Kumsong Pangging v. State of Arunachal Pradesh and Ors.
1998-03-10
J.N.SARMA
body1998
DigiLaw.ai
This writ application has been filed challenging the legality and validity of the order dated 2.5.97 issued by the authority transferring the petitioner from one place to other. The petitioner herein is Extra Assistant Commissioner and he was posted earlier at New Seren. 2. There was an incident regarding demolition and uprooting of some trees and demolition of house between the Assam Police and Arunachal Pradesh Police. Be that as it may, this matter was reported in the local paper and thereafter the petitioner was transferred from Pasighat to another place. This transfer order is challenged on the following two grounds : (i) That this transfer is not on the ground of public interest. (ii) That the order of transfer is by way of punishment. 3.1 have heard Sri C. Baruah, learned Advocate for the petitioner and Sri AK Phukan, learned Advocate General, Arunachal Pradesh. On behalf of the petitioner it is urged that this order of transfer is not in public interest but at the behest of respondent No.3, Speaker of Arunachal Pradesh Legislative Assembly. There is absolutely no materials to say that this order of transfer was issued at the behest of respondent No.3. From the order it appears that it was done in the public interest. Sri C. Baruah, learned Advocate for the petitioner in support of his contention relies on the following decision : (i) 1997 (1) GLJ 621 (M. Ajem Jamir vs. State of Nagaland & others). This is a case, this Court pointed out, that transfer order passed malafide or in contravention with any statutory provisions are amenable to jurisdiction under Article 226. Though in this writ application some vague allegations have been made regarding malafide. Malafide as required to be brought home has not been established. The question of it not being inconformity with a statutory provisions does not arise. So, this case does not help the petitioner. (ii) Next case relied on by Sri C. Baruah is (1994) 6 SCC 98 (NK Singh vs. Union of India & others). The Supreme Court in paragraph 23 has pointed out inter alia as follows : "Unless the decision is vitiated by malafides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the Courts lack the necessary expertise for personnel management of all Government departments.
This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated." 4. As pointed out above, the decision in this particular case is not vitiated by the authority nor there is any infraction of any professed norms or principle governing the transfer which alone can be scrutinised judicially. So, this case also does not help the petitioner. 5. On the other hand, learned Advocate for the respondents urged that the . order of transfer is not vindictive and it was made on the public interest and there is no malafide and authority is the best judge how to utilise the service of a person. The Court cannot play the role of administrator and cannot decide the suitability of posting of one person at a particular place. In support of this contention, the learned Advocate for the respondents relied on the following decisions : (i) 1986 (1) SLJ (Ghy) (Barielly Electricity Supply Co Ltd vs. Siraj Uddin (1960) 1 Lab LJ 556 (SC), wherein the Division Bench of this Court held as follows: "(a) Transfer per se cannot be held to be a punishment. If the transfer was made bonafide for administrative reasons no objection can be taken. Of the administrative reason includes the performance of the officer concerned, then also it would not be reasonable to conclude that it was by way of punishment unless the order was such that no authority would reasonably have otherwise passed such an order. (b) Transfer is a managerial function and so long it is performed for managerial purpose in the interest of service consistently with the rules and/or administrative instructions in force, it is not amenable to interference by Courts. If a transfer order is passed with malafide ulterior motive or on extraneous considerations with a view to penalising the employee, or the order is arbitrary or discriminatory, such an order will be liable to be quashed. The conclusion about malafide interior motive, extraneous consideration, discrimination or arbitrariness could not be easily drawn, but should be based on sufficient evidence produced by the party who alleged. The evidence should be such as to lead to the conclusion that the order would not have otherwise been passed by a reasonable administrator in the interest of service. Such a conclusion would be easier if the actions of offences alleged to have been considered, constituted disciplinary offences.
The evidence should be such as to lead to the conclusion that the order would not have otherwise been passed by a reasonable administrator in the interest of service. Such a conclusion would be easier if the actions of offences alleged to have been considered, constituted disciplinary offences. Even in disciplinary cases it cannot be said that the contemplation or pendency of a disciplinary proceeding ipso facto debars the authority from transferring the employee consistently with rules and instructions." (ii) 1995 Supp (4) SCC 169 (Abani Kanta Ray vs. State of Orissa & others) wherein in paragraph 10 the Supreme Court relying on the earlier decision of NK Singh (supra) pointed out as follows : "It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principal governing the transfer (See NK Singh vs. Union of India)." (iii) 1995 Supp (2) SCC 151 (State of UP & others vs. VN Prasad (Dr.). In this case, the Supreme Court pointed out that a transfer order should be always deemed to be bonafide in the absence of prima facie materials to establish any malafides. The Supreme Court further pointed out that nature of evidence to establish malafide has to be strong and convincing. That paragraph 2 of the Supreme Court is quoted below : "The High Court, at the interlocutory stage of writ petition moved by the respondent, Dr. VN Prasad, Principal, BRD Medical College, Gorakhpur challenging an order of transfer has stayed its operation. We are of the opinion that at the stage at which the matter was brought to engage the attention of the High Court, there was no prima facie materials to establish any malafides which required strong and convincing evidence. The presumption is in favour of the bonafides of the order unless contradicted by acceptable materials. The interlocutory order of the High Court is, in our opinion, unjustified." 6. The Supreme Court further pointed out in the case of NK Singh (supra) that the Court will look to the records only and will not enter into leaving enquires to find out the case of malafide as urged by the petitioner. 7.
The interlocutory order of the High Court is, in our opinion, unjustified." 6. The Supreme Court further pointed out in the case of NK Singh (supra) that the Court will look to the records only and will not enter into leaving enquires to find out the case of malafide as urged by the petitioner. 7. In the case of (1995) 3 SCC 270 (State of MP & others vs. SS Kourav & others) the Supreme Court pointed out that the Court cannot go into the question of relative hardship involved in the transfer. It would be open to the Govt. servant to make representation to the Govt. and it is for the Govt. to consider the same and take appropriate action. 8. The Govt. employee has no legal right to insist for being posted at any particular place unless it is provided his service condition, he has no choice in the matter of posting. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. After all, the Govt. must look to the welfare of the employees and when making an order of transfer, the Govt.. should usually bear in mind that aspect of the matter but at the same time the Govt. must strike a balance between the public need and the need of the officer and it is for the only to strike that balance. The Court usually does not apply the measuring rod or scale to find it out. 9. That being the position, there is no merit in this writ application and the same is dismissed. Stay order passed earlier shall stand vacated.