Sikkim High Court
H.B.Rai vs Sikkim State on 29 July, 2013
Bench: Chief Justice, S.P. Wangdi
1
WP (C) No. 03/2012
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extra-ordinary Jurisdiction)
DATED : 29.07.2013
CORAM
HON'BLE THE CHIEF JUSTICE
MR. JUSTICE PIUS C KURIAKOSE
HON'BLE MR. JUSTICE S.P. WANGDI, JUDGE
Writ Petition (C) No. 03 of 2012
Shri H.B. Rai,
Special Commissioner,
Commercial Taxes Division,
Finance, Revenue & Expenditure Deptt.,
Government of Sikkim,
Gangtok, East Sikkim.
...Petitioner
Versus
1. The State of Sikkim
represented by and through
the Secretary,
Department of Personnel,
Administrative Reforms & Training,
Government of Sikkim,
Gangtok, East Sikkim.
2. The Secretary,
Finance, Revenue and
Expenditure Department,
Government of Sikkim,
Gangtok, East Sikkim.
2
WP (C) No. 03/2012
3. Sikkim Manipal University,
Represented by and through its
Vice Chancellor, having its
Address at Mazitar, Rangpo,
East Sikkim.
... Respondents
For the Petitioner : M/s. A. Moulik, Sr. Advocate with
K.D. Bhutia, B. K. Gupta and Ranjit
Prasad, Advocates.
For the State-Respondents : M/s J.B. Pradhan, Addl. Advocate
General, Karma Thinlay Namgyal,
Sr. Government Advocate and S.K.
Chettri, Asstt. Government
Advocate.
JUDGMENT
Pius, CJ.
This writ petition under Article 226 of the Constitution of India is filed by the petitioner Mr. H.B. Rai on 16.01.2012 arraying the State of Sikkim and the Secretary, Finance, Revenue and Expenditure Department, Government of Sikkim as respondents No. 1 and 2. The reliefs claimed in this writ petition as instituted originally are, inter alia, quashment of Annexure P-1 Order dated 28.11.2011 served on the petitioner and an order of stay/injunction restraining the respondents from giving effect to Annexure P-1, Transfer Order. According to the petitioner, he was inducted into the State Revenue Service while serving in the Civil Service of the 3 WP (C) No. 03/2012 respondent-State as an Additional Commissioner in the year 2007 and subsequently, he was promoted in the year 2009 to the rank of Special Commissioner of Commercial Taxes Division, Finance, Revenue and Expenditure Department, Government of Sikkim and has been holding the said post till he was served with Annexure P-1 Order. According to him, the post of Special Commissioner held by him is equivalent to the post of Special Secretary in State Civil Service and the post of Commissioner is the highest post in the Revenue Service of the State and the post held by him, i.e. the Special Commissioner is the next grade below the Commissioner, in Revenue Service. Petitioner claims that since his induction into State Revenue Service due to his hard work, dedication and performance the collection of revenue in the Commercial Tax Division, Finance, Revenue and Expenditure Department (hereinafter referred to as 'FRED') all along crossed the target for collection of revenue. In this context he has given the statistics relating to the four Financial Years he served in the Revenue Service. According to the petitioner, this regular increase in the matter of revenue collection during the past four years has been due to his efficiency in the matter of discharging his duties. He also claimed that his official career in Revenue Service has been unblemished and he goes to the extent of claiming himself an 4 WP (C) No. 03/2012 efficient officer in the department of FRED in Commercial Tax Division. He points out that presently there is acute shortage of officers in Commercial Tax Division (FRED) due to transfer and retirement of five officers in the rank of Joint Commissioner and Deputy Commissioner during past few years. According to him the increase in the revenue collection notwithstanding the dearth of officers in the Department has been the result of excessive burden he has taken upon his shoulders. His complaint is that notwithstanding that, Annexure P-1 Order was slapped on him by the first respondent on 28.11.2011. He points out that under Annexure P-1 Order, his name is mentioned at Sl. No. 4 amongst the 15 officers mentioned therein and he is transferred and posted as Registrar, Sikkim Manipal University on deputation. The petitioner aggrieved by Annexure P-1 order, challenges Annexure P-1 on various reasons such as: -
(i) The petitioner's employment is governed by Sikkim Revenue Service Rules which does not contain any provision for transfer on deputation. According to the petitioner, in the absence of any rule in the Revenue Service for transfer of a cadre member, Rule 25 provides that rules applicable for transfer of officers of equivalent status prevalent in other departments shall have to be followed.5 WP (C) No. 03/2012
(ii) Therefore, Sikkim Government Service Rules, 1974 or the Central Government Service Rules are applicable in such cases. Rule 9, Chapter-III of Sikkim Government Service Rules provides that unless disciplinary action is taken, no officers shall be transferred to a post carrying less pay-
scale. Central Government Service Rules, on the other hand provides that if an officer is transferred to a non- cadre post, the State or Central Government shall first declare the said post as equivalent in status and responsibility to the post the incumbent was holding prior to his transfer.
