D.N. Chowdhury, J.@mdashThe legitimacy of the Order appointing and Posting the Petitioner as Chief Engineer-cum-Chairman of the Inter-Disciplinary Disaster Management Committee in the State of Arunachal Pradesh is the subject matter of adjudication in this proceeding which has arisen in the following circumstances:
The Petitioner is a senior most Engineer serving in the State of Arunachal Pradesh holding the substantive post of Chief Engineer in the Irrigation and Flood Control Department under the State of Arunachal Pradesh. While the Petitioner was working as such, by the impugned Notification bearing No GA-16/99/582/92 dated 27.3.99 the Petitioner was appointed as Chief Engineer-cum-Chairman of the Inter-Disciplinary Disaster Management Committee for one year from the date of relief from the post. The order itself indicated that the rank and status of the Petitioner in the new assignment would be for all purposes equivalent to the rank and status of a Chief Engineer in the Government of Arunachal Pradesh. In view of the above, the department issued Notification No. SIFCO-46/96 dated 27.3.99 directing the Respondent No. 4 the senior most Superintendent Engineer(IFC) to discharge his duties of the Chief Engineer(IFC), without any extra remuneration, in addition to his own duties. On receipt of the above Notification Petitioner submitted a representation before the Chief Secretary on 1.4.99 stating therein that his posting and transfer to the above post will disrupt and upset the works so far done in the department and accordingly he demanded justice seeking for his continuance in the Department as Chief Engineer in the interest of all concerned. Since his representation was not attended to, the Petitioner moved this Court by way of this Writ petition challenging the legality and validity of the above order. The Respondent, State of Arunachal Pradesh contested the case and supported the impugned order of posting the Petitioner in the above post as legitimate and bonafide and also submitted its affidavit accordingly. The Respondents stated that, to counter act the flood situation which brought catastrophe in the State of Arunachal Pradesh in the year 1998, the State Government intended to launch an action plan like Disaster Management Plan (DMP) and also to rejuvenate the project the State authority through it fit to engage a whole time person having the requisite technical competence to reinforce the Committee and accordingly the impunged action was initiated The Respondent, in clear term stated that the Petitioner will remain a part and parcel of the Department of Irrigation and Flood Control Department and shall draw the same pay and allowances and status like of a Chief Engineer. According to the Respondent, on their assessment the Petitioner is endowed with the necessary technical competence and because of his ability and proficiency he was assigned to the said post. The State Government did not create any other post of Chief Engineer in the Department of IFC since the Petitioner would go back to his post after a year and discharge his full fledged function as Chief Engineer, IFC department but he was only given a more responsible assignment because of his better technical experience in flood damage works. The Respondents in its affidavit also sought clarify as to the circumstances which lead the department to allow the Respondent No. 4 to assume the charge unilaterally. The Respondents in its affidavit indicated the fragile geological characteristic of the state which falls in heavy rainfall zone and the State is highly vulnerable to flood and landslides. The State in the past experienced devastating flood and landslides causing heavy damage and loss of life and property of the state and its citizens. In that view of the matter the state felt about the urgent functioning of the committee and therefore thought it fit for starting preventive measure from the flood havoc.
