Research › Search › Judgment

Gauhati High Court · body

2013 DIGILAW 2 (GAU)

Debabrata Chakraborty v. State of Tripura

2013-01-02

UTPALENDU BIKAS SAHA

body2013
JUDGMENT Utpalendu Bikas Saha, J. 1. The present writ petitioner approached this Court for the second time challenging the order of transfer dated 24.1.2012 whereby and whereunder the petitioner has been transferred from Nandannagar H.S. School to South Charilam High School, Bishalgarh under Bishalgarh Inspectorate. Heard Mr. K. Roy, learned counsel for the petitioner as well as Ms. A.S. Lodh, learned Addl. G.A. for the State respondents. 2. As agreed to by the learned counsel for the parties and considering the nature of the prayer made, the instant writ petition is taken up for final disposal. 3. The pleaded case of the petitioner is that the petitioner was appointed as Graduate Teacher in 1996 and was posted at Ek Jatan Kumar High School, Amarpur, South Tripura District and thereafter he was transferred from one place to another. In the year 1998 he along with others were abducted by the banned extremists outfit namely, All Tripura Tigers Force (for short, ATTF). Subsequently, he was released from the captivity of the extremists. The aforesaid period of his absence was ultimately regularized by the respondent-employer. While he was working at Nandannagar H.S. School he received the impugned transfer order whereby and whereunder he was transferred to South Charilam High School, Bishalgarh and thereafter he made a representation to the Director of School Education, respondent No. 2 on 2.2.2012, i.e., before his release. As the said representation was not considered by the respondent No. 2 in time, the petitioner approached this Court by way of filing WP(C) 254/2012. 4. This Court on perusal of the para-wise comments as placed by Ms. Lodh disposed of the entire writ petition on 4.6.2012 directing the respondent No. 2 to dispose of the representation of the petitioner dated 2.2.2012 (Annexure-2 to the writ petition being WP (C) 254/2012) by a reasoned order within a period of two weeks from the date of order and till the disposal of the representation the transfer order impugned and release order, if any, issued were suspended so far the petitioner was concerned. Thereafter, respondent No. 2 vide memo dated 3.6.2012 (Annexure-12 to the writ petition) considered the representation of the petitioner dated 2nd February, 2012 and ultimately, on careful consideration did not accede to the prayer and directed the petitioner to join in his place of posting at South Charilam High School, Bishalgarh. Thereafter, respondent No. 2 vide memo dated 3.6.2012 (Annexure-12 to the writ petition) considered the representation of the petitioner dated 2nd February, 2012 and ultimately, on careful consideration did not accede to the prayer and directed the petitioner to join in his place of posting at South Charilam High School, Bishalgarh. Being aggrieved by the decision of the respondent No. 2 in memo dated 13.6.2012 the petitioner again approached this Court by way of filing the instant writ petition. 5. In the writ petition, the petitioner mainly contended regarding his hardships, inter alia, that the petitioner is staying in his residence with his old and ailing mother, who is suffering from different old age ailments. His another contention is that the authority has modified the transfer order issued in favour of other teachers of the school where the petitioner is working, namely, one Sudangshu Dutta who is serving in the school of the petitioner for the last 16 years and one Nirmal Sutradhar who is also serving in the said school for last 20 years and relating to some other teachers who were working in other schools. 6. In the rejoinder affidavit, the petitioner though pleaded that the respondents with an ulterior motive and under instigation of some vested interested persons have acted in a mala fide way but none of those persons have been made party in the instant writ petition. 7. The respondents have filed their counter-affidavit, wherein it is stated that, the South Charilam High School where the petitioner has been transferred has been suffering badly for want of teacher and it is the admitted fact that the respondent No. 2 has transferred some teachers from their existing schools and other schools in public interest and on receipt of the transfer order some of them prayed for modification and accordingly upon considering their representations some of the transfer orders have been modified taking note of the difficulty of the respective teachers. It is also stated that in Bishalgarh Sub-divisional Hospital, medical facilities are available and the petitioner can easily go for his treatment in the said hospital. It is also stated that in Bishalgarh Sub-divisional Hospital, medical facilities are available and the petitioner can easily go for his treatment in the said hospital. Further, case of the respondent is that the petitioner is serving at Nandannagar H.S. School before his transfer for more than 13 years, i.e. from 1.12.1999 to 10.2.2012 and transfer being a pre-condition of service, an employee, including the petitioner, is bound to serve anywhere in the State of Tripura as per terms and conditions of the service. The respondents have also denied the allegation of mala fide. 8. Mr. Roy, learned counsel for the petitioner while urging for the relief sought for would contend that though the respondent No. 2 has considered representation of the other teachers and ultimately modified their transfer order but the case of the petitioner was not considered with a humane touch and ultimately disposed of his representation without modifying his transfer order. He further submits that the petitioner is suffering from liver disease, the treatment of which is not available at Bishalgarh Sub-Divisional Hospital and thus for his treatment also his presence in the present school is necessary. 