(iii) The post of Registrar, Sikkim Manipal University (SMU) is a non-cadre post and is not a civil post. It is lower in rank to that of Special Commissioner. Officers of the rank of Deputy Commissioner and Joint Commissioner have all along been transferred earlier by the Government to work as Registrar of SMU carrying low pay scale and status. Hence, transfer of the petitioner to such a non-cadre and lower post that too in an autonomous body without his consent amounts to punishment and reduction in his rank.
(iv) The petitioner holds a technical post whereas as per Section 12 of the SMU Act, 1995, post of a Registrar is administrative in nature. That post has no bearing with the generation of revenue or revenue collection which duties the petitioner is presently performing as the head of the Commercial Tax Division.
(v) The transfer order is not passed in public interest, exigency of service or for administrative reason. The 6 WP (C) No. 03/2012 petitioner as the head of revenue collection wing has been generating increased revenue every year since he had joined as the head of revenue collection wing. He is the sole Special Commissioner in the wing. In his place no substitute of his status has been posted.
(vi) Since the impugned order violates the law of transfer contained in Sikkim Government Service Rules, Revenue Service Rules, Manipal Act and the Central Service Rules.
(vii) As the petitioner is transferred to a non-cadre and subordinate rank, his prior consent had to be obtained; failure of which has amounted to his removal from civil post which violates Article 311 of the Constitution of India.
(viii) The petitioner's promotion as Commissioner became due in November, 2011 but instead of promoting him he has been demoted and sent to an autonomous body in a lower rank and status violating principles of natural justice.
(ix) The petitioner has been transferred to perform administrative works regarding which he has no experience as he is a technical person and a member of Revenue Service whose duty and function has no resemblance with the function and duty of a Registrar of the University.
2. After availing several opportunities, counter affidavit was filed to the writ petition by the respondents No. 1 and 2 7 WP (C) No. 03/2012 which was taken on record on 02.07.2012. On that day two weeks time was granted to the petitioner for filing rejoinder. The case was accordingly adjourned to 19.07.2012. On that day the writ petitioner filed an application under Order 16 Rule 17 CPC for amendment of the writ petition so as to incorporate a fresh table showing pay band and grade pay of Joint Secretary/Joint Commissioner, Additional Secretary/ Additional Commissioner, Special Secretary/Special Commissioner by replacing the table showing pay band and grade pay of Group III and IV categories of employees inadvertently shown in paragraph 10 of the writ petition. Another prayer in the amendment application was Annexure-6, Notification No. 22/GEN/DOP dated 21.06.2012 issued by the Government giving retrospective effect of Sikkim Revenue Services Rules, 2007 inserting Rule 24A, reading as follows: -
"24A. The Government through the Department having administrative control may depute a member of the cadre and place his service under Public Undertakings or autonomous body in the State or in organization outside the State.
Provided that no cadre officer shall be deputed to any public undertaking or organization outside the State except with his consent."
be set aside, cancelled and quashed.
8WP (C) No. 03/2012
3. This Court by order dated 19.07.2012 allowed the above C.M. Application No. 75/2012 as prayed for. Accordingly, amended writ petition was filed by the writ petitioner on 30.07.2012. To the amended writ petition, counter affidavit was filed by respondents No. 1 and 2 on 29.08.2012. To the above counter-affidavit, petitioner filed rejoinder affidavit on 03.10.2012. The writ petition was, thereafter, taken up for hearing on 22.11.2012, and on 22.11.2012 hearing started and during the course of argument the learned senior counsel for the petitioner referred to Section 12 of the Sikkim Manipal University of Heath, Medical and Technological Sciences Act, 1995 which, inter alia, deals with the appointment of the Registrar, a post to which the petitioner was transferred/deputed by the State Government. The Court felt that as Section 12 of the Sikkim Manipal University of Heath, Medical and Technological Sciences Act, 1995 speaks only appointment and does not envisage source of appointment like deputation/ transfer, the Sikkim Manipal University of Health, Medical and Technological Science, Gangtok should be impleaded as a party respondent. Accordingly, the petitioner was permitted to implead the Sikkim Manipal University as a party respondent No. 3 to the writ petition and the petitioner was directed to file the 9 WP (C) No. 03/2012 amended writ petition. On that day notice was ordered to the newly added respondent and it was also orderly that the newly added respondent shall file their counter affidavit within 4 (four) weeks with a further direction that the petitioner shall file rejoinder, if any, within two weeks thereafter. Even then the notice was sent to the 3rd respondent, University, and the same was acknowledged by the University. The University did not enter appearance before this Court. The University was accordingly set aside ex-parte.
4. The amended counter affidavit was filed by Respondents No. 1 and 2 on 16.02.2013 and on 18.02.2013 the Court granted 4 (four) weeks time to file the rejoinder. Accordingly, on 16.03.2013 the rejoinder affidavit was filed by the petitioner.
