Gauhati High Court
Barasha Borah Bordoloi vs The State Of Assam And 4 Ors on 22 September, 2021
Page No.# 1/21
GAHC010194782020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/131/2021
BARASHA BORAH BORDOLOI
W/O SRI DHARANI BORDOLOI, R/O AMAR ENCLAVE, FLAT NO. D 41,
SURVEY, BELTOLA, GUWAHATI-28, P.O. BELTOLA AND P.S. BASISTHA,
DIST. KAMRUP (M), ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM, EXCISE DEPTT., DISPUR, GUWAHATI 6
2:THE BODOLAND TERRITORIAL AUTONOMOUS COUNCIL
REPRESENTED BY THE SECY.
B.T.C.
ASSAM.
3:THE PRINCIPAL SECY. TO THE GOVT OF ASSAM
EXCISE DEPTT.
ASSAM
DISPUR
GUWAHATI-6
4:THE SECY. TO THE GOVT. OF ASSAM
EXCISE DEPTT.
ASSAM
DISPUR
GUWAHATI 6
5:THE COMMISSIONER OF EXCISE
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ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI
Advocate for the Petitioner : MR. J I BORBHUIYA
Advocate for the Respondent : SC, EXCISE DEPTT.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 22-09-2021
Heard Mr. J.I. Borbhuiya, learned counsel for the petitioner and Mr. P.N.
Goswami, learned Additional Advocate General of the State, assisted by Mr. R.R.
Gogoi, learned Standing Counsel for the State Excise Department, representing
respondent nos. 1, 3, 4 and 5 and Mr. V. Choudhury, learned Standing Counsel
for the BTC, representing respondent no. 2.
2. The learned Additional Advocate General of the State has
referred to the order-sheet of the case and has submitted that he had received
the records and on 25.08.2021, and he had prayed for some time to peruse the
same. Thereafter, by order dated 03.09.2021, the matter was directed to be
listed on 13.09.2021. But the matter could not be heard and this Court had
directed that the matter be listed on 22.09.2021. It is submitted that the
respondents be granted some time to file their affidavit-in-opposition or in the
alternative, he may be permitted to rely on the records in support of his
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submissions. As urgency was expressed by the learned counsel for the
petitioner, the matter has been heard in the admission stage by permitting the
learned Additional Advocate General to rely on the records.
3. The order dated 11.12.2020, by the respondent no. 3, by which
the representation dated 03.12.2020 made by the petitioner for a new posting
instead of Superintendent of Excise, Chirang was rejected is the subject matter
of challenge in the present writ petition filed under Article 226 of the
Constitution of India. The petitioner has also prayed that the respondent
authorities be directed to provide posting to the petitioner at a place where
Medical College and Hospital is available by modifying the transfer order and the
petitioner has also prayed, amongst others, for a direction for releasing her
salary from January, 2020 till date.
4. In brief, the case projected by the petitioner is that the
petitioner had earlier challenged her transfer as Deputy Superintendent of
Excise to Biswanath Sub Division by filing W.P.(C) 987/2016. During the
pendency of the said writ petition, her husband had submitted his
representations dated 12.04.2016 and 02.09.2016 before the respondent
authorities for transferring the petitioner to Kamrup (M).
5. In due course, by an order dated 02.01.2020, the petitioner was
promoted to the next higher rank of Superintendent of Excise and she was
transferred from Barpeta and posted to Dima Hasao District in existing vacancy.
Accordingly, the petitioner was released from her place of posting at Barpeta on
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03.01.2020 and the new incumbent was unilaterally allowed to join at her place
of posting as Deputy Superintendent of Excise, Barpeta although the petitioner
was on leave since 31.12.2019.
