Judgment · High Court · 2009

THE HON’BLE MR. JUSTICE RANJAN GOGOI Heard Sri K. Paul, learned counsel for the petitioner, Sri BJ Ghosh, lea rned Government Advocate, Assam, appearing for the Respondent No.1, Sri S.Samari a, learned Standing Counsel, Agriculture Department, appearing for the Responden t Nos.3 and 4 and Sri AC Sarma, learned counsel for the Respondent No.5.

#2. As agreed to by the learned counsels for the contesting parties, argumen ts on merit were heard yesterday (16.02.2009). Accordingly, judgment is being pr onounced today.

#3. The challenge in the writ petition is against an order dated 16.12.2008 (Annexure-A) by which the Respondent No.5, on promotion, had been posted as the Administrative Officer in the Directorate of Agriculture in place of the writ pe titioner, who had been transferred to the post of Administrative Officer in the Directorate of Sericulture, Government of Assam.

#4. n below: The brief facts that will be required to be noticed may be set out herei The Assam Directorate Establishment (Ministerial) Service Rules, 1973 contemplat e promotion to the post of Administrative Officer from the grade of Registrar or Superintendent. Under Rule 6 of the aforesaid Rules, such promotion is required to be made by selection from eligible Registrars or Superintendents having not less than 5(five) years of service. The said Rule also contemplates a Selection Committee to undertake the selection of the eligible candidates, whereafter a se lect list is to be published for appointment by promotion to the post of Adminis trative Officer. Five (5) posts of Administrative Officer in different establish ments were lying vacant at the relevant point of time. On the basis of a selecti on held, three officers including the Respondent No.5 were found to be eligible for promotion. While the two other two officers were posted against available va cancies, the Respondent No.5 was posted in the Directorate of Agriculture in whi ch Directorate the petitioner was already working as the Administrative Officer. The petitioner, in turn, as already noticed, was transferred to the Directorate of Sericulture by order dated 16.12.2008. Aggrieved by the aforesaid action of the Respondents, this Writ Petition has been filed.

#5. Sri K. Paul, learned counsel for the petitioner has contended that the p ost of Administrative Officer in the Directorate of Agriculture not being vacant and not being the subject matter of the selection undertaken, the Respondent No.5, who was a newly selected and promoted candidate, could not have been promo ted against the said post. That apart, according to the learned counsel, there i s no element of public interest involved in the posting of the Respondent No.5 i n the Directorate of Agriculture and that the same has been made only to accommo date the said Respondent. It is the further contention of the learned counsel fo r the petitioner that the Respondent No.5 has already had a long span of service in the Directorate of Agriculture as the Registrar and, therefore, his retentio n in the same Directorate, though in a different capacity, is not justified. Add itionally, the learned counsel for the petitioner submits that the petitioner is due to retire in the month of September, 2009 and, therefore, his transfer from the Directorate of Agriculture, at this stage, is not called for. While affidavits have been filed on behalf of each of the Respondents, 6. the affidavit filed on behalf of the Respondent No.2 by the Deputy Secretary to the Government of Assam, Secretariat (Esstt) Department would be relevant and, t herefore, would require to be noticed. In the said affidavit , it has been state d that there are 10(ten) posts of Administrative Officer in different Directorat es and Establishments out of which 5(five) posts were vacant. A selection was he ld to fill up the vacant posts on the basis of which three persons had been reco mmended for appointment by promotion to the post of Administrative Officer. In t he affidavit filed by the Respondent No.5 it has been stated that the post of Ad ministrative Officer is a transferable post and an incumbent in such post has a normal tenure of three years. It has been further stated that the petitioner has already completed over 4‰ years of service in the Directorate of Agriculture an d his transfer from the said Directorate was due. The Respondent No.2, in the a ffidavit filed, has also stated that there is no bar for a newly selected/appoin ted candidate to be posted against any one of the posts of Administrative Office r and it would not be correct to contend that such an incumbent has necessarily to be posted against one of the posts which was vacant and for which selection h ad been held.

#7. The records in original showing the decision making process have also be en placed before the Court by Sri BJ Ghosh, learned Government Advocate. The sa id records have been duly perused by the Court. Such perusal has revealed that the Respondent No.5 has been posted in the Directorate of Agriculture and the p etitioner has been transferred from the said Directorate on the ground that the petitioner had completed more than 4‰ years of service in the Directorate of Agr iculture. The power of the Writ Court to interfere with an order of posting and t 8. ransfer is a severely circumscribed power. Time and again, it has been emphasize d that interference of the Court will be justified only if the transfer and cons equential posting has been made for reasons not bonafide and also in a situatio n where such transfer and posting is contrary to the laid down norms or the Rule s in force. The Court in the exercise of its jurisdiction under Article 226 woul d refrain from going into an examination of the necessity for the impugned tran sfer or the justification therefor.

#9. In the present case no plea of malafide has been advanced by the petitio ner. The stand taken by the Respondent in the affidavit filed which has not been controverted and which stand is duly supported by the records clearly indicates that an officer selected for promotion t as Administrative Officer need not nec essarily fill up one of the vacant posts for which the selection was made. Such an officer can be posted against a post which is already held by an incumbent a nd such an incumbent can be transferred out, if such a transfer is otherwise du e and justified. This is what has precisely happened in the present case. That a part, the records indicate that the sole reason for the transfer of the petition er from the Directorate of Agriculture and the consequential posting of the Resp ondent No.5 in place of the petitioner is on account of the fact that the petiti oner had completed over 4‰ years of service in the Directorate of Agriculture. I f that be the reason for the posting and transfer of the two incumbents and if t here is no bar for the posting of the Respondent No.5 in the post of Administrat ive Officer earlier held by the writ petitioner, the Court must understand that the process of judicial scrutiny should come to an end.

#10. The arguments offered by the learned counsel for the petitioner that the petitioner has a few months of service left has been sought to be matched by th e learned counsel for the Respondent No.5 who has argued that the said Responden t is also due to retire in the month of August, 2009, i.e., earlier than the pet itioner. The Court is singularly ill equipped to deal with any of the said conte ntions raised in as much as the same relates to necessity of the transfer whic h cannot be the subject matter of a judicial determination.

#11. For the aforesaid reasons, I do not consider the present to be a fit cas e for grant of the reliefs prayed for in the writ petition. The Writ Petition, therefore, has to fail. It is accordingly dismissed. However, in the facts and c ircumstances of the case, I make no order as to cost.