High Court
Case Details
WP(C) 4391/2012 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) This batch of writ petitions have been heard together and are being disposed of by this common order. 2. The issue raised in all these writ petitions is the same. The is sue is whether a Mandal or a Lat Mandal can seek transfer to a place outside the district in which he was appointed or whether the authority can transfer him to a place outside the district where he was appointed and is serving. In other wo rds, can there be inter-district transfer of a Mandal ? 3. Facts in all the cases are more or less similar. Therefore, a de tailed narration of facts in all the cases is considered not necessary. However, for the sake of convenience, facts of W.P.(C) No.6030/2012 are narrated in brie f. Petitioner is a matriculate. He had successfully undergone a 6 m 4. onths Special Recorders Certificate Class Course Training in the Assam Survey an d Settlement Training Centre, Guwahati in the year 2004. He is qualified to be a ppointed as Lat Mandal. He is a permanent resident of Chirang district. 5. Pursuant to an advertisement issued by the Deputy Commissioner, Jorhat, petitioner applied for the post of Mandal. Following a selection process , petitioner was appointed as Mandal on the basis of merit alongwith others vid e order dated 2nd / 6th September, 2006 issued by the Deputy Commissioner, Jorha t. By the said order, 39 persons were appointed as Mandal and their services wer e placed at the disposal of the Deputy Commissioner, Jorhat for posting in the e xisting vacancies subject to satisfactory police verification and medical report . Following the appointment order, petitioner joined as Mandal. Thereafter, orde r dated 08-12-2006 was issued by the Circle Officer, Jorhat (West) Circle, where by petitioner was asked to function as full fledged Lat Mandal of Lat No.2, Bali gaon mouza w.e.f. 08-12-2006. 6. According to the petitioner, he hails from Chirang district, whi ch is under Bodoland Territorial Council (BTC), Assam. His wife and two little d aughters reside at his native village in Chirang district. His wife submitted an application before the BTC authorities requesting transfer of her husband from Jorhat district to Chirang district citing personal difficulty. The matter was f orwarded to the office of the Director of Land Records and Surveys, Assam, who i n turn sought for the views of the concerned Deputy Commissioners. Deputy Commis sioner, Jorhat informed the office of the Director of Land Records and Surveys t hat there was no objection to the prayer for inter-district transfer of the peti tioner from Jorhat district to Chirang district. Similar views were expressed by the BTC authorities. As per Clause 3A of the Government notification No. RLR.38/83/7 7. dated 05-09-1985, which forms part of the Assam Land Records Manual No.4, on the proposal/views received from the concerned Deputy Commissioner, Director of Lan d Records may transfer a Recorder (Mandal) from one district to another district . 8. One Nur Mahammad Ali and eight others claiming to be Additional Mandals engaged in settlement operation in the district of Dhubri filed a writ p etition before this Court seeking consideration of their cases for absorption as regular Mandals in the establishment of Deputy Commissioner, Dhubri. The said w rit petition was registered and numbered as W.P.(C) No.982/2011. This Court pas sed an order on 25-05-2011 taking the view that the State respondents should rat ionalize the policy of appointment of Mandals in the State of Assam. It was dire cted that the State respondents should not fill up any post of Mandal in any of the districts in Assam without obtaining leave of the Court.
Legal Reasoning
9. One Shri Girish Nath filed an application seeking modification o f the above order dated 25-05-2011. The said application was registered as Misc. Case No.907/2012. The applicant Shri Girish Nath was serving as Mandal in the d istrict of Dhemaji. He hailed from the district of Darrang and because of his ai ling parents, he had put in a request before the authorities for his transfer fr om Dhemaji to Darrang. His request was not considered by the Director of Land Re cords and Surveys in view of the order of this Court dated 25-05-2011. The Direc tor stated that his prayer would be considered after receipt of the policy decis ion taken by the Government or on the vacation of the ban imposed on the filling up of the post of Mandal.
