G.C. Bharuka, J.
1. The petitioner has filed this writ application for quashing the notification No. 181, dated 17-3-1993 (Annexure '1') issued by the Director (Administration)-cum-Deputy Secretary, Bihar in the Human Resources Development Department to the extent by which the petitioner has been transferred from the post of Principal Patna Collegiate School, Patna (hereinafter referred to as 'Collegiate School' only, for brevity) to the post of Principal, Government High School, Gulzarbagh, Patna and respondent No. 3 , Sri Jamuna Prasad Singh, an Assistant Teacher in the former school has been made the Principal thereof,
2. The petitioner who holds M. Sc. Degree is an Assistant Teacher in Bihar Subordinate Education Service (Upper Division). His date of appointment is 13th November, 1958, Admittedly the petitioner is senior to respondent No. 3 and according to the petitioner his promotion to the regular cadre of Principal, had fallen due in 1985 itself. Keeping in view his seniority the petitioner has been entrusted the function of the Principal in different Zila School since 1979 whereas respondent No. 3 so far has acted only as an Assistant Teacher. The petitioner had been acting on the post of Principal in Patna Collegiate Plus-II Zila High School since October, 1988. But by the impugned order he has been transferred to, act as Principal of a High School whereas respondent No. 3 has been allowed to act as Principal of Collegiate School.
3. Mr. Rajendra Prasad Singh, learned Counsel appearing for the petitioner has submitted that the impugned action of the respondent, authorities is contrary to administrative fairness and in substance amounts to penalising the petitioner at the behest of the private respondent No. 3 and his political hobnobbings inasmuch as the post in Plus-II Zila School like one the petitioner was holding is of Bihar Education Service Class-I whereas the post where the petitioner is sought to be transferred is a post in Bihar Education Service Class-II. On the contrary, as submitted, a person like respondent No. 3 who is much junior to the petitioner is being posted on the post of Principal of a Plus-II Zila School which is a post belong to higher cadre.
4. To substantiate the mala fides exercised by the respondents, the petitioner by way of supplementary affidavit has stated that the Establishment Committee as per the resolution dated 30th November, 1992 (Annexure '4') had resolved and recommended that the petitioner be transferred as Principal of Zila School, Muzaffarpur which is also a Plus-II High School, and respondent No. 3 should be transferred as Principal of Government School Kankarbagh, Patna. But the said recommendation of the Establishment Committee has been arbitrarily reversed by the Minister, Human Resources Development Department without there being any good reason for the same. It has further been stated that as per the enquiries made by the petitioner the concerned Minister has acted in the impugned manner to the prejudice of the petitioner at the instance of Sri Ram Jiwan Singh Singh, the Agricultural Minister who wanted to favour respondent No. 3. It has further been stated that since the petitioner is drawing salary in pay-scale of Rs. 2200-4000 it was incumbent upon the respondent to obtain approval of the Chief Minister for effecting impugned transfer but the same has not been obtained.
5. Counter affidavit has been filed on behalf of the respondent-State and its officers as well as the private respondent No. 3. The Director (Administration) has in substance stated that the proposals for promotion of the Assistant Teachers to the post of Principal has already been recommended to the Bihar Public Service Commission on the basis of provisional gradation list prepared in 1989 but the matter is still pending. According to him, transfer of the petitioners being a routine transfer no approval of Chief Minister was required. Respondent No. 3 has not disputed the basic fact of inter se seniority but has stated various other facts with supporting documents only to show that he has all the competence for being appointed on the post of Principal of Plus-II High School.
6. On hearing the rival contentions and the materials placed before us we called for the original records to ascertain the reasons which had prompted the concerned Minister to effect alterations in the recommendations of the Establishment Committee. Accordingly, on 21-5-1993 the records were placed before us. From the said records it transpired that apart from the recommendation of the Establishment Committee it merely contains the order of the Education Minister for making alterations in relation to few transfers including the petitioner and that of respondent No. 3 without indicating any reason for the same. Accordingly, the case was again adjourned to enable the respondents to place on records the reasons which pursuaded the authority concerned not to act in accordance with recommendation of the Establishment Committee. But no further counter affidavit was filed disclosing the reasons and, accordingly, on 2-7-1983 after hearing the arguments on the basis of materials on record, the orders were reserved.
