The State Of West Bengal & Ors vs Amal Krishna Roy
2023 Latest Caselaw 1619 Cal

                                                                             1


                IN THE HIGH COURT AT CALCUTTA

                 CONSTITUTIONAL WRIT JURISDICTION

                               APPELLATE SIDE

Present:

THE HON'BLE JUSTICE HARISH TANDON
              &
THE HON'BLE JUSTICE PRASENJIT BISWAS

                            WPST 108 of 2022


                   The State of West Bengal & Ors.

                                       Vs.

                            Amal Krishna Roy



Appearance:

For the Petitioners/State          :    Mr. Arjun Roy Mukherjee, Adv.

                                        Ms. Saheli Mukherjee, Adv.

                                        Ms. Debapriya Mitra, Adv.

For the Respondent             :        Mr. Kallol Basu, Sr. Adv.

Mr. Suman Banerjee, Adv.

Mr. Nilanjan Pal, Adv.

Judgment On                    :        13.03.2023



Prasenjit Biswas, J. :

This writ petition is filed for setting aside the order dated 02.08.2022

passed by the Central Administrative Tribunal, Kolkata, by which the prayer

for interim order filed in the Original Application by the respondent is

allowed.

By passing the impugned order the Tribunal has been pleased to stay

the operation of transfer order dated 8th July, 2022 and release order dated

13th July, 2022 of the Respondent firstly till 2nd September, 2022 and

subsequently the said stay order has been extended on time to time by the

Tribunal.

The facts and circumstances giving rise to this case are that the

Respondent was promoted to the post of Special Revenue Officer-II and

joined as Block Land and Land Reforms Officer, Kanksha, Paschim

Bardhaman in the month of October, 2015. A show cause notice was issued

to this Respondent on 24th October, 2016 by the District Magistrate and

District Land and Land Reforms Officer inter alia seeking clarification of his

purported actions. Thereafter a disciplinary proceeding was initiated against

the Respondent by submitting charge sheet against him on 17th March,

2017.

During pendency of the said disciplinary proceeding the Respondent

was transferred from his place of posting at Kanksha, Paschim Bardhaman

to Purba Medinipur and posted as Block Land and Land Reforms Officer,

Moyna on 17.07.2017 and he joined therein on 18.07.2017. The disciplinary

proceeding was challenged by the Respondent before the Tribunal by filing

application being O.A. No. 670 of 2019. The Tribunal disposed the

application directing the petitioners herein to proceed with de novo enquiry

and complete the same within a period of six months and accordingly de

novo proceeding was commenced by the disciplinary authority. Thereafter

this Respondent was transferred from Moyna to Cooch Behar vide transfer

order dated 8th July, 2022 and he was released on 13th July, 2022 with a

direction to report to the Special Land Acquisition Officer, Cooch Behar.

Respondent challenged the said order of transfer before the Tribunal

on various grounds, inter-alia that he underwent a surgery on 15.02.2022

and is still in need of regular checkups. Wife of the applicant is also

suffering from Fatty Lever and Diabetes and is under constant medical

supervision, the transfer order suffered from mala fide, illegal, improper,

unjustified, harrasive, arbitrariness and it would cause extreme hardship to

the Respondent if he is transferred to Cooch Behar.

After considering the rival claim of the parties, the Tribunal passed

the impugned order dated 02.08.2022. Hence the present petition.

Learned counsel Mr. Arjun Roy Mukherjee appearing for the petitioner

has reiterated the submissions agitated before the Tribunal and the same

has been controverted by, learned counsel appearing for the respondent.

Mr. Kollol Basu, learned counsel appearing for the Respondent

submits that as the Tribunal has found that the order of transfer is tainted

with malice and therefore the impugned order was passed.

We have given serious considerations to the said submissions and

have perused the impugned order.

We are not unmindful about the proposition of law that it is entirely

upon the competent authority to decide when, where and at what point of

time a public servant is to be transferred from his present posting. Transfer

is not only an incident but an essential condition of service. It does not affect

the conditions of service in any manner. The employee does not have any

vested right to be posted at a particular place.

No Government servant has legal right for being posted at any

particular place. Transfer from one place to other is generally a condition of

service and the employee has no choice in the matter. Transfer from one

place to other is necessary in public interest and efficiency in the public

administration.

