Madhya Pradesh High Court
Dr. Ram Naresh Tiwari vs The State Of Madhya Pradesh on 28 June, 2012
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.1219/2012
Dr. Ram Naresh Tiwari
Vs.
State of Madhya Pradesh & others
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Shri K.C. Ghildiyal, learned Counsel for the petitioner.
Ms. Sheetal Dubey, learned Govt. Advocate, for respondents
No.1 and 2.
Shri N.K. Mishra, learned Counsel for respondent No.3.
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Present : Hon'ble Shri Justice K.K. Trivedi
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O R D E R
(28/06/2012) By this petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 17.01.2012 by which the petitioner has been transferred from the post of Regional Additional Director, Higher Education, Rewa Division, Rewa, to the post of Principal, Govt. Post Graduate Model Science College, Rewa, with the additional charge of the post of Principal of Govt. Sanskrit College, Rewa and respondent No.3 has been transferred from the post of Principal, Govt. Sanskrit College, Rewa as Principal of Govt. Girls College, Rewa and is also given the additional charge of the post of Regional Additional Director, Higher Education, Rewa.
2. It is contended by the petitioner that he is substantially holding the post of Principal of Govt. Post Graduate College, which is equal to the post of Regional Additional Director, Higher Education. The respondent No.3 is merely a Principal of Degree College, which post is 2 equivalent to the post of Joint Director and, therefore, could not be posted as Regional Additional Director. However, only to oblige the respondent No.3, with malafide intention, such an order has been issued shifting the petitioner and posting respondent No.3 on current charge in place of the petitioner. It is contended that there are many other Principals of the Post Graduate Colleges posted in the same district and as the Regional Additional Director is the controlling officer of the said Principals of the Colleges, the respondent No.3, who is junior in rank, would be given the current charge of the superior post and would have the administrative powers over and above the persons like the petitioner. The petitioner cannot be made to work under a junior cadre officer and, therefore, the order of transfer is bad in law. It is contended that even if the local posting was to be made, the status of the petitioner was not to be lowered down and, therefore, the order impugned is bad in law and is liable to be quashed.
3. The writ petition came up for hearing before this Court on 23.01.2012 and it was entertained. While issuing the notices to the respondents, submissions of the petitioner were considered and an interim order was passed to the effect that the operation of the order impugned so far as it relates to the petitioner and respondent No.3 shall remain stayed. This order is continued. In response to the notices issued to the respondents, a return has been filed by them. The official respondents have contended that the working of the petitioner soon after his promotion and posting as Regional Additional Director at Rewa was found unsatisfactory. It is contended that vide order dated 11.02.2010 the petitioner was promoted on regular basis with retrospective effect from the date his juniors were promoted, on the post of Regional Additional Director, 3 Higher Education and was posted at Rewa. In two years working of the petitioner it was found that the petitioner completely failed to discharge his duties as he had not been capable of having the administrative control, he was not able to satisfy the quarries made by the higher authorities and even the quarries made by the State Government were not replied by him timely. The petitioner was not performing the tours and inspection of the colleges, which come within his jurisdiction, resulting in malfunctioning of the colleges. It is contended that though the petitioner was posted as Regional Additional Director but the same being a transferable post, the substantive rank of the petitioner is that of a Principal of Post Graduate College, therefore, he was transferred in appropriate manner to a college and in his place the current charge of the post of Regional Additional Director was given to respondent No.3. It is contended that there is no financial difference in pay of both the posts and, therefore, the petitioner is not put to any loss. There is no malafide intention of the respondents in issuing the order and in absence of such material allegations, the claim made by the petitioner cannot be accepted.
4. Respondent No.3 has also filed a return and has contended that he was given the benefit of time bound advancement by granting him the pay scale of the post of Principal of the Post Graduate College. This was done under the scheme and as such the respondent No.3 is also equated with the post of Principal of the Post Graduate College. It is contended that it is not that only the Principals of the Post Graduate Colleges are required to be posted as Regional Additional Director of Higher Education. On earlier occasion also the Principals of the Degree Colleges were posted as Regional Additional Director, Higher Education.
4Such orders were issued as back as in the year 2008 and, therefore, if the respondent No.3 was given the current charge of the post of Regional Additional Director, it cannot be said that the order issued in respect of respondent No.3 was improper. It is also contended that pursuant to the order of transfer issued, respondent No.3 has given his joining for taking over charge of the post of Regional Additional Director, Rewa and this information has been sent to the higher authorities.
