Sukumar Debnath vs State Of Tripura And Ors

S.G. Chattopadhyay, J

[1] This appeal is directed against the order dated 07.10.2020 passed by the learned single judge in W.P(C) No. 659 of 2020 dismissing the petition of the appellant. The questions for consideration in this writ appeal are whether memo dated 19.09.2020 [Annexure-6] whereby and where under the appellant has been transferred from his present place of posting to Chawmanu Class XII School in Dhalai District is vitiated by malafides or made in violation of any statute and whether the learned single judge is justified in not interfering with the said order of transfer.

[2] Brief facts of the case which are necessary for deciding this appeal are as under.

[3] The appellant is presently posted in Duraichara Shib Bari High School, Kamalpur in Dhalai District where he has been serving as a graduate teacher. By the impugned transfer order, he has been transferred to Chawmanu Class XII School within the same district. It has been asserted that the appellant being the elected secretary to the Sub-Divisional Committee of Tripura Government Teachers' Association (H.B. Road), a recognized association of school teachers, enjoys a special privilege in the matter of transfer under Memo No.F 23(24)-GA/93 dated 28.02.1994 which, inter alia, contemplates that transfer of the designated office bearers of recognized employees' association, when warranted by administrative requirements, shall be made only with the approval of the departmental minister. Case of the appellant is that his transfer order was issued in total disregard of the said memorandum dated 28.02.1994 and moreover, his post transfer representation to the department projecting his difficulties was given no consideration at all by the respondents. According to the appellant, the said transfer order is thus vitiated by malafides and against the executive instructions contained in Memo No.F 23(24)-GA/93 dated 28.02.1994 for which the said transfer order is liable to be set aside.

[4] The appellant challenged the said transfer order in W.P(C) No. 659 of 2020 which was dismissed by the learned Single Judge by order dated 07.10.2020 which reads as follows:

"It is settled through series of judgments of the Supreme Court that a Government servant holding a transferable post has no right to insist on being posted continuously at a particular station. Which officer should be posted at which place is within the discretion of the administration. Unless the order of transfer is actuated by a mala fide or is opposed to mandatory statutory provisions, the Court would not interfere in such exercise of administrative powers by the Government. A reference in this respect can be made to the decision of Supreme Court in case of Shilpi Bose (Mrs.) and others Vrs. State of Bihar and others, reported in 1991 Supp. (2) SCC 659.

It is equally well settled that the executive instructions laying down broad policy for transfer are always open to deviation for larger exigency of administration and do not create a corresponding right in the employee to resist the transfer which is passed in the interest of administration.

The Government policy relied upon by the petitioner does not grant blanket immunity to any office bearer of an association against transfer. It only provides certain procedural safeguards so that such transfers are not frequently made, particularly with a purpose of undermining the activities of the association which would be taking up the various issues on behalf of the members of the association. In the present case it is not even averred in the petition that the impugned transfer order has been passed without the approval of the concerned Minister. No such presumption can be drawn without specific information. The petitioner cannot be allowed a fishing inquiry.

In the result petition is dismissed."

[5] Being aggrieved and dissatisfied with the said order of the learned single judge, the appellant has challenged its legality and correctness mainly on the following grounds:

i. The learned single judge did not consider the entitlement of the appellant to the special privilege in the matter of transfer as an office bearer of a recognized employees' association under Memo No.F 23(24)-GA/93 dated 28.02.1994.

ii. The learned single judge did not peruse the concerned file to ascertain as to whether the protection provided to the appellant under Memo No.F 23(24)-GA/93 dated 28.02.1994 as the officer bearer of a recognized employees' association was considered by the departmental minister before according approval to his transfer proposal and whether the decision making process of transferring the appellant suffered from the vices of unfairness and arbitrariness.

iii. The learned single judge did not consider the hardship of the appellant arising out of his said transfer.

[6] We have heard Mr. T.D. Majumder, learned counsel appearing for the appellant and Mr. D. Bhattacharjee, learned Government Advocate appearing for the State respondents.

[7] Submissions on behalf of the appellant are as follows:

i. The transfer order of the appellant is violative of the executive instructions contained in Memo No.F 23(24)-GA/93 dated 28.02.1994 because the protection given to an office bearer of a recognized employees' association under the said memo was not duly considered by the respondents before issuing the transfer order.

ii. The respondents did not consider the hardship of the appellant arising out of his transfer.

iii. The representation of the appellant that he had been suffering from high blood sugar and appropriate medical facilities were not available at the new place of his posting was given no consideration by the respondents.

iv. The impugned transfer order is thus vitiated by arbitrariness and malafides which is liable to be set aside.

