitimate expectation is founded on basic principles of justice and fair play. Legitimate expectations are not to be readily thwarted. The safeguard of legitimate expectation has its root in the constitutional principle of rule and law that calls for legality, regularity, predictability and certainty in the Government dealings. The expectation cannot endure for all times. It can, of course be revoked cither by express or implied representation. It can also be superseded. We were not made aware that the policy of tenure positing had ever been supcrceded. A policy formulated can be departed from, but there must be some good and weighty reasons. No justifiable reasons are ascribed as to why in this fashion the applicant's tenure of posting at Aie-Valley Division had to be brought to an end abruptly and despatch him to a non descript post four months after his assignment.
9. Mrs M. Das, learned Government Advocate, Assam appearing on behalf of respondent Nos. 1 and 2 promptly referred to the orders by the Governor dated 20.11.2001 mentioning that the transfer was made in the interest of public service. Mr. Uzir added that transfer is an incident and condition of service and such orders are passed in the public interest and efficiency of public administration. As pointed out earlier, there is no dispute on the principle of transfer. No Government servant or employee has a legal right for being posted in a particular place. Transfer of a public servant made on administrative ground or in public interest is not to be interfered with unless there are strong and pressing ground rendering the transfer order illegal on the violation of statutory rules or on the ground of malafides. We have already discussed the matter in the preceding paragraphs and reached the conclusion that the transfer order was made contrary to the statutory provisions. However, to consider the plea of the respondents that the transfer was made in public interest, we called for the records. On perusal of the records it transpired that the Hon'ble Minister, Forests/HAD etc. sent the Memo No. M/HAD/F/M/19/2001 dated 16.10.2001 addressed to the Secretary, Forests. By the said communication the Hon'ble Minister issued the following instruction:
"The transfer and posting of the following Officers may please be made with immediate effect in the interest of public service.
From To (1) Shri Kunja Hazarika, DFO (SF), attached to office of the C.F., Bongaigaon.
As DFO, Aie Valley Division in place of Shri Amit Sahai.(2)
Shri Amit Sahai, DFO, Aie Valley Division, Bongaigaon.
As DFO (SF) in place of Shri M. Kalita, DFO (SF), Bongaigaon (3) Shri M.Kalita, DFO (SF), Bongaigaon.
As DFO, attached to office of the C.F., Bongaigaon in place of Shri Kunja Hazarika.
Please arrange to put up in the file at the earliest.
Sd/-16/10
Minister, Forest/HAD, etc., Assam."
The matter was processed and the office endorsed the file to the Joint Secretary. In the note it was indicated that none of those officers had completed three years in their present place. It also mentioned about the cases and counter cases filed by the parties. Subsequently, it appears that the file was taken back in order to put up another note from the Hon'ble Minister. It appears from the file that the instruction sent by the Hon'ble Minister on 16.10.2001 was subsequently modified. The following note was sent to the Secretary, Forests by the Hon'ble Minister bearing No. M/F/HAD-01 dated 22.10.2001:
"Please refer my note NO.M/HAD/F/M/19/2001 dated 16th October, 2001 regarding transfer and posting of 3 (three) DFOs. The proposal has been slightly modified as below:
From To (1) Shri Kunja Hazarika, DFO (SF), attached to office of the C.F., Bongaigaon As DFO, Aie Valley Division in place of Shri Amit Sahai (2) Shri Amit Sahai, DFO, Aie Valley Division, Bongaigaon As DFO, attached to office of the C.F., Bongaigaon in place of Shri Kunja Hazarika.(3)
Shri M. Kalita, DFO (SF), Bongaigaon.
Remain unchanged.
The transfer proposal of Shri M. Kaiita, DFO (SF) Bongaigaon may be dropped at present as he has completed one and half year only in present place of posting."
The file was processed again. In the note it was mentioned that both the officers did not even complete one year at the present place of posting. It was also stated that Shri Sahai was a cadre officer and the post of DCF attached to the C.F. was a non-cadre post. The transfer may again invite litigation. The Joint Secretary put up the note before the Secretary. The Joint Secretary in his note mentioned that Shri A. Sahai joined as DFO, Aie-Valley on 4.7.2001 and Shri K.Hazarika as DFO attached to C.F., LA SF Circle, Bongaigaon on 17.9.2001. None of the officers were due for transfer from the respective place of posting. Such premature transfer did not seem to be desirable from the administrative point of view.
It also mentioned that dismissal of the Writ Appeal of Shri K. Hazarika by the High Court vide order dated 13.9.2001 in W.P. (C) No. 4193 of 2001. The Joint Secretary in his note dated 16.11.2001 accordingly advised not to transfer Shri A. Sahai from the present post. The Secretary put up his note before the Minister of Forests for dropping the above proposal for transfer of Shri K. Hazarika. The file was put up before the Hon'ble Minister and he stuck to his gun and ordered accordingly on 19.11.2001 to transfer Shri K. Hazarika, DCF attached to C.F., Lower Assam SF Circle, Bongaigaon and posted to Aie-Valley Division, Bongaigaon vice Shri A. Sahai, DFO and transfer Shri A. Sahai as DCF attached to C.F,, Lower Assam SF Circle, Bongaigaon.
