WP(C) No.231 (AP) /2011

IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND.MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)

WP(C) No.231 (AP) /2011

1. Smti. Jayenti Pertin, W/o Sri. Yashik Pertin, LDC of Deputy Commissioner’ Office, Anini, P.O.Anini, P.S. Anini, Dist.Dibang Valley District.

2. Shri Makhan Lal Nath, S/o M.C. Nath, LDC of Deputy Commissioner’ Office, P.O.Anini, P.S. Anini, Dist.Dibang Valley District. (common cause)

: Petitioners

-VERSUS-

1. The State of Aurnachal Pradesh, Represented by the Chief Secretary, Govt. of Arunachal Pradesh, Itanagar-791111.

2. The Secretary (District Administration), Govt. of Arunachal Pradesh, Itanagar-791111.

3. The Deputy Commissioner, Dibang Valley District, Anini, Arunachal Pradesh.

4. The Deputy Commissioner, Lower Dibang Valley District, Roing, Arunachal Pradesh. : Respondents

PRESENT THE HON’BLE MR JUSTICE P.K. SAIKIA

For the Petitioners : Mr. A Mannon, : Mr. TC Chutia, : Mr. BD Swema, : Ms.H Chutia, : Mr DK Roy, Advs

For the Respondents : GA, Arunachal Pradesh.

Date of hearing : 29.08.2012.

Date of Judgment and Order : 07.12.2012

JUDGMENT AND ORDER (CAV)

This proceeding was filed by writ petitioners seeking releifs as follows:-

“Under the facts and circumstances as stated above, it is prayed that your Lordships would be graciously be pleased to admit this petition, call for the records, issue Rule calling upon the respondents to show cause as to why a Writ in the nature of Mandamus shall not be issued directing the Respondents to transfer the petitioners from Anini to Roing by implementing the Govt. Scheme/Policy dated 15.06.07 (Annexure-4) within specified time frame in the matter of transfer and posting of Ministerial staff to the newly created Lower Dibang Valley District, Roing which has been provided by the scheme dated 15.06.07, taking into the length of services rendered by the petitioners at Hard Place, Anini and also on the medical grounds and/or after perusal of the records and hearing the parties make the rule absolute and/or pass order or orders or appropriate direction as your Lordships may deem fit and proper.

And for this act of kindness petitioners shall ever pray.”

2. Heard learned counsel for the petitioner as well as learned counsel for the

State respondents.

3. The brief facts necessary for disposal of the present proceeding are that erstwhile Dibang Valley District, Arunachal Pradesh was bifurcated into 2(two) districts, namely; Dibang Valley District with Headquarter at Anini and Lower

Dibang Valley District with Headquarter at Roing with effect from 16.12.2001.

The area within the administrative district of Anini has been termed as Hard Area while places covered by Roing District was called as Soft Area.

4. Districts were termed as aforesaid depending on the surface conditions, landscape, geographical location, accessibility to such place from other areas as well as infrastructural availability in such place. Anini District is treated as Hard place due to difficult topography, peculiar geographical situation and lack of proper infrastructure including adequate transportation and other related facilities. On the other hand, Roing District is termed as Soft Area due to its easy accessibility from all the places and also for its geographical position , surface conditions and infrastructural availability which are far more people friendly.

5. The bifurcation of erstwhile district of Dibang Valley caused a lot of administrative problems, more particularly in regard to bifurcation of ministerial and Grade-IV staff. On earlier occasions, whenever a district is bifurcated,

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ministerial staff working in the establishment falling under the newly created district stood automatically transferred to the new district and the Government too issue independent notification effecting transfer and posting of ministerial staff into the newly created district “as is where is basis”.

6. The principle “as is where is basis” which is followed till the time of bifurcation of erstwhile Dibang Valley District, as stated above, has, however, caused widespread resentment amongst those ministerial staff who were posted within the jurisdiction of newly created Anini District since the fear of their being posted in difficult places for all times to come, now, looms largely on them. On the other hand, those persons who were lucky enough to be posted in Soft Area of Roing were likely to stay in such area indefinitely.

