Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 342 (GAU)

Ranjit Chandra Barman v. State of Assam and Ors.

2008-05-08

RANJAN GOGOI

body2008
1. With the consent of the parties, the writ petition has been heard on merit. 2. Heard Sri P. Pathak, learned counsel for the petitioner, Sri A.C. Buragohain, learned Additional Advocate General, Assam, appearing for the State-respondents and Sri A.K. Bhattacharyya, learned senior counsel appearing for the respondent No. 5. 3. The challenge in this writ petition is in respect of an order dated 7.3.2008 by which the petitioner, who was working as the Executive Engineer, Gauhati West Water Resources Division has been transferred and posted as the Deputy Director, Planning in the Office of the Director, Planning, Water Resources Department. The respondent No. 5, who was holding the said post, i.e., Deputy Director, Planning has been brought in place of the petitioner as the Executive Engineer, Gauhati West Water Resources Division by the very same impugned order dated 7.3.2008. 4. At the very outset it must be noticed that the inter se transfer of the petitioner and the respondent No. 5, impugned in the present writ petition, admittedly, does not change the headquarters of the incumbents which continues to remain at Guwahati. The transfers, therefore, are from one office to another within the City of Guwahati. The said fact, though will not work as an ouster of the court jurisdiction, will certainly have the effect of further circumscribing the already limited jurisdiction of the court in matters relating to transfers. Such a view has also been taken by the court in another writ proceeding, i.e., WP(C) No. 874 of 2008 decided on 27.3.2008. 5. The transfer and posting of Government servants in the State of Assam are governed by several office memoranda that have been issued from time to time. The relevant Office Memorandum that will be required to be noticed in this regard is the one dated 19.9.1992 which prescribes a "normal" tenure of three years for a Government servant in any one location. However, in the aforesaid Office Memorandum it had also been stipulated that in public interest an officer can be transferred even before completion of three years provided appropriate justification and grounds for exercise of such a power are recorded in writing and prior approval of the Chief Minister for such a transfer is obtained. However, in the aforesaid Office Memorandum it had also been stipulated that in public interest an officer can be transferred even before completion of three years provided appropriate justification and grounds for exercise of such a power are recorded in writing and prior approval of the Chief Minister for such a transfer is obtained. As the Office Memorandum dated 19.9.1992 was being observed more in breach than in compliance thereof, in a pronouncement of this court dated 16.8.2001 in WP(C) No. 5216 of 2001, directions were issued to the respondent-State to ensure compliance with the norms that it had laid down for itself in the Office Memorandum dated 19.9.1992. Following the aforesaid judgment of this court in WP(C) No. 5216 of 2001, an Office Memorandum dated 4.2.2002 was issued reiterating the requirement of strict compliance with the terms of the earlier Memorandum dated 19.9.1992. This was followed by another Office Memorandum dated 4.10.2000 again laying down the necessity of strict compliance with the laid down instructions with a further stipulation that any deviation therefrom would be seriously viewed. 6. The writ petitioner, in the present case, was posted as the Executive Engineer of Gauhati West Water Resources Division on 25.11.2005. He, therefore, had not completed three years of service in the said post on the date on which the impugned order of transfer, i.e., 7.3.2008 was issued. Under the Office Memorandum referred to earlier there was certainly no bar for the transfer of the petitioner provided there existed good and sufficient reasons, prompted by public interest, for such a transfer. To enable the court to determine whether such good and sufficient reasons had existed warranting the transfer of the petitioner in departure to the laid down norms, the court had called for the relevant records. 7. The records placed before the court would seem to indicate that on 5.3.2008, a note was addressed by the Departmental Minister to the Chief Minister of the State requesting for the inter se transfer of the petitioner and the respondent No. 5. No reason of any kind was mentioned by the Departmental Minister in his note to justify the proposal mooted by him. The said note was approved by the Chief Minister on 5.3.2008 pursuant whereto the impugned order dated 7.3.2008 was issued. No reason of any kind was mentioned by the Departmental Minister in his note to justify the proposal mooted by him. The said note was approved by the Chief Minister on 5.3.2008 pursuant whereto the impugned order dated 7.3.2008 was issued. Thereafter, it appears that one Uttara Kalita, Parliamentary Secretary, Panchayat and Rural Development Department, addressed another note dated 2.4.2008 to the Chief Minister requesting for reconsideration of the transfer of the petitioner. It appears that the Chief Minister made an endorsement on the body of the said note that the matter may be considered. This was on 2.4.2008 itself. However, no such consideration was made. Thereafter, the Departments Minister addressed another note to the Chief Minister on 7.5.2008 stating that both the officers had joined in their respective stations on 3.4.2008 in terms of the transfer order dated 7.3.2008. On the said note of the Departmental Minister dated 7.5.2008, the Chief Minister directed that his earlier order dated 5.3.2008 should be carried out. 8. Time and again, the judicial verdict has emphasized that in so far as Government servants are concerned, it is the employer-State who is the best judge as to when a particular officer should be transferred and to which station he should be posted. It is neither the province of the court nor are the courts armed with the requisite know-how to correctly decide on the necessity of a transfer order. Therefore endeavour of the endeavour of the courts in matters relating to transfer has always been to ensure fairness in the decision making process and to check arbitrary exercise of the power of transfer. This is the limited role that the courts have carved out for themselves. 