High Court · 2012

The State of Assam seeks judicial intervention under Article 226 of the Constitu tion of India, being aggrieved by the judgment and order dated 12.04.2012 render ed by the Central Administrative Tribunal, Guwahati Bench, Guwahati (hereinafter for short referred to as the Tribunal) in Original Application No.108/2012. By the impugned decision, the order dated 05.04.2012 of the Principal Secretary to the Govt. of Assam, Personnel (A) Department transferring the Respondent No.1 fr om the post of Deputy Commissioner, Lakhimpur to that of Joint Secretary to the Govt. of Assam, Environment and Forest Department has been annulled.

02. We have heard Mr. R. Dubey, learned counsel for the petitioner a nd Mr. U.K. Nair, learned counsel for the Respondent No.1. We have heard as wel l Mr. K. Paul, learned Central Govt. Standing Counsel representing the Union of India, i.e. Respondent No.2. For the order proposed to be passed, formal notice on the profor

03. ma Respondent No.3 is not warranted. The fascicle of pleaded facts reveals that the Respondent No.1 on being transfer red from the post of Joint Secretary to the Govt. of Assam, Animal Husbandry and Veterinary Department to the post of Deputy Commissioner, Lakhimpur vide order No.AAI.31/2006/Pt.I/80-C dated 27.01.2011 had joined at Lakhimpur on 16.02.2011 and had been discharging his duties thereat. According to the Respondent No.1, in the capacity of the Deputy Commissioner, Lakhimpur he has commendably perform ed his role in various aspects to the satisfaction of all concerned. After bein g transferred to Lakhimpur he got his two minor school going children admitted i n Saint Mary’s School, Lakhimpur, where they are presently studying in Class-IV and VIII and are lodged in their mid academic session. Having been served with the impugned notification dated 05.04.2012 transferring him to the post of Joint Secretary to the Govt. of Assam, Environment and Forest Department, Dispur, he submitted a representation on 06.04.2012 before the Chief Secretary, Govt. of As sam seeking stay of his proposed transfer at least till the month of June, 2012, as by then, the half yearly examination of his children would be over. That ne ither is it permissible in law to effect transfer of incumbents in public servic e during the mid academic session of their children, nor he or his reliever till then had been released from their previous place of posting was underlined. As his representation remained unresponded, the Respondent No.1 approached the lea rned Tribunal seeking interference for redress.

04. The learned counsel for the parties, as the impugned judgment an d order would reveal, were heard for and against the contentions raised in the a pplication and by the decision assailed, the order of transfer qua the Responden t No.1 was quashed. The learned Tribunal in setting aside the order of transfer of the Respondent No.1 was of the view that no exigency justifying the decision to post him out during the mid academic session of his children had been demons trated before it. In concluding against the tenability of the impugned order of transfer the learned Tribunal felt guided by the pronouncement of the Apex Cour t in the Director of School Education, Madeas & Ors. -vs- O. Karuppa Thevan & an other 1994 Supp (2) SCC 666. Admittedly, at the point of the determination made by the learned Tribunal, neither the respondents before it did submit their ple adings nor had produced the relevant official records bearing on the impugned de cision.

05. The petitioner before this Court has pleaded in essence that the impugned order of transfer had been passed in public interest to improve the ef ficiency in public administration and having regard to the nature of the duties to be discharged by high profile officers such as the Respondent No.1, the State Government in the Personnel Department was the competent authority to decide th eir postings. That it was to ascertain as to which Deputy Commissioner would be posted in a district having regard to its policies has been emphasized as well. According to the petitioner, the learned Tribunal overlooked the fact that the transfer is an incidence of service and that it fell in error in not consulting the official records before concluding against existence of any administrative exigency justifying the transfer of the Respondent No.1 even during the mid acad emic session of his children.

