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2014 DIGILAW 407 (GAU)

Sanjeev Kumar Bhuyan v. State of Assam

2014-04-04

UJJAL BHUYAN

body2014
JUDGMENT Ujjal Bhuyan, J. 1. Both this writ petition and Misc. Case No. 720/2014 were heard on 01.04.2014 and today is fixed for delivery of order. By way of this petition under Article 226 of the Constitution of India, petitioner has challenged the legality and correctness of the order dated 01.03.2014 passed by the Assam Administrative Tribunal (Tribunal) in Case No. 3 ATA/2014 admitting the appeal filed by respondent No. 6 against order of transfer dated 24.02.2014 and staying the said order of transfer. 2. Facts of the case lie on a very narrow compass and may be noted at the very outset. 3. By notification dated 09.02.2011 issued by the Commissioner and Secretary to the Government of Assam, Health and Family Welfare Department, petitioner was promoted to the post of Professor of Orthopaedics and posted at Fakhruddin Ali Ahmed Medical College and Hospital, Barpeta. At the time of promotion, petitioner was serving at Guwahati Medical College. By subsequent order dated 13.10.2011 of the Health Department, petitioner was allowed to work temporarily in the Orthopaedics Department, Guwahati Medical College and Hospital from Monday to Thursday and from Friday to Saturday at Barpeta. By the impugned notification dated 24.02.2014 issued by the Commissioner and Secretary to the Government of Assam, Health and Family Welfare (B) Department, petitioner was transferred to and posted at Guwahati Medical College vice respondent No. 6 who was transferred to and posted at Fakhruddin Ali Ahmed Medical College, Barpeta. 4. It appears that respondent No. 6 had filed an appeal before the Addl. Chief Secretary to the Government of Assam, Health and Family Welfare (B) Department on 27.02.2014 against the said transfer order dated 24.02.2014. It was alleged that the said transfer order had been issued to accommodate the petitioner who is a favourite person of the Principal of Gauhati Medical College. Respondent No. 6 stated that while he had received copy of the transfer order only on 27.02.2014, petitioner was already relieved of his charge at Barpeta on 25.02.2014. This, respondent No. 6 contended, could be possible as the transfer order was issued at the instance of the petitioner and he was aware of the same. Respondent No. 6 thereafter filed an appeal before the Tribunal under Section 4 of the Assam Administrative and Pension Tribunal Act, 1977 (Act) challenging the legality and correctness of the transfer order. This, respondent No. 6 contended, could be possible as the transfer order was issued at the instance of the petitioner and he was aware of the same. Respondent No. 6 thereafter filed an appeal before the Tribunal under Section 4 of the Assam Administrative and Pension Tribunal Act, 1977 (Act) challenging the legality and correctness of the transfer order. On 01.03.2014, the Tribunal admitted the appeal and stayed the impugned order of transfer. 5. This writ petition has been filed by the petitioner, who is arrayed as respondent No. 7 in the appeal, questioning the legality and correctness of the said order of the Tribunal dated 01.03.2014. 6. This Court by order dated 07.03.2014 admitted the writ petition and stayed the order of the Tribunal dated 01.03.2014. 7. Respondent No. 6 has filed an application for vacation/modification of the aforesaid order dated 07.03.2014, which has been registered and numbered as Misc. Case No. 720/2014. 8. On 20.03.2014, this Court directed the learned Standing Counsel, Health Department to produce the record and also to obtain instruction from the respondents as to whether there was any possibility of addressing the grievance of respondent No. 6. 9. On 28.03.2014, learned Standing Counsel, Health Department produced the record and also made a statement before the Court on instruction that if the respondent No. 6 submits a representation, the authorities are open to explore the possibility of suitably accommodating both the petitioner and the respondent No. 6. However, learned counsel for respondent No. 6 on instruction from his client was not agreeable to the above suggestion and pressed the Misc. Case for consideration. 10. Accordingly, both the Misc. Case and the writ petition were taken up and heard together. 11. I have heard Mr. P.K. Goswami, learned Senior Counsel assisted by Ms. B. Choudhury, learned counsel for the petitioner and Ms. A. Verma, learned Standing Counsel, Health department, who has produced the record. I have also heard Mr. G.Z. Ahmed, learned counsel for the respondent No. 6. 12. Learned Senior Counsel for the petitioner submits that the appeal filed by the respondent No. 6 before the Tribunal is not maintainable in view of the restriction imposed under Section 4 of the Act. I have also heard Mr. G.Z. Ahmed, learned counsel for the respondent No. 6. 12. Learned Senior Counsel for the petitioner submits that the appeal filed by the respondent No. 6 before the Tribunal is not maintainable in view of the restriction imposed under Section 4 of the Act. Appeal was filed immediately on the next day of filing of appeal before the Additional Chief Secretary not to speak of expiry of the statutory period of 6 (six) months prescribed under Sub-Section (2) of Section 4. No leave was sought for from the Tribunal for relaxation of the said requirement. In such circumstances, Tribunal could not have admitted the appeal and passed the order of stay. He also submits that the order of the Tribunal does not indicate any application of mind. From the appeal filed by the respondent No. 6 before the Addl. Chief Secretary on 27.02.2014 itself, it is evident that petitioner was released from Barpeta on 25.02.2014 in terms of the transfer order dated 24.02.2014. Copy of the appeal filed before the Addl. Chief Secretary was annexed to the appeal and therefore this fact was before the Tribunal. Since the transfer order was partially given effect to, the Tribunal ought not to have stayed the transfer order. He further submits that transfer and posting of a Government servant is an incident of service and unless any violation of the statutory rules or an act of malice can be shown to the satisfaction of the Court, an order of transfer is ordinarily not to be interfered with by the Court. He further submits that following the stay order passed by this Court, the Government has passed consequential order allowing the petitioner to take unilateral charge at Guwahati Medical College and Hospital pursuant to which he has taken over charge. 