[8] In support of his contention that a transfer order contrary to the executive instructions contained in the memo dated 28.02.1994 is liable to be set aside, Mr. Datta Majumder, learned counsel of the appellant has relied on the decisions of this High Court in Braja Gopal Nath Vs. State of Tripura & Ors [W.P(C)1035 of 2019] decided on 03.09.2019 and Saral Mohan Tripura Vs. State of Tripura & Ors. [W.P(C)728 of 2019] decided on 03.10.2019 and the decision of the Gauhati High Court in Tapan Majumder Vs. State of Tripura & Anr. reported in (2011) 5 GauLJ 497.

[9] Mr. Debalay Bhattacharjee, learned Government Advocate on the other hand contends that neither there was any malafide in the transfer order of the appellant nor it was issued in violation of the executive instructions contained in Memo No.F 23(24)-GA/93 dated 28.02.1994. According to Mr. Bhattacharjee, learned Government Advocate, administrative exigency warranted the transfer of the appellant and the transfer order was issued with the approval of the departmental minister and therefore there was no illegality in the said transfer order. It is further contended by Mr. Bhattacharjee, learned Government Advocate that the transfer of the appellant was necessary purely for administrative exigencies. It is, therefore, argued by learned counsel that public interest is likely to suffer if the transfer order of the appellant is interfered with. Learned Government Advocate, therefore, urges the court to dismiss the appeal. In support of his contention, learned counsel has relied on the decision of the Apex Court in Narendra Kumar Maheshwari Vs. Union of India & Ors. reported in 1990 (Supp.) SCC 440.

[10] We have carefully considered the submissions of learned counsel made at the bar and perused the materials placed on record.

[11] The main contention raised on behalf of the appellant is that the protection available to the appellant as an office bearer of a recognized employees' association in terms of Memo No.F 23(24)-GA/93 dated 28.02.1994 was not taken care of by the respondents and the transfer order of the appellant was issued contrary to the policy contained in the said memo and as such the said transfer order is liable to be set aside. At this stage, it would be apposite to reproduce the said Memo No.F 23(24)-GA/93 dated 28.02.1994 which is as under:

"Government of Tripura Appointment & Services Department No.F.23(24)-GA/93

Dated, the 28th Feb, 94

MEMORANDUM

The undersigned is directed to state that henceforth, 3 (three) State Level Office bearers, by designation and 2 (two) sub divisional level office bearers, by designation of any recognized Employees Association or its constituent unit shall be given special privilege in the matter of transfer to the extent that their transfers, when warranted by administrative requirements, shall be issued only with the approval of the Departmental Ministers concerned.

It is also clarified that administrative requirement shall be paramount and the privilege conferred on certain categories of office bearers by this memorandum shall not over ride the prerogative of the Government to transfer any of its employees.

It is also clarified that the reference to State Level Committee shall not include State level office bearers in every Directorate or Department but a total of three office bearers, by designation, of each Association/constituent unit based at Agartala. It is also clarified that the total number of office bearers of each recognized Association/Constituent unit at the Sub Division level for the purpose of this memorandum shall be 2 (two) at each Sub-Division and not 2 (two) in each office located at the same time at Sub-Division.

Explanation (1) : For the purpose of this memorandum 3 (three) State level Office bearers by designation of any recognized Employees Association or its constituent unit based at Agartala shall mean the following, namely:-

(a) President or Chairman or by any other designation,

(b) Secretary General or general Secretary or by any other designation,

(c) Treasurer, Cashier or by any other designation as may be applicable to the concerned Association or its constituent unit based at Agartala.

Explanation (2) : For the purpose of this memorandum 2 (two) Sub Divisional level Office Bearers by designation of any recognized Employees Association or its constituent unit based at Sub-Divisional Level shall mean the following namely:-

(a) President or Chairman or by any other designation,

(b) General Secretary or Secretary or by any other designation, as may be applicable to the concerned Association or its constituent unit at Sub-Divisional Level.

This memorandum is issued in supersession of all memorandum and instructions issued in this behalf including the following memorandum and instructions."

[12] A plain reading of the said memorandum dated 28.02.1994 makes it apparent that by the first paragraph contained in the memo, a special privilege has been conferred on the designated office bearers of recognized employees' association in the matter of transfer and it has been provided in the said paragraph that when such transfer is warranted by administrative requirements, the transfer order shall be issued only with the approval of the departmental minister.

[13] The very next paragraph of the instrument i.e. paragraph 2 provides that the privilege so conferred on certain categories of office bearers of recognized employees' associations shall not override the prerogative of the State government to transfer any of its employees if it is required for administrative exigency. In other words, administrative exigency is given an over-riding effect on the privilege conferred on the office bearers of recognized employees' associations in the matter of transfer meaning thereby that paragraph 1 of the memorandum does not and cannot operate as an embargo when transfer is required in the exigencies of administration.

