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2014 DIGILAW 839 (GAU)

Oli Koyu v. State of Arunachal Pradesh

2014-09-02

PRASANTA KUMAR SAIKIA

body2014
JUDGMENT Prasanta Kumar Saikia, J. 1. This proceeding has been initiated seeking quashment of transfer order dated 24.06.2014 (Annexure VIII to the petition) issued by the respondent No. 1, Secretary/Commissioner (Tax & Exercise) Govt. of Arunachal Pradesh, Itanagar, under which the petitioner stood transferred from Namsai Sub-Division to Tezu in Lohit District under the administrative control of D.C. Lohit. Under the same transfer order, the respondent No. 3 too was transferred from Seppa, East Kameng District to Namsai, Sub Division under the administrative control of ADC, Namsai with some additional duties, mentioned in the transfer order. 2. Heard Mr. R. Saikia, learned counsel appearing for the petitioner, Mr. R.S. Nabam, learned Senior Govt. Advocate and Mr. Tony Pertin, learned counsel appearing for the respondent No. 3. 3. The facts, necessary for disposal of the present proceeding, in brief, are that since 2011, the petitioner has been working as Superintendent (Tax & Excise) and was initially posted as above at Koloriang. On completion of his tenure period at Koloriang, which is said to be a hard place of posting in terms of Govt. Policy on transfer, he was transferred out from the place aforesaid and was posted at Likabali. Accordingly, he joined at his new place of posting at Likabali on 04.04.2011. 4. While he remained posted at Likabali, the petitioner was suddenly transferred out from Likabali and was posted to Hawai in Anjaw district vide transfer order dated 30.06.2013. However, he was so transferred before he could complete his tenure posting at such place. Being aggrieved, the petitioner had filed a representation dated 17.04.2013 contending, inter alia that he had been suffering from several diseases including displacement of P-Palates of backbone. 5. In his representation, he had further submitted that the transfer order aforesaid needs to be cancelled since his father who is a widower and who lost his wife very recently had undergone heart by-pass surgery. That apart, he is also suffering from renal failure which necessitated him to be on dialysis from time to time. On the aforesaid grounds, he desired that his transfer from Likabali to Anjaw was to be cancelled. 6. Since his representation was not considered, he had approached this court by way of filing a writ petition which was numbered as WP(C) No. 248/2013 challenging the said transfer order on grounds more than one. On the aforesaid grounds, he desired that his transfer from Likabali to Anjaw was to be cancelled. 6. Since his representation was not considered, he had approached this court by way of filing a writ petition which was numbered as WP(C) No. 248/2013 challenging the said transfer order on grounds more than one. This Court issued notice upon the respondents and on hearing both the parties; the court was pleased to quash the transfer order dated. 30.06.2013 and directed the respondent No. 1, i.e. Commissioner (Tax & Excise) Govt. of Arunachal Pradesh, Itanagar to assess the difficulties of the petitioner independently without being influenced by any other extraneous consideration vide order dated 24.09.2013 passed in WP(C) No. 248 (AP)2013. 7. For ready reference the order dated 24.09.13 of this court is reproduced below: "The petitioner is aggrieved by annexure-VII order dated 30.06.2013 by which he has been transferred from BFC, Likabali to Hawai under Deputy Commissioner, Anjaw. By the same very order, the respondent No. 3 has been transferred from Hawai to Likabali to the replacement of the petitioner. Admittedly, the transfer of the respondent No. 3 is at his own request as it is evident from the impugned order itself in which there is a remark that "No TA/DA- the transfer is on own request". The remark is against the name of the respondent No. 3. Before the said order, there was same repetition by annexure-1 order dated 12.04.2013 making to accommodate the respondent No. 3. The petitioner submitted annexure-II representation dated 17.04.2013. Thereafter invoking the provisions of RTI Act, the petitioner could obtain the record relating to his transfer which revealed that the transfer was affected on the basis of the direction made by the Parliamentary Secretary (Home, Geology and Mining) by his endorsement dated 11.03.2013. The petitioner filed WP(C) No. 130(AP) 2013 and by order dated 19.04.2013, interim stay was provided. Thereafter, by annexure-VI order dated 27.06.2013, a fresh transfer order was issued retaining the petitioner at BFC Likabali and posting the respondent No. 3 in the office of the Commissioner (Tax & Excise) under the administrative control of Commissioner (T&E) Headquarter instead of BFC Likabali. In view of the modified transfer order, the petitioner withdrew the writ petition and immediately thereafter, within 3 days, the impugned order dated 30.06.2013 was issued repeating the same transfer and posting as was ordered vide annexure-1 order dated 12.04.2012. In view of the modified transfer order, the petitioner withdrew the writ petition and immediately thereafter, within 3 days, the impugned order dated 30.06.2013 was issued repeating the same transfer and posting as was ordered vide annexure-1 order dated 12.04.2012. This time also the