High Court
Case Details
WP(C) 3146/2012 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R(CAV)
Legal Reasoning
By this application under article 226 of the Constitution of India, peti tioner has challenged the legality and validity of the transfer order dated 22-0 6-2012 issued by the Commissioner and Secretary to the Government of Assam, Exci se Department transferring the petitioner from Tinsukia Excise Warehouse, Tinsuk ia to Tinsukia Sadar, Tinsukia. 2. Case of the petitioner is that he is presently serving as Deputy Superintendent of Excise in the Excise Department, Government of Assam. Accordi ng to him, since 21-01-2011, while he was posted at Dibrugarh, he has been subje cted to a series of transfer orders. Ultimately, by order dated 15-03-2011, he w as transferred from Jorhat to Tinsukia Excise Warehouse, Tinsukia, pursuant to w hich he joined on 17-03-2011. He had completed hardly about fifteen months at Tinsukia Excise Warehouse, Tinsukia when the impugned order dated 22- 06-2012 was passed whereby he was transferred from Tinsukia Excise Warehouse to Tinsukia Sadar and in his place respondent No.5 was transferred from Tinsukia Sa dar to Tinsukia Excise Warehouse. The aforesaid order has been impugned in the p resent proceeding. Petitioner has contended that the impugned order was passed t o accommodate respondent No.5 at Tinsukia Excise Warehouse, which appears to be his favourate place of posting. Petitioner has furnished statements of recent tr ansfers and postings of himself and respondent No.5 to contend that there is a c onstant move on the part of the authority to keep respondent No.5 posted at Tins ukia Excise Warehouse and it was only for this purpose that the impugned order w as issued. There is no public interest involved in the impugned transfer. 3. Respondents 1 to 3 have filed a common counter affidavit. The al legation of subjecting the petitioner to frequent transfer has been denied. It i s stated that petitioner was transferred and posted at Dibrugarh in the year 200 9. Thereafter, he was transferred to and posted at Tinsukia Excise Warehouse whe re he joined on 17-03-2011. All the orders issued in between were modification o rders of the transfer order. Though the petitioner was posted at Jorhat on 25-02 -2011, he had to be transferred to Tinsukia as Jorhat happens to be his home dis trict and at that point of time, the code of conduct for the Assam Assembly Elec tions came into force whereby officers could not be posted in their home distric ts. The State respondents have contended that the transfer and posting orders of respondent No.5 have been passed in the interest of public service. It is furth er stated that by virtue of the impugned transfer order, there is no change in t he Head Quarter of both the petitioner and respondent No.5 and it remained the s ame i.e. Tinsukia. Respondent No.5 in his separate counter affidavit has contended 4. that many of the transfer orders which the petitioner alleges to have been issue d subjecting him to frequent transfer, were infact modified or issued at his ins tance and those remained merely on paper. Respondent No.5 has stated that he is suffering from high blood sugar and allied problems and that his duties at Tinsu kia Sadar involved prolonged night duty which was taking a toll on his health. I n such circumstances, a request was made for posting him at a less strenuous pla ce due to health reasons. Both the offices of Tinsukia Sadar and Tinsukia Excise Warehouse are situated close by in the same town i.e., Tinsukia. Therefore, pet itioner’s claim that he has been victimized and harassed is not correct.
