Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 235 (GAU)

Sunit Kumar Bardoloi v. State of Assam

2010-03-31

A.C.UPADHYAY

body2010
JUDGMENT Arun Chandra Upadhyay, J. 1. Heard Mr. B.C. Das, learned senior counsel assisted by Mrs. R. Borah, learned Counsel for the Petitioner. Also heard Dr. B. Ahmed, learned standing counsel representing the Irrigation Department, Govt. of Assam as well as Mr. C. Baruah, learned Counsel for the Respondent No. 5. 2. By this application under Article 226 of the Constitution of India, the Petitioner has challenged the transfer order dated 28.08.2009 issued by the Respondent authority, on the ground of arbitrariness, lack of public interest and for being violative of the transfer policy formulated by the Government of Assam. 3. Facts leading to filing of this writ petition may be stated briefly as follows: The Petitioner, is working as Assistant Executive Engineer at Sibsagar Mechanical Sub-Division at Sibsagar, since 18.02.2009. Prior to his posting at Sibsagar, Petitioner worked in Dibrugarh Mechanical Division (I), Dibrugarh, for more than three years and thereafter he was transferred to Sibsagar, just before the last general election. 4. The Respondent No. 2 by the impugned order dated 28.08.2009, transferred the Petitioner from Sibsagar Mechanical Sub-Division to Upper Assam Drilling Division (I). Jorhat in the same capacity within six months from the date of earlier transfer. Thus apparently, ho has not completed the normal tenure of three years in the present place of posting. On receiving the transfer order, the Petitioner submitted a representation before the Respondent No. 2, requesting him to stay and/or modify the said transfer order. However, the Respondent No. 2 has not so far disposed of the representation submitted by the Petitioner. It has been submitted on behalf of the Petitioner that since the Petitioner has not completed three years of normal tenure in his present place of posting, he could not have been transferred without obtaining the approval of the Hon'ble Chief Minister, Assam, in terms of the guidelines/instructions issued by the State Respondents regulating the transfer of Government employees. 5. The Petitioner submitted that the impugned transfer order was issued arbitrarily by Respondent No. 2 at the behest of some political leaders, without obtaining prior approval of the Chief Minister, Assam and in violation of the transfer policy of the State Government. 6. The Petitioner further submits that during the last general election, officers of the Irrigation Department were transferred by an order dated 18.02.2009, in terms of guidelines issued by the Election Commission of India. 6. The Petitioner further submits that during the last general election, officers of the Irrigation Department were transferred by an order dated 18.02.2009, in terms of guidelines issued by the Election Commission of India. After the election was over, some of the officers wanted to go back to their respective earlier places of postings. The Petitioner, having come to know about such arrangements having been hatched by the officers, submitted application to the Respondent No. 2 through the Executive Engineer, Jorhat, Mechanical Division (Irrigation), on 05.06.2009, requesting not to transfer him from Sibsagar till completion of his normal tenure of three years in the place of posting. The Petitioner further stated that he was also given assurance by the Respondent No. 2 that there was no proposal to transfer him from the present place of posting. Despite such assurances the Petitioner was transferred by issuing the impugned transfer order. The Petitioner further stated that immediately after the transfer order, he had submitted a representation apprising the Respondent No. 2 regarding his difficulties in complying with the said transfer order and requested to stay the said transfer order. But the representation was kept pending before the Respondent No. 2. 7. It is submitted on behalf of the Petitioner that on receipt of the copy of the transfer order dated 28.08.2009, issued by the Respondent No. 2, the Petitioner came to know that the Respondent No. 2 issued the impugned transfer order on 28.08.2009, transferring the Petitioner from Sibsagar to Jorhat against the post held by one Sri Anup Kumar Baruah (Respondent No. 5). The Petitioner could gather that the Respondent No. 5 was transferred from Sibsagar to Jorhat in the post held by Respondent No. 5, prior to his transfer to Jorhat before general election. 8. On perusal of the impugned transfer order dated 18.02.2009, it appears that Sri Anup Kumar Baruah, Respondent No. 5, was transferred from Sibsagar to Jorhat vice the Petitioner, who was transferred to Jorhat. 9. It has been contended on behalf of the Petitioner that impugned transfer order has not been complied with since the new incumbent has not relieved him. On perusal of the impugned transfer order dated 18.02.2009, it appears that Sri Anup Kumar Baruah, Respondent No. 5, was transferred from Sibsagar to Jorhat vice the Petitioner, who was transferred to Jorhat. 9. It has been contended on behalf of the Petitioner that impugned transfer order has not been complied with since the new incumbent has not relieved him. The learned Counsel for the Petitioner further pointed out that the transfer order issued by the Respondent No. 2 is not in the exigencies of public service, and the Petitioner had positive information that some political leaders were instrumental in getting the impugned transfer order issued to favour Respondent No. 5. 