Central Administrative Tribunal - Delhi
A.K. Verma vs Union Of India on 6 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI.
Original Application No.2799/2009
This 6th day of May 2010
Honble Dr. K.B. Suresh, Member (J)
A.K. Verma
S/o Shri P.L. Verma, age 53 years,
R/o 246/5 A Railway Officers Colony,
R.K. Road,
Outer Circle, Connaught Place, New Delhi
Applicant in person
Versus
1. Union of India
Ministry of Railways,
Through the Chairman Railway Board,
Rail Bhawan, Raisaina Road, New Delhi.
2. Mr. Rakesh Chopra,
Member ( Engineering)
Rail Bhawan,
Raisaina Raod, New Delhi.
3. The General Manager,
Northern Railway,
Baroda House,
New Delhi.
4. Shri Sri Prakash
Member Traffic,
Rail Bhawan,
Raisaina Road,
New Delhi : Respondents.
By Advocate Mr. Rajinder Khatter for respondents.
H.k. Bajpai, proxy for Sh V.S.R. Krishna
For respondents.
Order
Per Dr. K.B. Suresh, Judicial Member.
This matter involves larger national interest of administrative hierarchy qua supremacy, responsibility and accountability and the relationship between the three arms of the State. It basically concerns the power and duty of discretion and exercise thereof.
In Mohambaram vs. Jayavelu reported in AIR 1970 Mad 63 at page 73, the Honble High Court of Madras had made the following remarks: There is no such thing as absolute or untrammeled discretion, the nursery of despotic power, in a democracy based on the rule of law.
It is widely agreed that one reason for having constitutions is the need to restrict the exercise of power. Modern states are excessively powerful and are believed to have a monopoly of force and coercion. What if the institutions of such states fall into the wrong hands, who then abuse this power? Many believe that this is not just a hypothetical possibility but inherent in the exercise of power and therefore in the nature of states. Even if these institutions were created for our safety and well being they can easily turn against us. Experience of state power the world over shows that most states are prone to harming the interests of at least some individuals and groups. If so, we need to draw the rules of the game in such a way that this tendency of states is continuously checked. Constitutions provide the basis of rules and therefore prevent states from turning tyrannical.
This traditional reason is not the only one supporting constitutions. The framers of our Constitution were deeply aware of three other reasons, two of which were already known but had been systematically underemphasized and a third which they themselves helped shape. Traditionally, constitutions were meant to control the power of the state so as to enable people to live decently. But this ideal presupposes an unbridgeable distance between people and the state. It assumes a powerless people who need the help of law to control state power. But what if people themselves have power? What if the power of the state comes from an original power that resides in the demos the people? Why then would we need constitutions? Democracy, it might be argued, is an alternative to constitutionalism. State power might be limited not by some higher law but by the power of the people.
This is an attractive but flawed idea. It is flawed because in practice, power never really resides in all the people but largely in the majority. The tyranny of the non-democratic state of which individuals might be victims is replaced in democracies by the tyranny of the majority. If so, we need constitutions to check the tyranny of a majoritarian, democratic state. We need constitutions because they give us laws to protect not only individuals but also minority groups.
Moreover, constitutions are required not only to protect vulnerable individuals and groups but virtually everyone against human vulnerability in general. It is important not to forget that human being are fallible, that they sometimes forget what is good for them in the long run, and they yield to temptations which bring them pleasure now but pain later. It is not unknown for people to acquire the mentality of the mob and act on the heat of the moment only to rue the consequences of the decision later. By providing a frame work of law culled over from years of collective experience and wisdom, constitutions prevent people from succumbing to currently fashionable whims and fancies. Constitutions anticipate and try to redress the excessively mercurial character of everyday politics. They made some dimensions of the political process beyond the challenge of ordinary politics. The framers of the Indian Constitution were familiar with each of these three reasons for having a constitution. They understood that constitutions are needed both to check state power and majority tyranny and also to control the destabilizing swings generated by popular passion.
So far we have spoken of what constitutions dis-enable us from doing. However, constitutions also provide us with peaceful, democratic means with which to bring about profound social transformation. Moreover, for a hitherto colonized people, constitutions announce and embody the first real exercise of political self-determination. Nehru understood both these points well, The demand for a Constituent assembly, he claimed, represented a collective demand for full self determination, as only a Constituent Assembly of elected representative of the Indian people had the right to frame Indias Constitution, without external interference. Second, he argued, the Constituent Assembly is not just a body of people or a gathering of able lawyers. Rather, it is a nation on the move, throwing away the shell of its past political and possibly social structure, and fashioning for itself a new garment of its own making. The Indian Constitution was designed to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality, and justice. Inscribed in the intentions of the framers of the Indian Constitution was the potential of a breakthrough in constitutional theory; constitutions exist not only to disenable people in power but also to empower those who traditionally have been deprived of it. Constitutions give vulnerable people the power to achieve collective good.
Let me give two examples. The first is the relationship between individual and group rights. On the one hand, there is the view that political discourse in India is dominated by community rights. When the language of rights arrived in India and was adopted in an Indian context charged with strong community values, it got detached from its individualist moorings and was applied to communities. On the other hand, another view exists that a characteristically un-Indian Constitution imposed an individualist morality on a community-oriented Indian society and did not care even to recognize group rights. Does the Constitution prioritize individual rights or group rights? Even a cursory glance of the Constitution dispels both these misinterpretations. In India, both sets of rights were recognized and no clear guideline was provided for just when one is to override the other, and no general criteria were provided to resolve conflicts between the divergent types of rights. An attempt was made instead to balance them, with the scales tilting marginally in favour of individual rights.
Thus, the seeming problem of a transfer of an individual is on closer inspection, a reflection of a Constitutional situation . Now; where and how do we, as citizens place ourselves? As uninterested spectators/or part of the matrix of concerned citizenry?. Regard must be had to the fact that concerned this is a project which will ultimately swallow up at least Rs. 25,000/- crores of national wealth in the long run.
In this context the case before me has to be analysed.
