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2008 DIGILAW 706 (GAU)

M. A. Ezung v. State of Nagaland

2008-09-17

UTPALENDU BIKAS SAHA

body2008
JUDGMENT U.B. Saha, J. 1. The challenge in this writ petition is to the transfer order dated 11.7.2008 (Annexure-A to the writ petition) whereby and whereunder the Petitioner has been transferred from Wokha to Longleng as Chief Medical Officer on the ground that the said order is a frequent transfer order and in violation of Office Memorandum dated 5.10.1990 (Annexure-B to the writ petition) and also a mala fide one. 2. Heard Mr. I. Longjem, learned Counsel for the Petitioner as well as Mr. L.S. Jamir, learned Senior Addl. Govt. Advocate appearing for the State Respondents and Mr. T.B. Jamir, learned Counsel appearing for the private Respondent No. 3. 3. The pleaded case of the Petitioner is that he was appointed in the year 1980 as Assistant Surgeon-I and was posted at Baghty Block, Wokha. Thereafter, he was transferred from the said Block to Bhandari vide order dated 17.11.1982 and again he was transferred from one place to Anr. within a very short tenure and ultimately, he was transferred from Kohima to Wokha vide order dated 25.9.2006 and till the issuance of the impugned order dated 11.7.2008 by which he has been transferred from Wokha to Longleng, he was working at Wokha. Being aggrieved by the impugned order of transfer dated 11.7.2008, the Petitioner approached this Court challenging the same by way of filing WP (C) No. 127(K) of 2008 and this Court vide order dated 22.7.2008 has disposed of the writ petition directing the Commissioner and Secretary to the Govt. of Nagaland, Health & Family Welfare Department to dispose of the representation of the Petitioner dated 18.7.2008 within ten days from the date of receipt of certified Secretary to the Govt. of Nagaland, Health & Family Welfare Department considered the said representation of the Petitioner and rejected the same, which was communicated to the Petitioner vide letter dated 29.7.2008 (Annexure-E to the writ petition) wherein it is stated that the representation of the Petitioner has been carefully considered by the Government and it is found that his transfer has been done in the exigencies of service and in public interest keeping in mind the need of the Government to bring the Health Services in all Districts at par in the State and as Longleng is a newly established District, the services of the Petitioner is called for. After the rejection of the representation, the Petitioner has filed the present writ petition on the ground stated at the beginning of this judgment along with the ground that the usual practice is to transfer and post an officer from one place to Anr. minimum period is three years and in the instant case, the Petitioner was allowed only 22 months to serve in a place. 4. The State Respondents have filed a detailed affidavit-in-opposition denying all the allegations of the writ Petitioner. 5. Mr. Longjem, learned Counsel for the Petitioner in support of the contentions made in the writ petition submits that the transfer of the Petitioner from Wokha to Longleng as Chief Medical Officer is wholly contrary to the Office Memorandum dated 5.10.1990 as the transferring authority did not indicate the detailed reasons for his transfer from Wokha to Longleng which is the requirement for transferring an officer from one place to Anr. within ashort tenure. Learned Counsel further submits that during the 28 years of service the Petitioner has been transferred from one place to Anr. as many as 14 times and sometime he has been transferred on the basis of the complaint of the local people of the respective area. He also urged that the present transfer order is issued only to accomodate the Respondent No. 3 herein Dr. N.M. Kithan, Mr. Longjem finally submits that the frequent transfer of the Petitioner from one place to Anr. has resulted in great hardship for him to maintain his family and also the frequent transfer of the Petitioner establishes mala fide intention of the authority. 6. To oppose the submission of the learned Counsel for the Petitioner, Mr. Jamir, learned Senior Addl. Govt. Advocate submits that the Petitioner being a doctor is discharging his duties in a department of the Government relating to essential services and he is bound to serve in an area as required by the Government in public interest. A Govt. employee should not have any choice to be transferred in a particular place and the Petitioner is not like an ordinary employee working in a public office. He further submits that right to health includes right to life and the Government is bound to protect the lives of the citizens and for which the Government has established the Govt. Hospitals in various parts of the State and employed the people like the Petitioner. Mr. He further submits that right to health includes right to life and the Government is bound to protect the lives of the citizens and for which the Government has established the Govt. Hospitals in various parts of the State and employed the people like the Petitioner. Mr. Jamir urged that by the impugned transfer order the Petitioner has not been singly transferred, rather along with him other 11 persons have been transferred from one place to Anr., which shows that the impugned transfer order is general in nature and the same has not been issued with any mala fide intention to transfer the present Petitioner. Learned Sr. Addl. Govt. Advocate also submits that by this time it is settled by the Apex Court who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it and in the instant case, the Petitioner has failed to make out any case of mala fide against the Government or any individual officer and it is not a case of clear violation of the Office Memorandum dated 5.10.1990 (Annexure-B to the writ petition). According to him, even if the aforesaid Office Memorandum dated 5.10.1990 is violated then also the Petitioner has no right to challenge the impugned order of transfer as the said O.M. has no legal force. He further submits that transfer after short spell and/or frequent transfer itself cannot be construed as mala fide and who should be transferred where cannot be considered even by the authority in a straightjacket formula. The whole thing depends on necessity depending on public interest, but surely the authority has no right to act mechanically. He finally submits that in every transfer when an employee is transferred from one place to Anr., in his place Anr. employee has to be accommodated and in the instant case also while the authority considered the transfer of the Petitioner, at the same time considered to fill up the vacancy of the Petitioner by way of posting the Respondent No. 3 and that cannot be said to be a simple accommodation. Posting of all employees is an accommodation, but court has to consider whether that accommodation is in the public interest or in the personal interest. 