5. The respondents No. 1 and 2 have filed as many as 3 counter affidavits in this case and in all the 3 counter affidavits, preliminary objections have been raised challenging the maintainability of the writ petition and seeking its dismissal on threshold on the ground that the filing of the writ petition is not a bona fide act as the petitioner holds a post which is transferable to ex-cadre/non-cadre post and there is no 10 WP (C) No. 03/2012 statutory restriction on such transfer/deputation and also on the reason that the transfer/deputation is an incident of service and the applicant has no right to challenge the same. It is urged preliminarily that the order of posting of the petitioner as Registrar, Sikkim Manipal University is made in public interest and the Court does not normally question the propriety of the order of transfer/deputation as the same involves matter of policy of the Government. In counter affidavit the averments of petitioner in the original writ petition as well as in the amended writ petition are denied parawise.
6. It is contended that the petitioner was initially appointed on 15.07.1982 as Deputy District Collector-cum- Deputy Magistrate under the Land Revenue Department which is the post equivalent to the post of Under Secretary. Thereafter he was inducted in the State Civil Service with effect from 07.03.1986. Vide Memorandum No. 416/G/EST. dated 12.07.1982, it is categorically stated that paragraph 2 sub-clause (iv) carries with it the liability to serve in any part of Sikkim. The above terms and conditions are duly accepted by the petitioner vide letter dated 14.07.1982. Annexures R-1 and R-2 copies of the above memorandum and acceptance 11 WP (C) No. 03/2012 letter are produced along with the counter affidavit dated 28.08.2012.
7. It is contended that on 07.04.2000 the petitioner was transferred and posted as Joint Secretary to Income Tax and Sales Tax Division under the Finance Department, Government of Sikkim and on 13.02.2004, he was promoted as Additional Secretary under Sikkim State Civil Service. While so, he was inducted into Revenue Service on 02.07.2007 vide Notification No. 124/G/DOP dated 10.11.2008. It is then pointed out that the petitioner was transferred as Registrar, Sikkim Manipal University vide office order No. 7030/G/DOP dated 28.11.2011. In pursuance to this office order, the Vice Chancellor of Sikkim Manipal University vide his letter No. SMU/VC/2011-191 dated 01.12.2011 informed the Department of Personnel, Adm. Reforms & Training, that the Registrar of Sikkim Manipal University, Government of Sikkim (DOPART) is required to be appointed as per Section 12(1) of Sikkim Manipal University of Health, Medical & Technological Sciences Act, 1995 by the Vice Chancellor with the approval of the Executive Committee of the University from out of a panel of not less than 3 persons recommended by the Vice Chancellor to the Executive Committee. If none of the panel is 12 WP (C) No. 03/2012 approved by Executive Committee within the time prescribed by the regulations, the Pro Chancellor may in consultation with the Vice Chancellor appoint such person as he deems fit to be the Registrar. Accordingly, the Vice Chancellor, Sikkim Manipal University requested the DOPART to forward a panel of 3 persons along with their performance appraisal report for the last three years for the perusal of the Executive Committee, Sikkim Manipal University. Annexure R-3 produced along with the counter affidavit is a copy of that letter. Pursuant to Annexure R-3, the DOPART vide their letter No. 37191/G/DOP dated 03.12.2011 had forwarded the names of three officers along with their Annual Confidential Reports for the last 5 years for appointment as Registrar, Sikkim Manipal University. Annexure R-4 is a copy of that letter. The University vide their letter No. 7003/SMU/VC/02/2012-10 dated 05.01.2012 (copy produced as Annexure R-4) approved the name of the petitioner for the post of Registrar on deputation in accordance with Section 12 (1) of Sikkim Manipal University of Health, Medical & Technological Sciences Act, 1995. On receipt of approval from the University, the first respondent issued a letter dated 23.01.2012 and directed the petitioner to join his new place of posting at Sikkim Manipal University. 13 WP (C) No. 03/2012
8. It is then contended that with the induction of the petitioner in the Sikkim Revenue Service, the petitioner came to be governed by the Sikkim State Revenue Service Rules, 2007. Referring to Rule 24 (1) of the Sikkim Revenue Service Rules, 2007, which provides that:
"The control over the service including appointments, transfer and deputation shall vest with the Government in the Department of Personnel & Administrative Reforms & Trainings."
It is contended that the control over the service including appointments, transfer and deputation is vested with the Department of Personnel, Adm. Reforms and Trainings. It is further contended that the said Service Rules does not require the Government to seek prior consent of the officers while being sent on deputation. Notification No. 5(213)100 (GEN)/EST. dated 18.07.1981 is also referred to and it was pointed out that the above notification stipulates terms and conditions for deputation of officers to public undertakings, autonomous bodies or other bodies wholly or partially owned and controlled by Government of Sikkim does not specify that the prior consent of the officers should be obtained while being sent on deputation. Annexure R-5 is a copy of the above Notification dated 18.07.1981 is produced. 14 WP (C) No. 03/2012
9. It is then contended that it is with the purpose of bringing more clarity in the Rule that Notification No. 22/GEN/DOP dated 21.06.2012 incorporating Rule 24A has been promulgated, copy of that Notification is produced as Annexure R-6. It is urged that the petitioner has been sent on deputation as Registrar as per the Rules for administrative reasons in his own pay & scale and not to a subordinate post as alleged by him. The action of the respondents is neither ultravires nor malafide or made with the object of penalizing the petitioner.
