Partly allowed

Okom Siram v. Allen Yirang and 2 Ors.

Gauhati HC26 Apr 2022IA(C)/61/2022

Case brief

AI extract

What is this about?

Writ petition challenging transfer orders of a government engineer which were modified in quick succession to satisfy political demands. The Court found the orders arbitrary and vitiated by lack of application of mind, quashing the modification and directing the Department to adhere to service norms.

What did the court decide?

The impugned transfer order dated 26.03.2022 was quashed. Petitioner attached to a vacant post within one week.

Okom Siram Vs Allen Yirang and 2 Ors. — Service and Employment | Gauhati HC (2022)

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GAHC040003942022

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

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Case No. : WP(C) 129/2022

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1:Allen Yirang Son of Lt. Makbul Yirang

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Resident of Village Midland PO and PS Roing District Lower Dibang Valley Arunachal Pradesh

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VERSUS

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1:THE STATE OF AP and 2 Ors. Through the Chief Secretary to the Govt. of Arunachal Pradesh Itanagar Arunachal Pradesh 2:The Commissioner (Power) to the Govt. of Arunachal Pradesh Itanagar Arunachal Pradesh 3:Okom Siram Office of the Chief Engineer (Power) Central Electrical Zone (Under order of posting as Executive Engineer (Electrical) Yatdam Electrical Division)

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Advocate for the Petitioner : Kamal Saxena Advocate for the Respondent : GA (AP)

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Linked Case : I.A.(C) 61/2022

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1:Okom Siram Executive Engineer (E), Yatdam Electrical Division, Department of Power Yatdamm, Changlang District, Arunachal Pradesh. Pin 792120, Ph. No. 8416003234

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VERSUS 1:Allen Yirang and 2 Ors. S/o Lt. Makbul Yirang, Resident of Midland Village, PO and PS Roing, Lower Dibang Valley District, Arunachal Pradesh.

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2:THE STATE OF AP Through the Chief Secretary to the Govt. of Arunachal Pradesh Itanagar Arunachal Pradesh. 3:The Commissioner (Power) to the Govt. of Arunachal Pradesh Itanagar Arunachal Pradesh Advocate for the Petitioner : Ninnong Ratan

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Advocate for the Respondent : GA (AP)

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BEFORE

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HONBLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 26.04.2022

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Heard Mr. P.K. Tiwari, learned counsel for the petitioner. Also heard Mr. L. Parme, learned standing counsel for the Power Department, appearing for respondent nos. 1 and 2 and Mr. N. Ratan, learned counsel for the private respondent no. 3.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the transfer order dated 28.03.2022 (Annexure-6), issued by the Commissioner (Power), Government of Arunachal Pradesh, by which in partial modification of earlier order dated 19.03.2022, the respondent no. 3, who was posted as Executive Engineer (Ping), Office of the Chief Engineer (Power), Central Electrical Zone to was transferred as Executive Engineer to Yatdam Electrical Division vice Shri Gangtok Banyang, transferred.

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Be it mentioned that the connected interlocutory application was filed by the respondent no. 3 under Article 226(3) of the Constitution of India, thereby praying for vacating the interim order dated 01.04.2022, passed by this Court in the writ petition, by which the impugned order dated 26.03.2022 was stayed. However, in this order, the parties are referred to as per their position in the writ petition.

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In brief, the case of the petitioner is that he was transferred on promotion as Executive Engineer, Roing Electrical Division by order dated 13.02.2019. By an order dated 09.06.2021, he was shifted from Roing Electrical Division to Roing Headquarter as Electrical Inspector. By an order dated 17.03.2022, issued on 19.03.2022, in public interest, one Er. Gangtok Bangyang, Assistant Executive Engineer (Elect.), in-charge Executive Engineer (Elect.), Yatdam was transferred and posted to Deomali Electrical Division as Executive Engineer (Elect.) against retirement vacancy and the petitioner, namely, Er. Allen Yirang, Executive Engineer (Elect.), Roing Headquarter was transferred and posted to Yatdam Electrical Division vice Shri Gangtok Bangyang. It is mentioned that in some documents, the name of the said person is mentioned as Gamtok Banyang and also as Gangtong Bangyang. The said order was to be

