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2016 DIGILAW 897 (GAU)

Abdur Rahim SK. v. State of Assam

2016-09-28

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT AND ORDER Michael Zothankhuma, J. Heard counsel for the petitioner and Assam. 2. The petitioner has prayed for setting aside the transfer order dated 24-08-2016, on the basis of which the petitioner has been transferred from the post of Deputy Commissioner, South Salmara-Mankachar to the post of Joint Secretary to the Government of Assam, at Dispur. The petitioner's counsel submits that the petitioner had earlier been posted as Additional Deputy Commissioner, Cachar with effect from 07-09-2013 till 30-12-2015 and transferred as CEO, Hailakandi Zilla Parishad, Cachar, in December, 2015. One month later, the petitioner was transferred to the post of Deputy Commissioner, South Salmara-Mankachar vide order dated 08-02-2016. 3. The petitioner's counsel submits that though the petitioner had not even been in the post of Deputy Commissioner, South Salmara-Mankachar, even for seven months, the respondents have transferred him on completion of six months of his three years tenure. The petitioner's counsel submits that the respondents should give reasons for his transfer and that this Court can interfere with the transfer order issued, as the same has not been issued in public interest or due to administrative exigency. 4. The petitioner's counsel submits that the petitioner is retiring in August, 2017 and accordingly some consideration should have been given to the petitioner to allow him to retire from a place near his home town. 5. Mr. C. Choudhury, Advocate General, on the other hand, submits that the petitioner has been transferred due to administrative exigency and in public interest. He also submits that the petitioner's representation with regard to his request for cancellation of the impugned order of transfer dated 24-08-2016 has been considered and rejected by the State respondents on 12-09-2016, on the ground that the transfer was made for administrative exigency. The Advocate General, thus, prays that the writ petition should be dismissed as the petitioner has got no vested right to be posted in a particular place of his choice. 6. I have heard the learned counsels for the parties. 7. I have also perused the official records on the basis of which the petitioner has been transferred and also the records wherein the petitioner's representation for cancellation of the impugned transfer order has been rejected. 6. I have heard the learned counsels for the parties. 7. I have also perused the official records on the basis of which the petitioner has been transferred and also the records wherein the petitioner's representation for cancellation of the impugned transfer order has been rejected. On perusal of the official records, I have noticed that the Chief Minister has given his approval to the transfer of the petitioner, as the said transfer was made within two years of him being posted to South Salmara-Mankachar. The only question put forth by the petitioner and which is to be decided is with regard to the fact, whether the respondents have given any reason/justification for the transfer. 8. It is settled law that transfer is an incident of service and that a challenge can be made to a transfer order if the same has not been issued in public interest or for administrative exigencies, as held by the Division Bench of this Court in Pramath Ch. Sarma v. State of Assam and Ors., reported in 2007 (1) GLT 212. 9. In the case of Sital Prasad Saxena (Dead) By Lrs v. Union of India and Ors., reported in (2006) 9 SCC 583 , the Apex court has held that a Government servant cannot disobey a transfer order by not reporting at the place of posting and then can go to a Court to ventilate his grievance. It has been held by the Apex Court in Sital Prasad Saxena (supra) that the duty of the officer is to first report for work where he has been transferred and then make a representation with regard to his personal problems. The Apex has also held that tendency of not reporting at the place of work and indulging in litigation has to be curbed. In the present case, the transfer order has been challenged not due to some personal difficulty of the petitioner but only on the ground that the petitioner should have been transferred on the basis of some reason or justification. The petitioner has no where stated that any hardship has been caused to him due to the transfer order. 10. In the case of Ashim Kr. Baruah v. Tanushyam Borgohain & ors., reported in 1998 (3) GLT 183, the Division Bench of this Court has held that hardship/inconvenience cannot be a ground to challenge the order of transfer. 11. The petitioner has no where stated that any hardship has been caused to him due to the transfer order. 10. In the case of Ashim Kr. Baruah v. Tanushyam Borgohain & ors., reported in 1998 (3) GLT 183, the Division Bench of this Court has held that hardship/inconvenience cannot be a ground to challenge the order of transfer. 