9. He further submits that the South Charilam High School is about 6/7 kms. away from the highway of Bishalgarh and transportation facilities are also not available. On query of this Court, in his usual fairness he submits that though there is some allegations of mala fide but to prove the same nobody has been made party in the writ petition. He finally submits that unless the transfer of an employee is urgently required he should not be transferred and the employer is also in obligation to consider the inconvenience or difficulties of an employee like the petitioner but in the instant case the employer respondent did not consider the inconvenience of the petitioner. He has taken us to a Division Bench judgment in Dr. Utpal Bora v. State of Assam and other, (2010) 3 GLR 780. 10. Ms. Lodh, learned Addl. GA appearing for the State respondents while countering the submission of Mr. Roy would contend that transfer is an incident of service and where the employee should be transferred it is always with the employer and not to the Court unless the transfer is made either with mala fide intention or with oblique motive. 10. Ms. Lodh, learned Addl. GA appearing for the State respondents while countering the submission of Mr. Roy would contend that transfer is an incident of service and where the employee should be transferred it is always with the employer and not to the Court unless the transfer is made either with mala fide intention or with oblique motive. According to her, the instant transfer order is issued in the interest of public service and as there is short age of graduate teachers in the South Charilam High School, the petitioner has been posted there. She also contended that mere modification of the transfer order of some of the teachers of the school of the petitioner itself would not entitle him to remain in his present place of posting as the authority on proper examination of each representation of the employee concerned modified the order of transfer, particularly on its own merit. 11. She finally contended that the main ground of the petitioner in the writ petition is his personal hardships which cannot be a ground for setting aside the transfer order. She finally contended that the Court or tribunal should not interfere with a valid transfer order unless the said order is passed mala fide, illegally or in violation of the statutory rules. In support of her aforesaid contention she has placed reliance on a decision of the Apex Court in Union of India and Ors. v. H.N. Kirtania, (1989) 3 SCC 445 wherein the Apex Court has considered the three orders of the Calcutta High Court wherein the learned single Judge of the said High Court issued order restraining the Central Government authorities from giving effect to the order of transfer and release and thereafter, an application for vacating the interim order was filed by the Union of India but the same was not disposed of and meanwhile a contempt proceeding was initiated against the authorities at the instance of the respondent H.N. Kirtania on the allegation that he was not allowed to retain his duties at Calcutta in pursuance of the interim injunction. 12. 12. The learned single Judge of the Calcutta High Court by his order dated October, 11, 1985 issued rule for contempt against the appellant-Union of India and further issued interim protection for paying all arrear of salary to the respondent within three weeks against which the appellant filed an appeal before the Division Bench of the said High Court along with an interim stay application but the said interim stay application was dismissed by the Division Bench on January, 24, 1986 and ultimately an appeal was preferred before the Apex Court and the Apex Court after hearing the parties noted that, "we do not find any valid justification for the High Court for entertaining a writ petition against the order of transfer made against an employee of the Central Government holding transferable post. Further there was no valid justification for issuing injunction order against the Central Government. The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer." With the aforesaid observation the Apex Court allowed the appeals and set aside the orders of the High Court. 