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2020 DIGILAW 617 (GAU)

Alahzer Ali v. State of Assam

2020-07-14

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. B. Chetri, learned counsel for the petitioner. Also heard Mr. D. Nath, learned additional senior government advocate for the respondent authorities. 2. The petitioner is a member of the Assam Civil Services (ACS) 1995 batch and he joined the service on 01.07.1995. In course of his service, the petitioner joined as Additional Deputy Commissioner, Sivsagar on 02.03.2018 and continued upto 25.02.2019 i.e. for a period of 11 (eleven) months. Prior to that, in between the petitioner was transferred to Jorhat where he served as Additional Deputy Commissioner, Jorhat from 18.03.2019 upto 03.09.2019. It is stated that the said transfer of the petitioner was made on the premises that the home district of the petitioner is Sivsagar and therefore, during the period of election, he was transferred out for a brief period. As per the Government notification dated 03.09.2019, the petitioner was promoted to the Senior Grade 1 of ACS and was transferred and was posted as a District Development Commissioner at Sivsagar, where he joined on 04.09.2019. By the order dated 19.02.2020, the petitioner was transferred in the interest of public service and was posted as the Joint Secretary to the Government of Assam in the Urban Development Department, a posting which is located in Guwahati. 3. Being aggrieved by the order of transfer of 19.02.2020, this writ petition is instituted. 4. In paragraph 6 of the writ petition, a stand has been taken that the son of the petitioner is studying in class-IX at Sophy Mercy Memorial School, Sivsagar and it being a crucial time in his educational career, a mid-term transfer would adversely him. In paragraph 7, the specific stand taken is that as per the office memorandum dated 19.09.1992, a transfer is to be made only upon completion of 3 (three) years of service at one place and if the public interest demands that a person can be transferred before completion of 3 (three) years at a given place, but proper justification and ground be recorded in writing for the transfer and the order of transfer can be issued 'only after approval of the Chief Minister'. In paragraph 8, reference is made to another office memorandum dated 22.05.2002 wherein the same provisions are provided. In paragraph 8, reference is made to another office memorandum dated 22.05.2002 wherein the same provisions are provided. Accordingly, in the writ petition, it is the case of the petitioner that he was transferred during the mid-term of the academic session of his son and secondly, the order of transfer was made without the approval of the Chief Minister. In paragraph 10, further stand has been taken that the case of the petitioner is of a frequent transfer, which again cannot be done without the approval of the Chief Minister. 5. When the matter was moved on 27.02.2020, an interim order was passed on the plea being raised by the petitioner that the transfer was given effect without the approval of the Chief Minister. Accordingly, the records of the transfer made against the petitioner were called for. 6. The relevant portions of the office memorandum dated 04.02.2002 which is annexed as Annexure-G to the writ petition are extracted below: "As per state government's standing O.M. No. AMP. 40/91/117 dated 19.9.92 the transferable officers and staff should normally be transferred only upon completion of 3 years of service at one place. But an officer need not necessarily be transferred when he completes 3 years in one station if the interest of public does not demand so. In the said O.M. it has also been stipulated that whenever public interest demand that an officer should be transferred from his place of posting even before completion of 3 years in the place, proper justification and ground may be recorded in writing for the transfer and orders issued only after getting approval of the Chief Minister for such a transfer." 7. Reliance had also made to the office memorandum dated 22.05.2002 and the relevant portion thereof are extracted below: "2. It is further notices that some Departments frequently change the transfer orders without any justification. This practice is to be stopped forthwith. Henceforth modification of any transfer order, once issued, would require the approval of Hon'ble Chief Minister, Assam and the modification must be made only on justifiable ground. 3. Henceforth, the concept of transfer season is introduced in consideration of some I inevitabilities. The months of December and January would constitute the transfer season. The Departments/Directorates would be competent to effect transfers and postings of Government officials having completed three years only during the transfer season. 3. Henceforth, the concept of transfer season is introduced in consideration of some I inevitabilities. The months of December and January would constitute the transfer season. The Departments/Directorates would be competent to effect transfers and postings of Government officials having completed three years only during the transfer season. Any transfer outside the transfer season would require the approval of Hon'ble Chief Minister, Assam. However, this shall not be applicable to officials being posted on promotion against vacant post as well as an official having completed three years being moved to fill up a vacancy caused due to death, retirement etc. or an officer being moved out on disciplinary grounds." 