Ranu Ranjan Roy vs State of Assam and Others

S.N. Phukan, J.—In this petition under Article 226 of the Constitution the writ Petitioner Ranu Ranjan Roy has assailed the order of transfer dated 14.6.93 (Annexure -D) issued by the Suite Government transferring the writ Petitioner from Mangaldai to Udalguri and transferring Sri Md. Abdul Hadi, Respondent No. 5 from Udalguri to Mangaldai. Both the officers are holding the post of Sub-Divisional Agricultural Officer. It has been alleged that the transfer has been made not in the public interest, but in the interest of the Minister-in-charge. According to the writ Petitioner Minister of State of the Department objected to the transfer on the ground that the writ Petitioner has not completed 3 years of service at Mangaldai, It has been alleged that the transfer order was malafide, improper and was passed in violation of the office Memorandum of the State Govt. dated 26.5.93 and also policy of transfer.

In the counter filed on behalf of the State Government, all the allegations made in the writ petition has been denied. According to Respondents, the State Government received letters which would show that continuing the Respondent No. 5 would be a security problem of the said officer and therefore, his transfer was essential. As the process of revision of electoral roll was in progress. State Government did not want to transfer both the officer out-side the District. The allegation of the writ Petitioner that the Respondent No. 5 is working at Mangaldai for about 10/12 years has also been denied and so also the fact that Mangaldai is his Own district. In the counter it has been stated that the home district of Respondent No. 5 is Sonitpur. It has also been stated in the counter that the writ Petitioner except for a brief period in 1985 was working in his home district for 7 years, The Director of Agriculture also suggested transfer of Respondent No. 5 from Udalguri due to security reason.

In the counter affidavit filed by Respondent No. 5 all the allegations have been denied including the allegation that through political influence he managed to get the transfer order from Udalguri to Mangaldai.

Heard Mr. B.K. Das, learned Counsel for the writ Petitioner, Mr. N.M. Lahiri, learned Counsel for the Respondent No. 5 and Mr. S.A. Laskar, learned Government Advocate. Also heard Mr. Sk. Chand Mohammad.

It is settled law that transfer is an incident of public service and the transferring authority has a wide discretion in this matter. The concerned authority is best judge to decide how to utilise the services of the public servant. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the court cannot interfere with it. If guidelines are issued regarding policy of transfer, these guidelines do not confer upon the Government employee a legally enforceable right, However, it is expected that the transferring authority must keep in mind such guidelines and also has to consider any representation made by any government employee in respect of his transfer, giving due regard to the exigencies of administration. (See Union of India and Others Vs. S.L. Abbas,

The records have been produced before this Court. The office memorandum dated 25.5.93 is available at Annexure -A to the writ petition. By this order, the State government imposed a bar on transfer and posting of government servant, but it was also provided that in case of real emergency, the matter may be referred to the Chief Minister with a note indicating justification for deviation of this order. From the office file more particularly from note sheets, I find that in this case approval of the Chief Minister was obtained. Therefore, there is no violation of the above office memorandum.

The transfer policy is at Annexure -B to the writ petition. From the counter affidavit filed on behalf of the official Respondents, and also from the record, I find that the transfer of Respondent No. 5 from Udalguri was necessary for his personal security as there was a threat to his life by the extremists. This is not disputed even at the Bar. According to the transfer policy, a person should not normally be transferred before completion of 3 years and though there was a ban on transfer as stated above, the above policy and the ban is not applicable to the case of Respondent No. 5 as mere was a threat to his life. Therefore, he was rightly transferred by the State Government from Udalguri.

Now the question is whether his posting at Mangaldai by disturbing the writ Petitioner was a malafide action as alleged. According to Mr. Das, the Director of Agriculture suggested that instead of disturbing the writ Petitioner, one Nakul Ch. Borbora who is working as Sub-Divisional Agriculture Officer at Balijan may be transferred to Udalguri and the Respondent No. 5 may be posted in his place. The contention of Mr. Das is correct as I find from record. Mr. Das has further submitted that by not accepting the suggestion of the Director of Agriculture and disturbing the writ Petitioner would itself show that the action was malafide. I have perused the note sheets from where I find that Minister concerned recorded that as process of revision of electoral roll was going on Respondent No. 5 may be transferred to Mangaldai in place of writ Petitioner which was approved by the Chief Minister. It has been clarified in the counter filed on behalf of official Respondents that this was done as Mangaldai and Udalguri are in the same District. In other words, the writ Petitioner was disturbed not to avoid dislocation of work of revision of electoral rolls.

As admittedly the Respondent No. 5 has to be transferred, in his place another person has to be posted. From the record as well as Affidavit, I find that the writ Petitioner was transferred as the State Government did not want to disturb any officer from a different District. This reason cannot be said to be a malafide as alleged by the writ Petitioner. This is purely matter of discretion of the authority and I do not find any scope to interfere by exercising writ jurisdiction.

Drawing attention of this Court, to W.T. message dated 19.6.93 sent by the Deputy Commissioner, Mangaldai to the State Government Mr. Das has urged that as the writ Petitioner was working as Assistant Electoral Registration Officer and as the Deputy Commissioner wanted that the writ Petitioner may not be released till 28.9.93, the action of the State Government is bad in law. Mr. Das has further urged mat as the writ Petitioner was appointed as Assistant Electoral Registration Officer, it is deemed that he was on deputation to the Election Commission and as such he cannot be transferred without approval of the Election Commission. Though it is a matter of the State Government and the Election Commission, this Court wanted to know the present position form the Senior Govt. Advocate and the State Government has sent a letter dated 9.12.93 to the Senior Govt. Advocate which has been placed before this Court explaining the position. In the letter I find that the W.T. Message of the Deputy Commissioner was duly considered and the State Government asked the Deputy Commissioner to release the writ Petitioner from the responsibility of the Assistant Electoral Registration Officer and the reason was the personal security of Respondent No. 5. Whether this action of the State Government is correct or not it is not necessary for this Court to go into the matter. In the said letter it has also been stated that the Deputy Commissioner informed the State Government that the writ Petitioner can be released as he has not been engaged in any election work in view of the court case. Thus it appears that the plea of the writ Petitioner of being engaged in election duty is not tenable at present.

Mr. Das has placed reliance in a decision of a Division Bench of this Court in Civil Rule No. 570/93. The said decision is not applicable to the case in hand as from the facts I find that minister concerned without any material on record himself recorded about the personal difficulties of the officer in question which is not so in the case in hand.

As personal security is involved, Respondent No. 5 has to be transferred and therefore, the action of the State Government in transferring him form Udalguri and posting him at Mangaldai cannot be said to be illegal or arbitrary. But I find from record that this officer is working for long time, of course in different capacity at Mangaldai. Therefore, when his next transfer is due the State Government may also keep this fact in view.

Regarding transfer of the writ Petitioner to Udalguri Mr. Laskar, learned Sr. Govt. Advocate has assured that if the writ Petitioner has personal or security problems for posting him at Udalguri, it shall be duly considered by the State Government. Therefore, I direct that the writ Petitioner may approach the State Government with a proper representation within a week from today if so advised and it shall be duly considered by the State Govt. as early as possible. The joining time of the writ Petitioner shall be extended by the State Government during the above period provided the representation is filed as stated above.

With the above directions and observation, the writ petition is disposed of No costs.