Shri Arup Kumar Sarmah vs North Eastern Electric Power Corporation Ltd.

By way of this intra-court appeal, the appellant (writ petitioner) seeks to question the order dated 28.03.2017 as passed in WP (C) No.321 of

2016 whereby, the learned Single Judge of this Court has declined to interfere in the order of his transfer; and has dismissed the writ petition while

giving one month''s time for joining at the new place of posting.

The relevant background aspects of the matter are that by an order dated 04.10.2016, the appellant, holding the post of General Manager

(E/M) IT with the respondent-corporation and posted at Shillong, was ordered to be transferred to Ranganadi HEP, Yazali in the State of

Arunachal Pradesh as the Head of Project. After having received the transfer order, the appellant made a representation on 13.10.2016 to the

concerned authorities seeking re-consideration of his transfer, particularly with reference to his multiple ailments/problems. The appellant made a

request in the representation that he may be given the posting at a suitable place having requisite medical facilities for his regular follow up and

where he could avoid heavy exertion, as advised by a referral hospital of the respondent-corporation.

The record makes out that before any decision was taken by the respondents on the said representation, the appellant preferred the said writ

petition in this Court, being WP (C) No.321 of 2016, that was initially considered on 26.10.2016, when the learned counsel for the respondent

was granted time to complete his instructions. Thereafter, on 08.11.2016, it was given out that the authorities of the respondent-corporation were

examining the matter of the appellant and some alteration in his transfer order might be made so as to provide him a place of posting connected

with medical facilities. It was, however, pointed out on behalf of the appellant that the authorities concerned had issued the relieving order on

07.11.2016. Having regard to the circumstances of case, the operation and effect of relieving order was stayed and, accordingly, the appellant

continued to serve at Shillong. Thereafter, it was given out on behalf of the respondents that though the apprehension of appellant about lack of

medical facilities at Ranganadi HEP, Yazali was absolutely unfounded but, the competent authority, in order to reduce the mental stress of the

appellant, had decided that he may be allowed to function from Hoz instead of Yazali, while considering the availability of the nearest empanelled

hospital (NIBA Hospital, Naharlagun) and also the availability of medical officers of the respondent-corporation round-the-clock.

Ultimately, the said writ petition was finally considered and decided by the learned Single by way of the impugned order dated 28.03.2017. The

learned Single Judge took note of the facts that the appellant had remained posted at Shillong office for almost 18 years 7 months. The learned

Single Judge also took note of the submissions on behalf of the appellant that though he was ready to go on transfer but the proposed place of

posting was not having medical facilities. Per contra, it was submitted on behalf of the respondent-corporation that the medical facilities in relation

to the ailment of the appellant were not available even at Shillong and for that matter, the respondent-corporation had been arranging for his

treatment outside the State while bearing the expenses, as and when necessary. It was also given out before the learned Single Judge that the

respondent-corporation would look after the treatment of the appellant and shall send him for treatment while shouldering the expenses as per the

rules.

The learned Single Judge observed that the transfer is an incidence of service and when the respondent-corporation was ready to provide

medical facilities as and when necessary, there was no reason for interference. The learned Single Judge, therefore, concluded on the writ petition,

while taking note of the submissions of the learned counsel for the respondent, in the following:-

Learned Sr. counsel for the respondents further submitted that even if he is posted and joined in the present place of posting as mentioned in

paragraph 10, if required for him to go for treatment, the Corporation will definitely look into the matter and will send him where the treatment

facilities is available bearing the expenses as per the Corporation rules.

After hearing the submissions advanced by the learned counsels for the parties, I am of the considered view that transfer is a part and parcel of

service condition. Therefore, one cannot deny the transfer throughout the service and since the Corporation is ready to provide the medical

facilities as and when necessary where specialized treatment is available, I do not see any reason as to why this petition should be admitted.

Accordingly, the stay order dated 08-11-2016 and 22-11-2016 are hereby vacated. Petitioner to join at new place of posting within one month

from the date of this order with condition that in case he falls sick, the Corporation should make necessary arrangement for his proper treatment.

With this, the writ petition is dismissed and stands disposed of.

Seeking to question the order aforesaid, learned counsel for the appellant has strenuously argued that the appellant''s requirement of specialized

treatment has not been given due and adequate consideration by the authorities concerned. Learned counsel has particularly referred to the so

called facts gathered after dismissal of the writ petition to suggest that the medical facilities requisite for the appellant are not available at the

proposed place of posting. These submissions have been made with reference to the facts allegedly gathered, from the authority of NIBA Hospital

and from the Deputy Director of Health Services, Government of Arunachal Pradesh, after dismissal of the writ petition though the related

documents otherwise do not form the part on record.

Learned counsel has strenuously argued that when the submissions made on behalf of the appellant as regards his medical requirements have not

been duly taken into consideration, the disposal of his representation cannot be said to be justified and the matter calls for interference. Learned

counsel would also argue that an order of transfer, even if administrative in nature, is required to be supported by reasons and in the absence of

reasons, cannot be sustained. Learned counsel has even attempted to submit that the learned Single Judge has issued a mandate for the appellant

to join at the place of posting though, such a mandate could not have been given in the writ petition filed by the appellant. Learned counsel has

referred to and relied upon the decision of the Hon''ble Supreme Court in the case of Somesh Tiwari v. Union of India & ors: (2009) 2 SCC 592

and that of the Hon''ble Gauhati High Court in the case of Andrew Banrilang Umdor v. State of Meghalaya & ors: 2007 (4) GLT 712 and State of

Meghalaya & ors v. Maxwell Momin: 2003 (3) GLR 594. Learned counsel has also referred to some of the passages in the decisions which have

been noticed/reproduced in the case of Andrew Banrilang Umdor (supra).

