The High Court
Case Details
Order No. 09. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8859 of 2024 Laxmidhar Bihari …. Petitioner Ms. S. Jena, Advocate -Versus- State of Odisha & others …. Opposite Parties Mr. B.P. Tripathy, AGA
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 02.09.2024 1. Heard Ms. Jena, learned counsel for the petitioner and Mr. Tripathy, learned AGA for the State. 2. Instant writ petition is filed by the petitioner challenging the order of transfer under Annexure-4 and consequential order of reliving him as per Annexure-5 on the grounds stated. 3. Ms. Jena, learned counsel for the petitioner submits that the petitioner has undertaken work in respect of number of projects for which a decision has been taken on 2nd March, 2024, as made to reveal from Annexure-2, for an inspection and spot verification to be held and carried out by a Technical Committee headed by the AEE-ITDA, Malkangiri, whereafter, status report to be submitted with findings and recommendation and for such an exercise, the presence of the petitioner at Malkangiri is imperative and in the aforesaid background, any such transfer order under Annexure-4 is highly prejudicial to him and hence, therefore, the same is liable to be interfered with and set aside with a consequential order allowing Page 1 of 5 him to join at Malkangiri for the aforesaid purpose to be present and participate in the spot verification as the same is necessary in the interest of justice. 4. Referring to the counter affidavit filed through opposite party Nos.2 and 3, Mr. Tripathy, learned AGA for the State challenged the contention of the other side and submits that with such a plea of the petitioner, the order of transfer under Annexure-4 cannot be interfered with and in support of such an argument, a decision of the Apex Court in Sri Pubi Lombi Vrs. The State of Arunachal Pradesh and others in Civil Appeal No.4129 of 2024 dated 13th March, 2024 is cited and relied upon. The contention is that unless there is any violation of statutory rule or malafide alleged and proved against the authority, the Court’s interference is impermissible. 5. A copy of the judgment in Sri Pubi Lombi (supra) is produced in Court by Mr. Tripathy, learned AGA for its perusal. 6. The sole contention of the petitioner is that the petitioner has met with an accident earlier and he suffered amputation of leg and has become immobile and therefore, is not in a position to attend any such enquiry and spot verification to be held at Malkangiri and therefore, the transfer order i.e. Annexure-4 is to be revoked. With the above submission, Ms. Jena, learned counsel has however not cited or brought to the notice of this Court regarding violation of any statutory rule or provision as such challenging the impugned order of transfer under Annexure-4. Furthermore, it is also not proved by any material on record to show that the authority concerned acted in malafide while transferring the petitioner from Malkangiri. In fact, the Court’s jurisdiction is limited Page 2 of 5 where there is an order of transfer in respect of an employee holding a transferable post, which can only be subjected to judicial scrutiny, provided clear violation of statutory rule of provision is proved and satisfied or it is shown that there is malafide from the side of the employer. 7. For better appreciation, the relevant extract the decision in Sri Pubi Lombi (supra) is reproduced herein the law. "9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset. XXX XXX XXX "23. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated." Page 3 of 5 "24. Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill advised." 8. In the above decision, it is clearly mandated that scope of judicial review is only available where there is violation of statutory provision or the transfer of an employee is actuated by malafide. In the decision (supra), number of other citations of the Apex Court has been referred to with a similar view expressed at the end. In fact, the Apex Court, while discussing the settled law, summarized the scope of judicial review in the following words: “10.In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (1) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India.” 9. Having regard to the facts pleaded on record and submissions of learned counsel for the respective parties and in absence of any material on record to show that the authority concerned did commit any error or illegality in violation of statutory rule or provision in transferring the petitioner or having acted in malafide, the Court is of the view that the order of transfer under Annexure-4 cannot be interfered with. In so far as the enquiry and spot verification to take place at Malkangiri pursuant to Page 4 of 5 Annexure-2 to the lead by a Technical Committee is concerned, the petitioner is to make own arrangement for the same and on that ground with such a plea, the transfer cannot be avoided by him. In other words, the Court does not find any justifiable reason to interfere with the impugned decision vide Annexure-4. 10. Accordingly, it is ordered. 11. In the result, the writ petition stands dismissed. 12. In the circumstances, there is no order as to the costs. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 04-Sep-2024 11:00:53 Page 5 of 5