petitioner has obtained the record through RTI application which revealed that the impugned order was passed on the basis of the request made by the Parliamentary Secretary (Home etc) over telephone in order to avoid humiliation of his initiative. Needless to say that transfer is an incident of service and in the interest of public service and officer can be transferred. In the instant case, transfer order has been passed at the initiative of Parliamentary Secretary (Home etc) repeated permuted humiliation in public interest. The respondent No. 3 has shown some personal difficulties but it is equally true that the petitioner has also shown his personal difficulties including the expiry of his mother and his father's treatment. It is in such circumstances the authority had passed the order dated 27.06.2013 retaining the petitioner at BFC Likabali and posting the respondent No. 3 at Itanagar by annexure-VI order dated 27.06.2013. In view of the above, this writ petition is disposed of directing the respondent No. 1 i.e. Commissioner (Tax & Excise), Govt. of Arunachal Pradesh, Itanagar to independently asses the situation and pass an appropriate order without mortgaging his conscience to the Parliamentary Secretary (Home etc), as expeditiously as possible, but not later than 15.10.2013. With the above directions, this writ petition stands disposed of. Let a copy of this order be furnished to Ms. G. Deka, learned Addl. Sr. Govt. Advocate during the course of the day". 8. Pursuant to the said order passed by this court in WP(C) No. 248(AP)2013, the respondent No. 1 was pleased to pass the order dated 30th September, 2013 allowing the petitioner to remain posted at BFC, Likabali during his period of medical treatment on certain conditions. They were 1). he would draw his salary from DCs Office Anjaw and 2) He would maintain and attend Anjaw District timely at all times. 9. Thereafter, on considering his health problems and other domestic problems, the authority concerned was pleased to accept his request and was further pleased to post him at BFC Likabali so that he could get his treatment at Medical College at Dibrugarh vide order dated 05.09.2013. 10. 9. Thereafter, on considering his health problems and other domestic problems, the authority concerned was pleased to accept his request and was further pleased to post him at BFC Likabali so that he could get his treatment at Medical College at Dibrugarh vide order dated 05.09.2013. 10. In the meantime, vide order dated 27.01.2014 (Annexure IV to the writ petition), the Secretary/Commissioner (T & E) Govt. of Arunachal Pradesh, transferred and posted the petitioner at Namsai Sub-Division under the administrative control of ADC to look after BFC (Border Facilitation Counter) Dirak on regular basis. He was also directed to look after the work of Superintendent (T& E) Anjaw till posting of regular Superintendent at such place. 11. Meanwhile, the Secy. Cum Commissioner (T & E) Govt. of Arunachal Pradesh, Itanagar vide order dated 1st April, 2014, posted the respondent No. 3 at Seppa, under the administrative control of Deputy Commissioner, Seppa, East Kameng District with immediate effect. Such transfer was made for the failure of respondent No. 3 to comply with the order passed by DEO. 12. On the transfer of respondent No. 3, the petitioner was asked to look after the work hitherto attended to by respondent No. 3, Superintendent (T & E) on temporary basis. In addition to the work, so assigned to him, he successfully attended some other duties pertaining to control of Narcotic and Psychotropic Substances in the State of Arunachal Pradesh. 13. In the meantime, he came to know that a transfer process had been initiated to get him out of Namsai so as to make the way for posting of respondent No. 3 in his place. Accordingly, he sought for necessary information on preferring an application under the RTI Act before the authority concerned. In course of such enquiry, he learnt that the respondent Nos. 4,5 and 6, who are the Minister of Agri. Horti & AH & DD, the Parliamentary Secretary and the Local M.L.A. Namsai respectively, requested the Chief Minister A.P. to consider the transfer of the petitioner from his place of posting and to fill up the post held by him by respondent No. 3. 14. On the basis of such recommendation, the petitioner was again transferred to Tezu vide order dated 24.06.2014. According to the petitioner, the transfer in question is unsustainable in law since such transfer suffers from various vices. 14. On the basis of such recommendation, the petitioner was again transferred to Tezu vide order dated 24.06.2014. According to the petitioner, the transfer in question is unsustainable in law since such transfer suffers from various vices. They are:-- "1) the transfer order was passed as a punitive measure which is not permissible under the law, 2) It was rendered not in the interest of exigency of service but on the desire of political masters to further their narrow political interest, 3) It was done in malafide exercise of power and 4) the petitioner was subjected to a series of transfer occurring over a short span of time." 15. The State respondents as well as private respondent contested the proceeding having filed separate affidavits. In their common counter affidavit, the State respondents have contended that the present proceeding is premised not on facts but on fiction and as such, same is liable to be dismissed. In that connection, it has been stated that the State respondents have always been very sympathetic to the problems of petitioner for which the State respondents were pleased to post him at BFC, Likabali allowing him to draw his salary against the post of Superintendent (T & E) Anjaw. While he was so posted at BFC, Likabali, in the exigency of service having regard to the problems faced by the petitioner, he was again transferred and posted as Superintendent (T&E) Namsai. 