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effective from 01.04.2022. By an order dated 22.03.2022, the Superintending Engineer (I), West released the petitioner from his establishment on 22.03.2022 (F/N) pursuant to Govt. order dated 17.03.2022 with a direction to report to the Superintending Engineer (E), APEC-III, Miao for his further duties as Executive Engineer (E), Yatdam Electrical Division and it was also provided that local arrangement may be made to hand over the charge of Electrical Inspector, Roing. The petitioner complied with the order dated 22.03.2022 by submitting a joining report dated 23.03.2022 to the Superintending Engineer (E), APEC-III, Miao. It is projected that the Superintending Engineer (E), APEC-III, Miao had made an endorsement on the joining report thereby allowing the petitioner to take charge in place of the retiring officer. Consequently, by office order dated 24.03.2022, the Superintending Engineer (E), APEC-III, Miao ordered the said Gangtong Bangyang to assume charge of the office of Executive Engineer (E), Deomali Electrical Division and similarly the petitioner was ordered to take over the charge of Yatdam Electrical Division after 31.03.2022. By an order dated 26.03.2022 by the respondent no.2, issued on 28.03.2022, in partial modification of previous order dated 19.03.2022, in public interest, while reiterating the transfer of Gangtok Bangyang, the respondent no.3, namely, Er. Okom Siram, EE (Ping) was transferred from the office of the Chief Engineer (Power), Central Electrical Zone to Yatdam Electrical Division vice Shri Gangtok Bangyang, transferred and it was also provided that the said order would be effective from 01.04.2022. Consequently, the Superintending Engineer (E), APEC-III, Miao by an office order dated 29.03.2022 directed the said Er. Gangtong Bangyang to hand over the charge of Executive Engineer (E), Yatdam to respondent no.3. As already indicated above, this Court by order dated 01.04.2022, has stayed the order dated 26.03.2022 (issued on 28.03.2022) until

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further orders.

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The learned senior counsel for the petitioner has submitted that as the petitioner had already handed over his charge and had reported before the Superintending Engineer (E), APEC-III, Miao to take over charge of the office of Executive Engineer, Yatdam Electrical Division on being so directed by superior authority, i.e. the Superintending Engineer (I), West, by the modifying transfer order, the petitioner has been materially affected as he was not given any place of posting. It is submitted that one of the stand taken in the affidavitin-opposition filed on behalf of the respondent no.2 by the Under Secretary, Department of Power was to the effect that the transfer order dated 19.03.2022 would be effective from 01.04.2022 and therefore, the release of the petitioner prior to the effective date of transfer was not in conformity with the transfer order. In the said context, the learned senior counsel for the petitioner has submitted that the respondent no.2 has failed to explain that if the release of the petitioner before 01.04.2022 was bad for the petitioner, how the said authority would defend their own action to have release the respondent no.3 prior to 01.04.2022.

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Per contra, the learned standing counsel for the Power Department, while defending the impugned orders passed by the respondent authorities, has submitted that it would be appropriate to relegate the matter to the Commissioner (Power) (respondent no.2) to take a decision as regards transfer and posting of the petitioner and respondent no.3, and if required, to pass an effective order for providing place of posting to the petitioner. It may be mentioned herein that pursuant to order passed on 25.04.2022, the learned standing counsel for the Power Department has produced the file relating to

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transfer/posting of the petitioner and respondent no.3 containing file noting as “extracted from computer-44756”.

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Per contra, the learned counsel for respondent no.3 has opposed the prayer made in the writ petition and the maintainability of the writ petition is challenged on the ground that since the transfer order was to be effective from 01.04.2022 and the said transfer order dated 17.03.2022 was modified on 26.03.2022, prior to 01.04.2022, and as such the decision of the Govt. to modify the transfer order before 01.04.2022 cannot be held to be bad in law and the petitioner cannot be said to be prejudiced by the modification done prior to 01.04.2022. Accordingly, it is submitted that no legal or fundamental right of the petitioner has been infringed warranting interference from the Court. It is also submitted that the respondent no.3 had already completed his normal tenure of posting of 2 (two) years at Central Electrical Zone, but the petitioner had orchestrated his transfer from Roing Headquarter prematurely without completing his normal tenure of posting of 2 (two) years as he had only completed about 9 (nine) months at Roing Headquarter. Hence, it is alleged that there was some vested interest operating in favour of the petitioner.

