High Court
Case Details
WP(C) 3036/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
The petitioner by the present petition has challenged the order of trans fer dated 22.05.2013 passed by the Secretary to the Govt. of Assam, Water Resour ces Department, transferring him from Nalbari W.R. Sub-Division to Lala W.R. Sub -Division, in the same capacity as Asstt. Executive Engineer, in place of the re spondent No.3, who has been transferred from Lala to Nalbari. 2. The grounds on which the said order of transfer is put to challenge are that the transfer is in the nature of colourable exercise of powers in the name of public interest and administrative exigencies and it amounts to malafide tran sfer, since the proposal for transfer was initiated not at the instance of the d epartmental Minister, but at the instance of the Minister of another department, who has nothing to do with W.R. Department. Another ground on which the transfe r order has been put to challenge is that the approval of the Chief Minister has not been obtained before passing the transfer order as is required by the guide lines formulated by the State, as the petitioner has not completed his normal te nure of posting of 3(three) years at Nalbari.
Legal Reasoning
I have heard Mr. A.C. Borbora, learned Sr. counsel for the petitioner; M 3. r. B. Goswami, learned standing counsel W.R. Department and Mr. D.K. Das, learne d counsel appearing for the respondent No.3. Mr. Borbora, learned Sr. counsel submits that though the scope of judici 4. al review of an order of transfer, in exercise of the power under Article 226 of the Constitution of India, is very limited, such transfer order, however, can b e interfered with if passed in malafide and colourable exercise of the powers an d also on the ground of violation of the transfer policy formulated by the State . In the instant case, according to the learned Sr. counsel, since the transfer order was passed at the instance of a Minister other than the departmental Minis ter, such transfer order is malafide and has been passed in colourable exercise of the powers conferred. The learned Sr. counsel further submits that before pas sing the transfer order the Chief Minister’s approval has not been taken, though required under the transfer policy formulated by the State, as the petitioner h as not completed his normal tenure of posting of 3(three) years at a particular station. The learned Sr. counsel, therefore, submits that the transfer order is required to be set aside. 5. Mr. Goswami, learned standing counsel W.R. Department, placing reliance on the record produced by him, has submitted that the approval of the Chief Mini ster, before issuance of the order of transfer has been obtained, since neither the petitioner nor the respondent No.3 completed the normal tenure of posting of 3(three) years in a particular station, though the transfer guidelines issued b y the State do not confer upon the Government employee a legally enforceable rig ht. Mr. Goswami further submits that the process of transfer was initiated on th e basis of the request made by two Ministers other than the Minister of W.R. Dep artment as well as another constitutional authority, who has issued the communic ations requesting transfer of the petitioner from Nalbari to Guwahati and on tha t basis the file was first moved on 07.05.2012. In the meantime, according the l earned standing counsel, another request was made by another Minister for transf er of the respondent No.3 from Lala to Guwahati, on the basis of which an office note dated 12.06.2012 was put up. The Department, thereafter, submitted a propo sal for transfer of the petitioner from Nalbari to Mangaldoi and the respondent No.3 from Lala to Nalbari in place of the petitioner and the approval of the Chi ef Minister was also obtained on 19.09.2012, as both the Officers did not comple te their normal tenure of posting of 3(three) years in their respective stations . It has also been submitted that the petitioner, however, could not be transfer red to Mangaldoi as in the meantime the post has been filled up by way of promot ion of another Officer. Consequently the Department, in public interest as well as in administrative exigencies, decided to transfer the petitioner from Nalbari to Lala and the respondent No.3 from Lala to Nalbari and accordingly the transf er order has been passed. The learned standing counsel submits that the transfer order has not been passed in colourable exercise of the powers or with malafide intention, which has been passed in public interest and in administrative exige ncies. Mr. Das, the learned counsel appearing for the respondent No.3, submits 6. that the scope of judicial review of the order of transfer being very limited an d the writ Court can interfere with the order of transfer if the same is passed in violation of any statutory provision or is malafide or the authority who issu ed the order of transfer is not competent to pass the same, the impugned order n eeds no interference as the petitioner could not demonstrate existence of any su ch ground. It has also been submitted that since the transfer guidelines issued by the State do not confer upon the Government employee a legally enforceable ri ght, the petitioner cannot file the writ petition challenging the order of trans fer on the ground of violation of such guidelines, though in the instant case, t here is absolutely no violation as has been submitted by the petitioner. The lea rned counsel submits that before passing the order of transfer the approval of t he Chief Minister, as is required by the guidelines, has been obtained. It has a lso been submitted that the process of transfer was not initiated at the instanc e of the respondent No.3 but was initiated at the instance of the writ petitione r, which is evident from the record. The learned counsel, therefore, submits tha t the writ petition deserves to be dismissed. 7. I have considered the submissions of the learned counsel for the appeari ng parties and also perused the relevant records as produced by the learned stan ding counsel W.R. Department. 8. It is a settled position of law that the scope of judicial review of an order of transfer is very limited. An order of transfer of a Government Officer can, however, be interfered with by the writ Court, in exercise of its jurisdict ion under Article 226 of the Constitution of India, if such transfer order is an outcome of malafide exercise of power or violative of any statutory provision o r order was passed by an authority not competent to do so. An order of transfer can also be interfered with if such transfer results in adversely affecting the service conditions. The transfer being an incidence of service and the authority having the power to transfer one Officer from one place to another, the Officer cannot complain of such transfer unless of course any of the aforesaid grounds is demonstrated. The writ Court cannot sit on appeal over an order of transfer a s well as the grounds thereof except on the grounds stated above. The Court shou ld be very reluctant to interfere with the order of transfer as long as the same is not clearly illegal. 