16. In that context, it has been submitted that there are only two posts of Superintendent of Taxes in the zone in question. One of such post is at Anjaw whereas the other is at Tezu. In spite of above, in order to accommodate the petitioner, the State respondents went an extra mile by posting the petitioner at places, same being BFC, Likabali/Namsai where there are no post of Superintendent of Taxes. Therefore, the claim of the petitioner that he was always subjected to harassment in the name of transfer is painfully incorrect. 17. It is also the contention of the State respondents that since the Superintendent of Taxes, Namsai was burdened with enormous work and since the petitioner was not keeping good health, he was transferred out to Tezu, where volume of work is less and which have good infrastructure in the terms of medical facilities. 17. It is also the contention of the State respondents that since the Superintendent of Taxes, Namsai was burdened with enormous work and since the petitioner was not keeping good health, he was transferred out to Tezu, where volume of work is less and which have good infrastructure in the terms of medical facilities. In that connection, it has been stated that apart from attending his normal duties, the Superintendent (T&E) Namsai is to attend check gates at Dirak and Chandanpur which are situated at poles apart on a very difficult mountainous terrain. 18. It may be stated that the State respondents admitted that the petitioner was transferred from one place to other on occasions more than one but in most of the cases, he was transferred at his own request. That apart, sometimes, he was to be transferred in exigency of service as well. In view of above, the State respondents prays for dismissal of the proceeding since transfer is an incidence of service and since the petitioner could not make out any case requiring the interference of this court. 19. Echoing the argument, advanced from the side of State respondents, the private respondent too claims that the petitioner was transferred from one place to another on either exigency of service or in the interest of the petitioner himself, and that too, on his own request. The fact that he was posted at places like Likabali/Namsai without there being any post of Superintendent of Taxes is a clear testimony to the fact that the transfer in question was made in the interest of the petitioner as well as in exigency of service. 20. In regard to the allegation that he (private respondent) was transferred out of Seppa as a measure of punishment, it has been stated that he was not responsible for the alleged dereliction of duties since the duty which was alleged to have been not attended to by the respondent No. 3 was assigned to many authorities and officers and respondent No. 3 was one of such officers and therefore, it would be too preposterous to conclude that the respondent No. 3 alone was guilty of alleged dereliction of duty. 21. 21. In so far as allegation of transfer in question being made as a punitive measure, it has been contended that the relevant file reveals nothing to show that such transfer was made on the suggestion of some political leaders or businessmen or on the behest of respondent No. 4 to 6. Rather, all the materials available evince that the petitioner was transferred out of Namsai not only in the interest of public service but also in the interest of petitioner as well. 22. Even if one assumes for the sake of argument that petitioner was transferred out of Namsai on the suggestion made by political masters, yet, unless it is shown that such suggestion was made with malafide intention, transfer in question cannot be quashed only because it was made at the behest of political masters since political masters has genuine right to suggest the administration as to how the administration is to be run within their assigned territory. 23. In the case of Mohd. Masood Ahmad v. State of U.P. & Ors., reported in (2007) 8 SCC 150 . The relevant part is reproduced below: "Para-8. Learned counsel for the appellant submitted that the impugned transfer order of the appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter-affidavit filed on behalf of Respondents 1 and 2 that the appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee. There can be no hard and fast rule that every transfer at the instance of an MP or MLA would be vitiated. It all depends on the facts and circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order". 24. I have heard the learned counsel for the parties having regard to their pleaded cases as well as the decisions relied on by them. It all depends on the facts and circumstances of an individual case. In the present case, we see no infirmity in the impugned transfer order". 