9. The several Government Memoranda already referred to co-incidentally are an attempt on the part of the State itself to check arbitrary transfers by stipulating a minimum period of tenure for an officer and the need of recording of reasons in writing and obtaining the prior approval of the Chief Minister if an officer is required to be transferred before completion of his "normal tenure" of three years. 10. In the present case the records placed before the court, details of which have been noticed, clearly and evidently point to only one direction. 10. In the present case the records placed before the court, details of which have been noticed, clearly and evidently point to only one direction. No reasons or basis, whatsoever, have been indicated for the impugned transfer of the petitioner prior to completion of three years' tenure in the post of Executive Engineer, Gauhati Water Resources Division. The exercise carried out, therefore, has to be understood to be contrary to the prevailing norms. The availability of the power though has to be conceded, the manner of the exercise thereof cannot have the court approval. 11. Two decisions have been cited by Sri A.K. Bhattacharjee, learned senior counsel for the respondent No. 5 to satisfy the court that the present will not be a fit case for interference. Relying on a Division Bench judgment of this court in the case of State of Assam and Others v. Dilip Kumar Das and Another, (2003) 2 GLR 151, Sri A.K. Bhattacharjee, learned senior counsel, has contended that in the above case this court had accepted the position that the Departmental Minister is the best person to identify the particular officer who is most suitable for manning a particular post. This is precisely what had happened in the present case, it is argued. 12. There can be no dispute on the proposition laid down in Dilip Kumar Das (supra). However, what must be taken note of is that in the aforesaid case, the court had scrutinized the records wherein it was clearly recorded by the Departmental Minister that in his opinion the transfer (impugned in the case) was necessary as the reliever proposed by the Minister was the most suitable officer to man the post. The serving incumbent, therefore, had to be transferred. The aforesaid fact situation does not exist in the present case. 13. The second judgment relied on by Sri A.K. Bhattacaryya is another Division Bench Judgment in the case of Nirhandra Thaosen v. State of Assam and Another, 2007 (3) GLT 934. The contention advanced in support of the challenge made against the transfer order in the above case was two-fold. Firstly, that the transfer is violative of the Office Memorandum dated 9.9.1992 and 4.2.2002 in so far as the requirement of prior approval of the Chief Minister is concerned. The second ground on which the transfer order was assailed is that it was punitive. 14. Firstly, that the transfer is violative of the Office Memorandum dated 9.9.1992 and 4.2.2002 in so far as the requirement of prior approval of the Chief Minister is concerned. The second ground on which the transfer order was assailed is that it was punitive. 14. The Division Bench answered first contention raised by holding the terms of the Office Memoranda with regard to prior approval to be in the nature of an administrative guideline, which does not confer any legally enforceable right. Insofar as the second contention is concerned, the same was negated by referring to the facts of the case, which revealed that specific allegations were made against the petitioner of that case which needed to be enquired into without any possible interference from the side of the petitioner. 15. Propositions of law that can be understood to be absolute are few; the Office Memorandum in question, certainly, do not lay down any such absolute or inflexible proposition of law knowing no exceptions. The Office Memorandum dated 19.9.1992 is an attempt made by the Government itself to check arbitrary exercise of power. Memoranda dated 4.2.2002 and 4.10.2006 merely spelt out the requirement of due observance of the laid down norms. Ordinarily, reasons may not be required to be recorded for effecting a transfer. The necessity of transfer is largely subjective satisfaction, which, however, has to be founded of objective facts. The facts on which satisfaction has been reached must be disclosed to the court, whenever so required. However, in a situation, where the employer himself chooses to the requirement of recording of reasons for effecting a transfer before completion of a tenure of three years by the employee, it is difficult to see how the employer can be allowed to depart from such a requirement at will. The view expressed by the Division Bench of this court in Nirhandra Thaosen (supra) for the effect that the memoranda dated 19.9.1992 and 4.2.2002, insofar as the requirement of prior approval of the Chief Minister is concerned are mere administrative guidelines, have to be understood not having any binding precedent, inasmuch as, in the above case the prior approval of the Chief Minister was, in fact, obtained and recorded in the file. The decision of the Apex Court in the State of U.P. and Others v. Gobardhan Lal, (2004) 11 SCC 402 relied upon by the Division Bench was rendered in facts different from those involved in the present case. 16. The above apart, the views expressed by of the Division Bench in Nirhandra (supra) as regards the Office Memoranda dated 19.9.1992 and 4.2.2002 are in the context of the requirement of obtaining prior approval of the Chief Minister and not with regard to the recording of reasons. Both the aforesaid requirements spelt out by the Office Memoranda in question, cannot be understood to be at par. In the context of the ever increasing complexities of the administrative process the need for observance of the requirement of recording of reasons so long the Office Memoranda continue to hold the field must be perceived with greater vigour. At the same time the enormities of the multifarious duties of the Chief Executive of the State may lean towards a more tolerant judicial approach to the requirement of prior approval. Interference merely on account of the absence of prior approval, may, at times, become a mechanical exercise of power. However, such interference for absence of any reasons, whatsoever, would be a wholesome exercise of power and promote good administration. 17. The net result of the above discussion leaves the court satisfied that the present is a fit case for interference even in the exercise of heavily circumscribed jurisdiction that the courts have carved out for themselves in matters relating to transfer. Consequently, the impugned order dated 7.3.2008 is set aside and the writ petition is allowed.