Factual Matrix This case basically relates to transfer. I am inclined to see it as not only concerning an individual but concerning the whole nation and in respect of the duty cast on me as a servant of the people. The respondents in their reply in para 3 has stated that who should be transferred where, is a matter for appropriate authority to decide. Unless the order is vitiated by malafide or is made in violation of any statutory provision the court cannot interfere with it. While ordering transfer, there is no doubt; the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally enforceable right. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in service matters. This is evident from Art. 323-A of the Constitution as made clear by the decision of the Apex Copurt in the case of S.L. Abbas vs. UOI[1993 (2) SLR 582 (SC)]. In para 4 the respondents would content that Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation. In this case; on administrative grounds, the transfer orders came to be issued and therefore the Court cannot go into the expediency of posting of a particular officer at a particular place as made clear by the Apex Court in the case of State of Madhya Pradesh and others vs. S.S. Kourav [JT 1995 (2)SC 498]. The respondents have also placed reliance on para 5 of the reply. Interference by the Courts in the matter of transfer should be rarest of the rare as has been held in Prasar Bharti vs. Amarjeet Singh [ 2007 2 SCC (2) L&S 566] and Mohd Masood vs. State of U.P. [2007 (1) Scale 271]. They would further say that applicant is SAG/ IRSE, and as a Member of Group A organized service of Indian Railway Service of Engineers [ IRSE] with transfer liability to all over Indian Railways. Apparently they would say that the applicant had been ordered to be transferred vide Railway Boards order No. E (O) III/2009/TR/445 dated 04.09.2009 and posted to South East Central Railway. This order is under challenge. The applicant would further say that the order is the outcome of the malafide and malice on the part of respondent No. 2 Shri Rakesh Chopra, Member Engineering , Railway Board. Apparently Shri Rakesh Chopra, presently Member Engineering was the then Chief Administrative Officer of the J & K Rail link project. He would say that he had submitted a detailed report raising the concerns about the methodology being adopted for alignment of a segment of J & K Rail link project and Shri Chopra, the then Chief Administrative Officer of the project and the General Manager, Northern Railway was not in harmonious agreement with it. He would also say that the applicant had submitted various alternative/modified alignment which would provide safe and reliable and efficient transportation of passengers and freight. At this the respondent would further say that the opinion of the applicant was not finally implemented by the high level authority and there is no ill motive against the applicant for that reason. The Railway would contend that the applicant has assailed the order on the ground also that there are large number of officers who are having longer tenure than the applicant but it is part and parcel of the administration that some people may get longer posting in a particular place due to administrative interest. They also said that large number of officers in the grade of SAG did not work in Delhi upto the level of SAG or above. They would say that the applicant had been transferred during mid academic session which would affect adversely the education of children. But it is also stated by them that such problems are general with officers of his age and status. On the basis of above averments the respondents have prayed for dismissal of the O.A. I have heard both parties and carefully gone through the documents submitted by both parties. I feel that an indepth examination is called for or else I will not be doing justice to the position of trust addressed and bestowed in me as a public servant.
It seems that J & K rail link is a national project of strategic importance. I also had a close look at Annex. A/3 which is a letter No. KR/CO/MD/09/03 dated 19.09.2003 written by Shri Rajaram of Konkan Railways, addressed to the respondent No. 2. This relates to the alignment of J & K Railway project. He seems to have raised several points in relation to the project. The relevant portion reads as under:
The paper alignment without even preliminary ground reconnaissance, without initial pegging but only proceeding with partial surveys with partial ground details and then going ahead with calling of tenders and committing the national resources is causing serious concern. We may be in a hurry, but without first conducting even a simple engineering survey the ground details launching on construction from either end is fraught without serious consequences. We may end up with infructuous expenditure and at the same time we also are not giving true picture in terms either cost or time.
It is only with an intention to help things out, I had to explore the alternatives as well as examine the paper alignment also whether we can comfortably proceed with the same. The results are not encouraging. Let us take first the paper alignment itself from the national remote sensing satellite images as well as GSI records. Professor Nagarajan of IIT Mumbai and Director of GSI confirmed that paper alignment is virtually following the areas of Riasi Thrust, Sirban Thrust, Muree and Panjal Thrust.
Track ( 26km) running parallel to thrust line and within, is not desirable at all Thrust area is different from the fault lines. Thrust areas are very active. While in case of fault lines one may have difficulty in the construction period which we may resolve by taking some mitigating steps. But in case of thrust areas, it is going to be a problem for the next century.. The geo physical features will always be dynamic and even if we spend more money and construct the line, during operation and maintenance, our engineers will be put to very serious concerns. The passengers who will travel on the line are exposed to serious hazards. If we can help it, we should definitely avoid such thrust areas. We have to accept that we cannot fight nature, whatever the contract amount we are going to shell out.
The combination of thrust areas along with almost 148 portals and 62 bridges, some of which are going to be very unique in the word is not exactly the scenario which gives rise to sound security and safety, both in terms of geo physical concerns as well as proximity to the line of control and national security. It is doubtful that the purpose of strategic importance will be served.
In any engineering alignment we must pick up the obligatory point in terms of technical feasibility of major construction feature like cross of major river which in this case is Chenab river. We tried to look for alternative crossing point for Chenab river and I am happy that very feasible crossing point is available. After choosing this point we should fix the alignment, avoiding thrust areas. After matching with the levels, we get an alignment, which actually becomes half the length and reduces the number of portals to only 8 and the bridges also to just about 2 nos. Initially when this was presented as a concept a view was taken that there were no ground details and also any way we cannot accept 1 in 50 gradient. There is no reason why 1 in 50 gradient cannot be managed. .. there will be a saving of at least Rs. 3,000/- crores when we adopted this alternative alignment.
The question arises as to why we should not examine the alternative honestly in the interest of the nation. In fact the safety concern of the tunnels is very real and with my experience on Konkan Railway single line tunnels, in case of hazards, create very serious problems. In the alternative alignment these issues also are addressed.
You are an outstanding officer of our cadre and I do urge you, not to hastily force the finalization of contracts for a partially examined alignment, with no guarantee to where we are going to reach, because we have only a paper concept alignment with no ground details..