10. Producing Annexure-R7 is a copy of the Notification dated 21.06.2012 relating to Rule 24A and producing Annexure-R6, which is contended that it is clear from that Notification No. 5(213)100(GEN)/EST. dated 18.07.1981 that it is not necessary that before officers are sent on deputation, their prior consent should be obtained by the Government.
11. Certain preliminary objections are also raised by the respondents through the counter-affidavit. The first preliminary objection is that as the petitioner holds a post which is transferable to ex-cadre/non-cadre post and there is no statutory restriction on such transfer/deputation, the writ 15 WP (C) No. 03/2012 petition has not been filed bona fide. Another preliminary objection which is raised is that transfer/deputation is an incident of service and the petitioner has no legal right to challenge the same and the writ petition is liable to be dismissed on that ground. Yet another preliminary objection which is raised is that the posting of the petitioner as Registrar, Sikkim Manipal University (SMU) was made in public interest and the High Court normally does not question the propriety of an order of transfer/posting/deputation as the same involves a matter of policy. The various averments and aberrations in the writ petition are denied in the counter- affidavit parawise and it is prayed that the writ petition be dismissed with cost.
12. It was Senior Advocate, Mr. A. Moulik, who addressed us on behalf of the petitioner. Mr. Moulik submitted that the petitioner has a genuine grievance about his transfer on deputation. According to him, the post of Registrar is subordinate to the petitioner's existing post of Special Commissioner. The petitioner enjoys regular time pay scale whereas the Registrar of SMU gets yearly salary in lakhs. The status of the two posts are quite different. Working principles and atmosphere of the two posts are also different and these 16 WP (C) No. 03/2012 two posts cannot be compared and equated. In order to expatiate the arguments, that post of Registrar, SMU is subordinate to that of the Special Commissioner, Mr. Moulik submitted that hitherto no officer in the rank of Special Commissioner has been ever transferred on deputation as Registrar, SMU. Earlier subordinate officers in the rank of Joint Secretary/Joint Commissioner or Deputy Secretary/Deputy Commissioner were posted on deputation to work as Registrar. The post of Registrar is an administrative post but the post of Special Commissioner is a technical post and the petitioner does not have experience in the administrative post of the Registrar as his present duties are concerned with commercial tax collection.
13. The post of the Registrar is a non-cadre post in an autonomous body while the post of Special Commissioner is a cadre post in Revenue Service. Therefore, the transfer of the petitioner as a Registrar, SMU amounts to reduction in his rank. It was further submitted by Mr. Moulik that as on the date of transfer, i.e. 28.11.2011, there was no law governing transfer on deputation in the State Revenue Service. Therefore, as on 28.11.2011, the petitioner could not be transferred on deputation to an autonomous body and that too 17 WP (C) No. 03/2012 a non-cadre subordinate post. It was essential for the employer to inform the petitioner of the working atmosphere and the status of the post to which the petitioner was to be transferred on deputation and his willingness as such was required on the deputation post. Sikkim Revenue Service Rules, 2007 does not contain any provision for sending any of its cadre members on deputation. Rule 24(1) highlighted by the Government will not be availed of the Government. When rule 5 is looked at, it will appear that the Revenue Service Rule postulates deputation of employees from outside agency. Therefore, rule 24 cannot be exclusive of rule 5. The Revenue Service Rules provides only deputation from outside. Therefore, rule 24(1) relates to deputation from outside only and it does not mean and include deputation of the employees from Revenue Service to outside agencies. Deputation as contemplated in rule 24(1) means control of the Department of Personnel, Adm. Reforms & Training (DOPART), Government of Sikkim on deputation of employee who will be brought from outside and not from the control on employees of Revenue Service who will be sent on deputation. Therefore, the DOPART had no rule making power relating to sending of employees on deputation from Revenue Service. 18 WP (C) No. 03/2012
14. Annexure-R6, which is a notification for sending employees on deputation from Revenue Service could not be made by the DOPART as rule 24 has not delegated to the DOP the power to make law relating to sending cadre members of the Revenue Service to any organisation outside the cadre in an autonomous body. The notification dated 21.06.2012 was not legally sound and is liable to be quashed.
15. It was further submitted that Annexure-R6 notification was made during the pendency of the writ petition after the petitioner had challenged his deputation on the ground that the transfer was without his consent. The petitioner believes that the above notification was issued out of malice and ill-will so as to defeat and frustrate the petitioner's claim raised in the writ petition. The notification had targeted the petitioner only. But for the writ petition there was no public interest or exigency of circumstances compelling the Government to make such law. The rule making power of the Government has been misused for frustrating the case of the petitioner.
