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2010 DIGILAW 368 (GAU)

Nikunja v. State of Assam

2010-05-26

I.A.ANSARI

body2010
ORDER I.A. Ansari, J. 1. Aggrieved by the order, dated 26.4.2010, whereby the Petitioner, who is an Assistant Executive Engineer, under the Department of Public Health Engineering, Government of Assam, has been transferred from the post of Executive Engineer (PHE), Belsor Division, in the District of Nalbari, and posted as Assistant Executive Engineer, T/C Tezpur Circle, the Petitioner has impugned the said order, in this writ petition made under Article 226 of the Constitution of India, seeking to get the same set aside and quashed. 2. The grievances of the Petitioner are, in substance, thus: (i) The Petitioner came to be posted to Belsor Sub-Division, as Assistant Executive Engineer, on 8.8.2008, and has barely completed, before the impugned order of transfer was made, one year and nine months of service, and under the relevant policy, governing transfer of the Government employees, since normal tenure of an officer, at a given place of posting, shall be three years, he ought not to have been, ordinarily, transferred without his having completed a period of three years at his said place of posting and, that too, without obtaining consent of the Chief Minister; (ii) The Petitioner's wife has undergone two major surgical operations, she has been advised complete bed rest and, apart from attending his office, the Petitioner is required to not only look after his wife, but his two school going children too, who study at Guwahati. The Petitioner's family resides, at Guwahati, with their children for the purpose of providing them education and the Petitioner attends his office, at Belsor, from Guwahati; (iii) The impugned order of transfer has been made in order to accommodate Respondent No. 3, who, while serving as an Assistant Engineer, PHE, Barpeta Division, was, vide order, dated 7.4.2010, promoted to the post of Assistant Executive Engineer, PHE, at Rangia Sub-Division, but, subsequently, he has been accommodated, in place of the Petitioner, by transferring the Petitioner outside Belsor Sub-Division. The impugned transfer order, thus, suffers from malice in law as well as malice in fact. If the impugned transfer order is not interfered with, it would have the effect of posting the Petitioner at Tezpur and this would make the Petitioner leave his entire family at Guwahati, which would cause not only hardship to the Petitioner, but his family too. If the impugned transfer order is not interfered with, it would have the effect of posting the Petitioner at Tezpur and this would make the Petitioner leave his entire family at Guwahati, which would cause not only hardship to the Petitioner, but his family too. Situated, thus, the Petitioner has, on 3.5.2010, submitted a representation to the Respondent No. 2, through proper channel, and the representation has not yet been disposed of. 3. Though the State Respondents have not filed any affidavit, they have produced the relevant records containing the materials, which, according to these Respondents, led to passing of the impugned transfer order. 4. As far as the Respondent No. 3, whose transfer has been contended to be, in this writ petition, suffering from malice in law as well as in fact, is concerned, he has filed his affidavit, which makes out his case. This Respondent's case is, in brief, thus: By order, dated 7.4.2010, Respondent No. 3 was promoted and posted as an Assistant Executive Engineer, PHE, at Rangia Sub-Division, with effect from the date of his taking over the charge. By the impugned order, dated 26.4.2010, the earlier order of promotion and posting, dated 7.4.2010, has been modified by placing Respondent No. 3 as Assistant Executive Engineer at Belsor Division. The Executive Engineer, PHE, Barpeta Division, had issued a letter, dated 9.4.2010, to the Respondent No. 3 asking him to hand over the charge. The Respondent No. 3, accordingly, handed over the charge on 3.5.2010 and was released on the same date with effect from 10:30 a.m. Immediately after handing over the charge, the Respondent No. 3 went to the office of the Assistant Executive Engineer, PHE, Belsor Division, and submitted his joining report, on 3.5.2010, at 2:30 P.M., and the Executive Engineer, PHE, Belsor Division, has accordingly informed the Secretary to the Government of Assam, Public Health Engineering Department, by his letter, dated 5.5.2010, that the Respondent No. 3 has already joined his service, at Belsor Sub-Division, as Assistant Executive Engineer. As the Petitioner had not handed over the charge on 3.5.2010, though the Respondent No. 3 has submitted his joining report, as indicated, hereinbefore, the Respondent No. 3 informed the Secretary of his Department as regards the fact that the writ Petitioner has not handed over the charge to the Respondent No. 3, whereupon the Departmental Secretary issued a letter, dated 12.5.2010, directing the Petitioner to hand over the charge to the Respondent No. 3, but despite the fact that no stay order has been passed in this writ petition, the writ Petitioner has not yet handed over the charge to