7. In order to do justice to large section of ministerial staff in matter of transfer and posting in view of bifurcation of District of Dibang Valley to 2(two) new Districts, the Government of Arunachal Pradesh issued the letter dated

27.02.2002 which was addressed to Deputy Commissioner, Dibang Valley

District, Anini and Deputy Commissioner, Lower Dibang Valley District, Roing and it gave necessary guidelines in the matter of cross transfer and posting of ministerial staff in the districts aforesaid.

8. It has been alleged that some of the employees posted in Roing District apprehended their transfer to the Hare Area in the wake of implementation of the guidelines, incorporated in letter dated 27.02.2002 and as such, they preferred a writ petition before this court which has been registered as WP(C) 3134/04 challenging the decision of the Government to effect the cross transfer of ministerial staff. High Court initially granted stay order as sought for by petitioners therein.

9. However, some parties, aggrieved by such stay order, got themselves impleaded as parties having filed a miscellaneous proceeding. This court, vide its order dated 23.12.2004, dismissed the aforesaid writ petition holding that the

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Government was competent enough to evolve a policy in matter of transfer and posting of Group-C and Group-D employees of the erstwhile Dibang Valley

District. The said decision was challenged in the appeal vide WA No. 42/2005 and 43/2004.

10. The Division Bench of this High Court before whom the appeals were so laid, dismissed the appeal on hearing the parties affirming the judgment of single judge, passed in WP(C) 3134/04. The matter was ultimately carried to Apex

Court of the country. However, the Special Leave Petition filed before Hon’ble

Supreme Court of India challenging the decision of the Division Bench rendered in WA 42/2005 and 43/2005 was also dismissed.

11. In the meantime, the Government introduced a new scheme dated

15.06.2007 for bifurcating the joint (Ministerial) cadre of Lower Dibang Valley

District and Dibang Valley District. The new scheme prescribes some guidelines and parameters for affecting cross transfer in best possible way taking into consideration the interest of persons affected by such transfer.

12. However, the employees of Lower Dibang Valley District again filed another round of writ petition vide WP(C)263(AP)2007 challenging the new policy or scheme dated 15.06.2007. The proceeding was contested by all the parties who are likely to be affected by the decisions of the court rendered in the aforesaid proceeding. After hearing the parties thereto, this court vides its judgment dated 14.05.2007 not only rejected the prayer made in the aforesaid proceeding but also directed the Government to implement the new policy with the following direction.

“21. In view of above, the writ petition stands disposed of by dismissing the challenge made by the writ petitioners to the right and authority of the State Government to notify the impugned order dated 15.06.2007 and also the legality of the new scheme. At the same time, having regard to the facts noticed above, it is directed that the scheme notified on the transfer and posting of Ministerial Staff of the two bifurcated soft and hard districts would be implemented only after an appropriate clarification is issued by the Government with regard to those areas which should be construed as middle belts for allotment of marks under the impugned order dated 15.06.2007. The shall be no order as to costs.”

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13. However, not being able to stall the implementation of the new policy vis-à-vis cross transfer of ministerial staff of erstwhile Dibang Valley district, some employees with vested interest started visiting the corridors of powers and they were to a great extent succeeded in stalling the transfer process over a long period of time presumably with the blessing of their political masters. However, in that process, the genuine employees who deserve to be transferred to Soft Area for their working in hard place over a long period of time suffer enormous suffering, hardship and above all injustice.

14. The petitioner No. 1 & 2 , they claim, are also employees, who, under the new policy, deserve to be transferred from Anini to Roing for their being posted in difficult area over a very long period of time. Since the State Government has done nothing to implement the policy aforesaid causing great suffering to employees who continues to be posted in hard place for unreasonably long period, they are compelled to approach this court with a writ petition requesting this court to issue necessary direction requiring the State respondents to transfer them from Anini to Roing in the terms of policy in Office Memorandum dated

15.06.2007.

15. In that connection, it has also been pointed out that three posts of LDA and three posts of UDA are still lying vacant in Roing District to be filled up by employees transferred on deputation for a period of two years on rotation basis.

It has also been contended that the petitioners were already recommended by

Deputy Commissioner concerned way back in 2009 proposing their transfer to

Roing on deputation for a period of two years on rotation basis and in that list, their names appear at serial No. 1 & 2 respectively.

