Gauhati High Court
Montu Gogoi vs The State Of Assam And 3 Ors on 22 May, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/24
GAHC010227132023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5958/2023
MONTU GOGOI
S/O- KULADHAR GOGOI,
R/O- DULAKAKHARIA,
P/O- DULAKAKHARIA,
P/S- GELAKEY,
DIST- SIVASAGAR,
PIN- 785696.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM,
PANCHAYAT AND RURAL DEVELOPMENT,
DISPUR CAPITAL COMPLEX,
DISPUR-,
GUWAHATI, ASSAM.
2:THE DEPUTY COMMISSIONER
DISTRICT- SIVASAGAR
ASSAM.
3:THE COMMISSIONER
PANCHAYAT AND RURAL DEVELOPMENT
GOVT. OF ASSAM
PANJABARI
JURIPAR
GUWAHATI-37
ASSAM.
4:THE CHIEF EXECUTIVE OFFICER
SIVASAGAR ZILLA PARISHAD
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SIVASAGAR
DISTRICT- SIVASAGAR
ASSAM
BEFORE
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Petitioner: Mr. A. Sahad, Advocate
For the Respondents: Mr. S. Dutta, SC, P&RD,
Ms. M. Bhattacharjee, GA
Date of Hearing & Judgment : 22.05.2025
Judgment and Order
Heard Mr. A. Sahad, learned counsel appears for the petitioner. Also
heard Ms. P. Thapa, learned counsel on behalf of Mr. S. Dutta, learned Standing
Counsel appears for the P&RD Department and Ms. M. Bhattacharjee, learned
Additional Senior Government Advocate appears for the respondent no. 2.
2. The petitioner before this court was engaged as a casual employee vide
the notification No. FEA. 104/2005/11 dated 26.08.2005. Subsequently, the
petitioner was appointed as an Office Assistant on casual basis and posted at
Dulakakharia Gaon Panchayat. He was allowed to draw a fixed
pay/remuneration at the rate of Rs. 15,900/ (Fifteen Thousand Nine Hundred)
with dearness allowances (D/A) and Medical Allowances (M/A) of Rs. 600/- (six
hundred) per month subject to recommendation of the Pay Commission. The
petitioner joined as an Office Assistant as a casual employee at Dulakakharia
Gaon Panchayat under Nazira Development Block and he has been working
since 10.01.2020 till date. It is stated in the writ petition that the petitioner is
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holding the post of Office Assistant (casual) which is a non sanctioned post. By
office Order vide the Memo No. SZP-7/Confdl./2023/36 dated 15.06.2023, the
Deputy Commissioner, Sivasagar issued transfer orders transferring and posting
the employees named therein from their places of posting to other places under
the Sivasagar Zila Parishad for smooth functioning of the Gaon Panchayat
works. In the said order the petitioner's name was also included and he was
transferred from Dulakakharia Gaon Panchayat to Amguri Development Block
which is located approximately 50 Kms away from his present place of posting.
It is stated in the affidavit that this order was issued confidentially and was not
communicated to the petitioner officially. Consequently, the petitioner was
unaware about this transfer from one block to another. Subsequently, on making
enquiries the petitioner received a copy of the order of transfer after one month
10 days later. Being aggrieved, the petitioner filed a representation addressing
to the Deputy Commissioner, Sivasagar for stay/cancellation of the transfer
order dated 15.06.2023 citing his ill health and ailments as he was suffering
from Arthritis (Severe) and lumbar Spondylitis since long and consequently
stated his inability to travel to distant places as it is likely to hamper his medical
treatment. The said representation however remained pending and no order on
the said representation, if passed, by the respondent authority was ever
communicated to the writ petitioner.
