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2008 DIGILAW 841 (GAU)

Yomtum Ete v. State of Arunachal Pradesh

2008-12-10

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR

body2008
JUDGMENT B.P. Katakey, J. 1. The order of transfer dated 27.7.2008 (issued on 30.7.2008) passed by the Secretary (Power), Government of Arunachal Pradesh, Itanagar, transferring the Petitioner, who is an Assistant Engineer (E&M), from E&M Sub-Division, Aalo to Bomdilla, Department of Hydro Power Development, in place of the Respondent No. 3, has been challenged by the Appellant in WP(C) No. 304(AP)/08 on the ground of violation of the relevant policy guideline formulated by the Government of Arunachal Pradesh, inasmuch as the Appellant has not completed 4 (four) years of his tenure as Assistant Engineer in Aalo as well as on the ground of mala fide and arbitrary exercise of the power as the same has been exercised just to accommodate the Respondent No. 3 in Aalo. The said writ petition has been dismissed by the learned Single Judge vide order dated 14.8.2008 and hence, the present appeal. 2. We have heard Mr. K.N. Choudhury, the learned senior Counsel for the Appellant as well as the learned State Counsel appearing on behalf of the Respondent Nos. 1 and 2 and Mr. A.K. Goswami, the learned senior Counsel appearing on behalf of the Respondent No. 3. 3. Mr. Choudhury, the learned senior Counsel for the Appellant referring to the communications dated 27.6.2008 issued by the local M.L.A. as well as dated 11.7.2008 issued by the Minister (Home, Vigilance, etc.), Government of Arunachal Pradesh has submitted that the process for transfer of the Respondent No. 3 vis-a-vis the Appellant has been initiated at the instance of the said M.L.A. and the Minister, who has nothing to do with the business of administration of the department and that too without following the guideline issued by the Government for transferring its officers dated 2.6.1998 and as modified vide circular dated 28.2.2002, wherein it has been stipulated that the normal tenure of posting in a category-A station shall be 4(four) years. According to Mr. Choudhury, the Appellant was posted as Assistant Engineer in Aalo on 14.10.2005 and by the impugned order he has been transferred to Bomdila even before completion of 4(four) years normal tenure of posting in one place, as stipulated in the transfer guideline. Mr. According to Mr. Choudhury, the Appellant was posted as Assistant Engineer in Aalo on 14.10.2005 and by the impugned order he has been transferred to Bomdila even before completion of 4(four) years normal tenure of posting in one place, as stipulated in the transfer guideline. Mr. Choudhury submits that the power of transfer has been exercised in the instant case arbitrarily, mala fide and only with a view to accommodate the Respondent No. 3 in Aalo and as such the same is to be interfered with. Mr. Choudhury in support of his contention has placed reliance on a decision of the Apex Court in Sarvesh Kumar Awasthi v. U.P. Jal Nigam and Ors. (2003) 11 SCC 740. 4. The learned State Counsel, on the contrary, has submitted that the order of transfer has been passed in public interest and keeping in view the difficulty being faced by the Respondent No. 3 and. on the basis of his representation submitted before the Secretary (Power) seeking transfer from Bomdila to a place nearer to his home on the ground that his father recently had undergone bypass surgery, for which it has become necessary to Took after him. According to the learned State Counsel, there is nothing illegal in recommending the case of the Respondent No. 3 by the local M.L.A. as well as by the Minister. It has further been submitted that the transfer policy circulated vide circular dated 2.6.1998 read with circular dated 28.2.2002 do not totally debar the authority from transferring an officer before completion of 4(four) years tenure in a particular place of posting and the authority on compassionate and health ground with the approval of competent authority can transfer such an officer before completion of such period. The Government being the model employer has to look into the difficulties being faced by its officers/employees and, therefore, it cannot be said that the power of transfer has been exercised arbitrarily and in violation of the transfer policy, submits the learned State Counsel. It has further been submitted that the Appellant in the writ petition has not alleged any mala fide against any one and the case of the Appellant in the writ petition is only that the impugned transfer is in breach of the guidelines and policy formulated by the Government of Arunachal Pradesh. 5. Mr. It has further been submitted that the Appellant in the writ petition has not alleged any mala fide against any one and the case of the Appellant in the writ petition is only that the impugned transfer is in breach of the guidelines and policy formulated by the Government of Arunachal Pradesh. 5. Mr. Goswami, the learned senior Counsel for the Respondent No. 3 supporting the argument of the learned State Counsel has also submitted that the Government being the model employer, there is nothing wrong in transferring the Respondent No. 3 from Bomdila to Aalo vice the present Appellant as the Respondent No. 3 father had undergone a bypass heart surgery for which constant care is required to be taken by the Respondent No. 3. It has further been submitted that the Appellant though was posted as Assistant Engineer on 14.10.2005 on promotion he has been serving in Aalo Sub-Division for a long time before his promotion. 6. The order of transfer can be interfered with in exercise of the power conferred by Article 226 of the Constitution of India if the same is contrary to the statutory rules or has been passed arbitrarily or in mala fide exercise of the power. Such an order can also be challenged on the ground of infraction of any career prospects, such as seniority, scale of pay and secured emoluments. An order of transfer made even in transgression of administrative guidelines cannot be interfered with by the court, as they do not confer any legally enforceable rights, unless of course, it is shown to be vitiated by mala fides or is made in violation of any statutory provision. The administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer to any place in public interest and as is found necessitated by exigencies of service, without however, affecting his official status adversely. State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 . 7. State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 . 7. In the case in hand, there is no denial of the fact that the Respondent No. 3 father had undergone a bypass surgery of heart and he has to take care of his father, for which he filed a representation before the authority for his transfer from Bomdila to a place nearer to his home. The Government being the model employer has to look into the difficulties being faced by its officers/employees. There is nothing wrong in recommending the case of the Respondent No. 3 for transfer by the local M.L.A. and even by a Minister, when the grounds on which the order of transfer has been sought for or recommended is not non existent. The power exercised by the authority in the backdrop of such fact cannot at all be termed as arbitrary or mala fide exercise of power, so as to interfere with the same by the court. The court cannot sit on appeal over the decision of the authority to transfer on the grounds therefor. An order of transfer may be termed as arbitrary if, in a given case, an officer has been transferred from one place to another on the basis of a representation filed by him citing the grounds for transfer, which does not at all exist. Even the transfer of policy dated 2.6.1998 read with the circular dated 28.2.2002 have not been violated in this case as it provides that though normally an officer should not be transferred before completion of the period of 4(four) years in category. A station, order of transfer can be passed even before completion of 4(four) years tenure, on promotion, for filling up of crucial vacancy based on specialization and on compassionate and health grounds with the approval of the competent authority. 8. There is no dispute to the proposition that the power of transfer of an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned, as observed by the Apex Court in Sarvesh Kumar Awasthi (supra). In the instant case, as discussed above, the order of transfer cannot be termed as arbitrary or mala fide exercise of the power vested on the authority. In the instant case, as discussed above, the order of transfer cannot be termed as arbitrary or mala fide exercise of the power vested on the authority. Appellant in fact in the writ petition has not demonstrated the basic fact requires to constitute mala fide. 9. In view of the aforesaid discussion, we do not find any merit in the appeal and, hence, the same is dismissed. Appeal dismissed