13. Learned Standing Counsel, Health Department submits from the record that the impugned transfer order was passed after due consideration and taking all relevant factors taking into consideration. No case of favoritism or any act of mala fide can be attributed to the above decision of the Government, she submits. Justifying the impugned order, she seeks dismissal of the writ petition. 14. Mr. Ahmed, learned counsel for respondent No. 6 submits that the Tribunal is competent to entertain appeals filed against an order of transfer. No case of favoritism or any act of mala fide can be attributed to the above decision of the Government, she submits. Justifying the impugned order, she seeks dismissal of the writ petition. 14. Mr. Ahmed, learned counsel for respondent No. 6 submits that the Tribunal is competent to entertain appeals filed against an order of transfer. Since the matter is at an interlocutory stage; this Court may not interfere with the proceeding before the Tribunal and the Tribunal should be allowed to adjudicate the matter on merit. He submits that since the Tribunal had admitted the appeal, it would mean that the waiting period of 6 (six) months from the date of filing the appeal/representation has been impliedly relaxed/waived. He also submits that the transfer order has been issued on an application made by the petitioner which is not permissible under FR 15. This aspect is required to be looked into and therefore the Tribunal has decided to examine this matter. He further submits that the Principal of Gauhati Medical College has long standing differences with the respondent No. 6 and since the petitioner is a favorite colleague of the Principal, the two of them had colluded and the consequence of this collusion is the issuance of the order of transfer. 15. Submissions made have been considered. I have also perused the relevant file produced by the learned Standing Counsel. 16. Law relating to transfer and posting of a Government servant is well settled and requires no restatement. Transfer is an incident of service and the administration is the best judge to decide whom to post where. As has been held by the Apex Court, a Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he should be posted at a particular place. An order of transfer passed in the public interest would not be interfered with by the Court unless cogent materials are placed before the Court to show that such an order of transfer was actually not passed in the public interest but for some oblique purpose or for violation of any statutory norms. 17. An order of transfer passed in the public interest would not be interfered with by the Court unless cogent materials are placed before the Court to show that such an order of transfer was actually not passed in the public interest but for some oblique purpose or for violation of any statutory norms. 17. Having said so, this Court finds that though in the memo of appeal filed before the Tribunal by the respondent No. 6 as appellant allegations have been made against the Principal of the Gauhati Medical College and Hospital that he is not favorably inclined towards the respondent No. 6, there is nothing to show that the petitioner was a party to any act of malice of the Principal against the respondent No. 6. The only statement made relating to the petitioner is that he is a blue eyed person of the Principal of the Gauhati Medical College. There is nothing on record to show that the Principal of the Gauhati Medical College had played a pro-active role in the issuance of the transfer order or that the petitioner had colluded with the Principal to transfer out the respondent No. 6. In the face of such inadequate pleadings, no inference of mala fide can be drawn, not to speak of any conclusion being reached that the transfer order was issued on malicious considerations. 18. On the other hand, there is sufficient force in the submission made by Mr. Goswami, learned Senior Counsel that without exhausting the statutory period before filing of appeal and without relaxation of such period as provided under Section 4 of the Act, the Tribunal could not have entertained the appeal filed by the respondent No. 6. Section 4 of the Act reads as under:- "4. Jurisdiction- (1) Save as otherwise expressly provided in sub-section (2) below the Tribunal shall have jurisdiction to entertain and dispose of appeals preferred by civil servants against any order passed by a competent authority in any condition of service [and pension matters]. Section 4 of the Act reads as under:- "4. Jurisdiction- (1) Save as otherwise expressly provided in sub-section (2) below the Tribunal shall have jurisdiction to entertain and dispose of appeals preferred by civil servants against any order passed by a competent authority in any condition of service [and pension matters]. (2) Notwithstanding anything contained in sub-section (1) above, the Tribunal shall have no jurisdiction with respect to any order passed, when the civil servant has not availed of all the remedies available to him under the relevant service rules, executive instructions of orders: Provided that notwithstanding anything contained in the above paragraph the Tribunal may entertain an appeal from a civil servant, if any appeal, revision petition or representation filed by him under the relevant service rules before the competent authority has not been finally disposed of by the competent authority within a period of six months from the date of filing such appeal, revision petition or representation: "Provided further that in an appropriate case the Tribunal may relax the provisions contained in the foregoing proviso regarding the period of six months specified therein."] (3) Notwithstanding anything contained in sub-section (1) above, the Tribunal shall have no jurisdiction to entertain and dispose of appeals against any order passed by a competent authority under Article311(2) provisos (a), (b) and (c) as also under F.R. 56(b)." 