8. Based upon the aforesaid, it is the contention of the petitioner that the son of the petitioner is studying in class-IX and therefore, any transfer effected during his mid-term, would adversely affect him and the same would also be in violation of the provision of the office memorandum dated 22.05.2002. Further, by relying on office memorandum dated 04.02.2002, it is the contention that frequent transfer prior to completion of 3 (three) years is to be avoided and can be made only upon proper justification to be recorded and after the approval of the Chief Minister. The office memorandum of 22.05.2002 also provides that in the event of any transfer being effected in the mid-session of the children of the employees, the same would require the approval of the Chief Minister. 9. The respondent authorities had also filed an affidavit-in-opposition wherein in paragraph 9, a stand has been taken that the file in respect of the petitioner was processed on 18.02.2020, and on the said date, the Chief Minister of Assam had approved the transfer of the petitioner by the approval endorsement dated 18.02.2020. 10. Accordingly, the core stand taken by the petitioner that the transfer was effected without the approval of the Chief Minister is being countered. However, we also take note that in paragraph 6 of the affidavit-in-opposition of the State authorities, a stand has been taken that there is a confidential report dated 31.01.2020 submitted by the Deputy Commissioner, Sivsagar before the Chief Secretary, Assam in which it is stated that there is a strong allegation against the petitioner about misbehaving with the lady officers and staffs in the office, apart from some other allegations. 11. 11. The relevant portion of paragraph 6 of the affidavit-in-opposition are extracted below: "The first and most concern seeking problem is that he misbehaves with lady officers and staff. He allegedly forces ladies including officers to spend many hours in his office chamber with no specific official work and ventures into asking questions which make women feel uncomfortable. Lady officers and staff have raised these complaints with me and as a DC, especially as a lady DC myself, it becomes my duty to report these incidents to you Sir. Situation has gone so bad that I had to change the staff attached to him including the peon and place her with me. It would also be pertinent to mention that one of the lady staff had filed a written complaint regarding his misdemeanor to Shri. Pallav Jha IAS when he was DC, Sivsagar. But at that time Mr. Ali apparently got away with an apology. To this day the said lady leads a tough life in the office with everyone knowing what had happened with her and that the very same person on promotion to the post of DDC has rejoined in Sivsagar itself after spending 2 months in Jorhat during elections. Because of this incident, junior ACS officers and lady staff are hesitant to give a written complaint, but they have spoken to me personally and I have held a number of meetings with lady officers and staff alone and reassured that I shall definitely take care of them." 12. Based on the stand taken by the respondents in paragraph 6 of the affidavit-in-opposition, the petitioner raises the contention that the transfer order against the petitioner is punitive in nature and therefore, it could not have been made under the law. 13. In order to substantiate his contention, Mr. Based on the stand taken by the respondents in paragraph 6 of the affidavit-in-opposition, the petitioner raises the contention that the transfer order against the petitioner is punitive in nature and therefore, it could not have been made under the law. 13. In order to substantiate his contention, Mr. B. Chetri, learned counsel for the petitioner relies upon the judgment of the Supreme Court in Somesh Tiwari vs. Union of India reported in (2009) 2 SCC 592 , wherein in paragraph 16 it had been held that when an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal and paragraph 21 of same judgment wherein it is provided that where no vigilance enquiry was initiated against the litigant therein, the order of transfer was passed on material which was non-existent and therefore, there was a total non-application of mind on the part of authorities and it also suffered from malice in law. 14. By relying on the said proposition of the Supreme Court, Mr. B. Chetri, learned counsel submits that in the instant case also no enquiry has been made against the petitioner although there may be an allegation and secondly, the order of transfer was passed as a measure of punishment against the petitioner as because of the allegations made against him. On both the accounts, by following the proposition in Somesh Tiwari (supra), the order of transfer is not sustainable. 15. Reliance is also placed on the pronouncement of the Division Bench of this Court in Siva Prasad vs. State of Assam and others, reported in (1994) 1 GLJ 307, wherein in Paragraph 6 it had been held that if the order of transfer is based on extraneous considerations or for achieving an alien purpose or on an oblique motive, it would amount to mala fide and colorable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers can be regarded as mala fide. If a transfer is made to accommodate any person for undisclosed reasons, that also can be challenged as mala fide. In other words, administrative actions should be just and fair. 16. Frequent transfers, without sufficient reasons to justify such transfers can be regarded as mala fide. If a transfer is made to accommodate any person for undisclosed reasons, that also can be challenged as mala fide. In other words, administrative actions should be just and fair. 16. Reliance is also placed on paragraph 12 of Siva Prasad (Supra) wherein it is provided that non-disturbance for a period of three years at a place or table and non-disturbance during the middle of the academic session is the normal rule, but that again is subject to exigencies of administration and public interest. The broad guidelines laid down by the Government can of course be departed from in individual cases in public interest; but the departure made in the given case was not in public interest and was in the interest of an individual officer and without considering the interest of the other officer affected. 