High Court
Case Details
WP(C) 4650/2013 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER 1. The question which falls for consideration in this writ petition is wheth er, on the facts and circumstances of this case, the transfer of the petitioner from the post of Chief Executive Officer, Zilla Parishad, Lakhimpur to the post of Joint Secretary to the government of Assam, Hill Areas Development, Dispur, w arrants the interference of this Court. 2. The case of the petitioner is that he was transferred and posted as Chi ef Executive Officer of Lakhimpur Zilla Parishad by the notification dated 25-3- 2013 issued by the Government of Assam in the Department of Personnel (A), which he joined on 9-5-2013. After joining the post, a meeting of the District Planni ng Committee was held on 30-7-2013 under the Chairmanship of Chairman, Lakhimpur Zilla Parishad (respondent 5) for selection of the schemes submitted by the Pan chayat Research Institute (PRI). The meeting was attended by the local Member of Parliament and the Minister for Tribal Affairs, Government of India (respondent 4), the Deputy Commissioner, Lakhimpur, the local MLA and other members and rep resentatives selected by the Deputy Commissioner, Lakhimpur. The meeting unanimo usly decided to approve the scheme under District Development Programme (DDP) as submitted by the PRI members through the Block Development Officers, Anchalik P anchayats, Gaon Panchayats. However, according to the petitioner, the Committee could not come into consensus in respect of the scheme under the Backward Region Grant Fund (BRGP) as most of the members were not supporting the scheme which w as prepared under the guidance and control of the respondent No. 4.
Decision
3. The petitioner goes on to plead that on 6-8-2013, the Chairman of the L akhimpur Zilla Parishad (respondent 5) called to her room and asked him to put h is signature on a proceeding prepared by her with respect to the scheme covering ‘3.04 crores allegedly made by her in consultation with the respondent No. 4. T he petitioner refused to put his signature as he was not aware about the scheme and asked her to hand over the scheme prepared by her, but she refused to do so. He had initially refused to put his signature on the said proceeding, but he la ter did so under pressure and threat from the respondent No. 4. The petitioner w as, therefore, constrained to bring the incident to the knowledge of the Commiss ioner, Panchayat & Rural Development Department vide his letter dated 7-8-2013. Soon thereafter, the impugned transfer notification was issued. Aggrieved thereb y, she is now filing this writ petition for quashing the impugned notification. The writ petition is opposed by all the respondents. The respondents No. 2, 3, 4 , 5 and 6 have in fact filed their respective affidavits-in-opposition. The comm on thread running through the counter-affidavits of the respondents No. 3, 4, 5 and 6 is that no pressure was ever exerted upon the petitioner nor was there any threat made to him to sign the meeting proceeding in question and that the peti tioner was always found to be negligent in the discharge of his duty and was not cooperating with them in preparing and executing the various development scheme s. All of them deny that the transfer order is mala fide or is colourable exerci se of power, and they have no role to play in the impugned transfer order. The r espondent No. 2, in his affidavit-in-opposition, has disclosed that the Minister , Panchayat & Rural Developoment Department, Assam (P & RD) received a number of complaints against the petitioner from Members of Lakhimpur Zilla Parishad wher eupon the Minister took up the matter with the Chief Minister of Assam, who acco rdingly ordered his transfer. These are the sum and substance of the case of all the respondents. 4. Unfolding his submissions, Mr. S.N. Sarma, the learned senior counsel for the petitioner, maintains that the impugned notification was issued by way o f a punishment to the petitioner for his refusal to sign on the said proceeding prepared by the respondents No. 5 in consultation with the respondent No. 4 and, is, therefore, mala fide. According to the learned senior counsel, the petition er is sought to be ousted from his present posting so that the respondents would have free hand to misuse and misappropriate development funds for the poor by p reparing false schemes for the Lakhimpur Zilla Parishad: the impugned transfer i s nothing a colourable exercise of power by the respondent authorities. He also submits that the impugned transfer is also violative of the Government rules and guidelines, which say that if any incumbent is about to retire from service wit hin a period of one year, he will not be disturbed from his place of posting: th e petitioner is to retire from service within the next nine months. The learned senior counsel further contends that the petitioner is also a victim of frequent transfer inasmuch as he has just completed 3 months in his present place of pos ting as Chief Executive Officer, Lakhimpur Zilla Parishad and such frequent tran sfer cannot be sustained in law. He, therefore, vehemently submits that the impu gned transfer is liable to be quashed. To fortify his contentions, he relies on the following decisions: (i) Tarlochan Dev Sharna v. State of Punjab and ors., ( 2001) 6 SCC 260; (ii) SR Venkataraman v. Union of India, (1979) 2 SCC 491; (iii) Kalyan Kumar Sarkar v. Alok Kanti Pal Choudhury, 2006 (3) GLT 624 and (iv) Jibe shwar Thakuria v. State of Assam, 2004 (1) GLT 347. 