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2004 DIGILAW 500 (GAU)

Dilip Kr. Saikia v. State of Assam

2004-08-30

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. The Petitioner who is an M.E. School teacher has assailed the legality and validity of an order dated 14.10.2003 by which he has been transferred to another School. 2. The Petitioner while was serving as Graduate Science Teacher in Jumurmur Milan Bidyapith M.E. School under Nagaon Sub Division was transferred and posted to Bamuni M.E. School by an order dated 14.2.2003. Pursuant to the said order of transfer, the Petitioner joined Bamuni M.E. School and has been continuing there. According to the Petitioner he has been selected for appointment as Headmaster and his position in the select list is at serial No. 137 as against the position of the Respondent No. 4 at serial No. 169. It is the case of the Petitioner that the Respondent No. 4 having regard to his lower merit position in the select list than that of the Petitioner, has been trying hard to see the ouster of the Petitioner from the school paving the way for him to become the Headmaster of the School and with that purpose he has mastered the impugned order of transfer of the Petitioner with the political influence he has through his sister-in-law. 3. By the impugned order dated 14.10.2003, the Petitioner has been transferred to Krishna Handique M.E. School in Hojai Sub Division and the Respondent No. 5 has been transferred to his place. Being aggrieved, the Petitioner made a representation dated 31.10.2003 before the District Elementary Education Officer, Nagaon urging various grounds for cancellation of the impugned order of transfer. Placing reliance on Annexure-V and V(I) Memorandums dated 4.2.2003, and 22.5.2002, it is the case of the Petitioner that his transfer is in violation of the guidelines laid down therein, more particularly the one relating to three years of tenure at a place of posting which further requires that in the event of transfer before completion of the tenure of three years, the prior approval of the Chief Minister is to be obtained. According to the Petitioner, no such prior approval has been obtained, although he has been sought to be transferred by the impugned order, even before completion of the tenure of three years in his present school. 4. According to the Petitioner, no such prior approval has been obtained, although he has been sought to be transferred by the impugned order, even before completion of the tenure of three years in his present school. 4. The Respondent No. 5, who is the beneficiary of the transfer order has filed an affidavit inter alia stating that there are allegations against the Petitioner and certain public complaints were lodged against him. It is only thereafter the impugned order dated 14.10.2003 has been issued and that she has already joined Bamuni M.E. School on 16.10.2003 pursuant to the impugned order of transfer. 5. The Petitioner has re-acted to the said affidavit-in-opposition by filing an affidavit- in-reply reiterating the stand in the writ petition. As per the stand in the affidavit-in-reply, the transfer order has been issued only to accommodate the Respondent No. 5 and to facilitate the promotion of the Respondent No. 4 as Headmaster of the School. As regards the allegations, it is the stand of the Petitioner that the same are false and baseless. Placing reliance on the enquiry report dated 27.10.2003 submitted by the Block Elementary Education Officer, it is the case of the Petitioner that nothing could be found against the Petitioner and the enquiry report rather certified the Petitioner to be a good teacher. 6. I have heard Mr. K.K. Mahanta, learned Counsel for the Petitioner and Mr. V.M. Thomas, learned Standing Counsel, Education Department. Mrs. G. Sinha, learned Counsel made submissions on behalf of the Respondent No. 5. 7. The records of the case were called for, for clarification of the allegations and counter allegation and the real reason behind the impugned order of transfer. Mr. K.K. Mahanta, learned Counsel for the Petitioner submitted that the impugned order of transfer is not based on any public interest. He submitted that the same has been issued only to accommodate the Respondent No. 5. Referring to the enquiry report, he submitted that the allegations made against the Petitioner could not be proved and thus the Petitioner could not have been transferred on the basis of those allegations. 8. Mr. V.M. Thomas, learned State Counsel on the other hand submitted that the transfer order having been issued in public interest, no interference is called for. Mrs. G. Sinha, learned Counsel for the Respondent No. 5 also made submissions in tune with the submissions made by Mr. Thomas. 9. 8. Mr. V.M. Thomas, learned State Counsel on the other hand submitted that the transfer order having been issued in public interest, no interference is called for. Mrs. G. Sinha, learned Counsel for the Respondent No. 5 also made submissions in tune with the submissions made by Mr. Thomas. 9. I have considered the submissions advanced by the learned Counsel for the parties and have gone through the records produced by the learned State Counsel. The records only revealed three things viz. (i) A note dated 27.6.2003 relating to a public 'complaint' alleging dereliction of duty and irregular attendance on the part of the Petitioner By the said note necessary advise was sought for from the District Elementary Education Officer; (ii) A representation made by the Respondent No. 5 praying for her transfer to Bamuni M.E. School. (iii) A note dated 14.10.2003 put up before the District Elementary Education Officer, Nagaon referring to the prayer of the Respondent No. 5 for her transfer to Bamuni M.E. School from K.K. Handique M.E. School and suggesting issuance of transfer on that basis. By the said note, the Petitioner was suggested to be transferred to K.K. Handique M.E. School accommodating the Respondent No. 5 in his place. It was on that basis, the impugned order dated 14.10.2003 had been issued. 10. Thus, it is not correct to say that the Petitioner has been transferred in view of the allegations made against him. Those allegations were gone into by the Block Elementary Education Officer as was entrusted to him and the said officer by his enquiry report dated 27.10.2003 held the allegations to be not correct. He rather certified that the Petitioner was a good teacher. It was also suggested in the report that the transfer of the Petitioner just ahead of the ensuing examination would create loss to the pupils. 11. From the revelations made by the records, whatever may be the allegations and counter allegations, only one reason is discernible as the basis of the impugned transfer order which is the request made by the Respondent No. 5 for her transfer to the school in which the Petitioner has been working. The request made by the Respondent No. 5 was readily agreed to without, however, considering the case of the Petitioner. 