6. The husband of the petitioner submitted three separate
representations dated 07.01.2020 before the Departmental Minister and to the
respondent authorities with a request to accommodate the petitioner to
Dibrugarh, or Kamrup (M), or Barpeta District, citing the ground that he was
having serious ailments. Aggrieved by her posting at Dima Hasao, the petitioner
had approached this Court. This Court by order dated 13.03.2020 in W.P.(C)
1274/2020, closed the writ petition by giving liberty to the petitioner to submit a
fresh representation to the respondent no. 1 within 1 (one) week for being
posted to the vacant post of Superintendent of Excise, Kamrup (M), and the
respondent no. 1 was directed to dispose of the same within a period of 2 (two)
weeks. Accordingly, the petitioner had submitted her representation dated
17.03.2020 before the respondent no. 3 and the said authority, vide order dated
23.06.2020 had rejected the said representation and in the interest of public
service and the petitioner was directed to join at Dima Hasao and report
accordingly. Although the petitioner has not annexed her representation dated
19.08.2020 in this writ petition, but it appears that her said representation to
give her a nearby posting was rejected by a letter dated 25.09.2020, passed by
the Joint Secretary to the Government of Assam, Excise Department. Thereafter
on 01.10.2020, the petitioner reported for joining in Dima Hasao. However, the
Principal Secretary, NC Hills Autonomous Council, by his letter dated 03.10.2020,
conveyed to the respondent no. 3 that the appointment of the petitioner was
not acceptable to the Council and request was made for alternative
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arrangement of posting.
7. On 05.10.2020, the petitioner made a representation before the
respondent no. 3 with a prayer for posting her near Guwahati [i.e. Kamrup
(Metro)] owing to health condition of her husband as the said post is lying
vacant. The petitioner had submitted a reminder representation before the
respondent no. 3 on 19.10.2020 for nearby posting as her husband was illness
on humanitarian ground. The respondent no. 3 was also reminded that as per
order dated 13.03.2020 passed by this Court the said respondent was to
dispose of her representation within 2 (two) weeks. Thereafter, the Secretary to
the Government of Assam, Excise Department (respondent no.4) had passed an
order dated 11.11.2020, thereby transferring the petitioner in the same capacity
as Superintendent of Excise at Chirang vice an officer, who was transferred to
Kokrajhar. However, the said transfer order is not under challenge in this writ
petition. It is projected that although a post of Superintendent of Excise was
vacant at Barpeta and instead of transferring and posting the petitioner in the
said station, another person was promoted and transferred to Barpeta. As no
place of posting was provided to the petitioner, she had again moved this Court
again by filing a writ petition and this Court by order dated 26.11.2020 in W.P.
(C) 4924/2020, allowed the petitioner to withdraw the writ petition with liberty
to make representation before the competent authority with a request for
posting her at a convenient place where medical facilities are available as her
husband was having multiple medical problems and it was observed that if such
representation is made to the competent authority, the same will be considered
having regard to the medical condition of her husband and that such
representation would be disposed of within a outer period of 15 (fifteen) days.
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Consequently, the petitioner had submitted a representation dated 26.11.2020
before the respondent no. 3, citing medical problems of her husband. The
respondent no. 3, by an order dated 11.12.2020, rejected the said
representation by making observation to the effect that the medical condition of
her husband was considered and that her request for posting as per her own
choice could not be considered. The said order is impugned in this writ petition.
8. The learned counsel for the petitioner has submitted that the
transfer of the petitioner was malicious and tainted with mala fide because
although vacant posts were available in several districts where proper medical
facilities like medical college and hospital was available for the treatment of her
ailing husband, who was suffering from chronic diabetes, heart ailments, kidney
disorder, etc. It is also submitted that as the children of the petitioner was
outside, there was none other to look after her husband. It is also submitted
that the petitioner had reported at Dima Hasao to join her initial place of posting
but as the respondent authorities had transferred the petitioner hastily to Dima
Hasao without obtaining prior clearance, although the petitioner had reported,
but her appointment was not consented to by the NC Hills Autonomous Council.
