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2014 DIGILAW 353 (GAU)

Sunil Kumar Das v. State of Assam and Ors.

2014-03-21

A.K.GOSWAMI

body2014
1. Heard Mr. R. Phukan, learned counsel for the petitioner. Also heard Mr. R.K. Borah, learned State counsel appearing for the respondent Nos. 1 to 4 and Mr. A. Goyal, learned counsel appearing for the respondent No. 5. This writ petition is directed against an order of transfer dated 15.11.2013 whereby the petitioner was transferred to Border, Assam from his earlier place of posting at Barpeta DEF as Officer-in-charge, Sarbhog Police Station. The respondent No. 5 in turn, by the said transfer order, was posted as Officer-in-charge, Sarbhog Police Station from his earlier place of posting at Barpeta Road as Inspector. It is also relevant to notice that some other persons were also transferred by the said order dated 15.11.2013. The order of transfer was issued by the Additional Director General of Police (Administration). Placing reliance on the averments made in the writ petition, Mr. Phukan has submitted that he was posted at Sarbhog Police Station by an order of transfer dated 4.5.2013 and had joined as Officer-in-charge, Sarbhog Police Station on 13.5.2013 and, therefore, the transfer order dated 15.11.2013, which was issued within a period of seven months from his earlier order of transfer, that too, when barely one year had remained for the petitioner to superannuate from his service, is bad in law and arbitrary. He has also contended that as the petitioner was transferred before expiry of three years, the transfer order is in violation of Government guidelines and, thus, not sustainable in law. Mr. R.K. Borah, learned State counsel, appearing for the State respondents, by producing the relevant records as well as by placing reliance on the affidavit filed on behalf of respondent No. 4, submits that on the basis of a report received from the Superintendent of Police, Barpeta, decision was taken to transfer the petitioner. It is submitted by him that there is no rule prohibiting transfer of a Government servant who is due to retire in a year's time. It is ultimately public interest which has to be given utmost importance, he contends. Mr. Borah has highlighted that the petitioner, during his short period of about four months as Officer-in-charge of Sarbhog Police Station, had not registered 27 cases forwarded by the learned Chief Judicial Magistrate, Barpeta, which also include heinous offences involving sections 376/307, IPC, etc. Mr. It is ultimately public interest which has to be given utmost importance, he contends. Mr. Borah has highlighted that the petitioner, during his short period of about four months as Officer-in-charge of Sarbhog Police Station, had not registered 27 cases forwarded by the learned Chief Judicial Magistrate, Barpeta, which also include heinous offences involving sections 376/307, IPC, etc. Mr. Goyal, learned counsel appearing for respondent No. 5 submits that he had already taken over charge on 16.11.2013 after the petitioner was released from his duty. I have perused the records produced by Mr. Borah and have also perused the materials on record. Though the petitioner had referred to guidelines issued by the Government on the subject of transfer of a Government employee during the course of his submissions, same is not produced during the course of hearing. The same also do not form part of the pleadings. Be that as it may, in State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 , the Apex Court had reiterated that the order of transfer, even if made in transgression of administrative guidelines, cannot be interfered with, as they do not confer any legally enforceable rights. The scope of judicial review of an order of transfer is very limited. In N.K. Singh v. Union of India and Others, (1994) 6 SCC 98 , the Apex Court laid down 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 or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all Government departments. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising 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." Annexure 1 to the affidavit-in-opposition is a report of the Deputy Superintendent of Police, HQ, Barpeta to the Superintendent of Police, Barpeta informing him that as during his supervisory function, he could notice that some of the cases that are reported in Sarbhog Police Station are not registered, to find out the truth, he made an enquiry with assistance of some Police Officers as indicated therein and found that out of 47 cases that were forwarded by the Court of the learned Chief Judicial Magistrate for registration, 27 of them were not registered. The list of such cases show that cases involving serious offences under sections 325/376/307, IPC, etc., were also not registered. On the basis of the said report, the respondent No. 4 had addressed a letter dated 1.11.2013 to the Director General of Police. The said letter also included many other instances of acts of omission and commission on the part of the writ petitioner during discharge of his duty. In his reply-affidavit, the stand taken by the petitioner is that he had registered whatever cases were sent to him. There are no averments that he had registered any of the said 27 cases listed at Annexure 1 to the affidavit-in-opposition of the respondent No. 4. It is also stated in the affidavit that departmental proceeding is contemplated against the petitioner for non-registration of such cases, in view of the fact that in the enquiry, petitioner's inefficiency, negligence and mis-demeanour is, prima-facie, established. From the records produced by Mr. Borah, it appears that the letter dated 1.11.2013 addressed to the Director General of Police by the respondent No. 4 was taken note of at the time of passing the transfer order. From the records produced by Mr. Borah, it appears that the letter dated 1.11.2013 addressed to the Director General of Police by the respondent No. 4 was taken note of at the time of passing the transfer order. The order of transfer can be interfered with by the writ court in exercise of power under article 226 of the Constitution of India, if the same is passed in mala fide exercise of power or in violation of any statutory rules or professed norms or if such an order of transfer adversely and prejudicially affects the service condition or if the order is passed by an authority not competent to do so or if it is punitive. The instant case does not fall in any of the aforesaid categories. That the petitioner is due to retire in less than a year's time is also no ground to interfere with the order of transfer. Suitability of a person for a particular post is to be assessed by superiors in the hierarchy of administration. In view of the aforesaid discussions, I am of the considered opinion that no case is made out for interference with the order of transfer and accordingly, the writ petition is dismissed. No costs.