Gauhati High Court
C. Shashi Thonger vs State Of Nagaland And Ors. on 19 February, 2003
Equivalent citations: (2003)3GLR512
Author: B. Lamare
Bench: B. Lamare
JUDGMENT B. Lamare, J.
1. Heard Mr. A. Zhimoni, learned counsel for the petitioner, Mrs. Y. Longkumar, learned Government Advocate for the respondents 1, 2, 3 and 4, and Mr. B.N. Sarma, learned counsel for the respondents 5, 6 and 7.
2. The case in brief is that, by an order No. POL-l/Estt/472/99 dated 23rd August, 1999, three posts of the rank of Dy. S.P. from the establishment of Inspector General of Police (Vigilance) were transferred to the establishment of Central Workshop, DEF Kohima and PHQ. The posts were converted into technical posts in the technical wing of the Motor Transport Wing of the Police department. Consequent to the said transfer of the three posts to the Motor Transport Wing (MTW), the respondents No. 5, 6 and 7 who were Inspectors in the MTW were Inspectors in the MTW were promoted as Dy. S.P. in the MTW.
3. The petitioner was promoted as Inspector in the Police department by an order dated 10.11.1993. The petitioner belonged to the Police cadre of the Police department which consists of an Armed branch. In the seniority list of the Inspectors published in the Police department on 23.2.2000, the name of the petitioner as well as the name of the respondents did not appear. The reason being that there are many other senior officers who were senior to them. The respondents 5, 6 and 7 being ex-cadre officers, their names could not be shown in the Seniority list as they are not governed by the Nagaland Police Service (Class -1 and Class - II Rules, 1977).
4. Mr. Zhimomi, learned counsel for the petitioner submitted that the petitioner belongs to the cadre of the Nagaland Police department and having completed 7 years of service as required under the Rules deserves to be promoted to the said post in the MTW. It is also submitted that the transfer of the three posts to the MTW and promotion of the respondents 5, 6 and 7 to the said three posts is totally illegal to deprive the petitioner and other officers who belong to the cadre of the Police department. The respondents 5, 6 and 7 who were ex-cadre officers could not be promoted to the said three posts which are meant for the cadre officers of the department.
5. It is also submitted that the promotions of the respondents 5, 6 and 7 were made secretly and the petitioner is trying his best to obtain their promotion orders, but the relevant papers are not made available to him as evidently the file was found missing. Therefore, the petitioner could not approach this Court immediately although the promotions of respondents were made as far back as on 5.10.1999. It is also contended that the respondent No. 4, the Director General of Police, Nagaland in his letter dated 1.11.1999 has requested the Government to review the transfer of the said three posts to the MTW of the Police department.
6. Mrs. Y. Longkumar, learned Government Advocate submitted that it is for the Government to decide regarding the transfer of the post, and this action of the Government cannot be questioned by the present petitioner. It is the prerogative of the Government to decide as to the requirements of posts in the department or in the MTW. It is also contended that the transfer of the said three posts was made as the said three posts were lying idle in the Vigilance cell of PHQ, and due to shortage of posts in the MTW, transferring the posts from Vigilance cell to MTW was necessitated. This was done taking into consideration the increase volume of work in the MTW and due to the increase of numbers of various types of vehicles provided to the Police force, the work load has increased in the MTW for the purpose of maintaining the said vehicles for the entire Police department.
7. Mr. B.N. Sarma, learned counsel for the respondents 5, 6 and 7 at the outset submitted that the respondents 5, 6 and 7 are not governed by the Nagaland Police Service Rules, 1977, and the officers in the MTW are not cadre officers under the Rules. The learned counsel also contended that the petitioner is not qualified to be promoted in the MTW as he did not belong to the cadre of MTW. The question for considering his name for promotion, therefore, does not arises, contends the learned counsel. This promotion in the MTW is done by this wing only, and that the petitioner has no right to challenge this promotion of the private respondents.
8. On perusal of the records it shows that the order dated 23.8.1999 transferring the three posts of Dy. S.P. from the establishment of Inspector General of Police, Vigilance cell to the establishment of the Central Workshop, Kohima and converting them into technical posts for utilising the posts in the MTW was done after assessing the volume of work in the MTW. On the basis of the transfer of the said three posts the private respondents were given officiating promotion vide order dated 5.10.1999. Both the orders were issued by the Government in the Home Department.