24. I have heard the learned counsel for the parties having regard to their pleaded cases as well as the decisions relied on by them. It may be stated here that a transfer order cannot be questioned unless it is shown that (a) such order was made on malafide exercise of power, (b) such order was passed arbitrarily (c) such order was passed not in exigency of service and (d) such an order was passed by an authority in violation of law. Being so, let us see whether the order under challenge suffers from any of the vices aforementioned. 25. A careful perusal of record reveals that there is no dispute over the fact that the petitioner has been suffering from some serious medical problems. It is not in dispute that he has been having some serious domestic problems as well. The materials on record also reveal that on considering all those aspects, the State respondents were pleased to post him at Likabali. While he was so posted at Likabali, he was shifted out there from and was posted as Superintendent (T & E) Namsai. 26. It has been found from the record that the city of Dibrugarh is easily assessable from both Namsai and Likabali. Perhaps having regard to the domestic and medical problems of the petitioner, he was posted at Likabali/Namsai. When one found materials on record to conclude that the petitioner was posted at the places aforesaid, there cannot be any ground for his immediate transfer there from unless there is compelling reason to do so. 27. But then, there are indisputable materials on record to show that even before completion of tenure posting at Likabali, the petitioner was transferred out from Likabali and was posted at Namsai. Worse still, he was again transferred out of Namsai and was posted at Tezu when he hardly completed 4(four) months in Namsai. Though the respondents claim that the petitioner was transferred out of Namsai in exigency of service and in the interest of petitioner, such contention remains almost unsubstantiated. 28. Worse still, he was again transferred out of Namsai and was posted at Tezu when he hardly completed 4(four) months in Namsai. Though the respondents claim that the petitioner was transferred out of Namsai in exigency of service and in the interest of petitioner, such contention remains almost unsubstantiated. 28. It is worth noting here that though the learned counsel for the respondents submitted that Tezu is a town with all medical infrastructure, same being one of the oldest town in the State of Arunachal Pradesh, the learned counsel for the petitioner submitted that such a place is far away from Dibrugarh where all modern medical gadgets are available. Such a place is far away from Anjaw, a place which comes on the way to Tezu. These only show that in the name of transferring the petitioner, a patient of backbone disease, to so called good place of posting, he was subjected to enormous hardship and trouble. 29. Coming to the allegation that the petitioner was subjected to frequent transfers which, according to the learned counsel for the petitioner, is also a testimony of transfer order in question being malafide in nature. In support of such claim, the learned counsel for the petitioner relies on the decision, rendered by apex Court in the case of Shri Bimal Kumar Deb Medhi v. State of Assam & Ors., reported in (1995)(1) GLT 435. The relevant part is reproduced below: "Para 7. "Frequent transfers, without sufficient reasons to justify such transfers, cannot but be held as malafide. A transfer is malafide when it is made not for processed purpose, such as in normal course or in public or administrative interest or in exigencies of service but for other purpose, that is to accommodate another person for " 30. On the perusal of the record, I have found that there was no dispute over the feet that petitioner has been transferred number of times since 2013. I have also found that on almost all those occasions, the petitioner had to rush to this court seeking quashment of such orders alleging one or the other infirmity therein. Records also reveal that on most of the times, this court on being so approached had interfered with those transfer orders on concluding that transfer orders which were under challenge were rendered not in accordance with service jurisprudence. 31. Records also reveal that on most of the times, this court on being so approached had interfered with those transfer orders on concluding that transfer orders which were under challenge were rendered not in accordance with service jurisprudence. 31. In most of the orders, passed by this court, order dated 24.09.13 passed in WP(C)No. 248 (AP) 2013 in particular, this court in no uncertain terms held that transfer order (s) were passed on consideration other than exigency of service and therefore concerned authority was directed to pass appropriate order without mortgaging their conscience to their political masters. 