Per contra, learned counsel for the respondent has argued that the appellant has not been able to make out any case for interference in the

transfer order and else, after his representation, the matter was duly examined and the appellant was adjusted at an appropriate place so as to co-

relate with his medical requirements. Learned counsel has also referred to the specific stand of the respondent-corporation that the medical

requirements of the appellant are otherwise being looked after by the Corporation in accordance with the rules and even the expenses of his

treatment outside the State are borne by the Corporation. Learned counsel has also submitted that the appellant has not joined at the place of

posting and he is not entitled to avoid his transfer by simply not joining and for this conduct alone, he is not entitled to any relief. Learned counsel

has referred to the decisions of the Hon''ble Supreme Court in the case of Gujarat Electricity Board & anr v. Atmaram Sungomal Poshani: (1989)

2 SCC 602 and Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey & ors: (2004) 12 SCC 299.

Having given thoughtful consideration to the rival submissions and having examined the record, we find no reason to consider any interference in

this matter.

It remains trite that transfer is an incidence of service and an order of transfer is not ordinarily interfered with by the Court unless the same is

shown either suffering from mala fide or being violative of any statutory provisions or the operative guidelines or being wholly unauthorized. The

present one is not the case where the transfer order is sought to be challenged on the ground of being unauthorized or being violative of any

statutory provisions or any prescribed rules/guidelines governing the transfer. It is also difficult to find if the appellant is questioning the order of

transfer as being mala fide.

The only ground on which the appellant seeks interference in the order of transfer is his personal difficulty and medical requirements.

Obviously, in that regard, the appellant submitted his representation and the same was duly considered by the respondent-corporation; and his

earlier proposed place of posting at Yazali was changed to Hoz. Moreover, it has been categorically stated on behalf of the respondent-

corporation that the medical requirements of the appellant are being taken care of by the Corporation itself and shall be taken care of even at the

new place of posting. It has been pointed out by the respondent-corporation that in fact, the specialized treatments as sought to be referred by the

appellant are not available even at Shillong but, the Corporation had been making necessary arrangement of his treatment even outside the State. In

an overall comprehension of the facts situation of the present case, it cannot be said that the relevant facts and factors have not been duly taken

into consideration by the authorities concerned.

Apart that the respondent-corporation has shown willingness to make necessary arrangements for the medical requirements of the appellant, it

has also been pointed out that the appellant is holding a responsible post of General Manager and with his qualification as Civil Engineer, his

services are required for the dam construction project. It is also pointed out that almost all the projects of the respondent-corporation are located

in remote areas of North- Eastern Region; and several of its employees are regularly working in such areas and the Corporation is duly looking

after their welfare. In the totality of circumstances, we are unable to find it to be a case of mala fide or arbitrary exercise of power and, therefore,

no case of interference is made out.

The decisions referred to by the learned counsel for the appellant, proceeding on their own facts, have no application to the facts of the present

case and the basic principles therefrom rather operate against the appellant. In the case Somesh Tiwari (supra), the Hon''ble Supreme Court dealt

with an entirely different scenario where the concerned incumbent was proposed to be transferred on the basis of complaints. In the case of

Maxwell Momin (supra), the Division Bench of the Gauhati High Court has not decided on any legal issue and in fact, it was given out before the

Court that the exigency of business as existing at the time of passing of the transfer order about a year back may not be existing; and in the given

circumstances, it was left open for the respondent to pass a fresh order of transfer, if necessary, in the exigency of business and for administrative

reasons. The learned Single Judge of the Gauhati High Court in Andrew Banrilang Umdor (supra) though has reproduced several of the passages

of different decisions of the Hon''ble Supreme Court, but the fact of the matter remains that the transfer order therein was challenged essentially on

the ground of mala file inasmuch it was alleged that the same was issued for the purpose of accommodating the respondent No.4 and the writ

petitioner was transferred before completion of fixed tenure of three years as provided in the transfer policy; and rather, it had been a case of

multiple transfer orders in quick succession. Such a factual scenario has hardly any correlation with the present case. On the given set of facts and

circumstances of the present case, we are unable to term the transfer order as being mala fide or suffering from any arbitrariness.

The submissions that the learned Single Judge has given any mandate cannot be said to be of correct interpretation of the order impugned. In

fact, the learned Single Judge has rather extended another indulgence to the appellant by giving him one month''s extra time to join at the new place

of posting. In the order impugned, the mandate, if any, is for the respondent-corporation to make necessary arrangement for the treatment of the

appellant.

Learned counsel for the respondent-corporation has, with reference to the decision of the Hon''ble Supreme Court in the case of Gujarat

Electricity Board (supra) attempted to submit that the appellant has not joined at the place of posting after dismissal of the writ petition and the

appeal deserves no consideration. Learned counsel for the appellant would, however, submit that this appeal has come up for consideration today

because of non-availability of Bench earlier and in the given circumstances, the appellant has not joined lest this appeal was rendered infructuous.

In regard to his joining, we have only taken note of the submissions of the learned counsel for the parties but would not make any other

comment except observing that if the appellant fails to join, the consequences would follow, in accordance with law.

In an overall analysis, we are satisfied that the learned Single Judge has taken into consideration the relevant and material facts and has rightly

dismissed the writ petition. The order impugned calls for no interference. In view of the above, the appeal fails and is dismissed.