10. The learned Counsel for the Petitioner submits that the impugned transfer order, on the face of it was issued to accommodate Respondent No. 5. Therefore, such action of the State Respondents being arbitrary exercise of power, is not sustainable in law, inasmuch as the same being founded on mala fide and colourable exercise of the power; and the sole purpose of issuing the impugned transfer order is to accommodate some favourable persons, in the post held by the Petitioner. 11. The Apex Court and this High Court in a number of decisions on the similar issue of transfer of Government employees held that if the transfer in question issued by the authority concerned is not in public interest or in administrative exigencies or if such order is issued mala fide or in violation of statutory rules, such exercise of power would amount to arbitrariness in the Government action. The learned Counsel for the Petitioner urged upon the Court to look into the relevant file of the concerned Department to ascertain as to whether the impugned transfer order in question is supported by valid reasons and whether the transfer order has been issued within a few months of the earlier transfer order, without of tainting the approval from the Chief Minister, Assam, as required under the Office Memo, dated 19.09.1992 and 04.02.2002. 12. In reply to the above submissions, Mr. 12. In reply to the above submissions, Mr. Baruah, learned Counsel appearing for the private Respondent submitted that the guidelines dated 04.02.2002, which prescribes the procedure for recording reasons for transfer and taking of approval from the Chief Minister, for transferring of an officer prior to completion of three years tenure in one station, has no statutory force and consequently no legal right can accrue to the Petitioner, for any violation of the procedure laid in such guide lines. 13. In support of his contention, the learned Counsel for the Respondent No. 5 relied on a decision of this Court in Pramath Chandra Sarma v. State of Assam and Ors. 2007 (1) GLT 212 : 2007 (1) GLJ 317 wherein it has been held that unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violation of any statutory provision or any act or rule passed by any authority not competent to do so, such approval order can only be interfered with by the writ Court. He further submits, even allegations of mala fides when it is made must be such as to inspire confidence in the Court or must be based on substantial materials with convincing reasons and in the absence of which no interference can ordinarily be made in respect of transfer order. 14. The learned Counsel for the Respondent No. 5 further contended that if the competent authority issued transfer order with a view to accommodate a public servant to avoid hardship, such order should not be interfered by the Court merely because of the transfer order is passed on the request of the employees concerned. To support the above contention, the learned Counsel appearing for the Respondent No. 5 relied on the decision reported in 1991 (Supp.) (2) SCC 659 Shilpi Bose (Mrs.) and Ors. v. State of Bihar and Ors. 15. I have perused the relevant office file maintained by the State Respondents concerning the issue of transfer. Admittedly, transfer policy adopted by the State Government provides that in case of premature transfer, prior approval of the Chief Minister is required to be obtained. On perusal of the same, it transpires that the Petitioner was transferred within six months from Sibsagar and apparently in violation of the transfer guidelines and without obtaining prior approval of the Chief Minister. 16. On perusal of the same, it transpires that the Petitioner was transferred within six months from Sibsagar and apparently in violation of the transfer guidelines and without obtaining prior approval of the Chief Minister. 16. As it appears to this Court on perusal of the office file that the impugned transfer order was issued without assigning any administrative exigency. Apparently, to accommodate the Respondent No. 5, in this context the learned Single Bench of this Court in Dilip Kr. Saikia v. State of Assam and Ors. 2005 (4) GLT 371, held that a transfer order issued to accommodate another employee ignoring the interest of the concerned Petitioner cannot be deemed to be bona fides exercise of power and; such transfer orders cannot be said to have been issued in administrative exigency. The relevant observation of the Court is reproduced below: 16. It need not be emphasized that the matter of transfer falls within the domain of executive and for the purpose of administrative exigency transfer order may be needed. It is also for a good and healthy administration, but when the administrative exigencies arc not established, the transfer order is liable to be set aside. Naturally, the question comes up-what is administrative exigencies? The Apex Court in the case of K.B. Shukla and Ors. v. Union of India and Ors. as reported in (1979) 4 SCC 673 has explained: the responsibility for good administration is that of the Government. The maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. Therefore, the Government alone is best suited to judge as to the existence of exigencies of such a service, requiring appointments by transfer. The term "exigency" being verifica understood in its widest and pragmatic sense as a rule, the Court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it is vitiated by mala fides, dishonesty, extraneous purpose, or transgression of the limits circumscribed by the legislation. 