16. Mr. Moulik further argued that the vested right of the petitioner had already accrued on 28.11.2011 not to be 19 WP (C) No. 03/2012 sent on deputation in a subordinate post. This vested right is now taken away by inserting rule 24A and that too during the pendency of the writ petition. Mr. Moulik submitted that even if Annexure-R6 notification dated 21.06.2012 is assumed to be good law then also as the petitioner is sent on deputation to a lower rank then his consent is essential notwithstanding the amendment, which provides that consent is not necessary. Before the petitioner was transferred on deputation, the respondent was duty bound to declare the post of the Registrar, SMU to be equivalent to that of the Special Commissioner. SMU, though impleaded as a party, did not appear before this Court to support the impugned deputation order. This shows that it is the Government who alone is interested to oust the petitioner from his present post. SMU, the borrowing agency never approached the Government, the lending agency for sending the petitioner on deputation. The Government on its own transferred the petitioner on deputation. In fact, the order of transferring the petitioner to the SMU cannot be termed as on deputation at all.
17. Annexure-R2 dated 01.12.2011, Annexure-R3 dated 03.12.2011 and Annexure-R4 dated 05.01.2012 are the three related letters concerning deputation. Mr. Moulik argued that 20 WP (C) No. 03/2012 all these letters originated only after the impugned order was passed on 28.11.2011. These letters are manipulated. Annexure-R2 was issued by the University not because they were in need to borrow the petitioner's service but because the transfer order was already issued without following the rules i.e. Section 12 of the Sikkim Manipal University of Health, Medical and Act, 1995. The University would not have issued Annexure-R2 and Annexure-R4, had it not been for the transfer order already made by the Government without reference to the University. Referring to Annexure-R3, Mr. Moulik submitted that all the three names of the officers in the panel were sent in which the first name was that of the petitioner, who is in the rank of the Special Commissioner. The other two persons are in the rank of Additional Secretary. The petitioner's name was shown as the first name as the Government wanted the University to take the petitioner himself. Borrowing agency and lending agency both have acted with malafides. Annexures-R2, R3 and R4 were merely eye wash issued out of malice and ill-will and do not reflect any public interest or exigency of service.
18. Mr. Moulik submitted that Section 12 of the Sikkim Manipal University Act, 1995 relates to appointment and duty 21 WP (C) No. 03/2012 of the Registrar. According to Mr. Moulik, neither this Section nor any other Section of the Act did empower the Executive Committee or the Vice Chancellor of the University to request the Government to send panel of names of officers on deputation. There is nothing in the Act empowering the University to bring any officer on deputation from the Government service. Section 12(i) postulates that the Registrar is a whole time officer of the University who has to be appointed by the Vice Chancellor with the approval of the Executive Committee from out of a panel of not less than three persons. This section thus requires/permits appointment of Registrar from a panel prepared by the University and not by any outside agency. It further discloses that none in the panel within the stipulated time is approved, the appointment shall be made by the Pro-Chancellor in consultation with the Vice Chancellor and person as deem fit can be appointed under such a condition. Therefore, according to Mr. Moulik, Section 12 does not delegate any power to the Vice Chancellor or to the University to call the panel of names from the Government.
19. Mr. Moulik argued that as neither the University nor its Vice Chancellor or the Executive Committee have power to invite a panel from the Government, there is no question of 22 WP (C) No. 03/2012 ratifying the process of appointment by the University. Mr. Moulik further submitted that principle of natural justice has been grossly violated by transferring the petitioner in the manner it is done and that too in a subordinate post. Mr. Moulik then submitted that rule 9 of IAS Service Rules provides that before an officer is sent out on deputation from one post to the other, the two posts have to be declared equivalent. Even though rule 9 is not applicable in the present case, principles of natural justice and equity demand that the post of Registrar had to be declared equivalent to that of the Special Commissioner.
20. Mr. Moulik would fortify his submission made before me by citing many a judgment. He would rely on the judgments of the Supreme Court in E. P. Royappa vs. State of Tamil Nadu & Anr. (AIR 1974 SC 555), in Ramadhar Pandey vs. State of U.P. & ors. [1993 Supp (3) SCC 35], in K. Narayanan & ors. Vs. State of Karnataka & ors. [1994 Supp (1) SCC 44] and in State of Punjab & ors. vs. Inder Singh & ors. [(1997) 8 SCC 372], in Umapati Choudhary vs. State of Bihar & Anr. [(1999) 4 SCC 659]; the judgment of the Madhya Pradesh High Court in Madhya Pradesh State Road Transport Corporation vs. The State 23 WP (C) No. 03/2012 Transport Appellate Tribunal, Madhya Pradesh & ors. (AIR 1993 MP 95); the judgments of the High Court of Sikkim in S. Gajinder Singh vs. Union of India & Ors. (AIR 1981 Sik 9), in Mr. M. K. Pradhan vs. State of Sikkim & ors. (1995 Sikkim Law Journal 11) and some other decisions were cited before us.
