Jharkhand High Court
Dr. Kashi Nath Ram vs State Of Jharkhand And Ors. on 27 February, 2002
Equivalent citations: 2002 LAB. I. C. 1560, 2002 AIR - JHAR. H. C. R. 331, (2002) 5 SERVLR 771, (2002) 3 JCR 295 (JHA)
Author: Tapen Sen
Bench: Tapen Sen
ORDER Tapen Sen, J.
1. Being aggrieved by a Notification dated 3.11.2000 (Annexure-3) being Notification No. 1934, transferring the petitioner and posting him from the post of Regional Director, Animal Husbandry, North Chotanagpur, Hazaribagh to the post of Project Officer, Large Sheep Breeding Farm at Chatra without taking into consideration that the post of Project Officer is lower in status as well as in scale, the petitioner has filed this writ application. According to the petitioner, his substantial post is that of the Regional Director in the scale of Rs. 14,300-18,300/- whereas the post of Project Officer, Large Sheep Breeding Farm carries a scale of Rs. 6,500/- to 10,500/-.
2. The petitioner has also challenged the subsequent Notification No. 1935 contained in the same Annexure-3, whereby and whereunder, one Dr. Brajesh Kumar Prasad Sinha (Respondent No. 4), a Class II Officer presently working as Regional Director, Animal Husbandry, Santhal Par-gana Division, Dumka and also holding the charge of Deputy Director (Planning), Animal Husbandry, Ranchi has been directed to take the charge of the post of Regional Director, North Chotanagpur Division, Hazaribagh being held by the petitioner since 1999.
3. The petitioner has also made a prayer for issuance of writ of mandamus commanding upon the respondents to allow the petitioner to continue as Regional Director, North Chotanagpur Division, Hazaribagh in accordance with the rules of transfer and posting. According to the petitioner, there is no administrative exigency for transferring him and the action to transfer him on a lower post has been resorted to as a measure of revenge because the petitioner had preferred a writ petition, WP(S) No. 4111/2001 wherein he had made a prayer for setting aside the advertisement published by the authorities for filling up the post of Director Animal Husbandry and this court by order dated 5.9.2001 had passed an interim order in that case restraining the respondents to offer any appointment to any one without leave of the Court.
4. The petitioner has stated that he was transferred from Patna to Hazaribagh by a Notification as contained at Annexure-1 on 30.12.1998 on the post of Regional Director, Animal Husbandry, North Chotanagpur Range by the Government of Bihar. Accordingly, the petitioner joined on 6.1.1999 and has been continuing on the same post at Hazaribagh since then.
5. The petitioner has stated in the meantime, respondents-authorities had taken a decision to fill up the post of Director, Animal Husbandry through open advertisement dated 27.8.2001 which became a subject matter of challenge before this Court by the petitioner in WP(S) No. 4111/2001 and by order dated 5.9.2001, this Court passed an interim order restraining the respondents from issuing any offer/order of appointment without leave of the Court.
6. With malafide intention, the petitioner states that the respondents issued the impugned Notification No. 1934 and 1935 posting the petitioner on the post of a Project Officer, Large Sheep Breeding Farm at Chatra and directing the respondent No. 5 to take charge of the post of Regional Director held by the petitioner. According to petitioner, the issue behind the curtain for passing the impugned Notification is because the petitioner by filing WP(S) No. 4111/2001, frustrated the vested interest of the respondents-authorities for filling up the post of Director, Animal Husbandry, by people of their own choice.
7. The petitioner has stated at para 11 that he was promoted on the post of Regional Director, Animal Husbandry long time ago and that the new scale attached to the said post is Rs. 14,300/- to Rs. 18,300/-. He has also stated that the Regional Director is the Controlling Officer of persons working on the post of Project Officer and that the post on which the petitioner has been transferred at Chatra is under the administrative control of the Regional Director, North Chotanagpur at Hazaribagh. In other words, the petitioner states that if he has to work as Project Officer, at Chatra he would have to report to the respondent No. 5 who holds a substantial post of Project Officer but who has been directed to take charge from the petitioner on the post of Regional Director. According to him, this can not be because he himself holds a substantive post on the post of Regional Director having been promoted in that capacity earlier.