the Respondent No. 3. As the promotion order of the Respondent No. 3 would, according to his order of promotion, take effect on his assumption of charge of the office of the Assistant Executive Engineer, the Respondent No. 3 will suffer irreparable loss including his seniority if the impugned transfer order is, without further delay, not given effect to. The wife of Respondent No. 3 works as Assistant Teacher in Pub Barkhetri High School under the jurisdiction of the Inspector of Schools, Nalbari, and there is a Government policy, issued on 29.5.2010, for posting of the spouses, at the same station, as far as possible. The impugned transfer order has been made in public interest. In the present case, there have been lots of public complaints against the Petitioner alleging misappropriation of public fund in his capacity as Executive Engineer in Belsor Sub-Division and the Government, in such circumstances, was wholly justified in passing the impugned transfer order. In fact, the writ Petitioner has remained in and around Nalbari for the last many years, so much so, that when he was transferred by notification, issued, in this regard, on 8.8.2008, to Tezpur, be refused to go to Tezpur and got his order of transfer modified and thereby remained at Belsor PHE Division, which is at a distance of barely 8 kilometers from his earlier place of posting at Nalbari. The writ Petitioner's family resides at Hatigaon, Guwahati, which is at a distance of about 90 kilometers, and if the writ Petitioner's wife is bedridden, he would have applied for posting at Guwahati instead of Belsor, because the writ Petitioner, by travelling 180 kilometers, on regular basis, cannot be believed to have been looking after his ailing wife, his children and also attending his duties. If the Petitioner can look after his wife and children from Belsor, there is no reason why the Petitioner cannot go to Tezpur, which is almost at the same distance from Guwahati as Belsor is from Guwahati, particularly, when the communication to Tezpur from Guwahati is much better than the communication between Guwahati and Belsor. 5. Heard Mr. N. Dutta, learned senior counsel for the Petitioner, and Mr. R.K. Bora, learned Government Advocate, appearing on behalf of the State Respondents. Heard also Mr. A.S. Choudhury, learned senior counsel for the private Respondent. 6. Appearing on behalf of the Petitioner, Mr. N. Dutta, learned senior counsel, has submitted that the impugned transfer order is aimed at favouring Respondent No. 3 inasmuch as Respondent No. 3, while working as Assistant Engineer, PHE, was promoted to the post of Assistant Executive Engineer, but his promotion was to be effective from the date, when he takes over charge of his office as Assistant Executive Engineer. The Respondent No. 3, points out Mr. Dutta, remained at Rangia, without availing his promotion and got complaints generated against the Petitioner and got him transferred, vide the impugned order, dated 26.4.2010, to Tezpur and got himself posted to Belsor Sub-Division, as Assistant Executive Engineer. 7. Referring to the affidavit, filed by the Respondent No. 3, Mr. Dutta submits that how the Petitioner has come to know, when it had not been revealed even in the transfer order, that there were complaints of corruption against the Petitioner and it was in the background of such allegations that the Petitioner had been transferred. Further submits Mr. Dutta that if the transfer order is based on complaints of corruption, the Petitioner could not have been transferred without affording him an effective opportunity of having his say in the matter. Mr. Dutta also submits that if the impugned transfer order is based on the alleged complaints of corruption received against the Petitioner, then, the transfer order is penal and stigmatic in nature and the same would not be sustainable in law, when no opportunity has been given to the Petitioner to have his say in the matter. In support of his case, Mr. Dutta places reliance on the case of Somesh Tiwari v. Union of India and Ors. (2009) 2 SCC 592 . 8. Mr. In support of his case, Mr. Dutta places reliance on the case of Somesh Tiwari v. Union of India and Ors. (2009) 2 SCC 592 . 8. Mr. Dutta submits that the Right To Information Act having come into force, any member of the public can, now, obtain copies of the complaints, which might have been received against the present Petitioner, and if, in such circumstance's, the Petitioner is not given any opportunity of having his say in the matter, his transfer would always be treated, by the public, at large, as a penal action and would cast stigma on the Petitioner's integrity. In such circumstances, contends Mr. Dutta, the impugned order needs to be interfered with by this Court in exercise of its powers under Article 226 of the Constitution of India. 