7. Mr. Posting of all employees is an accommodation, but court has to consider whether that accommodation is in the public interest or in the personal interest. 7. Mr. T.B. Jamir, learned Counsel appearing for the Respondent No. 3 submits that the Respondent No. 3 has no interest to serve in any particular place of the State as being a Govt. employee he is bound to serve in any place within the State of Nagaland in view of the terms and condition of service. Here, it is the Government who transferred and posted him at Wokha and the said transfer order is not in his behest and there is no allegation in the writ petition that the Respondent No. 3 has been transferred and posted at Wokha by any individual officer of the Government only to provide him certain benefit or in his personal interest. He ultimately adopted the submission made by the learned Senior Addl. Govt. Advocate. 8. This Court has given anxious consideration to the rival submission made by the parties. 9. In Union of India and Ors. v. S.L. Abbas AIR 1993 SC 2444 , the Apex Court held-- ...who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer of Government employee, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject, but the said guidelines do not confer upon the Government employee a legally enforceable right. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. In the instant case, the Respondent authority in view of the order of this Court considered the representation of the Petitioner carefully, and rejected the prayer for cancellation of the transfer order in exigencies of administration and in public interest. In the instant case, the Respondent authority in view of the order of this Court considered the representation of the Petitioner carefully, and rejected the prayer for cancellation of the transfer order in exigencies of administration and in public interest. Not only that in their affidavit-in-opposition, the State Respondents have specifically stated that Longleng being a newly upgraded District requires an experienced senior officer to scale up the infrastructure of upgradation of the health care delivery system like other Districts in the State and Longleng is presently below average compared to other Districts in the State in so far as Health Care Delivery System to the general public is concerned and the Petitioner being an experienced Senior Medical Officer, his service is required there in public interest and in the State of Nagaland, there is no laid down rules or guidelines relating to transfer of an employee. 10. In the case of Kalyan Kumar Sarkar v. Alok Kanti Paul Choudhury and Ors. reported in 2006 (3) GLT 624 : (2007) 1 GLR 462, a Division Bench of this Court considering the decision of the Apex Court held that the burden of establishing mala fide is very high on the person who alleges it and it being a very serious allegation against a person, it demands proof of a higher order of credibility and must be supported by the foundational facts and the person against whom the mala fides is alleged must also be impleaded as party so that he gets an opportunity to controvert such allegation. By this time, it is also settled by the Apex Court that it is very easy to make allegation of mala fide than to prove, but at the same time, it may not always be possible to demonstrate malice in fact with full and elaborate particulars and in appropriate case it may be permissible to draw reasonable inference of mala fide from the facts pleaded and established see E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555 . In the instant case, the Petitioner did not make any allegation of mala fide against any particular person, rather pleaded vague allegation of mala fide without specifying either any particular person or any particular post held by a particular officer. In the instant case, the Petitioner did not make any allegation of mala fide against any particular person, rather pleaded vague allegation of mala fide without specifying either any particular person or any particular post held by a particular officer. The expression mala fide has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehension but there must be existing definite evidence of bias and action which cannot be attributed to be definite evidence of bias and action which cannot be attributed to be otherwise bona fide as held by the Apex Court in State of Punjab v. V.K. Khanna AIR 2001 SC 343 . 11. Now, question remains to be answered whether the frequent transfer of an employee like the Petitioner can be considered as a mala fide. According to this Court, the transfer of an employee from one place to Anr. depends upon public interest. It cannot be said that every transfer is mala fide unless a specific case is made out by the employee transferred with some specific allegation, here in this case which is totally absent. 12. It is also settled by this time that where there is no question of mala fide, an employee cannot resist a transfer order merely on the ground that it will cause hardship or inconvenience to him and the court also cannot interfere with such a transfer order unless it is issued with mala fide intention or by the incompetent authority or in violation of any statutory rules meaning thereby an order of transfer cannot be faulted with on the ground of hardship simpliciter. 13. For the aforesaid reasons and observations, this Court finds no merit in this writ petition, which is accordingly dismissed leaving the parties to bear their own cost.