8. The petitioner has also stated that the post of Project Officer, Chatra had already been filled up by Notification dated 29.6.2001 (Annexure-4) by one Dr. Md. Halim and therefore, the post of Project Officer is not vacant and without canceling the posting of Dr. Md. Halim, the respondents could not have issued the impugned Notification.
9. The petitioner has further stated that the Commissioner, North Chotanagpur also acted in haste and by Annexure-6 he directed the respondent No. 4 to assume charge unilaterally. According to petitioner, the Commissioner had no power to issue such a letter and he should have referred the matter to the Government.
10. The petitioner has also stated that he has filed several representations but no action has been taken. These representations are Annexures-7 and 8.
11. The respondent Nos. 1 to 3 have filed a counter affidavit in the instant case, where they have made the following statements :
(a) That the petitioner was never promoted in the pay scale of Rs. 14,300-18.300/-;
(b) That the present pay scale of the petitioner is Rs. 6,500-10,500/-;
(c) That Annexure-1 upon which the petitioner relies contains the names of seven persons, including the petitioner who have been transferred and posted on the post of Regional Director but it is a merely a Notification of transfer in their present pay scale and all the Regional Directors mentioned therein are getting the pay scale of Rs. 6,500-10,500/-;
(d) That the post of Project Officer, Chatra has been categorised under the category of Sr. Selection Grade;
(e) That the petitioner has not been posted on a post lower in status;
(f) That the post of Project Officer at Chatra is vacant;
(g) That in the year 1997 while serving in the State of Bihar the petitioner had been put under suspension by Memo No. 114 dated 1.2.1997 for unauthorised absence; making illegal appointments; insubordination, misbehaviour with Sr. Officials, forgery by furnishing false information to the Treasury and kidnapping for which a criminal case had been initiated against him by the Gardanibag P.S. under various sections of the IPC including Sections 467, 420, 363 and 341;
(h) That he was in the habit of putting hindrances in the efforts of the Commissioner, Hazaribagh and seeing his irresponsible behaviour the Commissioner wrote a letter on 1.6.2001 informing the Government of Jharkhand that the petitioner was guilty of insubordination and that he was not extending his co-operation in relation to the enquiry which he was conducting against him and, therefore, he should be put under suspension and his Head Quarter should be fixed somewhere else and in the alternative he should be transferred.
12. The letter of the Commissioner is marked Annexure-A, appended to the counter affidavit.
(i) That there were several other complaints of irregularities against the petitioner as a result of which on 5.7.2001 the Secretary of the Department of the Animal Husbandry, Government of Bihar by letter dated 5.7.2001 (Annexure-B) requested the Secretary, Animal Husbandry, Government of Jharkhand to submit a report as the matter had been referred to Central Vigilence Commission, C.B.I.
(ii) That thereafter the Department of Animal Husbandry, Government of Jharkhand referred the matter for enquiry to the Vigilance Department (Cabinet Secretariat) vide letter dated 28.4.2001;
(iii) That the petitioner was also found to misuse his official post by misquoting discussions with Sr. departmental officials and intimidating his subordinates on more than one occasion. He has put the State Government to a wrongful loss to the tune of Rs. 3 lacs, in the matter relating to payment of arrears to one Balram Singh.
13. According to respondents, therefore, as stated at para 10 by the respondents the petitioner was a totally untrustworthy officer and could not be entrusted with the important and responsible job of Regional Director, Animal Husbandry, of a Division and, therefore, he was posted on a post where there were lesser chances of "mischief mongering" by him.
14. The respondents have also stated that the post of Regional Director, Animal Husbandry, happens to be a Super Time Scale whereas the post of Project Officer is that of a Sr. Selection Grade. According to them, the petitioner who is a Veterinary graduate has not yet been placed in the Sr. Selection Grade. The respondents have also denied at para 13 and have stated that the petitioner has not yet been promoted in the pay scale of Rs. 14,300-18.300/-. According to them, every member of the State Veterinary Service is functioning in the scale of Rs. 6,500-10,500/- and that the post of Project Officer at Chatra also carries the same scale of pay.