3. The learned counsel for the petitioner submits that the order of transfer
was kept confidential and as soon as he made an enquiry he was issued a Show
Cause Notice dated 18.07.2023 asking him to explain within 3 (three) days, to
the Chief Executive Officer Sivasagar Zila Parishad as to why administrative
action will not be taken for alleged disobedience to the order of the Deputy
Commissioner, Sivasagar for not joining at Amguri Anchalik Panchayat. The said
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Show Cause Notice was numbered as Memo No. SZP-7/Confdl./2023 dated
18.07.2023. In response to the Show Cause Notice issued to him, the petitioner
submitted his reply on 27.07.2023, citing reasons related to his ill health and
ailments, duly supported by relevant medical documents. It was further stated in
the reply that the order of transfer was not communicated to him and he had
received the said order after 1 (one) month 10 days from his colleague. It was
further stated that the petitioner suspects his transfer to be actuated by malice,
as he had raised objections to certain irregularities in the execution of
government schemes undertaken by the Dulakakharia Gaon Panchayat, and had
disclosed that the manner in which the works were carried out was contrary to
the prescribed rules. Pursuant to his reply submitted, he also filed several
representations dated 22.08.2023, 12.9.2023 and 14.09.2023 to the concerned
authorities for stay of his transfer but the authorities concerned did not consider
redress his grievances.
4. The further case projected before this Court by the learned counsel for the
petitioner is that he is serving in a non-sanctioned casual post and therefore his
purported transfer to another place which is about 50 Kms away under different
development block is not in accordance with the Rules. It is submitted that since
his date of appointment he had been discharging his official duties sincerely and
efficiently and as he had objected to improper execution of works undertaken
by the concerned Gaon Panchayat, his transfer has been initiated and further
the Respondent authority has unauthorizedly withheld the monthly salary of the
petitioner from July 2023 as a coercive measure to compel him to join the new
assignment. The impugned order of transfer is mala fide and should therefore
be interfered with, set aside and quashed. It is also submitted that he being the
only earning member of the family, his transfer to a distant place will prejudice
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him in maintaining his family. The petitioner submits that the impugned order of
transfer dated 15.06.2023 has been issued by an authority not competent to do
so, as the petitioner is employed under the Panchayat and Rural Development
Department and therefore, only the competent authority under the Department
is authorized to issue the transfer order. The impugned transfer order has been
issued by the Deputy Commissioner, Sivasagar who is not the competent
authority to issue such transfer orders as the petitioner is not employed and
posted under the administrative control of the Deputy Commissioner, Sivasagar.
The learned counsel for the petitioner accordingly submits that the impugned
order of transfer dated 15.06.2023 be interfered with, set aside and quashed.
5. The respondents have contested the claims of the writ petitioner and have
filed necessary affidavits. In the affidavit filed by Respondent no.4, namely the
Chief Executive Officer Zila Parishad, Sivasagar, there is an averment that the
petitioner has been transferred as a punishment on account of various
complaints received against him from the general public and the Panchayati Raj
Institutions members for disturbing the peaceful work environment of the Gaon
Panchayat. It is further stated therein that all these allegations have been
communicated to the Commissioner, Panchayat and Rural Development. It is
further stated in the affidavit filed by the respondent no.4 that the transfer of all
the 21 employees mentioned in the order of transfer including the petitioner
were duly communicated to all the persons named in the transfer order
including the petitioner. However, when the office peon who was assigned with
the task of handing over the order to the petitioner, he had declined to accept
the order and consequently, disobeyed the orders passed by the Deputy
Commissioner, Sivasagar. It is stated that the petitioner never put his signature
to acknowledge the receipt of the transfer order and therefore, his claims that
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the transfer order was not received is disputed.
6. The learned counsel for the petitioner has pressed into service the
Judgment of the Apex Court rendered in Somesh Tiwari Vs. Union of India and
Others reported in (2009) 2 SCC 592. It is submitted that in the said Judgment
the Apex Court held that when an order of transfer is passed in lieu of
punishment the same is liable to be set aside as wholly illegal.
7. It is stated that various complaints have been received against the
petitioner regarding his misbehavior, misconduct and unlawful activities against
the petitioner which has resulted in his transfer as punishment. The respondent
no.2 namely the Deputy Commissioner, Sivasagar has also filed an affidavit,
contesting the claims of the writ petitioner. In the said affidavit, it is also stated
that the petitioner was transferred as a punishment in lieu of various complaints
received against him. Subsequently, the said respondent no.2 had also filed an
affidavit whereby the averments made in the earlier affidavit that he was
transferred on the ground of by way of punishment was sought to be
withdrawn. In the subsequent affidavit it was stated that the transfer was not
account of any punishment but was done to avoid further complaints from the
general public. The petitioner filed reply affidavits reiterating his contentions
made in the writ petition.
