Judgment · High Court · 2009

I have heard Mr. M. K. Choudhury, Sr. Advocate for the petitione r, Dr. B. Ahmed, learned Standing Counsel, Irrigation Department, and Mr. U.K. N air, learned Counsel for the respondent No. 4 who has entered through a Caveat. The Caveat stands discharged. In a nutshell, the petitioner’s pleaded case is that following h is promotion as Executive Engineer in the Irrigation Department (hereafter refer red to as the Department), he was on 11/5/2007 posted at Goalpara Division (I) o n transfer. He was thereafter intermittently transferred from one place to anoth er in quick succession and eventually was posted at Mongoldoi Division (Irrigati on), Mongoldoi, as Executive Engineer by notification dated 29/4/2008. Contendin g that his frequent transfers though had adverse bearings on his family orientat ions, he had diligently complied with the same, he has asserted that the impugne d order is neither in public interest nor in the exigency of service and is impe lled by extraneous considerations. He has pleaded that his transfer to Nagaon is well ahead of the completion of the normal tenure of three years as is prescrib ed by the guidelines governing the transfer of Government Employees and that the impugned order also does not have the approval of the Chief Minister of the Sta te for which it is not implementable in law. He has added that the respondent No . 4 who is sought to be brought at Mongoldoi in his place had been posted in Nag aon only three months back and that the impugned arrangement has been conceived of to accommodate him. Abiding by the above stand, the learned Sr. Counsel for the peti tioner has urged that the impugned order of transfer besides being not in public interest or administrative exigency is also in violation of the transfer guidel ines and is, therefore, liable to be interfered with. Dr. Ahmed in reply with reference to the official records has ur ged that the petitioner’s transfer had been necessitated in the interest of the ongoing works in Mongoldoi Division (I) of the Department. He has contended that though some adverse inputs have been received against the petitioner in this re gard, the same has not been acted upon in posting him out of Mangoldoi. Instead, noticing the sloth progress of the execution of the schemes and the projects un dertaken under him in administrative exigency, the impugned order has been passe d on a conscious consideration of all relevant facts. According to Dr. Ahmed, th e transfer of the petitioner and the respondent No. 3 though had been envisaged in the month of February, 2009 the same could not be given effect to in view of the notification of the Lok Sabha elections for which the respondent No. 3 had t o be posted out of his home district of Mangaldoi to Nagaon, on temporary basis. The elections being over, the learned Counsel has contended, the impugned order has been passed in public interest. Dr. Ahmed has maintained that the proposed transfer of the petitioner and the respondent No. 3 had received the approval of the Chief Minister of the State and that the order impugned is, therefore, unas sailable on that count as well. He has dismissed the plea of frequent transfers contending that the same had been on many occasions at the instance of the petit ioner. While generally endorsing the above, Mr. Nair has argued that th e order of transfer under challenge is not induced by any consideration in favou r of the respondent No. 3 as alleged and being wholly in public interest, cannot be faulted with. There being no allegation of malafide or breach of any statuto ry rules or norms, this petition lacks in merit and is liable to be dismissed in limine. The pleadings available and the rival submissions noted hereinab ove have received the consideration of this Court. It cannot be gainsaid that tr ansfer being an incident of service, a limited scrutiny founded on some judicial ly accepted grounds ought to be permissibly undertaken in the exercise of this C ourt’s power of judicial review. Noticeably, the petitioner has not alleged any malafide though, according to him, impertinent considerations in favour of the r espondent No. 3 have yielded the impugned order of transfer. File No. IGN (E) 71/2003 of the Establishment Branch of the Irri gation Department produced in Court reveals that a note had been put up on 19/9/ 2001 before the Departmental Minister recommending the transfer of the petitione r from Mangaldoi Division-I and the respondent No. 3 vice versa in order to expe dite the execution of the ongoing schemes in Mangoldoi Division. The note inter alia discloses that the progress of these works under the supervision of the pet itioner have suffered also for his continuous ailments for which he had to be aw ay for treatment frequently. This note routed through the Departmental Minister was placed before the Chief Minister of the State on 2/2/2009. The Chief Ministe r of the State eventually accorded his approval on 3/6/2009 and thereafter the i mpugned notification was issued. The above revelations from the records substantiate the argument s advanced on behalf of the Department. A perusal of the records does not reveal that the impugned order of transfer has been passed on any extraneous considera tion. No penal element is also decipherable. The allegation of extraneous consid eration in favour of the respondent No. 3 is also not borne out thereby. The rel evant notes bearing on the impugned order of transfer on the other hand demonstr ate that the decision to that effect had been taken in the interest of public wo rks. The pleas to the contrary in assailing the order of transfer under challeng e in the instant proceeding are thus not borne out by recorded facts. Neither th e impugned order is vitiated by mala fide nor by the transgression of any statut ory rules or norms. The plea of frequency of transfers is also not convincing vi s-à-vis the order impugned, in the teeth of the public interest, impelling the s ame. The petition, in the above factual and legal premise, therefore, lacks in substance and is dismissed. No costs.