Arunendu Deb vs State of Tripura and Others

N.S. Singh, J.—The Government Notifications/Orders dated 16th December, 1998 and 25th March, 1999 as in Annexure-6 and Annexure-14 to the writ petition pertaining to the transfer and posting of the present writ Petitioner are the subject matters under challenge in this writ petition.

Supporting the case of the writ Petitioner, Mr. A.K. Bhowmik, learned senior Counsel assisted by Mr. S. Ghosh, learned Counsel for the Petitioner at the very outset contended that the impugned transfer orders are illegal, malafide and not in public interest inasmuch as the said transfer orders amount to a punitive action as against the present writ Petitioner in as much as the authority concerned with oblique and malafide motive issued those orders thus affecting the service career of the writ Petitioner; that the Petitioner is a General Secretary of Tripura Nationalist Employees'' Federation, a recognized Association by the Government of Tripura, hereinafter referred to as Federation and as such the Petitioner cannot be transferred from his present place of posting at Agartala either to Kumarghat or at Kailashahar under the Sub-divisional Officer, Kailashahar, North Tripura by virtue of the related Govt. Office Memorandum/Policy and his case shall be exempted from the general transfer; that the Petitioner is a heart patient who has been sufferint constantly from chronic cardiac problem since the year 1992 and has been under constant treatment of specialist physician and the Cardiologist at Agartala but there is no specialist physician and the Cardiologist either at Kumarghat or at Kailashahar and apart from it the ailment of the writ Petitioner was duty examined by a standing Medical Board and on a careful medical examination the standing Medical Board had opined that he may be posted in a place where there is medical specialist such as District or sub-divisional Hospital in Tripura. The learned Counsel for the Petitioner also argued that there is no post of sub-divisional Controller (Food) at Kaliashahar. However, by virtue of the impugned order dated 25.3.99 as in Annexure-14 to the writ petition the Petitioner has been transferred to Kailashahar by transferring a post of Sub-Divisional Controller (Food) created/sanctioned under the Directorate of Food & Civil Supplies, Tripura to Sub-Divisional Headquarter at Kailashahar. North Tripura under the control and supervision of the Sub-Divisional officer, Kailashahar with immediate effect and until further orders, According to Mr. Bhowmik, learned senior Counsel, the creation of a post or posts in a particular Sub-Divisional Headquarter at Kailashahar can be made only by the competent authority with the concurrence of Finance Department and in the instant case no post of Sub-Divisional Controller (Food) was/is even created for the Sub-Divisional Headquarter at Kailashahar, North Tripura and the transfer of a post of Sub-Divisional Controller (Food) meant and created rather sanctioned under the Directorate of Food & Civil Supplies at Agartala cannot be transferred to the Sub-Divisional Headquarter at Kailashahar with the official/officer holding such post in the Directorate of Food & Civil Supplies, Tripura at Agartala. It is also contended by the learned Counsel that such transfer of a post of Sub-Divisional Controller (Food) to Sub-Divisional Headquarter at Kailashahar was made without the concurrence of the Finance Department which is not permissible and the same is also not known under Service Jurisprudence. The learned Counsel went on to argue that the authority concerned ought to have considered the case of the writ Petitioner on the basis of the representations submitted by the Petitioner and also in the light of the Medical Report or opinion submitted by the Medical Board thus giving his place of posting in or around Agartala as there are vacant posts of Sub-Divisional Controller (Food).

(It is now 4.15 P.M. Judgment & Order will be continued tomorrow).

The Judgment and order continued today (29.6.99).