8. The learned counsel for the parties have been heard, pleadings have been
perused, Judgment cited has also been noted. The facts in the present
proceedings lie within a narrow compass. The petitioner was appointed as a
casual employee and subsequently, has been appointed as an Office Assistant in
the Dulakakharia Gaon Panchayat by the impugned order dated 15.06.2023. He
along with several others were transferred to their respective places of posting
as is referred to. The primary ground of the writ petitioner for challenge of the
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transfer order of the petitioner is that his transfer was issued merely on the
basis of complaints purportedly lodged by some members against the petitioner
and as a matter of punishment he has been transferred to his new place of
posting. The petitioner had not been confronted with the complaints nor has
any proceedings been initiated resulting in imposition of penalty by the
authority. The transfer order is passed by the Deputy Commissioner, Sivasagar
and one of the grounds of challenges is that the Deputy Commissioner is not
the authorized person who can transfer the petitioner. At the outset it has to be
clarified that by notification dated 17.05.2023 issued by the Panchayat and Rural
Development Department, the Deputy Commissioners in the General Area
Districts have been authorized to make a transfer and posting of Block
Development Officers, Engineers, Gaon Panchayat Secretaries and all other
regular officers and staff including contractual employees of the Panchayat and
Rural Development Department within their jurisdiction. From the perusal of the
said notification enclosed to the affidavit filed by the respondents, it is seen that
the Panchayat and Rural Development, namely, the department under which the
petitioner is serving, has authorized the Deputy Commissioners of all general
areas to issue transfer orders for administrative purposes. This order is not
under challenge in the present proceedings. The further grounds on which the
impugned order has been assailed is that this order was never communicated to
the petitioner and only upon making enquiries by the petitioner he came to be
informed that the impugned order was passed and the same was kept in the
office records and on making enquiries he came to be informed after about 1
month 10 days. The respondents on the other hand in their affidavit has made
an averment that the transfer was in view of the complaints received against the
petitioner. The Chief Executive Officer who is arrayed as Respondent no.3 had
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made clear averments in his affidavit that the petitioner was transferred as a
punishment on account of various complaints received against him. The Deputy
Commissioner on the other hand in its initial affidavit although had made an
averment that the petitioner was transferred as a punishment in view of various
complaints received. This averment was sought to be withdrawn by filing a
subsequent affidavit wherein it is clarified that there was no punishment transfer
of the petitioner rather it was done to avoid further complaints from the general
public. It is further stated in the said affidavit that the averment that the
petitioner was transferred as a punishment due to various complaints had
erroneously been stated. As such, from the facts as evident from the pleadings
on record is that the petitioner was transferred on the basis of certain
complaints being received. Whether it was a punishment transfer or not is in
dispute as in view of the subsequent affidavit filed by the respondent no.4
where the averments earlier made have been sought to be withdrawn. The fact
that the Deputy Commissioner, Sivasagar is authorized to transfer the
employees in the Panchayat and Rural Development as specified in the
notification dated 17.05.2023 cannot be disputed as the said notification has not
been withdrawn and the same is also not under challenge in the present
proceedings.
9. In order to appreciate the arguments made by the learned counsel for the
petitioner that the transfer cannot be effected as way of punishment by placing
reliance on the Judgment of the Apex Court rendered in Somesh Tiwari Vs.
Union of India and Others reported in (2009) 2 SCC 592 it is necessary to refer
to various Judgments rendered by the Apex Court laying down the parameters
for interference by the High Court in its judicial review in respect of matters
where transfer orders were put to challenge. In Union of India and Others Vs.
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Janardhan Debanath and Another reported in (2004) 4 SCC 245. In Janardhan
Debanath(supra) the order passed by a division bench of this court was put to
challenge. The facts in that case are that the respondents who were working in
the Postal Services Department were transferred from Agartala Division to
Meghalaya Division. The order was challenged before the Central Administrative
Tribunal at Guwahati which the tribunal declined to interfere with the order and
consequently it came to be challenged before this Court. Division bench of this
Court interfered with the order of transfer and set aside before the Apex Court.