11. The office memorandum dated 06-08-2013, issued by the State Government with regard to the policy of transfer of officials and staff is reproduce below : "Office Memorandum Sub: Policy of transfer of officials. The State Government have issued circulars from time to time outlining the policies of transfer and posting of Government officials. These circulars, inter alia, stipulates that transferable officers and staff should normally be transferred only upon completion of 3 (three) years of service in a particular place of posting. Whenever public interest demands that an officer should be transferred from his place of posting before 3 years, proper justification and grounds may be recorded in writing for the transfer and order issued only after getting approval of the Chief Minister. The Government have re-examined the stipulation of obtaining prior approval of the Chief Minister while effecting the transfer and posting of Govt. officers before completion of their normal tenure of three years in one place. After careful consideration, it has been decided that henceforth approval of the Chief Minister is required to be obtained only for the transfer of any officer who has not completed 2 (two) years in a particular place of posting instead of 3 (three) years. However, the normal tenure of posting of an officer in a place of posting for 3 (three) years will remain the same. This modifies the corresponding provision of this department's OM No. ABP.40/91/117 dated 19.09.92, ABP.116/01/4 dated 04-02-02 and ABP 116/2001/29 dated 12.11.2009. This may be brought to the notice of all concerned." 12. On perusal of the OM dated 06-08-2013, the same shows that proper justification and grounds have to be recorded in writing before a transfer order is issued prior to completion of two years of passing in a particular place. 13. In the present case, there is no nothing recorded in the official records, as to the reason for issuing the transfer order to the petitioner prior to completion of two years of his posting as Deputy Commissioner, South Salmara-Mankachar. 13. In the present case, there is no nothing recorded in the official records, as to the reason for issuing the transfer order to the petitioner prior to completion of two years of his posting as Deputy Commissioner, South Salmara-Mankachar. However, the Chief Minister has given his approval for the said transfer without there being any justification and grounds for the transfer. 14. In the case of Union of India and Ors. v. S.L. Abbas, reported in 1993 SCC (4) 357, the Apex Court has held that the guidelines for transfer are not legally enforceable. If that be the case, the question of enforceability of the OM dated 06-08-2013 cannot arise. 15. The other official record, by which the petitioner's representation for cancellation of the transfer order has been rejected, shows that the transfer was made due to administrative exigency. This reasoning given by the respondents, while rejecting the petitioner's representation, does not find mention in the transfer records, prior to the issuance of the transfer order. 16. In the case of Union of India v. Janardhan Debnath, reported in (2004) 4 SCC 245 , the Apex Court has held that unless transfers involves any adverse impact or visits the person concerned with penal consequences, they are not to be subjected to the same type of scrutiny as in the case of dismissal, termination etc. 17. In the case of T.S.R. Subramanian and others v. Union of India and others, reported in (2013) 15 SCC 732, the Apex Court has held that the civil servants are not having stability of tenure, particularly in State Governments, where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. 18. Paragraphs-35 & 36 of T.S.R. Subramanian (supra) are extracted below : "35. We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritize various social and economic measures intended to implement for the poor and marginalized sections of the society. 36. We, therefore, direct the Union State Governments and Union Territories to issue appropriate directions to secure providing of minimum tenure of service to various civil servants, within a period of three months." 19. The formulation of policy for a transfer by the State Government has been made by way of the OM dated 06-08-2013. A perusal of the same shows that whenever an officer has to be transferred before completion of two years in a particular place of posting, proper justification and grounds have to be recorded in writing. In the present case, no justification has been made for the transfer. 20. The Apex Court in the case of Tushar D. Bhatt v. State of Gujarat and another, reported in (2009) 11 SCC 678 has held that the Court should not interfere in the transfer of an employee, particularly, when there is no mala fide exercise of power. 21. In the case of Pramath Ch. Sarma v. State of Assam and others, reported in 2007 (1) GLT 212, the Division Bench of this Court has held that transfer can be interfered by the Court if the same is not issued in public interest or administrative exigencies. 22. In this particular case, the petitioner had been transferred three times during the last 1½ years. Prior to the petitioner's latest transfer order dated 24-08-2016, the petitioner had been transferred on 08-02-2016. The frequent dislocation of an officer is deleterious to good governance as held by the Apex Court in T.S.R. Subramanian (supra). The State respondents having made a policy/guideline for transfer, it is expected that the Government should have made an attempt to abide by the transfer policy made by them. The frequent dislocation of an officer is deleterious to good governance as held by the Apex Court in T.S.R. Subramanian (supra). The State respondents having made a policy/guideline for transfer, it is expected that the Government should have made an attempt to abide by the transfer policy made by them. In the present case, the records on the basis of which the impugned transfer order has been made, does not give any reason or justification for the petitioner's transfer. However, the rejection of the petitioner's representation against the impugned transfer order has stated that the petitioner has been transferred on account of public interest. 