Calcutta High Court (Appellete Side)
Krishna Kant Pandey & Anr vs Union Of India & Ors on 24 December, 2008
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P No.11293 (W) of 2006
With
CAN 6246 of 2007
With
CAN 5094 of 2008
Krishna Kant Pandey & Anr.
VS
Union of India & Ors.
WITH
W.P. No. 10972 (W) of 2006
With
CAN 6243 of 2007
Md. Abdul Hanan Kabiraj
VS
Union of India & Ors.
For the Petitioner: Mr. Saktinath Mukherjee
Mr. Achin Kumar Majumdar.
For the Respondents: Mr. P.K. Mallick
Mr. Uttam Mazumdar, Mr. Ayan Basu.
Judgment on: 24.12.2008 S. P. Talukdar, J.: In response to the submission made by learned Counsel for the parties and in view of the fact that the two cases relate to identical facts and points of law, both are taken up at a time.
In W.P. No.10972 (W) of 2006, the writ petitioner sought for revocation/cancellation/withdrawal of the inter-divisional transfer order dated 25.4.2006 passed by the Chief Security Commissioner, RPF, Eastern Railway as well as further direction for not giving any further effect to the said order.
The facts of the case being W.P. No.10972 (W) of 2006 may briefly be stated as follows: -
The petitioner, Md. Abdul Hanan Kabiraj, is an Assistant Sub Inspector, Railway Protection Force of Eastern Railway. He was given promotion to the rank of ASI on ad-hoc basis with effect from 23rd September, 1996. He was however not reverted to the substantive posts and was allowed to continue in the promotional post for about 9 years at a stretch without any break. Those who were promoted with him on ad-hoc basis as ASI, RPF were given retiral benefits in the pay scale of Assistant Sub Inspector. The petitioner was denied such benefit.
The petitioner through his advocate submitted a representation in the form of 'demand justice'. The respondent No.2, being the Chief Security Commissioner, directed one Inspector to look into the matter. The said Inspector submitted a report after enquiry on 5.4.2005 thereby supporting the stand of the writ petitioner. But ignoring such report, the writ petitioner was given regular promotion in the post of ASI with effect from 1st July, 2004 under the restructuring scheme and on promotion, he was given posting at S.I.B., Headquarter, Easter Railway on being transferred from Metro Railway. The writ petitioner filed a writ petition before this Court being W.P. No.10521 (W) of 2005 against such decision of the authority being respondent No.2 dated 18th March, 2005. On 23rd March, 2006 a Surakha Sammelon was held at RPF Camp Liluah, Howrah. The petitioner took such opportunity and ventilated his grievances before the Director General, RPF. The respondent No.2 sought for an answer from respondent No.3 in the open meeting and requested him to take necessary remedial action. This annoyed the respondent No.3, who out of vengeance issued the premature transfer order dated 25th April, 2006 whereby the petitioner had been shifted to Chittaranjan Locomotive Works. He was not served with such order of transfer but was given the letter showing that he had been spared.
The petitioner claimed that he joined on RPF Post, S.I.B., Head Quarter, Calcutta on 1.4.2005 on being transferred from Metro Railway by an order dated 18.3.2005. He had completed only one year at such place of posting. Out of 376 Assistant Sub Inspectors who were promoted along with the present petitioner, he had only been singled out and picked up for transfer to another division by way of punishment. Except six or seven A.S.Is out of total 376, all others had been continuing in their present places of posting.
Rule 93.1 of the Railway Protection Force Rules, 1987 empowers the Director General, R.P.F. to frame Standing Order prescribing tenure of posting of the enrolled members of the Force at one post. In terms of the said Rule, Standing Order No.70 dated 27.9.2004 was issued thereby fixing five years as prescribed tenure at one post. Thus, the order of transfer under challenge is contrary to Rule 93.1 and Rule 93.2 of R.P.F. Rules, 1987 and Standing Order No.70 dated 27.9.2004. The authority concerned did not mention about any extraordinary circumstances or any grave reason for issuance of such impugned transfer order, which was issued in clear defiance of the relevant Rules and Standing Order. Such impugned order thus suffers from mala fide and it is in violation of the statutory rules/regulations.
