May 15, 1999
Two recent news reports pertaining to transfers of bureaucrats in Maharashtra raise important issues. The first was about the statement of the Maharashtra Chief Minister that transfer is not enough of a punishment for a bureaucrat. The second was about the decision of the Bombay High Court, in public interest litigations (PILs) filed by citizens’ organisations, setting aside the transfer of the controversial municipal commissioner of Pune.
In the life of a typical civil servant, transfers and promotions are of crucial importance. Unfortunately, both these have increasingly become grey areas and a government servant finds himself at the mercy of politicians, businessmen and other influence-peddlers even to get his due.
The policies pertaining to transfers have become particularly irrational. In several state governments, transfers have become a `wholesale business’ where posts are auctioned in a routine manner. Literally, thousands of civil servants are transferred mindlessly. The Maharashtra governmenthas brought the higher bureaucracy to its knees by repeatedly transferring secretaries to government and officers of equivalent rank in a high-handed and arbitrary manner.
The Housing Minister has announced that he will seek the transfer of the secretary of his department again and again till he finds an officer who submits to his wishes. The situation at the Centre is no better as was seen in the case of the transfer of secretary of the Urban Development Ministry at the insistence of the minister.
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Efforts have been made time and again to knock at the doors of the higher courts to compel the government to lay down unambiguous guidelines for effecting transfers. Unfortunately, the courts have declined to interfere in these matters. Even the Supreme Court refused to intervene in this matter when a PIL was filed by Common Cause, a non-government organisation in Delhi. When the Allahabad High Court issued interim orders asking the Uttar Pradesh government to formulate clear guidelines for effecting transfersof government servants a couple of years ago, the state government promptly filed an appeal and got the orders stayed by the division bench.
It is against this background that the Bombay High Court’s decision in the Pune case must be viewed. The first question is whether this was a fit case for a PIL. The aggrieved officer, if he so desired, could have ta-ken recourse to filing an application before the Central Administrative Tribunal (CAT).
But, he was reluctant to do so. While a PIL could not have been entertained by CAT, it could have been a matter for consideration as a PIL before the high court only if it raised larger institutional, policy and procedural issues. It wo-uld be recalled that in the case pertaining to the dismissal of Admiral Bhagwat, Ch-ief of the Naval Staff, though the issues involved were of national importance, inexplicably the high courts of Bombay as also Delhi refused to entertain the PILs on the ground that it was only the aggrieved party which could come to thecourt.
Another point for consideration is whether the high court should have used its overriding writ jurisdiction in this manner by undermining the powers of CAT. The whole scheme of establishing administrative tribunals has been frustrated by the recent decision of the Supreme Court giving appellate powers over the decisions of CAT and SAT (State Administrative Tribunal) to the high courts. The use of its inherent writ jurisdiction by the high court in a purely administrative matter pertaining to an officer undermines further the objective of these tribunals.
The other issue is that setting aside the orders of the state government in any single case of transfer does not help in any manner to set the system right in this regard. What is important is to have in position a well-articulated transfer policy, transparent, uniform and fair in application.
Ideally, such a policy should consist of the following elements: a clear statement that normally an officer will be appointed to any post for a minimumperiod of three years and that this period shall not extend beyond five years at any one station; a stipulation that all transfers shall be effected in April and May to coincide with the closure of school and college terms; a requirement that, if a transfer has to be effected prior to the completion of the period of three years, the incumbent will be conveyed reasons for the same in writing and given a reasonable opportunity to have his say; and a provision that, if the government still decides to transfer the officer, a self-contained order will be passed.
In the name of exigencies of service, the governments, whether at the Centre or in states, have been reluctant to bind themselves to any discipline. The higher courts have, unfortunately, not thought it fit to set this palpable wrong right.
The Maharashtra Chief Minister is right when he says that transfer is not an adequate punishment. But, he seems to be under the wrong impression that transfer was intended to be used as a weapon in this manner.Strictly, if a transfer is to be effected as a punishment, all rules as applicable in the case of holding a departmental inquiry, such as adherence to the rules of natural justice, must be observed rigorously. Instead, often, transfer is ordered as a punishment in an arbitrary manner.
This has yet another deleterious effect. In most of the tribal and inaccessible areas, where the government should send its best officers, unwanted ones are sent as a matter of punishment. This has led to sharp deterioration in the standards of administration in these areas with most of the development funds being siphoned off by the government functionaries.The recent examples of transfers of the municipal commissioners of Thane and Pune have been trail-blazers in yet another way.
The citizens of these cities took up cudgels on these officers’ behalf to stop the transfers. But this may not be possible in all cases, particularly where officers do their job diligently and fearlessly, without seeking publicity, in the classicmould of civil servants of a bygone era. In Maharashtra itself, several outstanding officers have met with this fate with no one to share in their frustrations and helplessness. In such cases, it is necessary that the system treats them, too, in a fair a manner.
This would require institutional cha-nges. That the transfer of a single officer has been set aside by a court is no cause for jubilation. What has been won is a battle, not the war.
The writer is a former union home secretary
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