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2010 DIGILAW 700 (GAU)

K. Solo v. State of Nagaland

2010-09-09

H.BARUAH

body2010
JUDGMENT H. Baruah, J. 1. In this writ petition under Article 226 of the Constitution of India the writ petitioner has challenged his transfer as Principal, Para Medical Training Institute, Kohima vice Dr. J. Chase transferred by notification dated 03.09.2009. It would be appropriate to state that the writ petitioner herein before issue of the notification was holding the post of Chief Medical Officer, Dimapur. It would also be appropriate to say that by this impugned notification dated 03.09.2009 altogether 16 numbers of doctors were transferred and posted against the post shown against their name including the petitioner. 2. In the case of Mohd. Masood Ahmad Vs. State of U. P. & Ors.; reported in (2007) 8 SCC 150 following the principles laid down by the Apex Court in the case between B. Varadha Rao Vs. State of Karnataka: (1986) 4 SCC 131 : AIR 1986 SC 1955 ; Shilpi Base Vs. State of Bihar, 1991 Supp (2) SCC 659: AIR 1991 SC 532 ; Union of India Vs. N.P. Thomas. 1993 Supp (1) SCC 704, AIR 1993 SC 1605 ; Union of India Vs. S.L.Abbas, (1993)4 SCC 357 ; AIR 1993 SC 2444 , in paragraph - 4, the Apex Court held that transfer is an exigency of service and is an administrative decision and, therefore, the decision rendered by the High Court of judicature at Allahabad in Writ Petition No. 1110 (SB) of 2005 was not interfered with. In paragraph-7 of the judgment the Apex Court following the Principles laid down in Rajendra Roy Vs. Union of India. 1993 (1) SCC 148 , AIR 1993 SC1236; National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan, 2001 (8) SCC 574 , AIR 2001 SC 3309 and State Bank of India Vs. Anjan Sanyal; (2001) 5 SCC 508 , AIR 2001 SC 1748 held that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. From the above it could be understood that an order of transfer can be interfered with by a writ Court under Article 226 of the Constitution if the petitioner succeeds to substantiate any of the grounds/circumstances. Discretionary jurisdiction under Article 226 of the Constitution of India is prohibited while going a judicial review of the transfer, if the transfer is not actuated with malice, hatred, mala fide etc. 3. The Apex Court while dealing with the case of Union of India & Ors. Vs. S.L. Abbas: AIR 1993 SC 2444 in paragraph-7 held as follows: 7. Who should be transferred where, is a matter of the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right. The Apex Court in the case (supra) held that the appropriate authority is the best judge to take a decision who should be transferred where. Unless the order of transfer is vitiated by mala fides or is made in violation of the statutory provision Court cannot interfere with it. It also held that while ordering transfer the authority must keep in mind the guidelines issued by the Government in the subject. It also makes an obligatory on the part of the appropriate authority to consider representation submitted by the transferee in respect of his/her transfer having regard to the exigency of the administration. 4. Thus the ratio laid down by the Apex Court in both the cases (supra) and the principles laid down by the Apex Court in the cases as indicated in foregoing paragraphs is required to be followed while entertaining a judicial review under Section 226 of the Constitution in respect of transfer. 4. Thus the ratio laid down by the Apex Court in both the cases (supra) and the principles laid down by the Apex Court in the cases as indicated in foregoing paragraphs is required to be followed while entertaining a judicial review under Section 226 of the Constitution in respect of transfer. Unless the circumstances as indicated are fulfilled or any one of them fulfilled, the aggrieved employee cannot normally asks to make a judicial review of the transfer order under Article 226 of the Constitution. 5. In this writ petition, the writ petitioner has provided some facts before this Court seeking a judicial review of the transfer order transferring him as Principal, Para Medical Training Institute, Kohima from the post of Chief Medical Officer, Dimapur vide impugned notification dated 03.09.2009. We may briefly for appreciation place the facts asunder: Petitioner herein is presently working as Chief Medical Officer, Dimapur in the Department of Health and Family Welfare, Government of Nagaland. It is contended that the State respondents transferred him four times within a span of four years to different districts, the latest being the impugned order dated 03.09.2009. It is also contended that a Government servant is generally liable for transfer to a new place of posting only after completion of three years in a particular post in particular place. However, for exceptional reasons an employee of the Government can be transferred before