For transfer with transparency

This question has assumed urgency now in the light of the recent judgment of the Mumbai high court in the case of transfer of Arun Bhatia, municipal commissioner of Pune. The court has found that the reasons for which Bhatia was transferred by the state government within a week of his taking over charge are not fair and just and he should therefore be re-posted as municipal commissioner. I had published an article even when the case was subjudice strongly advocating that a submission should be made to the high court that it should go beyond the case of Bhatia.

I have based my argument on the judgment of the Supreme Court in writ petitions Criminal Nos. 340-343 of 1993 by the bench of the Court presided over by the Chief Justice. This case became famous as the 8220;Hawala case8221;. The judgment said: 8220;The primary question was: whether it is within the domain of judicial review and it could be an effective instrument for activating the investigative process which is under the control of the executive.

The focus was on the question whether any judicial remedy is available in such a situation. However, as the case progressed, it required innovation of a procedure within the constitutional scheme of judicial review to permit intervention of the Court to find a solution to the problem. This case has helped to develop a procedure within the discipline of law for the conduct of such a proceeding in similar situations8221;.

The approach of the Supreme Court Bench was complemented by the Govern-ment of India by constituting an Independent Review Committee IRC of which I was one of the three members to look into matters which also included 8220;8230;.. to suggest the changes, if any, needed to ensure8230; against, inter alia, external pressure, arbitrary withdrawals or transfers of personnel etc8230;. to effectively discharge their duties and responsibilities.8221;

The Supreme Court Bench accepted most of the recommendations of the IRC.I think the approach advocated by me can again be the basis for a fresh PIL application before the Chief Justice by the citizens8217; organisations who had agitated against Bhatia8217;s issue. They may base this fresh PIL on the following grounds:
It should be urged in the PIL that the high court may ask the government to appoint an IRC to investigate and report on the scheme of transfers as such and especially the following:
What should be the minimum tenure of a post?

If the civil servant holding such a post is transferred before the tenure is over, the reasons for this should be recorded in writing and communicated to the civil servant with a copy to the State Administrative Tribunal.

The civil servant can thereafter be free, if he so desires, to apply to the Tribunal for relief.

If the government decides not to communicate such reasons to the official in public interest, even this should be communicated to the official so that if he so desires, he can go to the tribunal to look into the matter.

What safeguards should be prescribed so that this procedure is not exploited or abused by civil servants as has happened in the case of Article 311 of the Constitution.

This is necessary as certain bureaucrats can be stumbling blocks in modernisation or streamlining of the administration.

The report of the IRC should be sent by the government to the Chief Justice within a period of two months and thereafter the high court bench can issue necessary directions to the government.

The writer is a former cabinet secretary

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