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2005 DIGILAW 468 (GAU)

Syed Mahmud Ali v. State of Assam and Ors.

2005-06-17

B.K.SHARMA

body2005
1. By this writ petition, the petitioner has assailed the legality and validity of the order by which he has been transferred from Guwahati to Golaghat. 2. Shortly stated the facts leading to filing of the instant writ petition are that the petitioner is an Assistant Engineer under the respondents and presently has been working in the Regional Office of the Pollution Control Board at Guwahati. The new Chairman of the Board assumed charge of his office on 2.4.2005 and according to the petitioner with the appointment and assumption of charge by the new Chairman who has been named in the writ petition, the Board, specially the Regional Office at Guwahati witnessed activities unprecedented. Amongst others, the new Chairman also resorted to unprecedented and sudden transfer and postings at the officers level and the petitioner fell victim of such activities. 3. By the impugned order dated 26.4.2005, the petitioner has been transferred and posted in the Regional Office, Pollution Control Board, Golaghat. The order reads as follows: "OFFICE OF THE POLLUTION CONTROL BOARD, ASSAM BAMUNIMAIDAM, GUWAHATI-21 No. WB/E-I/Pt-X/2004-2005/6 Dated Guwahati, the 26th April, 2005 OFFICE ORDER In the interest of the public service Syed Mahmud Ali, Asstt. Engineer of the Regional Office, Guwahati; Pollution Control Board, Assam is hereby transferred and posted in the Regional Office, Golaghat; Pollution Control Board, Assam until further order in the same capacity with immediate effect, Sd/- 26.5.2005 (P.C. BARUAH) Member Secretary" 4. It is the case of the petitioner that on bare perusal of the aforesaid order clearly exhibits doing away the procedure for effecting transfer in public interest and in the interest of the Board. According to the petitioner he has been ordered to move out without a reliever to assume charge of the post being held by the petitioner. The petitioner asserts that in the name of public interest it is the interest of the respondent No. 2, i.e. the Chairman of the Board which is sought to be served by the impugned order. The petitioner apprehends that the post presently being held by him would be filled up by person who would best serve the personal interest of the respondent No. 2. Thus, according to the petitioner the transfer order having been issued only in private interest, same is wholly arbitrary, illegal and unreasonable. 5. The petitioner apprehends that the post presently being held by him would be filled up by person who would best serve the personal interest of the respondent No. 2. Thus, according to the petitioner the transfer order having been issued only in private interest, same is wholly arbitrary, illegal and unreasonable. 5. The petitioner has further described in the writ petition about his household difficulties including the difficulty, his son would face, in view of the transfer of the petitioner amidst the mid-academic session. The petitioner has also stated about his wife's illness. According to the petitioner, although the transfer is a condition of service, but the manner, method and reason for which he has been transferred, do not satisfy the solemn intention and object of transferring an employee from one place to another. 6. The respondents including the respondent No. 2 have not filed any counter affidavit either to the writ petition or to the additional affidavit filed by the petitioner, controverting the stand of the petitioner, but have placed the records pertaining to the transfer and posting of the petitioner by the impugned order. Learned counsel for the respondents submitted that the records would speak for itself and no separate counter affidavit was required to be filed. 7. I have heard Mr. M. Bhuyan, learned counsel for the petitioner and Mr. P. Pathak, learned senior counsel assisted by Ms. P. Barman, learned counsel for the respondents. As agreed to by Mr. Pathak, learned counsel for the respondents, the records file produce by the respondents was allowed to be inspected by Mr. Bhuyan, learned counsel for the petitioner. After perusal of the records, an additional affidavit was filed by the petitioner (MC No. 1512/2005) highlighting the revelation made by the records, about which mention has been made below. 8. In the additional affidavit, the petitioner has highlighted as to how, many officers were transferred by the Chairman in quick succession and some of which were stayed at the intervention of the Minister of State, Planning, Development and Finance Department, unconnected with the Pollution Control Board. In the affidavit, the petitioner has stated about the manipulation made in the records so as to justify the t, transfer of the petitioner. 9. Mr. In the affidavit, the petitioner has stated about the manipulation made in the records so as to justify the t, transfer of the petitioner. 