the completion of three years. In paragraph-2 of the writ petition, the petitioner has indicated from which place and from which post he has been transferred to different places and posted as indicated by the State Government. Such transfers are be indicated as under: (a) By an order dated 02.06.06, the petitioner who was serving as Deputy Director was transferred from Directorate of Health & Family Welfare, Kohima to Kipheri district as Civil Surgeon. (b) By an order dated 05.10.07, the petitioner who was serving as CMO Kipheri was transferred from Kipheri District to the Directorate of Health & Family Welfare as Joint Director. (b) By an order dated 05.10.07, the petitioner who was serving as CMO Kipheri was transferred from Kipheri District to the Directorate of Health & Family Welfare as Joint Director. (c) By an order date 11.07.2008, the petitioner who was serving as Joint Director in the Directorate was transferred from the Directorate of Health & Family Welfare to Dimapur District as C.M.O. (d) By impugned order dated 03.09.2009, the petitioner who is serving as CMO, Dimapur is being transferred from the C.M.O. Dimapur to Kohima as Principal Para Medical Training Institute (PMTI), Kohima. The petitioner is yet to hand over and join his new place of posting. The order further stated that the handing and taking over charges should be completed on or before the 15th September, 2009. Another conditions is that no representation of any kind for change or retention will be entertained. 6. It is also contended that the impugned transfer has been made by the State respondents to accommodate Dr. Sukhato, Medical Superintendent, Civil Hospital, Dimapur in the post hold by the petitioner. It is also contended that Dr. Sukhato, the respondent No. 4 is having a Nursing Home at Dimapur and in order to facilitate said Dr. Sukhato to look after his Nursing Home he has been posted as Chief Medical Officer, Dimapur. Further it is also contended that respondent No.4 has been rendering his service as Medical Officer in different capacities for more than 16 years at a stretch in Dimpur. The petitioner further alleged that on account of frequent transfers made by the State respondents adversely affected his children education and his family life. On account of his transfer in the manner as indicated above, the petitioner has to keep shifting from one place to another with bag and baggages for which the petitioner has to suffer mentally, financially and physically. The transfer of the petitioner vide notification No. HFW/DOC/ESTT-1/2006-07 (Vol-II) dated 03.09.2009 is alleged to be politically motivated in order to accommodate Dr. Sukhato, proforma respondent No 4. 7. The petitioner, therefore, in the face of these facts prays to set aside the impugned Notification No. HFW/DOC/ESTT-1/2006-07 (Vol-II) dated 03.09.2009 by which he has been transferred as Principal, Para Medical Training Institute, Kohima from the post of Chief Medical Officer, Dimapur. 8. This writ petition is resisted by the State respondents as well as by proforma respondent No. 4 by filing counter affidavits. 8. This writ petition is resisted by the State respondents as well as by proforma respondent No. 4 by filing counter affidavits. In their affidavits the respondents have claimed that the impugned order of transfer is a general transfer by virtue of which not only the petitioner but also 15 others are transferred to different places. In the counter affidavit they have also contended that such transfers are made in the interest of public. In paragraph-4 of the counter filed by the respondent Nos. 1 to 3 it has been contended that during June 2006 petitioner was transferred to Kipheri on promotion. In the month of October 2007 he was brought back to the Directorate during the general reshuffle in the department. In the July 2008 the petitioner was transferred and posted to Dimapur in general reshuffle of the department and by the impugned notification the petitioner is brought back to Kohima and posted as Principal, Para Medical Training Institute, Kohima since his service as Principal is urgently required by the department in the interest of the public. In paragraph-5 it is contended that transfer and posting of the doctors is made under FR-11 and Rule 15 of the Nagaland Health Service Rules 2006. While filing reply to the counter filed by the respondent Nos. 1 to 3 it has been alleged that the impugned transfer order dated 03.09.2009 was never processed and routed through proper channel but issued with the prime object to accommodate respondent No.4, Dr. Sukhato at Dimapur, who is having a Nursing Home thereat. The petitioner, therefore, claims in the facts situation that his transfer is not made in the interest of public service rather it has been made with mala fide intention to accommodate Dr. Sukhato in Dimapur so that he can also look after his Nursing Home. 9. I have heard Mr. A. Zho, learned counsel for the petitioner as well as Mr. L.S. Jamir, learned Addl. Advocate General for the respondent Nos. 1 to 3 and Mr. Joshua, learned counsel for the proforma respondent No. 4, Dr. Sukhato. 