This apart, the petitioner is the only male member of his family. The petitioner alleged that respondent No.5 was posted as a Sub Inspector at CIB, RPF Eastern Railway, Headquarters. On promotion to the rank of Inspector, he was kept in the same post for a period of more than ten years. Such acts of arbitrariness were repeated time and again - more particularly in case of respondent Nos.6, 7, 8, 9, 10, 11 and 12. In the circumstances, the petitioner approached this court for redressal of his grievances.
The respondent-authority contested this case by filing affidavit-in- opposition wherein all the material allegations made by the writ petitioner had been denied. It was claimed that the petitioner had been given promotion as Assistant Sub Inspector in the pay scale of Rs.4,000/- Rs.6,000/- with effect from 1st July, 2004 under the restructuring scheme as per Railway Board's Instruction dated 15.9.2004. The petitioner's prayer for promotion to the post of A.S.I. as a regular measure does not come under the zone of consideration of seniority and as per existing Railway Rules. The previous application filed by the petitioner being W.P.No.10521 (W) of 2005 is pending. The petitioner had been transferred from SIB, Headquarter to Chittaranjan Locomotive Works at Chittaranjan in the interest of administration. It was claimed that there had been no complaint against 376 Assistant Sub Inspectors except the writ petitioner. The respondent-authority further stated that the Chief Security Commissioner of the RPF has the competence to issue such inter-divisional transfer order. The transfer order was issued to the petitioner on 25.4.2005 i.e., before the Assembly Election held on 27.4.2006. He did not submit any representation. It was categorically stated that the order of transfer does not suffer from any mala fide nor it was issued in violation of any rules.
In the affidavit-in-reply filed by the writ petitioner, emphasis had been given to the earlier stand as taken in the writ application. It was further claimed that the petitioner had been picked up and had been treated in an unfair and arbitrary manner by the concerned authority.
In W.P. No.11293 (W) of 2006, the writ petitioners approached this court for redressal of their grievances against the inter-divisional transfer dated 2nd March, 2006 and the Force Order No.42/2006 and the order dated 25th April, 2006 passed by the Chief Security Commissioner, R.P.F., Eastern Railway, Calcutta.
Grievances of the petitioners in the said case are as follows: -
Petitioner No.1 is an Assistant Sub Inspector of Railway Protection Force, Eastern Railway and petitioner No.2 is the Constable, now posted at CIB, Sealdah. The petitioner No.1 on being promoted was transferred to the post of A.S.I., R.P.F. post, Sealdah by an order dated 4th April, 2005. The petitioner No.2 joined at C.I.B., Sealdah on 5th May, 2002 on being transferred from F.P.F. post, Cossipur where he completed nine months. Rule 93.1 of the Railway Protection Force Rules, 1987 empowers the Director General, R.P.F. to frame Standing Order prescribing the tenure of posting of the enrolled members of the Force at one post and in terms of the said Rule 93.1, the Director General, R.P.F. framed the Standing Order No.70 dated 27.9.2004. The prescribed tenure of posting of an Assistant Sub Inspector was thus fixed for five years in one post. The petitioner No.1 just completed one year in his present place of posting at Sealdah from where he has been transferred to Chittaranjan Locomotive Works at Chittaranjan. Petitioner No.2 hardly completed three and half years before being transferred to Malda Division. The Director General, R.P.F., Railway Board also issued a Circular dated 7.5.2002 thereby directing all the superior authorities of the Zonal Railway not to pass any order of premature transfer. Such inter- divisional transfers of the present petitioners has been done in violation of Rule 93.1 and Rule 93.2 of the R.P.F. Rules, 1987 and the Standing Order No.70 dated 27.9.2004. The respondent-authorities did not disclose any such extraordinary circumstances so as to justify such premature orders of transfer. It would appear from the order of promotion and posting dated 4th April, 2005 that out of 93 Assistant Sub Inspectors, the petitioner was singled out and picked up for transfer to another division. This clearly reveals the mala fide motive and vindictive attitude of the respondent No.3. The petitioners were thus, sought to be shifted since they took drastic steps against the local criminals and recovered huge amount of Railway properties from their possession. In fact, the wife of one Binay kumar Agarwal, who was a noted criminal, lodged a complaint before the authorities alleging that the present petitioners created pressure upon her and demanded money and threatened her with dire consequences. The matter was looked into but nothing was established. Such unscheduled premature transfer put the petitioners and their families into serious inconvenience and since it was made in a mala fide manner, it is liable to be quashed.