5. Refuting the submissions of the learned senior counsel, Mr. S. Sarma, the learned Additional Advocate General, contends that no letter dated 7-8-2013 purportedly sent by the petitioner was ever received by the Commissioner, P & RD and, as such, the petitioner is evidently manufacturing a false and concocted s tory to annul the transfer order. It is further contended by him that had he bee n really forced to put his signature in the meeting proceeding against his will, he could have lodged a complaint against the respondent No. 4 and 5 with the ju risdictional police station, but he did not do so which clearly shows that the s aid respondents had not done anything against him: in fact, the record of the Co mmissioner, P & RD indicated that the additional Annual plan amounting to ‘3,04 crores under BRGF was forwarded by him on 5-8-2013, which is contradictory to hi s statement in paragraph 4 of the writ petition. The learned AAG also submits th at transfer is an incident of service and the petitioner has no right to claim a particular place of posting, and can be transferred anywhere in the exigency of public service. According to the learned AGG, the petitioner has proved to be f ull of arrogance, rigidity and self-righteousness resulting in halting various d evelopmental works in the district and is thus incapable working with the politi cal executives and has to be transferred out for bona fide reason and in public interest. It is also his contention that the recommendation of elected officials for the transfer of the petitioner does not necessary lead to the inference of mala fide after all they are also stakeholders in the governance of the State. C ontending that the impugned transfer order does not suffer from violation of sta tutory rules, procedural impropriety or mala fide calling for the interference o f this Court, the learned AAG strenuously urges this Court to dismiss the writ p etition. He also, on instruction, informs this Court that considering the fact t hat the petitioner is on the verge of retirement, the respondent authorities, in fairness, are ready to transfer him to any place other than his present place o f posting. He relies on the following decisions to buttress his contentions:- (a ) Airport Authority of India v. Rajeev Ratan Pandey, (2009) 8 SCC 337, (b) State of UP v. Gobardhan Lal, (2004) 11 SCC 402; (c) State of UP v, Siya Ram and ors. , (2004) 7 SCC 5; (d) Union of India v. Janardhan Denath, (2004) 4 SCC 245; (e) NHPC v. Shri Bhawagan & ors., (2001) 8 SCC 574; (f) NK Singh v. UOI, (1994) 6 SC C 98; (g) Shipi Bose (Mrs) & ors. V. The State of Bihar & ors., 1991 Supp(2) SCC 659; (h) Md. Masood Ahmed v. State of UP; (i) (2007) 8 SCC 150 and (j) M. Bala krishna Reddy v. UOI & ors., 2007 (4) GLT 583. The submissions of the learned A AG are fully endorsed by M/S G. Uddin, J. Deka, SK Deka, Bimal Chetry..K. Choudh ury, N. Baruah and M.J. Quadir and Mrs. HM Phukan, the learned Govt. Advocate ap pearing for the respondents, who also maintain that this is not a fit for the in terference of this Court. 6. I have perused the pleadings of the rival parties together with the reco rds relating to the impugned transfer order produced on behalf of the Department of Personnel, Govt. of Assam and the Department of Panchayat & Rural Developmen t, Govt. of Assam. Before adverting to the present controversy, it will be instr uctive to refer to some of the decisions of the Apex Court laying down the princ iples to be kept in mind by Courts and Tribunals for adjudging the validity of t ransfer orders issued by public authorities. In this context, the observations o f the Apex Court in N.K. Singh case (supra) instantly come to mind, which are in the following terms: (cid:28)23. & Transfer of a government servant in a transferable service is a neces sary incident of the service career. Assessment of the quality of men is to be m ade by the superiors taking into account several factors including suitability o f the person for a particular post and exigencies of administration. Several imp onderable requiring formation of a subjective opinion in that sphere may be invo lved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transf er, which alone can be scrutinised judicially, there are no judicially manageabl e standards for scrutinising all transfers and the courts lacks the necessary ex pertise for personnel management of all government departments. This must be lef t, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. (cid:29) 7. In State of M.P. v. S.S. Kourav, (1995) 3 SCC 270, while setting asid e the order of the Administrative Tribunal interfering with the transfer order o f a government employee, the Apex Court made the following observations: (cid:28)4. & The courts or tribunals are not appellate forums to decide on transfer s of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdic t the working of the administrative system by transferring the officers to prope r places. It is for the administration to take appropriate decision and such dec isions shall stand unless they are vitiated either by mala fides or by extraneou s consideration without any factual background or foundation. In this case we ha ve seen that on the administrative grounds the transfer orders came to be issued . Therefore, we cannot go into the expediency of posting of officer at a particu lar place. (cid:29) (Underlined for emphasis) 8. The Apex Court in Somesh Tiwari v. Union of India, (2009) 2 SCC 592 d iscussed as to what constitutes mala fide exercise of power and held that transf er order is invalid on the ground of mala fide exercise of power. In paragraph 1 6 of the judgment, this is what it said: (cid:28)16. Indisputably an order of transfer is an administrative order. There can not be any doubt whatsoever that transfer, which is ordinarily an incident of se rvice should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds ? one malice in fact and second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made agai nst the appellant in the anonymous