Patna High Court
Man Singh vs State Of Bihar And Ors. on 30 September, 1981
JUDGMENT S. Sarwar Ali, J.
1. In this writ the petitioner prays for quashing of Annexure-4, a notification dated 13th June, 1981 transferring the petitioner from Ranchi to Monghyr as the District Transport Officer.
2. The petitioner joined the Bihar Civil Service as Probationer Deputy Collector in 1975. While the petitioner was posted as Circle Officer, Nirsa, in the district of Dhanbad, his services were placed at the disposal of the Transport Department and he was posted as District Transport Officer, Ranchi. This post he joined on 16th February, 1979. On 6th December, 1980 by a notification, copy whereof is Annexure-A to the counter-affidavit filed on behalf of respondent No. 5, the petitioner's services were returned to the Personnel and Administrative Reforms Department. The wife of the petitioner filed a representation before the Government pointing out numerous inconveniences and difficulties which will result on account of the order dated 6th December, 1980. By order dated 23rd December, 1980, the Government stayed the order contained in Annexure-4 for six months so far as the petitioner was concerned. By the same Annexure respondent No. 5 had been posted as the District Transport Officer at Ranchi in place of the petitioner. Respondent No. 5 claims that in pursuance of the said order he joined the post on 9th December, 1980 and assumed charge on 15th December, 1980 and worked in that capacity till 23rd December, 1980. Although there was stay of Annexure-4 so far as the petitioner was concerned for a period of six months, no specific order was passed in relation to respondent No. 5. On 13th June, 1981 the impugned Annexure-4 was issued whereby the petitioner was transferred to Monghyr as District Transport Officer. This writ application was filed on 16th June, 1981 and an order of status quo was passed on 18th June, 1981. Respondent No. 5, however, claims that he joined and assumed the charge of the office of the District Transport Officer, Ranchi, on 16th June, 1981 under the orders of the Deputy Commissioner, Ranchi.
3. The order contained in Annexure-4 is assailed on the ground that the order of transfer in question is contrary to the policy and procedure laid down for transfers and posting of Government employees in Bihar under Annex-ure-5 dated 1st November, 1980. The said Annexure, which is mandatory in nature, requires that no transfer should be made without obtaining recommendation of the Establishment Committee. This admittedly has not been done in the instant case. The order of transfer is, therefore, invalid and cannot be given effect to.
4. Since the respondents have accepted that there was no consultation with the Establishment Committee before the impugned order was passed, the main questions that will have to be decided in this case are (a) whether Annexure-5 is mandatory or it is only directory; (b) whether in all cases of transfer it is necessary that recommendation of the Establishment Committee should be obtained.
5. In relation to transfer of Government servants some executive instructions of general application were issued earlier. But they, it appears, were not thought to be exhaustive. Some of the departments of the Government had also issued some executive instructions applicable to their own departments. The Government, therefore, decided to issue a comprehensive instruction dealing with both the policy as also the procedure that should be followed while making transfers of Government servants in the State of Bihar. Of course, the departments concerned could and, in fact in some cases did issue separate general policy direction restricted to their own departments in conformity with the general policy laid down. It has to be appreciated that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive to good administration. It sometimes creates vested interests. That is why we find that from the time of British Administration in India, the general policy has been to restrict period of posting for a definite period. The position, however, is different so far as class-III and class-IV posts are concerned. Even in some of the gazetted posts which are not so important transfer to far off places creates hardship. It has further to be appreciated that too frequent a transfer creates numerous problems for the Officers. It disrupts the education of the children and leads to numerous other inconveniences and problems. Taking into consideration these and what is more important, the smooth and efficient running of the administration the Government rightly decided to lay down a general policy in relation to transfers. It also decided to specify the procedure for the same. This, in my view, appears to be the background for the issue of Government notification dated 1st November, 1980, a copy whereof is Annexure-5 to the writ application. The preamble of this Annexure itself indicates that it was with a view to streamline the administration that the new policy and procedure in regard to transfer and postings of the State Government employees was being laid down.
