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Gauhati High Court · body

1995 DIGILAW 14 (GAU)

Bimal Kumar Medhi v. State of Assam

1995-01-13

A.K.PATNAIK

body1995
In the writ petition, Civil Rule No.3934 of 1994 the petitioner who is working as Forest Ranger in the Forest Department of Assam has prayed for quashing the order dated 12.9.94 issued by the Deputy Secretary, Government of Assam, Forest Department transferring the petitioner from Lanka Range under Nagaon South Division to the office of the DFO, Social Forestry Division, Guwahati. While issuing notice of motion on 27.9.94, this Court passed interim order suspending the impugned order dated 12.9,94 with liberty to the respondents to come up for modification, alteration or cancellation of the aforesaid interim order. Respondent No.6 in the said Civil Rule has tiled Misc. Case No. 1298 of 1994 for vacating the interim order dated 27.9.94. Since affidavit-in-opposition and reply have been filed in the Civil Rule and the Misc. Case, both the Civil Rule and the Misc. Case were heard together on 22.12.94. 2. The brief facts of the case as stated in the writ petition are that the petitioner joined the Forest Department of Assam as a Forest Ranger and was posted and attached to the Working Plan Division, Lower Assam Circle, Guwahati and thereafter by an order dated 25.1.88 (Annexure 1) he was transferred and posted as Forest Ranger In-charge of Mazbat Range, Darrang West Division, under Northern Assar Circle, Tezpur and he joined in his said new posting on 18.2.88, but the aforesaid transfer as Forest Ranger In-charge of Mazbat Range was stayed by order dated 17.2.88 (Annexure 2) and thereafter by order dated 13.6.88 (Annexure 3) the transfer of the petitioner as In-charge of Mazbat Forest Range was modified and the petitioner was transferred and posted as Forest Ranger In-charge Raimona Range under Kachugaon Division. But soon thereafter by order dated 27.7.88 (Annexure 4) the petitioner was again transferred to Nonoi Range under North Kamrup Division, Rangia. Ungrudgingly the petitioner joined at all the places to which he was transferred. Again by order dated 26.9.88 the petitioner was transferred from Nonoi Range. Rangia to the Monitoring Cell in the office of the Chief Conservator of Forest, Social Forestry Office, Guwahati where the petitioner joined on 28.10.88 vide joining report (Annexure 5). Ungrudgingly the petitioner joined at all the places to which he was transferred. Again by order dated 26.9.88 the petitioner was transferred from Nonoi Range. Rangia to the Monitoring Cell in the office of the Chief Conservator of Forest, Social Forestry Office, Guwahati where the petitioner joined on 28.10.88 vide joining report (Annexure 5). Within a year thereafter, by order dated 18.10.89 (Annexure 6) the petitioner was released from his aforesaid post and was directed to report for his duty in the Hatikhali Afforestation Range under Northern Afforestation Division, Diphu and was thereafter again transferred by order dated 23rd March, 1992 (Annexure 7) from Hatikhali Afforestation Range to Lanka Afforestation Range, under DFO, Central Asssam Afforestation Division, Hojai and the petitioner joined in the aforesaid new posting. Within two years thereafter, by order dated 11.2.94 (Annexure 8) the petitioner was transferred from Lanka Afforestation Range to Lanka Territorial Range. Within 7 (seven) months thereafter, the impugned order dated 12.9.94 has been issued by the respondentNo.3 transferring the petitioner from Lanka to the office of the DFO, Social Forestry Division, Guwahati in the interest of public service. Aggrieved by such frequent transfers, 9 times over a period of 6 (six) years, the petitioner has moved this Court for quashing the impugned order dated 12.9.94 (Annexure 9) transferring the petitioner from the Lanka Territorial Range to the Social Forestry Division at Guwahati on the ground that the said transfer is vitiated by malice and is in violation of Article 14 of the Constitution. 3. An affidavit-in-opposition has been filed on behalf of the respondent No.3, Deputy Secretary to the Government of Assam, Forest Department, wherein it has been contended that the Government has the power to transfer Forest Rangers such as the petitioner and that the transfer of the petitioner has been made in the interest of the public service. Respondent No.6 has not filed affidavit-in-opposition but in his application for vacating the interim order dated 27.9.94 numbered as Misc. Respondent No.6 has not filed affidavit-in-opposition but in his application for vacating the interim order dated 27.9.94 numbered as Misc. Case No. 1298 of 1994 has stated that by the impugned order of transfer dated 12.9.94 the respondent No.6 was transferred to Silchar Division and posted as In-charge Lanka Range in place of the petitioner and that pursuant to the impugned order of transfer, the respondent No.6 was released from Silchar and has reported for duty on 16.9.94 at the Lanka Range Office and that the interim order dated 27.9.94 suspending the impugned order of transfer has caused great hardship to the respondent No.6 and accordingly has prayed for vacating the said interim order. An affidavit-in-reply has been filed by the petitioner to the affidavit-in-opposition on behalf of the respondent No.3 in the Civil Rule alleging that the petitioner was transferred with an oblique motive to accommodate the respondentNo.6 at the Lanka Range Office after the respondent No.6 did not joined the Social Forestry Division at Guwahati pursuant to the order of transfer order dated 4.8.94 (Annexure 11) and that the transfer of the petitioner before completion of 3 (three) years in the present posting was contrary to the parameters of transfer fixed by the office memorandum dated 10th December, 1984 issued by the Chief Secretary, Government of Assam in the affidavit-in-opposition filed in the Misc. Case No. 1298 of 1994, the petitioner has further stated that the respondent No. 6 has not yet taken charge from the petitioner as In-charge Forest Ranger of the Lanka Territorial Range. In the Misc Case an affidavit-in-reply has been filed by the respondent No.6 denying the allegation that he had influenced the authorities to transfer the petitioner from Lanka to Guwahati. 