29.6.99

The main contention raised by the learned Counsel for the Petitioner is that there is no existence of public interest in posting or transferring the Petitioner either to Kumarghat or to Kailashahar; that the purported transfer of a post of Sub-Divisional Controller (Food) sanctioned and created in the Directorate to the Sub-Divisional Headquarter at Kailashahar under the impugned transfer order of 25th March, 1999 is absolutely void ab initio and a malafide action. Supporting the plea of malafide so far taken by the writ Petitioner, Mr. Bhowmik has drawn my attention to the statements made by the Petitioner in Paragraphs 17 and 18 of the writ petition and also relied on the judgment and order passed by a Division Bench of this Court on 14.2.1997 in Writ Appeal No. 29 of 1993 and contended inter alia, that the Petitioner has been subjected to harassment by the Respondents thus, transferring him once from the office of the Agartala Rationing Authority while he was serving as Chief Inspector to the office of the Sub-Divisional Officer, Chailengta, North Tripura where there is no post of Chief Inspector and, being aggrieved by such transfer order dated 10th May, 1993, he filed a writ petition before this Court under Civil Rule No. 162 of 1993 which was dismissed by the learned Single Judge of this Court but on appeal, the judgment and order passed by the learned Single Judge was set aside by the Division Bench of this Court under the related order of 14.2.1997 mentioned above. It is also submitted by Mr. Bhowmik that by virtue of the opinion and report of the standing Medical Board dated 20.2.99 and also considering the health condition of the writ Petitioner, the Respondent/competent authority ought to have given his place of posting to a nearer station at Agartala or near about, not at Kailashahar so that the Petitioner could avail medical facilities. It is also argued by the learned senior Counsel that discrimination has been meted out by the Respondents to the Petitioner in the matter of transfer and posting inasmuch as one Sri Kalyan Chowdhury, the present Divisional Controller (Food) in the office of the Respondent No. 2 at Agartala has been posted at Agartala during his entire service career except for a brief period of about three years and as a case of extra favour, he has been detailed in the Department after his retirement for Anr. period of one year but a little consideration has not been made by the Respondents in the case of the Petitioner. The impugned orders causing the transfer and posting of the writ Petitioner at Kumarghat and subsequently at Kailashahar amounts to punishment and the same were issued by the competent authority with malafide, but not in public interest, Mr. Bhowmik contended. Supporting the plea of malafide Mr. Bhowmik has drawn my attention to a decision of Kerala High Court in a case between Dr. P. Damodaran v. State of Kerala and Ors. reported in 1982 (1) SLR 563 and submitted that the impugned transfer orders are bad as the same amounts to fraud on power and the power to transfer of the writ Petitioner was exercised by the competent authority not in the interest of administration or in the interest of public and without due regard to the provisions of law or the requirements of justice. Over and above, the same was exercised for extraneous and irrelevant considerations and this amounts to punishment.

