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2009 DIGILAW 713 (GAU)

Maheswar Doley v. State of Assam

2009-09-24

HRISHIKESH ROY, J.CHELAMESWAR

body2009
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. A.K. Goswami, Learned Senior Counsel appearing for the appellant. Also heard Learned Counsels appearing for the respondents. 2. This intra court appeal is filed against the judgment and order dated 17.2.2009 in WP(C) No. 5410/08, whereby the writ petition filed by the appellant has been dismissed on the ground that the challenge in the writ petition pertains to a transfer order, which cannot be a subject matter of a judicial determination. 3. The writ petitioner who was serving as the Administrative Officer in the Directorate of Agriculture, Assam since August 2004 approached the writ court to challenge the order dated 16.12.2008 whereby, in an alia, the writ petitioner was transferred and posted in the vacant post of Administrative Officer in the Directorate of Sericulture, and the respondent No. 5 Kumud Chandra Bhattacharjee on promotion was posted in the post of Administrative Officer held by the writ petitioner. Under Rule 6 of the Assam Directorate Establishment (Ministerial) Service Rules, 1973 ('the Rules') respondent No. 5 was appointed to the post of Administrative Officer, in the Directorate of Agriculture. 4. The petitioner challenged his transfer, on the ground that he is reaching the age of superannuation in September 2009 and was on the verge of retirement and it would extremely inconvenient for him if he is to be transferred to another Directorate. It was also contended that several posts of Administrative Officer in different Directorates were lying vacant at the relevant point of time and if the respondent No. 5 is to be appointed on promotion to the post of Administrative Officer, he can be posted to any of the vacant posts. The petitioner also submitted that the respondent No. 5 has served in the Directorate of Agriculture for a very long time in different posts (other than as Administrative Officer) and merely because the writ petitioner has completed 41/2 years of service in his post in the Directorate of Agriculture, his transfer on the verge of retirement, is not justified even in public interest. 5. During the writ proceedings, the official records showing the process leading to the impugned transfer order dated 16.12.2008 was produced which revealed that the decision to transfer the petitioner front the Directorate of Agriculture was taken, as the petitioner had completed more than 41/2 years of service, in the said post. 5. During the writ proceedings, the official records showing the process leading to the impugned transfer order dated 16.12.2008 was produced which revealed that the decision to transfer the petitioner front the Directorate of Agriculture was taken, as the petitioner had completed more than 41/2 years of service, in the said post. The learned Single Judge also took note of the fact that the power of the writ court to interfere with a transfer order is severely circumscribed and intervention would not be justified unless the transfer and posting is contrary to the laid down norms or the Rules in force. It was also recorded that no plea of mala fide has been raised by the writ petitioner. With regard to posting of the respondent No. 5 in the post held by the writ petitioner, the court observed that, it was for the employer to decide in which post the respondent No. 5 should be posted on his promotion and it is not necessary that such posting has to be made to one of the vacant posts of Administrative Officer. The learned Single Judge after having examined the records and the contentions raised held that it was not an appropriate case for grant of relief prayed for by the writ petitioner and the consequent dismissal of the writ petition has given rise to the present appeal. 6. Appearing for the appellant/writ petitioner, Mr. A.K. Goswami submits that when several vacant posts of Administrative Officers in different Directorates are available, there was no necessity to order transfer of the petitioner in December 2008, particularly when he is due for superannuation in the month of August 2009. Mr. Goswami also contends that if the transfer of the writ petitioner is found to be justified on the ground that he had served as Administrative. Officer in the Directorate of Agriculture for about 41/2 years, the respondent No. 5 too had served all his service life in the Directorate of Agriculture and, therefore, when the respondent No. 5 is to be posted as an Administrative Officer on promotion under the Rules, it would have been more appropriate to post the respondent No. 5 in another Directorate and permit the writ petitioner to continue in the Directorate of Agriculture. 7. Mr. K.N. Choudhury, learned Addl. 7. Mr. K.N. Choudhury, learned Addl. Advocate General representing the State authorities submits that transfers are to be made in the exigencies of service and cannot be a subject matter of judicial scrutiny unless there is infraction of any Statutory Norms or if there is evidence of the transfer being made for mala fide considerations and since the administration has clearly indicated why they choose to transfer the writ petitioner and the Administrative reasons have already been accepted by the learned Single Judge, interference in this intra-court appeal may not be justified. 8. We have considered the submissions made by the Learned Counsels appearing for the parties. It appears that the appellant has challenged the transfer order primarily on the ground that he was due for retirement on reaching the age of superannuation and the Government could have permitted him to continue in the Directorate of Agriculture, while posting the respondent No. 5 in another Directorate. But in our view which officer is to be posted where is a matter, entirely within the domain of administration and unless judicial intervention is found to be justified on the limited parameters of infraction of laid down Norms/Rules or mala fide exercise of power, intervention by a court in a matter of transfer would not be justified. 9. Even on re-examination of the argument advanced by the writ petitioner in this appeal, we do not find any reason to take a different view in the matter than the one taken by the learned Single Judge. Accordingly we dismiss this writ appeal and sustain the impugned order in the writ proceeding. It is ordered accordingly.