2. Mr. A.K. Phukan, the learned Sr. Counsel assisted by Mr. M. Bhuyan, the learned Counsel referred to the track record of the Petitioner in the Department and submitted that on account of his service profile the Petitioner was at least entitled for a better treatment from the department instead of it. Learned Counsel for the Petitioner pointed out that the order was passed on 27.3.99 and the Petitioner submitted its representation before the Chief Secretary, Government of Arunachal Pradesh on 1.4.99 but, without attending his representation the Respondents in most illegal fashion unilaterally sought to take over the charge by not following the basic norms. Mr. Phukan, the learned Counsel has submitted that the above move was taken not only over awe the Petitioner but also is reflected the malafide of the Respondents with a view to get rid of the Petitioner by replacing him by a person of their own choice. Mr Phukan, the learned Counsel also submitted that Respondent No. 4 is only holding a substantive post of Executive Engineer and working in the capacity of Superintending Engineer as an adhoc measure who is ill suited to hold such an important assignment. Learned Sr. Counsel, Mr Phukan referring to the Fundamental Rules and subsidiary Rules submitted that the above appointment is only a ruse to do away with the Petitioner and put a plaint substitute. Mr Phukan did not dispute the power and authority of the Respondents in the matter of transfer and posting of an officer from one post to another. The learned Counsel further submitted that the order though seemingly is of innocuous in nature but when the surrounding circumstances are look into by lifting the veil, the order of transfer unerringly points out that a situation was created only to get rid of an unrelenting but unpretentious officer. What is apparent is not the real, submitted the learned Counsel for the Petitioner, Mr. A.K. Phukan.
3. Mr. N.N. Saikia, the learned Advocate General, Arunachal Pradesh, assisted by Mr. H. Roy, the learned Sr. Counsel, Arunachal Pradesh took pain by referring to the materials on record and in support of the decision Mr. Saikia pointed to the background history of the flood situation of the state. Mr. Saikia, the learned Counsel submitted that recurrence of the flood in the state is the subject matter which perturbed all concerned. With a view to grapple and curb the recurrence of the menace of flood the State Government initiated a scheme for the protection of the State as far back as on 1998 and constituted an Inter-Disciplinary Disaster Management Plan (DMP) to suggest detailed action plans on damages caused by natural calamities, more particularly floods and landslides, and recommend preventive, corrective, scientific and relief measures to mitigate the hardship and financial loss suffered by the state and its people. Earlier a Development Commissioner, an officer of IAS cadre serving in the Government of Arunachal Pradesh was appointed as Chairman of the said committee for the purpose of drawing and preparation of such plan. In view of the transfer of the aforesaid officer the activities of the above committee could not be pursued. By order dated 14.1.98 Secretary in the Department of Science & Technology, Government of Arunachal Pradesh was appointed as convenor for the study and preparation of the draft plan. In view of its own priority it thought to appoint a full time officer of senior level with requisite technical competence to head the committee to ensure preparation of Disaster Management Plan and therefore keeping in mind the public interest and efficacy of the Scheme appointed the Petitioner in the said post. Mr Saikia, the learned Advocate General, Arunachal Pradesh submitted that it is within the competence of the State to appoint and post its officers and utilise their services to the best of its ability and to cause in a most efficient way. The State Government recognizing the ability of the Petitioner thought it fit to man the post by appointing the Petitioner therefore, there can not be any room to treat the impugned order as arbitrary, capricious and unreasonable, submitted the learned Counsel.
4. Posting and transfer is within the domain of the Executive authority who are the best judge to utilise the services of its employees due to administrative reason or the exigency of service. The power is discretionary in nature and the authority is within its competence to exercise the said discretion freely and fairly. Discretionary power, howsoever wider in area it may be, under our polity there is no such thing as unfettered discretion. All power emanates from trust which is to be exercised justly, fairly, reasonably and in the interest of public purpose. If the power is used for an extraneous purpose or for attaining an alien purpose or on obligue motive, the use of the power would be malafide and colourable exercise of power and therefore would be violative of the great equality clause guaranteed by Articles 14 and 16 of the Constitution. Article 16 carries the germ of Article 14 of the Constitution. In Article 16 comprises the doctrine of equality in all matters pertaining to public employment. Equality in all forms is the thematic content of Articles 14 and 16 of Indian Constitution forbidding hostile discrimination. In the words of Justice P.N. Bhagwati, as he then was,"... In fact equality and arbitrariness are sworn enemies one belongs to rule of law in the republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in state action and ensure fairness and equality of treatment They require that state action must be based on valid relevant principles applicable alike to all similarly situated and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality."