At the hearing Mr. U.B. Saha, learned senior Govt. Advocate assisted by Mr. T.D. Majumdar, learned Counsel appearing for the State Respondents submitted that the Petitioner is not at all entitled for the prescribed exemption from general transfer under the related Govt. Policy inasmuch as the said Federation/Association of the Petitioner is not recognised by the Government of Tripura inasmuch as the said Association/Federation does not find its place as a recognized association by the Government of Tripura under the related Memorandum dated 24.12.1997 as in Annexure-R.8 to the additional counter-affidavit and, apart from it, the present writ Petitioner cannot be a member of any such recognized Employees'' Association as the Petitioner is now holding the post of Sub-divisional Controller (Food) which is a Group -B Gazetted Officer and as such he is not permissible to be a member of such Association and of course he may be a member of such Association when he was serving as a Chief Inspector under the Respondents. It is also submitted by the learned Govt. Advocate that no statement is made either in the writ petition or in the reply affidavit by the writ Petitioner to the effect that on his promotion in the month of December, 1997 to the post of Sub-Divisional Controller (Food), Kailashahar, he was elected as a member or General Secretary of any recognized Association and apart from this, the said Association or Federation is not a recognized Association by the Government of Tripura. According to Mr. Saha, the Government had duly considered and examined the case of the Petitioner rather his representation dated 23.3.99 as in Annxure-12 to the writ petition giving due weightage to the examination report of the Standing Medical Board thus modifying the earlier transfer order dated 16.12.1998 as in Annexure-6 to the writ petition and thus transferring the Petitioner to the office of the Sub-Divisional Officer, Kailashahar, North Tripura in the post of Sub-Divisional Controller (Food) and also causing the transfer of a post of Sub-Divisional Controller(Food) earlier from the Directorate of Food & Civil Supplies to the Sub-Divisional Headquarter at Kailashahar, North Tripura and, in the public interest, the transfer and posting of one Shri Abhijit Malakar, Sub-Divisional Controller(Food) has also been cancelled by the competent authority under the related order or 25.3.99 and an officer, namely, Shri N.Das, Assistant Director from Kailashahar has been transferred to Ambass to meet the demand of Ambassa Sub-Division. It is also submitted by Mr. Saha that it is prerogative of the Government in the matter of transfer and posting of its employee/employees for effective, expedient and smooth running of the administration and as such transfer of a post of Sub-Divisional Controller (Food) to Kailashahar and the transfer of the Petitioner at Kailashahar were made in public interest and that no system can run with minimum effectiveness if authorities are to adjust with whims of the employee concerned who seeks suitable posting to suit him. Mr. Saha went on to contend that the Petitioner while seeking leave for 30 days on medical ground w.e.f. 2.1.99 and, Anr. leave of 28 days w.e.f. 1.2.99 to 28.2.99 on medical ground, he submitted those applications along with supporting medical certificates issued by the medical officer of Central Jail and one issued by Dr. Pranab Kr. Nandi, a Diploma holder in Homoeopathy and as such the Petitioner treated those doctors as fit and capable doctors for his medical treatment and those medical certificates so far submitted by the Petitioner show that he was never under treatment by any medical specialist in Cardiology at Agartala. Relying upon the judgment reported in E.P. Royappa Vs. State of Tamil Nadu and Another, Mr. Saha submitted that the burden of proof for establishing malafides lies on the shoulders of the Petitioner who alleges it but in the instant case the Petitioner could not make out a case of mala fide as there is no material on record. In this connection the learned Govt. Advocate has drawn my attention to paragraph 92 of the judgment wherein the Court held that the allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Further, relying upon the decision of the Apex Court, reported in Chief General Manager (Telecom), N.E. Telecom Circle and another Vs. Rajendra Ch. Bhattacharjee and others, NE Telecom Circle and Anr., Appellants v. Rajendra Ch. Bhattacharjee and Ors., Respondents) the learned Govt. Advocate argued that the official cannot insist on being posted at a particular place of posting of his or her own choice. There is no infirmity or illegality or mala fide in the impugned transfer orders and the same were issued in the public interest and administrative expedient, Mr. Saha contended.

Replying to the arguments so far advanced by Mr. Saha, the learned Govt. Advocate Mr. Bhowmik, the learned senior Counsel for the Petitioner submitted that those medical certificates so far issued by the Jail doctor and the Homoeopathy doctor are meant for the purpose of leave sought for by the Petitioner but there are enough documents on record as reflected at Annexure-16 series which show the factum of treatment and examination of the Petitioner by the medical specialist in Cardiology and the other experienced doctors for a continuous period of about five years right from the year 1992.

To meet the ends of justice this Court shall take into consideration all the documents filed by the parties concerned and the statements made by the writ Petitioner in his writ petition as well as in the reply affidavits in the connected main writ petition or Misc. Application and also the counter objection and the additional affidavits and other related affidavits filed by the Respondents for just determination of the real points in controversy between the parties.

Now, this Court is to see and examine as to whether the impugned transfer orders were made in public interest or administrative expediency or that the same were passed with malafide and oblique motive by the competent authority and whether the writ Petitioner has enforceable legal right in the instant case or not.

A bare perusal of the documents marked as Annexure-15 to the writ petition, Annexure-R-8, R-9, and R-10 to the additional counter affidavit show that the Federation/Association of the Petitioner is not a recognised Association by the Government of Tripura. Over and above this, the present writ Petitioner is now holding the post of Sub-Divisional Controller (Food), a Group-B Gazetted Officer and as such he is not permissible to be a member of such Association at the relevant time as the said scheme does not cover up his case. In other words, he is not entitled for the benefits pertaining to exemption from such general transfer.

