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TMI Blog2011 (9) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... Cell, Guwahati. 3. In view of the urgency of the matter and as agreed by the learned Counsel for both the sides, the writ appeal is being disposed of at the admission stage itself. Since the arguments were addressed on merit of the cases, this judgment will also dispose of the writ petition. 4. The gist of the case is that the writ Petitioner/Respondent No. 1 is the Executive Engineer in the Water Resource Department. In the recent past, in the month of October, 2008 the writ Petitioner was posted as Executive Engineer in the Office of the Superintendent Engineer, Monitoring Evaluation Cell. Thereafter, in the month of February, 2009, i.e. within a period of five months he was transferred to Nagaon Division. Vide order dated 25.01.2011, i.e. within a period of less than two years, the writ Petitioner was again brought from Nagaon Division to Guwahati East Division. While the writ Petitioner/Respondent No. 1 was working as Executive Engineer in Guwahati East, Water Resource Department, he has again been shifted to Monitoring and Evaluation Cell, Guwahati, where he was serving in the year 2008. Being aggrieved with the order of transfer within a period of six months, the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice at the same station. In support of this submission, the learned Addl. Advocate General referred to the judgment of this Court rendered in the case of State of Assam v. Ranjit Chandra Barman, reported in 2008 (2) GLT 786. The learned State counsel also submitted that there is No. illegality if a transfer is effected at the instance of a minister, who is in-charge of the concerned department and to re-inforce this submission, learned State counsel cited the authority of this Court rendered in the case of State of Assam v. Dilip Kumar Das, 2003 (1) GLT 530. The learned Addl. Advocate General also contended that the transfer was necessary to bring a more efficient officer in the Water Resource Department to handle the problems of artificial flood in the Guwahati city during rainy season and there was No. mala fide in effecting transfers. The learned State counsel also argued that if a transfer order is issued at the intervention and on the basis of suggestion of a concerned minister, it would, ipso facto, cannot be termed as a mala fide action. 8.1 With regard to the Minister's order dated 20.06.2011, prohibiting transfer of officers in his department, the learned Addl. AG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Respondents behind his back. The Petitioner was shocked to find out that the Respondent No. 3 who is the concerned Minister of Water Resources Department recorded an impugned noting in File No. WR (E) 184/2007 to the effect that the Petitioner should be transferred from his present place of posting and same was send for approval of the Chief Minister. The said impugned noting of the Respondent No. 3 was not supported with any valid and cogent reason. The Petitioner could not manage to lay his hands on the impugned noting recorded by the Respondent No. 3. Therefore, the Petitioner prays before this Hon'ble Court to direct the Respondents to produce the relevant file at the time of hearing of the instant case. The Chief Minister without assigning any reasonable justification approved the impugned noting recorded by the Respondent No. 3. The Respondent No. 1 in turn by mortgaging his own discretion and decision making authority at the behest of Respondent No. 3 which has No. sanctity in the eyes of law issued the impugned notification dated 11.07.2011 transferring the Petitioner to the office of Respondent No. 2 in Monitoring and Evaluation Cell. However, the said impugned n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; (iii) if there is gross discrimination between the writ Petitioner vis-o-vis similarly situated officers/employees and (iv) if the transfer order is actuated by any mala fide. 13. In the case before us, neither is there any challenge to the competency of the Appellant to issue the transfer order nor is there any allegation of violation of statutory rule. There is also No. allegation of discrimination between the Petitioner and similarly placed officers. Precisely, the impugned transfer order has been assailed only on the ground of non-adherence to the O.M. dated 04.02.2002, which stipulates 3 years as the normal tenure of an officer/employee at a particular station. It has also been pleaded by the writ Petitioner that No. reason has been assigned to transfer the writ Petitioner from one office to another within a short period of six months. The other ground to challenge the transfer order is that the same has been issued at the behest of Respondent No. 3(Minister of the department) and as such, it amounts to mala fide action. 14. An identical issue of transfer of an officer from one office to another in the same station at Guwahati and that too before the normal tenure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 malafide 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 reiterated that the order of transfer made even in transgression of admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Allahabad High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which 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 malafide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. 8. Learned Counsel for the Appellant submitted that the impugned transfer order of the Appellant from Muzaffarnagar to Mawana, District Meerut was made at the instance of an MLA. On the other hand, it has been stated in the counter-affidavit filed on behalf of Respondents No. 1 and 2 that the Appellant has been transferred due to complaints against him. In our opinion, even if the allegation of the Appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge, we find that implementation of the transfer order has been stayed by the learned Single Judge basically on the ground that the reply of the Respondent No. 3 with regard to non-recording of the justification for transfer in terms of the O.M. dated 04.02.2002 is not on oath but based on information. In our considered opinion, though it would have been proper for the State Respondent to assert on oath that the transfer was effected in larger public interest and also about the objective for bringing the Respondent No. 4 to the post of writ Petitioner because of his efficiency to handle flood and drainage management projects and supplement it from certain materials on record, the deficiency in the affidavit of Respondent Nos. 1, 2 and 3 militates in the backdrop of absence of any evidence of malafide and also in view of non-requirement of assigning any reason in the same station transfer. On these grounds, the shortcomings in the affidavits can be safely ignored, since it will not vitiate the transfer order. 22. It is true that unwarranted transfer of an efficient and independent officer is against good governance. At the same time bringing more efficient and competent offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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