Transfer of a public servant made on administrative grounds or in

public interest should not be interfered with unless there are strong and

pressing grounds rendering the transfer order illegal on the ground of

violation of statutory rules or on ground of mala fide.

Reliance is placed by the Learned Advocate of the petitioners Mr. Arjun

Roy Mukherjee upon the decision rendered by the Apex Court in case of

Mohd. Masood Ahmad vs. State of U.P. and Others wherein it is held as

under:

Since the petitioner was on a transferable post, the High Court has

rightly dismissed his writ petition because transfer is an exigency of service

and is an administrative decision. Interference by the courts with transfer

orders should only be in very rare cases. As repeatedly held in several

decisions of the Supreme Court, transfer is an exigency of service. It should

not be interfered with ordinarily by a court of law in exercise of its

discretionary jurisdiction under Article 226 unless 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.

In our opinion, the courts should not interfere with a transfer order

which is 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 mala fide. 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.

The courts or tribunals are not appellate forums to decide on transfers

of officers on administrative grounds. The wheels of administration should

be allowed to run smoothly and the courts or tribunals are not expected to

interdict the working of the administrative system by transferring the officers

to the places of their choices. It is for the administration to take appropriate

decision and such decisions shall stand unless they are vitiated either by

mala fides or by extraneous consideration without any factual background

or foundation. There has to be very strong and convincing evidence to

establish the allegations of mala fides specifically alleged in the petition as

the same cannot merely be presumed.

It is profitable to quote the observation of Hon'ble Apex Court in State

of Punjab v. V.K. Khanna and Ors., reported in AIR 2001 Supreme Court 343,

wherein the Hon'ble Court examined the issue of bias and mala fide,

observing as under-

"Whereas fairness is synonymous with reasonableness- bias stands included

within the attributes and broader purview of the word 'malice' which in

common acceptation means and implies 'spite' or 'ill will'. One redeeming

feature in the matter of attributing bias or malice and is now well settled that

mere general statements will not be sufficient for the purposes of indication of

ill will. There must be cogent evidence available on record to come to the

conclusion as to whether in fact, there was existing a bias or a mala fide move

which results in the miscarriage of justice.... In almost all legal inquiries,

'intention as distinguished from motive is the all-important factor' and in

common parlance a malicious act stands equated with an intentional act

without just cause or excuse."

In this case, we have seen that on the administrative grounds the

transfer order came to be issued. Therefore, we cannot go into the

expediency of posting an officer at a particular place. The Respondent has

failed to produce any cogent and convincing evidence to establish the

allegation of mala fides specifically alleged in the petition and therefore the

presumption is in favour of bona fides of the transfer order unless

contradicted by acceptable material. At the time of hearing our attention was

drawn to the fact by the Ld. Counsel for the petitioners that since the

Respondent has been released and a new incumbent has joined no interim

order might be passed by the Tribunal.

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. Learned

counsel for the Respondent did not point out any statutory provision which

has been violated while passing the transfer order, which warrant this Court

to interfere against the impugned transfer order.

We are also not unmindful about the fact that transfer order should be

passed in public interest or administrative exigency, and not arbitrarily or

for extraneous consideration or for victimization of the employee. If a party

alleges mala fides, the burden to prove it lies upon him and it is to be proved

by taking appropriate pleadings. The Court must examine the case from all

angles to find out whether the order is punitive or not.

We are of the view that the Tribunal has failed to appreciate that an

order of transfer should not be interfered with unless it finds that either the

order is mala fide or the Rules governing the service prohibit such transfer.

So, the impugned order passed by the Tribunal dated 02.08.2022

suffers from illegality, irrationality which warrants the interference of this

Court.

Thus, the writ petition is allowed.

Accordingly, the impugned order dated 02.08.2022 passed by the

Tribunal in O.A. 453 of 2022 is hereby set aside.

The Respondent is hereby directed to join his new place of posting

immediately.

No costs.

Urgent Photostat certified copies of this judgment, if applied for, be

made available to the parties subject to compliance with requisite

formalities.

I agree.

(Harish Tandon, J.)                                   (Prasenjit Biswas, J.)




Later:

After the delivery of the judgment in the open Court, the learned

Advocate for the respondent prays for stay of the operation of the

judgment/order.

After considering the same, we do not find that it is a fit case where we

should accede to the prayer made before us.

Accordingly, the prayer is refused.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)