L. Chaoba Singh vs State of Manipur and Others

N. Kotiswar Singh, J.—Heard Mr. H.S. Paonam, learned senior counsel for the petitioner and Mr. Y. Ashang, learned Government Advocate for the State respondents as well as Mr. Rosni Piba, learned counsel for the respondent No. 3.

The present writ petition has been filed challenging the transfer order dated 29.8.2014 issued by the Agriculture Department, Govt. of Manipur by which the petitioner who was serving as the Project Director of Agriculture Technology Management Agency (ATMA), Imphal East District was transferred as the Project Director (ATMA) of Tamenglong District.

According to the petitioner, the petitioner is serving in the substantive post of Assistant Agronomist in the Agriculture Department, Govt. of Manipur and pursuant to an advertisement No. 1 dated 7.5.2013 issued by the Agriculture Department, Govt. of Manipur inviting applications including for appointment on deputation in 9(nine offices) of Project Director of the ATMA, the petitioner applied for appointment as one of the 9 Project Directors of the ATMAs so advertised.

Pursuant to the aforesaid advertisement, the petitioner was selected as one of the candidates for appointment as Project Director on deputation which was notified vide order dated 1st October, 2013 issued by the Agriculture Department. As per the said order, the name of the petitioner appears at Sl. No. 6 and the name of the respondent No. 3 appears at Sl. No. 3 for being deputed as the Project Directors(ATMA). It may be noted that in the said order, the names of the particular districts to which the deputationists are to work are not mentioned. It was so mentioned only in the subsequent appointment order issued by the Agriculture Department on 20.11.2013. By the said order dated 20.11.2013, the petitioner has been posted as the Project Director of ATMA, Imphal East District whereas the respondent No. 3 has been deputed as the Project Director of Tamenglong District.

It is the case of the petitioner that though the petitioner had been deputed as a Project Director of ATMA, Imphal East District, the impugned transfer order has been issued on 29.8.2014 by which the petitioner has been transferred as the Project Director (ATMA), Tamenglong District, without his consent, and in his place, the respondent No. 3 has been transferred as the Project Director (ATMA), Imphal East District.

Though the petitioner had submitted a representation to the authorities for review/reconsideration of the said transfer order, since no positive response has been received, the petitioner has approached this Court by filing this writ petition.

One of the grounds in challenging this transfer order is that the petitioner has been sent on deputation as the Project Director of ATMA Imphal East District and as such, without his consent, he could not be posted to any other post. It has been submitted that at the time of issue of the deputation order dated 1.10.2013, it has been clearly mentioned that the terms and conditions of the deputation as prescribed in the Office Memorandum No. 7/10/81-DP(A) dated 18.8.1982 issued by the Department of Personnel and Administrative Reforms, Govt. of Manipur shall be strictly adhered to. It has been contended that in terms of the aforesaid Office Memorandum dated 18.8.1982, the term of the deputation of the petitioner could not have been varied to his disadvantage, without his consent.

That apart, it has been also submitted that the petitioner has been deputed to the Agriculture Technology Management Agency (ATMA), which is an autonomous society governed by its own bye-laws and rules and regulations and as such, the State respondents had no authority to issue any such transfer order. It has been submitted that once the petitioner has been brought on deputation to an autonomous body, only such autonomous body would be the authority to make any change in the deputation subject to his consent. It has been submitted that till the final deputation order dated 20.11.2014 was issued, the State Govt. had been paying the salary of the petitioner inspite of the fact that the general order of deputation had been already issued on 1.10.2013. It was only after the final deputation order was issued on 20.11.2013 that the salary of the petitioner was given by the society which clearly indicates that once the petitioner had been deputed as a Project Director of ATMA, Imphal East, his service condition would be governed by the rules and regulations and bye-laws of the said society and not by the State Govt.

It has been submitted that the Central Govt. had issued guidelines relating to the Modified Support to State Extension Programme for Extension Reforms Scheme of 2010, under which to these autonomous societies have been constituted. Para No. 2.2 of the said Guidelines provides the mode of recruitment. It has been provided in para No. 2.2 that all posts other than State Coordinators, BTM and SMS at Block levels and Computer Programmer (at State and District Level) may be filled on deputation/secondment/appointment/selection from among the eligible candidates in the Government Dept./organisation or the private sector for the scheme period or such other mode as the State Government may deem appropriate. Accordingly, in terms of the aforesaid Guidelines, the Government had adopted the method of deputation for filling up the posts including the posts of Project Directors and as such, having adopted the method of deputation which is governed by the Office Memorandum of the State Govt. dated 18.8.1982, no other method could have been adopted. As such, the petitioner who had been already appointed on deputation as the Project Director (ATMA) Imphal East could not have been transferred in the manner it has been sought. Accordingly, it has been submitted that the impugned transfer order is illegal having been issued without any authority on the part of the State Government and is liable to be set aside. In support of his contention, Mr. H.S. Paonam, learned senior counsel has relied on the decisions of the Hon''ble Supreme Court rendered in the case of General Officer Commanding-in-Chief and Another Vs. Dr. Subhash Chandra Yadav and Another, and Prasar Bharti and Others Vs. Amarjeet Singh and Others, .