9. Mr. Bhuyan, in tune with the assertion made by the petitioner referred to above submitted that the records clearly bear the testimony of the arbitrary, illegal, unreasonable and illegal exercise of power by the respondent No. 2. Pointing out to the document at serial No. 5 in the file by which the respondent No. 2 ordered the Member Secretary to transfer the petitioner to Golaghat and the office notes of the same date contained in the file, Mr. Bhuyan, submitted that the assertion made by the petitioner that the transfer order has not been issued in any public interest is fully established. 10. Tb appreciate the argument of Mr. Bhuyan, it will be important to note at this stage the aforesaid document and the note. The document at serial No. 5 is a small piece of white paper with the following note written in red ink and endorsed to the Member Secretary of the Board. "Ms. Process file for immediate transfer of Sri S.M. Ali, AE to Golaghat RO and Sri Mukund Sarma may be posted in GHY RO as AE. Sd/- Illegible 26.4.2005 11. The office notes dated 26.4.2005 about which mention has been made above read as follows : M.S SI. No. 5 the notes and direction of honourable Chairman may kindly be seen. As per direction of Member Secretary and as per direction by Chairman the draft transfer order of Md. Mahamad Ali, AE, of RO, Ghy to RO Golaghat and Sri Mukul Sharma, AE of H.O. Ghy transferred to RO Ghy. Put up for perusal and review pi. SoV-Illegible 26.4.2005 Chairman Noted above. We may transfer Md. M. All, AE from Regional Office Guwahati to Regional Office, Golaghat, Transfer of Sri M, Sharma from HO to Regional Office, Guwahati kept pending as per verbal direction. As there is only one AE in Golaghat RO to look after NRL. CGI. ONGC. etc. Sri S.M. Ali is transferred for public interest. Put up for approval. SoY- Illegible 26.4.2005 approved Sd/-Illegible 26.4.2005" 12. As submitted by Mr. As there is only one AE in Golaghat RO to look after NRL. CGI. ONGC. etc. Sri S.M. Ali is transferred for public interest. Put up for approval. SoY- Illegible 26.4.2005 approved Sd/-Illegible 26.4.2005" 12. As submitted by Mr. Bhuyan, learned counsel for the petitioner, the underlined portion of the aforesaid note appears to be a subsequent insertion in the original note in which there was no mention about public interest and/or the existing vacancy at Golaghat. If the underlined portion is not taken into account, the transfer of the petitioner, on the face of it was actuated as per the desire of the chairman,devoid of any public interest, 13. Mr. P. Pathak, learned senior counsel appearing for the Board countering the above arguments made by Mr. Bhuyan, submitted that transfer being an incident of service, the petitioner cannot claim that he should remain posted at Guwahati for all the time to come. Referring to the aforesaid document and notes, he submitted that the submission made by the learned counsel or the petitioner is highly speculative and no interference is called for to the impugned order on such speculation. 14. I have given my anxious consideration to the submissions made by the learned counsel for the parties and the materials on record including the file produced by the respondents. During the course of hearing Mr. Bhuyan, learned counsel for the petitioner submitted that the petitioner became Assistant Engineer in the year 2001 and thus, he has hardly completed 4 years at Guwahati. Producing a list of 29 incumbents holding the posts of Assistant Engineer out of which 22 Assistant Engineers are posted at Guwahati, it was shown as to how barring 7 Assistant Engineers, all others have completed more than 4 years of service at Guwahati, even to the extent of 15 years, but have not been disturbed. Countering this argument, Mr. Pathak, learned senior counsel for the Board submitted that the petitioner has all along, been in Guwahati from 1976 to which Mr. Bhuyan replied that before the petitioner was promoted as Assistant Engineer, he in the capacity of surveyor had to roam around throughout the State and thus really speaking he was not all along posted at Guwahati from 1976 and that for the first time the petitioner has got a static job on his promotion as Assistant Engineer in the year 2001. 15. 15. As to what is the length of service of the petitioner and others may not be the real issue and the same will have to be judged on the basis of the assertion made by the petitioner in the writ petition that the impugned order of transfer has not been issued in any public interest. Mr. Pathak, learned senior counsel for the respondents fairly submitted that there is nothing adverse against the petitioner and that the petitioner had to be transferred to Golaghat since the post of Assistant Engineer is lying vacant there. 