Initially the impugned transfer order dated 16.12.98 as in Annexure-6 to the writ petition was passed by the competent authority transferring the Petitioner to Kumarghat under the Sub-Divisional Officer, Kailashahar vice, Shri Abhijit Malakar, Sub-Divisional Controller. Food & Civil Supplies (transferred) but on receipt of the representation/application filed by the Petitioner, the Respondent No. 2 took up the matter and requested the Chairman, Standing Medical Board. G.B. Hospital. Agartala to arrange medical examination of the Petitioner and accordingly, the said Medical Board examined the Petitioner on 11.2.99 and on careful medical examination of the Petitioner the said Medical Board opined that the leave of 58 days of the Petitioner w.e.f. 2.1.99 is justified; and the Petitioner may be posted in a place where there is medical specialist such as District or Sub-Divisional Hospital in Tripura. The said medical examination report finds its place at Annexure-R-6 to the additional counter-affidavit of the Respondents. In this regard the Director of Health Services, Tripura, Agartala clarified that there are doctors with the post Graduate degree of M.D. (General Medicine) and M.S (General Surgery) in the R.G.M. Hospital, Kailashahar as seen in the document Annexure-R-3B to the counter objection of the Respondents. It is also needless to opine that the Petitioner while seeking leave for the periods mentioned in the foregoing paragraph he submitted the medical certificates issued by the doctor of Central Jail and Homoeopathy doctor having Diploma in Homoeopathy as reflected in the document marked as Annexure-R/1 series and R-4 series to the said counter objection, in other words, the Petitioner had been examined by the said doctors who are neither medical specialists nor Cardiologists. However, on perusal of Annexure-16 series to the affidavit-in-reply of the Petitioner it has been revealed that the Petitioner was also examined by the medical specialists holding M.D. degree at Agartala and at Calcutta. Be that as it may, now this Court is to see and examine as to whether there are medical specialist at Kailashahar where the Petitioner has been transferred under the impugned transfer order. In my considered view, the statement of the Director of Health Services, Tripura, Agartala under his office letter No. F.I. (B/4)-MS/GS/94(S.F) dated 29th April, 1999 as in Annexure-R-7 to the additional counter-affidavit has its volume because of the fact that the Director of Health Services is the right and competent person who can make this statement and indicate about the factum of the services of these medical officers specialist having Post Graduate Degree either in General Medicine or in General Surgery and as such 1 am of the view that there are medical specialist at Kailashahar, whose services can be utilised by the Petitioner as and when he needs it.

Now, the plea of mala fide so far taken by the writ Petitioner in his writ petition is concerned, I am of the view that the Petitioner could not make out a case of malafide or oblique motive for the following reasons:

(a) The initial transfer order was subsequently superseded by the subsequent impugned transfer order of 25.3.99 after considering the representation of the writ Petitioner as discussed above and also the examination report of the Standing Medical Board who had carefully examined the Petitioner in the light of the said representation and, the said Board has expressed its view that the Petitioner may be posted in a place where there is medical specialist such as District or Sub-divisional Hospital and thereafter, the authority concerned transferred a post of Sub-Divisional Controller (Food) from the Directorate to Sub-Divisional Headquarter at Kailashahar, North Tripura in association with the transfer of the present writ Petitioner as Sub-Divisional Controller (Food) to the office of the Sub-Divisional Officer, Kailashahar, North Tripura From the available materials on record it is also further established and revealed that all the posts of Food & Civil Supplies organisation have been created under the Directorate of Food & Civil Supplies and one of the created posts of Sub-divisional Controller (Food) from the Directorate office was transferred to Sub-divisional Headquarter at Kailashahar, North Tripura in the interest of public and for the administrative expendiency and since the said post is not a new creation of post in my considered view no concurrence is called for from the end of the Finance Department, Government of Tripura as because it is the prerogative of the Government either to transfer a post from a particular place to Anr. particular place and that of a staff from a particular place of posting to Anr. place of posting in the interest of public service and the administrative expendiency.

