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Gauhati High Court · body

2013 DIGILAW 414 (GAU)

Pinku Mazumdar v. State of Assam and Ors.

2013-06-14

B.P.KATAKEY

body2013
The petitioner by the present petition has challenged the order of transfer dated 22.5.2013 passed by the Secretary to the Government of Assam, Water Resources Department, transferring him from Nalbari W.R. Sub-Division to Lala W.R. Sub-Division, in the same capacity as Asstt. Executive Engineer, in place of the respondent No.3, who has been transferred from Lala to Nalbari. 2. The grounds on which the said order of transfer is put to challenge are that the transfer is in the nature of colourable exercise of powers in the name of public interest and administrative exigencies and it amounts to mala fide transfer, since the proposal for transfer was initiated not at the instance of the departmental Minister, but at the instance of the Minister of another department, who has nothing to do with W.R. Department. Another ground on which the transfer order has been put to challenge is that the approval of the Chief Minister has not been obtained before passing the transfer order as is required by the guidelines formulated by the State, as the petitioner has not completed his normal tenure of posting of 3(three) years at Nalbari. 3. I have heard Mr. A.C. Borbora, learned senior counsel for the petitioner; Mr. B. Goswami, learned standing counsel W.R. Department and Mr. D.K. Das, learned counsel appearing for the respondent No.3. 4. Mr. Borbora, learned senior counsel submits that though the scope of judicial review of an order of transfer, in exercise of the power under article 226 of the Constitution of India, is very limited, such transfer order, however, can be interfered with if passed in mala fide and colourable exercise of the powers and also on the ground of violation of the transfer policy formulated by the State. In the instant case, according to the learned senior counsel, since the transfer order was passed at the instance of a Minister other than the departmental Minister, such transfer order is mala fide and has been passed in colourable exercise of the powers conferred. The learned Sr. counsel further submits that before passing the transfer order the Chief Minister's approval has not been taken, though required under the transfer policy formulated by the State, as the petitioner has not completed his normal tenure of posting of three years at a particular station. The learned Sr. counsel, therefore, submits that the transfer order is required to be set aside. 5. Mr. The learned Sr. counsel, therefore, submits that the transfer order is required to be set aside. 5. Mr. Goswami, learned standing counsel W.R. Department, placing reliance on the record produced by him, has submitted that the approval of the Chief Minister, before issuance of the order of transfer has been obtained, since neither the petitioner nor the respondent No.3 completed the normal tenure of posting of three years in a particular station, though the transfer guidelines issued by the State do not confer upon the Government employee a legally enforceable right. Mr. Goswami further submits that the process of transfer was initiated on the basis of the request made by two Ministers other than the Minister of W.R. Department as well as another constitutional authority, who has issued the communications requesting transfer of the petitioner from Nalbari to Guwahati and on that basis the file was first moved on 7.5.2012. In the meantime, according the learned standing counsel, another request was made by another Minister for transfer of the respondent No. 3 from Lala to Guwahati, on the basis of which an office note dated 12.6.2012 was put up. The Department, thereafter, submitted a proposal for transfer of the petitioner from Nalbari to Mangaldoi and the respondent No. 3 from Lala to Nalbari in place of the petitioner and the approval of the Chief Minister was also obtained on 19.9.2012, as both the Officers did not complete their normal tenure of posting of three years in their respective stations. It has also been submitted that the petitioner, however, could not be transferred to Mangaldoi as in the meantime the post has been filled up by way of promotion of another Officer. Consequently the Department, in public interest as well as in administrative exigencies, decided to transfer the petitioner from Nalbari to Lala and the respondent No.3 from Lala to Nalbari and accordingly the transfer order has been passed. The learned standing counsel submits that the transfer order has not been passed in colourable exercise of the powers or with mala fide intention, which has been passed in public interest and in administrative exigencies. 6. Mr. Das, the learned counsel appearing for the respondent No.3. The learned standing counsel submits that the transfer order has not been passed in colourable exercise of the powers or with mala fide intention, which has been passed in public interest and in administrative exigencies. 6. Mr. Das, the learned counsel appearing for the respondent No.3. submits that the scope of judicial review of the order of transfer being very limited and the writ court can interfere with the order of transfer if the same is passed in violation of any statutory provision or is mala fide or the authority who issued the order of transfer is not competent to pass the same, the impugned order needs no interference as the petitioner could not demonstrate existence of any such ground. It has also been submitted that since the transfer guidelines issued by the State do not confer upon the Government employee a legally enforceable right, the petitioner cannot file the writ petition challenging the order of transfer on the ground of violation of such guidelines, though in the instant case, there is absolutely no violation as has been submitted by the petitioner. The learned counsel submits that before passing the order of transfer the approval of the Chief Minister, as is required by the guidelines, has been obtained. It has also been submitted that the process of transfer was not initiated at the instance of the respondent No.3 but was initiated at the instance of the writ petitioner, which is evident from the record. The learned counsel, therefore, submits that the writ petition deserves to be dismissed. 7. I have considered the submissions of the learned counsel for the appearing parties and also perused the relevant records as produced by the learned standing counsel W.E. Department. 8. It is a settled position of law that the scope of judicial review of an order of transfer is very limited. An order of transfer of a Government Officer can, however, be interfered with by the writ court, in exercise of its jurisdiction under article 226 of the Constitution of India, if such transfer order is an outcome of mala fide exercise of power or violative of any statutory provision or order was passed by an authority not competent to do so. An order of transfer can also be interfered with if such transfer results in adversely affecting the service conditions. An order of transfer can also be interfered with if such transfer results in adversely affecting the service conditions. The transfer being an incidence of service and the authority having the power to transfer one Officer from one place to another, the Officer cannot complain of such transfer unless of course any of the aforesaid grounds is demonstrated. The writ court cannot sit on appeal over an order of transfer as well as the grounds thereof except on the grounds stated above. The court should be very reluctant to interfere with the order of transfer as long as the same is not clearly illegal. 