9. Responding to the submissions made, on behalf of the Petitioner, that it is the Respondent No. 3, who got complaints generated against the Petitioner and that is why, Respondent No. 3 claims to know that such complaints had been received by the Petitioner's superiors, Mr. A.S. Choudhury, learned senior counsel, appearing on behalf of the Respondent No. 3, points out that it is not merely the Respondent No. 3, but even the public, in general, know that a large number of complaints have been made from time to time against the writ Petitioner involving him in the charges of corruption and that a news item, in this regard, was published, in a local newspaper, on 17.5.2010, in this regard and the Respondent No. 3 filed his affidavit, in the present case, on 24.5.2010, that is, after about a week of the publication of the said news item, and it is from the said news item that the Respondent No. 3 came to know that there were allegations of corruption made against the present Petitioner. In support of his submission, Mr. Choudhury has also produced a copy of the relevant newspaper. 10. Mr. Choudhury further points out that the transfer is an incidence of service and the Government can transfer its employees for a variety of reasons and one of such reasons can be complaint of corruption. Instead of waiting for an inquiry to be made or instead of placing a person under suspension against whom such a complaint is received, the Government, contends Mr. Instead of waiting for an inquiry to be made or instead of placing a person under suspension against whom such a complaint is received, the Government, contends Mr. Choudhury, may, as an administrative measure and in order to facilitate any such inquiry as the Government may decide to hold or even to find out as to whether there is substance in the accusation or not, transfer its employee and such transfer order cannot be regarded as penal or stigmatic inasmuch as such a transfer order would be entirely in public interest so that the confidence of the public, in the fairness of administration, remains intact. In support of his submission that it is possible to transfer an employee on receiving complaint of corruption, Mr. Choudhury has placed reliance on the case of Mohd. Masood Ahmad v. State of U.P. and Ors. (2007) 8 SCC 150 . 11. It is further submitted by Mr. Choudhury that ordinarily, in a case of present nature, the employee, who feels aggrieved by a transfer order, should, as the decision of the Supreme Court in Novartis India Ltd. v. State of West Bengal (2009) 3 SCC 124 ,indicates, make his representation to the Government instead of rushing to the court. 12. Appearing on behalf of the Government, Mr. R.K. Bora, learned Government Advocate, as already indicated above, has produced the relevant records to let this Court know the circumstances in which the impugned transfer order has been passed. The record has accordingly been perused. 13. While considering the present writ petition, it needs to be bornen in mind that this writ petition raises both questions of fact as well as questions of law. The writ Petitioner's grievances, as already indicated above, are to the effect that his transfer, without allowing him to complete his normal tenure of 3 years and, that too, without consent of the Chief Minister, is bad in law, that the transfer order is mala fide in the sense that the Petitioner has been transferred to accommodate the Respondent No. 3 and that the Petitioner's wife being sick, his children being school going, the Petitioner ought not to have been transferred from his place of posting depriving thereby the Petitioner of the facility to come to his home, at Guwahati, from his place of posting. 14. 14. Without entering into the question as to whether the Petitioner has been attending his duties, at Belsor, by travelling from his house to his place of posting at Belsor, which is at a distance of about 90 kilometers from his house, with the permission of the authorities concerned or not, what needs to be pointed out, at the very outset, is that if the Petitioner's personal difficulties are reasons for his seeking modification of his transfer order, his remedy lies in making an appropriate representation, in this regard, to the State Respondents/authorities concerned. The Petitioner, as indicated, has made such a representation and, as a public servant, he ought to have joined, at Tezpur, in terms of the impugned transfer order and await the outcome of his representation. The Petitioner, however, rushed to the court challenging the very maintainability of the said transfer order. In such circumstances, the fact that the Petitioner has some personal difficulties is a question, which shall remain to be, first, examined by his employer and not by this Court. To this extent Mr. Choudhury is justified, when he refers to the case of Novartis India Ltd. (supra) and contends that pending disposal of his representation made to the Government, the Petitioner ought to have joined in terms of the impugned order. 15. As far as the Petitioner's contention that contrary to the relevant policy guidelines, he has not been allowed to complete his normal tenure of three years, at Belsor, suffice it to point out that these guidelines have been held by this Court not enforceable inasmuch as these guidelines do not vest any right in any of the Government employees, though these guidelines are to be, ordinarily, adhered to. In this regard, too, the Petitioner's remedy really lies in making appropriate representation to the Respondents/authorities concerned, for, it is primarily for the employer to look into such matters and the court would step in only when it finds that the policy guidelines have been truncated and mutilated or manipulated for ulterior motive. The said guidelines for transfer are, in fact, broad policy matters and every transfer, made in deviation of the said policy guidelines, cannot, in the absence of anything more, be challenged by way of a writ petition. 