Dismissed

Rabindra Nath Barman v. the Gauhati High Court

Gauhati HC9 Dec 2019WP(C)/1664/2014

Case brief

AI extract

What is this about?

The Court rejected a challenge to the permanent transfer of a Deputy Registrar from the Principal Seat to the Itanagar Bench. Relying on Article 229 and Rule 17A, it held no ground for interference despite disparities in pay and promotion prospects. The Court directed the Registry to consider the petitioner's future transfer request within three months. Petition dismissed.

What did the court decide?

Petition dismissed except for direction to consider return to Principal Seat within 3 months upon fresh representation.

Rabindra Nath Barman Vs the Gauhati High Court — Service and Employment | Gauhati HC (2019)

¶1

Page No.# 1/9

¶2

GAHC010172042014

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C) 1664/2014

¶5

1:RABINDRA NATH BARMAN

¶6

PRESENTLY SERVING AS DEPUTY REGISTRAR, ITANAGAR PERMANENT BENCH, S/O LT. JOGANANDA BARMAN R/O BARBARI, P.O. HENGERABARI, VIP ROAD, OPPOSITE DOORDARSHAN COLONY, HOUSE NO. 353, GUWAHATI- 781036.

¶7

VERSUS

¶8

1:THE GAUHATI HIGH COURT THROUGH THE REGISTRAR GAUHATI HIGH COURT, GUWAHATI.

¶9

Advocate for the Petitioner : MR. R J DAS

¶10

Advocate for the Respondent : MR. T.J. MAHANTA(SC, GHC)

¶11

BEFORE

¶12

HONOURABLE MR. JUSTICE MANOJIT BHUYAN

¶13

JUDGMENT AND ORDER

¶14

Date : 09-12-2019

¶15

The writ petition, in essence, is a challenge to the order of transfer, whereby the petitioner i.e. Rabindra Nath Barman was posted against the vacant post of Deputy Registrar, Gauhati High Court, Itanagar Permanent Bench, Naharlagun in the usual scale of pay and other allowances as admissible under the Rules. This was done vide Notification dated 22.08.2013, issued under the hand of the Registrar General, following the order of the Hon’ble Chief Justice of Gauhati High Court by powers conferred under

¶16

Page No.# 2/9

¶17

Article 229 of the Constitution of India. At the relevant time, the petitioner was serving as the Deputy Registrar (PM & P) in the Principal Seat of the Gauhati High Court in Guwahati. Pursuant to release order dated 23.08.2013, the petitioner joined at Itanagar Permanent Bench on 30.08.2013. The three-fold prayer made in the writ petition is (i) for quashing the aforesaid two Notifications dated 22.08.2013 and 23.08.2013, (ii) for counting his service as Deputy Registrar in the Itanagar Permanent Bench towards his seniority in the cadre of Deputy Registrar in the Principal Seat of the Gauhati High Court, and (iii) for constitution of Review DPC or DPC for considering his promotion to the post of Joint Registrar in the Principal Seat of the Gauhati High Court against the resultant vacancy arising on the retirement of one Smti. Ranjushree Kalita.

¶18

2. This writ petition was assigned to this Bench as per order of the Hon’ble Chief Justice dated 20.04.2016. Initially, during the hearing of the writ petition in the year 2016, the core challenge to the transfer order was on the issue as to whether inter-cadre transfer, not intra-cadre transfer, on permanent basis is permissible in law, when such transfer offends Article 14 and 16 of the Constitution of India to the extent of affecting length of service, denial of promotional prospects, withholding of increments and being fret with other penal consequences. However, during the present hearing of the writ petition in November, 2019, the challenge on the issue of the legality and validity of the transfer order on ground of the same being in the nature of inter-cadre transfer, thus impermissible in law, was somewhat mollified.

¶19

3. Before proceeding further, it is to be borne in mind that for the purpose of this case, we are primarily concerned with the service rules called the Gauhati High Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967, as amended.

¶20

4. The grounds of challenge, now urged by Mr. P.K. Tiwari, learned senior counsel representing the petitioner, may be elaborated. It is submitted that there is no common or uniform cadre of Deputy Registrar for the Principal Seat of the Gauhati High Court at Guwahati and in its three presently Permanent Benches at Kohima (State of Nagaland), Aizawl (State of Mizoram) and Itanagar (State of Arunachal Pradesh). Further, the service

