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2013 DIGILAW 796 (GAU)

Khagen Borgohain v. State of Assam and Ors.

2013-11-12

TINLIANTHANG VAIPHEI

body2013
Tinlianthang Vaiphei, J. The question which falls for consideration in this writ petition is whether, on the facts and circumstances of this case, the transfer of the petitioner from the post of Chief Executive Officer, Zilla Parishad, Lakhimpur to the post of Joint Secretary to the Government of Assam, Hill Areas Development, Dispur, warrants the interference of this Court. The case of the petitioner is that he was transferred and posted as Chief Executive Officer of Lakhimpur Zilla Parishad by the notification dated 25.3.2013 issued by the Government of Assam in the Department of Personnel (A), which he joined on 9.5.2013. After joining the post, a meeting of the District Planning Committee was held on 30.7.2013 under the Chairmanship of Chairman, Lakhimpur Zilla Parishad (respondent 5) for selection of the schemes submitted by the Panchayat Research Institute (PRI). The meeting was attended by the local Member of Parliament and the Minister for Tribal Affairs, Government of India (respondent 4), the Deputy Commissioner, Lakhimpur, the local MLA and other members and representatives selected by the Deputy Commissioner, Lakhimpur. The meeting unanimously decided to approve the scheme under District Development Programme (DDP) as submitted by the PRI members through the Block Development Officers, Anchalik Panchayats, Gaon Panchayats. However, according to the petitioner, the Committee could not come into consensus in respect of the scheme under the Backward Region Grant Fund (BRGP) as most of the members were not supporting the scheme which was prepared under the guidance and control of the respondent No. 4. 2. The petitioner goes on to plead that on 6.8.2013, the Chairman of the Lakhimpur Zilla Parishad (respondent 5) called to her room and asked him to put his signature on a proceeding prepared by her with respect to the scheme covering Rs. 3.04 Crores allegedly made by her in consultation with the respondent No. 4. The petitioner refused to put his signature as he was not aware about the scheme and asked her to hand over the scheme prepared by her, but she refused to do so. He had initially refused to put his signature on the said proceeding, but he later did so under pressure and threat from the respondent No. 4. The petitioner was, therefore, constrained to bring the incident to the knowledge of the Commissioner, Panchayat & Rural Development Department vide his letter dated 7.8.2013. Soon thereafter, the impugned transfer notification was issued. He had initially refused to put his signature on the said proceeding, but he later did so under pressure and threat from the respondent No. 4. The petitioner was, therefore, constrained to bring the incident to the knowledge of the Commissioner, Panchayat & Rural Development Department vide his letter dated 7.8.2013. Soon thereafter, the impugned transfer notification was issued. Aggrieved thereby, he is now filing this writ petition for quashing the impugned notification. The writ petition is opposed by all the respondents. The respondents No. 2, 3, 4, 5 and 6 have in fact filed their respective affidavits-in-opposition. The common thread running through the counter-affidavits of the respondents No. 3, 4, 5 and 6 is that no pressure was ever exerted upon the petitioner nor was there any threat made to him to sign the meeting proceeding in question and that the petitioner was always found to be negligent in discharge of his duty and was not cooperating with them in preparing and executing various development schemes. All of them deny that the transfer order is mala fide or is colourable exercise of power, and they have no role to play in the impugned transfer order. The respondent No. 2, in his affidavit-in-opposition, has disclosed that the Minister, Panchayat & Rural Development Department, Assam (P & RD) received a number of complaints against the petitioner from Members of Lakhimpur Zilla Parishad whereupon the Minister took up the matter with the Chief Minister of Assam, who accordingly ordered his transfer. These are the sum and substance of the case of all the respondents. 3. Unfolding his submissions, Mr. S.N. Sarma, the learned senior counsel for the petitioner, maintains that the impugned notification was issued by way of a punishment to the petitioner for his refusal to sign on the said proceeding prepared by the respondents No. 5 in consultation with the respondent No. 4 and, is, therefore, mala fide. According to the learned senior counsel, the petitioner is sought to be ousted from his present posting so that the respondents would have free hand to misuse and misappropriate development funds for the poor by preparing false schemes for the Lakhimpur Zilla Parishad: the impugned transfer is nothing but a colourable exercise of power by the respondent authorities. According to the learned senior counsel, the petitioner is sought to be ousted from his present posting so that the respondents would have free hand to misuse and misappropriate development funds for the poor by preparing false schemes for the Lakhimpur Zilla Parishad: the impugned transfer is nothing but a colourable exercise of power by the respondent authorities. He also submits that the impugned transfer is also violative of the Government rules and guidelines, which say that if any incumbent is about to retire from service within a period of one year, he will not be disturbed from his place of posting: the petitioner is to retire from service within the next nine months. The learned senior counsel further contends that the petitioner is also a victim of frequent transfer inasmuch as he has just completed 3 months in his present place of posting as Chief Executive Officer, Lakhimpur Zilla Parishad and such frequent transfer cannot be sustained in law. He, therefore, vehemently submits that the impugned transfer is liable to be quashed. To fortify his contentions, he relies on the following decisions: (i) Tarlochan Dev Sharma v. State of Punjab & Ors., : (2001) 6 SCC 260 ; (ii) S.R. Venkataraman v. Union of India, (1979) 2 SCC 491 ; (iii) Kalyan Kumar Sarkar v. Alok Kanti Pal Choudhury, : 2006 (3) GLT 624 and (iv) Jibeshwar Thakuria v. State of Assam, : 2004 (1) GLT 347. 