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2018 DIGILAW 1335 (GAU)

Najeerul Haque v. State of Assam

2018-09-10

M.R.PATHAK

body2018
ORDER : M.R. PATHAK, J. 1. Heard Mr. U.K. Nair, learned Senior counsel, assisted by Mr. M. Khan, learned counsel for the petitioner and Mr. A. Deka, learned Standing counsel, Education Department for respondent Nos. 1, 2 and 4. Also heard Ms. D. Das Barman, learned Government Advocate, Assam for the respondent No. 3 and Mr. R. Dubey, learned counsel for the respondent Nos. 5. 2. Challenge in this writ petition is to the impugned order of transfer passed by the Commissioner and Secretary to the Government of Assam in the Secondary Education Department under No. ASE.274/2015/156 dated 28.11.2017, by which the petitioner, Superintendent of Asimia Senior Madrassa, District Karimganj has been transferred from the said Madrassa and posted him, against the existing vacancy at Asatul Idgah Senior Madrassa of Karimganj District and also the consequential order passed by the Director of Secondary Education, Assam under No. DSE/GA/ASM/2349/2017/165 dated 05.12.2017. 3. The contention of the petitioner that officials of the district administration, not related to the Education Department, made some inquiry on some private complaints, submitted its report before the Deputy Commissioner, Karimganj, who in turn forwarded the same to the Commissioner and Secretary to the Government of Assam in the Secondary Education Department and thereafter, the said Commissioner of the Department passed the impugned transfer order of the petitioner, which is purely punitive in nature and therefore, needs to be set aside and quashed. 4. In this regard Mr. Nair from the impugned order dated 28.11.2017, (Annexure-8 to the petition) brought to the notice of the Court that the Deputy Commissioner, Karimganj, vide No. KDV(G) 291/SSA/2015/Pt/169 dated 06.11.2017 submitted an adverse finding against the petitioner before the Commissioner and Secretary to the Government of Assam in the Secondary Education Department and after going through the same, the impugned order was passed by the concerned Commissioner and as such, the impugned transfer order is punitive in nature. 5. The petitioner also submitted that as few teachers of Asimia Senior Madrassa remained absent in unauthorised manner and in spite of bringing it to the notice of the higher-ups, no action was initiated against those erring teachers, the petitioner submitted salary bills of the working employees of the said Madrassa for the month of October 2017 excluding the teachers who remained absent unauthorisedly. But at the instance of those absentee teachers the Treasury Officer of Karimganj did not clear the salary bill. But at the instance of those absentee teachers the Treasury Officer of Karimganj did not clear the salary bill. Having no alternative the petitioner preferred WP(C) No. 7634/2017 praying for a direction to release the salary and during pendency of the said proceeding he could come to know about the impugned transfer order. 6. According to the petitioner the impugned transfer order is not on public interest and exigencies of service but issued with malafide intention. 7. Mr. Nair, learned Senior Counsel in support of his argument placed reliance on the decisions reported in AIR 1999 SC 1399 : (2009) 2 SCC 592 [Somesh Tiwari Vs. Union of India] and submitted that the judgments relied by the respondents have no application in the present case. 8. Mr. Deka, learned Standing counsel, Education Department for the State respondents submitted that the respondents in their affidavits have already clarified the matter. Mr. Deka submitted that the Deputy Commissioner Karimganj submitted his report on the materials available on record that the petitioner, Superintendent of Asimia Senior Madrassa, polluted the educational atmosphere in the said Madrassa due to his involvement in about six criminal cases registered against him and out of that in two cases he is already charge sheeted and apart from that there are complaints and allegations against him about misappropriation and misutilisation of Government fund. 9. Mr. Deka also placed before the Court that the petitioner being the Superintendent of the Madrassa requisitioned for an amount of Rs. 1,35,000/- for construction of girls' common room, which was sanctioned, though the said Madrassa is boys' Madrassa only. He also stated that the petitioner failed to submit plan and utilisation certificate of Government fund of Rs. 9,74,000/- that received from the Director of Madrassa Education, Assam and that the petitioner failed to place anything before the Court in that regard inspite of the order of the Court. 