The above letter was written in the year 2003. Apparently in the interregnum the applicant was posted as CE/C/ NEC and therefore when the 2nd respondent would suggest that the contracts were finalised and the contractors were to be paid the actual cost along with the percentage as assured profits as methodology of execution of work. Thus there is no real accountability for the congtractors. My attention was also drawn to DO No. 2005/CRB/Misc./1 dated 18.07.2005, which is a letter issued by the Chairman Railway Board addressed to the applicant. The letter reads as under:
Sub: Report of the Task Force set up to review the operational Maintenance and safety requirement of the new railway line under the Udhampur-Srinagar-Baramulla Rail Link project.
A comprehensive review of the operational, maintenance and safety requirements vis-a-vis in the DPR has been carried out by the Northern Railway. As the Chief Engineer in charge of the section of the region where most of the construction problems were going to arise due to the difficult terrain and adverse geology that necessitated a review and additional measures, you have ably projected the need for the review, and then as the convener of the Task Force that was set up to review the provisions of the DPR, you have helped formulate options, examine their feasibility, and steered the recommendations of the Task Force to the stage of their approval by the General Manager/Northern Railway and apprising the Railway Board. This is in recognition of the good work done by you.
It appears that the applicant had given a presentation to the high level expert committee based on geo-physical data. He had also sent the report to various authorities. In his report he would draw the attention to what is indicated by the world practice and the body of scientific knowledge to be the most important requirement that should be met by an alignment for a rail line in a higher relief mountainous region. He also suggested that the lines should be laid across the axis of folding of the mountain ridges to minimize the serious engineering problems likely to be posed by the fault lines, shear zones and other discontinuities which tend to lie along the folding axis. He states that the conditions in the lesser Himalayas are among the most unfavourable in the world because of the young age of Himalayas, the great collision of continental plates which geologists believe was perhaps one of the most impact full collisions of earths crusted plates, and last but not the least, the predominance of young sedimentary and low grade metamorphic rocks which underwent intense folding, faulting and shearing under the tectonic forces.
Impressed by the findings of the applicant, the then Member (Engineering) Ministry of Railways, Government of India, vide DO Lr. No. 86/W-2/NL/NR/25 PT IV.COM dated 30.03.2009, addressed a letter to legendary engineer Mr. E. Sreedharan, who had constructed the Pamban Bridge and and headed the Konkan Railway Project. The letter states about the proposal for the change in alignment which has been made 18 months back on that date. It also mentions that IRCON and KRCL who are executing parts of the project, have faced serious difficulties in construction and have sought some changes in alignment too and sought Shri Sreedharans views in the matter. The letter is produced as Annex. A.30. annex. A/31 is the detailed report for change in alignment on the Katra Qazigund part of the J&K project. The report further states that the cost works to be abandoned would be about Rs. 780 crores. A plain reading of the report would indicate that serious objections are made to the alignment. Annex. A/32 is a letter issued by Member Engineering at that time congratulating the applicant. The relevant portion reads as under:
Subject: Review of alignment on Katra Banihal section of the J&K Rail Link project You have worked with utmost diligence and dedication for acquiring an understanding of the basic causes of the problems that have been faced with the present alignment in the above part of the project. Your 1st representation to the Board on 08.11.2007, A world view of the Fundamentals of Building Railways in High Relief Mountains: An Insight into the Shortcomings of the Present Alignment and a Proposed Modified Alignment has provided necessary ground work for further work. I have also perused your last report of last week addressed to CAO/C and copy to me.
The insights you brought out with your extensive study of the problems has led to the realization that tunnels laid at shallow depth under the slopes and bridges and stations in the openings in Khads etc in the extremely unfavourable conditions of terrain and geology require a serious relook. The alignment with tunnels cutting across the main mountain ridges and fault lines, with bridges , tunnel portals and stations, in openings in wider valleys; has certainly been valuable suggestion. Train operations, overall viability of the line considered has brought out a much more safe and survivable line In reply to the letter dated 30.03.2009, written by the Member ( Engineering) Mr. Sreedharan, replied to one Sri Ravindra, Chairman High Level Expert Committee vide his letter dated 19.05.2009 and the relevant portion reads as follows:
Right from 2002 onwards when Railways decided to take up the Rail Link to Srinagar, I was opposing the present contour alignment and had suggested that a direct route through long tunnels, cutting across fault zones should be adopted reducing drastically the overall length. This view was also shared by the Konkan Railway Corporation. By adopting a straight alignment with long tunnels, not only the total length of tunneling can be brought down, the number of bridges could be reduced the total haulage length also considerably reduced. This would, however, necessitate a ruling gradient of 1:40 for which I do not think formidable from operational and safety point of view if electric traction and compressed air braking is adopted.
During the last 7 years the project on the present alignment could show only a progress of 10% At this rate the project would take another 20 years for completion and the cost would go up 4 to 5 times. The resultant alignment will not be stable and the high bridges would be highly vulnerable from security point of view.
What had happened to this recommendations is not available before us. It seems that the same was discussed in the media also. The relevant portion published in The Times of India reads as under:
.Sreedharans intervention in the J & K project follows a request made to him on March 26 by the then member (engineering) in the railway board, S.K. Vij, five days before his retirement. Having already rolled back the unviable component of building the worlds highest arch bridge on Chenab across an unstable gorge, Vij sought Sreedharans help in an obvious bid to counter the powerful lobby within the railways which wanted the present alignment to be retained lest thy be held accountable for losses running into hundreds of crores.
Sreedharan backed Vijs idea of switching to a straighter and shorter alignment, which is designed to avoid exposure to landslides as it uses advanced technology of tunneling through mountains from Katra to Banihal. As a corollary, Sreedharan endorsed the proposal of increasing the gradient from 1:100 to 1:40 since the entire route would any be electrified.
It remains to be seen whether the expert committee, will accept Sreedharans advise to depart completely from the present alignment. The committee headeded by former railway board chairman M. Ravindra is however undue pressure to suggest retention of the present alignment with minor changes. This is because, Vijs successor Rakesh Chopra and member Shri Prakash issued an order last month stating that the gradient should in no circumstances exceed 1:80.