7. Now the question that falls for our consideration is as to whether the Minister-in-Charge can alter the recommendations of the Establishment Committee pertaining to transfers without assigning any reason for the same as if it lies in his absolute discretion and the said power can be exercised at his whims and fancies.
8. For examining the aforesaid question I may first refer to the constitutional provisions and Rules of Executive Business framed thereunder. Admittedly the petitioner is a Government servant and his post is a transferable one. Naturally the State Government can transfer him from one place to another keeping in view the administrative exigencies and on other relevant considerations.
9. Article 166(2) of the Constitution provides that the Governor shall -make Rules for more convenient transaction of the business of the Government of the State and for the allocation among the Minister of the said business. Sub-rules (3) and (4) of Rule 22 of the Rules of Executive Business provides as under:
(3) Proposals regarding transfer/posting and deputation of officers other than those mentioned in Rule 32(ix), (ix) (i) and (ii), whose maximum pay in the pay-scale exceeds Rs. 2,900 but does not exceed Rs. 4,500 shall be placed before the Minister-in-charge through the Departmental Commissioner and Secretary for orders along with the recommendations of the Establishment Committee constituted of different Departments in accordance with Cabinet Secretariat's Resolution No. 3918, dated the 26th October, 1980.
(4) Proposals for the transfer/posting and deputation of officers other than those mentioned in Sub-rule (3) above whose maximum pay in the pay-scale exceeds Rs. 4,500 but does not exceed Rs. 5,000 shall be placed for orders before the Committee constituted as follows, along with the recommendations of the Establishment Committee, mentioned above:
(i) Chief Minister.
(ii) Minister-in-charge of the Department.
The Chief Secretary will be the Secretary of the Committee.
10. The Cabinet Secretariat Resolution No. 3918, dated 25th October, 1990 inter alia provides for the formation of the Establishment Committee and the procedures as also the general policy pertaining to transfers and postings. Para 2 of the said resolution provides as followed:
2. The duration of posting on any post and at any particular place will generally be for a period of three years. For some posts or places the period of posting may, however, be kept for two years which should be specified by the Department by standing orders.
11. Under the constitutional scheme as is evident from Article 161 to 166 of the Constitution of India, the executive business of a State has to be transacted by the Governor with the aid and advice of the Ministers-in-Council. For convenient transaction of the said business Clause (3) of Article 166 provides that the Government may frame rules of executive business. Accordingly, the Rules of Executive Business as referred to above have been framed. From Rule 22(3) of the Rules quoted above it is quite clear that the Minister-in-charge gets the authority to pass appropriate orders regarding transfer/posting and deputation of officers of the category mentioned therein only after the recommendations in this regard are made by the Establishment Committee constituted as per the Government Resolution referred to above. It has to be borne in mind that the Minister-in-charge has no inherent power derived just by virtue of his holding office, of transfer or posting of any particular officer. The source of his said power flows from the Rules of Executive Business. Therefore, exercise of such power has to be necessarily in compliance to the requirement laid down under the said Rules. It is well settled that the provisions conferring power of jurisdiction has to be strictly construed and has to be taken as mandatory in nature. In the case of Haridwan Singh v. Bagun Sumbrui : [1972]3SCR629 it has been held by the Supreme Court that:
15. Where however, a power of authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (See Maxwell, Interpretation of Statutes, 6th Edition, pp. 649-650).
