2011 (9) TMI 1201 - HC - Indian Laws

Summary

Issues Involved:
1. Legality and arbitrariness of the transfer order.
2. Adherence to government policy on transfer tenure.
3. Allegation of mala fide intent behind the transfer.
4. Competency and authority to issue the transfer order.
5. Judicial review of transfer orders.

Summary:

1. Legality and Arbitrariness of the Transfer Order:
The writ Petitioner, an Executive Engineer in the Water Resource Department, challenged his transfer within six months, alleging it was illegal, arbitrary, and malafide. The learned Single Judge stayed the transfer order, prompting the State to appeal. The Court noted that the transfer was within the same station (Guwahati) and both posts were equivalent, except for the nature of duties and responsibilities. The Court emphasized that transfer orders can only be interfered with in rare and exceptional cases, such as lack of competency, violation of statutory rules, gross discrimination, or malafide intent.

2. Adherence to Government Policy on Transfer Tenure:
The writ Petitioner argued that the transfer violated the government policy u/s Office Memorandum dated 04.02.2002, which stipulates a three-year tenure at a particular station unless justified by proper reasons. The Court referred to the case of *Ranjit Chandra Barman*, where it was held that judicial intervention is not justified for transfers within the same station, even if they breach prescribed norms of recording justification. The Court reiterated that guidelines do not confer a legally enforceable right.

3. Allegation of Mala Fide Intent Behind the Transfer:
The Petitioner claimed the transfer was issued at the behest of a minister, amounting to a mala fide action. The Court found no specific malice attributed to any State Respondents. It cited the case of *Mohd. Masood Ahmad*, where the Supreme Court held that a transfer at the instance of an MLA does not vitiate the order. The Court emphasized that allegations of malafides must be based on concrete materials and not conjectures or surmises.

4. Competency and Authority to Issue the Transfer Order:
The Court found no challenge to the competency of the Appellant to issue the transfer order. It noted that the transfer was approved by the highest authority of the State, and there was no violation of statutory rules or discrimination against similarly placed officers.

5. Judicial Review of Transfer Orders:
The Court highlighted that transfer is an incident of service and judicial review of transfer orders under Article 226 of the Constitution is very limited. It referred to the case of *State of UP v. Govardhan Lal*, where the Supreme Court held that transfer orders should not be interfered with unless they are malafide, violate statutory provisions, or are issued by an incompetent authority. The Court also cited *State of Haryana v. Kashmir Singh*, emphasizing that administrative exigency cannot be judged by judicial authorities.

Conclusion:
The Court concluded that there was no evidence of malafide intent or violation of statutory rules in the transfer order. It emphasized that the executive is the proper authority to assess the suitability of officers for particular posts. Consequently, the writ appeal was allowed, the writ petition was dismissed, and the stay order was vacated.