Thereafter, the respondent authorities had posted the petitioner to Chirang
although post of Superintendent of Excise was lying vacant in Dibrugarh,
Kamrup (M) and Barpeta, where Medical College and Hospital was available. It
is also submitted that the respondent authorities have also stopped the salary of
the petitioner since the month of January, 2020, which is driving the petitioner
to penury, which is affecting her very badly as she is finding it difficult to meet
the medical expenses of her husband and the stay of her children outside the
State. It is also submitted that by order dated 26.11.2020 in W.P.(C) 4924/
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2020, this Court had directed the respondent authorities to consider the medical
condition of the husband of the petitioner while disposing of her representation,
but except for making a mention about the medical condition, nothing was
considered by the respondent authorities. Accordingly, the learned counsel for
the petitioner has prayed for allowing the reliefs. In support of his submissions,
the learned counsel for the petitioner has placed reliance on the case of Dwijen
Kalita Vs. The Assam Gramin Vikash Bank Ltd. & Ors., 2019 (4) GLT 976 , where
transfer of the bank employee was interfered with owing to medical condition of
the wife of the said employee.
9. Per contra, the learned Additional Advocate General has
submitted that by notification dated 02.01.2020, the petitioner was promoted
temporarily under Regulation 4(d) of the Assam Public Service Commission
(Limitation of Function) Regulation, 1951 to the cadre of Superintendent of
Excise and allowed to officiate in said capacity until further order. The petitioner
was posted on transfer to the post of Superintendent of Excise, Dima Hasao
against existing vacancy. However, the petitioner did not join her place of
posting on the ground that her husband was having medical conditions, as such,
it is submitted that the petitioner was squarely at fault. It is submitted that the
petitioner was not transferred to Barpeta as a Disciplinary Proceeding had been
draw up against the petitioner in respect of her alleged misconduct while
working as Deputy Superintendent of Excise, Barpeta and in this regard, it is
contended that the File No. EX.101/2016; eCF No. 73460 of Excise Branch
contained document to that effect. It is also submitted that the documents
contained in File No. Ex.51/2020; eCF No. 135974 of Excise Branch contained
reasons for not posting the petitioner to Dibrugarh as it was her home town. It
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is submitted by the Additional Advocate General that the petitioner has been
transferred to Chirang, which was only about 75 kms. away from Barpeta,
where Medical College and Hospital is available. It is also submitted that the
transfer of the petitioner is not vitiated by mala fide, arbitrariness or violation of
statutory rules. It is also submitted that the medical condition of the husband of
the petitioner was considered but owing to exigencies and interest of public
service, the petitioner was posted to Chirang and the petitioner could not be
given posting of her choice as it was the prerogative of the employer to decide
which employee would serve where. In support of his submissions, the learned
Additional Advocate General has placed reliance on the following cases, viz., (i)
S.C. Saxena vs. Union of India & Ors., (2006) 9 SCC 583; (ii) State of U.P. vs.
Gobardhan Lal, (2004) 11 SCC 402; (iii) Chief General Manager (Telecom) N.E.
Telecom Circle & Anr. vs. Rajendra Ch. Bhattacharjee & Ors., (1995) 2 SCC 532 .
10. It is seen that the petitioner was promoted and transferred to
Dima Hasao by order dated 02.01.2020 and that she was released on
03.01.2020. However, the petitioner had not reported at her place of posting for
one reason or the other. In the meanwhile, the petitioner had approached this
Court by filing W.P.(C) 1274/2020 and this Court by consent order dated
13.03.2020, had granted liberty to the petitioner to file representation to the
respondent no. 1 for being posted in the vacant post of Superintendent of
Excise, Barpeta by providing that the respondent no. 1 shall take a decision on
the petitioner's representation within a period of 2 (two) weeks. It appears that
the petitioner submitted her representation on 17.03.2020 and that the
respondent no. 3 had disposed of the said representation by an order dated
23.06.2020. No reason is found to have been assigned in the said order why the
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respondent no. 3 took more than three months to dispose of the representation
when this Court had provided that the representation shall be disposed of within
2 (two) weeks.