In response to this, respondent-authorities contested the case by filing affidavit-in-opposition, thereby denying all the material allegations made in the application. It seems to be the stand of the respondent-authorities that the petitioner, Krishna Kant Pandey was transferred on complaint that he is not competent to perform his duties properly and another petitioner was transferred in the interest of administration.
It was emphatically claimed that such order of transfer dated 2nd March, 2006 was issued by the Chief Security Commissioner/R.P.F., CCC in the interest of Railway Administration.
Rule 90 of the Railway Protection Force Rules, 1987 clearly indicates that members of the Railway Protection Force may be transferred from one place to any other place in India in the exigencies of service or for administrative reasons or to avoid local entanglements of such members or for any such other consideration. ' Members of the Force' means a person appointed to the Force under the Railway Protection Force Act. 'Enrolled members of the Force' means any subordinate officer, under officer or any other member of the Force of a rank lower than that of under officer. On behalf of the petitioner in W.P. No.10972 (W) of 2006, it was submitted that the petitioner was victimized for ventilating his grievances before the superior authority and thereby was singled out for a posting outside. It was submitted that the tenure of officer in the rank of the petitioner is 5 years, though such tenure is in the nature of guidelines and does not preclude the administration from transferring staff at any time before completion of the tenure in exigencies of service or for administrative reasons as envisaged in Rule 90 of R.P.F. Rules, 1987. It was specifically mentioned on behalf of the petitioner in the said case that the highest authority being the Director General of the R.P.F. by communication dated 5th July, 2002 intimated that all the concerned subordinate authorities that premature transfer should not be done unless there are some grave reasons.
According to the petitioner, there could be no such reason for transferring the petitioner in defiance of the instruction and this clearly indicated the mala fide intention of the respondent-authorities. According to the learned Counsel, the petitioner had to struggle his way through since he had to approach this court earlier also with a writ application being W.P. No.10521 (W) of 2005 for redressal of his grievances. Interestingly enough, the respondent-authorities while taking the plea that the transfer of the petitioner was ordered in its usual course, there is mention of a complaint against the petitioner. This, according to the authorities, makes him stand on a footing different from 375 others of his rank. It cannot be denied that the order of transfer does not ordinarily deserve to be interfered with unless it is mala fide or in violation of the statutory rules/regulations. It is not necessary on behalf of the authorities to explain as to why and under what circumstances a particular person has been transferred leaving others untouched. At the same time, it is worth mentioning that mala fide is not necessarily visible and it can only be ascertained by lifting the veil. The peculiarity of the circumstances may sometime require to be analyzed in order to appreciate whether there is any mala fide or not. In the affidavit-in-reply filed on behalf of the writ petitioner, instances were referred to in support of the contention that the respondent-authorities could not offer any sensible explanation for picking up the petitioner out of 376 promotees and then transferring him to another division. Specific instances as indicated in the affidavit-in-reply, no doubt, go a long way in support of such claim. Learned Counsel for the respondent-authorities, however, brought to the notice of this court that the writ petitioner was appointed as a Constable as far back as on 16th June, 1973. Till 20th December, 1994 he was posted at Sealdah, Calcutta. From 21st December, 1994 to 20th July, 1998, he was at Metro Railway, Calcutta. Then again, from 21st July, 1998 to 1st December, 1999, he was at CIB, Headquarter, (IVG), Calcutta. From 2nd December, 1999 to 29th March, 2005, he was at Metro Railway, Calcutta and then from 30.3.2005 to 25th April, 2006, he was posted at SIB, Headquarter, Calcutta. Thus, during his entire service career, of course, in different ranks at different stages, the petitioner was never transferred out of Calcutta.
The principles of law in regard to the scope and justification for interference in an order of transfer are rather well settled.
