Sentu Kumar Paul vs State Of Tripura And Ors

[1] Heard Mr. P.K. Paul, learned counsel appearing for the petitioner as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondents.

[2] The petitioner who is working as the Upper Division Clerk [UDC] in the office of the Deputy Registrar of Co-operative Societies, Sepahijala District, Bishalgarh will retire from the service on 31.01.2010 [afternoon] as is evident from the notice dated 16.02.2019 [Annexure-8 to the writ petition]. The petitioner has been transferred from his place of posting to the office of the Deputy Registrar, Co-operative Societies, Khowai, Tripura by the memorandum under No.F.6(39-T)/ ESTT/COOP/ 86(1)(PAD)/12257-331 dated 03.08.2019 [Annexure-3 to the writ petition].

[3] Mr. Pal, learned counsel appearing for the petitioner has contended that the State Government has adopted a policy vide the memorandum dated 21.08.1993 [Annexure-5 to the writ petition], whereby it has been provided as follows:

"The undersigned is directed to state that as a welfare measure, Government have decided that ordinarily in the last one year of service of a Government employee, the employee shall not be transferred except to a place of his choice.

All departments are requested to ensure that this decision is strictly complied with. " [Emphasis added]

According to Mr. Pal, learned counsel, the said transfer order has been made in violation of the said policy as contained in the memorandum dated 21.08.1993. Moreover, Mr. Pal, learned counsel has submitted that from the reply filed by the respondents it transpires that the relevant consideration of that policy has not been taken by the respondent No.2 while transferring the petitioner to a distant station, which is far away from his home district. Mr. Pal, learned counsel has further submitted that a person who is going on retirement on 31.01.2010 has been transferred at the fag end of his career when he is supposed to make all preparations for the retired life and to provide such space, the said policy was created.

[4] Mr. D. Sharma, learned Addl. G.A. appearing for the respondents has, in order to repel, stated that the petitioner does not have any right to challenge the order of transfer which has been made in the administrative exigencies as there is serious shortage of the employees in the office of the Deputy Registrar of Co-operative Societies, Khowai district. Mr. Sharma, learned Addl. G.A. has drawn attention of this court to Paras-14 & 15 of the reply where it has been averred that even that policy espoused in the memorandum dated 21.08.1993, provides that 'ordinarily' an employee cannot be transferred to a place except of his choice in the last one year of his/her service. This 'ordinarily' means that it is not an absolute bar. It has been asserted that there is acute shortage of staff and to fill that gap, the petitioner has been transferred only in the administrative exigency. The petitioner made a representation on 22.08.2019 and that representation was carefully considered, but the competent authority had declined to modify the transfer order. Mr. Sharma, learned Addl. G.A. in order to contend that except on breach of statutory rules and proved mala fide acting leading to the transfer, the transfer order cannot be challenged and even if challenged, the court should not interfere with. In support his contention, he has relied on a few decisions of the apex court in the State of U.P. and Ors. vs. Gobardhan Lal, reported in (2004) 11 SCC 402, where the apex court had occasion to hold as under:

"7. It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.

A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."

[5] In Mohd. Masood Ahmad vs. State of U.P. and Ors., reported in (2007) 8 SCC 150, the apex court had again revisited the law in respect of the transfer to hold that if the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders then only the discretionary jurisdiction under Article 226 shall be invoked.

[6] Similar law has been restated in Rajendra Singh and others vs. State of Uttar Pradesh and Ors., reported in (2009) 15 SCC 178, where the apex court has observed as under:

"6. On behalf of the State Government, it was submitted that although a complaint came to be received from one Radhey Lal against the Writ Petitioner but Ghaziabad-IV being an important Sub-District from the point of view of registration of deeds/instruments as well as revenue collection, the transfer of Writ Petitioner from Ghaziabad-IV to Hapur-II was done on administrative grounds. The State Government emphatically refuted the allegation of mala fides and denied that the order of transfer was stigmatic or punitive.

Respondent No. 5 filed a separate counter affidavit in opposition to the writ petition. He set up the plea that he has rich experience as Sub-Registrar having worked at places such as Allahabad, Kanpur, Varanasi and Ghaziabad. He stated that vigilance enquiry against him has been closed and his appeal against the adverse entry made in his service record in 2005 is pending and that pending disposal of that appeal, no effect has been given to the said adverse entry.

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In N.K. Singh v. Union of India & Ors.: (1994) 6 SCC 98, this Court reiterated that:

"6........the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision.‟

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As regards Respondent No. 5, the High Court considered the matter thus :

".................in our view, it is evident that the respondent No. 5 also can not be said to be an Officer having a better conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad and in this regard, it appears that I.G. (Stamps) did not give correct information to the Principal Secretary. However, it can not be held that the respondent No. 1 in passing order dated 31st July, 2007 has acted maliciously or for extraneous reasons amounting to malafide. Once the basic ground of challenge to the impugned order of transfer that the same is malicious in law falls, we do not find any reason to interfere with the impugned order of transfer, transferring the petitioner from Ghaziabad to Hapur.

It is not the case of petitioner that his transfer is contrary to rules or has been issued by an authority who is not competent. It is well settled that an order of transfer is amenable for judicial review on limited grounds namely it is contrary to rules or has been passed an incompetent authority or is a result of malafide. In view of admission on the part of the respondent No. 1 in his Counter Affidavit that the respondent No. 5 has been found guilty of serious misconduct for causing loss to the Government revenue by acting without jurisdiction and colluding evasion of stamp duty, in our view transfer of the respondent No. 5 to Ghaziabad can not be sustained in view of further admission on the part of the respondent No. 1 that the interest of department requires posting of an honest and efficient person at Ghaziabad."

[7] Mr. Sharma, learned Addl. G.A. has submitted that in the entire writ petition the petitioner has not alleged mala fide, violation of any statutory rules or has challenged the competence of the transferring authority. As such, this court shall not interfere with the transfer order as the transfer has been made in the exigencies of the service which is within the domain of the respondent No.2. Even the guidelines, as referred, are for guidance. It does not create any right in favour of the petitioner.

[8] After appreciating the submissions made by the learned counsel appearing for the parties, all the statements in the reply filed by the respondents have been appreciated. There no statement is found to the effect that before transferring the petitioner, the policy as adopted by the State in their memorandum dated 24.08.1993 was ever considered. Having considered the human factors emerged before an employee just in the eve of his retirement, the said policy has espoused. The respondents may not go by the policy or the petitioner might not have any right but what is expected legitimately from them that they should before making any transfer shall consider the said policy and make out a ground why they are departing from the said policy, but as it appears that no such exercise was taken.

In view of this, the impugned transfer order dated 03.08.2019 [Annexure-3 to the writ petition] stands interfered with and set aside. Ordinarily, the policy, as framed, should not be thrown in the wind by the state. However, the respondents shall remain at liberty to consider transfer of the petitioner, only if it is considered inevitable. If reconsideration as above, appears necessary, the respondents shall keep it in view that the petitioner is scheduled to retire on 31.01.2020 in terms of the said policy.

In view of the above observations, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.