5. From the facts disclosed from the records it appears that as far back''as on 13th July, 1998 the Governor of Arunachal Pradesh constituted an Inter Disciplinary Disaster Management Committee (herein after referred to as Committee) to study and prepare a Disaster Management Plan (DMP) to suggest detailed action-plans on damages caused by natural calamities, more particularly floods and landslides, and recommend preventive, corrective, scientific and relief measures to mitigate the hardship and financial loss suffered by the State and its people. In purpose of the above decision, Sri B.P. Mishra, IAS, Development Commissioner, Government of Arunachal Pradesh was appointed as Chairman of the committee for the purpose of drawing and preparation of such plan. On the transfer of said Sri Misra from Arunachal Pradesh to the Delhi Administration the Committee became defunct. On 14th December, 1998 the Government of Arunachal Pradesh constituted another Committee vide order bearing No. 22/98-99 with the Department of Science and Technology, to Government of Arunachal Pradesh as convenor and a meeting of the committee was held on 14.1.99 and an action plan was drawn up for that purpose. On 12.3.99 the Special Secretary to the Chief Minister put up a note before the Chief Minister narrating all the facts proposing for appointment of a full time officer at a very senior level with requisite technical competence to head the committee of task force to ensure preparation of the management plan at least within a reasonable period and accordingly the concerned officer proposed the State Government to consider to create a post of Chief Engineer-cum-Chairman in the pay scale of Rs. 18,400 to 22,400/- per month. The matter was examined by the Chief Minister who endorsed the view to the Special Secretary for posting of a competent Engineer with requisite experience in flood damage control as Chief Engineer-cum-Chairman of the Committee and requested the Minister (IFC) to take necessary action to create the post with a specific allocation of business and task to be performed. By the note the Chief Minister indicated the authority to reconstitute the Management Committee to include as one of its terms of reference to prepare a short term disaster management plan immediately for implementation during current year itself to control flood damage. The concerned Ministry endorsed the view to the Chief Minister indicating its no objection and gave its no objection to the proposal for disaster caused by frequent flood/landslide in different parts of the state the matter was sent to the Finance Department and the Finance Department Concurred with the view since of no additional financial implication was involved as indicated in the note of the Finance Department. The proposal, was approved on 25.3.99 and thereafter a note was put up before the concerned Minister to the Department recommending the name of the Petitioner for the post as the senior most officer. The same note also indicated for appointing the Respondent No. 4 the senior most Superintending Engineer of IFCD who would look after the duties of the CE, IFCD without any extra remuneration and without claim for seniority for such additional works. The matter was processed through and finally on a approval, Notification dated 27.3.99 was issued appointing the Petitioner as Chief Engineer-cum-Chairman of the Committee for one year from the date of relief from the present post and that he would draw his pay and allowances from IFC Department. The order further mentioned that the officer would directly report to the Chief Secretary. It was further'' referred to the order that the rank of the officer in the new assignment would be treated for all purposes equivalent to the rank and status of Chief Engineer in the Government of Arunachal Pradesh. The above Notification also mentioned about the terms of reference of the said committee which reads as follows:
1. Assess the magnitude of damages being caused and likely to be caused by floods, landslides, earthquakes, epidemics fire etc. and the reason that could be attributed to indiscriminate use, misuse or abuse of natural resources;
2. Ascertain status of existing status of preparedness and facilities available with various State and Central Government. Deptts, and other agencies involved in disaster management in the State;
3. Evolve a comprehensive strategy and management plan for the containment of damages and ways and means to combat an actual disaster situation;
4. Indicates the specific roles of respective departments of the State Government, and Central Government, agencies situated in the State and also voluntary agencies with a special reference to prevention, relief and rehabilitation.
5. The committee may co-opt other Members whenever necessary.
6. The TA/DA for non-official members will be paid by the State Government as per admissible Rules.
7. The tenure of the committee shall be for a period of one year from the date of issue of this order which may be extended by the State Govt., if necessary...
