Jharkhand High Court
Dr. Satyendra Kumar Choudhary vs The State Of Jharkhand Through The ... on 19 April, 2018
Equivalent citations: 2018 (4) AJR 466, (2018) 4 JLJR 112
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S).No.5388 of 2017
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Dr. Satyendra Kumar Choudhary, son of late K.P. Choudhary, resident of Qr. No. H.I. 280, Harmu Housing Colony, P.O. & P.S. Argora, Dist. Ranchi.
... ... ... ...Petitioner
-Versus-
1. The State of Jharkhand through the Principal Secretary, Dept. of Health, Family Welfare and Medical Education, Govt. of Jharkhand, Ranchi.
2. The Director, Rajendra Institute of Medical Sciences, Ranchi.
3. The Deputy Director (Administration), Rajendra Institute of Medical Sciences, Ranchi.
4. Dr. Vivek Kashyap, son of not known to the petitioner, at present In-charge Medical Superintendent, Rajendra Institute of Medical Sciences, Ranchi.
... ... ... ....Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioner : Mr. Abhay Kumar Singh, Sr. Advocate Mr. Rakesh Kumar Samrendra, Advocate Mr. Rupesh Singh, Advocate Mr. Amrendra Pradhan, Advocate Mr. Sourav Chatterjee, Advocate For the Respondents: Ms. Chandra Prabha, SC-IV Dr. Ashok Kumar Singh, Advocate
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08/ 19.04.2018 Petitioner who happens to be the Medical Superintendent of RIMS has approached this Court aggrieved by the order of transfer bearing memo No. 6055 dated 30.08.2017 (Annexure-4), issued by respondent No. 3 which is a consequence of memo No. 226(7) dated 30.08.2017 (Annexure-2), issued by respondent No. 1 and also Annexure-6/1 which is the unilateral charge assumption by respondent No. 4.
2. The short facts of the case as has been delineated in the writ petition is that the petitioner is posted as Medical Superintendent, Rajendra Institute of Medical Sciences (for short "RIMS"), w.e.f. 27.02.2014, which is a single post of that cadre. Vide notification dated 12.08.2002, the State Govt. came out with RIMS Rules, pursuant to RIMS Act, 2002. Thereafter, in the year 2014, the State Govt. vide its Gazette Notification No. 475, Ranchi dated 22.09.2014, notified the 2 RIMS regulation in exercises of powers vested under Section 32 of the RIMS Act, 2002, whereby the service conditions of the employees working in RIMS were laid down. It is the specific case of the petitioner that on a conjoint reading of the RIMS Act, Rules and Regulations, it is crystal clear that any Officer working and posted in RIMS shall continue to do so until he attains the age of superannuation. However, vide memo dated 30.12.2015 and 18.03.2016, the respondents has transferred the petitioner from RIMS to outside the RIMS. Under such circumstances, the petitioner was compelled to move before this Hon'ble Court by filing W.P.(S). No. 1696 of 2016 and the Hon'ble High Court vide its interim order dated 30.03.2016 directed the respondents not to transfer the petitioner from RIMS during the pendency of the writ petition. Thereafter, the aforesaid writ was taken- up for hearing on 19.04.2017 and by a detailed order, the Hon'ble Court found the issues involved in the aforesaid writ petition, requires interpretation of the RIMS Act, Rules and Regulations and the same needs to be adjudicated by a Division Bench of this Hon'ble Court and accordingly, the matter was referred before the Hon'ble Division Bench after getting approval by the Hon'ble Chief Justice. The aforesaid case as on date is pending for final adjudication with continuance of interim order in favour of the petitioner.
