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Convention vs Law

Watching the debate over Ashok Khemka's transfer Headlines Today on 16th October 2012, one could not help but feel frustrated and angry with the way in which this Congress Government and its loyal poops defend the undefendable and literally take on the victim of their actions as the wrong doer. This is not new. Most of us have already come to accept this as the norm the way this Government operates. But the Ashok Khemka episode was even more shamelessly blatant.

KTS Tulsi, a Senior Advocate, practicing at the Supreme Court, was one of the member involved in the debate with Prashanth Bhushan and Ashok Khemka himself along with the host Rahul Kanwal. At one point in the middle of the debate, KTS Tulsi accused Ashok Khemka of acting scandalously, and playing the martyr's role to launch his political career in the future. "This is unbecoming of an officer" he thundered. 

When questioned why did he call Ashok Khemka as scandalous and unbecoming of an officer, Tulsi responded that Khemka had passed an order three days after receiving the transfer order, and that never ever in his past forty years of legal practice has he ever come across any officer who has passed an order after he has been intimated of his transfer. He further stated that this is an unwritten law and convention that no officer should ever pass any order till the date of actual transfer from the date of the intimation of his transfer.

And this is precisely the point of this post. What are we supposed to follow and accept? Convention or law? Which one could be said to have an overriding effect on the other? It is a settled legal position that where there is no law in respect of any issue or matter, the conventions and practices will obviously be the guidepost. There are wide variety of trade and revenue laws which points towards this. In fact most legal prescriptions have merely followed the conventions. Where there have been multiple conventions, the legal provisions have been enacted after assessing various conventions.

And the moment the law kicks in, the conventions have no role to play. Past practices have little bearing on what has to be done. You can't impose the sati practice simply because it is a convention. It is illegal right now. Lets not ramble about the ethical part of it. Can we offer bribe to a person merely because it is a customary practice to offer gifts to the authorizing official? This is also a settled legal provision. Atleast, in the revenue laws that I have come across and taught, this is pretty much the fact. One may just google around to find the above assertions backed by judicial rulings around the world.

Considering the above, in the context of Ashok Khemka's transfer what could be the potential issue or implication? To the extent that I can see, there is nothing wrong about the order that he has passed. It can't be held illegal simply because he has passed the order after he has received the intimation of transfer. He can't pass an order the moment he has relinquished or handed over the charge of the post to his successor. Till the successor comes and takes charge, Khemka cannot be actually relieved of his post. 

Recently a banker known to me was served his transfer order, and he could actually take up the new position some two months after he was served his transfer order. He was highlighting the precise issue of this blog post. "How can I move into the new office unless the new officer comes in? Regulation states that I have to handover the current charge, before I can take up the new charge." Heck, even when a Chief Minister resigns due to an electoral defeat, he or she continues till the new Chief Minister actually takes charge.

As far as Khemka's case is concerned, he was in his position as the Director General, Consolidation of Holdings and Land Records, when he passed the order cancelling of mutation of land sold by Robert Vadra to DLF. Nobody can question that he was transferred before he had passed the order. 

Merely because, in the past, the officers had considered the period from the date of intimation of transfer to the actual date of transfer as a paid holiday at office and did not do any work, doesn't mean that every self respecting individual should follow the shameless precedents set by self serving bureaucrats. 

When the law and the regulations framed under the law states that one continues to serve an office till he is actually relieved, then it is pretty much clear that he has to do all the work that he is supposed to do over the period. One can't hide behind the excuse of precedents and not work. And if he a person has just done his duty, you can't call him scandalous or deride him by uttering gibberish. 

May be KTS Tulsi had some legal principles on his mind when he made the statement. But looking at how many advocates (and political leaders) have spoken on television channels, I believe they just try to give their convenient interpretation assuming that viewers won't be able to make out anything. With their terrific hold over the English language (Abhishek Singhvi, Manish Tiwari, Arun Jaitley) and attention diverting / grabbing antics and speech (Salman Khurshid, Veerappa Moiley, Sushma Swaraj, Ram Jethmalani etc.), they surely succeed in that endeavour.

And as long as there is no specific law prohibiting all these legal eagles discrediting an official for doing his duty, it would be the convention for them to continue doing what they are expert at. Discredit, ridicule, question the intentions of every honest and upright individuals who dared to stand up against them.


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