6. From the facts as mentioned above, it thus emerges that the committee did not come into existence all of a sudden. The State Government in its wisdom constituted the committee as far back as on 1998 but for reasons indicated earlier there was an impasse in the functioning of the committee. The matter was finally taken into consideration by the competent authority in the month of March, 1999 for reactivating and invigorating the committee. The note dated 12.3.99 and 20.3.99 and the other connected notes did not indicate anything about the individual concerned to fill up the post. Till the noting of the concerned authority dated 26.3.99 it was only concerned with the filling up of the post without having in its mind of any individual person. The Office note only indicated about the essential duties and responsibilities to the Committee till it finally decided to fill up the post through a senior most officer of a Department. The duties and functions indicated in the notes in no uncertain terms expressed that the office is of enormous importance for preparing a scheme for flood control. The duties and responsibilities are already clarified in the notes and orders. At any rate, it is not inferior in status and responsibility of those of a Chief Engineer.
7. No Government Servant under Rule 15 of the F.R. can be transferred from one post to another substantively or appointed to officiate a post carrying less pay then the pay of a permanent post on which he holds a lien or hold a lien had his lien not been suspended under Rule 14. The Petitioner at the relevant time was holding the lien in the post of Chief Engineer. The Government was well within its authority to transfer him to any other post or appoint him to officiate in an equivalent post. The post of Chief Engineer-cum-Chairman was created for the purpose enumerated in the Notification to discharge higher duties and responsibilities. As pointed out earlier, the Committee was not constituted all of a sudden. The State Government took a conscious decision as far back as on July, 1998 and in fact, for that purpose,"appointed an IAS officer as Chairman of that Committee. A Government employee who holds a particular office or cadre can be transferred within the range of its transferability. Fundamental Rule IS does not indicate that an employee possess a vested right to continue in one particular post in all the time. The rule envisioned for transfer of an officer to another post within the same cadre so much so that his lien is only to hold substantially a permanent post to which he was appointed. Mr Phukan, the learned senior Counsel, is no doubt right in his submission that the form of the order is not the guiding factor. It is for the court to look to this substance by tearing the veil of deceptive innocuousness and to see what exactly motivated the transfer.
8. In the instant case, the order of the Respondents directing the Petitioner to assume the charge of Chief Engineer-cum-Chainnan is seemingly uncalled for. There is no justification for relieving a senior officer in that fashion in the facts and circumstances of the case. However, on that count alone, the earlier order passed by the authority in posting the Petitioner as the Chief Engineer- cum-Chairman, shall not be vitiated. In view of the facts and circumstances set out above, the impugned order cannot be labelled as arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
9. Mr Phukan, the learned Senior Counsel, however, submitted that the Petitioner was not given any office or staff under him to undertake the task reposed on him by the order. Mr N.N. Saikia, the learned Advocate General for the State of Arunachal Pradesh, however, has submitted that these are the matters which are to be worked out by the State Government and since the State Government is keen with the Project matter, it will extend its all necessary assistance to the Petitioner to enable him to function effectively and more meaningfully.
10. In view of the assurance made by the Advocate General for the State of Arunachal Pradesh, there cannot be any legitimate grievance of the Petitioner on that count. It is expected that the State Government will do the needful and take necessary measure to remove the grievance of the Petitioner in that regard and demonstrate itself as the ideal epitome of a model employer by clearly defining the duties and responsibility of the officer who is acknowledged by the Respondents as a competent officer. It is not the man who matters in the affairs of the State but what it matters is the public good and public interest. It is the thought, that courts. Hope and trust that the proposed scheme will deliver goods to the people of the area and wipe away the tears of the millions. Hope springs eternal in the human breast.
11. For the reasons stated above, the writ petition stands dismissed. Any interim order passed by this Court, shall stand vacated. Considering the facts situations, there shall, however, be no order as to costs.