Decision
This Court by order dated 05-04-2012 disposed of Misc. Case No.9 10. 07/2012 by modifying the order dated 25-05-2011 by holding that there would be n o bar to consider the transfer of the applicant from Dhemaji to Darrang. Thereafter, a policy has been framed by the Government of Assam 11. for absorption of Additional Mandals. The said policy is dated 03-05-2012. As pe r Clause-1 of the said policy, it has been declared that henceforth there shall be no transfer of Mandals from one district to another. 12. Aggrieved, petitioner has filed the present writ petition challe nging the legality and validity of the aforesaid policy dated 03-05-2012 an d for a direction to the respondents to transfer him from Jorhat district to Chi rang district. 13. The contention of the petitioner is that the State could not hav e framed a policy which completely prohibits transfer of Mandals from one distri ct to another district in all circumstances. Such an absolute bar would be viola tive of Article 14 of the Constitution of India. Further contention is that the said policy would nullify Rule 3 A of the Government notification dated 05-09-19 85 which forms part of the Assam Land Records Manual, which permitted transfer o f a Mandal from one district to another district by the Director of Land Records and Surveys on receipt of proposal from the concerned Deputy Commissioner. It i s also contended that the policy goes beyond the observations of this Court in t he order dated 25-05-2011. Respondents 2, 3 and 4 have filed affidavit. Stand taken in the 14. affidavit is that Mandals are the lowest grass-root level revenue officials and they are required to be fully acquainted with the particulars of the locality, r ecord of rights etc. Before appointment as Mandals, they have to undergo 6 month s training successfully. For undergoing such training, district-wise vacancy pos ition is considered and the number of candidates selected for such training is d ecided depending on the vacancy position of the concerned districts. This is don e to ensure appointment of local candidates as Mandal. Under Rule 6 of the Assam Land Records Manual, a recorder is expected to make his home in his lat permane ntly and reside there with his family. However, the Deputy Commissioner is autho rized to grant exemption from this Rule in a case where he is satisfied that ins istence on such a requirement would cause undue hardship or when the Recorder’s home is within two miles of the lat. However, only after insertion of Rule 3A in 1985, inter-district transfer of Mandals or Recorders became permissible. But n ow, in view of framing of the policy on 03-05-2012, it is contended that such tr ansfer is no longer permissible and, therefore, prayer of the petitioner for int er-district transfer cannot be accepted. The respondents have admitted that on e arlier occasions, for absorbing Additional Mandals against vacant permanent post s and also for not having adequate number of qualified candidates, some Mandals were recruited from outside the concerned district. Since they were recruited ke eping aside the criteria of permanent residence, it is expected to utilize their services in the districts in which they were recruited. Hence, the necessity ar ose for imposing a ban on inter-district transfer. 15. e other cases. Similar affidavits have been filed by the said respondents in th 16. Affidavit-in-opposition has been filed on behalf of the Director of Land Records and Surveys in W.P.(C) No.4787/2012. It is stated therein that the Deputy Commissioner of the concerned district is the appointing authority fo r the post of Mandal (Recorder) in his establishment. In matters of selection an d appointment of Mandal, the Deputy Commissioner of the concerned district is th e competent authority. In view of the policy decision framed by the Government s topping inter-district transfer of Mandals, case of the petitioners for such tra nsfer cannot be considered. It is further stated that provisions of the Assam La nd Records Manual are in the nature of executive instructions and can be amended by issuing subsequent executive instructions. It is also contended that the pol icy decision dated 03-05-2012 would have the effect of superceding clause 3A of the Assam Land Records Manual, inserted in 1985. 17. Heard Mrs. M.D. Choudhury and Mr. A.K. Hussain, learned Counsel for the petitioners and Mr. J. Handique, learned Government Advocate, Assam. Als o heard Mrs. V.L. Singh and Mr. S. Baruah, learned Standing Counsel, Revenue Dep artment, Government of Assam. Mr. M. Choudhury, learned Counsel has appeared for the Director of Land Records and Surveys. 18. Mrs. M.D. Choudhury, learned Counsel leading the argument on beh alf of the petitioners, submits that the policy framed by the State prohibiting inter-district transfer of Mandals in all circumstances without any exception wo uld be wholly unfair, arbitrary and unreasonable, thereby violative of Article 1 4 of the Constitution of India. Mandals are Government servants. Transfer is an incidence of service. To have a policy which completely rules out transfer of a particular category of Government servants in all circumstances would neither be justified nor permissive. She, therefore, prays for interference by this Court in the said policy. 