10. Mr. Deka, however, stated that the Executive Magistrate cum Circle Officer, Karimganj on behalf of the district administration made an enquiry, but submitted that the enquiry report dated 21.10.2017 was forwarded by the Deputy Commissioner, Karimganj to the Commissioner of Secondary Education pointing out the irregularities and misappropriation of Government fund committed by the petitioner. 11. Mr. Deka submitted that the impugned transfer order of the petitioner was made in the interest of public service purely on administrative ground and academic interest. 11. Mr. Deka submitted that the impugned transfer order of the petitioner was made in the interest of public service purely on administrative ground and academic interest. He also stated that transfer being an incident of service, the same cannot be treated to be punitive if the Government employee is transferred out from one place of posting to another, due to his mismanagement and unbecoming behaviour. 12. In support of his argument Mr. Deka, learned Standing Counsel relied on the Judgments of the Hon'ble Supreme Court reported in (2005) 3 GLR [P.R. Sumiyon Vijayraj Vs. Union of India] and (2011) 12 SCC 137 [Registrar General High Court of Judicature of Madrassa Vs. R. Perachi. & Ors.]. 13. Submissions of the learned Counsels for the parties as well as the decisions cited by them are considered. 14. Hon'ble Apex Court in catena of cases have settled that Transfer is an incidence of service and it does not require the consent of the employee. An employee can be transferred on administrative exigencies and in public interest. It is not obligatory on the part of the employer to comply with the principles of natural justice before making an order of transfer. 15. The Hon'ble Supreme Court in the case of N.C. Singhal (Dr.) Vs. Union of India, reported in (1980) 3 SCC 29 had observed that There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The transfer in posts, which are in the same grade or cadre or considered equivalent can be affected on administrative exigencies. 16. With regard to transfer order, in the case of Union of India Vs. Janardhan Debanath, reported in (2004) 4 SCC 245 , the Hon'ble Supreme Court had laid down as follows: "The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially - and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. 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 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 for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct." 17. In E.P. Royappa Vs. State of Tamil Nadu & Anr., reported in (1974) 4 SCC 3 , a Constitution Bench of the Supreme Court has held that the burden of establishing mala fides is very heavy on the person who alleges it. The Court has observed that allegations of mala fides are often more easily made than proved, and that the very seriousness of such allegations demands proof of a high order of credibility. In our view, the petitioner in this case has not discharged the burden of establishing mala fides. 18. In the State of U.P. & Ors. Vs. The Court has observed that allegations of mala fides are often more easily made than proved, and that the very seriousness of such allegations demands proof of a high order of credibility. In our view, the petitioner in this case has not discharged the burden of establishing mala fides. 18. In the State of U.P. & Ors. Vs. Gobardhan Lal, reported in (2004) 11 SCC 402 , the Hon'ble Supreme Court has held as follows:- "Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine of any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer." 19. From the perusal of the impugned order dated 28.11.2017 it can be seen that while passing the said order, the concerned authority considered the adverse finding against the petitioner submitted by the Deputy Commissioner Karimganj on 06.11.2017. At the same time the authority also considered about the adequate strength of teaching staff in Asimia Senior Madrassa, wherein the petitioner was the Superintendent and also considered the lack of teaching staff in Asatul Idgah Senior Madrassa. 20. As such, considering the lack of staff in the other Madrassa, to meet the administrative exigencies and to ensure smooth functioning of the administration, the authority concerned without any infringement of his career prospects like seniority, scale of pay and secured emoluments, in the interest of public service and academic interest, passed the impugned order transferring the petitioner from the said Madrassa and posted him against the existing vacancy in the other Madrassa. Therefore, the impugned transfer order cannot be said to be passed in lieu of punishment. 21. In the case in hand the petitioner could not establish any violation of statutory provisions or any mala fide on the part of the respondents in issuing the impugned order of transfer dated 28.11.2017 and the consequential order dated 05.12.2017. 22. In the above circumstances, this Court do not find any merit in the writ petition and the same is accordingly dismissed.