9. The petitioner was promoted to the rank of Inspector by order dated 10.11.1993. By order dated 23.2.2000 from the Inspector General of Police (PHQ) to the Home Commissioner, the list of 35 Inspectors were forwarded to the Government for promotion to the rank of Assistant Commandant / Dy. S.P. in the various units against 22 vacancies. The name of the petitioner does not appear in the said list. It is admitted fact that the petitioner is junior to all those 35 Inspectors mentioned in the list.
10. From the Affidavit in opposition filed by the State respondents in para 5, it is stated that the officers working in the MTW are members of their own cadre, and the petitioner who does not belong to the MTW is not entitled to be promoted in the MTW. In para 6 of the Affidavit, it is also stated that the three posts transferred from the Vigilance cell of PHQ and converted into technical posts in the MTW was done due to exigencies of service and requirements by the administration in the MTW. It is also stated that the three posts of the Dy. S.P. were lying idle in the Vigilance cell and that the said three posts were required to be transferred to the establishment of MTW as no new posts could be created due to ban for creation of posts by the State Government. Therefore, to avoid financial implications, the posts were transferred from the Vigilance cell to the Motor Transport Workshop.
11. In para 13 of the Affidavit in opposition, full explanation was given regarding necessity for transfer of the posts. The statement is as follows :-
"13. That with regard to the statements made in para 13 of the petitioner I say that it is false that there was any conversion of the 3 posts of Dy. S. P. (cadre) to 3 posts of Dy. S. P. (ex-cadre) but in fact the 3 temporary posts in question created earlier for the Vigilance cell were transferred from the NFS cadre governed by the Rules to the MT cadre which is a technical cadre and there is no infirmity in the decision making process as it was the need of the hour that the MT cadre should be strengthened due to increase in the responsibilities and duties which resulted from the increase in the volume of work. It is also important that the decision to transfer the three posts from the non-technical cadre to the technical cadre was taken by the Government on the basis of the recommendation of the Police Headquarters due to the following amongst other reasons :-
(a) There was increase in the volume of work in the MT establishments due to increase in the number of vehicles of various types along with the responsibilities of police modernisation ;
(b) The posts in question were lying idle without being filled up as the Vigilance Cell was not functioning;
(c) The functions of the Vigilance Cell was being discharged by the Vigilance Commission after a police station was set up there ;
(d) There was a ban on post creation and so creation of new post was difficult;
(e) The MT personnel were suffering for long as there was no post creation for the MT establishments ;
(f) The command and control system in the MT establishments was affected due to want of higher officers to supervise the subordinate staff although there was an increase in the number of such staff; and
(g) Up-gradation of the posts would not result in increase of personnel in the MT establishments instead there would be a gap in the hierarchy of posts as the Sub-Inspector (MT) will have no scope for promotion if the posts of Inspector (MT) are upgraded and there would also be financial implications in case of up-gradation of the posts of Inspectors whereas there will no such implications in case of transfer of the posts."
12. With regard to the letter dated 1.11.1999 from the Director General of Police, Nagaland to the Home Commissioner which the counsel for the petitioner relied that there was objection from the DGP regarding the transfer of the said three posts and the promotion of the respondents 5, 6 and 7, the explanation was also given in the Affidavit in opposition which is as follows :-
"In this connection I further say that the letter dated 1.11.1999 was duly considered by the Government. It is also seen by the Government that the respondent No. 4 had forbidden the respondents Nos. 5-7 to wear their rank as Dy. S.P. by an order dated 21.10.1999 on the consideration that their promotion was defective. However, the Government on examination of the matter found the following :-
(i) the Government decision was based on the proposal of the office of the Director General of Police, Nagaland to the effect that the 3 posts in the Vigilance Cell should be converted and utilised for the purpose of having 3 Dy. S.P. (MT) post at the PHQ, the Central Workshop and the District Executive Force, Kohima.
