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Gauhati High Court · body

2006 DIGILAW 89 (GAU)

Techi Jobae v. State of Arunachal Pradesh and ors.

2006-01-23

I.A.ANSARI

body2006
1. Heard Mr. L. Sera, learned counsel for the petitioner, and Mr. B.L. Singh, learned Senior Government Advocate, Arunachal Pradesh, appearing on behalf of the State respondents. 2. While the petitioner was functioning as an Assistant Engineer in the office of the Chief Engineer, Rural Works Department, Government of Arunachal Pradesh, at Itanagar, he was, vide order, dated 13.12.2005, transferred, as Assistant Engineer, to Seijosa Sub-Division of the said Department in the place of private respondent No. 2 herein. On being released from the Chief Engineer's office at Itanagar, the petitioner joined his place of posting at Seijosa Sub-Division on 22.12.2005 and assumed unilateral charge of the office of the Assistant Engineer, in the said Sub-Division, in terms of the order directing him to assume unilateral charge passed by the Executive Engineer on 29.12.2005. However, the petitioner has, again, been transferred, vide the order, dated 16.1.2006, from Seijosa Sub-Division to Seppa Sub-Division against a vacant post. It is this order, dated 16.1.2006, which stands impugned in the present writ petition. 3. The grievances of the writ petitioner, in the present writ petition, are to the effect that having already posted him to Seijosa Sub-Division on 13.12.2005, he (the petitioner) could not have been transferred, once again, within a month's time to Seppa Sub-Division, for, the transfer order is in violation of the relevant guidelines contained in the circular, dated 2.6.1998, and that the petitioner's transfer is mala fide and with ulterior motives. 4. While considering the present writ petition, what needs to be noted is that an order of transfer is an administrative order. The power of judicial review under article 226 of the Constitution of India can be exercised not against an administrative decision, but against the decision-making process. The decision to transfer the petitioner from Seijosa Sub-Division to Seppa Sub-Division is, therefore, not amenable to the writ jurisdiction. What is amenable to the writ jurisdiction is the decision-making process leading to the passing of the impugned order of transfer. Broadly speaking, as long as a decision-making process takes into account all relevant factors and eschews from consideration every irrelevant factor, the decision-making process cannot be interfered with. What is amenable to the writ jurisdiction is the decision-making process leading to the passing of the impugned order of transfer. Broadly speaking, as long as a decision-making process takes into account all relevant factors and eschews from consideration every irrelevant factor, the decision-making process cannot be interfered with. Unless, therefore, it is shown by the petitioner that the decision-making process leading to the passing of the impugned order, dated 16.1.2006, suffers from jurisdictional error or is contrary to law, mala fide, arbitrary and/or irrational, interference with the impugned order is not possible. For this purpose, incumbent it is, on the part of the petitioner, to show that the respondents/authorities concerned, while passing the impugned order, did not take into account any relevant factor or took into consideration any irrelevant factor. 5. Moreover, the court, while in seisin of a matter under article 226 of the Constitution of India, is required to infer, unless shown to the contrary, that the administrative orders passed by the Government have been passed bona fide and in accordance with law. The person, who challenges the order, has the onus to prove that the order is illegal, irrational, arbitrary and/or unreasonable. 6. Bearing in mind the above prominent principles governing power of judicial review of administrative decisions, when I turn to the facts of the present case, what becomes glaringly noticeable by the eyes is that the Circular, dated 2.6.1998, aforementioned contains guidelines for transfers, which are general in nature. This Circular does not take away, wholly or completely, the authority or power of the State Government to transfer a person in less than 3 years. There is nothing in the Circular, dated 2.6.1998, aforementioned to indicate that a Government employee cannot be transferred within a period of three years from the date of his last order of transfer. In short, while, ordinarily, an order of transfer shall be made in terms of the guidelines aforementioned, there is no impediment, on the part of the Government, to transfer an employee in less than three years if the Government is of the view that such a transfer order is necessary in the interest of public. Merely on the ground, therefore, that the impugned transfer order has been made within a month's time of the previous transfer order, this court cannot, in the absence of anything else, hold that the impugned transfer order suffers from jurisdictional error. Merely on the ground, therefore, that the impugned transfer order has been made within a month's time of the previous transfer order, this court cannot, in the absence of anything else, hold that the impugned transfer order suffers from jurisdictional error. 