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2007 DIGILAW 754 (GAU)

M. Balakrishna Reddy v. Union of India

2007-11-20

ASHOK POTSANGBAM, J.CHELAMESWAR

body2007
JUDGMENT Asok Potsangbam, J. 1. Heard Mr. K.N. Choudhury, learned senior advocate assisted by Mr. U.K. Nair, learned Advocate on behalf of the writ petitioner and Mr. A. Sarma, learned Advocate General, Meghalaya. 2. The challenge in this writ petition is to the order dated 21.9.2007 passed by the learned Central Administrative Tribunal, Guwahati Bench, Guwahati, dismissing the Original Application (O.A.) No. 187 of 2007 wherein the petitioner challenged his transfer from one Division of the Forest Department, Government of Meghalaya to another Division of the same Department within the same Capital City. 3. The brief facts of the case: The petitioner who is an Indian Forest Service (IFS) Officer was posted as Divisional Forests Officer (Wildlife), Khasi Hills Division, Meghalaya, Shillong by an order dated 23.12.2005 and, thereafter, he was transferred from Divisional Forest Office (Wildlife), Khasi Hills Division to and as Divisional Forest Officer, Siliviculture Division, Shillong by an order dated 3.7.2007 issued by the Government of Meghalaya and this order was impugned before the learned Central Administrative Tribunal in O.A. No. 187 of 2007. The impugned order reads as follows: GOVERNMENT OF MEGHALAYA FOREST & ENVIRONMENT DEPARTMENT ORDERS BYTHE GOVERNOR NOTIFICATION Dated Shillong the 3rd July, 2007 No. FOR. 12/97/Pt/102--sari K.S. Lyngdoh, IFS (SFS 1991), Divisional Forest Officer, Silviculture Division, Shillong Transferred and posted as Divisional Forest Officer (T) Jaintia Hills Division, Jowai, with effect from the date of taking overcharge and until further orders vice Shri H.C. Choudhury, IFS, transferred. No. FOR. 12/97/Pt/10--A Shri H.C. Choudhury, IFS (RR 1992), Divisional Forest Officer, (T) Jaintia Hills Division, Jowai is transferred and posted as Planning Officer, Office of the Principal Chief Conservator of Forests, Shillong with effect from the date of taking overcharge and until further orders vice Shri G. W. Kharmujai, IFS, transferred. No. FOR. 12/97/Pt/102--B--Shri M.B. K Reddy, IFS (RR 1993), Divisional Forest Officer, Wild Life Khasi Hills, Division, Shillong is transferred and posted as Divisional Forest Officer, Silviculture Division, Shillong with effect from the date of taking overcharge and until further orders vice Shri K.S. Lyngdoh, IFS, transferred. No. FOR. 12/97/Pt./102--C--Shri G.W. Kharmujai, IFS, Planning Officer, office of the Principal Chief Conservator of Forests, Shillong is transferred and posted as Divisional Forest Officer, Wild Life Khasi Hills Division, Shillong with effect from, the date of taking overcharge and until further orders vice Shri M.B. K. Reddy, IFS, transferred. No. FOR. No. FOR. 12/97/Pt./102--C--Shri G.W. Kharmujai, IFS, Planning Officer, office of the Principal Chief Conservator of Forests, Shillong is transferred and posted as Divisional Forest Officer, Wild Life Khasi Hills Division, Shillong with effect from, the date of taking overcharge and until further orders vice Shri M.B. K. Reddy, IFS, transferred. No. FOR. 12/97/Pt/102--D--The service of Shri D. Challam, MFS, Divisional Forest Officer, Garo Hills Autonomous District Council, Tura, are replaced at the disposal of the Government of Meghalaya. On his service being replaced at the disposal of the Government of Meghalaya, Shri D. Challam, MFS is transferred and posted as Divisional Forest Officer, Social Forestry, Jaintia Hills Division, Jowai, vice Shri T. Kharlukhi, MFS, transferred. No. FOR. 12/97/Pt. 102--E--I, Shri Kharlukhi, MFS, Divisional Forest Officer, Social Foresty, Jaintia Hills Division, Jowai, is transferred and his services are placed at the disposal of the Garo Hills Autonomous District Council, Tura for appointment as Divisional Forest Officer vice Shri D. Challam, MFS, transferred. Shri G W. Kharmujai, IFS and Shri D. Challam, MFS, are to move first. Sd/ L. Roy Commissioner & Secretary to the Govt. of Meghalaya, Forest and Environment Department. 4. The aforesaid transfer order was challenged before the Central Administrative Tribunal on grounds, inter alia, that (i) the impugned order was issued only to accommodate Respondent No. 5, (ii) the petitioner had taken up various steps towards the establishment of a State Zoological Park while working as DFO (Wildlife), Khasi Hills and, as such, he ought not to have been transferred out before the completion of the project of Zoological Partk; (iii) the transfer was vitiated as the same was initiated by the local MLA in whose constituency the Zoological Park was proposed to be set-up and (iv) there was non-application of mind, arbitrariness etc. 5. The allegations and contentions of the petitioner were resisted by the State Government by filing an exhaustive affidavit before the learned Tribunal, in which, the Government of Meghalaya not only denied and controverted the allegations/contentions of the petitioner but also had taken a plea with the support of document that there was a complaint against the petitioner from the public through some NGOs and the matter was taken to the notice of the Hon'ble Chief Minister of Meghalaya who had taken note of the complaint and ordered for immediate action. 6. 