The order seeks to undermine the discretion of the expert committee as it makes it harder to straighten the present serpentine alignment and raises the prospect of reviving the much touted Chenab bridge . It would appear that vide Annex. A.36, the applicant wrote a letter dated 28.04.2009 to the General Manager, Northern Railway and sought a clarification regarding his future role in the process of implementation of the project. Apparently in reference to the office order dated 27.04.2009 he sought this clarification. This does not seem to have been answered. This was followed by another letter dated 24.06.2009 ( Annex. A/37) which pointed out serious implications of missing important information and the inaccuracies reflected in the report of the Expert Committee on review of the alignment on Katra Banihal Section of the J & K Rail Link Project. Annex. A/39 is a letter dated 10.07.2009 which seems to indicating serious omissions/ Anomalies/ wrong statement of facts/ and much vagueness in the Expert committees report.
The applicant has further stated in that letter that IRCON and KRCL officers were frequently called by the committee but he was kept out of the same after he presented his report on 09.01.2009 and further stated in that letter that the committee has gone on to recommend formation of a committee of officers of Northern Railway, IRCON & KRCL to draw alignment on the basis of its recommendations. The applicant has also stated that IRCON and KRCL have consistently ignored the safety issues. This views of the applicant were further supplemented by another letter dated 30.07.2009 written by the applicant to the Chairman, Railway Board which contained the detailed report, remarks and comments of the expert committee. These were further followed by Annex. A.41 a letter dated 07.09.2009 written by the applicant to the Member Engineering, requesting the Railway Board to reconsider the above transfer and allow him to continue to work at Delhi for some more time. The reconsideration was sought on several grounds including medical complexities to which he is afflicted. This is followed by annex. A.42, which is a letter issued to Shri S.S. Khurana, Chairman Railway Board, New Delhi. In that letter among other things, the applicant had stated in para 5 as under 5. . that the previous Member Engineering had sent a note to the Honble Minister of Railway about the alignment in the second week of March 2009 before his retirement. This note highlights how the safety, security and long term survivability issues continued to be ignored by those opposed to adoption of an alignment based on the more appropriate alignment concepts. It specially makes mention of the dubious role of the consultant Amberg and IRCON in this regard. This is followed by another letter dated 29.09.2009 which the applicant seems to have issued to the second respondent indicating that there are several officers who had longer tenure than the applicant at Delhi and that he had been victimized for his opposition of the alignment in the Railways.
The applicant in his rejoinder to the reply of R.4 had enclosed a note dated 14.03.2009 from Shri S.K. Vij, to the Minister of Railways. He also enclosed another note from R.2 dated 25.04.2009, marking the same to Member ( Technical ). It states that the file has been withdrawn by EDW from the office of Minister of Railways, since R.2 wanted to know the status of progress on the national project. The relevant portion reads as under:
This file has been withdrawn by EDW from the office of MR since having taken over as ME from 1.4.2009, AN I needed to know the status of progress on this National project. Along with this file, two other files viz.,
(i) USBRL Project ( MEs observations) No. 86/W 2/nl/n/25 Pt. IV (part file of WZ) Proposed change in alignment from Km.52 to 62 in Katra-Laole section of USBRL- File No. 68/W2/NL/N/25 Pt. III/W2 Have been put up. I have gone through the files and in particular the notings of ML placed as S. No. 50 (1-8) on the file; MTs notings on NP 11-12; 14-15,20-22 and FCs notings at NP 22 and at Sl. No. 45 of this file. Besides this, MEs notes have been read. Essentially what has emerged is that:-
(i) Works have been stopped on spots and length with KRCL & IRCON from Katra to Banihal ( excluding the Banihal tunnel).
(ii) Expert Committees- particularly two i.e. M/s Ambergs and the other under Mr. R. Ravindra have been set up to study the alignment and technical issues.
(iii) Gradients have been proposed upto to 1 in 44, presumably without slip and Catch sidings ( so far mandatory as per rules for grades steeper than 1 in 80) However, notes as recorded on operational issues by ML AM/L and MT do not favour steep gradients.
Having learnt this, a review meeting was held with CAO/C-II/ N./ Rly to ascertain the status. It is understood that there are three legs of this project viz:-
1. Udhampur- Katara All MBG Loading designed.
2. Katra- Quazigund --do--
3. Quazigund- Baramulla -- do--
Besides this JAT Udhampur has been constructed with RBG/MBG loading.
(i) Work on Udhampur-Katara is complete but for tunnel T-I at Udhampur which has had trouble for the last 203 years and it has taken sometime to find a solution. It is now expected that work will start on this from June/July 2009.
(ii) On Katra- quazigund section, work has been stopped (excluding Quazigund tunnel)
(iii) Work on the Quazigund- Baramulla is complete between Anantnag and Baramulla and trains are running. For Anantnag to Quazigund, it is expected to be completed by June 2009 ..
Direction of Board, appears to propose three alternative alignments with 1 in 60, 1 in 50 and 1 in 44 gradient.. Report yet to come.
As per the current policy of Railway Boarad, the provision of catch siding is essential on grades stepper than 1 in 80. Further, as per the Schedule of Dimensions, 2004, the slip siding or other arrangement becomes necessary if a passenger line is joined on a steeper gradient than 1 in 260 i.e. in the yeards. Since all the yards on Katra- Quazigund will have a minimum gradient of 1 in 400 or flatter, slip siding would not be necessary.
The matter was discussed with the MT on 21.04.2009 and keeping in view the requirement of catch siding on gradients steeper than 1 in 80 it was considered appropriate to explore the possibility of refining the existing alignment following a maximum gradient of 1 in 80 in stretches where gradient steeper than 1 in 100 essential . It was also considered that while doing the refinement of the existing alignment, attempts should be made to keep the curvature restricted to 2.75? but may go upto 4? at isolated locations if the same is required to meet a better geology and/or better location/lay out of the yards etc. This should also be operationally beneficial.