10. Mr. A. Zho, learned counsel for the petitioner gives much stress that the petitioner by such transfers was/is to suffer a lot mentally and financially and also physically. L.S. Jamir, learned Addl. Advocate General for the respondent Nos. 1 to 3 and Mr. Joshua, learned counsel for the proforma respondent No. 4, Dr. Sukhato. 10. Mr. A. Zho, learned counsel for the petitioner gives much stress that the petitioner by such transfers was/is to suffer a lot mentally and financially and also physically. It was also submitted by the learned counsel for the petitioner that on account of his transfers four times in four years, his family is put in trouble and more so the education of the children of the petitioner has been adversely affected. It was argued by the counsel that a Government employee is to be transferred after three years of completion of his service in a post in a particular place. Of course, however, such Government servant may be transferred and posted in different place before completion of three years if some exigency occurs. In the present case no such exigency appear to have existed which compelled the State respondents to issue transfer orders frequently atleast one time in a year. Referring to the transfers made as indicated in paragraph-2 of the writ petition it was submitted by the learned counsel for the petitioner that it was not justified on the part of the State respondents to issue such transfer orders transferring him frequently to different places at their whims injuring his children education, family peace and hardship both mentally, physically and financially. The learned counsel representing the petitioner strenuously argued that the last transfer order impugned herein is made being politically motivated to accommodate Dr. Sukhato, the Medical Superintendent of Dimapur Civil Hospital, Dimapur in the post hold by the petitioner. The claim of the respondents that such transfer is made in general reshuffle cannot be presumed as such in view of posting of Dr. Sukhato as Chief Medical Officer, Dimapur, who has in the meantime completed 16 years of service at Dimapur, of course, holding various posts who has a Nursing Home at Dimapur. Further it was argued refuting the claims of the respondents that a specialist is always required for the benefit of the patients and the public. Since the post of Chief Medical Officer is purely an administrative post and is not required to attend the patients or the public on call. Further it was argued refuting the claims of the respondents that a specialist is always required for the benefit of the patients and the public. Since the post of Chief Medical Officer is purely an administrative post and is not required to attend the patients or the public on call. The statement made in paragraph-9 of the counter affidavit filed by the respondent No. 4 is also refuted on the ground that a transfer order is liable to be interfered with by a writ Court in exercise of jurisdiction under Article 226 of the Constitution if such transfer appears to be mala fide. Rule 15(a) of the Rules though authorize the department to post Medical Officers or an employee in the department anywhere in the State but such transfer and posting should not be vitiated with mala fides. It is argued that the facts projected in the writ petition give an indication that the transfer vide notification dated 03.09.2009 is made posting the petitioner as Principal, Para Medical Training Institute, Kohima is actuated with mala fides and therefore, such transfer can be judicially reviewed by the writ Court in exercise of jurisdiction under Article 226 of the Constitution. 11. Mr. A. Zho, learned counsel for the petition while supporting his case placed reliance in the decision in the case of Seshrao Nagorao Umap Vs. State of Maharashtra & Ors, reported in 1985 (1) BOmCR 30 , (1985) IILLJ 73 Bombay. In the case, a division bench of Bombay High Court discussed the circumstances under which an employee can be transferred and cannot be transferred. In the case the petitioner was a Medical Officer in the Municipal Dispensary, Bhusawal, District Jalgaon. He was posted in the said post vide order dated 19th June, 1981 and accordingly took charge on 1st July 1988 but vide order dated 30th April 1983 he was abruptly transferred as Medical Officer, Cottage, Hospital Parola District Jalgaon, such order was issued in order to accommodate the respondent No. 4 therein, Dr. R. P. Patil, who was though transferred to Dhule never assumed charge in the said office but proceeded on leave for about one and half year. The Administrator of the Municipal Corporation made a representation that he should not be transferred