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2008 DIGILAW 636 (CAL)

Subodh Kumar Mittra v. UNION OF INDIA

2008-06-27

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
Judgment :- K.J. SENGUPTA, J. (1) THE instant application has questioned the judgment and order of the learned Tribunal dated 14th November, 2007 by which the applicants challenge against order of transfer has been disallowed. The applicant, at present, is a Superintending Archaeologist and at the time of moving the application before the learned Tribunal he was posted at Kolkata circle. By an Office Order No. 106/2007-ADM. 1 dated 31st July, 2007signed by section Officer; (Administration) the petitioner has been transferred from kolkata to Nagpur. The petitioner joined at Kolkata Circle on 11th July, 2006 pursuant to earlier order of transfer. According to the petitioner, the petitioner in Kolkata has undertaken major archaeological works and the said work is in the midst of completion. In performing this work he is responsible for analysing, estimating and framing several important conservation works of viswa Bharati University at Santiniketan and he has also completed the civil deposit works of the Victoria Memorial Hall at Kolkata. As such the transfer of the petitioner to Pre-history Branch, Nagpur will seriously affect completion of this works and perhaps will jeopardise the works altogether. The petitioner also complains that this sort of order of transfer does not sub-serve the public good rather results in wastage of Government money. Apart from the petitioners own assessment about the efficiency of such kind of transfer he has questioned on other aspects that the order of transfer was issued not by competent authority namely Director but by section Officer who is inferior in rank to the applicant. According to this, order of transfer is mala fide as in some other cases several persons have been allowed to remain for a longer time and as per practice a person is allowed to remain at a particular place for a cotinuous period of four years. It is also contended that, in fact, there is no published norm and policy for effecting order of transfer, in absence thereof, obviously there is a strong possibility of meeting out discrimination and taking arbitrary decision with regard to transfer. It is alleged that transfer orders had hitherto been passed on recommendation of Departmental Promotion and Transfer Committee which cannot function because of lack of quorum owing to post of Additional Director General and Joint Director Generals remaining vacant. Moreover, the petitioner has personal problem as his wife is under treatment in Kolkata. It is alleged that transfer orders had hitherto been passed on recommendation of Departmental Promotion and Transfer Committee which cannot function because of lack of quorum owing to post of Additional Director General and Joint Director Generals remaining vacant. Moreover, the petitioner has personal problem as his wife is under treatment in Kolkata. According to him, at present, there is no director General to take decision for transfer rather ad hoc appointee of this post has taken decision. Therefore, order of transfer has not been passed with due process of law. It is further alleged that on representation transfer order of one S. V. P. Halkatti, has been modified allowing him to remain at Bangalore. It is clear that there is no norms or policy of transfer. This has also been recorded in the report of the Parliamentary Standing Committee transport, tourism and culture. The learned Tribunal found on production of records that although the order of transfer has not been signed by the Director, the same was passed with the approval of the Director. The Tribunal observed that there is no mala fide, and since the terms and incidence are part and parcel of the service the petitioner has to accept order of transfer. (2) THIS application is opposed by filing affidavits. In the affidavit-in-opposition it has been stated that actually order of transfer has not been signed by Section Officer rather the, same has been notified by him. Order of transfer has been approved by the Director as proposal for transfer was put forward by the Additional Director. Xerox copies of the relevant extract of the records has been annexed in the supplementary affidavit. It is also alleged that before passing order of transfer the petitioner had been over telephone consulted and indeed at his request order of transfer at Nagpur had been issued. According to the respondents, this procedure had been uniformly followed as it is a routine Transfer order and a number of officers have been transferred and they have accepted and joined at their respective places and there is no grievance against it. There is no hard and fast rule that a particular officer has to be retained at a particular place until he finishes the job he has undertaken. His unfinished work is undertaken by the next incumbent and no one is indispensable in any sphere of the works. There is no hard and fast rule that a particular officer has to be retained at a particular place until he finishes the job he has undertaken. His unfinished work is undertaken by the next incumbent and no one is indispensable in any sphere of the works. It appears during pendency of this application there has been subsequent development which is brought on record by filing supplementary affidavit by the petitioner stating that by a subsequent order dated 11th December, 2007 the petitioner has been transferred from Nagpur to Bhubaneswar. Thus his transfer at Nagpur or at any other place is not for administrative necessity. (3) MR. Debabrata Banerjee, appearing with Mr. Kazi Safiullah and Mr. Koushik Bhattacharyya on behalf of the petitioner, contends that order of transfer is unlawful and the same was singed by an inferior officer. It may be true going by the records that the order was issued with approval of the competent authority and duration of the petitioners stay in Kolkata slightly over one year only. Therefore, usual practice which is followed has been departed from as previously the petitioner likewise other officers was allowed to remain at one place for a minimum period of four years. As such learned tribunal has ignored aforesaid serious infirmity and illegality of the order of transfer. (4) MR. R. N. Das, senior advocate appearing with Mr. Malay Kumar Singh and Mr. Joydeep Sen, learned Advocates on behalf of the respondents, submits that the judgment and order of the learned Tribunal should not be interferred with. As the learned Tribunal, on