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2007 DIGILAW 451 (GAU)

Nirhandra Thaosen v. State of Assam

2007-06-28

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR

body2007
JUDGMENT B.P. Katakey, J. 1. The appellant, a Sub Registrar in the Department of Revenue (Registration), Govt. of Assam, who was posted at Hojai on being transferred vide order dated 10.11.2004, has challenged the order of transfer dated 26.3.2007, transferring him from Hojai to Udalguri in the interest of public service, issued by the Deputy Secretary, Govt. of Assam, Revenue (Registration) Department and also the order dated 14.5.2007 passed by the same authority rejecting the representation dated 27.3.2007 filed by the appellant against the said order of transfer, in WP (C) No. 2366/2007, mainly on two count, i.e., the order of transfer is violative of the Office Memorandums dated 19.9.1992 and 4.2.2002 issued by the Chief Secretary to the Govt. of Assam and the Commissioner and Secretary, Govt. of Assam Personal Department, respectively, insofar as it relates to the requirement of obtaining prior approval of the Chief Minister before passing an order of transfer prior to the completion of normal three years tenure at a particular place and also on the ground that the order of transfer was punitive. The writ petition was dismissed by the learned single Judge vide order dated 21.5.2007 and hence the present appeal. 2. We have heard Mr. A.K. Bhattacharyya, learned Senior counsel for the appellant and Mrs. B. Goyal, learned State counsel appearing on behalf of the respondents. 3. Mr. Bhattacharyya, learned Senior counsel for the appellant has submitted that the order of transfer passed by the Deputy Secretary transferring the appellant from Hojai to Udalguri is bad in law so also the order dated 14.5.2007 passed by the said authority rejecting the representation filed by the appellant against the order of transfer, on the ground that prior approval of the Chief Minister has not been taken as required under the Office Memorandums dated 19.9.1992 and 4.2.2002. It has further been submitted by Mr. Bhattacharyya that it is evident from the affidavit filed by the Deputy Secretary, Govt. of Assam, Revenue (Registration) Department and the transfer order was passed due to certain allegations against the appellant and such allegation being the foundation for issuing such order of transfer, it is punitive in nature and hence such order of transfer, without affording the appellant a reasonable opportunity to show cause, is bad in law. Mr. of Assam, Revenue (Registration) Department and the transfer order was passed due to certain allegations against the appellant and such allegation being the foundation for issuing such order of transfer, it is punitive in nature and hence such order of transfer, without affording the appellant a reasonable opportunity to show cause, is bad in law. Mr. Bhattacharyya in support of his contention has placed reliance on two Single Bench Decisions of this Court in Leela Ram Bora v. Union of India and Ors. reported in (1982) 1 GLR 366 and Bijendra Pratap Singh v. State of Arunachal Pradesh and Ors. reported in 2004. GLT 827. 4. Per contra, Mrs. Goyal, the learned State counsel appearing for the respondents, has submitted that from the impugned order of transfer dated 26.3.2007 it is evident that the same was issued in the interest of public service. It has further been submitted that though the Office Memorandums dated 19.9.1992 and 4.2.2002 require prior approval of the Chief Minister for passing an order of transfer in respect of an officer before completion of three years in a particular place, violation of such guidelines, which has no statutory force, will not create any enforce-able right on the appellant to challenge the same by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Mrs. Goyal referring to the affidavit filed by the Deputy Secretary has, however, submitted that in fact in the present case the approval of the Chief Minister was taken on 8.3.2007 and only thereafter the order of transfer was issued on 26.3.2007. It has further been contended that pursuant to the order dated 2.4.2007 passed in WP (C) 1563/2007 filed by the appellant, a speaking order was passed by the authority on 14.5.2007 rejecting the representation dated 27.3.2007 filed by the appellant, wherefrom it is evident that the order of transfer was passed because of administrative exigencies keeping in view the allegations levelled against the appellant, which the authority has decided to enquire into and his continuance at office at Hojai was found to be against public interest as well as may impede the process of enquiry into the allegations against him. 5. 5. The learned State counsel submits that the authority upon taking into consideration the allegations as well as the report of the Deputy Commissioner, formed an opinion that the appellant cannot be retained at Hojai and public interest requires his transfer from that place, and also to facilitate departmental enquiry into the allegations against him without any interference from the appellant. Relying on the decision of the Apex Court in Union of India and Ors. v. Janardhan Devnath and Anr. reported in (2004) II LLJ 1057 SC, it has been contended by the learned State counsel, that as the order of transfer is not stigmatic and being passed not by way of punishment and having not adversely affected any service condition, the order of transfer was rightly not interfered with by the learned single Judge. 6. The scope of judicial review of an order of transfer is very limited. An order of transfer can be interfered with by a Writ Court, in exercise of power under Article 226 of the Constitution of India, if the same is passed in malafide exercise of power or in violation of any statutory Rules or if such an order of transfer adversely affects the official status or results in infraction of any career prospects, such as seniority, scale of pay or secured emoluments. The order of transfer can also be interfered with if the same is passed by an authority not competent to do so or if it is punitive. 