21. On behalf of the State-respondents No.1 and 2, it was Mr. J. B. Pradhan, learned Addl. Advocate General, who addressed submission before me. Mr. Pradhan submitted that it is not disputed that the petitioner is a member of Sikkim Revenue Service. The Sikkim Revenue Service (SRS) was constituted by framing the Sikkim Revenue Service Rules, 2007 (in short SRS Rules, 2007) under Article 309 of the Constitution of India. The rule was published in the Sikkim Government Gazette on 02.07.2007. Mr. Pradhan quoted before me Rule 5 of the above Rules. Mr. Pradhan submitted that at the relevant time the petitioner was posted as Additional Secretary and as such he became the member of the Sikkim Revenue Service. He was initially appointed in the Government Service on 15.07.1982 as Deputy District Collector-cum-Deputy Magistrate under the Land Revenue 24 WP (C) No. 03/2012 Department which post is equivalent to the post of Under Secretary in Sikkim State Civil Service. Subsequently, he was inducted to the State Civil Service w.e.f. 07.03.1986. At the time of initial appointment to the Government service, he was issued a memorandum dated 12.07.1982, which is produced as Annexure-R1. Mr. Pradhan highlighted that clause 2(iv) of Annexure-R1 stipulates that "The appointment carries with it the liability to serve in any part of the Sikkim". On 07.04.2000, he was transferred and posted as Joint Secretary to the Income Tax and Commercial Tax Division, Finance Department, Government of Sikkim. On 13.02.2004, he was promoted as Additional Secretary in the I.T. & C.T. Division of Finance Department. He was inducted to SRS on 02.07.2007. Mr. Pradhan submitted that Rule 24(1) of the SRS Rules, 2007 provides that the control over the service including appointments, transfer and deputation shall vest with the Government in the Department of Personnel, Administrative Reforms and Trainings. Mr. Pradhan further pointed out that Rule 25 of the SRS Rules, 2007 provides all other matters in relation to the service not specified or for which no provision has been made in these rules shall be regulated by rules and order applicable to other officers of the Government of equivalent status. The impugned transfer order transferring 25 WP (C) No. 03/2012 the petitioner as Registrar, Sikkim Manipal University was issued on 28.11.2011 and the writ petition was filed on 30.07.2012. During the pendency of the writ petition, the State amended the Rules on 21.06.2012 by Sikkim Revenue Service (Amendment) Rules, 2012 and introduced Rule 24A with retrospective effect from 02.07.2007. Rule 24A enables the Government through the Department having administrative control to depute a member of the cadre and place his service under Public Undertakings or that of autonomous body and provides further that no cadre officer shall be deputed to any public undertaking or organisation outside the State except with his consent.
22. According to Mr. Pradhan, the main ground is that the transfer order was challenged by the petitioner as earlier the post of Registrar in SMU was occupied by one Ms. Namrata Thapa, who was in the rank of Joint Secretary whereas the petitioner was already in the rank of Special Commissioner which is equivalent to that of Special Secretary and, therefore, the petitioner's transfer amounts to a demotion to a non-cadre post without his consent. Mr. Pradhan submitted that the post of Registrar in the autonomous body, viz. SMU and the post of Special Commissioner or the post of Joint Secretary cannot be 26 WP (C) No. 03/2012 compared for ascertaining which is the higher or more important post. The post of Special Commissioner is post under SRS and the post of Joint Secretary is a post of Sikkim Civil Service, whereas the post of Registrar is a post in the autonomous body viz. SMU. The transfer order clearly mentions that the petitioner is posted on deputation and he is drawing his own pay and scale and as such, this does not amount to a demotion. In this context, Mr. Pradhan referred to Annexurs-R5 notification, which provides that while on deputation the Government servant shall draw pay which such Government servant would have drawn in the parent department but for the deputation, plus deputation allowance equal to 20% of parent grade pay. According to Mr. Pradhan, from Rule 24(1) of the SRS Rules, 2007, it is clear that the Government in the Department of Personnel, Adm. Reforms & Training has the power to send an employee on deputation even without his consent. It was to give more protection to the members of the SRS that the amendment rule 24A was inserted. The argument of Mr. Pradhan was that while the provision of the rule provides that no consent of employee is required at all previously, now a consent would be required if any cadre officer of the SRS is to be deputed to any public undertaking or organisation outside the State. Therefore, it 27 WP (C) No. 03/2012 was argued that the amendment which was brought in during the pendency of the writ petition was only done to provide more protection to the members of the SRS rather than malafide as alleged. The Addl. Advocate General referred to Annexure-R2 and submitted that Annexure-R2 was sent by the Vice Chancellor, SMU in terms of Section 12(1) of the Sikkim Manipal University of Health, Medical and Technological Sciences Act, 1955 to the Department of Personnel, Adm. Reforms & Training (in short, DOPART). Government of Sikkim to forward a panel of three persons along with their Performance Appraisal Report for the last three years for perusal of the Executive Committee of the University. Pursuant to that, the Secretary, DOPART sent a letter Annexure-R3 forwarding a panel of three officers for appointment as Registrar, SMU. Thereafter, the Vice Chancellor, SMU vide Annexure-R4 communicated to the Secretary, DOPART that the Executive Committee has approved the name of Shri H. B. Rai, the writ petitioner, from the panel of three officers for being appointed on deputation as Registrar, SMU. According to Mr. Pradhan, there is no illegality perpetrated while selecting and appointing the petitioner as Registrar.