complaint. It is one thing to say that the em ployer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. (cid:29) (Underlined for emphasis) 9. For better appreciation of the controversy involved in the instant cas e, I may refer to the facts of the case of Gobardhan case (supra) in detail, whi ch was also concerned with challenge to an order of transfer on the ground of ma la fides. In that case, the respondent, who was working as District Supply Offic er, Meerut, came to be transferred by an office order dated 8-12-1999 by the Sec retary, Food and Civil Supplies Department of the Government to Head Office ? Of fice of Food Commissioner at Lucknow. This office order involved the posting of not only a substitute to the respondent at Meerut but the transfer of another of fice as well. The grievance with which the transfer order came to be challenged before the High Court was that though by an order dated 10-4-1999 the respondent , who was serving at Unnao, was transferred to Meerut and joined as such, he cam e to be transferred again by the impugned order due to political and influence, particularly that of the local MLA by name Atul Kumar, to the Head Office at Luc know in order to help another to be posted in his place. It seems to have been f urther urged that the District Magistrate of Meerut has commended the services o f the respondent in dealing with the public and despite such views expressed, th e transfer order came to be made for extraneous purposes, at the behest of and i n order to oblige the local MLA. Carried away by the copies of the letter filed as annexures before the High Court, allegedly written by the MLA, the court, whi le issuing notice, seems to have granted interim orders of stay as well. The res pondents filed counter-affidavit disputing the claims made in the writ petitione r to the alleged motives and baseless allegations relating thereto, and as found noticed in the order under challenge, it was categorically asserted for the res pondent before the High Court that the so-called said to have been written by th e MLA is fake one and it was neither written by him nor was it available in the files. 10. That apart, it was also, among other things, contended that the perfor mance of the respondent in the previous stations as well came under a cloud and as a matter of fact, he was suspended on 10-2-1997 for alleged serious irregular ities and misconduct while he was District Supply Officer at Hamirpur and Gonda. Though, subsequently reinstated on 11-7-1997 and departmental proceedings insti tuted were pending, once again he was said to have been suspended on 15-12-1997 for irregularities committed and reinstated on 20-3-1999, subject to the condit ion that the departmental proceedings pending against him would continue and as a matter of fact, two departmental proceedings were said to be pending against h im. The respondent (writ petitioner in the High Court) himself is said to be the real brother of an MLA, by name Shri Ram Pal Verma, and through him and another MLA he was said to be bringing a lot of pressure to bear on the authorities, at every stage a favourable treatment. In the light of the above and the further c laim made that the criminal proceedings have also been sanctioned against him, i t was contended that his transfer was purely in public interest and necessitated by the exigencies of service to keep him away from the fieldwork and to take hi m into the head quarters office on the administrative side. The observations mad e by the Apex Court against undue interference by courts and tribunals in the ma tter of order of transfer are found at paragraphs 8 and 9 of the judgment with t he attendant consequences thereto, which cannot be lost sight of when dealing wi th challenge to an order of transfer and same are reproduced below: (cid:28)8. A challenge to an order of transfer should normally be eschewed and sho uld not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrat ive needs and requirements of the situation concerned. This is for the reason th at courts or tribunals cannot substitute their own decisions in the matter of tr ansfer for that of the competent authorities of the State and even allegations o f 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 asking of it or on consideration borne out of conjectures or surmises and except for st rong and convincing reasons, no interference could ordinarily be made with an or der of transfer. (cid:29) (cid:28)9. The very questions involved, as found noticed by the High Court in these cases, being disputed questions of facts, there was hardly any scope for the Hi gh Court to generalise the situations based on its appreciation and understandin g of the prevailing circumstances as disclosed from some write-ups in journals o r newspaper reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of sup ervision and control in the hierarchy of the administration of the state or any authority as well as the basic concepts and well-recognised powers and jurisdict ion inherent in the various authorities in the hierarchy. All that cannot be obl iterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring an effective supervision and control and running of ad ministration merely on certain assumed notions orderliness expected from the aut horities affecting the transfers. Even as the position stands, avenues are being open for being availed of by anyone aggrieved, with the authorities concerned, the courts and tribunals, as the case may be, to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in discipl inary proceedings on certain well-settled and recognised grounds or reasons, whe n properly approached and sought to be vindicated in the manner known to and in accordance with law. No such genaralised directions as have been given by the