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Upon hearing the submissions made at the bar by the learned senior counsel and the learned counsel for the appearing parties, perused the materials available on record and also perused the record produced by the learned standing counsel for the Power Department.

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From the file containing office notes regarding transfer of the petitioner and respondent no.3, it is seen that the proposal of transfer of Er. Gangtok Bangyang as Executive Engineer (E), Deomali Electrical Division was

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initiated by virtue of joint note of two politicians including a minister and an MLA. Another note was received from another MLA to transfer the petitioner to Yatdam Electrical Division and accordingly, on 23.02.2022, proposal was put up for transferring the said Er. Gangtok Bangyang and the petitioner. Thereafter, approval was given by all concerned including the Chief Minister of the State. Consequently, transfer order dated 19.03.2022 was issued. In the meantime, a note was received from another politician for transfer of the respondent no.3 to Yatdam Electrical Division and the said proposal was again approved by three political persons including the Deputy Chief Minister and the Chief Minister and thereafter, the approval was placed before the Commissioner of Power and others officials of the Power Department, which culminated in the issuance of the subsequent transfer order dated 26.03.2022, issued on 28.03.2022.In the said note-sheet, no observation had been made with regard to any overwhelming public interest for transfer the three engineers named above. All such transfer, as clearly indicated in the note-sheet, was made at the behest of politicians.

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It would be appropriate to refer to the observations made by the Supreme Court of India in the case of Tarlochan Dev Sharma Vs. State of Punjab & Ors., (2001) 6 SCC 260, which are quoted below:

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“It is interesting to view the present day bureaucrat-politician relationship scenario. A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladins lamp, it serves the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy. . . . . . . . . The ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The minister tells them where to go. The officers have to act upon instructions from above without creating a fuss about it. [Effectiveness of

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Bureaucracy, The Indian Journal of Public Administration, April-June 2000 at p.165] In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage theirown discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd., AIR 1970 SC 1896, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue.”

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The Court is conscious on the observations made by the Supreme Court of India in the case of Mohd. Masood Ahmad Vs. State of U.P. & Ors., (2007) 8 SCC 150, that transfer made on the recommendation of an MLA, by

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itself, would not vitiate the transfer order. However, the relevant observation of the Supreme Court of India in paragraph 6, 7 and 8areextracted below:

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“6. In Abani Kanta Ray vs. State of Orissa 1995 (Supp.) 4 SCC 169, this Court observed (vide paragraph 10):

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"It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. (See N.K. Singh vs. Union of India)"

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The scope of judicial review of transfer under Article 226of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India, (1993) 1 SCC 148, National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan, (2001) 8 SCC 574, State Bank of India vs. Anjan Sanyal(2001) 5 SCC 508. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668: (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866: 1998 All LJ 245, has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.

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Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter affidavit filed on behalf of respondent Nos. 1 & 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State government is certainly within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of an M.P. or MLA would be vitiated. It all depends on the facts & circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order.”

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In the present case in hand, it nowhere appears from the notesheet of the file relating to transfer of (i) the petitioner, (ii) respondent no.3, and the said (iii) Er. Gangtok Bangyang that there was any complaint against any of these three persons and as already mentioned hereinbefore, the notesheet also does not indicate that there was any overwhelming public interest to transfer these three officers.

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It is true that the petitioner is in transferable service and that transfer is an incidence of service, but in this case, from the manner in which transfer orders were passed and modified, the officials of the Power Department of the State appears to have mortgaged their conscience to the political persons, at whose instance the transfer orders were passed in quick succession. The copy of concerned departmental file does not disclose the existence any overwhelming public interest to modify the transfer order dated 17.03.2022 (issued on 19.03.2022) with modification order dated 26.03.2022 (issued on 28.03.2022). There is nothing in the note-sheet that the political persons were acting on public interest or had moved such transfer proposal based on any public complaint.