Rule 90 of the Railway Protection Force Rules, 1987 clearly indicate that members of the Force may be transferred from one place to another in the exigencies of service, for administrative reasons or, to avoid local entanglements. There is force in the submission that a writ application challenging order of transfer does not deserve to be entertained unless there is violation of the mandatory rules. Order of transfer does not deserve interference unless it is mala fide. There cannot be any doubt that in certain situations transfer does not only uproot a family, it causes irreparable harm and drives an employee into desperation.
In the case of Paras Ram vs. State of H.P. & Ors., reported in 2006 (4) SLR 128, the Single Bench quashed an order of transfer since it was found to be punitive in nature. The Single Bench of the Bombay High Court in the case of Shamrao Chandrappa Kamble vs. Deputy Engineer (B &C), Panchayat Samiti, Miraj, Sangli & Ors., reported in 1998 (2) SLR 418 held that order of transfer is a powerful weapon which is in the hands of the employer. If such order is punitive in nature and even used vindictively and maliciously, it becomes arbitrary and capricious and thus, liable to be set aside.
In the case of Union of India vs. K. P. Joseph., reported in 1973 (1) SLR 910, the Apex Court held that an administrative order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. Their Lordships in the said case referred to the decision in the case of Sant Ram Sharma vs. State of Rajasthan., 1968 1 SCR 111 wherein it was observed that "although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Article 309 of the Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and such instructions will govern the conditions of service.
It cannot be denied that even if an order is executive in character, courts have the power in appropriate cases to compel performance of the obligations imposed by the schemes upon the departmental authorities. To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area".
Learned Single Bench of this court In re: Dr. A. N. Dutt, 1986 (1) CLJ 177 observed that "if the transfer order is tainted with malice or violative of certain well accepted norms or is penal in nature, a writ court shall be within its jurisdiction to enquire into the charge of malice and it found substantiated, can set right the wrong".
The principles of natural justice know of exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. (Ref: -S.L. Kapoor vs. Jagmohan & Ors., reported in AIR 1981 Supreme Court 136).
The Central Administrative Tribunal (Delhi), in the case of K. K. Jindal vs. General Manager, Northern Railway & Ors., reported in 1986 (2) SLR 69 held that basis for the order of transfer being the suspicion as regard conduct that the employee was indulging in undesirable activities, the order becomes punitive in nature and reflects colourable exercise of power.
On the other hand, Mr. Mallick appearing as learned Counsel for the respondents-authority submitted that the order of transfer may often cause a lot of difficulties and dislocation in the family set up. But on that score, such order of transfer is not liable to be struck down. Referring to the decision in the case of Rajendra Roy vs. Union of India & Anr., reported in AIR 1993 S.C. 1236, it was submitted that unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department.
It was further held that "it may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions."
Mr. Mallick further submitted that guidelines issued by Government do not confer upon employee legally enforceable right. Even order of transfer made without following guidelines cannot be interfered with by Court unless it is vitiated by mala fide or is made in violation of statutory provision.
Mr. Mallick submitted that a writ petitioner cannot raise a point not pleaded. He emphatically mentioned that "parties cannot be taken by surprise". (Ref: -V. K. Majotra vs. Union of India & Ors., (2003) 8 SCC 40).
Deriving inspiration from the decision in the case of Major General J. K. Bansal vs. Union of India & Ors., reported in (2005) 7 SCC 227, it was contended that the scope of interference by the courts in regard to members of armed forces is far more limited and narrow but it is for the higher authorities to decide when and where a member of the armed forces should be posted. It was held that "the courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptional case is made out, no interference should be made".
It clearly emerges from the discussion as made above that an order of transfer does not ordinarily deserve interference unless it is made mala fide or in violation of statutory rules and regulations.
How far an order is not bona fide cannot always be ascertained unless the facts and circumstances are carefully looked into. There may be "honey dipping from the mouth and dagger at the back". This may very well demand lifting of veil. Unveiling of the mystery requires scrutiny of facts and materials.
In course of submission, the learned Counsel for the respondents-authority referred to certain complaints against the petitioners namely Krishna Kant Pandey and Md. Abdul Hanan Kabiraj. It can be that the authority-concerned on enquiry found merit in the allegations made in the complaint. Nothing can prevent the authorities from initiating disciplinary proceedings in accordance with rules against such persons. But answer to the problem does not certainly lie in transferring them from one place to another or one division to another. The moment authority acts on the basis that transfer is the way out, it invites interference. Assuming that Government servant or a member of the RPF is guilty of misconduct or there are allegations that he lacks integrity, it may not be enough to shift from one place to another. Mere change of place or assignment may not be a remedy for the potential mischief capacity. The court cannot ignore the fact that transfer is a strong weapon in the hands of the authority and such power can very well be misused according to whims. Instances of authority acting with bias are not few and precisely for the reasons, the writ court cannot keep its doors shut.