It was submitted on behalf of the appellant therein, namely the Union of India
that the transfer was done in public interest and on account of exigencies of
administration. It was pointed out that the respondents not only misbehaved
with the Director, a Senior Lady Officer, she was confined and dragged from one
room to another and this was done with a view to force her to withdraw the
charge-sheet against the Deputy Postmaster. She was abused in filthy language
and was physically manhandled. This conduct was considered to be an act
unbecoming of an employee and with a view to enforce discipline and avoid
recurrence of such unfortunate incident they were transferred and such transfer
order was not in violation of either Rule 37 of the Manual or FR Rule 15. The
respondents on the other hand urged before the Apex Court that if the behavior
of the employees were undesirable as they had misbehaved, before effecting
the transfer there ought to have been an inquiry to find out whether there was
any misbehavior committed by the respondents or that they were undesirable as
stated. The Apex Court, upon examining the facts urged as well as the Rules in
question held that the allegations made against the respondents are of serious
nature and the conduct attributed is certainly unbecoming and whether there
was any misbehavior is a question that can be gone into in departmental
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proceedings. It was held by the Apex Court that for the purposes of effecting a
transfer the question of holding an enquiry to find out whether there is
misbehavior or conduct unbecoming of an employee is unnecessary and what is
needed is the prima-facie satisfaction of the authority concerned on the
contemporary reports about the occurrence complained of and if the
requirement as submitted by the learned counsel for the respondents of holding
an elaborate enquiry is to be insisted upon, the very purpose of transferring an
employee in public interest or exigencies of administration to enforce decorum
and ensure probity would get frustrated. The relevant paragraph of the
Judgment is extracted below:
14. The allegations made against the respondents are of serious nature, and the
conduct attributed is certainly unbecoming. Whether there was any misbehavior is a question
which can be gone into in a departmental proceeding. For the purposes of effecting a
transfer, the question of holding an enquiry to find out whether there was misbehavior or
conduct unbecoming of an employee is unnecessary and what is needed is the prima facie
satisfaction of the authority concerned on the contemporary reports about the occurrence
complained of and if the requirement, as submitted by learned counsel for the respondents,
of holding an elaborate enquiry is to be insisted get frustrated. The question whether the
respondents could be transferred to a different division is a matter for the employer to
consider depending upon the administrative necessities and the extent of solution for the
problems faced by the administration. It is not for this Court to direct one way or the other.
The judgment of the High Court is clearly indefensible and is set aside. The writ petitions
filed before the High Court deserve to be dismissed which we direct. The appeals are allowed
with no order as to costs.
10. Again, in State of U.P. and Others Vs. Gobardhan Lal, reported in (2004)
11 SCC 402, the Apex Court reiterated the parameters laid down for judicial
review of a transfer order. The Apex Court held that it is not open for any
government servant to contend that once appointed or posted in a particular
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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 terms of
appointment but also implicit as an essential condition on service in absence of
any specific indication to the contrary in the law governing or conditions of
service. Unless the order of transfer is shown to be an outcome of malafide
exercise of power or violating of any statutory provision or passed by any
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 the servant concerned to approach the higher authorities for redress,
but cannot have the consequence of depriving or denying competent authority
to transfer a particular officer/servant to any place in public interest and is
found to be necessitated by exigencies of service. The Apex Court held that 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. This is the reason that courts or tribunals cannot
substitute their own decisions in the matter of transfer of that competent
authority. Accordingly, the Apex Court interfered with the Judgment passed by
the High Court interfering with the transfer order. The relevant paragraphs of
the Judgment are extracted below:
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
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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.
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.