Legal Reasoning
5. Heard Mr. U.K.Nair, learned Counsel for the petitioner, Mrs. S.S eal, learned Standing Counsel, Excise Department, Assam for respondent Nos.1 to 4 and Mr. B.D. Konwar, learned Counsel appearing for respondent No.5. 6. Mr. U.K.Nair, learned Counsel for the petitioner submits that the impugn ed order of transfer has not been issued in public interest. Neither the public interest nor administrative exigency justified issuance of the impugned order. H e submits that it has always been the endeavour of the authorities to keep respo ndent No.5 posted at Tinsukia Excise Warehouse and that is the reason why petiti oner has been transferred out. Mrs. S.Seal, learned Standing Counsel, Excise Department has pro 7. duced the relevant record relating to the impugned transfer order and has justif ied passing of the said order. Mr. B.D. Konwar, learned Counsel for respondent No.5 submits tha 8. t the authorities did not commit any illegality in passing the impugned order. N o right of the petitioner has been violated by his transfer from Tinsukia Excise Warehouse to Tinsukia Sadar. In any case, petitioner would continue to be poste d at Tinsukia and, therefore, no inconvenience or prejudice would be caused to t he petitioner. He therefore prays for dismissal of the writ petition. 9. The submissions made have been considered. Law relating to transfer is well settled and needs no re-stateme 10. nt. Scope of interference in an order of transfer by a writ Court is limited. In terference would be justified if the transfer is in violation of any statutory p rovision or is vitiated by malafide or in a case where the Court finds the same to be wholly arbitrary to make it repugnant to the principles of equality and fa irness as enshrined in article 14 of the Constitution. Since transfer is an exig ency of service, interference by the Court should ordinarily be avoided. In the present case, petitioner has been transferred from one of 11. fice to another in the same town i.e. Tinsukia. No prejudice or valuable right o f the petitioner can be said to have been violated by the impugned order of tran sfer. This Court, therefore, does not find any good and compelling reason to int erfere with the impugned order of transfer. No interference is thus called for. 12. Having said that, a perusal of the record produced by the learne d Standing Counsel reveals a disquieting feature. It is seen that one Ms. Manjur i Phukan, wife of respondent No.5 had submitted a prayer petition dated 07-06-20 12 before the Chief Minister, Assam to consider transfer of her husband from his posting at Tinsukia Sadar to Tinsukia Excise Warehouse on health ground. The Ch ief Minister made an endorsement on 18-06-2012 to the Minister, Excise to consid er the prayer. The Excise Minister, in turn, puts up a note on 21-06-2012 on the body of the petition itself requesting the Commissioner and Secretary, Excise t o take necessary action as desired by Hon’ble Chief Minister. The Commissioner a nd Secretary on the same day i.e. on 21-06-2012 puts up the following note :- (cid:28)Issue today (cid:29) The note-sheet dated 21-06-2012 indicates submission of proposal for posting of respondent No.5 at Tinsukia Excise Warehouse and the petitioner at Tinsukia Sada r. This was approved by the Commissioner and Secretary on 21-06-2012 itself, fol lowing which the impugned order was issued on the next day i.e., on 22-06-2012. 13. Thus the record indicates that the wife of respondent No.5 had a pproached the Chief Minister for posting of her husband at Tinsukia Excise Wareh ouse. On the basis of endorsement of the Chief Minister, followed by the notings of the Excise Minister and the departmental Commissioner and Secretary, the imp ugned order came to be issued. No endeavour was made to ascertain or verify the health status of respondent No.5 and if the same required change of posting. Wit hin one day of the note of the departmental Minister, the impugned order was iss ued. 14. It has now become a common practice that for transfer and postin g, employees often approach Ministers and MLAs. While approaching the local MLA or the departmental Minister can be understood, though may not be appropriate an d justified, the tendency to rush to political heavy-weights seeking their favou r is a malady which is not only required to be discouraged but also deprecated. When a Minister makes a recommendation or endorsement, it surely will influence the mind of the administrative authority. In the present case, the request was m ade by the wife of respondent No.5 to none other than the Chief Minister himself for as small a thing as transferring respondent No.5 from Tinsukia Sadar to Tin sukia Excise Warehouse, which is within the same town. If a Government employee is suffering from health problems or from some other personal problem, there is no reason why he should not approach the departmental authorities through proper channel seeking redressal of grievance. Instead of doing that, employees or the ir relatives have started approaching MLAs and Ministers or even the Chief Minis ter, as in the present case. If this trend is allowed to continue, it will not o nly adversely affect the morale of other officers and employees but may also cas t a shadow on service discipline. The administrative authority may look into thi s aspect and consider taking suitable steps. Beyond this, the Court refrains fro m making any further comment. 15. For the reasons discussed and subject to the observations made a bove, writ petition stands dismissed but without any order as to cost. Interim o rders passed earlier stand vacated. 16. Registry to send a copy of this judgment to the Chief Secretary, Government of Assam for doing the needful.