It is the further case of the petitioner that recently an Audit by the Accountant General, Jharkhand was initiated at the request of respondent-State in relation to the irregularities committed by Infonet Link Pvt. Ltd., an Agency who has been assigned with the responsibility of collecting the token fees at various counters in RIMS for availing the treatment in various departments under RIMS. It is stated that the said Agency was asked by the Audit team to produce the relevant documents for assistance in audit work. Thereafter, by order of respondent No. 2, a special team was constituted wherein the Accounts Officer, RIMS was nominated as Nodal Officer and other three Class-3 employees were deputed along with said Nodal Officer to assist the Audit Team. The Audit team in its report made certain observations regarding inadequate assistance and on the basis of the same, a show- cause notice was served upon the Nodal Officer and other three employees of the Special Team constituted by respondent No. 2. It is the specific case of the petitioner that he has no concern or control whatsoever with the functioning of the said Special Team.
Under such circumstances, the Hon'ble Health Minister, Govt. of Jharkhand issued certain directions upon the respondent No. 1 and pursuant to 3 which respondent No. 1 issued memo No. 226(7) dated 30.08.2017, mentioning therein that:-
a) Petitioner be removed from the post of Medical Superintendent under administrative exigencies and another eligible officer (Professor/ Doctor) be given charge of Medical Superintendent.
b) The petitioner be deputed in some other post of RIMS in accordance with his eligibility, seniority and qualification.
c) The members of the Special Team constituted for giving assistance to the Auditors be issued show-cause and be served that charge memo with information to the Department.
d) All relevant information and documents required for the special Audit be gathered and collected within a period of 15 days with information to the Department.
After issuance of the aforesaid memo No. 226(7) dated 30.08.2017, the respondent No. 3 vide memo No. 6056 dated 30.08.2017 informed the respondent No. 1 that in compliance of his memo dated 30.08.2017, the petitioner has already been removed from the post of Medical Superintendent, RIMS. However, the respondent No. 2 sought guidelines on the matter that as there is no equivalent post as that of the Medical Superintendent in the RIMS Organization, it is not clear as to where the petitioner be deputed in accordance with the eligibility/ seniority and qualifications. It is the further case of the petitioner that vide memo No. 6056 issued by respondent No. 3, the petitioner was asked to handover the charge of Medical Superintendent to respondent No. 4 within 24 hours. Upon receipt of such memo, the petitioner made representation before the respondent No. 2, requesting for issuance of appropriate orders indicating the post on which the petitioner would assume the charge after relinquishing the charge of Medical Superintendent. It is relevant to mention here that the petitioner is going to be superannuated on 30.06.2018. Thereafter, vide memo dated 01.09.2017, the petitioner was permitted to give his joining in the office of respondent No. 2 and was allotted a chamber of Director in the Department of Micro Biology, RIMS. Meanwhile, the respondent No. 4 assumed the charge of Medical Superintendent, RIMS on 31.08.2017 without relinquishing the charge of Head of the Department of "Preventive and Social Medicines" RIMS. Hence, the petitioner has no option but to knock the door of this Hon'ble Court by preferring the instant writ application for redressal of his grievances.
4On 15.09.2017, the matter was taken-up by this Court and after hearing learned counsel for the parties and being prima facie satisfied with the illegality, this Court was pleased to grant interim protection to the petitioner and permitted the petitioner to continue on the post of Medical Superintendent, RIMS until further order and further directed the respondents to file counter-affidavit. Since then, the petitioner is continuing on the said post by virtue of the Court's order.
3. Mr. Abhay Kumar Singh, learned senior counsel assisted by Mr. Rakesh Kumar Samrendra and Mr. Rupesh Singh, learned counsel appearing for the petitioner has assailed the impugned order on the following grounds:-
(i) The impugned order is without jurisdiction.
(ii) It is in complete violation of the statutory provisions as envisaged in the
regulations of the RIMS.
(iii) The order has been passed at the dictate of the Minister, which is not
tenable in the eyes of law.
(iv) Section-29 of the RIMS Act is contrary to what it has been interpreted in
the order. The order ought to have been passed by the Establishment Committee but in utter violation of the Regulations of the RIMS, the same has been issued.