6. The learned Tribunal, after hearing the parties at length, came to the conclusion that the applicant had not made out a case specifically where prejudice could be shown to have been caused to him by virtue of his transfer order as the petitioner's status, salary, place of posting, duties, rights and interest as Divisional Forests Officer were not affected and, consequently, the original application was dismissed by an order dated 21.9.2007. This order of the Tribunal is now challenged in this writ petition. 7. By now, the law on judicial review of an order of transfer have already been settled by the Apex Court and also by this Court. In (1993) II LLJ 626 SC (Union of India v. S.L. Abbas), the Apex Court not only held that an order of transfer is an incident of service, but also discussed the following F.Rs. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority." Fundamental Rule 15 days that "the President may transfer a Government Servant from one post to another". Therefore, unless a transfer order is vitiated by mala fide or is made in violation of any statutory provision, the Court is not supposed to interfere by exercising the power of judicial review. In (2001) II LLJ 1243 SC (National Hydroelectric Power Corporation Ltd. v. Shir Bhagwan and Anr.), the Apex Court held that: No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine. 8. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine. 8. In (2001) I LLJ 1687 SC (State Bank of India v. Anjan Sanyal and Ors.), the scope of judicial review of transfer order have been discussed and held that: An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order. 9. In (2007) 8 SCC 150 (Mohd. Masood Ahmad v. State of U.P. and Ors.). the question whether a transfer order affected on the recommendation of an MLA is vitiated or not, came to be considered by the Apex Court. In this regard, the Apex Court observed that: After all it is the duty of the representative of the people in the legislature to express the grievance of the people and if there is any complaint against an officer, the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of an M.P. or MLA would be vitiated and it will all depend on the facts and circumstances of individual case. 10. Thus, this Court is of the opinion that circumscription of the scope of interference with an order of transfer in exercise of judicial review, is no longer res-integra. Except in cases of established mala fide, infraction of statutory provision, judicial intervention is undesirable inasmuch as whether an employee could be transferred to different Division is a matter of the employer to consider depending upon administrative exigency and extent of solution for the problems faced by the administration. It is not for the Court to direct one way or the other. It is not for the Court to direct one way or the other. Further, the Apex Court in (2001) II LLJ 1243 SC (National Hydroelectric Power Corporation Ltd. v. Sri Bhagwan and Anr.) has also decided that no Government Servant or employee of a public undertaking has any legal right to be posted forever at one particular place. 11. The learned Central Administrative Tribunal held that the transfer of the petitioner from Divisional Forest Office, (Wildlife), Khasi Hills Division to Divisional Forest Officer, Siliviculture Division, Shillong is byway of general transfer involving six officers of the Forests Department of the Government of Meghalaya and due process, as required by law for such exercise, have been followed before the transfer order dated 3.7.2007 was issued and, therefore, the transfer order dated 3.7.2007 could not be faulted for want of any procedural lapses and that there is nothing to suggest even remotely that the transfer order in question was issued only to accommodate the Respondent No. 5. The Tribunal, after hearing the parties and after perusal of the connected original records/files produced before the Court by the learned Advocate General, Government of Meghalaya, arrived at the above finding of facts and, as such, we, in the absence of any compelling reasons, are not inclined to reopen the finding already recorded by the learned Tribunal, leave alone any interference to the finding of the learned Tribunal. There is no specific allegation of mala fide which would vitiate the transfer order and in this regard, the learned Tribunal has already held that mala fide whatsoever was not alleged specifically against any person including the concerned MLA who is said to have initiated the transfer order and, as such, it is not a case based on mala fide. Further, the transfer order dated 3.7.2007 would make it abundantly clear that the petitioner is transferred from one division to another division of the Department of Forests and Environment without affecting the status, salary, duties, rights, interest. It is not in dispute that the new place of posting of the petitioner is also located within the capital city of Shillong and, as such, the plea of dislocating the family and affecting the studies of his children could not be taken and were not taken by the petitioner in any of the proceedings. 12. It is not in dispute that the new place of posting of the petitioner is also located within the capital city of Shillong and, as such, the plea of dislocating the family and affecting the studies of his children could not be taken and were not taken by the petitioner in any of the proceedings. 12. In view of the above facts and circumstances and the discussions made above, we do not find any ground warranting and justifying interference with the judgment and order dated 21.9.2007 passed by the learned Central Administrative Tribunal in O.A. No. 187 of 2007. 13. Accordingly, this writ petition is dismissed as devoid of merit and interim order, if any, stands vacated. No order as to costs. Petition dismissed