7. Furthermore, while considering the present writ petition, it is necessary to bear in mind that there is distinction between pleadings in a plaint or a written statement filed in a civil suit and the pleadings in the writ petition and/or counter affidavit in a writ proceeding. While pleadings in a plaint or written statement shall contain only facts and not evidence, a writ petition or a counter affidavit shall not only state the facts, but shall also be annexed thereto the evidence in support of the facts averred in the writ petition. [See Bharat Singh v. The State of Haryana, (1998) 4 SCC 534 and Zakir Hussain v. State of Assam, 2003 (1) GLT 644]. 8. In the present case, there is absolutely nothing in the materials on record to show that the impugned order has been passed by not taking into account any relevant factor and/or by taking into account any irrelevant factor. Far from this, the impugned order indicates that this' order has been made in modification of the petitioner's earlier transfer order, dated 13.12.2005, aforementioned. This, in turn, shows that the Government was aware of the fact that the petitioner already stood transferred from the Chief Engineer's Office, Itanagar, to Seijosa Sub-Division. The impugned order can not be said to suffer from non-application of mind, when Government knew that the petitioner had been recently transferred to Seijosa Sub-Division. The impugned transfer order also reflects that while transferring the petitioner from Chief Engineer's Office, at Itanagar, to Seijosa Sub-Division, it had not been noticed by the Government that the office of the Assistant Engineer, at Seppa Sub-Division, was lying vacant and it is to fill up the said vacant post that the impugned transfer order is shown to have, now, been made. 9. 9. As far as the petitioner's contention that he had assumed unilateral charge of the office of the Assistant Engineer at Seijosa Sub-Division, before the impugned order was passed, and, hence, the impugned order is bad, suffice it to point out that the Executive Engineer had absolutely no authority to allow the petitioner to assume unilateral charge, for, such authority vested only with the Government inasmuch as it was the Government, which had transferred the petitioner, and it was the Government, which could have allowed the petitioner to assume unilateral charge of the office of the Assistant Engineer at Seijosa Sub-Division. When the charge had not been handed over to the petitioner by the respondent No. 2 and when the Government had not directed the petitioner to assume unilateral charge, the petitioner had no business to assume unilateral charge on the authority of an incompetent order passed, in this regard, by the Executive Engineer aforementioned. When the Government had passed the transfer order, dated 13.12.2005, aforementioned without taking into account the fact that a post was already lying vacant at Seppa Sub-Division and has accordingly modified the same with the help of the impugned order, the impugned order cannot be interfered with merely because the petitioner had, without any lawful authority, assumed unilateral charge of the office of the Assistant Engineer at Seijosa Sub-Division. 10. What crystallizes from the above discussion is that when, under the circumstances as indicated hereinabove, the transfer order, dated 13.12.2005, aforementioned has been modified by the Government by posting the petitioner at Seppa Sub-Division and, particularly, when the petitioner has not been able to place any material on record showing that the impugned transfer order suffers from mala fide or ulterior motive, no case for interference by this court with the exercise of discretion by the Government to transfer the petitioner from Seijosa Sub-Division to Seppa Sub-Division can be said to have been made out by the petitioner. Based on a mere bald assertion that a particular administrative order suffers from mala fide or from consideration of extraneous matters or suffers from ulterior motive, no relief can be granted unless such an accusation is supported by the materials on record. Based on a mere bald assertion that a particular administrative order suffers from mala fide or from consideration of extraneous matters or suffers from ulterior motive, no relief can be granted unless such an accusation is supported by the materials on record. In the case at hand, however, with the regard to the accusations made by the petitioner to the effect that the impugned order of transfer suffers from mala fide or ulterior motive, the petitioner has not, if I may reiterate, placed even an iota of material on record. 11. On considering the matter in its entirety, it is abundantly clear that the petitioner has not been able to make out any case for interference by this court in exercise of its jurisdiction under article 226 of the Constitution of India. This writ petition is, therefore, not admitted and the same shall accordingly stand dismissed. 12. No order as to costs.