15. At para 14 the respondents have stated that the respondent No. 4 is a very Sr. officer in this department and senior most M.Sc. decree holder and, therefore, he was directed to join on the post of Regional Director. The respondents have also denied any malafide action against the petitioner for his having filed WP(S) No. 4111/2001. According to them, the petitioner does not posses requisite qualification for the post of Director, Animal Husbandry and he does not have any claim for that post.
16. In this case counter affidavit has also been filed by the respondent No. 4 who has stated that he was holding the post of Regional Director, Santhal Pargana, Dumka-cum-Deputy Director (Planning) and has been given the additional charge of Regional Director, Animal Husbandry, North Chotanagpur Division, Hazaribagh till further orders. However, he has mostly replied to the paragraphs that concern himself but he, at para 13 has also stated that neither he nor the petitioner has been promoted in the Super Time Selection Grade (2-1/2%) which is the scale attached to the post of a Regional Director, Animal Husbandry. This statement he has made at para 13 of his counter affidavit. He has also stated at para 17 that he has assumed charge on the post of Regional Director, Hazaribagh and performing the duties of the said post including passing of necessary pending bills, releasing of salary but after the order of this Court passed on 23.11.2001 he has not discharged the duties of the post.
17. The petitioner in his reply to the counter affidavit in relation to the statements relating to his suspension and criminal case etc. has stated at para 5 (internal pages 8 and 9) that the criminal case has already been dropped by a competent court on account of final form submitted by the Enquiry Officer and so far as suspension order against the petitioner was passed the same has also been revoked/quashed including the entire departmental proceeding. He has also stated that criminal case was of Patna and was not related to any incident of Hazaribagh.
18. In the counter affidavit the respondent Nos. 1 to 3 have made various allegations against the petitioner specially at para 11 at page 55. They have also stated about the letters being sent by the Commissioner to the Government on 1.6.2001 either to suspend the petitioner or alternatively to transfer him.
19. At para 10, page 62 they have said that the petitioner was a totally untrustworthy officer and could not be entrusted with important and responsible job of Regional Director, Animal Husbandry of a Division. Thereafter they have said that, therefore, he was transferred due to administrative reason on a post where there were lesser chances of "mischief mongering" by the petitioner.
20. These statements made by a responsible Government Officer like a Joint Secretary, Department of Animal Husbandry was not expected. Such sweeping remarks without there being any finding in a departmental proceeding could be extremely defamatory and detrimental to an employee specially when the employee has categorically stated that criminal case was dropped by a competent court and suspension order was also revoked/quashed including the departmental proceeding. If there are other instances of treating the petitioner to be untrustworthy or that he is a "mischief mongering" as alleged by the deponent at para 10 of page 62 of the counter affidavit then it was required in law that the respondents should have acted strictly in accordance with law by taking departmental action but certainly not by way of transferring the petitioner as a measure of punishment. This Court therefore feels inclined to quash the order of transfer only on the ground that from the counter affidavit it is absolutely clear that punitive reasons have been added/supplemented. In this context a judgment of the Hon'ble Supreme Court of India in the case of Mahinder Singh Gill and others v. Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851 is worth looking into. The Hon'ble Apex Court has held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and can not be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional ground later brought out.
21. This court, therefore, takes a very strong view against the respondents for having used wild and defamatory language against the petitioner by referring him to as a "mischief monger" at para 10 (running page 62) of their counter affidavit. Such statements should not have been resorted to without specific findings arrived at in appropriate proceedings initiated and in accordance with law.