(b) The judgment and order dated 14.2.97 passed by the Division Bench of this Court in Writ Appeal No. 29 of 1993 set aside the judgment and order dated 22th July, 1993 passed by the learned Single Judge of this Court in Civil Rule No. 162/93 on the main ground that the present Petitioner had been transferred from a particular place of posting to Anr. particular place of posting where there is no post of Chief Inspector of Food at Chailengta Sub-Divisional Headquarter of Longtherai Sub-Division. In the instant case, it is not a case of transfer and posting of the present writ Petitioner to Kailashahar where there is no post of Sub-Divisional Controller (Food). Apart from it, there is no even a whispering either in the writ petition or in the reply re-joinder affidavit so far available on record about the statement and allegation of mala fide specifying the officer or officers or official or authority to whom the allegation was attributed and as such the Court while exercising its power of judicial review in such matters relating to transfer made by the competent authority for administrative reasons or in the interest of public does not interfere with the related transfer orders and the Court can not sit or to act as an appellate authority and cannot substitute its own opinion and decision to the opinion and decision so far arrived by the competent authority. Over and above, in the absence of prima facie material to establish mala fides of the transfer order Court generally does not interefere with such transfer order because of the fact that nature of evidence to establish mala fides of, held, has to be strong and convincing. At this stage, I hereby recall two decisions of the Apex Court rendered in Union of India and Ors., Appellants v. Ganesh Dass Singh, Respondent reported in Union of India and Ors. v. Ganesh Dass Singh . and in a case between State of U.P. and Anr., Appellants v. V.N. Prasad (Dr.), Respondent reported in State of Uttar Pradesh v. Dr. D.N. Prasad On this issue of transfer, this Court had already settled the law. One of the old decisions of this Court is hereby placed on record, that is the judgment rendered by this Court in a case between Shri Narayan Bhattacharjee, Petitioner v. The State of Tripura and Ors., Respondents reported in (1988) 2 GLR 247 where in this Court settled and summerized the issue as hereunder--

(a) The Government or its functionaries have power to transfer its employees employed in a transferable post as transfer is an incident of service to meet the exigencies of the administration. No right is conferred on a government servant for being posted at a specified place.

(b) The authorities in-charge of an employee are the sole judges about the necessity or desirability of such transfer as they have to decide how to distribute and utilise the services of their employees. The provision of transfer is intended to check creation of vested interest, nepotism and corruption.

(c) This power of transfer, however, should be exercised only bonafide and reasonably and in public interest. If any transfer of an employee is made on extraneous consideration or for achieving an alien purpose or an oblique motive it would amount to malafide and colourable exercise of power. A transfer is malafide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in exigencies of service.

(d) In case a transfer order is malafide or (sic) oblique motive, such as by way of punishment or for collateral reasons the writ Court can interfere with the orders of transfer.

By applying these established principles of law and also considering the facts and circumstances of the case. I am of the view that there is no acceptable material in other words, no positive evidence for making out a case of malafide in the instant case. The authority concerned, in my considered view, duly examined and considered the case of the Petitioner properly and made a reasoned order of transfer of the writ Petitioner as in Annexure-14 to the writ petition.

It is also well settled that holder of a transferable post cannot insist on being posted at a particular place of his choice. Ref: Chief General Manager (Telecom), N.E. Telecom Circle and another Vs. Rajendra Ch. Bhattacharjee and others, . Courts should not interefere with transfer orders unless the transfer orders are made in violation of any statutory rules. Even if it is violative, the Courts ordinarily should not interfere with it and the affected party should approach the authority Ref: Mrs. Shilpi Bose and others Vs. State of Bihar and others, The Courts also cannot go into the question of relative hardship in the matter of transfer Ref: State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others, and apart from it, expediency of transfer cannot be subjected to judicial review Ref: State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others,

For the reasons, observations and discussions made above, this writ petition is devoid of merit and accordingly it is dismissed but no costs.

Despite the disposal of the writ petition I am constrained to make the following observations and order:

Dismissal of this case shall not stand on the way of the Respondents to re-examine and re-consider the case of the writ Petitioner in the matter of his transfer and posting for which the Petitioner is at liberty to file a fresh representation in the matter and the Respondents/competent authority shall examine and consider the same under their wisdom. This Court hope and trust that if such representation is filed, the appropriate authority shall dispose of such representation as early as possible preferably within a month from the date of receipt of such representation. It is also made clear that the Petitioner should report and join in his new place of posting at Kailashahar, North Tripura immediately.