In the aforesaid case of General Officer Commanding - in-Chief (supra), it has been held by the Hon''ble Supreme Court that the transfer of employees of one autonomous body to another is not permissible unless the service of employees is of centralised or of State level. In the case of Prasar Bharti (supra), it has been held by the Hon''ble Supreme Court that transfer is different from deputation and the order of transfer can be issued by the transferee organisation only and not by the transferor organisation.

In the present case, it has been submitted that all these 9 ATMAs are different and separate autonomous societies and independent of each other and as such, if a person is to be transferred from one autonomous organisation to another, the same can be done with the consent and knowledge of the autonomous organisations as well as the employee concerned. However, in the present case, neither the consent of the ATMAs of Imphal East District and Tamenglong district respectively were taken nor that of the petitioner, the employee. Accordingly, it has been submitted that in terms of the decision of the Prasar Bharti (supra), since the transfer has been effected from one autonomous organisation to a different organization, the same is not permissible as it would amount to deputation again and not transfer. Accordingly, it has been submitted by the learned senior counsel for the petitioner that the present transfer order cannot be held to be valid and accordingly, liable to be interfered with.

Mr. Y. Ashang, learned Government Advocate for the State respondents, however, has contended as mentioned in para No. 5 of the affidavit-in-opposition of the State respondents that at the time of initial advertisement for appointment to the posts by deputation, no specific ATMA was mentioned to which the deputationists were to be deputed. Instead, the deputation was meant for all the 9 ATMAs and the State Government was competent to depute the eligible candidate/deputationist to any of these ATMAs. Thus, when the initial order of deputation was issued on 1.10.2013, there was no mention of any specific district as regards the deputationists. The State respondents, accordingly, after proper application of mind, issued the order on 20.11.2013 by which the deputationists were deputed to specific ATMAs. It has been also submitted that the terms and conditions of deputation as provided in the Office Memorandum dated 18.8.1982 has not been violated as the deputation of the petitioner has not been shortened. The petitioner continues to be on deputation. The only difference is that he has been deputed by way of transfer to another ATMA and as such, it was within the competence of the authority to issue such a transfer order. Mr. Y. Ashang, learned Government Advocate also referring to para No. 2.2 of the Guidelines providing for mode of recruitment of ATMAs has submitted that the State Government was authorised to issue such a transfer order also. It has been also submitted by Mr. Ashang that under the relevant bye-laws and rules and regulations of the autonomous bodies and societies constituting the ATMAs no specific provision has been made relating to transfer and posting of the employees working in the societies and since the appointment was made by the State respondents, it was competent to issue the transfer order also. Mr. Y. Ashang has submitted that Section 21 of the General Clauses Act, 1897 provides that power to issue order also includes the power to add to, amend, vary or rescind order.

In the present case, since the State Government was competent and authorised to pass the order of deputation, it could also issue orders amending or varying the said order as provided u/s. 21 of the General Clauses Act. Accordingly, it has been submitted that State respondent was competent to issue transfer order.

Mr. Rosni Piba, learned counsel for the respondent No. 3 has submitted in similar lines and has pointed out that the State respondent was competent to issue the transfer order.

In response, Mr. H.S. Paonam, learned senior counsel has submitted that the regulations governing society clearly empowers the Managing Committee to take all such actions as it may deem fit for the administration of the society and since transfer and posting of the Project Director was within the purview of the administration, it was only the Managing Committee which was competent to issue any order regarding transfer and posting and since the same had not been done but by the State respondents, the impugned order is liable to be interfered with.

Heard the learned counsel for the parties and also perused the materials on record.