(ii) there was also in the proposal from the office of the Director General of Police, Nagaland enough justification as to why the there MT establishments should have Dy. S.Ps (MT);
(iii) there was also the justification in the proposal from the office of the Director General, Nagaland for giving promotion to the incumbent ABIs (MT) who possessed the necessary technical qualifications;
(iv) the proposal was self contained;
(v) the Notification issued by the Director General of Police, Nagaland asking the respondents Nos. 5-7 not to wear their rank on the ground of their promotion being defective was violative of Government order ;
(vi) the A.B.Is who were promoted to the rank of Dy. S. P. (Respondent Nos. 5-7) could not be prevented from wearing their rank of Dy. S.P. as the Notification issued by the Director General of Police, Nagaland could not supersede the Government Notification ; and
(vii) the Director General of Police, Nagaland was to be asked to withdraw nis Notification dated 21.10.1999."
13. In view of the above position, the question now to be decided therefore is as to whether the transfer of the said three posts from the Vigilance cell to the MTW in the same Police department is just and proper, and whether the Government is competent to make the transfer.
14. A perusal of the records shows that the transfer of the said three posts from the establishment of the Inspector General of Police (Vigilance) to the establishment of the Central Workshop and PHQ was done on the ground that the work in the Vigilance Cell has been reduced after the work was entrusted to the Vigilance Commission. There was also a ban on creation of new post by the State Government. The works in the MTW has been increasing due to the increase of vehicles for manning the requirements of the entire Police force throughout the State. By transferring the three posts from the Vigilance Cell there was also no financial implications or financial involvement to the State. The above facts were also supported by the Affidavit in opposition of the respondents in which I find there is sufficient force in the contention of the respondents.
15. The next question is whether the transfer of the three posts can be interferred by this Court. The creation, abolition and transfer of posts in the department or the transfer of post from one wing to another wind of the same department is within the domain and wisdom of the administrative authorities depending on the nature and volume of work. Such creation of post, abolition of post or transfer of post depends upon the administrative requirements and exigencies of services in the department or between the departments, for which action falls within the prerogative of the administrative authority. The Court cannot sit as administrative authority and exercise its jurisdiction in the matters of creation, abolition or transfer of posts from one department to another department or from one wing to another of the same department as the matter can be decided only by the administrative authority according to its wisdom in the administration of the affairs of the State, unless such action is found to be arbitrary, capricious and mala fide and against the interest of public service. Therefore, in the instant case the transfer of the said three posts was made by the Government according to the requirements and demands of work in the MTW after proper consideration of the matter.
16. The next point for consideration is, whether any right of the petitioner has been infringed by the transfer of the said three posts. As already discussed, the power for creation, abolition or transfer of post depends on the administrative requirements and exigencies of works in each department or any wings of the department, and that the power to do so rest with the administrative machinery of the State Government. Once the post is transferred to another wing, the promotion to the transferred post will have to be done in accordance with the rules and law for promotion in the said wing of the department. In the instant case, the MTW is purely a technical establishment which has to be manned by persons having technical knowledge about vehicles. The post cannot be manned by the persons having no such qualifications. Therefore, the mode for promotion to the post of Dy. S.P. in the MTW has to be from the persons who are qualified from the MTW. The petitioner, therefore, has no right to claim for promotion in the technical wing in which he does not have requisite qualification. Needless to say that the petitioner cannot claim promotion as a matter of right. Even considering the case of the petitioner that, besides the petitioner there are other Inspectors who are senior to the respondents 5s, 6 and 7 as stated in para 10 of the writ petition, but no such senior Inspectors approach this Court, which shows that they quite aware of the facts that after the posts were transferred to the technical wing of the department the promotion to the posts will be made from the cadre of that wing only. Therefore, the only conclusion that can be arrived at is that, no right of the petitioner has been affected by this transfer of posts as he was not superseded in any way by the persons of his own cadre. It is also not the case of the petitioner that he was superseded by other persons of his own cadres in violation of the Nagaland Police Service (Class-I and Class-II) Rules, 1977.
17. For the reasons aforesaid, I am of the view that there is no merit in this petition and accordingly it is dismissed, However, considering the facts and circumstances of the case, there will be no order as to costs.