06. Mr. Dubey while reiterating the pleaded contentions, as above, h as submitted that the impugned decision is liable to be set aside as it violates the principles of natural justice, the same having been rendered without afford ing any opportunity to the petitioner to file its pleadings and also to produce the relevant records. In addition, the learned counsel has urged with reference to the decision of the Apex Court in Director of School Education, Madeas & Ors . -vs- O. Karuppa Thevan & another (Supra) that transfer of an employee during mid academic term is not completely barred if urgent exigencies of service exist s and that therefore the learned Tribunal without examining the official record s erred in interfering with the order of transfer of the Respondent No.1. Mr. Nair, in reply, has insisted that none of the respondents in the proceedings before the learned Tribunal having sought for an opportunity to file their pleadings and/or to produce the relevant records, the plea of unfair ness is misconceived. According to him, the State of Assam having in particular failed to demonstrate any pressing exigency justifying the transfer of the Resp ondent No.1 during the mid academic session of his children, the learned Tribuna l rightly intervened on a correct appreciation of the enunciation made in Direct or of School Education, Madeas & Ors. -vs- O. Karuppa Thevan & another (Supra). We have examined the pleadings as available and have extended ou

07. r thoughtful consideration to the rival submissions advanced. That the Respondent No.1, had before the impugned order of transfer joined as De puty Commissioner, Lakhimpur on 16.02.2001 pursuant to the notification dated 27 .01.2011 posting him thereat and that his two minor children are as on date stud ying in Class-VIII & IV in a local school at Lakhimpur are unrebutted facts on r ecord. The Respondent No.1’s averments about his accomplishments as Deputy Commi ssioner, Lakhimpur have also remained uncontroverted. It is apparent on the fac e of the records that the Respondent No.1 has thus been sought to be transferred out of Lakhimpur after a little over one year of his posting there. That his ch ildren are presently in their mid academic session is also not denied.

08. The Apex Court in Director of School Education, Madeas & Ors. -v s- O. Karuppa Thevan & another (Supra) while responding to the plea against per missibility of transfer of employees during the mid academic term of their child ren, had observed that though there was no such rule, due weightage ought to be given to that factor while effecting their transfer, if the exigencies of servic e are not urgent. As the text of the reported decision would demonstrate, in th e proceedings before the Apex Court, no such urgent exigency could be establishe d for which, the order of transfer was interfered with and a direction was issue d that the employee concerned would not be transferred till the end of the curre nt academic year. Noticeably, the notification dated 05.04.2012 issued by the Prin 09. cipal Secretary to the Govt. of Assam, Personnel (A) Department witnesses a tran sfer of seven officers named therein, including the Respondent No.1 and the prof orma Respondent No.3 herein. A chain of transfers is thus testified by this not ification. We have perused the official records laid on behalf of the State of A ssam embodying the process leading to these transfers. The records do not revea l any compelling exigency to transfer the Respondent No.1 from the post of Deput y Commissioner, Lakhimpur at this point of time. No reason in particular to di slodge him from his post immediately is also discernible. Contrary thereto, the re is a representation by a Senior Citizen of the District, claimed to have been submitted on 06.04.2012 with the Principal Secretary to the Govt. of Assam (Per sonnel) Department on behalf of the local populace urging against the decision of the transfer of the Respondent No.1 from the post of Deputy Commissioner, Lak himpur in the face of the latter’s laudable services to ameliorate and promote the living conditions of the masses as well as his vigilant and efficient admini strative initiatives on issues of greater public interest. In the above over all premise, the observation of the learned Tribunal indicati ng absence of any urgent exigency recognized by the Apex Court in Director of Sc hool Education, Madeas & Ors. -vs- O. Karuppa Thevan & another (Supra) cannot b e disregarded as wholly unfounded. That the transfer of employees though an inc idence of service, during the mid academic session of their children is a voidab le generally and is allowable only if urgent administrative exigencies so warran t being the principle laid-down in the Director of School Education, Madeas & O rs. -vs- O. Karuppa Thevan & another (Supra), on the application thereof to the present facts, we do not see any cogent and weighty justification to interfere with the determination made by the learned Tribunal. On a consideration of the materials on record, in their entirety 10. , we are of the view that the instant petition is devoid of merit. It is thus di smissed. No costs.