4. Refuting the submissions of the learned senior counsel, Mr. S. Sarma, the learned Additional Advocate General, contends that no letter dated 7.8.2013 purportedly sent by the petitioner was ever received by the Commissioner, P & RD and, as such, the petitioner is evidently manufacturing a false and concocted story to annul the transfer order. It is further contended by him that had he been really forced to put his signature in the meeting proceeding against his will, he could have lodged a complaint against the respondent No. 4 and 5 with the jurisdictional police station, but he did not do so which clearly shows that the said respondents had not done anything against him: in fact, the record of the Commissioner, P & RD indicated that the additional Annual plan amounting to Rs. 3,04 Crores under BRGF was forwarded by him on 5.8.2013, which is contradictory to his statement in paragraph 4 of the writ petition. 3,04 Crores under BRGF was forwarded by him on 5.8.2013, which is contradictory to his statement in paragraph 4 of the writ petition. The learned AAG also submits that transfer is an incident of service and the petitioner has he right to claim a particular place of posting, and can be transferred anywhere in the exigency of public service. According to the learned AGG, the petitioner has proved to be full of arrogance, rigidity and self-righteousness resulting in halting various developmental works in the district and is thus incapable working with the political executives and has to be transferred out for bona fide reason and in public interest. It is also his contention that the recommendation of elected officials for the transfer of the petitioner does not necessary lead to the inference of mala fide after all they are also stakeholders in the governance of the State. Contending that the impugned transfer order does not suffer from violation of statutory rules, procedural impropriety or mala fide calling for the interference of this Court, the learned AAG strenuously urges this Court to dismiss the writ petition. He also, on instruction, informs this Court that considering the fact that the petitioner is on the verge of retirement, the respondent authorities, in fairness, are ready to transfer him to any place other than his present place of posting; He relies on the following decisions to buttress his contentions:-- (a) Airport Authority of India v. Rajeev Ratan Pandey, (2009) 8 SCC 337 , (b) State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 ; (c) State of U.P. v. Siya Ram & Ors., (2004) 7 SCC 5; (d) Union of India v. Janardhan Denath, : (2004) 4 SCC 245 ; (e) NHPC v. Shri Bhawagan & Ors., : (2001) 8 SCC 574 ; (f) N.K. Singh v. UOI, (1994) 6 SCC 98 ; (g) Shipi Bose (Mrs.) & Ors. v. The State of Bihar & Ors., : 1991 Supp (2) SCC 659; (h) Md. Masood Ahmed v. State of UP; : (2007) 8 SCC 150 and (i) M. Balakrishna Reddy v. UOI & Ors., : 2007 (4) GLT 583. The submissions of the learned AAG are fully endorsed by M/s. G. Uddin, J. Deka, S.K. Deka, Bimal Cherry, K. Choudhury, N. Baruah and M.J. Quadir and Mrs. Masood Ahmed v. State of UP; : (2007) 8 SCC 150 and (i) M. Balakrishna Reddy v. UOI & Ors., : 2007 (4) GLT 583. The submissions of the learned AAG are fully endorsed by M/s. G. Uddin, J. Deka, S.K. Deka, Bimal Cherry, K. Choudhury, N. Baruah and M.J. Quadir and Mrs. H.M. Phukan, the learned Government Advocate appearing for the respondents, who also maintain that this is not a fit case for the interference of this Court. 5. I have perused the pleadings of the rival parties together with the records relating to the impugned transfer order produced on behalf of the Department of Personnel, Government of Assam and the Department of Panchayat & Rural Development, Govt. of Assam. Before adverting to the present controversy, it will be instructive to refer to some of the decisions of the Apex Court laying down the principles to be kept in mind by Courts and Tribunals for adjudging the validity of transfer orders issued by public authorities. In this context, the observations of the Apex Court in N.K. Singh case (supra) instantly come to mind, which are in the following terms: 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 imponderable 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 scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the Courts lacks 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. 6. In State of M.P. v. S.S. Kourav, : (1995) 3 SCC 270 , while setting aside the order of the Administrative Tribunal interfering with the transfer order of a Government employee, the Apex Court made the following observations: 4. ...The Courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. 6. In State of M.P. v. S.S. Kourav, : (1995) 3 SCC 270 , while setting aside the order of the Administrative Tribunal interfering with the transfer order of a Government employee, the Apex Court made the following observations: 4. ...