Mr. Mallick submitted that the petitioner, Krishna Kant Pandey, after his stay at Sealdah for a year and half was sought to be shifted from Sealdah to Chittaranjan by order dated 2nd March, 2006. Since two and half years have already passed, he has practically completed his usual tenure. He then submitted that another petitioner, namely Md. A. H. Kabiraj, was transferred from Sealdah to Malda after his three and half years of stay. Thus, according to Mr. Mallick, such two petitioners have in effect completed their usual tenure. He further submitted that by order dated 5th January, 2007 issued by the Director General, the tenure has also been changed from four years to three years. He referred to the modification of Standing Order No.70 in this context.
In reply, Mr. Saktinath Mukherjee, on behalf of the writ petitioners contended that such amendment of Standing Order No.70 was subsequent to filing of the writ application.
On behalf of the petitioners, it was emphatically submitted that the orders of transfer under challenge were issued in violation of relevant rules. Attention of the court was invited to Rule 93 of the Railway Protection Force Rules, 1987.
Rule 93.1 lays down that in the interest of continuity of command, discipline and accountability, the Director General may prescribe a tenure of posting for various ranks in various places. Rule 93.2 indicates, "Ordinarily, no member of the Force shall be transferred from one station to another unless he has been at that station for the normal prescribed tenure nor he shall be allowed to remain at that station for more than one year thereafter without the specific approval of the Chief Security Commissioner concerned in respect of enrolled member of the Force and of the Director General in respect of superior officers:
Provided that ..........."
Rule 93.4 reads as follows: -
"Members of the Force who have been transferred out of a particular place or division on complaint of corruption or misconduct shall not be posted back to that post or place division even if they so request".
Thus, there is an element of punishment when an order of transfer is made on complaint of corruption or misconduct.
It follows from Rule 92.2 that transfers of enrolled members of the Force may be ordered by the Chief Security Commissioner concerned and other officers specified in Schedule II.
Mr. Mallick inviting attention of the court to the Standing Order No.70 dated 27.9.2004 and subsequent amendment to the same dated 9.5.2005 submitted that if a premature transfer is considered necessary in the case of members of the Force upto the rank of Inspectors, due to any reason, officers empowered to transfer the member of the Force may order such transfer stating the reasons for doing so. Standing Order No.70 dated 27.9.2004 are in the form of instructions which are intended to supplement the provisions contained in the RPF Rules, 1987. Instruction-23 prior to the aforesaid amendment, was: -
"If a premature transfer is considered necessary due to any reason, prior approval of following officers should be obtained: -
(a) In case of Sub-Inspectors and below :Chief Security Commissioner.
(b) In case of Inspectors :Director General."
Here, in the case of W.P. 10972 (W) of 2006, the petitioner is in the rank of Assistant Sub Inspector and by order dated 25.4.2006, he was spared on the evening of 25.4.2006 to move on transfer to Chittaranjan. By Office Order No.106/2006 dated 25.4.2006 he was transferred and posted to Chittaranjan "with immediate effect in the larger interest of the administration". It was specifically contended on behalf of the respondents-authority that the petitioner Md. A. H. Kabiraj had been posted in Calcutta for a long period, may be in different capacity i.e., as Constable, Head Constable and then Assistant Sub Inspector. To this, learned Counsel for the petitioner submitted that there are others having longer stay but they are not shifted. The petitioner, Md. A. H. Kabiraj, in his Affidavit-in-Reply specifically referred to a number of persons who had been working in the same place and in the same division for much longer period than the petitioner. Thus, the allegations that the authority-concerned is guilty of discriminating against the petitioner cannot just be brushed aside. The petitioner alleged that he was compelled to file a writ application since his promotion to the rank of Assistant Sub Inspector was not considered with effect from 23.9.1996. He ventilated his grievance before the Director General of RPF who looked into his grievance and sought for an explanation for denial of his legitimate claim. According to the petitioner, this possibly antagonized his immediate superior authority and such authority grabbed the opportunity and took revenge by picking him out of 376 persons for such inter-divisional transfer.