7. The Apex Court in Janardhan Devnath's case has observed that the manner, nature and extent of exercise to be undertaken by courts in a case to adjudge whether an order of transfer casts a stigma or constitutes a punishment depends upon the consequences following from the order and as to whether it adversely affected any service condition--status, service prospects or financial. It has further been observed that a transfer, unless, it involves any such adverse impact or visits the person concerned with any penal consequence are not required to be subjected to same type of scrutiny as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward exigencies of the administration. 8. 8. A Writ Court cannot sit on appeal over a decision of the Govt. to transfer one officer from one place to another. It is the authority who is to decide the place at which an employee is required to be posted. The transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service, in the absence of any specific indication to the contrary, in the law governing the conditions of service. As observed above, unless the order of transfer is an outcome of malafide exercise of power or violative of any statutory provisions or passed by an authority not competent to do so, such order of transfer cannot be lightly interfered with. As a matter of fact even the administrative guidelines for regulating transfer or the transfer policies at best may offer an opportunity to the officer concerned to approach the higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer any particular officer to anyplace in public interest and as is found necessitated by exigencies of public services as long as the official status is not adversely affected and there is no infraction of career prospects, seniority, scale of pay and secured emoluments. The order of transfer, even if passed in transgression of administrative guidelines, cannot be interfered with by the Court, as they do not confer any legally enforceable right on the person against whom such an order is passed, unless, shown to be vitiated by malafide or in violation of statutory rules (State of U.P. v. Gobardhan Lal (2004) III LLJ 749 SC). 9. In the instant case, it is evident from the affidavit filed by the Deputy Secretary that there are certain allegations against the appellant relating to his function while posted at Hojai. The authority on receiving such allegations as well as the irregularities, obtained a report from the Deputy Commissioner and upon consideration of entire fact situation decided to transfer the appellant from Hojai to Udalguri, on being found that the continuance of the appellant at Hojai would be against public interest and such a transfer is necessary to have a free and fair enquiry against the allegations leveled against the appellant in the departmental proceeding, which the authority has decided to initiate. Such basis for issuing the order of transfer, as contended by the learned Senior counsel cannot be termed as punitive. The authority, for proper maintenance of administration, can take into account the allegations against the officer and transfer him to another place in the public interest, if the authority is of the opinion that his continuance in that place is against public interest. It is also not the case of the appellant that the order of transfer has adversely affected his service condition or career prospect, so as to render it punitive. 10. We are unable to accept the view expressed by the Single Bench of this Court in Leela Ram Bora (supra), that if an order of transfer is passed on the basis of the complaint against the officer and the authority comes to the conclusion that it was not desirable to retain him in a particular place, it would be the foundation of the order and not merely the motive and hence becomes punitive in nature, in view of the pronouncement of the Apex Court in Janardhan Devnath's case that to adjudged whether an order of transfer casts a stigma or constitutes one by way of punishment would depend upon the consequences following from the order and as to whether it adversely affected any service condition-status, service prospects financially and the same yardstick, norms or standards cannot be applied to all categories of cases. As observed by the Apex Court in the said case, the order of transfer, unless involves any such adverse impact or visits the person concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination. Therefore, to scrutinize whether an order of transfer is punitive in nature, it is not required to be gone into whether the allegations against the officer concerned is the foundation or the motive of passing such order, which yardstick is applied in the matter of scrutinizing the legality and validity of dismissal, discharge, reversion or termination of a temporary employee. As discussed above, it is the authority to decide whether the persons against whom certain allegations are levelled, are to be kept in a particular station or not, in the public interest. 11. As discussed above, it is the authority to decide whether the persons against whom certain allegations are levelled, are to be kept in a particular station or not, in the public interest. 11. For the same reasons, the view expressed by another Single Bench of this Court in Bijendra Pratap Singh (supra) cannot be accepted. The order of transfer can be passed by the authority in public interest or in administrative exigencies and while passing the same, the authority can no doubt, take into consideration any allegation levelled against the officer and it is not the requirement of law that in the event of passing an order of transfer on the basis of certain allegations levelled against the officer, an opportunity of hearing is to be accorded. 12. It also appears from the affidavit filed by the Deputy Secretary that approval of the Chief Minister as required under the Office Memorandum dated 19.9.1992 and 4.2.2002 was taken before passing the impugned order of transfer dated 26.3.2007, thereby complying with the requirements of such guidelines, though as observed above, violation of such guidelines will not confer any enforceable right on the appellant to maintain a writ petition, such guidelines having no force of law. The contention of the learned senior counsel for the appellant relating to the violation of the guidelines, therefore, also has no force. 13. In view of above, in our considered opinion, the learned single Judge has rightly dismissed the writ petition. 14. The writ appeal is devoid of any merit and hence dismissed. No cost.