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. It is for the administration to take 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 of officer at a particular place. (Underlined for emphasis) 7. The Apex Court in Somesh Tiwari. v. Union of India, : (2009) 2 SCC 592 discussed as to what constitutes mala fide exercise of power and held that transfer order is invalid on the ground of mala fide exercise of power. In paragraph 16 of the judgment, this is what it said: 16. Indisputably an order of transfer is a administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. (Underlined for emphasis) 8. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. (Underlined for emphasis) 8. For better appreciation of the controversy involved in the instant case, I may refer to the facts of the case of Gobardhan case (supra) in detail, which was also concerned with challenge to an order of transfer on the ground of mala-fides. In that case, the respondent, who was working as District Supply Officer, Meerut, came to be transferred by an office order dated 8.12.1999 by the Secretary, Food and Civil Supplies Department of the Government Head Office - Office of Food Commissioner at Lucknow. This office order involved the posting of not only a substitute to the respondent at Meerut but the transfer of another office as well. The grievance with which the transfer order came to be challenged before the High Court was that though by an order dated 10.4.1999 the respondent, who was serving at Unnao, was transferred to Meerut and joined as such, he came to be transferred again by the impugned order due to political and influence, particularly that of the local MLA by name Atul Kumar, to the Head Office at Lucknow in order to help another to be posted in his place. It seems to have been further urged that the District Magistrate of Meerut has commended the services of the respondent in dealing with the public and despite such views expressed, the transfer order came to be made for extraneous purposes, at the behest of and in order to oblige the local MLA. Carried away by the copies of the letter filed as annexures before the High Court, allegedly written by the MLA, the Court, while issuing notice, seems to have granted interim orders of stay as well. The respondents filed counter-affidavit disputing the claims made in the writ petitioner to the alleged motives and baseless allegations relating thereto, and as found noticed in the order under challenge, it was categorically asserted for the respondent before the High Court that the so-called said to have been written by the MLA is fake one and it was neither written by him nor was it available in the files. 9. 9. That apart, it was also, among other things, contended that the performance of the respondent in the previous stations as well came under a cloud and as a matter of fact, he was suspended on 10.2.1997 for alleged serious irregularities and misconduct while he was District Supply Officer at Hamirpur and Gonda. Though, subsequently reinstated on 11.7.1997 and departmental proceedings instituted were pending, once again he was said to have been suspended on 15.12.1997 for irregularities committed and reinstated on 20.3.1999, subject to the condition that the departmental proceedings pending against him would continue and as a matter of fact, two departmental proceedings were said to be pending against him. The respondent (writ petitioner in the High Court) himself is said to be the real brother of an MLA, by name Shri Ram Pal Verma, and through him and another MLA he was said to be bringing a lot of pressure to bear on the authorities, at every stage a favourable treatment. In the light of the above and the further claim made that the criminal proceedings have also been sanctioned against him, it was contended that his transfer was purely in public interest and necessitated by the exigencies of service to keep him away from the field work and to take him into the head quarters office on the administrative side. The observations made by the Apex Court against undue interference by Courts and tribunals in the matter of order of transfer are found at paragraphs 8 and 9 of the judgment with the attendant consequences thereto, which cannot be lost sight of when dealing with challenge to an order of transfer and same are reproduced below: 8. 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 over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. 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 over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or tribunals cannot substitute their own decisions in the matter of transfer for that of the competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. 9 The very questions involved, as found noticed by the High Court in these cases, being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its appreciation and understanding of the prevailing circumstances as disclosed from some write-ups in journals or newspaper reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of the state or any authority as well as the basic concepts and well -recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring an effective supervision and control and running of administration merely on certain assumed notions orderliness expected from the authorities affecting the transfers. Even as the position stands, avenues are being open for being availed of by anyone aggrieved, with the authorities concerned, the Courts and tribunals, as the case may be, to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognised grounds or reasons, when properly approached