10. From the above it thus appears that the office put up the note indicating the fact that both the officers did not complete their tenure of service. The office note also indicated that it was not desirable from the administrative point of view. Mere recital of public interest will not turn a transfer and posting as a transfer on public interest. It must genuinely be in the interest of public administration. Public interest is not for any particular person. It connotes matters which concern some public good and public interest, As per the Government policy an officer is entitled to station posting normally for three years and as a matter of fact the Hon'ble Minister modified his own order by dropping his proposal for transfer of Shri M. Kalita, DFO (SF), Bongaigaon since he completed only one and half years at the place of posting. On the other hand both the officers who were transferred did not even complete one year in their respective place of posting. One served for about four months and the other was attached to the office of C.F., Bongaigaon on 17.9.2001. It seems the persons were transferred by indiscriminate use of power instead of considering the cases on their own merits. It its decision making process the authority who was entrusted and reposed with the power and trust neglected the relevant consideration and took into consideration extraneous consideration. The materials on record, more particularly on the face of the pleadings of the District Authority, namely the Deputy Commissioner, Bongaigaon, the Principal Chief Conservator of Forests, Assam and the Chief Conservator of Forests, Territorial, Assam speaks that the transfer was made other than the public interest. The Deputy Commissioner, Bongaigaon by his communication dated 22.11.2001 addressed to the Secretary, Government of Assam, Forest Department requested the authority to retain the officer at Aie-Valley Division in the public interest. The Principal Chief Conservator of Forests while forwarding the representation of the applicant to the Secretary, Government of Assam vide communication dated 23.11.2001 specifically mentioned that the transfer at that stage was not suggestible. The Principal Chief Conservator of Forests also mentioned the Government Notification dated 11.6.2001 that had specified the post was born in the IFS Cadre and posting a SFS Cadre officer in that cadre was not appropriate. The Chief Conservator of Forests, Territorial Division by his communication dated 27.11.2001 addressed to the Principal Chief Conservator of Forests with copy to the Secretary, Government of Assam, Forest Department also put his caveat that the transfer of the applicant at that stage at a short interval was not only humiliating for him, but also demoralising which will act as a deterrent in the protection of Forests. Indiscriminate and inconsistent use of power also amounts to abuse of discretion, particularly when undertakings or statements of intent are disregarded unfairly or contrary to legitimate expectation of the officer. The core of Articles 14 and 16 is equality before the law and inhibition against discrimination. Public act must be based on valid and relevant principles applicable equally in all similar situations and it should not be guided by extraneous and/or irrelevant considerations, else it will amount to denial of equality. Where the State action appears to be not legitimate and relevant and the same is used outside the area of permissible considerations it will, undoubtedly amount to malaftde exercise of power and thus violative of Articles 14 and 16. Malafide exercise of power and arbitrariness emanates from the same vice. One embraces the other. On the facts and circumstances of the case the decision of the Supreme Court in State Bank of India v.Anjan Sanyal and others (supra) is not applicable in the instant case.
11. We have also considered the contention of the learned Government Advocate, Assam and Mr. Uzir appearing on behalf of the respondents to the effect that by the Rules of Business the Minister is entrusted with all the executive functions in the Forest Department under Clause (3) of Article 166 of the Constitution of India, The Minister is, no doubt the Head of the Department and is free to exercise discretion. But, in the Constitutional panorama the Minister is not entitled to use his discretion in such a way as to stymie the policy of the statute. This is the theme of legal authority broadly delineated in Padfield v. Minister of Agriculture, Fisheries and Food, (1968) AC 997. Lord Reid, in the above case, inter alia, observed in his speech- "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act. That policy and object of the Act must be determined by construing the Act as a whole and construction always a matter of law for the Court. In a matter it is not always possible to draw hard and fast line, but if the Minister by reason of his having misconstrued the Act or for any other reason, so used his discretion to thwart or run counter to the policy and object of the Act, then our law would be very defective if the persons aggrieved were not entitled to protection of the Court". In the same case Lord Upjohn observed that the Minister stated reasons showing a complete misapprehension of his duties and were bad in law. Indian Constitution is more clear on this aspect. In the instant case the Hon'ble Minister while issuing the instructions to the Secretary, Forests, for transfer and posting of the applicant and the respondent No, 4, obviously disregarded the relevant considerations and took into consideration irrelevant considerations. The policy guidelines for station posting equally governs the decision maker.
12. We are not impressed with the other contention of Mr. Uzir that the application under Section 19 of the Administrative Tribunals Act, 1985 is not maintainable wherein the applicant questioned the transfer and posting of a State Forest Officer. Mr Uzir contended that the Tribunal's jurisdiction is delineated in Section 14 of the Act and since the matter involves transfer and posting of a State level officer the Tribunal is not the competent forum for adjudication. Section 14 of the Act conferred jurisdiction on the Central Administrative Tribunal in relation to recruitment and matters concerning recruitment to any All India Service as well as all service matters concerning a member of any All India Service. The applicant in the instant case is basically concerned with his transfer and placing him into a non-cadre post and for protection of his right as a Member of All India service is entitled to invoke jurisdiction of the Central Administrative Tribunal.
13. On consideration of all the aspects of the matter we set aside and quash the order No. FRE.68/2001/15-A dated 20.11.2001.
14. The application is accordingly allowed. There shall, however, be no order as to costs.