Hi gh Court could ever be given leaving room for an inevitable impression that the courts are attempting to take over the reins of executive administration. Attemp ting to undertake an exercise of the nature could even be assailed as an onslaug ht and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression sho uld be avoided with utmost care and seriously and zealously courts endeavour to safeguard the rights of parties. Underlined for emphasis) 11. From the observations culled out from the aforesaid decisions, it may no w be taken to be the law that in the matter of transfer of a government employee , the scope of judicial review is limited and the High Courts and Tribunals woul d not interfere with an order of transfer lightly, be it at interim stage or fin al order hearing. This is so because transfer is the prerogative of the authorit ies concerned, and the courts or tribunals do not substitute their own decisions in the matter of transfer. An order of transfer can, however, be interfered wit h only when (i) the transfer order is shown to be vitiated by mala fides, or (ii ) is issued in violation of any statutory provision, or (iii) is passed by an au thority not competent to pass such an order. As for mala fide order of transfer, the allegations of mala fides must inspire confidence of the courts and tribuna ls and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reason s, no interference would ordinarily be made with an order of transfer. That the burden of proving mala fides is on a person levelling such allegations and the b urden is heavy, admits of no legal ambiguity. Mere assertion or bald statement i s not enough to discharge the heavy burden that the law imposes upon the person levelling allegations of mala fides; it must be supported by requisite materials . In the instant case, the allegations of mala fides transfer are sought to be p roved by the petitioner by two circumstances, namely, (i) his transfer was effec ted within three months of his assumption of office and (ii) he has been transfe rred due to political pressure by Chairman of the Lakhimpur Zilla Panchayat (res pondent 5) under the guidance of the local MP who also happens to be a Union Min ister (respondent 4). These allegations are stoutly denied by both the responden ts by filing their respective affidavits. The petitioner seeks to rely on the le tter dated 7-8-2013 written by him to the Commissioner, P & RD complaining that he was forced to sign on the proceeding prepared by respondent 5 with respect to the scheme worth ‘3.04 crores by respondent 4 and 5 by way of contemporaneous d ocument. The existence of this letter is also denied by the answering respondent s. Apart from the said letter dated 4-5-2013 purportedly written by the Presiden t and other Members of Lakhimpur Zilla Parishad to the Deputy Commissioner askin g him to withdraw the petitioner from Lakhimpur Zilla Parishad, there is no othe r complaint against him before issuing the impugned transfer order. Even the ori ginal of this letter is not tracable to any file produced by the learned counsel for the respondents. I have also gone through the file maintained by the Depart ment of Personnel(A) but no shred of documentary evidence with respect to any co mplaint against the petitioner is found therefrom prior to issuing the order of transfer. All that can be found is the note of the Chief Minister for transfer o f the respondent No. 6 as Chief Executive Officer, Lakhimpur Zilla Parishad vice the petitioner, who was to be transferred and posted as Joint Secretary, Hill A reas Department. No reason is assigned which prompted the transfer of the petiti oner. Therefore, the impugned transfer order would attract the principle of mali ce in law as it was not based any factor germane for passing an order of transfe r: it was based on non-existent facts. It is interesting to note that the meetin g proceeding dated 23-8-2013 of the President and Members of the Lakhimpur Zilla Parishad adopting a resolution against the petitioner undoubtedly came into exi stence only after the impugned order of transfer was issued. Thus, at the time w hen the impugned transfer was ordered by the Chief Minister, there was absolutel y no complaint against the petitioner. A feeble attempt was made by the learned Additional Advocate General that this document clearly shows that the petitioner is absolutely not suitable for the post and does not receive the cooperation of the President and members of Lakhimpur Zilla Parishad. In my considered view, s uch post-transfer development facts cannot be taken into account for adjudging t he validity of the impugned order of transfer. Moreover, it is well-settled law that when an order is passed by a statutory authority, the same must be supporte d either on the reasons stated therein or on the grounds available therefore in the record. A statutory authority cannot be permitted to support its order relyi ng on or on the basis of the statements made in the affidavit dehors the order o r for that matter dehors the record.? Commr. of Police v. Gordhandas Bhanji, 195 2 SCR 135, Mohinder Singh Gill v. Chief election commissioner, (1978) 1 SCC 405; Bahadursinh Lakhubhai Gohil v. Jagdisbhai M. Kamalia, (2004) 2 SCC 65 and Hindu stan Petroleum Corpn. Ltd. v Darius Sgapur Chenai, (2005) 7 SCC 627. In the view that I have taken, the impugned order of transfer is mala fide, arbitrary and i s illegal, which cannot be sustained in law. 12. For the reasons stated in the foregoing, this writ petition succeeds. The impugned order of transfer contained in the notification dated 13-8-2013 at Annexure-4 to the writ petition is hereby quashed. The interim order dated 20-8- 2013 as extended from time to time is accordingly made absolute. However, I pass no order as to costs.