5. A rejoinder is filed by the petitioner to the return filed by the respondents. It has been pointed out that the posts of Principal of Post Graduate Colleges and Regional Additional Director, Higher Education, are Class-I post in the higher pay scale whereas the post of the Principal of the Degree College/Joint Director, Higher Education and State Liaison Officer, NSS, though are Class-I posts but are in lower pay scale. As per Schedule-IV of the Rules known as Madhya Pradesh Education Services (Collegiate Branch) Recruitment Rules, 1990, the post of the Principal, Post Graduate College, is to be filled in by promotion of Principal of Degree College and, therefore, the post being higher in cadre, the respondent No.3 could not have been given the current charge of the post of Regional Additional Director. It is also contended by the petitioner that after his posting as Regional Additional Director, Rewa, he has conducted the tours, approached the office of the Advocate General, Jabalpur, for the purposes of filing of return in pending cases on number of occasions. Thus, the allegations made that the petitioner was not discharging the duties efficiently, therefore, he was not to be allowed to continue as Regional Additional Director, are misconceived and misleading. It is contended that the stand taken by the respondents was incorrect. It was submitted that if the record is called and 5 examined, it will be proved that the petitioner was transferred in illegal manner, not permitted by law.
6. The record of the transfer file was called by this Court for perusal and the same has been produced before this Court. The record is perused in the presence of the counsel for the parties. Learned Counsel for the parties are heard at length.
7. An irresistible conclusion would be drawn by this Court after minutely examining the transfer file that the petitioner was transferred in hasty manner without properly examining many a facts. The order of transferred was proposed with respect to the petitioner in the note-sheet started with recording the fact that the Regional Additional Director, Higher Education, posted at Gwalior, was keeping ill and was not in a position to discharge his duties. Many cases were being filed in Gwalior Bench of this Court and, therefore, it would be necessary to make posting of a proper person to look after the work at Gwalior. The similar circumstances were mentioned with respect to the posting at Rewa and it was said that to make the administrative system correct at Rewa, a proper person is required to be posted. It was categorically recorded that only the Principals of Post Graduate Colleges were required to be posted as Regional Additional Director of the Higher Education. The proposal was made for transfer of the petitioner from Rewa to Sidhi and in his place it was proposed that one Dr. Yogendra Pratap Singh be posted as Regional Additional Director, Rewa, from Sidhi College. When this proposal was placed before the Principal Secretary of the Department, the same was sent for approval before the Minister of the Department with the note that because the ban on transfer was imposed, the 6 local posting may be made. The Minister concerned made the changes in the proposal and said that since the petitioner is a scholar of Sanskrit, he be posted in the Post Graduate College and be given the current charge of the post of Principal of Sanskrit College also. In this, a proposal on his own was made by the Minister to post respondent No.3 from Sanskrit College to Govt. Girls College, Rewa and to give him the current charge of the post of Regional Additional Director, Rewa. As far as the posting of respondent No.3 in Govt. Girls College, is concerned, it was not objectionable and he could have been shifted from Sanskrit College to Girls College for making room to the petitioner, who was to be given additional charge of the said college also. So far as the posting of the petitioner in Govt. Science P.G. College, Rewa is concerned, it also cannot be said to be incorrect. The only fault committed by the Minister was to order posting of respondent No.3 on current charge on the post of Regional Additional Director, Higher Education, Rewa. As was already pointed out by the department, the respondent No.3 could not have been given the current charge of the post as he is holding a lower cadre post than that of the Principal, Post Graduate College. If for any reason any change was necessary on the post of Regional Additional Director, Rewa, that could have been ordered by substituting the petitioner by a person of equal cadre and not otherwise. Thus, only on the basis of such order of the Minister of the Department, the order cannot be issued in respect of the petitioner and respondent No.3. Even if it is accepted that the order of the petitioner shifting him from the post of Regional Additional Director, Higher Education, Rewa was necessary, the same cannot be given effect to till a regular incumbent is posted in place of the petitioner at Rewa. At any rate, the order of posting of respondent No.3 or giving him current charge of the post of 7 Regional Additional Director of Higher Education, Rewa cannot be up held.