11. Nevertheless, the petitioner still did not comply with the direction
of the respondent no. 3. After unexplained delay the petitioner appears to have
submitted yet another representation dated 19.08.2020 to post her at nearby
place. The Joint Secretary to the Government of Assam, Excise Department had
rejected the said representation by a letter dated 25.09.2020. The petitioner
had then reported on 01.10.2020 for joining her post as Superintendent of
Excise Dima Hasao. This time, the Principal Secretary, N.C. Hills Autonomous
Council, by his letter dated 03.10.2020, conveyed to the Principal Secretary to
the Government of Assam, Excise Department that the appointment of the
petitioner was not acceptable to the Council and request was made for
alternative arrangement of posting.
12. On 05.10.2020, the petitioner had once again represented before
the respondent no. 3 to be posted as Superintendent of Excise, Barpeta. This
was followed by another representation dated 19.10.2020 to be posted in
Barpeta. Thereafter, by an order dated 11.11.2020 issued by the respondent no.
4 the petitioner was posted as Superintendent of Excise, Chirang. In the writ
petition, it is projected that the transfer order dated 11.11.2020 was assailed by
the petitioner before this Court by filing a writ petition and that this Court by
order dated 26.11.2020 in W.P.(C) 4924/2020, gave liberty to the petitioner to
make representation to the competent authority for transferring her at a place
where medical facilities are available and it was provided that the representation
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be disposed of by the competent authority within 15 (fifteen) days having
regard to the medical condition of the husband of the petitioner. This was
followed by representation dated 02.12.2020 and the said representation was
rejected by the respondent no. 3 vide order dated 11.12.2020, which is
impugned in this writ petition.
13. On the issue of interference on transfer orders by Courts, it is
seen that the Supreme Court of India, in the case of Shilpi Bose and others vs.
State of Bihar and others, AIR 1991 SC 532, had opined that 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 mala fide and it was held that a
Government servant holding a transferable post has no vested right to remain
posted at one place or the other and that the employee is liable to be
transferred from one place to the other. It was further held that transfer orders
issued by the competent authority do not violate any of the legal rights of the
employee and that 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.
14. As regards to the submission of representations, while it was
observed in the case of Union of India Vs. S.L. Abbas, (1993) 4 SCC 357 that
the competent authority must expeditiously dispose of representations.
However, in the present case, the petitioner has been submitting
representations one after the other. Notwithstanding that pursuant to the orders
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passed by this Court, the respondent authorities has been disposing of such
representations, but this business of submitting repetitive representations after
rejection of one cannot be permitted to continue for perpetuity. Paragraphs 7
and 8 of the case of S.L. Abbas (supra) is quoted below (extracted from 1993
STPL 3777 SC):-
"7. Who should be transferred where, is a matter for the appropriate
authority to decide. Unless the order of transfer is vitiated by mala fides 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.
8. The jurisdiction of the Central Administrative Tribunal is akin to the
jurisdiction of the High Court under Art. 226 of the Constitution of India in service
matters. This is evident from a perusal of Art. 323-A of the Constitution. The
constraints and norms which the High Court observes while exercising the said
jurisdiction apply equally to the Tribunal created under Art. 323-A. (We find it all
the more surprising that the learned single Member who passed the impugned
order is a former Judge of the High Court and is thus aware of the norms and
constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate
Authority sitting in judgment over the orders of transfer. It cannot substitute its
own judgment for that of the authority competent to transfer. In this case the
Tribunal has clearly exceeded its jurisdiction in interfering with the order of
transfer. The order of the Tribunal reads as if it were sitting in appeal over the
order of transfer made by the Senior Administrative Officer (competent authority) ."
