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2006 DIGILAW 886 (GAU)

Pramath Ch. Sarma v. State of Assam

2006-09-19

B.SUDERSHAN REDDY, BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B.P. Katakey, J. 1. This appeal is directed against the judgment and order dated 9.8.2006 passed by the learned Single Judge allowing the writ petition filed by the present respondent No. 4, who is the writ petitioner in the said writ petition, setting aside the order of transfer dated 27.1.2006 issued by the Deputy Secretary to the Government of Assam, Industries & Commerce department transferring the present appellant from Silchar to Guwahati as Functional Manager, DICC, in place of the present respondent No. 4, on the ground of the violation of the transfer guideline issued vide office memorandum dated 4.2.2002 by the Government, in so far as it relates to not spelling out the grounds and reasons of such transfer as well as for not taking the approval of the Hon'ble Chief Minister. 2. The facts in brief relevant for the purpose of the present appeal is that the appellant who was working as Functional Manager, DICC, Cacher at Silchar was transferred in the interest of public service vide notification dated 27.1.2006 transferring him from Silchar to Guwahati in the same capacity vice the present respondent No. 4 (writ petitioner in the writ petition) who has been transferred from Guwahati to Silchar. The said order of transfer was challenged by the present respondent No. 4 in the aforesaid writ petition basically on the ground of violation of the transfer guideline issued vide office memorandum dated 4.2.2002, as the same has been issued without taking approval of the Hon'ble Chief Minister, as is required under the said office memorandum, in view of the fact that the writ petitioner who has been posted as Functional Manager, DICC, Kamrup at Guwahati on 30.1.2004 has been transferred by the said order of transfer dated 27.1.2006, before completion of the tenure of three years. The other ground of challenge to the said transfer notification was that though the said office memorandum requires recording of reason for transferring an officer before completion of three years tenure, no reason or ground has been recorded for such transfer. 3. We have heard Mr. M.K. Choudhury, learned senior counsel appearing on behalf of the appellant as well as Mr. A.K. Bhattacharjee, learned senior counsel for the respondent No. 4 and Ms. B. Goyal, learned State counsel appearing on behalf of the respondent Nos. 1 to 3. 4. Mr. 3. We have heard Mr. M.K. Choudhury, learned senior counsel appearing on behalf of the appellant as well as Mr. A.K. Bhattacharjee, learned senior counsel for the respondent No. 4 and Ms. B. Goyal, learned State counsel appearing on behalf of the respondent Nos. 1 to 3. 4. Mr. Choudhury, learned senior counsel for the appellant has submitted that the transfer guideline issued vide office memorandum dated 4.2.2002 having no statutory force, violation of such transfer guideline, even assuming that it has been violated, cannot confer any right on the respondent No. 4 to challenge the same by invoking jurisdiction of this court under challenge the same by invoking jurisdiction of this court under Article 226 of the Constitution of India. It has further been submitted by the learned senior counsel that in fact the transfer order issued vide notification dated 27.1.2006 does not violate the office memorandum dated 4.2.2002 as the respondent No. 4/writ petitioner was posted in Guwahati from 1997, i.e., for about 9 (nine) years and, therefore, the requirements of recording reason as well as taking approval of the Hon'ble Chief Minister under the said office memorandum, do not apply in the present case. According to the learned senior counsel the learned Single Judge while setting aside the order of transfer did not consider the requirement of the said office memorandum that such steps are required to be taken only if the incumbent had not completed 3 (three) years of service at one particular location. 5. Mr. Bhattacharjee, learned senior counsel appearing on behalf of the respondent No. 4/writ petitioner supporting the judgment passed by the learned Single Judge has submitted that the petitioner was posted as Functional Manager, DICC, Kamrup at Guwahati only on 30.1.2004 and he having been transferred by the order dated 27.1.2006, the conditions required to be fulfilled vide office memorandum dated 4.2.2002, laying down the guideline for transfer, have to be violated, as the said guideline has been formulated to avoid arbitrary exercise of the power. Mr. Bhattacharjee, further submits that the learned Single Judge upon perusal of the record produced has found that the grounds and reasons required to be recorded as well as requirement of taking approval of the Hon'ble Chief Minister for transferring an officer from one place to another before completion of 3 (three) years tenure have not been fulfilled. Mr. Bhattacharjee, further submits that the learned Single Judge upon perusal of the record produced has found that the grounds and reasons required to be recorded as well as requirement of taking approval of the Hon'ble Chief Minister for transferring an officer from one place to another before completion of 3 (three) years tenure have not been fulfilled. The learned senior counsel, therefore, submits that the learned Single Judge has rightly interfered with the order of transfer impugned in the writ petition. Mr. Bhattacharjee, learned senior counsel in support of his contention has placed reliance, on Single Bench decisions of this court in Dayal Das v. State of Assam and Ors. reported in (2002) 2 GLT 109 and in Dilip Kr. Saikia reported in (2005) 4 GLT 371. 