28WP (C) No. 03/2012
23. The writ petition is required to be dismissed by a catena of decisions he relied on. Relying on a judgment of Supreme Court in Mohd. Masood Ahmad vs. State of U.P. & ors. [(2007) 8 SCC 150], Mr. Pradhan submitted that the Court should interfere with transfer order only in instant cases. Transfer order made even in transgression of administrative guidelines cannot be interfered with any judicial review as they do not confer any legally enforceable right on the employee so submitted by Mr. Pradhan on the authority of a judgment of the Supreme court in State of U.P. vs. Gobardhan Lal (AIR 2004 SC 2165). Courts are not expected to interfere with the administrative matter unless there is absolute necessary on account of any fundamental or other legal rights so submitted by Mr. Pradhan in a judgment of the Supreme Court in State of Haryana & ors. vs. Kashmir Singh [(2010) 13 SCC 306] . Scope of judicial review is a very narrow so submitted by Mr. Pradhan referring to the judgment of the Supreme Court in N. K. Singh vs. Union of India & ors. [(1994) 6 SCC 98]. Expatiating his arguments that the legislative power which is applicable in the case of subordinate legislation will also include the power of the legislature retrospectively referring to a number of decisions on the judgments of Supreme Court in State of Tamil Nadu vs. Arroran Sugars 29 WP (C) No. 03/2012 Ltd. [(1997) 1 SCC 326, in Hotel Balaji & ors. vs. State of A.P. & ors. [(1993) Supp. 4 SCC 536], in Government of A.P. & ors. vs. Syed Yousuddin Ahmed [(1997) 7 SCC 24], in G. Nagendra vs. State of Karnataka & ors. [(1998) 9 SCC 439], in Chairman-cum-Managing Director, Coal India Ltd. & ors. vs. Ananta Saha & ors. [(2011) 5 SCC 142], in State of Bihar & ors. vs. Bihar Pensioners Samaj [(2006) 5 SCC 65], another judgment of the Hon'ble Supreme Court in Virender Singh Hooda & ors. vs. State of Haryana & anr. [(2004) 12 SCC 588. The judgment of Supreme Court in Bakhtawar Trust & ors. vs. M. D. Narayan & ors. [(2003) 5 SCC 298], the judgment of the Constitution Bench of the Supreme Court in M/s. West Ramnad Electric Distribution Co. Ltd. vs. the State of Madras & anr. (AIR 1962 SCC 1753); where some other decisions which were cited before us by Mr. Pradhan. Lastly, Mr. Pradhan would submit that the law that would apply will be law prevailing to the date of the judgment of this Court and not the law which was applicable at the time of commencement of the writ petition and for propositions of law cited before us, the judgment of the Supreme Court in State of Tamil Nadu vs. M/s. Hind Stone & ors. [(1981) 2 SCC 205] and Union of 30 WP (C) No. 03/2012 India & ors. vs. Indian Charge Chrome & anr. [(1999) 7 SCC 314].
24. We have given our anxious consideration to the rival submissions cited above. We have carefully gone through the pleadings. We have gone through all the materials placed on record on either side. We have applied our mind to the relevant statutory provisions, particularly, to those provisions to which our attention was drawn by the learned counsel for the parties. We have kept in mind the ratio emerging from the decisions cited at the bar by the either side.
25. The learned Addl. Advocate General is certainly right in his submission that in transfer matters the scope for judicial review is very limited and that the Court may not be justified in setting at sought an order of transfer made by the appointing authority even in transgression of administrative guidelines unless such guidelines conferred any legally enforceable right to the incumbent. We are also not unmindful of the undeniable position that transfer is an incident of service and that in this particular case, Annexure-R1 memorandum by which the writ petitioner was first appointed in Government service as Deputy District Collector-cum-Deputy Magistrate, 31 WP (C) No. 03/2012 there is a clear stipulation that the appointment carries with it the liability to serve in any part of the State. Nevertheless it is clear to our mind that the present one is a very rare case as contemplated by the Hon'ble Supreme Court in Mohd. Masood Ahmad (supra) where interference by the High Court under Article 226 of the Constitution of India will be justified. We are also impelled to agree that legislative power takes in an appropriate case power to legislate retrospectively, particularly, in case the amendment is being introduced, for the sake of removing a defect or for sake of clarifying an ambiguous situation. However, we cannot approve of Annexure-R6 notification to the extent it is sought to be made applicable to Annexure-P1, the impugned order of transfer on deputation. We notice in this context that the impugned order Annexure-P1 is not an order of transfer simplicitor. Under that order, the petitioner, who is a member of SRS holding the rank of Special Commissioner of Commercial Taxes Division, Finance, Revenue and Expenditure Department was transferred from a cadre post in SRS and posted on deputation as Registrar, SMU. It is not disputed that the above order of transfer-cum-deputation was passed in respect of the petitioner without taking consent of the petitioner. Going by the pleadings, the idea of such a transfer on deputation would 32 WP (C) No. 03/2012 not have been palatable to the petitioner and he would not have even given his consent, had his consent been sought for.