9. The very questions involved, as found noticed by the High Court in these cases,
being disputed questions of facts, there was hardly any scope for the High Court to
generalise the situations based on its own appreciation and understanding of the prevailing
circumstances as disclosed from some write-ups in journals or newspaper reports. Conditions
of service or rights, which are personal to the parties concerned, are to be governed by rules
as also the inbuilt powers of supervision and control in the hierarchy of the administration of
State or any authority as well as the basic concepts and well-recognized powers and
jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated
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by sweeping observations and directions unmindful of the anarchy which it may create in
ensuring an effective supervision and control and running of administration merely on certain
assumed notions of orderliness expected from the authorities affecting transfers. Even as the
position stands, avenues are open for being availed of by anyone aggrieved, with the
authorities concerned, the courts and tribunals, as the case may be, to seek relief even in
relation to an order of transfer or appointment or promotion or any order passed in
disciplinary proceedings on certain well-settled and recognized grounds or reasons, when
properly approached and sought to be vindicated in the manner known to and in accordance
with law. No such generalized directions as have been given by the High Court could ever be
given leaving room for an inevitable impression that the courts are attempting to take over
the reins of executive administration. Attempting to undertake an exercise of the nature could
even be assailed as an onslaught and encroachment on the respective fields or areas of
jurisdiction earmarked for the various other limbs of the State. Giving room for such an
impression should be avoided with utmost care and seriously and zealously courts endeavour
to safeguard the rights of parties.
11. Again, in Rajendra Singh and Others Vs. State of Uttar Pradesh and
Others reported in (2009) 15 SCC 178, the Apex Court held that a government
servant has no vested right to remain posted at a place of his choice nor can he
insist that they must be posted at one place or the other. He is liable to be
transferred in the administrative exigencies from one place to another. His
transfer is not only an incident inherent in terms of his appointment but also
implicit as an essential condition of service in the absence of any specific
indication to the contrary, the courts are always reluctant in interfering with the
order of transfer unless such transfer is vitiated by violation of statutory
provisions or suffers from malafide. The Apex Court interfered with the order of
the High Court whereby the transfer order was set aside as the transfer of the
respondent there in was found to be not actuated with mala fide or is otherwise
in violation of statutory vices. The relevant Paragraphs of the Judgment are
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extracted below:
8. A government servant has no vested right to remain posted at a place of his choice
nor can he insist that he must be posted at one place or the other. He is liable to be
transferred in the administrative exigencies from one place to the other. 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 contrary. No
Government can function if the government servant insists that once appointed or posted in a
particular place or position, he should continue in such place or position as long as he desires
(see State of U.P. v. Gobardhan Lal, SCC p. 406, para 7).
9. The courts are always reluctant in interfering with the transfer of an employee
unless such transfer is vitiated by violation of some statutory provisions or suffers from mala
fides. In Shilpi Bose v. State of Bihar this Court held: (SCC p. 661, para 4)
"4. 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. 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 overlooked these aspects in interfering with
the transfer orders."
10. In N.K. Singh v. Union of India³ this Court reiterated that: (SCC p. 103, para 6)
"6. the scope of judicial review in matters of transfer of a government servant to an
equivalent post without any adverse consequence on the service or career prospects is very
limited being confined only to the grounds of mala fides and violation of any specific
provision...."
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13. It is difficult to fathom why the High Court went into the comparative conduct and
integrity of the petitioner and Respondent 5 while dealing with a transfer matter. The High
Court should have appreciated the true extent of scrutiny into a matter of transfer and the
limited scope of judicial review. Respondent 5 being a Sub-Registrar, it is for the State
Government or for that matter the Inspector General of Registration to decide about his place
of posting. As to at what place Respondent 5 should be posted is an exclusive prerogative of
the State Government and in exercise of that prerogative, Respondent 5 was transferred from
Hapur II to Ghaziabad IV keeping in view administrative exigencies.
14. We are pained to observe that the High Court seriously erred in deciding as to
whether Respondent 5 was a competent person to be posted at Ghaziabad IV as Sub-
Registrar. The exercise undertaken by the High Court did not fall within its domain and was
rather uncalled for. We are unable to approve the direction issued to the State Government
and the Inspector General of Registration to transfer a competent officer at Ghaziabad IV as
Sub-Registrar after holding that Respondent 5 cannot be said to be an officer having a better
conduct and integrity in comparison to the petitioner justifying his posting at Ghaziabad IV.
The High Court entered into an arena which did not belong to it and thereby committed
serious error of law.
15. The only question required to be seen was whether transfer of Respondent 5 was
actuated with mala fides or otherwise in violation of statutory rules. The transfer of
Respondent 5 was not found to suffer from any of these vices. The High Court went into the
competence and suitability of Respondent 5 for such posting. It is here that the High Court
fell into a grave error. As a matter of fact, the impugned order of the High Court casts stigma
on the service of Respondent 5 which may also act prejudicial to his interest in the pending
appeal against the adverse remarks.