6. The instruction is divided into two parts. Heading (A) deals with the policy, and heading (B) the procedure for transfer. It is not necessary to give the details of either. The basic concept, however, was that generally the duration of posting for any post should be three years. But in relation to specified posts it could only be two years. The other policy decision was that transfers and postings should generally be done twice in a year i.e. in May-June or November-December. This, as already indicated, was the general policy. The Annexure further stated that this general policy could be departed from "in special circumstances". The illustration of the special circumstances, as given therein, is death, illness, vacancies or "other administrative reasons". It is thus clear that in "special circumstances" the general policy as laid down need not be adhered to.
7. The circular (Annexure-5), it was contended, was mandatory. The principles and policies laid down therein had to he followed to the letter. Infraction in any respect results in the invalidity of the order. In relation to the interpretation of the circular it was contended that even in respect of transfers made in special circumstances, the procedure laid down under the heading "(b)" had to he followed. Where there was violation of the same, the order of transfer could not he said to be legal or valid.
8. On behalf of the State it was contended that the impugned Annexure was only directory in nature. Infraction of the same or orders of transfers made in contravention of the said circular were not, therefore, invalid. It was contended that the procedure as laid down under the heading 'B' was only in relation to the general transfer and not transfers made in 'special circumstances'. Lastly, it was contended that the circular has no statutory force. It was only an administrative instruction and as such compliance thereof was not enforceable through a writ.
9. I first take up the question as to the true nature of Annexure-5. Rules relating to the services can be framed in exercise of powers under Article 309 of the Constitution. There are a number of service rules which have been made, or have the force of rules made, under Article 309 of the Constitution. The question as to what should be the policy in relation to transfer of Government employees could, in my view, be surely laid down by proper service rules made under the Article aforesaid. So also the procedure. But, we find that State has not made any service-rules relating to transfer and posting of Government employees. In this situation it was open to 45 the State Government to issue executive instructions which would supplement the rules already in existence. This is well settled by the decisions of the Supreme Court in Sant Ram Sharma v. State of Rajasthan 1968-II L.L.J. 830 and Union of India v. K.P. Joseph and other cases taking the same view. It is only where the executive instructions attempt to supplant the rules that it can have no legal force. Such is not the position here. There is no conflict between Annexure-5 and any of the rules framed under Article 309 of the Constitution. The instruction, therefore, in my view, would govern the conditions of service in relation to the policy and procedure for the transfer of Government employees.
10. I now take up the consideration of the question whether Annexure-5 is mandatory or directory. The question is principally one of ascertaining the intention of framers of the executive instructions. In order to determine this one has to look to the language and scope of the instructions and the policy underlying it (Sec H.N. Rishbud v. State of Delhi ). But, as pointed out in Crawford on Statutory Construction, it is not the language of the instrument which is determinative, but it is the intent which settles the true nature of the statutory instrument. In Article 261 it is stated:
...The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it one way or the other.
The other well settled rule of construction is that statutes creating public duties are directory, whereas those conferring private rights are imperative. Dattatraya Moreshwar v. State of Bombay . The enunciation of law in the opinion of their Lordships of the Privy Council in Montreal Street Rly. Co. v. Normandin (1917) AC 170 : AIR 1917 PC 142 has been approved by the Supreme Court in State of U.P. v. Manbodhan Lal , which is to the following effect (at p.917):
When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.
11. Although at several places in Annexure-5 the words "shall" and "should" have been used, but the mere use of these words is not conclusive. As has been pointed out by Lord Salmon in Grunwick Processing v. AC & AS 1978-1 All ER 338, 367 "Prima facie the word" 'shall' suggests that it is mandatory, but that word has often been rightly construed as directory. Everything turns on the context in which it is used: the subject matter, the purpose and effect of the section in which it appears." We have, therefore, to pass from the words to a view of end and aims. It has to be appreciated that in the matter of transfers and postings no right of the officers are involved. It is undoubtedly within the exclusive domain (subject to constitutional or statutory limitations) of the Executive Government to decide from time to time as to where its Officers should be posted. The main purpose of laying down the policy is to set out rules which would help smooth running of the administration. The subsidiary purpose of laying down a general policy is to eliminate conflicting or divergent approach in different departments of the Government. It is with a view to bring order, system and despatch in the administration that the instructions have been issued. Its aim is not the conferment of any right on Government employees. True it is that frequent transfer may and does inconvenience the employees of the State. But what is more important is that it adversely affects the administrative efficiency itself. This policy also does help the employees of the Government as, by laying down the ordinary period for posting it assists them to make their plan in advance. From administrative point of view the fixation of ordinary period of posting as three years or in some cases two years, is likely to induce the officers to work with greater devotion and peace of mind. Thus viewed from the point of view of the statutory objective, I am of the opinion that the instrument in question is essentially meant to lay down policy which will have the effect of smooth and well planned running of the administration.