16. Thus, from the above, it will be seen that, according to the respondents, the petitioner has been transferred to Golaghat since the post of Assistant Engineer is lying vacant there. If this is not public interest, what else could be. However, the moot question is, as to whether the state of affairs as reflected from the file really depicts such a position. As noticed above, it is the respondent No. 2 who on a small piece of paper ordered for transfer of the petitioner to Golaghat and to fill up the vacant post at Guwahati by one Sri Mukund Sharma. No public interest or the necessity to fill up the post at Golaghat was indicated. Further, it is really horrifying that an incumbent could be ordered to be transferred on a scrape of paper by-passing the normal procedure of initiating the proposal and finalization of such matter by putting notes justifying such transfer. Contrary to such a procedure, it was the personal whims of the Chairman of the Board, which played the all important role with the necessary consequences as reflected in the aforesaid two notes. 17. It is true that transfer of an employee is a necessary incident of the service career. Assessment of the quality of the employee is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of subjective opinion in that sphere may be involved. If the decision-making process is vitiated by mala fide and colourable exercise of power and/or infraction of any professed norms or principles governing the transfer, the writ court will not be a silent spectator to the same. Several imponderables requiring formation of subjective opinion in that sphere may be involved. If the decision-making process is vitiated by mala fide and colourable exercise of power and/or infraction of any professed norms or principles governing the transfer, the writ court will not be a silent spectator to the same. In the instant case, the circumstances leading to the transfer of the petitioner have been noticed above, which cannot be said to have satisfied the principles underlying transfer of an incumbent. 18. In the first note prepared pursuant to the page 5 scrape of paper on which the respondent No. 2 ordered for transfer of the petitioner, there is only reference to the direction of the chairman. As per the said note even the draft transfer order was prepared and put up. Thus, everything was finalized instantaneously on the basis of the note endorsed to the Member Secretary by the Chairman of the Board on the aforementioned scrape of paper, till then there was no mention of any necessity and public interest. Thereafter, by the second note on the same date, i.e., 26.4.2005, the aforesaid note was endorsed and put up for approval. On the same date the approval was accorded by the chairman. Till then there was no whisper of any public interest or the necessity to transfer the petitioner to fill up the post of Assistant Engineer allegedly lying vacant at Golaghat. However, it appears that after filing of the instant writ petition and when the records were directed to be produced, to put a veil on the real fact and position, the subsequent insertion in the second note dated 26.4.2005 was made which has been indicated above. There is no manner of doubt that the underlined portion in a compressed size, was inserted subsequently which reads "As there is only one AE in Golaghat RO to look after NRL, CGI, ONGC, etc. Sri S.M. Ali is transferred for public interest". 19. The original second note was without the inserted portion underlined and quoted above. As per the said note, the petitioner was transferred as per the direction of the chairman and as per his verbal direction the proposed transfer of Sri M. Sharma to the replacement of the petitioner was kept pending. The said note ended with the words "as per verbal direction" followed by the sub-paragraph with the words "put up for approval". As per the said note, the petitioner was transferred as per the direction of the chairman and as per his verbal direction the proposed transfer of Sri M. Sharma to the replacement of the petitioner was kept pending. The said note ended with the words "as per verbal direction" followed by the sub-paragraph with the words "put up for approval". The approval was accorded on the same date, i.e., 26.4,2005 with the endorsement "approved'. However, the insertion made in a compressed size in absence of adequate space, in between the words, "as per verbal direction" and "put up for approval" which has been quoted and underlined above, stares on the face of it. It is only by such insertion the all important element of public interest, so well cherished in service jurisprudence relating to transfer of employees by the employer and the necessity to fill up the post of Assistant Engineer at Golaghat, an equally important element justifying transfer of the petitioner, were introduced. Such introduction became necessary to hoodwink the court and thereby forcing it to arrive at a conclusion that the petitioner has been transferred only in public interest, although in reality it is the personal whims and caprices of the Chairman of the Board which played the all important role. 20. The sequence of events which took place in quick succession also stares on the face of it. The Chairman of the Board by his note dated 26.4.2005, written in red ink, on document 5 scrape