26. There is stiff controversy in the case on the issue as to whether the post of Registrar in SMU is a post lower in rank to the post of Special Commissioner in SRS. According to us, for deciding this case, it is not necessary that the above controversy is settled by this Court. The two posts are different in quality and content and in that way, are not comparable posts. The question of equivalence between the two posts does not arise. Though the existing pay scale of the petitioner has been protected by the impugned order under the relevant rule and in terms of remuneration which the two posts carry, it can be said that as far as the petitioner is concerned, there is equivalence in terms of remuneration. Bur in other matters, there cannot be equivalence as the natures of duties to be discharged by the Registrar, SMU and by the Special Commissioner in the Commercial Taxes Department are entirely different. The ambience and the atmosphere in which the incumbents of these two posts are to discharge their duties are certainly different and here we find the petitioner who complains that he, who has all along been associated with 33 WP (C) No. 03/2012 duties relating to collection of revenue, is being compelled to administer an academic institution, a University.
27. The argument of the learned Addl. Advocate General that the Annexure-R5 dated 18.07.1981 will enable the Government to send any Government staff on deputation to the autonomous body outside the Government and that too irrespective of his consent does not appeal to us. The incorporation and insertion of Rule 24A through Annexure-R5 during the pendency of the writ petition itself will show that the Government is alerted of the necessity to have such an amendment for tackling situation like the one under which the Annexure-P1 order was slapped on the petitioner in view of the grounds of challenge raised by the petitioner in the present writ petition only. We hold without any doubt in our mind that if it is not for Annexure-R5, there is no provision which enables the appointing authority to send a Government employee on deputation to an outside agency without his consent.
28. The concept of deputation visualises or contemplates a borrowing agency and a lending agency and the request from the borrowing agency to the lending agency for sending an employee of the lending agency on deputation 34 WP (C) No. 03/2012 to the borrowing agency. The everyday reality behind the orders of deputation is that when an employee who is a member of the lending agency is desirous of going to a comparable post in the borrowing agency approaches the borrowing agency first and gets an assurance from them that if the lending agency is willing to send him, the borrowing agency will become willing to take him. In the instant case, we are convinced that Annexure-P1 order transferring the petitioner was passed by the lending agency, the Government on its own without a request in that regard by the borrowing agency, the University and without being informed of any willingness on the part of the borrowing agency to accept the petitioner. Annexures R2, R3 and R4, the three letters pertaining to deputation originated only after the impugned order is passed and obviously after the petitioner takes exception to Annexure-P1, which was slapped on him against his wishes. It is significant to note that despite opportunity being given by this Court, the University has not chosen to enter appearance before this Court ought to file a counter affidavit. In other words, the averments of the petitioner in the writ petition stands established against the University by non-traverse.
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29. We find much force in the argument of Mr. Moulik that Annexures-R2 and R4 were issued by the University only to oblige the Government who wanted to regularise the apparently illegal and irregular order which they had passed without referring to the University which is an autonomous academic institution.
30. The only one ground which may be available to challenge an order of transfer or an order of transfer-cum- deputation like the order which is impugned in the writ petition is the ground of malafides or colourable exercise of power. Our scanning of the available materials in this case have convinced us that Annexure-P1 order of transfer-cum- deputation passed against the petitioner even in the absence of any request from the part of the borrowing agency, the University is tainted with malafides.
31. We are more fortified in our above opinion by the subsequent action of the Government in introducing Rule 24A Annexure-R6 notification dated 21.06.2012 during the pendency of the Writ Petition and that too retrospectively the obvious intention being to make it binding on the petitioner, who has already approached this Court challenging Annexure- 36 WP (C) No. 03/2012 P1 on various grounds. We cannot at all approve of the retrospectivity given by the Government to Rule 24A as we are convinced to the very hilt that the purpose of giving retrospectivity has been to by-pass and overreach the petitioner's challenge of Annexure-P1.
32. The upshot of the above discussions is that we are becoming inclined to quash Annexure-P1 order of transfer- cum-deputation and we become inclined also to pass an order that Annexure-P6 notification will not operate retrospectively in the case of the present petitioner. We find it sufficient to grant this relief only to the petitioner in the writ petition. We are declining the other reliefs sought for by the petitioner as they are unnecessary since the reliefs granted by us hereinabove is adequate for the petitioner.
33. We clarify that we have not decided the general question as to whether it is necessary to obtain the consent of the employee concerned when he is sent on deputation to an outside agency or an autonomous body within the State.
34. The Writ Petition is allowed as above. Annexure-P1 is quashed. It is declared that Annexure-R6 notification will 37 WP (C) No. 03/2012 not operate retrospectively with effect from 02.07.2007 and will operate only prospectively with effect from the date of the notification.
35. Parties are directed to suffer their respective costs.
Sd/-
( Pius C. Kuriakose ) Chief Justice 29.07.2013 Sd/-
( S. P. Wangdi ) Judge 29.07.2013