Analysis: Transfer of Mr. Hajela by Supreme Court

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“Whence all creation had its origin, the creator whether he fashioned it or whether he did not, the creator who surveys it all from highest heaven, he knows- or maybe even he does not know.”

-Nasadiya Sukta, the Hymn of Creation, Rig Veda

‘We order for the inter-cadre transfer of Mr. Hajela to the State of Madhya Pradesh on deputation for the maximum period permissible under the relevant rules/regulations. The notification consequent to the above direction will be issued by the competent authority of the Union of India/ State Government forthwith and in any case within seven days from today.’ This order gained considerable resistance on Friday and the press reports the next day only added the intrigue.

Background:

In 1931, colonial census commissioner, CS Mullan wrote about “an invasion of a vast horde of land-hungry Bengali immigrants” into Assam. It was a thesis that would define Assam’s politics and public life.

More than 80 years later, another bureaucrat was asked for a solution to concerns relating to immigration in Assam. In 2015, Prateek Hajela, an Indian Administrative Services officer from Madhya Pradesh under the direction of the Supreme Court, set out to update Assam’s National Register of Citizens (NRC).

The object was to just separate the citizens from undocumented migrants who entered after the midnight of March 24, 1971. After a string of delays, the final list of NRC was published on August 31, 2019. The critics of the NRC included the leaders of the ruling party who had initially supported this exercise and went to the extent of rejecting the final list.

During all this, Hajela himself maintained silence. However, on the morning of October 18, the Supreme Court gave a sudden inexplicable transfer of Mr. Hajela to Madhya Pradesh.

Reasons for Supreme Court’s order:

A Special Bench of the Supreme Court led by Chief Justice of India Ranjan Gogoi ordered the transfer of National Register of Citizens Coordinator, Prateek Hajela to Madhya Pradesh over a month after the publication of the final list of the NRC on August 31. The Bench comprised of Justice Nariman who said that the orders were always made for a reason, though the Supreme Court has not yet mentioned any reasons.

The judicial order merely said “Upon hearing Mr. Hajela, State Coordinator, the Attorney General and Solicitor General and taking into account the totality of the facts of the case, we order for the inter-cadre transfer of Mr. Hajela to the State of Madhya Pradesh on deputation for the maximum period permissible under the relevant rules/regulations.

The notification consequent to the above direction will be issued by the competent authority of the Union of India/ State Government forthwith and in any case within seven days from today.”

Comments, criticisms and reaction:

The order of the Supreme Court has generated mixed reactions in the State.

  • The All Assam Students’ Union (AASU) has welcomed the order and accused Hajela of not updating the NRC as per the directives of the Supreme Court. AASU Chief Advisor, Dr Samujjal Bhattacharya said, “Prateek Hajela did not take the re-verification exercise of the NRC seriously for which many indigenous people of Assam and genuine Indian citizens were excluded from the final NRC.”
  • Assam Public Work (APW), an NGO- APW Chief, Abhijit Sharma, while expressing surprise over Supreme Court’s order, said that the government should give a rethink on the SC order before drafting Hajela’s transfer order. He said that, Hajela should have been jailed instead of being transferred.
  • Assam BJP President, Ranjeet Kumar Das said that the Centre and the State Government should appeal in the SC against the transfer order of Prateek Hajela.
  • Official sources said that the State Government was completely in dark to know any hint before the Sc passed the order of transfer of Hajela on Friday. “We have to follow the SC order and appoint a new State NRC Coordinator”, a senior State Government official said.
  • “Many vested interest groups and individuals including powerful ministers of Assam government are not happy with NRC final list and Prateek Hajela,” pointed out Aman Wadud, a lawyer and activist, “This is a very crucial stage of NRC. The Court should allow him to complete the entire process.”

Legal examination of the case:

 The case of Hajela, a 1995-batch IAS Assam-Meghalaya cadre officer who was appointed the NRC coordinator on September 5, 2013 by the Supreme Court.

Rule 6 of the Indian Administrative Service (Cadre) Rules, 1954 addresses the issue of deputation of IAS officers. The officer can only be deputed with the concurrence of the Central government and the concerned state government(s). In the event of a disagreement, the view of the Central government is to prevail.

Rule 7 of the 1954 Rules mandates that appointment to cadre posts of state cadre shall be done by the state. The Central government decides on the tenure subject to consultation with the state government. An officer may be transferred before the minimum prescribed tenure only on the recommendation of a ‘committee on minimum tenure’.

The schedule to the 1954 Rules stipulates a detailed procedure for the transfer. The factors the committee considers are:

(i) report of the administrative department along with any other inputs it may have from other reliable sources.

(ii) comments or views of the officer affected.

Conclusion:

The Supreme Court has posted petitions on Assam NRC for further hearing on November 26. The Court’s “totality of facts”, leaves the reasons in the “sealed cover” of second guessing.

As far as Administrative Law is concerned, the first principle we learn is that courts do not interfere in transfer matters, even when the employee comes knocking. There may be a defence of the use of the “inherent powers” by the Court falling under Article 142 of the Constitution.

–This article is brought to you in collaboration with Devanshi Shah from Pune University.

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