16. The said guidelines for transfer are, in fact, broad policy matters and every transfer, made in deviation of the said policy guidelines, cannot, in the absence of anything more, be challenged by way of a writ petition. 16. Coming to the Petitioner's grievance that the impugned transfer order has been made to accommodate the Respondent No. 3, suffice it to point out that the record reveals that long before even the Respondent No. 3 was promoted by order, dated 7.4.2010, complaints of corruption against the Petitioner had been received by the Minister under whom the Department concerned falls. Thus, the administrator was in seisin of the complaint long before the Respondent No. 3 was even promoted. After the order of promotion was made, the departmental Minister received yet another complaint from altogether a different organization. None of the complaints was anonymous. In such circumstances, the Minister passed an order directing the Petitioner's transfer from Belsor Sub-Division and consequential transfers, which included modification of the earlier posting order of the Respondent No. 3, had to be made. In the absence of any materials on record indicating even faintly that the Respondent No. 3 had generated the complaints against the Petitioner and/or that the impugned transfer was made at the behest of the Respondent No. 3, the impugned transfer order cannot be said to be mala fide or be interfered with. 17. Now, coming to the case of Somesh Tiwari (supra), it needs to be noted that the decision, in Somesh Tiwari (supra), is based on a anonymous complaint and the Central Vigilance Commissioner's specific instruction has been that such anonymous complaint are not to be made foundation of inquiry far less transfer order. What, undoubtedly, the Supreme Court has laid down in Somesh Tiwari (supra), is that, an order of transfer cannot be passed by way of, or in lieu of, punishment and that when an order of transfer is passed in lieu of punishment, the same is liable to be set aside. In short, thus, unless an order of transfer is passed as a measure of punishment, the mere fact, that the transfer has been made on receiving the allegations of corruption, would not make the order bad in law. 18. At the root of the decision, in Somesh Tiwari (supra), is an anonymous complaint, which, on enquiry, had been found to be unfounded. 18. At the root of the decision, in Somesh Tiwari (supra), is an anonymous complaint, which, on enquiry, had been found to be unfounded. As against this, the present one is a case based on specific complaints. If a transfer is made as a measure of penalty for complaint of corruption against an employee, such a transfer order would be illegal if the transfer order is not preceded by an opportunity to the employee concerned to have his say on the complaint, which becomes foundation for imposition of such penalty. This, however, does not mean, and cannot mean, that when there is a complaint received against an employee, howsoever serious the complaint may be, the Government would be powerless to transfer the employee unless a departmental proceeding is initiated and completed or the employee is suspended. Every case has to be Judged on the basis of its own facts. [(See Mohd. Masood Ahmed (supra)]. There is no doubt that a transfer, if made, as a measure of penalty, may leave stigma on the transferred employee. In such circumstances, the transfer would be illegal if no opportunity is given to the employee concerned to have his say, in the matter, before he is transferred. In the case at hand, the impugned transfer order makes no reference to any complaint received and it is only at the instance of the writ Petitioner that the record had to be called for and examination of the record reveals the background in which the transfer order, in question, has been made. 19. Coming to Mr. Dutta's submission that under the Right to Information Act, any member of the public may obtain the facts, which might have led to the transfer of an officer and, hence, when a transfer is made on allegations of corruptions, it would leave a stigma on the transferred officer. I must say that at the first blush, Mr. Dutta's submission is attractive, but, on a deep analysis, the argument, if accepted, would not only dilute, but also do away with the authority of the Government to transfer, as an employer, its employee on receiving complaint of corruption howsoever serious the complaint may be until the time the employee is proved to be corrupt. 20. Dutta's submission is attractive, but, on a deep analysis, the argument, if accepted, would not only dilute, but also do away with the authority of the Government to transfer, as an employer, its employee on receiving complaint of corruption howsoever serious the complaint may be until the time the employee is proved to be corrupt. 