since he has done exemplary works during his tenure. R. P. Patil, who was though transferred to Dhule never assumed charge in the said office but proceeded on leave for about one and half year. The Administrator of the Municipal Corporation made a representation that he should not be transferred since he has done exemplary works during his tenure. The Division Bench while dealing with the case taking into consideration of the facts that such transfer was made being politically influenced to accommodate respondent No. 4, in paragraph-5 of the judgment in the case (supra) the Division Bench of the Bombay High Court held as under: "5. A provision for transfer is intended to check creation of vested interest, nepotism and corruption. It is true that nobody has a right to say that cannot be transferred without his consent. However, like any other Executive or administrative power, the power of transfer must be exercised in good faith and as per the guide lines laid down in that behalf. The Government is bound by its own policy decision and must enforce it faithfully. While implementing the policy it cannot pick and choose. It is equally true that such executive instructions of a policy decision cannot confer any enforceable legal right nor an order issued in breath of it, will become per se illegal. These instructions could be directory in nature. There could be exceptions to the general rule due to exigencies of service or due to some administrative reasons, but the exception cannot be permitted to become a rule. It is equally well settled that Courts should not interfere with the orders of transfers, which are issued in the exigencies of service and in discharge of administrative or executive power. However, if the order is issued is mala fide or in colourable exercise of power then the Court is bound to interfere, since the mala fide exercise of power is not considered to be legal exercise of power. Once a policy is laid down by the Government is must apply equally to every employee. In this context a reference could Usefully be made to the observations of the Supreme Court in E. P. Royappa Vs. State of Tamil Nadu & Ors., (1974-ILLJ. 172) * * * While dealing the case (supra), the Division Bench also had taken into consideration the observations of the Supreme Court in E. P Royappa Vs. State of Tamil Nadu & Ors. : 1974 ILLJ.172. State of Tamil Nadu & Ors., (1974-ILLJ. 172) * * * While dealing the case (supra), the Division Bench also had taken into consideration the observations of the Supreme Court in E. P Royappa Vs. State of Tamil Nadu & Ors. : 1974 ILLJ.172. Following the observations of the Supreme Court in the case as indicated Court has gone to say that the transfer is an incident of service and it is an accepted principle in the interest of public service. It has also gone to say that the transfer is an implied condition of service and the appointing authority has a wide discretion in the matter and the Government is to decide how to distribute and utilize the service of its employees. However, power of transfer devolved on the Government must be exercised honestly, bona fide and reasonably and in the interest of the public service. While exercising such power the authority is not to act upon extraneous consideration or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers without sufficient reasons to justify such transfers, cannot, but be held as mala fide. It also observed that frequent unscheduled and unreasonable transfer can uproot a family, cause irreparable harm to the employee and drive him to desperation. It disrupts the education of the children and leads to numerous other inconvenience and problems and results in hardship and demoralization. 12. Mr. A. Zho, learned counsel for the petitioner in view of the observations made by Division Bench of the Bombay High Court basing the observations of the Supreme Court in the case E. P. Royappa Vs. State of Tamil Nadu & Ors. (supra) tried to impress upon this Court that the transfer orders which affected the transfer of the petitioner to various places as indicated in paragraph-2 of the writ petition created innumerable problem to the petitioner and also caused family disruption, adversely affected the education of the children and more so the last transfer, which has been challenged in this writ petition is made with mala fide intention to accommodate Dr. Sukhato in Dimapur to facilitate him to look after his Nursing Home also. Mr. Zho, therefore, strenuously argued that facts in this writ petition would be sufficient for setting aside and quashing of the impugned notification dated 03.09.2009. 13. Controverting the submissions advanced by Mr. Sukhato in Dimapur to facilitate him to look after his Nursing Home also. Mr. Zho, therefore, strenuously argued that facts in this writ petition would be sufficient for setting aside and quashing of the impugned notification dated 03.09.2009. 