17. A transfer order issued as in the instant case only to accommodate another person and that too without affording any opportunity to the person whose interest is effected, cannot be said to be an order issued in administrative exigencies. 18. 17. A transfer order issued as in the instant case only to accommodate another person and that too without affording any opportunity to the person whose interest is effected, cannot be said to be an order issued in administrative exigencies. 18. For the foregoing reasons and discussion, 1 have no hesitation to hold that the impugned order of transfer dated 14.10.2003 has not been issued in any public interest, but has been issued only to accommodate the Respondent No. 5 and in the process the aforesaid transfer guidelines came to be violated. Consequently, the impugned order of transfer dated 14.10.2003 stands set aside and quashed. It is made clear that both the Respondent No. 5 and the writ Petitioner will be entitled to their respective salary for the intervening period since it is the official Respondents who have created the anomalous situation. Their salary for the said period shall be paid immediately. It is also made clear that the interference with the impugned transfer order dated 14.10.2003 will not be preclude the official Respondents from taking a fresh decision in the matter strictly in-accordance with law and consistently with the observations made above. In the event of taking any action which might adversely effect the interest of the writ Petitioner, he must be given an opportunity to have his say in the matter. 17. In Andrew Banrilang Umdor v. Slate of Meghalaya and Ors. 2007 (4) GLT 712, the learned Single Bench of this Court held that any transfer order even though administrative in nature must be supported by reasons. In this context, the observations made by the learned Single Judge referring to the decision of the Hon'ble Supreme Court reported in Sarvesh Kumar Awasthi v. U.P. Jul Nigam and Ors. (2003) 11 SCC 740, read as follows: 3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or any exercise against efficient ad independent officer or at the instance of politicians whose work is not done by the officer concerned for better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. The above decisions made it amply clear that an order of transfer of an employee cannot be made without valid reasons. In such view of the matter, I have no hesitation to answer the question raised by the learned Counsel for the Respondents in the affirmative and to say that an order of transfer even though in the nature of administrative order must be supported by valid reasons. 27. The on y question that now remains to be answered is whether the impugned order of transfer can be said to be duly supported by reasons in the present case. As already noted above, the concerned file produced by the Department neither reflects existence of the conditions for he exercise of the power under challenge nor does it indicate any reason so as to show that the power was exercised for professed purpose. 28. In the above circumstances, the contention of the learned Counsel for the Petitioner that he impugned order was passed to accommodate the Respondent No. 4 for undisclosed reasons cannot be easily brushed aside. 18. In yet another decision reported in Dr. Narul Islam v. State of Assam and Ors. (1993) 2 GLR 164, the learned Single Bench of this Court held that the High Court in exercise of jurisdiction under Article 226 of the Constitution would not interfere with such administrative orders. However, further observed that the order transferring Govt. servants from one place to another should not be passed arbitrarily, and capriciously, tainted by favouratism and nepotism or corruption. The relevant observation of the learned Single Judge of this Court reads as follows: 10. No doubt Govt. servant having transfer liability may be transferred and posted from one place to another in the interest of public service by the competent authority and this Court in the exercise of jurisdiction under Article 226 of the Constitution would not interfere with such administrative order. But the order transferring Govt. servant from one place to another should not be passed arbitrarily and capriciously and the order of transfer must not appear to be tainted by favouratism and nepotism and/or corruption. I do not suggest that act of favouritism and nepotism and/or corruption has occurred in the instant case, but what I like to point out is that the Govt. or the competent authorities must not exercise discretion in ordering transfer of Govt. I do not suggest that act of favouritism and nepotism and/or corruption has occurred in the instant case, but what I like to point out is that the Govt. or the competent authorities must not exercise discretion in ordering transfer of Govt. servant arbitrarily which may give rise to misgivings in the minds of a section of Govt. servants that act of nepotism and favouritism and/or corruption occurred in passing the order of transfer. 