12. In Major Amod Kumar Vs. Union of India and another reported in (2018)
18 SCC 478. Referring to the earlier precedence of the Apex Court, it was held
that the scope of interference of Courts under Article 226 in matters of transfer
is extremely limited. Matters of transfers are best left to the discretion of the
competent authority and should not be tinkered with in the absence of
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demonstrable violation of statutory rules or instances of malafide on the part of
the competent authorities and accordingly declined to interfere with the orders
of transfer issued by the Department. Upon careful analysis of the law laid down
by the Apex Court it can be held that transfer is an incidents of service and
would not ordinarily call for interference of the court except where transfer
order is shown to be vitiated by malafide, or is it is in violation of statutory
provision or it has been passed by an authority not competent pass any such
order.
13. Coming to the facts of the present case, in view of the notification
15.06.2023 by the Department of Panchayat and Rural Development, it is clear
that the Deputy Commissioner who had issued the transfer order is the
competent authority to issue transfer orders. This notification has not been
assailed in the present proceedings nor has it been shown that it was
subsequently withdrawn or modified. No specific provision of any statutory
Rules or even guidelines has been brought to the notice of the court to show
that the transfer of the writ petitioner is in violation of such rules or guidelines
or office memoranda. The only ground of challenge to the transfer is that this
transfer is by way of punishment in view of the complaints received against the
writ petitioner and to that extent reliance is placed on the Judgment of the Apex
Court rendered in Somesh Tiwari Vs. Union of India and Others reported in
(2009) 2 SCC 592. In Somesh Tiwari (supra), the appellant before the Court was
an officer of the Indian Revenue Service and he was posted as Deputy
Commissioner of Central Excise at Bhopal. Certain employees posted at Bhopal
office of the Department apprehending disciplinary as also criminal proceedings
in the hands of the appellant on the basis of reassessment of the files
undertaken by him, an anonymous complaint was made alleging caste bias on
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his part and pursuant where to an order of transfer was issued against him on
or about 22.08.2005. The appellant thereafter filed a representation before the
competent authority against the transfer order that he was undergoing some
treatment and that he should be retained at Bhopal. The appellant however
contended that in view of the fact that he had taken action against some erring
officers, they were instrumental in sending the anonymous letter on the basis
whereof no action could have been taken in the light of circular letters issued by
the Central Vigilance Commission. An enquiry however was conducted by an
Assistant Commissioner, Director of Vigilance into the same anonymous
complaint wherein allegations were made against the appellant and the said
allegations were not found to be true, but still recommendations were made
that he be transferred from Bhopal. Only on that basis he was transferred to
Shillong. He filed representation praying for consideration on compassionate and
humanitarian grounds that he be retained in Bhopal for at least a year. The said
representation was not responded to. He approached the Central Administrative
Tribunal, Jabalpur Bench by filing an Original Application challenging the order
of transfer. The Central Administrative Tribunal in its order directed the
respondents to consider and decide the representation of the applicant and pass
speaking, detailed and reasoned order within a period of four weeks from the
date of receipt of the copy of the Order of the Central Administrative Tribunal
(CAT) and till such a decision is taken, the applicant shall not be disturbed from
his place of posting. Thereafter by order dated in 19.10.2005 the representation
was rejected. Subsequently another representation was filed by the appellant
before the Court. That representation came to be rejected and he filed another
Original Application before the CAT, Jabalpur. During the pendency of the
Original Application before the CAT the respondents while considering the
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matter of promotion, posting and transfer in the grade of Assistant
Commissioner of Customs and Central Excise passed an order dated 28.12.2005
inter-alia transferring and posting on administrative consideration the appellant
from Shillong to Ahmedabad. In view of this subsequent order of transfer the
application for amendment of the Original Application was filed which was
allowed by the CAT. As such before the tribunal besides the initial order of
transfer the subsequent orders of transfer including the orders which were
passed on the premise that the appellant had not reported at Ahmedabad was
also challenged. This Original Application came to be dismissed and the claims
of the petitioner stood rejected. This order was challenged before the High
Court of Madhya Pradesh and the writ petition came to be partly allowed by
quashing the order of transfer of the petitioner from Bhopal to Ahmedabad but
also directed that the petitioner/appellant therein shall not be entitled to salary
for the period of 15 days after the modified order of transfer to Ahmedabad till
the date he again joins his duty at Bhopal. This order came to be assailed
before the Apex Court.
