Ajit Dutta vs State of Assam and Others

A.K. Patnaik, J.—In this application under Article 226 of the Constitution, the Petitioner has challenged the order dated 27th May, 1998 of the Government of Assam in the Agriculture Department under which he was transferred from the post of Quality Control Officer (Pesticides) to the post of Assistant Agronomist (FP), Musalpur, Nalbari, and the Respondent No. 3 was posted in place of the Petitioner as Quality Control Officer (Pesticides).

The main ground of challenge is that under notification dated 15.6.82 issued by the Government of Assam in the Agriculture Department under inter alia Section 19 of the Insecticides Act, 1968 (for short, ''Act, 1968), Quality Control Officer (Insecticides) has been appointed as Insecticides Analyst. Accordingly, any person posted as quality control officer must have the qualifications as prescribed under Rule 21 of the Insecticides Rules, 1971, for an Insecticides Analyst. Under the said Rule 21 of the Insecticides Rules, 1971 (for short, "Rules, 1971") an Insecticides Analyst is not only to be a graduate in Agriculture or a graduate in Science with Chemistry as a special subject but must also have adequate training in analysing insecticides in a recognised laboratory. According to the Petitioner''s case while the Petitioner has adequate training in analysing insecticides in a recognized laboratory, the Respondent No. 3 does not have any training in analysing insecticides in a recognised laboratory and therefore cannot be posted as Quality Control Officer (Pesticides or Insecticides) as any such posting would affect the publice interest inasmuch as the Respondent No. 3 cannot work as Insecticides Analyst.

In view of the submission made by Mr. Roy that the Respondent No. 3 did not have the requisite qualification as prescribed under the Act and the Rules to function as Insecticides Analyst, by order dated 24.7.98. this Court directed that affidavit of an officer taking full responsibility for the statement that the Respondent No. 3 has the requisite qualifications under the Act and the Rules to act as Insecticides Analyst should be filed in Court, and pursuant to the said order, an affidavit of Sri Prasanta Kumar Buragohain, Under Secretary to the Government of Assam, Agriculture Department has been filed and in paragraph-7 of the said affidavit it has been stated that the Respondent No. 3 has the M.Sc. Degree (Agriculture) and has also obtained Doctorate degree in Horticulture and will undergo necessary training at the earliest opportunity like that of the Petitioner.

Mr. H.N Sarma, learned Additional Senior Government Advocate, Assam, relying on the aforesaid averments in the affidavit filed by Sri Prasanta Kumar Buragohain, submitted that the Respondent No. 3 has the necessary academic qualifications under the Rules to act as Insecticides Analyst and that the Petitioner did not have the necessary training at the time he was initially appointed as Quality Control Officer (Insecticides) and it is only after his appointment as such Quality Control Officer that he acquired the necessary training and similarly the Respondent No. 3 will also acquire the necessary training after his appointment as Quality Control officer and will be in a position to act as Insecticides Analyst. Mr. Sarma vehemently argued that the Petitioner having been appointed as Quality Control Officer without the necessary training cannot now oppose the posting of the Respondent No. 3 as such Quality Control Officer on the ground that he does not have the necessary training to act as Insecticides Analyst.

Mr. A.B. Choudhury learned Counsel appearing for the Respondent No. 3 while supporting the aforesaid arguments of Mr. Sarma further contended that no service rule relating to transfer has been violated in this case by transfer of the Petitioner from the post of Quality Control Officer and posting of the Respondent No. 3 in his place as such Quality Control Officer. He further submitted that the status of the Petitioner has not been in any way reduced by his transfer to the post of Assistant Agronomist and that so long as his rank has not been reduced and his pay is protected, the Petitioner can have no grievance against the order of transfer. He further contended that there is no malafide in transferring the Petitioner under the impugned order and in posting the Respondent No. 3 in his place as Quality Control Officer. He further contended that the post of Quality Control Officer was designated as Insecticides Analyst by notification dated 15.6.82 of the Agriculture Department and that it is not as if the Petitioner was appointed as Insecticides Analyst.