Thus, so far as the claim of the writ petitioner, Md. Abdul Hanan Kabiraj, is concerned, I find it difficult to brush aside the allegation of mala fide.
Learned Counsel for the petitioner sought to derive inspiration from the unreported decision of the learned Division Bench of this court in M.A.T. 863 of 2007. This was in support of the contention that the ordering authority and the approving authority cannot be the same. If the approving authority is the Chief Security Commissioner according to Clause 5.3, the order of transfer is required to be issued by any officer below his rank. Any premature transfer issued by the Chief Security Commissioner who is also the approving authority is contrary to the statutory provision as once there is identification of any approving authority by a statute, the law suggests that another authority who issued such transfer order must be holding a rank lower than that of the Chief Security Commissioner.
Reference was made to the decision in the case of Sree Prasanta Chaudhury vs. Union of India & Ors., reported in 2006 (I) SLR, 253 while submitting that when consequences for transfer on complaint regarding corruption of misconduct are serious, the petitioner should not have been transferred without giving proper hearing as no employee can be condemned without hearing.
Thus, for reasons more than one, the orders of transfer which are under challenge in the two writ applications seem to suffer from misappreciation of the relevant provisions. The said provisions being supplementary to the Railway Protection Rules, those do not deserve to be tinkered with.
Mr. Mallick on behalf of the authorities emphatically contended that the decision of the learned Division Bench, as referred to, cannot be a binding precedent. According to him, the relevant provisions of the RPF Rules and the Standing Order were not placed for consideration before the Leaned Division Bench.
Lord Halsbury in Quinn v. Leathem., reported in [1901] AC 495 said: -
" Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found."
In this context, it may be interesting to refer to "Precedent in English Law" by Rupert Cross and J.W.Harris, Fourth Edition, page 60 which is: -
" The distinction between a court's being bound by a judgment and being bound by a ratio decidendi is reminiscent of Lord Halsbury's apparent confusion of precedent with res judicata in Quinn v. Leathem. Like Lord Halsbury when he said that a case is only authority for what it actually decides, Lord Dunedin probably meant that a court bound by a judgment, as distinct from a ratio dicidendi, is bound to make a similar order to that made in the previous case when all the material facts are similar."
Mr. Mallick appearing as learned Counsel for the respondents-authority referred to the fact that the petitioner, Krishna Kant Pandey challenged his order of transfer dated 2nd March, 2006, after his stay in the place for a period of one and half years. Thus, he is already there for about 4 years. Similarly the other petitioner namely, Md. Abdul Hanan Kabiraj, received his order of transfer after three and half years of his stay at Sealdah and two and half years having passed from the said date, there should be no reason for standing in the way of giving effect to the impugned order of transfer.
This is, of course, a relevant factor for taking into consideration. After all, a writ court in a zeal to protect the right and liberty of individual is also not expected to be indifferent to the consequences of its order. The court does not pass an irrelevant order or an order, which is of little consequence. It cannot afford to be a passive onlooker. The court is required to take into consideration all relevant aspects for proper and effective adjudication of the controversy raised before it.
There is force in the submission made on behalf of the respondents- authority that the writ petitioners are enjoying interim orders for quite sometime and now, grievance regarding tenure cannot have any relevance. It is true that pendency of the writ proceedings prevented the respondents-authority from giving effect to the impugned orders of transfer but, that by itself, does not bring about any change in the legal complexion of the orders under challenge.
It follows from the aforesaid discussion that the impugned orders are neither free from mala fide nor can be said to be in tune with the statutory provisions.
Both the writ applications, thus, succeed and be allowed. Orders under challenge in the two writ applications, as referred to earlier, be accordingly quashed.
This, however, does not prevent the respondents-authority from issuing any fresh order.
Consequently, all the pending applications in connection with two writ petitions stand disposed of. There is no order as to costs.
Xerox certified copy be supplied to the parties, if applied for, on urgent basis.
(S.P.Talukdar, J.)