13. Controverting the submissions advanced by Mr. Zho, learned counsel for the petitioner, Mr. L. S. Jamir, learned Addl. Advocate Genera for the respondent Nos. 1 to 3 very strenuously argued that the transfer which is impugned herein is made in the course of general reshuffle and such transfer effects 15 other doctors. In respect of the other transfer made during the year 2007 and 2008 were made at the instance of the writ petitioner himself. It was submitted by Mr. Jamir that the transfer order dated 02.06.2006 was made on promotion while the transfers made in the year 2007 and 2008 were of general reshuffle and the transferred made by notification impugned herein is made since the service of the petitioner is urgently required as Principal of the institute. This Court vide order dated 12.08.2010 directed the Additional Advocate General, Nagaland to produce the relevant records pertaining to orders of transfer to the petitioner made during the year 2007 and 2008 and pursuant to such direction the Additional Advocate General placed the relevant records on the date of hearing and taking aid to the relevant letters, representation, recommendation pertaining to transfer to the petitioner during the year 2007-2008 it was submitted that such transfers were made at the instance of the petitioner himself. Therefore, the claim that the petitioner had been put in hardship, inconvenience by transferring him frequently within a period of one year is not correct. Mr. L. S. Jamir, learned Addl. Adv. General while submitting as such also referred to a letter dated 13.03.2007 written by Minister, Planning, Economics & Statistics, Evaluation, Urban Development, Higher Education, Cooperation Nagaland, Kohima addressed to Commissioner and Secretary, Medical, Nagaland, Kohima where transfer of the petitioner was recommended. Mr. Jamir, also referred to another letter dated 25th June, 2008 of the Minister, Health & Family Welfare, Nagaland, Kohima whereby a direction was given to the Commissioner and Secretary, Health and Family Welfare to transfer the doctors including the present petitioner indicated therein. Mr. Mr. Jamir, also referred to another letter dated 25th June, 2008 of the Minister, Health & Family Welfare, Nagaland, Kohima whereby a direction was given to the Commissioner and Secretary, Health and Family Welfare to transfer the doctors including the present petitioner indicated therein. Mr. L. S. Jamir, therefore, raised a strong contention that the transfer made during the year 2007 and 2008 were made at the instance of Ministers concerned at his own instance. The transfer made during the year 2006 was on account of promotion of the petitioner. Therefore, such transfer cannot be branded as made with mala fides. All the transfers were made in respect of the petitioner within the competence of the respondents and by remaining within the frame work of Nagaland Health Service Rules, 2006. Since the services of the writ petitioner is urgently required as the Principal of the institute and since a specialist is required in the Dimapur for the welfare of the people, the impugned transfer order is made transferring him as Principal. Neither of the three conditions as enunciated/evolved by the Supreme Court appears to have been fulfilled by the writ petitioner while challenging the transfer notification dated 03.9.2009. 14. The transfers, four in number though made within a period of 4 (four) years, once in a year, one of the transfers was made on promotion while two transfers during 2007-2008 were made on the request and advise of the ministers concerned and therefore, all the three transfers affected by the respondents cannot be said to be illegal, punitive and mala fide. The transfer made under the impugned notification is in the exigencies of service and, therefore, it cannot also be branded as mala fide. 15. Petitioner arrayed respondent No. 4 as proforma respondent. Admittedly he has not asked any relief as against him but apparently the petitioner has made some allegations against the proforma respondent No. 4 which are, however, refuted by filing counter affidavit by the proforma respondent No. 4 himself. Approach on the part of the petitioner as against the respondent No. 4 is not appreciable. Such an approach would have been acceptable had he been arrayed as one of the principal defendants. 16. Approach on the part of the petitioner as against the respondent No. 4 is not appreciable. Such an approach would have been acceptable had he been arrayed as one of the principal defendants. 16. In view of the facts and circumstances of the case and the law laid down by the Apex Court and the High Court, I am of the view that the petitioner proves his inability to counter the circumstances evolved by the Supreme Court. This Court finds no merit in this writ petition. 17. Writ Petition stands dismissed. No cost. Petition dismissed.