[14] We, however called for the related file in order to ascertain whether the approval of the departmental minister was taken in terms of paragraph one of the said memorandum dated 28.02.1994 before issuing the said transfer order. Pursuant thereto, the learned Government Advocate produced related file No.F.1(2-1)/SE/E(NG)/2020(L-67) of the Directorate of Secondary Education before this court. We have perused the file and found that the transfer proposal of the appellant was approved by the departmental minister. It is true that the note where under the transfer proposal was placed before the minister does not reflect that the minister was ever apprised of the protection available to the appellant as an office bearer of an employees' association. Now the question which falls for our consideration is whether for this deficiency alone, the transfer order of the appellant can be interfered with.

[15] It is true that periodical transfer is a normal feature and incident of government service and no government servant can, as a matter of right, claim to remain in a particular place of posting for a particular period of time or forever unless otherwise provided in any statute governing such service. The learned single judge in the impugned order has recorded a categorical finding that the matter has been settled through a series of judgments pronounced by the Apex Court that the court would not interfere unless the transfer order is shown to be malafide or is opposed to the statutory provisions. The learned single judge in this regard has relied on the decision of the Apex Court in the case of Shilpi Bose and others vs. State of Bihar and others, reported in 1991 Supp.(2)SCC 659.

[16] In the said decision, the Apex Court has disapproved court's interference with transfer order which is not malafide or opposed to any statutory provision. In the case of Shilpi Bose (Supra), the Apex Court held that even if a transfer order is passed in violation of executive instructions or orders, the courts should not ordinarily interfere with such order unless violation of any mandatory statutory rule or malafide is brought forth before the court. The Apex Court vide paragraph 4 of the judgment has held as follows:

"4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders."

[17] The same principle was reiterated by the Apex Court in the case of Union of India & Ors. vs. S.L. Abbas reported in (1993) 4 SCC 357 and it was held by the Apex Court that court cannot interfere with a transfer order unless it is vitiated by malafides or is made in violation of the statutory provisions. At the same time, the Apex Court in the said judgment also observed that government should also consider the guidelines issued on the subject and the representation of the transferee while ordering the transfer having regard to the exigencies of the administration. The observation of the Apex Court in this regard is as under:

"6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.

Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right."

[18] In the case of State of Punjab & Ors. vs. Joginder Singh Dhatt reported in AIR 1993 SC 2486 plea of the appellant was that his was a mid term transfer and apart from the fact that his date of superannuation was nearby. High Court interfered with the transfer order and allowed the petition. When the matter came up in appeal before the Apex Court, while setting aside the order of the High Court, the Apex Court observed as under:

"3............. This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused."

[19] In the instant case, plea of the State respondents is that the appellant has been transferred to a school where his services is required to meet the exigencies of the administration and there was no malafide in the exercise of the power to transfer the appellant. The appellant on the other hand has apparently failed to attribute any malafide or oblique motive to the respondents in making the impugned transfer order other than making a plea that his transfer order is opposed to the policy contained in Memo No.F23(24)-GA/93 dated 28.02.1994. Apparently, the appellant has been transferred within the same district. Therefore, his plea of arbitrariness does not gain ground.

[20] Moreover, paragraph 2 of the memorandum dated 28.02.1994 has made it clear that prerogative of the government to transfer any of its employees for administrative requirement shall be the paramount consideration which shall not be over ridden by the privilege conferred on the office bearers of recognized employees' association in the matter of transfer.

[21] In the case of Union of India vs. S.L. Abbas (Supra) the Apex Court has held that the executive instructions are in the nature of guidelines which have no statutory force. As a result, the privilege conferred on the appellant under the memorandum dated 28.02.1994 does not vest on him any immunity from transfer and he cannot use the privilege as a legally enforceable right.

[22] We have noted that learned counsel of the appellant has relied on the decisions of this High Court in the cases of Braja Gopal Nath (Supra) and Saral Mohan Tripura (Supra) and also the decision of the Gauhati High Court in the case of Tapan Majumder (Supra) in support of his contention. In all these cases, the transfer orders of the petitioners were quashed and the State respondents were directed to act in accordance with the memorandum dated 28.02.1994 on the ground that there was no reflection in the related file of the administrative department that while approval of the departmental minister was obtained for transfer of the petitioners, the minister was apprised of the protection available to the petitioners who were office bearers of employees' association.

Similar course of action in the given case, in our view, would not be justifiable since no malafide on the part of the respondents stands established and it is submitted before us that the State government has undertaken a huge reshuffling of teaching staff to meet the administrative exigencies on urgent basis.

[23] In view of the aforesaid findings, we are of the view that there is no illegality in the order dated 07.10.2020 of the learned single judge passed in W.P(C) No. 659 of 2020.

[24] Resultantly, the appeal stands dismissed. The department's file shall be returned through learned Government Advocate.

The appeal is thus disposed of.