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2010 DIGILAW 599 (GAU)

Santosh Raksam Marak v. State of Meghalaya

2010-08-17

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. With the help of this writ application, made under Article 226, the Petitioner has put to challenge the notification, dated 07.12.2009, issued by the Respondent No. 1, transferring the Petitioner as Deputy Secretary to the Govt. of Meghalaya, Department of Soil and Water Conservation. 2. I have heard Mr. A. S. Siddique, learned Counsel, for the Petitioner, and Mr. S. P. Mahanta, learned Additional Advocate General, Meghalaya. 3. The case of the Petitioner, as discernible from his pleadings in the writ petition, his rejoinder and the materials on record, is, in brief, thus: The Petitioner has been made to suffer as many as 13 transfer orders during a period of eight years from the year 2001 to 2009. In fact, according to the Petitioner, he has been transferred on 19 occasions from one place to another during a span of 15 years 6 months. Such frequent transfers are in violation of the Office Memorandum, dated 18.11.98, which aims at stopping frequent transfers of officers from one place to another by prescribing their normal tenure of posting, at a given place, for a period of three years. This apart, the Petitioner is an asthmatic patient and as per the advice of the doctors, he should remain at a warmer place. In substance, thus, the Petitioner's grievance is that while passing the impugned order of transfer, the Office Memorandum, dated 18.11.98, aforementioned, was not complied with and his state of health needs him to be kept at a warmer place than what Shillong is. 4. While considering the present writ petition, it needs to be noted that in his entire writ petition, the Petitioner does not submit that his transfer is actuated by mala fide. Even, while pointing out, at para 18 of his writ petition, that the Petitioner has been made to suffer as many as 19 transfer orders within a span of 15 years 6 months, what the Petitioner submits is that such transfer orders smack of mala fide, but does not contend, specifically or categorically, that the impugned transferer order too is actuated by mala fide. One has to, therefore, look into the chain of transfer orders and the places of posting of the Petitioner. 5. It may be noted that the Petitioner came to be appointed as an Extra-Assistant Commissioner, at William Nagar, on 22.08.1994. He remained, at William Nagar, till 23.03.2001. One has to, therefore, look into the chain of transfer orders and the places of posting of the Petitioner. 5. It may be noted that the Petitioner came to be appointed as an Extra-Assistant Commissioner, at William Nagar, on 22.08.1994. He remained, at William Nagar, till 23.03.2001. During the said period of about seven years, though as many as three transfers were made, the Petitioner, in fact, remained, at William Nagar, in one capacity or another. The frequent transfers, therefore, which the Petitioner complains of, cannot include the posting of the Petitioner at William Nagar. In fact, the Petitioner expresses no grievance against the transfer orders, which he had suffered, while remaining posted, within William Nagar, in one capacity or another. The Petitioner was, then, transferred as BDO, Gasuapara, and he remained there from 12.06.2001 to 11.05.2003. This transfer order was never questioned or challenged by the Petitioner and is not, in fact, specifically challenged even in the present writ petition nor does the Petitioner express specifically any grievance against the transfer order, dated 12.06.2001, aforementioned. His posting, therefore, as BDO, Gasuapara, cannot be treated as one of the transfers, which the Petitioner complains of. The Petitioner was, thereafter, transferred as BDO, Zikzak, and he remained there from 12.09.2003 to 18.09.2003 whereupon he was transferred, on 19.09.2003, as Additional Deputy Commissioner, In-charge, Resubelpara and remained there till 27.05.2005. Even this transfer order cannot be complained of, and has not been complained of, by the Petitioner, because this transfer order was in consequence of his promotion to senior scale. The Petitioner was, then, posted as Additional Deputy Commissioner, Nongstoin by order, dated 28.09.2004. Aggrieved by this transfer order, the Petitioner submitted a representation and, apparently, without any modification or stay of the said transfer order, he continued to remain as Additional Deputy Commissioner, In-Charge, Resubelpara, till 27.05.2005. In fart, between 28.09.2004 and 27.05.2005, the Petitioner was transferred as Additional Deputy Commissioner, Tura, which is also a warmer place, but the Petitioner did not join there. The Petitioner was, then, on 01.06.2005, transferred as Additional Deputy Commissioner, Baghmara, and remained there till 13.08.2007. During this period between 01.06.2005 and 13.08.2007, he remained, at Baghmara, as Project Director, DRDA. During the said period, another transfer order was passed on 01.05.2006, but the same was cancelled on 14.07.2006. The Petitioner was, then, on 01.06.2005, transferred as Additional Deputy Commissioner, Baghmara, and remained there till 13.08.2007. During this period between 01.06.2005 and 13.08.2007, he remained, at Baghmara, as Project Director, DRDA. During the said period, another transfer order was passed on 01.05.2006, but the same was cancelled on 14.07.2006. Thus, notwithstanding the three transfer orders, which were passed, the Petitioner remained at the place, where he was. When the Petitioner was transferred, on 24.11.2006, as Additional Deputy Commissioner, Shillong, he submitted a representation, but did not move. The Petitioner was, then, posted as Additional Deputy Commissioner, Nongstoin, on 23.08.2007, and remained there till 04.07.2008, whereupon he was, again, transferred by order, dated 14.07.2008, as Additional Deputy Commissioner, In-charge, Resubelpara, where he had already remained between 19.09.2003 and 27.05.2005 and the Petitioner happily joined as Additional Deputy Commissioner, In-Charge, Resubelpara. Though the Petitioner impugnes the transfer order, made on 14.07.2008, putting him back as Additional Deputy Commissioner, In-Charge, Resubelpara, he cannot really have the grievance against this order too inasmuch as this transfer order was made on the basis of his own representation and it is here, at Resubelpara. that the transfer order, dated 15.10.2009, was made posting him as Additional Deputy Commissioner, William Nagar. The Petitioner did not, however, leave Resubelpara. If one examines the series of transfer, which the Petitioner claims to have suffered, he has remained there from 19.09.2003 to 27.05.2006 and. again, from 14.07.2008 to till date. On the request made by the Petitioner to cancel his transfer order, the presently impugned order has been passed posting him as Deputy Secretary to the Govt. of Meghalaya, Soil and Water Conservation Department. Govt. of Meghalaya. Because of the interim direction, which has been passed in this writ petition, the Petitioner has remained as Additional Deputy Commissioner, In-Charge, Resubelpara. 