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15. In the present case in hand, the petitioner was transferred on
02.01.2020, but she did not join. It is another matter whether or not her joining
would be acceptable to the N.C. Hills Autonomous Council, but the petitioner
was required to obey the transfer order and report for joining. By submitting
representations and filing successive writ petitions, the petitioner has avoided
joining her place of posting and ultimately when the petitioner reported for
joining on 01.10.2020, the N.C. Hills Autonomous Council by their
communication dated 03.10.2020, did not accept the posting of the petitioner
on transfer. The petitioner was then transferred to Chirang and again she has
delayed joining in the said post by submitting representations and then she had
filed this instant writ petition after her representation was rejected. Following
the principles laid down in the case of S.C. Saxena (supra), the Court cannot
countenance, support or approve of the unilateral act of the petitioner of not
joining her place of posting. In the case of S.C. Saxena (supra), the Supreme
Court of India had observed as follows:-
"... In the first place, a government servant cannot disobey a transfer order by not
reporting at the place of posting and then go to the Court to ventilate his
grievances. It is his duty to first report for work where he is transferred and make
a representation as to what may be his personal problems. This tendency of not
reporting at the place of posting and indulging in litigation needs to be curbed . ..."
16. As indicated above, the petitioner has claimed that she should be
posted at a place where medical facility is available. The petitioner has stated in
her representations that she may be transferred to Dibrugarh, or Kamrup (M),
or Barpeta. In the said context, the Court is inclined to hold that the petitioner
does not have a right to have a posting of her choice. In this regard, reference
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may be made to the case of Chief General Manager (supra), wherein the
Supreme Court of India had observed as follows:-
"... It is needless to emphasis that a Government employee or any servant of a
Public Undertaking has no legal right to insist for being posted at any particular
place. It cannot be disputed that the respondent holds a transferable post and
unless specifically provided in his service conditions, he has no choice in the
matter of posting. Since the respondent has no legal or statutory right to claim his
posting at Agartala and, therefore, there was no justification for the Tribunal to set
aside the respondent's transfer to Dimapur. ..."
17. In the case of Gobardhan Lal (supra), cited by the learned
Additional Advocate General, the Supreme Court of India had held as follows -
"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
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reiterated that the order of transfer made even in transgression of administrative
guidelines cannot also be interfered with, as they do riot 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.
8. 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."
18. It would be appropriate to now deal with the belated joining of
the petitioner at Dima Hasao. The records produced by the learned Additional
Advocate General reveal that as per clause (H) of the O.M. No. HAD.57/95/309
dated 31.12.1996, it is provided that the State Government shall consult the
Council, while posting and transferring the Officers of the entrusted subjects/
departments in or out of the council, further providing that before deputing any
officer or staff the Government shall provide a panel of names, enabling the
Council to select and accept the same. It is seen that vide letter no.
EX.51/2020/77 dated 14.05.2020, the service of the Joint Secretary to the
Government of Assam, Excise Department had written to the Principal Secretary,
Dima Hasao Autonomous Council (sic. ought to have been North Cachar Hills
Autonomous Council) for acceptance of service of the petitioner as the
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Superintendent of Excise and reference was made to the pending writ petition,
i.e. W.P.(C) 1274/2020. From the said two office files, no document could be
shown by which it would appear that before transferring and posting the
petitioner to Dima Hasao on promotion by order dated 02.01.2020, prior
consent of the N.C. Hills Autonomous Council was taken by the Government in
the Excise Department. In the file bearing File No. Ex.51/2020; eCF No. 135974
of Excise Branch, it contains a letter no. GA/TS/3- Excise/ Pt-II/2010-11/33
dated 26.05.2020 by the Principal Secretary, N.C. Hills Autonomous Council
whereby the Joint Secretary to the Government of Assam, Excise Department
was informed to the effect that as per rule of the Council under Sixth Schedule
area regarding transfer and posting of officers, the officers/ incumbent should
have to apply for a "No Objection Certificate" for acceptance of their joining but
no communication from the petitioner regarding joining as Superintending of
Excise of the District has been received by the Council and the said authority
was also informed that the petitioner had to apply for joining in the said
department and then the Council will do the needful. However, the existence of
any such rule, notification or OMs has not been brought to the notice of the
Court. In light of the OM dated 13.12.1996, the contents of the letter dated
26.05.2020 by the Principal Secretary of N.C. Hills Autonomous Council prima
facie appears to be inconsistent, nonetheless, no final opinion is expressed in
this regard. Therefore, Clause (H) of the OM dated 13.12.1996 is seen to have
cast a duty upon the State Government to consult the Council. Be that as it may,
in the present case in hand, had the petitioner reported at Dima Hasao
immediately after transfer order was passed on 02.01.2020, the respondents
would not have had an opportunity to accuse the petitioner of not joining her
place of transfer.