12. At this stage it is essential to refer to a decision of this Court in the case of Mann Singh v. State of Bihar reported in 1982 BBCJ 382 wherein a question similar to one under consideration had fallen for decision. In this case the petitioner, who was a District Transport Officer, had had been transferred from Ranchi to Munger. This order was inter alia challenged on the ground that the said order of transfer was made under the orders of Minister in-charge without obtaining the recommendation of the Establishment Committee. This Court by referring to the Government Resolution dated 1-11-1980 took the view that the procedures and policies contained therein are directory in nature since those pertain to public duties. By referring to various authorities it was held that declaring the Government instruction as mandatory may jeopardise the very administrative machinery of the Government because in every order of transfer some lacuna or other can be located. Accordingly, it was held that the strict compliance of the procedure laid down in the Circular including that relating to the recommendation of the Establishment Committee cannot render the order of transfer as invalid.
13. Admittedly in Mann Singh's case (supra) the attention of this Court was not drawn to Rule 22(3) of the Rules of the Executive Business noticed above and, therefore, the Court had no occasion to consider the import of the said Rules which does not pertain to the public duties but relates to the power of transacting a particular governmental business namely transfer of its servants. As such the provision has to be taken as mandatory. Therefore, any order, passed by the Minister-in-charge in absence of recommendation of the Establishment Committee regarding transfer/posting and deputation of officers has to be held as invalid in law. The contrary view taken in Mann Singh's case to the said extent only is declared as in percuriam since in this case the Court did not take into consideration the relevant Rules of Executive Business framed under the provisions of the Constitution.
14. In the case of Kailash Bihari Prasad v. State of Bihar 1992 (1) PLJR (Paragraph 6) it has been held by this Court that the recommendation of the Establishment Committee is not binding on the Minister-in-charge who will be well within his competence to make such alteration/modifications which were necessary in public interest and in the best interest of. the administration. I respectfully agree with the proposition for the present case. Nonetheless what remains to be considered and is of more importance in the fact of the present case is, whether the Minister-in-charge can make alterations and/or modifications in recommendations of the Establishment Committee regarding transfers and postings even without assigning any reason and whether exercise of such a blatant discretion can be said to be valid within the ambit of Articles 14 and 16 of the Constitution of India.
15. In the case of E. P. Royappa v. State of Tamil Nadu : (1974)ILLJ172SC it has been held by the Supreme Court that:
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 situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice, in fact the latter comprehends the former.
16. Further, in the case of B. Varadha Rao v. State of Karnataka 1986 SC 1955 (pr. 5) it has been held that:
It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated.
17. Therefore, the principle that emerges is that even in the matters of transfers and posting of Government servants, one may concede to a subjective element in the discretion vested with the Minister-in-charge so as to empower him to make alteration in the recommendations of the Establishment Committee but the Minister must act reasonably and in good faith, and upon proper grounds in case of deviation from the recommendations of the Establishment Committee which must be discernible from the official records. If the action of the Minister is challenged on the grounds of mala fide, the issue becomes justiciable. In case of such challenges, it becomes incumbent upon the Minister concerned to justify his action by placing on record the reasons which prevailed upon him necessitating modification/alteration in the recommendations of the statutory Establishment Committee. It is then only that it can be adjudged whether such grounds were good and germane to the exercise of power keeping in view the requirement of fairness embodied under Articles 14 and 16 of the Constitution.
18. In the present case as noticed above, despite repeated opportunities the respondent-Minister has failed to file any counter-affidavit disclosing the reasons which led to non-acceptance of recommendations of the Establishment Committee in respect of transfer and posting of the petitioner. The original records which were placed before us also do not contain any reason whatsoever. On facts ex facie the grievance of the petitioner seems to be genuine that in normal course he being one of the seniormost person in the cadre having rich experience of discharging the functions of a Principal ought to have been posted in a plus 2 school. In my opinion, these reasons by themselves are enough to vitiate the impugned order of transfer and posting of the petitioner. Therefore, I need not enter into other grounds of mala fides based on political interference and other extraneous matters as alleged by the petitioner.
19. Accordingly, the impugned order (Annexure-1) to the extent it relates to the petitioner and respondent No. 3, is quashed. It will be open for the respondent-State authorities to pass fresh order regarding transfer and posting of the said teachers in accordance with law. There will be no order as to costs.
Gurusharan Sharma, J.
20. I agree.