It is the settled position of law that an order of transfer cannot be interfered with by the High Court under Article 226 of the Constitution except on the ground that it is vitiated by malafide or is violative of statutory rules. In the instant case I do not find that there is any case of malafide made out by the Petitioner. But it appears that the posting of the Respondent No. 3 in place of the Petitioner as Quality Control Officer is in violation of the statutory provisions. Section 19 of the Act, 1968, and Rule 21 of the Rules, 1971 made thereunder are extracted herein below:

INSECTICIDE ANALYSTS : The Central Government or a State Government may, by notification in the Official Gazette, appoint persons in such number as it thinks fit and possessing such technical and other qualifications as may be prescribed to be insecticide Analysts for such areas and in respect of such insecticides or class of insecticides as may be specified in this notification:

Provided that no person who has any financial interest in the manufacture, import or sale of any insecticide, shall be so appointed.

QUALIFICATIONS OF INSETI-CIDE ANALYST- A person shall be eligible for appointment as an Insecticide Analyst under the Act only if he possesses the following qualifications, namely:

(a) a graduate in Agriculture or a graduate in Science with Chemistry as a special subject, and

(b) adequate training in analysing insecticides in a recognised Laboratory.

Section 19 of the Act, 1968, quoted above, would show that the State Government can appoint persons in such number as it thinks fit and possessing such technical and other qualifications as may be prescribed to be Insecticide Analysts for such areas and in respect of such insecticides or class of insecticides as may be specified in the notification. In exercise of the said powers u/s 19 of the Act, 1968, the State Government has issued the notification dated 15.6.82 appointing Quality Control Officer (Insecticides) as Insecticides Analyst for the whole of Assam. It is nobody''s case that the said notification dated 15.6.82 has either been withdrawn or amended. Rule 21 of the Rules, 1971, quoted above would show that a person to be appointed as Insecticides Analyst is not only to be a graduate in Agriculture or graduate in Science with Chemistry as a special subject but must also have adequate training in analysing insecticides in a recognised Laboratory. The Respondent No. 3 is a graduate in Agriculture and has also the PG Degree and Doctorate in Horticulture and therefore has the necessary academic qualifications to act as Insecticides Analyst. But, admittedly, the Respondent No. 3 has not undergone training as yet in analysing insecticides in a recognised laboratory. Therefore, he does not have the statutory qualification to act as Insecticides Analyst as prescribed by Rule 21 of the Rules, 1971. Thus, so long as the notification dated 15.6.82 issued by the State Government under inter alia Section 19 of the Act, 1968 is in force to the effect that the Quality Control Officer (Insecticides) will act as an Insecticides Analyst for the whole of Assam. The Respondent No. 3 if posted as Quality Control Officer (Insecticides), cannot act as Insecticides Analyst under the provisions of the Act, 1968 and the Rules, 1971. In other words, the posting of Respondent No. 3 as quality control officer (Insecticides), who has to ex-officio act as Insecticides Analyst in terms of the notification dated 15.6.82 issued u/s 19 of the Act, 1968, would be in violation of the provisions of the said Act, 1968 and the Rules, 1971 made thereunder. Moreover, if as per the said notification, Act, 1968 and the Rules, 1971, the Quality Control Officer (Insecticides) is also to function as Insecticides Analyst for the whole of Assam and the Respondent No. 3 cannot function as such Insecticides Analyst on his being posted as Quality Control Officer, public interest would gravely suffer and the posting of the Respondent No. 3 as Quality Control Officer under the impugned order of transfer would also be contrary to the public interest. It is true as submitted by Mr. Sarma, learned Additional Senior Government Advocate, Assam, and Mr. A.B. Choudhury, learned Counsel for Respondent No. 3 that the Petitioner appears to have acquired the required training as prescribed under Rule 21 of the Rules 1971 only after his posting as Quality Control Officer and that the Petitioner cannot now raise a plea that the Respondent No. 3 does not have the necessary training at the time of posting as such Quality Control Officer under the impugned order, but when the posting of Respondent No. 3 is challenged before the court on the ground that it is contrary to the statutory provisions, the Court will have to decide the question on the basis of the statutory provisions and pass appropriate orders.

In the result, the impugned order dated 27th may, 1998 of the Government of Assam in the department of Agriculture in so far as it transfers the Petitioner from the post of Quality Control Officer and posts the Respondent No. 3 in his place as Quality Control Officer is quashed. It will however be open for the State Government to post any other person having requisite qualifications and training as prescribed under Rule 21 of the Rules, 1971 by afresh order of transfer in place of the Petitioner. It will also be open for the State Government to post the Respondent No. 3 in place of the Petitioner as Quality Control Officer after the Respondent No. 3 acquires the required training as per Rule 21 of the Rules, 1971.

With the aforesaid observations and directions, the writ petition is allowed. However, considering the entire facts and circumstances of the case, I leave the parties to bear their own costs.