23. The Apex court in the case of N.K. Singh v. Union of India, reported in (1994) 6 SCC 98 , has held that the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited, being confined only to the grounds of mala fides and violation of any statutory provision. 24. The Apex court in the case of Shilpi Bose (Mrs.) and others v. State of Bihar and others, reported in 1991 Supp (2) SCC 659, has held that a transfer order, which is made in public interest and for administrative reasons, should not be interfered by the Courts unless the same is made in violation of any mandatory statutory rule or on the ground of mala fide. 25. In the case Shilpi Bose (supra), the Apex Court has also held that transfer orders issued by the competent authority do not violate any of his legal rights and even if a transfer order is in violation of executive instruction or orders, the Courts ordinarily should not interfere with the order. 26. A perusal of the decisions of the Apex Court makes it clear that the power of the Court to interfere in a transfer order is very limited. Another thread that runs through the various judicial pronouncements is that the transfer should have been made in public interest and in administrative exigencies. 27. In view of the above, it is clear that the Court will have to decide the cases of transfer on the facts of each case and on a case to case basis, within the limited scope given to the Court for interference. 27. In view of the above, it is clear that the Court will have to decide the cases of transfer on the facts of each case and on a case to case basis, within the limited scope given to the Court for interference. In the present case, the order dated 12-09-2016, issued by the respondents, rejecting the petitioner's representation dated 26-08-2016 for reconsidering the impugned transfer order states that the transfer has been made in the interest of public service, without elaborating the words "interest of public service", insofar as it pertains to the petitioner. The records produced no where gives the reason for the petitioner's transfer. 28. A perusal of the impugned transfer order dated 24-08-2016 shows that no less than 17 IAS officers and 10 Assam Civil Service Officers have been transferred. The large scale transfer done by the respondent by way of the impugned transfer order, implies that the same has been done by way of public interest and for administrative exigencies. However, as stated earlier, no reasons have been recorded in the official records as to why the transfer of the petitioner has taken place. The petitioner was transferred in December 2015 and posted as Chief Executive Officer, Hailakandi Zilla Parishad. Thereafter, vide order dated 08.02.2016, the petitioner was transferred and posted as Deputy Commissioner, South Salmara, Mankachar. Six months later, the impugned transfer order dated 24.08.2016 has been issued, transferring the petitioner and posting him as Joint Secretary to the Government of Assam, Planning and Development Department. 29. The transfer policy as given in the OM dated 02.08.2013 is not legally enforceable. However, the State respondents have a duty to abide with the conditions laid down in the OM dated 02.08.2013 as far as possible. Otherwise, frequent transfers dislocate the employees, which could be detrimental to the efficient functioning of the employees. 30. The Apex Court in the case of Oryx Fisheries Private Limited v. Union of India & Ors., reported in (2010) 13 SCC 427 has held that administrative authorities, when making a decision must be informed of reasons. The Apex Court in the case of Style (Dress Land) v. Union Territory Chandigarh, reported in (1999) 7 SCC 89 has held that State action, which is not informed by reasons cannot be protected as it would be easy for the citizens to questions such an action as being arbitrary. 31. The Apex Court in the case of Style (Dress Land) v. Union Territory Chandigarh, reported in (1999) 7 SCC 89 has held that State action, which is not informed by reasons cannot be protected as it would be easy for the citizens to questions such an action as being arbitrary. 31. In the present case, the absence of reasons for the transfer of the petitioner before completing his normal tenure of posting of 3 (three) years does not seem to be reasonable. However, the reason given by the respondents for the transfer in reply to the petitioner's representation is that the petitioner has been transferred in the interest of public. Thus a semblance of a reason has been given by the State authorities for transferring the petitioner. Also, the large scale transfer order does not give an indication that the petitioner has been singled out for transfer. As held by the decision of the Apex Court and this Court that transfer should not be interfered with unless there is malafides or if it is in violation of the statutory provisions, this Court is also not inclined to interfere with the transfer order, as no malafides is alleged against the State respondents. Furthermore, the transfer of the petitioner is neither penal in nature nor does it visit the petitioner with any adverse consequences to his career prospects. 32. In view of the law laid down by the Apex Court and this Court, this Court is not inclined to exercise its discretion in issuing any writ and accordingly, the writ petition is dismissed.