¶21

Page No.# 3/9

¶22

conditions of Deputy Registrars are different in the aforesaid Principal Seat/Permanent Benches, so much so, whereas the pay-scale of Deputy Registrar at the Itanagar Permanent Bench is in Pay Band-3 in the scale of Rs.15,600/--39,100/- with Grade Pay of Rs.6,600/-, the counter-part at the Principal Seat is in Pay Band-4 in the scale of Rs. 12,000/--40,000/- with Grade Pay of Rs.6,400/-. As regards the age of superannuation, it is 58 years in respect of the Deputy Registrar of Itanagar Permanent Bench (presently increased to 60 years), whereas it is 60 years for a Deputy Registrar in the Principal Seat of Guwahati. Also contended is that the order of transfer have not only ruled out prospects of his promotion to the next higher post of Joint Registrar in the Principal Seat where he was the senior-most Deputy Registrar and for which his representation dated 15.01.2012 for constitution of Review DPC was pending consideration, but he also stands to be altogether ruled out from being promoted to the said next higher post at Itanagar Permanent Bench as the post of Joint Registrar is held by one Sri P.B. Dutta, who is younger in age and also junior to the petitioner in terms of length of service. It is submitted that as per extant practice, the petitioner is eligible to vie for the post of Joint Registrar only in the Itanagar Permanent Bench. In this connection, it is also submitted that from 08.12.2014 to 31.07.2018 as many as 8 (eight) Deputy Registrars, who were junior to him, had been promoted to the post of Joint Registrars at the Principal Seat. Taking it further, submission made is that the very fact that separate seniority lists are maintained is clear evidence illustrating that the post of Deputy Registrar at Itanagar Permanent Bench belongs to a different cadre vis-à-vis the post of Deputy Registrar in the Principal Seat at Guwahati. Even in respect of Leave Rules there is no meeting ground, in that, whereas the Deputy Registrar at Itanagar Permanent Bench is governed under the Central Civil Services (Leave Travel Concession) Rules, 1988, the Deputy Registrar at the Principal Seat is governed by the Leave Rules applicable to the employees of the Government of Assam. Likewise, whereas the Central Civil Services (Pension) Rules, 1978 is made applicable to Itanagar Permanent Bench, the Principal Seat follows the Assam State Services (Pension Rules), 1969. It is contended that having regard to the above, there cannot be an iota of doubt that the cadre of Deputy Registrars at the Itanagar

¶23

Page No.# 4/9

¶24

Permanent Bench, on one hand, and at the Principal Seat of Gauhati High Court, on the other, are neither common nor uniform.

¶25

5. On behalf of the petitioner it is further contended that the transfer order is accompanied by adverse ramifications touching upon his service career, in that, he will be visited by penal consequences if permanently posted at Itanagar Permanent Bench; his seniority and benefit of services as Deputy Registrar at the Principal Seat will get obliterated; he will be deprived of the benefit of the hometown leave travel concession as his appointment on transfer as Deputy Registrar at the Itanagar Permanent Bench was treated as a fresh appointment; his representation for consideration of promotion as Joint Registrar at the Principal Seat by constituting Review DPC [as persons junior to him in the cadre of Deputy Registrar were promoted to the post of Joint Registrar at the time when he was serving the penalty of reversion, which penalty was set aside by a Division Bench of this Court in WP(C) 4364/2008] would be rendered infructuous, and there will be a reduction in salary. In respect of salary it is contended that as per the Last Pay Certificate during his stint as Deputy Registrar at the Principal Seat as on 31.08.2013 he was paid the following:

¶26

Pay	: Rs.27,730/-
Grade Pay	: Rs.6,400/-
Dearness Allowance	: Rs.27,304/-(80% of the Basic Pay)
HRA	: Rs.5,120/-(15% of the Basic Pay)
Medical Allowance	: Rs.600/-(Flat amountper month)

¶27

__________________________________________________

¶28

Total : Rs.67,154/-

¶29

It is stated that as against the above and on his application dated 27.08.2013 seeking emoluments at par, the Joint Registrar, Itanagar Permanent Bench had made known vide letter dated 11.09.2013 that the petitioner is not entitled to the pay and allowances as admissible at the Principal Seat, primarily on the ground that the pay structure at the Itanagar Permanent Bench is different.