4. Learned senior counsel argues that so far as the exercise of Audit and non-availability of certain information by Special Team of Auditors is concerned, the petitioner has got no role to play in the same as would be evident from memo No. 226(7) dated 30.08.2017, issued by respondent No. 1. It has further been argued that petitioner has been stripped of the duty and responsibility of Medical Superintendent, RIMS by issuance of an office memo by respondent No. 3 under instruction of respondent No. 2 and evidently as consequence of the direction of respondent No. 1. No reasons have been assigned for impugned action which in its effect is a stigma on the petitioner at the fag end of service career. Learned senior counsel also alleges malafide against the respondents and argues that there has been character assassination by the RIMS. Learned senior counsel further argued that Section-29 of the RIMS Act, 2002 does not empowers the State for getting unfettered powers to interfere in routine administrative matters of RIMS. Any order of transfer and posting has to be carried-out through the Establishment Committee and it has to be acted upon only on the recommendations of the Establishment Committee. To buttress his arguments 5 learned senior counsel places heavy reliance on the judgment rendered in case of Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) by Lrs. and others, reported in (2010) 11 SCC 557.
It has also been argued by learned senior counsel that if at all the petitioner is to be transferred, he has to be transferred in equivalent post, the status which he is holding as on date. In this regard, learned senior counsel places reliance on the judgment passed by Hon'ble Supreme Court in case of E.P. Royappa Vs. State of Tamil Nandu & Anr., reported in (1974) 4 SCC 3. Mr. Abhay Kumar Singh, learned senior counsel further argued that Annexure-2 remains unexplained. Placing reliance on the judgment passed in case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16, Mr. Singh argued that the validity and legality of an office order is to be tested on reasons contained therein and cannot be supplemented by affidavits.
5. Per contra, counter-affidavit has been filed. Dr. A.K. Singh, learned counsel appearing for the respondent-RIMS vehemently opposes the contention of the learned senior counsel appearing for the petitioner and submits that there is no illegality or any infirmity in the order impugned. Justifying the impugned order, learned counsel for the respondents argued that no error has been committed by the respondents neither any illegality is there in issuance of transfer order. Learned counsel further argued that Section 29 of the RIMS Act empowers the State for passing such orders and no interference is required in the order of transfer. No employee of the State has a right to stay at a particular place and for administrative reasons, the order has been issued which requires no interference. Dr. Singh draws the attention of the Court towards Annexure-5 page-116 of the writ petition and submits that petitioner has represented before the respondents to post him to an equivalent post as per his seniority and status, so that he gets his salary which he is drawing as on date. In view of his request to post him to an equivalent post of the same pay-scale, a direction be given to the respondents to pass a suitable order and he cannot be allowed to remain in a particular post. Learned counsel further argued that as W.P.(S). No. 1636 of 2016, preferred by the petitioner is still sub- judiced before the Division Bench of this Hon'ble Court with the issue to be decided as to whether the petitioner can be transferred outside the RIMS or not, suffice it would be if a direction be issued to post him in the premises of RIMS itself on a suitable post having equal status and pay-scale.
66. Be that as it may, having gone through the rival submissions of the parties and after perusing the relevant records, this Court is of the considered view that case of the petitioner needs consideration. It is an admitted fact that the impugned order has been issued at the dictate of the Minister. Section 29 of the RIMS Act clearly speaks of transfer by the Establishment Committee. As the order of transfer is in complete violation of the prevalent rules and statutes which provides for transfer of an employee by the Establishment Committee, the said order is not tenable in the eyes of law and is fit to be quashed and set aside.