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The office order dated 22.03.2022, by which the Superintending Engineer (I), West, had released the petitioner from the said establishment on 22.03.2022 was marked and/or sent to the Commissioner (Power) (respondent no. 2. Therefore, it cannot be accepted that the said respondent no. 2 authority was not aware that the petitioner was released. Therefore, if the stand taken in para-6 of the affidavit-in-opposition filed on behalf of the respondent no. 2 to the effect that the release order dated 22.03.2022, joining report dated 22.03.2022 and acceptance order dated 24.03.2022 report was not in

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conformity with the transfer order dated 17.03.2022 is accepted, the respondent no. 2 cannot justify the order dated 28.03.2022 (issued on 29.03.2022) of the Superintending Engineer (E), APEC-III, Miao, Power Departmentto allow the respondent no. 3 to assume charge of Executive Engineer (E), Deomali Electrical Division on 31.03.2022 (A/N). It is reiterated the cost of repetition that the transfer order dated 17.03.2022 (issued on 19.03.2022) issued by the Commissioner (Power), the said order was made effective from 01.04.2022. Therefore, the respondent no.2 appears to be approbating and reprobating in the same breath.

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In a hurry to satisfy political persons, the respondent no.2 failed to take note of the fact that the petitioner was merely obeying the command of the Superintending Engineer (I), who had released him to report to Superintending Engineer (E), APEC-III, Miao and that the said authority had accepted the joining report of the petitioner. Therefore, it cannot be said that the petitioner acted on his own to release himself from his earlier place of posting at Roing Electrical Division. Moreover, the respondent no.2 in his affidavit-in-opposition is totally silent as to how the said authority would justify the release of respondent no.3 from the office of Chief Engineer (Power), Central Electrical Zone on 29.03.2022 so as to allow him to report before the Superintending Engineer (E), APEC-III, Miao to submit his joining report on 29.03.2022 and on what basis the respondent no.3 would justifythe order on 29.03.2022 by the said Superintending Engineer (E), APEC-III, Miao, allowing him to take charge of Yatdam Electrical Division in the afternoon of 31.03.2022.Thus, the stand of the respondent no.2 in paragraph 6 of his affidavit-in-opposition is hit by the principles of waiver, estoppel and

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acquiescence because the said authority had notice of the release of the petitioner from his previous place of posting and did not take any prompt steps to have the said release order annulled. Therefore, the action of the petitioner ofobeying the orders of his superior authority, i.e. Superintendent Engineer (I) cannot be said to be not in conformity with the transfer order dated 19.03.2022.

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In any event, the petitioner cannot be left without a place of posting, which would cause immense prejudice to the petitioner.Therefore, the order of transfer of the respondent no.3 in place of the petitioner by order dated 26.03.2022, issued on 28.03.2022, by partial modification of previous transfer order dated 17.03.2022, issued on 19.03.2022 is vitiated by arbitrariness. Moreover, as the release of the petitioner is not accepted by the respondent no.2 to be in conformity with transfer order dated 19.03.2022, by rule of parity, the release of respondent no.3 on 29.03.2022 is also not in consonance with the subsequent transfer order dated 26.03.2022, issued on 28.03.2022, which provides that the said order would be effective from 01.04.2022. Therefore, the respondent no.2 is using two different measuring yard-sticks to judge the release of the petitioner and release of the respondent no.3. Therefore, it is apparent that the respondent no.2 has only one agenda of satisfying the political persons who had moved a note to transfer the petitioner as well as the respondent no.3.

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In light of the discussions above, the Court has no hesitation in setting aside and quashing the impugned transfer Order No. Power12015/2/2022-Pwr-Br-POW-ELEC, dated 26.03.2022 issued on 28.03.2022 (Annexure-6) by making the interim order dated 01.04.2022 absolute.

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Consequently, the respondent no.3 is directed to revisit the issue of transfer of the petitioner and the respondent no.3 strictly in accordance with the departmental norms and service rules without being influenced by notes, if any, circulated by any political persons, whomsoever. The said exercise shall be undertaken within a period of 4 (four) weeks from the date of receipt of certified copy of this order. Pending such decision by the respondent no.2, within a week from the date of receipt of certified copy of this order, the respondent no.2 will pass an appropriate order to attach the petitioner to a definite vacant sanctioned post so as to enable the petitioner to draw his salary, allowances etc. without any break.

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The departmental file, so produced by the learned counsel is returned.

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Accordingly, this writ petition stands partly allowed to the extent as indicated above. In view of this order, no separate order is passed in the connected interlocutory application, which stands dismissed.

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Comparing Assistant

Okom Siram v. Allen Yirang and 2 Ors.

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Okom Siram v. Allen Yirang and 2 Ors.

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