12. Let us examine what would be the effect of construing the instructions one way or the other. When general transfers are made, a number of officers are involved. Even otherwise chain transfers are usual. Moreover, administrative exigency may require immediate posting of an Officer, or his withdrawal from a specific station or post. If the instructions are construed as mandatory even a minor or inconsequential departure therefrom would invalidate the transfer or transfers. Thus the whole scheme of transfer would be put in jeopardy, and the very purpose of transfer in special circumstances would be set at naught, if the instructions are treated as mandatory. Such a consequence could not have been intended.
13. Over fifty years back Holmes, J. in Bain Peanut Company of Texas v. Dave Pinson (1930) 75 Law. Ed. 482, 491 said: "We must remember that the machinery of the Government would not work if it were not allowed a little play in its joints". (This has been quoted and adopted by Chandrachud, J (as he then was) in State of Jammu & Kashmir v. Triloki Nath Khosa 1974-I L.L.J. 121. These observations are equally true even now. We should not (if legally permissible) allow administrative or executive efficiency to flounder on the rock of avoidable technicality. It is well to remember that administrative and ; executive efficiency or exigency should not be too readily sacrified. But such would be the result if the instruction is given a mandatory force. State would be completely deprived of "muclvreaded play in its joints."
14. I now examine the question in the light of the second proposition as already enunciated. The general rule, as already noticed, is that where a provision relates to public duty, it is to be construed as directory, if to hold otherwise would lead to serious general inconvenience. I have already discussed that serious general inconvenience would be the result if the instructions are held to be mandatory in character. Taking all these into consideration. I am of the view that Annexure-5 is directory and not mandatory in nature. The view I have expressed is fully supported by the enunciation of law as given in a Full Bench of this Court in Shiveshwar Pd. Sinha v. District Magistrate of Monghyr .
15. The holding that the executive instructions are directory does not mean that they can be ignored with impunity. Even directory provisions are not meant to be violated. It was held in Pratap Singh v. Shri Krishna Gupta , "Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and no prejudice ensues; and when legislature does not itself state which is which Judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, on a nonsense lines. The Supreme Court adopted dictum of the Privy Council in Punjab Co-operative Bank Ltd., Amritsar v. Income-tax Officer, Lahore AIR 1940 PC 230 (235) to the following effect: "It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.
16. The final position, therefore, that emerges, in my opinion is:
(a) The executive instructions contained in Annexure-5 are directory.
(b) Although directory they are nevertheless to be followed.
(c) Where an order of transfer is made without scrupulously following the procedure laid down therein, and there is substantial compliance of the instructions, it cannot be held that the order is invalid or vitiated.
(d) A total failure to comply with a significant part of the requirement of the instructions cannot be regarded as substantial compliance with the total requirement.
16(a). 1 now proceed to consider the second contention of the learned Counsel for the petitioner. He contended that the procedure under the Heading (B) is applicable to all transfers whether they are general transfers or transfers of exceptional nature on the ground of existence of special circumstances. In the instant case, admittedly the Establishment Committee not having been consulted as required in paras 2 & 3 of the procedure laid down, the order of transfer is invalid. The reference to Establishment Committee is a 'must' in all transfers including the transfer in question. In my view, it is not possible to accept this contention. Under the Heading (A) it has been laid down as follows:
(1) Transfer and postings will generally be done twice, i.e. in May-June, and November-December of each year.