Even for the new alternative solutions, the Consultants terms of reference can be revised to follow the gradient and curvature as proposed for the refinement of the existing alignment above.
MT may please indicate his agreement to the above proposed limits of gradients and curvature before N. Rly is be advised accordingly Therefore, it appears that the allegation of the applicant that when the Honble Minister for Railways had agreed to the proposal on the alignment the opposition made have been kept away from the knowledge of the Honble Minister for Railways. Therefore the Minister for Railways might have acted without adequate data or the data made available might have been manipulated. Thus this manipulation may seem to be constituting a forgery under the criminal laws of the nation. To understand as to what extent the manipulation existed it should be looked into more deeply but that, however, is not available for the Tribunal. Therefore, I am of the considered opinion that this should be looked into by the cabinet secretary in view of the great national importance. After going through the report, the second respondent vide his note dated 02.07.2009, had stated as under:
In the above background and being a national project of enormous importance, as also observed by Honble Minister for Railways and keeping in view the public aspirations at large, in principle approval and acceptance of the committees report to recommence the work on existing alignment is recommended, for consideration of the Honble Minister for Railways This view seems to have been supported by Member Traffic on the ground that from operational point of view, the existing alignment is immensely suitable as it would pursue smooth movement of both freight and passenger trains to the valley.
It appears that the report of the committee might not have been seen in juxta position to the objections raised not only by the applicant but by other learned engineers as well by the Honble Minister for Railways before issuing the approval. After going through the report I can only find that anybody who had opposed the present alignment in any fashion would have been left out of the decision making process in anyway.
Annex. A/5 filed along with the rejoinder, which is a letter No. 86/W2/NL/25/Pt. IV dated 24.04.2009, written by second respondent to Shri Vivek Sahai, General Manager, Northern Railway, requesting him to transfer the applicant. Annex. A/6 is the details of committees and its visits to various places, in which the applicant was not involved in any of the committees deliberations even though it is his objections that caused the genesis of the committee.
The applicant is assailing the impugned order of transfer on the ground of malice, malafides and palliative reasons which are available to the applicant on the basis of various Apex Court rulings. But as observed above, this does not concern the transfer of an individual alone and should be viewed in a larger context.
The respondents have submitted that they have got powers to transfer the applicant and it is in their discretion to post a person under them in a place where his services could be utilized properly. The following questions arise for determination on stipulation of the respondents:
Whether or not the wheels of administration can run smoothly without interdiction and without interference.
Whether or not the administrative discretion is vitiated by malafides, if so, to what extent in present case.
Whether the extraneous considerations be considered as vitiating factors in exercising administrative discretion.
Can administrative reasons lie without any factual background of sound foundation.
These are questions that must be answered by this Tribunal and as posed by the respondents in their reply.
Now I shall examine the legal matrix on the issue involved in this case.
A constitutional bulwark against uncontrolled or unfettered discretion in Indian law is Art. 14 of the Constitution which provides for the principles of equality before the law and the equal protection of laws. This is buttressed by Art. 15 expressly prohibiting discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 states positively that there shall be equality of opportunity in matters of public employment. Honble Mr. Justice Fazl Ali. in State of West Bengal vs. Anwar Ali [AIR 1952 SC 75] has stated Unfettered discretion is liable to be used in a discriminatory manner and this is offensive to Art. 14. His Lordship has further held an act which gives uncontrolled authority to discriminate cannot but be hit by Art. 14. It has further been held that discretion exercised without any principle or without any rule is contrary to Art. 14. This pre supposes the factum in which administrative authorities are expected to negate any lacuna. The administrative actions, which were not followed by salutary principles of natural justice can be challenged by way of judicial review.
Similarly, in Santwant Singh vs. Assistant Passport Officer [ AIR 1967 Sc 1836] the Honble apex Court has observed that in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it. Such discretion patently violates the doctrine of equality, for the difference in the treatment of persons rests solely on the arbitrary selection of the executive. The Apex Court in State of West Bengal vs. Anwar Ali [ AIR 1952 SC 75], observed that an Act was held violative of Art. 14 because it had empowered the government to select any case or a class of cases or offences to be tried by special courts. This unfettered discretion is likely to be branded discriminatory and therefore contrary to Art.14.
In State of Maharashtra vs. Raj Kumar [ AIR 1982 SC 1301], the Honble Apex Court has held that recruitment rules provided for the selection of candidates from rural areas. The provision that the candidates coming from rural areas who had passed the SSC examination held in villages or places with C type municipality would be deemed to be rural candidates and be given weightage was held bad. The classification so made had no nexus with the object to be achieved. Discrimination of violative of Art. 14 if occurs, and if there is discrimination between equals and not where unequals are being treated differently judicial interdiction should lie. The Honble Apex Court in State of Madhya Pradesh vs. Nivedita Jain [ 1982 1 SCR 759], held that an executive order completely regarding the conditions concerning the minimum marks for selection of students to a medical college in respect of candidates belonging to scheduled castes was held not violative of Art. 14 or 15. as the relaxation was only in relaxation to the candidates belonging to the scheduled castes and only with regard to the places reserved for them. Taking these legal conceptions into account, I have to examine the retention of other similarly situated persons in Delhi, while singling out the applicant. The extent of discretion, at the hand of the respondents, must be held to be circumscribed by principles of good governance, non-arbitrariness, absence of malice and malafides etc. The preceding discussion shows that the court would inquire whether the statue contains any policy or principles for guiding the exercise of discretion by the executive in the matter of classification if it does not, the statute is liable to be invalidated as having conferred unfettered discretion to discriminate between persons or things similarly situated. If the statute contains such a policy or principle which negates at the concept of unlimited discretion it may leave its selective application to certain persons or objects. Such a legislation would be bad as held by the Honble Supreme Court in Kedarnath vs. State of West Bengal [AIR 1953 SC 404].