9. The Apex Court in State of U.P. v. Govardhan Lal, (2004) 11 SCC 402 has held that even when an order of transfer is made in transgression of administrative guidelines, the court cannot interfere with the same on that count, as those guidelines do not confer any legally enforceable right, unless of course such transfer order is shown to be vitiated by mala fide or is made in violation of any statutory provision. The Apex Court in Mohd. Masood Ahmed v. State of U.P., (2007) 8 SCC 150 reiterating the scope of judicial review of transfer order, under article 226 of the Constitution of India, has held that the order of transfer being a part of the service condition of an employee, the same 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 transfer order is mala fide or that the service rules prohibits such transfer, or that the authority who has issued the order was not competent to do so. Refuting the submission that the order of transfer was issued at the instance of an MLA, the Apex Court in that case has held that the recommendation of an MLA by itself would not vitiate the transfer order as it is the duty of the representative of the people in the Legislature to express the grievances of the people and if there is any complain against an official, the State Government is certainly within its jurisdiction to transfer such an employee. The Apex Court in State of Haryana v. Kashmir Singh, (2010) 13 SCC 306 has also held that the transfer being an incidence of service, the court should be very reluctant in interfere with the order of transfer as long as they are not clearly illegal. It has further been held that the administrative exigency cannot be judged by judicial authorities and the court should not interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of a citizen. 10. On the backdrop of the scope of judicial review of an order of transfer, under article 226 of the Constitution of India, as discussed above, I shall now proceed to deal with the case in hand. In the instant case, as noticed above, one of the grounds of challenge to the order of transfer is that the approval of the Chief Minister has not been obtained, though required under the guidelines formulated. Perusal of the records produced by the learned standing counsel W.R. Department reveals that since both the petitioner and the respondent No.3 did not complete the normal tenure of posting of three years, the proposal was submitted before the Chief Minister seeking approval for transfer of the petitioner from Nalbari to Mangaldoi and the respondent No.3 from Lala to Nalbari in place of the petitioner. The proposal for transfer was approved by the Chief Minister on 19.9.2012. Though in the said proposal the petitioner was sought to be transferred from Nalbari to Mangaldoi, the same, however, could not be materialized because another officer in the meantime has been promoted and posted at Mangaldoi. The approval, which is required to be obtained from the Chief Minister is not relating to the place of posting on, transfer but relating to the proposal for transfer of an officer from one station to any other station before completion of the normal three years tenure in a particular station. Hence the requirement of the guidelines formulated by the State for obtaining the prior approval of the Chief Minister has been complied with, though the petitioner could not be transferred to Mangaldoi. In any case, since the violation of such administrative guidelines do not confer any legally enforceable right, the petitioner cannot challenge the order of transfer on the ground of violation of the administrative guidelines issued in that respect. 11. In any case, since the violation of such administrative guidelines do not confer any legally enforceable right, the petitioner cannot challenge the order of transfer on the ground of violation of the administrative guidelines issued in that respect. 11. The other ground on which the order of transfer has been put to challenge, as discussed above, is that the entire process has been vitiated as the same has been initiated on the basis of the recommendation of a Minister other than the departmental Minister at the instance of the respondent No.3. The record produced by the learned standing counsel, however, gives a different picture. The process of transfer was initiated on 7.5.2012 based on the recommendation made by two Ministers other than the departmental Minister for transferring the petitioner from Nalbari to Guwahati, apart from the recommendation by another constitutional authority in that respect. Those recommendations were, as revealed by the communications issued, at the instance of the petitioner himself. Immediately after such recommendation, another Minister of another department recommended the transfer of the respondent No.3 from Lala to Nalbari, pursuant to which a note dated 12.6.2012 was submitted. The departmental authority having regard to the aforesaid proposals and also the administrative exigencies submitted the proposal for transfer of the petitioner from Nalbari to Mangaldoi and the respondent No.3 from Lala to Nalbari and though a decision was thereafter taken in that respect, the same, however, could not be materialized, as discussed above, because of non-availability of the vacancy at Mangaldoi. Consequently the decision was taken for transfer of the petitioner from Nalbari to Lala and the respondent No.3 from Lala to Nalbari, which has been approved by the departmental Minister on 13.5.2013 and accordingly the transfer order dated 21.5.2013 has been issued. The petitioner also could not demonstrate existence of any grounds, discussed above, to interfere with the transfer order in exercise of the jurisdiction under article 226 of the Constitution. 12. From the aforesaid fact, it, therefore, transpires that the process of transfer was not initiated initially at the instance of the respondent No.3, but at the instance of the writ petitioner himself. 12. From the aforesaid fact, it, therefore, transpires that the process of transfer was not initiated initially at the instance of the respondent No.3, but at the instance of the writ petitioner himself. The writ petitioner, therefore, cannot complain about initiation of the process of transfer because of the recommendation made by a Minister other than the departmental Minister, since the said process has been initiated based on the recommendation made by two Ministers and another constitutional authority at the instance of the petitioner. 13. In view of the aforesaid discussion, I do not find any merit in the writ petition and, hence, the same is dismissed. 14. No cost.