17. Reliance is also placed on the pronouncement of this Court in Tana Kaya Tara vs. State of Arunachal Pradesh and anr. reported in 2005 (3) GLT 76, wherein it was provided that the person involved in the said matter was prematurely transferred in view of the complaint against him. In the said matter in paragraph 8, a conclusion was arrived at that the order of transfer was in violation of guidelines and norms fixed by the Government itself. 18. Mr. D. Nath, learned additional senior government advocate by referring to the records, the relevant provision which have been annexed to the affidavit of the respondents, submits that there was a confidential report on the petitioner by the Deputy Commissioner, Sivsagar which provided that the petitioner misbehaves with the lady officers and staffs and he forces the ladies, including the officers, to spend many hours in his office chamber without there being any specific official work and ventures into asking questions which make women feel uncomfortable. The report stated that the lady officers and staffs have raised a complaint with the Deputy Commissioner and the Deputy Commissioner herself being a lady, it was a duty on her part to report these incidents. The report stated that the Deputy Commissioner was even required to change the lady peon attached to the petitioner. The report stated that the lady officers and staffs have raised a complaint with the Deputy Commissioner and the Deputy Commissioner herself being a lady, it was a duty on her part to report these incidents. The report stated that the Deputy Commissioner was even required to change the lady peon attached to the petitioner. It is stated that earlier also a lady staff had made a written complaint to the earlier incumbent Deputy Commissioner and at that time, the petitioner was allowed to go away with an apology. The report further stated that there is another problem with the petitioner that he has a nexus with the media and politicians of the district and since he had worked for many years in Sivsagar, he was too well acquainted with many politicians and media persons and taking advantage of the same, he created disturbances in the functioning of the district administration by passing on information from office to the outsiders. 19. The note-sheet contained in the file had also been produced wherein the report of the Deputy Commissioner was put up on record. The note of the Principal Secretary put up before the Chief Secretary dated 11.02.2020 by referring to the report against the petitioner gives a suggestion that the petitioner may be posted at a place outside the district concerned. The Chief Secretary approves the same and requires it to be placed before the Chief Minister. The Chief Minister made an endorsement dated 18.02.2020 that 'he may be transferred from there'. 20. The note of the Chief Minister on being placed before the Chief Secretary was accepted by him by his endorsement dated 19.02.2020 and as a consequence thereof, the order of transfer was issued. By referring to the office note in the record, it is the submission of Mr. D. Nath, learned additional senior government advocate for the respondents, that in the circumstance, the order of transfer against the petitioner was made in the administrative exigencies of the respondents rather than it being an order which is punitive in nature. 21. In the circumstance, the issue before the Court for an adjudication would be whether the facts and circumstances in which the order of transfer dated 19.02.2020 was passed is in the nature of a punishment being imposed on the petitioner or it was an order of transfer passed on administrative exigencies and requirement of respondents. 22. 21. In the circumstance, the issue before the Court for an adjudication would be whether the facts and circumstances in which the order of transfer dated 19.02.2020 was passed is in the nature of a punishment being imposed on the petitioner or it was an order of transfer passed on administrative exigencies and requirement of respondents. 22. Reliance has been place on the pronouncement of the Supreme Court in State of U.P. & Anr. vs. Siya Ram & Anr. reported in (2004) 7 SCC 405 wherein an order of transfer was interfered by the Division Bench of Allahabad High Court on the ground that the order of transfer was as a measure of punishment. An enquiry in departmental proceeding was initiated and without affording the person concerned an opportunity of being heard, the transfer was done as a measure of punishment. In the said matter, the State took the stand that the transfer order made on administrative ground. The High Court had interfered with the order of transfer by holding that it was punitive in nature and had been passed without awaiting the decision in the disciplinary proceeding. In the circumstance, the Supreme Court in paragraph 5 thereof had held as under: "5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned." 23. From the aforesaid pronouncement of the Supreme Court, it is discernable that unless order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decisions as against such orders passed in the interest of administrative exigencies of the service concerned. 