8. In the democratic set up of Govt. of India, Ministers of the Government are vested with certain powers. However, the rules of business of the executive Government made by the State prescribe that said ministers are to act on the recommendations and proposals of the department concerned. The Ministers on their own cannot issue any order with respect to the posting of persons. This is specifically the reason such powers are not conferred on the Ministers otherwise it will amount to converting a democratic set up into dictatorial system of the Government. As has been mentioned herein above, the recommendations were made for posting of one Dr. Yogendra Pratap Singh in place of the petitioner as Regional Additional Director, Higher Education, Rewa. If inter-district transfer was necessary and if the same could not be ordered during the period of ban on transfer by the Minister, the course open to the respondents was to refer the matter in coordination to the Chief Minister of the State as the policy of the transfer prescribes that in exceptional circumstances and on administrative exigencies, the transfer during the period of ban can be ordered after obtaining approval of the same in coordination from the Chief Minister of the State. This being so, merely because shifting of somebody, who was not posted within the District Rewa was needed, it could not be said that the Minister was justified in directing handing over of the charge of a higher post to a person, who was not holding the equal cadre post. The State Government time and again has specifically directed that the junior officers should not be posted on such senior cadre posts, which are to be meant by a person holding the particular cadre post. In the given 8 circumstances, only the senior most junior is required to be given current charge if the officer of the higher cadre is not available. This being so, if the order of the Minister is viewed, it will be clear that the same was in violation of the specific orders and policies made by the State Government and thus the same cannot be affirmed in so far as it relates to posting of respondent No.3 even on current charge on the post of Regional Additional Director, Higher Education, Rewa.
9. Apart from the above, it is also to be seen that the statutory rules with respect to appointment of persons on the posts so sanctioned in the department are made, known as Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules, 1990 (herein after referred to as 'Rules'). The qualification, scale of pay etc. has been prescribed in Schedule-I attached to the Rules. The method of recruitment is prescribed in Rule 6 of the Rules wherein it is specifically provided that the recruitment to the service, after the commencement of these rules, shall be by direct recruitment, by transfer of persons who hold in substantive capacity such posts in such service as specified in Schedule-II. Thus, the transfer is also one of the mode of recruitment. It is to be seen whether such posting is made strictly in order to the provisions of the rules aforesaid or not. Even if this was proposed by the Principal Secretary of the department that in place of petitioner, respondent No.3 be given the current charge and mechanically the same was accepted by the Minister of the Department, said act cannot be said to be proper as the same is violative of the specific provisions of Rule 6 of the Rules. The posting of the respondent No.3 on the post was in violation of the specific clause inasmuch as he was not holding the post of Regional Additional Director, Higher 9 Education, or its equivalent post and, therefore, he could not be given the posting as Regional Additional Director, Higher Education, even on current charge. From the note- sheet it is clear that some sort of proposal was made by the Minister and the same was immediately approved according to which direction was given for issuance of the order of posting. This being so, the order of transfer of the petitioner was not only violative of statutory rules but was also not justified in view of the fact that a person junior in cadre was being given the charge of the higher post. It has been categorically alleged by the petitioner that there are other Principals of the Post Graduate Colleges available in the same district. It is admitted by the respondents in their return that the Principals of the Post Graduate Colleges are holding substantive post equivalent to the post of Regional Additional Director of the Higher Education. If it was so necessary to shift the petitioner from the post of Regional Additional Director, in his place somebody of the equal cadre post could have been posted. In that situation, there was no necessity of interference in the order of transfer and posting. Though in several cases it has been held by the Apex Court as also by this Court that judicial review of order of transfer is not permissible unless the same is violative of the statutory rules or is actuated on malafide or is ordered by an authority not competent to do so but in the case in hand it is found that the order so issued on the dictates of the Minister of the Department was not only violative of the statutory rules but was also beyond jurisdiction of the said authority. If Minister was of the opinion that a change in the proposal was required to be made for the purposes of posting of somebody else in place of the petitioner from amongst the persons working in the district, the matter was required to be referred back to the department for the purpose of making of a proposal in that respect and then 10 only the action could have been taken by the department for shifting of the petitioner and substituting him by posting a proper person. Thus, the order is not only actuated on colourable exercise of power but also smacks of malafide. The same cannot be sustained by this Court.
10. Consequently, on the basis of the findings recorded herein above, this writ petition is allowed. The order impugned in so far as it relates to transfer of the petitioner from the post of Regional Additional Director, Higher Education and posting of respondent No.3 in his place on the said post vide order dated 17.01.2012 (Annexure P-6) is hereby quashed. The petitioner be allowed to continue on the post of Regional Additional Director, Higher Education, Rewa till the order of posting of some eligible officer according to the Rules is issued.
12. The writ petition is allowed to the extent indicated herein above. There shall be no order as to cost.
(K.K. Trivedi) Judge Skc