Biren Chandra Das vs State of Assam and Others

V.K. Khanna, C.J.—The present appeal has been filed against the judgment of the learned Single Judge in Civil Rule No. 903/94 dated 13th May, 1994.

The Petitioner/Appellant was appointed as Hostel Superintendent-cum-Physical Training Instructor and posted at Industrial Training Institute (ITI), Sinkona, district Cachar. Thereafter, he was transferred to various places in different years and is now posted at Gauhati, in the district of Kamrup, By the impugned order dated 1.5-2-94, the Petitioner has been transferred to Regional Industrial Training Institute, Tinsukia by Respondent No. 2 and by the same order, Respondent No. 4 has been transferred from Tinsukia to Gauhati in place of Appellant/Petitioner. It is this order of transfer which was challenged by the Petitioner by filing Civil Rule No. 903/94 on the ground that the transfer order was in violation of the Government order/circular issued from time to time in connection with transfer of the employees and also that the Petitioner could not be transferred as his wife was also serving at Gauhati in the district of Kamrup and in view of the specific circular of the Government that in case the husband and wife are in Government service, they will be retained in the same place as far as possible. The learned Single Judge negotiated the contentions raised by the Petitioner/Appellant and according to the findings the transfer order is not arbitrary and malafide and the Petitioner/Appellant as a Government employee is bound to comply with the order of transfer.

Learned Counsel for the Petitioner/Appellant has challenged before us that the order is arbitrary, inasmuch, as the same has been passed to accommodate the Respondent No. 4, even though there was a ban on transfer during the period of passing the impugned order of transfer in so far as the Petitioner/Appellant was concerned. It has also been strenuously urged that before passing the transfer order, the matter should have been referred to the Chief Minister under the ban circular letter referred to above

We have heard Mr. D.P. Challha, learned Government Advocate appearing for the State of Assam and counsel representing the Appellant and we propose to dispose of the same finally at the admission stage.

The first question which arises for consideration before us is whether the circulars/orders which have been issued from lime to time by the State Government give any legally enforceable right to the Petitioner/Appellant or they are only guidelines for the competent authorities, while the transfers are being made.

The aforesaid precise controversy came up before the Apex Court in the Case of Union of India and Ors. v. S.L. Abbas (1993) 4 Supreme Court Cases 357. It. was held that-

Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of any statutory provisions, the court cannot interfere with it, While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right.

(Emphasis supplied)

A Division Bench of this Court in the case of Shri Narayan Bhattacharjee v. The State of Tripura and Ors. (1988) 2 GLR 247 has also held-

Before us a catena of decisions have been placed regarding power of the Writ Court in interfering with the orders of transfer passed by a competent authority.

We may summarise as follows:

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 and Government servant for being posted at a specified place.

(Emphasis supplied)

b) The authorities in-charge of an employee are the solo 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 i'' 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 passed in oblique motive, such as by way of punishment or for collateral reasons the Writ. Court can Interfere with the orders of transfer.

Learned Counsel for the Petitioner/Appellant has relied on the decision of the learned Single Judge of this Court in the Case of Nupur Sarma v. State of Assam and Ors. (1994) 1 GLR 303 and urged that the learned Single Judge in the aforesaid ease has quashed the transfer order on the ground that by a circular, transfer of employee was totally banned for the period from 1-6-93 to 31-3-94 by the Government of Assam and in case of emergency matter has to be referred to the Chief Minister justifying the necessity of transfer. It was held that as there was no emergent situation indicated in the note put up by the Commissioner, Education Department for approval of Chief Minister, Order transfer was liable to be set aside.

We are, however, of the opinion that in view of law laid down by the Apex Court in Union of India v. S.L. Abbas (Supra) and also by the Division Bench of this Court in the case of Shri Narayan Bhattacharjee v. The State of Tripura and Ors. (Supra) the law is absolutely clear that the circular which the Government has issued for the purpose of ban for transfer cannot give any vested legal right to an employee on the basis of aforesaid circular, Transfer of an employee from one place to another is a condition of service and we are not satisfied that power to transfer if exercised bonafide will amount to inflicting punishment on an employee. The guidelines which are issued from lime to time are only for the purpose of exercise of its own power of transfer and as laid down by the Apex Court does not give any legal right to an employee. We, therefore, do not agree with views expressed by the learned Single Judge in the case Nupur Sarma (Supra). However, the court will be entitled to set aside the transfer order when it has been passed malafide, arbitrary on the violation of any specific statutory provision.

In the present case, however, the Petitioner/Appellant has not been able to show us that the power exercised by the State Government is either malafide or in violation of any statutory rules. If that be so, in our opinion the decision of the learned Single Judge requires no interference in this appeal.

Before parting, it may be observed that it has also been argued on behalf of the Petitioner/Appellant that ha should not have been transferred as he has an ailing wife who is posted at Gauhati in the district of Kamrup. If that be so, the proper course open to the Appellant is to move a representation before the competent authority and in case such a representation is made, the authority will dispose of the same at the earliest.

For the reasons stated above, present appeal is dismissed subject to the observations made above Stay order granted by this Court shall stand discharged. However, looking to the facts and circumstances of the case, the parties shall bear their own costs.