3A. At the hearing of writ petition and the misc case, Mr. YK Phukan, learned counsel for the petitioner, submitted that the chart in paragraph 12 of the writ petition would show that the petitioner has been transferred 9 times in 6 years. 3A. At the hearing of writ petition and the misc case, Mr. YK Phukan, learned counsel for the petitioner, submitted that the chart in paragraph 12 of the writ petition would show that the petitioner has been transferred 9 times in 6 years. He further submitted that the last transfer of the petitioner having been made on 11.2.94, the petitioner could be transferred only after completion of 3 years from 11.2.94 as per the parameter laid down in paragraph 2(1) of the office memorandum dated 1 Oth December, 1984 of the Chief Secretary to the Government of Assam (Annexure 10) and that where a transfer before completion of 3 years is proposed, it can only be made for reasons to be recorded in writing as stipulated in paragraph 2 (2) of the aforesaid memorandum dated 10.12.84 of the Chief Secretary to the Government of Assam (Annexure 10). The Government however, has not produced the records to show the reasons which have been recorded for transferring the petitioner before the completion of 3 years. Mr. Phukan further pointed by referring to paragraph 13 of the writ petition as well as paragraph 7 of the affidavit-in-reply of the petition that the petitioner was transferred with an oblique motive to accommodate the respondent No.6 in the place of his choice after he did not joined the Social Forestry Division, Guwahati pursuant to the transfer order dated 4.8.94. All these facts according to Mr. Phukan go to show that the impugned order of transfer was vitiated by malafide and since these allegations of malafide have not been denied by the respondent, this Court should come to the conclusion that the impugned order of transfer is vitiated by malafide and is liable to be quashed. In support of his aforesaid submission Mr. Phukan relied on the judgment of the Supreme Court in B. Vardha Rao vs. State of Karnataka, AIR 1986 SC1955. He also relied on the decision of the Kerala High Court in the case of P.Pushpakran vs. Chairman, Coir Board (Kerala), reported in 1979 (1) SLR 309 and the decision of the Bombay High Court in SM Umap vs. State of Maharashtra, passed in 1984 (2) SLR 328. 4. In reply Mr.Prasad, learned counsel for the respondent No.6 submitted that in the writ petition, the petitioner has not taken the ground that the impugned order of transfer is vitiated by malafide. 4. In reply Mr.Prasad, learned counsel for the respondent No.6 submitted that in the writ petition, the petitioner has not taken the ground that the impugned order of transfer is vitiated by malafide. The allegation that the impugned order of transfer has been issued under the influence of the respondent No.6 to accommodate him has been denied by the respondent No.6 in the affidavit-in--reply filed by the respondent No.6 in Misc Case No. 1298 of 1994. At any rate so far as the respondent No.6 is concerned, he has been at Silchar for more than 3 years and he was due for transfer. Regarding alleged frequent transfer of the petitioner, Mr. Prasad submitted that the petitioner was ungrudgingly accepted all the previous transfer and cannot now make a grievance of the same. Mr.Prasad cited the decisions of the Apex Court in the case of State of Punjab vs. Joginder Singh, AIR 1993 SC 2486 ; Union of India vs. SL Abbas, (1993) 4 SCC 357 and Rajendra Roy vs. Union of India, (1993) 1SCC148 and submitted that it is now settled by the aforesaid decisions of the Apex Court that unless there is violation of the statutory rule or malafide in passing an order of transfer, the Courts will not interfere in orders of transfer issued by administrative authority. Mr. Prasad further submitted that even where a Government servant makes some grievance that he has been transferred contrary to the guidelines issued by the Government, he has no legally enforceable right so as to approach this Court for remedy but he may represent before the appropriate administrative authority. According to Mr.Prasad, therefore, this Court has no jurisdiction to interfere with the impugned order of transfer and the writ petition is liable to be dismissed. 5. There is no dispute over the proposition of law that the High Court ordinarily does not have the jurisdiction under Article 226 of the Constitution to interfere with an order of transfer of a Government servant made in the interest of public service because transfer is an incident of service and the Government has the power to transfer a Government servant from one place to another. There is also no dispute over the proposition that the guidelines issued by the Government with regard to the transfer of Government servant have no statutory force and are only for the guidance of the authorities vested with the power to transfer a Government servant, and in case of a violation of the said guidelines a Government servant has no legal right which can be enforced by this Court by an appropriate writ and the remedy of Government servant is to make a representation before the appropriate administrative authority for redress. The only exceptions in which the High Court can interfere in a transfer of a Government servant are when it is made contrary to statutory rules or when it is effected not bonafide but with malafide. 