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2014 DIGILAW 716 (GAU)

Islam Uddin Laskar v. State of Assam

2014-07-17

TINLIANTHANG VAIPHEI

body2014
JUDGMENT Tinlianthang Vaiphei, J. 1. The legality of the order dated 18.3.2014 issued by the Director of Medical Education, Assam (the respondent No. 2) transferring the petitioner as Stenographer to Gauhati Medical College Hospital and placing him in the establishment of Superintendent, GHCH, Guwahati, is called into question in this writ petition. The facts of the case, as pleaded by the petitioner, may be briefly adverted to at the outset. Pursuant to the office order dated 28.2.2014, a medical examination section was constituted in the Office of the Director of Medical Education, Assam to monitor and implement Under-Graduate and Post-Graduate teaching, internal evaluation of students, etc. The petitioner along with three others was thereafter placed full time in the Medical College Section: he was given a seat in the Section and relieved of all other duties and assignments given to him earlier to enable him to work full time. The petitioner thereafter started working in the Medical Examination section in the Office of the respondent No. 2 with sincerity and utmost dedication. However, much to his surprise and all of a sudden, the impugned order was issued when he has not even completed two months in his current place of posting. Contending that the impugned order is mala fide, punitive and in violation of the model code of conduct imposed by the Election Commission and that there is no post of Stenographer at Gauhati Medical College Hospital, he is filing this writ petition for quashing the same. 2. Opposing the writ petition, the respondent authorities filed their affidavit-in-opposition through the Officer on Special Duty in the Directorate of Medical Education. The contention of the answering respondent is that the transfer is not punitive but is a usual transfer order which has been made at the request of the Superintendent of the Gauhati Medical College Hospital, Guwahati to assist him in some important works. It is pointed out by the answering respondent that the petitioner has been continuously absent from duty ever since the issue of the impugned transfer order. It is also pointed by the answering respondent that on the basis of the complaint received from one Sri Sunil Chandra Das, the Minister for Health and Family Welfare Department instructed the Directorate to launch urgent enquiry in connection therewith. In his complaint, the said Sunil Chandra Das alleged that he paid Rs. It is also pointed by the answering respondent that on the basis of the complaint received from one Sri Sunil Chandra Das, the Minister for Health and Family Welfare Department instructed the Directorate to launch urgent enquiry in connection therewith. In his complaint, the said Sunil Chandra Das alleged that he paid Rs. 1,50,000/- to the petitioner in lieu of one MBBS seat for his son, but he demanded another Rs. 1,50,000/- from him (complainant). The enquiry was conducted by two officers of the Directorate, namely, Prof. K.L. Talukdar, OSD and Dr. A.K. Sarma, Deputy DME, Assam. In the course of enquiry, some documents suggestive of illegal transaction of money between the petitioner and the complainant were found. The report of the enquiry officers is still under consideration by the DME, Assam for taking disciplinary action against the petitioner. 3. It is, however, disputed that he was transferred because of the complaint lodged against him. It is pointed out by the answering respondent that the petitioner was transferred to Gauhati Medical College Hospital, Guwahati which falls within the jurisdiction of the Directorate of Medical Education and that both the Directorate and the GMCH are located within a distance of nearly 4 km within the city of Guwahati. There was no violation of Model Code of Conduct: in any case, the Model Code has been lifted on 2.5.2014. The petitioner was transferred in public interest and due to administrative exigency, which cannot be construed to-be punitive in nature. These are the principal contentions of the State-respondents in defending the impugned transfer order. 4. In reply, the petitioner maintains that the impugned transfer order was issued because of some allegations made against him and that there is no documentary evidence to substantiate their claim that the transfer order was issued at the request of Superintendent of Gauhati Medical College and Hospital. The petitioner flatly denies that he ever demanded or took money for giving MBBS seat to the son of the complainant. There is no proof that the complainant paid Rs. 1,50,000/- to him. No reason is given by the respondents as to why a stenographer is needed in Gauhati Medical College and Hospital; he cannot be forced to work as ward boy or security guard at the Gauhati Medical College Hospital. He reiterates his case that the impugned transfer order is a classic example of punitive transfer order. 5. 1,50,000/- to him. No reason is given by the respondents as to why a stenographer is needed in Gauhati Medical College and Hospital; he cannot be forced to work as ward boy or security guard at the Gauhati Medical College Hospital. He reiterates his case that the impugned transfer order is a classic example of punitive transfer order. 