20. Because of the fact that a person, present amongst the public, in such a case, may feel that an officer has been transferred, because he is corrupt, would not, by itself, be a ground to interfere with a transfer order. How a member of the public would view a transfer order cannot become the sole ground for not transferring an officer, when, in a given case, the Government deems it necessary to transfer an employee in order to avoid possibility of misuse of office. Such a transfer order is, in reality, a preventive order against possible misuse of authority by an officer. This kind of an order cannot be regarded as penal and/or stigmatic, particularly, when no firm opinion, against the officer's integrity, is expressed. The remedy lies in educating the people and not in whittling down a transfer order, which are made as a measure of abundant caution and not as a measure of punishment. Merely, therefore, the fact that a transfer has been made on receiving a complaint, it would not be sufficient to interfere with the transfer order unless the order of transfer is found to have been passed as a measure of penalty; otherwise, any officer, who has the apprehensions of getting transferred, may generate fictitious complaints against himself and thereby remain posted, wherefrom he is sought to be transferred. When an order of transfer is not made in violation of the relevant rules or with any ulterior motive and is also not made as a measure of punishment, merely on the ground that a member of the public may perceive the transfer having been made as a measure of penalty, such a transfer order cannot be interfered with. 21. In Mohd. Masood Ahmad (supra), the Supreme Court has also clearly indicated that there is no absolute bar in transferring an employee if there be allegation of corruption against him. In fact, in Mohd. 21. In Mohd. Masood Ahmad (supra), the Supreme Court has also clearly indicated that there is no absolute bar in transferring an employee if there be allegation of corruption against him. In fact, in Mohd. Masood Ahmad (supra), the transfer has been made at the instance of an MLA and the admitted case of the State was that the transfer had been made due to complaint against the Appellant; yet the Supreme Court, in these factual backgrounds, observed: ... In our opinion, even if the allegation of the Appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the Legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard-and-fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the acts and circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order. 22. It can, thus, be gathered from what has been held, in Mohd. Masood Ahmad (supra), that there is no absolute power on transferring an employee on receiving complaint against him so long as the transfer is not by way of punishment. It is only when it is penal that it would leave a stigma. As long as a transfer order is not passed as a measure of penalty; it cannot be regarded as stigmatic. 23. In short, thus, the decision, in Md. Masood Ahmed (supra), makes it clear that even when a complaint is received, an employee can be transferred. It is only when there is something to show on record that the transfer is as a measure of punishment that such transfer can be treated as penal and when such a transfer is treated to be penal, it would obviously be stigmatic in nature. It is only when there is something to show on record that the transfer is as a measure of punishment that such transfer can be treated as penal and when such a transfer is treated to be penal, it would obviously be stigmatic in nature. There can, of course, be a case, where an administrator may decide not to take the risk of allowing the employee, against whom a complaint of breach of integrity is received, to remain posted at the place, where he is alleged to have been indulging in corruption, so that any possibility of misuse of office by the employee can be ruled out. Such an action of an administrator, adopted as a measure of abundant caution and in public interest, cannot be said to be unfair, arbitrary or unreasonable or so irrational that it would shock the conscience of the court. Same is the case at hand inasmuch as the Minister concerned, on receiving the complaints, took a decision to transfer the Petitioner out of Belsor Sub-Division. The action taken by the Minister shows, particularly, when there is nothing discernible to the contrary, that the impugned transfer order was made bona fide and to avoid misuse of power by the Petitioner if what were being alleged, against him, were true. Such a transfer must be regarded to have been made in the public interest. Such a transfer order cannot be dubbed as penal or stigmatic inasmuch as the Minister has not expressed any adverse views as regards the integrity of the Petitioner. Without expressing any firm opinion on the integrity of an employee, he can still be transferred by his employer if the employer does not want to take the risk of having an employee posted at a given place, where there are accusations of corruption against him. 24. What crystallizes from the above discussion is that the Petitioner has not been able to make out even a prima facie case warranting interference by this Court with the impugned order of transfer by invoking Article 226. 