16. But despite above being the situation, petitioners were not transferred on deputation to Roing, much less the State respondents transferring to soft place on regular basis. Therefore, petitioners have approached this Court requesting to issue necessary directions to the Government requiring them to implement the

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transfer policy so that the employees posted at Hard Area could get an opportunity to work at Soft Area and vice versa.

17. The petition was opposed by the State respondents having filed counter affidavit. In their counter affidavit, it has been stated that 7(seven) number of

LDCs and 7(seven) number of UDCs were transferred from Roing to Anini in compliance with the policy, incorporated in Office Memorandum dated

15.06.2007. On the other hand, 10(ten) UDCs and 10(Ten) LDCs were also transferred from Roing to Anini. While all 7(seven) LDCs who were transferred from Anini to Roing had joined immediately, 3(three) UDCs transferred from Anini to Roing had never joined in their new assignments at Roing.

18. Further, none of the UDCs or LDCs transferred from Roing to Anini have ever joined in their new assignments although in the meantime, a period more than ten years has passed by for which the which Deputy Commissioner, Anini had to recruit 7(seven) LDCs to meet the shortage of manpower under his establishment caused for transfer of 7(seven) LDCs from such establishment to

Roing. According to the State respondents, in view of aforesaid difficulties, 11 posts of UDCs and LDCs are to be created at Roing, number of LDCs there being 7 and the process for creation of such posts is said to be is in the final stage.

19. It is also the contention of the State respondents that 3(three) posts of

UDCs and 3(three) post of LDCs out of Roing strength are to be kept vacant to accommodate employees transferred from Annini on deputation on a rotational basis. The respondents have therefore, submitted that at the moment there is no vacancy even to fill up the post of LDCs at Roing on deputation basis. The relevant part of the statement made in the counter affidavit is reproduced below:-

“2. That before submitting the parawise reply against various averments made in the writ petition the deponent states the fact of the matter as follows:-

a) That after bifurcation two districts namely, Dibang Valley, Deputy Commissioner, Roing was requested to furnish requirement of manpower/posts for settlement of cadre bifurcation cases. Accordingly,

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DC, Roing has intimated as follows vide No. LDR-ESTT-III-2010- 11/2317, dated 15th May 2010.

1. Total number of sanctioned LDC post = 16(sixteen) nos.

2. Total number of sanctioned UDC post = 11(eleven) nos.

3. Total number of LDC vacant post = 1(one) Deputation vacancy.

4. Total number of UDC vacant post = 6(six) nos.

5. Total number of UDC post required to be created = 1(one) no.

6 Total number of LDC post required to be created = 7(seven) nos.

b) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

c) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

d) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

e) That after adjusting all vacant posts available with DC, Roing, one more UDC post and 7(seven) LDC posts are required to be created for the establishment of DC, Roing to settle the case once for all and hence is desired, a proposal prepared for placing before the Cabinet for approval for creation of above mentioned posts.

f) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

g) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

h) That after adjusting of 11 post staff at Roing, same number of posts, i.e. 4(four) posts of UDC and 7(seven) posts of LDC became vacant at Anini. However, at present there is no post vacant at Roing for adjustment of Anini on deputation.”

20. I have very carefully perused the pleadings of the parties and the connected documents, attached therewith. On making such an exercise, I have found that evidently and admittedly, a great amount of energy, time and resource were spent in finding a solution to the vexed problem of cross transfer and posting of ministerial and Grade-IV staff following bifurcation of erstwhile Dibang

Valley District. This is mainly for the reason that the ministerial staff who were posted in Soft Area were too reluctant to be transferred to Anini, termed as a

Hard Place due to its geographical, physical and administrative difficulties.

21. However, after a prolonged exercise, a policy dated 15.06.2007 was evolved which ultimately found the approval of High Court since said policy was put to challenge by section of employees who were going to be affected by the same. However, it is found apparent from the pleadings, more particularly pleading of the State respondents that such a policy was held hostage to the evil design of the some of the unscrupulous employees and the Government too could do nothing except becoming a helpless spectator to all those machinations.