6. In the case of Seshrao Nagorao Umap vs. State of Maharashtra, 1984 (2) SLR328, cited by Mr. Phukan, learned counsel for the petitioner, the Bombay High Court held: “Frequent transfer, without sufficient reasons to justify such transfers, cannot but be held as malafide. A transfer is malafide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons.” The aforesaid observation of the Bombay High Court have been quoted in the decision of the Supreme Court in the case of B. Varadha Rao vs. State of Karnataka, AIR 1986 SC 1955 and in paragraph 6 of the said judgment of Supreme Court has further observed : “One cannot but deprecate that frequent, unscheduled and unreasonable transfer can uproot a family, cause inseparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and result in hardship and demoralisation.” II am therefore of the considered opinion that frequent transfer without sufficient reasons to justify such transfer can be held as malafide. 7. The case that is made out in the writ petition and in particular paragraph 13 thereof is that the petitioner has been transferred nine times in six years during the years from 1988 to 1994 to satisfy somebody's personal gain and in paragraph 12 of the writ petition the nine orders of transfer passed during the years 1988, 1989,1992 and 1994 have been detailed. In paragraph 7 of the affidavit-in-reply filed in the Civil Rule, the petitioner has further alleged that the impugned order of transfer has been passed with a view to accommodate the respondent No.6 who did not join at Guwahati pursuant to an earlier order of transfer dated 4.8.94 (Annexure 11). In the affidavit-in-opposition, the respondent No.3 has taken the plea that the Government is empowered to transfer a Forest Ranger such as the petitioner and that the orders of transfers have been passed in the interest of public service, but the respondent No.3 has given no reasons in the said affidavit-in-opposition justifying such frequent transfers of the petitioner during the last six years. The official respondents have also not produced the records before me which would indicate the reasons for such frequent transfers of the petitioner. It has however been observed by Jeevan Reddy, J in paragraph 10 of the judgment in the case of Union of India vs. SL Abbas, (1993) 4 SCC 357 cited by Mr.Prasad that the judgment of the Supreme Court in the case of Bank of India vs. Jagjit Singh Mehta, (1992) 1 SCC 306 does not support the contention that if an order of transfer is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing reasons therefore. 8. Since the official respondents have not produced records before me, I am unable to know as to whether sufficient reasons existed to justify frequent transfers of the petitioner during the period 1988 to 1994 or as to whether the frequent transfer of the petitioner were made only with the view to accommodate other Forest Rangers. 8. Since the official respondents have not produced records before me, I am unable to know as to whether sufficient reasons existed to justify frequent transfers of the petitioner during the period 1988 to 1994 or as to whether the frequent transfer of the petitioner were made only with the view to accommodate other Forest Rangers. Moreover in the impugned order of transfer dated 12.9.94 (Annexure 9) the professed purpose given for transfer of the petitioner from the Lanka Range, Territorial Division to the office of the DFO Social Forestry Division, Guwahati is interest of the public service, but in the absence of records and in view of the denial by the respondent No.6 in his affidavit-in-reply filed in the misc case, I am unable to record a finding as to whether the impugned transfer was really in the interest of the public service as made out in the impugned order or to accommodate the respondent No.6 who did not join the Social Forestry Division, Guwahati pursuant to his transfer by the order dated 4.8.94 (Annexure 11) as made out by the petitioner in para 7 of the affidavit-in-reply. 9. For the aforesaid reasons,'! direct that the Chief Secretary of the Government of Assam shall examine the records and find out as to whether there were sufficient reasons for the transfer of the petitioner under the impugned order dated 12.9.94 (Annexure 9) or whether the impugned order of transfer has been issued with a view to accommodate the respondent No.6 and in case he comes to the conclusion that the impugned transfer was not necessitated by interest of public service but to accommodate the respondent No.6, he will pass appropriate orders cancelling the transfer of the petitioner within the period of one month from the date of receipt of this order and until orders are passed by the Chief Secretary as directed above, the impugned order of transfer dated 12.9.94 shall not be given effect to and the petitioner shall continue in his posting as In-charge, Lanka Range, Territorial Division. It is however made clear that the respondent No.6 shall not be deprived of his salary because of the interim order dated 27.9.94 passed by this Court and this judgment delivered today. A copy of this judgment shall be forthwith communicated to the Chief Secretary, Government of Assam. The Civil Rule and the Misc Case are disposed of. It is however made clear that the respondent No.6 shall not be deprived of his salary because of the interim order dated 27.9.94 passed by this Court and this judgment delivered today. A copy of this judgment shall be forthwith communicated to the Chief Secretary, Government of Assam. The Civil Rule and the Misc Case are disposed of. There shall be no order as to costs.