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2000 Supreme(Cal) 220
HIGH COURT OF CALCUTTA
S.B. Sinha & M.H.S. Ansari, JJ.
State of West Bengal & Anr.
Versus
Chirantan Sarkar
W.P.S.T. No. 268 of 1999
Decided On : May 2, 2000
Advocate Appeared:
M.C. Bhattacharjee, Amitva Goswami for the petitioner;
S.K. Mukherjee, Debdas Khanna for the respondent.
The State Government is authorised and empowered to lay down service conditions in respect of the members of Corps.
Headnote:
TRANSFER POLICY - CIVIL DEFENCE CORPS - WEST BENGAL DEFENCE CADRE RULES, 1991 - GUIDELINES FOR TRANSFER - IMPLEMENTATION - LIMITATION - Held, the State Government is authorised and empowered to lay down service conditions in respect of the members of Corps.
Fact of the Case:
The respondent was appointed as a Staff Officer Instructor under Home (Civil Defence) Department, Government of West Bengal functioning in terms of the Civil Defence Act, 1968. The State did not frame any rule as regard the transfer of the employees. A writ application was filed by the General Secretary of West Bengal Civil Defence Service Officers' Guild against the State of West Bengal questioning certain orders of transfer. The West Bengal State Administrative Tribunal allowed the application filed by the respondent directing the transfer of the respondent to either zone 'A' or zone 'B' in terms of Home (Civil Defence) Department's Notification No. 1285-HCD, dated 22.2.1995 within eight weeks from the date of communication of the judgment.
Finding of the Court:
The guidelines for transfer as is evidenced by the aforementioned Notification dated 22.2.1995 clearly envisage that the rotational transfer would be made but no sufficient or cogent reason had been assigned by the petitioner herein either before the Tribunal or before this court as to why the said policy decision could not be acted upon. The factual statements made by the respondent herein had not been denied or disputed. Thus, the Tribunal, in our considered opinion, had rightly come to the conclusion that the State had arbitrarily not given effect to its own policy decision.
Issues: Whether the guidelines framed by the State Government of West Bengal having no statutory force, the same could not have been directed to be implemented. Whether the State Government may fix rules as regards service conditions of the members of the Corps, it has an exclusive jurisdiction to pass an order of transfer as and when necessity arises therefore.
Ratio Decidendi: The State may issue Executive Instruction in respect of such matter which are within the legislative competence and such executive instruction will leave the force of statute. When a policy decision is made by the State, the same is required to be implemented. Any deviation or in departure of the policy decision would attract the wrath of Article 14 of the Constitution of India. The State can act arbitrarily or whimsically in implementing or not implementing its policy of transfer.
Final Decision: The State Government is directed to implement the policy decision of transfer of the concerned employee including the petitioner. Such consideration must be made as expeditiously as possible and not later than three months from the date of communication of the order.
S.B. Sinha, J.
This writ application is directed against the judgment and order dated 20th May, 1999 passed by the West Bengal State Administrative Tribunal in Case No. O.A.- 7841 of 1998 whereby and whereunder the application filed by the respondent No.1 herein was allowed.
2. The said respondent was appointed as a Staff Officer Instructor under Home (Civil Defence) Department, Government of West Bengal functioning in terms of the Civil Defence Act, 1968. The State did not frame any rule as regard the transfer of the employees. A writ application was filed by the General Secretary of West Bengal Civil Defence Service Officers' Guild against the State of West Bengal questioning certain orders of transfer which came up for consideration before G.N. Ray, J (As His Lordship then was) and by a judgment and order dated 29th August, 1989 the said application was allowed. The said decision is reported in 1999(1) CLJ 381, it was held:
"The administrative exigency and/or public interest must be fulfilled before passing the order of transfer against an employee. A transfer is a very important incidence of service and often the order of transfer which may appear innocuous cause serious hardship to the concerned employee. It should be noted in this connection that how best the service of a Government employee can be utilised must be left to the wisdom of the employer and for that purpose, to the appropriate authorities in a public service. Whether the service of a Government employee can be better utilised in some other place is not a justiceable issue in a court of law. It will be sufficient to sustain an order of transfer if it can be shown that the service is a transferable one and by the impugned order of transfer, no condition of service or the norm laid down for such transfer has been violated and that a proper consideration of administrative exigency and/or public interest has been made by the concerned authority and on being satisfied of such administrative exigency and/or public interest, the order of transfer has been made. It, however, appears to me that for about 26 years, the Civil Defence Organisation has been set up in the State of-West Bengal and a Permanent Staff is being maintained in the Civil Defence Department under the Ministry of Home Affairs, Government of West Bengal. But unfortunately no condition of service, rules for promotion, the norm for transfer etc. have been framed as yet for the permanent employees in the Civil Defence Organisation. Any executive instruction in the aforesaid matter has also not been placed before this Court by the learned Counsel appearing for the State respondents. Even the duties required to be performed by the officers of the Civil Defence Organisation have not been indicated and Mr. Mukherjee has submitted before this court that in the absence of any policy and/or guidelines indicating the duties and functions to be performed by the officers of Civil Defence Organisation of the State Government; such officers are often directed to do errand and trival jobs completely dissociated with the ex parte and training of such officers. It is for want of any specific policy of utilizing the officers in suitable jobs concerning the Civil Defence Department tl1ey are directed to attend such errand and trivial duties merely on the basis ofthe ipso dixit of the superior authority."
3. It has further been held:
"In the facts of the case, it appears to me, there is some force in the contention of Mr. Mukherjee that no proper consideration of effective utilization of the concerned officers have been made and orders of transfers have been made at random without application of mind to the relevant factors concerning an order of transfer. In the aforesaid circumstances, this writ petition is disposed of by staying the impugned orders of transfer for a period of three months from today. The employees including the members of the officers of the Guild represented by the petitioner Shri Mukherjee suf
