Shyamal Kanti Deb And Ors vs State Of Tripura And Ors

The petitioner has been working under the respondent No.2, Tripura Industrial Development Corporation Ltd. as the General Manager. The respondent No.2 is an undertaking of the Government of Tripura for promoting Industrial and Infrastructure Development in the state. The petitioner was initially transferred by the order dated 31.01.2019 with his post to the District Industrial Centre (DIC), Dhwajanagar, Gomati, Tripura. But the said order stood modified by the respondent No.3 and the petitioner has been transferred by the memorandum under No.TIDC/Set/11(26)/2218-24 dated 24.06.2019 to Kumarghat Industrial Estate with immediate effect and that memorandum dated 24.06.2019 has been challenged in this writ petition. Subject to appreciation of the challenge and on assessment of primafacie case, this court by the order dated 11.07.2019 prohibited the respondents from giving effect to the memorandum dated 24.06.2019 till the returnable date. The said interim order continued by various orders. Hence, the petitioner has been continuing in the present place of posting.

The main stay of the challenge is that the post of Finance Manager was upgraded by the respondent No.2 as a special post namely General Manager and that can be gathered from the proposal initiated for approval by the Finance Department for creation of the post of General Manager in Tripura Industrial Development Corporation Limited (TIDCL), the respondent No.2. The purpose of creation of the post is apparent from the passage as reproduced below, from the communication under No.TIDC/Set/11(1)/3826 dated 01.07.2010 [Annexure-3 to the writ petition]:

"It is also worth mentioning here that, during the FY:2008-09 and 2009-10, the Corporation earned Rs.44,96,588/- and Rs.73,47,020/- respectively as agency charges besides other income like premium and rental for leased land. Revenue will further increase with the completion of the on-going projects and setting up the industrial units in these areas. The volume of work is increasing day by day. As most of these are Centrally sponsored schemes, constant monitoring and completion of projects in stipulated time has to be ensured. Having a senior officer in the capacity of General Manager, will ensure smooth implementation of the industrial infrastructure development and its maintenance. The officer will be overall in-charge and coordinating head for the infrastructure projects. Creation of the post of General Manager for infrastructural development works will help in building capacity to plan, implement, monitor, check and to manage/supervise effectively the infrastructure development works and also to keep liaison with other Departments/Agencies for overall coordination. There is no much financial implication of this proposal, since Managers having vast experience in infrastructure development works in the feeder grade are already drawing more or less same salary." [Emphasis added]

Having referred to the said basis, it has been contended by the petitioner that the post of General Manager was created for infrastructural development works viz. for building capacity to plan, implement, monitor, check and to manage/supervise effectively the infrastructure development works and also to keep liaison with other Departments/Agencies for overall coordination.

This post, therefore, according to the petitioner is unique in nature. After creation of the said post, the petitioner was appointed by the order dated 17.06.2011 [Annexure-4 to the writ petition] and in this regard, there is no dispute.

As stated before, by the memorandum dated 31.01.2019 [Annexure-6 to the writ petition], the petitioner was initially transferred to District Industrial Centre, Dhwajanagar, Gomati, Tripura but by the memorandum dated 24.06.2019 [Annexure-9 to the writ petition], the petitioner was transferred to Kumarghat Industrial Estate with immediate effect. According to the petitioner, there is no such post of General Manager, Tripura Industrial Development Corporation in Kumarghat Industrial Estate. Thus, the impugned memorandum of transfer is grossly illegal and malicious.

In response to the said memorandum dated 24.06.2019 [Annexure-9 to the writ petition], the petitioner filed the representation for reconsideration of the order of transfer as contained in the memorandum dated 24.06.2019. On 08.07.2019 he had contended in the representation that there is no work in Kumarghat where a senior level officer of the respondent No.2 needs to be posted. He has also contended as follows :

"As the major works of the Corporation like submission of loan related documents is now online and infrastructure related matter in field levels are looked after by JEs of Engineering cell, TIDC, the posting of an officer like General Manager, the senior most officer of the Corporation just below the rank to Managing Director in Kumarghat Industrial Estate (which is a property of Department of Industries and Commerce, Govt. of Tripura and TIDC Ltd. only maintains the Industrial Estate as per requisition and guidance of GM, DIC, Unokoti District, Govt. of Tripura) may not be suitable for the Corporation."