19. All the learned Counsel appearing on behalf of the respondents h ave adopted a similar line of argument. They have contended that though a Mandal is a Government servant but he is required to be fully conversant with the part iculars of the area of which he is the Mandal and, therefore, it is necessary th at the Mandal should be a local person. Considering the nature of work of a Mand al, appointment of Mandals from outside the revenue district was not visualized. Only after insertion of Rule 3A in the year 1985, inter-district transfer of Ma ndals became permissible but even then also, the procedure prescribed was such t hat only in exceptional cases, inter-district transfer could be resorted to and not in a routine manner. Contending that no legal right of the petitioners have been infringed, learned Counsel for the respondents seek dismissal of the writ p etitions. 20. In her brief reply, Mrs. Choudhury, learned Counsel for the peti tioners has placed strong reliance on Rule 3A of the Government notification dat ed 05-09-1985 which forms part of the Assam Land Records Manual and submits that by framing the impugned policy, State cannot dilute such a provision. 21. Submissions made have been considered. A perusal of the policy prepared by the Government for absorptio 22. n of Additional Mandals would show that the same has been framed following the o rder of this Court dated 25-05-2011 passed in W.P.(C) No.982/2011. The said writ petition was filed by a group of Additional Mandals engaged in settlement opera tion in the district of Dhubri. Though they were absorbed as regular Mandals in the establishment of Deputy Commissioner, Lakhimpur, they could not join their s ervices there because of local resistance. In such circumstances, they filed the said writ petition seeking a direction to the respondents to consider their cas es for absorption as regular Mandals in Dhubri district against the existing vac ancies. The further prayer was not to fill up the vacancies of Mandal in Dhubri district till such consideration. 23. As already noticed above, this Court observed vide order dated 2 5-05-2011 that the State respondents should rationalize the policy of appointmen t of Mandals in the State of Assam. Interim order was passed restraining the Sta te respondents from filling up any post of Mandal in any of the districts in Ass am without obtaining leave of the Court. 24. In compliance to the aforesaid order of this Court, the State ha s framed a policy under the caption (cid:28)Absorption of Additional Mandal (cid:29) after cons idering the views expressed by the learned Advocate General and the Legal Rememb rancer. The introductory portion of the aforesaid policy reads as under :- (cid:28)Two categories of mandal are now working in the State. Those who are working un der the permanent establishment of Deputy Commissioner come under one category a nd are called Mandal / Patowary. The Mandals / Patowaries who are working under the Settlement Officers in different Settlement Operation Schemes come under the other category and are called Additional Mandal / Patowary. The settlement oper ation schemes are temporary and the additional mandals / patowaries of these sch emes are required to be retrenched from service with the closure of the schemes. Most of the Additional Mandals / Patowaries have already rendered a fairly long period of service and their retrenchment is not advisable on humanitarian consi deration. With a view to ensure that no additional mandal / patowary becomes job less, the additional mandals / patowaries have been absorbed till recently again st permanent vacant posts of Mandal / Patowary under the establishments of diffe rent Deputy Commissioners. One additional mandal namely Nur Mahammed Ali, who is working under the SO, Dhubri and Kokrajhar had filed a writ petition bearing No .982/2011 before the Hon’ble Gauhati High Court challenging a transfer of one Ma ndal to Dhubri district from another district with the apprehension that his pro spect of absorption against permanent post of Mandal in the establishment of the DC, Dhubri would be hampered by such District transfer of Mandal. The Hon’ble H igh Court vide its order dated 25-05-2011 had viewed that the State respondents need to rationalize the policy of appointment of Mandals in the state. The Hon’b le High Court had further directed that the State respondents should not without obtaining leave of that Court, fill up any post of Mandal in any of the Distric ts of Assam (cid:29). 25. n, which are as under :- (cid:28)1. ther. Thereafter, the various clauses of the policy have been laid dow Henceforth there shall be no transfer of Mandal from one District to ano Whenever vacancies of Mandal/Patowary arise in a District, the Deputy Co 2. mmissioner will call for applications to fill up the same as per the existing Ru les and Procedures. Not only the RCCC trained candidates, but also the Additional Mandal/Pat 3. owary will be free to apply against the advertisement issued by a Deputy Commiss ioner / Appointing Authority. Due weightage and preference shall be given by Selection Committee to th 4. e Additional Mandal/Patowary depending upon the length of service rendered by hi m/her. 5. if necessary, shall be allowed as a matter of policy. Relaxation/condonation of age in respect of Additional Mandal/Patowary, 6. Protection of pay of the Additional Mandal / Patowary on appointment as Mandal/Patowary in D.C.’s permanent establishment will be granted as per Rules i n force. 