¶30

Page No.# 5/9

¶31

6. Notwithstanding the grounds of challenge, as above, Mr. Tiwari have also made a more pragmatic approach to the case at hand. He makes no dispute to the fact that transfer being one of the mode of appointments, power vests in the Hon’ble Chief Justice under Article 229(1) of the Constitution of India to appoint officers and servants of a High Court. Further, under Article 229(2) of the Constitution, subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court are to be such as may be prescribed by Rules made by the Chief Justice of the Court. Under the rule making power, the Gauhati High Court Services

¶32

(Appointment, Conditions of Service and Conduct) Rules, 1967 was framed, wherein Rule 17A provided that any employee in the services of the High Court, including those in the Benches at Kohima, Imphal and Agartala, may be transferred from one station to the other in the exigencies of public service and such transfer, in the case of Gazetted Officers, shall be notified in the Official Gazette. The applicability of Rule 17A to the Gauhati High Court Permanent Bench at Itanagar, Arunachal Pradesh can be had from the definition of “High Court” in Rule 2(c) of the aforesaid Rules of 1967. Submission made is that if the power of the Hon’ble Chief Justice to transfer the petitioner emanates from Rule 17A, the same cannot be construed to include power to send an employee on transfer on permanent basis, having regard to the necessity expressed in Rule 17A as “in the exigencies of public service”. It is further submitted that the power of the Hon’ble Chief Justice under Rule 17A must be read in harmony with F.R. 15(a) of the Fundamental Rules and Subsidiary Rules, which provides that a government servant may be transferred from one post to another, provided that except (1) on account of inefficiency or misbehaviour, or (2) on his written request, a government servant shall not be transferred substantively, which in the instant case none of the two pre-conditions existed on the date when the impugned transfer order was issued. Lastly, it is contended that inter-cadre transfer can at best issue as a temporary measure in exigency of service and cannot result in permanent change of cadre. Reliance is primarily placed in the case of State of U.P. v. Gobardhan Lal, reported in (2004) 11 SCC 402, for the proposition that if official status or career prospects, namely, seniority, pay-scale and secured emoluments

¶33

Page No.# 6/9

¶34

are adversely affected, the order of transfer would stand vitiated. In the same vein reliance is placed in Tejshree Ghag and Others v. Prakash Parashuram Patil and Others, reported in (2007) 6 SCC 220 to say that an order of transfer would be rendered illegal when it entails penal consequences and adversely affects service conditions of an employee.

¶35

7. Per contra, Mr. T.J. Mahanta, learned senior counsel and Standing Counsel, Gauhati High Court, submits that no infirmity can be attributed to the order of transfer issued vide Notification dated 22.08.2013. Tracing the service career, it is submitted that the petitioner was initially appointed as a Lower Division Assistant at the Aizawl Bench of the Gauhati High Court vide order dated 01.09.1990. Two years later and more particularly on 23.06.1992 he was transferred to the Principal Seat at Guwahati as Upper Division Assistant and in the year 2005, when he was discharging function as Deputy Registrar, his services stood transferred to the Kohima

¶36

Bench in the same capacity vide order dated 12.05.2005. He returned to the Principal Seat on 27.06.2005, to be transferred back to the Kohima Bench vide order dated 17.01.2007 and re-transferred to the Principal Seat vide order dated 02.04.2007. This part regarding transfer and posting of the petitioner is highlighted to demonstrate that the petitioner had also earlier been transferred in terms of Rule 17A, which transfers were neither questioned nor challenged in a court of law. It is submitted that the petitioner cannot be allowed to approbate and reprobate in respect of an order of transfer by making a distinction that an order in exercise of powers under Rule 17A, being of a shorter duration, is valid and another, being of a longer duration, is invalid in the eye of law. Mr. Mahanta further submits that the parameters of judicial review, as available to the High Court for making interference with an order of transfer, being limited and the recognised grounds of interference being singularly absent in the present case, therefore, the writ petition is without any merit. In this context, Mr. Mahanta also submits that Rule 17A clearly vests power in the Hon’ble Chief Justice to effect transfer of any employee in the services of the High Court from one station to the other. The vires of Rule 17A not being under challenge, it cannot lie in the mouth of the petitioner that the Hon’ble Chief

¶37

Page No.# 7/9

¶38

Justice was without power and jurisdiction in effecting the transfer of the petitioner from the Principal Seat at Guwahati to the Itanagar Permanent Bench. I find substantial force in the submissions of Mr. Mahanta and the same are taken on board.

¶39

8. The submissions of either side have received consideration. Attractive and elaborate though, the submissions on behalf of the petitioner that he is being visited by penal consequences following his transfer to Itanagar Permanent Bench to the extent of denial of his promotional prospects as well as the withholding of increments etc., the answer lies in Rule 37 of the aforesaid Rules of 1967, which reads as under:

¶40

“37. Other conditions of service – (i) Subject to the provisions of these rules and the rules and orders for the time being in force and applicable to the Government servant of corresponding classes in the service of the State shall mutatis mutandis regulate the service of persons serving on the staff attached to this High Court. Provided that the powers exercisable under the said rules and orders by the Governor of the State of Assam or by any authority subordinate to the Governor of the State of Assam shall be exercisable by the Chief Justice or any such person as he may, by special or general order direct.”