25. This writ petition, therefore, fails and the same shall accordingly stand dismissed. 26. 24. What crystallizes from the above discussion is that the Petitioner has not been able to make out even a prima facie case warranting interference by this Court with the impugned order of transfer by invoking Article 226. 25. This writ petition, therefore, fails and the same shall accordingly stand dismissed. 26. Before parting with this writ petition, it is, however, made clear that the State Respondents shall consider the Petitioner's representation against his transfer order without any pre-determined mind or prejudice or bias and pass appropriate order(s) thereon, in accordance with law, within a period of two weeks from today. The Petitioner shall, however, join his place of posting in terms of the transfer order and await the outcome of his representation. After his representation is disposed of, the Petitioner may approach this Court with such further other application(s), in future, as may be permissible in law. 27. Moreover, this Court must place on record its discomfort and the manner in which Respondent No. 3 has conducted himself, because what the court notices is that the Respondent No. 3 was promoted and his promotion was to take effect under the order, dated 7.4.2010, on his assumption of charge of office as Assistant Executive Engineer at Rangia. Despite the fact that his superior, namely, the Executive Engineer had, on 9.4.2010, directed Respondent No. 3 to hand over the charge as Assistant Engineer, Respondent No. 3 remained glued to his office as Assistant Engineer. When, however, the impugned transfer order was made on 26.4.2010, Respondent No. 3 moved with electrifying speed, he promptly came to his next place of posting and joined there within a week's time. This conduct does not behave the conduct of a responsible Government employee. It is such conduct of a Government employee, which casts doubt on the fairness of administration. Similarly, the Petitioner, admittedly, attends his office, at Belsor, by coming from Guwahati and there is nothing on record to show that he has obtained permission, in this regard, from the authorities concerned. These are aspects, which the Department does need to look into. 28. There is yet another aspect of the case, which is more serious in nature than whatever have mentioned above and it arises out of an office memorandum, dated 14.2.2007, which has been issued by the Department of Personnel(B), Government of Assam. These are aspects, which the Department does need to look into. 28. There is yet another aspect of the case, which is more serious in nature than whatever have mentioned above and it arises out of an office memorandum, dated 14.2.2007, which has been issued by the Department of Personnel(B), Government of Assam. This office memorandum directs the Government employees to avail the avenues, which the Government has provided to its employees for redressal of their grievances against transfer orders, namely, by making representation to the Government and, if necessary, the Assam Administrative Tribunal. With the direction, so issued, there can be little grievance. What, however, is disturbing is the penultimate paragraph of the said office memorandum, which reads, thus, The above instruction should be scrupulously followed by all State Government officials. Any deviation will be viewed seriously and Departmental action will be initiated against the erring official. (emphasis is supplied) 29. From a bare reading of what have been reproduced above, it becomes transparent, correctly contends Mr. Dutta, that the above directions threaten every Government employee of serious action if he approaches the High Court against his transfer order without availing other alternative remedies. Article 226 of the Constitution of India cannot be wholly restricted by alternative remedies and, in a given case, it is open to the High Court to decide for itself as to whether an order of transfer calls for, or does not call for, interference in exercise of its powers under Article226 of the Constitution of India. On this aspect of the matter, the office memorandum, dated 14.2.2007, therefore, requires appropriate examination by this Court. 30. In view of the above, the Registry is directed to register a writ petition impugning the office memorandum, dated 14.2.2007, and place the same before appropriate Bench for taking such action as may be deemed necessary in law. 31. Considering the matter in its entirety and in the interest of justice, it is hereby, as an interim measure, directed that until further order, the office memorandum, dated 14.2.2007, shall, to the extent that the same reads, "Any deviation will be viewed seriously and Departmental action will be initiated against the erring official", stand suspended. 32. With the above observations and directions, this writ petition shall stand disposed of. 33. No order as to costs.