The petitioner was not oblivious to mention about his performance which has been highly appreciated in his Annual Confidential Report (ACR). Since, the said representation did not bring about any positive yield, the petitioner has approached this court challenging the order of transfer on the grounds as indicated.

In the reply, the respondents No.1 and 2 have asserted that there is nothing in the note, sent to the Finance Department for creation of the post of General Manager, that the said post always be maintained in the Head Quarters of Tripura Industrial Development Corporation. The respondents have categorically stated that there is no malafide intention in transferring the petitioner to Kumarghat. The respondents No.2 and 3 have categorically stated that the post of General Manager where the petitioner has been appointed was not sanctioned for infrastructural development work of the TIDCL but for the general administration. By the office order dated 15.09.2019, the allocation of works has been made by the respondent No.3. By that order dated 15.09.2019, the petitioner was given the work to establishment and IT related matters. Thus, it has been contended by Mr. B.N. Majumder, learned counsel appearing for the respondents that the respondents No.2 and 3 have time to time changed the assignments of senior level officers in the interest of administration.

The representation as submitted by the petitioner was bereft of substance and as such, no action thereon was taken. But the respondents have admitted that during pendency of the writ petition being WP(C)No.158 of 2019, whereby the earlier transfer order contained in the memorandum dated 31.01.2019 [Annexure-6 to the writ petition] was challenged the said memorandum dated 31.01.2019 [Annexure-6 to the writ petition] was modified, and the impugned transfer order has been issued to the serious prejudice and derogation of the petitioner maliciously. According to the respondents, big projects have been undertaken in Kumarghat and as such, one responsible officer was required to be posted there and for that reason, the petitioner has been transferred. Thereafter, frequent absence of the petitioner from the work place has been indicated.

Mr. B.N. Majumder, learned counsel appearing for the respondents No.2 and 3 has contended that the transfer being an incidence of service, the petitioner has been transferred in the exigencies of the administration. There is no malice as alleged. Moreover, there is no proof of malice. Mere insinuation of malice does not provide the sufficient basis for intervention in the order of transfer by this court.

In the rejoinder, the petitioner, however, has reiterated that the post of General Manager in TIDCL is the senior most post mentioned for Head Quarters with specific responsibility. Hence, the transfer order [the memorandum] dated 24.06.2016 is untenable being not in public interest. The sole object of transferring the petitioner is to harass and cause inconvenience to a senior most officer with malafide intention. That apart, the petitioner would face serious human crisis as his mother is critically ill and the respondents have acknowledged that fact in their reply.

Reference has been made to a decision of the apex court in Nagorao Shivaji Chavan versus Sunil Purushottam Bhamre and Others reported in AIR 2019 SC 189 where the apex court having referred to B. Varadha Rao versus State of Karnataka and Others reported in (1986) 4 SCC 131 has held as follows :

"4. ... That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. As the learned Judges rightly observe:

The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants."

True it is that as Mr. P. Datta, learned counsel appearing for the petitioner has emphatically contended before this court the frequent transfers, without sufficient reasons to justify such transfer, cannot, but be held as malafide. Mr. Datta, learned counsel has submitted that the respondents, in order to get the petitioner out of the Head Quarters, at the first instance transferred him to the District Industrial Centre, Dhwajanagar, Gomati, Tripura with the post, but this time, the petitioner has been posted in the Kumarghat where there is no post of General Manager. Mr. Datta, learned counsel has referred to the memorandum dated 24.06.2019 and urged this court that when there is no such post, in the Industrial Estate, Kumarghat how the petitioner can be transferred to Kumarghat. From the memorandum dated 24.06.2019, according to Mr. Datta, learned counsel, it is apparent that in the place of posting i.e. Kumarghat no post of General Manager does exist. For reference, the memorandum dated 24.06.2019 may be extracted below:

MEMORANDUM

In the interest of Public services, Sri Shyamal Kanti Deb, General Manager, TIDC Ltd. is hereby transferred and posted to Kumarghat Industrial Estate with immediate effect for facilitation of opening new office and management of Industrial Estates at Kumarghat & Dharmanagar.

Sri Shyamal Kanti Deb, General Manager, TIDC Ltd. is directed to handover all the charges to Er. Rajesh Kumar Das, OSD, TIDC Ltd.

Er Rajesh Kumar Das, OSD, TIDC Ltd. is also directed to take over the charges from Sri Shyamal Kanti Deb, General Manager, TIDC Ltd. The process of the handover and taken over should be completed within 3(three) days from the date of issue of this Memorandum.

This is issued as per approval given by the Board of Directors of TIDC Ltd. in the 192nd BOD meeting of TIDC Ltd. held on 25th February, 2019.

Sri Shyamal Kanti Deb, GM, TIDC shall look after all the Industrial Estates and other industrial infrastructure, located within Unakoti and North Tripura Districts, Tripura.

Sri Shyamal Kanti Deb, General Manager, shall draw his pay and other allowances from Headquarter, TIDC Ltd.

not illegible

(Kiran Gitte, IAS) Managing Director

[Emphasis added]

Thus, Mr. Datta, learned counsel has submitted that this transfer is grossly unsustainable, inasmuch as, the petitioner has been transferred to a place where the post of General Manager does not exist. Despite that he has been transferred to such place illegally and in colourable exercise of power.

Having considered all this aspects as raised by the respective counsel for the parties, this court is of the view that no person can be transferred without a post. Pre-requisite of a transfer is existence of a similar post in the place of posting. Even though, an officer may be assigned certain duties outside his place of posting where he has been posted against a post but that cannot be called 'transfer'. Even though, it is very difficult to infer that this is a special kind of post but it is apparent from the impugned memorandum that no post of General Manager was created in Kumarghat or nor such post does exist there. This is the reason why the petitioner has been asked to draw his pay and other allowances from Head Quarters, TIDCL. Keeping the post in the Head Quarters, how can someone be transferred to a place, even though such post does not exist in the place of proposed posting. This action itself is an action impermissible in law and the exercise of power is malafide. The recall of the previous transfer is the indicator of acknowledgment of mindless exercise of power which cannot be done in the public interest.

In a note dated 11.02.2019, the Advocate General of Tripura had occasion to advise the respondent No.2 by clarifying the correct position of law. It was pointed out that the transfer of a Government employee is guided by the fundamental rules. (F.R.)14-B which provides that subject to the provisions of Rule 15, the President or the Governor may transfer to another post. The Advocate General had categorically advised as follows :

"The aforesaid provision means that the transfer of an employee shall be within the cadre and not outside the cadre i.e. to say that there must existence of a post within a particular cadre for transfer of member of the cadre. It is not understood as to how the Petitioner who is an officer of the Government Corporation could be transferred to a Government establishment and as to how a post in the Corporation can be transferred to a Government establishment. Such type of transfer is wholly unwarranted and untenable in law, therefore, it is not possible to defend the same." [Emphasis added]

On the face of such advice, the earlier transfer order was recalled. But, this time also, the petitioner has been transferred to a place where no post of General Manager does exist and it is quite apparent from the impugned memorandum.

In terms of the above discussion, this court is constrained to observe that the impugned memorandum of transfer cannot sustain and accordingly, it is interfered with and set aside.

Having observed thus, this writ petition stands allowed to the extent as indicated above..

There shall be no order as to costs.