13. She has also placed reliance on a decision of the Apex Court in State of U.P. and others v. Siya Ram and another 2004 AIR SCW 4548: ( AIR 2004 SC 4121 ) wherein the Apex Court noted as follows:- 6. The above position was recently highlighted in Union of India and others v. Janardhan Debanath and another 2004 (4) SCC 245 : ( AIR 2004 SC 1632 ). It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest. 7. In view of the settled position in law the judgment of the High Court is indefensible and is set aside. 14. In support of her contention that hardship cannot be a ground for interfering with a transfer order, she has placed reliance on a judgment of the Apex Court in State of M.P. and another v. S.S. Kourav and others, (1995) 3 SCC 270 : ( AIR 1995 SC 1056 ) wherein the Apex Court while taking note of the plea of hardship noted that Court cannot go into the question of hardship. 15. This Court has given anxious thought to the submission of the learned counsel for the parties as well as the pleadings of the parties. From the aforesaid judgment, as referred to by Ms. Lodh, it can be said that when a person entered into service he entered with the liability of transfer and unless the transfer order is issued with mala fide intention the Court should not pass any interim order staying the valid transfer order and also should not quash/set aside the same. In the instant case, it is admitted position that the petitioner was allowed to stay in Nandannagar H.S. School for a period of 13 years though there are some other teachers who are staying longer than the petitioner. The period of stay in a school by the teachers will be decided by the employer, not by the Court as the employer is the best judge to take decision where and when they will utilize the service of their employees, not the Court. The Court is to decide as to whether the transfer order issued by the authority is within, their jurisdiction and if so whether the said order is passed legally for public interest or not. In the instant case, it appears from the impugned order (Annexure-1 to the writ petition) that not only the petitioner but other 16 teachers of various schools have also been transferred and admittedly some of the transfer orders have been modified. In the instant case, it appears from the impugned order (Annexure-1 to the writ petition) that not only the petitioner but other 16 teachers of various schools have also been transferred and admittedly some of the transfer orders have been modified. But that does not mean that the authority is also bound to modify the transfer order of the petitioner. 16. The case of Dr. Utpal Bora (supra) as referred to by Mr. Roy, has been taken into consideration by this Court. It appears from the said judgment that the learned Division Bench did not interfere with the transfer order, rather modified the said transfer order and noted that, "we are of the view that the impugned transfer order, dated 5.1.2010, shall come into force with effect from the end of the academic session 2009-10 of the CBSC course and till then, the appellant shall be allowed to remain with Home (B) Department. It is further made clear that the appellant shall, on completion of the academic session aforementioned, join his place of posting as has been directed by the impugned order, dated 5.1.2010, unless the said order is, in accordance with law, modified either at the initiative of the respondents/authorities themselves or on the basis of any representation, which the appellant may make." 17. In the case of Dr. Utpal Bora (supra) the appellant-writ petitioner assailed the order dated 5.1.2010 whereby he was reverted from Home (B) Department to his parent department and posted at Medical and Health Officer No. 1, Central Training Institute, Civil Defence and Home Guard, Panikhaiti, Kamrup. The writ Court taking note of the entire facts and circumstances dismissed the writ petition against which the appellant-writ petitioner Dr. Utpal Bora preferred appeal and the appellate Court taking note of the submissions of the learned counsel for the appellant-writ petitioner, inter alia, that there was no grave urgency to withdraw the service of the appellant from Home (B) Department, particularly, when the respondents/authorities have not taken into account the immense difficulties of the appellant inasmuch as the appellant's elder daughter is a student of Class-IV, pursuing her course of study under Central Board of Secondary Education and the transfer was made during the middle of the academic session, modified the order of the writ Court, as stated supra, but not interfered with the transfer order. 18. 18. In Shilpi Bose v. State of Bihar, 1991 Supp (2) SCC 659: ( AIR 1991 SC 532 ) while the Apex Court was considering the scope of judicial review relating to transfer of an employee held as follows:- 4. In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders. 19. In N.K. Singh v. Union of India, (1994) 6 SCC 98 : ( AIR 1995 SC 423 ) the Apex Court in paragraph 23 held as follows:- 23. Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the Courts lack the necessary expertise for personnel management of all Government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. 20. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. 