of paper, ordered' for transfer of the petitioner without assigning any reason, not to speak of any public interest and/or necessity to fill up the post at Golaghat. Acting on the note, the abovequoted first and second notes were prepared and put up on the same date, i.e., 26.4.2005. In quick succession the transfer order was also issued on 26.4.2005. Thus, everything was done in high haste and it gives the irresistible impression that the authorities of the Board were hell bound to oblige the chairman instantaneously without any loss of time. Can it be said to be the kind of public interest in the matter involving transfer of an employee ? Certainly not. 21. Thus, everything was done in high haste and it gives the irresistible impression that the authorities of the Board were hell bound to oblige the chairman instantaneously without any loss of time. Can it be said to be the kind of public interest in the matter involving transfer of an employee ? Certainly not. 21. One may argue that the element of public interest and the necessity to transfer the petitioner to Golaghat to fill up the vacant post there need not be spelt out in the notes initiated for the purpose. But then the question arises as to what was the necessity of the chairman to order transfer of the petitioner on the aforementioned scrape of paper immediately after assumption of charge as the chairman. In case of any public interest and the necessity to transfer the petitioner to Golaghat, the proper procedure was to put up note in the file mentioning such necessity. The official procedure demands that the same be followed in the manner and method required to be followed and not in the manner, in which an incumbent is transferred as per the personal desire reflected on a scrape of paper. 22. The chairman, in case of necessity, ought to have followed the due procedure instead of ordering transfer of the petitioner as per his desire for undisclosed reasons followed by compliance of the same by the subordinate authorities on the same date even to the extent of issuance of the order of transfer. Thereafter, amidst the writ proceeding, the respondents have even gone to the extent of making the aforementioned insertion so as to give the colour of involvement of necessity and public interest in transferring the petitioner. 23. Above being the factual aspect of the matter as has been revealed from the records produced by the respondents themselves, the other factors such as sudden transfer of the petitioner without any time amidst the mid-academic session of his son, illness of his wife and that the other Assistant Engineers having longer length of service at Guwahati than the petitioner, even to the extent of 15 years have not been disturbed, are of no consequence, although may be a relevant consideration in initiating and finalizing a proposal for transfer of an incumbent. 24. 24. The respondents have also not denied the allegations made in the writ petition, more particularly, in paragraph 4 and so also in the additional affidavit including the allegation of subsequent insertion as noticed and discussed above. They have simply produced the records, so as to justify their action towards issuance of the impugned order of transfer. Their case of involvement of necessity to transfer and public interest is founded on the subsequent insertion made in the second office note dated 26.4.2005. Such insertion and tempering of records was made to hoodwink the court. The respondents became wise amidst the proceeding before this court and made the insertion to bring home their justification towards issuance of the impugned order. On this ground alone, the mala fide and colourable exercise of power is solidified warranting rejection of such false plea of the respondents. 25. For the foregoing reasons and discussions, I am of the firm opinion that the impugned order of transfer is not founded on any bona fide exercise of power, but is founded on illegal, arbitrary, mala fide and colourable exercise of power on the part of the chairman of the Board. It is the whims and caprices of the chairman which played the all important role and prevailed over his subordinates who instantaneously obliged him by putting up notes with the issuance of the transfer order in quick succession on the same date. This attitude on the part of the subordinates reminds me of the observation of the Apex Court in the case Tarlochan Deu Sharma v. State of Punjab (2001) 6 SCC 260 , which is quoted below : "In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision-making process authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion ; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether." 26. Under the facts and circumstances narrated and discussed above, the impugned order of transfer dated 26.4.2005 is not sustainable and accordingly, same is set aside and quashed. The petitioner shall be entitled to all consequential benefits including salary, etc. 27. Writ petition stands allowed without, however, any order as to costs.