High Court · 2012

By way of this application under Article 226 of the Constitution of India petiti oner has challenged transfer order dated 05-11-2011 whereby he has been transfer red from the Head Office of Assam Urban Water Supply and Sewerage Board to Dhub ri and respondent No.6 has been transferred from Dhubri to the Head office. Both petitioner and respondent No.6 are serving as Assistant Accounts Officer in the Assam Urban Water Supply and Sewerage Board (Board), an Assam Government un dertaking. Case of the petitioner is that by order dated 11-03-2011 issued by the Managing Director of the Board, he was transferred from Dhubri to the Head Office and his place, respondent No.6 was transferred from the Head office and posted at Dhubr i. The said transfer order was issued in the interest of public service and in c ompliance of the guidelines issued by the Election Commission of India in connec tion with the Assembly Elections of the State. Following the transfer order, pet itioner was released from Dhubri on 17-03-2011 and thereafter, he joined in the Head office on 18-03-2011. Before completion of one year of his posting in the H ead office, the Managing Director of the Board issued the impugned order dated 0 5-11-2011 transferring respondent No.6 from Dhubri to the Head office in place o f petitioner, who was transferred from Head office back to Dhubri. Petitioner su bmitted representation dated 05-11-2011 before the Managing Director for reconsi deration of his transfer, highlighting various grounds including his health prob lems and family difficulties. This was followed by another representation made b y his wife on 09-11-2011. As there were no response, petitioner filed the presen t writ petition. This Court by order dated 25-11-2011 while issuing notice, directed suspension o f impugned order dated 05-11-2011. Respondent No.6 has filed counter affidavit justifying the impugned order. She h as also stated about the difficulties faced by her because of her posting at Dhu bri. She has further stated that there is no lady employee other than herself in the office of the Executive Engineer, Dhubri Division. She has complained of la ck of security in the said office and of being subjected to mis-behaviour for wh ich she had lodged a complaint before the Managing Director on 20-12-2011. In his reply affidavit, while denying the assertion of respondent No.6, petition er has stated that respondent No.6 was posted at Guwahati for a long time and it was only on 11-03-2011 that she was transferred to Dhubri. Reiterating his pers onnel difficulties, petitioner has contended that impugned transfer order is no t in the public interest. He has also placed on record an office order dated 22- 02-2012 whereby the transfer order dated 05-11-2011 has been cancelled with the direction that respondent No.6 would continue her service at Dhubri. Respondent No.6 has filed an application for modification of the interim order d ated 25-11-2011, which has been registered and numbered as Misc. Case No.578/20 12. This Court by order dated 27-02-2012 observed that the Managing Director had overreached himself by canceling the transfer order while the Court is in seisi n of the matter. The cancellation dated 22-02-2012 was directed to be kept in ab eyance. Status-quo ass regards posting of the petitioner and respondent No.6 whi ch prevailed just before the interim order dated 25-11-2011 was passed was direc ted to be continued in the meantime. Heard Ms. N.S. Thakuria, learned Counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel appearing for the Board and Mr. P. Pathak, lear ned Senior Counsel for respondent No.6. Learned Counsel for the petitioner submits that there can be no justifiable rea son to transfer the petitioner to his earlier place of posting at Dhubri within a period of eight months when the earlier transfer from Dhubri was in the publi c interest. Only reason is to accommodate respondent No.6 at Guwahati. She cont ends that there is no public interest involved in the impugned transfer. Mr. P.Pathak, learned Senior Counsel appearing for respondent No.6 on the other hand submits that transfer is an incident of service and it is for the authority to decide where an employee is to be posted. He submits that since respondent N o.6 originally hailed from Samaguri, Nagaon, her children made a representation before the local MLA pointing out the difficulties faced by the family members b ecause of the transfer. There is nothing wrong in forwarding of the representat ion by the MLA, he submits. Mr. S.C. Keyal, learned Standing Counsel of the Board has produced the relevant record. The submissions made have been considered. Record produced has also been perused . It appears that the son and daughter of respondent No.6 submitted an application dated 16-06-2011 to the MLA of Samaguri constituency, who is the Minister of Pa nchayat and Rural Development, Forest and Environment, Government of Assam reque sting posting of their mother at Guwahati for family reasons. The said Minister forwarded the application to the Minister of Urban Development by forwarding no te dated 28-07-2011 to consider transfer and posting of respondent No.6 in and around Guwahati. This in turn was forwarded by the Under Secretary of the Urban Development Department to the Managing Director of the Board by letter dated 19 -08-2011 requesting necessary action on the matter. Following such request, a no te was put up by the Managing Director on 23-09-2011 before the Chairman sugges ting transfer of petitioner to Dhubri and posting of respondent No.6 in his pla ce in the Head office. The note indicates that petitioner had expressed his will ingness for field posting when his option was verbally sought for. The above pro posal on being approved by the Chairman, the impugned order was issued. Law relating to transfer is well settled and needs no reiteration. Scope of inte rference in an order of transfer by a writ Court is limited. Interference would be justified if the transfer is in violation of any statutory provision or is vi tiated by malafide or in a case where the Court finds the same to be wholly arbi trary to make it repugnant to the principles of equality and fairness as enshrin ed in article 14 of the Constitution. Having noticed the above, it cannot also be over looked that for transfer and p osting, employees often approach Ministers and MLAs. While approaching the local MLA or the Departmental Minister can be understood, though may not be appropria te and justified, the tendency to rush to political heavy-weights seeking their favour in such matters is a malady which is not only required to be deprecated but also discouraged. When a Minister makes a recommendation or a request, it c arries its own weight and will surely influence the mind of the administrative a uthority. Coming to the facts of the present case, it is seen that the process for issui ng the impugned transfer order was initiated following receipt of the note of th e MLA/Minister as indicated above. The record does not reveal that the impugned transfer was necessitated because of any public interest or for any administrative exigency. Both petitioner and respondent No.6 have expressed various difficulties faced by them. Without expressing any opinion on the comparative hardships expressed by the contesting parties, the Court is of the view that this is a matter which is within the realm of administration and should be left to be decided by the admi nistrative authority. In view of above, both parties are relegated to the Managing Director of the Bo ard who shall reconsider the matter and take a fresh decision keeping in mind th e administrative interest of the Board and balancing the comparative hardships of the parties, without being influenced by any note or recommendation of extra neous authorities. Such decision may be taken within a period of one month from the date of receipt of a certified copy of this order. Till such decision is ta ken, the position as on today shall be maintained. Writ petition accordingly stands disposed of.