9. The Apex Court in State of U.P. Vs. Govardhan Lal reported in (2004)11 S CC 402 has held that even when an order of transfer is made in transgression of administrative guidelines, the Court cannot interfere with the same on that coun t, as those guidelines do not confer any legally enforceable right, unless of co urse such transfer order is shown to be vitiated by malafide or is made in viola tion of any statutory provision. The Apex Court in Mohd. Masood Ahmed Vs. State of U.P. reported in (2007)8 SCC 150 reiterating the scope of judicial review of transfer order, under Article 226 of the Constitution of India, has held that th e order of transfer being a part of the service condition of an employee, the sa me should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226, unless the Court finds that eithe r the transfer order is malafide or that the service rules prohibits such transf er, or that the authority who has issued the order was not competent to do so. R efuting the submission that the order of transfer was issued at the instance of an MLA, the Apex Court in that case has held that the recommendation of an MLA b y itself would not vitiate the transfer order as it is the duty of the represent ative of the people in the legislature to express the grievances of the people a nd if there is any complain against an official, the State Government is certain ly within its jurisdiction to transfer such an employee. The Apex Court in State of Haryana Vs. Kashmir Singh reported in (2010)13 SCC 306 has also held that th e transfer being an incidence of service, the Court should be very reluctant in interfere with the order of transfer as long as they are not clearly illegal. It has further been held that the administrative exigency cannot be judged by judi cial authorities and the Court should not interfere with purely administrative m atters except where absolutely necessary on account of violation of any fundamen tal or other legal right of a citizen. 10. On the backdrop of the scope of judicial review of an order of transfer, under Article 226 of the Constitution of India, as discussed above, I shall now proceed to deal with the case in hand. In the instant case, as noticed above, o ne of the grounds of challenge to the order of transfer is that the approval of the Chief Minister has not been obtained, though required under the guidelines f ormulated. Perusal of the records produced by the learned standing counsel W.R. Department reveals that since both the petitioner and the respondent No.3 did no t complete the normal tenure of posting of 3(three) years, the proposal was subm itted before the Chief Minister seeking approval for transfer of the petitioner from Nalbari to Mangaldoi and the respondent No.3 from Lala to Nalbari in place of the petitioner. The proposal for transfer was approved by the Chief Minister on 19.09.2012. Though in the said proposal the petitioner was sought to be trans ferred from Nalbari to Mangaldoi, the same, however, could not be materialized b ecause another officer in the meantime has been promoted and posted at Mangaldoi . The approval, which is required to be obtained from the Chief Minister is not relating to the place of posting on transfer but relating to the proposal for tr ansfer of an officer from one station to any other station before completion of the normal 3(three) years tenure in a particular station. Hence the requirement of the guidelines formulated by the State for obtaining the prior approval of th e Chief Minister has been complied with, though the petitioner could not be tran sferred to Mangaldoi. In any case, since the violation of such administrative gu idelines do not confer any legally enforceable right, the petitioner cannot chal lenge the order of transfer on the ground of violation of the administrative gui delines issued in that respect. The other ground on which the order of transfer has been put to challeng 11. e, as discussed above, is that the entire process has been vitiated as the same has been initiated on the basis of the recommendation of a Minister other than t he departmental Minister at the instance of the respondent No.3. The record prod uced by the learned standing counsel, however, gives a different picture. The pr ocess of transfer was initiated on 07.05.2012 based on the recommendation made b y two Ministers other than the departmental Minister for transferring the petiti oner from Nalbari to Guwahati, apart from the recommendation by another constitu tional authority in that respect. Those recommendations were, as revealed by the communications issued, at the instance of the petitioner himself. Immediately a fter such recommendation, another Minister of another department recommended the transfer of the respondent No.3 from Lala to Nalbari, pursuant to which a note dated 12.06.2012 was submitted. The departmental authority having regard to the aforesaid proposals and also the administrative exigencies submitted the proposa l for transfer of the petitioner from Nalbari to Mangaldoi and the respondent No .3 from Lala to Nalbari and though a decision was thereafter taken in that respe ct, the same, however, could not be materialized, as discussed above, because of non-availability of the vacancy at Mangaldoi. Consequently the decision was tak en for transfer of the petitioner from Nalbari to Lala and the respondent No.3 f rom Lala to Nalbari, which has been approved by the departmental Minister on 13. 05.2013 and accordingly the transfer order dated 21.05.2013 has been issued. The petitioner also could not demonstrate existence of any grounds, discussed above , to interfere with the transfer order in exercise of the jurisdiction under Art icle 226 of the Constitution.
Decision
12. From the aforesaid fact, it, therefore, transpires that the process of t ransfer was not initiated initially at the instance of the respondent No.3, but at the instance of the writ petitioner himself. The writ petitioner, therefore, cannot complain about initiation of the process of transfer because of the recom mendation made by a Minister other than the departmental Minister, since the sai d process has been initiated based on the recommendation made by two Ministers a nd another constitutional authority at the instance of the petitioner. 13. In view of the aforesaid discussion, I do not find any merit in the writ petition and hence the same is dismissed. 14. No cost.