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2008 DIGILAW 416 (GAU)

State of Assam v. Ranjit Chandra Barman

2008-06-05

HRISHIKESH ROY, J.CHELAMESWAR

body2008
JUDGMENT Hrishikesh Roy, J. 1. Aggrieved by the judgment and order dated 8.5.08 allowing the Writ Petition No. 1559/08, the State has filed Writ Appeal No. 137/08 and Shri Khagendra Deka, respondent No. 5 in the writ petition, has filed the Writ Appeal No. 136/08. The Writ Petition was filed by Ranjit Chandra Barman, arrayed in the Writ Appeals as a respondent, to challenge the transfer order dated 7.3.08 by which the writ petitioner, who was working as the Executive Engineer, Guwahati West Water Resources Dvn. has been transferred and posted as the Deputy Director, Planning in the Office of the Director, Planning Water Resources Deptt. and the appellant Khagendra Deka, holding the post of Deputy Director has been posted as the Executive Engineer of the Guwahati West Dvn. It is not in dispute that by the said transfer order dated 7.3.08 neither the writ petitioner nor the appellant were being posted out of Guwahati and the transfer order results in shifting the incumbents from one office to another, in the same city under the same department. 2. The writ petitioner challenged his transfer primarily on the ground that as his transfer was effected before completion of the normal tenure of three years in the post of Executive Engineer, Gauhati West Water Resources Dvn., the said transfer could only have been ordered by the Govt. by following the norms prescribed by the Govt. itself through O.M. dated 4.2.02 and 4.10.06 (Annexure-4 and 5) for making a transfer prior to completion of the normal tenure of three years. There is no disagreement at the Bar that the norms prescribed by the Govt. require that proper justifications are to be recorded for effecting a transfer before completion of a normal tenure of three years at one place by an employee and such transfer can be effected only with prior approval of the Chief Minister. 3. The learned Single Judge having considered the norms set up by the Govt. which have been noted to be in force to check arbitrary exercise of power, found on examination of the concerned records that although prior approval of the Chief Minister was taken for transferring the writ petitioner before completion of his normal tenure of three years, no justification was, however, recorded for effecting the said transfer. which have been noted to be in force to check arbitrary exercise of power, found on examination of the concerned records that although prior approval of the Chief Minister was taken for transferring the writ petitioner before completion of his normal tenure of three years, no justification was, however, recorded for effecting the said transfer. The learned Single Judge found the need for observance of the norms of recording appropriate justification, as long as the concerned office memorandums are in force. Accordingly, it was held that even in the circumscribed jurisdiction of the Court in matters relating to transfer, the Courts must ensure that norms set up by the Govt. are followed as the norms are prescribed to check arbitrary transfers. As in the instant case reasons were not recorded before the impugned transfer order dated 7.3.08 was issued, the writ petition was allowed by setting aside the transfer order issued to the petitioner. 4. Appearing for the appellant State, Mr. K.N. Choudhury, the learned Addl. Advocate General and Mr. A.M. Mazumdar, learned senior counsel appearing for appellant Khagendra Deka in W.A. No. 136/08 submit that this was not a case of transfer of the writ petitioner from Guwahati to any post outside of the Guwahati and it was a transfer within the same station but to another post. Accordingly, it is argued that since the Govt. Memorandums have been notified to prevent arbitrary exercise of power of only premature transfer before the incumbent has spent less than three years in one station, the departure from the prescribed norms of recording of justification, for effecting such premature transfer can't be held to be fatal. Accordingly, submissions have been made to sustain the order of transfer by interfering with the impugned order passed by the learned Single Judge. 5. Mr. P. Pathak, learned senior counsel representing the respondent/writ petitioner, on the other hand, argues that when the Govt. has notified norms to be followed by the Govt. in matters of premature transfer, the Court would be perfectly justified to interfere with a transfer order when it is seen that important norms such as recording of justification for ordering transfer, prior to completion of normal tenure of three years at one place, are not followed by the employer. 