19. A perusal of the aforesaid provision, particularly the first and second proviso, would show that before filing an appeal, the Government servant is required to file appeal, revision petition or representation before the competent authority but if such appeal, revision petition or representation is not finally disposed of by the competent authority within a period of 6 (six) months from the date of filing of such appeal, revision petition or representation, the Tribunal may entertain such an appeal. In case of urgency or in an appropriate case, the Tribunal may relax the requirement of waiting for 6 (six) months. 20. The order of the Tribunal dated 01.03.2014 does not indicate that any application or prayer was made by respondent No. 6 for relaxing the period of 6 (six) months or that the same was relaxed before admitting the appeal. The order of the Tribunal is silent on this aspect. Moreover, no reasons have been assigned by the Tribunal for staying the order of transfer. 21. The order of the Tribunal is silent on this aspect. Moreover, no reasons have been assigned by the Tribunal for staying the order of transfer. 21. Coming to the contention of learned counsel for respondent No. 6 that under FR 15 the State Government may transfer a Government servant from one post to another post except on account of inefficiency or misbehavior or on his written request, a reading of the said provision as a whole would show that only on account of inefficiency or misbehavior or on own written request, a Government servant may be transferred to a post carrying lesser pay than the post he was holding. Otherwise, the State Government is empowered to transfer a Government servant from one post to another. This is the true meaning and purport of FR 15. In any case, FR 15 will have to be read and understood in a pragmatic manner and in the contextual facts of each individual case. The normal tenure/posting of a Government servant is 3 years. A Government servant would certainly be entitled to move his employer for a change of posting after completing his tenure in a particular station, which may be accepted or may not be accepted. The aforesaid provision cannot be invoked to contend that under no circumstances a Government employee may make a request to his employer to transfer him and that the State Government under no circumstances can transfer a Government servant on his request. 22. Coming to the facts of this case, it is seen from the record that petitioner had completed his 3 (three) years tenure at Barpeta and made an application before the State Government to post him at Gauhati Medical College and Hospital where his services could be utilized in Post-Graduate teaching which is not available at Barpeta. The record further indicates that the aforesaid request of the petitioner was processed and thereafter transfer order was issued. 23. Having regard to the above and in the light of the discussions made, this Court does not find any illegality in the order of transfer dated 24.02.2014 and therefore interference with the same by the Tribunal is not justified. Order of the Tribunal dated 01.03.2014 is accordingly set aside and quashed. 24. 23. Having regard to the above and in the light of the discussions made, this Court does not find any illegality in the order of transfer dated 24.02.2014 and therefore interference with the same by the Tribunal is not justified. Order of the Tribunal dated 01.03.2014 is accordingly set aside and quashed. 24. Before parting with the record, this Court however would like to observe that the respondent No. 6 is one of the senior most faculty members of Orthopaedics in the State and had completed his normal service period. He is now on extended service for 2 years. As per statement made in the Misc. Application, his extended period of service will also come to an end on 31.08.2016. It is seen from the record that a suggestion was placed by the Addl. Chief Secretary, Health and Family Welfare Department before the Departmental Minister on 05.02.2014 in the light of the prayer petition made by the petitioner that at present there is no vacancy of Professor of Orthopaedics at Gauhati Medical College and Hospital but there are 3 (three) vacant posts of Professor of CTBS, Radiotherapy and Oncology at Guwahati Medical College. The note further indicates that the post of Radiotherapy is vacant and as per departmental assessment, it would remain vacant at least for the next 2 years. It was therefore suggested that the petitioner could be transferred to the Gauhati Medical College and Hospital against the vacant post of Professor of Radiotherapy which may in turn be attached to the Department of Orthopaedics. The Court has referred to the above note in view of the fair stand taken by the departmental Counsel that the authorities are open to explore the possibility of suitably accommodating the interest of both the petitioner and the respondent No. 6. 25. Considering the above, this Court leaves it to the wisdom of the departmental authorities in the Health Department to take a fair and judicious decision on the departmental appeal filed by the respondent No. 6 on 27.02.2014. 26. Writ petition is accordingly allowed. 27. No cost. Record produced by learned Standing Counsel is returned back.