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19. It is seen that in the present case, the petitioner is seeking her
transfer to places where proper medical treatment would be available to the
husband of the petitioner. It is common knowledge that advanced and/or critical
medical treatment for persons who are suffering from multiple diseases like
heart ailment, diabetes and renal problems would be limited to only few cities in
any given State in this Country. Under such situation, a question arises as to
whether consideration of compassion, not only for the employee but other
family members and dependents of Government employees, would be so
overwhelming for a Court of law to interfere with transfer orders passed by the
Executive. It is seen that the Government has already enacted Rights of Persons
with Disabilities Act, 2016 and under the said Act various notifications, orders
and Office Memorandums have been issued by the Union and various State
Governments and other Statutory Authorities from time to time to regulate
transfer of certain category of persons who are the care-givers to persons with
disabilities. The case of Dwijen Kalita (supra) cited by the learned counsel for
the petitioner appears to be one such case. In the said case the wife of the
petitioner therein had suffered an accident on 17.06.2013, in which she had
serious head injuries and remained in a comatose stage. Although she had
recovered, but had been suffering from severe disability, loss of memory,
comprehension, impairment of right shoulder dislocation, needing support of her
daily needs. The competent authority of the State Government had given a
disability certificate in which she had been certified to be suffering from
locomotors disability and that she has 80% permanent physical impairment in
relation to her whole body. Thus, notwithstanding that no reference was made
in the said judgment regarding the 2016 Act, but it must be presumed that the
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Court had interfered with the transfer order on the basis of principles of the said
2016 Act. Therefore, the said judgment and order was passed under peculiar
facts of the said case, without laying down a ratio to the effect that transfer
orders cannot be sustained if spouse of a Government servant is having certain
medical ailments. In the present case in hand the petitioner has not been able
to show that there is any statutory policy, rules, notifications or OMs in the
State, thereby regulating transfer of Government employees if their spouses and
family members suffer from specified medical ailments. The other flip side is
also required to be pondered. Let us assume that a certain percentage of State
Government employees are either themselves suffering from serious medical
conditions and/or some of their family members are suffering from serious
medical conditions. Let us also assume that in the State of Assam, the best
medical facilities are supposedly available in Guwahati. Now can we envisage a
situation where by virtue of Court orders, all such Government staff and
employees would be transferred to Guwahati so as to enable such employees
and family members to take care of their respective medical needs and thus, a
situation is created where all Government employees who are themselves able
bodied and their families are able bodied be transferred elsewhere to make way
for employees who are either themselves medically unfit or have spouses and
family members who are medically unfit to be stationed at Guwahati and then
what would be their length of tenure at Guwahati. This is only a food for
thought and the said issue is left to be decided in a more appropriate case.
20. Therefore, in view of the herein before referred authorities on
the point that Court cannot act as an appellate authority over the transfer
orders, and the resultant limitations on the power of the Court to interfere with
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the order of transfer, the Court is of the considered opinion that the three cases
cited by the learned Additional Advocate General would constitute binding
precedents and the Court is inclined to follow the ratio laid down in the said
cases.