7. This issue has already been decided by the Hon'ble Apex Court in case of Manohar Lal (Dead by Lrs. Vs. Ugrasen (Dead) by Lrs. and others (supra). The relevant paras of the said judgment is reproduced herein below:-
"12. In Rakesh Ranjan Verma & Ors. Vs. State of Bihar & Ors., AIR 1992 SC 1348, the question arose as to whether the State Government, in exercise of its statutory powers could issue any direction to the Electricity Board in respect of appointment of its officers and employees. After examining the statutory provisions, the Court came to the conclusion that the State Government could only take the policy decisions as how the Board will carry out its functions under the Act. So far as the directions issued in respect of appointment of its officers was concerned, it fell within the exclusive domain of the Board and the State Government had no competence to issue any such direction. The said judgment has been approved and followed by this Court in U.P. State Electricity Board Vs. Ram Autar and Anr. (1996) 8 SCC 506.
13. In Bangalore Development Authority and Ors. Vs. R. Hanumaiah and Ors. (2005) 12 SCC 508, this Court held that the power of the Government under Section 65 of the Bangalore Development Authority Act, 1976 was not unrestricted and the directions which could be issued were those which were to carry out the objective of the Act and not those which are contrary to the Act and further held that the directions issued by the Chief Minister to release the lands were destructive of the purposes of the Act and the purposes for which the BDA was created.
14. In Bangalore Medical Trust Vs. B.S. Muddappa & Ors. AIR 1991 SC 1902, this Court considered the provisions of a similar Act, namely, Bangalore Development Authority Act, 1976 containing a similar provision and held that Government was competent only to give such directions to the authority as were in its opinion necessary or expedient and for carrying out the purposes of the Act. The Government could not have issued any other direction for the reason that Government had not been conferred upon unfettered powers in this regard. The object of the direction must be only to carry out the object of the Act and only such directions as were reasonably necessary or expedient for carrying out the object 7 of the enactment were contemplated under the Act. Any other direction not covered by such powers was illegal.
17. In Purtabpore Co., Ltd. Vs. Cane Commissioner of Bihar and Ors. AIR 1970 SC 1896, this Court has observed :
"11 ................ The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone - not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by Clause (6) read with Clause (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner."
19. In Anirudhsinhji Karansinghji Jadeja & Anr. Vs. State of Gujarat AIR 1995 SC 2390, it was observed :
"This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether."
23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional Authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act."
The Hon'ble Apex Court in para-37 of the judgment passed in case of E.P. Royappa Vs. State of Tamil Nandu & Anr. (supra) has held as under:-
"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 transfer from one post to another when the posts are of equal status and responsibility."8
8. It is now well established that the appropriate government had got power under the Constitutional Scheme within the limitation of its executive power to issue instruction to cover a gap when there is any vacuum or lacunae. If such guidelines/ instructions are not contrary to the statutory rules, the same are valid and required to be followed. Reference may be made to the decision of the Hon'ble Apex Court in the case of State of Gujrat Vs. Akhilesh C. Bhargav, reported in (1987) 4 SCC 482.
" The Supreme Court in the case of Suresh Kumar Awasthi vs. U.P. Jal Nigam, reported in (2003) 11 SCC 740 clearly held that the transfer of officers is required to be effected on the basis of set norms or guideline and the power of transferring the officer cannot be wielded arbitrarily and maliciously with oblique motive. The Apex Court emphasised that "for better administration the officers concerned must have freedom from fear of being harassed by repeated transfers. ... ..."
9. In Union of India Vs. S.L. Abbas reported in 1994(1) PLJR (SC) 1, it has been held by the Apex Court that Court's power of interference in the matter of transfer is extremely limited and normally the Court can interfere only when such transfer is vitiated by non-compliance with the mandatory and statutory provisions or where the exercise of power can be described as malafide.
In the instant case, it is relevant to quote para-4 of the Judgment in the case of Gurudeo Prasad Mandal Vs. State of Bihar & Ors., reported in 1996 (2) PLJR 66.