7. This cancels earlier notification’s No.RLR 92/95/Pt/163, dtd. 11-02-2009 and No.RSS 784/2008/7, dtd. 19-09-2008 issued by Revenue and DM Department. In the event of closure of Settlement Operation, all staff including Add 8. itional Mandal will be retrenched. On retrenchment of any Additional Mandal/Pato wary from service on closure of Settlement Operation, he will automatically be g overned by the already existing policy of Govt. for absorption of retrenched per sonnel communicated vide Personnel (B) Department’s O.M. No.ABP 47/78/16, dtd. 3 0-06-79 read with O.M. No.ABP 278/77/136 (A), Dtd. 16-07-1979 (copy enclosed). (cid:29) 26. Thus, it appears that as per the above policy, it has been decid ed that henceforth there shall be no transfer of Mandal from one district to ano ther 27. W.P.(C) No.982/2011 was finally disposed of by this Court by the order dated 06-09-2012. This Court noticed the policy decision dated 03-05-2012 and took the view that cases of those petitioners deserve consideration for reg ular absorption as Mandals against existing vacancies in Dhubri district. Accord ingly, the State respondents were directed to consider the cases of those petiti oners for absorption as Mandals in the establishment of the Deputy Commissioner, Dhubri on the basis of seniority alongwith other Additional Mandals of that dis trict. In the meanwhile, it was ordered that 9 (nine) posts of Mandal in the est ablishment of the Deputy Commissioner, Dhubri should not be filled up. The writ petition was closed with the observation that the interim order passed earlier ( i.e. on 25-05-2011) stood merged with the said final order. The relevant portion of the order dated 06-09-2012 reads as under :- (cid:28)It is not in dispute that the petitioners were engaged as additional Mandals du ring settlement operation in Dhubri district and presently they have been workin g as such. The petitioners, however, were absorbed as Mandals and posted in the establishment of the Deputy Commissioner, Lakhimpur vide order dated 25-02-2009, pursuant to which though the petitioners made an attempt, they were not success ful as they were not allowed to join in the said establishment. The representati ons were thereafter filed by the petitioners, upon consideration of which the Go vt. of Assam had taken a decision that those additional Mandals shall be conside red for absorption, in order of seniority, against the clear vacancy of the post of Mandal in the establishment of the Deputy Commissioners of the respective di stricts, with due approval of the Finance (SIU) Department. The said decision wa s communicated to the Director of Land Records and Surveys, Assam vide communica tion dated 01-06-2009. The case of the petitioners, as noticed above, is that de spite such clear direction issued and the decision taken by the Govt. of Assam, their cases for regular absorption in Dhubri district against the existing vacan cy has not been considered. The Govt. of Assam in the meantime has taken a fresh policy decision on 03-05-20 12 relating to consideration of the absorption of the additional Mandals against the existing vacancies of Mandal with further stipulation that the fresh recrui tment shall not be made unless the case of the additional Mandals, who are retre nched, are considered. By such policy decision the earlier notifications dated 1 1-02-2009 and 19-09-2008 have been cancelled. It also appears from the said poli cy decision that there shall be no transfer from one district to another. The petitioners, therefore, deserve to be considered for regular absorption as M andals against the existing vacancy, if any, in Dhubri district. Hence the State respondents are directed to consider the case of the petitioners for absorption as Mandals in the establishment of the Deputy Commissioner, Dhubri, maintaining seniority and alongwith other additional Mandals, if any, in that district, wit hin a period of 3(three) months from today. In the meantime, 9(nine) posts of Ma ndals in the establishment of the Deputy Commissioner, Dhubri, if available, sha ll not be filled up. It is needless to say that in the event, adequate number of regular posts of Mandal is not available, consideration for absorption of addit ional Mandals shall be made on seniority basis. It is also needless to say that the interim order passed earlier has merged with the final order passed. (cid:29) 28. There is no dispute at the bar that Mandals are Government serva nts, engaged in the revenue administration at the grass-root level. As pointed o ut in the affidavits filed by the respondents, the appointing authority of Manda l is the Deputy Commissioner of the concerned district, who conducts the recruit ment process. At this stage, it may be useful to briefly examine one of the adve rtisements issued by the Deputy Commissioner for appointment of Mandal. In W.P.