Provided that in special circumstances, e.g. death, illness, vacancy or other administrative reasons transfer and posting could be made at any other time subject to the following conditions:
(i) in respect of officers whose transfer/posting is done with the approval of Minister or by Council of Ministers, specific prior approval of the Chief Minister has to be obtained:
and
(ii) in respect of such officers and government employees whose transfer and posting is done by subordinate officers under delegated powers of transfer, specific prior approval of the immediate superior officers is obtained.
17. It is stated that transfers made in special circumstances are subject to the conditions as laid down therein. It is a special provision in relation to such transfers. It requires the approval of the specified authorities. It is a well known rule of construction that where a specific provision dealing with a particular situation is made it prevails over the general provision. The whole procedure for transfer in special circumstances is, in my opinion, laid down in the said paragraph. Had the intention been to apply the general procedure as mentioned under heading (B) there was no necessity of laying down "conditions" under this rule. In this view of the matter there does not appear to be any infirmity in the issuance of annexure-4, without obtaining the recommendation of the Establishment Committee.
18. Before closing the discussion on this aspect of this case, I may, by way of an illustration, indicate as to what may not constitute substantial compliance of the instructions. In relation to transfers in special circumstance, if the approval of Chief Minister on immediate superior officer, as the case may he, is not obtained, this would not constitute substantial compliance of the requirement of the instructions. Similarly, where the Establishment Committee is completely ignored in the matter of general transfer that too would not amount to substantial compliance. It may, however, happen that the exigency of the situation requires immediate action. For instance, the Chief Minister may be out of station. In such a situation if the approval is obtained even afterwards that may cure the initial infirmity. Such must also be the position in relation to the Establishment Committee. To give another illustration it may so happen that when the Establishment Committee meet one of the officers may be absent. The decision may not thus be taken by the entire body of the Committee. But the mere absence of one member would not mean that there is no substantial compliance. If, however, instead of four members only one member is available that, in my opinion, would not constitute substantial compliance.
19. During the course of argument learned Counsel for the petitioner contended that the transfer in question was not a transfer in special circumstances but a general transfer, the order of transfer having been passed in the month of June. It was further contended that there were no administrative grounds or special circumstances justifying the transfer. The relevant facts leading to the passing of the order of transfer have already been stated. The order contained in Annexure-4 was not an order of transfer, but an order returning the service of the petitioner to the personnel and Administrative Reforms Department. This order was stayed for six months. Had it not been followed by the order contained in Annexure-4, the petitioner would have to go back to the parent department on expiry of six months. The effect of the issue of Annexure-4 is, therefore, abrogation of the order under Annexure- 4. It has the effect of retaining the petitioner in the Transport Department. It has also the effect of transferring him from Ranchi to Monghyr. In this situation the impugned order could not be said to be an order of transfer made in ordinary circumstances. It could not be treated to be a general order of transfer as envisaged in the opening lines of para 1 of Annexure-5. In the circumstances it was not necessary to obtain the recommendation of the Establishment Committee before passing the order for transfer.
20. The contention that there was no administrative ground for transfer cannot be entertained. Firstly such an averment has not been made in the petition itself. It cannot be permitted to be raised for the first time in the course of argument Moreover, I am definitely of the view that a bald assertion that there were no special circumstances or administrative grounds for transfer would not be enough. The assertion must be supported by materials or circumstances which would satisfy the Court that the primary onus which rests on the petitioner has been discharged. Similar would be the position with respect to a bald assertion like the non-consultation with the Establishment Committee or the failure to obtain the concurrence of the Chief Minister or Head of the Department (wherever necessary). The presumption is that all official acts are regularly performed. When a notification fulfilling the requirement of law is issued, the Court would be entitled to presume that the necessary legal requirements have been fulfilled before the issue of the notification. Those, who assert to the contrary, must satisfy, prima facie, on the basis of materials adduced or even on the basis of circumstances that there has been violation of the policy or procedure in relation to the impugned order. Once the initial onus has been discharged by the petitioner it would be for the State to justify its action and satisfy the Court that the impugned order does not suffer from any legal vice.
21. For the reasons already discussed, I hold that the impugned Annexure-4 has been legally and validly passed. This application is accordingly dismissed, but in the circumstances without costs.