22. I am constrained to entertain such a view but the chain of events as disclosed in this proceeding compelled me to come to such a conclusion since some of the employees of Roing area who were transferred almost ten years back, and that too in pursuance to a policy, evolved with so much of effort in matter of cross transfer of ministerial employees working in Soft and Hard Area, remain posted in the same area, presumably taking shelter under some political patronage. It is evident from the paragraphs-6 & 7 of the counter affidavit which are reproduced below:-

“6. That with regard to the statement made in Paragraph-20 of the writ petition, the deponent states that out of 6(six) UDCs and 7(seven) LDCs transferred from Anini to Roing vide order dated 23.06.09, 4(four) UDC and 7(seven) LDCs released from Anini and joined at Roing. One UDC submitted his willingness stay at Anini and one yet to release. The transferred employees of Roing approached the Govt. for consideration of their transfer from Roing to Anini. Accordingly, the Govt. considered their retention at Roing and adjusted 4(four) UDCs and 7(seven) LDCs joined from Anini against the existing vacancy of Roing.

7. That with regard to the statement made in paragraph-21 of the writ petition, the deponent states that as per the terms and condition on OM dated 15.06.2007, a board was constituted to draw a list of employees to be considered for bifurcation between Roing and Anini. Accordingly, the board met at Roing and prepared a list of 10(ten) UDCs and 10(ten) LDC from Roing and 7(seven) UDCs and 7(seven) LDCs from Anini for transfere. 3(three) posts of UDCs and 3(three) posts of LDCs were kept vacant at Roing in order to consider the deserving statt amongst the employees of anini for deputation to Roing. The deputation period will be for 2(two) years. At present there is no post vacant at Roing for adjustment of staff from Anini on deputation.”

23. In my considered opinion, this is nothing but sad commentary on the performance of the Government since later is not in a position to compel its own employee to move out from their place of posting even after enjoying the benefit of being posted in Soft Area over a very long period of time depriving the similar benefit to the employees who continue to work in Hard Place facing massive hardships difficulties and problems over the years.

24. In view of above, this Court hopes and believes that the State respondents would not allow the scheme in question which was evolved after exercising enormous amount of study involving time, resources and energy to go down the drain. This Court also hopes the Government would no longer remain a silent spectator of its policy being violated by some unscrupulous section of employees, more so, when the State respondents were under an obligation to

implement the same in view of the directions rendered by this Court on

14.05.2008 in WP(C)263(AP)2007. However, in matter of cross transfer of employees, I find it not proper to say more considering the administrative problem involves in such exercise.

25. Coming to the contention that the State respondents are also not in a position to transfer the petitioners even on deputation basis for a period of two years, I have found that such a contention is not borne out by materials on record. The letter dated 08.07.09 addressed to one Toto Tayeng, UDC Anini by

Under Secretary (DA), Government of Arunachal Pradesh at Annexure-13 to the writ petition clearly shows that three posts of LDA and three posts of UDA are still lying vacant in Roing to be filled up on deputation for a period of two years on rotation basis.

26. Such a proposition stands confirmed even from the averments, made in paragraph-8 of the counter affidavit. What is more, the Deputy Commissioner

Dibang Valley District, Anini, vide his letter dated 09.07.09 at Annexure-12 to the writ petition, had recommended the transfer of petitioners along with others from

Anini to Roing on deputation for a period of two years on rotation basis. It needs to be stated that in the list ,so prepared by Deputy Commissioner, Anini, the petitioner’s names appear in Sl. No. 1 & 2.

27. Thus, in my considered view, despite there being vacant posts of LDA at

Roing to be filled up on deputation on rotational basis for a period of two years and despite petitioners being recommended for transfer to Roing by the concerned authority, the Government refused to carry out such proposal. Being so, in my considered opinion, the action on the part of the Government in not transferring the petitioners to Roing even on deputation for a limited period of two years is found to be arbitrary, whimsical and against all established norms and procedures.

28. Accordingly, I find that writ petition needs to be allowed accepting part of the prayer of petitioners. The State respondents are, therefore, directed to transfer respondent No. 1 and respondent No. 2 on deputation basis for a period of 2(two) years to Anini at the earliest preferably within a period of 1(one) month from the date of receipt a certified copy of this order.

29. With the above observations and directions, this writ petition is disposed of. No cost.

JUDGE

lk / V.Lyndem