( C) No.6101/2012, a copy of such advertisement issued by the Deputy Commissioner, Sonitpur is annexed. For ready reference, the same is quoted hereunder:- (cid:28)GOVERNMENT OF ASSAM OFFICE OF THE DEPUTY COMMISSIONER :: SONITPUR :: TEZPUR ADVERTISEMENT Application are invited in standard form from the intending candidates meeting t he following criteria who are Indians citizen for filling up 19(Nineteen) Vacant posts of Mandal and 6(six) vacant post Chairman in the scale of pay Rs.2890-60- 3480-90-3670-EB-90-4480-120-5200-175-5725/- P.M. for Lot Mandals and in the scal e of pay Rs.2450-40-2770-EB-60-3490-90-3670 P.M. for Chainman plus other allowan ces as admissible under the rules issued from time to time. Application alongwit h qualification and certificate of age proof should be submitted to the undersig ned on or before 22nd October, 2009. Preference will be given to ST(P)/SC and ot her backlog reserved categories and compassionate ground, appointment as per cou rt orders and to existing Additional Mandals working under settlement operation scheme. Candidates for the Post of Chainman have to deposit Rs.5.00 for General and Rs.3 .00 for backlog reserve categories for treasury challan under the Head of Accoun t (cid:28)0029 (cid:29) LR. 1. Qualification :- For Mandals:- Minimum education qualification HSLC passed alongwith RCCC Trainin g from Assam Survey and Settlement Training Centre, Guwahati. For Chainman :- Class VIII passed 2. AGE:- Candidate must not be less than 18 (eighteen) years and more than 45 (f orty five) years of age on 01-09-2009 for Mandals. And candidate must not be les s than 18 (eighteen) years and more than 38 (thirty eight) years of age on 01-09 -2009 for Chainman. ST(P)/SC candidates will be eligible to get relaxation of ag e as per Government rules. 3. LAST DATE OF SUBMISSION OF APPLICATION:- 22-10-2009 during office hours. Candidates for the post of Mandal are to appear for an interview on 03-1 1-2009 and candidates for the post of Chainman are to appear for an interview on 04-11-2009 at the Deputy Commissioner’s Office, Sonitpur, Tezpur at 11 AM at th eir own expense. No separate calling letters will be issued to intending candida tes. This advertisement has been issued vide Government approval letter No. R LR/Estt.-49/2009/6 dated 05-03-2009. Sd/- illegible (Sri Rajesh Prasad, IAS) Deputy Commissioner, Sonitpur, Tezpur (cid:29) 29. Thus, from a close scrutiny of the aforesaid advertisement it ca n be seen that it was an open advertisement for all Indian citizens. The adverti sement did not indicate that preference would be given to local candidates of th e district or that once appointed, a Mandal would not be able to seek transfer t o outside the district. 30. While it is true that Mandals are grass-root level revenue offic ers and, therefore, knowledge of local conditions is very essential, however, re spondents have themselves admitted that in recent times, recruitment to the post of Mandal in various districts were made from candidates from outside the distr icts. If that be so, putting an embargo on inter-district transfer of Mandals wi thout any exception will not only be harsh on the concerned Mandals but will als o be arbitrary. In certain circumstances, it may become oppressive. Transfer and posting of Government servants is within the realm of administration. Transfer is an incidence of service. Therefore, the State cannot be denuded of its power to transfer a Government servant in the exigencies of administration. Likewise, the Government servant also cannot be denied an opportunity to seek transfer. Ho wever, considering the nature of employment of a Mandal, such inter district tra nsfer of a Mandal cannot be resorted to in a routine manner. It would be in the nature of an exception to the employment as Mandal. Therefore, such inter-distri ct transfer of Mandal may be considered only in exceptional cases. However, the contention of the petitioners that clause 3A of the Government notification date d 05-09-1985 which forms part of the Assam Land Records Manual cannot be amended or cancelled by way of a subsequent policy cannot be accepted in as much as Ass am Land Records Manual do not have statutory character being merely executive in structions and, therefore, those can be amended by subsequent executive instruct ions [Sec. Sapon Borah -Vs- State of Assam reported in (2011) 6 GLR 468]. 31. While it is true that the Courts are ordinarily reluctant to int erfere with policy decision of the Government but if such policy is found to be arbitrary and violative of Article 14, the Court can certainly interfere in such policy, more so, when such policy has been framed on orders of the Court. 32. In such circumstances, Clause-1 of the impugned policy dated 03- 05-2012 is set-aside and quashed. Director of Land Records and Surveys, Assam sh all now consider the individual prayers of the petitioners keeping in mind the o bservations made above. 33. 34. All the writ petitions are accordingly disposed of. No cost.