and sought to be vindicated in the manner known to and in accordance with law. No such genaralised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reins of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously Courts endeavour to safeguard the rights of parties. (Underlined for emphasis) 10. From the observations culled out from the aforesaid decisions, it may now be taken to be the law that in the matter of transfer of a government employee, the scope of judicial review is limited and the High Courts and Tribunals would not interfere with an order of transfer lightly, be it at interim stage or final order hearing. This is so because transfer is the prerogative of the authorities concerned, and the Courts or tribunals do not substitute their own decisions in the matter of transfer. An order of transfer can, however, be interfered with only when (i) the transfer order is shown to be vitiated by malafides, or (ii) is issued in violation of any statutory provision, or (iii) is passed by an authority not competent to pass such an order. As for mala fide order of transfer, the allegations of mala fides must inspire confidence of the Courts and tribunals and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala fides is on a person levelling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person levelling allegations of mala fides; it must be supported by requisite materials. That the burden of proving mala fides is on a person levelling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person levelling allegations of mala fides; it must be supported by requisite materials. In the instant case, the allegations of mala fides transfer are sought to be proved by the petitioner by two circumstances, namely, (i) his transfer was effected within three months of his assumption of office and (ii) he has been transferred due to political pressure by Chairman of the Lakhimpur Zilla Panchayat (respondent 5) under the guidance of the local MP who also happens to be a Union Minister (respondent 4). These allegations are stoutly denied by both the respondents by filing their respective affidavits. The petitioner seeks to rely on the letter dated 7.8.2013 written by him to the Commissioner, P & RD complaining that he was forced to sign on the proceeding prepared by respondent 5 with respect to the scheme worth Rs. 3.04 Crores by respondent 4 and 5 by way of contemporaneous document The existence of this letter is also denied by the answering respondents. Apart from the said letter dated 4.5.2013 purportedly written by the President and other Members of Lakhimpur Zilla Parishad to the Deputy Commissioner asking him to withdraw the petitioner from Lakhimpur Zilla Parishad, there is no other complaint against him before issuing the impugned transfer order. Even the original of this letter is not tracable to any file produced by the learned counsel for the respondents. I have also gone through the file maintained by the Department of personnel(A) but no shred of documentary evidence with respect to any complaint against the petitioner is found therefrom prior to issuing the order of transfer. All that can be found is the note of the Chief Minister for transfer of the respondent No. 6 as Chief Executive Officer, Lakhimpur Zilla Parishad Vice the petitioner, who was to be transferred and posted as Joint Secretary, Hill Areas Department. No reason is assigned which prompted the transfer of the petitioner. Therefore, the impugned transfer order would attract the principle of malice in law as it was not based any factor germane for passing an order of transfer: it was based on non-existent facts. No reason is assigned which prompted the transfer of the petitioner. Therefore, the impugned transfer order would attract the principle of malice in law as it was not based any factor germane for passing an order of transfer: it was based on non-existent facts. It is interesting to note that the meeting proceeding dated 23.8.2013 of the President and Members of the Lakhimpur Zilla Parishad adopting a resolution against the petitioner undoubtedly came into existence only after the impugned order of transfer was issued. Thus, at the time when the impugned transfer was ordered by the Chief Minister, there was absolutely no complaint against the petitioner. A feeble attempt was made by the learned Additional Advocate General that this document clearly shows that the petitioner is absolutely not suitable for the post and does not receive the cooperation of the President and members of Lakhimpur Zilla Parishad. In my considered view, such post-transfer development facts cannot be taken into account for adjudging the validity of the impugned order of transfer. Moreover, it is well-settled law that when an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefore in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the record. - Commr., of Police v. Gordhandas Bhanji, : 1952 SCR 135 , Mohinder Singh Gill v. Chief Election Commissioner, : (1978) 1 SCC 405 ; Bahadursinh Lakhubhai Gohil v. Jagdisbhai M. Kamalia, : (2004) 2 SCC 65 and Hindustan Petroleum Corpn. Ltd. v. Darius Sgapur Chennai, : (2005) 7 SCC 627 . In the view that I have taken, the impugned order of transfer is mala fide, arbitrary and is illegal, which cannot be sustained in law. For the reasons stated in the foregoing, this writ petition succeeds. The impugned order of transfer contained in the notification dated 13.8.2013 at Annexure-4 to the writ petition is hereby quashed. The interim order dated 20.8.2013 as extended from time to time is accordingly made absolute. However, I pass no order as to costs. _