perusal of the record, has found that the impugned order of transfer was really passed by the competent officer namely director and the section Officer has merely notified the same. He has drawn our attention to the Xerox copies of the departmental records containing noting of the competent officer before routine order of transfer was issued. Therefore, it is not currect to contend that the order of transfer has been passed by Section Officer. He contends further that it is not necessary that the Director himself has to sign the order of transfer. The acceptability of the order of transfer is borne out by the fact that no other officers except the petitioner has questioned the same. He contends further that it is not necessary that the Director himself has to sign the order of transfer. The acceptability of the order of transfer is borne out by the fact that no other officers except the petitioner has questioned the same. According to him, if the department passes an order with the approval of the competent officer such order is valid one and in support of his submission he has relied on a judgment of the learned single Judge of Delhi High Court rendered in the case of Municipal corporation of Delhiv. Chattarbhuj Bhushan Sharma reported in 2007 (4) SLR 436. In this judgment it appears to us that the learned single Judge has taken a view that if a particular officer having no power passes any order of transfer and such order of transfer is ratified by the senior authorities the same will be a valid one. With respect to the learned single Judge we are unable to accept this proposition of law. This judgment, in our view, is totally in appropriate on fact also. In that case, the employee concerned failed to establish that the officer who had issued order of transfer, had no power to do it. We are of the view that order of transfer is to be issued by the competent officer himself and he has to sign it unless, of course, the rules provide otherwise. The appointing authority and the appropriate authority being the superior officers will exercise such power of transfer applying their mind that this will sub-serve the interest of the administration as well as the public, if the department deals with the public. His application of mind to arrive at satisfaction of administrative need is sine qua non. Under his direction the subordinate officer can make a ground work but it will be his own decision which will obviously be fair and conforming to published norms as far as practicable. Absence of mala fide, arbitrariness is one of the facets of good governance. (5) WE by our order dated 13th May, 2008, asked Mr. Under his direction the subordinate officer can make a ground work but it will be his own decision which will obviously be fair and conforming to published norms as far as practicable. Absence of mala fide, arbitrariness is one of the facets of good governance. (5) WE by our order dated 13th May, 2008, asked Mr. Das to produce the relevant rules of transfer policy whereby it can be established that the order of transfer can be passed by any officer with the approval of the competent officer since we find previously that this sort of order was not passed previously rather previous order of transfer of the petitioner was passed by the Director and singed by him also. On 16th June, 2008 Mr. Das informs us that he is unable to produce any such rules or norms. Therefore, we can conclude that there is none authorising any inferior officer to take primary decision for order of transfer by any officer subordinate to Director and then ask for approval of the competent superior officer. (6) IN this case, from the document and records we find that the decision of transfer was taken by the inferior officer and then the same was placed before the Director later on and in the departmental note it appears the director is purported to have accorded approval. Nothing has been said how the subsequent order of transfer dated 11th December 2007 was passed. This order was also signed by Section Officer who is inferior in rank to that of the petitioner. (7) WE think that in absence of any such established rules and norms this procedure is wholly illegal and unfair besides being humiliating at the hands of inferior officer. If this procedure is supported then decision making process for transfer is allowed to remain with the inferior officer primarily. Order of transfer as we have already indicated, has to be passed and issued by the competent officer himself with application of his own mind and following norms. It appears to us that only in this case perhaps for the first time this unhealthy and illegal procedure has been adopted. Just because some official accepted this order of transfer as urged by the respondents, it does not become valid or lawful ipso facto. We cannot support this sort of orders of transfer. It appears to us that only in this case perhaps for the first time this unhealthy and illegal procedure has been adopted. Just because some official accepted this order of transfer as urged by the respondents, it does not become valid or lawful ipso facto. We cannot support this sort of orders of transfer. The petitioner has also given all instance by which order of transfer is modified and he is allowed to remain for longer time undisputedly considering his family problem. (8) HOWEVER, the same was not addressed to. Under such circumstances, we find that there is force in the submission of the learned counsel for the petitioner that the judgment and order of the learned Tribunal is legally flawed whilst it upholds the procedure of transfer as made in this case. We, therefore, set aside both the orders of transfer signed by Section Officer. None of these orders shall be given effect to, however, it would be open for the Director himself to issue fresh order of transfer after considering the petitioners family problem on account of the illness of his wife as mentioned in the instant application ignoring any ones recommendation if any, as he says that the nature of treatment which is available in Kolkata cannot be had at elsewhere. Till such decision is taken the petitioner will obviously remain in Kolkata. (9) WE also desire that Archaeological Department must frame rules and policy regarding the transfer of the officers and such rules and norms as early as possible in accordance with law, must be published amongst the officers as we find from the report of the Parliamentary Standing Committee that there is none. Thus, the application is disposed of. No order as to costs. Application disposed of.