19. As stated by the Petitioner, even after being assured of no transfer order by an officer of the rank of Respondent No. 2, the impugned order was issued. In our system of governance, senior officers occupying key positions, such as the Secretaries to the Government; therefore in discharging official duty such officers should not sacrifice their own discretion at the behest of individual request. Whether personal desire of the Government functionaries can be said to be in the public interest came to be discussed before the Division Bench of this Court in ToheliSwni v. State of Nagaland and Ors. 2009 (2) GLT 956. The relevant observation of which reads as follows: 18. As in the instant case, in the said case also, the interim order passed by this Court suspending the operation of the transfer order, there was interference in respect of the same and the Petitioner was not allowed to join the institution. Noticing such facts, coupled with the colourable exercise of power clearly evident from the face of it it was further observed as follows: What more remains in the case to infer colourable exercise of power on the part of the authorities? The learned Single Judge mistook it to be a case or malice imputed against the MLA or Minister-in-charge which it was certainly not as has been pointed out by the Supreme Court in B. Prabhakar Rao and Ors. v. State of Andhra Pradesh and Ors. AIR 1986 SC 210 , merely because certain questions have to be determined incidentally in giving or not giving the relief asked for in the petition does not make each and every persons interested in such question necessary parties to such proceeding. v. State of Andhra Pradesh and Ors. AIR 1986 SC 210 , merely because certain questions have to be determined incidentally in giving or not giving the relief asked for in the petition does not make each and every persons interested in such question necessary parties to such proceeding. In the instant case necessary parties, the authority passing the transfer order was very much there and it was for him to satisfy the Court that the impugned order of transfer was not made on any extraneous consideration or any colourable exercise of power, it was in fact public interest as professed in the order, but that has not been done. The impugned order is liable to be set aside on this count. 19. In Jibeswar Thakuria v. State of Assam reported in 2004 (1) GLT 347 noticing the fact that there was all round interference by political authorities in the matter of transfer orders, same were interfered with. It was found that taking the name public interest, the private interest of the recommending authorities, i.e., the Minister of other departments having no nexus with the department in question, had been given preference and the private Respondents had been accommodated as per their choice. 20. We have gone through records produced by the learned State Counsel. On perusal of the same, no public interest is discernible towards issuance of the impugned order of transfer. The personal desire of the Parliamentary Secretary cannot be said to be "the public interest". The concept of public interest so well cherished in the matter of transfer has been put to oblivion with the use of its form and not the contents. The officers occupying key positions just yielded to the pressure of the Parliamentary Secretary and gave way to his command. It is in this context the Apex Court in the case of Tarilochan Dev Sharma v. State of Punjab reported in (2001) 6 SCC 260 observed thus: In the system of Indian democratic governance as contemplated by the constitution, senior officers occupying key positions such as Secretaries are not suppose to mortgage their own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No government servant shall in the performance of his official duties or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; exercise under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd. are instructive and apposite. Executive officers may in exercise in their statutory discretions take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instruction by a superior to bind them. 20. Records reveal that the transfer order of the Petitioner was issued primarily on consideration of sudden request made by some political persons to accommodate Respondent No. 5. As a matter of fact, it has been reiterated in many decisions of the Apex Court that premature transfers of public servants at the behest of political functionaries do not serve public interest. 21. The learned Counsel for the Respondents, referring to the decision reported in State of V.P. v. Gobardhan Lal (2004) 11 SCC 402 , submitted that transfer orders should normally be eschewed and should not be interfered by the Courts and the allegations of mala fides must be such, which inspires confidence. The relevant extract of the decision referred to above may be gainfully reproduced below: 7. It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority n at competent to do so, an order of transfer cannot lightly be interfered with as a matter of course for routine for any or every type of grievance ought to be made. Even administrative guidelines for regulating transfers or cont lining transfer policies at best may afford an opportunity to the officer or servant 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/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated t lat the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as notice supra shown to be vitiated by mala fides or is made in violation of any statutory provision. 