Tapash Ranjan Bhattacharjee vs State of Assam and Others

P.P. Naolekar, CJ

Both the writ appeals Were filed challenging the impugned common judgment dated November 28, 2002 passed in WP(C) Nos. 6476 and 6477 of 2002, whereunder the appellants as petitioners challenged the order of transfer dated 23.9.2002 transferring the private respondents, viz., M Rahman and Manik Chandra Gogoi, from Nagaon to Guwahati in place of the appellants. By the aforesaid judgment the learned Single Judge dismissed both the writ petitions. Hence the present appeals.

The order of transfer was challenged on the ground that the transfers have been issued at the behest of the Minister of the Department and without prior approval of the Chief Minister, which is contrary to the policy laid down, whereunder the officers should not be transferred from the place of posting before completion of three years in a place and if such transfer is to be made it should be on the basis of proper justification and grounds recorded in writing and after getting the approval of the Chief Minister. The learned Single Judge has perused the relevant record of transfer in original, which has been produced by the Government Advocate in the Court and also examined relevant files in which the impugned orders of transfer were made.

The law on the matter of transfer has been laid down by the Apex Court in various judgments and it has been consistently held and reaffirmed including in a recent case of National Hydroelectric Power Corporation Ltd. v. Bhagwan (2002) 8 SCC 574. The dictum laid down by the Apex Court is to the effect that the prerogative of transfer lies essentially with the employer and the limited power available to the Writ Court to interfere with such orders would come into play only if the transfer is made in mala fide and/or in colourable exercise of power or is contrary to any statutory provision of professed norm. Except in the aforesaid situation, it has been consistently held by the Supreme Court that the validity of the transfer of an incumbent in public office should be left untouched and the wisdom of the authority should be allowed to prevail.

It is a well known fact that transfer is an incidence of service and no Government servant can claim as a matter of right to remain at one place of posting. The authority is competent to transfer him in the public interest and in the administrative exigencies. The transfer so affected could be challenged only on the grounds mentioned in the judgment of the Apex Court, mentioned above. The learned Single Judge has examined in thread bare the reasons for the transfer of the private respondents from Nagaon to Guwahati in place of the petitioners/appellants and we need not reproduce those reasons, which have weigh with the authority for issuing the order of transfer. The learned Single Judge has also recorded the finding that the appellants, who have been transferred from Guwahati to Nagaon are the persons, who had longest and second longest tenure at Guwahati, and, therefore, it cannot be said that the petitioners/appellants have been hand-picked for being moved out of Guwahati.

The learned counsel appearing for the appellants has placed reliance on a judgment of a learned Single Judge of this Court in Ramen Talukdar Vs. State of Assam and Others, and also a decision of the Division Bench of this Court in Ramzan Ali Ahmed Vs. Taiyab ali ahmed and Others, . In both these judgments the principles enunciated by the Supreme Court have been reiterated. It is said that the matter of transfer is the exclusive prerogative of the competent authority and the Court shall not normally interfere with it unless the order is made in violation of the statutory provisions or is visited with mala fide. The Division Bench has set aside the order of transfer on the ground that it was tainted with male fide and the power of transfer has been exercised by the competent authority in colourable exercise of power.

In the present case, on the facts found by the learned Single Judge has rightly reached to the conclusion that the order of transfer was not vitiated by any of the infirmities. We do not find any reason to interfere with the findings arrived at by the learned Single Judge.

The learned Single Judge has also found that although the transfer of the petitioners/appellants has been affected within three years, but they were for the reasons, which are justiciable and the order of transfer was approved by the Chief Minister, although not prior to the order of transfer is being issued, but on a subsequent date. The administrative instructions issued on the policy, laid down by the Government in the matter of transfer are the guiding principles for effecting the transfers and as far as possible the Government has to adhere to the policy laid down by it and if the Government wants to deviate from the policy it has to give a cogent reason for deviating from the policy decision. But it would not mean that the policy decision taken by the Government is mandatory in nature, in the sense that all aspects of policy has to be followed meticulously and non-compliance of any of the term of the policy will vitiate the transfer order. It is for the Court to adjudicate and judge whether the transfer dehors any of the terms of the policy can be termed as malafide or colourable exercise of power on the part of the Government or such order of transfer is being issued over riding the policy to give extra favour to a particular individual or the decision is taken in public interest and in the exigencies of business and to decide the matter in its own merit.

For the reasons aforesaid, both the appeals are without any substances and are dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.