R. Thansanga vs State of Mizoram and Others

N.S. Singh, J.—Heard Mr. G. Raju, learned Counsel for the Petitioner and Mr. N. Sailo, learned Govt. Advocate for the State-Respondents.

In this writ petition the Petitioner questioned the validity of the impugned notification dated 23.7.2002 issued by the competent authority as in Annexure-9 to the writ petition by which the Petitioner has been repatriated to his parent department, namely the Agriculture Department, and on his repatriation he shall be designated as Officer on Special Duty (in short "OSD") in his own grade and shall be responsible for the monitoring of the Mizoram Intodelhna Project (hereinafter referred to as "Project") by contending inter-alia, that initially the Petitioner was allowed to go on deputation as Additional Secretary to the Government of Mizoram, Soil and Water Conservation Department, under the related order/notification dated 27.5.1999 as in Annexure-2 to the writ petition without his consent. However, the Petitioner had complied with the related Govt. order/notification dated 27.5.2002 and went on deputation as an Additional Secretary to the Government of Mizoram. In the year 2001 the Petitioner filed a writ petition being W.P. (C) No. 78/2001 questioning the validity of the related order dated 27.5.1999 by which he had been sent on deputation and this Court under its judgment and order (oral) dated 27.3.2002 opined thus;

Considering the above, this Court is not inclined to go into any of the contentious issues raised in the present application and instead consider it more appropriate to hold that the ends of justice will be met if the instant writ application is closed with a direction that on the expiry of three years from the date of the order dated 27.5.99 (Annexure-I) the period of deputation of the writ Petitioner shall come to an end and the authority will pass necessary orders repatriating the writ Petitioner to his parent Department.

Being dissatisfied with the judgment and order dated 27.3.2002, the State-Respondents preferred a writ appeal being Writ Appeal No. 217 of 2002 and the same is still pending before this Court but, the operating of the judgment and order dated 27.3.2002 is not stayed and the same is still operative in the eye of law. As the authority concerned/Respondents did not comply with the related judgment and order dated 27.3.2002 and apart from that, even after the expiry of the period of 3 (three) years on deputation, the Petitioner had not been repatriated and that being the position the writ Petitioner filed a contempt petition being Contempt CAS(C) No. 5 of 2002 which is also still pending before this Court but, in the meantime the Respondents-authority passed impugned order dated 23.7.2002.

Supporting the case of the writ Petitioner, Mr. G. Raju, learned Counsel contended that the impugned order dated 23.7.2002 affects the service career and the service condition of the Petitioner inasmuch as before the Petitioner was sent on deputation he worked and served as Director of Agriculture for about 16 years and his service as Director of Agriculture was regularised with effect from 17.8.1987 but, he has not been allowed to occupy the same position and the status of Director of Agriculture but, on his repatriation he has been designated as Officer on Special Duty, a post which was not in existence at the time of the related order of repatriation dated 23.7.2002 was passed. In other words, he has been given his place of posting and he has been allowed to hold a post which was not in existence under the impugned order dated 23.7.2002. It is also argued by the learned Counsel that the said post of Officer on Special Duty was created vide, notification dated 25.7.2002 i.e. after two days from the date of the passing of the impugned order which according to Mr. G. Raju, the action of the authority concerned in the matter is malafide and the same was made with oblique motive. The learned Counsel went on to contend that the duties assigned to the writ Petitioner for monitoring of the said project is to be carried out by the Rural Development Department, Government of Mizoram and the cost of the said project has been funded by the Central Government and such expenditure to be incurred for the said project, the cost of it had been included in the State budget. Supporting his submission Mr Raju, learned Counsel, has drawn my attention to the document marked as Annexure-12 which is the copy of the Govt. order pertaining to the revised proposed sectoral allocation of outlays for 2002-03 which I have perused. It is also argued by the learned Counsel that the post of Director of Agriculture is still lying vacant as there is no incumbent holding the said post of Director of Agriculture on regular basis and in the absence of the present Petitioner in his parent department while he was on deputation, a Joint Director of Agriculture was allowed to officiate as Director of Agriculture temporarily and as such the said Joint Director of Agriculture has no indefensible right to hold the post. According to Mr. Raju, after expiry of the period of the Petitioner he has to come back to his parent department and to occupy the said post of Director of Agriculture but the Respondent-authority with a certain oblique motive and malafide did not allow the Petitioner to hold the post of Director of Agriculture without any justification, instead he has been designated as Officer on Special Duty under the impugned order and the said post of Officer on Special Duty was not in existence and not even borne at the time of the passing of the impugned notification/order dated 23.7.2002 and that being the position this impugned order deserves to be quashed.

