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Judgment
The Court proceedings have been conducted through online court proceeding services due to the prevailing Covid-19 pandemic situation in the
State.
Heard Mr. R. Mazumdar, learned counsel for the petitioner and Mr. P. Medhi, learned Central Government Counsel (CGC) appearing for all the
respondents.
The writ petition has been preferred under Article 226 of the Constitution of India assailing a transfer order dated 09.04.2021 issued by the
respondent authorities, whereby, the petitioner, a Hindi Teacher, has been transferred from 17 Assam Rifles, Lokra, Assam to 18 Assam Rifles,
Chandel, Manipur.
Mr. Mazumdar, learned counsel for the petitioner has submitted that both the petitioner and his wife are teachers, serving under the respondent
authorities. Both have been posted at 17 Assam Rifles, Lokra, Assam. They have a child, born on 11.03.2012, who is suffering from Down Syndrome
associated with deficit hearing impairment (40%) with mental retardation and deficit in intellectual functioning. Referring to the impugned order dated
09.04.2021, Mr. Mazumdar has submitted that the said order is a routine/rotational transfer order whereby a large number of teachers have been
transferred from one location to another location. He has further highlighted the facts that the petitioner is a Hindi Teacher and the person who would
be relieving him, is a Junior Teacher. He has further referred to the Communication dated 15.02.1991 (Annexure-7), the Office Memorandum dated
18.02.2000 (Annexure-8), the Office Memorandum dated 06.06.2014 (Annexure-9), the Record Office Instruction no. 01/2016 dated 08.11.2016
(Annexure-12), the Office Memorandum dated 01.09.2017 (Annexure-13) and Office Memorandum dated 08.10.2018 (Annexure-14) to contend that
before effecting any routine/rotational transfer, the authorities ought to have taken into consideration the fact that if the husband and the wife are
working in the same department, the cases of both the spouses are to be generally considered for posting them together to such stations where
required level of the facilities are available to enable them to lead a normal family life and to look after the welfare of their children till the children
attain 18 years of age. He has further submitted that according to this Office Memoranda (supra), the authority effecting the transfer is also required
to take a view regarding exemption of a Government employee who is a care-giver of a dependent child with disability, from routine/rotational
transfer. When the petitioner after receipt of the transfer order dated 09.04.2021, had preferred a representation before the competent authority,
through proper channel, on 15.04.2021 highlighting the difficulties likely to be faced by him and his spouse because of the impugned order of transfer,
the same was not considered at all by the competent authority despite a favourable recommendation in that regard by the Commandant, 17 Assam
Rifles, Assam while forwarding the said representation of the petitioner. Referring to the communication dated 26.06.2021, Mr. Mazumdar has been
submitted that the said representation was purportedly not considered by the competent authority.
Mr. Medhi has submitted that there was no mala fide or violation of any statutory provision in effecting the transfer order. By the order dated
09.04.2021, a number of Senior Teachers including the petitioner, had been transferred from one location to another location due to completion of the
normal tenure at those particular locations. As such, it is not open to the petitioner to raise any grievance in respect of the impugned transfer order. He
has further submitted that the respondent authorities had taken note of the disabled/dependent condition of the child of the petitioner and his wife and
accordingly, the tenure of the petitioner’s wife had been extended for a further period of 1 (one) year.
I have heard the learned counsel for the parties and have also perused the materials on record. 7. Transfer of an employee in a transferable service
is a necessary incidence in the service career of such an employee. It is well settled that effecting transfer of employees is the prerogative of the
competent authority and the Court does not normally interfere with an order of transfer except when the transfer order is shown to be an outcome of
mala fide exercise of power, or in violation of any statutory provision, or have been passed by an authority not competent to pass such an order of
transfer. It is also settled that who should be transferred where, is a matter for the competent authority to decide. There are different guidelines
formulated by the Government highlighting different factors required to be considered while affecting transfer. While ordering a transfer, the
competent authority is required to keep in mind such guidelines issued by the Government, from time to time, on the subject. Similarly, if a person
makes any representation with respect to his transfer, the competent authority must consider the same having regard to the guidelines formulated in
that regard and also to the exigencies of administration.
In the case in hand, the petitioner has annexed a number of Office Memoranda and also Record Office Instruction, as have been indicated above.
From the Record Office Instruction (supra), it transpires that if the husband and the wife are working in the same department, posting of both spouses
together at the same station where required level of facilities are available, is to be considered to enable them to lead a normal family life and to look
after the welfare of their children especially till the children attain 18 years of age. The Office Memorandum dated 06.06.2014 has formulated that
Government employee who has disabled child, serve as the main care giver of such child and thus, any displacement of such Government employee
will have a bearing on the systematic rehabilitation of the disabled child since the new environment/set up could prove to be a hindrance for the
rehabilitation process of the child. In such situation, a Government servant who is also a care giver of a disabled child, may be exempted from the
routine exercise of transfer/rotational transfer subject to the administrative constrains. The subsequent guidelines have also highlighted the same
position. The Office Memorandum dated 08.10.2018 is on the subject : “Exemption from the routine exercise of transfer/rotational transferâ€. It
mentions that a Government employee who is a care-giver of dependent daughter/son/parents/spouse/brother/sister with Specified Disability, as
certified by the certifying authority as a person with Benchmark Disability as defined under Section 2(r) of the Rights of Persons with Disabilities Act,
2016 may be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints.
It appears from the documents annexed to this writ petition that the child of the petitioner, born on 11.03.2012, is suffering from Down Syndrome
associated with deficit hearing impairment (40%) with mental retardation and deficit in intellectual functioning. The petitioner and his wife are treating
their child at different medical institutions including Lokpriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur and Composite Regional
Centre (CRC), Guwahati. In the letter dated 20.04.2021, the Commandant, 17 Battalion, Assam Rifles while forwarding the representation of the
petitioner, had also opined that the child of the petitioner required constant medication and supervision of the parents. He had also recommended for
extension of the tenure of the petitioner for a further period of 1 (one) year to look after their mentally retarded son.
It does not transpire from a perusal of the communication dated 26.06.2021 that the competent authority had considered the representation
submitted by the petitioner on 14.04.2021 by keeping the guidelines, mentioned above, in purview as it has not assigned any reason therein. It simply
recorded that extension of one-year tenure in respect of the petitioner was not considered. It does not prima facie appear from the said
communication that there was any application of mind on the part of the competent authority when it received the representation as it simply informed
that the prayer for extension was not considered. When an employee makes a representation against any order of transfer, the least that is expected
from the competent authority is application of mind to the grievances expressed by the employee before making the decision on such representation.
Application of mind is best demonstrated if the authority making the decision, records the reasons which have led the authority to give the decision in
question. Absence of reasons in the order dated 26.06.2021 passed by the competent authority, in the case in hand, is suggestive of a situation
indicating non application of mind.
In view of the observations made above, this Court deems it appropriate to dispose of this writ petition with a direction to the competent authority
to take representation filed by the petitioner on 14.04.2021 on board for re-consideration. While considering the representation, the competent authority
shall also take into account the official guidelines regarding exemption from routine exercise of transfer/rotational transfer, as have been formulated by
the Office Memoranda/Record Office Instruction (supra) by the Government (supra) and shall thereafter, dispose of the same by passing a speaking
order as expeditiously as possible, preferably within a period of 1 (one) month. The order so passed shall be communicated to the petitioner forthwith.
It is further observed that till the representation is disposed of by a speaking order, the order of transfer dated 09.04.2021 in so far as the petitioner is
concerned, shall not be given effect to.
With the observations made and directions given above, the writ petition stands disposed of.