¶41

9. The power of the Hon’ble Chief Justice to make appointment of the officers and servants of the High Court is absolute, as flowing out of Article 229(1) of the Constitution of India. Rule 17A, as a statutory provision under the Gauhati High Court Services

¶42

(Appointment, Conditions of Service and Conduct) Rules, 1967, as amended, and flowing out of the rule-making power given to the Chief Justice of the Court by virtue of Article 229(2) of the Constitution, permits transfer of any employee in the services of the High Court from one station to the other in the exigencies of public service. Clearly, Rule 17A is not under challenge as being ultra vires to the Constitution of India. Thus, the impugned order of transfer, per se, cannot be questioned, more so because it is not the case of the petitioner that the transfer order is vitiated on account of violation of statutory provisions or that it suffers from mala fides.

¶43

10. Having held as above, however, there is yet another aspect to be gone into. Apparently, the order of transfer dated 22.08.2013 was issued in strict terms of Rule 17A in the exigencies of public service, which expression finds place in the transfer order itself.

¶44

Page No.# 8/9

¶45

The exigency of public service can be traced to a proposal submitted by the Registry of Itanagar Permanent Bench for filing up the post of Deputy Registrar, which post fell vacant due to the promotion of one Sri P.B. Dutta to the next higher post of Joint Registrar at the Itanagar Permanent Bench. When the matter was laid before the Hon’ble Chief Justice, an order was passed on 20.08.2013 for posting the petitioner at Itanagar, who at the relevant time was functioning as the Deputy Registrar (PM & P). Consequently, the transfer order was issued. It is also seen that on the petitioner’s transfer to the Itanagar Bench, his pay was fixed at Rs.67,852/- per month, in comparison to the gross salary of Rs.67,154/- per month which he had received in the Principal Seat prior to his transfer.

¶46

11. Taking note of the submission on behalf of the petititoner that transfer in the exigencies of service cannot result in permanent change of cadre and/or continuation in service at the transferred place on permanent basis, regard is had to the general definition of “exigency’, which means ‘a state of affairs that makes urgent demands’; ‘an emergency’; ‘an urgent demand’; ‘pressing requirement’. Indeed, the petitioner has been serving as Deputy Registrar at the Itanagar Permanent Bench on and from the date of his joining on 23.08.2013. The immediate necessity of his transfer was on account of the promotion of the lone incumbent in the post of Deputy Registrar at the Itanagar Permanent Bench to the next higher post of Joint Registrar. As a matter of fact, the exigency, the emergency, the pressing requirement as was obtaining at the relevant time in the year 2013 cannot, perhaps, be said to subsist until this date. There is, indeed, an issue of stagnation in so far as the promotional prospect of the petitioner is concerned. There is no dispute that from 08.12.2014 to 31.07.2018 around 8 (eight) Deputy Registrars, junior to the petitioner, had been promoted to the post of Joint Registrars at the Principal Seat. This is an aspect which this Court cannot remain oblivious to it. Therefore, this Court finds no reason to non-suit or restrain the petitioner from making an effective representation to the sole respondent for fresh consideration of his transfer and posting to the Principal Seat of the Gauhati High Court in Guwahati. In the event a representation in the above regard is made, the same shall stand for consideration and be

¶47

Page No.# 9/9

¶48

disposed of within an outer limit period 3 (three) months from the date of receipt of such representation. It would also be open to the petitioner to make representation on subsequent date for consideration of his prayer for promotion to the post of Joint Registrar in the Principal Seat of the Gauhati High Court.

¶49

12. Save and except to the extent above, this Court finds no cogent ground to warrant interference to the Notification dated 22.08.2013, whereby the petitioner was transferred in the capacity of Deputy Registrar to the Itanagar Permanent Bench, Naharlagun, and/or to the other prayers made in the writ petition. Accordingly, the present petition stands disposed of, leaving the parties to bear their own costs.

¶50

JUDGE

¶51

Comparing Assistant

Rabindra Nath Barman v. the Gauhati High Court

Case brief

What is this about?

What did the court decide?

Rabindra Nath Barman v. the Gauhati High Court

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

The School Management and Development Committee Vs Gobinda Ch. Kalita and 2 Ors.

Dr. Aditya Bihar Kandali Vs the State of Assam and 3 Ors.

Khira Neog Vs the State of Assam and 8 Ors.

Syed Imran Hussain and 4 Ors. Vs the State of Assam and 6 Ors.

Rumi Saikia Vs the State of Assam and 2 Ors.

Prasenjit Kr. Ghosh Vs the State of Assam and 2 Ors.