At the hearing Mr. N. Sailo, learned Govt. Advocate submitted that he got a para-wise comments from the Respondents and need sometime to prepare the counter-affidavit. According to me, the Respondents are aware of the fact that the case has been listed for hearing and on the last occasion this case was also heard in part. However, to secure ends of justice this para-wise comments of the authority-Respondents concerned shall be treated as counter affidavit of the Respondents and accordingly, it is made as part of the record and marked as ''X'' for identification. According to Mr. Sailo, learned Govt. Advocate, there is no infirmity in the impugned order as the competent authority State-Respondent has power and jurisdiction to transfer an employee from one place to another place of posting as transfer is incident of service. In the instant case, the Petitioner has been allowed to hold the post of Officer on Special Duty with the same scale of pay attached to the post of Director of Agriculture and there is no reduction in rank or loss of financial and other service benefits and, for the purpose of the exigencies of the work of the work, the Petitioner has been allowed to monitor the Mizoram Intodelhna Project. Mr. Sailo, learned Govt. Advocate submitted. It is also the case of the State-Respondents that the Government found the present Petitioner better to post him and utilise his service as OSD which carry his identical pay scale with that of the pay scale attached to the Director of Agriculture and as such action taken by the Government cannot be termed as malafide or malice as the same was done to promote work culture and development in the Department. It is also argued by Mr. Sailo, learned Govt. Advocate that the said project is to be carried out not by a single department though budget provision is initially put in the Rural Development Sector. The learned Govt. Advocate went on to contend that in terms of the Mizoram Group ''A'' and ''B'' Recruitment (Amendment) Rules, 1989, the Government of Mizoram, in the public interest, have the right and power to transfer any officer or official, recruited in accordance with these rules to the post/posts/service specified in schedule/annexure to these rules to any other post or position which is equivalent in rank or grade and as such the impugned order should not be interfered with by this Court.

Now this Court is to see and to examine as to whether the impugned order is tainted with malafide, malice or where it was passed with oblique motive and, whether the authority exercised its discretion reasonably, fairly and justly while passing the impugned order dated 23.7.2002 or not and whether the writ Petitioner has enforceable legal right in the instant case or not. It is true and well settled that transfer is an incident of service and the authority has the power and right to transfer any officer or officers to a proper place of posting for exigencies of service and as such the transfer order should not be interfered with unless shown it to be clearly arbitrary, malafide, contrary to profess norms and principle governing transfer and; exigencies of transfer cannot be subjected to judicial review and an officer or employee cannot chose his or her place of posting of his/her own choice.

In the instant case, the Petitioner has been allowed to go on deputation without his consent. According to me an employee cannot be compelled to go on deputation without his or her consent and he cannot be sent to other department without his or her consent. Concept of deputation is well understood under service jurisprudence, and it has recognised meaning, "deputation" has a different connotation in service law and the dictionary meaning of word "deputation" is no help and, that being the position, deputation means service outside the cadre or outside the cadre or outside the parent department and deputation is deputing or transferring the employee to a post outside his or her cadre that is to another department on temporary basis and after expiry of the period of deputation, the employee has to come back to his parent department to occupy the same position unless he has earned promotion in his parent department as per Recruitment Rules. Now, the Petitioner went on deputation, he questioned the validity of the order of deputation which was finally disposed of by this Court and the authority did not comply with the related Court''s order in time; contempt petition was filed and lastly, the Petitioner has been repatriated to his parent department and, instead of allowing the Petitioner to occupy the same position i.e. Director of Agriculture, he has been designated as Officer on Special Duty (a non est post) under the impugned order of 23.7.2002. This rules namely Mizoram Group-A and B Recruitment (Amendment) Rules, 1989 lays down about the right and the power of the Government to transfer any officer in-accordance with these rules to the post/posts/service specified in the schedule or annexure to any other post of position which is equivalent in rank or grade. By virtue of the impugned order dated 23.7.2002 the Petitioner has been given transfer and he has been allowed to hold a non-existence post i.e. OSD. Now the question arises as to whether the State-Respondent is complying these rules namely Mizoram Group-A and B. The answer is ''no''. The post of Director of Agriculture is governed by a related service/recruitment rules but the present post of Officer on Special Duty though it was created after the impugned order was passed, there is no recruitment rules but, the Petitioner has been designated as OSD under the impugned order dated 23.7.2002. The said post of OSD was created and there is no service rules for the said post framed under Article 309 of the Constitution of India. Now let us see the process adopted by the authority concerned/Respondents while accommodating the present writ Petitioner as Officer on Special Duty. As discussed above, the Petitioner questioned the validity of his deputation and it is an admitted position that no consent was obtained from the Petitioner for the said purpose but even then the Petitioner had rendered more than three (3) years of service on deputation and the Petitioner obtained a favourable judgment and order from the end of this Court which was not duly complied with by the authority in time, and for that, contempt petition was filed and lastly the impugned order of repatriation was passed thus redesignating the Petitioner as Officer on Special Duty and after two days of the passing of the impugned order, the post was created in the Agriculture Department and on the same day, another order was passed showing the fact that the Petitioner shall draw his pay and allowances against the newly created post of OSD by highlighting the fact that his service is required for implementation and for monitoring the said project. It is not disputed that under the Revised Annual Plan 2002-03 prepared by the authority the fund has been allotted for said project under the Rural Development Department not under the Agriculture Department. It is highly astounding to see that despite the existence of the vacant post of Director of Agriculture which was once hold by the Petitioner for the last about more than 16 years. The Petitioner has not been allowed to occupy the said post, instead, he has been designated for the non-existence post of OSD under the impugned order. In my considered view, the authority concerned/Respondent did not exercise its power and discretion while passing the impugned order fairly, justly and reasonably. It is well settled that a public body invested with the statutory powers such as those conferred upon then must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.