24. In Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey & Anr. reported in : (2004) 12 SCC 299 , the order of transfer was on the ground of alleged mala fide and that it was a punitive transfer issued in colourable exercise of power. The Supreme Court in paragraph 4 had arrived at its conclusion that the transfer is an incidence of service which is not to be interfered with by courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer. In the said paragraph, the earlier pronouncement of the Union of India vs. Janardhan. Debnath reported in 1995 Supp (4) SCC 169 was also extracted where it was provided that unless the order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with. 25. In the conspectus of the aforesaid propositions of law, we are required to examine whether the order of transfer made against the petitioner is a colourable exercise of power or it was issued in the administrative exigencies. From a reading of the pronouncements by the Supreme Court, it is discernable that in a broader perspective an order of transfer may contain an element of it being a punitive order, but every such order of transfer which may contain an element of being punitive does not warrant an interference of the Court. A punitive transfer which warrants an interference of a Court would also have to be a punitive transfer in a colourable exercise of power or be a mala fide exercise of power. 26. A punitive transfer which warrants an interference of a Court would also have to be a punitive transfer in a colourable exercise of power or be a mala fide exercise of power. 26. When we look into the circumstances of the present matter under which the order of transfer was issued against the petitioner, the admitted facts would be that there was a report against the petitioner by the concerned Deputy Commissioner that the conduct of the petitioner was such that the lady officers and staffs in the office where he was serving in Sivsagar were uncomfortable with him and further it is not that it was a case of one allegation being raised by a particular lady officer or staff, but the report indicates that it was the common allegation of many of the lady officers and staffs of the office. Not only so, on an earlier occasion also, a similar complaint was there against the petitioner and the earlier incumbent Deputy Commissioner had dealt the matter in a lenient manner by requiring the petitioner to apologise for such incident. 27. As regards the other contents of the confidential report that the petitioner has a nexus with the media and political persons of the locality, we are of the view that for the purpose of adjudication in this matter, it would be for the respondents to address to such allegation as per law. But as regards the allegation of persistent misbehavior with the lady officers and staffs, where repeated complaints are made and the lady officers and staffs are uncomfortable in attending their duties with the petitioner, to the extent that the lady peon attached to the petitioner had to be withdrawn, we are of the view that there is an element of administrative exigency in transferring the petitioner out from his present posting at Sivsagar. It is another matter whether the allegations are true or false, on which, a conclusion can be arrived at only after a due enquiry is made, but the uncomfortable-ness of the lady officers and staffs which have been expressly made by them cannot be overlooked and be held to be irrelevant for the purpose of arriving at any conclusion whether there was any administrative exigency or not. We also take note of that the petitioner is an ACS Officer and by the order of transfer, he is posted as a Joint Secretary, which is again a responsible post. From the said points of view, it cannot be said that any service condition of the petitioner had been adversely affected by the order of transfer. 28. In the absence of any question of their being a mala fide act on the part of the respondents or that the respondents have acted against any statutory rules or that they have taken into consideration any irrelevant material, we are of the view that the order of transfer against the petitioner cannot be said to be an order which would be punitive simpliciter nor it can be said to be a colourable exercise of power. On the other hand, the stand of the respondents that there was an administrative exigency, cannot be wholly discarded nor it would be appropriate for the Court to substitute its own view over and above the view of the respondent authorities. More particularly, we also take note that the decision was taken at the highest level of the Government and in the absence of it being arbitrary or mala fide or against the statutory rules, we do not find that it would be a fit case for the Court to exercise its jurisdiction under Article 226 of the Constitution of India. We take note that in paragraphs 4 and 7 of the affidavit-in-reply, the petitioner takes the stand that the allegation in the confidential report is false and therefore, it should not be taken into consideration. We are not expressing any view on the correctness of the contention of the report against the petitioner but what we are concerned is that some of the lady officials and employees of the office had expressed their apprehension and therefore, in order to maintain a proper administrative atmosphere in the office, the decision to transfer the petitioner was taken in the administrative exigencies 29. Accordingly, we do not find any merit in the writ petition and the writ petition stands dismissed. Interim order passed earlier stands vacated.