The wisdom of legislative policy is not open to judicial review but when the wisdom takes the concrete form of law it must be in tune with the Fundamental Rights of the Constitution. Art. 14 stries at arbitrariness which involves the negation of equality. An action per se arbitrary denies equality of protection by law under Art. 14, as held by the Apex Court in A.L. Kalra vs. P & E Corporation of India Ltd.[ AIR 1984 SC 1361] Thus Art. 14 has proved to be a valuable tool in restraining what has been termed in English Law as unfettered discretion. Thus, the Courts have demanded that administrative discretion must not be arbitrary. Its exercise must be based on reasonable and relevant criteria as has been held by the Apex Court in Nanhu vs. Delhi administration [ (1980 ( supp) SCC 613] and such discretion must not be vague as held by the Apex Court in Nishi Maghyu vs. State of J & K [AIR 1980 SC 1975].
It is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes the action to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. The impugned order of transfer in this case was passed in public interest. Where the executive may proceed under one provision or another in dealing with the matter and their choice is one of wide discretion unregulated by standards or rules, the resulting administrative action as well as the enabling statutory provision could be open to attack on the basis of Art. 14. Therefore, on what ground that the 2nd respondent had decided that the usefulness of the applicant at the present station have come to an end? Even in the face of specific challenge the respondents have not chosen to answer it. Why had he concluded that the applicant must therefore be transferred? What is the thought process which went through the mind of the concerned authority? Why and how had he decided that the applicant must be transferred in public interest? No answers are forth coming.
In State of Orissa vs. Dhirendra [AIR 1962 SC 1715] the Apex Court has held that where the executive had an absolute discretion to commence disciplinary actions against public servants as between two different rules, the relevant rules providing for such discretion was invalidated as being violative of Art. 14. This was followed in Jyoti Prasad vs. Union Territory [ AIR 1961 SC 1602]. It has been held that the standard of substantial extent which was sought to be the parameter available to the administrative authodrity was held to be an indefinite guide to the executive in the matter of selection. Absence of standards, principles and policies to guide the exercise of absolute discretion is liable to render the resultant administrative action open to challenge. In this case, the modalities of application of mind is singularly and significantly absent.
In Kuljeet Singh vs. Lt. Governor of Delhi [AIR 1981 SC 1572] the apex Court held that at the heart of the matter is the problem of justiciability. Although the courts do not characterize issues as political questions like their American counterparts they do feel hesitant to adjudicate upon certain issues. In the above case, the appellant had been convicted and sentenced to death for murder. He petitions for mercy to the President of India who is empowered under Art. 72 of the Constitution to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence. The C ourt held in favour of judicial review even though powers under Art. 72 and 161 are of a pleanary nature.
In S.R. Bommai vs. UOI [ AIR 1994 SC 1918] nine Judges Bench has held that exercise of discretion even under Art. 356 is open to challenge and interdiction.
Proportionality and Substitution of judgement:
To what extent the administrative authorities could exercise its discretion. Whether the Court can supplant or supplement such discretion is a question of credence in this scenario.
As pointed out earlier, the linkage of the protection of the fundamental rights with judicial control has the consequence of enabling the Courts to act on the proportionality principle and in some cases substituting their own decision for those of the administrative authorities on the matter. This issue has surfaced in the Indian sub continent. At times, the Courts have acted on proportionality without explicitly acknowledging it. Thus, the Apex Court in the case of Regional Manager Bank of Baroda vs. Presiding Officer GCIT [AIR 1999 SC 912], wherein a bank employee made a false statement about his past criminal conviction in his application for a job, held that this was not such grave misconduct as to warrant a dismissal and ordered reinstatement. At the same time the Apex Court in the case of Sanchala Kashriv vs. R. Mehta [ AIR 1999 SC 578] which is a teachers case, wherein the teacher forged the signatures of the authorities on his service book to get his revised pay regularized, he was held to be guilty of serious misconduct and his dismissal was not viewed as disproportionate, for the reason that a teacher is expected to be a guide for the society and any lacuna on his/her part is to be viewed very seriously. Thus in principle the proportionality is an acceptable part of the jurisprudence in India and it is very relevant in the present case.
The House of Lords explained in the Brind case [ 1991 1AC 696] that proportionality is a different principle from the Wednusbury Irrationality test and it enables the courts to review the merits of a decision, going beyond the legality of it. In State of Karnataka vs. H. Nagaraj [ (1998) 9 SCC 671] the Apex Court has stated that the principle of proportionality can be invoked only in a case where4 the punishment was totally irrational in the sense that it was an outrageous defiance of logic or of moral standards. This is in fact, a statement of the Wednesbury Irrationality as explained by Lord Diplock in Council of Civil Service Unions vs. Minister for the Civil Service [ (1985) AC 374 at 410] where he said:
By irrationality, I mean what now can be succinctly referred to as WednusburyUnreasonableness. It applies to a decision which is so outrageous in its defiance logic or acceptable moral standards that no sensible person who had applied his mind to the question could have arrived at it. But at the same time Courts should make a way for margin of appreciation to the executive authority. It is seen that in American administrative law the prevalent trend is towards structuring discretion by formulating standards, policies and rules. Therefore the Honble apex Court in the case of Shalini sone vs. UOI [ AIR 1981 SC 431 held that it is an unwritten rule of the law, constitutional and administrative that whenever a decision making function is entrusted to the subjective satisfaction of a statutory authority there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. This legal position would cover the parameters of extraneous consideration and whether this fact would weigh the decision as is claimed by the respondents. In fact the process of application of mind by the respondents to seek out public interest is conspicuously absent.
In Ajantha Transports vs. TVK Transports [ AIR 1975 SC 123] the Honble Apex Court stated in general terms the proposition that the authority should not act mechanically in exercising their discretion. For the same reason, they should not receive dictation from another body. Thus a public prosecutor in deciding whether to commence prosecution or to discontinue criminal proceedings cannot be compelled to act by instructions from the Government as has been held by the Apex Court in Balwant Singh vs. State of Bihar [ AIR 1977 SC 2265]. The same principle has been enunciated by the Apex Court in Vijay Kumar vs. State J & K [ (1982) 2 SCC 43] Therefore the notification of the second respondent to terminate the current service of the applicant in the current sphere by addressing a letter to the General Manager may be viewed as extraneous and which might vitiate the decision making process of the authority.