22. Another important aspect which has to be taken into consideration is that at paragraphs 9, 14, 15 and 21 of the counter affidavit the respondents have repeatedly stated that the petitioner was never promoted in the pay scale of Rs. 14,300-18,300/- and that he was not eligible to be promoted on the said post. In reply, the petitioner at para 4 has stated which reads as follows :
"That with regard to the statements made in para 9 of the counter affidavit under reply, it is disputed and therefore denied. It is stated that the petitioner alongwith several other persons were promoted in senior selection grade in Super Time scale (old/unrevised scale) of Rs. 3,700-5,000/- vide Government. Resolution as contained in Memo No. 2709 dated 21.5.2001 and the said promotion was given to the petitioner with effect from 9.5.1986. The said super time pay scale of Rs. 3,700-5,000/- was further revised by the sixth pay revision Committee which was adopted by the Finance Department vide its Resolution No. 660 (F/2) dated 8th February, 1999 in the present scale of Rs. 12,000-16,500/- although the pay scale of the petitioner should have been revised in the scale of 14,300-18,300/- in the light of the decision taken by the then State of Bihar vide Notification No. 9283 dated 22nd of August, 1978 by which it has been decided that the post of Joint Director shall be made equivalent to that of the Director. The State Government by the aforesaid Notification has brought/introduced various posts in the Animal Husbandry Department into one scale which also includes the post of Joint Director and therefore, the petitioner in the light of the said Notification, is entitled for the revised pay scale which was given in the scale of Director i.e. in the scale of Rs. 14,300-18,300/- and the said matter is pending before the Government for final decision and therefore, in light of the aforesaid notification, the petitioner has made his claim in the writ petition that he is in the pay scale of Rs. 14,300-18,300/-."
That statements made by the writ petitioner in the manner stated above at para 4 of his reply has not been countered by the State through any rejoinder/reply.
23. This apart, the petitioner in his reply to the counter affidavit has stated that the authorities vide Notification dated 20.4.1998 had issued a final seniority list of Class I Officers in the Animal Husbandry Department in which the name of the petitioner finds mentioned at SI. No. 154. He has relied upon Annexure-12 in support of the aforesaid contention. According to him, Annexure-12 is a list of Class I Officers which contains his name but the name of the respondent No. 4 is not included therein. He further states that so far as Class II Officers are concerned a special seniority list was published on 20.12.1991 vide Annexure-13 and which contains the name of the respondent No. 4 at SI. No. 281. In support of this he relies upon Annexure-13. According to the petitioner, therefore, he is a Class I Officer and that the post of Regional Director is also a Class I post and therefore, it can be filled up only by a person of Class I category and not by a person working in Class II category like that of the respondent No. 4.
24. There appears something really strange on the part of the respondents in having issued the impugned Notification. What the court fails to understand is why are the respondents trying to defend their actions when apparently from Annexures-12 and 13 which are final seniority lists the name of the petitioner has been placed at Class I category whereas the name of the respondent No. 4 has been placed in the Class II category. From Annexure-12 it is apparent that the petitioner entered into Class I category on 9.5.1981 whereas respondent No. 4 entered into Class II category on 11.7.1980. This court also does not understand as to why the respondents opted to come out so heavily against the petitioner using extremely harsh and vituperative language against him when the petitioner has stated that the criminal case was dropped and departmental proceeding/ suspension order was also quashed and even the matter relating to Brajesh Kumar Mishra ended in an order dated 30.3.2001 passed in a contempt case M.J.C. No. 703/2000 with a specific direction to determine the claim of Balram Singh relating to salary for the period of suspension. The matter of Balram Singh has also been highlighted by the respondents. In their counter affidavit at para 8 appearing at page 60.
25. In view of what has been stated above, this Court has no option but to quash the impugned order of transfer. After giving narration of various allegations against the petitioner, these respondents have stated at para (iv) at page 58 that the Divisional Commissioner, North Chotanagpur Division, Hazaribagh vide letter dated 1.6.2001 as contained at Annexure-A had made a recommendation that the petitioner should either be suspended or should be transferred to any other place. Finally, at para 10, while making allegations, the respondents have said that "hence he was posted due to administrative reasons, at a post on which there was lesser chance of mischief mongering and consequent damage to Government Interest by the action". The transfer, therefore, appears to have been resorted to as a measure of punishment.
26. In view of the reasonings given above, the impugned order is quashed and set aside. The matter is, therefore, remanded to the respondents No. 2 (Secretary, Department of Animal Husbandry and Fisheries, Government of Jharkhand, Ranchi) to take into consideration the entire facts and circumstances and deal with the representations said to have been filed by the petitioner strictly in accordance with law. It goes without saying that the respondent No. 2 shall pass a reasoned order in accordance with law within a period of two weeks from the date of receipt/production of copy of this order. The respondent No. 2 shall also give all adequate and reasonable opportunity of hearing to the petitioner to present his case. It will be open for the Government to pass a fresh order, in accordance with law. Matter stands disposed off.