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or tribunals as though they are A appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. 22. 22. The learned Counsels for the private Respondent No. 5 as well as the State Respondents submitted that the guidelines issued by the State Government regarding recording of reasons and taking of approval of the Chief Minister, for transferring of an officer prior to completion of three years' tenure, has no statutory force and consequently no legal right can be said to have been infringed for not following the guidelines aforesaid. In support of their contentions, the learned Counsel for the Respondents relied on a decision of the Division Bench of this High Court reported in Kalyan Kr. Sarkar v. Alok Kanti Paul Choudhury and Ors. 2006 (3) GLT 624 which reads as follows: 7. The writ Court can exercise its power of judicial review under Article 226 of the Constitution of India only when the person seeking such writ establishes that his fundamental or other legal right has been infringed. The writ Court can issue a writ for enforcement of any of the rights conferred by Part III of the Constitution of India and also for enforcement of any other legally enforceable; right. The High Court can issue a writ of mandamus also to secure the performance of a public or statutory duty in the performance of which the person who seek such writ has a sufficient legal interest. In the instant case as; discussed above on of the ground for challenging the order of transfer dated 7.2.2006 is the violation of the transfer guideline/policy issued by the Chief Secretary as well as by the Commissioner, personnel department of the Government of Assam. Such guideline or the transfer policy has no statutory backing those are merely the instructions and cannot be enforced in the Courts of law. Such guidelines/policy having no statutory force no right can be claimed on such guideline/policy and those cannot be enforced. Those administrative guidelines regulating the transfer and containing the transfer policy at the best may afford the opportunity to the officer concerned to approach their higher authorities but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer from any place in public interest as long as official status is not affected adversely and there is no infraction of any career prospect such as seniority, scale of pay and secured emoluments. Therefore, the first ground of challenge to the order of transfer dated 7.2.2006 falls through. 23. Therefore, the first ground of challenge to the order of transfer dated 7.2.2006 falls through. 23. Even though the guidelines issued by the Government is considered to have no statutory force in view of the decision referred in Kalyan Kr. Sarkar's case (supra), however, the Petitioner has been able to establish that he was transferred from the present place of posting only to accommodate the Respondent No. 5, who was holding the same post prior to his transfer. Over and above, the State Respondents did not file any affidavit to show the extent of public interest involved and/or the exigency of public service, in transferring Respondent No. 5, immediately within six months to the same place, where he was previously posted. The above exercise on the part of the State Respondents apparently not in the interest of public service obviously would only to serve the political and/or personal interest of some individuals as reflected in the relevant file of the Department. This is what is apparently an arbitrary exercise of jurisdiction, which cannot be given a stamp of approval of this Court. 24. From the statement of the Petitioner it appears that the Respondent No. 2, who was supposed to decide the performance or efficiency of the Petitioner, admittedly did not approve the transfers. Therefore, the order or transfer of the Petitioner was made to accommodate a request of some individual/political leader who was not connected with the affairs of judging the performance of the officers or the interest of public service. In my opinion the above consideration made by the Respondent authority to transfer the Petitioner is mala fide and arbitrary exercise of powers. 25. For the foregoing reasons and discussion, I have no hesitation to hold that the impugned order of transfer dated 28.08.2009 has been issued not in public interest, but only to accommodate the Respondent No. 5, and in the process of doing so, the aforesaid transfer guidelines though it may not have statutory force, was violated. Consequently, the entire exercise carried out by the State Respondents being arbitrary and irregular, the impugned order of transfer dated 28.08.2009, stands set aside and quashed. It is made clear that the interference with the impugned transfer order dated 28.08.2009 will not preclude the official Respondents from taking a fresh decision in the matter strictly in accordance with law and consistent with the observations made above. 26. It is made clear that the interference with the impugned transfer order dated 28.08.2009 will not preclude the official Respondents from taking a fresh decision in the matter strictly in accordance with law and consistent with the observations made above. 26. Subject to the above observations, the writ petition stands allowed. There shall be no order as to cost. Petition allowed.