Therefore, wide discretionary powers, unstructured and unregulated by principles, standards or guidelines are likely to be declared unconstitutional being inconsistent with a number of constitutional provisions in particular Art. 14 and 19 JUDICIAL CONTROL- REVIEW OF SUBJECTIVE DISCRETION.
In English law, the scope of judicial review of subjective satisfaction or discretion, the exercise of which is not conditional on the existence of jurisdictional facts is determined by the Wednesbury Principle. We have seen that in effect this means that subjective satisfaction of the executive is by and large immune from judicial review. But in India on law, this is to a large extent justiciable. For instance, in cases involving preventive detention the court would not accept a claim being satisfied of the grounds of detention on the part of detaining authority. It would look at the record to see whether there is any evidence on the basis of which the authority could be so satisfied. The Honble Apex Court in Menaka Gandhi vs. UOI [ AIR 1978 SC 597] held that satisfaction of the detaining authority must be based on sound material having a nexus with the activity of the detainee. Thus allegations unsupported by valid reasons cannot be a bench mark to decide preventive detention as has been held by the Apex Court in Bimla Dewan vs. Lt. Governor of Delhi [ AIR 1982 SC 1257] The Apex Court has also held in Harnek Singh vs. State of Punjab [AIR 1982 SC 682]that fact relied on which is too distant in point of time and offence committed in the past or a minor infringement of law claimed as an activity prejudicial to the maintenance of public order as has been held by the Apex Court in Jaya Mala vs. Home Secretary J & K {AIR 1982 SC 1297}. Therefore, even prima facie, no compelling reason other than the personal dissatisfaction of the 2nd respondent existed to canvass the transfer of the applicant. But, why had he alone so? Why had the concerned authority merely followed it?. We need to deliberate on this as the respondents found their action on their powers.
Justiciability of subjective discretion has extended beyond the cases of preventive detention Thus in Menaka Gandhi s case where the government impounded the petitioners passport but refused to furnish the reasons therefore in the interest of general public the Supreme Court asserted its jurisdiction to scrutinize the claim not to disclose the reasons. The Government was not the sole judge of the matter. The Court found that non-disclosure of the reasons was not justified as no damage to the public interest was involved. In this case the Court went into all aspects of the matter and decided that the government was wrong. In fact, the Court assessed the damage caused to the public interest and read into all aspects what normally arises in such matters including subjective satisfaction of the administrative authorities.
Justiciability of subjective discretion has been made possible by the constitutional frame work of judicial control of administrative action. Thus the Supreme Court in Menaka Gandhis case read into art. 21 the American doctrine of due process of law as as to require its observance in depriving a person of his life and personal liberty. In this case Honble Mr. Justice Bhagwati also invoked art. 14 to say that art. ensures fairness in state actions and any procedure which is not right and just and fair ; is arbitrary, fanciful or oppressive will be invalid( under art. 14). In his view a procedure which provides for curtailment of personal liberty without observance of rules of natural justice could not be right and just and fair and would be invalid under Art. 14. The introduction of due process into Indian law has wider implications, Therefore where is just and proper in this case? Not only in terms of the requirement of the applicant but in greater nation interest also?
The Special Courts Bill 1978 case reported in AIR 1978 478 at page 517 relates to provision of transfer of a case from one special court to another without safeguards against bias was held to be contrary to Art. 21. Thus Art. 21 has emerged as an independent provision which required the observance of principles of natural justice in the spehere of personal liberty. This couples with Art. 14, 19, 21 and 136 which imposes the requirement of giving reasons for decisions has opened new possibilities for judicial control of subjective discretion.
While exercising the discretion, all administrative authorities are bound to give reasons ( i) when making decision. (ii) when justifying decision. The Courts have time and again held that if no reasons are given while exercising discretion, the same would be bad in law. Why the applicant has to be transferred is snot answered even now as obviously the project is not yet completed.
My attention was drawn to Indian Railway Establishment Code 1985 edition Chapter 2 which deals with general condition of service. Rules 226 to 233 deals with transfer. Rue 226 says that ordinarily a railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another railway or another establishment. In the exigencies of service, however, it shall be open to the President to transfer the railway servant to any other department or railway or railway establishment including a project in or out of India.
Rule 227 says that a competent authority may transfer a railway servant from one post to another, provided that except (i) on account of inefficiency or misbehaviour, or (ii) on his written request. Rule 232 says when a railway servant is transferred otherwise than for public convenience, a copy of the order of transfer shall be sent to the Accounts officer with the endorsement stating the reasons of the transfer. In the absence of such an endorsement the Accounts Officer shall assume that the railway servant has been transferred for the public convenience. Admittedly, in the impugned order there is no such indication. Therefore the clear cut indication is the transfer of the applicant had been done in public interest.
Rule 233 states that unless for special reasons ( which must be of public nature ) the authority under whose orders the transfer takes place permits or requires it to be made in any particular case elsewhere, or otherwise, the charge of an office must be made over at its headquarters, both the relieving and relieved railway servants being present. Apparently, the railway authorities had indicated that charge shall be handed over on 5th or 6th of the concerned month. On the said date the applicant had approached this Tribunal and this Tribunal had passed an interim order of status quo. The said order was produced by the applicant before the authorities on the 7th; but it was reported that on 6th of the month the authorities have decided that transferred person shall assume the charge in place of the applicant. Therefore, I am of the considered opinion there is no justiciability in the order. It is not clear as to what the proportionality and what is the subjective discretion which had prompted the transfer of the applicant. What is the public interest involved in the impugned order. Therefore, there is no option for this Tribunal other than to hold that the order of transfer is vitiated by extraneous considerations, vitiated by malafides and without sound foundational background. These are questions that would emerge from consideration of this transfer. It is to be noticed that in this connection the respondents have not raised any case of prejudicial element to allege against the applicant. They have offered no comments on the specific nature of allegations raised by him. They are relying on the extent of power in their possession and that the unchallengeabliity of their power should see them through. The implicit public interest in transfer is not yet disclosed. They have merely stated that they have concluded that the usefulness of the applicant at that station to be over. But the specific nature of allegations raised by the applicant and the reliability thereof had caused the said power to be vitiated by self interest, malice and malafides.