6. From the catalogue of transfer orders mentioned above, what transpires is that though the Petitioner had been subjected to several transfer orders, all transfer orders were not carried out as indicated above. As far as the reason for transfer of the Petitioner from the post of Additional Deputy Commissioner. In-Charge, Resubelpara, is concerned, it has been done on the basis of a complaint, which had been received against the Petitioner, with regard to his failure to make appropriate arrangement on the occasion of Independence Day, 2009. As far as the reason for transfer of the Petitioner from the post of Additional Deputy Commissioner. In-Charge, Resubelpara, is concerned, it has been done on the basis of a complaint, which had been received against the Petitioner, with regard to his failure to make appropriate arrangement on the occasion of Independence Day, 2009. The Petitioner does not, as already indicated above, contend that the impugned transfer order was actuated by mala fide or stigmatic or as a measure of penalty. Whether there was, as a matter of fact, administrative failure, on the part of the Petitioner, to take appropriate measure on the occasion of Independence Day, 2009, or not is a question, which is in dispute, but the authority of the Government to transfer a person if he is not found suitable, in a given place, cannot be doubted. 7. Transfer is an incidence of Government service. Merely because a person suffers from transfers, he cannot complain. In the case at hand too, the Office Memorandum, dated 18.11.98, aforementioned, does not give any enforceable right to any of the employees of the State including the Petitioner. The Office Memorandum is a guideline evolved by the Government so as to keep its officers and authorities from making arbitrary transfer orders or transfer orders, which are actuated by mala fide. 8. In the present case, the Petitioner does not challenge, if I may repeat, the impugned transfer order as arbitrary or actuated by mala fide. As far as the Petitioner's contention that on the ground of his ill health, he needs to be kept at a warmer place, suffice it to point out that the State is bound to keep the welfare of its employees in mind, while making any transfer order, because the State has to function as a model employer. In the case at hand, however, the Petitioner's posting, at Shillong, cannot be considered as a place, where an asthmatic patient cannot or do not reside. 9. Appearing on behalf of the Petitioner, Mr. Siddique, learned Counsel for the Petitioner, has referred to the case of Dayal Das v. State of Assam and Ors. 2002 (2) GLT 109, in support of the Petitioner's case that notwithstanding the Office Memorandum, which provides for a stable tenure of three years to every Government employee, the Petitioner has been made to suffer frequent transfer orders. 10. Siddique, learned Counsel for the Petitioner, has referred to the case of Dayal Das v. State of Assam and Ors. 2002 (2) GLT 109, in support of the Petitioner's case that notwithstanding the Office Memorandum, which provides for a stable tenure of three years to every Government employee, the Petitioner has been made to suffer frequent transfer orders. 10. While considering the case of Dayal Das (supra), it may be noted that the Court has observed, even in Dayal Das (supra), that the guidelines for transfer of officers do not have any statutory force, but are checks against arbitrary transfers. In the case at hand, a reason has been assigned by the Government. The adequacy of the reason is not for this Court to decide as an appellate authority. Unless this Court takes the view that under no circumstances, a transfer order, such as the present one, could have been made, the presently impugned transfer order cannot be interfered with. In the present case, the Petitioner has not been able to show such reason, which could make this Court invoke its extra-ordinary jurisdiction, under Article 226 of the Constitution of India, to interfere with the impugned transfer order. 11. The learned Additional Advocate General has referred to the case of State of U.P. and Ors. v. Gobardhan Lal (2004) 11 SCC 402 , wherein the Supreme Court has observed that unless transfer is shown to be an outcome of mala fide exercise of power or violative of any statutory provision or by an authority not competent to do so, a transfer order cannot be likely to be interfered with. 12. What needs to be noted, while considering the decision of Gobardhan Lal (supra), is mat the Supreme Court, at para 8, makes it clear that 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 appellate authorities to pass such orders. It is primarily for the State to decide, in a case of such nature, keeping in view the exigency of situation, as to whether an employee shall or shall not be transferred to and posted at. The decision to transfer the Petitioner, in the present case, is not questioned as arbitrary, the intention or motive behind the transfer is also not questioned. The decision to transfer the Petitioner, in the present case, is not questioned as arbitrary, the intention or motive behind the transfer is also not questioned. The mere violation, therefore, of the guidelines, in the absence of any other reason, except the reason of health, which the Petitioner has assigned, the impugned transfer order cannot be interfered with. 13. In the result and for the reasons discussed above, this writ petition fails, the same is not admitted and shall accordingly stand dismissed. The interim directions, suspending the impugned transfer order passed in this writ petition, shall accordingly stand vacated. 14. There shall, however, be no order as to costs. Petition dismissed