Lord Wrenbury laid down the law as follows:

A person in whom is vested in discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason directs. He must act reasonably.

According to me this impugned order is not based on common sense. At this stage I hereby recalled Lord Denning who brought common sense to the interpretation of law. In addition to this it may be mentioned that in an article in the Times on 17 September, 1980 J.R. Lucas of Merton College Oxford said:

Although some think that the law should always be clear, in practice it is not, and we have recourse to judges for authoritative interpretations. The only question is whether in interpreting what is unclear the law should be guided by common sense and give weight to considerations of expediency, justice and morality. Lord Denning thinks it should. Others think not. Mr. Lucas argued that a non-common sense decision is no more certain than one based on common sense. For the layman the law would be more predictable if based on common sense. Since laws apply to laymen there is a good argument for the development of the law to be influenced by common sense as well as legal reasoning. In a doubtful case there is a strong case for the use of common sense as it makes the law easier to predict and worthier of respect. A perceptive paragraph appeared in the Sunday Mirror on 16 October, 1966; It is not that Lord Denning is excessively liberal. It is merely that he always seems to decide a case the way you or I would.... But an odd man out who has the gift of bending it (the law) in the right direction, is something for which we can be truly grateful.

The present Petitioner is on the verge of his retirement on attaining the age of superannuation on 31.12.2003. As discussed above, he had already served as Director of Agriculture for about 16 years before he has been sent on deputation. Another question arises at this stage that is what is the difficulty and impediment on the part of the State Government or Respondents authority to allow the writ Petitioner to occupy the same position i.e. the Director of Agriculture after he has been repatriated to his parent department that too he was sent on deputation without his consent." It may be noted here that an employee or Govt. officers cannot be compelled to loose their lien in the parent department and, mere designation of the Petitioner as Officer on Special Duty, a none-est post and creation of such post after two days from the date of the passing of the impugned order may not suffice on the part of the Respondents authority to say that the Petitioner has been transferred and posted as OSD for exigencies of works in the public interest that too for a scheme or project taken up by the State Government and the fund for which has already been allotted to the Rural Development Department not to Agriculture Department. Keeping in view of the existing facts and circumstances of the case I am of the view that the impugned order dated 23.7.2002 as in Annexure-9 was issued/passed by the authority concerned with malafide and with oblique motive so as to frustrate the repatriation of the Petitioner to his parent department i.e. the Agriculture Department.

In view of the above position I direct the Respondents authority concerned to allow the Petitioner to hold the post of Director of Agriculture, Government of Mizoram by issuing necessary order within a period of a week from today. I made these observations keeping in view the fact that the post of Director of Agriculture is lying vacant.

For the reasons, observations and direction made above I am of the opinion that the Petitioner could make out a prima-facie case to justify interference with the impugned order dated 23.7.2002.

In the result the writ petition is allowed thus by quashing the impugned order dated 23.7.2002.

The earlier interim order dated 1.8.2002 is hereby merged with the judgment. There shall be no order as to cost.