5. The main contention of Dr. B. Ahmed, the learned counsel for the petitioner, is that the case of the petitioner the impugned order is stigmatic as well as mala fide has now been vindicated by the stance taken by the respondents in their affidavit-in-opposition: it is not an innocuous order as sought to be made out by the respondent authorities. According to the learned counsel, the cat is now out of the bag, and there is no administrative exigency warranting the transfer of the petitioner. He further submits that the fact that the petitioner has been transferred to a post where there is no post of Stenographer has amply proved that the transfer is mala fide and punitive in nature. He also contends that no prior permission of the Election Commission was taken when the transfer order was issued in violation of the Model Code of Conduct. He presses into service the following decisions to fortify his submissions:-(a) Somesh Tiwar vs. UOI, (2009) 2 SCC 592 ; (b) Nazmal Hussai Mahadi vs. State of Maharashtra, (1997) 1 SCC 532 : (c) Bibhuti Dutta Gupta vs. State of Tripura, 1998 (4) GLT 205 and (d) 1998 (2) GLT 543. 6. Per contra, Mr. D. Saikia, the learned Additional Advocate General, Assam, submits that the transfer order has been necessitated by administrative exigency and in public interest and the petitioner has no vested right to insist that he should be posted in a particular place of posting. Even if the transfer order is due to some allegation of corrupt practices against him also, it cannot be said that such transfer adversely affects his service conditions or status or service prospect or leads to penal consequences warranting the interference of this Court. He maintains that the respondent authorities are prima facie satisfied that the complaint made against the petitioner about his corrupt practices is quite sufficient to remove him to some other safe place to enforce discipline, decency and decorum in public service. He maintains that the respondent authorities are prima facie satisfied that the complaint made against the petitioner about his corrupt practices is quite sufficient to remove him to some other safe place to enforce discipline, decency and decorum in public service. It is the contention of the learned AAG that when the allegations made against the petitioner are serious in nature and the conduct attributed to him is quite unbecoming of a public servant, the respondents are well within their right to pass the impugned order. To buttress his contentions, he draws support from the following decisions, namely, (UOI & Ors. vs. Janardhan Debanath & Anr., (2004) 4 SCC 245 and Mozibu Rahman vs. State of Assam & Ors., 2004 (2) GLT 421. 7. It is by now a well-settled law that no government servant has any legal right to be posted forever at any one particular place since transfer of an employee from one place to another is not only an incident, but a condition of service, which is in public interest and for efficiency in public administration. The fact that an enquiry into the complaint against the petitioner pertaining to corruption charges is pending cannot be a ground to defeat a transfer order, has been made clear by the Apex Court in High Court of Judicature of Madras vs. R. Perachi, (2011) 12 SCC 137 . This is what the Apex Court said at para 31 of the judgment: "31. As seen above, the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against the first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the unit concerned. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances, the decision of then Chief Justice to transfer him outside that district could not be faulted." 8. The following observations of the Apex Court in Janardhan Debanath (supra) are also instructive: "14. In the circumstances, the decision of then Chief Justice to transfer him outside that district could not be faulted." 8. The following observations of the Apex Court in Janardhan Debanath (supra) are also instructive: "14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence of the complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not the Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petition filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs." 9. In the instant case also, allegation of serious nature, namely, demand of money in lieu of admission for MBBS has been made against the petitioner. In fact, a copy of the statement of account of the complainant maintained with the State Bank of India, Dekiajuli Branch annexed to the affidavit-in-opposition shows that a sum of Rs. 30,000/- was apparently deposited by the complainant in the account of the petitioner. Whether the statement of account is genuine or not is yet to be examined, but at this stage, there is at least prima facie indication that there is some evidence, even though it may not be conclusive, in the allegations made against him. 30,000/- was apparently deposited by the complainant in the account of the petitioner. Whether the statement of account is genuine or not is yet to be examined, but at this stage, there is at least prima facie indication that there is some evidence, even though it may not be conclusive, in the allegations made against him. In a case of this nature, to say that such evidence is irrelevant or inadequate for issuing the impugned transfer order is to ignore the stark reality of officials nowadays demanding bribes for admission in educational or professional institutions or for offering job, which practices, shamefully, remain unabated despite the phenomenal increase in their salaries, more particularly, after implementation of the recommendation of the Sixth Pay Commission. In my considered view, there is absolutely no ground for interference in the impugned transfer order. In so far as the contention regarding violation of the Model Code of Conduct is concerned, once the Model Code has spent its force, such contention does not survive for consideration. It may also be pointed out that the status or pay or service conditions of the petitioner are not affected by the impugned order: the petitioner has, therefore, no legitimate grievance to make in this behalf. For the reasons stated in the foregoing, there is no merit in this writ petition, which is hereby dismissed but by directing the parties to bear their respective costs. Petition dismissed.