6. The learned Single Judge as discussed above has interfered with the order of transfer dated 27.1.2006 on the ground of violation of the transfer guideline issued vide memorandum dated 4.2.2002 on two grounds, namely, not recording the grounds and reasons for such transfer as well as for not taking approval of the Hon'ble Chief Minister before issuing such order, as the respondent No. 4/writ petitioner was transferred from Guwhati to Silchar by the impugned order of transfer prior to completion of 3 (three) years tenure as Functional Manager, DICC, Kamrup at Guwahati. The learned Single Judge has held that since such transfer guideline has been issued as an adequate safety device to check and prevent arbitrariness in governmental action, the same has to be followed. 7. The scope of judicial review of an order of transfer is very limited. Such order of transfer can be inferred with by the writ court in exercise of its power under Article 226 of the Constitution of India if the same has not been issued in the interest of public service or administrative exigencies or has been issued in violation of any statutory provision or if such order of transfer has been passed mala fide. An order of transfer can also be interfered with in the event it is issued on extraneous consideration not germane to exigencies of public service or passed by an authority not competent to do so or if the official status of the persons concerned is effected adversely and there is infraction of any career prospects, such as, seniority, scale of pay and secured emoluments. 8. 8. To invoke the jurisdiction of the writ court under Article 226 of the Constitution of India, the person seeking a writ must establish that his fundamental and other legal right has been infringed. The writ court can issue a writ for enforcement of any fundamental right guaranteed under the Constitution of India and also for enforcement of any other legally enforceable right. A writ of mandamus can be issued by the High Court to secure performance of a public or statutory duty, in the performance to which the person who seek such writ has a sufficient legal interest. 9. The main contention of the respondent No. 4/writ petitioner challenging the order of transfer dated 27.1.2006, was the violation of the guideline issued by the Government relating to transfer, vide office memorandum dated 4.2.2002. Admittedly such guideline has no statutory force. Consequently no legal right of the petitioner has been violated for infringement of such guideline issued. The petitioner, therefore, cannot maintain a writ for enforcement and/or violation of such guideline issued by the authority. Such administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the petitioner to approach the higher authorities for redressal of his grievance but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer from one place to another in public interest and in administrative exigencies of service so long as his official status is not affected adversely and there is no infraction of career prospect State of U.P and Ors. v. Gobardhanlal 2004 (3) LLJ 749 SC. 10. The learned Single Judge while setting aside the order of transfer did not take into consideration that aspect of the matter. Moreover, it is evident from the transfer guidelines issued vide office memorandum dated 4.2.2002 that requirement of recording reasons and grounds for transfer and taking approval of the Hon'ble Chief Minister, arise if a person is transferred from one location to other prior to completion of 3 (three) years in one particular location. The respondent No. 4/writ petitioner admittedly was serving in Guwahati in different capacities since 1997 and he has been transferred from Guwahati vide the order of transfer dated 27.1.2006, i.e., after serving in Guwahati for about 9 (nine) years. The respondent No. 4/writ petitioner admittedly was serving in Guwahati in different capacities since 1997 and he has been transferred from Guwahati vide the order of transfer dated 27.1.2006, i.e., after serving in Guwahati for about 9 (nine) years. He, therefore, served in a one location i.e. in Guwahati for more than 3 (three) years and, hence, the requirements of recording such reason for transfer as well as taking the approval of the Hon'ble Chief Minister, before issuing the order of transfer dated 27.1.2006, are not required to be complied with. 11. In the Single Bench decisions of this court in Dayal Das (supra) and Dilip Kumar Saikia (supra) cited by the learned senior counsel for the respondent No. 4/writ petitioners, the question of maintainability of the writ petition challenging the order of transfer on the ground of violation of the transfer guideline and the power of the writ court to issue writ of mandamus at the instance of the officer transferred, on the ground of violation of transfer guidelines, have not been gone into. As held above an officer cannot maintain a writ petition for enforcing any right under a non-statutory transfer guideline, hence, the said decision cited by the learned senior counsel cannot be made applicable, in view of the decision of the Apex Court in State of U.P. and Ors. v. Gobardhanlal 2004 (3) LLJ 749 SC. 12. In view of the aforesaid discussions, we set aside the judgment and order passed by the learned Single Judge. Consequently, the order of transfer dated 27.1.2006 is revived. No costs.