14. The Apex Court while deciding this issue had held that while the employer
is entitled to pass an order of transfer in administrative exigencies but it is
another thing to say that the order of transfer is passed by way of or in lieu of
punishment. When an order of transfer is passed in lieu of punishment, the
same is liable to be set aside being wholly illegal. This finding of the Apex Court
as is evident from a perusal of the Judgment, came to be rendered on the
peculiar facts of at case on the ground that the enquiry was initiated against the
appellant in terms of allegations contained in an anonymous letter and having
regard to the directives of the CVC, no enquiry could have been initiated against
him and that it was also not in doubt that in the said enquiry the allegations
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were found to be untrue. It was found by the Apex Court that the respondents
therein were aware that the matter was pending before the Tribunal and they
did not approach the Tribunal to obtain leave for passing this second order of
transfer. The Department passed an order of transfer while considering cases of
promotion and transfer of a large number of officers. The Apex Court therefore
held that the order of transfer therefore suffered from total non- application of
mind in so far as it proceeded on the premise that the appellant therein had
already joined in his place of posting pursuant to the earlier order of transfer,
namely at Shillong. The Apex Court found that the subsequent order of transfer
even did not specify that it was passed in modification of the earlier order of
transfer or upon reconsideration of the matter afresh on humanitarian grounds
or otherwise. The Apex Court on appreciation of the facts came to the
conclusion that pursuant to the complaint no vigilance enquiry was initiated
against him and the order of transfer was passed on material which was non-
existent. The Apex Court held that the order therefore not only suffered from
total non application of mind on the part of the authorities but also suffers from
malice in law and was accordingly interfered with the order of the Madhya
Pradesh High Court at Jabalpur.
15. On careful perusal of the Judgment of Somesh Tiwari (supra), it is seen
that the Apex Court interfered with the modified order passed by the High Court
of Madhya Pradesh, Jabalpur on the peculiar facts of that case as the purported
transfer of the appellant therein was on the basis of anonymous complaints and
which in view of the CVC directives norms was not to be taken into
consideration and therefore the transfer of the petitioner was on nonexistent
materials. This Judgment of the Apex Court, does not overrule the proposition
of law laid down by the Apex Court in its earlier precedents as to the
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parameters laid down for interference of transfer orders in judicial review under
Article 226 by the High Courts. This Court respectfully accepts the proposition of
law laid down by the Apex Court in Somesh Tiwari (supra), but this Judgment
does not come to the aid of the petitioner in view of the facts and circumstances
of the present proceedings as discussed above.
16. In the present proceedings it is seen that there is no assertion that the
impugned order of transfer was issued in violation of any Statutory Rules or
norms. The averment that the order was issued by an authority not competent
to issue such an order has been found to be incorrect in view of the notification
dated 17.05.2023 which is enclosed to the affidavit-in-opposition and which
notification is admittedly not under challenge in this proceedings. The only
question raised is whether such an order of transfer will withstand the scrutiny
of the Court as the impugned order was issued "in lieu of punishment". The
respondent has also retracted its stand by filing the additional affidavit that the
transfer was in view of complaints received against the petitioner and not as a
punishment. Admittedly, no enquiry as such has been conducted into the
allegations made against the petitioner. However, the complaints stated to have
been filed against the petitioner are enclosed to the affidavit filed by the
respondent authorities. There is also no specific averment by the petitioner that
the purported order of transfer was issued mala fide by any person or officer.
Except for omnibus assertions of malice made in the writ petition, there is no
specific averment against any person including the official respondents as well
as any Panchayati Raj institutions members or the Gaon Panchayat members
that they have malicious intentions against the petitioner and as a consequence
where of the complaint was lodged.