21. In the files produced by the respondents, it is seen that reasons
are assigned why the authorities did not deem it fit to transfer the petitioner to
Barpeta and Dibrugarh. Notwithstanding that the reasons for not transferring
the petitioner to other stations is not disclosed, but the Court is of the
considered opinion that it is the sole prerogative of the employer to take a
decision where any employee would be transferred and posted and this Court is
not an appellate authority in such matters. It is seen that decision had been
taken by the competent authority to transfer the petitioner to Chirang. In the
present case in hand, the petitioner has not been able to demonstrate that the
transfer order of the petitioner to Chirang is vitiated by violation or aberration of
any statutory acts, rules, notifications of OMs in force. The petitioner has also
not been able to demonstrate that the transfer order is vitiated by mala fide.
22. In the case of S.L. Abbas (supra), an argument was advanced to
the effect that when transfer orders are challenged in Courts, the authorities
were obliged to disclose reasons. In this regard, the observations of the
Supreme Court of India is to the following effect:-
"The judgment also does not support the Respondent's contention that if such an
order is questioned in a Court or the Tribunal, the authority is obliged to justify the
transfer by adducing the reasons therefor. It does not also say that the Court or
the Tribunal can quash the order of transfer, if any of the administrative
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instructions/ guidelines are not followed, much less can it be characterised as mala
fide for that reason. To reiterate, the order of transfer can be questioned in a
Court or Tribunal only where it is passed mala fide or where it is made in violation
of the statutory provisions."
23. Therefore, in view of the discussions above, the Court is
constrained to hold that the petitioner has not been able to make out a case for
interference with the impugned order dated 11.12.2020, by which the
representation submitted by the petitioner was rejected.
24. Be it mentioned herein that the transfer order dated 11.11.2020
of the petitioner as Superintendent of Excise, Chirang is not the subject matter
of challenge in this writ petition. Moreover, W.P.(C)4924/2020, wherein the
transfer order dated 11.11.2020 is projected to have been challenged (para-17
of the writ petition), was withdrawn without any leave or liberty to challenge the
same subsequently. Therefore, the order no. EX.51/2020/175 dated 11.11.2020
for transfer and posting of the petitioner as Superintendent of Taxes, Chirang
appears to have attained finality. Therefore, challenge only in respect of the
rejection of representation dated 03.10.2020 by order dated 11.12.2020 would
not otherwise survive.
25. The petitioner has claimed that she has not been paid her salary
due from January, 2020 till date. The learned Additional Advocate General has
produced a copy of the order dated 28.07.2021 passed by this Court in W.P.(C)
1387/2021, by which the continued suspension of the petitioner vide order
bearing no. EX.101/2016/159 dated 07.01.2021 had been quashed prospectively
Page No.# 20/21
with effect from the date of the order of the Court. It has been submitted that
pursuant to the said order, vide notification dated 18.08.2021, the respondent
no. 3 has revoked the suspension of the petitioner and she was reinstated in
service with a direction to join her post in compliance of order dated
11.12.2020. It is submitted by the learned Additional Advocate General that in
defiance of the said order dated 18.08.2021, the petitioner has not joined her
place of posting despite the fact that this Court had not granted any interim stay
in this writ petition on the transfer of the petitioner. Be that as it may, the
competent respondent authorities are directed to take a call on the claim of pay
and the admissible subsistence allowance to the petitioner and to release the
admissible dues to the petitioner within a outer period of 4 (four) weeks from
the date of service of a copy of this order on the respondent no. 3.
26. The petitioner has not been able to demonstrate that the
respondents had violated any law, as such, the prayer by the petitioner that the
respondents should not act beyond law is found to be unnecessary and stands
rejected under the facts of this case. The prerogative to transfer an employee is
with the respondent authorities, as such, the petitioner is not found entitled to a
blanket relief that the respondents should not arbitrarily transfer the petitioner
in future, as cause of action for future has not occasioned, nor the petitioner
has been able to establish that there would be arbitrariness by the respondents
in future.
27. Therefore, save and except the observations made hereinbefore
in respect of the dues of the petitioner, this writ petition stands dismissed in
respect to the challenge made to the order dated 11.12.2020. All other prayers
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made in the writ petition are also rejected. The parties to bear their own cost.
JUDGE
Comparing Assistant