"4. The Court is aware of the legal position that the executive authorities are vested with the power of transfer for proper and smooth functioning of the administrative machinery. At the same time the Court thinks that while exercising such power, the authorities must eschew arbitrariness and act reasonably. When a person is transferred within a month of his posting to another place and that too without any justification for such transfer, the obvious conclusion of the Court is that power of transfer has not been exercised either reasonably or in public interest. Like all power, the power of transfer is also conferred on the authorities on a trust that it will not be exercised arbitrarily but when that trust is belied, as it has been in this case, the Court may interfere."9
10. In the present case, there is no material to show that any special circumstances has arisen which leads to transfer of the petitioner without getting approval of Establishment Committee. The respondents have failed to show any cogent administrative reasons for transferring the petitioner from the said place of posting and therefore, it is ample clear that the impugned order of transfer is unsustainable and fit to be quashed which is without any cogent reason. The order of transfer has been issued without assigning any reason and the reasons have been supplemented by way of counter affidavit, which cannot be acceptable to this Court in the facts and circumstances of the case at hand.
11. The Apex Court in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 and further in the case of Mohinder Singh Gill Vs. Chief Election Commissioner, reported in (1978) 1 SCC 405, has clearly held that no reasons can be supplied in the counter affidavit to justify a thoroughly non-speaking order otherwise all the non- speaking and arbitrariness orders will be converted into well-reasoned and speaking orders by the passage of time, by way of counter affidavits filed in the Court. It has been clearly held that no reasons can be supplied subsequently in the counter affidavit filed in the Court. It has also been held that the statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons as mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.
Para-9 of the Judgment passed in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji (supra), is relevant to be quoted hereunder:
"9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority, cannot be construed in the light of the explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."10
The aforesaid proposition has been followed in the case of Mohinder Singh Gill (Supra). Para-8 of the said Judgment is relevant to be quoted hereunder:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:
Public orders, publicly made, in exercise of a statutory authority can not be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
12. Thus, the contention raised by learned counsel for the respondents that the reasons have been assigned in the counter-affidavit, which makes no speaking order into speaking one, cannot be accepted by this Court. The Apex Court has held in catena of decision that the reasonableness runs like a golden thread through the entire fabric of the constitutional framework and all governmental actions must be judged on the touchstone of reason and public interest. Relying on these principles, this Court holds that in the instant case the order of transfer is vitiated by malice and as such it is a fit case for interference.
13. As a cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncement, this Court is of the considered view that admittedly the impugned order bearing memo No. 6055 dated 30.08.2017 (Annexure-4), issued by respondent No. 3 which is a consequence of memo No. 226 (7) dated 30.08.2017 (Annexure-2), issued by respondent No. 1 are without jurisdiction, as it has been passed at the behest of the Hon'ble Minister and without any approval or at the instance of the 11 Establishment Committee, which is the only body empowered under Section 29 of the RIMS Act and hence, they are quashed and set aside but at the same time, the petitioner has not acquired any legal right to stay at a particular place as per his choice and not to get himself transferred. The Hon'ble Apex Court in catena of decisions has held that Transfer is an incidence of service and the employee has no legal right to stay at a particular place and to continue on a particular post. Rather, the employee can be transferred on administrative exigencies, as per the Rules and Regulations of the Department concerned.
The Hon'ble Apex Court in case of State of U.P. & Ors. Vs. Gobardhan Lal, reported in (2004) 11 SCC 402 has held that, "Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service".
Further, in case of National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, reported in (2001) 8 SCC 574, the Hon'ble Apex Court has held that, "it is by now well settled and often reiterated by this Court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration".
14. In the instant case, as petitioner himself has represented before the respondent-authorities vide Annexure-5 to post him at a place having equal status and pay-scale, the respondents are free to issue the order of transfer of the petitioner in the same premises by the order of the Establishment Committee as per Section-29 of the RIMS Act and post the petitioner in equivalence post to his status in the same pay-scale, taking into consideration the representation of the petitioner and also the relevant rules, guidelines, regulations, prevalent law for issuance of transfer order by the Establishment Committee.
15. With the aforesaid observations and directions, the writ petition stands disposed of.
(Dr. S.N. Pathak, J.) kunal/-