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17. In view of the law laid down by the Apex Court as discussed above it can
be summarized that transfer is an incidence of service and it can be interfered in
judicial review under Article 226 under any of the three circumstances- firstly
when the transfer order is shown to be vitiated by malafide or secondly- when
the transfer order is an violation of any statutory provision or thirdly- the said
order has been passed by an authority not competent to pass such an order. In
so far as the second and the third situations are concerned, in the facts of the
present case since the petitioner has not assailed the transfer order to be in
violation of any statutory provision of rules. Although the petitioner had
contended that the Deputy Commissioner, Sivasagar had issued the impugned
order, the same is bad as the Deputy Commissioner is not authorized to issue
the transfer order as the petitioner is serving under the Panchayat & Rural
Development Department and as such the competent authority to transfer the
petitioner will be the commissioner of the Panchayat & Rural Development
Department. However, this contention of the petitioner also cannot be accepted
in view of the notification/office memorandum dated 17.05.2023 issued by the
Commissioner, Rural Development Department, Assam where by the Deputy
Commissioners in general area districts have been authorized to make transfers
and postings of Block Development Officers, Engineers, Gaon Panchayat
Secretaries and all other regular officers and staff including contractual
employees of the Panchayat & Rural Development Department within their
jurisdiction. In view of this notification the petitioner who is rendering service as
a casual employee can also be transferred, as the notification does not
specifically exclude transfer and posting of casual employees like the petitioner.
That apart the said notification is also not put to challenge in the present
proceedings. In so far as the question as to whether the impugned transfer
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order can be vitiated by malice, it is seen that no specific allegations are made
against the Deputy Commissioner, Sivasagar, or any officers of the Panchayat &
Rural Development or the other officers in the Panchayati Raj Institutions to
sustain any claim of the petitioner that this order was issued by any person or
authority based out of malice-in-fact. However, an order issued by the
appropriate authority can also stand vitiated on the ground of malice in law and
it need not be specifically so pleaded. In order to ascertain whether the principle
of malice-in-law is applicable in the facts of the present case, the Court will
need to examine whether the impugned transfer order was issued without
lawful excuse, including whether the statutory powers were exercised for
purposes other than those for which the law was intended. As discussed above
the petitioner has not been able to bring to the attention of the Court that any
specific guidelines or statutory norms or Rules of the State are available and
which are required to be followed while issuing transfer orders. The department
had issued the impugned order in view of the receipt of complaints from several
members. The said complaints are also enclosed with the affidavit-in-opposition.
Therefore, in the absence of any statutory rules, norms, or guidelines to show
that the transfer of the petitioner was not justified, the actions of the
respondents in issuing the impugned transfer order whereby the petitioner was
transferred for administrative exigency cannot be held to be an act which calls
for interference by this Court on the ground of "malice in law". Even under the
Assam Fundamental and Subsidiary Rules, under FR 15(a) State Government
may transfer a government servant from one post to another provided that
except-
1. On account of inefficiency or misbehavior
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2. On his written request
a government servant shall not be transferred substantively or appointed
to officiate in a post carrying less pay than the pay of the permanent post which
he held earlier or would have held had his lien not been suspended under Rule
14, in a case covered by Rule 49. As such, even under Rule 15(a) of the Assam
Fundamental and Subsidiary Rules, on account of inefficiency or misbehavior,
the State Government is entitled not only to transfer an employee but also to
transfer the employee to a post carrying less pay than that of the permanent
post. In the facts of the case however no such order has been passed by the
respondent authorities. The petitioner has been transferred from his present
place of posting to a new place of posting, and it is not contended by the
petitioner that the post to which he has been transferred to carries a less pay
than the post in which the petitioner is presently serving.
18. Under such circumstances, upon a total consideration of the facts as
placed before the court as well as the law enunciated by the Apex Court, this
Court is not inclined to interfere with the impugned transfer order. The writ
petitioner's argument that he is a casual employee and therefore should not be
subject to transfer is also rejected in view of the discussions above in the
Judgment. The prayer for interference with the transfer order is therefore
declined. However, in view of the complaints stated to have been received
against the petitioner, the authorities are at liberty to take up any departmental
proceedings as permissible under the law against the writ petitioner by giving
adequate opportunities to the writ petitioner. This shall not be construed to be a
direction by the Court, but it is only a liberty granted to the respondent
authorities if they are so advised.
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19. The writ petition is accordingly dismissed. No order as to costs.
JUDGE
Comparing Assistant
