Original Application No. 2799/2009. Case: A. K. Verma Vs 1. Union of India, Ministry of Railways, through Chairman, Railway Board, 2. Rakesh Chopra, Member (Engineering), 3. General Manager, Northern Railway, 4. Sri Prakash, Member Traffic. Central Administrative Tribunal
| Case Number | Original Application No. 2799/2009 |
| Counsel | Rajinder Khatter, H. K. Bajpai, V. S. R. Krishna |
| Judges | Dr. K. B. Suresh (Judicial Member) |
| Issue | Railway Establishment Code, 1985; Special Courts Bill, 1978; Constitution of India, 1950 - Articles 14, 72, 226, 323A |
| Judgement Date | May 06, 2010 |
| Court | Central Administrative Tribunal |
Judgment:
Dr. K. B. Suresh (Judicial Member)
This matter involves larger national interest of administrative hierarchy qua supremacy, responsibility and accountability and the relationship between the three arms of the State. It basically concerns the power and duty of discretion and exercise thereof.
In Mohambaram vs. Jayavelu 'reported in AIR 1970 Mad 63 at page 73, the Hon'ble High Court of Madras had made the following remarks: There is no such thing as absolute or untrammeled discretion, the nursery of despotic power, in a democracy based on the rule of law.
It is widely agreed that one reason for having constitutions is the need to restrict the exercise of power. Modern states are excessively powerful and are believed to have a monopoly of force and coercion. What if the institutions of such states fall into the wrong hands, who then abuse this power? Many believe that this is not just a hypothetical possibility but inherent in the exercise of power and therefore in the nature of states. Even if these institutions were created for our safety and well being they can easily turn against us. Experience of state power the world over shows that most states are prone to harming the interests of at least some individuals and groups. If so, we need to draw the rules of the game in such a way that this tendency of states is continuously checked. Constitutions provide the basis of rules and therefore prevent states from turning tyrannical.
This traditional reason is not the only one supporting constitutions. The framers of our Constitution were deeply aware of three other reasons, two of which were already known but had been systematically underemphasized and a third which they themselves helped shape. Traditionally, constitutions were meant to control the power of the state so as to enable people to live decently. But this ideal presupposes an unbridgeable distance between people and the state. It assumes a powerless people who need the help of law to control state power. But what if people themselves have power? What if the power of the state comes from an original power that resides in the demos the people? Why then would we need constitutions? Democracy, it might be argued, is an alternative to constitutionalism. State power might be limited not by some higher law but by the power of the people.
This is an attractive but flawed idea. It is flawed because in practice, power never really resides in all the people but largely in the majority. The tyranny of the non-democratic state of which individuals might be victims is replaced in democracies by the tyranny of the majority. If so, we need constitutions to check the tyranny of a majoritarian, democratic state. We need constitutions because they give us laws to protect not only individuals but also minority groups.
Moreover, constitutions are required not only to protect vulnerable individuals and groups but virtually everyone against human vulnerability in general. It is important not to forget that human being are fallible, that they sometimes forget what is good for them in the long run, and they yield to temptations which bring them pleasure now but pain later. It is not unknown for people to acquire the mentality of the mob and act on the heat of the moment only to rue the consequences of the decision later. By providing a frame work of law culled over from years of collective experience and wisdom, constitutions prevent people from succumbing to currently fashionable whims and fancies. Constitutions anticipate and try to redress the excessively mercurial character of everyday politics. They made some dimensions of the political process beyond the challenge of ordinary politics. The framers of the Indian Constitution were familiar with each of these three reasons for having a constitution. They understood that constitutions are needed both to check state power and majority tyranny and also to control the destabilizing swings generated by popular passion.
So far we have spoken of what constitutions dis-enable us from doing. However, constitutions also provide us with peaceful, democratic means with which to bring about profound social transformation. Moreover, for a hitherto colonized people, constitutions announce and embody the first real exercise of political self-determination. Nehru understood both these points well, The demand for a Constituent assembly, he claimed, represented a collective demand for full self determination, as only a Constituent Assembly of elected representative of the Indian people had the right to frame India's Constitution, without external interference. Second, he argued, the Constituent Assembly is not just a body of people or a gathering of able lawyers. Rather, it is a 'nation on the move, throwing away the shell of its past political and possibly social structure, and fashioning for itself a new garment of its own making.' The Indian Constitution was designed to break the shackles of traditional social hierarchies and to usher in a new era of freedom, equality, and justice. Inscribed in the intentions of the framers of the Indian Constitution was the potential of a breakthrough in constitutional theory; constitutions exist not only to disenable people in power but also to empower those who traditionally have been deprived of it. Constitutions give vulnerable people the power to achieve collective good.
Let me give two examples. The first is the relationship between individual and group rights. On the one hand, there is the view that political discourse in India is dominated by community rights. When the language of rights arrived in India and was adopted in an Indian context charged with strong community values, it got detached from its individualist moorings and was applied to communities. On the other hand, another view exists that a characteristically un-Indian Constitution imposed an individualist morality on a community-oriented Indian society and did not care even to recognize group rights. Does the Constitution prioritize individual rights or group rights? Even a cursory glance of the Constitution dispels both these misinterpretations. In India, both sets of rights were recognized and no clear guideline was provided for just when one is to override the other, and no general criteria were provided to resolve conflicts between the divergent types of rights. An attempt was made instead to balance them, with the scales tilting marginally in favour of individual rights.
Thus, the seeming problem of a transfer of an individual is on closer inspection, a reflection of a Constitutional situation. Now; where and how do we, as citizens place ourselves? As uninterested spectators/or part of the matrix of concerned citizenry?. Regard must be had to the fact that concerned this is a project which will ultimately swallow up at least Rs. 25,000/- crores of national wealth in the long run.
In this context the case before me has to be analysed.
Factual Matrix
This case basically relates to transfer. I am inclined to see it as not only concerning an individual but concerning the whole nation and in respect of the duty cast on me as a servant of the people. The respondents in their reply in para 3 has stated that who should be transferred where, is a matter for appropriate authority to decide. Unless the order is vitiated by malafide or is made in violation of any statutory provision the court cannot interfere with it. While ordering transfer, there is no doubt; the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally enforceable right. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in Service matters. This is evident from Art. 323-A of the Constitution as made clear by the decision of the Apex Copurt in the case of S.L. Abbas vs. UOI [1993 (2) SLR 582 (SC)]. In para 4 the respondents would content that Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation. In this case; on administrative grounds, the transfer orders came to be issued and therefore the Court cannot go into the expediency of posting of a particular officer at a particular place as made clear by the Apex Court in the case of State of Madhya Pradesh and others vs. S.S. Kourav [JT 1995 (2) SC 498]. The respondents have also placed reliance on para 5 of the reply. 'Interference by the Courts in the matter of transfer should be rarest of the rare as has been held in Prasar Bharti vs. Amarjeet Singh [2007 2 SCC (2) L&S 566] and Mohd Masood vs. State of U.P. [2007 (1) Scale 271]. They would further say that applicant is SAG/ IRSE, and as a Member of Group A organized Service of Indian Railway Service of Engineers [IRSE] with transfer liability to all over Indian Railways. Apparently they would say that the applicant had been ordered to be transferred vide Railway Board's order No. E (O) III/2009/TR/445 dated 04.09.2009 and posted to South East Central Railway. This order is under challenge. The applicant would further say that the order is the outcome of the malafide and malice on the part of respondent No. 2 Shri...
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