12. It is an accepted principle that in public service, transfer is an incident of service. The request made by the Respondent No. 5 was readily agreed to without, however, considering the case of the Petitioner. 12. It is an accepted principle that in public service, transfer is an incident of service. It is also condition of service and the appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honesty, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous consideration for achieving an alien purpose or an oblique motive, it would amount to malafide and colourable exercise of power. Frequent transfer, without sufficient reason to justify such transfer cannot to be held as bonafide. A transfer is malafide when it is made not for professed purpose such as normal course or in public or administrative interest or in the exigencies of service but for other purpose, such as to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative action should be just and fair. An order of transfer is to satisfy the test of Article14 and 16 of the Constitution, otherwise the same will be treated as arbitrary. 13. In the case of S. Rama Gangi Reddy v. Govt, of A.P. as reported in 1992 (Lab) IC 1113, it has been held that the transfer order which is made to accommodate another employee is not bonafide exercise of power. Similarly, in the case of Sesh Rao Nagara Umat v. State of Maharashtra, as reported in 1984 (2) SLR 328 a Division Bench of the Bombay High Court held that a mid term transfer effected only to accommodate another employee will be malafide. 14. In the instant case, the Petitioner was transferred only to accommodate the Respondent No. 5. Her application praying for her transfer to the school in which the Petitioner has been working received immediate attention and she was favoured with the order of transfer at the cost of the Petitioner. Although an impression has been sought to be given that the Petitioner has been transferred in view of the allegations against him, but as noticed above, the records produced by the learned State Counsel do not disclose the same to be the ground. Although an impression has been sought to be given that the Petitioner has been transferred in view of the allegations against him, but as noticed above, the records produced by the learned State Counsel do not disclose the same to be the ground. Even otherwise also the Block Elementary Education Officer who was entrusted with the job to make an enquiry in respect of the allegations made against the Petitioner, in his report dated 27.10.2003, found the allegations to be not correct and he rather certified the Petitioner to be a good teacher. 15. It is true that the administrative authority is vested with the power to examine and accede to the request made by an employee seeking transfer from one place to another on various grounds. But it is another thing to readily accede to such request without examining the merits and demerits of such a request and transfer, more particularly when such transfer would affect another incumbent and that too without hearing him. In the instant case the records have revealed that on the basis of the request made by the Respondent No. 5, a note was put up on 14.10.2003 suggesting the impugned transfer order and on that basis, the same was issued on the same very date without making any verification/cross verification of the related issues such as the transfer of the Respondent No. 5 at the cost of the Petitioner who was transferred to the present school only about two years back. In the process, the Respondents even violated their own transfer guidelines as formulated in Annexure-V and V(I) office Memorandums dated 4.2.2003 and 22.5.2002 respectively. As per the said guidelines, prior approval of the Chief Minister is required to be obtained in the event of transfer of an incumbent before completion of three years tenure in a place of posting. It is true that those guidelines cannot be said to be mandatory, but are only directory. But at the same time it is also equally true that the Respondents cannot ignore the same without assigning any reason more particularly in the context in which the impugned transfer order was issued. 16. It need not be emphasized that the matter of transfer falls within the domain of executive and for the purpose of administrative exigency transfer order may be needed. 16. It need not be emphasized that the matter of transfer falls within the domain of executive and for the purpose of administrative exigency transfer order may be needed. It is also for a good and healthy administration, but when the administrative exigencies are not established, the transfer order is liable to be set aside. Naturally, the question comes up - what is administrative exigencies? The Apex Court in the case of K.B. Shukla and Ors. v. Union of India and others as reported in (1979) 4 SCC 673 has explained- The responsibility for good administration is that of the government. The maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. Therefore, the government alone is best suited to judge as to the existence of exigencies of such a service, requiring appointments by transfer. The term "exigency" being understood in its widest and pragmatic sense as a rule, the Court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it, is vitiated by mala fides, dishonesty, extraneous purpose, or transgression of the limits circumscribed by the legislation. 17. A transfer order issued as in the instant case only to accommodate another person and that too without affording any opportunity to the person whose interest is effected, cannot be said to an order issued in administrative exigencies. 18. For the foregoing reasons and discussion, I have no hesitation to hold that the impugned order of transfer dated 14.10.2003 has not been issued in any public interest, but has been issued only to accommodate the Respondent No. 5 and in the process the aforesaid transfer guidelines came to be violated. Consequently, the impugned order of transfer dated 14.10.2003 stands set aside and quashed. It is made clear that both the Respondent No. 5 and the writ Petitioner will be entitled to their respective salary for the intervening period since it is the official Respondents who have created the anomalous situation. Their salary for the said period shall be paid immediately. It is also made clear that the interference with the impugned transfer order dated 14.10.2003 will not preclude the official Respondents from taking a fresh decision in the matter strictly in-accordance with law and consistently with the observations made above. Their salary for the said period shall be paid immediately. It is also made clear that the interference with the impugned transfer order dated 14.10.2003 will not preclude the official Respondents from taking a fresh decision in the matter strictly in-accordance with law and consistently with the observations made above. In the event of taking any action which might adversely effect the interest of the writ Petitioner, he must be given an opportunity to have his say in the matter. 19. Subject to the above observations, the writ petition stands allowed. There shall be no order to cost. Petition allowed.