20. In State of M.P. and another v. S.S. Kourav and others, (1995) 3 SCC 270 : ( AIR 1995 SC 1056 ) the Apex Court while considering the plea of hardship raised by the transferee-writ petitioner observed as follows. It is further contended that in an unfortunate situation the respondent's wife committed suicide leaving three children and he would suffer extreme hardship if he has to work in the tribal area. This Court cannot go into that question of relative hardship. It would be for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration. If there is any such hardship, if would be open to the respondent to make a representation to the Government and if is for the Government to consider and take appropriate decision in that behalf. 21. In the said judgment, the Apex Court while setting aside the order of the Administrative Tribunal which interfered with the transfer orders noted as follows:- The Courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. If is for the administration to fake appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background or foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place. 22. In Airports Authority of India v. Rajeev Ratan Pandey, (2009) 8 SCC 337 : (AIR 2010 SC (Supp) 322 the Apex Court in paragraph 10 noted as follows:- 10. In a matter of transfer of a Government employee, (the) scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the Courts do not substitute their own decision in the matter of transfer. 23. In a matter of transfer of a Government employee, (the) scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the Courts do not substitute their own decision in the matter of transfer. 23. In Rajender Singh and others v. State of Uttar Pradesh and others, (2009) 15 SCC 178 : (2009 AIR SCW 7461) the Apex Court taking note of its earlier decision in State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 : ( AIR 2004 SC 2165 ) observed that, "A Government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the Government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires." 24. In State of Haryana and others v. Kashmir Singh and another, (2010) 13 5CC 306, the Apex Court noted inter alia, "Transfer ordinarily is an incidence of service, and the Courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that the transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations." 25. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations." 25. The case of N.K. Singh ( AIR 1995 SC 423 ) (supra) and S.S. Kourav AIR 1995 SC 1056 ) (supra) as well as the case of Rajeev Ratan Pandey (AIR 2010 SC (Supp) 322) (supra) were also considered by the Apex Court in Registrar General, High Court of Judicature of Madras v. R. Perachi and other, (2011) 12 SCC 137 : ( AIR 2012 SC 232 ). 26. In the instant case also, the petitioner is transferred and posted in South Charilam High School taking note of the requirement of the school, i.e. student-teacher ratio. This Court while exercising its writ jurisdiction is not in a position to reassess the teacher-student ratio as considered by the authority. The administrative authority, i.e. the employer is always free to take decision as to how many teachers will be posted in a particular school considering its necessity. This Court is unable to accept the contention of Mr. Roy to the effect that the petitioner would be in excess in the school where he has been posted considering the student-teacher ratio. 27. Upon going through the entire judgment of the Division Bench it appears that the order was modified only to give the petitioner an opportunity so that the education of his elder daughter is not disturbed. In the instant case, no such pleading is made by the petitioner. More so, the respondents in their addl. affidavit specifically stated that there are some female teachers in South Charilam High School who are discharging their duties. It is further contended that there is an additional need of teacher in the said school and for which two teachers have been posted there. 28. How many teachers will be in a school cannot be decided by the Court as it is the authority to see how it will run the school for the interest of the students. It further appears from the pleadings of the petitioner in his writ petition that the petitioner went to Apollo Hospital, Chennai for his treatment of chronic back pain (Annexure-9 to the writ petition) meaning thereby, the petitioner was not happy with the treatment available in the State of Tripura. It further appears from the pleadings of the petitioner in his writ petition that the petitioner went to Apollo Hospital, Chennai for his treatment of chronic back pain (Annexure-9 to the writ petition) meaning thereby, the petitioner was not happy with the treatment available in the State of Tripura. Thus, if the petitioner requires further treatment, he may also take advice either from the local hospital/State hospital or from any hospital outside, if so desired. But that ailment cannot be considered as a ground for stalling a valid transfer order as impugned herein. More so, it also appears from the record that the case of the petitioner was considered by the authority in terms of the earlier order of this Court. In view of the above, the instant writ petition is dismissed being devoid of merit. Interim order, if any, stands vacated. No costs. Petition dismissed.