32. When one considers the transfer order in question in the light of order(s), passed in preceding months, he would invariably find that the transfer order was made not in exigency of service but it was accentuated by malafide consideration. In my opinion, the decision rendered in the case of Shri Bimal Kumar Deb Medhi (supra) unmistakably shows that such transfer is unsustainable in law. 33. I have already found that the petitioner was transferred to Likabali/Namsai on his health ground and also for his having some serious domestic problems. But then, he was transferred out of such places within the months of his giving posting in such places. The respondents contend that the petitioner was transferred out of such places few months after his posting in such places in his interest and also in exigency of services. Such an argument is too farfetched one. 34. This is because of the reason that there is absolutely nothing on record to show that the difficulties for which the petitioner was brought to Likabali and Namsai got disappeared by the time he was transferred out of such places. Rather all available records show that such difficulties continued with full vengeance when the petitioner was transferred out of such places. This is one more testimony of transfer order in question being made with malafide intention 35. Coming to the allegation that the petitioner was transferred by way of punishment, I have found that Some Members of Zilla Parisad and businessmen made complaint against the petitioner alleging that the petitioner had harassed the business community in the name of collection of taxes etc. Coming to the allegation that the petitioner was transferred by way of punishment, I have found that Some Members of Zilla Parisad and businessmen made complaint against the petitioner alleging that the petitioner had harassed the business community in the name of collection of taxes etc. But then, the there is commendation in the letter from the Chairman of APEDA which asserts that the collection of revenue during the tenure of the petitioner as Superintendent, (T& E) at BFC, Likabali was all time high and as such, he should be allowed to continue in such place for some more time. 36. There is nothing on record to show that such information in letter, aforementioned was not true which therefore clearly suggests that the petitioner was doing commendable job while he was posted as Superintendent, (T& E), at BFC, Likabali and he did so despite he being sandwiched between so many problems. These only serve to show that the State respondents should have allowed him to work from such place for some more time. 37. Unfortunately, the respondents did not do that. Instead, they were hell bent in replacing the petitioner with the respondent No. 3 against whom charge of dereliction of duty was made by an authority as important as the Election Commission of India. In my opinion, the allegation, made against the petitioner, in one way or the other made a tool to transfer out the petitioner from at least Namsai. When all these things are considered together, one would find that the transfer order in question was made on malafide consideration. 38. The learned Senior Govt. Advocate, Mr. R.H. Nabam strenuously contends that the petitioner was to be transferred out of Namsai since there is only two posts of Superintendent of Taxes in entire zone under consideration but none of such posts is at Namsai. This is far from the truth. If the petitioner had to be transferred out Namsai for want of post of Superintendent in such a place, then, on the transfer of the petitioner, the Department should not have/could not have posted any one in such a place. 39. But that was not the case. Quite contrary to it, on his transfer, the vacancy, so caused, was immediately filled up by the respondent No. 3. 39. But that was not the case. Quite contrary to it, on his transfer, the vacancy, so caused, was immediately filled up by the respondent No. 3. Such revelation not only shows that the emptiness of the argument, advanced from the side of the State, on this count but also shows that the transfer order under challenge was made on consideration other than the exigency of the service. 40. It has again been contended that the post of the Superintendent, Namsai is enormously overloaded post since the incumbent in such a post, apart from attending his regular duties, has also to attend two Check Posts, situated at poles apart in difficult terrain which would be nearly impossible for a an officer like the petitioner who is having so many domestic and health problems. 41. However, such contention too has no legs to stand on. I have found that despite his ill health and other domestic problems, the petitioner had rendered invaluable service to the department for which the department could collect all time high revenue during the tenure of petitioner in the pace aforementioned. Such conduct on the part of the petitioner was to have awarded. Instead he was transferred out of place aforesaid requiring him to run from pillar to post seeking cancellation of transfer order. 42. In view of what I have discussed herein before and what have emerged therefrom, I am constrained to hold that order under challenge is unsustainable on all the grounds agitated before this court, they being:-- "1) transfer order being made on malafide consideration, 2) transfer order being made as a punitive nature, 3) transfer order was made not in interest of in the exigency of service and as such, same is liable to be dismissed." 43. Consequently, the transfer order dated 24.06.14 stands quashed and set aside. 44. No costs. 45. The relevant filed which was produced before this court to appreciate the dispute in question be returned forthwith. Before I part with the record, I have made it clear that the respondent authorities would always be at liberty to transfer the petitioner from his present place of posting but strictly in accordance with, the established requirement of law.