The issue essentially pertains to the authority of the State Government to issue the impugned transfer order which has been challenged by the petitioner as not competent to do so. Therefore, the question is whether the State Government was competent to issue such a transfer order or not. In the present case, as evident from the records, the method of recruitment has been clearly laid down in the guidelines issued by the Central Government, regarding which, there is no dispute by any of the parties. Therefore, this Court will proceed with the Guidelines issued by the Central Govt. as one of the sources of powers for any of the parties regarding the method of recruitment. Therefore, this Court would reproduce the relevant portion of the aforesaid Para. No. 2.2 of the Guidelines, which reads as follows:-

"2.2. MODE OF RECRUITMENT:

(i) The post of State Coordinators, BTM and SMS at Block level and Computer Programmer (at State and District Level) are to be filled on contract basis with lump-sum remuneration. All other posts may be filled by deputation/secondment/appointment/selection from among eligible candidates in the Government Department/Organisations or the private sector for the scheme period or such other mode as the State Government may deem appropriate............ " The aforesaid Para No. 2.2 provides as mentioned above, that all other posts other than State Co-ordinator, BTM and SMS at Block level and Computer Programmed (at State and District Level) are to be filled by deputation/secondment/appointment/selection from among eligible candidates in the Government Department/Organisations or the private sector for the scheme period or such other mode as the State Government may deem appropriate. Para No. 2.2 thereof therefore provides various modes of recruitments. One such method is deputation, which was invoked by the State authorities for appointment of the Project Director in different ATMAs. To that extent, there is no dispute. The dispute has arisen when the impugned transfer order has been issued. It is the case of the petitioner that the State authority has no right to issue such a transfer order as the same is not permissible under the Office Memorandum governing deputation of Government employees.

On the other hand, it is the stand of the State respondents as well as the private respondent that the State Government is indeed empowered to issue the transfer order.

The contention of the petitioner is based on the premise that ATMAs are autonomous societies governed by their own rules and regulations and bye-laws of which there is no reference to the State Government except to the fact that the Chairman of the Governing Body is the Deputy Commissioner of the District. Nothing is mentioned in the bye-laws allowing the State Government to issue such transfer order. The other premise is that since the petitioner has been appointed on deputation as Project Director of Imphal East District, his service conditions will be governed by the Office Memorandum governing the terms and conditions of deputation. It has to be remembered that ATMAs are created under the aforesaid guidelines. Guidelines issued by the Central Government seem to be principal source of power of the authorities involved in the implementation of the said Scheme of which ATMA is one of the implementing agencies. In the said Guidelines, the role of the State Government has been clearly laid down. In respect of the mode of recruitment, it has been clearly provided in para No. 2.2 as mentioned above. The mode of recruitment, as referred to above, provides for appointment by way of deputation/secondment/appointment/selection from among eligible candidates or "such other mode" as the State Government may deem appropriate. Therefore, the Guidelines enable the State Government to resort to any such method/mode as the State Government may deem appropriate. The question therefore arises whether the power of transfer would be another method of appointment. This Court is of the view that the power of transfer would be covered by the expression "such other mode" as provided in Para No. 2.2 of the Guidelines. In that view of the matter, since the Guidelines which is the principal source of power for all the authorities under the Scheme, which provides for all methods of appointment, as mentioned above, this Court is of the view that State Government would also have the power of transfer. The ATMAs are societies and governed by their respective bye-laws and rules and regulations, yet, these are functioning under the Scheme and the bye-laws and rules and regulations of the societies could not be placed above the Guidelines as these societies are creatures of this Scheme constituted under the Guidelines. Hence, the guidelines of the Scheme would have an overriding effect, being the principal source of authority. Therefore, if this Court takes the view that Guidelines or Scheme have an overriding effect, the power of State Government to transfer employee cannot be denied. The bye laws, rules and regulations of the societies will be subservient to the provisions of the Scheme as contained in the Guidelines. Therefore, since Para No. 2.2 of the Guidelines enables the State Government to resort to all methods of appointment, which would also include, the power of transfer, this Court is of the opinion that the State Government cannot be said to be without authority or power to issue the transfer order.

Though the ATMAs of the districts may be autonomous having independent rules and regulations, all these ATMAs are functioning under an integrated Scheme governed by the Guidelines as mentioned above. Hence, the State Government which has been given the sole authority to make recruitment as regards the posts including the Project Director would be competent to issue order of transfer of the Project Directors. Hence, the decision cited by the petitioner in General Officer Commanding -in-Chief (supra) will not be applicable in the present case. Further, as regards the decision in Prasar Bharati (supra), since the State Government has the power to make appointment by way of transfer, in addition to by way of deputation as provided under para 2.2 of the Guidelines, the said decision will also not be applicable. In the present case, the State Government has invoked the power of appointment both by deputation and by transfer.

In that view of the matter and for the reasons discussed above, there is no merit in the writ petition and the same is dismissed. Interim order, if any stands vacated.