The reply is silent on the aspect of on what grounds the discretionary power had been exercised. The authorities have placed reliance only on the extent of their discretionary power to transfer and that the responsible subordinate officer has to accept the same without challenging it .
Under the Wednesbury principle the Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matter which they ought not to take into account, or conversely they have refused to take into account or neglected to take into account matters which they ought to take into account. As reported in 1948 KB at p. 229.
Relying on Art. 22 the Supreme Court ruled that the ground of detention must be communicated to the detainee in their entirety. If there are any documents, statements or other material relied on in the grounds of detention they must also be communicated as has been held by the Apex Court in Icchu Devi vs. UOI [ AIR 1980 SC 1983]. The grounds so made known must be seem to be pertinent matters and should comprise all the constituent facts and materials that went into to make up the mind of the statutory functionary and not merely inferential conclusions. Therefore, the grounds so communicated must reveal the whole of the factual material considered by the detaining authority which the Apex Court had held in Shalini Soni vs. UOI [ AIR1981 SC 431] In Saleh Muhammad vs. UOI [ AIR 1981 SC 111], the Apex Court held that under Art. 22 (5) , a detainee is entitled to make representation and if there is unreasonable delay in considering such representation, it would have the effect of invalidating the detention.
It is seen that after transfer order was issued, the applicant seems to have filed a representation explaining the reasons as to why the transfer order should be rescinded. Even after the efflux of time, the same seems to have been not answered.
In any way, from an examination of all the details of the matter it is clear that the present transfer order is made under abuse of discretionary power, without any public purpose and with ulterior motive. For effective judicial control of abuse of powers it is necessary to distinguish between improper purpose and ulterior mlotives. It is found that the purpose of an administrative action is prescribed by law while motives relate to what prompts an administrator to do what is authorized by statute. An administrator might do what is ostensibly authorised by statute but he might be prompted by motives or considerations that are not pertinent to the authorised purpose. Thus in S.R. Venkataraman vs. uoi [ AIR 1979 SC 49} the Honble Apex Court held that where compulsory retirement of a civil servant was set aside the Supreme Court stated that if a discretionary order had been made for an unauthorized purpose it is generally unnecessary to inquire whether the administrator had also acted in good faith or in bad faith . In that case the Apex court did not find it necessary to examine the question of malice in view of the fact that the order had been made for an unauthorised purpose.
Admittedly, in this case two transfers were made in a course of an year or so. The transfer order which is impugned does not state any reason for the transfer and does not even state as to why the transfer is being made. The documents suggests that the transfer is made at the instance of second respondent, who was the principal generator and who was the then controller of the project from 2003 onwards. The applicant seems to have raised some objections and he submitted his assessment report opposing the alignment.. The proposal of the applicant was given a go by. Therefore prima facie the impugned order seems to be unauthorized as well.
The decision taken for unauthorized purpose is liable to be set aside. Merely because the power of transfer existed in one authority it does not mean that he can issue transfer order for an unauthorized purpose. It is crystal clear that the applicant and second respondent are not in good terms. The second respondent is the principal generator of the alignment of the project of national importance. If the realignment was not made the country could be losing more than Rs.3000/- crores is the claim of the applicant. Admittedly the second respondent on assuming the charge of Member Engineering called back the files from the Honble Minister for Railways. Thereafter the complete picture was apparently not placed before the Honble Minister for Railways for taking a decision which constitute violation of rules of Business. The same had happened during the interregnum period of change of Minister for Railways. Therefore it is crystal clear that the second respondent had malice actively in his mind against the applicant. The malice came to light because the second respondent suggested to the General Manager, to utilize the service of the applicant usefully elsewhere as coming from him it is an order to transfer. Naturally there is abuse of power in this. The railway Board issued the transfer order during the mid academic session without any useful purpose. It is clear from the records that extraneous reasons were there. In normal situations transfer must be left with the administrative authorities alone. But as rightly held by the Honble Apex Court, if a transfer is vitiated by malafide or made under extraneous consideration or made by malice it must be interdicted as seems to be the case in this matter.
In view of the above discussions, it is the duty of the court to look into the transfer by taking into account the dictums of the Apex Court as quoted above. Therefore, I am holding that the transfer order dated 04.09.2009 stands vitiated and must be quashed. The Court should also see that the national interest and public interest should not suffer. Looking at from the other angle that prima facie if the suggestion of the applicant is put into operation the country can save Rs. 3,000/- crores. This is to be looked into seriously.
To Serve the nation better, a copy of this order must be made available to (i) the Cabinet Secretary, (ii) Comptroller and Auditor General of India and (iii) Chief Vigilance Commissioner, Central Vigilance Commission for them to look into the totality of this matter and to enable them to exercise their jurisdictional responsibilities.
I conclude by declaring the impugned order of transfer dated 04.09.2009 passed against the applicant, as illegal, arbitrary and not on public interest, it is vitiated by malice and malafides and the same is hereby quashed. The respondents are directed to repost the applicant to the post, which he held on 04.09.2009, within two weeks from the date of receipt of a copy of this order with all consequences. As I have already found that on deeper inspection the relief from charge on 6th of the month is a colourable exercise of power, this reposting shall be as if such change of guard never occurred. In short, it shall be as if this illegality never occurred and he is entitled to all financial consequences of continued engagement at that post. The respondents are further directed to pay Rs. 5,000/- as costs to the applicant because of the sufferings caused to him not as quantified damages but as a palliative measure.
O.A stands allowed as above with costs of Rs.5,000/- to be paid to the applicant by the respondents.
The Registry is directed to forward a copy of this order to (1) the Cabinet Secretary, (2) Comptroller and Auditor General (3) Chief Vigilance Commissioner to enable them to exercise their jurisdictional responsibilities.
[Dr.K.B. Suresh] Judicial Member.
Jsv.