6. The learned Counsel further submits that in pursuant to the impugned order of the learn d Single Judge dated 8.5.08, the Govt. 6. The learned Counsel further submits that in pursuant to the impugned order of the learn d Single Judge dated 8.5.08, the Govt. has cancelled the transfer order dated 7.3.08 and accordingly nothing survives for adjudication in the present writ appeal for even in the event of the Division Bench interfering with the impugned order of the learned Single Judge, the transfer order dated 7.3.08 impugned before the learned Single Judge is no more in existence. 7. Responding to the 2nd submissions of Mr. Pathak, the learned Addl. Advocate General submits that cancellation order dated 14.5.08 is only to give effect to the learned Single Judge's order interfering with the transfer order dated 7.3.08 and obviously the Govt. would abide by any decision which might be given in the appellate proceeding. 8. Mr. K.N. Choudhury, learned Addl. Advocate General has also referred to the selecting decision reported in 1993 (2) LLJ 626 SC, Union of India v. S.L. Abbas, to submit that there is no obligation for an employer to justify through reasons an order of transfer by adducing reason and interference by the Court for absence of reasons would clearly be unjustified. The learned Counsel has also referred to the Supreme Court decision reported in 2004 (2) LLJ 1057 SC (Union of India v. Janardhan Debnath) to submit that while adjudicating the question as to whether a transfer order is in public interest or not would require determination of factual matters and would invariably depend upon the facts and circumstances of a given case and accordingly such matters should be best left for the employer to consider and decide upon and it is not for the Court to interfere one way or the other. 9. The learned Counsel has also referred to this Court's decision reported in 2003 (1) GLT 530 : 2003 (2) GLR 151 (State of Assam v. Dilip Kr. Das) to submit that Court ought not to sit over the judgment of the employer to post a particular officer in a particular post and Court must be extremely slow in interfering with the discretion exercised by the employer who is supposed to be a better Judge in matters of transfer and posting. Das) to submit that Court ought not to sit over the judgment of the employer to post a particular officer in a particular post and Court must be extremely slow in interfering with the discretion exercised by the employer who is supposed to be a better Judge in matters of transfer and posting. By referring to the aforesaid decisions, it is argued on behalf of the appellants that interference made by the learned Single Judge for not recording of justification while transferring the writ petitioner before completing three years in his post, was not at all justified. 10. In the instant case what is of significance that the writ petitioner, although was ordered to be prematurely transferred before completion of three years tenure in the post in question, the said transfer was not to another place or station but only to another office in the same place. Requirement of recording justification for transferring staff before competition of three years at one place as prescribed by the notified norms cannot be understood to apply to a transfer, where the transfer does not involve movement to a new place or station. When the transfer is to another office in the same place or station, judicial intervention may not be justified to such transfer order, for alleged breach of the prescribed norm of recording justification. 11. Normally an employer is not under an obligation to demonstrate the justification for ordering transfer and interference by Court is circumscribed, as it is difficult for the Court to assess whether the transfer is in the interest of public service. The instant transfer order is not being challenged on the ground of mala fide exercise of power or on the ground of violation of statutory provision but only on the limited ground of not recording justification, which is prescribed to be complied, when transfer is made before completion of three years tenure at one place or station. The concerned memorandums do not specifically prescribe recording of jurisdiction when transfer is from one office to another but is at the same place and station. The concerned memorandums do not specifically prescribe recording of jurisdiction when transfer is from one office to another but is at the same place and station. Therefore, we are of the opinion that the rigours of recording justification specified in the Office Memorandum dated 19.9.92 and subsequently reiterated in Office Memorandum dated 4.2.02 and Office Memorandum dated 4.10.06, would not apply to a case where the transfer is not from one place to a new place or is not from one station to another. Accordingly, it is held that judicial interference in such cases would not be justified. 12. Accordingly, these Writ Appeals are allowed, the impugned judgment and order dated 8.5.08 is set aside and the transfer order dated 7.3.08 is upheld. Government may pass consequential orders. No cost. Appeal allowed.